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2016-07-06 06:36:11.085432+00

Stevens

In the Court of Common Pleas, plaintiff filed a petition seeking a declaratory judgment of that court on the question as to whether plaintiff was required to accept a deed to certain premises located in Shaker Heights, Cuyahoga county, Ohio. To that petition the defendant Murphy filed an answer and cross-petition. His answer, after certain admissions, denied generally the allegations of plaintiff's petition. In his cross-petition, he prayed, first, that the court order plaintiff to specifically perform the contract between plaintiff and himself, and, second, in the alternative for damages in the amount of his commission. The defendants The Aldon Investment Company and Albert J. Kent, jointly, also filed an answer to the petition of the plaintiff, and also included therein their answer to the cross-petition of the defendant David C. *Page 502 Murphy, the contents of which answer, for the purposes of this opinion, need not be set forth. By agreement, the second claim (for damages) of the defendant Murphy's cross-petition was omitted from the lower court's consideration, and the case was submitted on the issue of specific performance; and the case is likewise so submitted to this court. The trial court declared that plaintiff should specifically perform the contract, and plaintiff has appealed to this court on questions of law and fact from that judgment, the plaintiff below thus being the appellant in this court, and the defendants below being the appellees in this court. The transcript discloses that The Aldon Investment Company, a corporation, was and is the owner of the property which is here involved, and that Albert J. Kent was and is the controlling owner of that corporation. Mr. Kent had certain discussions with a Cleveland real estate broker named Spitz concerning the availability of this property for sale, and was advised by Kent that the property was for sale at a price of $100,000 cash. Spitz, however, did not procure a listing contract thereon. Spitz conferred with David C. Murphy, a real estate broker of Akron, Ohio, who in turn contacted the plaintiff, Paul A. Frank, concerning the purchase of this real estate. Conferences between Murphy and Frank culminated in Frank's making by letter a written offer to Murphy to purchase the property. This offer was as follows: "September 8, 1939. "Mr. David C. Murphy, "2521 Front St., "Cuyahoga Falls, Ohio. "Dear Mr. Murphy: "With respect to the purchase of 16730 Kinsman road, Shaker Heights, Ohio, including the lease to F.W. Woolworth Company, which I examined some *Page 503 time ago, I offer you $100,000 for a clear title to this property on the following basis: "You are to accept the following mortgages at 75% of their face value at the time of the consummation of the deal, which mortgage values are approximately as follows: "1059 N. Howard St. $4,642.00 "847 Wall St. 2,021.00 "807 Elmore Ave. 1,873.00 "64 Mt. View Ave. 4,639.00 "171 Beck Ave. 4,395.00 "You are also to take over, for a credit of $10,000 on the purchase price, the following properties: "366 Bell St. "1417-19 Marcy St. "1760 Manchester Rd. "1629 S. Second St., Cuyahoga Falls "94 W. Tallmadge Ave. "433 Sherman St. "481 E. Crosier St. "It is understood that, should this deal be consummated, you will receive a commission of 3% on the value of the credit which I receive from the mortgages and the real estate, but it is understood and agreed that Mr. Kent will pay the commission which may be due on the sale of the property on Kinsman road. "The real estate is subject to prior sale, as a whole. "Very truly yours, "(Signed) Paul A. Frank." That offer was accepted by Murphy through his letter of September 11, 1939, as follows: *Page 504 "September 11, 1939. "Mr. Paul A. Frank, "Second National Building, "Akron, Ohio. "Dear Mr. Frank: "Relative to your letter proposal of September 8, 1939, covering the purchase of property located at 16730 Kinsman road, Shaker Heights, Ohio, please be advised that I accept the proposition as outlined. "I have a firm commitment from Mr. Kent, the owner, and Mr. Spitz, the co-broker, accepting your proposal. "Sincerely yours, "(Signed) David C. Murphy." Thereafter that contract was by agreement modified so as to reduce the purchase price from $100,000 to $95,000. An abstract of title to the premises was demanded by Frank, and furnished, and it is claimed by him that then, for the first time, he was apprised of the existence of certain restrictions limiting the use to which the property could be adapted, and also of the existence of a record easement for driveway purposes across the rear of the premises. There was also an actual driveway across the premises at a place other than that specified of record, concerning which the evidence does not show whether it existed by grant, prescription or license. The question is thus presented as to whether the existence of the restrictions upon these premises, and of the easements thereon, permit the giving of a deed conveying such "clear title" thereto that plaintiff can be compelled to accept the same, when the deed must be made subject to the restrictions on the use of the property, and to the easements for driveway purposes. The contract into which Frank and Murphy entered provided that Frank was to receive a "clear title" to *Page 505 the premises in question, in consideration of the payment by him of the $95,000 purchase price. The contract further provided for the defendant Murphy's taking over certain mortgages and real property to apply upon the purchase price. The owner of the property refused to accept the mortgages and real estate upon the purchase price, and thereby disaffirmed the contract into which Murphy had entered. Murphy thereupon sold the mortgages and real estate for Frank, charging therefor a commission as provided in the contract. This latter provision we hold to be a severable part of a divisible contract; and its performance did not constitute part performance of the contract of sale. If the contract had been silent on the subject of the kind of title to be given, the law would have presumed that a marketable title was intended. Paragraph one of the syllabus in McCarty v.Lingham, 111 Ohio St. 551, 146 N.E. 64. A "marketable title" has been described as follows: "It must in any event embrace the entire estate or interest sold, and that free from the lien of all burdens, charges, or incumbrances which present doubtful questions of law or fact." (Italics ours.) McCarty v. Lingham, supra, at 558. However, we entertain serious doubt that the title proposed to be given plaintiff even constitutes a marketable title, within the above definition. "Clear title" and "marketable title" are not synonymous terms. "Clear title" imports something more than a mere marketable title. "Clear" is defined in Webster's New International Dictionary (2d Ed.), as "9. Free from encumbrance, obstruction, burden, limitation, etc." "Clear title," then, means a title which is free from encumbrances, obstructions, burdens and limitations, not only of the type which present doubtful questions of law or fact, but which is free from encumbrances, *Page 506 obstructions, burdens and limitations which present anyreasonable question of law or fact. Here the owner of the premises, who in our judgment was not bound by any contract in connection with this transaction, professes a willingness to sell the property for the price stipulated, but insists that the deed shall be for the premises as they are, subject to the limitations in use imposed by the restrictions, and subject to the easements thereon. The broker Murphy urges that such a title as the owner is willing to convey constitutes a "clear title" and complies with the terms of the contract; moreover, Murphy alleges that Frank had knowledge of the existence of the restrictions and of the easements, before making his offer, and is accordingly estopped to object to the acceptance of a deed containing those exceptions from the covenant against encumbrances. We may here observe that we find nothing in this evidence which in our judgment justifies the application of the doctrine of estoppel so far as the plaintiff is concerned. Frank contracted for a "clear title," and a title subject to certain encumbrances is offered by Murphy. The annotation in 64 A.L.R., 1479, at 1480, states the following with reference to easements: "Generally, however, it may be stated that an easement conferring upon its owner an interest in the land, the right to some profits, benefit, dominion, or lawful use out of or over the land, though it may be consistent with the passing of the fee by the conveyance, is a burden upon the estate granted, diminishing the full measure of its enjoyment, and constitutes a breach of the covenant against encumbrances in the deed irrespective of thegrantee's knowledge of such easement." (Italics ours.) We are of the opinion that a deed to real estate, conveying property subject to easements for driveway purposes, and also subject to a complicated set of restrictions, *Page 507 both of which are here present, does not grant a "clear title" as we have defined our understanding of that term, and that Frank cannot properly be compelled to accept such title under his contract. A decree may be prepared wherein a declaration by this court is contained finding that there is no obligation upon Paul A. Frank to accept a deed and pay for the premises in question under the circumstances here disclosed. Decree for appellant. WASHBURN, P.J., and DOYLE, J., concur.

2017-04-11 13:23:05.496403+00

http://www.pacourts.us/assets/opinions/Commonwealth/out/1171CD16_4-11-17.pdf

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cachee Berg-Moton, : Petitioner : : v. : No. 1171 C.D. 2016 : Submitted: November 23, 2016 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: April 11, 2017 Petitioner Cachee E. Berg-Moton (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), dated May 25, 2016. The Board affirmed the Unemployment Compensation Referee’s decision, which denied Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law),1 relating to voluntary separation without cause of a necessitous and compelling nature. We reverse the Board’s order. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).  Claimant filed for unemployment compensation benefits after voluntarily quitting her position as a customer service specialist for AT&T Mobility Services LLC (Employer). The Harrisburg Unemployment Compensation Service Center (Service Center) issued a Notice of Determination, finding Claimant ineligible for benefits under Section 402(b) of the Law. (Certified Record (C.R.), Item No. 5.) The Service Center reasoned that Claimant failed to meet her burden to prove a necessitous and compelling reason for quitting. (Id.) Claimant appealed the Service Center’s determination, and a Referee conducted an evidentiary hearing. Claimant testified that during her employment with Employer as a customer service specialist, she had ongoing issues with two other employees. (C.R., Item No. 9 at 13.) On October 2, 2015, she reported to her floor manager and her area manager that these two employees began sexually harassing her in September 2015. (Id. at 13-14.) Between October 8 and 12, 2015, Claimant called Employer’s Asset Management department to report that someone had broken into her computer. (Id. at 17-18.) Claimant testified that her floor manager, Holly Decker, let one of the harassers read the reports Claimant made to Asset Management. (Id. at 18, 27-28.) Claimant again made a report to her floor manager and area manager in November 2015 about additional incidents of harassment. (Id. at 15.) On December 31, 2015, Claimant called the police several times in response to one of the employees following her and making a racial slur. (Id. at 16-17.) She also reported these incidences to Ms. Decker. (Id.) Claimant testified that she did not go to the union because one of the people harassing her was in the union. (Id. at 26-27.) Claimant testified that she took a two-week vacation and that she notified Ms. Decker that she was probably going to be 2 leaving her employment. (Id. at 8.) On February 8, 2015, Claimant notified Ms. Decker through text message that she resigned. (Id. at 24; C.R., Item 1, at 8.) Ms. Decker testified on behalf of Employer. Ms. Decker testified that Claimant told her on January 22, 2016, that she planned to resign. (C.R., Item No. 9 at 34.) As to Claimant’s complaints, Ms. Decker testified that Asset Protection looked into Claimant’s computer to determine if someone was accessing information, but that Asset Protection could only review her computer for activity from the previous two days. (Id. at 35.) She testified that she told Claimant to contact the police at the end of December regarding her concerns about being followed and harassed, as it was outside of work. (Id.) Ms. Decker testified that Employer offered Claimant assistance through its Employer Assistance Program (EAP). (Id. at 36.) Ms. Decker also testified that Claimant could have reported the harassment to the union, to Employer’s director (Dot Moran), to the Assistant Vice President Jack Wright (AVP), or to the online human resource center (HR One Stop). (Id. at 35-37.) Ms. Decker stated that she never received any report through HR One Stop indicating that Claimant had made a report. (Id. at 37.) Following the hearing, the Referee issued a decision and order, affirming the Service Center’s determination. (C.R., Item No. 10.) The Referee made the following findings of fact: 1. The claimant was working full time as a customer service specialist for AT&T Mobility Services LLC since July 9, 2012, earning $17.47 per hour. 2. The claimant alleges that she was being harassed by her coworkers since approximately October 2015. 3 3. The claimant first reported to her team manager and area manager that she felt harassed on or about October 2, 2015. 4. The claimant alleges her coworker’s [sic] made such comments as “little miss virgin” and making reference as to the claimant being a “black jew.” 5. The claimant continued to make complaints to her team manager and area manager. 6. The claimant contacted a federal EEOC agency to file a complaint. 7. The claimant also reported to her managers that she believed that her coworkers hacked into her computer and believe [sic] that the coworkers were tracking her movements via their cell phones. 8. The managers contacted the [A]sset [P]rotection department to check into the claimant’s claims of her computer being hacked; however, no evidence was found to substantiate the claims. 9. The claimant contacted the police in regards to the coworkers tracking her movements. The police are currently investigating those allegations. 10. The claimant took a two week vacation on January 22, 2016, then sent her team manager a text February 8, 2016 resigning her position. 11. The claimant was becoming ill due to the alleged harassment. 12. The claimant could have utilized assistance from the director, AVP, union, or the employer’s HR [O]ne [S]top for assistance when she was not satisfied with the lack of assistance from her managers; however, the claimant did not utilize these options. 4  13. Continuing work was available to the claimant had she not voluntarily left her employment. (Id.) The Referee determined that Claimant voluntarily terminated her employment and failed to show cause of a necessitous and compelling nature for doing so. (Id.) The Referee explained that Claimant “has not shown that she made a good faith effort to take reasonable or necessary steps to overcome the obstacles to maintain her employment and benefits must be denied under Section 402(b) of the [L]aw.” (Id.) Claimant appealed to the Board, which affirmed the Referee’s decision and order. (C.R., Item No. 12) In so doing, the Board adopted and incorporated the Referee’s findings of fact and conclusions of law. Claimant now petitions this Court for review of the Board’s order. On appeal,2 Claimant appears to contest the Board’s decision in two ways. First, Claimant essentially argues that the Referee’s finding of fact number 12, as adopted and incorporated by the Board, is not supported by substantial evidence of record. Finding of fact number 12 provides: “The claimant could have utilized assistance from the director, AVP, union, or the employer’s HR [O]ne [S]top for assistance when she was not satisfied with the lack of assistance from her managers; however, the claimant did not utilize these options.” (C.R., Item No. 12.) Further, Claimant contends that the Board erred as a matter of law in concluding that she did not have a necessitous and compelling reason for terminating her employment. 2 This Court’s standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. 5  Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738 , 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board’s findings, this Court must examine the testimony in a light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829 , 831 (Pa. 1977). The Board’s findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359 , 365 (Pa. 1984). In an unemployment compensation case, it is well-settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383 , 1388 (Pa. 1985). The Board is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253 , 255 (Pa. Cmwlth. 2004). “Questions of credibility and the resolution of evidentiary conflicts are within the sound discretion of the Board, and are not subject to re-evaluation on judicial review.” Peak, 501 A.2d at 1388. We first address Claimant’s argument that Referee’s finding of fact number 12, adopted by the Board, is not supported by substantial evidence. Claimant contests the Referee’s finding that she did not utilize options available to her for assistance. Claimant states that she followed work policy conduct by 6 contacting her supervisor, Ms. Decker, then the area manager, and she contacted the “800 hotline through HR One Stop on multiple occasions.” (Petitioner’s Br. at 17.) She further contends that she attended EAP counselling and took a two-week vacation at Ms. Decker’s suggestion. Based on our review of Claimant’s and Ms. Decker’s testimony, we conclude that sufficient evidence exists to support the finding that Claimant knew that she could have utilized additional assistance from the director, AVP, union, or the employer’s HR One Stop, if she was not satisfied with the assistance from her managers. Claimant attempts to show that this finding is unsupported by substantial evidence merely by pointing to contrary evidence in the record, which is insufficient to show that a finding is not supported by substantial evidence. Verizon Pa., Inc. v. Workers’ Comp. Appeal Bd. (Mills), 116 A.3d 1157 , 1162 (Pa. Cmwlth. 2015). Next, Claimant argues that the Board erred in concluding that she did not terminate her employment for a necessitous and compelling reason. We agree. Section 402(b) of the Law provides, in part, that a claimant shall be ineligible for compensation for any week in which the claimant’s “unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.” Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court’s review. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 , 661 (Pa. Cmwlth. 2006). A claimant who voluntarily quits her employment “bears the burden of proving that necessitous and compelling reasons motivated that decision.” Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126 , 1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). To establish cause of a necessitous and compelling nature, a claimant must establish that 7 (1) circumstances existed that produced real and substantial pressure to terminate employment, (2) like circumstances would compel a reasonable person to act in the same manner, (3) the claimant acted with ordinary common sense, and (4) the claimant made a reasonable effort to preserve her employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261 , 264 (Pa. Cmwlth. 2008). Sexual harassment and racial slurs may present adequate pressure to terminate one’s employment, and a claimant need not be subjected to such language or conduct indefinitely. Porco v. Unemployment Comp. Bd. of Review, 828 A.2d 426 , 428 (Pa. Cmwlth. 2003); see also Peddicord v. Unemployment Comp. Bd. of Review, 647 A.2d 295 , 298 (Pa. Cmwlth. 1994). This Court has held that a claimant normally will not meet the fourth requirement—a reasonable effort to preserve employment—unless the claimant notifies the employer of the harassment. Martin v. Unemployment Comp. Bd. of Review, 749 A.2d 541 , 544 (Pa. Cmwlth. 2000). Failure to report harassment, however, may be excused where the record evidence reveals that doing so would be futile. Id. A claimant also need not “notify the employer of each and every incident of harassment.” Unclaimed Freight Co. v. Unemployment Comp. Bd. of Review, 677 A.2d 377 , 379 (Pa. Cmwlth. 1996). Moreover, “there is a certain level of conduct that an employee will not be required to tolerate and the Court will not place all responsibility upon an employee to resolve his or her work dilemma. Ultimately[,] the employer bears the responsibility for eliminating harassment against employees in the workplace.” Comitalo v. Unemployment Comp. Bd. of Review, 737 A.2d 342 , 345 (Pa. Cmwlth. 1999). Here, the Referee and Board focused their analysis on Claimant’s failure to take reasonable or necessary steps to overcome the obstacles to maintain 8 her employment. Claimant, however, satisfied the notification requirement by bringing her complaints to her floor supervisor and her area manager in October, November, and December 2015. This notice afforded Employer the opportunity to rectify the situation. Claimant was not required to endure the alleged abusive behavior indefinitely. Her multiple reports to Employer provided the requisite notice to allow Employer to attempt to alleviate the harassment. Although Employer testified that Claimant could have utilized assistance from the director, AVP, union, or the employer’s HR One Stop, it did not introduce into evidence a policy that would indicate Claimant was required to contact anyone other than her floor supervisor and area manager. Absent a policy that specified additional reasonable steps Claimant was required to take to preserve her employment, we cannot agree that Claimant failed to notify properly Employer. We conclude, therefore, that Claimant took reasonable and necessary steps to overcome the obstacles to maintain her employment. Accordingly, we reverse the Board’s order. P. KEVIN BROBSON, Judge 9  IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cachee Berg-Moton, : Petitioner : : v. : No. 1171 C.D. 2016 : Unemployment Compensation : Board of Review, : Respondent : ORDER AND NOW, this 11th day of April, 2017, the order of the Unemployment Compensation Board of Review is hereby REVERSED. P. KEVIN BROBSON, Judge

2016-07-06 06:36:11.523544+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION AND JUDGMENT ENTRY * * * * * This matter is before the court on appeal from the Erie County Court of Common Pleas. On December 23, 1996, appellant, Addaryl Morris, was convicted of complicity to commit burglary. He received a one year prison sentence. At sentencing, he was informed that the parole board could increase his sentence up to fifty percent should he commit a crime in prison. According to the record before us, appellant has not yet had his prison sentence extended pursuant R.C. 2967.11. He now appeals setting forth five assignments of error challenging the constitutionality of R.C. 2967.11, the sentencing statute which provides for "bad time." Appellant's five assignments of error are found not well-taken on the authority of this court's decision in State v.Somerlot, et al. (Jan. 23, 1998), Erie County App. No. E-97-02, unreported. Accord, State v. Davis (Dec. 31, 1997), Miami App. No. 97-CA-17, unreported. The judgment of Erie County Court of Common Pleas is affirmed. Costs assessed to appellant. JUDGMENT AFFIRMED. 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. _______________________________ Peter M. Handwork, P.J. JUDGE _______________________________ George M. Glasser, J. JUDGE _______________________________ Richard W. Knepper, J. JUDGE CONCUR.

2016-07-06 06:36:11.94878+00

{¶ 23} I respectfully dissent from the majority opinion. Unlike the majority, I believe there is a subtle, yet distinct difference between finding the recidivism factor is "very great" and finding the "greatest likelihood of committing future crimes." Accordingly, I would reverse the trial court's sentence and remand the matter for resentencing. For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed.

2016-07-06 06:36:13.310885+00

JOURNAL ENTRY AND OPINION *Page 3 {¶ 1} Defendant-appellant, Grady Simmons, appeals the order of the Cuyahoga County Court of Common Pleas denying his motion to withdraw his guilty plea. For the reasons stated below, we affirm. {¶ 2} In 1990, appellant was involved in a fight at an RTA station in East Cleveland. After the victim of the fight died, appellant was indicted on a charge of aggravated murder. On March 26, 1991, appellant entered a plea of guilty to an amended indictment of murder. On this same day, the trial court sentenced appellant to an indefinite prison term of 15 years to life. {¶ 3} On November 15, 2007, appellant filed a motion to withdraw his guilty plea pursuant to Civ. R. 32.1. The trial court denied appellant's motion on January 23, 2008. We granted appellant leave to file a delayed appeal of the trial court's order. {¶ 4} Appellant presents four assignments of error for our review. {¶ 5} In his first assignment of error, appellant contends that the trial court erred when it failed to approve his App. R. 9(C) statement of the proceedings. Appellant asserts that this denial deprived him of due process because the record of the plea hearing is not available for appellate review. He argues that the rules require the trial court to approve his statement or to submit a statement of its own. *Page 4 {¶ 6} App. R. 9(C) provides as follows: {¶ 7} "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee no later than 20 days prior to the time for transmission of the record pursuant to App. R. 10, who may serve objections or propose amendments to the statement within 10 days after service. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant to App. R. 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal." {¶ 8} Appellant's counsel certified to the trial court that a transcript of the 1991 plea hearing was unavailable. Appellant then submitted a proposed statement of the proceedings based upon his recollection. The state opposed the proposed statement, citing a lack of proof that the statement was a correct and accurate depiction of the proceedings. The trial court agreed and denied the submission of appellant's proposed statement. {¶ 9} Appellant's proposed statement reads: {¶ 10} "1. On 3-26-91, I plead guilty to murder in case number 90-258459 in front of the honorable Sam A. Zingale. *Page 5 {¶ 11} "2. I was initially charged with the crimes of Aggravated Murder and Murder. {¶ 12} "3. At the time of my plea I was 18 years old. {¶ 13} "4. My court appointed counsel presented a plea offer from the state of Ohio to me. {¶ 14} "5. My court appointed counsel, ***, indicated to me that he believed I would be convicted of manslaughter and that there was no difference in time to get in front of the parole board between manslaughter and murder. {¶ 15} "6. My court appointed counsel did not explain what the ramifications were of a life tail [sic]. {¶ 16} "7. I was told I would be in front of the parole board in nine years and six months, and that I would be paroled at that time because it was my first conviction as an adult. {¶ 17} "8. On 3-26-91, the date of my plea the [judge], failed to advise me of my rights to trial by jury or to the bench, rights to compulsory process, right to remain silent at trial and not have my silence used against me, or to explain the punishment or penalties I would face by entering my guilty plea. {¶ 18} "9. I did not understand my rights or the penalties I was exposing myself to by entering my plea." {¶ 19} App. R. 9 permits the parties to attempt to recreate a record of court proceedings when a verbatim transcript is unavailable. "The narrative statement *Page 6 of evidence or proceedings provided for in Appellate Rule 9(C) is an alternative to the verbatim transcript of proceedings provided for in Appellate Rule 9(B)." Joiner v. Illuminating Co. (1978),55 Ohio App. 2d 187. The rule grants the trial court the responsibility and authority to make deletions, additions, or modifications to a proposed narrative statement of evidence or proceedings so that it will conform to the truth and be accurate before it is approved. Id. at 196. {¶ 20} Appellant's proposed statement is not an acceptable narrative statement of the proceedings of the March 26, 1991 plea hearing. The conversations between appellant and his trial counsel are privileged and would not have been included as part of the transcript of the hearing. Additionally, appellant's unsupported allegation that the trial court failed to advise him of any of his constitutional rights, including the right to trial by jury, flies in the face of the trial court's journal entry and appellant's own motion in which he states that he waived his right to a trial by jury. Therefore, the trial court did not abuse its discretion by refusing to approve appellant's proposed statement. {¶ 21} Assuming arguendo that the trial court erred when it failed to settle and approve appellant's proposed App. R. 9(C) statement, appellant cannot demonstrate prejudice from this procedural error. As explained below, appellant has failed to demonstrate the manifest injustice necessary to permit him to withdraw his guilty plea under Crim. R. 32.1. *Page 7 {¶ 22} In his second, third, and fourth assignments of error, appellant contends that the trial court erred in denying his motion without an evidentiary hearing, his plea was not knowingly, intelligently, and voluntarily made and, his plea was the result of ineffective assistance of counsel. The issues raised in these assignments are interrelated and will be addressed together. {¶ 23} A motion to withdraw a guilty plea is governed by the standards set forth in Crim. R. 32.1, which states: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." {¶ 24} Because appellant's request was made post-sentence, the standard by which the motion was to be considered was "to correct manifest injustice." Crim. R. 32.1; State v. Smith (1977),49 Ohio St. 2d 261, paragraph one of the syllabus. A manifest injustice has been defined as a "clear or openly unjust act." State ex rel. Schneider v.Kreiner, 83 Ohio St. 3d 203, 208, 1998-Ohio-271. Under the manifest injustice standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. Smith, supra, at 264. An accused has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea. Id. at paragraph one of the syllabus. {¶ 25} "A motion made pursuant to Crim. R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the *Page 8 movant's assertions in support of the motion are matters to be resolved by that court." Smith, supra, at paragraph two of the syllabus. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. {¶ 26} Additionally, although the rule itself does not provide a time limit for making a motion to withdraw a guilty plea, an "undue delay" between the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor which adversely affects the credibility of the movant and mitigates against the granting of the motion.Smith, supra, at 264. {¶ 27} Appellant argues that a manifest injustice occurred when he entered his plea because his counsel misinformed him as to the consequences of pleading guilty to a charge of murder. He argues that because he was misinformed of the consequences of his guilty plea, his plea was not knowingly or voluntarily made and may be withdrawn. The crux of appellant's argument is that he agreed to take the state's plea offer because his counsel told him he would be eligible for parole after nine and a half years and that he would get parole at that time because this was his first conviction as an adult. {¶ 28} A guilty plea is not voluntary if it is the result of ineffective assistance of counsel. State v. Masterson, Cuyahoga App. No. 90505, 2008-Ohio-4704. A claim of ineffective assistance of counsel requires a showing that the *Page 9 lawyer's conduct fell below professional standards and that the defendant was prejudiced as a result. Strickland v. Washington (1984),466 U.S. 668, 687. When the defendant claims ineffective assistance after entering a guilty plea, he must show a reasonable probability that he would not have entered the plea absent the lawyer's conduct.State v. Creary, Cuyahoga App. No. 82767, 2004-Ohio-858, citing Hill v.Lockhart (1985), 474 U.S. 52, 59. However, a lawyer's mistaken prediction about the likelihood of a particular outcome after correctly advising the client of the legal possibilities is insufficient to demonstrate ineffective assistance of counsel. Creary at ¶ 10. {¶ 29} The credibility of appellant's claims that his counsel incorrectly informed him that he would be paroled in nine and a half years and but for that information he would not have made the plea, are strongly called into question by the fact that appellant did not immediately seek to withdraw his guilty plea when denied parole for the first time. Appellant waited an additional seven years from when he asserts he believed he would be paroled, and waited until he was denied parole for the second time, before seeking relief from the claimed error. Appellant has made no attempt to explain this undue delay in pursuing his claim. Under these facts, we cannot find that the trial court abused its discretion when it denied appellant's motion to withdraw his guilty plea. {¶ 30} Neither do we find that the trial court erred by not holding a hearing prior to denying appellant's motion. R.C. 2953.21(C) does not require a hearing *Page 10 for every post-conviction relief petition. A trial court need not hold an evidentiary hearing if the record indicates the movant is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to demonstrate a manifest injustice. State v.Russ, Cuyahoga App. No. 81580, 2003-Ohio-1001, at ¶ 12 (citations omitted). Generally, a self-serving affidavit or statement is insufficient to demonstrate manifest injustice. See State v. Elko, Cuyahoga App. 84602, 2005-Ohio-110; State v. Patterson, Stark App. No. 2003CA00135, 2004-Ohio-1569; State v. Honaker, Franklin App. 04AP-146,2004-Ohio-6256. {¶ 31} For all of the above reasons, we conclude that the trial court did not abuse its discretion by denying appellant's motion without first holding a hearing. Accordingly, appellant's second, third, and fourth assignments of error are also 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. *Page 11 CHRISTINE T. McMONAGLE, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR. *Page 1

2016-07-06 06:36:13.409653+00

DECISION AND JUDGMENT ENTRY {¶ 1} The city of Toledo ("the city"), appellant, appeals the judgment of the Lucas County Court of Common Pleas, which granted summary judgment to Mosser Construction, Inc., appellee herein and plaintiff below. Appellee filed a complaint seeking payment under a contract with the city to construct improvements to the Bayview Water Treatment Plant. For the following reasons, we affirm the trial court's judgment. *Page 2 {¶ 2} The city argues two assignments of error: {¶ 3} "1. The trial court erred when it granted appellee's motion for summary judgment because when the facts in this case are viewed in the most favorable light to the city, appellee did not meet its burden for proving breach of contract by the city. {¶ 4} "2. The trial court erred when it granted appellee's motion for summary judgment by misapplying the law to the facts in this case." {¶ 5} Because both assignments challenge the grant of summary judgment, we address them jointly. {¶ 6} Through 2005, Mosser, a construction contractor, held a contract with the city to construct improvements to the Bayview Water Treatment Plant. Neither party disputes that Mosser performed its obligations under the contract. At issue is Mosser's contention that, pursuant to the contract, it validly raised the cost payable by the city for its services in order to recoup a "commercial activity tax" incurred during its performance. {¶ 7} The contract relevantly provides: {¶ 8} "6.09 Laws and Regulations {¶ 9} "* * * {¶ 10} "C. Changes in Laws or Regulations not known at the time of opening of Bids (or, on the Effective Date of the Agreement if there were no Bids) having an effect on the cost or time of performance of the Work shall be the subject of an adjustment in contract Price or Contract Times. If Owner and Contractor are unable to agree on *Page 3 entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefore as provided in Paragraph 10.05. {¶ 11} "6.10 Taxes {¶ 12} "A. Contractor shall pay all sales, consumer, use and other similar taxes required to be paid by Contractor in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the Work. {¶ 13} "* * * {¶ 14} "11.01 Cost of the Work {¶ 15} "A. Costs Included: The term Cost of the Work means the sum of all costs, except those excluded in Paragraph 11.01.B, necessarily incurred and paid by Contractor in the proper performance of the Work. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, the costs tot be reimbursed to Contractor will be only those additional or incremental costs required because of the change in the Work or because of the event giving rise to the Claim. Except as otherwise may be agreed to in writing by Owner, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items, and shall not include any of the costs itemized in Paragraph 11.01.B. {¶ 16} "* * * {¶ 17} "5. Supplemental costs including the following: {¶ 18} "* * * *Page 4 {¶ 19} "d. Sales, consumer, use, and other similar taxes related to the Work, and for which contractor is liable, imposed by Laws and Regulations. {¶ 20} "* * * {¶ 21} "B. Costs Excluded: The term Cost of the Work shall not include any of the following items: {¶ 22} "* * * {¶ 23} "5. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Paragraphs 11.01.A and 11.01.B." {¶ 24} On June 30, 2005, R.C. 5751.02 became effective. It levies a commercial activity tax which, Mosser alleged, increased the cost of work for the project. The statute provides: {¶ 25} "(A) For the purpose of funding the needs of this state and its local governments beginning with the tax period that commences July 1, 2005, and continuing for every tax period thereafter, there is hereby levied a commercial activity tax on each person with taxable gross receipts for the privilege of doing business in this state. For the purposes of this chapter, `doing business' means engaging in any activity, whether legal or illegal, that is conducted for, or results in, gain, profit, or income, at any time during the calendar year. Persons on which the commercial activity tax is levied include, but are not limited to, persons with substantial nexus with this state. The tax imposed under this section is not a transactional tax and is not subject to Public Law No. 86-272, 73 Stat. 555. The tax imposed under this section is in addition to any other taxes or fees imposed under the Revised Code. The tax levied under this section is imposed on the person *Page 5 receiving the gross receipts and is not a tax imposed directly on a purchaser. The tax imposed by this section is an annual privilege tax for the calendar year that, in the case of calendar year taxpayers, is the annual tax period and, in the case of calendar quarter taxpayers, contains all quarterly tax periods in the calendar year. A taxpayer is subject to the annual privilege tax for doing business during any portion of such calendar year. {¶ 26} "(B) The tax imposed by this section is a tax on the taxpayer and, shall not be billed or invoiced to another person. Even if the tax or any portion thereof is billed or invoiced and separately stated, such amounts remain part of the price for purposes of the sales and use taxes levied under Chapters 5739. and 5741. of the Revised Code. Nothing in division (B) of this section prohibits a person from including in the price charged for a good or service an amount sufficient to recover the tax imposed by this section." R.C. 5751.02. {¶ 27} Supported by affidavits, in its motion for summary judgment, Mosser alleged that as a result of the new tax it incurred additional "costs of work" of $30,423. The city admitted that it has refused to pay the additional amount claimed. Instead, it argued that the commercial activity tax was a privilege tax and therefore part of "overhead or general expense" costs excluded under the contract. The city also argued that the commercial activity tax is a "non-transactional" tax not directly tied to the services provided under the contract. {¶ 28} The trial court, in granting Mosser's motion for summary judgment and denying the city's motion for summary judgment, held that the commercial activity tax was a tax contemplated by the parties to be payable by the city as part of Mosser's *Page 6 "supplemental costs." With respect to the city's second argument, it held that R.C. 5751.02(B) allows Mosser to include the tax to be included in the price charged for their services. Further, it noted that the contract specifically allows changes in the cost of work based upon new statutes. {¶ 29} An appellate court reviewing a trial court's granting of summary judgment does so de novo, applying the same standard used by the trial court. Grafton v. Ohio Edison Co. (1996), 77 Ohio St. 3d 102, 105. Civ.R. 56(C) provides: {¶ 30} "* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as considered in this rule. * * *" {¶ 31} The moving party 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 fact as to an essential element of one or more of the nonmoving party's claims.Dresher v. Burt (1996), 75 Ohio St. 3d 280, 292. Once this burden has been satisfied, the non-moving party has the burden, as set forth at Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. {¶ 32} "The construction of written contracts is a question of law.Long Beach Assn., Inc. v. Jones (1998), 82 Ohio St. 3d 574, 576. Under a de novo review, an appellate court may interpret the language of the contract substituting its interpretation *Page 7 for that of the trial court. Children's Med. Ctr. v. Ward (1993),87 Ohio App. 3d 504, 508. If the contract is unambiguous, then there is no question of fact to be determined. Alexander v. Buckeye Pipe LineCo. (1978), 53 Ohio St. 2d 241. `However, if a term cannot be determined from the four corners of a contract, [a] factual determination of intent or reasonableness may be necessary to supply the missing term.'Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio,Inc. (1984), 15 Ohio St. 3d 321, 322, citing Hallet Davis Piano Co. v.Starr Piano Co. (1911), 85 Ohio St. 196, 97 N.E. 377." Seneca Valley,Inc. v. Caldwell, 156 Ohio App. 3d 628, 633-634, 2004-Ohio-1730, ¶ 28. {¶ 33} "Generally, a breach of contract occurs when a party demonstrates the existence of a binding contract or agreement; the nonbreaching party performed its contractual obligations; the other party failed to fulfill its contractual obligations without legal excuse; and the nonbreaching party suffered damages as a result of the breach. Upon demonstration of breach of contract, damages should place the injured party in as good a position as it would have been absent the breach." Garofalo v. Chicago Title Ins. Co. (1995), 104 Ohio App. 3d 95,108 (internal citations omitted). {¶ 34} The city argues that the commercial activity tax is a tax levied as an "annual privilege tax" for the privilege of doing business in Ohio, not a "transactional" tax, pointing to the language of R.C.5751.02(A). Thus, since the tax is not a transactional tax, it is not "similar to" "sales, consumer, and use" taxes as contemplated by the contract to be shifted to the city. The city instead characterizes the tax as an "overhead" cost, *Page 8 pursuant to the contract, expressly to be borne by Mosser. Therefore, the city concludes, Mosser cannot shift the cost of this tax to the city as part of its costs of work. {¶ 35} Mosser points to the change in law clause of the contract, arguing that the passage of R.C. 5751.02 constitutes a change in law which increased the cost of work, and that such increased costs not known at the time of bids were to be borne by the city. In support of its motion for summary judgment, it attached the affidavit of Michael Baker, an attorney and accountant. He reviewed the effect the commercial activity tax would have on Mosser, and concluded that it is a new tax which Mosser previously did not owe. Most relevantly, the tax functions as an excise tax on gross receipts. See R.C. 5751.03(A). Therefore, although R.C. 5751.02(A) states that the tax is not a transactional tax, the gross amount of Mosser's receipts affects the amount of tax payable. Mosser also provided sufficient evidence on summary judgment that the receipts collected from the city for the Bayview project would increase the net amount of tax owed in the amount of $30,423. {¶ 36} The trial court correctly granted Mosser's motion for summary judgment. First, the parties allowed for changes to the cost of work by virtue of changes in law. Second, the parties contemplated shifting Mosser's tax burden to the city in the event of unforeseen changes in the law if the tax was similar to a sales, consumer, or use tax. Since the amount of tax owed is tied to the amount of a business's gross receipts, the tax is similar to a sale or consumer tax and not an overhead tax. Third, R.C. 5751.02(B) does not prohibit Mosser from including the cost of the tax in the price it charges for its services. Fourth, although Mosser billed the city directly for the tax, an act otherwise *Page 9 prohibited by the statute, the billing was the result of the increased cost of work due to the new commercial activity tax. The trial court therefore correctly awarded Mosser damages in the amount of $30,423. Appellant's assignments of error are not well-taken. {¶ 37} The judgment of the Lucas 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 Lucas County. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. Peter M. Handwork, J., William J. Skow, J., Thomas J. Osowik, J., CONCUR. *Page 1

2016-07-06 06:36:13.599629+00

JOURNAL ENTRY AND OPINION Andrew Golden appeals from a judgment of the juvenile court adjudicating him to be delinquent and committing him to the Ohio Department of Youth Services. On appeal, Golden argues the court erred by proceeding to disposition because the magistrate failed to prepare and file findings of fact and conclusions of law after being requested to do so. After careful review, we have concluded the court did not err and therefore, we affirm the judgment of the court. The record before us reveals that on May 18, 1999, in the vicinity of 1312 East 77th Street, Christopher Gibbs physically restrained Yolanda Williams while Golden raped her. Following the incident, Williams went home and reported the incident to her mother and her sister. They immediately summoned the police. Upon their arrival at her home, Williams identified Golden as the individual who raped her. The police then arrested him in his home. At his arraignment in juvenile court, Golden denied the delinquency charge arising from his conduct with Williams. On August 5, 1999, a magistrate conducted a trial and recommended that he be adjudicated delinquent. In a journal entry dated August 23, 1999, the court adopted the magistrate's recommendation, adjudicated Golden delinquent, and ordered his counsel to file proposed findings of fact and conclusions of law. The court then set the matter for disposition on September 27, 1999. The record further reflects that Golden's counsel did not file proposed findings of fact and conclusions of law until September 20, 1999, nor did he file an objection to the magistrate's decision. The matter proceeded to disposition, where the court, after hearing from the probation officer, counsel for both parties, as well as Golden, committed Golden to the Ohio Department of Youth Services for a minimum term of two years and a maximum period not to exceed the age of twenty-one. Golden now appeals and sets forth the following assignment of error for our review: THE TRIAL COURT ERRED BY PROCEEDING TO DISPOSITION WHERE REQUESTS FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE FILED BY BOTH PARTIES HOWEVER THE MAGISTRATE FAILED TO PREPARE AND FILE THE SAME MAKING IT IMPOSSIBLE FOR EITHER PARTY TO FILE OBJECTIONS THERETO OR FOR THE COURT TO FINALLY RULE THEREON. Golden urges the court erred when it proceeded to disposition because the magistrate failed to include findings of fact and conclusions of law in the decision after being requested to do so, contrary to Juv.R. 40(E)(2). The state contends, however, that the court properly proceeded to disposition because Golden's counsel failed to file the proposed findings of fact and conclusions of law within the ten day period ordered by the court and because he failed to file objections to the magistrate's decision. Thus, we are concerned with whether the court properly proceeded to disposition without an amended magistrate's decision. Juv.R. 40(E)(2) states: If any party makes a request for findings of fact and conclusions of law under Civ.R. 52 or if findings and conclusions are otherwise required by law or by the order of reference, the magistrate's decision shall include findings of fact and conclusions of law. If the request under Civ.R. 52 is made after the magistrate's decision is filed, the magistrate shall include the findings of fact and conclusions of law in an amended magistrate's decision. In Moro v. Moro (1990), 68 Ohio App. 3d 630, our court considered a similar case to this where counsel requested findings of fact and conclusions of law but failed to file them as the court directed. We stated: This court has held that where a party requesting findings of fact and conclusions of law has failed to prepare proposed findings and conclusions when directed, that party is not entitled to have findings and conclusions entered by the trial court. * * * Plaintiff may therefore, by his inaction, be held to have waived any objection to the failure of the court to file findings and conclusions. * * * (Emphasis added). The failure of the appellant to submit proposed findings of fact and conclusions of law, as directed by the trial court, constituted a waiver of any objection to the failure of the trial court to file findings of fact and conclusions of law. In this case, the trial court's journal entry of July 1, 1999, states in part: It is ordered that Attorney Patrick Leneghan, counsel for Andrew Golden, file proposed finding of fact and conclusions of law no later that [sic] ten (10) working days following receipt of this order. Golden's counsel, however, did not file his proposed findings of fact and conclusions of law until September 20, 1999. In this case, then, in accordance with Moro, because counsel failed to submit proposed findings of fact and conclusions of law as directed by the trial court, he has waived his right to object to the court's failure to file findings of fact and conclusions of law. The state also contends that Golden has failed to file objections to the magistrate's decision in this case and Golden does not contend this position. In Assad v. Assad (1999), 131 Ohio App. 3d 654, we determined that a husband's failure to object to a magistrate's decision in the domestic relations court waived his right to appeal the matter. Thus, in this case, we have concluded in accordance with Assad, Golden waived his right to appeal the magistrate's decision. Accordingly, this assignment of error is not well taken and is overruled. The judgment of the court is therefore 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 Juvenile Division 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. MICHAEL J. CORRIGAN, J., PATRICIA A. BLACKMON, J., CONCUR _______________________________________ TERRENCE O'DONNELL, PRESIDING JUDGE

2016-07-06 06:36:11.284783+00

Whiteside

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 784 Defendant, Lyman Brownfield, appeals from a judgment of the Franklin County Court of Common Pleas and raises seven assignments of error as follows: "1. The trial court erred in holding that the Plaintiff could pursue at trial a claim against the Defendant under Ohio Revised Code Section 1701.94. "2. The Trial Court erred in holding that the Plaintiff had submitted sufficient evidence upon which his claim under Ohio Revised Code Section 1701.94 could be submitted to the jury and could further form the basis for a judgment against the Defendant. "3. The Trial Court erred in holding that the Defendant owed the Plaintiff a fiduciary duty. "4. The Trial Court's finding that the Defendant violated a fiduciary duty to the Plaintiff was against the manifest weight of the evidence. "5. The Trial Court erred in allowing the jury to consider the issue of damages and, in any event, the jury's award of compensatory damages was against the manifest weight of the evidence. "6. The Trial Court erred in overruling the Defendant's Motion for Direct[ed] Verdict and Judgment Notwithstanding the Verdict. "7. The Trial court erred in holding that there was evidence upon which the jury could award punitive damages and attorneys fees against the Defendant." Plaintiff, Joseph Cousins, has filed a cross-appeal and raised a single assignment of error as follows: "The trial court committed prejudicial error when it reduced the jury's award of $15,420 to $2,000 in connection with Mr. Cousins' claim under R.C. § 1701.94." This action arose from some convoluted corporate dealings. Plaintiff, by his complaint, sought compensatory damages in the amount of $100,000 and punitive damages in the amount of $50,000 with respect to the corporate matters pertaining to two corporations: Mark IV Energy Corporation and Mark VI Pipeline Company. Plaintiff acquired 22.5 common shares of Mark VI Pipeline in June 1984, and loaned money to the Mark IV Energy Corporation at or around the same time, with one of the stockholders pledging 67.5 shares of Mark IV Energy Corporation as security for the loan. Although apparently not a stockholder, defendant became president and sole director of both corporations in 1985. Plaintiff sought copies of the financial report of the corporation but did not *Page 786 receive them until after this action was commenced. The case proceeded to a jury trial, resulting in a verdict for plaintiff as indicated above. The first two assignments of error relate to the application of R.C. 1701.94, which provides in pertinent part as follows: "(A) Every corporation which fails to: "* * * "(4) Mail to any shareholder making written request therefor, within the period provided for in division (C) of section1701.38 of the Revised Code, a copy of the financial statement referred to in that section; "* * * "(6) * * * shall be subject to a forfeiture of one hundred dollars and * * * to a further forfeiture of ten dollars for every day that such failure continues * * *. "(B) If any officer charged with one of the duties specified in division (A) of this section fails to perform such duty after written request by any shareholder, he shall be subject to a forfeiture of one hundred dollars, and to the further forfeiture of ten dollars for every day that such default continues * * *." There is no question but that plaintiff made a request for some type of financial statement at various times, but did not receive any from defendant until after the commencement of this action when the financial information was furnished on February 22, 1990, plaintiff contending that the request should date back to September 18, 1985. Defendant makes two basic contentions as to why he should not be subject to the statutory penalty. First, he contends that plaintiff did not plead or seek recovery under R.C. 1701.94 by his complaint. Second, defendant contends that the evidence does not support a finding of a failure on his part to furnish the requested financial statement, since no financial statement within the contemplation of R.C. 1701.38 and 1701.94 was ever in existence, and that such statement as was in existence could not be furnished because of inability to verify the accuracy of the information therein because of the state of disarray of the corporate records when he became president. As to the pleading issue, paragraphs seven and eight of the complaint specifically refer to the failure of defendant to provide financial statements and other information to plaintiff despite a request by plaintiff for such information. It is true that R.C. 1701.94 is not specifically referred to in the allegations of the complaint or in the demand for judgment. However, Civ.R. 54(C) provides in pertinent part that: *Page 787 "[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled; however, a demand for judgment which seeks a judgment for money shall limit the claimant to the sum claimed in the demand unless he amends his demand not later than seven days before the commencement of the trial." Moreover, on the other hand, as defendant points out, Civ.R. 8(A) provides that: "A pleading which sets forth a claim for relief * * * shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded." Essentially, defendant contends that since there was no express demand for the statutory penalty provided by R.C.1701.94(B), he was not sufficiently put on notice that he needed to defend against such a claim. However, paragraphs seven and eight of the complaint specifically refer to the factual basis for a claim for a penalty pursuant to R.C. 1701.94(B) in that they allege that defendant was requested to supply plaintiff with financial statements and failed to do so until after an action against the corporation was commenced. Defendant has suggested no relief other than the statutory penalty under R.C.1701.94(B) that such allegations could lead to or support. Nor does the complaint allege special damage as a result of the failure to supply statements. In addition, defendant was able to raise the issue prior to trial, and thus was aware of the foundation of the relief sought by plaintiff for failure to supply a financial statement at some unknown time prior to trial. The issue was raised immediately prior to trial by defendant who contended that relief under R.C.1701.94 had not been pled in the complaint. Under the circumstances, defendant has not demonstrated prejudicial error. He was put on notice as to a claim that he had failed to provide financial statements even though requested to do so and had denied such allegation in his answer. The trial court did not abuse its discretion in submitting the issue to the jury. Despite the objection prior to trial, defendant did not object to the introduction of the evidence but again raised the issue at the conclusion of plaintiff's case and, at the conclusion of all the evidence, objecting to the submission of the issue to the jury. In short, defendant has demonstrated no prejudicial error on the part of the trial court in permitting plaintiff to pursue his claim pursuant to R.C. 1701.94(B). The first assignment of error is not well taken. The second issue with respect to financial statements is raised by the second assignment of error and involves defendant's contention that there were no financial statements to be produced. R.C. 1701.38 requires that every *Page 788 corporation prepare a financial statement and lay it before the shareholders at the annual meeting or a meeting held in lieu thereof and shall make a copy available to any shareholder upon written request made within sixty days after notice of the meeting. Defendant's first contention is that since there was no annual meeting called during the period involved, there was no duty to furnish the requested financial statements to plaintiff. However, defendant admitted that he had consultations with McKenzie whom he considered the only stockholder, since he had the irrevocable proxy from all other stockholders except plaintiff. Defendant did not consider plaintiff a real stockholder because McKenzie told defendant that the stock issued to plaintiff was really only a security. In other words, there was evidence from which it could be inferred that there were stockholder meetings in lieu of an annual meeting attended only by McKenzie. Defendant could not avoid the obligation under R.C. 1701.38 by failing to give the stockholder who desired the financial statement notice of the stockholder "meeting" attended only by the single stockholder. The record is unclear as to whether these "meetings" or discussions were in person or by telephone. In any event, however, plaintiff was excluded by design from any such meeting and was not given notice. Defendant is not entitled to avoid the mandate of R.C.1701.38 as to financial statements by failing formally to schedule meetings and give plaintiff notice thereof. Under the unique circumstances of this case, it was not error to submit the issue to the jury, and permit the jury to conclude from the evidence that plaintiff should be excused from strict compliance with R.C. 1701.38 because he was prevented by action and inaction of defendant from making a demand for the financial statements in the precise manner contemplated by R.C. 1701.38. Defendant also contends that there were no financial statements in existence which could be the subject of a request pursuant to R.C. 1701.38. However, defendant's exhibits G, H and I constitute balance sheets and statements of operations for fiscal years ending June 30, 1984 and June 30, 1985, even though they are unaudited. Defendant contends that since the accuracy of the statements could not be verified because of the state of the records, these statements do not constitute financial statements within the contemplation of R.C. 1701.38. First, the statements indicate they are "unaudited" and defendant could have, in submitting them to plaintiff, advised him that the statements were the best available even though their accuracy could not be verified. In other words, compliance with the statutory requirement was not prevented nor excused because of the questionable nature of the financial statements. Submitting them to plaintiff would have alerted him to the accumulated deficit of $51,220 as of June 30, 1984, and $539,391 as of June 30, 1985, as indicated by the unaudited *Page 789 balance sheet. In addition, it would have alerted plaintiff to an alleged advance due Equity Conversion Corporation in the amount of $244,521 as of June 30, 1985. It is the corporate structure that is somewhat confusing. Apparently, very little distinction was made between Mark IV Energy Corporation and Mark VI Pipeline Company. The stock held by plaintiff (twenty-two and one-half shares) was in Mark VI Pipeline Company. The financial statements referred to above were of Mark IV Energy Corporation. Likewise, the corporate minutes of the June 29, 1984 action without a meeting authorizing the borrowing of $15,000 were of the executive committee of Mark IV Energy Corporation. (Plaintiff's exhibit 7.) Plaintiff's exhibit 6 is a copy of an alleged assignment by McKenzie to plaintiff of sixty-seven and one-half shares of the common stock of Mark IV Energy Corporation represented by certificate number twenty-two. However, certificate number twenty-two (plaintiff's exhibit 5) is a certificate for sixty-seven and one-half shares held by McKenzie in Mark VI Pipeline Company. Similarly, the promissory note (plaintiff's exhibit 4), promising to pay Cousins $15,000 and pledging sixty-seven and one-half shares of common stock, is executed by Mark VI Pipeline Company and contains a certificate of McKenzie that he delivered certificate number twenty-two for sixty-seven and one-half shares of Mark VI Pipeline Company to plaintiff. The check by which plaintiff allegedly paid $20,000 was made payable to "Mark IV, Inc." Of this check, $15,000 allegedly represented the loan and the other $5,000 represented the purchase of the twenty-two and one-half shares. Defendant testified to the effect that Mark IV was engaged in the business of oil drilling, operation of oil wells and the sale of fractional interests in oil wells. Mark VI was engaged in the business of building and operating a pipeline for the purpose of collecting gas from Mark IV wells and discharging it into a pipeline owned by Tenneco. In other words, the companies were interrelated and apparently operated as if they were a single company. There is no clear indication that there were separate records maintained for the two corporations or even that separate checking accounts were maintained. A third corporation also became involved, namely Equity Conversion Corporation, of which defendant was also a director and officer. According to defendant, he, his daughter Candace, Robert Ryan, H. Daniels Smith, and James T. Stewart made advancements to the Mark IV and Mark VI corporation apparently through the Equity Conversion Corporation which had assets. He indicated that the total advance was over $100,000 and that, as a result, Equity Conversion acquired some Mark IV and Mark VI assets. In order to complete the transactions involving transfer of assets, it would appear necessary that a stockholders' meeting be held at some point. See R.C. 1701.76. *Page 790 As indicated above, a financial statement was in existence and defendant should have made a copy available to plaintiff upon his request even if a disclaimer as to the accuracy of the statement were necessary. Accordingly, the second assignment of error is not well taken. The cross-assignment of error relates to the same issue as the first two assignments of error. The jury awarded $15,420 as the statutory damages for failure of defendant to provide financial statements to plaintiff. The trial court reduced this award to $2,000. Plaintiff contends that this was prejudicial error. Although R.C. 1701.94(B) provides for the penalty that the jury awarded, R.C. 1701.94(C) provides that: "The court in which an action is brought to enforce any forfeiture under this section may reduce, remit, or suspend such forfeiture on such terms as it deems reasonable when it appears that the failure was excusable or that the imposition of the full forfeiture would be unreasonable or unjust." The trial court found that the imposition of the full forfeiture would be unreasonable or unjust. It is within the discretion of the trial court to reduce the statutory award. Under the circumstances herein, plaintiff has not demonstrated an abuse of discretion on the part of the trial court. Although plaintiff did request monthly accounting in December 1985, most of the earlier correspondence related to the obtaining of either a stock certificate for sixty-seven and one-half shares of Mark VI Pipeline Company or the payment of the $15,000 loaned to the corporation. Only the October 16, 1987 letter specifically refers to financial statements. Nor did any of the letters complain because of a lack of the holding of a stockholders' meeting. There was discretion in the trial court to reduce the penalty, and we find no abuse of discretion. The cross-assignment of error is not well taken. By his third assignment of error, defendant contends that the trial court erred in permitting the jury to award damages to plaintiff individually. Defendant points out that although a director of a corporation occupies a fiduciary relationship to his shareholders, a breach of this duty harms the corporation and the remedy for a shareholder is a derivative action on behalf of the corporation, citing Wing Leasing, Inc. v. M BAviation, Inc. (1988), 44 Ohio App.3d 178, 542 N.E.2d 671. He contends that an individual shareholder does not have an independent action for private damages against a director or officer of the corporation, citing Adair v. Wozniak (1986),23 Ohio St.3d 174, 23 OBR 339, 492 N.E.2d 426, the syllabus of which holds that: "A plaintiff-shareholder does not have an independent cause of action where there is no showing that he has been injured in any capacity other than in common with all other shareholders as a consequence of the wrongful actions of a third party directed towards the corporation." *Page 791 Plaintiff relies upon Crosby v. Beam (1989), 47 Ohio St.3d 105, 548 N.E.2d 217, the syllabus of which holds as follows: "1. Typically, a close corporation is a corporation with a few shareholders and whose corporate shares are not generally traded on a securities market. "2. Where majority or controlling shareholders in a close corporation breach their heightened fiduciary duty to minority shareholders by utilizing their majority control of the corporation to their own advantage, without providing minority shareholders with an equal opportunity to benefit, such breach, absent any legitimate business purpose, is actionable. "3. Claims of breach of fiduciary duty alleged by minority shareholders against shareholders who control a majority of shares in a close corporation, and use their control to deprive minority shareholders of the benefits of their investment, may be brought as individual or direct actions and are not subject to the provisions of Civ.R. 23.1." Defendant is neither a majority stockholder nor a third-party of the type involved in Adair, supra. Rather, he was president and director of the corporations. Nevertheless, defendant's fiduciary duty to plaintiff was no less than that of the defendants in Crosby and Adair, supra, to the plaintiffs therein. The trial court did not err in permitting plaintiff individually to bring an action directly against defendant for injuries plaintiff sustained which are not in common with all other shareholders. According to plaintiff's testimony, all other shareholders in effect abandoned their interest or had "given up their shares" except McKenzie who apparently transferred or agreed to transfer all his shares to plaintiff. Accordingly, the third assignment of error is not well taken. By the fourth assignment of error, defendant contends that the finding that defendant violated a fiduciary duty owed to plaintiff was against the manifest weight of the evidence. Under such a contention, the judgment would be affirmed if the findings are supported by competent, credible evidence. See C.E.Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578. In addition, the evidence referred to above, the remaining assets of the Mark IV and Mark VI corporations, were sold at a foreclosure sale for $40,000 and purchased by Strata Corporation. Defendant contended that thereafter everything he did, including obtaining funds from his daughter and others, was an effort to place the wells and pipeline back in service and to resolve the financial problems of the companies. The jury was not required to accept the testimony of defendant, but, instead, could give to it such weight as it deemed appropriate. In any event, defendant's efforts were not successful and eventually the remaining assets of the corporation were sold to Strata Corporation through an *Page 792 agreement with Strata Corporation to which defendant, Robert Ryan, H. Daniel Smith, defendant's daughter, Mark IV Energy Corporation, Mark VI Pipeline Company, and Equity Conversion Corporation were parties. Defendant executed this agreement not only on behalf of himself, but also on behalf of Equity Conversion Corporation, Mark IV Energy Corporation, and Mark VI Pipeline Company, as president of each. This agreement recites that two oil and gas wells (Plotsky nine and ten) are owned by Ryan, defendant, his daughter, and Stewart, which had been producing wells generating substantial sums of money which had been used to buy equipment to pay debts and operational expenses of Mark IV and Mark VI. The record is unclear as to any relationship between the oil and gas leases of Mark IV and the oil and gas wells Plotsky nine and ten. As part of the purchase agreement, Strata agreed to issue 100,000 common shares to defendant; 50,000 to Ryan; 50,000 to Smith; 40,000 to defendant's daughter; and 10,000 to Stewart. The evidence indicates that the value of these shares was about $.25 per share. In addition, by this agreement, all the assets of Mark IV and Mark VI, including the pipeline was conveyed to Strata. There is no indication that any of these transfers of the property of Mark IV and Mark VI were authorized by stockholder action, but it is affirmatively established that defendant gave plaintiff no notice of the disposition of all of the corporate assets of the two corporations. In short, there was competent, credible evidence supporting a determination by the jury that defendant breached his fiduciary duties and injured plaintiff individually. The fourth assignment of error is not well taken. By the fifth assignment of error, defendant contends that the trial court erred in overruling his motions for a directed verdict and judgment notwithstanding the verdict. For the same reasons stated with respect to the fourth assignment of error, and stated infra with respect to the sixth and seventh assignments of error, the fifth assignment of error is not well taken. By the sixth assignment of error, defendant contends that the trial court erred in permitting the jury to consider the issues of damages and that the jury's award of compensatory damages is against the manifest weight of the evidence. Neither contention is well taken. As indicated above, there was evidence upon which damages could be predicated. The jury's award of compensatory damages is supported by competent, credible evidence. It was undisputed that plaintiff loaned $15,000 to the corporation in 1984. The principal was not paid, the sixty-seven and one-half shares for security were not transferred, and no interest was paid, the note not specifying an interest rate. In his closing argument, plaintiff suggested ten percent interest on $20,000 for seven years. However, the verdict is closer to the amount of ten percent interest on $15,000 for seven years plus the principal, the *Page 793 verdict being $24,487.50 compensatory damages. Such verdict is supported by competent, credible evidence, and, accordingly, the sixth assignment of error is not well taken. By the seventh assignment of error, defendant contends that the trial court erred in permitting the jury to award punitive damages and attorney fees. Ohio law is fairly strict as to the requirements for punitive damages, requiring first proof of actual damages, and, second, proof that the defendant's conduct was so intentional, reckless, wanton or grossly negligent, as to evidence actual malice. The Supreme Court in Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174, defined "actual malice" as to be one of two general categories. The first is characterized by hatred, ill will or a spirit of revenge. The second category is evidenced by extremely reckless behavior revealing a conscious disregard of a great and obvious harm to another. Actual malice requires conscious, deliberate or intentional wrongdoing, in the absence of which punitive damages cannot be awarded. Defendant contends that the evidence does not permit a finding that his conduct amounted to actual malice. Had the jury accepted defendant's testimony in its entirety, no actual malice could be found and no punitive damages could be awarded. However, the jury was not required to accept defendant's testimony, but, instead, could accept such parts of his testimony as it found credible and entitled to weight. The jury also was entitled to make all reasonable inferences from the evidence, including defendant's testimony. No objection was made to the trial court's charge to the jury which included a statement that "[a]ctual malice is a conscious disregard for the rights of other persons that has a great probability of causing substantial harm." There is no reason to believe the jury ignored this charge of the trial court, and plaintiff does not contend that it is erroneous. The evidence indicates that despite repeated requests by plaintiff through his counsel, defendant ignored plaintiff's ownership interest in Mark IV and Mark VI Corporations as a shareholder, and, instead, as the sole director and president (but not a shareholder), made decisions concerning the assets of the corporation and the operation of the business of the corporation without calling a stockholders' meeting, or notifying plaintiff of any such meetings as may have been held, defendant indicating he had consulted on occasion with McKenzie, the other stockholder. The jury award of punitive damages and attorney fees is supported by competent, credible evidence. The seventh assignment of error is not well taken. For the foregoing reasons, all seven of defendant's assignments of error, and plaintiff's cross-assignment of error are overruled, and the judgment of the Franklin County Common Pleas Court is affirmed. Judgment affirmed. BOWMAN and PEGGY BRYANT, JJ., concur. *Page 794

2016-07-06 06:36:12.183572+00

OPINION {¶ 1} A.G. is appealing the finding of the trial court that her son J.R. is a dependent child. She assigns two errors for our consideration: 1. The trial court's finding that [J.R.] was a dependent child was based on insufficient evidence and/or was against the manifest weight of the evidence. 2. The trial court's [sic] abused its discretion in limiting cross examination of an substance abuse expert witness (12/20/07 102-103) (10/24/08 decision page 10) and relying upon *Page 2 unreliable evidence that [A.G.] came to court on 9/12/07 when she was impaired. {¶ 2} J.R.'s case began again on October 1, 2007 when a third complaint was filed in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. The complaint alleged that J.R., then age 3, was a dependent child because of misconduct of his mother, including the striking of a sibling with a belt and problems involving the abuse of prescription medication which had led to criminal convictions. {¶ 3} Temporary custody was initially granted to J.R.'s named father, N.R. A.G. was granted visitation rights but was ordered to provide samples for random drug screenings. Separate counsel was appointed to represent both A.G. and N.R. A guardian ad litem was also appointed. {¶ 4} Franklin County Children Services ("FCCS") filed a motion asking that custody of J.R. be changed because N.R. had told FCCS that he was unable to continue to care for J.R. due to his job responsibilities. The motion was ultimately sustained on October 23, 2007. {¶ 5} The case was continued on a number of occasions due to necessary personnel being in other trials in the juvenile court. A full hearing was held on December 20 and 21, 2007, at which time the magistrate assigned to the case found J.R. to be a dependent child. The court granted temporary custody to FCCS and granted supervised visitation to A.G. and N.R. {¶ 6} Counsel for A.G. filed objections to the magistrate's decision and requested that transcripts of the court proceedings be prepared. Counsel subsequently filed supplemental objections to the magistrate's decision. *Page 3 {¶ 7} On October 24, 2008, the trial judge assigned to the case overruled the objections via a 19-page decision and entry. This appeal followed. {¶ 8} Addressing the first assignment of error, the evidence clearly supported the trial court's factual findings. J.R.'s biological father is in prison. J.R.'s "named" father had no daycare available and took the child to construction sites when temporarily in custody of the child. The trial court justifiably felt the father could not exercise the supervision needed for an active preschooler. {¶ 9} A.G. demonstrated at open court proceedings that she has an on-going problem with prescription medications. The magistrate noted: Most telling, however, was mother's demeanor in the courtroom throughout the trial. Numerous witnesses testified that mother would take her painkillers and would become so lethargic, not focused, and somewhat disoriented to the point that she would be unable to supervise and care for an active 3 year old, as is [J.R.]. During mother's testimony, which spanned several days, the Court observed this exact behavior. During the course of answering questions mother often became increasingly drowsy, her speech became slurred and she was not focused and began having trouble comprehending the questions and answering them. In that state she clearly could not parent an active toddler. During mother's testimony when a five minute break was called mother left and did not reappear when the trial resumed, causing the court to interrupt her testimony with other witnesses so the trial could continue. Mother showed up later and when she finally retook the witness stand her demeanor had significantly changed from earlier in the afternoon. She was not coherent and was unable to be understood clearly due to her slurred speech and inability to focus on the questions. Mother also has housing problems. Mother was evicted from her home on Brown Road for non-payment of rent. She has had the gas shut off since last spring, also. Mother currently stays with her mother as she does not have housing of her own. *Page 4 (Magistrate's findings of fact and conclusions of law, Jan. 17, 1008.) {¶ 10} If A.G. could not show up for court clean and sober, inability to be clean and sober while trying to care for a preschooler was clear. The trial court really had no choice but to attempt to place J.R. in a safe environment. {¶ 11} The first assignment of error is overruled. {¶ 12} The second assignment of error alleges an improper reliance upon evidence of a lack of sobriety of A.G. at other court hearings and an improper curtailing of the cross-examination of an expert who recommended residential substance abuse treatment for A.G. {¶ 13} As indicated in the excerpt from the magistrate's decision set forth above, the magistrate relied upon her personal observations of A.G.'s impairment in court. The magistrate did not need to rely on allegations of impairment at other times. A.G. proved she had a drug problem during the proceedings in open court. {¶ 14} The fact an expert who was asked to help decide how to address A.G.'s drug problem reached the conclusion that A.G. needed serious intervention was really of secondary importance under the circumstances. Cross-examination of an expert could not undo what the magistrate saw with her own eyes. {¶ 15} The second assignment of error has no merit and hence is overruled. {¶ 16} Both assignments of error having been overruled, the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is affirmed. Judgment affirmed. KLATT and CONNOR, JJ., concur. *Page 1

2016-07-06 06:36:11.237492+00

DECISION {¶ 1} This case comes before this court pursuant to appellant's motion to certify the judgment in this case as being in conflict with decisions of the Second Appellate District inState v. Mitchell, Clark App. No. 2005 CA 58, 2006-Ohio-1259;State v. Miller, Montgomery App. No. 21054, 2006-Ohio-1138; andState v. Smith, Greene App. No. 2005-A-87, 2006-Ohio-3653. {¶ 2} The standard for certification of a case to the Supreme Court of Ohio for resolution of a conflict is set out in paragraph one of the syllabus of Whitelock v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594. "Pursuant to Section 3(B)(4), ArticleIV, of the Ohio Constitution and S.Ct.Prac.R. III, there must be an actual conflict between appellate judicial districts on a rule of law before certification of a case to the Supreme Court for review and final determination is proper." Three conditions must be met for certification. First, the certifying court must find that its judgment is in conflict with that of a court of appeals of another district and the conflict must be on the same question. Second, the conflict must be on a rule of law — not facts. Third, the journal entry or opinion of the certifying court must clearly set forth that rule of law which the certifying court contends is in conflict with the judgment on the same question of law by other district courts of appeals.Whitelock, at 596. {¶ 3} In Miller, supra, as in the within appeal, the defendant was sentenced after the decision in Blakely v.Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, was announced. However, the defendant failed to raise a claim of Blakely error in the Montgomery County trial court. Although previously, the Second Appellate District had applied waiver in cases where a defendant had failed to raise Blakely error in the trial court, the court declined to apply the doctrine of waiver in the belief that reversal was mandated by State v. Foster,109 Ohio St.3d 1, 2006-Ohio-856. In dissent, Judge Brogan concluded that the doctrine of waiver had not been applied in Foster because the defendants in that case had been sentenced before Blakely was announced and they could not have anticipated that Blakely would extend the principles announced in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, to redefine what constitutes a "statutory maximum" sentence. {¶ 4} In both Miller and the within appeal, sentencing took place after Blakely was announced. We believe that the rule of law announced by the majority in Miller is that the doctrine of waiver may not be applied in cases that raise claims of sentencing error under Blakely, even when sentencing took place after the Blakely decision was announced. We have reached the opposite conclusion on that rule of law in the within appeal and have applied the prudential doctrine of waiver where the defendant's sentence was imposed after Blakely was announced. Therefore, we find that our judgment in this case is in conflict with the judgment announced by the Second District in Miller and the conflict is on the same rule of law. Accordingly, we believe this case meets the requirements of Whitelock, supra, and we grant the motion to certify the conflict to the Supreme Court of Ohio for resolution. {¶ 5} Appellant proposes that the following question should be certified: Whether a criminal defendant waives a Blakely v. Washington (2004), 542 U.S. 296 issue by failing to raise it in the trial court. {¶ 6} Appellee agrees that a conflict exists, but disagrees on the wording of the question to be certified. Appellee proposes that we certify the same question in this case as was certified in State v. Payne, Franklin App. No. 05AP-517, 2006-Ohio-2552, as being in conflict with the decision of the Second District Court of Appeals in State v. Miller. In Payne, the following question was certified to the Supreme Court of Ohio: Whether the lack of objection in the trial court waives or forfeits the Blakely issue for purposes of appeal when the sentencing occurred after the Blakely decision was announced. {¶ 7} We find that appellant's proposed question of law is overly broad and does not adequately reflect the rule of law upon which we believe the conflict exists. The question certified must include the key fact that the defendant's sentence was imposed after the Blakely decision was announced. Therefore, although we grant appellant's motion to certify the conflict, we redefine and certify the following question to the Supreme Court of Ohio for resolution: Whether the lack of objection in the trial court waives or forfeits any claim of error under Blakely v. Washington (2004),542 U.S. 296, 124 S.Ct. 2531, where the defendant's sentence was imposed after the decision in Blakely was announced. {¶ 8} The motion to certify is granted and the above question is certified to the Supreme Court of Ohio for resolution of the conflict pursuant to Section 3(B)(4), Article IV, Ohio Constitution. Motion to certify conflict granted. Klatt, P.J., and McGrath, J., concur.

2016-07-06 06:36:11.31408+00

JOURNAL ENTRY and OPINION {¶ 1} The court, sitting without a jury, found defendant William Powell guilty of felonious assault after throwing a brick into a tow truck in an act of "road rage." Powell's sole assignment of error is that the court's verdict was against the manifest weight of the evidence. {¶ 2} Powell's claim that the verdict is against the manifest weight of the evidence requires us to review the evidence to determine whether the court lost its way in arriving at its verdict. State v.Thompkins (1997), 78 Ohio St.3d 380, 387. We undertake this review with a recognition that the court was in the better position to assess the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. {¶ 3} The victim was a tow truck operator who testified that a car Powell had been driving cut him off in a construction zone. The two vehicles reached a stop light, with Powell's car ahead of the victim's tow truck. Powell's passenger opened the door and gave the victim a dirty look, then said "that was some pretty stupid shit that you pulled." The victim became irritated because he believed that he had been cut-off in traffic. When the two vehicles reached the next traffic light, Powell pulled his car in front of the tow truck to block it from moving. The passenger door again opened and the passenger exited the vehicle, swearing at the victim. The passenger went to the side of the road and picked up a chunk of asphalt. The victim backed up his tow truck and pulled around Powell's parked car. As he drove away, he saw Powell's car following him, with the headlights flashing. At some point, the victim again stopped at a traffic signal and Powell's passenger approached the tow truck from the passenger side and threw a brick through the passenger side window, causing the window to shatter and striking the victim on his right arm. Before the victim could say anything, Powell approached the passenger side of the tow truck and threw a green bottle into the truck, hitting the victim in the head. The state offered into evidence photographs showing cuts that the victim suffered to his face and arm. {¶ 4} Two police officers who happened to be in the area testified that they witnessed the assault. One of the officers said that he heard the squealing of tires and saw Powell's car coming to a stop in front of the victim's tow truck. Powell's passenger exited the vehicle and threw a brick into the tow truck. The officer began to run to the scene and while doing so, saw Powell run to the tow truck and "as hard as he could" throw a bottle into the truck. When Powell and his passenger saw the police, they fled. {¶ 5} The second police officer likewise saw both Powell and his passenger exit their vehicle and throw things. This second officer related how Powell was running "full steam" towards the tow truck and struck the victim in the head with a bottle. This officer gave the passenger a long chase before realizing he left his keys in the ignition of his patrol vehicle. {¶ 6} Powell did not testify, but his passenger did and said that the victim had cut them off. When they stopped at a traffic light, the passenger said that he opened his door and used his index finger to indicate they were trying to "get from one lane to the other." The victim made a racially disparaging remark about them using a turn signal. When the vehicles began moving again, the victim began chasing them, swerving from lane to lane until he bumped Powell's car from behind. Powell pulled his car over at a bus stop and the victim followed. The victim exited the tow truck and went to the back of the truck as though he were hiding an object behind his back. Not knowing what the victim held behind his back, the passenger picked up a brick for his own protection. When the passenger said that he and Powell did not want any trouble, the victim said that he only wanted them to get out of his way and let him pass. The victim reentered his vehicle and drove away. A short while later, Powell and the passenger saw the victim following them. Powell had been giving the passenger a ride to a rapid transit station, and when they approached the station, the passenger exited the vehicle and began to walk. He saw the victim bearing down on him at full speed, so he threw the brick at the tow truck, hitting it on the passenger side window. The passenger took off running, but said that he had not seen any police officers before he decided to run. The victim followed the passenger in the tow truck, hitting the passenger and causing him to fall to the ground. {¶ 7} The court's verdict was not against the manifest weight of the evidence. The only disinterested witnesses were the police officers, whose testimony fully corroborated that of the victim. Importantly, both officers testified that they saw Powell run to the tow truck and throw the brick as hard as he could. This undercut the defense theory of self-defense because the victim, as the alleged aggressor in Powell's story, appeared to be doing nothing aggressive at the time other than sitting in his truck. At the very least, the court could doubt the veracity of a story that has Powell (as a victim) making an all-out charge to the tow truck in self-defense. Moreover, the passenger's flight from the scene could be viewed as inconsistent with a theory of self-defense in that the victim of a crime would be more likely to remain and assist the police in reporting the offense. {¶ 8} Powell's passenger was no help. He gave no testimony whatsoever about Powell's actions in throwing the bottle, saying that "after I threw the brick, I saw no officer, I saw nobody." {¶ 9} The court, having listened to the evidence was in the best position to weigh the credibility of the witnesses. Obviously, both Powell and the victim believed they had been cut-off by the other. Regardless, however, that fact alone did not justify escalating a harmless road incident into an assault. The court did not lose its way. 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. KENNETH A. ROCCO, P.J., and COLLEEN CONWAY COONEY, J., CONCUR.

2016-07-06 06:36:11.942248+00

OPINION JUDGMENT ENTRY {¶ 1} On December 12, 2002, the Stark County Grand Jury indicted appellant, Robert Doak, on one count of domestic violence in violation of R.C. 2919.25. {¶ 2} On January 17, 2003, appellant pled guilty as charged. A sentencing hearing was scheduled for February 24, 2003. Appellant failed to appear. {¶ 3} Appellant was arrested on a capias and appeared for sentencing on April 7, 2003. By judgment entry filed April 8, 2003, the trial court sentenced appellant to twelve months in prison. {¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶ 5} "The trial court erred in imposing the maximum sentence without complying with the statutory criteria or making the requisite findings." I {¶ 6} Appellant claims the trial court erred in imposing the maximum sentence. We disagree. {¶ 7} R.C. 2953.08 governs an appeal of sentence for felony. Subsection (G)(2) states as follows: {¶ 8} "The appellate court 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 sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: {¶ 9} "(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (E)(4) of section 2929.14, or division (H) of section2929.20 of the Revised Code, whichever, if any, is relevant; {¶ 10} "(b) That the sentence is otherwise contrary to law." {¶ 11} Clear and convincing evidence is that evidence "which will provide 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. {¶ 12} Appellant pled guilty to domestic violence in the fifth degree. Felonies of the fifth degree are punishable by "six, seven, eight, nine, ten, eleven, or twelve months." R.C.2929.14(A)(5). By judgment entry filed April 8, 2003, the trial court sentenced appellant to twelve months in prison. {¶ 13} Appellant argues the trial court failed to comply with R.C. 2929.14(C) and 2929.19(B)(2)(d) in sentencing him to the maximum sentence. The latter statute states the trial court "shall make a finding that gives its reasons for selecting the sentence imposed * * * [i]f the sentence is for one offense and it imposes a prison term for the offense that is the maximum prison term allowed for that offense." R.C. 2929.14(C) governs maximum prison terms and states as follows: {¶ 14} "(C) Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section 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 under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section." {¶ 15} In reading the sentencing hearing transcript in toto, it is very clear that the trial court found appellant posed "the greatest likelihood of committing future crimes." This is evidenced by the trial court's following statements: {¶ 16} "Since there has been a history here of the same type of activity and since you did not appear for a sentencing hearing even though you knew that you were going to be placed on probation, and you just stated why you did not come, the Court does find that the shortest prison term will demean the seriousness of your conduct and also I will find that the shortest prison term will not adequately protect the public from future crimes by you. {¶ 17} "* * * {¶ 18} "The Court specifically makes a finding that the recidivism factor is very great in this case." April 7, 2003 T. at 9-10. {¶ 19} Prior to these statements, the trial court acknowledged that appellant had a criminal history and had failed on probation. Id. at 5. Appellant failed to appear at the first scheduled sentencing hearing because as appellant stated in his own words, "There was a good chance that I wouldn't be on paper too for the simple fact that I'm a three timer. I got three numbers and I have been convicted three times." Id. at 7. {¶ 20} Although the trial court did not recite the specific words of the statute, we nonetheless find the words "recidivism factor is very great in this case" to be equivalent to "the greatest likelihood of committing future crimes." We further find the record as a whole is clear as to the trial court's reasons for such findings. {¶ 21} The sole assignment of error is denied. {¶ 22} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed. Farmer, J. and Wise, J. concur. Hoffman, P.J. dissents.

2016-07-06 06:36:12.052798+00

OPINION Defendant, Steven L. Yeaton, appeals from a judgment and decree of divorce terminating his marriage to Plaintiff, Bridgett A. Yeaton. The parties are the parents of a minor child, Lindsey, who was born on March 11, 1992. The court designated Bridgett A. Yeaton the child's residential parent and legal custodian. Stephen1 filed a timely notice of appeal from the judgment and decree. He presents two assignments of error. Both concern the custody order. Bridgett has not filed a brief. FIRST ASSIGNMENT OF ERROR THE COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY AWARDING THE CUSTODY OF THE MINOR CHILD TO THE PLAINTIFF-APPELLEE AND THAT SUCH AWARD WAS ARBITRARY, CAPRICIOUS AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A hearing on the complaint for divorce was held on September 1, 2000. At the conclusion of the hearing the court delivered an oral statement from the bench of its findings and conclusions on the issues presented. Concerning custody of the minor child, the court stated: "First of all, the Court finds from evidence the parties are not capable of cooperating or communicating at the level that is necessary to make joint decisions concerning the welfare of the child, so there is no reason to pursue the idea of shared parenting. The Court will designate the mother as the residential parent and legal custodian. The Court finds this to be in the child's best interest. There are a number of things that are distressing about the situation. And sir, you're behavior as a father in this case, I don't doubt you love your child, but there is something wrong here when the mother of your child is providing most of the child support and you can't see to it she has a car she can drive. That's a problem. I am also here to tell you parenting is not something you drop into and drop out of. THE DEFENDANT: She's the one — THE COURT: No, sir, this is my turn. If you do decide to drop out of the child's life for a couple months, then all visitation is suspended until you come back to Court, and we decide what the visitation is going to be. I'm going to go order the Standard Order of Visitation, nothing other than the Standard Order, unless the two of you agree to it in writing. None of this casual dropping in on things, making phone calls. If you can't communicate civilly, you're not going to do it that way." (T. 92-93). A court that grants a decree of divorce is charged by R.C. 3109.04(A) to "allocate the parental rights and responsibilities for the care of the minor children of the marriage." Per division (B)(1) of that section, in making its allocation "the court shall take into account that which would be in the best interest of the children." When determining the child or children's best interest, the court is mandated by division (F)(1) of R.C. 3109.04 to "consider all relevant factors, including, but not limited to" those set out in paragraphs (a) through (j) therein. The determinations required by R.C. 3109.04 are committed to the sound discretion of the trial court. They will not be reversed on appeal absent a showing that the court failed to consider one of the factors relevant to a child's best interest or that the court abused its discretion when it applied the facts to the law involved. "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemorev. Blakemore (1983), 5 Ohio St.3d 217, 219. The assignment of error presented implies an abuse of discretion. It also states that the trial court's judgment is against the manifest weight of the evidence, which is a basis for reversal. However, judgments which are supported by some competent, credible evidence will not be reversed on that ground. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Steven first argues that the trial court erred when it ignored the factors set out in R.C. 3109.04(F)1)(a)-(j) to determine Lindsey's bestinterest and instead focused on his failure to provide Bridgett a car to drive. With respect to the matter of the car, it appears that Bridgett was unable to obtain tags for a car that was titled in Steven's name, which was her only means of self-transportation after they separated, either because Steven had failed to provide her a necessary power of attorney or because of an E-check problem. Bridgett was then dependent on her sister, with whom she lives, for transportation. There is no evidence that this had a negative effect on their child, Lindsey. The court's reference to Steven's dropping in and out of Lindsey's life appears to concern his admitted inclination to not see her for a time should Bridgett be awarded custody. How long that might be is unclear, but Steven said it might be several months, while he re-evaluated his life. The matter of child support the court mentioned appears to concern an arrearage in temporary support that Steven owes. The other matters that the statutory factors might implicate are necessarily gleaned from the record. Bridgett shares a one bedroom apartment with her sister, bother-in-law, and their child. Bridgett sleeps in the living room. She testified that Lindsey has her own room. Until the parties separated, they lived for most of Lindsey's life with Steven's parents. His mother, Mary Yeaton, testified that she and her husband provided food for the whole family and Lindsey's clothing. Bridgett and Steven were to pay $100 per month rent, but rarely did. Bridgett is employed. Bridgett works from 5:00 a.m. until 1:30 p.m. Her sister watches and cares for Lindsey during that time. Steven is also employed. His mother would watch and care for Lindsey while Steven is at work. Steven was off work and received workers compensation for back problems while he was required to pay temporary child support. He failed to make some payments, though he didn't explain why. An arrearage of approximately $1,920 resulted. Bridgett testified that she has been Lindsey's principal care giver during her life. Steven didn't dispute that, but testified concerning his activities with Lindsey, which are mostly recreational. His mother, Mary Yeaton, testified concerning the care she's provided. All three testified that they've formed a strong bond with Lindsey. None testified that the other has been a negative influence. Steven argues on appeal that the trial court ignored the statutory factors regarding determination of Lindsey's best interest and instead arbitrarily chose the "lesser of two evils." We do not agree. There is evidence that Bridgett has been Lindsey's principal care-giver during her life. That evidence is relevant to "[t]he child's interaction and interrelationship with (her) parents," a factor the court is required to consider. R.C. 3109.04(F)(1)(c). The court is also required to consider "[w]hether either parent has failed to make all child support payments," R.C. 3109.04(E)(1)(g), and there is evidence that Steven was in arrears in his support obligation. This is competent, credible evidence which supports the trial court's custody order. Therefore, we find that it is not against the manifest weight of the evidence. The claim that the court acted arbitrarily and capriciously must be resolved on the "abuse of discretion" standard. The trial court's chastisement of Steven concerning his failure to provide a car for Bridgett's use may have little relevance to the issue of Lindsey's best interest. However, we cannot find that the court's finding in that regard or the residential parent order resulting from it demonstrates an attitude on the court's part which is unreasonable, arbitrary, or unconscionable. Blakemore, supra. The first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR THE COURT ERRED TO THE SUBSTANTIAL PREJUDICE TO THE DEFENDANT-APPELLANT BY NOT GIVING ADEQUATE WEIGHT TO HIS ROLE AS CARETAKER OF THE CHILDREN IN THE AWARD OF THE TAX EXEMPTION TO PLAINTIFF-APPELLEE. Steven'S mother, Mary Yeaton, claimed Lindsey as a dependent on her 1999 income tax return. Her testimony indicates that this was done in good faith, after consulting tax authorities and providing documentation, in view of the living accommodations she provided for Lindsey in 1999. Bridgett also claimed Lindsey as a dependent on her 1999 income tax return. The IRS has disallowed the claim, apparently in view of Mary Yeaton's claim. Bridgett now owes a tax deficiency of $3,180. The court made the following orders concerning the dependency claim for Lindsey: "Next the issue is tax exemptions. The mother shall have tax exemptions for the minor child starting with the year 1999. The father can apply to have to share the tax exemption or to have it awarded to him after the child support arrearages are paid in full. The father shall reimburse the mother the $3,180 tax liability which she incurred in 1999 as a result of being denied the ability to claim the child as a tax exemption for that year." (T. 94). When Steven complained that the 1999 dependency claim was made not by him but by his parents, the court stated: "Well, he can take that up with his parents." (T. 96). Steven argues that the court abused its discretion when it ordered him to pay Bridgett $3,180 on the tax deficiency. He points out that the deficiency was not the result of any doing on his part, and is a dispute between Bridgett and his parents. Therefore, the matter of the deficiency was outside the jurisdiction of the domestic relations court that was invoked by the divorce action before it. We do not agree. The tax deficiency accrued during the marriage. It is a liability unrelated to any asset which the court awarded in a division or distribution of property pursuant to R.C. 3105.171. However, after it does that, the court is authorized to award reasonable spousal support "by decreeing a sum of money, payable either in gross or by installments, from future income or otherwise, as the court deems equitable." R.C. 3105.18(B). In so doing the court is authorized to consider the relative assets and liabilities of the parties and "any other factor the court expressly finds to be relevant and equitable."Id. The order that Steven pay Bridgett $3,180 on the tax deficiency she owes is a spousal support order. It appears that the court believed it equitable to impose that responsibility on Steven because his parents benefited from the dependency claim that created the deficiency. Steven's connection with that benefit may be remote, but Bridgett has none at all. We find no abuse of discretion. The second assignment of error is overruled. Conclusion Having overruled all the assignments of error, we will affirm the judgment of the trial court. BROGAN, J. and FAIN, J., concur. 1 For purposes of clarity and economy, the parties are identified by their first names.

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DECISION AND JUDGMENT ENTRY This matter is before the court on appeal from the Lucas County Court of Common Pleas wherein appellant, Steven Forgette, was found guilty of aggravated murder and felonious assault. A trial commenced on January 11, 1999. Terry Stegall testified that in the early morning hours of February 7, 1998, he was asleep in his upstairs apartment located on Austin Street in Toledo. At approximately 2:30 a.m. he was awakened by the sound of loud music from a car outside. Stegall testified he also heard two loud male voices. Although he could not hear what was being said, he testified he heard someone outside utter an obscenity. Seconds later, he heard the sound of gunshots. Stegall testified he looked out of his window and saw a body lying in the street while a car drove off. Toledo police officer Brenda Sarahman testified that in the early morning hours of February 7, 1998, she was dispatched to the corner of Walnut and Austin Streets to investigate a possible shooting. When she arrived she found a man lying in the street excessively bleeding from a gunshot to the head. The man was later identified as Bryan Hastings. Lori Sanchez testified that on February 6, 1998, she went to Johnny's bar where she saw appellant. When the bar closed at approximately 2:30 a.m., Sanchez asked appellant for a ride to an "after hours" party. Sanchez testified that appellant seemed mad about something but he nevertheless agreed to give her a ride. Once they were in the car, appellant proceeded toward Austin and Walnut Streets. Sanchez testified that appellant parked his car at the corner on Walnut Street. At that point, another car pulled up behind them. Sanchez testified that appellant reached down and pulled out a gun. He got out of the car and walked toward the car stopped behind them. Sanchez testified she was unable to identify the person in the other car. Sanchez could see that appellant was arguing with someone. She testified she heard the other person say "what are you going to do Steve, shoot me?" Sanchez then heard gunshots. Appellant, holding the gun, returned to the car. Sanchez testified that appellant then told her that he had to shoot "him" because "he" was going to tell on me [appellant]. Sanchez testified that appellant did not identify the person he "had" to shoot. The coroner testified that Hastings died as a result of multiple gunshot wounds. On October 13, 1998, appellant was indicted on one count of aggravated murder, a violation of 2903.01(A), and one count of felonious assault, a violation of R.C. 2903.11(A)(2). Each charge carried a firearm specification. On January 14, 1999, a jury found appellant guilty on both counts including the specifications. He was sentenced to a life term of imprisonment for the aggravated murder and an eight year term of imprisonment for the felonious assault charge. The two sentences were ordered served concurrently in that the offenses related to a single act. A three year prison term for the firearm specification was ordered served prior to and consecutively with the life sentence. Appellant now appeals setting forth the following assignments of error: "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION BY ALLOWING HEARSAY EVIDENCE AND STATEMENTS ELICITED BY THE STATE WHILE DENYING THE SAME OR SIMILAR TYPE OF HEARSAY BY THE DEFENSE. "II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT ALLOWING CROSS EXAMINATION OF A WITNESS' MOTIVES FOR TESTIFYING." In his first assignment of error, appellant contends the court erred in admitting hearsay testimony. Specifically, appellant's counsel, on cross-examination, asked Sanchez about her interview with the police. Appellant's counsel asked Sanchez if her attorney was present. When Sanchez stated he was, appellant's counsel asked "did he say anything in there to you?" At this point, the prosecutor objected and his objection was sustained on the basis of attorney client privilege. Appellant later objected to the state's attempt to introduce certain letters into evidence. Specifically, appellant objected to the portion of the letters wherein appellant quoted his attorney. The court overruled appellant's objection finding that the statements in the letters were not hearsay pursuant to Evid.R. 801(D)(2). Finally, appellant objected to the court's admission of Sanchez's testimony wherein she testified she heard the victim state "what are you going to do Steve, shoot me?" The trial court allowed this statement to be admitted as a hearsay exception pursuant to Evid.R. 803(1). Questions involving the admissibility of evidence are left to the sound discretion of the trial court, and the trial court's ruling on evidentiary issues will not be reversed on appeal absent an abuse of discretion and a showing that the accused has suffered material prejudice. State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus; State v. Long (1978), 53 Ohio St.2d 91, 98. An abuse of discretion is more than mere error of law; it "implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 219. We have thoroughly reviewed the record in this case and find that the court did not abuse its discretion in admitting the testimony at issue. Appellant's first assignment of error is found not well-taken. In his second assignment of error, appellant contends he was denied a fair opportunity to cross-examine Lori Sanchez. Specifically, the prosecution on direct raised three issues which could have affected Sanchez's credibility as a witness. First, the prosecutor questioned Sanchez's prior participation in a plea bargain in another related case. Second, the prosecutor questioned Sanchez as to why she initially told the police she was not with appellant when Hastings was murdered. Third, Sanchez was questioned as to why she threatened to kill appellant in a letter. Our review of the record shows that appellant was given wide latitude in his cross-examination of Sanchez, particularly on the issues discussed above. Accordingly, appellant's second assignment of error is found not well-taken. On consideration whereof, the court finds that appellant was not prejudiced or prevented from having a fair trial, and the judgment of the Lucas County Court of Common Pleas is affirmed. It is ordered that appellant pay the court costs of this appeal. JUDGMENT AFFIRMED. MELVIN L. RESNICK, J., JUDGE, JAMES R. SHERCK, J., JUDGE, RICHARD W. KNEPPER, P.J., JUDGE, CONCUR.

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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: Appellant, Barbara Shuman ("Shuman"), appeals from a judgment of the Lorain County Court of Common Pleas that granted permanent custody of her child, Frederick Songer, Jr. ("Frederick"), to Lorain County Children Services ("LCCS"). We affirm. Shuman is the mother of four older children, Christopher, Amanda, Ashley, and Dylan Shuman. Those four children are the offspring of her husband, Nathaniel Shuman ("Nathaniel"). Through three separate orders, spanning a period of two years, both parents' rights to those four children were involuntarily terminated. The primary reasons for the termination of parental rights were physical abuse of the children by Nathaniel, leading to a criminal conviction, and Shuman's failure to address the abuse issue in order to protect her children from it. In essence, Shuman demonstrated an inability to put the needs of her children ahead of her own needs and those of her husband. Shuman's relationship with Nathaniel eventually ended after the couple had lost all four children. Shuman began a relationship with another man, Frederick Songer ("Songer"), and on January 7, 2000, gave birth to her fifth child, Frederick Songer, Jr. ("Frederick"). LCCS took emergency custody of Frederick just days after his birth. LCCS had received information that this child's father, Songer, had been adjudicated as a sex offender while he was a juvenile. The victims of his crimes were male and female children. Based on its extensive prior involvement with Shuman, LCCS was concerned about her ability to protect Frederick from such a risk. Frederick was adjudicated dependent and placed in the temporary custody of LCCS on March 17, 2000. Because Frederick had a family history of developmental delays and exhibited stiffness in his legs and right arm, he was referred to the Lorain County Board of Mental Retardation and Developmental Disabilities for early intervention. LCCS encouraged the natural parents to participate in his physical therapy sessions.1 Weekly visitations, ranging from two to four hours in length, were scheduled to coincide with physical therapy so Shuman and Songer would have the opportunity to educate themselves about Frederick's needed therapy. Neither natural parent participated actively in physical therapy, however, nor did they interact much with Frederick during their visits. Of the fifty-five to fifty-seven visits that the parents attended, they ended more than half of them at least thirty minutes early, each time offering what LCCS considered to be an inadequate excuse. The parents ended several of the visits two to three hours early. LCCS moved for permanent custody of Frederick on December 6, 2000. The trial court held hearings on the motion during April 2001. On May 1, 2001, the trial court granted the motion for permanent custody. Shuman appeals, assigning two errors. First Assignment of Error THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND IN VIOLATION OF O.R.C. 2151.414, THE FOURTEENTH AND NINTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 1 OF THE OHIO CONSTITUTION, WHEN IT TERMINATED THE PARENTAL RIGHTS OF APPELLANT AND GRANTED PERMANENT CUSTODY OF THE MINOR [CHILD] TO LORAIN COUNTY CHILDREN SERVICES, WHERE THE EVIDENCE FAILED TO SATISFY THE REQUISITE STANDARD OF PROOF. Shuman argues that the trial court's decision to terminate her parental rights was not supported by the evidence. When evaluating whether a judgment is against the manifest weight of the evidence in a juvenile court, the standard of review is the same as that in the criminal context. In re Ozmun (Apr. 14, 1999), Summit App. No. 18983, unreported, at 3. In determining whether a criminal conviction is against the manifest weight of the evidence: "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 [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. 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, quoting State v.Martin (1983), 20 Ohio App.3d 172, 175. Moreover, "[e]very reasonable presumption must be made in favor of the judgment and the findings of facts [of the trial court]." Karches v. Cincinnati (1988),38 Ohio St.3d 12, 19. Furthermore, "if the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court's verdict and judgment." Id. Termination of parental rights is an alternative of last resort, but is sanctioned when necessary for the welfare of a child. In re Wise (1994),96 Ohio App.3d 619, 624. Before a juvenile court can terminate parental rights and award to a proper moving agency permanent custody of a child, who is neither abandoned nor orphaned, it must find by clear and convincing evidence that (1) 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 that (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); see, also, In re William S. (1996), 75 Ohio St.3d 95,99. Clear and convincing evidence is that which will produce in the trier of fact "`a firm belief or conviction as to the facts sought to be established.'" In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, quoting Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. Whether Child Can be Placed with Either Parent When determining whether the child cannot be placed with either parent within a reasonable time or should not be placed with either parent, the juvenile court must find by clear and convincing evidence that at least one of the enumerated factors in R.C. 2151.414(E) exists as to each of the child's parents. In re William S., 75 Ohio St.3d at 101. Those factors include: (1) Following the placement of the child outside the child's home * * *, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. * * * [;] * * * (11) The parent has had parental rights involuntarily terminated pursuant to this section or section 2151.353 [2151.35.3] or 2151.415 [2151.41.5] of the Revised Code with respect to a sibling of the child. * * * (16) Any other factor the court considers relevant. R.C. 2151.414(E). The juvenile court should consider all relevant evidence when making such a determination. R.C. 2151.414(E). If the court finds that any of the conditions enumerated in R.C. 2151.414(E) exist, the statute mandates that the court enter a finding that the child cannot or should not be placed with either parent within a reasonable time. Inre Higby (1992), 81 Ohio App.3d 466, 469. Shuman argues that the evidence demonstrated that she substantially complied with the requirements of her case plan. Therefore, she asserts, LCCS failed to establish that "the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home." R.C. 2151.414(E)(1). Although we disagree with Shuman's assessment of the evidence, it was not necessary for LCCS to establish the existence of multiple factors. To satisfy the requirements of R.C. 2151.414(E), LCCS was required to establish only one of the enumerated factors. Therefore, even if Shuman were to convince us that the trial court erred in its finding under R.C.2151.414(E)(1), she presents no argument to refute the trial court's finding of the factor enumerated in R.C. 2151.414(E)(11). In March 1996, January 1998, and March 1998, the Lorain County Court of Common Pleas involuntarily terminated Shuman's parental rights to her four older children, Christopher, Amanda, Ashley, and Dylan. The two oldest children, the couple's only children at the time, were removed from the home because their father had physically abused them, culminating in a criminal conviction. Each of the younger children was removed after birth to prevent any potential for abuse. Despite the fact that Nathaniel Shuman was convicted of criminal charges stemming from his physical abuse of his two oldest children, Shuman continued to reside with him and attempt to bring more children into the home, yet she failed to acknowledge the abuse issue or take steps to protect her children from it. Over a period of four years, Shuman failed to remedy the conditions causing those children to be placed outside the home. There was ample evidence before the trial court to demonstrate that Shuman had failed to break her pattern of living with an abuser and refusing to address the problem to protect her children. Although Shuman had ended her relationship with Nathaniel Shuman, her relationship with Songer exhibited a pattern that was all too familiar to LCCS. Shuman was again living with a known abuser of children. As she had in her prior relationship, Shuman refused to acknowledge the fact that her partner had committed prior acts of abuse and that those prior acts posed a threat to her family. She often denied that the incidents had even taken place, or, if she did accept that the incidents had occurred, she downplayed their significance by stressing that they were in the past. Admitting the problem was only the first step toward protecting her children from it. Shuman then needed to attend individual counseling, relationship counseling, and parenting classes to address the problem, and, if necessary to protect her child, end her relationship with Songer. After fifteen months, Shuman had failed to accomplish even the first step in the process. Given that the trial court found that the factor set forth in R.C.2151.414(E)(11) had been established, the court was required to find that Frederick could not or should not be placed with Shuman within a reasonable time. Therefore, Shuman has failed to demonstrate any error by the trial court on this prong of the statutory test. Best Interest of the Child When determining whether a grant of permanent custody is in the child's best interest, the juvenile court must: [C]onsider all relevant factors, including, but not limited to, the following: (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 * * * through the child's guardian ad litem[;] (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. For the purposes of this division, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home. R.C. 2151.414(D)(1)-(5). Shuman's only interaction with Frederick was through scheduled weekly visitations because Frederick was removed from the home shortly after his birth. Because of Frederick's young age and the need to establish a bond, LCCS encouraged additional visits and repeatedly attempted to establish a second day of visitation each week, with hopes of eventually allowing overnight visitation. Shuman refused to commit to a second day of visitation, however. Overnight visits were never offered because the parents never advanced to that point. Although Shuman did attend most of the scheduled weekly visits, she ended more than half of them at least thirty minutes early and ended several of the visits two to three hours early. She participated only minimally in the physical therapy sessions and often arrived late. According to the testimony of Shuman's casework supervisor, Shuman offered frequent "excuses" for ending visits early, most of which LCCS did not consider to be acceptable reasons. Shuman's excuses included doctor's appointments, which the agency felt could have been scheduled on another day or time; bad weather, when the couple lived only five minutes away from the agency; and Songer's need to go to work. Even if Songer did in fact need to work at that time, the agency saw no need for Shuman to also end those visits early. LCCS workers testified that there was no apparent bond between Shuman and Frederick. He showed no reaction when he would see her each week. Shuman did not interact much with him and exhibited little affection toward him. LCCS workers did observe bonding between Frederick and the foster mother, however. He has been with his current foster mother since he was one week old. The foster mother had educated herself about Frederick's developmental needs, including physical therapy, speech therapy, and occupational therapy. Frederick had lived with his foster mother for his entire short life but for a few days after his birth that he spent with his parents. By the time that the permanent custody hearing began, he had been in the temporary custody of LCCS for more than twelve months. The twelve-month period was particularly significant here because it represented almost the entire life of Frederick. As Frederick was only fifteen months old at the time the hearing began, his wishes were expressed through the guardian ad litem. The guardian ad litem indicated that the parents had demonstrated an inability to provide for Frederick's basic needs, stressing his particular developmental and medical needs. The guardian ad litem recommended that permanent custody be awarded to LCCS and that adoption by the current foster mother be pursued. Because Frederick has ongoing medical and developmental needs, numerous witnesses testified that he has a particular need for a secure placement. Shuman failed to demonstrate an ability to provide such an environment. She did not participate actively in the physical therapy and demonstrated an inability to commit to two to four hour weekly visits. Her caseworker believed that she would not be able to commit to all of Frederick's needed physical therapy, speech therapy, and occupational therapy. The foster mother, on the other hand, has been meeting all of those needs and has expressed an interest in adopting Frederick. One of the factors in R.C. 2151.414(E)(7) to (11) is relevant here. Specifically, R.C. 2151.414(E)(11) requires the trial court to consider the fact that "[t]he parent has had parental rights involuntarily terminated pursuant to this section or section 2151.353 [2151.35.3] or 2151.415 [2151.41.5] of the Revised Code with respect to a sibling of the child." As explained above, Shuman had her parental rights to four older children involuntarily terminated primarily due to physical abuse by her husband and her failure to protect the children from that abuse. Although Shuman ended her relationship with her husband, her current relationship with Songer is riddled with the same problems as her former relationship with her husband: the partner is a known abuser of children and Shuman refuses to admit that fact and take steps to protect her child from the potential risk of abuse. The trial court had before it clear and convincing evidence that permanent custody to LCCS was in the best interest of this child. Shuman has failed to demonstrate that the trial court erred by finding that Frederick could not or should not be placed with her within a reasonable time and that an award of permanent custody to LCCS was in his best interest. The first assignment of error is overruled. Second Assignment of Error THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE REPORT OF CLINICAL COUNSELOR PAT [CHMURA] AS TO PRIVILEGED COMMUNICATION MADE TO HER BY APPELLANT IN VIOLATION OF THE PSYCHOLOGIST PRIVILEGE AS SET FORTH IN OHIO REVISED CODE SECTION 4732.19. Shuman argues that the trial court erred by admitting the report of Pat Chmura, who examined her pursuant to the court's order that Shuman undergo a psychological evaluation as part of her case plan, because Chmura's evaluation was based on a privileged communication between psychologist and patient. Shuman maintains that the trial court had no authority to allow Chmura's testimony because it was within the psychologist/patient privilege as set forth in R.C. 4732.19 and as construed by the Ohio Supreme Court in In re Wieland (2000),89 Ohio St.3d 535, which held that, even though a psychologist's treatment was performed as part of a court-ordered case plan, the psychologist's testimony remained privileged because there was no statutory exception to "allow for the in-court disclosure of confidential information on the basis that the treatment or service received by the patient or client was involuntary in nature, ordered as part of a journalized case plan provided in R.C. 2151.412[.]" Id. at 537-538, syllabus. Although Shuman relies on incorrect statutory law, because Chmura is a licensed professional clinical counselor, not a licensed psychologist, the reasoning in In re Wieland applies with equal force to clinical counselors. See id. at syllabus. After the Supreme Court decided In re Wieland, however, R.C.2317.02(G)(1) was amended to add a specific exception, in which the testimonial privilege pertaining to communications to professional clinical counselors will not apply: The testimony is sought in a civil action and concerns court-ordered treatment or services received by a patient as part of a case plan journalized under section 2151.412 [2151.41.2] of the Revised Code or the court-ordered treatment or services are necessary or relevant to dependency, neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151. of the Revised Code. R.C. 2317.02(G)(1)(g). The record indicates that Shuman underwent an assessment by Chmura as part of her case plan that had been journalized by the court and incorporated by reference in its March 17, 2000 order that adjudicated Frederick dependent and granted temporary custody to LCCS. Therefore, Shuman had no right to assert a statutory privilege because Chmura's report fell within the exception set forth in R.C. 2317.02(G)(1)(g). In her reply brief, Shuman attempts to add a constitutional argument to her original statutory argument. The reply brief, however, is "merely an opportunity to reply to the brief of the appellee." Sheppard v. Mack (1980), 68 Ohio App.2d 95, 97, fn. 1; Loc.R 7(c) of the Ninth District Court of Appeals. Shuman cannot present new arguments that were not raised in her original brief. See Sheppard, 68 Ohio App.2d at 97, fn. 1; Loc.R. 7(c). Consequently, her constitutional arguments will not be addressed. Because Shuman has failed to demonstrate any error by the trial court in admitting the report of Pat Chmura, her second assignment of error is overruled. III. Shuman's assignments of error are overruled. 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. SLABY, J., CARR, J. CONCUR. 1 Although Frederick also received regular speech therapy and occupational therapy, it is unclear from the record whether his parents were invited to attend those sessions.

2016-07-06 06:36:11.696411+00

Skeel

This appeal comes to this court on questions of law from a judgment for the plaintiffs entered upon the verdict of a jury in the Court of Common Pleas of Cuyahoga County. The plaintiffs' action was for the recovery of money which they alleged they had placed in the night depository or vault of the Superior and East 123rd Street branch office of the defendant and when called for was not returned because it could not be found. The plaintiffs, partners engaged as retail meat dealers, by virtue of a contract with defendant had been accustomed to using the night depository facilities of defendant to make deposits of money and checks after banking hours, the deposits being made usually on Saturday nights and on nights just preceding holidays. *Page 348 The bank had installed a night depository vault for the purpose of receiving night deposits. There was a small metal door placed in the outer wall of the banking rooms. This door was fitted with a locking device which could be opened only by the use of a key but which could be locked shut simply by completely closing the door. On the inside of this opening there was a metal chute about three feet long which led into a safe within the banking rooms. The top of this chute, located just inside the outer metal door above described, had a swinging door placed horizontally across the top, constructed very much like the receiving door of a package or parcel mail box used by the United States postoffice department. The manner in which the night depositor would make his deposit was by first opening the outside door by the use of a key furnished by the bank. He would then pull down the swinging inner door at the top of the chute, which would bring up a shelf completely closing the end of the chute. He would then put his deposit on such shelf and release the inner door which would swing up, closing the chute and dropping the shelf down so that when the door was closed the deposit would fall through the chute and into the vault or safe. Entrance to the safe or vault was controlled by a combination lock which could be used only after it was unlocked by a key. The duty of unlocking this safe or vault at a specified time was delegated to two employees — one who had the key and the other who was given the combination. Both of these employees were required to be present at all times when the vault door was opened. The right to use the night depository facilities was controlled by contract. The plaintiffs entered into a written contract with *Page 349 the defendant on January 16, 1946, whereby for a consideration of 25 cents for each "sack placed in the night chute" with a minimum charge of one dollar per month the plaintiffs were given the right to make use of the night deposit facilities of defendant at the East 123rd and Superior Avenue branch. The contract assigned to plaintiffs key No. 24 to the outside door of the night chute and "sack No. 29 and two keys there to" in which to place deposits before putting them in the night chute. The contract, in part, provided: "The undersigned hereby agrees to use the night depository facilities only for overnight keeping of sacks, which sacks shall contain nothing other than currency or commercial paper, or both, and further agrees that a person authorized by the undersigned will call at the bank to receive and receipt for said sack(s) on the first banking day following each placing by or on behalf of the undersigned of any sack in the night chute. Bank shall have no duty or obligation whatsoever to see that the contents or any part thereof of any sack is tendered for deposit for credit to any account with bank, nor to ascertain the contents or disposition of contents of any sack receipted for by any authorized person. "The undersigned expressly understands and agrees that each use or attempted use by the undersigned of the night depository facilities shall be at the undersigned's sole risk at all times and further expressly understands and agrees that the relationship of debtor and creditor between bank and undersigned shall not arise out of any use or attempted use of the night depository facilities, each separate use by the undersigned of the night depository facilities being deemed to have been completed each time any sack hereinabove listed found in the night receptacle by bank is receipted for by any authorized person." *Page 350 The contract also provided who should call at the bank the next business day after the night deposit had been made and take possession of the deposit bag or sack. David T. Kolt and Alfred Rafal, in addition to Aaron A. Kolt, were so designated. The sacks provided under the contract were provided with a padlock, the depositor holding the only key. The depositor would place his deposit in the sack, lock it, and then, with the use of the key to the night chute, deposit it as above described. When the bank opened the next business day the designated employees would open the night deposit vault in the presence of each other and one would take out the sacks and the other would make a record of the number of each bag or sack thus found in the night vault and the bag or sack would then be taken to the cashier's cage of the one holding the key to the night vault, and there to await being called for by the several depositors. The plaintiffs' petition alleges that on the night of March 15, 1947, plaintiffs, with Alfred Rafal, placed a deposit of money and checks, totalling $1,772, in sack No. 29, together with Alfred Rafal's deposit of a smaller amount, and together they went to the bank, unlocked the outer door, opened the chute, placed the sack, which was then wrapped in a paper bag, on the shelf of the inner door, shut the inner door so that the sack would fall into the vault below, and then locked the outer door and departed. On March 17, 1947, at about 10 a. m., Rafal called at the bank to get the sack but it was not to be found, nor was there any record of sack No. 29 being found with the other night deposits. Upon trial, the court charged the jury that the only question for its consideration was whether the plaintiffs had established by a preponderance of the evidence that they had placed the deposit in the night deposit vault. *Page 351 The trial court's charge was, in part, as follows: "If after finding that the plaintiffs have proven to you by a preponderance of the evidence that this depository bag actually went into the mouth of that chute and thereby entered the possession of the bank; if then, following that proof by the plaintiffs the defendant has failed to meet the presumption which arises, by showing you that it exercised ordinary care in the care and custody of the bag, then the plaintiffs are entitled to recover in this controversy, if the plaintiffs have proven to you by a preponderance of the evidence that this depository bag went into the mouth of that chute and into the possession of the bank. But that presumption having arisen against the bank, if the bank has met that presumption by showing you that it did exercise ordinary care in the manner of its care and custody of that bag, then again your verdict should be for the defendant. "Those are the issues for you to determine, and those are the important issues. "There was a contract made by and between the Kolt brothers and the Cleveland Trust Company, which is in evidence and which will be with you in your jury room. I will say to you now, as a matter of law, that no provision of any kind in that contract can change or alter in the least these rules of law which I have heretofore given you regarding the law in this case." At the conclusion of the taking of the evidence the defendant requested the court to give the following instructions, which request was presented in writing as provided by Section 11420-1, General Code: "I say to you, as a matter of law, that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that the defendant received in its possession night depository sack No. 29 on the date *Page 352 in question. If you do not find by a preponderance of the evidence that the defendant did receive night depository bag No. 29 on that date in question then your verdict must be for the defendant." The court refused the request to which exceptions were taken. The defendant claims the following errors: "1. The trial court erred in overruling the motion for a directed verdict at the close of plaintiff's evidence and renewed at the close of all the evidence. "2. The trial court erred in overruling defendant's motion for judgment notwithstanding the verdict. "3. The trial court erred in overruling defendant's motion for a new trial." If, in fact, the night deposit bag or sack of the plaintiffs was placed in the night deposit chute in the proper manner, the relationship between the bank and plaintiffs, from such time as a night deposit was so placed in the chute until it was subsequently returned to the depositor as provided by the terms of the contract, was that of bailor and bailee. This is so because by the terms of the contract the bank furnished the plaintiffs with a key with which to operate the night deposit door in taking advantage of the night deposit facilities. The bank, therefore, would be held to have accepted a deposit made in accordance with the terms of the contract, which acceptance created the bailor-bailee relationship. Such a relationship of bailor and bailee would continue until the bailor or his duly constituted representative called for it, as provided by the contract. As soon as the bailor or his representative received it, the relationship of bailor and bailee would be at an end, and if the contents of the bag were then deposited, the relationship of debtor and creditor would be created. It is defendant's contention that by the provisions of Section 710-110, General Code, the bank is empowered *Page 353 to contract with respect to the use of its night deposit vaults upon such terms and conditions as it may prescribe. And that by the contract (in part above quoted) deposits made thereunder were to be at the depositor's risk. Section 710-110, General Code, provides as follows: "A bank may receive on deposit for safe-keeping in its vaults and safes, or in the vaults and safes of another bank in this state, securities, stocks, bonds, coins, plate, jewelry, books, papers, documents and other valuable papers and property, upon such terms and conditions as it may prescribe." This statute seems broad enough to include the right of a bank to provide by contract upon what terms it will make available facilities for making deposits in night deposit vaults to be used during the time when the bank is not open. But, if by strict interpretation it should be construed that its provisions would not extend to night depositories, this Section of the General Code of Ohio at least establishes a legislative policy to permit banks to enter into contracts limiting common-law liability with respect to securities deposited with them for safe keeping in their vaults. Such a service is one rendered in the interest of customers who would otherwise be compelled to face the risk that attends the possession of large sums of money in the night season in the regular conduct of their businesses. Of necessity no one representing the bank is present when a night deposit is made. Whether such deposit has actually been made must be established in every event by the evidence of the depositor. It would, therefore, be a very natural position of the bank to take that until the sack is actually accounted for by the bank's clerks in the ordinary procedure of accounting for night deposit sacks such deposits should be at the *Page 354 risk of the depositor. Such a contract is not void as against public policy. That such a limitation by contract is not against public policy is indicated in the case of Bernstein v. NorthwesternNational Bank of Philadelphia, 157 Pa. Sup., 73,41 A.2d 440. The first paragraph of the headnotes provides: "A bank in furnishing a night depository service may enter upon a contract relation with depositors on mutually acceptable terms defining bank's liability within legal limits in event of loss." In the Bernstein case no such contract had been entered into so that the ordinary rules of bailment were used in fixing the liability of the bank, but on page 441 the court said: "The purpose of the device was to furnish the facilities for making a general deposit. The bank might have, but it did not, enter upon a contract relation with plaintiffs on mutually acceptable terms (9 C. J. S., Banks and Banking, Section 267;Burrill v. Dollar Savings Bank, 92 Pa. 134) defining its liability within legal limits, in the event of loss. In the absence of such limiting agreement the law will imply from the making of the deposit in this case that the relation ultimately intended was that of debtor and creditor * * *." Where the circumstances are such that the possession of another's property is attended with unusual risks, the parties dealing at arm's length as free agents may lawfully make any reasonable provision therefor as the circumstances justify. Contracts relieving the promissor from liability even for his negligence have been upheld on the broad grounds of freedom of contract guaranteed by the federal and state Constitutions. For example, as between landlord and tenant, it has been held that the *Page 355 relationship is not a matter of public interest but relates exclusively to the private affairs of the parties concerned and that the two parties stand upon equal terms. 175 A. L. R., 87, Section 46; Perry v. Payne, 217 Pa. 252, 66 A. 553, 11 L.R.A. (N.S.), 1173, 10 Ann. Cas., 589; Kirschenbaum v. GeneralOutdoor Adv. Co., 258 N.Y. 489, 180 N.E. 245, 84 A. L. R., 645. In the last-cited case the court, on page 495, said: "Stipulations between a landlord and tenant, determining which shall bear a loss arising from nonrepair or misrepair of the tenement, and which shall be immune, are not matters of public concern. Moreover, the two stand upon equal terms; neither the one nor the other is under any form of compulsion to make the stipulation; either may equally well accept or refuse entry into the relationship of landlord and tenant. We think it clear that public policy does not condemn the immunity clause voluntarily agreed upon by the parties." The right of the bank to immunity from whatever cause except its wilful wrongdoing in furnishing night deposit services under the terms of an exculpatory agreement is supported, in theory at least, by the almost universal rule that a common carrier (railroad) may by contract relieve itself from liability even for its negligence or that of its servants or employees in the construction and use of private sidings and spur tracks. 175 A.L.R., 100, Section 51. In the case of Mann v. Pere Marquette Rd. Co., 135 Mich. 210,218, 97 N.W. 721, which was concerned with a contract exempting the carrier from loss resulting from the negligent operation of its locomotive over a railroad side track, the court said: "This case does not fall within those where contracts to exempt from liability are held void on the ground of public policy. It is a fundamental rule of law that what one may refuse to do entirely he may *Page 356 agree to do upon such terms as he pleases. In contracting to put in those side tracks, the defendant was not acting in the capacity of a common carrier. It was under no legal obligation to put them in. It might have refused. * * * There was no occasion to contract against properly equipped and properly managed engines, for fire caused by such would not create any liability. The only purpose for such was to avoid the consequences of its own negligence, and to avoid lawsuits growing out of alleged negligent acts. It had a perfect right, both in reason and authority, to contract against such liability." The case law of bailment supports the same principles of law. Again quoting from 175 A. L. R., 110, Section 55, the author says: "The modern development of the law of bailments and its extension to many new and varied transactions as a result of the increasing complexity of today's commercial relationships is reflected accurately in the position the courts take in regard to the exculpatory clauses found so frequently in bailment contracts. While the right of the ordinary bailee to make a contract exempting him from liability due to his negligence or the negligence of his employees is recognized with practical unanimity, a strong tendency to hold such contracts void as violative of public policy is noticeable in the decisions of the courts which deal with contracts of bailment for hire entered into by the bailee in the course of a general dealing with the public; and this tendency becomes more pronounced the more recent the decisions, although there is still respectable authority for the view that such provision may be valid against all but gross negligence. Bailees of the second type, as this term is understood here, are persons who make it their principal business to *Page 357 act as bailees and who deal with the public on a uniform and not an individual basis as evidenced by the fact that their contracts, as a rule, are printed on identification tokens or are posted in their place of business. The chief representatives of this type of bailees are owners of parcel checkrooms, owners of parking places, garagemen, and warehousemen." Upon the above authority, the case of Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658, is to be distinguished from the instant case. The Constantine case involved one engaging exclusively in the business of parking automobiles for hire. It is not to be presumed that the Supreme Court by its holding in the Constantine case on the question of limiting liability intended to exclude, on the ground of public policy, all contracts which limit the common-law liability of an ordinary bailee for hire. This must be true especially in cases involving safe deposit vaults because of the legislative policy indicated by Section 710-110, General Code. It must be likewise noted that the Supreme Court in theConstantine case, supra, or in the case of Hotels Statler Co.,Inc., v. Safier, 103 Ohio St. 638, 134 N.E. 460, 22 A. L. R., 1190, did not overrule or modify its holding in the case ofMansfield Mutual Ins. Co. v. Cleveland, C., C. St. L. Rd.Co., 74 Ohio St. 30, 77 N.E. 269. In the last-cited case the right of a railroad company to stipulate as a provision of a lease that it would not be liable for any loss caused to the lessee by fire accidentally or negligently communicated to the property by the railroad company lessor through the acts of its agents or servants was considered. The property of the railroad company lessor about which the lease dealt was adjoining the right of way of the defendant's railroad so that fire was an ever-present danger. The court said: *Page 358 "1. A stipulation in a lease made by the railroad company that the lessee is to exonerate it from all liability for damages by fire to any property or structure on the demised premises, which in the operation of the railroad may be accidentally or negligently communicated to it, is not void as against public policy. "2. Such lessee and his insurers cannot recover from the railroad company the amount of the loss by fire to a building and its contents owned by the lessee and located partly on such premises, when in the operation of the railroad the fire was communicated to that part of the building on the demised premises." The right of a bailee to relieve himself from liability for his own negligence in the execution of the bailment contract, considered in the note in 175 A. L. R., 110, especially where the bailee is a so-called "professional" bailee, has to do with his liability in the management and control of the goods where there is no issue as to the receipt of the goods. This is likewise true with regard to the cases therein considered, where the courts placed a strict construction upon the contract limiting the liability of the bailee (unless the provisions of the contract are so clear and unambiguous as to leave no doubt as to the meaning of the exculpatory clause), that the words of limitation were not intended to include relief from the bailee's negligence. But the instant case is not concerned with property admittedly in the possession of the bailee. Here the primary consideration is as to whether the "deposit sack" actually came into the possession of the defendant at all. The method devised by the defendant for safeguarding deposit sacks properly placed in the night deposit chute exemplified a high degree of care and protection for the property of depositors, and the manner in which these precautions were carried out on the first business day after the claimed use of the *Page 359 night deposit facilities by the plaintiffs is not refuted by the plaintiffs except by their claim that the deposit sack was put in the chute. The plaintiffs' action is upon a contract the terms of which placed the risk upon them until the deposit was actually receipted for. As indicated, the manner in which night deposits must of necessity be made should permit the defendant to protect itself within reasonable limits. We conclude, therefore, that the court's charge, entirely eliminating the contract from the consideration of the jury, was in error, as were the rulings of the court on the motions for judgment. Having come to the foregoing conclusion, it is unnecessary to consider the error claimed for the refusal to charge as requested before argument other than to say that the charge as requested was a correct statement of law upon an issue presented by the pleadings and evidence in the charge and should have been given. For the foregoing reasons, therefore, the judgment of the Common Pleas Court is reversed, and final judgment entered for the defendant. Judgment reversed. HURD, J., concurs.

2016-07-06 06:36:13.574614+00

OPINION This appeal is taken from a final judgment of the Portage County Court of Common Pleas, wherein appellant, Attorney Daniel S. White ("Attorney White"), was removed from representation of appellant, Michael A. Shore Co., L.P.A. The following facts are relevant to this appeal. Attorney White and the law firm by which he is employed, Michael A. Shore Co., L.P.A., represented appellees, C. Todd Williams and Mary E. Williams, in Portage County Common Pleas Court in a "wet basement" case against out-of-state defendants. Appellees received a default judgment in that case which was subsequently vacated. On appeal, this court affirmed that judgment. The appellees filed a legal malpractice action against Attorney White and Michael A. Shore, Co., L.P.A. On June 10, 2001, appellees filed a motion to remove Attorney White as counsel for himself and the law firm. The trial court granted appellee's motion to remove Attorney White from representing the firm but denied it as to Attorney White's representation of himself. It is from this order appellants appeal, submitting a single assignment of error: "The trial court's decision granting the plaintiff-appellees' motion to remove Attorney Daniel S. White from the representation of defendant-appellant Michael A. Shore Co., L.P.A. constitutes reversible error." Disciplinary Rule 5-102(A) of the Ohio Code of Professional Responsibility is applicable where counsel realizes he may have to testify on behalf of his client. DR 5-102(B) concerns situations where counsel learns he will be called by the opposing party. These rules state: "(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B) (1) through (4). "(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client." The exceptions enumerated in DR 5-101 provide: "(A)(1) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by the lawyer's financial, business, property, or personal interests. "* * * "(B) A lawyer shall not accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that the lawyer or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and the lawyer or a lawyer in his firm may testify: "(1) If the testimony will relate solely to an uncontested matter. "(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. "(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or the firm to the client. "(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or the firm as counsel in the particular case." The Supreme Court of Ohio has addressed the issue of disqualification of counsel.1 It held that DR 5-102 does not automatically render a lawyer incompetent as a witness.2 Instead, it noted ethical problems may arise when an attorney seeks to testify in a proceeding in which he represents a litigant and set forth a procedure for determining whether a lawyer can serve as both an advocate and a witness: "We therefore conclude that when an attorney representing a litigant in a pending case requests permission or is called to testify in that case, the court shall first determine the admissibility of the attorney's testimony without reference to DR 5-102(A). If the court finds that the testimony is admissible, then that attorney, opposing counsel, or the court sua sponte, may make a motion requesting the attorney to withdraw voluntarily or be disqualified by the court from further representation in the case. The court must then consider whether any of the exceptions to DR 5-102 are applicable and, thus, whether the attorney may testify and continue to provide representation. In making these determinations, the court is not deciding whether a Disciplinary Rule will be violated, but rather preventing a potential violation of the Code of Professional Responsibility."3 Prior precedent from this court addressing disqualification of counsel required that the trial court hold an evidentiary hearing prior to removing counsel.4 The trial court must then follow the two-step procedure set forth by the Supreme Court of Ohio in making its final determination; namely, whether the attorney's testimony would be admissible at trial; and whether one of the exceptions set forth in DR 5-101 and 5-102 would be applicable.5 Thus, this court has found a trial court to have erred in not providing an evidentiary hearing on the motion to disqualify its counsel.6 In the instant case, the trial court did not state its reason for the disqualification, but we shall assume from the lawyers' motions that the disqualification was based on DR 5-102. Appellees moved to depose Attorney White regarding his prior representation prior to the filing of the motion to remove. The record does not demonstrate that the trial court was able to review the proposed testimony to determine whether it was admissible at trial or whether any of the exceptions to DR 5-102 were applicable. Therefore, there is no evidence in the record of the substance of Attorney White's proposed testimony from which the trial court could adequately determine that disqualification was necessary. A trial court cannot properly justify the disqualification of counsel once that counsel is called to testify by the opposing party without a judicial inquiry into the issues of law and fact underlying counsel's proposed testimony. Therefore, there is an absence of a sufficient evidentiary basis upon which a proper disqualification of counsel can be granted. The judgment of the trial court is reversed, and the cause is remanded to the trial court to reinstate appellant's counsel unless the trial court determines that counsel's testimony would be prejudicial to his client or his former client. FORD, J., NADER, J., concur. 1 Mentor Lagoons, Inc. v. Rubin (1987), 31 Ohio St. 3d 256, 260. 2 Id. 3 Id. 4 (Citations omitted.) Mentor Lagoons, Inc. v. Teague (1991)71 Ohio App. 3d 719, 722. 5 Id. 6 Mentor Lagoons, Inc. v. Webb (Sept. 26, 1986), Lake App. No. 11-110, unreported, 1986 WL 10593, at *2.

2022-09-09 23:54:30.505083+00

Denied

2016-07-06 06:36:11.872885+00

Per Curiam

This is an appeal from a judgment of the Municipal Court of Dayton, for the plaintiff against the defendant in the sum of $1,548, being the sum of $1,390 with interest to date of judgment. The action was for work and labor performed and materials furnished under a written contract based upon a letter from plaintiff to defendant which was accepted by the defendant. In the contract, plaintiff proposed to do the following work upon the premises at 224-226 South Main Street, Dayton, Ohio, for the sum of $1,390: "1. We will sweep clean the roof and remove all buckles and bad places, then we will apply two 15-pound felts hot mopped to south section complete with composition flashing on adjoining walls. "2. Over the rest of the building we will apply a coating of hot asphalt and will fix any necessary breaks in felt by patching to insure against leaking. "3. Also we will clean all of the dirt out of the gutters and repair them with plastic and membrane so that they will not leak. "4. We will repair cracks in concrete on penthouse walls and chimneys and tile coping with cement and sand, to make watertight and not allow any further deterioration to the building. "5. Assuring you that all of the above work will be done to your satisfaction. "6. We will do the above work for the sum of one thousand, three hundred, ninety dollars ($1,390)." (Numbering supplied.) The defendant, by amended answer, generally denied the averments of the petition and specifically denied that the roofing work was properly performed by the plaintiff. Defendant also counterclaimed for damages claimed to have resulted from the improper performance of the work to be done under the contract, praying for $495, by reason of leakage in the roof and *Page 504 in the building, and for $790, the necessary cost of repair and replacing the roofing work done by plaintiff. Plaintiff answered to the counterclaim, admitting its agreement to perform the work as set out in the contract and averring that it did all the work agreed satisfactorily, and admitting that it made numerous trips back to the premises at 224-226 South Main Street, "but the defendant was arbitrary, unreasonable, and capricious in its demands and impossible to satisfy." The trial judge rendered a written decision, and thereafter, upon application of defendant, separately stated his findings of fact and conclusions of law. In the findings of fact the court found that the work to be performed under the contract had been completed in a workmanlike manner and in accordance with exhibit 1, which was the contract; "that defendant failed to establish any damage to the building resulting from plaintiff's alleged improper workmanship and defendant's counterclaim wholly fails"; that plaintiff did all things and more to satisfy defendant and made numerous trips to defendant's premises; and that defendant was not acting in good faith in his complaints but "was arbitrary, and unreasonable in his demands for satisfaction." The court concluded that plaintiff was entitled to judgment in the full amount claimed, with interest, and that the defendant was not entitled to recover. Appellant assigns three errors: 1. The trial court erred in its separate findings of fact in that said findings of fact are not supported by the evidence in the case. 2. The judgment for the plaintiff on plaintiff's petition and against defendant's counterclaim is contrary to law. 3. The judgment for plaintiff on plaintiff's petition and against defendant's counter-claim is against the manifest weight of the evidence. We consider the findings of fact in the light of the decision of the trial judge. Andrews, Jr., v. Board of Liquor Control,164 Ohio St. 275, 131 N.E.2d 390. It is basic that, where the plaintiff is suing upon its contract and alleging performance which is denied, it is incumbent upon the plaintiff to prove performance, at least substantially, *Page 505 of the contract according to its terms. List Son Co. v. Chase,80 Ohio St. 42, 88 N.E. 120; J. A. Wigmore Co. v. Chapman,113 Ohio St. 682, 150 N.E. 752; Metropolitan Life Ins. Co. v.Hillard, 2 Ohio App. 223. The formal finding of fact, as it relates to the issue drawn on plaintiff's cause of action, is general to the effect that the work was done in a workmanlike manner and in accordance with the contract. The decision does not make any specific finding of full performance of the specifications of the contract, and apparently tested the evidence as though the burden was upon the defendant upon this issue. The facts, as stated in the second paragraph of the findings, are not supported by the evidence. The statement that there is no evidence that any of the work was not done is incorrect, as is the finding that "the witness could not state where the water came from * * *." The finding is unsupported that Mr. Daum stated emphatically that the things set out in the contract had been completed. His testimony was that he did not know the terms of the contract, nor could be say that the roof did not leak. The finding that there is no evidence of a material fact is quite different from adjudicating that the proof fails as to that fact. The finding seems to be largely based upon negative proof, whereas the obligation was upon the plaintiff to affirmatively prove performance of each of the five specific items which it agreed to perform by the proposal in its letter. It was also obligated to establish, by the requisite degree of proof, that performance was done to the satisfaction of the defendant, who was required to appraise the work as a reasonable man would do. Clewell v. Toledo Metal Sign Advertising Co., 22 C. C. (N.S.), 552, 34 C. D., 40; Ashley v. Henahan, 56 Ohio St. 559,570, 47 N.E. 573; Wicker v. Messinger, 22 C. C., 712, 12 C. D., 425. This proof was peculiarly within the knowledge of plaintiff and its employees on the job. Because of the uncertainty and inaccuracy of the findings of fact, we can not safely support this judgment. The first assignment of error is well made. We can not, upon the state of the record, pass intelligently upon the second and third assignments. The judgment will be reversed and the cause remanded for *Page 506 a new trial upon the issues presented by the petition and answer thereto, and the counterclaim and answer thereto. Judgment reversed. HORNBECK, P. J., WISEMAN and CRAWFORD, JJ., concur.

2016-07-06 06:36:13.457199+00

McMonagle

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 355 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 356 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 357 JOURNAL ENTRY AND OPINION Plaintiffs-appellants, Mattie L. Cunningham, individually and as mother and next-of-kin of her three minor children, and Tanya Monroe, appeal the judgment of the Cuyahoga County Court of Common Pleas, rendered after a jury verdict, in favor of defendants-appellees, Saint Alexis Hospital Medical Center, 4M Emergency Systems, Inc., Rajendra K. Mehta, M.D. and Moudacer Mounajjed, D.O. The many errors that occurred during trial of this matter mandate that we reverse and remand for a new trial. On January 9, 1997, appellants filed suit against appellees, alleging that appellees' negligent failure to diagnose and treat Cunningham's bacterial infection caused an acute systemic response that ultimately resulted in the amputation of her legs, right arm and left hand. Trial commenced on November 8, 1999 and continued through November 23, 1999. After two days of deliberation, the jury returned a verdict in favor of appellees. Appellants filed a motion for a new trial, which the trial court denied after a hearing. Appellants timely appealed, raising six assignments of error.1 Appellants' first assignment of error states: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR DURING JURY SELECTION. In their first assignment of error, appellants assert that the trial court committed prejudicial error during jury selection when it: 1) failed to adequately hear and evaluate appellants' objection that a peremptory challenge exercised by appellee St. Alexis Hospital Medical Center was racially motivated; 2) denied appellants' motion to strike for cause a prospective juror who was a medical doctor in her third year of residency; 3) granted six peremptory challenges to appellees but limited appellants to three peremptory challenges; and 4) allowed appellees to confer among themselves regarding the potential exercise of defense *Page 359 peremptory challenges. The record supports appellants' argument with respect to their objection to the peremptory strike by St. Alexis Hospital of Juror Number 7. Appellee St. Alexis Hospital exercised its first peremptory challenge by striking Juror Number 3, an African American, from the panel. St. Alexis Hospital exercised its second peremptory challenge to Juror Number 7, another African American juror. Appellant Mattie Cunningham is African American. Because Juror Number 7 was the second African American juror to be challenged peremptorily by St. Alexis Hospital, counsel for appellants objected to appellee's use of its challenge to exclude another African American. The record reflects the following colloquy: MR. SANDEL: On the record, we object to the peremptory challenge of this juror. We believe that she is being challenged because she is black and for no other reason. We object on the basis of Watson v. Cleveland Clinic, 8th District Court of Appeals. We ask the defendants to state their reason for challenging this juror. THE COURT: Mr. Bonezzi. MR. BONEZZI: Your Honor, the reasons that I have used the peremptory on this juror has (sic) nothing to do with race, absolutely nothing to do with race. Some of the answers that she has given as it relates to damages and other information, not in the least of which has anything to do with her color, but it is her thinking process especially with the damage issue that has led me to go ahead and excuse her. I don't have the same belief for juror number 2 who is — THE COURT: I don't want to talk about anybody else. Motion will be denied. Appellants' argument regarding appellee's peremptory challenge to remove Juror Number 7 from the venire is not that appellee's exercise of its peremptory challenge constituted racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Rather, appellants' argument is that the trial court committed reversible error because it did not conduct the proper constitutional analysis in determining that appellee St. Alexis Hospital was not racially motivated in excluding an African American from the jury through the use of a peremptory challenge. We agree. In Hicks v. Westinghouse Materials Co. (1997), 78 Ohio St. 3d 95,98-99, the Supreme Court of Ohio set forth the relevant analysis for determining whether a peremptory challenge is racially motivated. The Ohio Supreme Court stated: *Page 360 The United States Supreme Court set forth in Batson [v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69,106 S. Ct. 1712] the test to be used in determining whether a peremptory strike is racially motivated. First, a party opposing a peremptory challenge must demonstrate a prima-facie case of racial discrimination in the use of the strike. Id. at 96, 106 S.Ct. at 1723,90 L.Ed.2d at 87. To establish a prima-facie case, a litigant must show he or she is a member of a cognizable racial group and that the peremptory challenge will remove a member of the litigant's race from the venire. The peremptory-challenge opponent is entitled to rely on the fact that the strike is an inherently discriminating device, permitting `those to discriminate who are of a mind to discriminate.' State v. Hernandez (1992), 63 Ohio St. 3d 577, 582, certiorari denied (1992), 506 U.S. 898,113 S. Ct. 279, 121 L. Ed. 2d 206. The litigant must then show an inference or inferences of racial discrimination by the striking party. The trial court should consider all relevant circumstances in determining whether a prima-facie case exists, including statements by counsel exercising the peremptory challenge, counsel's questions during voir dire, and whether a pattern of strikes against minority venire members is present. See Batson at 97-97, 106 S.Ct. at 1723,90 L.Ed.2d at 88. Assuming a prima-facie case exists, the striking party must then articulate a race-neutral explanation related to the particular case to be tried. Id. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 88. A simple affirmation of general good faith will not suffice. However, the explanation need not rise to the level justifying exercise of a challenge for cause. Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. The critical issue is whether discriminatory intent is inherent in counsel's explanation for use of the strike; intent is present if the explanation is merely a pretext for exclusion on the basis of race. Hernandez v. New York (1991), 500 U.S. 352, 363, 111 S. Ct. 1859, 1868,114 L. Ed. 2d 395, 408. Last, the court must determine whether the party opposing the peremptory strike has proved purposeful discrimination. Purkett v. Elem (1995), 514 U.S. 765,767, 115 S. Ct. 1769, 1770, 131 L. Ed. 2d 834, 839. The critical question, which the trial judge must resolve, is whether counsel's race-neutral explanation should be believed. Hernandez v. New York,500 U.S. at 365, 111 S.Ct. at 1869, 114 L.Ed.2d at 409. It is at this stage that the persuasiveness, and credibility, of the justification offered by the striking party becomes relevant. Id. at 768, 115 S.Ct. at 1771,131 L.Ed.2d at 839. The critical question, which the trial judge must resolve, is whether counsel's race-neutral explanation should be believed. Hernandez v. New York, 500 U.S. at 365, 111 S.Ct. at 1869,114 L.Ed.2d at 409. * * * Trial judges must exercise considerable care in reviewing a claim of racial discrimination in jury selection. A judge should make clear, on the *Page 361 record, that he or she understands and has applied the precise Batson test when racial discrimination has been alleged in opposition to a peremptory challenge. (Emphasis added.) In Hicks, supra at 99, 102, the Ohio Supreme Court also set forth the standard for appellate review of such claims: * * * The duty of the trial court is to decide whether granting the strike will contaminate jury selection through unconstitutional means. Therefore, in analyzing the trial court's actions, we must determine whether the trial judge's analysis of the contested peremptory strike was sufficient to preserve a constitutionally permissible jury-selection process. * * * Review of a Batson claim largely hinges on issues of credibility. Accordingly, we ordinarily defer to the findings of the trial court. See Batson at 98, 106 S.Ct. At 1724, 90 L.Ed.2d at 89, fn. 21. Whether a party intended to racially discriminate in challenging potential jurors is a question of fact, and in the absence of clear error, we will not reverse the trial court's determination. Hernandez v. New York,500 U.S. at 369, 111 S.Ct. at 1871, 114 L.Ed.2d at 412; State v. Hernandez, 63 Ohio St.3d at 583, 589 N.E.2d at 1314. In this case, it is apparent from the record that the trial judge did not properly apply the Batson test to appellants' allegation of racial discrimination in opposition to appellee's peremptory challenge. Initially, we note that appellee's argument that appellants failed to establish a prima facie case of racial discrimination in appellee's use of the strike is without merit. In Hicks, for example, the Ohio Supreme Court found that although appellant's prima facie case was tenuous, the relevant circumstances surrounding the lower court proceeding were largely devoid of any meaningful events that might have supported an inference of discriminatory purpose, and there was no pattern of strikes against African American jurors, nonetheless, the trial judge directed appellees' counsel to explain their reasons for the peremptory strike, thereby accepting appellant's prima-facie argument. Id. at 100. Similarly, here, by asking defense counsel to state its reasons for its peremptory challenge, the trial court accepted appellants' prima-facie argument. Accordingly, pursuant to Batson and Hicks, defense counsel was required to articulate a race-neutral explanation for the strike. Although counsel began to explain appellee's reason for its use of the peremptory strike, however, the trial court interrupted counsel before he had concluded his explanation, declaring that appellants' motion would be denied. The trial court's action is troubling for several reasons. First, the trial court's *Page 362 abrupt interruption of defense counsel and immediate ruling upon appellants' objection before counsel had set forth all of his reasons for striking Juror Number 7 does not evince the considerable care in reviewing a claim of racial discrimination in jury selection that the Supreme Court of Ohio has stated is necessary. Hicks, supra at 99. Moreover, without more, counsel's explanation that appellee was striking Juror Number 7 because of her answers * * * as it relates to damages and other information is clearly insufficient to establish a race-neutral explanation for striking her from the jury. The only question regarding damages asked of Juror Number 7 was whether she could make an award based upon the evidence without regard to any cap or limitation to the damages. Juror Number 7's response — I feel the same way, there shouldn't be a cap — was a correct statement of the law: there is no cap on damages. Moreover, St. Alexis Hospital did not attempt to strike other white jurors who had answered the question regarding caps the same way as Juror Number 7. Therefore, the trial court's decision to allow St. Alexis Hospital to exclude Juror Number 7 solely on the basis of her answer with respect to damages is highly suspect. Presumably, St. Alexis Hospital had other non-race based reasons for excluding Juror Number 7; reasons that counsel would have explained if given the opportunity. Indeed, appellee contends that the trial court, like defense counsel, observed and weighed the inflection in Juror Number 7's voice when she answered questions and her general demeanor and, accordingly, no doubt understood defense counsel's non-race based rationale for excluding her from the jury. There is no indication of that in the record, however. If, in fact, defense counsel's reason for striking Juror Number 7 was based upon her inflection and demeanor, counsel should have so stated for the record. More importantly, the trial court should have given defense counsel an opportunity to set forth all of his reasons for striking Juror Number 7 on the record and, then, carefully and thoughtfully evaluated those reasons on the record before ruling on appellants' objection. By failing to do so, the trial court failed to properly apply the four-part Batson test to appellants' challenge. We acknowledge that it is unlikely that appellee was attempting to strike Juror Number 7 on the basis of her race. The record reflects that St. Alexis Hospital used only two of its three peremptory challenges to excuse prospective jurors. Moreover, three of the eight jurors on the final jury were black. The trial court's abbreviated consideration of appellants' challenge to the contested peremptory strike, however, was grossly insufficient to indicate that the judge under[stood] and applied the precise Batson test to adequately preserve [appellants' right to] a constitutionally permissible jury-selection process. Hicks, supra at 99, 676 N.E.2d at 877. *Page 363 Accordingly, appellants' first assignment of error is sustained. Appellants' second assignment of error states: II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING TESTIMONY OF DEFENSE EXPERT DAVID LONGWORTH, M.D. OVER PLAINTIFFS' OBJECTION. In their second assignment of error, appellants contend that the trial court committed reversible error in allowing Dr. David Longworth to provide expert testimony regarding proximate cause at trial because his opinion was not held with the requisite degree of certainty. In his written report to defense counsel regarding the treatment rendered to Mattie Cunningham at St. Alexis Hospital Medical Center, Dr. Longworth, who is Chairman of the Department of Infectious Disease at The Cleveland Clinic Foundation, stated: With regard to your specific questions concerning the appropriateness of medical therapy, my responses are as follows: * * * 2. I have no definitive opinion regarding whether administration of antibiotics in the Emergency Room would have ultimately altered her clinical course. * * * 3. I cannot state at what point early administration of antibiotic therapy would have altered the ultimate clinical course. At his subsequent videotaped trial deposition, Dr. Longworth was asked the following question by defense counsel: Do you have an opinion, sir, which you can state with a reasonable medical certainty as to whether or not if a single dose of broad-spectrum antibiotic had hypothetically been ordered by Dr. Mounajjed while the patient was under his care in the emergency room, that such would have prevented the loss of Mattie Cunningham's legs, do you have an opinion? Appellants' counsel objected to the question because Dr. Longworth had stated in his written report that he had no opinion regarding whether the administration of antibiotics in the Emergency Room would have altered the course of Mattie Cunningham's treatment. Nevertheless, Dr. Longworth answered the question: I do not have an opinion with 51 percent medical certainty, but I do not believe that a single dose would have altered the clinical course. Prior to the presentation of Dr. Longworth's videotaped deposition to the jury, appellants' counsel requested that the trial court exclude Dr. Longworth's answer to defense counsel's question regarding whether a single dose of antibiotics *Page 364 administered in the Emergency Room would have altered the course of Mattie Cunningham's treatment. The trial judge overruled appellants' motion and the jury heard Dr. Longworth's answer. An expert opinion is competent only if it is held to a reasonable degree of scientific certainty. State v. Benner (1988), 40 Ohio St. 3d 301,313. In this context, reasonable certainty means probability. Id. Thus, an expert must state his or her opinion in terms of probability, meaning that he or she must express that there is a greater than fifty percent likelihood that a certain act or failure to act caused a given result. Stinson v. England (1994), 69 Ohio St. 3d 451, 455. Here, Dr. Longworth candidly admitted that he did not hold an opinion regarding whether a single dose of antibiotic administered to Mattie Cunningham in the Emergency Room of St. Alexis Hospital Medical Center would have altered the clinical outcome of Mattie Cunningham to the requisite degree of certainty. Accordingly, it was error for the trial court to admit his testimony regarding this issue on behalf of 4M and Dr. Mounajjed. Appellee St. Alexis Hospital concedes that the trial court erred in allowing Dr. Longworth to offer such proximate cause testimony at trial, but contends that the error was harmless because it was cumulative of other testimony presented at trial. Specifically, appellee asserts that Dr. Lowell Young, the hospital's expert, opined to a medical certainty that a single dose of broad-spectrum antibiotics would not have changed Ms. Cunningham's outcome. Therefore, St. Alexis Hospital contends that even if the trial court should have excluded Dr. Longworth's testimony, the jury could have relied on Dr. Young's testimony regarding proximate cause. St. Alexis relies on Hurst v. Poelstra (Dec. 22, 1995), Miami App. No. 94-CA-61, unreported, in support of its argument. In Hurst, a medical malpractice case, the defendant doctor asserted on appeal that the plaintiff's use at trial of the discovery deposition of an expert the defense ultimately decided not to call at trial was reversible error. The Second Appellate District Court disagreed, finding that the testimony offered in the discovery deposition was established through the testimony of the plaintiff's other experts, was not disputed by the defendant doctor or his expert and, most importantly, did not address the ultimate question of whether the defendant fell below the standard of care in his diagnosis and treatment of the plaintiff. Accordingly, the appellate court concluded that the trial court's error in allowing the plaintiff to use the expert's discovery deposition at trial was harmless. This case, however, is not like Hurst. The main thrust of appellants' argument at trial was that a single dose of broad spectrum antibiotics would have altered *Page 365 Cunningham's clinical outcome. Appellants' expert, Dr. Keith Cartwright, testified that two grams of antibiotics, given anytime before 1:00 p.m. on June 13, 1996, would have killed every bacteria in Cunningham's bloodstream and prevented her limb loss. Thus, Dr. Longworth's testimony that he did not believe that a single dose would have altered the clinical course went directly to the ultimate question of proximate cause. Moreover, his testimony was highly disputed by appellants. Accordingly, we cannot find his testimony harmless. We find the arguments of appellees 4M Emergency Systems, Inc. and Dr. Mounajjed with respect to Dr. Longworth's testimony similarly unpersuasive.2 These appellees assert that because Dr. Longworth candidly admitted that his opinion was not based on 51% medical certainty, his statement was not offered as true proximate cause testimony. Appellees also assert that because the jury rendered a verdict in favor of appellees with respect to negligence, the jury never considered the issue of proximate cause and, therefore, Dr. Longworth's testimony did not prejudice the jury. We fail to understand how Dr. Longworth's candid acknowledgment that he did not hold his opinion with a fifty-one percent certainty somehow transformed his statement into something other than testimony regarding proximate cause. In the eyes of the jury, the testimony of Dr. Longworth, Chairman of the Department of Infectious Disease at The Cleveland Clinic Foundation, was indeed true proximate cause testimony. Moreover, it is apparent that the jury considered the issue of proximate cause. Indeed, the note sent to the trial judge by the jury foreperson after two days of deliberation indicated that the jury had discussed the issue of proximate cause at length and was stalemated on that issue. In light of the jury's stalemate on this issue, it is obvious that the trial court's error in allowing Dr. Longworth to testify regarding proximate cause was not harmless error. We hold, therefore, that pursuant to Stinson, supra, it was error for the trial court to permit Dr. Longworth to testify with respect to proximate cause. Appellants' second assignment of error is therefore sustained. Appellants' third assignment of error states: III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING THE TESTIMONY OF DEFENSE EXPERT ARTHUR WHEELER, M.D., OVER PLAINTIFFS' OBJECTION. In their third assignment of error, appellants assert that the trial court abused its discretion in allowing Arthur Wheeler, M.D., to testify as an expert on behalf of appellee Dr. Mehta at trial because Dr. Wheeler does not devote enough of his time to the active clinical practice of medicine as required by Ohio Evid.R. 601. *Page 366 Evid.R. 601(D) states: Every person is competent to be a witness except: * * * (D) A person giving expert testimony on the issue of liability in any claim asserted in any civil action against a physicial, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless the person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state, and unless the person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school * * *. (Emphasis added.) At his discovery deposition three weeks prior to trial, Dr. Wheeler testified as follows: Q. Okay. What are your duties here at Vanderbilt? A. I have three basic duties. One is to provide patient care, the second is to teach medical students, fellows and residents, and the third is to do research. Q. Can you tell me about how much of your professional time you devote to each of those activities? A. Approximately two-thirds to seventy-five percent of my time is spent doing research, with the balance of the majority spent in patient care. Prior to trial, appellants filed a motion in limine based on Dr. Wheeler's deposition testimony to preclude him from testifying regarding the standard of care. Appellants' counsel reminded the trial court immediately before trial commenced that their motion was still pending and the trial judge informed counsel that he was reserving ruling on the motion. On the second day of trial, before the jury was sworn, the trial judge informed counsel that appellants' motion in limine was granted. Counsel for Dr. Mehta then pleaded with the court to give him more time to produce an affidavit from Dr. Wheeler explaining his deposition testimony. Accordingly, the trial court reversed its ruling and granted appellee more time. Dr. Wheeler subsequently submitted an affidavit which in its entirety stated: 1. I am duly licensed to practice medicine in the State of Tennessee, and am in good standing. 2. I am Board Certified in the practice of Internal Medicine, with subspecialty in Critical Care Medicine, and Pulmonary Medicine. *Page 367 3. A true copy of my Curriculum Vitae is attached as Exhibit A to this affidavit. 4. I spend 65% of my time in the active practice of clinical medicine and/or teaching at the Vanderbilt University Medical School. 5. I am familiar with the standards of care for the practice of Internal Medicine including Critical Care and Pulmonary medicine. Before Dr. Young and Dr. Wheeler took the stand, appellants again noted their objection on the record: Note an objection to this witness, Lowell Young, testifying and Dr. Wheeler testifying because they are not qualified under the statute. After the objection, counsel met in chambers and the following discussion took place on the record: MR. SANDEL: I am objecting to Dr. Young testifying as he is a researcher. He does not practice medicine. He does not see patients except occasionally in his own capacity as a director of a research lab. * * * He does not meet the test of the State of Ohio to be involved fifty percent in clinical practice of medicine and/or teaching at an accredited institution. And, Dr. Wheeler, we've already objected to in that he testified he spends two-thirds of his professional time involved in research. He also does not meet the statutory test of being fifty percent of his time in the active clinical practice of medicine and/or teaching. (Emphasis added.) Counsel for St. Alexis Hospital then presented its arguments on behalf of Dr. Young and the trial court ruled that Dr. Young would be allowed to testify: Everybody fudges in this business. I'm going to let him testify. Although the record does not reflect a subsequent ruling denying appellants' motion in limine with respect to Dr. Wheeler, he testified at trial as follows regarding his competency to testify as to the standard of care: Q. What is the total percentage of your time spent in teaching and active clinical care of your patients? A. That's a difficult question to answer because my research is clinical research. I'm seeing patients and trying to develop new treatments with patients with sepsis and ARDS. It's very difficult to separate research from patient care. My research would involve being at the bedside, taking care of critically ill patients with new therapy. Q. Sir, if we were to combine your care of patients and teaching assignments, would that exceed fifty percent of your time? A. Certainly more than fifty percent. *Page 368 As an initial matter, we reject appellee Dr. Mehta's disingenuous assertion that appellants failed to preserve any objection to Dr. Wheeler's competency to testify as to the standard of care by not raising a timely objection on the record at trial when Dr. Wheeler was called to testify. As set forth above, the record is replete with appellants' objections regarding Dr. Wheeler's competency to provide expert testimony on the standard of care. Dr. Mehta asserts, however, that even if the issue was not waived, the trial court did not abuse its discretion in allowing Dr. Wheeler to testify as to the standard of care because Dr. Wheeler was competent to testify. In McCrory v. State (1981), 67 Ohio St. 2d 99, 104, the Ohio Supreme Court held that the phrase active clinical practice includes not only those physicians who spend their professional time treating patients, but also encompasses the physician-specialist whose work is so related or adjunctive to patient care as to be necessarily included in that definition for the purpose of determining fault or liability in a medical claim. Id. Applying that definition, the court held that a doctor who spent eighty-five percent of his time as the director of a clinical research department for a pharmaceutical company was competent to testify as an expert. Dr. Mehta argues pursuant to McCrory, supra, that Dr. Wheeler's trial testimony verifies the fact that his clinical research, teaching and patient care are intertwined such that his combined care of patients and teaching assignments exceeds fifty percent of his time and, therefore, he was competent to testify regarding the standard of care. Appellants argue, however, that Dr. Wheeler was given the opportunity by the trial court to fudge his testimony so as to meet the qualifications for providing expert testimony under the parameters of Evid.R. 601(D). We agree. Dr. Wheeler testified unequivocally in his discovery deposition taken shortly before trial that he spent approximately two-thirds to seventy-five percent of his time doing research, with the balance spent in patient care. Based upon this testimony, Dr. Wheeler was not competent to provide expert testimony under Evid.R. 601(D). The trial court should not have allowed Dr. Wheeler to conform his testimony so as to meet the competency standards. Moreover, Dr. Wheeler's affidavit does nothing to explain his involvement with research and patient care nor how his research is so related or integral to patient care as to be included in the definition of active clinical practice. Rather, it merely contradicts his deposition testimony. The determination of whether a medical witness is competent to testify as an expert lies within the sound discretion of the trial judge and rulings with *Page 369 respect to such matters will not be reversed unless there is a clear showing that the court abused its discretion. McCrory, supra. On this record, we hold that the trial court abused its discretion in finding Dr. Wheeler competent to testify as to the standard of care. Appellants' third assignment of error is sustained. Appellants' fourth assignment of error states: IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR DURING JURY DELIBERATIONS. On its second day of deliberations, the jury presented two notes to the trial court. One note, prepared by the jury foreperson, read: Judge Feighan, We have discussed the issue of St. Alexis Hospital Medical Center being the proximate cause of the plaintiff's damage or injury for 6 hrs. and we are at a stalemate. How do we proceed? 4-No; 2-Yes; 2-Undecided. Carol Young, Juror No. 1 The second note was from Juror Number 3, Jesse McMickens. His note read: Judge, I would like to report some juror misconduct. Juror No. 3 Upon receipt of these questions, the trial judge summoned counsel, who agreed that the judge would write Continue your deliberations on the first note and return the note to the jury foreperson. With respect to the second note, counsel agreed that the trial judge would individually voir dire McMickens on the record to explore the nature of his concern and to evaluate what steps would be appropriate in response thereto. The record reflects the following exchange: THE COURT: You sent me a note, Judge, I would like to report some juror misconduct. MR. McMICKENS: Yes, sir. THE COURT: Is that a fact? MR. McMICKENS: Yes, sir. THE COURT: Say whatever you have to say on the record. MR. McMICKENS: You had told us we only supposed to discuss what was said from this witness stand. That's all we supposed to be discussing. That's all we had to go on. And they discussed — THE COURT: Well, the exhibits, also. *Page 370 MR. McMICKENS: And the exhibits which you gave us. Then they started discussing Mr. Sandel. One guy told me, I'm not going to let Jesse give no $500,000 and Sandel will get half of it because you know he gets a half of that money. And then this lady that's a nurse, she be using her job experience all the while. And you told her not to do that. She be using her whole job ever since Wednesday. THE COURT: Well, she brings with her all her life experiences. MR. McMICKENS: Yes, but she was talking about stuff like, well, the way it is did on the job, her job, like that. You're not supposed to do that because we're not talking about her job. It wasn't her job. We are talking about the facts of the case, everything that was presented on the stand. That's all we can go by. Then they start talking about Dr. Dar and they said Dr. Dar, we should — he should be in jail. We don't even know how much he settled for. We should know because he the one who did it, and we don't know how much he settled for. And they was basing their decision on that. If he had been to the hospital, then she wouldn't have had it, but since he wasn't at the hospital, since he didn't show up, that's why she like that. They was all piled up on Dr. Dar and not going on the information they had. THE COURT: Mr. McMickens, the jury deliberation is a tough process. MR. McMICKENS: I know it is. THE COURT: A tougher process than people realize until they get in it. And this is a difficult case for everybody, a lengthy case, tremendous amount of evidence. MR. McMICKENS: It was. THE COURT: Will you continue your deliberations and do your best that you can to arrive at a just verdict? MR. McMICKENS: I really don't even want to fool around. THE COURT: What? MR. McMICKENS: I don't want to fool with it no more. We discussed it and they discussed it and they using the wrong criteria. They are not discussing the facts. They are discussing stuff that wasn't said on the stand. They trying to make it look like they trying to find a reason for everything. They say, well, we don't know that. We don't know that. We don't know that happened. It's in the record that it happened. THE COURT: Okay. *Page 371 MR. McMICKENS: This guy, he seemed to be against defense attorneys. They going to get ahead for it. It is not our business what he get. It's not our business. He don't want to give her no money because he don't want to give him half of it. THE COURT: Okay. Thank you very much. MR. McMICKENS: Yes, sir. After Mr. McMickens returned to the jury room, the trial judge had the following discussion with counsel: MR. SANDEL: Our position is that we want a jury of eight to decide this case, and we are asking the court to replace any jurors who have engaged in misconduct with an alternate juror, whoever the court deems has engaged in misconduct. We are also asking the court to reinstruct the jury that they are not to consider evidence aliunde, that they are only to consider the evidence in this case in reaching a verdict and not evidence outside of this case from their own experience. MR. BONEZZI: On behalf of St. Alexis Medical Center, the court has the right to dismiss a juror and that if in fact that happens for misconduct or other reasons, then a lesser number is necessary or required to reach a verdict, and in this case, if one was dismissed to bring the total number down to seven, then five would be necessary to go ahead and reach a verdict. I do not believe under any circumstances that any alternate juror can be brought back into this case for purposes of deliberating. They have already been dismissed. This jury has been deliberating for approximately two days. THE COURT: Further, the alternates were dismissed before the charge so they have not been charged. MR. BONEZZI: And on behalf of St. Alexis Medical Center, I object to recharging this jury as requested by plaintiffs' counsel. MR. GOLDWASSER: I, on behalf of Dr. Mounajjed and 4M Emergency Systems, merely reiterate that which has just been stated by Mr. Bonezzi. MR. RISPO: And on behalf of Mr. Mehta, I would adopt and join in the previous motions. THE COURT: The court has a problem whether I find Juror Number 3 guilty of misconduct. MR. SANDEL: He isn't saying he is guilty of misconduct. He is saying another juror is guilty of misconduct. *Page 372 MR. BONEZZI: Except Juror Number 3 has also indicated that he will not participate in any further deliberations. THE COURT: He said he didn't want to. Is there anything that we find in here with regard to juror misconduct permitting their removal by the court? I'm sure there have been cases on juror misconduct. MR. SANDEL: Let the record reflect that there is no allegation of juror misconduct on the part of Juror Number 3, rather Juror Number 3 alleges misconduct on the part of another juror unnamed. THE COURT: Well, the forelady indicated to me this morning, as I related to you, gentleman, you know — MR. RISPO: I didn't hear that. MR. GOLDWASSER: The forelady contends that there is a racial problem. Is that what you were told? As expressed by Juror Number 3. THE COURT: I can't find juror misconduct. I'm open to your suggestions, gentlemen. It is your case. You have more at stake than I do. MR. GOLDWASSER: Judge, on behalf of my clients, I ask the court to excuse Juror Number 3. MR. BONEZZI: On behalf of St. Alexis Medical Center, I also request that you excuse Juror Number 3. MR. RISPO: I join in the same request on behalf of Dr. Mehta. MR. SANDEL: On behalf of the plaintiff, there's no allegation of misconduct against this juror. He is just having difficulty with negotiations. On behalf of the plaintiff, I ask the court to discharge the juror whom he alleges to have been engaged in misconduct and to instruct the jury that they may not consider evidence aliunde, evidence other than what was presented in this case. THE COURT: We have another problem which just came back into my head, that one of the jurors, and I believe it might be Number 2, Barbara Robinson, or it may be Number 7, Milissa Glinsey. A black female stated to me that she had problems with Monday, that they had a vacation and — MR. GOLDWASSER: Problems with what? MR. BONEZZI: Time. THE COURT: Time. Time. Time. MR. BONEZZI: If they can't reach a verdict today and they can't come back Monday — *Page 373 MR. GOLDWASSER: Well, with all due respect, I don't think they have a choice, Judge. I think they have an obligation to deliberate either tonight or tomorrow. MR. RISPO: They can deliberate tomorrow. THE COURT: As the way things go, it's extremely difficult to require a jury to deliberate full days. It's not like sitting in a trial where you can sleep. You may sleep in the deliberating room, but it's much more stressful as we see. MR. GOLDWASSER: Judge, we said to this jury, all the lawyers commented that they got the toughest job here, but that's the way it is. THE COURT: It's my position that as things stand now, I'm going to return the note from the foreman with the answer, Continue your deliberations. I'm not going to do anything with reference to Juror Number 3 until such time as something else pops up. MR. GOLDWASSER: All right. MR. SANDEL: Are you going to instruct the jury they're not instructed to — THE COURT: I'm not going to give them any more instructions. In their fourth assignment of error, appellants contend that the trial court erred in: 1) not conducting an investigation into alleged juror misconduct after the court had notice of possible misconduct; 2) not providing a necessary curative instruction to the jury after the issue of possible juror misconduct was raised; and 3) not declaring a mistrial because Juror McMickens informed the court that he was not willing to deliberate any further. As a reviewing court, we show deference to the trial judge, who sees and hears the events and thus is in a better position to accurately evaluate the situation and determine the appropriate scope of inquiry. State v. Hessler (2000), 90 Ohio St. 3d 108, 115-116. Therefore, we employ an abuse-of-discretion standard and will not reverse the trial court unless it has handled the alleged juror misconduct in an unreasonable, arbitrary, or unconscionable manner. Id. at 116, citing State v. Adams (1980), 62 Ohio St. 2d 151, 157. Initially, we note that appellants waived any argument that the trial court erred in not declaring a mistrial because Juror McMickens informed the court that he did not want to deliberate any further. The record clearly demonstrates that appellants did not request a mistrial on the basis of McMickens' statement. Rather, appellants' counsel stated several times that McMickens had not engaged in any juror misconduct and, further, argued for keeping McMickens on the jury. Accordingly, appellants waived this argument on appeal. *Page 374 See Shover v. Cordis Corp. (1991), 61 Ohio St. 3d 213, 220. Appellants' remaining arguments, however, have merit. The United States Supreme Court has repeatedly held in a wide variety of contexts that the right to be tried before a jury capable and willing to decide a case solely on the evidence before it is a cornerstone of our justice system. McIlwain v. United States (1983), 464 U.S. 972. This precious right is denigrated when a [judgment] resting upon deliberations tainted by a juror's * * * impropriety is allowed to stand. Id. In addition, the Ohio Supreme Court has noted that Section 5, Article I of the Ohio Constitution guarantees the right to a trial by jury, and this right carries with it by necessary implication the right to trial by a jury composed of unbiased and unprejudiced jurors. State v. Hessler (2000), 90 Ohio St. 3d 108, 133, quoting Lingafelter v. Moore (1917),95 Ohio St. 384, paragraph one of the syllabus, (Moyer, C.J., dissenting). Similarly, this court has noted that one touchstone of a fair trial is an impartial trier of fact — `a jury capable and willing to decide the case solely on the evidence before it.' Apaydin v. The Cleveland Clinic Foundation (1995), 105 Ohio App. 3d 149, 154, quoting McDonough Power Equipment, Inc. v. Greenwood (1993), 464 U.S. 548, 554. Here, the trial judge became aware of the possibility of juror misconduct before any verdict had been reached by the jury. Jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict. Tanner v. United States (1987),483 U.S. 107, 127. After learning of alleged juror misconduct from Juror McMickens, however, the trial court took no steps to safeguard appellants' right to trial by a jury of unbiased and unprejudiced jurors willing to decide the case solely on the evidence presented to it. The question presented to the trial court by McMickens' allegation of juror misconduct was whether or not extraneous evidence had so prejudiced jury consideration of the issues as to prevent the jurors from impartially deciding the case. At a minimum, therefore, the trial court should have suspended jury deliberations and questioned the juror accused of misconduct to determine whether she was, in fact, introducing extraneous evidence into the jury deliberation process. If the trial judge determined that the unnamed juror was doing so, he should have then questioned all of the other jurors separately to determine the effect of the juror's statements on the jury deliberations and whether the other jurors remained impartial. See State v. Robb (2000), 88 Ohio St. 3d 59,78-82. *Page 375 Appellees 4M Emergency Systems, Inc. and Dr. Mounajjed, however, in reliance on State v. Hessler (2000), 90 Ohio St. 3d 108, argue that the trial judge was not required to question the unnamed juror nor any of the other jurors. In Hessler, the jury convicted the defendant of aggravated murder, burglary and improperly discharging a firearm. After completing penalty deliberations, the jury reported that it had made its sentencing recommendations. The judge assembled the attorneys and defendant in the courtroom and then asked if there was anything further before he brought the jury back into the courtroom. At that point, the bailiff informed the judge that there was a distraught juror in the hallway. The attorneys agreed that the judge would question the juror to find out the problem. The judge then questioned the juror on the record. The juror indicated that she was upset and unnerved by the deliberations and could not return to the courtroom. The juror also stated that she [did] not agree with any of the people in there and questioned the judge regarding what would happen if she disagreed in the courtroom with the jury's recommendation. The judge attempted to calm the juror, reminded her of the importance of the proceeding and her part in it and assured her there was no pressure to vote a certain way. The jury was then brought back into the courtroom and its decision was announced. When individually polled, the juror stated that she agreed with the recommendations. On appeal, the defendant argued that he was denied the right to a fair and impartial jury because of juror misconduct. The Supreme Court of Ohio, however, found that the juror exercised her free will in agree[ing] with the sentencing recommendations announced in court and, therefore, there was no juror misconduct. Id. at 29. The Supreme Court rejected the defendant's contention that the trial court was required to hold an evidentiary hearing into the matter pursuant to Remmer v. United States (1954), 347 U.S. 227. The Supreme Court stated: In Remmer, the Supreme Court held that when improper contacts with a jury are discovered by the parties after the verdict, the trial court must conduct a hearing to determine the effect of those contacts. However, more recent cases have determined that the complaining party must show actual prejudice. See Smith v. Phillips (1982), 455 U.S. 209, 215; United States v. Olano (1993),507 U.S. 725, 738; United States v. Sylvester (C.A.5, 1998), 143 F.3d 923. In this case, the court did not abuse its discretion in interviewing this juror as it did in order to make sure that she understood that the choice was hers and hers alone. No further Remmer hearing was required. The parties knew about the communications between the court and the juror before they occurred, and *Page 376 did not suddenly discover them after the trial. Moreover, appellant never asked to question the juror before the sentence recommendations were announced, nor immediately thereafter. The lack of prejudice to appellant is manifest. The discussion at issue was recorded, and occurred after the jury had already reached a decision and the juror had already signed the sentencing forms. * * * Since those deliberations had concluded, nothing said or done by the trial judge could have affected the deliberations. (Citations omitted.) Appellees assert that, as in Hessler, the trial judge in this case had no obligation to voir dire any of the other jurors because he interviewed Juror McMickens and determined that there was no juror misconduct. Further, they argue that an evidentiary hearing is required only when the party complaining of juror misconduct can show actual prejudice and appellants have not done so. We disagree. Under the facts of this case, the fundamental right to trial by a fair and unbiased jury required further inquiry by the trial judge into the conduct of the jurors during deliberations. Juror McMickens' allegations were substantial and raised the specter that any one of several jurors on the panel3 could have been engaged in misconduct by informing the jury of her job experience and suggesting that the jury judge appellees' actions on her hospital experience rather than on the evidence presented at trial. The trial court, however, failed to determine whether there was, in fact, any juror misconduct. Although the trial judge proclaimed, I can't find juror misconduct, the record is devoid of any attempt to look for it after the issue was raised by Juror McMickens. Consequently, there is nothing in the record to support the trial court's determination that there was no juror misconduct. Moreover, the trial court failed to determine if any of the jurors were tainted or in any way biased by the alleged extraneous information brought to the attention of the jury by the unnamed juror. The trial court's failure to make this determination makes it impossible for appellants to ascertain, much less demonstrate, whether or not they were actually prejudiced by the alleged juror misconduct. Appellee St. Alexis Hospital argues, however, that there was no juror misconduct in this case because jurors are allowed to share their general knowledge based upon their differing backgrounds and experiences. Although that may be true, Mr. McMickens' allegation was that an unnamed juror was sharing much more than her general knowledge and work experience: she was telling the jury what the standard of care was in this case based upon her job experience. *Page 377 We recognize that the line between the common knowledge jurors are expected to bring to the deliberative process and extraneous influences is often very thin. See, e.g., Gault v. Poor Sisters of St. Frances Seraph of the Perpetual Adoration, Inc. (1967), 375 F.2d 539. If McMickens' allegation were true, however, the extraneous information brought to the attention of the jury could have had a negative impact on the jury and how it viewed appellants and their theory. McMickens' allegation raised the possibility of adverse effects by the unnamed juror's statements upon appellants' substantive right to a fair and impartial jury. Without any inquiry by the trial court into what the unnamed juror actually said and the effect of her statements on the other jurors, however, it is impossible to determine whether appellants' right to have the jury decide the case solely upon the evidence presented to it was violated. Finally, contrary to appellees' argument, Evid.R. 606(B) is not applicable to the alleged juror misconduct in this case.4 That rule, and the accompanying aliunde rule used to corroborate any attack on the verdict, applies to an instance of juror misconduct which is discovered after the verdict is reached by the jury. In this case, the jury had not yet reached a verdict. Accordingly, the trial judge should have conducted an inquiry of the particular juror accused of misconduct and the other jurors to determine whether appellants would receive a fair trial before eight impartial jurors willing to decide the case solely upon the evidence presented to it. The trial court abused its discretion in not doing so. Appellants' fourth assignment of error is therefore sustained. Our resolution of appellants' first, second, third and fourth assignments of error renders their fifth and sixth assignments of error moot and therefore we need not consider them. See App.R. 12(A)(1)(c). This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, ordered that appellants recover from appellees 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. 1 Appellants' assignments of error are set forth in Appendix A to this opinion. 2 Dr. Mehta does not address this assignment of error. 3 There were four nurses on the jury. 4 Evid.R. 606(B) provides: Upon an inquiry into the validity of a verdict * * *, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict * * * or concerning his mental processes in connection therewith. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented. DIANE KARPINSKI, A.J., CONCURS; and MICHAEL J. CORRIGAN, J., DISSENTS WITH DISSENTING OPINION. *Page 378

2016-07-06 06:36:13.666772+00

Nader

On January 8, 1999, appellees, Gerald Smith and Sally M. Smith, filed a complaint against appellant, Whitlatch Co., alleging fraud, breach of contract, breach of express and implied warranties, negligence, and violations of Ohio condominium law and the Ohio Consumer Sales Practice Act ("CSPA"). The complaint arose out of a June 3, 1995 purchase contract executed by the parties for the sale of a condominium unit. The crux of the complaint was that the foundation of the condominium was cracking and that appellant attempted to conceal this defect. The contract contained an arbitration clause, which specified: *Page 684 "BUYER and SELLER agree that any controversy or claim arising out of, or related to this AGREEMENT, or the breach thereof, shall be settled by Arbitration in accordance with the Construction Industry Arbitration Rules and the Expedited Dispute Settlement Rules of the American Arbitration Association then in effect, unless the parties mutually agreed otherwise." Appellant filed a motion to stay the proceedings pending arbitration. The trial court overruled the motion and determined that appellees' claim involved allegations of fraud in the inducement and rescission of the underlying contract, which were not subject to the arbitration clause. Appellant appeals and raises the following assignment of error: "The trial court erred in denying appellant's motion pursuant to R.C.2711.02 for a stay of proceeding and arbitration based on the arbitration clause in the condominium purchase agreement between the parties." In its sole assignment, appellant raises two separate issues. In its first issue, appellant asserts that to defeat a motion to stay, a party must demonstrate that the arbitration provision was fraudulently induced. In its second issue, appellant asserts that the arbitration clause was broadly worded and applies to all claims presented in appellees' complaint. Appellees counter that a case cannot be referred to arbitration when a party claims fraud in the inducement, claims a violation of the CSPA, or requests a rescission of the contract. They further argue that arbitrators do not have jurisdiction to hear cases involving the CSPA. We will analyze appellant's issues concurrently. As an initial matter, it must be noted that public policy in Ohio encourages the resolution of disputes through arbitration. Kelm v. Kelm (1993), 68 Ohio St. 3d 26, 27, 623 N.E.2d 39, 40-41. Any uncertainty regarding the applicability of an arbitration clause should be resolved in favor of coverage. Stehli v. Action Custom Homes, Inc. (Sept. 24, 1999), Geauga App. No. 98-C-2189, unreported, 1999 WL 778382. "To defeat a motion for stay brought pursuant to R.C. 2711.02, a party must demonstrate that the arbitration provision itself in the contract at issue, and not merely the contract in general, was fraudulently induced." ABM Farms, Inc. v. Woods (1998), 81 Ohio St. 3d 498, 692 N.E.2d 574, syllabus. "This is what is known as the Prima Paint doctrine, first set forth by the United States Supreme Court in Prima Paint Corp. v. Flood Conklin Mfg. Co. (1967), 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270." Cross v. Carnes (1998), 132 Ohio App. 3d 157, 165, 724 N.E.2d 828, 833. Neither in their complaint nor in their response to appellant's motion for a stay did appellees allege that the arbitration provision was fraudulently induced. Thus, the arbitration provision is valid. Courts are not permitted to consider allegations that the general agreement containing the *Page 685 arbitration provision is invalid when faced with valid broad arbitration clauses such as the one found in the instant case. Id. "If the agreement to arbitrate is not at issue, then the court must compel arbitration to proceed." Windham Foods, Inc. v. Fleming Cos., Inc. (May 2, 1997), Trumbull App. Nos. 96-T-5515 and 96-T-5519, unreported, 1997 WL 269387. Appellees cite our holding in Painesville Twp. Local School Dist. v. Natl. Energy Mgt. Inst (1996), 113 Ohio App. 3d 687, 681 N.E.2d 1369, as authority for their argument that a claim cannot be referred to arbitration when a party argues that the entire agreement is void under Ohio law. We have expressly overruled that language from Painesville Twp. See Windham, supra; Stehli, supra. In Stehli, we addressed a case with an identical issue of whether an arbitrator could address a violation of the CSPA. We held that "there is nothing in R.C. Chapter 1345 to suggest that parties to a consumer transaction covered by the CSPA cannot agree to arbitrate such matters." Id. In the instant case, the parties bound themselves to settle any dispute through arbitration and did not except CSPA claims. Therefore, an arbitrator has the authority to decide CSPA claims under the agreement of the parties. Appellant's assignment of error has merit. The judgment of the trial court is reversed, and this cause is remanded with instructions that the trial court stay proceedings pending arbitration. Judgment accordingly. FORD, P.J., and CHRISTLEY, J., concur.

2016-07-06 06:36:13.888226+00

Sullivan

This cause comes into this court on error from the court of common pleas of Cuyahoga county, and it is here sought to reverse the judgment of the lower court, wherein there was a verdict by the jury for the defendant in a personal injury and property case, growing out of a collision at the intersection of East Forty-seventh street and Woodland avenue in the city of Cleveland. It is claimed that counsel for the defendant below was guilty of misconduct in his argument to the jury by use of the following language: "You know, since the time the world began we have lived in ages; we have passed through various ages; and just at the present time we are in what might be called the `damage age.' Here, at *Page 538 least, in Cuyahoga county, it strikes me from what I have observed in the last few years it has come to be a practice in this county, and legitimately so regarded by many, that if a man can come into court and by hook or crook get a verdict out of a defendant, all well and good; if they can't all well and good; it is a gamble, a legitimate gamble, and to me that situation invites corporations to organize what are known as `claim departments.' You go out here and this great railway running east and west through your city, and the New York Central, and the Pennsylvania and the Big Four, you go out to the Erie, you go out to the American Steel and Wire Company, you go into any large manufacturing company or plant in any city in the United States, and you will find an organization — and organized accident department. Why? Because those corporations have been held up by people suing for damages." It is apparent from the record and the language itself that the argument of counsel for plaintiff was provocative of the language quoted, and under all the authorities the judgment will not be reversed because of a colloquy between counsel upon the same subject in argument before the jury. It is also claimed as error that a certain document went to the jury signed by Christopher Williams, a witness to the accident, given to a claim agent of the defendant company, when it appears that certain portions of it were ordered eliminated by the court as prejudicial, but that, notwithstanding this, the part attempted to be stricken out is still legible. Inasmuch as the questions were put to the witness with respect to the document under cross-examination, we do not think that it *Page 539 was incompetent to allow to remain in the record that portion of the document ordered obliterated, and, this being so, there is no prejudicial error in our judgment in this respect. On the question of the right of way at East Forty-seventh street and Woodland avenue, without the question of the right of way being made a distinct issue in the case, and arising only by way of incident to the main circumstances, the court under the statute relating to written charges before argument (Section 11447, General Code) gave the following: "I charge you as a matter of law that Woodland avenue is, and was on December 29, 1924, a main thoroughfare in the city of Cleveland, and that the street car of the defendant under the ordinances and state laws had the right of way over the vehicle operated by the plaintiff on the day in question. By right of way, I mean that the street car of the defendant had the right to proceed uninterruptedly in a lawful manner in the direction in which it was proceeding in preference to the vehicle of the plaintiff, approaching from East Forty-Seventh street." The majority of the court are of opinion that this instruction was prejudicial error. An instruction before argument, in writing, under the statute, in character has a different legal entity and significance than an instruction given in the general charge at the conclusion of the argument. In the former case it becomes the unquestioned law of the case upon the subject incorporated in the instruction. It is the voice of the court pronouncing the law upon that question. Counsel may read the same repeatedly to the jury, and it is of such legal *Page 540 import that it goes to the jury under instructions to be considered by them in their deliberations upon the case. This is a statutory privilege given counsel, and it has great weight with the jury, and anything of a prejudicial nature in such charge must be considered in a much more serious light than any portion of the final charge given by the court. When counsel makes the request in writing, and submits the instruction in writing, and the court gives it, both court and counsel are responsible for its misuse, the peril of prejudice attaches to it, and there is an accountability not only resting upon the shoulders of the court, but upon the shoulders of counsel. Therefore the instruction must be given in compliance with the law in all respects, so that when it is read to the jury, and by the jury, in their deliberations, it fully states the law upon that subject. This charge assumes that the street railway company had the right of way to the extent that the plaintiff below was bound to stop his vehicle and surrender that right to the highway which he had, to-wit, to cross at the intersection if he could do so in the exercise of reasonable care, and if the facts and circumstances of the case gave reasonable ground for such belief. It also releases from that legal responsibility resting upon the motorman at intersections, even though he may have the right of way in his favor, to exercise reasonable care where travel is operating at right angles. The right of way is no arbitrary immutable privilege, either under the statute or the ordinance, because the underlying principle at all times is that there must be conduct consistent with the theory of the exercise of that care which ordinarily prudent people *Page 541 exercise under the same and similar circumstances. If the law were otherwise, then, instead of the statute and the ordinance accomplishing the purposes for which they were passed, they would increase disasters, by inviting, under a wrong construction of the law, travelers to rest solely and wholly upon the theory that because they had the right of way they were immune from the exercise of reasonable and ordinary care. The right of way does not ignore this principle, and even though there is a preference given to the vehicle nearest to the intersection, yet it does not deprive the vehicle traveling at right angles upon the intersection from proceeding, if it can be done, with the exercise of reasonable care. Under this instruction it would appear, especially by the use of the word "uninterruptedly," that it was the duty, because of the right of way alone, for the automobile driver to stop until the street railway motorman, having a right of way, passed safely over, notwithstanding by the exercise of reasonable care he may have been able to make the intersection safely and without interrupting the passage of the street car. We think the principle laid down in Huddy on Automobiles (6th Ed.), Section 394, states the law, and we quote it, as follows: "While under the common-law rule travelers at intersecting streets have equal rights, with a priority given to one who reaches the intersection distinctly in advance of another, the rule may be changed by statute or municipal ordinance. A regulation may properly be enacted giving to travelers along one street the priority over those approaching along a cross street, the intention being to relieve the crowded condition of traffic along the *Page 542 street to which priority is given. And, even where an advantage may not be grounded on the traffic conditions, modern regulations generally require the traveler to give way to one approaching an intersecting street on the right side. One of the difficulties involved under such a regulation is determining when one approaching from the right is close enough so that he can be said to be `approaching the intersection.' Such a regulation imposes on the less favored traveler an affirmative duty to keep out of the other's way, and requires him to slow, to stop, and if need be to reverse, if otherwise the vehicles are likely to come into contact. An ordinance giving a prior right to travelers on certain streets is not abrogated by a statute regulating the operation of motor vehicles, where the statute does not cover the subject of priorities at intersecting streets. The violation of traffic regulations of this character is to be considered on the question of the negligence of the parties, and, like other violations of the law of the road, may create a presumption of negligence against the guilty traveler. It still remains,however, the province of the court and jury to determine whetherthe respective parties have exercised the degree of care imposedon them; and the fact that one party is entitled to priority doesnot relieve him from the duty of exercising reasonable care toavoid injury to other travelers. The driver not entitled to priority may properly assume that the other will not approach at an excessive speed. One entitled to priority under the law is nevertheless required to keep a lookout for cars approaching from his left; and, if he fails in this respect, he may be charged with negligence. But, until he discovers to the contrary, he *Page 543 is entitled to assume that he will be accorded the right of way. One entitled to priority along a certain street is not necessarily allowed to carry such privilege with him when he is turning from such street into a cross street. When making the turn, he must exercise caution to avoid a collision with vehicles passing along the cross street, and reasonable care may require that he yield or delay his turn, if another vehicle is then passing." (Italics mine.) Bearing out this principle of law, the foot-notes under this citation give the following authorities: Ray v. Brannan,196 Ala. 113, 72 So. 16; Golden Eagle Dry Goods Co. v. Mockbee,68 Colo. 312, 189 P. 850; Geeck v. Lukenbill, 215 Mich. 288,183 N.W. 729; Rosenau v. Peterson, 147 Minn. 95, 179 N.W. 647;Lindahl v. Morse, 148 Minn. 167, 181 N.W. 323; Schneider v.Hawks (Mo.App.), 211 S.W. 681; Erwin v. Traud,90 N.J. Law, 289, 100 A. 184, L.R.A. 1917D, 690; Paulsen v. Klinge,92 N.J. Law, 99, 104 A. 95; Spawn v. Goldberg, 94 N.J. Law, 335,110 A. 563; Ward v. Clark, 189 A.D. 344, 179 N.Y.S., 466; Blum v.Gerardi, 111 Misc. Rep., 617, 182 N.Y.S., 297; Schultz v.Nicholson, 116 Misc. Rep., 114; Lee v. Pesterfield, 77 Okl., 317,188 P. 674; Greater Motors Corp. v. Metropolitan Taxi Co.,115 Wash. 451, 197 P. 327. The above interpretation of the law with respect to the right of way, we think, makes prejudicial error of request No. 3, which was given at defendant's request, as follows: "I charge you that the violation of an ordinance or a state law is negligence as a matter of law, and if you find that the plaintiff in this case was guilty of a violation of any ordinance or state law, and *Page 544 such violation directly contributed to produce the accident, then your verdict must be for the defendant." A reasonable interpretation of that charge, we think, means that the plaintiff was guilty, as a matter of law, if he attempted to cross the intersection in question in the face of the law and the ordinance as to right of way, even though he had the right to do so if it could be done by the exercise of reasonable care. We find no prejudicial errors in the record other than those above noted, and for these reasons the judgment of the lower court is hereby reversed and the cause remanded for further proceedings according to law. Judgment reversed and cause remanded. LEVINE, J., concurs.

2016-07-06 06:36:13.689577+00

OPINION {¶ 1} This is an appeal from a Stark County jury verdict of guilt as to a charge of felonious assault. STATEMENT OF THE FACTS AND CASE {¶ 2} The facts underlying the charge are that appellant and one Michael Fitzgerald together with others were at Andre's Bar. After some time they drove together to a residence. (The reasons for this trip were disputed.) Appellant alleges that at this time Fitzgerald called him a "punk nigger" and a physical confrontation occurred. {¶ 3} Later, appellant found that his apartment had been trashed. He believed that this was done by Fitzgerald and upon seeing Fitzgerald coming up the apartment stairs became involved in an argument. At this time appellant was charged with striking Fitzgerald with a golfclub, breaking his arm. {¶ 4} Witnesses and the police observed appellant with a broken golfclub. {¶ 5} Appellant raises three Assignments of Error: ASSIGNMENTS OF ERROR {¶ 6} "THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTING ATTORNEY TO DISMISS THE ONLY BLACK JUROR THAT APPEARED FOR THE APPELLANT'S JURY TRIAL." {¶ 7} "THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO OBTAIN THE VICTIM'S MEDICAL RECORDS TO VERIFY THE INJURIES THE VICTIM SUSTAINED." {¶ 8} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED THE APPELLANT'S OBJECTION TO PHOTOGRAPHS THAT THE STATE HAD FAILED TO PROVIDE IN ACCORDANCE WITH THE DISCOVERY PROVISIONS OF CRIMINAL RULE 16." I. {¶ 9} The first Assignment of Error addresses the exclusion by way of a peremptory challenge of the sole African-American Juror (No. 254) from the selected Jury. (Appellant' is also African-American). {¶ 10} Such excused person worked at the same place of employment as appellant. While Juror 254 knew appellant and would speak to him at work, she indicated that this would not affect her decision making if selected. {¶ 11} However, when prospective jurors were asked if they knew anyone involved in this case, Juror No. 254 referred to appellant by his first name "I know Benny." (T. at p. 27) {¶ 12} Batson v. Kentucky (1986), 476 U.S. 79 prohibits racially motivated exclusion of prospective jurors. {¶ 13} There are three prongs applicable to a court's determination as to a claim of racial exclusion in the exercise of a peremptory challenge. {¶ 14} In step one, the opponent of the peremptory challenge at issue must make a prima facie case that the proponent was engaging in racial discrimination. In step two, the proponent must come forward with a race-neutral explanation for the strike. In step three, the trial court must decide, on basis of all the circumstances, whether the opponent has proved racial discrimination. Purkett v. Elem (1995), 514 U.S. 765,767-768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834, 839; State v. White,85 Ohio St.3d at 436, 709 N.E.2d at 147. State v. Murphy (2001),91 Ohio St. 3d 516, 528, 747 N.E.2d 765, 785. {¶ 15} In this case the prosecution wished to excuse Juror No. 254 because of their working relationship. Appellant offered nothing indicating racial discrimination, other than appellant and Juror No. 254 were African-American. The State's basis for exclusion was determined by the trial court to be warranted. (T. at p. 82, 83, 84). {¶ 16} Under State v. Hernandez (1992), 63 Ohio St. 3d 577, cert. denied (1992) 506 U.S. 898 we are unable to sustain the first Assignment of Error as the trial court's ruling was not clearly erroneous. Here, the trial court correctly determined that a race neutral explanation had been provided. II. {¶ 17} The second Assignment of Error asserts ineffective assistance of counsel in failing to obtain the victim's medical records as to injuries sustained. {¶ 18} A claim of ineffective assistance of counsel requires a two prong analysis. The first inquiry is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 113 S. Ct. 838,122 L. Ed. 2d 180; Strickland v. Washington (1984), 466 U.S. 668,104 S. Ct. 2052, 80 L. Ed. 2d 674; State v. Bradley (1989), 42 Ohio St. 3d 136. {¶ 19} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley, 42 Ohio St.3d at 142. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any given case, a strong presumption exists that counsel's conduct fell within the wide range of reasonable, professional assistance. Id. {¶ 20} In order to warrant a reversal, the appellant must additionally show he was prejudiced by counsel's ineffectiveness. This requires a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Bradley, supra at syllabus paragraph three. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. It is with this framework in mind that we address the instances of alleged ineffectiveness of counsel raised by appellant in the instant case. {¶ 21} In this case this assertion as to these medical records not having been provided is not supported by the record. Page 9 of the transcript reveals: MR. WAKSER: That is correct, Your Honor. The State has provided me with the records of Mr. Fitzgerald and I would stipulate to the admissibility in this trial without the records custodian having to testify. {¶ 22} We therefore conclude that the second Assignment of Error is not well taken. III. {¶ 23} The third Assignment of Error directs our attention to the trial court's abuse of discretion by admission of photographs not provided to appellant's counsel. {¶ 24} The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage (1987),31 Ohio St. 3d 173. Therefore, we will not disturb a trial court's evidentiary ruling unless we find said ruling to be an abuse of discretion; i.e. unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983),5 Ohio St. 3d 217. {¶ 25} In order to find an abuse of 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. We must look at the totality of the circumstances in the case sub judice and determine whether the trial court acted unreasonably, arbitrarily or unconscionably. {¶ 26} The trial court, while obviously unhappy with the prosecutor for failing to follow through in making contact with appellant's counsel when the injury photographs became available. (T. at p. 128-129), was faced with a difference of opinion as to whether the opportunity to make a review appointment occurred. {¶ 27} Also, there is no question that a continuing duty to disclose was required under Crim.R. 16(D). {¶ 28} The trial court's admission decision was based on the totality of the circumstances of the defense's indicated position to wit: that appellant admittedly had struck Fitzgerald with the golf club (T. at p. 111) but that due to the provocation, such action did not rise to felonious assault. {¶ 29} Based upon these circumstances, the trial court determined that no prejudicial effect to appellant would occur by admission of the photographs. {¶ 30} We find that no abuse of discretion occurred. {¶ 31} The third Assignment of Error is rejected. {¶ 32} The decision of the Stark County Common Pleas Court is affirmed. By: BOGGINS, J. HOFFMAN, P.J. and EDWARDS, J. concur JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the decision of the Stark County Common pleas Court is affirmed. Costs assessed to appellant.

2016-07-06 06:36:13.851321+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff, John Gibboney, appeals the trial court's grant of summary judgment in favor of defendant Allstate Insurance Co. and denial of his motion for summary judgment. {¶ 2} Gibboney was employed by Giant Eagle in its warehouse as a "high lift operator" for twenty years. On May 20, 2001, he was injured when he was standing next to his lift as a forklift, driven by defendant Cedric Johnson, crashed into a stationary forklift and pushed it onto Gibboney's foot. As a result, Gibboney was pinned against a pallet. Gibboney's foot was seriously injured. Because Cedric Johnson was operating the forklift in the course and scope of his employment, he was immune from negligence liability pursuant to R.C. 4123.741. {¶ 3} Gibboney applied for uninsured motorist coverage from his personal automobile insurance with Allstate. Denying coverage, Allstate claimed that a forklift did not qualify as a motor vehicle under the policy. Gibboney sued for coverage, and, after entertaining each side's motions for summary judgment, the court ruled in favor of Allstate. Gibboney timely appealed, stating two assignments of error, which address the same issue. They state: I. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT-APPELLEE ALLSTATE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT JOHN GIBBONEY'S CROSS-MOTION FOR SUMMARY JUDGMENT. {¶ 4} The appellate court reviews a summary judgment de novo.Hillyer v. State Farm Mut. Auto Ins. Co. (1996),131 Ohio App. 3d 172, 175. The appropriate test for that review is found in Civ.R. 56(C), which states that summary judgment may be granted under the following conditions: first, there is no genuine issue of material fact which remains to be litigated; second, as a matter of law, the moving party is entitled to judgment; and, third, a review of the evidence shows that reasonable minds can reach only one conclusion, which, when that evidence is viewed most favorably to the party against whom the motion was made, is adverse to the nonmoving party. Temple v. Wean (1977),50 Ohio St. 2d 317, 327. {¶ 5} Initially, the party who seeks summary judgment has the burden of demonstrating the absence of any issue of material fact for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330. Once the moving party has satisfied that initial burden, however, the nonmoving party then has a similar burden of showing that a genuine issue of fact remains for trial. Dresher v. Burt (1996), 75 Ohio St. 2d 280. If any doubts exist, the issue must be resolved in favor of the nonmoving party. Murphy v.Reynoldsburg (1992), 65 Ohio St. 3d 356, 358-59. Definition of a "Motor Vehicle" {¶ 6} Because this accident occurred in May 2001, we apply the law as it existed at that time. Then, R.C. 3937.18, the uninsured motorist statute, did not define the term "motor vehicle." {¶ 7} "The absence of a definition of `motor vehicles' in R.C. 3937.18 and conflicting definitions of the term elsewhere in the Revised Code and in dictionaries of general usage create an ambiguity as to the meaning of the term `motor vehicle' in this context. Ambiguity in a statute should be resolved by examining the legislative intent of the statute." Delli Bovi, Exr. v.Pacific Indemnity Co. (1999), 85 Ohio St. 3d 343, 345. In order to supply a definition for this statute, the Ohio Supreme Court ruled that the definition of "motor vehicle" as found in R.C.4511.01(B) applied to R.C. 3937.18 cases.1 Id. In its list of excluded vehicles, the statute does not mention a forklift. {¶ 8} At the time of the accident, R.C. 4511.01(B) defined a motor vehicle as: (B) "Motor vehicle" means every vehicle propelled or drawn bypower other than muscular power or power collected from overheadelectric trolley wires, except motorized bicycles, road rollers, traction engines, power shovels, power cranes, and other equipment used in construction work and not designed for or employed in general highway transportation, hole-digging machinery, well-drilling machinery, ditch-digging machinery, farm machinery, trailers used to transport agricultural produce or agricultural production materials between a local place of storage or supply and the farm when drawn or towed on a street or highway at a speed of twenty-five miles per hour or less, threshing machinery, hay-baling machinery, agricultural tractors and machinery used in the production of horticultural, floricultural, agricultural, and vegetable products, and trailers designed and used exclusively to transport a boat between a place of storage and a marina, or in and around a marina, when drawn or towed on a street or highway for a distance of no more than ten miles and at a speed of twenty-five miles per hour or less. (Emphasis added.) R.C. 4511.01(B). {¶ 9} When faced with the same question, the Tenth Appellate District held that a forklift qualified as a motor vehicle for the purpose of the uninsured motorists statute. Drake-Lassie v.State Farm Ins. Co. (1998), 129 Ohio App. 3d 781, 788. TheDrake-Lassie court stated: * * * applying the definition set forth in R.C. 4501.01, we find that the forklift that injured appellant falls within the definition of "motor vehicle." The vehicle operates on wheels and is propelled by power other than muscular power or power collected from an overhead electric trolley wire. The forklift does not fall within any of the exceptions set forth in the statute. Inasmuch as the forklift is a motor vehicle, pursuant toAdy the provision in State Farm's policy which seeks to exclude coverage because the forklift was designed mainly for use off public roads is invalid. Id. at 788. {¶ 13} However, as Judge Dreshler cautioned in his concurring opinion: We are left with a statute that does not literally include or exclude a forklift, but by other wording and case law interpretations, leads us to a conclusion that a forklift is a motor vehicle. The conclusion is compelled within the context of uninsured motorist coverage, which in my view was never contemplated to apply to forklifts. * * * In my opinion, the legislature should address with more preciseness the definition of motor vehicle in the context of uninsured motorist protection. Such an endeavor would benefit all litigants and trial courts in Ohio. Id. at 789-790. {¶ 14} In a subsequent decision, this court agreed that the forklift that was the subject in Drake could not have "qualified under the `other equipment used in construction' exception." Chase v. Westfield Insurance Co., Cuyahoga App. No. 80770, 2002-Ohio-5471, ¶ 25, appeal denied, 98 Ohio St. 3d 1479. In fact, "neither party claimed that the forklift constituted construction equipment * * *." As the Chase court noted, the question revolves around whether "a forklift fit[s] within any of the 14 exceptions to the definition of a motor vehicle." Id. Those exceptions include motorized bicycles, anything powered by muscle or by an electric overhead trolley wire, road rollers, traction engines, power shovels, power cranes, and otherconstruction equipment "not designed or employed in generalhighway construction." In Chase, this court emphasized that the statute applies that limitation only to construction equipment. A forklift is not used in highway construction: it is designed to move pallets of merchandise or equipment from one place to another in a warehouse. A forklift is not used in laying road bed, mixing concrete, rolling the road, or any other part of constructing a highway. It might be used to move construction items around in a warehouse or onto a truck, but it is no more used in construction than a grocery bag is used in cooking. {¶ 15} It is axiomatic that a court, in applying a statute, must take the statute at face value. The * * * court "must look to the statute itself to determine legislative intent, and if such intent is clearly expressed therein, the statute may notbe restricted, constricted, qualified, narrowed, enlarged or abridged; significance and effect should, if possible, be accorded to every word, phrase, sentence and part of an act, and in the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used."Weaver v. Edwin Shaw Hosp (2004), 104 Ohio St. 3d 390, ¶ 13, quoting Wachendorf v. Shaver (1948), 149 Ohio St. 231, paragraph five of the syllabus. {¶ 16} "In construing a statute, a court's paramount concern is the legislative intent in enacting the statute." State exrel. Richard v. Bd. of Trustees of Police Firemen's Disability Pension Fund (1994), 69 Ohio St. 3d 409, 411, 632 N.E.2d 1292,1295. To this end, we must first look to the statutory language and the "`purpose to be accomplished.'" Id. In assessing the language employed by the General Assembly, the court must take words at their usual, normal, or customary meaning. Id. at 412,632 N.E.2d at 1295. Most important, it is the court's duty to "give effect to the words used [and to refrain from] insertingwords not used." Id. Rice v. CertainTeed Corp (1999),84 Ohio St. 3d 417, 419, emphasis added. "Forklift" is not listed in the statute as one of the many exceptions articulated, nor does it fit under the broadly defined exception. We should, therefore, refrain from adding it to the statute. {¶ 17} The Ohio Supreme Court has, however, limited the definition of motor vehicles to land vehicles, specifically, vehicles that "can be used for transportation on the highway." Thus the Ohio Supreme Court, excluding a helicopter from coverage, held that "insurance providers may contractually limit UIM coverage to motorized land vehicles." Delli-Bovi v. PacificIndemnity Co. (1999), 85 Ohio St. 3d 343, 345-346, emphasis added. {¶ 18} The forklift in the case at bar differs from the helicopter excluded by the Supreme Court in Delli-Bovi: while not designed for highway use, a forklift nonetheless can be driven on a highway. In a multiple warehouse complex, a forklift can be driven from one warehouse to another on the same road cars and trucks travel. In Delli-Bovi, on the other hand, the excluded vehicle was a helicopter. While helicopters have the ability to travel in three dimensions, they cannot be driven on the road in the same manner as a car, truck, or forklift. We conclude, therefore, that in excluding a primarily air borne vehicle such as a helicopter, the Supreme Court was not opening the door to further exclude certain types of motorized land vehicles such as a forklift. {¶ 19} Although a subsequent version of the uninsured motorist statute did expressly exclude forklifts from the uninsured motorist statute, the law at the time of the accident in the case at bar occurred did not exclude a forklift as a motor vehicle. Therefore the statute required coverage for an accident involving a forklift that did not, as here, fit the statutory exceptions. Whether Insurers Can Further Narrow the Definition {¶ 20} Nor did the Ohio Supreme Court indicate that the insurance providers could place any limits beyond "motorized land vehicles." Allstate's policy, however, limited coverage to a narrower definition of a "motor vehicle": "a land motor vehicle designed for use on roads." The contract further contained another limitation under the definitions in the uninsured motorists section of the contract. A "`Motor Vehicle' means a land motor vehicle or trailer other than: (a) a vehicle or other equipment designed for use off public roads, while not on public roads * * *." {¶ 21} Ordinarily, the terms of a contract are found within the four corners of the document. When, as here, certain terms of the contract are statutorily mandated, however, the statute takes precedence over the contract. In interpreting a case involving a policy intended to exclude motorcycles, for example, from uninsured motorist coverage at the time this version of the statute was in effect, the Ohio Supreme Court ruled: {¶ 22} The law in Ohio is that "[a]ny contractual restriction on the coverage mandated by R.C. 3937.18 must comply with the purpose of this statute. * * *" Ady v. West American Ins. Co. (1982), 63 Ohio St. 2d 593, 23 O.O.3d 495, 433 N.E.2d 547, syllabus. In order to conclude that the exclusion in the present case complies with the purpose of R.C. 3937.18, one must determine that a motorcycle does not constitute a "motor vehicle" under the statute. Stated otherwise, if a motorcycle is indeed a motor vehicle, then R.C. 3937.18 is applicable to motorcycles. As such, a policy exclusion for motorcycles violates the mandates of R.C. 3937.18, and does not comport with the purpose of the statute. Horsley v. United Ohio Insurance Co. (1991),58 Ohio St. 3d 44, 45-46. {¶ 23} Similarly here, because R.C. 4511.01 and 4501.01 did not expressly exclude a forklift and because a forklift is not excluded under the statutory definition of a motor vehicle, the more restrictive language of the insurance contract cannot serve to limit the application of the contract to prevent coverage for a motor vehicle. See Metropolitan Property Liability Co. v.Kott (1980), 62 Ohio St. 2d 114, holding that a snowmobile is a motor vehicle pursuant to the statute. On the question of whether an insurer could limit coverage beyond the terms of the statute, the statute as it existed in 1980 remained the same at the time of Gibboney's accident. The Metropolitan case remained, therefore, good law at the time of the accident. Although five months later the legislature amended the statute to expressly allow insurers to contractually limit the meaning of "motor vehicle," the law as it existed at the time of Gibboney's injury required insurers to cover any vehicle meeting the statutory definition. {¶ 24} The trial court erred, therefore, in ruling that a forklift, in May 2001, was not a "motor vehicle" under the definition of the uninsured motorists statute. Insurers were, moreover, precluded at that time, from limiting that definition in their contracts. Other Owned Auto {¶ 25} The parties also raise a second issue: if the pallet truck/forklift does qualify as a motor vehicle under the statute, does Gibboney's regular use of those pallet truck/forklifts preclude coverage under the "other owned auto exclusion?" The insurance contract limits the definition of uninsured auto as follows: An Uninsured Auto Is Not: * * * a motor vehicle owned by, furnished to, or available for the regular use of the insured person * * *. Amendment of Policy Provisions-Ohio, at 12. {¶ 26} Allstate argues that pursuant to this provision Gibboney is not entitled to uninsured motorist coverage, because his insurance contract specifically excluded coverage for an injury incurred "when struck by a vehicle * * * available or furnished for the regular use of [the policy holder] * * * which is not insured for this coverage." According to Allstate, because Gibboney regularly used his employer's pallet truck/forklifts, the one that struck him was "furnished to, or available for" his "regular use." Allstate also argues that because Gibboney's job entailed operating whatever equipment his employer requested, including forklifts, the forklift that struck him qualifies as a vehicle furnished for his regular use. {¶ 27} Allstate proceeds to contradict its own assertion, however, when it states in its brief that "although he does not routinely operate lifts like the one that struck him, he is occasionally asked to do so." Appellee's Brief at 9. Allstate fails to explain how "occasionally" equates with "regular use" as specified in the policy. {¶ 28} In his deposition, Gibboney distinguished the difference between the vehicle that struck him and the one he has operated for twenty years: the vehicle that struck him was "not a high lift like I operate, it's more like a forklift." Deposition of John Gibboney at 14. Gibboney also emphasized that he operated forklifts of the type that injured him "[n]ot routinely, not at all — not at all routinely." Deposition at 15. He said that he is "occasionally" asked to operate a forklift. He also testified that the facility has over 100 lifts of various types, both high lifts and forklifts. Tr. 16. {¶ 29} Allstate presented no evidence to support its claim that the forklift that hit Gibboney was a vehicle he had ever operated, much less one that was furnished to or regularly available to him for his regular use. In fact, Allstate concedes that Gibboney does not routinely use or drive the type of forklift that hit him. The exclusion contained in the insurance contract, therefore, does not operate to preclude coverage for the forklift accident. {¶ 30} Moreover, because a forklift is properly considered a motor vehicle under the version of the statute in effect at the time of the accident, Gibboney is entitled to uninsured motorist coverage under his Allstate policy of insurance. The trial court erred, therefore, when it granted Allstate's motion for summary judgment and denied Gibboney's motion for summary judgment. {¶ 31} Accordingly, the judgment in favor of Allstate is reversed and the case remanded for entry of judgment in favor of Gibboney. 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 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. Colleen Conway Cooney, P.J. and Sean C. Gallagher, J., concur. 1 R.C. 4501.01 contains the same definition for "motor vehicle" with slight grammatical changes.

2016-07-06 06:36:13.960692+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment following a bench trial in the Ottawa County Court of Common Pleas. The court found that sellers of real property had fraudulently concealed the presence of a drainage easement through the land sold. In doing so, the court also concluded that the sellers had also breached their general warranty covenants. Because we conclude that the trial court's characterization of the drainage way as an easement was proper, we affirm that portion of its judgment. We reverse that portion of the trial court's judgment awarding punitive damages. {¶ 2} Appellees are Mark and Lori Schmiehausen. In the winter of 1997-98, appellees were looking for a wooded plot upon which to build a home. Appellees became aware that appellants, Donald and Erika Zimmerman, had a five acre wooded parcel of undeveloped land off Portage-South Road in Ottawa County's Salem Township for sale. {¶ 3} In January 1998, Mark Schmiehausen, accompanied by his father-in-law, met Donald Zimmerman to inspect the land The five-acre plot was located approximately 900 feet off Portage-South Road. According to Mark Schmiehausen's trial testimony, he was concerned about controlling development near his home. When he asked Zimmerman about the possibility of acquiring the additional five acres between the wooded lot and the road, Zimmerman suggested that appellees could divide the parcel, selling off lots to recoup the extra cost. {¶ 4} Appellees eventually purchased 12.44 acres from appellants for $52,000. The following year, appellees purchased from appellants an additional 15.9 adjoining acres. Both parcels were conveyed with "general warranty covenants." {¶ 5} Appellees broke ground for their own home and hired an engineering firm to draw plans for an eight-lot subdivision on the land they had acquired from appellants. Mark Schmiehausen testified that engineering drawings had been prepared and were ready to be submitted for approval when he was contacted by the owner of the adjoining property to the south, David Thierwechter. {¶ 6} Thierwechter told Schmiehausen of a 12-inch diameter drainage pipe buried diagonally across appellees' property. Thierwechter claimed a right-of-way across the property by virtue of an oral agreement with the owner of the property before appellants. The pipe had been in place, according to Thierwechter, since 1959. Moreover, Thierwechter reported, appellants were well aware of the pipe. {¶ 7} Discovery of the drainpipe across appellees' land precipitated a redesign of the subdivision plan, resulting in a delay and substantial cost to appellees. {¶ 8} On May 9, 2000, appellees sued appellants and David Thierwechter in the action that underlies this appeal. Appellees alleged that appellants willfully breached the covenants of the warranty deed. Appellees coupled a quiet title action directed to Thierwechter in their complaint. {¶ 9} Following discovery, appellants and appellees filed cross-motions for summary judgment. When the court denied both motions, the matter proceeded to a trial to the court. On the day the trial commenced, appellees reached an accommodation with Thierwechter who was dismissed from the suit. At the conclusion of the trial, the court found that appellants not only breached their warranty covenants, but knowingly concealed a material fact from appellees in the transaction. The court awarded appellees the damages they sought, punitive damages and attorney fees. {¶ 10} From this judgment, appellants now bring this appeal. Appellants set forth the following three assignments of error: {¶ 11} "1. The common pleas court erred in denying appellants' motion for summary judgment. {¶ 12} "2. The common pleas court's judgment is not supported by the facts and is contrary to law. {¶ 13} "3. The common pleas court erred in awarding punitive damages." Summary Judgment {¶ 14} In their first assignment of error, appellants insist that this matter should have never gone to trial because they should have prevailed on their motion for summary judgment. {¶ 15} On review, appellate courts employ the same standard for summary judgment as trial courts. Lorain Natl. Bank v.Saratoga Apts. (1989), 61 Ohio App. 3d 127, 129. The motion may be granted only when it is demonstrated {¶ 16} "* * * (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978),54 Ohio St. 2d 64, 67, Civ.R. 56(C). {¶ 17} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact.Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293. When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleading, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley v. Montgomery (1984), 11 Ohio St. 3d 75, 79. A "material" fact is one which would affect the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc. (1999),135 Ohio App. 3d 301, 304; Needham v. Provident Bank (1996),110 Ohio App. 3d 817, 826, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248. {¶ 18} Appellants maintain that they were entitled to summary judgment because, on the undisputed facts before the court at the time of the motion, appellees failed to demonstrate any breach of the general warranty deed. According to appellants, the only possible breach of the warranty deed would be that the property conveyed was not, "* * * free from all encumbrances * * *." R.C.5302.06. To avoid summary judgment on the breach issue, appellees must show that the land conveyed was encumbered. {¶ 19} At issue is the classification of the path of the pipe crossing appellees' property. If the pipeline exists by virtue of a license, such an interest is revocable at will. Rodefer v.Pittsburgh, Ohio Valley Cincinnati R.R. Co. (1905),72 Ohio St. 272, 281. A license does not constitute an encumbrance and would not violate the warranties of a general deed. Wilkins v.Irvine (1877), 33 Ohio St. 138, 145. If, however, the pipe crosses the property at issue under an easement granted by appellants' predecessor in interest or created in some other manner, such an easement is an encumbrance, see Ohio Edison v.Dessecker (1993), 89 Ohio App. 3d 164, 168, in violation of the general warranties. {¶ 20} Easements may be created by express grant, by implication, by prescription or by estoppel. Kamenar R.R.Salvage Co. v. Ohio Edison Co. (1992), 79 Ohio App. 3d 685, 689. For the creation of an express easement, there must be an agreement included in the language of the deed, lease or other instrument of conveyance and it must be recorded in conformity with R.C. 5301.01. Id. An easement by implication requires a unity, then severance of ownership of an estate. Id., citingCiski v. Wentworth (1930), 122 Ohio St. 487, paragraph one of the syllabus. It is apparent that the interest at issue is neither an express easement or an easement by implication. Easement by Estoppel {¶ 21} More to the point are the constructs of easement by estoppel and prescriptive easement. An easement by estoppel may be found when an owner of property misleads or causes another in any way to change the other's position to his or her prejudice.Monroe Bowling Lanes v. Woodsfield Livestock Sales (1969),17 Ohio App. 2d 146, 149. "Where an owner of land, without objection, permits another to expend money in reliance upon a supposed easement, when in justice and equity the former ought to have disclaimed his conflicting rights, he is estopped to deny the easement." Id. at 151. {¶ 22} A more modern, and slightly broader, statement of the doctrine is contained in Section 2.10(1) of the Restatement of Property: {¶ 23} "If injustice can be avoided only by establishment of a servitude, the owner or occupier of land is estopped to deny the existence of a servitude burdening the land when: {¶ 24} "(1) the owner or occupier permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the user did substantially change position in reasonable reliance on that belief * * *." Restatement of the Law, Property 3d (2000), 143. {¶ 25} According to the commentary accompanying Section 2.10(1), the rule, "* * * covers the situation where a land owner or occupier gives permission to another to use the land, but does not characterize the permission as an easement or profit, and does not expressly state the duration of the permission. {¶ 26} A servitude is established if the permission is given under such circumstances that the person who gives it should reasonably foresee that the recipient will substantially change position on the basis of that permission, believing that the permission is not revocable." Id. at 145. Prescriptive Easement {¶ 27} A prescriptive easement may be acquired if the use is open, notorious, continuous and adverse under a claim of right for 21 years. Shanks v. Floom (1955), 162 Ohio St. 479, syllabus. A party claiming the existence of a prescriptive easement has the burden of proving each element of the claim.Pennsylvania R.R. Co. v. Donovan (1924), 111 Ohio St. 341, paragraph one of the syllabus. {¶ 28} The principle source of controversy in most prescriptive easement cases is, as here, whether the use is "adverse." As we noted in Papesh v. Gem Boat Service, Inc. (Aug. 31, 1990), Ottawa App. No. OT-89-18, adverse use and claim of right are sometimes consolidated into the term "hostile." "Hostility," however, does not necessarily implicate a heated controversy or ill will. It is sufficient that the use be inconsistent with the rights of the owner and not subordinate or subservient to those rights. See Kimball v. Anderson (1932),125 Ohio St. 241, 244. "* * * Claim of right is referred to as a use without `let or hindrance.' This phrase has subsequently been interpreted to simply mean that the landowner did not somehow prevent the other party from using the property. If the owner does nothing to interrupt the usage of his property, but acquiesces thereto, then he is presumed to have agreed to the continued use of the property for that purpose. * * *" Papesh v.Gem Boat, supra. (Citations omitted.) {¶ 29} Nevertheless, "[a] permissive use can never ripen into a prescriptive easement. However, in order for a party to meet its burden of proving adverse use, it is not required to affirmatively disprove the existence of a grant of permission or neighborly accommodation given by the true owner of the property. A party claiming a prescriptive easement satisfies its burden by demonstrating a use which is inconsistent with the title owner's rights and not subordinate or subservient thereto. Use of property under a mistaken belief of ownership is sufficient to constitute an adverse use. Further, mere acquiescence by the property owner with knowledge of the use does not negate a claim for prescriptive easement; a permissive user is one who has been granted a license or permission in fact, whether expressly or by necessary implication." Gerstenslager v. Lloyd (Feb. 15, 1995), Summit App. No. 16814. (Citations omitted.) {¶ 30} There is a fine distinction between acquiescence of use (which can be prescriptive) and permissive use (which cannot be prescriptive). Moreover, judicial efforts to force equitable results through the "hostile" or "adverse" prism seem strained. See Shanks v. Floom, supra, at 484 and following cases. {¶ 31} One solution for this confusion is presented in the reformulation of the law of servitudes contained in the Restatement of Property. Section 2.16 states a rule for prescriptive servitudes: {¶ 32} "2.16 Servitudes Created by Prescription: Prescriptive Use {¶ 33} "A prescriptive use of land that meets the requirements set forth in § 2.17 {¶ 34} [open, notorious and continuous for the prescriptive period] creates a servitude. A prescriptive use is either {¶ 35} "(1) a use that is adverse to the owner of the land or the interest in land against which the servitude is claimed, or {¶ 36} "(2) a use that is made pursuant to the terms of an intended but imperfectly created servitude, or the enjoyment of the benefit of an intended but imperfectly created servitude." Restatement of the Law, Property 3d (2000), 221-222. {¶ 37} Comment (a) to the rule explains: {¶ 38} "Prescription operates in two distinct factual situations. In the first, a person begins using property without the consent or authority of the owner and acquires a servitude if the use continues for the prescriptive period and the other requirements of § 2.17 are met. In the second situation, people try to create a servitude but fail, initially because they do not fully articulate their intent or reduce their agreement to writing, or because they fail to comply with some other formal requirement imposed in the jurisdiction. If they proceed to act as though they have been successful in creating the servitude, and continue to do so for the prescriptive period, the servitude is created by prescription if the other requirements of § 2.17 are met. In this second situation, prescription performs a title-curing function. Observance of the terms of the servitude for the prescriptive period substitutes for compliance with the required formality because it provides satisfactory proof of the existence and terms of the servitude and resolves any doubts as to the parties' intent that may have been created by their failure to comply with the formality. {¶ 39} "Although this title-curing function of prescription has always been present in American servitudes law, the courts' and commentators' focus on statute-of-limitations theory has generated a vocabulary that tends to obscure it. Traditionally, prescriptive uses are described as necessarily hostile or adverse. To fit uses made pursuant to oral grants or other intended, but imperfectly created, servitudes within the hostile or adverse category, courts and commentators explain that the use derogates from the owner's title, or that the use is adverse because it can be made wrongful by revocation of the license created by the imperfect servitude. Although these explanations work most of the time, courts occasionally take the hostile requirement literally and reach the erroneous conclusion that use pursuant to an oral grant cannot give rise to a prescriptive right because it is not adverse." Id. at 222-223. {¶ 40} Although it would certainly simplify our analysis, we need not expressly adopt the Restatement view in this matter. On motion for summary judgment, the trial court had before it the deposition testimony of David Thierwechter who recounted the circumstances that led to his installation of the drainage pipe: {¶ 41} "A Harvey Gooderman was the owner of the property at that time, and he knew my plans and conceded to it. {¶ 42} "Q You just — {¶ 43} "A Added a little bit more, I think originally there was some kind of a tile in that prior to that, a smaller one, perfectly fine. {¶ 44} "Q So you talked to Mr. Gooderman about putting this drain tile across his property? {¶ 45} "A Oh, yes, with his blessing, he had a little bit and he wanted to add to it, he was very pleased. {¶ 46} "* * * {¶ 47} "Q You just wanted an easement across this property to drain yours? {¶ 48} "A I explained my problem, he was very nice about it, he said it would work out fine. {¶ 49} "Q Did you have to pay him for any rights to do that? {¶ 50} "A No. {¶ 51} "* * * {¶ 52} "Q Can I ask why you never put this in writing with Mr. Gooderman? {¶ 53} "A In those days they didn't do those things like they do today. It was not unusual to have it drain through your neighbors, he told me what to do, he said go ahead and do it, just take care of me." {¶ 54} Thierwechter testified that, following this exchange in 1959, he hired a contractor to install the 900 foot long drainage pipe across the land at issue. Certainly, under Restatement Section 2.16(2), this testimony would establish a prescriptive servitude. Moreover, we note that the burial of a 12 inch diameter pipe, 900 feet long, involves a not insubstantial cost. Applying either Restatement Section 2.10(1) or Ohio case law, an easement by estoppel was created by the transaction between Thierwechter and appellants' predecessor in interest. Given this, we cannot say that the trial court erred in denying appellants' motion for summary judgment. {¶ 55} Accordingly, appellants' first assignment of error is not well-taken. Sufficiency of Evidence {¶ 56} Appellees settled their quiet title claim with David Thierwechter on the morning of the trial. As a result, Thierwechter did not testify at trial. His deposition testimony was not admitted into evidence. {¶ 57} In their second assignment of error, appellants maintain that, absent the Thierwechter testimony, appellees failed to present evidence sufficient to establish an easement by implication, prescription or estoppel. Moreover, appellants insist, the trial court's judgment entry stated that appellees could have ignored the drain tile and have Thierwechter remove it is inconsistent with a finding of any easement. {¶ 58} Appellants cannot prevail on this assignment of error for a number of reasons. First, as we indicated in our decision on appellants' first assignment of error, it appears that appellees established an easement by estoppel using either the Restatement or Ohio common law formulation of that construct. Moreover, using the Restatement definition of a prescriptive easement, that encumbrance was established by appellees in summary judgment. For these reasons, we believe that the trial court should have issued a partial summary judgment to appellees at that point. {¶ 59} As far as the trial goes, Thierwechter's letter to appellees asserting a property interest was introduced into evidence, as well as testimony that the drainage pipe had been there since 1959. It was undisputed that the pipeline was open, notorious and continuous. Thierwechter's letter constitutes a claim of right and the testimony concerning the 1959 installation date establishes the 21 year prescriptive period. This is evidence which, if believed, establishes a prima facie claim of a prescriptive easement under any formulation. {¶ 60} Using the Restatement formulation, such evidence would be conclusive of the existence of a prescriptive easement. Under existing Ohio case law, the prima facie case may be negated by proof that the use was permissive. The proponent of the prescriptive easement, however, is not required to affirmatively disprove a grant of permission. Papesh v. Gem Boat Service,Inc., supra; Gerstenslager v. Lloyd, supra. The burden is on the party opposing the prescriptive easement to come forth with evidence that the use was permissive. See Goldberger v. BexleyProperties (1983), 5 Ohio St. 3d 82, 84; Gioia v. CardinalAmerican Corp. (1985), 23 Ohio App. 3d 33, 39. {¶ 61} In this matter, the only direct evidence in the case that might arguably be construed as proof of permissive use is contained in Thierwechter's deposition which was not admitted into evidence. Accordingly, appellants' second assignment of error is not well-taken. Punitive Damages {¶ 62} In their final assignment of error, appellants contend that the trial court erroneously awarded punitive damages. The parties agree that the applicable law in this matter is contained in R.C. 2315.21. In material part, that statute provides that punitive or exemplary damages may be awarded in a tort action when, {¶ 63} "* * * both of the following apply: {¶ 64} "(1) The actions or omissions of that defendant demonstrate malice, aggravated or egregious fraud, oppression, or insult, or that defendant as principal or master authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate. {¶ 65} "(2) The plaintiff in question has adduced proof of actual damages that resulted from actions or omissions * * *." {¶ 66} Evidence that a defendant knowingly concealed a material fact is sufficient to support a finding of fraud. SeeLogsdon v. Graham Ford Co. (1978), 54 Ohio St. 2d 336, 340. For exemplary or punitive damages to be awarded, however, there must be a properly supported finding that the aggrieved party's damages were the result of more than simple fraud. Id. at 339. The type of "aggravated or egregious" conduct necessary to support punitive or exemplary damages must be malicious, conspicuously bad, flagrant or outrageous. Romp v. Haig (1995),110 Ohio App. 3d 643, 646. "[T]he malice required for the award of punitive damages consists of `(1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.'" Id., quoting Preston v. Murty (1987), 32 Ohio St. 3d 334, syllabus. {¶ 67} The trial court addressed the egregiousness issue as follows: {¶ 68} "What was the aggravated nature of [appellants'] fraud? {¶ 69} "1.) [Appellants] knew of the presence of the 12-inch tile when they purchased the land and when they sold it to [appellees.] {¶ 70} "2.) [Appellants] were experienced in real estate transactions and [appellees] were not, and [appellants] knew [appellees] were young and inexperienced. {¶ 71} "3.) [Appellees] only wanted to purchase a limited residential parcel from [appellants] which was not encumbered by the 12-inch tile. {¶ 72} "4.) [Appellants] talked to [appellees] into buying the greater parcel totaling 28.5 acres knowing [appellees] could not afford it and encouraged [appellees] to subdivide the land in order to recoup the greater purchase price. {¶ 73} "5.) [Appellants] knew the 12-inch tile ran under the land to be subdivided. {¶ 74} "6. [Appellant] Donald L. Zimmerman was not a credible witness at trial." {¶ 75} As we must, we will not disturb a trial court's findings of fact if such findings are supported by competent credible evidence. C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, syllabus. In this matter, the court's findings are so supported. In considering the court's conclusion that these facts constitute an egregious form of fraud, however, we must note that it is also undisputed that it was appellee Mark Schmiehausen's father-in-law who first raised the possibility of purchasing extra land, not appellants. Moreover, while there was evidence that appellants knew of the presence of the 12-inch pipe, there was no evidence that appellants knew that the pipe constituted a significant hindrance to appellees' plans to subdivide the land {¶ 76} Even accepting the trial court's findings, we cannot agree that these findings support a conclusion that appellants' acts were motivated by actual malice. Neither can we conclude that appellants' conduct was grossly outrageous or flagrant. Accordingly, appellants' third assignment of error is well-taken. {¶ 77} On consideration whereof, the judgment of the Ottawa County Court of Common Pleas is affirmed, in part, and reversed, in part. This matter is remanded for further consideration consistent with this decision. Costs to be divided equally between appellants and appellees. Judgment affirmed, in part, and reversed, in part. 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. Pietrykowski, J., Singer, J. concur. Lanzinger, J., dissents in part and concurs in part.

2016-07-06 06:36:14.138586+00

JOURNAL ENTRY AND OPINION Defendant Michael Bryant appeals from his convictions for two counts of drug possession, one of which included a major drug offender specification, possession of criminal tools, and trafficking in cocaine. For the reasons set forth below, we affirm. On October 8, 1997, defendant was indicted for one count of drug possession and one count of possession of criminal tools (money and pager). The indictment was issued in connection with a search warrant executed at defendant's home on September 4, 1997. The matter proceeded to trial on May 11, 1998. A mistrial was declared in connection with a response elicited during defendant's trial counsel's questioning of one of the state's witnesses. Thereafter, on June 19, 1998, defendant was re-indicted in the same matter. The new indictment contained major drug offender and firearm specifications, an additional count of trafficking in crack cocaine, and also listed a firearm within the charge of possession of criminal tools. Defendant's trial court asserted that the new charges were materially different from the original charges and moved for a continuance. The trial court denied the motion and the matter proceeded to trial on July 13, 1998. Defendant was ultimately convicted of possession of drugs with the major drug offender specification pursuant to the first count of the indictment, guilty of possession of drugs pursuant to the second count of the indictment, guilty of possession of criminal tools and guilty of trafficking in cocaine. Defendant now appeals and assigns four errors for our review. Defendant's first assignment of error states: APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE TRIAL COURT DENIED DEFENDANT'S MOTION TO CONTINUE THE TRIAL DATE AND THE TRIAL WENT FORWARD THREE DAYS AFTER DEFENDANT'S ARRAIGNMENT ON NEW AND ENHANCED CHARGES. Within this assignment of error, defendant asserts that the trial court abused its discretion in refusing to grant a continuance of this matter after he was re-indicted for additional charges. A trial court is given broad discretion in deciding whether or not to grant a continuance of trial proceedings. State v. Unger (1981), 67 Ohio St. 2d 65, syllabus. In this instance, the matter was originally scheduled for trial on May 11, 1998. Trial commenced but a mistrial was later declared as a result of a response which was elicited during defendant's trial counsel's cross-examination of one of the state's witnesses. Thereafter, on June 17, 1998, defendant was re-indicted to include major drug offender and firearm specifications and an additional charge of drug trafficking. The matter was set for trial on July 13, 1998. Defendant's trial counsel requested a continuance in order to prepare a defense to the new charges. The trial court denied the motion for a continuance, recalling that at the conclusion of the aborted May trial, counsel was advised by the prosecuting attorney in the presence of the court, that defendant would be re-indicted with the new charges. (Tr. 6, 26). Although defendant's present counsel disputes this version of the events, defendant's trial counsel neither confirmed nor denied for the trial court that this discussion occurred. We find no basis for refuting the trial court's recollection of these events. In any event, defendant's trial counsel was clearly able to proceed and did proceed upon the first indictment approximately six weeks earlier. Although the amended indictment does now contain the major drug offender specification, this specification focuses upon the amounts of drugs which were recovered and the amounts were clearly disclosed at the start of the first trial. Similarly. although a firearm specification was added in the amended indictment, it was disclosed prior to the start of the first trial that a firearm was recovered in connection with the execution of the search warrant. We conclude that the trial court did not abuse its discretion in denying the motion for a continuance. AccordState v. Staples (1993), 88 Ohio App. 3d 359, 363. The first assignment of error lacks merit. Defendant's second assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN THE JURY WAS ADVISED THAT THE GRAND JURY DETERMINED THAT THE DEFENDANT WAS A "MAJOR DRUG DEALER" AND PERMITTED THE JURY TO DELIBERATE ON WHETHER THE DEFENDANT WAS A "MAJOR DRUG OFFENDER" IN VIOLATION OF R.C. 2941.1410. Within this assignment of error, defendant maintains that the trial courts remark that defendant was charged with a major drug dealer specification deprived him of a fair trial. Pursuant to R.C. 2929.14, if a court imposing a sentence upon an offender for a felony finds that the offender is guilty of a major drug dealer specification, the court shall impose a ten-year prison term. R.C. 2941.1410, the major drug dealer specification, provides in relevant part as follows: (A) The determination by a court that an offender is a major drug offender is precluded unless the indictment, count in the indictment, or information charging the offender specifies that the offender is a major drug offender. The specification shall be stated at the end of the body of the indictment, count, or information, and shall be stated in substantially the following form: "SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors (or insert the person's or prosecuting attorney's name when appropriate) further find and specify that (set forth that the offender is a major drug offender)." (B) The court shall determine the issue of whether an offender is a major drug offender. Thus, the correct practice is for the underlying charges to be determined first and, if there is a finding of guilty to the possession charge, the issue of defendant's guilt on this specification is to be addressed at a later time. In this instance, the court briefly mentioned that defendant had been charged with the major drug offender specification in her opening remarks. (Tr. 28). She then instructed the jury that it was to determine whether the charges were supported beyond a reasonable doubt. (Tr. 29). The court later reiterated that the indictment was not evidence, that the defendant was presumed innocent, (Tr. 37-38) and that it was required to base its decision solely upon the law given to them. (Tr. 180-181). The trial court did not instruct the jury upon the specification, however, and most importantly, the verdict forms did not contain any provision for the jury to decide whether defendant was a major drug offender. Moreover, the jury was instructed that the remarks were not evidence (Tr. 181, 655) and that the indictment was not evidence. (Tr. 655). We are therefore unable to conclude that the brief references to this portion of the indictment had any effect upon the outcome of this matter. The second assignment of error is without merit. Defendant's third assignment of error states: THE TRIAL COURT ERRED BY ADMITTING STATE'S EXHIBIT 15 (THE SEARCH WARRANT AND AFFIDAVIT) WHICH CONTAINED PREJUDICIAL HEARSAY REFERENCING UNCHARGED CRIMINAL CONDUCT AND BY ADMITTING OTHER PREJUDICIAL HEARSAY. Defendant next contends that the trial court erred in permitting the search warrant to be introduced into evidence in this matter. The invited error doctrine prohibits a party who induces error in the trial court from taking advantage of such error on appeal.State v. Woodruff (1983), 10 Ohio App. 3d 326, 327. In this instance, defendant's trial counsel endeavored to impeach Det. Zonar with the following question: The search warrant you got, because of this confidential reliable informant that you swore to and got a judge to sign? (Tr. 399). Defendant's trial counsel also asked Zonar whether his representations to the judge resulted in the issuance of the search warrant. (Tr. 378). The state then sought introduction of the search warrant in order to demonstrate the additional grounds asserted in the affidavit for the search warrant. Therefore, because defendant's attorney did not accurately represent the manner in which the search warrant was obtained, the state was entitled to provide the jury with the actual allegations upon which the search warrant was obtained and defendant cannot assign as error the fact that hearsay was ultimately introduced by the state as rebuttal. State v. Jones (1996), 114 Ohio App. 3d 306, 322. In any event, prior to introduction of this exhibit, defendant's trial counsel outlined the contents of the search warrant during her cross-examination of Det. Zonar. (Tr. 400) The third assignment of error is without merit. Defendant's fourth assignment of error states: THE TRIAL COURT ERRED IN EXCLUDING TESTIMONY THAT LAFAYETTE HARRIS HAD ADMITTED OWNERSHIP OF THE DRUGS FOUND AT APPELLANT'S RESIDENCE. Finally, defendant asserts that the trial court erred in refusing to permit his mother and Gregory Crayton to testify that Lafayette Harris, a homeless man who stayed at defendant's apartment (and invoked his Fifth Amendment rights at the trial) stated that the drugs were his. Apart from the issue of whether Crayton would violate a privilege in connection with his relationship with Harris, there were, in our view, insufficient corroborating circumstances to indicate that the statement was trustworthy. Evid.R. 804(B)(3);State v. Sumlin (1994), 69 Ohio St. 3d 105, 108; State v. Branham (1995), 104 Ohio App. 3d 355, 359. In any event, we note that defendant did in fact elicit from Det. Zonar that Lafayette Harris had admitted ownership of the drugs and that Harris was, at the time of trial, in jail and awaiting sentencing on charges of drug possession. (Tr. 395) Additionally, defendant's mother was permitted to testify at length that Harris apologized to her for messing up their lives and bringing drugs into their house. (Tr. 471-478). Accordingly, the trial court's failure to allow defendant's mother to testify to the admission of possession was not prejudicial. This assignment of error is without merit. The judgment of the trial court is 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. PATTON, J., AND CORRIGAN, J., CONCUR. ______________________________ ADMINISTRATIVE JUDGE ANN DYKE

2016-07-06 06:36:14.215384+00

OPINION {¶ 1} Appellant West American Insurance Group appeals the August 6, 2004, and September 27, 2004, decisions of the Licking County Court of Common Pleas granting summary judgment in favor of Appellees. STATEMENT OF THE FACTS AND CASE {¶ 2} Appellant, West American Insurance Group (West American), was the insurer of Heath Restaurant Corp. d.b.a. Indian Mound Smorgasbord (Indian Mound). In July and August, 2000, eggs were delivered to Indian Mound by Appellee Spring Poultry. Spring Poultry had purchased said eggs from Appellee Weaver Brothers which had purchased the eggs from Appellee Hemmelgarn Sons, Inc., who had purchased the eggs from Appellee William R. Siefring, an individual sole proprietor doing business as S R Eggs, which was under contract with Appellee Ft. Recovery Equity, Inc. to produce the eggs. {¶ 3} The purchased eggs were used as an ingredient in ice cream prepared by Indian Mound, said ice cream recipe calling for eighteen eggs. None of the ingredients, including the eggs, were cooked prior to serving the ice cream. The ice cream was consumed by Indian Mound's guests, some of whom became ill as a result of salmonella bacteria allegedly being present in the eggs. {¶ 4} An investigation was conducted by the Licking County Health Department (LCDH) following the outbreak. LCDH determined that the most likely source of the salmonella poisoning was raw eggs used in preparation of soft-serve ice cream. As part of its investigation, LCDH learned that Indian Mound personnel had not pasteurized the raw eggs in violation of R.C. § 917.10. {¶ 5} The Ohio Department of Agriculture (ODA) also investigated this matter. The first investigation was conducted by the ODA Division of Food Safety which included basic facts as to the production, handling and sale of the eggs. This investigation determined that Siefring produced the eggs at his facility, sold them to Ft. Recovery which sold them to Hemmelgarn which sold them to Weaver Brothers which sold them to Springfield Poultry which sold them to Indian Mound. {¶ 6} The second investigation was done by ODA Division of Animal Health which inspected the Siefring laying barns and determined that salmonella bacteria was present in three of the six laying barns. {¶ 7} As a result of the salmonella poisoning experienced by the Indian Mound patrons, West American paid 73 claims totaling $239,561.00. {¶ 8} West American filed a Complaint in the Licking County Court of Common Pleas seeking contribution under R.C. § 2307.31 from the producers and sellers of the eggs as joint tortfeasors. {¶ 9} Motions for summary judgment were filed by Appellees Springfield Poultry, Weaver Brothers, Ft. Recovery Equity and Siefring. Appellee Hemmelgarn did not file a motion for summary judgment. {¶ 10} Appellant West American filed motions in opposition to the various motions for summary judgment but failed to specifically oppose the motion for summary judgment of Appellee Siefring. {¶ 11} Directing the trial court's attention to the lack of opposition to its motion, Appellee Siefring forwarded a proposed "default" summary judgment entry to the trial court requesting same be signed and filed. The trial court filed said Entry on August 3, 2004. {¶ 12} Appellant filed a motion to set aside this default summary judgment but same has not been ruled upon. {¶ 13} On September 23, 2004, the trial court granted the motions for summary judgment of Appellees Springfield Poultry, Weaver Brothers, Ft. Recovery and Siefring. {¶ 14} It is from these decisions Appellant now appeals, assigning the following sole error for review: ASSIGNMENT OF ERROR {¶ 15} "I. The trial court erred in granting summary judgment in favor of Springfield Poultry, Weaver Brothers, Ft. Recovery Equity and Siefret [sic]." I. {¶ 16} In its sole assignment of error, Appellant contends the trial court erred in granting summary judgment in favor of Appellees. We disagree. {¶ 17} "Summary Judgment Standard" {¶ 18} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987),30 Ohio St. 3d 35, 36. Civ.R. 56(C) provides, in pertinent part: {¶ 19} "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor." {¶ 20} Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 Ohio St. 3d 421, 429, 1997-Ohio-259, citingDresher v. Burt, 75 Ohio St. 3d 280, 1996-Ohio-107. {¶ 21} It is based upon this standard that we review appellant's assignments of error. {¶ 22} As stated above, Appellant argues that it is entitled to contribution under R.C. § 2307.31, now codified as R.C. § 2307.25, which states in relevant part: {¶ 23} "Right of contribution; settlements; subrogation; indemnity {¶ 24} "(A) Except as otherwise provided in sections 2307.25 to 2307.28 of the Revised Code, if one or more persons are jointly and severally liable in tort for the same injury or loss to person or property or for the same wrongful death, there may be a right of contribution even though judgment has not been recovered against all or any of them. The right of contribution exists only in favor of a tortfeasor who has paid more than that tortfeasor's proportionate share of the common liability, and that tortfeasor's total recovery is limited to the amount paid by that tortfeasor in excess of that tortfeasor's proportionate share. No tortfeasor may be compelled to make contribution beyond that tortfeasor's own proportionate share of the common liability. There is no right of contribution in favor of any tortfeasor against whom an intentional tort claim has been alleged and established. {¶ 25} "(B) A tortfeasor who enters into a settlement with a claimant is not entitled to contribution from another tortfeasor whose liability for the injury or loss to person or property or the wrongful death is not extinguished by the settlement, or in respect to any amount paid in a settlement that is in excess of what is reasonable. {¶ 26} "(C) A liability insurer that by payment has discharged in full or in part the liability of a tortfeasor and has discharged in full by the payment its obligation as insurer is subrogated to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor's proportionate share of the common liability. This division does not limit or impair any right of subrogation arising from any other relationship. {¶ 27} "(D) This section does not impair any right of indemnity under existing law. If one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of the indemnity obligation. {¶ 28} * * * {¶ 29} "(F) The proportionate shares of tortfeasors in the common liability shall be based upon their relative degrees of legal responsibility. If equity requires the collective liability of some as a group, the group shall constitute a single share, and principles of equity applicable to contribution generally shall apply. {¶ 30} "(G) Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or loss to person or property or for the same wrongful death, contribution may be enforced by separate action. {¶ 31} Appellant argues that Appellees sold it adulterated food, i.e. eggs containing salmonella bacteria, which it then used to make another adulterated food, i.e. the soft-serve ice cream, thereby making them joint tortfeasors. The sale of adulterated food is prohibited by R.C. §3715.52, which states in relevant part: {¶ 32} "R.C. § 3715.52 Prohibitions {¶ 33} "(A) The following acts and causing them are prohibited: {¶ 34} "(1) The manufacture, sale, or delivery, holding or offering for sale of any food, drug, device, or cosmetic that is adulterated or misbranded; {¶ 35} "(2) The adulteration or misbranding of any food, drug, device, or cosmetic;" {¶ 36} The Revised Code defines "adulterated food" as follows: {¶ 37} "R.C. § 3715.59 Adulterated food {¶ 38} "Food is adulterated within the meaning of sections 3715.01,3715.02, 3715.022, and 3715.52 to 3715.72 of the Revised Code, if any of the following apply: {¶ 39} "(A) It bears or contains any poisonous or deleterious substance that may render it injurious to health; but in case the substance is not an added substance, the food shall not be considered adulterated if the quantity of the substance in the food does not ordinarily render it injurious to health. {¶ 40} "(B) It bears or contains any added poisonous or added deleterious substance that is unsafe within the meaning of section 3715.62 of the Revised Code. {¶ 41} "(C) It consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food. {¶ 42} "(D) It has been produced, processed, prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health. {¶ 43} "(E) It is the product of a diseased animal or an animal that has died otherwise than by slaughter, or an animal that has been fed upon the uncooked offal from a slaughterhouse. {¶ 44} "* * *" {¶ 45} It is undisputed that had Indian Mound pasteurized the eggs, as required by R.C. § 917.10,1 the salmonella bacteria would have been destroyed. {¶ 46} The trial court, in its September 27, 2004, Memorandum of Decision and Judgment Entry, held: {¶ 47} "This Court finds disputed issues of fact surrounding the classification of raw shelled eggs containing salmonella as adulterated food. Further, the Court does not agree with the Plaintiff's conclusionMassey v. Riser Foods, Inc. (unreported) 9th Dist. C.A. NO. 98CA007260. is dispositive of the issue of adulteration. {¶ 48} "Notwithstanding, these disputed issues, they are immaterial, and Summary Judgment is appropriate under the circumstances before the Court. Assuming, arguendo, the eggs constituted adulterated food, it isundisputed the salmonella outbreak would not have occurred had IndianMound properly prepared the eggs for consumption. (Emphasis added). In the case of Portage Markets Co. v. George (1924), 111 Ohio St. 775, the Supreme Court held, in the second paragraph of the syllabus, as follows: "The violation of the pure food laws of this state by the sale of unwholesome meat is negligence per se, and may be the basis of recovery for damages by the user of said unwholesome meat, who suffers injury proximately resulting therefrom, provided the user is not himself guilty of negligence in the care, preparation, cooking, or in any other manner which contributes directly to his injury." {¶ 49} "This Court finds the undisputed facts in the present action can only lead to the conclusion that Indian Mound, the user of the allegedly adulterated food, was negligent in the care, preparation, and cooking of the eggs which directly contributed to the salmonella outbreak and financial injury to Plaintiffs. Therefore, pursuant to the holding inPortage Markets, the Plaintiffs are precluded from recovery." {¶ 50} Upon review, we find that the failure of Indian Mound to pasteurize the eggs was the proximate cause of Appellant's injuries and/or damages. We therefore find that the trial court did not err in granting summary judgment in favor of Appellees. {¶ 51} Appellant's sole assignment of error is overruled. {¶ 52} The decision of the Licking County Court of Common Pleas is affirmed. Boggins, P.J. Hoffman, J. and Farmer, J. concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Licking, Ohio, is affirmed. Costs assessed to Appellant. 1 917.10 Frozen desserts (A) A person who manufactures frozen desserts for sale shall use in the manufacturing only mixtures in which the dairy products, eggs, and any other ingredient specified by the director of agriculture have been pasteurized in accordance with rules governing pasteurization adopted under section 917.02 of the Revised Code. Except as provided in division (B) of this section, pasteurization shall occur at the milk plant where retail packaging occurs. Repasteurization is not required at a retail establishment.

2016-07-06 06:36:14.359637+00

OPINION {¶ 1} Plaintiff-appellant Brady Inman, III appeals from the July 27, 2005, Judgment Entry of the Delaware County Court of Common Pleas affirming the Magistrate's Decision. STATEMENT OF THE FACTS AND CASE {¶ 2} On May 3, 2004, appellant Brady Inman, III filed a complaint against appellee Tina Baker in the Delaware County Court of Common Pleas. Appellant, in count one of his complaint, alleged that between March 14, 2003, and March 21, 2003, appellee induced appellant to transfer $17,520.00 to her to pay her personal expenses "in reliance upon her [appellee's] representations that their personal relationship would improve if she did not have financial problems and should their relationship not succeed, she would repay him the funds." Appellant further alleged, in count one, that appellee, between March 21, 2003, and August 7, 2003, obtained $160.00 from appellant without his knowledge or consent. With respect to count one, appellant demanded judgment against appellee in the amount of $17,680.00. {¶ 3} In count two of his complaint, appellant alleged that, in February and March of 2003, he was fraudulently induced to transfer a total of $17,520.00 to appellee based on appellee's representations that her financial pressures affected their relationship and that "relief of such pressures would eliminate the stresses in their relationship and would make a permanent relationship between them possible." While appellant, in count three of his complaint, alleged that appellee had made representations to him for the purposes of obtaining funds and that he received no value in exchange for the funds, appellant's fourth cause of action was for declaratory judgment. Appellant, in count four specifically sought a judgment from the trial court that the within civil case did not constitute a violation of a civil protection order issued in another case barring contact between appellant and appellee for a period of five years. {¶ 4} On June 11, 2004, appellee filed an answer and counterclaim. Appellee, in her counterclaim, alleged that appellant was unjustly enriched. Appellee specifically alleged that appellant had cohabited with her in her home from January of 1999 through June of 2003 and that, since appellant was unemployed in 1999, 2000 and 2001, appellee paid in excess of $25,000.00 towards appellant's living expenses during 1999 through 2002. Appellee further alleged that appellant had agreed to repay such money and had breached such contract and that such money was a loan. {¶ 5} A trial before a Magistrate was held on January 27, 2005. The following testimony was adduced at the trial. {¶ 6} Appellant and appellee began cohabitating in late 1997. In February of 2002, the two separated and then reconciled again in May of 2002, before separating again in November of 2002. Appellant then moved back into appellee's house again in February of 2003. {¶ 7} At trial, appellant testified that he had dinner with appellee on May 30, 2003, and that the two decided to permanently terminate their romantic relationship at that time. According to appellant, several months earlier, he had agreed to loan appellee $17,500.00 to pay off her credit card debt for purpose of making their relationship better. Appellant testified that, on May 30, 2003, appellee "said there was no problem with that; she would pay it to me as soon as possible, even if it was necessary for her to refinance her house." Transcript at 9. Appellant testified that he was expecting to have his money repaid within three months. {¶ 8} Appellant further testified that, in mid-August of 2003, when he asked appellee about the debt, she told him that she was not in a position to repay the same at such time. The following is an excerpt from appellant's trial testimony: {¶ 9} ". . . And November — no, October, about the second week of October, I called her and I asked her to repay the debt. She said she would have to look at her finances to see if she was capable at that time of doing that. I asked her how long that period of time might be. I think she indicated it would be a couple of weeks. After a couple of weeks, I had no contact with her. I began calling. I finally did get in touch with her. She indicated that she didn't want to talk about it; she had sent me an e-mail that would tell me what her decision about the debt was. . . . {¶ 10} "A. At the time that we talked in October, Tina had indicated that she had sent this e-mail. I explained to her that I was not living at my mother's house. My computer was in storage; I did not have access to an e-mail. She insisted that it was in the e-mail; I insisted that she tell me what her decision was. She finally indicated that she was not going to repay the debt and that everything was detailed in the e-mail and she cut the conversation off. {¶ 11} "Sometime later, I got my computer put together and I drew the e-mail, but I was unable because I didn't have the capability of getting the spread sheet that is attached. The spread sheet was actually pulled up sometime later when I was able to get the program that the spread sheet was written in. But basically, that was the reason for my believing that there was definitely a promise to pay and definitely an intent on her part to pay originally until for whatever reason, she decided she didn't want to pay." Transcript at 10-11. {¶ 12} Appellee, in her October 22, 2003, e-mail to appellant, which was admitted into evidence at trial, stated, in relevant part, as follows: {¶ 13} "After reviewing this [spreadsheet], you should consider yourself lucky, and this does not take into account the cell phone, which cost me $65.00 per month! I supported you for 36 months from July 1999 to May 2002 and the whole time I defended you to my friends, and my family, time and time again. But I was willing to give you a break, because I felt sorry for you. As six months turned into a year and then two years and finally three — I realized you were doing nothing more than taking advantage of the situation. And the icing on the cake, you were taping my conversations, breaking into my house and who knows what other illegal activities. You make me so angry, I can't believe I let you back into my life last spring, but in doing so — I found out what kind of person you really are and I don't want anything to do with you so — walk away and leave me alone." {¶ 14} On cross-examination, appellant admitted that there was no written agreement or any other type of written documentation memorializing appellee's alleged agreement to repay the money to him. {¶ 15} At the conclusion of appellant's testimony, the trial court dismissed count three of appellant's complaint (fraud) while count four (declaratory judgment) was withdrawn by appellant. {¶ 16} Appellee was the only other witness to testify at trial. Appellee testified that, in 2003, she opened a joint savings account with appellant using a cashier's check from appellant1 and that, in March of 2003, funds were withdrawn from such account and transferred into appellee's checking account to pay off the parties' joint credit card debt. She further testified that she used credit cards to pay for appellant's living expenses since appellant was unemployed during much of their relationship. The following testimony was adduced when appellee was asked whether appellant ever indicated that the funds withdrawn from the parties' joint savings account in March of 2003 were to be used for anything other than paying for credit card debt that the two had incurred while living together: {¶ 17} "Q. Were there any conditions, either explicit or implied upon the removal of those funds in the savings account? {¶ 18} "A. No, there was not. {¶ 19} "Q. Did you ever promise to repay the plaintiff or pay the plaintiff for any of those funds? {¶ 20} "A. No, I did not. {¶ 21} "Q. With regards to that, was there ever — there was earlier some testimony by the plaintiff that there was an agreement between the two of you. Was there ever any kind of writing that was done to memoralize anything with regards to the funds in March of '04? [sic] {¶ 22} "A. No, there was not." Transcript at 62-63. Appellee further testified that she never made any oral promise on May 30, 2003, to repay appellant. {¶ 23} On cross-examination, appellant attempted to impeach appellee with her transcript testimony from another case, which was a civil protection case. The following is an excerpt from the January 27, 2005, trial: {¶ 24} "Q. Okay. Do you recall we were here about 15 months ago on your request for a civil protection order? {¶ 25} "A. Correct. {¶ 26} "Q. And you testified on that date, my question to you, `and in the course of your terminating this relationship you agreed to repay the money to Brady; didn't you?' Page 39, you said — you answered, `I agreed to look at my finances and see if I could.' {¶ 27} "THE COURT: Are you reading a transcript? {¶ 28} "MR. SAKER: The transcript was filed in the court's file in the civil protection case." Transcript at 69-70. The Magistrate sustained appellee's objection to such testimony since the transcript from the civil protection case was not filed in the case sub judice. {¶ 29} At the conclusion of the trial, the Magistrate stated, in relevant part, as follows: {¶ 30} "As it relates to the complaint on behalf of Mr. Inman, I find that the evidence fails to prove that there was any type of agreement between the parties that this money was a loan to be repaid. Specifically, there was no loan documents, such as a note signed by the parties; there was nothing in writing and signed by the parties to clarify what this was. I also find it inconsistent that the actions are consistent with it being a loan and I don't understand why the plaintiff would loan his basically, only remaining asset to someone that he had an unstable relationship with, I believe the testimony was, this was the third reconciliation without written documentation as to what this was exactly. So I don't find a promise; I don't find any mutual agreement. This is also in a joint account. So I find nothing in the evidence that leads me to the conclusion that this was a loan. So as far as the plaintiff's claims, Mr. Inman, those are denied." Transcript at 83-84. A Magistrate's Decision was filed on February 14, 2005. The Magistrate, in her decision, recommended that judgment be granted in favor of appellee and that appellant's complaint be dismissed. With respect to appellee's counterclaim the Magistrate further recommended that judgment be granted in favor of appellant and the counterclaim be dismissed. {¶ 31} On February 28, 2005, appellant filed objections to the Magistrate's Decision. Appellant, in his objections, argued that the evidence that he presented at trial established all of the elements of his claim for detrimental reliance/promissory estoppel and his claim that the funds appellee obtained from him were a loan that appellee promised to repay. Appellant further argued that the Magistrate erred in excluding appellee's transcript testimony from the civil protection case. {¶ 32} As memorialized in a Judgment Entry filed on July 27, 2005, the trial court overruled appellant's objections and affirmed the Magistrate's February 14, 2005, Decision. {¶ 33} Appellant now raises the following assignments of error on appeal: {¶ 34} "I. THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE'S REPORT. {¶ 35} "II. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S COMPLAINT." I, II {¶ 36} Appellant, in his two assignments of error, argues that the trial court erred in adopting the Magistrate's Decision and in dismissing appellant's complaint. We disagree. {¶ 37} Appellant initially argues that, at the trial in this matter, he established all of the elements of his claim for detrimental reliance/promissory estoppel. {¶ 38} The Ohio Supreme Court has adopted the doctrine of promissory estoppel that was set forth in the Restatement of the Law 2d, Contracts (1981), Section 90: "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." See Ed Schory Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St. 3d 433, 439,662 N.E.2d 1074, 1996-Ohio-1074. To be successful on a claim of promissory estoppel, "[t]he party claiming the estoppel must have relied on conduct of an adversary in such a manner as to change his position for the worse and that reliance must have been reasonable in that the party claiming estoppel did not know and could not have known that its adversary's conduct was misleading." Ohio State Bd. of Pharmacy v. Frantz (1990),51 Ohio St. 3d 143, 145, 555 N.E.2d 630. {¶ 39} Appellant, in the case sub judice, argues that there was sufficient evidence, based on his testimony and the e-mail sent to him by appellee, which is cited above, that he loaned money to appellee in reliance on her promise to repay the same and that he was damaged as a result. Appellant further argues that he loaned such money to appellee with the understanding that, by alleviating appellee's financial problems, their personal relationship would improve. {¶ 40} However, at the trial in the matter, appellee denied that she ever agreed to repay the money to appellant. While appellant argues that appellee was not credible, we note that the Magistrate, as trier of fact, was in the best position to assess appellee's credibility. See, for example, Ciesielczyk v. Ogg, Stark App. No. 2000CA00359, 2001 WL 967896. Cleary, the Magistrate found appellee to be more credible than appellant. Furthermore, we note that there was no written note or any other type of documentation between the parties establishing that appellant loaned the money to appellee and that appellee agreed to pay the same. As noted by the trial court in its July 27, 2005, Judgment Entry, the e-mail from appellee to appellant "does not contain any admission by the Defendant [appellee] that she agreed to a `loan.'" {¶ 41} Appellant further argues that he produced sufficient probative evidence in support of his claim that he loaned appellee the money. Appellant contends that his own testimony, coupled with appellee's own admissions in her e-mail constitute sufficient probative evidence. {¶ 42} However, we concur with the trial court that appellant failed to meet his burden of proof on such issue since there is no evidence corroborating appellant's testimony, which was contradicted by appellee, that the parties intended the money to be a loan. While appellant takes issue with the trial court's finding that the Magistrate's decision not to allow the introduction of the transcript from the parties' civil protection case was harmless error, we disagree. As noted by the trial court, appellant's counsel was able to question appellee from the transcript of the civil protection hearing "where the Defendant stated that she "AGREED TO LOOK" at her finances, and see if she could repay." We further concur with the trial court that the fact that appellee agreed to look at her finances to see if she could repay appellant was not the same as acknowledging that the money was, in fact, a loan. {¶ 43} Based on the foregoing, we find that the trial court did not err in adopting the Magistrate's Decision and in dismissing appellant's complaint. We concur with the trial court's finding that appellant failed to establish all of the necessary elements for his claim of detrimental reliance/promissory estoppel and his claim that the money appellee received from him was intended to be a loan. {¶ 44} Accordingly, the judgment of the Delaware County Court of Common Pleas is affirmed. By: Edwards, J. Gwin, P.J. and Boggins, J. concur JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed to appellant. 1 Appellant, on cross-examination, testified that he deposited $28,500.00 from a settlement that he had received into the joint savings account.

2016-07-06 06:36:14.530665+00

OPINION {¶ 1} Shawn Boczar appeals his convictions for Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs and Receiving Stolen Property in the Ashtabula County Court of Common Pleas. For the following reasons, we affirm Boczar's convictions. {¶ 2} On August 4, 2006, Boczar was indicted by the Ashtabula County Grand Jury on one count of Illegal Manufacture of Drugs, a felony of the second degree in violation of R.C. 2925.04, two counts of Illegal Assembly or Possession of Chemicals for *Page 2 the Manufacture of Drugs, felonies of the third degree in violation of R.C. 2925.041, one count of Trafficking in Methamphetamine, a felony of the fourth degree in violation of R.C. 2925.03, one count of Unlawful Possession of Dangerous Ordnance, a felony of the fifth degree in violation of R.C. 2923.17, and one count of Receiving Stolen Property, a felony of the fifth degree in violation of R.C. 2913.51. {¶ 3} Boczar pled not guilty and the matter was tried before a jury between December 5 and 7, 2006. {¶ 4} The following testimony was proffered at trial. Mike Yankie testified that on April 8, 2006, his 2004 Honda Rubicon (a four-wheeler) was discovered stolen from his father's property on State Route 193 in Sheffield, Ohio. {¶ 5} On April 20, 2006, Deputy Sergeant Cary Nelson and Deputy Anthony M. Mino of the Ashtabula Sheriff's Department responded to a report of criminal trespass on Mechanicsville Road. The owner of the property, a Mr. Janson, had found a propane tank in a wooded area at the rear of the property and observed two men fleeing the property on four-wheelers. One of the men was identified as Max Whetson. {¶ 6} The tank was described as large, painted black, and had an altered valve marked by bluish discoloration. Mr. Janson was sprayed with the contents of the tank after opening the valve. Thereupon, he dropped the tank and its contents bled out. Sergeant Nelson and Deputy Mino both inspected the tank and concluded it had contained anhydrous ammonia, an ingredient in the manufacture of methamphetamine. Mino testified there was a residual amount of ammonia left in the tank. Mino and Nelson testified the "bluing" around the valve was also evidence that the tank had contained ammonia. Finally, Mino testified it is common for producers of methamphetamine to use propane tanks in altered condition to store anhydrous *Page 3 ammonia. It is an increasingly "common practice" for producers in Ashtabula County to hide tanks in rural areas and on farm property. The tanks are often altered so that hoses can be attached to facilitate the transfer of anhydrous ammonia and because brass fittings are quickly deteriorated by ammonia. {¶ 7} Sergeant Nelson and Deputy Mino next proceeded to the residence of James Lemieux at 3911 Woodside Drive, about two miles from where the tank was discovered, and where the Deputies had reason to believe Max Whetson could be found. {¶ 8} Whetson was found and arrested at the Woodside Drive property. Also at the residence at this time were Lemieux, Boczar, and Boczar's girlfriend, Courtney Sposito. {¶ 9} Deputies found a four-wheeler outside the residence, which Boczar claimed was his. The engine was warm, one of the tires was flat, and the vehicle was muddy. The ignition was stripped from the vehicle and a "toggle switch" installed so that it could be started without a key. The VIN had been removed. The four-wheeler could be identified as Yankie's, however, based on the engine number. Deputy Mino testified the value of the four-wheeler was between $500 and $5000 based on the claim paid by Yankie's insurer. Boczar testified he paid $700 for the four-wheeler, about a week earlier, to a woman from Pierpont, Ohio. Boczar also testified that he had "an idea" the four-wheeler might be stolen. {¶ 10} Sergeant Nelson and Deputy Mino testified there was a chemical ("anhydrous") odor, similar to the odor of a methamphetamine laboratory, coming from the residence. The Deputies searched the residence and discovered the following items. In the living room, they found a cold wood-burning stove containing partially *Page 4 burnt lithium strips, rubber gloves, and paper towels with a bluish discoloration; a Rubbermaid container holding plastic tubing and timers; and a safe containing a small explosive device1, ninety-six pseudoephedrine pills in blister packs, a glass pipe with methamphetamine residue, digital scales with methamphetamine residue, a spoon and "tutors" (straws for snorting methamphetamine) with methamphetamine residue, snow seal bags, and a small amount of methamphetamine. {¶ 11} Deputy Mino testified how each of these items could be used for the manufacturing, packaging, and consumption of methamphetamine. {¶ 12} In a bedroom, deputies found a plastic milk jug containing a reddish liquid separated into two levels, the upper level being more translucent and the lower level more opaque. Mino testified the jug was being used to "break down" ephedrine pills, i.e. extract the ephedrine to produce methamphetamine. Mino testified the pills are dissolved in a solvent agent, in this case Coleman fuel; the solid waste (or "binders") sink to the bottom of the container and the ephedrine is contained in the clearer liquid floating at the top.2 {¶ 13} In a downstairs bedroom, deputies found a police scanner and a foil packet of methamphetamine. Deputies also found clothes, which they testified belonged to Boczar and Sposito. {¶ 14} In the kitchen, deputies found coffee filters with bluish stains, a funnel, pliers and wire snips, a stripped lithium battery, and two containers of salt. Deputy Mino *Page 5 testified how each of these items could be used for the manufacturing of methamphetamine. {¶ 15} Boczar was arrested after the search. {¶ 16} A few days after his arrest, Boczar spoke with Deputy Mino. According to Mino, Boczar said he and Sposito had been staying with Lemieux for two to three months because he had nowhere else to stay; although, at the time of the arrest, Boczar claimed he was staying on Foreman Road. According to Mino, Boczar admitted to using and selling methamphetamine. Boczar also admitted to purchasing pills and lithium batteries to make methamphetamine, but denied being involved in the actual production of methamphetamine. {¶ 17} According to Mino, Boczar said that, on April 20, 2006, he had gone with Whetson to pick up the tank on the Mechanicsville Road property, but fled when they were seen by the property owner. While fleeing, Whetson's four-wheeler went off an embankment into a creek and was abandoned. Boczar carried Whetson back to Lemieux' residence on his four-wheeler. {¶ 18} Deputy Mino further testified that Boczar admitted the safe, the CO2 bomb, the glass pipe, and the pseudoephedrine pills were his, although the pseudoephedrine was used for allergies. {¶ 19} At trial, Boczar and Sposito testified they never lived with Lemieux, but stayed with Sposito's mother on Foreman Road. Boczar had gone regularly to Lemieux' for two to three months, however, to work on cars. {¶ 20} At trial, Boczar admitted using methamphetamine at the time of his arrest. Boczar also testified to being a "shopper" of pseudoephedrine pills for Whetson and to selling methamphetamine, but that it had been years since he had done these things. *Page 6 {¶ 21} At trial, Boczar admitted the safe and the CO2 bomb were his. Boczar testified that he had given the safe to Whetson and, except for the bomb, the contents of the safe belonged to Whetson. Boczar said he suspected that Whetson manufactured methamphetamine, but that he had never seen it being manufactured. Boczar testified that when he told Mino the pills were his, he was referring to pseudoephedrine pills in Sposito's car which he had for his allergies. {¶ 22} Boczar denied going with Whetson to get the anhydrous tank on Mechanicsville Road. Instead, Boczar testified he had gone to visit a friend and found Whetson after Whetson had wrecked his four-wheeler. {¶ 23} The jury found Boczar guilty of Receiving Stolen Property and Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs. {¶ 24} On February 27, 2007, the sentencing hearing was held. Boczar was sentenced to a two-year term of imprisonment for Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs and a one-year term of imprisonment for Receiving Stolen Property, to be served concurrently for a total term of incarceration of two years. {¶ 25} Boczar timely appeals and raises the following assignments of error: {¶ 26} "[1.] There was insufficient evidence presented to sustain a conviction for the charge of receiving stolen property in violation of defendant-appellant's Fifth, Sixth, and Fourteenth Amendment rights. {¶ 27} "[2.] The trial court abused its discretion by permitting the State to use the defendant-appellant's prior conviction non disclosed in discovery to impeach defendant in violation of his Fifth, Sixth, and Fourteenth Amendment Rights. *Page 7 {¶ 28} "[3.] The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence in violation of Article IV of the Ohio Constitution. {¶ 29} "[4.] Trial counsel's deficient performance during the trial deprived the defendant-appellant of the effective assistance of counsel in violation of his Sixth and Fourteenth Amendment Rights." {¶ 30} The Ohio Rules of Criminal Procedure provide that a defendant may move the trial court for a judgment of acquittal "if the evidence is insufficient to sustain a conviction." Crim.R. 29(A). "`[Sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury," i.e. "whether the evidence is legally sufficient to support the jury verdict as a matter of law."State v. Thompkins, 78 Ohio St. 3d 380, 386, 1997-Ohio-52, quoting Black's Law Dictionary (6 Ed.1990), 1433. Essentially, "sufficiency is a test of adequacy," that challenges whether the state's evidence has created an issue for the jury to decide regarding each element of the offense. Id. {¶ 31} "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." State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus, following Jackson v. Virginia (1979),443 U.S. 307, 319. In reviewing the sufficiency of the evidence to support a criminal 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 *Page 8 crime proven beyond a reasonable doubt." Jenks, 61 Ohio St. 3d 259, paragraph two of the syllabus. {¶ 32} Weight of the evidence, in contrast to its sufficiency, involves "the inclination of the greater amount of credible evidence."Thompkins, 78 Ohio St.3d at 387 (emphasis sic) (citation omitted). Whereas the "sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support the verdict as a matter of law, * * * weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson, 113 Ohio St. 3d 382,2007-Ohio-2202, at ¶ 25 (citation omitted). "In other words, a reviewing court asks whose evidence is more persuasive — the state's or the defendant's?" Id. {¶ 33} Generally, the weight to be given to the evidence and the credibility of the witnesses is primarily for the trier of fact to determine. State v. Thomas (1982), 70 Ohio St. 2d 79, at the syllabus. When reviewing a manifest weight challenge, however, the appellate court sits as the "thirteenth juror." Thompkins, 78 Ohio St.3d at 387 (citation omitted). The reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses, to 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. 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., quoting Martin,20 Ohio App.3d at 175. {¶ 34} In the first assignment of error, Boczar maintains that there was insufficient evidence to convict him of Receiving Stolen Property. *Page 9 {¶ 35} In order to convict Boczar of fifth-degree Receiving Stolen Property, the State had to prove, beyond a reasonable doubt, that Boczar had "receive[d], retain[ed], or dispose[d] of property of another knowing or having reasonable cause to believe that the property ha[d] been obtained through commission of a theft offense" and that "the value of the property involved is five hundred dollars or more and is less than five thousand dollars." R.C. 2913.51(A) and (C). {¶ 36} Boczar argues the State failed to introduce competent evidence that the value of Yankie's four-wheeler was between $500 and $5,000. Boczar claims the only evidence of the value of the four-wheeler was Deputy Mino's testimony that the insurance company paid between $500 and $5,000 on Yankie's claim for the stolen four-wheeler. This testimony, arguably, constitutes inadmissible hearsay and, thus, cannot be used to determine the value of the four-wheeler. Cf. State v. Reese,165 Ohio App. 3d 21, 2005-Ohio-7075, at ¶ 2, ¶¶ 17-19, and ¶ 28 (testimony from the victim that, "a lot of years ago," her mother told her that her father had paid $3,500 for a ring constituted inadmissible hearsay and was insufficient to determine the value of the ring). {¶ 37} We disagree that Deputy Mino's testimony was the only testimony regarding the value of the four-wheeler. Boczar testified that he paid $700 for the four-wheeler about a week before his arrest. This is competent evidence of the value of the four-wheeler. Cf. R.C.2913.61(D)(3) (the "fair market value" of personal property, defined as "the money consideration that a buyer would give and a seller would accept for property or services, assuming that the buyer is willing to buy and the seller is willing to sell," shall be used to determine the value of property involved in a theft offense). {¶ 38} The first assignment of error is without merit. *Page 10 {¶ 39} In his third assignment of error, Boczar asserts that his conviction for Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs is against the manifest weight of the evidence. {¶ 40} In order to convict Boczar of Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs, the State had to prove, beyond a reasonable doubt, that Boczar knowingly "assemble[d] or possessed] one or more chemicals that may be used to manufacture a controlled substance," i.e. methamphetamine. R.C. 2925.041(A). "The assembly or possession of a single chemical that may be used in the manufacture of a controlled substance * * *, with the intent to manufacture a controlled substance * * * , is sufficient to violate this section." R.C. 2925.041 (B). {¶ 41} Specifically, Boczar argues there is no credible evidence that he provided pseudoephedrine pills or lithium batteries for the manufacture of methamphetamine during the period of time charged in the indictment, i.e. between February 1, 2006, and April 20, 2006. Neither Boczar's trial testimony nor Deputy Mino's account of his interview with Boczar contain an admission from Boczar that he provided pseudoephedrine pills and/or lithium batteries during this time. {¶ 42} Boczar further argues that there was no evidence linking him to the lithium batteries found at Lemieux' residence. {¶ 43} Finally, Boczar argues that Deputy Mino's testimony indicating that Boczar was living at Lemieux' residence and owned the pseudoephedrine pills found in the safe was not credible. Boczar explained at trial that he was referring to allergy medicine in Sposito's car when Mino asked him if the pills were his. Boczar testified at the time of his arrest and at trial that he did not live at Lemieux's, but was only working there. Boczar's testimony as to his residence on Foreman Road was supported by Sposito's *Page 11 testimony. Thus, the evidence linking Boczar to the pills found in the safe is not credible. {¶ 44} Contrary to Boczar's arguments, there was credible evidence before the jury that Boczar knowingly possessed chemicals that may be used in the production of methamphetamine. Boczar's conviction is supported by evidence demonstrating his constructive possession of the pseudoephedrine pills in the safe. {¶ 45} Deputy Mino testified that Boczar admitted that he owned the pills and the safe. The issue of whether Boczar was actually living at Lemieux' residence is not crucial. Boczar admitted he was regularly at Lemieux' for two to three months prior to his arrest. Boczar testified Whetson lived at Lemieux' and he believed that Whetson manufactured methamphetamine. Boczar admitted that he was addicted to methamphetamine, obtained it from Whetson, and often ingested it at Lemieux'. Boczar admitted that he purchased the safe and that at least one item within it, the CO2 bomb, was his. Regardless of whether Boczar was living at Lemieux', Boczar's connections with the residence were significant enough to support the inference, consistent with Mino's testimony, that property, such as the safe and the pseudoephedrine pills, belonged to or were provided by Boczar. Cf.State v. David, 11th Dist. No. 2005-L-109, 2006-Ohio-3772, at ¶ 27 ("[t]he fact that [defendant] had an admitted methamphetamine habit makes it more likely that he possessed the methamphetamine found in his vehicle"). {¶ 46} The third assignment of error is without merit. {¶ 47} In the second assignment of error, Boczar asserts the trial court erred by allowing the State to impeach him with evidence of a prior conviction for misdemeanor Falsification which had not been disclosed to Boczar prior to trial. *Page 12 {¶ 48} Following Boczar's direct testimony, the State advised the court that it wished to impeach Boczar with a prior conviction for Falsification. Asked whether the State had given notice to Boczar during discovery, the prosecutor replied that the State had just discovered the conviction "today" and believed that it was only under a duty to advise the defendant of prior felony convictions. Over the opposition of defense counsel, the court allowed the State to impeach. On cross-examination, the prosecutor asked Boczar, "you actually have a prior conviction for Falsification, don't you." Boczar replied that he did. {¶ 49} Ohio Criminal 16 provides: "Upon motion of the defendant the court shall order the prosecuting attorney to furnish defendant a copy of defendant's prior criminal record, which is available to or within the possession, custody or control of the state." Crim.R. 16(B)(1)(b). Boczar duly requested copies of his prior record in a Request for Discovery filed on August 15, 2006. Thus, the trial court erred by allowing the State to impeach Boczar with his prior conviction. {¶ 50} Error in the admission of evidence is harmless if there is no reasonable possibility that exclusion of the evidence would have affected the result of this trial. State v. Webb, 70 Ohio St. 3d 325,335, ("nonconstitutional error is harmless if there is substantial other evidence to support the guilty verdict") (citations omitted); State v.Werfel, 11th Dist. Nos. 2002-L-101 and 2002-L-102, 2003-Ohio-6958, at ¶ 43 ("In order to determine whether the admission of testimony on the prior convictions is prejudicial, we must evaluate the relationship between that evidence and the totality of other evidence properly introduced by the prosecution at trial. * * * If there is other *Page 13 overwhelming evidence of guilt, the admission of the testimony regarding the facts of the past convictions will be deemed harmless error.") (citation omitted).3 {¶ 51} In the present case, the error of allowing the State to ask Boczar about a prior conviction for Falsification was harmless beyond a reasonable doubt. The impeachment consisted of a single question, with no explanation of what the crime of Falsification entails generally or of the circumstances of Boczar's conviction in particular. The prior conviction did not relate to any element of the crimes with which Boczar was charged, but was merely meant to impeach his credibility. Notwithstanding the improper admission of this testimony, the jury did find Boczar a credible witness, inasmuch as he was acquitted of four of the charges against him. As to the charges for which Boczar was convicted, there was strong evidence to support them. The stolen four-wheeler Boczar purchased had been visibly "hot-wired" and Boczar admitted he suspected it of having been stolen. The pseudoephedrine pills were found in the safe which Boczar admitted to purchasing and storing items in, and to which he had access. {¶ 52} Additionally, Boczar did receive notice of the conviction for Falsification, albeit outside of the State's response to his discovery request. On April 18, the State filed a Motion to Revoke Bond and Memorandum in Support which contained a record of Boczar's prior convictions, including the conviction for Falsification in Case No. 2006 CR B 00301. Based upon the fact that Boczar's prior conviction was in the trial court's record and had been served on defense counsel, Boczar cannot claim to have been unaware of the prior conviction. *Page 14 {¶ 53} The second assignment of error is without merit. {¶ 54} Under the fourth and final assignment of error, Boczar asserts that he received ineffective assistance from trial counsel, in that trial counsel failed to object to a significant number of inadmissible hearsay statements. Boczar claims that trial counsel's deficient performance had the effect of denying him the right to confront these absent witnesses, whose testimony was nonetheless put before the jury. {¶ 55} The Ohio Supreme Court has adopted a two-part test to determine whether an attorney's performance has fallen below the constitutional standard for effective assistance. To reverse a conviction for ineffective assistance of counsel, the defendant must prove "(1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding." State v. Madrigal, 87 Ohio St. 3d 378, 388-389,2000-Ohio-448, citing Strickland v. Washington (1984), 466 U.S. 668,687-688. The failure to prove any one prong of this two-part test makes it unnecessary for a court to consider the other prong.Madrigal, 87 Ohio St.3d at 389, citing Strickland, 466 U.S. at 697. {¶ 56} Several of the allegedly improper statements identified by Boczar do not constitute hearsay, but merely explain how the investigation of trespass on Mechanicsville Road led sheriff's deputies to Lemieux' residence and, subsequently, to Boczar's arrest. {¶ 57} The Ohio Supreme Court has held that testimony is not hearsay, when it "explains the actions of a witness to whom a statement was directed, such as to explain the witness' activities"; "if an out-of-court statement is offered to prove a statement was made and not for its truth"; "to show a state of mind"; and "to explain an act in question." *Page 15 State v. Maurer (1984), 15 Ohio St. 3d 239, 262 (citations omitted). Accordingly, testimony offered to explain an individual or an agency's motivation for investigating a matter has not been considered hearsay and/or inadmissible. See State v. Thomas (1980), 61 Ohio St. 2d 223, 232 ("[t]he testimony at issue was offered to explain the subsequent investigative activities of the witnesses" and "was not offered to prove the truth of the matter asserted"). {¶ 58} These statements include: Yankie's testimony that his father informed him the Honda four-wheeler had been stolen; Sergeant Nelson and Deputy Mino's testimony that Mr. Janson saw two white males riding four-wheelers, recognized one of them as Whetson, and was sprayed with the contents of the anhydrous ammonia tank; and Deputy Mino's testimony regarding statements made by Lemieux. {¶ 59} Similarly, Mino testified that during his investigation at Lemieux' residence, a man named Erb, whom Boczar had allegedly sold methamphetamine to in the past, drove onto the property looking for Boczar. It is uncertain why this testimony should constitute hearsay, particularly when Boczar was acquitted of the charge of Trafficking. {¶ 60} Several of the allegedly improper statements do constitute hearsay, but had no prejudicial effect because the truth of the statements was confirmed by other evidence. Nelson testified the first deputy on the scene said the tank contained anhydrous ammonia, but this fact was confirmed by Nelson and Mino's investigation of the tank. Mino testified Whetson told him where he had crashed the four-wheeler, but this fact was confirmed by Boczar's own testimony and by the actual recovery of the four-wheeler. {¶ 61} Another hearsay statement without prejudicial effect is Nelson's statement that Lemieux told him Whetson did not stay at his residence. This statement, neither *Page 16 confirmed nor disproved by other evidence, simply had little relevance to the charges against Boczar. {¶ 62} Boczar identifies several statements as constituting improper speculation or misrepresentation of the evidence presented. Deputy Mino testified at length as to the ways methamphetamine is produced, how the ingredients are obtained and handled, how it is ingested, and how it is sold. Mino was competent to testify on these matters based on his personal training and experiences. State v. McKee, 91 Ohio St. 3d 292,296-297, 2001-Ohio-41 ("courts have permitted lay witnesses to express their opinions in areas in which it would ordinarily be expected that an expert must be qualified * * * based upon a lay person's personal knowledge and experience"). This testimony was also necessary to interpret the significance of the objects found at Lemieux' residence. Accordingly, it was not improper. {¶ 63} Sergeant Nelson opined that the reason for the police scanner at Lemieux' residence was that "Meth users normally like to know what we are doing." Unlike Mino, Nelson did not establish any foundation for knowledge of the habits of methamphetamine users. However, the failure to object to Nelson's statement is harmless since Boczar was not charged in connection with the police scanner and the scanner was not probative of the charges for which Boczar was convicted. {¶ 64} Finally, Boczar claims a number of statements identifying him as being on Janson's property were improper. Nelson testified that he "believe[d]" Whetson and Boczar were the two males seen riding four-wheelers on Janson's property. Mino testified, without foundation, that Boczar was seen in the area where the anhydrous ammonia tank was found. The prosecutor argued in closing that Boczar's admission to Mino of having been on Janson's property with Whetson was "consistent with all of the *Page 17 witnesses who saw two white males." Without passing on the propriety or impropriety of these statements, their effect was not prejudicial inasmuch as Boczar was acquitted of the charges connected to the anhydrous ammonia tank found on Janson's property. {¶ 65} For the foregoing reasons, the statements Boczar claims trial counsel was ineffective for not objecting to were neither improper nor prejudicial. The fourth assignment of error is without merit. {¶ 66} The judgment of the Ashtabula County Court of Common Pleas, finding Boczar guilty of Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs and Receiving Stolen Property, is affirmed. TIMOTHY P. CANNON, J., concurs, COLLEEN MARY OTOOLE, J., dissents with a Dissenting Opinion. 1 Mino testified the device, known as a "cricket," was a CO2 cartridge filled with powder and having a wick attached. 2 Mino's opinion that the solvent was Coleman fuel was based on the PH of the liquid in the milk jug and a Coleman fuel can found in the same bedroom. A bottle of Liquid Fire was also found in the bedroom, and Mino testified that Liquid Fire is also used as a solvent. 3 The State urges us to apply the abuse of discretion standard appropriate to the review of sanctions for Crim.R. 16 violations.State v. Parson (1983), 6 Ohio St. 3d 442, 445. In the present case, however, the trial court did not acknowledge violation of discovery and, therefore, did not impose any sanction. Boczar's objection was overruled on the grounds that the prior conviction "was a misdemeanor and it has to do with this defendant."

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{¶ 67} I respectfully dissent. {¶ 68} With respect to appellant's second assignment of error, the majority contends that the error of allowing the State to ask Boczar about a prior conviction for Falsification was harmless beyond a reasonable doubt. I disagree. {¶ 69} Crim.R. 16 provides in part: {¶ 70} "(B) Disclosure of evidence by the prosecuting attorney. {¶ 71} "(1) Information subject to disclosure. {¶ 72} "* * * *Page 18 {¶ 73} "(b) Defendant's prior record. {¶ 74} "Upon motion of the defendant the court shall order the prosecuting attorney to furnish defendant a copy of defendant's prior criminal record, which is available to or within the possession, custody or control of the state. {¶ 75} "* * * {¶ 76} "(e) Witness names and addresses; record. {¶ 77} "Upon motion of the defendant, the court shall order the prosecuting attorney to furnish to the defendant a written list of the names and addresses of all witnesses whom the prosecuting attorney intends to call at trial, together with any record of prior felony convictions of any such witness, which record is within the knowledge of the prosecuting attorney. * * * {¶ 78} "* * * {¶ 79} "(E) Regulation of discovery. {¶ 80} "* * * {¶ 81} "(3) Failure to comply. {¶ 82} "If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances." {¶ 83} Evid.R. 609(A)(3) states: "[notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that any witness, including an accused, has been convicted of *Page 19 a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment and whether based upon state or federal statute or local ordinance." {¶ 84} In this case, I believe that Boczar's rights were violated by the State's failure to provide information of his misdemeanor Falsification conviction until after his direct testimony, in violation of Crim.R. 16. It is clear that the trial court abused its discretion in its resolution of the discovery issue. Boczar suffered prejudice due to the State's willful nondisclosure of this information because he was not given the opportunity to address the conviction in his direct testimony to diffuse its impact on the jury. {¶ 85} Furthermore, the misdemeanor at issue, if disclosed, would be directly related to Boczar's decision to knowingly and voluntarily waive or assert his right against self incrimination and his right not to take the stand. Even Boczar's counsel could not properly represent him with respect to this issue, because there was no proper disclosure by the State. He could not advise him properly whether or not to invoke his right against self incrimination. Boczar took the stand without the benefit of informed counsel. {¶ 86} Generally, misdemeanors are not admissible on cross-examination. See, e.g., State v. Wadsworth (1993),86 Ohio App. 3d 666, 670. However, since this misdemeanor is crimen falsi, it is admissible. Evid.R. 609(A)(3). The fact that Boczar has a prior conviction of Falsification is directly related to his credibility and testimony in his case. I believe open discovery and compliance with Crim.R. 16 were created to avoid this exact scenario. {¶ 87} I would reverse the judgment and remand the matter to the trial court. {¶ 88} For the foregoing reasons, I respectfully dissent. *Page 1

2016-07-06 06:36:14.605859+00

OPINION {¶ 1} Appellant Patrick Dobrovich is appealing his conviction on 22 counts of telephone harassment rendered in the Eastern Division Court of Belmont County, Ohio. This Court recently upheld Appellant's earlier conviction on five counts of telephone harassment. State v. Dobrovich, 7th Dist. No. 04 BE 10, 2005-Ohio-1441 (Dobrovich I). The victim in both cases is the same: Appellant's former girlfriend, Michelle Ritz. In the instant appeal, Appellant asserts the same argument that this Court rejected in the earlier appeal, contending that a cassette tape recording of his phone messages violated the best evidence rule. Appellant also contends that he was denied the right to a fair trial and the right to counsel. The record reflects that Appellant did not properly waive his right to counsel, nor was he adequately informed of the hazards of self-representation. Therefore, Appellant's conviction and sentence are reversed, and this case is remanded for further proceedings. {¶ 2} On May 5, 2004, Michelle Ritz filed a complaint against Appellant, alleging 22 counts of telephone harassment in violation of R.C. § 2917.21. These are first degree misdemeanors. On July 15, 2004, Appellant informed the trial court that he intended to be represented by attorney Paul Jefferis. Another pretrial hearing was held on August 12, 2004. Appellant had not yet retained counsel as of that time. There is no indication in the record that Appellant was indigent or had requested counsel to be appointed by the court. Neither does the record contain a written waiver of Appellant's right to counsel. {¶ 3} The case went to bench trial on September 2, 2004. Appellant represented himself at trial. The victim testified and the recorded cassette tape from her answering machine was submitted as evidence. Appellant did not testify. On October 4, 2004, the court entered its judgment, convicting Appellant on all 22 counts and sentencing him to 30 days in jail on each count. The court suspended all but 180 days of the sentence and ordered that the sentence be served immediately. The court also found that Appellant was in violation of his probation and sentenced him to two years of supervised probation. On October 5, 2004, the trial court granted a stay of execution of sentence after he posted a $2500 bond. This timely appeal followed on October 20, 2004. {¶ 4} Appellant presents three assignments of error on appeal, which will be treated out of order for purposes of our analysis. ASSIGNMENT OF ERROR NO. 3 {¶ 5} "DEFENDANT WAS DENIED HIS RIGHT TO HAVE COUNSEL PRESENT AT TRIAL." {¶ 6} Appellant asserts, in a one-paragraph argument, that he did not understand what was going on at trial and did not knowingly waive his right to counsel. Appellee presents no specific argument other than directing this Court to read certain lines of the transcript. Despite Appellant's minimal argument, it is quite obvious from the record that Appellant was not made aware of the significance of representing himself at trial. For this reason, Appellant's third assignment of error has merit. {¶ 7} The trial court's entire inquiry concerning Appellant's waiver of the right to counsel is as follows: {¶ 8} "THE COURT: Mr. Dobrovich — Mr. Dobrovich, are you ready for trial? {¶ 9} "MR. DOBROVICH: I'm just here. {¶ 10} "THE COURT: Okay. {¶ 11} "MR. DOBROVICH: I ain't — I ain't going to have a lawyer. {¶ 12} "THE COURT: You're going to proceed to represent yourself? {¶ 13} MR. DOBROVICH: I'm going to see what's going on. {¶ 14} "THE COURT: Okay." (Tr., p. 4.) {¶ 15} Ohio's Rules of Criminal Procedure contain provisions for a criminal defendant to be provided with counsel and to waive the right to counsel. Crim.R. 44 states, in pertinent part: {¶ 16} "(B) Counsel in petty offenses. Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel. {¶ 17} "(C) Waiver of counsel. Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing." {¶ 18} Appellant was charged with misdemeanor offenses, which are the type of petty offenses referred to in Crim.R. 44. The question in this appeal is whether the overall record reflects that Appellant properly waived his right to counsel in a case involving petty offenses. {¶ 19} The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defence [sic]." Similarly, the Ohio Constitution provides: "In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel[.]" Section 10, Article I, Ohio Constitution. {¶ 20} The right to counsel, though, may be waived by the defendant. In order to be effective, a waiver of trial counsel must be made knowingly, voluntarily, and intelligently. State v. Gibson (1976),45 Ohio St. 2d 366, 74 O.O.2d 525, 345 N.E.2d 399, paragraph one of the syllabus; see also Crim.R. 44(B), supra. In cases involving petty crimes, the waiver of counsel need not be in writing, but must be made on the record in open court. Jackson v. Wickline, 153 Ohio App. 3d 743,2003-Ohio-4354, 795 N.E.2d 1248, ¶ 12. {¶ 21} It is not clear from the trial transcript whether Appellant understood the rights he was waiving when he told the trial judge that he was not going to have a lawyer at trial. Most appellate courts, including this Court, have held that a waiver of the right to counsel is not valid if it does not include some discussion of, "the hazards inherent in self-representation." See, e.g., State v. Weiss (1993),92 Ohio App. 3d 681, 685, 637 N.E.2d 47; State v. Eyrich (June 19, 1996), 7th Dist. No. 745 (citing Weiss). Furthermore, a defendant's assertion of the right of self-representation must be clear and unequivocal. State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751,772 N.E.2d 81, ¶ 38. {¶ 22} There is no discussion in the record of the hazards of self-representation, and Appellant's equivocal responses to the trial court's limited inquiry certainly reinforce the impression that he was not fully aware of the significance of proceeding to trial without counsel. There is no written waiver of the right to counsel in the record. Although a written waiver is not required in petty offense cases, the lack of a written waiver is one more indication that Appellant was not fully informed about the significance of going to trial without counsel. For these reasons, we sustain Appellant's third assignment of error. ASSIGNMENT OF ERROR NO. 1 {¶ 23} "INTRODUCTION OF EDITED TAPES VIOLATED THE BEST EVIDENCE RULE AND THE COURT ERRED BY ADMITTING THIS IMPROPER EVIDENCE." {¶ 24} Appellant raised the same issue that was reviewed in DobrovichI, in which this Court stated: {¶ 25} "The Ohio Supreme Court has held that: `[t]he party seeking to exclude a duplicate has the burden of demonstrating that the duplicate should be excluded.' State v. Tibbetts (2001), 92 Ohio St. 3d 146, 160,749 N.E.2d 226. The party seeking to exclude a duplicate cannot rely on mere speculation as to its authenticity. State v. Easter (1991),75 Ohio App. 3d 22, 27, 598 N.E.2d 845. Furthermore, `the decision to admit duplicates, in lieu of originals, is one that is left to the sound discretion of the trial court.' Id." Id. at ¶ 15. {¶ 26} Evid.R. 1003 allows for a duplicate to be admitted as evidence to the same extent as an original, "unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." Appellant contends that he raised a question at trial concerning the authenticity of the original recording. The record does reflect that Appellant questioned the victim concerning the authenticity of the recordings. (Tr., pp. 16f.) The trial court's ruling on the sufficiency of authentication evidence is also reviewed for abuse of discretion.Easter, supra, 75 Ohio App.3d at 26-27, 598 N.E.2d 845. {¶ 27} The record contains a considerable discussion about the authenticity of the recordings. The victim testified that it was Appellant's voice on the tapes, that she dated him for two and a half years, that she recognized Appellant's voice on the tapes, and that the tapes were made between January 30th and February 29th of 2004. The trial court accepted this testimony as sufficient authentication of the tapes. This was the same type of authentication evidence that was upheld inDobrovich I, and there does not appear to be any abuse of discretion in the trial court's decision to accept the same type of evidence again. {¶ 28} For these reasons, Appellant's first assignment of error is overruled. ASSIGNMENT OF ERROR NO. 2 {¶ 29} "DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL." {¶ 30} Appellant argues that he did not have a fair trial because he did not understand what was happening at trial; that he was not offered an opportunity to give an opening statement; and that the trial court prevented him from effectively representing himself by threatening to remove Appellant from the courtroom if he did not keep quiet while the prosecution presented its case. (Tr., p. 8.) Appellant has not indicated what rules the trial court may have violated, or why these alleged violations would constitute reversible error. Appellant appears to be arguing one of two things: that he should have been treated more leniently by the trial judge because he was acting as his own counsel; or that he did not receive a fair trial because he was ineffective as his own counsel. {¶ 31} Pro se criminal defendants are subject to the same rules of evidence and procedure as those defendants who have obtained counsel.Ahmed v. McCort, 7th Dist. No. 02 BA 8, 2003-Ohio-6002, ¶ 5. Furthermore, a pro se criminal defendant cannot assert reversible error based on his or her own effectiveness as counsel: "The constitutional right to represent oneself would become a hollow right and its assertion would most likely be rejected with regularity if pro se defendants were permitted to assign as error their own ineffectiveness." State v. Taylor,98 Ohio St. 3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 83. {¶ 32} The record reveals that the trial court told Appellant to be quiet while the cassette tape was being played. Although the judge was rather stern, Appellant was not deterred from making further objections or comments in court, or from vigorously cross-examining Michelle Ritz. As far as being denied the opportunity to make an opening statement, the purpose of a defendant's opening statement is to briefly state the evidence that he or she intends to introduce in order to prove his or her defense. R.C. § 2945.10(B). Appellant stated at trial that he did not have any evidence to present. (Tr., p. 21.) Therefore, it is difficult to see how Appellant could have been prejudiced by not being permitted to present an opening statement outlining his evidence when he had no evidence to present. Finally, concerning Appellant's confusion at trial, the portions of the transcript cited by Appellant indicate more of a flippant or arrogant attitude rather than confusion. The only confusion appears to have been in Appellant's choice to waive the right to counsel and represent himself, and this error has already been addressed above. {¶ 33} For the aforementioned reasons, Appellant's second assignment of error is overruled. {¶ 34} In conclusion, the record does not adequately show that Appellant understood the implications of waiving the right to counsel and representing himself at trial. Therefore, his conviction on 22 counts of telephone harassment is hereby reversed and the case remanded for further proceedings consistent with this Opinion. Donofrio, P.J., concurs. DeGenaro, J., concurs.

2016-07-06 06:36:14.721559+00

OPINION {¶ 1} Petitioner-Appellant John E. Wells, Sr. appeals from the March 21, 2006, judgment of the Richland County Court of Common Pleas in which the trial court dismissed appellant's petition for a writ of habeas corpus. Respondent-Appellee is the Warden of the Mansfield Correctional Institution. STATEMENT OF THE FACTS AND CASE {¶ 2} On October 10, 1997, defendant-appellant John E. Wells, Sr. was indicted in Jefferson County on five counts of rape of a child under the age of thirteen in violation of R.C.2907.02(A)(1)(b); two of the counts also contained an allegation that appellant used force or threat of force to accomplish the rape. Appellant was convicted on all counts following a one day jury trial on December 16, 1997. On December 24, 1997, he was sentenced to two life sentences and three ten-year terms of imprisonment, all to be served consecutively. {¶ 3} Appellant filed a timely appeal with the Seventh District Court of Appeals in State v. Wells (Mar. 22, 2000), 7th Dist. No. 98-JE-3, 2000 WL 309401, wherein he raised eleven assignments of error. The court thoroughly analyzed each and every one of the appellant's assignments of error, found each one to be without merit, and affirmed the decision of the trial court. Id. The appellant appealed to the Ohio Supreme Court. The Court dismissed his appeal, found no substantial constitutional question, and found further that discretionary appeals, if applicable, were not allowed. See, State v. Wells (2000),89 Ohio St. 3d 1465. In addition, appellant filed a motion for post-conviction relief, the denial of which was also affirmed atState v. Wells (June 21, 2000), 7th Dist. No. 98-JE-2,2000 WL 818906 dismissed, appeal not allowed, at State v. Wells (2000), 90 Ohio St. 3d 1448. {¶ 4} On October 14, 2005, appellant filed a petition for a writ of habeas corpus with the Richland County Court of Common Pleas in which he attacked his convictions claiming, essentially, that the evidence was insufficient to support the convictions. Specifically, he appeared to claim that the state failed to prove venue, that the state failed to prove force, that the state failed to prove purpose to compel regarding the force element, and that the state failed to prove the identity of the victims. See, appellant's petition for writ of habeas corpus at page 3. On November 5, 2005, respondent-appellee filed a motion to dismiss appellant's petition. {¶ 5} On March 6, 2006, appellant filed a notice of new authority, and motion to grant writ forthwith, to which the appellee responded on March 15, 2006. The trial court issued a judgment entry on March 21, 2006, in which it dismissed the appellant's petition for failure to state a claim upon which relief may be granted. Appellant filed a notice of appeal on April 17, 2006, raising the following assignments of error: {¶ 6} "I: THE COURT BELOW ERRED TO THE PREJUDICE OF THE RELATOR'S SUBSTANTIAL RIGHTS BY CONVERTING THE CLAIMS PRESENTED FROM COGNIZABLE JURISDICTIONAL CLAIMS, TO NON-COGNIZABLE CLAIMS OF SUFFICIENCY OF THE EVIDENCE; BY FAILING TO RENDER JUDGMENT ON THE MERITS OF THE RELATOR'S JURISDICTIONAL CLAIMS; AND BY GRANTING THE RESPONDENT'S MOTION TO DISMISS, OVERRULING RELATOR'S JURISDICTIONAL CLAIMS ON IMPROPER LEGAL STANDARDS RELEVANT TO NON-JURISDICTIONAL CLAIMS. {¶ 7} "II: THE COURT BELOW ERRED TO THE PREJUDICE OF THE RELATOR'S SUBSTANTIAL RIGHTS BY GRANTING THE RESPONDENT'S MOTION TO DISMISS, AND FAILING TO ISSUE A WRIT OF HABEAS CORPUS WHERE THE CLAIMS PRESENTED IN THE PETITION STATE A FACIALLY VALID CLAIM THAT THE CRIMINAL TRIAL/SENTENCING COURT PATENTLY AND UNAMBIGUOUSLY LACKED JURISDICTION TO RENDER JUDGMENT OF CONVICTION, IMPOSE SENTENCE, AND ORDER THE RELATOR'S LIBERTY RESTRAINED; WHERE THE RECORDS OF THE CRIMINAL TRIAL/SENTENCING COURT PROVIDE PRIMA FACIE PROOF OF SAID COURT'S LACK OF SUCH JURISDICTION; AND WHERE THE RELATOR'S CLAIMS, IF PROVED, WOULD ENTITLED [SIC] THE RELATOR TO IMMEDIATE RELEASE AS A MATTER OF LAW. {¶ 8} "III: THE COURT BELOW ERRED AS A MATTER OF LAW AND TO THE PREJUDICE OF THE RELATOR'S SUBSTANTIAL RIGHTS BY CONSIDERING THE RESPONDENT'S UNAUTHORIZED MOTION TO DISMISS, AND BY DELAYING JUDGMENT ON THE PETITION, WHEN, PURSUANT TO THE SPECIAL STATUTORY PROCEDURES OF OHIO REVISED CODE SECTION 2725.06, WHICH ARE NOT SUBJECT TO THE RULES OF CIVIL PROCEDURE, THE COURT BELOW WAS REQUIRED TO DETERMINE WHETHER THE WRIT SHOULD ISSUE SOLELY ON BASIS OF THE SUBSTANCE OF THE PETITION, AND THE COURT BELOW WAS REQUIRED TO RENDER ITS JUDGMENT `FORTHWITH'." {¶ 9} This case comes to us on the accelerated calendar. App. R. 11.1, which governs accelerated calendar cases, provides, in pertinent part: "(E) Determination and judgment on appeal. The appeal will be determined as provided by App. R. 11. 1. It shall be sufficient compliance with App. R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form. The decision may be by judgment entry in which case it will not be published in any form." {¶ 10} This appeal shall be considered in accordance with the aforementioned rule. I, II, III {¶ 11} In his first assignment of error the appellant contends that the trial court erroneously converted his jurisdictional claims to claims regarding sufficiency of the evidence. In his second assignment of error the appellant contends that the trial court erroneously granted the respondent's motion to dismiss. In his third assignment of error the appellant contends that the trial court erroneously considered the respondent's motion to dismiss. {¶ 12} The general rule is that habeas corpus relief is not available where there is an adequate remedy at law. State exrel. Fryerson v. Tate (1999), 84 Ohio St. 3d 481, 485,705 N.E.2d 353. When an adequate remedy in the ordinary course of law exists, habeas corpus may not be used as a substitute for appeal or post-conviction relief. If an issue raised in a petition for a writ of habeas corpus could have been raised on direct appeal or in a petition for post-conviction relief, the petition for a writ of habeas corpus will be denied. See generally, Heddleston v.Mack, 84 Ohio St. 3d 213, 1998-Ohio-320, 702 N.E.2d 1198. {¶ 13} In the case sub judice, not only could the appellant have availed himself of the remedies of direct appeal and post-conviction relief, he did, in fact, avail himself of said remedies. As appellant had available to him, and utilized, adequate remedies at law, habeas corpus relief was and is not available to him, and the trial court correctly dismissed his petition. {¶ 14} Appellant argues further that he is entitled to relief pursuant to the law as set forth in State v. Foster,109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470. Appellant's Foster argument, however, is also flawed. {¶ 15} In Foster, the Ohio Supreme Court reviewed Ohio's sentencing laws in light of Blakely v. Washington (2004),542 U.S. 296, 124 S. Ct. 2538, Apprendi v. New Jersey (2000),530 U.S. 466, 120 S. Ct. 2348, and Ring v. Arizona (2002),536 U.S. 584, 122 S. Ct. 2428. The Foster Court held that sentences based upon unconstitutional statutes are void, and that the appropriate disposition is to vacate the sentence and remand the matter to the trial court for a new sentencing hearing. Id. at ¶ 103. {¶ 16} However, the Foster Court limited its holding to only those cases pending on direct review. Id. at ¶ 104. Such is not the case herein, where the appellant's conviction and sentencing occurred in 1997, and were confirmed on appeal in 2000. {¶ 17} Appellant's assignments of error are overruled. {¶ 18} The judgment of the Richland County Court of Common Pleas is affirmed. By: Edwards, J. John W. Wise, P.J. and W. Scott Gwin, J. concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Richland County Court of Common Pleas is hereby Affirmed. Costs assessed to appellant.

2016-07-06 06:36:12.458123+00

OPINION Defendants-appellants, Walter L. Brown (Walter) and his alleged wife, Kathy I. Brown (Kathy), appeal from the decision of the Carroll County Court of Common Pleas awarding defendants-appellees, the Carroll County Child Support Enforcement Agency (CSEA), Patsy Barber (Patsy), the Carroll County Department of Job Family Services (CCDJFS), and the Ohio Department of Job Family Services (ODJFS), child support arrearages in the amount of $24,697.77. The facts surrounding this appeal began back on December 14, 1963 when Walter filed a petition for divorce from Patsy. Walter and Patsy had three children as issue of their marriage. The court granted Patsy custody of the children and ordered Walter to pay child support in the amount of $35.35 per week beginning December 20, 1963. The parties divorced on October 23, 1964. The child support order remained in effect and unmodified until the youngest child was emancipated in 1981 or 1982. It is alleged that the last child support payment Walter made was on October 11, 1965. Sometime in 1984, Patsy filed a motion for the CSEA to forward to her any support payments made by Walter instead of to the CCDJFS. On December 3, 1984, following a hearing, the trial court journalized an order to the CSEA to forward all future support payments to Patsy, less $9,712.50 owed to the CCDJFS. Following a hearing, the trial court entered a judgment on April 3, 2000 confirming that Walter owed arrearages totaling $26,016.13. The record does not establish that Walter was served with notice of either of these proceedings. On August 9, 2000, the director of the CSEA filed a motion to reduce the arrearages to judgment. The court set the matter for hearing and notice was sent to Walter by regular mail. At the August 24, 2000 hearing, the CSEA's director appeared on the CSEA's and Patsy's behalf. Walter did not appear, however, counsel appeared on his behalf. Neither party presented evidence on the arrearages. Based on the two previous judgment entries, the court reduced Walter's arrearages to judgment in its August 25, 2000 judgment entry. Appellant appealed from this judgment and this court addressed his appeal in In re The Bureau of Support v. Brown (Nov. 6, 2001), Carroll App. No. 00 AP 742, unreported. It appears from the record that after the court entered its August 25, 2000 judgment, the CSEA served an order to Edward D. Jones Co. (Edward Jones) to restrict access on an IRA account Walter had with the company. On October 4, 2000, Edward Jones filed an interpleader action against CSEA, Walter, Kathy and Patsy. It later added the ODJFS and the CCDJFS as parties. Edward Jones stated that the CSEA had a determination that Walter's account was to be access restricted for the amount of $26,023.81. It asked that the court allow it to place the funds in escrow and then dismiss it from the case. On February 27, 2001, the trial court filed an agreed order for Edward Jones to release the $26,023.81 to the court, which the court placed in escrow. The court subsequently dismissed Edward Jones from this case. The case proceeded to a bench trial on May 15, 2001 on the interpleader complaint that demanded that the parties set forth all claims to the money that was in escrow. The court found that Walter's total arrearage was $24,697.77, including poundage. The court ordered that $14,501.00 be paid to Patsy, $9,712.50 be paid the ODJFS for reimbursement, and $484.27 be paid to the CSEA for processing fees. It is from this judgment that appellants filed their timely appeal. Appellants assert two assignments of error, the first of which states: "THE TRIAL COURT ERRED IN GRANTING DISTRIBUTION OF APPELLANT WALTER BROWN'S RETIREMENT FUNDS TO APPELLEES WHERE THE JUDGMENT ENTRIES UPON WHICH IT RELIED WERE VOID AS A MATTER OF LAW FOR LACK OF JURISDICTION, AS THE BUREAU OF SUPPORT AND PATSY BARBER WERE REPRESENTED IN PRIOR PROCEEDINGS BY A PERSON NOT AUTHORIZED OR LICENSED TO PRACTICE LAW IN THE STATE OF OHIO, AND WHERE ALL SUCH JUDGMENTS WERE RENDERED IN VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS TO NOTICE AND AN OPPORTUNITY TO BE HEARD." Appellants assert that the director of the CSEA engaged in the unauthorized practice of law when it filed motions on behalf of the CSEA and Patsy. Thus, they argue that the trial court's judgment is void since the court was without jurisdiction to hear the case. Appellants also argue that Walter was not provided with proper notice of the judgments assessing arrearages against him.1 Therefore, appellants argue that these judgments are void ab initio and cannot serve as the basis of an award of Walter's retirement funds to appellees. As stated previously, this court dealt with these parties in the case of In re The Bureau of Support, supra. In that case, Walter raised the identical issues that he now raises in assignment of error number one. We held that although the trial court may have improperly exercised its jurisdiction due to the unauthorized practice of law by the CSEA director, Walter failed to raise this improper exercise of jurisdiction to the trial court; therefore, the issue is not within this court's jurisdiction. Id. Accordingly, this issue is barred by the doctrine ofres judicata. We also held that both the April 3, 2000 and the August 25, 2000 judgments were void ab initio and remanded the case to the trial court for further proceedings. Accordingly, since the judgments against Walter ordering him to pay the arrearages are void, the distribution of Walter's funds as ordered in the May 16, 2001 judgment is also void. Appellants' second assignment of error states: "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT APPELLANT MRS. BROWN HAD NO INTEREST IN OR RIGHT TO DISTRIBUTION OF HER HUSBAND'S RETIREMENT FUNDS." Appellants argue the trial court erred in finding that Kathy did not have an interest in Walter's retirement account. They assert that they presented evidence at trial of their marriage and its duration. Thus, appellants claim they proved that Kathy has an interest in Walter's retirement account because the account is either "community property" or "marital property" depending on whether Texas or Ohio law is applied. Since, Kathy has an interest in the account, appellants argue that the trial court could not use the money from Walter's retirement account to satisfy arrearages owed by Walter alone. We need not reach the merits of appellants' second assignment of error. Based on our judgment in In re The Bureau of Support, supra, this case must be remanded for further proceedings. For the reasons stated above, the decision of the trial court is hereby reversed and remanded. Vukovich, J., concurs. DeGenaro, J., concurs. 1 The judgments appellants appear to be referring to are those of December 3, 1984, April 3, 2000, and August 25, 2000. They do not specify in their brief the dates of the judgments assessing arrearages against Walter. However, they refer to the August 25, 2000 judgment as the "final judgment." (Appellant's Brief p. 7).

2016-07-06 06:36:12.582677+00

DECISION AND JUDGMENT ENTRY {¶ 1} Defendants Leslie A. Gearhart and Century Well Services, Inc. (collectively "appellants") appeal the pre-trial bond judgment of the Meigs County Court of Common Pleas in favor of plaintiffs Kenneth F. Molz, Allswell, LLC, Redvers, LLC, Trak 9, LLC, Trak 10, LLC and Trak 11, LLC (collectively "appellees"). On appeal, appellants contend that the trial court erred when it ordered them to post a pre-trial bond in the amount of $200,000 to guarantee a potential adverse judgment. Because appellees did not cite to any authority in their brief as required by App. R. 16(B), and because we could not find any law that would allow the court to require such a bond, we agree. Accordingly, we sustain appellants' assignment of error and remand this cause to the trial court for further proceedings consistent with this opinion. *Page 2 I. {¶ 2} This action arose out of a contract dispute. Appellants agreed to drill three oil wells on property owned by appellees. Appellees filed a complaint against appellants asserting claims of breach of contract, fraud, and negligence. Appellants answered and filed a counterclaim. This case stalled as the parties became locked in a disagreement over certain discovery. {¶ 3} As the case progressed, appellees became increasingly concerned that the appellees were becoming insolvent. Appellees raised this issue during one of the many discovery hearings. After a short discussion, the trial court ordered that the appellants post a $200,000 bond "guaranteeing payment of any judgment that may be achieved by the [appellees] in this matter." Appellants objected to obtaining such a bond and filed a notice of appeal. {¶ 4} On appeal, appellants assert the following assignment of error:1 "The Trial Court Erred To The Prejudice of The [Appellants] By Ordering [Appellants] To File With The Court A Bond In The Amount Of $200,000 To Guarantee Any Judgment That The [Appellees] May Obtain Against The [Appellants]." II. {¶ 5} Appellants contend that the law does not allow a pre-trial bond in a civil case to guarantee a future potential judgment. To answer this legal question, we conduct a de novo review. See, e.g.,Yazdani-lsfehani v. Yazdani-lsfehani, 170 Ohio App.3d 1, 2006-Ohio-7105, ¶ 20. PGPage 3 {¶ 6} Conversely, appellees argue that the law does allow the posting of a bond to secure a future judgment. However, the appellees do not cite to any legal authority in their brief to support their position. In addition, we could not find any law to support the appellees' position in our research. {¶ 7} App. R. 16(B) states in relevant part, "The brief of the appellee shall conform to the requirements of divisions (A)(1) to (A)(8) of this rule[.]" App. R. 16(A)(7) states in relevant part that the brief shall include "[a]n argument containing the contentions of the [appellee] with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which [appellee] relies." {¶ 8} Here, appellees did not comply with App. R. 16. That is, they did not support their argument "with citations to the authorities [and] statutes[.]" As such, after our own failure to find authority for appellees' position, we presume none exists. Therefore, we find that the trial court erred when it required the appellants to post a pre-trial bond to support a potential future judgment. {¶ 9} Accordingly, we sustain appellants' assignment of error and reverse the judgment of the trial court. We remand this cause to the trial court for further proceedings consistent with this opinion. JUDGMENT REVERSED AND CAUSE REMANDED. *Page 4 JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED AND THIS CAUSE IS REMANDED to the trial court for further proceedings consistent with this opinion. The appellees shall pay 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 Meigs County Court of Common Pleas 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. Exceptions. Abele, P.J. and Harsha, J.: Concur in Judgment Only. 1 Appellants raised two assignments of error on appeal involving (1) discovery and (2) the $200,000 bond. However, we found that only the bond decision was a final, appealable order. *Page 1

2016-07-06 06:36:12.614306+00

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, Stanley E. Jalowiec, appeals from the decision of the Lorain County Court of Common Pleas, which denied his motion for postconviction relief. We affirm. {¶ 2} On March 20, 1996, Mr. Jalowiec was found guilty of aggravated murder, in violation of R.C. 2903.01(A), with firearm and death penalty specifications pursuant to R.C. 2941.145 and R.C.2929.04(A)(8) respectively. On April 11, 1996, the trial court accepted the jury's recommendation of a sentence of death. On April 17, 1997, Mr. Jalowiec filed his first amended petition for postconviction relief. On August 6, 1997, Mr. Jalowiec filed a second amended petition for postconviction relief. On March 30, 1998, Mr. Jalowiec filed a motion to strike the previous amended petitions and requested additional time and discovery to perfect another postconviction relief petition to be filed at a later date. On February 22, 2000, Mr. Jalowiec filed a pro se third amended petition for postconviction relief. The state filed a response in opposition to the postconviction pleadings on April 9, 2001. On April 12, 2001, the Lorain County Court of Common Pleas dismissed Mr. Jalowiec's third amended petition. On March 7, 2002, this Court affirmed the trial court's dismissal of Mr. Jalowiec's petition for postconviction relief.State v. Jalowiec (Mar. 6, 2002), 9th Dist. Nos. 01CA007844, 01CA007847. {¶ 3} On July 17, 2002, Mr. Jalowiec filed a second (fourth amended) petition for postconviction relief requesting an evidentiary hearing. On August 12, 2002, the state filed its response to Mr. Jalowiec's second petition. On August 15, 2002, the petition was denied by the Lorain County Court of Common Pleas finding that Mr. Jalowiec's petition was untimely and failed to meet the requirements of R.C. 2953.23. This appeal followed. {¶ 4} Mr. Jalowiec asserts six assignments of error. We will discuss them together to facilitate review. First Assignment of Error "The trial court erred in dismissing appellant's second post-conviction petition filed pursuant to O.R.C. § 2935.23(A)(1)(a) (2) where the petition meets the necessary prerequisites mandated by O.R.C. § 2935.23 in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution." Second Assignment of Error "A petitioner, in a second post-conviction petition proceeding is entitled to an evidentiary hearing and discovery when the second petition meets the necessary prerequisites pursuant to O.R.C. § 2953.23 and when the claims raise a constitutional violation which is supported by specific factual allegations not capable of determination from the original record." Third Assignment of Error "Where a claim in a second post-conviction petition met the necessary requirements set forth in O.R.C. § 2953.23 and the post-conviction petition is supported by evidence dehors the record as well as evidence appearing in the record, the doctrine of res judicata does not apply. State v. Scott, 63 Ohio St.3d 98, (1985) followed." Fourth Assignment of Error "The failure of the State to disclose exculpatory impeachment evidence regarding their key material witness, Michael Smith, is a violation of the United States Constitution and Brady v. [Maryland], (1963), 373 U.S. 83, and renders the underlying conviction and sentence void or voidable." Fifth Assignment of Error "A post-conviction petitioner is entitled to discovery, expert assistance and funds to retain such expert assistance when his second post-conviction petition meets the necessary requirements set forth in § 2953.23 and when the petition is supported by specific factual allegations not capable of determination from the original record and the claims raise a constitutional violation, the trial court violated petitioner's right's under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Section 39, Article I of the Ohio Constitution." Sixth Assignment of Error "Ohio's post-conviction procedures do not afford an adequate corrective process nor do they comply with due process or equal protection and § 2953.23 is facially unconstitutional as applied to appellant because it deprives him of due process, equal protection, and to be free from cruel and unusual punishment as guaranteed by the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution." {¶ 5} Essentially, Mr. Jalowiec is appealing the denial of relief based on three assertions. First, he was denied the medical records of Michael Smith. Second, he was given ineffective assistance by trial counsel during the guilt/innocence phase. Third, Ohio's postconviction process is unconstitutional. {¶ 6} Postconviction relief is governed by R.C. 2953.21. "A petition under division (A)(1) of this section (for postconviction relief) shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court." R.C. 2953.21(A)(2) {¶ 7} Mr. Jalowiec did not file within the allotted 180 days. Moreover, Mr. Jalowiec had filed a previous petition. Therefore, the trial court lacked jurisdiction to entertain this successive petition unless Mr. Jalowiec met the requirements of R.C. 2953.23. See State v.Hurst (Jan. 10, 2000), 5th Dist. No. 1999CA00171. See, also, State v.Mullen (Sept. 6, 2001), 4th Dist. No. 00CA24; State v. Harris (Feb. 9, 2001), 2d Dist. No. 18525; State v. Smith (Feb. 17, 2000), 8th Dist. No. 75793. The trial court may consider a second or successive petition for postconviction relief only if petitioner can demonstrate: "(1) Either of the following applies: "(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief. "(b) Subsequent to the period prescribed in [R.C. 2953.21(A)(2)] or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right. "[and] "(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence." R.C. 2953.23(A) {¶ 8} Mr. Jalowiec contends that he was denied Mr. Smith's medical records regarding Mr. Smith's mental condition, and that this denial amounted to a Brady violation. A Brady violation occurs when the prosecution suppresses evidence requested by the accused that is material to the guilt or punishment of the accused. Brady v. Maryland (1963),373 U.S. 83, syllabus, 83 S.Ct. 1194, 10 L.Ed.2d 215. However, Mr. Jalowiec failed to show that he was unavoidably prevented from discovery of the facts during the six years that passed between his conviction and this second petition for postconviction relief. This Court has found a "mere blanket assertion (that discovery was prevented), without more, to be insufficient" to demonstrate that one was unavoidably prevented from discovery of the facts. State v. Logan, 9th Dist. No. 21070,2002-Ohio-6290, at ¶ 15, appeal not allowed, 98 Ohio St.3d 1492,2003-Ohio-1189. Mr. Jalowiec does not argue that he has been deprived of a new right recognized by the United States Supreme Court. Mr. Jalowiec, therefore, fails to meet the first requirement of R.C. 2953.23. Because Mr. Jalowiec failed to meet the requirements necessary to consider an untimely or successive postconviction relief petition, the trial court lacked jurisdiction to consider his petition. Accordingly, the trial court did not commit an error in denying Mr. Jalowiec's postconviction relief requesting an evidentiary hearing. {¶ 9} Mr. Jalowiec's assignments of error are overruled, and the judgment of the Lorain County Court of Common Pleas is affirmed. SLABY, P.J. and BAIRD, J. CONCUR.

2016-07-06 06:36:14.870704+00

OPINION {¶ 1} Eric J. Gibson appeals from the judgment of the Geauga County Court of Common Pleas, sentencing him to imprisonment for making false alarms. We affirm. {¶ 2} November 1, 2006, Mr. Gibson was charged by way of information with making false alarms, a felony of the fourth degree, in violation of R.C. 2917.32(A)(1) and (C) and (5), on or between August 6, 2006, and September 18, 2006. It appears *Page 2 from a statement by the trial court at the sentencing hearing this charge arose from a bomb threat to a Wal-Mart in Middlefield, Ohio. Mr. Gibson, represented by counsel, executed a written waiver of his right to prosecution by way of grand jury indictment the same day the information was filed; and, the matter proceeded to hearing, the trial court accepting a plea of guilty, which was entered as a judgment filed November 8, 2006. The trial court ordered a presentence investigation and report made. {¶ 3} Sentencing hearing was held December 5, 2006. By a judgment entry filed December 18, 2006, the trial court sentenced Mr. Gibson to serve fifteen months imprisonment, less jail time served. Mr. Gibson timely noticed this appeal, assigning one error: {¶ 4} "The trial court abused its discretion by accepting appellant's invalid plea." {¶ 5} In support of his assignment of error, Mr. Gibson emphasizes the following: (1) at the sentencing hearing, he denied making any threatening phone calls to Wal-Mart; (2) and, that the trial court never explained to him the elements of the crime of making false alarms. He further notes the information did not specify the date or exact conduct constituting his crime, and that there was little discussion of the offending conduct at his hearings. Premised on this, Mr. Gibson argues his guilty plea was not made voluntarily, intelligently, and knowingly. {¶ 6} Crim.R. 11(C)(2) sets forth those matters which a trial court must inform a defendant of before accepting a plea of guilty or no contest. It provides: {¶ 7} "In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: *Page 3 {¶ 8} "(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. {¶ 9} "(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. {¶ 10} "(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself." {¶ 11} The matters subject of Crim.R. 11(C)(2)(c) are constitutional, and strict compliance by the trial court with the rule is required in presenting them to a defendant. State v. Woodliff, 11th Dist. No. 2004-P-0006, 2005-Ohio-2257, at ¶ 51. However, the requirements of Crim.R. 11(C)(2)(a) and (b) are not constitutional. Thus, substantial compliance by the trial court in presenting the matters subject of these portions of the rule is sufficient. Id. "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving."State v. Nero (1990), 56 Ohio St. 3d 106, 108. {¶ 12} In this case, the trial court clearly complied with all requirements of Crim.R. 11(C)(2). At the November 1, 2006 plea hearing, the trial court informed Mr. *Page 4 Gibson of the nature of the charge against him, and asked whether he understood the charge and had spoken to defense counsel regarding it. He replied he did. {¶ 13} It informed him of the degree of felony involved, the penalties which might be imposed, and asked him whether he understood these issues. He replied yes. {¶ 14} It asked him whether he was willing to proceed on the basis of the information filed, and was willing to waive indictment by the grand jury. He was. {¶ 15} It asked him whether he understood a plea of guilty meant admission he committed the crime charged. He replied yes. {¶ 16} It asked him whether he understood he was waiving all possible defenses. He replied yes. {¶ 17} It asked him whether any threats or inducements to plead had been offered. He said no. {¶ 18} It asked him his age, which was twenty-four at the time. It asked him whether he could read and understand the charge against him: he stated he could. It asked him whether he is a United States citizen. He is. {¶ 19} It asked him whether he was on medication, intoxicated, mentally ill or incompetent, or under a psychiatrist's care. Mr. Gibson replied no to each question. {¶ 20} The trial court asked Mr. Gibson whether he knew he was waiving his rights to trial; to have the state prove him guilty beyond a reasonable doubt; to face and confront the witnesses against him; and, to use compulsory process to call witnesses on his behalf. Mr. Gibson replied yes to each question. {¶ 21} The trial court asked Mr. Gibson if he understood he could not be required to testify, and that this could not be held against him. He did. *Page 5 {¶ 22} Mr. Gibson's real arguments are that the trial court did not explain to him the elements of the crime of making false alarms, and that no record was made at either the plea or sentencing hearings of the conduct allegedly constituting his crime. {¶ 23} "It is not always necessary to explain all of the elements of the crime, as long as the trial court can make a determination from the totality of the circumstances that the defendant understands the charge." State v. Lane (Nov. 19, 1999), 11th Dist. Nos. 97-A-0056, 97-A-0057, and 97-A-0058, 1999 Ohio App. LEXIS 5490, at 7, citingState v. Rainey (1982), 3 Ohio App. 3d 441, 442. In this case, Mr. Gibson stated at his plea hearing he understood the charge against him, and had discussed it with his counsel. As he notes, at his sentencing hearing, he denied ever making threatening phone calls to Wal-Mart. However, this denial does not cloud the issue of whether he understood the charge against him: it clarifies that he did. At the time Mr. Gibson made this denial, no mention had been made previously on the record of the conduct constituting his crime. Obviously, therefore, Mr. Gibson understood why he was charged. {¶ 24} Under the totality of the circumstances, there is no question Mr. Gibson's plea was made voluntarily, intelligently, and knowingly, and that the trial court fully complied with the requirements of Crim.R. 11(C)(2)(c). {¶ 25} The assignment of error is without merit. {¶ 26} The judgment of the Geauga County Court of Common Pleas is affirmed. DIANE V. GRENDELL, J., MARY JANE TRAPP, J., concur. *Page 1

2016-07-06 06:36:16.178546+00

{¶ 23} While the majority's conclusion is correct, the decisional foundation upon which the conclusion rests is faulty. {¶ 24} At the outset, it is clear that there exists a conflict between both the statutory and court rule protections for juveniles' records found at R.C. 2151.14 and Juv. R. 37 and the statutory reporting mandates found at R.C. 2925.11(E)(2), R.C. 4510.032(C)(1), and R.C. 4510.03(C). This conflict cannot be resolved by the court by way of this appeal. While a young person's college admission chances in today's highly *Page 9 competitive atmosphere are most certainly negatively impacted by a juvenile adjudication for drug possession which appears on his driving record, his redress lies with new legislation not upon appeal. {¶ 25} The majority is correct that C.C.'s driver status is a part of the BMV's record and further that LEADS is not a public record, but the majority then asserts that the release of his status information, or more specifically his suspension for drug possession, is prohibited by Juv. R. 37 and is therefore not a public record subject to disclosure. The majority further asserts that both the revised code section and its companion administrative code section pertaining to driver's privacy protection "[do] not provide for disclosure of information like a driver's status * * * which [is] not classified as personal information." The majority then concludes that "C.C. has presented no evidence, absent a LEADS report, which is not a public record, that his driver's license suspension due to Possession of Marijuana would appear on his BMV record and/or be available to the public," thus the decision below should be affirmed. {¶ 26} Quite the opposite is true. C.C.'s BMV abstract containing his driver's status as in suspension pursuant to a drug possession adjudication is clearly a public record and is also clearly not shielded by Juv. R. 37(B). Thus, it is for these reasons that there was no error by the trial court. {¶ 27} The juvenile court had to suspend C.C.'s driver's license and had to report the suspension to the BMV pursuant to the mandate of R.C. 2925.11(E)(2) and R.C. 4510.032(C)(1). R.C. 2925.11(E)(2) does not provide for any exceptions for juveniles, and R.C. 4510.032(C)(1) specifically addresses a juvenile adjudication involving drug *Page 10 abuse. This report had to include the nature of the offense in the abstract sent to the BMV pursuant to the mandate of R.C. 4510.03(C). {¶ 28} BMV records are public records pursuant to R.C. 4501.34(B), and only "personal information" and "sensitive personal information", as those terms are statutorily defined, are generally exempt from public disclosure pursuant to R.C. 4501.27(A) and (F)(3) and O.A.C. 4501:1-12-02(A)(1) and (A)(9). These "driver's privacy protections" afforded to all Ohioans specifically exclude the "driver's status". Thus C.C.'s suspension and the reason for the suspension are not shielded from public view. {¶ 29} Moreover, while LEADS information is not public, a private campus police department may participate and have access to LEADS data pursuant to O.A.C. 4501:2-10-03, and thus may presumably be able to conduct a criminal background check on an applicant for the admissions office. C.C.'s point about LEADS is well-taken, but the fact remains that while some information contained in LEADS is not of public record and the public does not have access to LEADS, C.C.'s driver's status as set forth in his BMV abstract is of public record and a campus admissions office could access an applicant's abstract without the use of LEADS through the campus police. {¶ 30} C.C. seeks protection under Juv. R. 37(B) which provides: "No public use shall be made by any person, including a party, of any juvenile court record, including the recording or a transcript of any juvenile court hearing, except in the course of an appeal or as authorized by order of the court or by statute." (Emphasis added.) {¶ 31} Inasmuch as a license suspension for drug possession is mandatory and notification to the BMV of such adjudication by means of an abstract of the court record, *Page 11 which must include the nature of the offense, is also statutorily mandated, Juv. R. 37(B) provides no shield or protection for C.C. and cannot form the basis for a reversal of his adjudication. *Page 1

2016-07-06 06:36:12.377087+00

Bettman

The appellant, Lamont A. Ward, appeals from his conviction of aggravated trafficking in cocaine which, because the offense took place "on school premises, in a school building, or within 1,000 feet of the boundaries of any school premises," constitutes a second-degree felony, as opposed to a third-degree felony, pursuant to R.C. 2925.03(C)(1)(a) (hereinafter the "schoolyard statute"). Ward filed a motion to strike from the indictment as facially unconstitutional the schoolyard statutory language that he had "committed the offense on school premises, in a school building, or within one thousand feet of the boundaries of any school premises."1 The motion was overruled following a hearing at which neither party presented evidence. Ward subsequently withdrew his plea of not guilty and entered a plea of no contest. The trial court found him guilty and sentenced him to four to fifteen years' incarceration, which the trial court suspended, placing Ward on three years' probation. We have sua sponte removed this appeal from the court's accelerated calendar. Ward's single assignment of error contends that the trial court erred to his prejudice in overruling his motion to strike language from the indictment as *Page 633 unconstitutional. In his accompanying issue for review and argument Ward alleges that the penalty enhancement for drug trafficking within one thousand feet of school boundaries is violative of the Due Process and Equal Protection Clauses of the United States Constitution.2 Because we find that R.C.2925.03(C)(1)(a) is constitutional, we overrule Ward's assignment of error. In adopting a statute involving an enhanced penalty for the trafficking of drugs in a thousand-foot zone around a school, Ohio has adopted a law similar to what is known as the "federal schoolyard statute," Section 245a, Title 21, U.S. Code,3 which doubles the penalties for anyone convicted of selling drugs within one thousand feet of a school. We agree with the Second Appellate District in State v. Altick (1992), 82 Ohio App.3d 240, 611 N.E.2d 863, that in enacting R.C. 2925.03(C)(1)(a) the Ohio legislature intended to protect school children from the same dangers of drug activity as Congress did in enacting the federal schoolyard statute. There is ample federal case law analyzing and upholding the constitutionality of the federal schoolyard statute which aids us in our similar conclusion about the constitutionality of the Ohio statute. Ward first attacks the Ohio statute on equal protection grounds. We do not agree with Ward that one of the heightened scrutiny tests should be used in our equal protection analysis. Those tests are applied where a statute implicates a suspect classification or impairs a fundamental right. Cincinnati Bd. ofEdn. v. Walters (1979), 58 Ohio St.2d 368, 374-376, 12 O.O.3d 327, 330-332, 390 N.E.2d 813, 818-819, certiorari denied (1980),444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644. While a liberty interest has indeed been deemed a fundamental right, appellant is in error in focusing on that interest in urging a strict scrutiny analysis. The focus here is not on any deprivation of a liberty interest, but rather on the conduct which led to Ward's confinement. There is nothing protected about the trafficking of drugs. Therefore, we deem the rational basis test to be the appropriate test in our equal protection analysis of this case. *Page 634 Legislation will be upheld against constitutional attack under the rational basis test if it furthers a legitimate state interest. Even Ward appears to concede that the state has a legitimate interest in protecting school children from drugs, and we clearly so find. However, Ward seems to argue that the schoolyard statute is overinclusive and, therefore, not rationally related to the legitimate interest of protecting school children from the trafficking of drugs, because its establishment of an enhanced penalty for drug trafficking within the thousand-foot zone punishes both drug trafficking which does not involve children in any way and drug trafficking off school property. We believe, as the court did in United States v.Holland (C.A.D.C.1987), 810 F.2d 1215, certiorari denied (1987),481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854, that this is viewing the state's interest too narrowly. The legislative history to the federal schoolyard statute is illustrative. Therein, Congress intended: "to create a drug-free zone around schools; whether [Congress] chose to do so directly or indirectly is not particularly relevant. According to its sponsor, the provision was designed to `deter drug distribution in and around schools' including transactions which `take place in remote outdoor areas, at local hangouts, or at nearby homes or apartments,' thereby helping to `eliminate outside negative influences' around the school." United States v. Falu (C.A.2, 1985), 776 F.2d 46, 50, quoting 130 Congressional Record S.559 (Daily Ed. Jan. 31, 1984). We believe that the legislature of Ohio, like the United States Congress, intended to "`threaten pushers who approach our children near schools with stiff penalties.'" United States v.Jones (C.A.2, 1985), 779 F.2d 121, 123, quoting 130 Cong.Rec. S.559 (Daily Ed. Jan. 31, 1984). We thus find the Ohio statute is rationally related to a legitimate state interest, and is not overinclusive. We next turn to Ward's due process arguments. Ward first argues that this statute fails to pass constitutional muster because it treats substantially identical criminal conduct differently. An aggravated drug trafficking charge is a felony of the third degree while aggravated drug trafficking within one thousand feet of a school is a felony of the second degree. We again disagree with Ward's analysis. This is not disparate treatment of the same conduct; it adds an additional element to the offense of aggravated drug trafficking which, if proven by the state, is a more serious felony. Even if it were only an enhanced penalty provision it would not be per se unconstitutional. Wisconsin v. Mitchell (1993), 508 U.S. ___,113 S.Ct. 2194, 124 L.Ed.2d 436. Further, the additional element of which Ward complains is "reasonably related to its purpose of protecting children in schools from crime and drugs." Cross,supra, 900 F.2d at 69. See United States v. Agilar (C.A.2, 1985), 779 F.2d 123, certiorari denied (1986), 475 U.S. 1068,106 S.Ct. 1385, 89 L.Ed.2d 609; United States v. Nieves (S.D.N.Y.1985), 608 F. Supp. 1147; United States v. Dixon (S.D.N.Y.1985), *Page 635 619 F. Supp. 1399. As explained by the United States Supreme Court inMitchell, supra, "`it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness.'"Mitchell, supra, 508 U.S. at ___, 113 S.Ct. at 2201,124 L.Ed.2d at 447, quoting 4 W. Blackstone, Commentaries *16. We similarly reject Ward's contention that the statute creates an improper irrebuttable presumption when penalties attached to crimes vary according to the location of the crime. So long as a presumption is rationally related to a legitimate state interest it will be upheld. Those who traffic in drugs within one thousand feet of a school commit a different and more serious offense and deserve proportionately greater punishment than those who traffic in drugs more than one thousand feet from a school. No impermissible inference is created here, but rather a legitimate and appropriate state interest is met by creating a drug-free zone around schools. See United States v. Campbell (C.A.4, 1991), 935 F.2d 39, 45, certiorari denied (1991), 502 U.S. ___, 112 S.Ct. 348, 116 L.Ed.2d 287; Cross, supra,900 F.2d at 69; Holland, supra, 810 F.2d at 1220-1222; Nieves, supra,608 F. Supp. at 1149. In another due process argument, Ward argues that the statute is unconstitutional because of the lack of any knowledge requirement in the statute, that is, the defendant is guilty whether or not he knows he is within one thousand feet of a school. We reject Ward's argument that he must additionally know he was within one thousand feet of a school. The statute in question enhances the penalty when an additional element is proven and does not criminalize otherwise innocent behavior, as it applies only to people already in violation of a statute with a mens rea requirement. See, e.g., Cross, supra, 900 F.2d at 69;United States v. Lewin (C.A.8, 1990), 900 F.2d 145, 148;Holland, supra, 810 F.2d at 1223-1224. In other words, to violate R.C. 2925.03(C)(1)(a), a defendant must have also violated R.C. 2925.03(A), which requires knowledge of wrongdoing. Furthermore, the Ohio legislature has attached criminal liability to criminal conduct without the requirement of a culpable mental state. R.C. 2901.21(B). Finally, Ward attempts to argue that the schoolyard statute should be stricken because it has a disparate impact on poor and black residents. However, Ward has produced no evidence whatsoever to support this contention, which must fail for that reason alone. Accordingly, the judgment of the trial court is affirmed. Judgment affirmed. SHANNON, P.J., and HILDEBRANDT, J., concur. 1 Although we note that attacking the constitutionality of a statute by a motion to strike language from an indictment is somewhat novel, it is not wholly unprecedented. In United Statesv. Cross (C.A.6, 1990), 900 F.2d 66, a defendant moved to quash certain counts in an indictment on the grounds the statute to which they pertained was unconstitutional. Challenges to the constitutionality of a statute also have been presented by a motion to dismiss all or part of an indictment pertaining to that statute. See, e.g., State v. Cook (1987), 35 Ohio App.3d 20, 519 N.E.2d 419. 2 Appellant argues throughout the unfairness of stricter penalties for the trafficking in drugs within one thousand feet of the boundaries of the schoolyard than for trafficking in drugs outside one thousand feet of the boundaries of the schoolyard. Technically this schoolyard provision is an additional element of the offense of aggravated drug trafficking rather than an enhanced penalty provision for aggravated drug trafficking because it raises the underlying offense from a third-degree felony to a second-degree felony. See State v.Allen (1987), 29 Ohio St.3d 53, 29 OBR 436, 506 N.E.2d 199;State v. Gordon (1971), 28 Ohio St.2d 45, 57 O.O. 180,276 N.E.2d 243; State v. Tenhundfeld (Apr. 23, 1986), Hamilton App. No. C-850661, unreported, 1986 WL 4791. However, the effect of the schoolyard provision on Ward, and that of which he complains, is an increased or enhanced penalty and we refer to it as such in this opinion. 3 The federal schoolyard statute was redesignated in November 1990, as Section 860, Title 21, U.S. Code. *Page 636

2016-07-06 06:36:15.380306+00

{¶ 1} Although originally placed on our accelerated calendar, we have elected, pursuant to Loc.R. 12(5), to issue a full opinion in lieu of a summary journal entry. {¶ 2} Plaintiff-appellant Allied Holdings, Inc. appeals the Logan County Court of Common Pleas' decision to grant defendant-appellee Steven L. Meade's motion to dismiss for lack of subject-matter jurisdiction. For the reasons that follow, we affirm. {¶ 3} Allied is a self-insured employer under Ohio's workers' compensation system. Meade, an Allied employee, injured his right arm while he was at work in February, 2003, and filed a workers' compensation claim with the Industrial Commission of Ohio. The Industrial Commission permitted Meade to participate in the workers' compensation system. {¶ 4} Between February 2003 and February 2004, Allied paid Meade $34,608 in temporary total disability compensation. Surveillance showed, however, that Meade worked at a family-owned pizza business during the same time. {¶ 5} Allied subsequently asked the Industrial Commission to declare that Allied overpaid Meade because Meade had obtained income from the pizza business. The Industrial Commission determined Meade engaged in "remunerative work activity" between May 2003 and February 2004, and declared that Allied overpaid Meade $24,470.29. Shortly thereafter, Allied was reimbursed by the workers' compensation self-insured surplus fund. {¶ 6} Several months later, Allied asked the Industrial Commission to declare that Meade committed fraud when he requested and received workers' compensation benefits. Following extensive proceedings, the Industrial Commission determined that Meade did not commit fraud because he lacked the necessary intent. {¶ 7} Despite the Industrial Commission's determination, Allied filed a separate action against Meade in the Logan County Court of Common Pleas. In its complaint, Allied alleged fraud, fraudulent concealment, misrepresentation, collection of debt, and unjust enrichment. Each claim was based on Meade's allegedly fraudulent request for and receipt of workers' compensation benefits. {¶ 8} Meade moved to dismiss the complaint because the trial court lacked subject-matter jurisdiction to hear the separate action. The trial court agreed, and it dismissed the complaint. In doing so, the trial court found "the [I]ndustrial [C]omission [had] exclusive jurisdiction over the issues raised in the complaint" and "the only way [the trial court] would acquire jurisdiction would be through an administrative appeal." {¶ 9} Allied appeals the trial court's decision to dismiss the complaint and sets forth three assignments of error for our review. For purposes of clarity, we combine Allied's first, second, and third assignments of error. ASSIGNMENT OF ERROR NO. I The trial court erred by granting Defendant's motion to dismiss on the basis of lack of subject matter jurisdiction because Ohio statutes and rules do not specifically limit an employer's rights to pursue common law actions for fraud against an employee. ASSIGNMENT OF ERROR NO. II The trial court erred by finding it did not have jurisdiction over common law causes of action, including fraud, collection of debt, fraudulent concealment, misrepresentation, and unjust enrichment, alleged by Plaintiff, which are cognizable and independent based on Defendant's request for receipt of temporary total disability compensation during the period he was found to be working at his co-owned pizza business. ASSIGNMENT OF ERROR NO. III This Court's prior decision that the Industrial Commission has exclusive jurisdiction over issues of fraud should be reversed, as Ohio statutes and rules do not provide the Industrial Commission with exclusive jurisdiction to find fraud. {¶ 10} In its assignments of error, Allied argues that the trial court had subject-matter jurisdiction to hear the separate action for fraud, fraudulent concealment, misrepresentation, collection of debt, and unjust enrichment because R.C. 4123.511(J)(4) does not expressly provide that the Industrial Commission is the exclusive forum in which a self-insured employer can claim an employee fraudulently obtained workers' compensation benefits. Allied also argues that Cathey v.Cassens Trans. Co. (Feb. 4, 2000), 3d Dist. No. 14-99-35, which holds a trial court does not have such jurisdiction, was wrongly decided and urges this court to overrule it. {¶ 11} A trial court's decision to grant a motion to dismiss for lack of subject-matter jurisdiction is reviewed de novo. State ex rel. Bushv. Spurlock (1989), 42 Ohio St.3d 77, 80, 537 N.E.2d 641. As such, we must determine whether Allied alleged a cause of action that the trial court had authority to decide. Id. {¶ 12} The statute at issue in this case, R.C. 4123.511(J)(4), provides: (J) Upon the final administrative or judicial determination under this section or section 4123.512 of the Revised Code of an appeal of an order to pay compensation, if a claimant is found to have received compensation pursuant to a prior order which is reversed upon subsequent appeal, the claimant's employer, if a self-insuring employer, or the bureau, shall withhold from any amount to which the claimant becomes entitled pursuant to any claim, past, present, or future, * * * the amount of previously paid compensation to the claimant which, due to reversal upon appeal, the claimant is not entitled, pursuant to the following criteria: * * * (4) If, pursuant to an appeal under section 4123.512 of the Revised Code, the court of appeals of the supreme court reverses the allowance, then no amount of any compensation will be withheld. The administrator and self-insuring employers are not subject to, but may utilize, the repayment schedule of this division, or any other lawful means, to collect payment of compensation made to a person who was not entitled to the compensation due to fraud as determined by the administrator or industrial commission. (Emphasis added.) {¶ 13} In Cathey, an employee filed an intentional tort action against his employer in a court of common pleas. Cathey at *2. The employer counterclaimed that the employee fraudulently obtained workers' compensation benefits. Id. On appeal, this court held that the court of common pleas lacked subject-matter jurisdiction to hear the counterclaim. Id. at *7. To support its holding, this court noted, among other things, that R.C. 4123.511(J)(4) required either the Bureau of Workers' Compensation Administrator or the Industrial Commission to find fraud before an employer could proceed directly against an employee to recover overpaid workers' compensation benefits. Id. {¶ 14} Under the doctrine of stare decisis, we may not overrule this court's decision in Cathey unless "(1) the decision was wrongly decided at [the] time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it." Westfield Ins. Co. v.Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 48. {¶ 15} Although R.C. 4123.511(J)(4) does not expressly provide that the Industrial Commission is the exclusive forum in which a self-insured employer can claim an employee fraudulently obtained workers' compensation benefits, that does not mean, as Allied contends, that the trial court had subject-matter jurisdiction to hear the claims at issue. {¶ 16} Following the adoption of Article II, Section 35, of the Ohio Constitution, compensation for workplace injuries has existed according to a comprehensive and compulsory statutory system. See 4123.01 et seq.;Village v. Gen. Motors Corp., G.M.A.D. (1984), 15 Ohio St.3d 129, 131,15 OBR 279, 472 N.E.2d 1079. It has been held that this system created the exclusive remedy and procedure for obtaining compensation for workplace injuries. See, generally, Gillman v. Ross (C.P. 1971),30 Ohio Misc. 34, 57 O.O.2d 281, 59 O.O.2d 36, 277 N.E.2d 256; Harrison v.Scanlon (1958), 79 Ohio Law Abs. 189, 147 N.E.2d 135; see, also,Felty v. AT T Tech., Inc. (1992), 65 Ohio St.3d 234, 238,602 N.E.2d 1141 (discussing the goal of creating a workers' compensation system that operates largely outside of the courts). {¶ 17} Because the authority for workers' compensation arises from the Ohio Constitution and statutes enacted pursuant thereto, the benefits, and the procedures to administer those benefits, also derive from the text of the workers' compensation statutes. {¶ 18} The clear language of the statute at issue in the case before us authorizes the use of the statutory repayment schedule or "any other lawful means" only when the payment at issue was "due to fraud as determined by the administrator or industrial commission."1 Because the Industrial Commission did not find fraud, Allied was not statutorily authorized to pursue recovery by the "other lawful means" of a separate action in the trial court for common law causes of action. {¶ 19} Allied did not present, nor have we found, any other statutory authority which provides the trial court with subject-matter jurisdiction in this case. {¶ 20} Based on our analysis as set forth above, we find that the trial court did not have subject-matter jurisdiction to hear the separate action for common law causes of action and that Cathey was not wrongly decided. Accordingly, Allied's first, second, and third assignments of error are overruled. {¶ 21} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment affirmed. BRYANT, P.J., and SHAW, J., concur. 1 In the case sub judice, it is the Industrial Commission's finding that is in issue because the matter was administratively before the Industrial Commission rather than the Bureau of Workers' Compensation Administrator.

2016-07-06 06:36:15.443398+00

OPINION *Page 2 {¶ 1} Defendant-appellant Uthman Batin appeals the August 23, 2006 Judgment Entry of the Stark County Court of Common Pleas sentencing him to an eight year prison term on one count of felony trafficking and an eight year prison term on one count of possession, to be served concurrently. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE CASE {¶ 2} On February 27, 2004, appellant was indicted on one count of trafficking in cocaine, in violation of R.C. 2925.03(A)(2)(C)(4)(E), with a school zone specification enhancing the penalty of the offense to a felony of the first degree, and one count of possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(D). {¶ 3} Following a jury trial, appellant was found guilty on both counts. The trial court sentenced appellant to a ten-year prison term on the trafficking count and an eight-year term on the possession count. The trial court ordered the sentences be served concurrently. {¶ 4} On appeal, this Court remanded appellant's sentence to the trial court for resentencing after vacating the school zone specification. {¶ 5} On February 11, 2005, the trial court dismissed the school zone specification, and resentenced appellant to an eight-year prison term on the second degree felony trafficking charge and an eight year prison term on the second degree felony possession charge, to be served concurrently. {¶ 6} On July 12, 2006, the Ohio Supreme Court in In re Ohio CriminalSentencing Statutes Cases 109 Ohio St.3d 518, remanded appellant's February 11, 2005 sentence pursuant to State v. Foster (2006),109 Ohio St.3d 1. *Page 3 {¶ 7} On August 23, 2006, the trial court again resentenced appellant to a prison term of eight years for trafficking in cocaine and eight years for possession of cocaine. The trial court again ordered the sentences be served concurrently. {¶ 8} Appellant now appeals, assigning as error: {¶ 9} "I. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MAXIMUM PRISON TERM UPON APPELLANT." {¶ 10} In his sole assignment of error, appellant asserts the trial court abused its discretion by imposing the maximum prison term on resentencing. {¶ 11} In Foster, supra, the Ohio Supreme Court held, under the United States Supreme Court's decisions in Apprendi v. New Jersey (2000),530 U.S. 466, 120 S.Ct. 2348, and Blakely v. Washington (2004),542 U.S. 296, 124 S.Ct. 2531, portions of Ohio's sentencing scheme were unconstitutional because they required judicial fact finding before a defendant could be sentenced to more than the minimum sentence, the maximum sentence, and/or consecutive sentences. Id., at paragraph one of the syllabus. As a remedy, the Ohio Supreme Court severed the offending sections from Ohio's sentencing code. Thus, pursuant to Foster, trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than minimum sentences. Id., at ¶ 100. {¶ 12} An abuse of discretion implies the court's attitude is "unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151. {¶ 13} In State v. Mathis 109 Ohio st.3d 1, 2006-Ohio-856, the Supreme Court held: *Page 4 {¶ 14} "As we have held in Foster, however, trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences. Now that such findings are no longer mandated, on resentencing, the trial court will have discretion to sentence within the applicable range, following R.C. 2929.19 procedures. R.C. 2929.19 provides that "[t]he court shall hold a sentencing hearing before imposing a sentence * * * and before resentencing an offender who was convicted of or pleaded guilty to a felony and whose case was remanded." (Emphasis added.) The court "shall consider the record," any information presented at the hearing, any presentence investigation report, and any victim-impact statement. It thus appears that any case that is remanded for "resentencing" anticipates a sentencing hearing de novo, yet the parties may stipulate to the existing record and waive the taking of additional evidence. {¶ 15} "Although after Foster the trial court is no longer compelled to make findings and give reasons at the sentencing hearing because R.C.2929.19(B)(2) has been excised, nevertheless, in exercising its discretion, the court must carefully consider the statutes that apply to every felony case. Those include R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender. In addition, the sentencing court must be guided by statutes that are specific to the case itself." {¶ 16} Section 2929.12 provides: *Page 5 {¶ 17} "(A) Unless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a court that imposes a sentence under this chapter upon an offender for a felony has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code. In exercising that discretion, the court shall consider the factors set forth in divisions (B) and (C) of this section relating to the seriousness of the conduct and the factors provided in divisions (D) and (E) of this section relating to the likelihood of the offender's recidivism and, in addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing. {¶ 18} "* * * {¶ 19} "(D) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is likely to commit future crimes: {¶ 20} "(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing, under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or under post-release control pursuant to section 2967.28 or any other provision of the Revised Code for an earlier offense or had been unfavorably terminated from post-release control for a prior offense pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised Code. {¶ 21} "(2) The offender previously was adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has a history of criminal convictions. *Page 6 {¶ 22} "(3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has not responded favorably to sanctions previously imposed for criminal convictions. {¶ 23} "(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse. {¶ 24} "(5) The offender shows no genuine remorse for the offense. {¶ 25} "(E) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is not likely to commit future crimes: {¶ 26} "(1) Prior to committing the offense, the offender had not been adjudicated a delinquent child. {¶ 27} "(2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense. {¶ 28} "(3) Prior to committing the offense, the offender had led a law-abiding life for a significant number of years. {¶ 29} "(4) The offense was committed under circumstances not likely to recur. {¶ 30} "(5) The offender shows genuine remorse for the offense." {¶ 31} In the case sub judice, the following exchange occurred at the resentencing hearing: *Page 7 {¶ 32} "Mr. Bickis: Your Honor, thank you. Mr. Batin was previously sentenced to a term of eight years and the State would I guess argue that that is an appropriate sentence and ask the Court to, to reimpose that sentence at this time. {¶ 33} "This is not the first time Mr. Batin has been incarcerated, it's not even the first time for this type of conduct. {¶ 34} "In 1996 he was convicted of aggravated trafficking in drugs and was sentenced to a term of 5 to 25 years Lorain Correctional for that. {¶ 35} "In 2000 it looks like he was again convicted of possession of cocaine. It looks like he served 12 months at that time. {¶ 36} "So this, I mean, is his third offense. {¶ 37} "The Court: Well, actually according to the State's representation previously there are even more convictions. You had a 1989 conviction; is that correct, Mr. Batin? {¶ 38} "The Defendant: Yes, that was back in old Mansfield, yes. {¶ 39} "The Court: Right, trafficking in cocaine? {¶ 40} "The Defendant: No, that wasn't trafficking; that was unarmed robbery. {¶ 41} "The Court: Unarmed robbery? {¶ 42} "The Defendant: Yes. That was back in uh — no. That was back in 7 — 74. {¶ 43} "Mr. Bickis: I, I do have I see here, Your Honor, the `89 conviction; it's {¶ 44} "The Defendant: That was in `89; okay, I'm sorry about that. {¶ 45} "The Court: That's all right. *Page 8 {¶ 46} "Mr. Bickis: He did one year it appears on that case. {¶ 47} "It looks like there actually is also an `88 case for trafficking as well. It looks like that was a — it was Case 88-CR-8567. {¶ 48} "It also looks like he did it was aggravated trafficking F4 or trafficking F4 and an aggravated trafficking F1. Looks like he was sentenced to 1 year on the trafficking and looks like 7 to 25 on the aggravated trafficking. I believe that's — {¶ 49} "The Court: I think also a 1996 charge as well. {¶ 50} "The Defendant: Yes. {¶ 51} "Mr. Bickis: Well, that's, that's — I believe I already stated that one; that's why I didn't — I guess just for purposes of the record there is I guess the 1988 conviction, the 1989 conviction, the `96 conviction and the, the 2000 conviction all for trafficking or possession of cocaine. {¶ 52} "The Court: And it's my understanding that you were on parole at the time you committed this offense — {¶ 53} "The Defendant: Yes. {¶ 54} "The Court: — that we're here for today; is that correct? {¶ 55} "The Defendant: Yes. {¶ 56} "The Court: Here — here's the perplexing thing, Mr. Batin. If you've truly had an epiphany and you realize that you're not acting as a good role model for your son, I think that's a very good thing. My question is is why after all these years? I mean, you have been in and out of prison for years on trafficking charges. Why, why wasn't the first time or the even the second time or even the third time enough for you to say I got to stop this, I'm getting too old for this, this is not the way I want to live my life, *Page 9 uh, you now have a son? Why is it that it's now 2006 and suddenly something in your life has changed? {¶ 57} "* * * {¶ 58} "The Court: Well, that's good; I — and then — and I truly hope and believe that you know that now. And the question is is where do you go from here. I think you're making improvements, you appear to be sincere about attending these classes, but you still have a ways to go to, to come out from under. I mean, you've been involved in this drug trafficking for decades. {¶ 59} "* * * {¶ 60} "The Court: Okay. Notwithstanding what we've discussed here today and I — and con___frankly in consideration of some of the things that we've discussed today the Court has considered the entire record, the oral statements, the principles and purposes of sentencing and the seriousness and recidivism factors, that is, the Court has considered the applicable sentencing guidelines, and the Court finds that the sentence imposed was an appropriate sentence and the Court is going to reimpose the eight year prison term as to each count, the terms to run concurrently with each other." {¶ 61} Tr. at 9-16. {¶ 62} Based upon the foregoing, we find the trial court did not abuse its discretion in sentencing appellant to the maximum prison term on both counts. The court's sentence was within the statutory guidelines, and clearly considered appellant's prior criminal history and his likelihood to reoffend. {¶ 63} The August 23, 2006 Judgment Entry of the Stark County Court of Common Pleas is affirmed. *Page 10 Hoffman, J. Gwin, P.J. and Edwards, J. concur. *Page 11 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the August 23, 2006 Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs assessed to appellant. *Page 1

2022-09-09 23:54:30.634499+00

Denied

2016-07-06 06:36:12.54526+00

Gwin

Defendant, Alan J. Weiss ("appellant"), appeals from the judgment of conviction and sentence entered upon his no contest plea to one count of gross sexual imposition, a fourth degree felony under R.C. 2907.05(A)(2). Appellant assigns as error: "Assignment of Error No. 1 "The trial court erred as a matter of law in its interpretation and application of the case of State of Ohio v.Hensley (1991), 59 Ohio St.3d [136] [571 N.E.2d 711], to the facts of the instant case. *Page 381 "Assignment of Error No. 2 "The trial court erred as a matter of law in finding that the legislature had not distinguished between sex crimes against those under 15 and those over 15 years of age. "Assignment of Error No. 3 "The trial court erred as a matter of law and in violation of defendant's constitutional rights of due process, equal protection and speedy trial in concluding that no undue prejudice to defendant was shown by virtue of the destruction of his bank records. "Assignment of Error No. 4 "The trial court's finding that the victim was inhibited and had internalized was against the manifest weight of the evidence and contrary of law." On April 13, 1993, a two-count indictment charged appellant, a former Cambridge Junior High School teacher, with the sexual battery of Aaron Nicholas and Marty Kiggans, violations of R.C.2907.03. Count one of the indictment alleged that on a date certain in September 1982, appellant engaged in sexual conduct with Aaron Nicholas, knowing that Nicholas' ability to apprise the nature or control of his conduct was substantially impaired. Count two of the indictment alleged that on a date certain in September 1981, appellant engaged in sexual conduct with Marty Kiggans, knowing that Kiggans' ability to understand the nature or control of this conduct was substantially impaired. An evidentiary hearing was held on appellant's motion to dismiss the indictment and the following facts were established. In the fall of 1982, the exact date being unknown, Aaron Nicholas, a fifteen-year-old Cambridge High School student, consumed alcohol purchased by appellant. At appellant's suggestion, Aaron Nicholas unfastened his pants and appellant performed fellatio on him. Nicholas, now twenty-seven years of age, did not report the incident to a "responsible adult" as contained in R.C. 2151.421 until September 1992. Although Nicholas knew at the time the incident occurred that it was "emotionally and morally wrong," he did not realize it was a crime. Nicholas testified that he did not report the incident until September 1992, because: "I just, that was just, you know, back then, I mean, you know, you know, child molesting or whatever you want to call it, you know, it really wasn't spoke of. You know. It was a small community. Nobody, you know, that didn't happen in the small community. "* * * *Page 382 "No way, people would have looked at you differently, you know, and you would have been labeled and it's hard enough, you know, trying to get people to like you and, you know, you're always trying to, you know, impress your peers and be accepted by your peers." Appellant admitted that he had oral sex with Nicholas at the time in question, but denied alcohol was involved and testified that the sexual conduct was initiated at Nicholas' suggestion. On September 1981, the exact date again being unknown, Marty Kiggans, who had just turned seventeen years of age, consumed a large amount of alcohol purchased by appellant. After "passing out on the couch" in appellant's apartment, Kiggans awoke and found appellant performing fellatio on him. Kiggans struck appellant with his fist and immediately left the apartment. Kiggans did not report the incident to a "responsible adult" as contained in R.C. 2151.421 until September 1992, because he feared his friends would think he was "dirty" or "gay." Again, appellant admitted the incident but testified that it occurred at Kiggans' suggestion and appellant paid him $40 for the sex act. Appellant further testified that no alcohol was involved in that incident. The trial court noted that appellant believed the victims came forward and finally reported the crimes "because they had seen his picture in the local newspaper when he had been approved to be a foster parent." After the trial court overruled appellant's motion to dismiss, a negotiated plea agreement was fashioned whereby the state amended count two of the indictment to the offense of gross sexual imposition and appellant pled no contest to it. Count one of the indictment involving Aaron Nicholas was nolleprosequi. I and II Through his first two assignments, appellant maintains the trial court erred in failing to dismiss the charges against him for the state's failure to bring them within the six-year statute of limitations, pursuant to R.C. 2901.13(A)(1). We agree. In overruling the motion to dismiss, the trial court found the six-year statute of limitations was tolled until the victims reported the crimes to one of the number of responsible adults who are under a legal duty to immediately report any known or suspected child abuse or neglect to certain governmental agencies pursuant to R.C. 2151.421. The court rendered its decision based upon the law set forth in State v. Hensley (1991), 59 Ohio St.3d 136, 571 N.E.2d 711, syllabus: "For purposes of R.C. 2901.13(F), the corpus delicti of crimes involving child abuse or neglect is discovered when a responsible adult, as listed in R.C. 2151.421, has knowledge of both the act and the criminal nature of the act." *Page 383 Appellant asserts that Hensley does not apply to the facts of this case. In Hensley the child victims were all under the tender age of thirteen. However, in this case the child victims were not of tender age but were fifteen and seventeen years of age. Appellant buttresses his argument by citing numerous statutes in which the Ohio legislature has distinguished a different age bracket for those in need of protection from consensual sex. Appellant directs us to the criminal statutes involving criminal child enticement, statutory rape, gross sexual imposition, sexual imposition, corruption of a minor, and importuning, wherein the legislature chose to offer protection only to those children under thirteen years of age and, in some instances, those under sixteen. In Hensley, supra, 59 Ohio St.3d at 138-139,571 N.E.2d at 714, the unanimous Supreme Court explained its decision as follows: "Initially, it should be noted that we are dealing with the sexual abuse of children. Statutes and case law in Ohio, as well as the rest of the country, seek to protect and ensure the safety of children of tender age. It is common knowledge in child sex abuse cases that the victims often internalize the abuse, and in some instances blame themselves, or feel somehow that they have done something wrong. Moreover, the mental and emotional anguish that the victims suffer frequently inhibits their ability to speak freely of the episodes of abuse. For these reasons, we reject the court of appeals' holding that because the children in the present case understood the wrongness of appellee's acts, the corpus delicti of the crime was discovered by them. While the record in this case suggests that the two children comprehended the inappropriateness of appellee's actions, it would pervert justice to impose on those whom the Criminal Code seeks to protect the responsibility to know the exact criminal nature of such conduct. In other words, even though a child of tender years may know that an act committed against him or her is wrong or even criminal, we are unwilling to impose the burden to contact the authorities on an already traumatized and susceptible child. "* * * "Our objective is to strike a proper balance between the need to place some restriction on the time period within which a criminal case may be brought, and the need to ensure that those who abuse children do not escape criminal responsibility for their actions. Toward this goal, we find that R.C. 2151.421 contains a list of responsible adults who are under a legal duty to immediately report any known or suspected child abuse or neglect to certain governmental agencies. These agencies, typically a county children services board, are responsible for investigating, in cooperation with law enforcement officials, any allegations of abuse or neglect." *Page 384 While it is true Hensley involved "children of tender years," we believe the reasoning contained therein to be applicable to cases where the victim is less than eighteen years of age. It is not hard to imagine that seventeen year olds who have been sexually abused by an adult would internalize the abuse, blame themselves and/or feel they were the wrongdoers. As testified to in this case, peer ridicule, embarrassment, and the desire not to be labeled "dirty" or "gay" can cause a child sexual abuse victim to remain silent on the subject. Whether such "internalization" is sufficient to toll the statute of limitations in any given case involving the abuse of a child under eighteen years of age is best left to the trier of fact. It is the trier of fact who can determine from the credibility of witnesses whether their delay in reporting a sex abuse crime was justified under the circumstances of each case. Here, the court specifically concluded that "[b]oth victims testified that they did not know the act committed on them by [appellant] was a crime, that they internalized the matter and did not tell a `responsible adult' until 1992. This testimony was unrefuted by [appellant] and was persuasive to this Judge who observed their demeanor on the witness stand." In State v. Hughes (1994), 92 Ohio App.3d 26,633 N.E.2d 1217, the Court of Appeals for Brown County relied upon the reasoning of State v. Pfouts (C.P.1992), 62 Ohio Misc.2d 587,589-590, 609 N.E.2d 249, 251, wherein the court found that a child-abuse victim is "presumed to have understood and acknowledged the act and the criminal nature of the act upon attaining the age of majority; and, absent a showing to the contrary rebutting such presumption, the tolling of the statute of limitations with regard to that act ceased upon the child-victim's attaining the age of eighteen years." We decline to adopt such a presumption where there is no legislative authority for it. Instead, we believe it a better rule that once a child-abuse victim attains the age of eighteen and understands the criminal nature of the act, the statute of limitations begins to run. This rule would better meet the Ohio Supreme Court's objective of striking a proper balance between the need to place some restriction on the time period within which a criminal case may be brought and the need to ensure that those who abuse children do not escape criminal responsibility for their actions. Hensley, supra, 59 Ohio St.3d at 141,571 N.E.2d at 716. With this rule in mind, we must examine the trial court's conclusions of law to determine whether it properly flows from its findings of fact. Here, the trial court specifically concluded that Marty Kiggans, the seventeen-year-old victim, did not know the act committed by appellant was a crime. This conclusion of law is not supported by the court's finding of fact that Marty Kiggans "knew it was wrong for a person to take advantage of someone else under the laws of Ohio." Accordingly, the statute of limitations in this case began to run once Marty Kiggans obtained the age of eighteen and understood the criminal nature *Page 385 of the act perpetrated against him. Although it is debatable whether Kiggans was aware of the exact nature of the crime, it is sufficient in our view that he knew appellant had committed a crime against him. For these reasons, we find the trial court erred in failing to dismiss the charges against appellant for the state's failure to bring them within the six-year statute of limitations, pursuant to R.C. 2901.13(A)(1). III Through his third assignment, appellant maintains the delay in bringing the charges against him violated his constitutional rights to due process, equal protection, and speedy trial. Appellant asserts the passage of time prejudiced his defense and violated the aforementioned constitutional provisions because certain bank records were either destroyed or disposed of. Specifically, appellant argued that a cancelled check for $350 paid to Marty Kiggans and an automatic teller machine receipt for $40 would have corroborated his claim that he paid Marty Kiggans for the sexual acts. In disposing of this argument, the trial court ruled: "The Court concludes as a matter of law that the Defendant's arguments that his constitutional due process, equal protection and speedy trial rights have been violated must be tested on an objective standard by the Trial Court. The Defendant cites no case law in support of his arguments on this point. The Court finds no undue prejudice shown to the Defendant from the factual presentation in this case. The Defendant's automatic teller and bank records have been destroyed and are unavailable to him. "However, all that such records would show would be a $40.00 cash withdrawal in the evening hours and a canceled check for $350.00 for payment of a utility bill. These records would not show to whom the $40.00 was given nor why the $350.00 check was written. The Defendant can so testify or can ask the victims on cross-examination about the payment of cash for oral sex. As to the alleged payment by the Defendant of $350.00 for utility bill for Kiggans, the Defendant's check would only establish that the bill was paid. This bill, according to the testimony, was paid some time after the act charged in Court [sic] II of the indictment is alleged to have occurred and would have no relevancy to the elements of the crime charged." We agree with the trial court's analysis of this issue and overrule this third assigned error. *Page 386 IV Through his fourth and final assignment, appellant maintains the trial court's finding that Kiggans internalized the abuse suffered at the hands of appellant was against the manifest weight of the evidence and contrary to law. We disagree. As we observed under the first two assignments of error, evidence was presented that would support the trial court's finding that Marty Kiggans did internalize the sexual abuse. As a reviewing court, we are not in a position to weigh the evidence. Instead, we must examine the record and determine whether there is some competent and credible evidence to support the trial court's finding. Accordingly, we overrule appellant's fourth and final assignment of error. For the reasons stated above, the judgment of conviction and sentence entered in the Guernsey County Court of Common Pleas, Ohio, is reversed and the charges against appellant are dismissed pursuant to App.R. 12(B). Judgment reversed. WILLIAM B. HOFFMAN and READER, JJ., concur.

2016-07-06 06:36:13.465996+00

Corrigan

I believe that none of the alleged errors occurring at trial constitutes a valid basis for reversing the verdict, and would affirm the jury verdict in its entirety. I The majority finds error with the court's decision to deny appellant's Batson challenge because the court did not engage in enough consideration of the challenge to show that it understood and applied the correct test. This is a tenuous ground for reversal, inasmuch as the majority is forced to concede that appellant is not complaining on appeal that peremptory challenges were used in furtherance of purposeful racial discrimination. Ante at 5. If there is no complaint that St. Alexis Hospital used a peremptory challenge to strike black jurors, any question regarding the court's handling of the prima facie test would certainly be irrelevant to the question of purposeful discrimination vel non. But even were I to apply with considerable care the Batson prima facie test under Hicks v. Westinghouse Materials Co. (1997), 78 Ohio St. 3d 95,98-99, my opinion that the court did not err by refusing to find purposeful discrimination in the strike would not change. The majority repeats the same error it finds the court made it fails to apply the test to determine whether appellant made out a prima facie case of exclusion on racial grounds. The majority takes issue with St. Alexis' ground for striking Juror No. 7, finding it is clearly insufficient to establish a race-neutral explanation for the strike. Ante at 9. However, the second part of the three part, burden-shifting test set forth in Batson does not require the party striking a juror to state good reasons for the strike at that point in the inquiry: It is not until the third step that the persuasiveness of the justification becomes relevant the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. Purkett v. Elem (1995), 514 U.S. 765, 768. The proponent of the strike need merely articulate a legitimate reason for the strike. Id. This does not mean that the reason must make sense it might even be considered implausible or fantastic or silly or superstitious. Id. Hence, in Purkett, the United States Supreme Court accepted as legitimately race-neutral strikes of two black males because they had long, curly and unkempt hair. Applying the proper analysis shows that the court could legitimately accept St. Alexis' *Page 379 reason for striking the juror as being race-neutral on its face. This being the case, the burden would have shifted to appellant to show that St. Alexis' reason for striking the juror was pretext. The majority candidly concedes that appellant could not make that showing, noting that it is unlikely that St. Alexis used the peremptory to exclude a juror based on her race. The majority is correct to reach this conclusion, for three of the eight jurors seated for trial were black and St. Alexis only used two of its three peremptory challenges. This is not the kind of substantial disparity between struck jurors and those seated to establish an inference of discrimination. See, e.g., United States v. Alvarado (C.A.2, 1991), 923 F.2d 253, 255 (Only a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination.). Because the majority concedes there is ultimately no question of racial animus and recognizes the unassailable fact that appellant will not prevail on this point, its remand would serve no meaningful purpose. II The majority nexts finds the court erred by permitting David Longworth, M.D. to testify because he could not express an opinion concerning proximate causation. Appellant's theory at trial was that the hospital violated the standard of care by failing to give a single dose of antibiotic early enough to kill the infection that ravaged her. Longworth told the jury he did not have an opinion, to the requisite degree of medical certainty, whether a single dose of antibiotics would have altered the course of the infection. It does not matter that the court permitted Longworth's testimony because it went to the issue of proximate cause, and proximate cause became irrelevant in light of the jury's finding that no standard of care had been breached. The majority agrees that Longworth's testimony went to the ultimate issue of proximate cause, see ante at 15, but chooses to ignore the jury's ultimate finding relating to reasonable care, saying that a question the jurors sent to the court shows they were still considering proximate causation two days after they began deliberating. This is a non sequitur. Even if the jury considered proximate causation during its deliberations, it says nothing about the ultimate verdict which found defendants did not breach a standard of care. We do not know why the jury reached the verdict it did, and it is not our job to inquir[e] into a jury's thought processes * * *. See United States v. Powell (1984), 469 U.S. 57, 66-67. The verdict stands as it is, and a finding that there had been no breach of a standard of reasonable care would negate any consideration of proximate causation. *Page 380 Even were proximate causation still at issue, I would find no error. The majority gives the impression that Longworth's testimony was the only defense evidence on proximate cause, but a second witness, Lowell Young, M.D., testified and said that the infection had irreversibly progressed to the point where antibiotics would not have altered the course of the infection. The majority notes the existence of this testimony, then proceeds to ignore it, choosing instead to focus solely on Longworth's testimony and its impact on the jury. Young expressed his opinion to the requisite degree of medical certainty, and his testimony clearly presented the fact issue of proximate cause. The presence of this second opinion completely undermines the majority's conclusion that the jury relied solely on Longworth's testimony to appellant's detriment. III In upholding appellant's third assignment of error, the majority finds that Arthur Wheeler, M.D., did not devote enough of his time to the active clinical practice of medicine because he testified at deposition that approximately two-thirds to seventy-five percent of his time is spent doing research. In doing so, the majority gives no meaningful consideration to Wheeler's subsequent affidavit in which he stated that he devoted sixty-five percent of his time to the active practice of clinical medicine. It finds it sufficing to say that Wheeler's affidavit merely contradicts his deposition testimony. Ante at 22. The court has the sole discretion to determine the competency of a witness, and the court did not abuse its discretion by finding that Wheeler's affidavit clarified certain aspects of his deposition testimony to make clear the scope of his clinical duties. At trial, Wheeler clarified that his research was part and parcel of his clinical practice of medicine: My research would involve being at the bedside, taking care of critically ill patients with new therapy. Clarified in this manner, Wheeler's testimony dispelled any misunderstanding of his initial statements in deposition. Any discrepancies between the deposition testimony and affidavit ultimately went to Wheeler's credibility, and the court clearly resolved those credibility issues in Wheeler's favor. Moreover, I disagree with the majority when it nit picks with Wheeler's failure to explain in his affidavit how his research is related to the clinical practice of medicine. Wheeler's curriculum vitae fully outlined his impressive (and unchallenged) qualifications, and the jury was fully able to look at these qualifications and decide whether Wheeler's deposition testimony might not have accurately stated the nature of his practice. Moreover, the jury could properly assess Wheeler's credibility in light of the inconsistencies between his affidavit and deposition testimony. In my opinion, the majority finds no compelling reason to *Page 381 show why the court's decision to permit Longworth's testimony was arbitrary, unreasonable or capricious. IV In its discussion of the fourth assignment of error, the majority finds the court committed plain error by failing, on its own initiative, to voir dire a juror who had been accused by another juror of considering matters outside the evidence during deliberations. In reaching this finding, the majority cites to the proper standard of review, but then proceeds to ignore that standard. There are no hard and fast rules for dealing with jury issues that arise during deliberations. Because trial judges are in a better position to review alleged claims of juror misconduct, we must apply an abuse of discretion standard and review the court's failure to question the individual juror to see whether the court's failure was unreasonable, arbitrary or unconscionable. See State v. Hessler (2000),90 Ohio St. 3d 108, 115-116. When jury misconduct does occur, a new trial is not mandatory, but will only be ordered when the juror misconduct has materially affected the substantial rights of the complaining party. State v. Hipkins (1982), 69 Ohio St. 2d 80; State v. Kehn (1977),50 Ohio St. 2d 11, 19. In United States v. McVeigh (C.A.10, 1998), 153 F.3d 1166, 1187, the Tenth Circuit Court of Appeals said: Courts face a delicate and complex task whenever they undertake to investigate reports of juror misconduct or bias during the course of a trial. United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997). In determining whether the allegation is sufficiently serious to warrant a hearing, the district court must consider the content of the allegations, including the seriousness and likelihood of the alleged bias, and the credibility of the source. United States v. Jones, 707 F.2d 1169,1173 (10th Cir. 1983) (citation omitted). Ultimately, the court must weigh the benefits of having a hearing, including the ability perhaps to ascertain more fully the extent and gravity of the possible prejudice, against the risks inherent in interrupting the trial and possibly placing undue emphasis on the challenged conduct. See [United States v. Bertoli, 40 F.3d 1384, (3d Cir. 1994)]; at 1395; [United States v. Harris, 908 F.2d 728 (11th Cir. 1990)] at 734; United States v. Chiantese,582 F.2d 974, 980 (5th Cir. 1978). The Tenth Circuit went on to note that intra-jury misconduct generally has been regarded as less serious than extraneous influences on the jury. 153 F.3d at 1186. See, also, United States v. DeLeon (C.A.1, 1999), 187 F.3d 60, 67. This is not a case where a juror had been accused of learning information about the *Page 382 trial from a source extraneous to the evidence presented at trial, so it cannot be considered a more serious case of alleged misconduct. I can say this is not a serious case of alleged misconduct because all jurors have personal experiences that they take with them into the jury deliberation room and the courts do not expect those experiences to be cast aside during jury deliberations. In United States v. Navarro-Garcia (C.A. 9, 1991), 926 F.2d 818, 821, the Ninth Circuit Court of Appeals said: Inevitably, jurors must rely on their past personal experiences when hearing a trial and deliberating on a verdict. Hard v. Burlington No. RR, 812 F.2d 482,486 (9th Cir. 1987). Indeed, 50% of the jurors' time [is] spent discussing personal experiences. Kessler, The Social Psychology of Jury Deliberations, in The Jury System in America 69, 83 (R. Simon ed. 1975). There are limitations on how a juror may apply personal experiences personal experiences are relevant only for purposes of interpreting evidence in the record. United States v. Jones (C.A.6, 1978), 580 F.2d 219,222. The courts draw the line when personal experience becomes personal knowledge of facts specific to the litigation. See, e.g, Silagy v. Peters (C.A.7, 1990), 905 F.2d 986; Hard v. Burlington Northern RR. (C.A.9, 1989) 870 F.2d 1459 (juror who allegedly worked for the defendant had personal knowledge of the defendant's settlement practices); In re Beverly Hills Fire Litigation (C.A.6, 1982), 695 F.2d 207, 211-212, cert. denied (1983), 461 U.S. 929 (misconduct occurred when juror conducted at-home experiment on the evidence and reported his findings to other veniremen). McMickens told the court that the juror alleged to have engaged in misconduct was talking about stuff like, well, the way it is did [sic] on the job, her job, like that. On its face, the juror's statement is a text-book example of a juror applying her own personal experience to the case at hand. The complaint is so innocuous that it required no further investigation from the court, particularly when appellant failed to ask the court to conduct further inquiry. Just how the majority concludes that the juror was applying a different standard of care, see ante at 35, is obscure. I believe the court gave this issue the hearing it required. Nothing juror McMickens alleged required the court to go any further in investigating misconduct.Under any rational plain error analysis, we must find that appellant has failed her burden on appeal. Finally, I take issue with the majority's conjecture that McMickens' complaints raised the specter that any one of the several jurors on the panel who worked in the medical field could have been engaged in misconduct by informing the jury of their job experiences. See ante at 34. There is simply no evidence in the record to support this conjecture. It is reckless to assume that any person who works in the *Page 383 medical field is incapable of rendering a fair verdict because they would apply their own life experiences. R.C. 2313.42 lists the causes for challenge of persons called as jurors, and nothing in that code section permits a blanket challenge for cause of medical personnel. The majority's dicta might suggest that persons with medical backgrounds would never be competent to sit on juries, and that conclusion is clearly contrary to both the law and public policy. Because I would overrule the assignments of error, I respectfully dissent and would affirm the trial court in toto. ________________________ TIMOTHY E. McMONAGLE, J. ATTACHMENT A APPELLANTS' ASSIGNMENT OF ERROR I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR DURING JURY SELECTION. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING THE TESTIMONY OF DEFENSE EXPERT DAVID LONGWORTH, M.D., OVER PLAINTIFFS' OBJECTION. III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING THE TESTIMONY OF DEFENSE EXPERT ARTHUR WHEELER, M.D., OVER PLAINTIFFS' OBJECTION. IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR DURING JURY DELIBERATIONS. V. THE JURY VERDICT SHOULD BE REVERSED BECAUSE IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. VI. THE TRIAL COURT COMMITTED ERROR IN FAILING TO GRANT PLAINTIFFS' MOTION FOR A NEW TRIAL. JOURNAL ENTRY Decided June 7, 2001 TIMOTHY E. MCMONAGLE, Judge. Defendants-appellees Rajhendra K. Mehta, M.D., 4M Emergency Systems, Inc., and Moudaccer Mounajjed, D.O., have filed motions for reconsideration of this court's opinion and judgment entry rendered on April 12, 2001. In that opinion, we concluded that the culmination of errors that occurred during trial denied appellants their right to a fair and impartial trial. We held that the trial court (1) did not conduct the proper constitutional analysis in evaluating appellant s Batson-Hicks challenge to a peremptory challenge, (2) committed reversible error in allowing Dr. David Longworth to provide expert testimony at trial because his opinion was not held with the requisite degree of certainty, (3) abused its discretion in allowing Dr. Arthur Wheeler to "fudge" his testimony so as to meet, the qualifications for providing expert testimony under the parameters of Evid.R. 601 (D), and (4) failed to protect appellant's right to trial by a jury of *Page 384 unbiased and unprejudiced jurors willing to decide the case solely on the evidence presented to it by not investigating an allegation of juror misconduct brought to the trial judge during jury deliberations. Accordingly, we reversed the judgment of the trial court in favor of appellees and remanded the case for a new trial. The test generally applied to a motion for reconsideration in the court of appeals is whether the motion calls to the attention of the court an obvious error in its decision or raises an issue for consideration that was not considered at all or was not fully considered by the court when it should have been. See, e.g., Chandler Assoc., Inc. v. America's Healthcare Alliance, Inc. (1997), 125 Ohio App. 3d 572, 709 N.E.2d 190; Woerner v. Mentor Exempted Village School Dist. Bd. of Edn. (1993),84 Ohio App. 3d 844, 619 N.E.2d 34; State v. Gabel (1991),75 Ohio App. 3d 675, 600 N.E.2d 394; Columbus. v. Hodge (1987), 37 Ohio App. 3d 68,523 N.E.2d 515; Matthews v. Matthews (1981), 5 Ohio App. 3d 140, 5 OBR 320,450 N.E.2d 278. Dr. Mehta, citing State v. Gowdy (2000), 88 Ohio St. 3d 387,727 N.E.2d 579, submits that this court should reconsider its decision that the trial court did not properly apply the Batson test to appellants' allegation of racial discrimination in opposition to appellee's peremptory challenge. Dr. Mehta argues that an appellate court can overturn a trial court's finding on the issue of discriminatory intent only if that finding is "clearly erroneous," and there is no evidence here that the trial court finding of nondiscriminatory intent was clearly erroneous. Dr. Mehta's argument and citation to Gowdy, supra, indicates that he misunderstands our decision. Our holding that the trial court erred in not finding discriminatory intent was based on the trial court's abbreviated and inadequate analysis of the constitutional question presented by appellants' Batson-Hicks challenge — not on the evidence or lack thereof of discriminatory intent in appellee's peremptory strike. As we stated in our opinion: "Appellants' argument regarding appellee's peremptory challenge to remove Juror Number 7 from the venire is not that appellee's exercise of its peremptory challenge constituted racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Rather, appellants' argument is that the trial court committed reversible error because it did not conduct the proper constitutional analysis in determining that appellee St. Alexis Hospital was not racially motivated in excluding an African American from the jury through the use of a peremptory challenge. We agree." (Emphasis in original.) Accordingly, we held that by abruptly interrupting counsel and immediately ruling upon appellants' Batson-Hicks challenge before counsel had concluded his explanation of his alleged nondiscriminatory reason for the peremptory strike, the trial judge failed to adequately analyze the constitutional question presented *Page 385 by appellants' challenge. In short, the trial judge did not bother even to complete the first step of the three-part Batson inquiry before ruling on the challenge. Dr. Mehta's citation to Gowdy is therefore inapposite. In Gowdy, the record indicated that the trial judge ruled on the plaintiffs Batson-Hicks challenge to the state's peremptory challenge of a prospective juror after the prosecutor set forth three valid reasons for challenging the juror. The Supreme Court of Ohio found that "[w]hile the trial judge could have made more explicit findings on the record regarding the challenges," the trial court had properly completed all three steps of the three-part Batson inquiry and, accordingly, did not abuse its discretion in allowing the state to exercise a peremptory challenge against a prospective juror. That was clearly not what happened here. Dr. Mehta also asserts that this court should reconsider its decision regarding Dr. Wheeler's testimony because his trial testimony "clarified" that he was competent to testify. This argument was considered and rejected in our decision rendered on April 12, 2001. Similarly, we considered and rejected the argument made by Dr. Mounajjed and 4M Emergency Systems that the proximate cause testimony of Dr. Longworth, admitted even though he acknowledged that he did not hold his opinion with the requisite degree of certainty, was harmless error because the jury found that Dr. Mounajjed was not negligent. The "reality" is that the jury reached the issue of proximate cause, as demonstrated by its note to the judge indicating they were stalemated on this issue. Finally, Dr. Mehta asserts that this court erred in ordering a new trial because any juror misconduct was harmless. Dr. Mehta contends that because the jury found that St. Alexis Hospital was negligent, any misconduct "could have only inured to the benefit of the plaintiff' and, hence, there was "actual prejudice" to appellants. Dr. Mehta's argument ignores the fact that although the jury found that St. Alexis had breached the standard of care, it also found that St. Alexis Hospital's breach was not the proximate cause of appellants' damages. In light of this finding, the extraneous information brought to the attention of the jury by the unnamed nurse-juror may indeed have been prejudicial to appellants. As we stated in our opinion, however, the trial judge's complete failure to investigate the allegation of juror misconduct makes it "impossible to ascertain, much less demonstrate, whether or not [appellants] were actually prejudiced by the alleged juror misconduct" and what parts, if not all, of the jury verdict were tainted. *Page 386 Appellees have not raised an obvious error in our prior decision, nor have they raised an issue that was not previously considered. Appellees' motions for reconsideration are therefore denied. Motion for reconsideration denied. DIANE KARPINSKI, A.J., concurs. MICHAEL J. CORRIGAN, J., dissents.

2016-07-06 06:36:13.51841+00

Whiteside

Appellant, Browning-Ferris Industries, Inc. ("BFI"), appeals an order of the State Environmental Board of Review ("EBR"), and raises the following assignment of error: *Page 98 "The Ohio Environmental Board of Review erred in affirming Final Orders # 285 and # 286, issued by Appellee Mahoning County Board of Health on December 22, 1988." BFI owns and operates a solid waste disposal facility located in Mahoning County. This facility has been in operation since 1963 and had consistently received an annual operating license until December 1987 when appellee, Mahoning County Board of Health ("board"), issued two proposed orders relating to BFI's application for a 1988 operating license. Board order No. 285 ordered BFI to "* * * reduce its intake at its * * * [facility] to within 2,500 cu. yd/day. This order is a Proposed Order which shall become a Final Order thirty days after mailing." Board order No. 286 stated that because BFI had been operating at a daily intake level which far exceeded the limit of two thousand five hundred cubic yards per day, BFI was being denied a 1988 operating license. In other words, the alleged violation which prevented BFI from obtaining an operating license for 1988 was a violation of a volume limit which had first been set in the previous order No. 285, which by its terms was not yet effective when the operating permit was denied. Following the issuance of these orders, BFI requested a hearing before the board, which was subsequently held September 19, 1988. A hearing officer of the board recommended that the board's decision be affirmed and, on December 22, 1988, the board voted to approve both orders, making them final. BFI appealed those orders to the EBR. A hearing was held on February 14, 1989. On May 10, 1989, after issuing findings of fact and conclusions of law, the EBR held that the final orders of the board were both reasonable and lawful and, therefore, the volume limitation was affirmed as was the 1988 license denial. It is from this decision which BFI now appeals. R.C. 3745.06 provides that upon appeal to this court from an order of the EBR, this court shall affirm the decision if it "* * * is supported by reliable, probative, and substantial evidence and is in accordance with law. * * *" Due deference is to be given to the administrative agency's determination of conflicts in the evidence. See Plumbers Steamfitters Commt. v.Ohio Civil Rights Comm. (1981), 66 Ohio St. 2d 192, 200, 20 O.O.3d 200, 205, 421 N.E.2d 128, 133; and Univ. of Cincinnati v.Conrad (1980), 63 Ohio St. 2d 108, 111, 17 O.O.3d 65, 67, 407 N.E.2d 1265, 1267. Thus, although a limited weighing of evidence is involved, this court will not conduct a de novo review of the EBR's decision but, rather, will determine whether that decision is supported by evidence which is reliable, probative and substantial. *Page 99 Prior to addressing BFI's contentions, a review of the applicable law as of December 1987 (the time when the board issued the proposed orders) is necessary. R.C. 3734.05(A), as it existed December 1987, provided, in pertinent part: "No person shall operate or maintain a solid waste facility without a license issued by the board of health of the health district in which the facility is located." At that time, Ohio Adm. Code 3745-37-03(A) stated that a board of health should not issue an operating license unless a permit to install ("PTI"), if required, had been obtained. A PTI was required in December 1987 if the solid waste disposal facility underwent an increase of greater than fifty percent or a minimum of three hundred tons in its average daily waste receipts. See Ohio Adm. Code 3745-31-01(I)(2)(c) and 3745-31-02(A) as in effect in December 1987. Both parties rely upon statutes and regulations which were changed after the 1987 license denial. R.C. 3734.05(A) was amended by H.B. No. 592, effective June 24, 1988, to authorize individual boards of health to set daily maximum waste receipts for each facility. Section 6(C)(1) of H.B. No. 592 further provided that: "* * * during the period of one year after the effective date of this act * * * no owner or operator of a solid waste facility shall dispose of any solid wastes * * * in excess of the maximum daily amount specified for the month of March, 1988 * * *." Ohio Adm. Code 3745-31-01, defining "modify," was amended effective June 12, 1989, to reflect these changes. PTIs are now required if the facility is undergoing a change in the established authorized maximum daily waste receipts. However, all of these amendments and changes are not relevant to our consideration herein as we must apply the law in existence at the time of the board's proposed orders, i.e., December 1987. See Gibson v. Oberlin (1960), 171 Ohio St. 1, 12 O.O.2d 1, 167 N.E.2d 651. Turning to appellant's assignment of error, in proposed order No. 286, the board stated that BFI was being denied an operating license for 1988 because it was exceeding the two thousand five hundred cubic yards per day limit set by the board in order No. 285. In its brief, the board further contends that BFI was not in substantial compliance with the regulations governing solid waste disposal facilities in that BFI increased its daily waste receipts by more than fifty percent without first obtaining a PTI. Therefore, the board contends the license denial was justified. *Page 100 BFI, on the other hand, contends that the board did not, in 1987, have the authority to impose a daily waste receipt limit and, further, that the board's order denying the 1987 operating license was erroneous. BFI contends that no PTI was required because it was a "grandfathered site" and more importantly that the EPA had previously stated that BFI need not obtain a PTI. We turn first to the issue of whether the board had the authority in December 1987 to establish a maximum daily waste receipt limit for BFI. The board's express authority to issue the license stems from R.C. 3734.05(A) which, in December 1987, read in pertinent part: "During the month of December, but before the first day of January of the next year, every person proposing to continue to operate an existing solid waste facility shall procure a license to operate the facility for that year from the board of health of the health district in which the facility is located. * * *" In addition, R.C. 3734.04 conferred certain powers upon the board of health by providing as follows: "The board of health of each district shall provide for the inspection, licensing, and enforcement of sanitary standards for solid waste facilities in conformity with Chapter 3734. of the Revised Code. * * *" While it is true that R.C. 3734.05(A) did not expressly give the board such authority, there is still an issue as to whether the board had the implied authority to set such limit. Generally, an administrative agency or board such as the board of health has no greater power than that expressly conferred upon it and has no inherent power. See Washington v. Pub. Util.Comm. (1918), 99 Ohio St. 70, 72, 124 N.E. 46, 47. However, as stated in State, ex rel. Bentley Sons Co., v.Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6, 7: "Such grant of power, by virtue of a statute, may be either express or implied, but the limitation put upon the implied power is that it is only such as may be reasonably necessary tomake the express power effective. In short, the implied power is only incidental or ancillary to an express power, and, if there be no express grant, it follows, as a matter of course, that there can be no implied grant." (Emphasis added.) See, also,Burger Brewing Co. v. Thomas (1975), 42 Ohio St. 2d 377, 71 O.O.2d 366, 329 N.E.2d 693. Thus, although such implied powers are limited to those "necessary to make the express power effective," they do exist. In Bentley, supra, a state statute expressly limited the amount of money county commissioners could spend on a public work. The court concluded that the intent of the legislature *Page 101 was clear and that intent was expressly to limit the amount of money expended. Although the court recognized the existence of implied powers of the board, it held that without the express grant to spend additional money, there could be no implied authority how to spend it. Likewise, there was no implied authority in 1987 for county boards of health to set waste receipt limitations for facilities such as BFI. This conclusion follows from a careful reading of other pertinent statutory provisions. In 1987, R.C. 3734.02(A) read in pertinent part: "The director of environmental protection, in accordance with Chapter 119. of the Revised Code, shall adopt and may modify, suspend, or repeal rules having uniform application throughout the state governing solid waste facilities and the inspections and issuance of licenses for all solid waste facilities in order to ensure that the facilities will be located, maintained, and operated in a sanitary manner so as not to create a nuisance, cause or contribute to water pollution, create a health hazard, or violate 40 C.F.R. 257.3-2 or 40 C.F.R. 257.3-8, as amended. * * * The director, in accordance with Chapter 119. of the Revised Code, shall adopt and may modify, suspend, or repeal rules governing the issuance, modification, revocation, suspension, or denial of variances from his solid waste rules. Variances shall be issued, modified, revoked, suspended, or repealed in accordance with this division, rules adopted under it, and Chapter 3745. of the Revised Code. * * *" R.C. 3734.02(A) expressly provides that rules for solid waste facilities should be adopted by the director of environmental protection (not a district or county board of health) towards the end of uniformity throughout the state. R.C. 3734.05(G)(1) further granted the director additional authority as it read in pertinent part: "Each person who holds an installation and operation permit issued under this section and who wishes to obtain a permit renewal shall submit a completed application for an installation and operation permit renewal and any necessary accompanying general plans, detail plans, specifications, and such information as the director may require to the director no later than one hundred eighty days prior to the expiration date of the existing permit * * *. The director shall consider the application and accompanying information, inspection reports of the facility, results of performance tests, a report regarding the facility's compliance or noncompliance with the terms and conditions of its permit and rules adopted by the director under this chapter, and such other information as is relevant to the operation of the facility and shall issue a draft renewal permit or a notice of intent to deny the renewal permit. * * *" *Page 102 Accordingly, it would be inconsistent with these provisions granting such authority to the director to imply that a district or county board of health, in 1987, had the authority to determine and establish a daily waste receipt limit for a solid waste facility. Such a limit may only be imposed if it and the basis therefor are established by a rule properly adopted by the director. Furthermore, if the director chooses to adopt such rules, the procedural requirements of R.C. Chapter 119 (specifically R.C.119.03) must be met. Failure to adopt rules in accordance with these procedural requirements renders the purported rule invalid. See R.C. 119.03 and Bd. of Trustees v. Dept. of Admin.Services (1981), 68 Ohio St. 2d 149, 153, 22 O.O.3d 383, 386,429 N.E.2d 428, 431. In 1987, the only regulation in effect relating to a daily waste receipt limit was Ohio Adm. Code 3745-31-01(I)(2)(c) concerning when a PTI was necessary. The director had not promulgated any other limits regarding daily waste receipt limits for solid waste disposal facilities. It follows that while boards of health may have certain implied powers, one of those powers was not (in 1987) the authority to set daily waste receipt limits for a solid waste disposal facility. Such an implied power would have directly contravened the express authority of the director to adopt rules governing solid waste disposal facilities pursuant to the 1987 R.C. 3734.02(A). While there has been a subsequent change in the law which now authorizes boards of health to set daily waste receipt limits, in 1987, the boards did not have that authority. Accordingly, the Mahoning County Board of Health had no authority to set a daily waste receipt limit for BFI in 1987 in order No. 285, and it was error for the EBR to affirm such order. Turning to board order No. 286, in which the BFI's 1988 operating license was denied, the issue becomes whether a volume limitation could be imposed as a condition of that license. While the board did not have the implied authority to set arbitrary limits, our analysis of whether the volume limitation is nevertheless valid does not end there because the evidence indicates that the EPA actually imposed the limit, not the board. In a letter written by Philip P. Rhodes, environmental engineer with the Ohio EPA, in November 1987, the board was informed that a daily waste receipt limit of two thousand five hundred cubic yards per day should be imposed upon BFI. Specifically, it concluded "* * * [w]e are therefore asking your department to take appropriate regulatory action." The next paragraph reads as follows: "This action would include formally notifying the landfill that they are in violation of OAC 3745-27-08(A) and OAC3745-31-02(A). They must be required to drop back below the average daily volume of 2500 yd3/day. The timetable to accomplish this is at your discretion, but should be as soon as *Page 103 practical. Failure to comply should result in appropriate enforcement action taken by your department. The landfill should also be informed that failure to comply, will jeopardize their upcoming 1988 license." Furthermore, this letter indicated that BFI was aware of the problem and that a PTI would be required by the EPA. Therefore, the decision to impose a daily waste receipt limit originated with the Ohio EPA, not the board. The next step is to determine if the action of the Ohio EPA imposing such a limit is a valid exercise of its authority. The limitation stems from BFI being in violation of both the 1982 and 1987 versions of Ohio Adm. Code 3745-31-01(I)(2)(c) and Ohio Adm. Code 3745-31-02(A), which together required a PTI if a solid waste disposal facility increases its intake of average daily waste by more than fifty percent. It is stipulated that BFI was in substantial compliance with all laws and regulations including any volume limitations prior to 1987. Because BFI tripled its average daily waste receipt during 1987 (BFI does not contend otherwise) without obtaining a PTI, it is contended that BFI in 1987 was not in substantial compliance with the regulations, as they permit only a fifty percent increase without first obtaining a PTI. It is clear that BFI, by increasing its solid waste intake by at least two hundred forty-seven percent in 1987, violated Ohio Adm. Code 3745-31-01(I)(2)(c) and 3745-31-02(A) (in effect in 1987) in that the required PTI was not obtained. BFI contends that as a "grandfathered site," those regulations did not apply to it. However, if this argument is taken to its logical conclusion, BFI would not be subject to any waste receipt limitations, which would be clearly inappropriate. The EPA's action in calculating the two thousand five hundred cubic yards per day, based upon BFI's 1987 volume plus fifty percent, is reasonable under the circumstances. Although the board of health handled it incorrectly, such a waste receipt limit could be imposed as a condition of BFI's 1988 operating license. Furthermore, in doing so, the board would not have exceeded its scope of authority. There is nothing in the statutes or regulations to prohibit the board from issuing a license which incorporates the existing law, follows the mandate of the EPA and, in essence, not only warns the facility of the potential consequences if the law is not complied with, but also limits use of the license to the limits established by law. It is permissible for the board to set forth in the license its interpretation of the applicable law as it applies to the facility. If appellee had issued an operating license to BFI with the condition that BFI comply with the law (including its daily waste receipt limit), it would have *Page 104 been permissible. However, to issue a separate order setting forth such limit and then using that limit as a basis of denying BFI an operating license was clearly erroneous. Accordingly, BFI's assignment of error is well taken. However, this case is remanded with instructions to determine whether a conditional license should issue with the two thousand five hundred cubic yards per day volume limitation. For the foregoing reasons, BFI's assignment of error is sustained, the order of the Environmental Board of Review is reversed and this matter is remanded with instructions to that board for further proceedings in accordance with law consistent with this opinion. Order reversedand cause remanded. REILLY and BRAME, JJ., concur. MICHAEL A. BRAME, J., of the Vinton County Common Pleas Court, sitting by assignment.

2016-07-06 06:36:13.636815+00

Handwork

This case is before the court on appeal from a judgment of the Wood County Court of Common Pleas, which granted appellee's motion to suppress on September 15, 1982. From said judgment appellant, state of Ohio, has timely brought this appeal under Crim. R. 12(J). Appellant has raised two assignments of error, which are as follows: "First Assignment of Error "The trial court erred, as a matter of law, in granting appellee's motion to suppress; since, the appellee's right to be free from compulsory self-incrimination, as is commanded by theFifth Amendment to the United States Constitution [and] in Section 10, Article I of the Ohio Constitution was not violated. "Second Assignment of Error "The trial court erred, as a matter of law, in suppressing those portions of appellee's grand jury testimony which are relevant to the charge of falsification; since, the failure to advise a grand jury witness of the privilege against self-incrimination cannot form a basis for having false statements made to the grand jury suppressed in a subsequent prosecution based upon those statements." The undisputed facts giving rise to this appeal are as follows. A two-year-old child, Jeremy Davison, was admitted to the Wood County Hospital on January 22, 1982. Jeremy had been severely burned and bruised, with blisters and burn marks covering most of his body. The only person with Jeremy at the time he sustained these injuries was appellee Rochelle Cook. The investigation into the cause of Jeremy's injuries was turned over to the Wood County Grand Jury. Appellee was twice subpoenaed to appear before the grand jury. Her first appearance was on March 3, 1982. Before testifying, appellee was not in any way warned of her constitutional privilege to decline to answer incriminating questions. Appellee was apparently interrogated with regard to the facts precipitating Jeremy's injuries. On April 7, 1982, appellee was again subpoenaed before the grand jury. The record indicates that she received Miranda warnings before being questioned. Appellee thereafter testified without invoking herFifth Amendment privilege against compulsory self-incrimination and without indicating that she wanted to see an attorney. On May 6, 1982, the grand jury returned a two-count indictment charging her with child endangering and falsification, violations of R.C. 2919.22 and 2921.13, respectively. On June 17, 1982, *Page 239 appellee filed a motion to suppress all her grand jury testimony. Hearings were held on appellee's motion, and the trial court granted the same on September 15, 1982. Appellant has framed the issue of appellee's privilege against compelled self-incrimination as it arises under theFifth Amendment to the federal Constitution, and Section 10, Article I of the Ohio Constitution. In support of their respective positions, both parties to this appeal have cited and urged as controlling certain aspects of United States v. Mandujano (1976),425 U.S. 564. Mandujano was a plurality decision resting primarily on two separate opinions, each concurring in the judgment. One opinion concluded only that the now familiarMiranda warnings need not be given to a grand jury witness subpoenaed to testify as to criminal activity in which he may have been involved. United States v. Mandujano, supra, at 571-584 (opinion of Burger, C.J.). The second opinion concluded that on the particular facts of Mandujano, the defendant could be prosecuted for perjury consistent with the Fifth Amendment, but that absent "an intentional and intelligent waiver" of his "known" privilege against compulsory self-incrimination, the prosecution could not use a putative defendant's grand jury testimony against him at trial. United States v. Mandujano,supra, at 584-609 (opinion of Brennan, J., concurring in the judgment). Certain facts in Mandujano are significant. A federal grand jury was investigating illicit drug trafficking. The prosecutor had information that the defendant was involved in certain narcotics transactions. He was subpoenaed to testify regarding the illicit trafficking and, prior to questioning, the prosecutor advised the defendant that he was required to answer all questions asked, except those which he felt might incriminate him. The defendant thereafter testified and some of his answers were undisputedly false. Based upon this grand jury testimony, the defendant was indicted for attempting to distribute narcotics and for perjury. Mandujano is thus distinguishable from the instant case in two respects. First, the defendant in Mandujano was in fact given a so-called "privilege warning" prior to any questioning. He was also advised that he could have an attorney present outside the grand jury room and could consult with him if he wished. Secondly, the defendant appeared before the grand juryonly once and it was this testimony which provided the basis for his perjury indictment. Perhaps more importantly, the plurality opinion in Mandujano must be evaluated in the context of two subsequent decisions: United States v. Washington (1977),431 U.S. 181, and United States v. Wong (1977), 431 U.S. 174. The facts of Washington and Wong are not significantly different from those in Mandujano. In Wong, a federal grand jury was investigating illegal gambling operations, and the defendant was subpoenaed to testify in regard thereto. Prior to questioning, the defendant was given Miranda-type warnings. Two facts in Wong were undisputed. First, the defendant did not fully understand the meaning of her Fifth Amendment privilege or her right to invoke it. Second, some of the testimony which she gave after receiving the warnings was false. The defendant was later indicted for perjury. The Supreme Court unanimously held that the defendant was not entitled to the suppression of her grand jury testimony because "the Fifth Amendment privilege does not condone perjury." United States v. Wong, supra, at 178. The court rejected the contention that because Wong was unaware of the nature of her constitutional privilege to refuse to answer incriminating questions, she faced the dilemma of either incriminating herself, by answering truthfully, or committing perjury. The court held that even if such a dilemma existed, perjury was never justified. United States v. Wong, supra, at 178-179. Adhering to certain language from portions of *Page 240 the Mandujano plurality opinion, and earlier cases, the Supreme Court, at page 180, stated: "`Our legal system provides methods for challenging the government's right to ask questions — lying is not one of them.'" See, also, Bryson v. United States (1969), 396 U.S. 64, 72. In the Washington case, the grand jury was investigating a theft incident. The prosecutor and the grand jury suspected that the defendant and certain accomplices were involved. Prior to questioning, the defendant was given Miranda warnings. The defendant thereafter testified and the grand jury subsequently indicted him for grand larceny and receiving stolen property. The federal district court suppressed his grand jury testimony on the basis that he had not received a warning that he was the "target" of the investigation, in effect, a putative or potential defendant. In reversing the district court, the Supreme Court narrowly held that the Fifth Amendment did not require that putative or potential defendants be warned of their status as "targets" prior to questioning. United States v. Washington,supra, at 188-189. The Supreme Court explicitly declined to reach the issue of whether a privilege warning is constitutionally required for witnesses who are putative or potential defendants.United States v. Washington, supra, at 186 and 190. SinceMiranda warnings had in fact been given to the defendant inWashington, the court's holding reached only the issue of whether the Fifth Amendment required a "target" warning. That grand jury testimony would be "compelled" in the absence of a constitutionally required warning seems clear. As the court inWashington noted, at page 188: "* * * [The warnings given to the defendant] eliminated anypossible compulsion to self-incrimination which might otherwise exist. * * * Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, anypossible coercion or unfairness resulting from a witness' misimpression that he must answer truthfully even questions with incriminatory aspects is completely removed by the warnings givenhere." (Emphasis added.) From the foregoing analysis of the Wong and Washington cases, significant factual distinctions appear. In each case, the defendants were subpoenaed only once before the grand juries involved. In each case, too, other witnesses were available who might have testified to the matters being investigated. Each defendant received some warning as to his or her Fifth Amendment rights; indeed, the defendants in Wong and Washington received comprehensive, Miranda-type warnings. In the case sub judice, appellee testified twice before the Wood County Grand Jury. The prosecutor has conceded, both in this court and in the trial court, that appellee was the only person who could have witnessed what happened to Jeremy. Indeed, at all times pertinent to the grand jury's investigation, she was theonly person who conceivably could have been a defendant. Prior to appellee's first appearance before the grand jury on March 3, the prosecution had the benefit of the initial police investigation into the cause of Jeremy's injuries. It is undisputed that appellee received no warning whatsoever prior to her interrogation on March 3. Yet, in the prosecutor's words,1 "after hearing her testimony, the state concluded that there was reason to believe she was involved in illegal activity." Approximately one month later, appellee was again subpoenaed *Page 241 before the grand jury. This time, prior to questioning, she received Miranda warnings. Based upon these facts, we conclude that on March 3 appellee was a putative or potential defendant. Though variously formulated, the test is an objective one for determining whether a particular witness merits "putative defendant" status. A witness is a putative defendant if, at the time he appears before the grand jury, the witness is potentially the focus of the investigation and is thus subject to possible indictment. As a putative defendant, appellee should have been warned of her right to be free from compelled self-incrimination. In order to secure the Fifth Amendment privilege of a putative defendant-witness in the context of a grand jury proceeding, we hold that the following warning is required.2 After being sworn, but prior to any questioning, the witness must be told that he has a constitutional privilege to refuse to answer any question that might incriminate him. The witness must be warned that any incriminating answers or statements he does make can be used against him in a subsequent prosecution. Finally, the witness must be advised that he may have an attorney outside the grand jury room and may consult with him if he wishes. See UnitedStates v. George (C.A. 6, 1971), 444 F.2d 310, 315; cf. UnitedStates v. Mandujano, supra, at 581 (opinion of Burger, C.J.). The prosecutor need not advise the witness that he is suspected of criminal activity or that he is a "target" of the investigation. See United States v. Washington, supra. *Page 242 If the witness thereafter claims his privilege in any language which may be reasonably understood as invoking or asserting it, the prosecutor and the grand jury must honor the witness' decision to exercise it until immunity is granted or a valid waiver is secured.3 Grand jury testimony obtained without first warning the witness of his constitutional privilege will be deemed compelled and may not be used against him in a subsequent prosecution. Since appellee received no warning whatsoever before testifying on March 3, her grand jury testimony from that proceeding was inadmissible in a subsequent prosecution. Notwithstanding this, the state argues that appellee's testimony on March 3 and April 7 was relevant and admissible in prosecuting the falsification count of the indictment. We find no merit in this argument. Unlike the single grand jury appearances of the defendants inMandujano, Washington and Wong, appellee testified twice before the Wood County Grand Jury. The state seeks to introduce portions of appellee's testimony from each of these appearances in order to establish contradictory, and thus presumably false, statements. See R.C. 2921.13(C). But, as we have said, since appellee received no warning of her Fifth Amendment privilege on March 3, the date of her first appearance, any incriminating testimony given in that proceeding was compelled. The fact that the prosecutor "Mirandized" appellee at the April 7 appearance was insufficient to purge the taint of compulsion from her previous testimony. We quite agree that there is no constitutional right to commit perjury. However, under the circumstances here, the responses elicited by the prosecutor's interrogation on April 7 could serve no purpose other than to permit the state to "bootstrap" its case for falsification. Clearly, as a foundation for establishing contradictory statements, the state would seek to introduce appellee's March 3 testimony. Consequently, appellee's grand jury testimony, even as to the falsification charge, was subject to suppression. Accordingly, the state's assignments of error are not well-taken. On consideration whereof, this court finds that the trial court did not err in suppressing the grand jury testimony of appellee Rochelle Cook, and the judgment of the Wood County Court of Common Pleas is hereby affirmed. This cause is remanded to said court for further proceedings according to law. Costs assessed against appellant. Judgment affirmed. DOUGLAS and RESNICK, JJ., concur. 1 This statement is taken from the prosecutor's responsive memorandum to defendant-appellee's motion to suppress, filed July 6, 1982. 2 A warning which informs a grand jury witness of hisFifth Amendment privilege against self-incrimination is to be distinguished from comprehensive Miranda warnings. Appellee's position is that Miranda warnings are constitutionally required for grand jury witnesses who are potential defendants. We disagree. Those warnings are inappropriate in the context of a grand jury proceeding. The first principle of Miranda is that an accused has an absolute right to remain silent. Miranda v.Arizona (1966), 384 U.S. 436; see, also, United States v. Dohm (C.A. 5, 1980), 618 F.2d 1169, 1173. No such right exists for a witness subpoenaed to testify regarding matters which the grand jury is investigating. On the contrary, the witness is under a near-absolute duty to answer all questions put to him. The only exception to this duty is the witness' constitutional privilege to decline to answer any question if a truthful answer would incriminate him. This accounts for the Supreme Court's characterization of Miranda warnings as an "obvious overstatement" of a grand jury witness' constitutional rights. See United States v. Washington (1977), 431 U.S. 181, 183-184, fn. 2. Miranda warnings are informative, prophylactic safeguards designed to secure the Fifth Amendment privilege against self-incrimination in the context of police custodialinterrogation. The warnings were prompted by the Supreme Court's concern over the inherently coercive nature of custodial interrogation and its desire to curb police abuses. Miranda v.Arizona, supra. As the Mandujano court noted: "* * * Miranda addressed extrajudicial confessions * * * procured in a hostile, unfamiliar environment which lacked procedural safeguards."United States v. Mandujano, supra, at 579; cf. Brown v. Illinois (1975), 422 U.S. 590, 600-601. However, this is not to say that the privilege against self-incrimination evaporates once the witness enters the cloister of a grand jury room. The availability and vitality of the privilege in the grand jury setting is well-established. See,e.g., Counselman v. Hitchcock (1892), 142 U.S. 547. As for the propriety of a privilege warning, we find the position of the United States Court of Appeals in United States v. Chevoor (C.A. 1, 1975), 526 F.2d 178, 182, certiorari denied (1976),425 U.S. 935, to be persuasively reasoned: "* * * While there is not the isolated and unobservable stationhouse custody which underlies the holding in Miranda, * * * the conjunction of an assembled grand jury, a vigorous prosecutor, and ex parte proceedings conducted in the absence of a lawyer counselling the witness gives rise to a kind of coerciveness suggesting the wisdom of giving at least notice that a witness need not testify if such would incriminate him." 3 The privilege may be knowingly and voluntarily waived. The prosecutor has the burden of demonstrating such a waiver by a preponderance of record evidence.

2016-07-06 06:36:13.926658+00

Per Curiam

Appellant, Richard Lambrecht, has filed this appeal from an October 2, 1989 findings of fact, conclusions of law and judgment entry filed in the Lucas County Court of Common Pleas. The judgment entry appealed from denied appellant's motion for post-conviction relief. Appellant has previously sought relief from this court. As we noted in our July 21, 1989 decision and journal entry, this case began on November 5, 1986 when appellant was indicted for one count of trafficking in drugs, a violation of R.C. 2925.03(A)(2). Appellant, accompanied by counsel, entered a plea of guilty to the trafficking charge on March 5, 1987. Appellant received a sentence of three to fifteen years in a state penal institution and was fined $7,500. Appellant filed a direct appeal to this court, challenging the constitutionality of the sentence rendered. This court affirmed the Lucas County Court of Common Pleas. Appellant then filed a petition for post-conviction relief in the Lucas County Court of Common Pleas. The Lucas County Court of Common Pleas ruled that appellant was not entitled to post-conviction relief because ofres judicata. Appellant then appealed to this court, and we reversed the lower court's ruling and remanded the petition for post-conviction relief for further consideration. State v.Lambrecht (1989), 58 Ohio App. 3d 86, 568 N.E.2d 743. The basis for this court's July 21, 1989 decision and journal entry was that res judicata did not apply to bar consideration of appellant's claim of ineffective assistance of counsel since appellant did not have the opportunity to raise the claim at trial or on direct appeal. Id. at 87, 568 N.E.2d at 744. On remand, appellant filed an affidavit of bias and prejudice requesting that the judge involved in the original sentencing and post-conviction relief denial be barred from considering the petition for post-conviction relief on remand. *Page 258 The Supreme Court of Ohio granted the request after the original judge agreed to recuse himself. A new judge, appointed to consider appellant's petition, also denied appellant's request for post-conviction relief. Appellant brings this appeal from the denial of his post-conviction relief. Appellant raises four assignments of error, which state: "1. Appellant was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution as it apply [sic] to the state [sic] through thefourteenth amendment. And that appellant present evidentiary matter dehor[s] the record and that appellant should have had an evidentiary hearing pursuant to R.C. 2953.21(E). "2. That the trial court abused its discretion by sentencing the appellant contrary to law in that it coerced the appellant into pleading to the elements of the crime charged, knowing that the appellant had raised an affirmative defense to the charge. That appellant [sic] plea could not have been knowingly, voluntarily and intelligently entered. "3. That the trial judge and defense counsel conspired against the appellant in order to get the appellant to admit to the elements of the crime charged. Knowing that appellant had raised an Affirmative defense [sic]. "4. The trial court abused its discretion in ruling on appellant [sic] petition for post conviction relief, the court erred in not noticing its error under criminal rule 52(B), the court erred in that it determined there would be no prejudicial effect on the rights of appellant as well as where it determined that no evidentiary hearing should not be granted to appellant." The essence of appellant's assignments of error is that appellant received ineffective assistance of counsel, which resulted in his guilty plea not being voluntarily and intelligently entered. Because appellant entered a plea of guilty, which was accepted at trial, appellant is limited to raising only two issues on appeal. The issues which appellant can raise are: (1) whether the trial court lacked subject matter jurisdiction to accept the plea; and (2) whether the plea was made knowingly, voluntarily and intelligently as required by Crim.R. 11. State v. Burgette (Mar. 23, 1990), Lucas App. No. L-89-146, unreported, at 6, 1990 WL 31763. We will consider appellant's claim of ineffective assistance of counsel only as it relates to one of the two issues listed above. Since appellant's arguments are interwoven in all four assignments of error, the assignments of error will be considered together. Appellant raises four main arguments to support his assertion that he received ineffective assistance of counsel. First, appellant argues that his attorney should have raised the affirmative defense that the drugs in appellant's *Page 259 possession were for his own use. Second, appellant claims that his attorney should have ascertained that appellant was drug dependent at the time of trial, and that the failure to do so prejudiced appellant's defense. Third, appellant claims that he was coerced by the court and his attorney into pleading guilty to a serious crime without thorough knowledge of the consequences. And fourth, appellant claims that the trial court abused its discretion by denying appellant's petition for post-conviction relief without conducting an evidentiary hearing on the aforementioned issues. When evaluating appellant's arguments, we must follow a two-step process established by the Supreme Court of Ohio to determine whether an individual has been denied effective assistance of counsel. The Supreme Court of Ohio has stated: "`First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next * * * there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness.'" State v. Jackson (1980), 64 Ohio St. 2d 107,110, 18 O.O.3d 348, 350, 413 N.E.2d 819, 822, quotingState v. Lytle (1976), 48 Ohio St. 2d 391, 396-397, 2 O.O.3d 495, 497-498, 358 N.E.2d 623, 626-627, vacated on other grounds (1978), 438 U.S. 910, 98 S. Ct. 3135, 57 L. Ed. 2d 1154. Appellant bears the initial burden of proof to demonstrate that both parts of the test are satisfied, and must produce evidentiary documents to satisfy the burden of proof. State v.Jackson, supra, 64 Ohio St.2d at 111, 18 O.O.3d at 350,413 N.E.2d at 822. Appellant's first argument is that his attorney violated an essential duty to him when the attorney failed to raise an affirmative defense which appellant asserts was available to him. The affirmative defense appellant relies on is found in R.C. 2925.03(F), which states in pertinent part: "It shall be an affirmative defense * * * to a charge under this section for possessing a bulk amount of a controlledsubstance or for cultivating marihuana that the substance which gave rise to the charge is in such amount * * * as to indicate that the substance was solely for personal use." (Emphasis added.) Appellant was charged with and found guilty of trafficking in drugs. The section relied on by appellant provides an affirmative defense for those charged with possessing a bulk amount of a controlled substance or for cultivating marijuana and is therefore inapplicable to cases involving a charge under R.C. 2925.03(A)(2) which is for trafficking in drugs. Appellant's attorney did not violate an essential duty when he failed to inform appellant of the *Page 260 provisions of R.C. 2925.03(F) because the provisions in question were inapplicable to appellant's case. Accordingly, appellant's counsel did not commit any error affecting the voluntary nature of appellant's guilty plea. Appellant's argument, therefore, fails to satisfy the first part of the Jackson test and fails to meet the criteria for challenging a guilty plea. Appellant's next claim, that his defense was prejudiced by his attorney's failure to determine that appellant was drug dependent at the time of trial, also fails to satisfy theJackson test and the criteria for overturning a guilty plea. The transcript reveals that the court questioned appellant, before he entered a plea of guilty, as to appellant's capacity to understand the nature of his plea. Also, the court specifically asked appellant whether he was drug dependent at the time. The relevant testimony was as follows: "THE COURT: Are you under the influence of drugs or alcohol right now? "THE DEFENDANT: No, sir. "THE COURT: Are you in any danger of becoming drug dependent or alcohol dependent? "THE DEFENDANT: No, sir." The record clearly shows that the court inquired about the issue of whether or not appellant was drug dependent before the guilty plea was accepted. Therefore, any error on the part of appellant's counsel in failing to disclose to the court any alleged drug dependency of appellant was obviated. Appellant was given the opportunity to inform the court of any drug dependency and chose to indicate to the court that he was not under the influence of drugs and was not drug dependent. Appellant has failed to demonstrate any prejudice to his defense. Therefore, appellant's second argument fails to meet the second prong of the Jackson test and fails to defeat his voluntary guilty plea. Appellant's third allegation is that the court and appellant's counsel coerced him into pleading guilty to the charge of trafficking and that he was inadequately informed as to the consequences of his plea. In support of this claim, appellant attached to his petition for post-conviction relief affidavits by appellant, appellant's wife, and appellant's sister, which state that appellant's counsel told them that the penalties would be significantly less than the sentence and fine which were ultimately imposed by the court. Once again, the record does not support appellant's assertion. At the hearing conducted on January 14, 1987 to accept appellant's guilty plea, the following exchange occurred: "THE COURT: Now, you're pleading guilty to a second degree felony, which carries a possibility of incarceration in a State penal institution for a *Page 261 definite period of not less than two, three, four or five years up to a maximum of 15 years and/or a fine of up to $7,500.00. Do you understand that? "THE DEFENDANT: Yes, sir. "THE COURT: This is a probationa[ble] offense, but whether or not you get probation is my decision at the time of sentencing, and my decision alone. "I want you to understand that I have not discussed any possible sentence or this case at all with anybody, and that's going to be my decision after I get a Probation Department report. Do you understand that? "THE DEFENDANT: Yes, sir. "THE COURT: You also understand that even if I put you on probation, I could still order that you spend some time in the local county jail or Work Release or anything else I felt was appropriate in your case. Do you understand that? "THE DEFENDANT: Yes, sir. "THE COURT: Are you on probation or parol [sic] right now? "THE DEFENDANT: No, sir. "THE COURT: Do you have any questions about the possible penalties of what could happen to you because of this plea? "THE DEFENDANT: No, sir. "THE COURT: Any threats of promises been made to get you to enter this plea? "THE DEFENDANT: No." The record before this court clearly shows that even if appellant's assertions that appellant's attorney misinformed appellant about possible penalties before appellant entered court were true, appellant was not prejudiced by the alleged misinformation. The court clearly informed appellant of all possible penalties before appellant entered his plea. Appellant indicated to the court that he understood the information. Appellant has failed to demonstrate the prejudice required under the Jackson test and has failed to overcome the record's demonstration that his guilty plea was knowingly and voluntarily entered. Appellant's final argument is that the lower court abused its discretion in denying his petition for post-conviction relief without first conducting an evidentiary hearing. We disagree. A petitioner seeking post-conviction relief is not always entitled to a hearing. R.C. 2953.21 states, in pertinent part: "(C) Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court *Page 262 shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. Such court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. "* * * "(E) Unless the petition and the files and records of thecase show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues, hold the hearing, and make and file written findings of fact and conclusions of law upon entering judgment." (Emphasis added.) The Supreme Court of Ohio, after reviewing the provisions of R.C. 2953.21, ruled that: "In a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness." State v. Jackson (1980), 64 Ohio St. 2d 107, 18 O.O.3d 348, 413 N.E.2d 819, at the syllabus. When a petitioner fails to demonstrate either counsel's ineffectiveness or prejudice caused by counsel's ineffectiveness, a court may dismiss the petition for post-conviction relief without conducting a hearing, if the court issues findings of fact and conclusions of law. Id. at 110, 18 O.O.3d at 350, 413 N.E.2d at 822. In this case, the Lucas County Court of Common Pleas reviewed all the affidavits and evidentiary documents submitted by appellant to support his petition for post-conviction relief, as well as the record, which contained the transcript of proceedings which occurred when appellant entered his plea of guilty. The court then concluded that "* * * the petitioner is not entitled to relief and therefore a hearing is not required." The court filed findings of fact and conclusions of law, meeting the requirements of R.C.2953.21(C). Our review of the record in this case confirms the lower court's finding that appellant was not entitled to relief or to a hearing. The evidentiary documents submitted by appellant to support his post-conviction relief do not contain sufficient operative facts to show that appellant's defense was prejudiced by ineffective assistance of counsel. The affidavits and evidentiary documents submitted by appellant to support his petition for post-conviction relief all relate to alleged errors which we have determined were not prejudicial errors. Accordingly, the lower court acted properly when it denied the post-conviction relief without granting an evidentiary hearing.Id. *Page 263 Appellant's first, second, third and fourth assignments of error are not well taken. We find substantial justice has been done to the party complaining and the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal. Judgment affirmed. HANDWORK, P.J., and GLASSER, J., concur. ABOOD, J., concurs in judgment only.

2016-07-06 06:36:14.292015+00

Mauck

Martha Elizabeth Smith, as the beneficiary of a policy of life insurance issued by the Western Southern Life Insurance Company on the life of Verne Harrison Skinner, filed her petition for recovery, alleging that the insured died December 29, 1927. A demurrer to this petition was overruled. Thereupon the defendant filed an answer, and the trial court upon the motion of the plaintiff entered judgment upon the pleadings in favor of the plaintiff. To this judgment error is now prosecuted. The controversy between the parties arises over a supplementary contract attached to the original policy, which provided, among other things, for a waiver of further premiums if the insured was *Page 198 shown to have become wholly disabled. If we take the facts as set up in the answer to be true, as we are bound to do upon a motion for judgment upon the pleadings, the petition would seem to have omitted some important provisions of the contract upon which recovery was sought. While one of the assignments of error is that the demurrer to the petition was erroneously overruled, we shall not at this time concern ourselves with the sufficiency of the petition, for, after all, the ultimate rights of the parties are to be determined by all of the provisions of the policy of insurance. The final rights of the parties depend upon the construction to be given to what is called the supplementary contract. Unfortunately that contract in terms is not before us. We have only the different views of the opposing parties of the effect of the contract, as they have seen fit to set up the same in the pleadings. The immediate question then is whether the trial court should have entered judgment for the plaintiff in view of what the defendant pleaded the contract to be. The answer shows that the policy was issued November 22, 1926, in consideration of a premium paid at that time by the insured, and conditioned upon the payment of a like amount annually thereafter on the anniversary of the initial payment until twenty premiums had been paid. It further pleads that the policy provided for a period of grace of one month after the due date of the premium, during which month the insurance should continue in force. It avers that the supplementary contract provided that, if the insured should thereafter become wholly disabled, and be so disabled continuously for not *Page 199 less than ninety days prior to the receipt by defendant of proof thereof, as in the policy defined and required, and if by reason of such disability the insured was prevented from performing any work, the insurer would, upon receipt of due and satisfactory proofs of such disability, made in the life of said Verne Harrison Skinner, on forms prescribed by the company, waive the payment of premiums on said policy and on this supplementary contract during the continuance of such disability. The answer admits that the insured died on December 29, 1927, but alleges that he did not file with or furnish to defendant any proofs of any disability he had during his lifetime. The answer, by denying every allegation in the petition not admitted, denied that the insured became permanently disabled as pleaded in the petition on December 20, 1927, and denied that such disability continued until the death of the insured on December 29. This denial was in any view of the case sufficient to have prevented a judgment upon the pleadings. But as the case is before us we have no disposition to avoid what we conceive to be the real issue between the parties by deciding the case upon a fact which finally would not be in dispute. Contracts of this same general character have been considered by courts in other jurisdictions. In Minnesota Mutual Life Ins.Co. v. Marshall, 29 F.2d 977, the federal Circuit Court of Appeals, sitting in North Dakota, had before it a similar contract. In that case, as in this case, the insured became disabled after his second annual premium was due, and within the period of grace. He died within a few days without making proof of his disability, *Page 200 and recovery was permitted. It is not clear that the policy there under consideration was identical with the one at bar, but the opinion as a whole is quite favorable to the view contended for by the plaintiff herein. In Missouri State Life Ins. Co. v. Le Fevre, 10 S.W.2d 267, the Court of Civil Appeals of Texas by a divided court gives a somewhat similar construction to a similar policy on facts peculiar to that case. In Wick v. Western Union Life Ins. Co., 104 Wash. 129,175 P. 953, the Supreme Court of Washington held, under circumstances analogous to those at bar, that no recovery could be had. In Walters v. Jefferson Standard Life Ins. Co., 159 Tenn. 541,20 S.W.2d 1038, the Supreme Court of Tennessee was considering a disability clause of this same general character and said: "The company had received no notice of total permanent disability when the annual premium became due in October, 1926, hence the insured and not the company was liable for same. "There is no provision in the policy requiring the company to pay indemnity for total permanent disability existing prior to the filing of proof thereof. The terms of the agreement are to the contrary." While the character of the benefits accruing to the insured in the Walters case, supra, differs from the character claimed by the insured in the case at bar, that opinion seems to recognize that no benefits accrue to the insured until proofs of disability have been filed as required by the policy. In Hipp v. Fidelity Mutual Life Ins. Co., 128 Ga. 491,57 S.E. 892, 12 L.R.A. (N.S.), 319, the Supreme *Page 201 Court of Georgia held that a rider attached to a life policy, conferring benefits upon the insured upon the acceptance by the company of satisfactory proof of total incapacity of the insured, was not available to the latter where no proof had been received by the company of the incapacity of the insured. In New England Mutual Life Ins. Co. v. Reynolds, 217 Ala. 307,116 So. 151, 59 A.L.R., 1075, the Supreme Court of Alabama was considering a contract similar to that pleaded herein. We quote from the syllabus as reported in 59 A.L.R.: "A provision in a policy of life insurance that if the insured shall furnish proof that he has become wholly disabled by bodily injury or disease the company will waive payment of each premium as it thereafter becomes due during the continuance of the disability makes the furnishing of proof a condition precedent to the waiver of premium payments, and performance of the condition is not excused by the fact that the disability of the insured consisted of insanity, which commenced while the policy was in force and continued until his death." It is thus to be seen that in different states different views have been taken of the interpretation of clauses in insurance policies similar to that at bar, and that the conflict in these opinions is not due wholly to differences in the policies being construed. We see no analogy between this case and any of the Ohio authorities cited or examined. We are consequently required to dispose of the question as one of first impression in this state. The answer pleads that the contract of insurance provided that, if the insured should become wholly *Page 202 disabled after November 22, 1926, and be so continuously disabled for not less than ninety days "prior to the receipt by the defendant of proof thereof as thereinafter defined and required," and if the insured by reason of such injury was prevented from performing any work, etc., the defendant would "upon receipt at its home office of due and satisfactory proof of such disability made in the life time" of the insured, on forms prescribed by the company, grant the following benefits: "First. Waiver of Premiums — Subject to the aforesaid and hereinafter mentioned conditions and commencing with the anniversary of said policy next succeeding the receipt of such due and satisfactory proof, defendant shall waive the payment of premiums on said policy and on this supplementary contract during the continuance of such disability." It seems to us perfectly clear that the terms of the contract as so pleaded unambiguously held the company to a waiver of premiums (1) only after the insured had been disabled for ninety days, during which time he was prevented from performing any work, (2) only after proofs of such disability had been made, and (3) during the lifetime of the insured, and that the plaintiff does not come within the provisions of the contract in any one of these three particulars. Moreover, the waiver runs to the payment of premiums which become due after the disability has ensued. This is so, for the reason that the policy indicates that the waiver is in behalf of one who has been unable to work or otherwise engage in gainful occupation by means of which he might earn the premium. It is shown by the petition that in this case disability did not begin until *Page 203 after the premium in 1927 was due, and afforded consequently no justification for its nonpayment at that time. The answer of the defendant was good. If it actually pleaded the contract between the parties, the defendant was entitled to judgment. It is accordingly ordered that the judgment be reversed, and the cause remanded for further proceedings according to law. Judgment reversed and cause remanded. MIDDLETON, P.J., and BLOSSER, J., concur.

2016-07-06 06:36:14.40511+00

Fain

OPINION {¶ 1} Plaintiff-appellant Rebecca Vinson appeals from the dismissal of her complaint for age discrimination pursuant to Civ.R. 12. Vinson contends that the trial court erred in finding that she is barred from proceeding with a civil suit in state court. She also contends that the trial court erred in its application of the Ohio Rules of Civil Procedure. We agree with the trial court's conclusion that, by filing a charge with the Ohio Civil Rights Commission, Vinson elected to proceed with an administrative remedy, and is therefore precluded from seeking a judicial remedy in state court. We find no error in the trial court's application of the civil rules. The judgment of the trial court is affirmed. *Page 607 I {¶ 2} Rebecca Vinson was terminated from her employment with defendant-appellee, Diamond Triumph Auto Glass, Inc. (Diamond) in October, 2000. In early January, 2001, she filed a complaint with the Ohio Civil Rights Commission (OCRC) claiming that her discharge was the result of age discrimination. As part of the filing made with the OCRC, Vinson signed a statement indicating that she had not filed an action pursuant to R.C. 4101.17 [now 4112.14] or 4112.02. The statement further acknowledged that Vinson understood that by filing the OCRC complaint, she would be barred from instituting a civil action under those statutory provisions. {¶ 3} The OCRC charge was withdrawn by Vinson in early March, 2001. Vinson subsequently filed a complaint in the Montgomery County Common Pleas Court alleging violations of R.C. 4112.02 and 4112.99. Diamond filed a motion to dismiss for lack of subject-matter jurisdiction, pursuant to Civ.R. 12. In the motion, Diamond argued that Vinson, by electing to pursue an administrative remedy through the OCRC, was statutorily barred from pursuing a civil suit in state court. The trial court agreed, and dismissed the complaint. From the dismissal of her complaint, Vinson appeals. II {¶ 4} Vinson's First Assignment of Error is as follows: {¶ 5} "The trial court erred in granting defendant-appellee Diamond's motion to dismiss because the charges appellant filed with the OCRC did not provide her with a remedy since the OCRC did not take sufficient administrative action to deprive the trial court of subject matter jurisdiction." {¶ 6} Vinson contends that the trial court erred when it found that it lacked subject-matter jurisdiction over her cause of action and dismissed her complaint. She argues that filing a claim of age discrimination with the OCRC does not bar a subsequent civil suit filed pursuant to R.C. 4112.99 in state court. She further argues that even if a litigant files an OCRC charge, so long as that charge is not "pursued," a state civil suit is not precluded. {¶ 7} When a litigant files a Civ.R. 12 motion to dismiss for lack of subject-matter jurisdiction, the trial court must determine whether the complaint contains allegations of a cause of action that the trial court has authority to decide. Crestmont Cleveland Partnership v. OhioDept. of Health (2000), 139 Ohio App. 3d 928, 936. "The trial court is not confined to the allegations of the complaint when determining its subject-matter jurisdiction pursuant to a Civ.R. 12(B)(1) motion to dismiss * * *." Southgate Development Corp. v. Columbia Gas TransmissionCorp. (1976), 48 Ohio St. 2d 211, *Page 608 paragraph one of the syllabus. We apply de novo review to the trial court's decision on a motion to dismiss for lack of subject-matter jurisdiction. Crestmont Cleveland Partnership, at 936. {¶ 8} In Ohio, a plaintiff may pursue a judicial remedy for age-based employment discrimination under one of three statutory provisions. R.C. 4112.02(N), 4112.14, and 4112.99 permit civil suits alleging age discrimination to be filed in state court. Alternatively, R.C. 4112.05 permits an individual to pursue an age discrimination claim administratively, by filing a charge with the OCRC. {¶ 9} R.C. 4112.08 provides that R.C. 4112.02(N), 4112.14 and4112.05 are mutually exclusive; i.e. the pursuit of an administrative remedy under 4112.05 precludes relief under the other two statutes. Thus, it is clear that the general assembly expressly intended to require an election of remedies with regard to R.C. 4112.02(N), 4112.14 and4112.05. The more difficult question is whether, as Vinson claims, a civil suit brought pursuant to R.C. 4112.99 may be pursued along with the administrative remedy of R.C. 4112.05. {¶ 10} In Balent v. National Revenue Corp. (1994),93 Ohio App. 3d 419, the Tenth District Court of Appeals addressed this issue, and in holding that the exclusion provision of R.C. 4112.08 applies to R.C. 4112.99, stated: {¶ 11} "R.C. 4112.99 provides: `Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief.' {¶ 12} "The legislature amended this section in 1987 to provide a civil remedy, whereas it had previously provided a criminal penalty. The very narrow issue before us, then, is whether the civil action established pursuant to R.C. 4112.99 is subject to the election requirement of the other provisions bearing on relief from age discrimination. We must admit that a compelling case may be made for either position on this issue, and the lack of unanimity among Ohio appellate decisions and federal court decisions on the issue does not provide much guidance by way of precedent. * * * {¶ 13} "Among courts concluding that the specific provision of R.C.4112.02(N) prevails over the general one in R.C. 4112.99, * * * * [t]he case providing the most complete and comprehensive support for this position * * * is that of Pozzobon v. Parts for Plastics, Inc. (N.D.Ohio. 1991), 770 F. Supp. 376. The court in Pozzobon concluded that the language in R.C. 4112.08 stating that `nothing contained in sections 4112.01, 4112.08 and 4112.99 of the Revised Code shall be deemed to repeal any of the provisions of the law of this state relating to discrimination * * *' must be understood to prevent the 1987 amendment to R.C. 4112.99 from altering the scheme of election of remedies set forth in the various statutory provisions addressing age discrimination. The court did not `deem it *Page 609 reasonable to conclude that the single, broadly worded sentence contained in § 4112.99 could possibly have been intended to eradicate the detailed legislative scheme * * * in existence in the Ohio Revised Code.' Pozzobon, supra, at 379. * * * {¶ 14} "We find the position of the court in Pozzobon . . . persuasive. We reach this conclusion primarily because of our belief that the carefully constructed requirements of election of remedy set forth, in some detail, in R.C. 4112.17 [now 4112.14] and 4112.02(N), and reiterated in R.C. 4112.08, can only be taken to express the legislature's unambiguous intention to require an election of a single administrative or statutory remedy when bringing a claim for age discrimination. If R.C. 4112.99 fails to explicitly perpetuate the scheme set up by prior statutes addressing age discrimination, it is equally lacking in explicit intent to repeal the previously established statutory scheme. Just as we need not have inquired, prior to 1987, into the legislature's motives in allowing a civil action for age, credit, and housing discrimination, while providing none for the multiple other forms of discrimination which afflict our society, we need not today inquire into the wisdom of preserving a requirement of election in age discrimination cases where none exists elsewhere. Nonetheless, the specific and detailed articulation of available remedies and interaction between applicable statutes addressing age discrimination claims must be taken to prevail over the broad terms of R.C. 4112.99. The latter is perhaps the later-enacted statute, but it is not the most apposite one, and must be read in this light." Id. at 421-424. {¶ 15} The holding in Balent has been echoed in federal case law. Specifically, in Talbott v. Anthem Blue Cross and Blue Shield (S.D.Ohio 2001), 147 F. Supp. 2d 860, 863, the court stated that "* * * causes of action for age discrimination, brought under O.R.C. § 4112.99 and based on violations of Chapter 4112, are subject to the election of remedies provisions contained in the other more specific sections of Chapter 4112 that establish causes of action for age discrimination." {¶ 16} While not addressing this exact question, the Ohio Supreme Court has also shed light on this issue in Smith v. Friendship Village ofDublin, Ohio, 92 Ohio St. 3d 503, 2001-OH-1272, wherein the Ohio Supreme Court stated: {¶ 17} "In determining the General Assembly's intent, the starting point in the construction of a legislative enactment is the text of the statute itself. * * * [T]here are statutory provisions requiring an election for age discrimination claims. {¶ 18} "R.C. 4112.02(N) provides that `[a]n aggrieved individual may enforce the individual's rights relative to discrimination on the basis of age * * * by instituting a civil action.' An individual may also file an age discrimination charge with the commission pursuant to R.C.4112.05(B)(1). However, the *Page 610 General Assembly has specifically provided that individuals alleging age discrimination must choose between an administrative or judicial action. R.C. 4112.08 states that `any person filing a charge under division (B)(1) of section 4112.05 of the Revised Code, with respect to the unlawful discriminatory practices complained of, is barred from instituting a civil action under section 4112.14 or division (N) of section 4112.02 of the Revised Code.' {¶ 19} "These provisions relating to age discrimination demonstrate that the General Assembly was aware that individuals might attempt to commence both administrative and judicial proceedings pursuant to R.C. Chapter 4112. So, in clear language, the General Assembly expressed its intent that an election must be made. * * * The General Assembly has specifically limited an individual's ability to bring both an administrative and civil proceeding in the context of age discrimination." Id. at 506. {¶ 20} We next address Vinson's claim that she is not barred from pursuing a state civil suit because she did not pursue the administrative remedy after filing the charge with the OCRC. Vinson contends that although she filed an OCRC charge, she withdrew the charge and did not pursue the administrative remedy. {¶ 21} We find that the language in R.C. 4112.08 is clear. That statute provides that the act of filing an OCRC charge bars civil suits in court. By merely filing an OCRC charge a litigant elects to pursue an administrative remedy, and is thus barred from electing to pursue a civil suit in state court regardless of whether the administrative process is subsequently abandoned or withdrawn. {¶ 22} The first assignment of error is overruled. III {¶ 23} Vinson's second assignment of error is as follows: {¶ 24} "Ohio Civil Rule 1 requires that all Civil Rules be interpreted to provide justice, and appellee's application of Civil Rule 12(H)(3) under these facts does not comply with this requirement." {¶ 25} Vinson's argument in this Assignment of Error is somewhat obscure. It appears that she is contending that in dismissing her complaint the trial court construed the facts against her; i.e. the trial court did not credit her claim that she did not pursue her administrative claim. Therefore, Vinson argues that "in accordance with Ohio Rule of Civil Procedure 1, which requires that the civil rules be construed to permit just results, a dismissal of [her] complaint would violate the strictures of civil rules because it would require the Complaint to be read as if Appellant did in fact pursue an administrative remedy when she in fact did not." *Page 611 {¶ 26} As stated in Part II, above, it is immaterial whether Vinson pursued her administrative remedy after filing her OCRC charge. The relevant inquiry is whether she elected, by filing a charge with the OCRC, a specific remedy. The mere filing of an OCRC charge bars the subsequent filing of a civil suit in state court. Vinson candidly admitted in her complaint that she filed a charge with the OCRC. Therefore, she is barred from seeking a judicial remedy of her cause of action, and the trial court did not violate the civil rules by dismissing her complaint. {¶ 27} The second assignment of error is overruled. IV {¶ 28} Both of Vinson's Assignments of Error having been overruled, the judgment of the trial court is affirmed. Judgment affirmed. BROGAN and FREDRICK N. YOUNG, JJ., concur. *Page 612

2016-07-06 06:36:14.450491+00

Dickinson

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 527 Defendant Gerry Stewart has appealed from her convictions of gross sexual imposition and endangering children. She has argued that (1) the trial court incorrectly denied her motion to compel discovery of statements she made to a caseworker from the Medina County Department of Human Services ("DHS") and incorrectly permitted the state to introduce those statements into evidence, (2) the trial court incorrectly received a notebook created during the victim's therapy sessions with her psychologist as an exhibit because (a) the state did not provide it to defendant before trial, and (b) defendant did not waive the victim's physician/patient privilege, (3) the trial court incorrectly received evidence of defendant's prior bad acts, (4) the trial court incorrectly overruled defendant's motion for a mistrial, and (5) defendant's convictions of gross sexual imposition and endangering children were not supported by sufficient evidence and were against the manifest weight of the evidence.1 This court affirms the judgment of the trial court because (1) the state was not required under Crim.R. 16(B)(1)(a)(ii) to provide defendant written summaries of oral statements she made to the DHS caseworker, (2) defendant did not establish that she was prejudiced by the admission of the victim's therapy notebook, (3) any privilege that attached to the victim's communication with her psychologist was waived pursuant to R.C.2151.42.1(A)(3), (4) any error that arose from the trial court's improper admission *Page 528 of evidence of defendant's prior bad acts was harmless, (5) the trial court did not abuse its discretion by failing to order a mistrial, and (6) defendant's convictions of gross sexual imposition and endangering children were supported by sufficient evidence and were not against the manifest weight of the evidence. I Defendant Gerry Stewart and her boyfriend, Woodrow Napier, were accused of sexually abusing defendant's seven-year-old daughter.2 Defendant was indicted, on March 17, 1995, for rape, gross sexual imposition, and endangering children, and was tried to a jury beginning August 7, 1995. On August 14, 1995, the jury found her guilty of gross sexual imposition and endangering children, and not guilty of rape. The trial court sentenced defendant, on October 10, 1995, to three to fifteen years in prison on the child endangering count and to a definite term of two years in prison on the gross sexual imposition count. The sentences are to run concurrently. Defendant timely appealed to this court. II A Defendant's first assignment of error is that the trial court incorrectly denied her motion to compel discovery of oral statements she made to a DHS caseworker and incorrectly permitted the state to introduce those statements into evidence. Defendant filed a request for discovery on May 2, 1995, for, among other things, written summaries of any oral statements she made to "a prosecuting attorney or any law enforcement officers." Pursuant to this request, she moved the trial court on August 1, 1995, to compel discovery of "any and all admissions made by [her] to the [DHS]." The trial court denied defendant's motion to compel the discovery. Patricia McDaniels, the DHS caseworker assigned to investigate the victim's allegations of sexual abuse, testified at defendant's trial. The trial court permitted McDaniels to testify, over defendant's objection, about statements defendant had made to her. Defendant has argued on appeal that the trial court should have granted her motion to compel discovery of oral statements she made to McDaniels because Crim.R. 16 requires that the state provide discovery of all statements a defendant made to state employees. She has further argued that the trial court should not *Page 529 have permitted the state to ask McDaniels about the statements because the state violated Crim.R. 16 by failing to comply with her discovery request. Contrary to defendant's assertions, Crim.R. 16(B)(1)(a)(ii) does not require the state to provide a defendant discovery of all oral statements a defendant has made to state employees. Rather, it only requires the state to provide a defendant written summaries of oral statements the defendant made to a prosecuting attorney or a law enforcement officer: "(a) * * * Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney: "* * * "(ii) Written summaries of any oral statement, or copies thereof, made by the defendant or co-defendant to a prosecuting attorney or any law enforcement officer[.]" Inasmuch as the oral statements at issue in this case were not made to a prosecuting attorney or a law enforcement officer, defendant was not entitled to discovery of them. The trial court, therefore, correctly denied defendant's motion to compel discovery of the statements and correctly permitted the state to question McDaniels about them. Defendant's first assignment of error is overruled. B Defendant's second assignment of error is that the trial court incorrectly received a notebook created during the victim's therapy sessions with her psychologist as an exhibit because (1) the state did not provide defendant discovery of it before trial, and (2) defendant did not waive the victim's physician/patient privilege. The victim's psychologist testified on direct examination that the victim was suffering from posttraumatic stress syndrome and had expressed "confusion and anger" over what defendant and defendant's boyfriend had done to her. She referred to a notebook that contained pictures the victim had drawn during her therapy sessions and captions in the victim's own words. At the close of the state's case, the prosecutor moved to have the notebook admitted as an exhibit. Defendant objected on the ground that she had not been provided the notebook before trial and had not waived her daughter's physician/patient privilege. The trial court overruled defendant's objections and received the notebook as State's Exhibit 5. *Page 530 On May 2, 1995, defendant filed a request for discovery of any documents the state intended to use as evidence at trial. The prosecutor admittedly did not provide defendant with the psychologist's notebook, but claimed at trial that he was unaware of its existence until the psychologist brought it with her on the day she testified. Crim.R. 16(B)(1)(c) requires the state to provide a defendant documents that it intends to use as evidence at trial. Assuming that the state violated Crim.R. 16(B)(1)(c) by failing to disclose the psychologist's notebook, the trial court did not necessarily err by receiving the notebook as an exhibit. Crim.R. 16(E)(3) gives a trial court discretion to determine whether to receive evidence that the state improperly failed to disclose to the defense: "* * * If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances." Defendant failed to show that she would suffer prejudice as a result of the admission of the notebook even though she was not aware of its existence before the psychologist testified. The notebook did not contain any allegations or statements that the victim did not testify to at the trial or tell her DHS caseworker in videotaped interviews that were played for the jury. Since defendant did not demonstrate that she would be prejudiced by the notebook's admission, the trial court did not abuse its discretion by receiving it as an exhibit. See State v.Parson (1983), 6 Ohio St. 3d 442, 445, 6 OBR 485, 487-488,453 N.E.2d 689, 691-692. Defendant has further argued that the trial court incorrectly received the notebook as an exhibit because defendant did not waive the physician/patient privilege that attached to her daughter's communication with the psychologist. R.C. 4732.19 provides that communications between a psychologist and a patient are privileged in the same manner as communications between a physician and a patient. See Colling v. Franklin Cty.Children Serv. (1991), 76 Ohio App. 3d 736, 739, 603 N.E.2d 338,340-341. The physician/patient privilege is codified in R.C.2317.02(B). That statute provides that a physician may be compelled to testify about a privileged communication if the patient is deemed by R.C. 2151.421 to have waived any privilege that applies to it. See R.C. 2317.02(B)(1). R.C. 2151.421(A)(3) creates an automatic waiver of privilege when all of the following apply: "(a) The patient, at the time of the communication, is either a child under eighteen years of age or a physically or mentally handicapped child under twenty-one years of age. *Page 531 "(b) The physician knows or suspects, as a result of the communication or any observations made during the communication, that the patient has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the patient. "(c) The physician-patient relationship does not arise out of the patient's attempt to have an abortion without the notification of her parents, guardian, or custodian in accordance with section 2151.85 of the Revised Code." In this case, all the factors required for an automatic waiver of the privilege were present: the victim was under eighteen years of age, the psychologist had reason to believe that the victim had been sexually abused, and the privileged communication did not arise from the victim's attempt to get an abortion. Accordingly, the admissibility of the therapy notebook was not affected by the fact that defendant did not waive her daughter's physician/patient privilege. Defendant's second assignment of error is overruled. C Defendant's third assignment of error is that the trial court incorrectly received evidence of defendant's prior bad acts. A witness for the state testified that, before defendant had become involved with Woodrow Napier (the boyfriend who was convicted of molesting defendant's daughter), she had another boyfriend who occasionally spent the night at defendant's apartment. According to the witness, on one of the occasions that defendant's former boyfriend was sleeping at her apartment, defendant removed a sheet that was covering his naked body and asked the witness and the victim whether they had ever seen a penis that was so large. The witness testified that defendant asked the victim to get a ruler and laughed when the victim complied with her request. Defendant objected to this testimony. The trial court overruled the objection on the grounds that the testimony was relevant to show defendant's "sexual predilections" and to rebut defendant's argument that defendant's mother had planted the idea in the victim's head that defendant and Napier sexually abused her. The state may not introduce evidence that the accused has committed other crimes or acts independent of the crime for which he is on trial for the purpose of establishing that the defendant acted in conformity with his bad character. State v.Elliott (1993), 91 Ohio App. 3d 763, 770, 633 N.E.2d 1144, 1148; Evid.R. 404(B). Such evidence is admissible, however, under Evid.R. 404(B) "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In this case, the state has not argued that defendant's prior act tended to show any of those things specifically enumerated in Evid.R. 404(B). Rather, the state *Page 532 has argued that the prior act tended to disprove defendant's argument that the victim's grandmother planted the allegation of sexual abuse in the victim's mind. The state has contended, in effect, that evidence that defendant may have committed a past act makes it more likely that she also committed the acts at issue in this case and thus that the grandmother did not fabricate the victim's allegations. This argument is precisely what Evid.R. 404 is meant to prohibit. The state could not use evidence of defendant's prior act to prove that she acted in conformity with her character when she allegedly committed the acts at issue in this case. Inasmuch as the "other act" evidence was not admitted for any of the purposes specifically enumerated in Evid.R. 404(B), and inasmuch as the state failed to assert any other permissible purpose for its introduction, the trial court erred by receiving it. A trial court's improper admission of other acts evidence, however, does not require reversal of a conviction if there is no reasonable possibility that the evidence contributed to the conviction. State v. Clemons (1994), 94 Ohio App. 3d 701, 711,641 N.E.2d 778, 784-785; State v. Elliott (1993), 91 Ohio App. 3d 763,771, 633 N.E.2d 1144, 1148-1149. The evidence supporting defendant's conviction of gross sexual imposition and child endangering was substantial enough for this court to conclude that the admission of the other acts evidence was harmless. See Part II(E), infra. Defendant's third assignment of error is overruled. D Defendant's fourth assignment of error is that the trial court incorrectly overruled defendant's motion for a mistrial. Defendant and Napier were tried together. Napier called as a witness a clinical psychologist who had completed an assessment of defendant and the victim in 1994. Napier's attorney asked the psychologist to read from his report information that defendant had given him during the assessment. Defendant objected to the testimony. The trial court overruled the objection based on Napier's assertion that the information would establish that the victim had been molested by a former boyfriend of defendant and that the victim and Napier had a healthy relationship. The psychologist read from his report information that he had acquired from defendant: defendant's biological father was violent and was stabbed to death when she was seven years old, her mother and stepfather physically abused her, her mother was bossy and "always ha[d] to be right," and she was not close to her mother or stepfather. Defendant objected again to this testimony and moved the court for a mistrial. The trial court sustained defendant's objection, but denied her motion for a mistrial. *Page 533 Defendant has argued that the trial court should have granted her motion for a mistrial because the psychologist's testimony was prejudicial and deprived her of her constitutional right to a fair trial. The decision whether to grant a mistrial lies within the sound discretion of the trial court. State v. Garner (1995), 74 Ohio St. 3d 49, 59, 656 N.E.2d 623, 634. A mistrial should be declared only when a fair trial is no longer possible.Id. at 59, 656 N.E.2d at 634. In this case, the nature of the psychologist's comments was not so egregious that it was impossible for defendant to have had a fair trial after they were made. The trial court, therefore, did not abuse its discretion by denying defendant's motion for a mistrial. Defendant's fourth assignment of error is overruled. E Defendant's fifth assignment of error is that her convictions of gross sexual imposition and endangering children were not supported by sufficient evidence and were against the manifest weight of the evidence. In determining whether the evidence before a trial court was sufficient to sustain a conviction, an appellate court must view that evidence in a light most favorable to the prosecution: "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." State v. Jenks (1991), 61 Ohio St. 3d 259,574 N.E.2d 492, paragraph two of the syllabus. To determine whether a conviction is against the manifest weight of the evidence: "[A]n 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, 515 N.E.2d 1009,1010-1011. Defendant was convicted of gross sexual imposition, a violation of R.C. 2907.05(A)(4): "No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact *Page 534 with the offender; or cause two or more persons to have sexual contact when one of the following applies: "* * * "(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person."3 "Sexual contact" is defined in R.C. 2907.01(B) as: "[A]ny 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." The jury heard the victim's testimony at trial and watched two videotaped interviews conducted by the DHS caseworker on October 16, 1994, and October 25, 1994. At the October 25, 1994 interview, the victim told the caseworker that Napier, on more than one occasion, forced her to suck defendant's bare breasts while he engaged in oral sex with defendant. The victim testified at trial that Napier forced her to suck on her mother's breasts only one time and that she voluntarily sucked on her mother's breasts a second time because her mother was pregnant and she wanted to "see what the milk tasted like." The victim also told the caseworker at the October 25, 1994 interview that her mother pushed her head away whenever Napier forced the victim to suck on defendant's breasts. Defendant has argued that her conviction of gross sexual imposition was not supported by sufficient evidence and was against the manifest weight of the evidence because the state failed to prove that she purposely compelled the victim to submit to sexual contact by force or threat of force. Defendant, however, was convicted of violating R.C. 2907.05(A)(4), which requires only that the state prove that the defendant engaged in sexual contact, as defined by R.C. 2907.01(B), with a person under thirteen years old. To properly convict defendant under this statute, the jury had to find that defendant engaged in touching of an erogenous zone with a child under thirteen for the purpose of sexually arousing or gratifying herself or the victim. The jury's determination that defendant violated R.C.2907.05(A)(4) was supported by sufficient evidence and was not against the manifest weight of the evidence. The jury could have reasonably inferred from the nature and circumstances *Page 535 of the touching that the defendant's purpose in having the victim suck her bare breasts was to sexually arouse or gratify herself. See State v. Cobb (1991), 81 Ohio App. 3d 179, 185,610 N.E.2d 1009, 1012-1013. Defendant was also convicted of endangering children in violation of R.C. 2919.22(B)(5): "No person shall do any of the following to a child under eighteen years of age * * *: "* * * "(5) Entice, coerce, permit, encourage, compel, hire, employ, use, or allow the child to act, model, or in any other way participate in, or be photographed for, the production, dissemination, or advertisement of any material or performance that he knows or reasonably should know is obscene, is sexually oriented matter, or is nudity-oriented matter[.]" The victim testified at trial and told her DHS caseworker at the October 16, 1994 interview that defendant and Napier forced her to take pictures of them naked and lifting "their legs up over their heads." She told her psychologist that, in some of the photographs, defendant had her hands on her breasts and genitals and, in others, defendant and Napier were lying together naked on the bed. She stated during the interview and at trial that defendant and Napier never took pictures of her when she was naked and did not force her to take pictures of them having sex. Defendant has argued that her conviction of endangering children was not supported by sufficient evidence and was against the manifest weight of the evidence because there was no evidence that the victim was ever photographed while she was naked. In support of her argument, she has relied on statutory definitions of "nudity-oriented matter" and "sexually oriented matter." "Nudity-oriented matter" is "any material or performance that shows a minor in a state of nudity and that, taken as a whole by the average person applying contemporary community standards, appeals to prurient interest." R.C.2919.22(D)(4)(b). "Sexually oriented matter" is "any material or performance that shows a minor participating or engaging in sexual activity, masturbation, or bestiality." R.C.2919.22(D)(4)(c). Defendant is correct that, given the statutory definitions of "sexually oriented matter" or "nudity-oriented matter," the jury could not have convicted her of forcing the victim to participate in the production of those materials if there was no evidence that a minor appeared in any of the photographs. Defendant, however, has overlooked the fact that the jury could have properly convicted her of violating R.C.2919.22(B)(5) if it found that she *Page 536 forced her daughter to participate in the production of material that she knew or reasonably should have known was obscene. The trial court instructed the jury on the definition of obscenity contained in R.C. 2907.01(F)(1) and (2): "When considered as a whole, and judged with reference to ordinary adults or, if it is designed for sexual deviates or other specially susceptible group, judged with reference to that group, any material or performance is `obscene' if any of the following apply: "(1) Its dominant appeal is to prurient interest; "(2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, masturbation, sexual excitement, or nudity in a way that tends to represent human beings as mere objects of sexual appetite[.]" Based on the victim's descriptions of the photographs she said defendant and Napier forced her to take, the jury could have reasonably inferred that defendant violated R.C.2919.22(B)(5) by compelling her daughter to participate in the production of obscene materials within the meaning of R.C.2907.01(F). Accordingly, defendant's conviction of child endangering was supported by sufficient evidence and was not against the manifest weight of the evidence. Defendant's fifth assignment of error is overruled. III Defendant's assignments of error are overruled. The judgment of the trial court is affirmed. Judgment affirmed. REECE, P.J., and SLABY, J., concur. 1 Defendant's assignments of error have been rearranged for ease of discussion. 2 Napier was convicted of one count of rape, three counts of attempted rape, two counts of gross sexual imposition, and one count of attempted felonious penetration. This court reversed his conviction on the rape count in State v. Napier (Mar. 20, 1996), Medina App. No. 2472-M, unreported, 1996 WL 122014. 3 Defendant was also charged with violating R.C.2907.05(A)(1). The jury, however, specifically found that she did not compel the victim to submit to sexual contact by force or threat of force. *Page 537

2016-07-06 06:36:14.666759+00

McMonagle

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 131 {¶ 1} Plaintiff-appellant, Sheila M. Barry ("Wife"), appeals the trial court's judgment entry of divorce. For the reasons set forth below, we affirm the judgment of divorce, but reverse and remand the judgment as to the allocation of parental rights, the division of assets, and the award of attorney fees. {¶ 2} This case was initiated by the Wife on January 9, 2004, when she filed a complaint for divorce and a request for a temporary restraining order against defendant-appellee, Blaise J. Barry ("Husband"). On the same day she filed her complaint, the Wife also filed a domestic-violence petition; an ex parte civil protection and temporary restraining order was granted on February 9, 2004. The order was modified several times during the pendency of the case. {¶ 3} On March 16, 2004, the Husband filed his answer, a counterclaim, and a request for a restraining order. The Husband was granted a restraining order that same day. *Page 132 {¶ 4} On April 20, 2005, the Wife's counsel withdrew from the case and the Wife proceeded unrepresented by counsel for the remainder of the trial court proceedings and the initial proceedings before this court.1 {¶ 5} On August 4, 2005, the Wife filed a motion to continue the August 8, 2005 trial date. Prior to the trial commencing on that date, the trial judge denied the Wife's motion. The Wife then requested "a little bit of time to get [her] witnesses * * *." The court denied the Wife's request, and the Wife commenced her case-in-chief. During the direct examination of the Wife's second witness, her brother, it came to the court's attention that Dr. Mark Lovinger, the psychologist who evaluated the parties pursuant to the court's order, and who was to testify on the Husband's behalf, was in the courtroom. The court asked the Wife if she wished for the court to declare a mistrial; the Wife stated that she did. The court declared a mistrial and announced that the new trial would commence the following day, August 9, 2005. {¶ 6} The next day, August 9, the Wife moved the court to continue the trial; the motion was denied. The Wife called four witnesses on her behalf: her brother, brother-in-law, father, and the children's therapist. The court did not allow the therapist to testify, however, on the grounds that she had a confidential relationship with the children and the Husband had not signed a release for her to testify. {¶ 7} The Husband, in addition to testifying on his own behalf, called three other witnesses in his case-in-chief: the Wife, the certified appraiser who appraised the marital home, and Dr. Lovinger. {¶ 8} On September 26, 2005, the trial court issued its judgment entry of divorce. Relevant to this appeal, the court's judgment entry awarded custody of the parties' two minor children to the Husband, awarded attorney fees to the Husband, awarded the Husband 50 percent interest in the Wife's retirement savings and 100 percent interest in his own retirement savings, and found that a marital loan taken by the parties from the Wife's father had an outstanding balance of $38,0002 and ordered the Wife responsible for $35,251.08 and the Husband responsible for $2,748.92. *Page 133 {¶ 9} The Wife now appeals the above-mentioned orders from the trial court's judgment entry of divorce, as well as the court's refusal to allow the children's therapist to testify and the denial of her two motions to continue the trial. {¶ 10} Initially, we note that the standard of review for determinations made in divorce cases is abuse of discretion. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217,5 OBR 481, 450 N.E.2d 1140. {¶ 11} In her first assignment of error, the Wife challenges the trial court's award of custody of the minor children to the Husband. As part of this assignment of error, the Wife contends that the trial court erred by not allowing the children's therapist to testify, and this argument is also the sum and substance of her second assignment of error. The second assignment of error therefore will be addressed along with the first assignment of error. {¶ 12} The Wife first argues that "the trial court prevented [her], proceeding pro se, from presenting any case whatsoever." We agree, at least in part. {¶ 13} Initially, we note that in Ohio, pro se litigants "are presumed to have knowledge of the law and of correct legal procedure, and [are] held to the same standard as all other litigants." (Brackets sic.) Bethke v. 12900 LakeAve. Condominium Assn. (Sept. 7, 2000), Cuyahoga App. No. 76774, 2000 WL 1281252, citing Kilroy v. B.H. LakeshoreCo. (1996), 111 Ohio App. 3d 357, 363, 676 N.E.2d 171. {¶ 14} Upon review of the two instances when the court sustained the Husband's objections to the Wife's questioning, we find that the trial court abused its discretion in one instance. It appears3 that the Wife's questions aimed to elicit testimony (from her brother and brother-in-law) about incidents of alleged domestic violence by the Husband toward her. We cannot conceive how domestic violence by one spouse against another could not be relevant in a determination of an allocation of parental rights and responsibilities regarding their children. The fact that the domestic violence was previously litigated within the confines of this case is of no moment; the hearing was not held before the judge who presided over the trial, and the Wife had the right to present the evidence in the context of its effect upon the children. {¶ 15} We find, however, that the court properly sustained objections when the Wife's witnesses attempted to testify as to hearsay statements; therefore, we find no merit to the Wife's argument that "[i]t is quite likely that [she] *Page 134 had far more relevant testimony regarding parenting issues, that the trial court erroneously rejected." {¶ 16} The Wife next argues that the trial court erred by not interviewing the children as to their wishes regarding custody. {¶ 17} R.C. 3109.04(B)(1), governing custody determinations, provides as follows: {¶ 18} "When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, mayand, upon the request of either party, shall interview inchambers any or all of the involved children regarding theirwishes and concerns with respect to the allocation." (Emphasis added.) {¶ 19} Neither party requested that the trial court interview the children and therefore there was no requirement that an interview be conducted. The trial court did not abuse its discretion by not, on its own initiative, interviewing the children. {¶ 20} The Wife next argues, relying onRulong v. Rulong, Cuyahoga App. No. 84953,2004-Ohio-6919, 2004 WL 2931014, that the trial court erred in precluding the children's therapist from testifying. InRulong, the parties entered into a shared-parenting plan when they divorced in 1994. In 2004, the husband filed several motions relative to the custody of the children. As a result, a guardian ad litem was appointed for the children. The husband sought release to the guardian of confidential mental health records relative to counseling one of the children received at a health center. The husband executed a release for the records and compelled his ex-wife, by court order, to also sign a release. The 16-year-old child to whom the records pertained did not consent to their release. {¶ 21} After receiving a subpoena for the records, the health center filed a motion for a protective order. After a hearing on the matter, the trial court denied the center's motion and ordered that the records be released to the guardian. The center appealed. {¶ 22} In reversing the trial court, this court held that none of the exceptions to privileged communications set forth in R.C. 2317.02 applied. In so holding, this court specifically stated: *Page 135 {¶ 23} "Further, it is of no consequence that the patient in question is a minor and that both natural parents executed releases for disclosure of the information to the Guardian. The plain language of the statute is controlling and creates no exception for the age of the patient or releases executed by parents." Rulong at ¶ 14. {¶ 24} In the case at bar, the trial court refused to permit the child's therapist to testify because theHusband had not consented to release the therapist from the privilege. {¶ 25} The Wife cites the Rulong case for the proposition that it is irrelevant whether the parents of a minor child authorize release of privileged information because the privilege belongs to the client, in this case, the parties' children. The Wife did not present any evidence that the children consented to waiving their privilege and therefore her reliance on Rulong is misplaced. {¶ 26} We are, however, persuaded by the Wife's argument that the trial court abused its discretion by awarding custody of the children to the Husband in the face of evidence that he failed to attend a mandatory parenting seminar. Loc.R. 34 of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division, provides as follows: {¶ 27} "(A) Pre-Decree. — Within thirty (30) days before or after completion of service of process in any action for divorce or legal separation in which there are minor children or within thirty (30) days before or after the filing of a petition for dissolution of marriage in which there are minor children, the parties shall successfully complete a Court approved seminar for divorcing parents. {¶ 28} "* * * {¶ 29} "* * * {¶ 30} "(D) Failure to Attend. — The Courtshall not conduct a hearing or enter a final order allocating the primary rights and responsibilities for a child, grant shared parenting, modify the allocation of parental rights and responsibilities or modify and/or enforce visitation to or on behalf of any parent who has not completed the Court approved seminar. Notwithstanding the foregoing, no action shall be delayed by the responding or non-moving party's failure or delay in completing the seminar. In such event the Court may elect to conduct a hearing and issue a final order. Upon a party's failure to successfully complete the seminar, the Court may take such action, including but not limited to actions for contempt, as is appropriate." (Emphasis added.) {¶ 31} The Wife claims that the court abused its discretion by ignoring its own mandatory local rule and awarding sole custody to the Husband (the moving party) when he failed to comply with the requirements of Loc.R. 34 of the Court *Page 136 of Common Pleas of Cuyahoga County, Domestic Relations Division. We agree. We note in particular that the trial court failed to explain its "dispensation" from a mandatory local rule. Further, the case was pending for almost two years, a period of time that would have afforded the Husband more than adequate opportunity to comply. Accordingly, the trial court abused its discretion in naming the Husband sole residential parent and legal custodian when he failed to comply with Loc.R. 34 of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division. {¶ 32} Finally in regard to the allocation of parental rights and responsibilities of the parties' children, the Wife argues that Dr. Lovinger's opinion about what was in the best interests of the children was "confusing and contradictory" and that "his recommendations * * * were more calculated at punishing [the Wife], for what [he] perceived to be poor behavior * * *." We take issue with this allegation. {¶ 33} Dr. Lovinger, who, as previously mentioned, evaluated the parties pursuant to the court's order, explained the rationale behind his conclusion that awarding custody to the Husband would be in the children's best interest as follows: {¶ 34} "Both children love their parents and both parents, I believe, you know, love their children very much. * * * {¶ 35} "* * * {¶ 36} "The problems do not exist with the children and their attachment or relationship to either parent. They love their father. They love their mother. They certainly didn't want to create any scene in front of me and didn't really put down either parent. {¶ 37} "* * * {¶ 38} "I think that the problem with the Barry's [sic] is primarily their communication, and I think that a significant problem here is Sheila Barry's inability to give up drama and the ongoing miscommunication and ambiguous communication, distorted communication. {¶ 39} "I think she has a tendency and it comes out on psychological testing as well, to distort, to embellish, to magnify situations way beyond what is necessary. And this is a great deal of unnecessary drama and provocation of Mr. Barry, which keeps all of this fighting and arguing going." {¶ 40} Dr. Lovinger opined that the fighting between the parties could have ended a long time ago, but the Wife had a difficult time letting go of the relationship and therefore perpetuated the fighting and drama. Dr. Lovinger initially believed that shared parenting would have been appropriate for the Husband and the Wife, provided their communication with each other improved. *Page 137 At the time of trial, however, the parties' communication with each other had not improved and was of concern to Dr. Lovinger. On that point, Dr. Lovinger explained: {¶ 41} "So for me to recommend that they do some form of shared parenting when they can't even communicate via an email about [the] children's doctor's appointment is of great concern to me. {¶ 42} "So, while I would not want the children to spend less or more time with either parent, I think that I would still be inclined to go with some, you know, shared, in terms of the exact possession of the children with each parent, but I think decision making would have to be, I would recommend that Mr. Barry be making the decisions, because they can't seem to agree on anything. {¶ 43} "* * * {¶ 44} "And the reason I say that, is because I think Mr. Barry is much more inclined to invite Mrs. Barry into the decision making than the other way around. {¶ 45} "Mrs. Barry is not very inclined to communicate with Mr. Barry or invite him into the children's activities, where as I believe Mr. Barry would be much more inclined to do that without drama." {¶ 46} Based on the aforementioned assessment, Dr. Lovinger was of the opinion that "* * * Mr. Barry is much more able to provide [a] stable environment" for the children. {¶ 47} Upon review, we do not find that Dr. Lovinger's testimony was "confusing and contradictory" or that "his recommendations * * * were more calculated at punishing [Wife], for what [he] perceived to be poor behavior * * *." The trial court did not abuse its discretion by relying on Dr. Lovinger's testimony. R.C. 3109.04, governing the allocation of parental rights and responsibilities for the care of children in divorce proceedings, provides that in making a custody award between the parents, the court must take into account that which is in the best interest of the children and must consider all relevant factors, including which parent is more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights. Moreover, the record reflects that at one point in time, the Husband filed a motion for shared parenting, and Dr. Lovinger's observations were pertinent and appropriate to that issue. {¶ 48} However, it should be noted that Dr. Lovinger's testimony indicated that it was his belief that the parents should have equal time with the children, but that goal, in his opinion, should not be accomplished through shared parenting. All of the testimony on the record supported a recommendation of equal time; there is no evidence whatsoever in support of the court's final order of standard visitation. It would appear that all the trial court accepted of Dr. Lovinger's testimony was that the allocation of parental rights and responsibilities *Page 138 not be in the form of a shared parenting. Without specific findings as to why the recommended equal time was not ordered (that being the only evidence upon the record as to the appropriate visitation schedule), this court cannot conclude that the visitation schedule was not an abuse of discretion. {¶ 49} Accordingly, the Wife's first assignment of error (relative to custody of the children) is sustained in part and overruled in part, and the Wife's second assignment of error (relative to the clinician's testimony) is overruled. {¶ 50} In her third assignment of error, the Wife contends that the trial court abused its discretion by denying her two motions to continue. We disagree. {¶ 51} It is axiomatic that the granting of a continuance is within the sound discretion of the trial court.State v. Unger (1981), 67 Ohio St. 2d 65, 21 O.O.3d 41,423 N.E.2d 1078. The Wife claims that her motions were based upon her need for additional time to secure counsel. The Wife's counsel withdrew on April 20, 2005. The Wife had more than an adequate amount of time to secure counsel before the trial commenced on August 8, 2005. {¶ 52} The Wife's third assignment of error is overruled. {¶ 53} In her fourth, fifth, and sixth assignments of error, the Wife contends that the trial court erred by awarding the Husband attorney fees, failing to award her an interest in the Husband's marital retirement assets, and by offsetting the Husband's marital debt of $19,000 by $16,251.08. {¶ 54} The prevailing statute governing an award of attorney fees at the time of the parties' divorce was R.C.3105.18(H).4 At the time of the divorce, the incomes of the parties were approximately equal.5 There is no evidence in the record that the Husband would have been prevented from fully litigating issues absent an award of fees. There is no evidence showing a financial need for the *Page 139 fees and no evidence concerning the reasonableness of the fees awarded. Hence, the award of attorney fees in this matter was an abuse of discretion warranting reversal. {¶ 55} The Wife further argues that the division of marital retirement assets by the court constituted an abuse of discretion and upon this issue we agree. The evidence was uncontroverted that all the retirement assets of the parties were marital. The Husband was awarded 100 percent of the assets in his name, and 50 percent of the assets in the Wife's name. There is no explanation for this unequal division of assets, nor can this court locate in the judgment entry of divorce any offset that might illuminate this unequal division. Accordingly, this division is an abuse of discretion and the matter of the division of the retirement assets is reversed and remanded to the trial court. {¶ 56} The Wife further argues that there was marital debt that was not divided appropriately. Both parties testified that the Wife's father loaned money to the parties. The Wife's father testified that he loaned the Wife and Husband $46,000. The Husband recalled the debt to be $44,000. The court concluded the debt to be $38,000, with no explanation, and ordered the Husband to pay $2,748.92 of the debt and the Wife to pay the balance. The Wife opines that this unequal divisionmight be due to a request made by the Husband that he be given credit for gratuitous payments made by him to creditors for household obligations incurred during the pendency of the divorce. {¶ 57} The trial court does not offer this explanation in its entry, and even if that were time, voluntary payments are not payments in lieu of support. Evans v.Brown (1985), 23 Ohio App. 3d 97, 23 OBR 163,491 N.E.2d 384. However, whether this was the thought process of the court is unknown here; all that appears is that the Husband was to pay seven percent of the debt, and the Wife 93 percent. No findings were made by the court justifying this unequal division; hence, on its face, this allocation constitutes an abuse of discretion. {¶ 58} Accordingly, the decisions involving the allocation of parental rights and responsibilities, division of marital retirement assets, payment of attorney fees, and allocation of responsibility for marital debt to the Wife's father are hereby reversed, and this matter is remanded for disposition of those issues. {¶ 59} The judgment is reversed, and the cause is remanded to the Court of Common Pleas, Domestic Relations Division, for further proceedings consistent with this opinion. Judgment affirmed in part and reversed in part, and cause remanded. KARPINSKI, P.J., and BLACKMON, J., concur. 1 The Wife states in her brief that her trial counsel withdrew on May 20, 2005. The entry granting withdrawal of the Wife's counsel was file stamped April 20, 2005, however. On December 2, 2005, after the Wife, pro se, had initiated this appeal, appellate counsel filed a notice of appearance with this court and has filed a brief on her behalf. 2 The judgment entry states that the balance was $38,000. On the record, however, the court stated that the balance was $36,000. 3 The Wife did not proffer for the record the testimony she sought to elicit. 4 {¶ a} R.C. 3105.18(H) provided as follows: {¶ b} "In divorce or legal separation proceedings, the court may award reasonable attorney's fees to either party at any stage of the proceedings, * * * if it determines that the other party has die ability to pay the attorney's fees that the court awards. When the court determines whether to award reasonable attorney's fees to any party pursuant to this division, it shall determine whether either party will be prevented from fully litigating that party's rights and adequately protecting that party's interests if it does not award reasonable attorney's fees." {¶ c} It has long been the rule that an award of attorney fees is based on, among other things, necessity, and that necessity is determined by a consideration of the parties' financial situation, including income, assets and expenses. Barone v. Barone (Sept. 1, 2000), Lucas App. No. L-98-1328, 2000 WL 1232391; Cassaro v. Cassaro (1976), 50 Ohio App. 2d 368, 4 O.O.3d 320, 363 N.E.2d 753. In Goode v. Goode (1991), 70 Ohio App. 3d 125, 134, 590 N.E.2d 439, the court noted that a trial court, in reviewing the record to determine the necessity and reasonableness of attorney fees, may use its own knowledge and experience. 5 Husband's income was $57,000 per year and Wife's $60,000 per year. *Page 140

2016-07-06 06:36:14.758193+00

Washburn

The controversy in this case grows out of a written contract which it is difficult to specifically classify, and which is as follows: "Cognovit Note and Chattel Mortgage "$455.57 Akron, Ohio, March 13, 1940. *Page 508 "For value received I, we or either of us, the undersigned and hereinafter also called the Mortgagor, jointly and severally promise to pay to the order of The Akron Auto Finance Company, hereinafter also called the Mortgagee, at its office in Akron, Ohio, the sum of ($455.57) Four Hundred Fifty-five and 57/100 Dollars, together with a charge, including interest, of three per cent. per month from date hereof, computed on unpaid monthly balances of principal hereof up to $300.00 and eight per cent. per annum, payable monthly, on that part of any unpaid monthly balances of principal hereof over $300.00 until fully paid. Said principal sum, charges and interest to be due and payable in 1 @ $51.70, and 23 monthly installments of $23.50 each, beginning on the 18th day of April, 1940, which payments include charges and interest as aforesaid. From any payment made, charges and interest as aforesaid on the unpaid balance of the amount loaned, shall be deducted, and the balance of any such payment shall be applied on the unpaid principal of this obligation bearing the lowest charge including interest, until paid. "Upon default of payment of any installments or interest becoming due hereunder or any breach of any of the covenants of the mortgage given simultaneously as a part and as security hereof, then all of the remaining installments and interest accrued shall at once become due and payable without demand or notice, said notice and demand being hereby expressly waived. The makers, endorsers, undersigned and guarantors of this note severally waive demand, protest and presentment for payment and notice of non-payment and protest, without prejudice to the holder. I, we, any or either of us, the undersigned, hereby authorize and empower any attorney-at-law to appear for us, any or either of us, in an action on this note at any time after the same becomes due as herein provided, in any Court of Record, Justice of the Peace, *Page 509 or Magistrate having authority to render judgments in or of the State of Ohio; to waive the issuing and service of process against us, and any or either of us, and after pleading or declaration filed, confess judgment in favor of the legal holder of this note against us, any or either of us, for the amount due with interest provided, and cost of suit. All signers hereto are principals and agree that credit has been extended to the undersigned by payee as evidenced by this note, based upon the statement given by the undersigned simultaneously upon a certain separate application for this loan made and signed by the undersigned and to which especial reference is made. "In consideration of the sum designated above, receipt of which is hereby acknowledged, and to secure the payment of the foregoing obligation, or any other instrument or evidence of indebtedness given as payment, extension or substitution of or for the within obligation, I, we, the Mortgagor, hereby grant, bargain, sell, assign and mortgage unto the Mortgagee, all of the personal property listed below or listed on the sheet attached hereto and made a part hereof, complete with all attachments and equipment together with all future added and substituted parts and equipment and improvements, all of which we guarantee to be free and clear and unencumbered in any manner except .......... ........................ None. Property located at 547 Bell street, Akron, Ohio, and described as follows: Year "New or Used Kind of Property — Make, etc. Model Used Ford 1937 Radio Heater Factory "Body — Style Motor No. Serial No. Dlx cab 18-3455284 "To have and to hold the chattels and property above *Page 510 granted, together with all future added and substituted parts and equipment, unto the said mortgagee, his heirs and assigns. The conditions of this mortgage are such that whereas the mortgagor has executed and delivered unto the mortgagee the promissory note hereinabove, payable in installments as above stipulated, now if said mortgagor shall well and truly pay said promissory note according to the terms and tenor thereof, together with interest as provided, and shall perform all other things herein required to be performed (time being the essence of this contract, and theacceptance of any payment after the same is due shall not beconsidered to waive this provision), then this contract shall be null and void, otherwise to be and remain in full force and effect in law. "The `Mortgagor' covenants and agrees to take the best care of the property and keep it under shelter and in first class condition and order at all times, not to part with the possession of the property or to remove it from this county or state or to hypothecate, sublet or hire out the property without the written consent of the `Mortgagee,' and to produce and exhibit the property to the `Mortgagee' or his agent upon request at any time and not to commit any waste upon or misuse the property and not to sell, encumber, secrete, convert the property nor to use or permit it to be used for or in any manner connected with the violation of any law. "The `Mortgagor' further covenants and agrees that if default be made in payment of the said note or of any installments thereof, or interest thereon, or in the performance of any of the covenants or conditions herein contained on the part of the `Mortgagor' to be performed at the time and in the manner herein specified or if the property should be seized upon mesne or final process had against the `Mortgagor' or if the `Mortgagee' at any time before said amounts of money become due shall deem it necessary for the *Page 511 more perfect and complete security of the claims of the `Mortgagee' or should the `Mortgagor' become a bankrupt or his property pass into the hands of an assignee, receiver, or trustee, or in case of death of the `Mortgagor,' then, and in any such case, the `Mortgagee' is hereby authorized and empowered to enter any premises of the `Mortgagor' or other place where the property may be supposed to be, using force if deemed necessary (and no such entry or force shall be regarded as a trespass, or be treated as such, or be in any wise unlawful), and search for, seize and carry away, take and hold possession of the property without notice or demand and with or without legal procedure, said notice and demand being hereby expressly waived, and thereafter sell the property at public or private sale, with or without notice. The `Mortgagor' hereby grants unto the `Mortgagee' the right to become the purchaser of the property and out of the proceeds thereof to retain and pay the said note with interest and all other amounts that may become due under the terms and provisions of this contract, and to pay any and all liens that may be thereon, and to render the surplus money, if any, to the `Mortgagor.' The `Mortgagor' further covenants and agrees that if the unpaid balance on the note due to the `Mortgagee' together with interest provided and all other amounts that may become due under this contract, shall not be realized by said sale, the `Mortgagor' shall pay to the `Mortgagee' such deficiency upon demand, and that a letter addressed to the last known address of the undersigned will be sufficient notice of such demand and for the amount shown due to the `Mortgagee.' "And the mortgagor hereby authorizes any attorney-at-law to confess judgment in favor of the mortgagee or its assigns in the same manner and in the same courts as hereinabove in the note part provided for judgment by confession, and the mortgagor hereby *Page 512 makes the same waiver of service by process, notice, etc., as hereinabove made. "All the property hereinabove enumerated shall be at the risk of the `Mortgagor' during the life of this contract and no loss thereon or damage thereto shall release `Mortgagor' from the payment of any part of the said sum and interest, nor from the payment of any amounts which may become due under and by virtue of the conditions of this contract; and no waiver of any of the conditions of this contract to be performed and kept by the `Mortgagor' shall be deemed to have been given under any circumstances by the `Mortgagee' unless the same be in writing and signed by the `Mortgagee,' and the `Mortgagor' further agrees that this contract contains the entire agreement between the `Mortgagor' and the `Mortgagee,' and that no verbal agreement of whatsoever nature shall be binding, and the terms hereof are and shall be binding upon and shall be for the benefit of the heirs, executors, administrators, or successors and assigns of the `Mortgagor' and the heirs, executors, administrators, or successors and assigns of the `Mortgagee,' and all the signers hereto hereby acknowledge receipt of a full complete and correct copy of this contract and that the same has been fully and thoroughly read over by or to them, and especially covenants that the mortgagor's statement appearing on a certain separate application for this loan made and signed by the undersigned and to which especial reference is made, is true and correct in every respect. "Except as herein provided, said Mortgagor shall remain and continue in possession of said personal property. "In Witness Whereof the said Mortgagors have hereunto set their hands this 13th day of March, 1940. *Page 513 "Signed in the presence of: "...................... Sign { Calvin E. Weber "...................... Here { Kalman Emil Weber "...................... { Frank Stonebraker" On the back of said written instrument are listed the following payments: "Amount Applied on Balance "Date Paid Interest Principal Due "4-26-40 23.50 14.38 9.12 446.45 "5-14-40 51.70 5.98 45.72 400.73 "6-28-40 23.50 14.17 9.33 391.40 "7-29-40 23.50 9.92 13.58 377.82 "9- 3-40 23.50 10.78 12.72 365.10 "10-21-40 Sale of car $250.00 115.10 The balance due after allowing said credits was $115.10 on October 21, 1940. There is also endorsed on the back a chattel mortgage affidavit, provided for by law, and the instrument was filed for record in the clerk's office on March 18, 1940. The signers of the instrument are just two men: One being Calvin E. Weber, also described as Kalman Emil Weber, and the other being Frank Stonebraker, Sr. The signer by the name of Weber was called into the military service of the United States. Thereafter the plaintiff finance company named in said written instrument took possession of the automobile described in the instrument, and, without any legal process whatsoever, and by means of some sort of sale of the automobile, determined that there should be endorsed as a payment on the instrument the sum of $250 for the car, and thereafter the finance company, treating the written instrument as, among other things, a negotiable instrument with warrant of attorney *Page 514 attached which authorized a judgment, either jointly or severally, against the signers of the instrument, filed a petition against Frank Stonebraker, Sr., alleging therein only that he signed the instrument, a copy of which was attached, and that there was due thereon a certain sum, with interest, for which judgment was asked. With said petition was filed an answer by an attorney at law, confessing judgment under the warrant of attorney for the amount claimed in the petition; and also with the petition was filed an affidavit that Stonebraker was not in the military service. There was no service of summons upon Stonebraker, and, previous to the judgment, he was not before the court otherwise than by virtue of said warrant of attorney. A judgment was entered against Stonebraker on the same day — December 7, 1940, the other party signing the instrument not having been made a party to the suit. Upon the same day that judgment was entered, an order in aid of execution was issued upon affidavit being filed, the same being returnable December 18, 1940. On or before December 19, 1940, Stonebraker appeared before the court and made a motion for an order staying the enforcement of the judgment, for the reason that Weber, the other signer of said instrument, was in the military service of the United States, and that the defendant, Stonebraker, signed the instrument for the accommodation of Weber and solely for the purpose of lending his credit to Weber. At the hearing on the motion, the trial court found, as shown by its journal entry disposing of the motion, that Stonebraker received no part of the loan evidenced by said instrument, and signed the same solely for the purpose of extending his credit to Weber; that Weber was the principal, and that Stonebraker was an "accommodation maker." *Page 515 The court also found that Weber was in the active service of the United States Army, and that, by virtue of the provisions of the Soldiers' and Sailors' Civil Relief Act, Stonebraker was entitled to the same relief against enforcement of the judgment that he would be entitled to had Weber been made a party to the action upon the instrument. Under such finding, the court ordered that the collection of said judgment and the costs of said suit be suspended until the further order of the court. The plaintiff finance company excepted to said order, and filed a motion for a new trial, which was overruled, and then, within due time, filed notice of appeal on questions of law to this court. The matter is before this court on the question as to whether the stay of execution granted by the trial court should be allowed to stand. It is conceded that, if the proceedings in this case were against Weber, the other signer upon the instrument, the trial court had the right, under the authority of the Soldiers' and Sailors' Civil Relief Act of 1940, recently enacted by Congress, to make the order suspending all proceedings to enforce the collection of the judgment as against Weber. It is the claim of the defendant, Stonebraker, that by said act the court had authority to make the order of suspension in his favor. That act provides (Section 103) that: "(1) Whenever pursuant to any of the provisions of this Act the enforcement of any obligation or liability, * * * or enforcement of any order * * *, judgment, or decree * * *, may be stayed, postponed, or suspended, such stay, postponement, or suspension may, in the discretion of the court, likewise be granted to sureties, guarantors, endorsers, and others subject to the obligation or liability, the performance or enforcement of which is stayed, postponed, or suspended." (Italics ours.) *Page 516 It is the contention of the plaintiff finance company that, as a matter of law, Stonebraker is not, as to the instrument in question, a surety, guarantor or indorser, but on the contrary a principal, and is primarily liable under Sections 8165 and 8296, General Code. Such claim is bottomed upon the assumption that said written contract is a negotiable instrument. We will consider whether that claim is justified. Under the Negotiable Instruments Law, negotiable notes and bills were designed to circulate freely and to take the place of money in commercial transactions, and a sound policy would seem to dictate that they should be in form as concise as possible, and that the obligation assumed by the maker or makers should be expressed in plain and simple language; for if negotiable contracts should be burdened with all sorts of collateral engagements, they could and would be used for the purpose of entrapping the inexperienced and unwary into agreements against which the law would afford them no redress in the hands of a holder in due course and without notice. It is true that the simple, short instruments of early custom in commercial relations have grown into elaborate documents, containing collateral undertakings; and in respect of these innovations the American courts have been much divided in opinion as to whether they destroy the negotiability of such instruments, and it is impossible to reconcile their decisions. But as to some of such innovations, the better reasoned decisions, promoting a sound public policy, are to the effect that such innovations render the instruments non-negotiable. The Uniform Negotiable Instruments Act was designed to free negotiable instruments, as far as possible, from all latent or local infirmities that would otherwise inhere in them, and to establish a uniform system of law to govern negotiable instruments and to *Page 517 furnish a more certain guide for the determination of all questions covered thereby relating to commercial paper; and to that end the act provides, in reference to negotiability, the following: "An instrument which contains an order or promise to do any act in addition to the payment of money is not negotiable." Section 8110, General Code. This is the general rule; and then there are stated in said section certain exceptions — which are: Provision for the sale of collateral securities; authorizing confession of judgment; waiving certain laws; and a provision which gives to the holder an election to require something to be done in lieu of the payment of money. Before said enactment, there was great conflict in the decisions as to what promises and provisions when added to a simple promissory note would render the note non-negotiable, and one of the purposes of said enactment was to make the determination of that question dependent upon the interpretation of the language of the statute instead of upon a consideration of the formerly conflicting decisions on that subject; and the words used in the statute are to be given their natural and common meaning. The question has been perplexing not only to the commercial world but to courts and lawyers. The statute should be regarded as the establishment of a public policy on the subject, and it seems to this court that that public policy is apparent from the simple and easily understood words of the statute: and that is, to restrict the character of permissible collateral undertakings in negotiable instruments strictly to those of the class enumerated in said exceptions, and to render non-negotiable a note containing other promises to do acts "in addition to the payment of money." The contract involved in the case at bar contains language which, if considered by itself, would be construed as constituting a negotiable instrument, but it also contains a provision that the signers agree that *Page 518 the credit extended was based upon a statement simultaneously given by the signers upon a certain separate application for the loan, and to which "special reference is made." Said single writing also contains language which, by itself, would be considered to constitute a mortgage, and contains a provision that the mortgagor covenants and agrees to take the best of care of the property mortgaged, to keep it under shelter and in first-class condition and not to part with its possession, to produce and exhibit the property whenever the mortgagee requests, not to use or permit it to be used for or in any manner connected with the violation of any law, and contains a covenant that the mortgagor's statement in his application for the loan, to which special reference was made, is true and correct in every respect. The contract also provides that, upon the default of payment of any installment of principal or interest, or any breach of any ofthe covenants of the mortgage, then all of the remaining installments and interest accrued shall at once become due and payable, without demand or notice. As has been said, the contract provides that the sum specified shall be paid, together with a charge, including interest, of 3 per cent a month, from date thereof, computed on unpaid monthly balances of principal up to $300, and 8 per cent per annum, payable monthly, on that part of unpaid monthly balances of principal over $300, and that said "sum, charges and interest [are] to be due and payable in one payment of $51.70, and 23 monthly installments of $23.50 each." As shown by the copy hereinbefore set out, said contract, containing the provisions mentioned and many others, is a single document, signed only at the end thereof. We will consider another matter having to do with the question of the negotiability of said contract, and *Page 519 that is the matter of certain statutes governing the making of small loans. Inasmuch as the contract hereinbefore referred to provides for interest at 3 per cent a month and contains other provisions allowable only under Section 6346-5, General Code, which appears as a part of chapter 25 of Throckmorton's General Code, and as a part of chapter 25a of Page's General Code, comprising Sections 6346-1 to 6346-13, inclusive, General Code, regulating the business of making small loans, it is apparent that the plaintiff finance company is operating under the provisions of said chapter. Said chapter provides for the licensing by the commissioner of securities of any person, firm, partnership, association or corporation, to conduct the business of making small loans, and that such business shall be conducted under the supervision of said commissioner, and contains innumerable provisions intended to protect borrowers dealing with such licensees, and gives the commissioner power to enforce all of the provisions of said chapter and see to it that none of the provisions thereof protecting the borrower shall be violated; and it is apparent from the provisions of the chapter that that can be accomplished only in the event that the contracts made in accordance with the provisions of the chapter are not held by bona fide holders in due course under the Negotiable Instruments Act. There are many provisions in said licensing chapter intended to protect the borrower, which he would be deprived of if the contract were negotiable under the Negotiable Instruments Act. One illustration is that, under the licensing chapter, if the interest, consideration or charges made in the transaction by the finance company be in excess of those permitted by that act, "the contract and all the papers in connection therewith shall be void and the licensee shall have no right to collect or receive any principal, interest or charges *Page 520 whatsoever"; whereas, if the contract is negotiable, and excessive interest is charged or excessive charges are made, such as the exaction of a bonus or a usurious amount of interest, and it is in the hands of a bona fide holder without notice of such usurious exaction, the borrower is without remedy as against such bona fide holder. In the case at bar, it is apparent that, including the judgment, the amount payable is $529.21 to discharge a debt purporting to be $455.57. If, because of the manner of figuring, that amount is more than the plaintiff finance company was entitled to under the law when the debt was paid within six months instead of two years, as stipulated in the contract, then usury was exacted, and if the contract was negotiable, the borrower would be without remedy against a bona fide holder without notice of such usury exaction. Section 8307, General Code. In said chapter 25 (25a) it is made the duty of the commissioner to investigate the business and affairs of the licensee, and the act provides that, for that purpose, he shall have free access to the vaults, books and papers of the licensee, and other sources of information with regard to the business of the licensee, and his supervision extends throughout the period of the existence of each contract; and it is also made his duty to notify the proper prosecuting officer of any violation by the licensee of any of the provisions of the act designed to protect the borrower, and to act as complainant in the prosecution thereof. The negotiation of such contracts would deprive the borrower of these protections. From a consideration of said chapter in its entirety, it is inconceivable that it was the intention of the Legislature to make the contracts with borrowers made in accordance with said law, negotiable instruments. It is also doubtful if any reputable business concern *Page 521 having access to legal advice would discount such contracts. A study of the various cases bearing upon the question of the negotiability of contracts, and a consideration of the aforementioned Small Loan Act under which said contract was made, leads us to the conclusion that said contract contains promises to do acts in addition to the payment of money of such a nature as to render it non-negotiable, and that the liability of the signers thereof is not fixed by the Negotiable Instruments Act, and that their liability is therefore that which attaches to the signers of non-negotiable contracts. The right to make contracts stipulating for interest in excess of 8 per cent and to enforce said contracts is a right specially conferred by said act by the Legislature, and the Legislature has authority to declare that such contracts shall be not only non-negotiable but nonassignable, and to require that such contracts contain on their face a notice to that effect. A consideration of the whole subject, made necessary in determining this case, leads the court to the conclusion that, for the purpose of affording protection not only to borrowers but to the public in general, the Legislature ought to exercise its right so to do. The entry of judgment against Stonebraker was not questioned by him in the trial court, and, in view of the state of the record, cannot be questioned by him in this court. In the trial court, Stonebraker asked for no relief except the stay of the collection of the judgment, and that was granted; and, if that order of stay be approved, he can obtain no other relief in this court in this appeal on questions of law. The trial court found that Stonebraker signed said contract without receiving value therefor and for the purpose of lending his credit to Weber, and, there being no bill of exceptions, and we having found that the *Page 522 contract is not a negotiable instrument, that finding of fact by the trial court must stand. Did the trial court err in determining that one signing such a contract without receiving value therefor and for the purpose of lending his credit to another, is included within the description "sureties, guarantors, indorsers, and others subject to theobligation or liability," as used in said act of Congress? (Italics ours.) We think that such a signer is one of the general class, kind or nature known as "sureties or guarantors" specifically enumerated in said act of Congress, and therefore is included in the "others" mentioned therein, and that therefore the order of stay should be approved. We find no prejudicial error, and the judgment granting the stay is affirmed. Judgment affirmed. DOYLE, P.J., and STEVENS, J., concur.

2016-07-06 06:36:15.492913+00

I respectfully dissent. Appellant has argued that the doctrine of resjudicata does not preclude him from litigating his claims of breach of contract and tortious interference with a contract. Specifically, on appeal he contends that the initial administrative proceeding was not fully litigated. I would hold that Appellant had the opportunity to raise this argument on his first appeal; therefore, the arguments are barred byres judicata. The Supreme Court of Ohio noted in Rogers v. Whitehall (1986),25 Ohio St.3d 67, 69, that "an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit." The Supreme Court further noted in National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60,62, that "[t]he doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it." As stated in Henderson v. Ryan (1968), 13 Ohio St.2d 31,38 "[t]o save time and to relieve court congestion, parties are encouraged, if not commanded, to litigate all their claims in one action, except to the extent that joinder of multifarious and complex issues would produce confusion and prejudice." The trial court in this case granted summary judgment in favor of the Board. The court found that the claims in question were fully litigated and res judicata precluded further litigation. Additionally, the court found that Appellant failed to assert a cause of action for tortious interference with a contract. In the initial proceedings, the trial court addressed Appellant's assigned errors as raised in his briefs; namely, whether the Board complied with the provisions of R.C. 121.22 and whether the Board had sufficient cause to terminate Appellant's contract. In the subsequent appeal, Appellant argued to this court that the trial court had erred in finding that the Board's decision to terminate Appellant was constitutional and supported by a preponderance of reliable, probative, and substantial evidence. The underlying facts in this case are identical to those which led to the administrative appeal in the Summit County Court of Common Pleas and the first appeal to this court. Therefore, Appellant's assertion regarding the alleged inadequate litigation of the administrative proceedings is not an issue to be decided in a newly filed action, but an issue which should have been raised on appeal from the initial proceeding. The question herein is not whether Appellant actually litigated the issue involved, but whether he had the opportunity to litigate it. See Jacobs v. Teledyne, Inc. (1988), 39 Ohio St.3d 168,169. Appellant had that opportunity in this case on his first appeal. Since Appellant apparently chose not to assert this ground for relief in the first appeal, he is barred by res judicata from asserting it here. Based on the foregoing, the trial court did not err in finding that these claims were barred by res judicata and granting summary judgment in favor of the Board. Although the trial court granted the motion for summary judgment for different reasons than those stated above, "we will not reverse a correct judgment merely because of an erroneous rationale."State ex rel. Gilmore v. Mitchell (1999), 86 Ohio St.3d 302, 303. Therefore, I would overrule Appellant's assignments of error and affirm the judgment of the trial court.

2016-07-06 06:36:15.562692+00

OPINION {¶ 1} This accelerated calendar case is submitted to this court on the record and the brief of appellant, Richard M. Silver. Appellees have not filed a brief in this matter. Silver appeals the judgment entered by the Lake County Court of Common Pleas. The trial court entered judgment in favor of appellees, Patterson Simonelli ("Patterson Simonelli"), David N. Patterson ("Patterson"), and Mark M. Simonelli ("Simonelli"). {¶ 2} Patterson Simonelli performed various legal work for Silver. This relationship terminated. Thereafter, Patterson Simonelli filed the instant action against Silver. The complaint alleged that Silver owed Patterson Simonelli $21,879.93 in unpaid legal fees. {¶ 3} Silver filed an answer and an amended answer. In both pleadings, Silver filed a third-party complaint against Patterson and Simonelli, as individuals. {¶ 4} Joseph Oliver initially represented Silver in this matter. In June 2001, Oliver drafted a letter outlining a settlement agreement for the case. Attached to the letter were various "exhibits," including: a stipulated order of dismissal, a notice of dismissal, a proposed judgment entry, and a mutual release. This letter was sent to appellees for Patterson's and Simonelli's signatures. Patterson and Simonelli signed the documents. Silver did not personally sign them; however, appellees argued that a binding settlement existed through the agency relationship of Oliver and Silver. In August 2001, Oliver withdrew as counsel for Silver, and Silver proceeded pro se. {¶ 5} Pursuant to the agreement, Silver was to pay appellees $6,000 by July 30, 2001. He did not make this payment. In response, appellees moved the trial court to reduce the agreement to a judgment. On October 26, 2001, the trial court entered a "stipulated order of dismissal." The order required Silver to pay appellees thirteen monthly payments of $500 each, for a total of $12,500. The trial court retained jurisdiction to enforce the settlement. Silver did not attempt to appeal this judgment. {¶ 6} According to an affidavit of Patterson, Silver paid $7,000 of this award but stopped making payments in July 2002. In January 2003, appellees filed a "motion to enforce settlement of claim." In response, Silver filed a "request for `arbitration,'" a "second request for change of venue," and an "answer to plaintiff's motion to enforce settlement claim and breach of contract by plaintiff." Attached to the last pleading was an affidavit from Silver. {¶ 7} On February 28, 2003, a hearing was held on these respective motions. Although the record reveals that a stenographer was present at this hearing, Silver has not filed a transcript of the hearing. {¶ 8} In a judgment entry filed March 6, 2003, the trial court overruled Silver's first and second motions for a change of venue, as well as his request for arbitration. In addition, the trial court struck Silver's attempt to assert a complaint for breach of contract, holding "[t]he proper procedure for asserting a counterclaim, absent prior leave of court or in a responsive pleading, is to initiate a new complaint." Finally, the trial court enforced the original settlement judgment entry. {¶ 9} Silver's first assignment of error is: {¶ 10} "The trial court err[ed] to the prejudice of defendant-appellant when denying his request for change of venue." {¶ 11} The trial court's judgment entry states that Silver's first and second requests to change venue are denied. A review of the record before this court only reveals one pleading from Silver on the issue of venue, captioned "second request for change of venue." We will address this assignment of error with the assumption that two requests were made, even though the record before us only evinces one written request. {¶ 12} "Venue is governed by Civ.R. 3."1 This rule provides, in part: {¶ 13} "Any action may be venued, commenced, and decided in any court in any county. When applied to county and municipal courts, `county,' as used in this rule, shall be construed, where appropriate, as the territorial limits of those courts. Proper venue lies in any one or more of the following counties: {¶ 14} "(1) The county in which the defendant resides; {¶ 15} "(2) The county in which the defendant has his or her principal place of business; {¶ 16} "(3) A county in which the defendant conducted activity that gave rise to the claim for relief; {¶ 17} "* * * {¶ 18} "(6) The county in which all or part of the claim for relief arose; or, if the claim for relief arose * * *." {¶ 19} A reviewing court reviews a trial court's decision on a motion to change venue to determine if the trial court abused its discretion.2 "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable."3 In addition, the trial court is to determine which of the factors listed in Civ.R. 3 have priority over the others.4 {¶ 20} At the time the original complaint was filed, Silver was a resident of Cuyahoga County. We note that venue may be proper in more than one county.5 The instant action could have been commenced in either Lake or Cuyahoga County. The original action arose in Patterson Simonelli's law office in Willoughby, Ohio, where Patterson Simonelli performed some of the legal work for which the initial complaint was filed. Willoughby is located in Lake County. In addition, the October 2001 settlement agreement was filed in Lake County, and the trial court retained jurisdiction to enforce the agreement. {¶ 21} The trial court did not abuse its discretion by denying Silver's requests to change venue. {¶ 22} Silver's first assignment of error is without merit. {¶ 23} Silver's second assignment of error is: {¶ 24} "The trial court err[ed] to the prejudice of defendant-appellant when denying his request for arbitration." {¶ 25} In order to force the opposing party to resolve a dispute through arbitration, there must be a valid, enforceable arbitration clause.6 The settlement agreement sought to be enforced by appellees did not contain an arbitration clause. {¶ 26} The trial court did not err by denying Silver's request for arbitration. {¶ 27} Silver's second assignment of error is without merit. {¶ 28} Silver's third assignment of error is: {¶ 29} "The trial court judge err[ed] to the prejudice of the defendant-appellant by striking his attempt to move, that there was a breach of contract." {¶ 30} Pursuant to App.R. 9(B), it is the appellant's duty to file a transcript with this court. Silver has failed to file a transcript of the February 28, 2003 hearing. The record indicates a stenographer was present at this hearing. Even if a formal transcript was not available, Silver had the duty, pursuant to App.R. 9(C), to file a statement of the evidence with this court. Silver has not done this. We note that Silver is appearing pro se on appeal. However, a pro se litigant is held to the same standard as other litigants and is not entitled to special treatment from the court.7 {¶ 31} An appellate court is limited to the record before it.8 In addition, this court has previously held that "[i]f appellant cannot demonstrate the claimed error then we presume the regularity of the trial court proceedings and affirm the judgment."9 {¶ 32} We do not know what evidence, if any, was presented at the February 2003 hearing regarding the alleged breach by appellees. We have reviewed Silver's affidavit attached to his breach of contract pleading. However, based solely upon this review, we are unable to determine the basis of Silver's breach of contract allegation. {¶ 33} If Silver's breach of contract allegation pertained to the settlement agreement, which appellees sought to enforce, Silver was justified in raising it at that time. However, if the allegation pertained to some other transaction between the parties, the trial court properly struck the pleading. Presumably, if the alleged breach concerned the settlement agreement, there was evidence and arguments on the issue presented at the February 28, 2003 hearing. However, we do not have a transcript of this hearing. {¶ 34} Based on the limited record before us, we cannot say the trial court erred in the resolution of this matter. {¶ 35} Silver's third assignment of error is without merit. {¶ 36} Silver's fourth assignment of error is: {¶ 37} "The trial court judge err[ed] to the prejudice of the defendant-appellant with abuse of discretion knowing the substantial unbalance from `the complaint filed to the final journal entry' in favor of the attorney-plaintiff-appellee which ignored appellant's due process entitled to him." {¶ 38} Silver contends that the actions of the trial court or appellees have violated his due process rights under the United States Constitution and, thus, he is entitled to recovery under Section 1983, Title 42 of the United States Code. We disagree. {¶ 39} "In order to prevail on a claim under Section 1983, a plaintiff must establish: `(1) (that) the conduct in controversy was committed by a person acting under color of state law, and (2) that the conduct deprived plaintiff of a federal * * * constitutional or statutory (right).'"10 The under color of state law requirement is similar to the state action requirement of the Fourteenth Amendment, and "it `excludes from its reach "merely private conduct, no matter how discriminatory or wrongful."'"11 {¶ 40} Silver attempts to classify Patterson and Simonelli as state actors because they pay taxes. This argument is totally unfounded. They are private citizens. Nearly all private citizens pay taxes. Such activity does not convert them into "state actors." {¶ 41} Regarding Silver's claim against the trial court, we note that "[i]t is a well-settled rule in Ohio that where a judge possesses jurisdiction over a controversy, he is not civilly liable for actions taken in his judicial capacity."12 Silver has not alleged that the trial court acted outside of its authority or jurisdiction. {¶ 42} Silver's fourth assignment of error is without merit. {¶ 43} The judgment of the trial court is affirmed. Grendell, J., Rice, J., concur. 1 State ex rel. Ohio State Racing Comm. v. Walton (1988),37 Ohio St.3d 246, 247; Civ.R. 3. 2 Premier Assoc., Ltd. v. Loper, 149 Ohio App.3d 660,2002-Ohio-5538, at ¶ 37, citing State ex rel. McCoy v. Lawther (1985), 17 Ohio St.3d 37, 38. 3 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 4 Premier Assoc., Ltd. v. Loper, at ¶ 37, citing State exrel. McCoy v. Lawther, 17 Ohio St.3d at 38. 5 See State ex rel. Ohio State Racing Comm. v. Walton,37 Ohio St.3d at 247; Civ.R. 3. 6 R.C. 2711.01(A). 7 See Kilroy v. B.H. Lakeshore Co. (1996),111 Ohio App.3d 357, 363. 8 See, e.g., State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus. 9 State v. Davis (Dec. 4, 1998), 11th Dist. No. 97-P-0111, 1998 Ohio App. LEXIS 5810, at *2, citing Rose Chevrolet, Inc. v.Adams (1988), 36 Ohio St.3d 17, 19; Knapp v. EdwardsLaboratories (1980), 61 Ohio St.2d 197, 199; Bucary v.Rothrock (July 13, 1990), 11th Dist. No. 89-L-14-046, 1990 Ohio App. LEXIS 2854, at *2-3. 10 Lee v. Cleveland, 151 Ohio App.3d 581, 2003-Ohio-742, at ¶ 29, quoting Roe v. Franklin Cty. (1996), 109 Ohio App.3d 772,778. 11 Peoples Rights Org., Inc. v. Montgomery (2001),142 Ohio App.3d 443, 506, quoting Am. Mfg. Mut. Ins. Co. v. Sullivan (1999), 526 U.S. 40, 50. 12 State ex rel. Fisher v. Burkhardt (1993),66 Ohio St.3d 189, 191, citing Kelly v. Whiting (1985), 17 Ohio St.3d 91;Wilson v. Neu (1984), 12 Ohio St.3d 102; and Voll v. Steele (1943), 141 Ohio St. 293.

2016-07-06 06:36:15.590347+00

This is an appeal of two cases from the Pickaway County Court of Common Pleas which have been consolidated by this court. Plaintiff-Appellant AG Services sued Defendant-Appellees Keynes Bros. and Albert Louer, et al., to recover money which Keynes paid to the Louers for certain crops sold to Keynes. Ag Services claimed that it had a security interest in the crops and was entitled to the proceeds of the sale. All parties filed motions for summary judgment and the trial court granted summary judgment in favor of Keynes and the Louers. From that decision, Ag Services took two appeals which have been consolidated for purposes of decision in this matter. Ag Services designates identical claims of error in each case. ASSIGNMENT OF ERROR 1 "THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT." ASSIGNMENT OF ERROR 2 "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO GRANT PLAINTIFF-APPELLANT'S MOTION FOR SUMMARY JUDGMENT." FACTS Ag Services provided financing to Douglas and Jahne Palmer dba Walston Hill Farms for the 1992 crop year. The Palmers executed a promissory note in the amount of $300,000.00 in favor of Ag Services. They also delivered to Ag Services a security agreement as collateral for the note which granted Ag Services a security interest in the crops to be grown. Ag Services recorded a Financing Statement, as required by R.C.1309.21 to perfect a security interest, listing the collateral on the property and the record owners of the property as Walston Hill Farms, Lewis Wm. Dye, ERA Partnership, Thomas Andrew Kirdas, and Curtis Scott. Ag Services provided Keynes with a Notice of Security Interest. However, the description of the real estate, in both the Security Agreement and Financing Statement, were not accurate and not sufficient to indicate the actual land on which the crops were growing or to be grown. In addition, the Financing Statement failed to list the proper owners of record, the Louers. Walston and the Palmers delivered crops to Keynes over the 1992 growing year. Some crops were identified as coming from the real estate in which Ag Service had a security interest and accordingly Keynes issued a check jointly to Walston and Ag Services for the crops. Other crops were taken to Keynes by Palmer and identified as being sold for the "Bennett Farm Trust". Keynes then issued a check solely to the Bennett Farm Trust. A check issued to the Bennett Farm in February 1993 in the amount of $28,600. was cashed by the Louers, the owners of record of the Bennett Farm. STANDARD OF REVIEW Summary judgment is appropriate when the following have been established: (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, that party being entitled to have the evidence construed most strongly in their favor. Civ.R. 56(C); Bostic v. Connor (1988), 37 Ohio St.3d 144,146. The burden of showing that no genuine issue exists as to any material fact falls upon the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Additionally, a motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v.Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 In reviewing a summary judgment, the lower court and the appellate court utilize the same standard, but we do not give deference to the trial court, i.e., we review the judgment independently and without deference to the trial court's determination. Midwest Specialties, Inc. v. Firestone Tire Rubber Co. (1988), 42 Ohio App.3d 6, 8. When reviewing an order for summary judgment, our review is de novo in nature and we apply the same standard as the trial court. See Tohline v.Central Trust Co., N.A. (1988), 48 Ohio App.3d 280, 281; Howardv. Wills (Sept. 11, 1991), Jackson App. No. 641, unreported. In essence, we examine the materials before us and determine whether summary judgment is appropriate under the standards set out in Bostic, Harless, Mitseff and Wing, supra. Appellant asserts three basic claims in support of its assignments of error. The first is that: "Ag Services of America, Inc. had a priority in the proceeds regardless of whether Ag Services interest was perfected." The same claim is put another way: "Ag Services had a priority in the proceeds over Keynes because Keynes took possession of the collateral after it had been harvested." Ag Services claims that it had a security interest in the crop and thus a priority. This contention was made and rejected in Western Ohio Natl. Bank Trust Co. v. Continental Grain Co. (1986), 33 Ohio App.3d 210. In that case, while noting that a lender may obtain a security interest in a harvested crop, "* * * we conclude that the real estate descriptions required of the security agreement by R.C. 1309.14 and of the financing statement by R.C. 1309.39 are essential to security agreements made and financing statements filed when the crops are still growing or to be grown, if these security agreements and financing statements are to accomplish the attachment and perfection of the lender's intended security interest in the harvested crop." "To conclude otherwise would relegate the real estate description requirements of R.C. 1309.14 and 1309.39 to situations which, in reality, do not exist." *** "While it may be true that these lenders attempted to take a security interest in a growing crop, the sales of crops which gave rise to the litigation in these cases occurred after harvest. Yet, without exception, the lender with the inadequate real estate description in its security agreement and financing statement lost." (citations omitted) Appellant's second claim is: "The real estate description in the Security Agreement, Financing Statement and Notice of Security interest is sufficient to perfect Ag Services' security interest." Clearly it was not. The Louers were record owners of the land but were not listed as such, and as was noted by the trial court, appellant did not even contest this fact on summary judgment. R.C. 1309.39(D) (UCC 9-402) states in relevant part: "A financing statement covering crops growing or to be grown * * * must show that it covers this type of collateral, must recite that it is to be indexed in the real estate records of the county in which the real estate is situated, and the financing statement must contain a description of the real estate sufficient if it were contained in a mortgage of the real estate to give constructive notice of the mortgage under the law of this state. If the debtor does not have an interest of record in the real estate, the financing statement must show the name of a record owner or record lessee." Appellant's third claim is: "Ag Services security interest in the proceeds was perfected as to Keynes Bros. and the Louers since neither the Louers nor Keynes Bros. Relied upon the alleged deficiencies in the property description." This argument seems to confuse the respective duties of the parties. Ag Services contends that Keynes and the Louers had knowledge of Ag Services' interest although it is clear from the record they did not. Ag Services then asserts that Keynes did not examine the property description or investigate who the record owners were, i.e. Keynes would have had knowledge if they had checked the inadequate description. There is no such requirement in Chapter 13 of the Revised Code. The sections within that chapter set out with great specificity the things that must be done in order to perfect a security interest. There is only one right way of doing things. There are probably dozens or even hundreds of ways of doing things so that there may or may not be a perfected interest. If the courts permit deviation from the statutory requirements there will no doubt be dozens or even hundreds of cases where the courts will be called upon to decide if this particular form of non-compliance is good enough. From a public policy standpoint it is far better to insist on compliance so that lenders may know exactly what must be done to protect their interest in collateral and do it. We adopt that position in this case. A security agreement and financing statement for growing crops or crops to be grown must contain a description of the real estate that complies with R.C. 1309.39(D) or the lender has no perfected interest. Anything less is not enough. We note here the language of 1309.39(H), now (G), which provides, "A financing statement substantially complying with the requirements of this section is effective even though it contains minor errors which are not seriously misleading." Appellant would have us rule that omitting an accurate real estate description is a minor error. In Steego Auto Parts Corp.v. Markey (1981), 2 Ohio App.3d 200, where BancOhio became the successor in interest to Peoples Savings Bank, it was held that the mere change of name of the bank was a minor defect since the filing put a party on notice that a secured party had an interest in the collateral. In Mauer v. Port Feed Mill, Inc. (1991), 71 Ohio App.3d 200, on the other hand, where the financing statement listed only the name of the person, Tom Davis, and did not identify the business, Port Feed Mill, and was not indexed under the name of Port Feed Mill, it was held that the interest was not perfected. In this case, the failure to include a proper description of the real estate cannot be regarded as minor. Based on the foregoing, we find that the court did not err in granting summary judgment in favor of either the Louers or Keynes Bros. Appellant's assignments of error are not well taken and are overruled. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellees 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 Pickaway County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, J. Kline, J.: Concur in Judgment Opinion For the Court BY: ----------------------- Lawrence Grey, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. Judge Lawrence Grey, retired, of the Fourth District Court of Appeals, sitting by assignment of the Ohio Supreme Court in the Fourth District.

2016-07-06 06:36:15.672998+00

OPINION. A Cincinnati police officer arrested appellee Steven Kleingers for driving under the influence in violation of R.C.4511.19(A)(1). He transported Kleingers to the District One police station to administer an intoxilyzer test. The officer read Kleingers his rights under Miranda v. Arizona.1 He showed Kleingers the form containing the Miranda rights, but never placed the form in Kleingers's hands. According to the officer, Kleingers looked at the form and refused to sign it. He then handed Kleingers the Administrative License Suspension form (ALS) and read verbatim the "test and refusal consequences" of the form from another copy. Kleingers refused to sign that form as well. At that point, the officer asked Kleingers to take an intoxilyzer test. Kleingers stated that he wanted to contact an attorney. The officer provided him a telephone and a telephone book. Some time later, Kleingers told the officer, "That's okay. I'll just get an attorney when I go to court." He then refused to take the test. He later reconsidered and told the officer he would like to take the test if it were not too late. He took the test, failed, and was charged with operating a vehicle while being over the prohibited limit, a violation of R.C. 4511.19(A)(3). That charge is not involved in this appeal. At that point, the officer advised Kleingers that he had some printed questions to ask him, and that he did not have to answer them if he did not want to. Kleingers answered the following questions: (1) whether he was operating the vehicle; (2) where he was going; (3) what street he was on; (4) which direction he was going; (5) where he started driving; (6) when he started; (7) when and what he had last eaten; (8) what he had been doing for the preceding three hours; (9) whether he had been drinking any alcoholic beverages (to which he responded, "No"); and (10) what and how much he had been drinking (to which he responded, "Two and one-half glasses of wine"). At that point, Kleingers stated that he was finished answering. The officer stated, "Well, I still have some more questions to ask. I'll just go ahead and ask. If you don't want to answer, just state refused, and I'll write refused, but I can't say you refused to answer my questions if I don't ask them." Kleingers refused to answer the next series of questions, until the officer asked him if he were taking "tranquilizers, pills, or medicines of any kind." Kleingers responded that he was. The officer asked him what kind, and Kleingers answered that he took Claritin and Percoset. Kleingers also answered the officer's question as to when he had taken his last dose. When the officer asked him how much he had taken, he responded, "As many as I can. If this sounds like I am being an asshole, it's because I am." He then refused to answer the next series of questions, except to acknowledge that he had four front false teeth. Kleingers filed a motion to suppress a variety of evidence, including statements allegedly obtained in violation of his Fifth and Sixth Amendment rights to counsel. As to Kleingers's statements, the trial court suppressed those that he had made after he invoked his right to counsel, concluding that the state had failed to demonstrate that Kleingers had validly waived his right to counsel and his right to remain silent. The intoxilyzer test result was not suppressed. The state has appealed the trial court's suppression order under Crim.R. 12(J), certifying that "the granting of the motion to suppress has rendered the State's proof, with respect to the pending charge, so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed." Certification "places an obligation on the prosecution to comply with the requirements of the rule."2 While we could certainly question the veracity of the state's certification, we are precluded from doing so by State v. Bertram.3 But we note that the state takes a large gamble when using this gambit because if the suppression order is affirmed, the defendant must be discharged.4 The state contends in its sole assignment of error that the trial court erred in granting Kleingers's motion to suppress because there was no evidence of police coercion, and because Kleingers's actions demonstrated that he had abandoned his Fifth and Sixth Amendment rights. It is Kleingers's "Fifth Amendment right to have counsel present during interrogation to guard against self-incrimination," not his Sixth Amendment right to counsel, that is at issue under these facts.5 As this court explained in State v.Echols,6 the right to counsel guaranteed under the Sixth Amendment is premised on the accused's need to have effective representation in his defense and does not attach until a prosecution is commenced, i.e., until there is an indictment, information, arraignment or preliminary hearing.7 In contrast, the Fifth Amendment right to counsel is based on the principle that one should not be forced to be a witness against oneself and is designed to counteract a custodial interrogation's inherently compelling pressures.8 Under the Fifth Amendment, an interrogation must stop if an accused indicates that he wishes to remain silent, and if the accused requests counsel, no interrogation may take place without counsel present.9 In reviewing the trial court's decision, we must keep in mind that "the waiver issue is a factual issue."10 Thus, we must "defer `to the judgment of the trial court that has had the benefit of hearing the evidence and assessing the weight and credibility of the testimony.'"11 Further, the state has the burden to demonstrate a waiver of the accused's Fifth Amendment right to counsel by a preponderance of the evidence.12 An accused who has expressed his desire to deal with the police only through counsel cannot be further interrogated unless he waives his earlier request for the assistance of counsel.13 In determining compliance with this rule, a court must first determine whether the accused initially invoked his right to counsel. If the right was invoked, the court "may admit [an accused's] responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked."14 The initiation of further conversation with a police officer, as it is contemplated under Edwards v. Arizona, includes inquiries by the accused that "represent a desire * * * to open up a more generalized discussion relating directly or indirectly to the investigation."15 An inquiry such as "what is going to happen to me now?" was held by the court in Oregon v. Bradshaw to have "evinced a willingness and a desire for a generalized discussion about the investigation" under the facts of the cases16 In that situation, the accused had invoked his right to counsel and was being transported to another facility. During the ride, he asked the officer, on his own initiative, "What is going to happen to me now?" The officer answered, "You do not have to talk to me. You have requested an attorney and I don't want you talking to me unless you so desire because anything you say — because — since you have requested an attorney, you know, it has to be at your own free will."17 It was only after the accused told the officer that he understood that they had the generalized conversation.18 In this case, Kleingers stated to the officer that he wanted to take the test if it were not too late. At that point, the officer started to conduct the interview consisting of the questions that we have previously identified. But giving intoxilyzer evidence is nontestimonialKan agreement to take a test cannot be the predicate to infer that one has waived his right to remain silent or not to be interrogated without counsel present. We do not believe that an accused's statement that he is willing to take an intoxilyzer test evinces a desire on his part for a generalized discussion concerning the investigation. To ascribe such significance to the expression of willingness to submit to an intoxilyzer test would eviscerate the safeguards set forth inMiranda. Although the First Circuit Court of Appeals in UnitedStates v. Montgomery19 was not considering whether an agreement to take an intoxilyzer test could waive Fifth Amendment rights, we find the court's following conclusion relevant: "If such were to be held an `open Sesame,' the opportunities for eviscerating all protective discipline and restraint in custodial interrogation would be immense. This case illustrates the accelerating speed with which one descends a slippery slope."20 Kleingers's statement merely evidenced a willingness to provide physical evidence, not to invite discussion of his case in depth, i.e., to provide testimonial evidence. Thus, we are persuaded that Kleingers did not initiate further communications as contemplated by Arizona v. Edwards and Oregon v.Bradshaw, and that the trial court's decision was correct. Although our analysis is complete at this point, we believe that even had we decided otherwise, the trial court was still correct in its conclusion that the state had failed to meet its burden to demonstrate that, under the totality of the circumstances, Kleingers intelligently and knowingly waived his right to counsel. Initiation of further communication alone does not constitute a waiver of the right to counsel.21 "[I]t merely reopens the dialogue with the police."22 Whether the accused has reopened dialogue with the police and whether he has waived a previous request for counsel are separate inquiries.23 "[E]ven if a conversation taking place after the accused has `expressed his desire to deal with the police only through counsel,' is initiated by the accused, where reinterrogation follows, the burden remains on the prosecution to show that the subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation."24 Because the voluntariness of Kleingers's statement is not questioned on the basis of coercion, we focus on whether the waiver was knowing and intelligent. In that sense, the requisite level of understanding necessary to waive Miranda rights is such that the waiver be "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."25 It is unclear under the facts and circumstances in this case whether Kleingers clearly comprehended his Miranda rights. After he was informed of his rights, he stated that he wanted to talk to an attorney. But when provided the opportunity, he said that he would contact one later, when he went "to court." Next, although the state argues that Kleingers's refusal to answer some questions demonstrated a knowing waiver of his right to counsel, we do not believe that it was sufficient. Waiver will not be presumed.26 Just as "waiver cannot be inferred from the simple fact [an accused] responded to interrogation,"27 waiver should not be inferred solely on the basis of Kleingers's refusal to answer some questions. Further, the only admonition the officer provided to Kleingers regarding the interrogation was that Kleingers did not have to respond if he did not want to. There was no advice provided to connect that statement to his right to counsel. And, as the trial court concluded, it is not clear what amount of time had elapsed between the opportunity given to contact an attorney and the resumption of questioning. Third, after Kleingers asked if he could take the test—which, again, was not testimonial—the officer responded by initiating questions for the purpose of eliciting incriminating information.28 When Kleinger stated that he did not want to respond, the officer informed him that he had to keep asking the questions, and that he could not indicate a refusal to respond unless Kleinger actually refused. (This was obviously improper because a refusal to answer an individual question could be used by the trier of fact to infer wrongdoing as easily as an affirmative answer in some cases.) Last, the fact that Kleingers was provided with a statement of rights in the ALS form and then advised that the officer had some routine, printed questions to ask him, when considered along with Kleingers's questions concerning the consequences of the refusal to take the test, constituted sufficient grounds to support the trial court's conclusion that it was unclear whether Kleinger understood the difference between his Miranda rights and his ALS rights. Although we recognize that not all questions asked during a custodial interrogation are covered by the Fifth Amendment, exempted questions are narrowly limited to "questions necessary for accurate and safe booking."29 Routine booking questions do not include questions asked "for the purpose of eliciting incriminating responses."30 Routine booking questions include whether an accused "has recently seen a physician, is taking medication, or has any medical condition requiring special treatment."31 In contrast, the inquiry in this case about whether Kleingers was taking "any drugs, pills, or tranquilizers of any kind" "[was] designed to elicit an answer beyond what [was] necessary for safe booking."32 As we have previously held, the majority of the questions posed to Kleingers were not routine booking questions.33 We overrule the state's assignment of error and affirm the trial court's order suppressing the statements Kleingers made after he had invoked his Fifth Amendment rights. Judgmentaffirmed. Doan, P.J., concurs. Gorman, J., dissents. 1 Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602. 2 State v. Bertram (1997), 80 Ohio St.3d 281, 284,685 N.E.2d 1239, 1241. 3 State v. Bertram, supra, at paragraph two of the syllabus. 4 See Crim.R. 12(J). 5 See State v. Knuckles (1992), 65 Ohio St.3d 494, 496,605 N.E.2d 54, 56, fn 1. See, also, State v. Raglin (1998),83 Ohio St.3d 253, 263, 699 N.E.2d 482, 491, fn. 2, certiorari denied (1999), __U.S. __, 119 S.Ct. 1118. 6 State v. Echols (June 26, 1998), Hamilton App. No. C-970272, unreported. 7 See State v. Broom (1988), 40 Ohio St.3d 277,533 N.E.2d 682; State v. Clark (1988), 38 Ohio St.3d 252, 527 N.E.2d 844. (In fact, the Sixth Amendment right to counsel does not apply to a decision on whether to take an intoxilyzer test. McNulty v.Curry (1975), 42 Ohio St.2d 341, 328 N.E.2d 798.) 8 State v. Echols, supra. But, see, State v. Mackey (Feb. 18, 1982), Portage App. No. 1142, unreported (when a person is subjected to custodial interrogation, a critical stage in the proceedings is reached, implicating the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel). 9 Miranda v. Arizona at 474, 101 S.Ct. at 1627. 10 State v. Jackson (1991), 57 Ohio St.3d 29, 35,565 N.E.2d 549, 557. 11 Id., quoting Oregon v. Bradshaw (1983), 462 U.S. 1039,1051, 103 S.Ct. 2830, 2838 (Powell, J., concurring). 12 State v. Cedeno (Oct. 23, 1998), Hamilton App. No. C-970465, unreported, citing Colorado v. Connelly (1986),479 U.S. 157, 168, 107 S.Ct. 515, 522. 13 Edwards v. Arizona (1981), 451 U.S. 477, 484-485,101 S.Ct. 1880, 1885; see Cincinnati v. Gill (1996), 109 Ohio App.3d 580,582, 672 N.E.2d 1019, 1020. 14 Smith v. Illinois (1984), 469 U.S. 91, 95, 105 S.Ct. 490,493. 15 Oregon v. Bradshaw (1983), 462 U.S. 1039, 1045-1046,103 S.Ct. 2830, 2835. 16 Id. at 1045-1046, 103 S.Ct. at 2835. 17 Id. at 1042, 103 S.Ct. at 2833. 18 Id. at 1046, 103 S.Ct. at 2835. 19 United States v. Montgomery (C.A.1, 1983), 714 F.2d 201. 20 United States v. Montgomery, (C.A.1, 1983), 714 F.2d 201,204. 21 Oregon v. Bradshaw, supra. 22 State v. Winston (Sept. 21, 1994), Lorain App. No. 93CA005697, unreported. 23 Oregon v. Bradshaw at 1045, 103 S.Ct. at 2834-2835. 24 Id. at 1044, 103 S.Ct. at 2834; accord State v. Clark,supra, at 261, 527 N.E.2d at 854. 25 Moran v. Burbine (1986), 475 U.S. 412, 422,106 S.Ct. 1135, 1141; State v. Dailey (1990), 53 Ohio St.3d 88, 92,559 N.E.2d 459, 463. 26 Miranda v. Arizona at 475, 86 S.Ct. at 1628. 27 State v. Rowe (1990), 68 Ohio App.3d 595, 606,589 N.E.2d 394, 401. 28 See State v. Sherman (Dec. 11, 1998), Hamilton App. No. C-970813, unreported. 29 Id. 30 Id. 31 State v. Geasley (1993), 85 Ohio App.3d 360, 371,619 N.E.2d 1086, 1093. 32 State v. Sherman, supra. 33 See id.

2016-07-06 06:36:15.741829+00

{¶ 1} This appeal is the result of decisions made by the Stark County Common Pleas Court, Domestic Relations Division, relative to property division and valuation and spousal support. STATEMENT OF FACTS {¶ 2} The parties to this appeal were married on April 30, 1977. Two children were born of such marriage, Anthony Jr. now emancipated, and Christiana, age 11. Christiana is developmentally affected due to possessing an extra No. 8 chromosome. {¶ 3} Custody and visitation as to such child is not an issue in this appeal as the asserted assignments relate solely to financial matters. {¶ 4} Appellant's accounting practice and other business interests produced a substantial income and standard of living for the family during its 25-year duration. Appellee has not been employed since the birth of their daughter, although prior to such birth, Appellee obtained a master's degree and held responsible positions with Mount Union College and subsequently with the University of Akron. Appellee is capable of obtaining employment due to her education and experience, according to Dr. Quinn. However, this will be affected by the needs required by Christiana. {¶ 5} Appellant raises five Assignments of Error: ASSIGNMENTS OF ERROR {¶ 6} "First Assignment Of Error: The Award Of Spousal Support Was Unreasonable And Inequitable, Where Its Amount And Duration Exceed What Is Required For Bridget Bagnola To Become Self-supporting; And Where The Award Of Spousal Support Will Require Dean Bagnola To Work Substantially More Than Forty (40) Hours Weekly For The Next Eight Years, Which Constitutes An unreasonable Servitude. {¶ 7} "Second Assignment Of Error: The Division Of Marital Property Was Unreasonable And Inequitable, Where Virtually All Of The Liquid, Easily Valued Property Was Awarded To Bridget Bagnola, And Virtually All Of The Award To Dean Bagnola Consisted Of Illiquid, Risky, And Difficult To Value Property. {¶ 8} "Third Assignment Of Error: The Judgment Was Unreasonable And Inequitable, Where The Division Of Marital Property Was Based On Business Valuations That Were Based On Dean Bagnola's Earned Income From Them, And The Award Of Spousal Support Was Also Based On The Same Earned Income, Thereby Resulting In A "Double Dip" For Bridget Bagnola. {¶ 9} "Fourth Assignment Of Error: The Trial Court Unreasonably And Unfairly Failed To Allow Sale Of Dean Bagnola's Interests In Smart Healthcare Services Corp. And D. A. Bagnola Company, Inc., Prior To Determining A Division Of Martial Property; Such Sale Would Have Provided The Truest Valuation Of These Interests, In Light Of The Grossly Conflicting Appraisals And In Light Of His Request For Such At Trial. {¶ 10} "Fifth Assignment Of Error: The Division Of Marital Property Was Unreasonable And Inequitable, Where It Was Based On The Unreasonably High Business Valuations Offered By Bridget Bagnola's Expert." I. {¶ 11} The First Assignment of Error objects to the spousal support awarded and asserts the novel constitutional argument that Appellant is thereby placed in involuntary servitude in order to meet the support payments. We disagree. {¶ 12} An award of spousal support and division of marital assets are each viewed by this Court under an abuse of discretion standard.Cherry v. Cherry (1981), 66 Ohio St.3d 348, Martin v. Martin (1985),18 Ohio St.3d 292. {¶ 13} In order to find an abuse of 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. We must look at the totality of the circumstances in the case sub judice and determine whether the trial court acted unreasonably, arbitrarily or unconscionably, otherwise, we cannot substitute our judgment for that of the trial court. Holcomb v.Holcomb (1989), 44 Ohio St.3d 128. {¶ 14} The applicable factors which the trial court was required to apply are contained in R.C. 3105.18: {¶ 15} "Award of spousal support; modification. {¶ 16} "(A) As used in this section, "spousal support" means any payment or payments to be made to a spouse or former spouse, or to a third party for the benefit of a spouse or a former spouse, that is both for sustenance and for support of the spouse or former spouse. "Spousal support" does not include any payment made to a spouse or former spouse, or to a third party for the benefit of a spouse or former spouse, that is made as part of a division or distribution of property or a distributive award under section 3105.171 [3105.17.1] of the Revised Code. {¶ 17} "(B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section 3105.171 [3105.17.1] of the Revised Code, the court of common pleas may award reasonable spousal support to either party. During the pendency of any divorce, or legal separation proceeding, the court may award reasonable temporary spousal support to either party. {¶ 18} "An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, from future income or otherwise, as the court considers equitable. {¶ 19} "Any award of spousal support made under this section shall terminate upon the death of either party, unless the order containing the award expressly provides otherwise. {¶ 20} "(C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: {¶ 21} "(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 [3105.17.1] of the Revised Code; {¶ 22} "(b) The relative earning abilities of the parties; {¶ 23} "(c) The ages and the physical, mental, and emotional conditions of the parties; {¶ 24} "(d) The retirement benefits of the parties; {¶ 25} "(e) The duration of the marriage; {¶ 26} "(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; {¶ 27} "(g) The standard of living of the parties established during the marriage; {¶ 28} "(h) The relative extent of education of the parties; {¶ 29} "(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; {¶ 30} "(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; {¶ 31} "(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; {¶ 32} "(l) The tax consequences, for each party, of an award of spousal support; {¶ 33} "(m) The lost income production capacity of either party that resulted from that party's marital responsibilities; {¶ 34} "(n) Any other factor that the court expressly finds to be relevant and equitable. {¶ 35} "(2) In determining whether spousal support is reasonable and in determining the amount and terms of payment of spousal support, each party shall be considered to have contributed equally to the production of marital income. " {¶ 36} The court considered the income of the parties from all sources, including rental income subsequent to the division of marital assets. {¶ 37} The earning abilities also were extensively reviewed. Appellant had produced substantial income from his accounting practice, D.A. Bagnola, and from his business interests in Monarch and Smart Health Care. {¶ 38} The respective ages of the parties, retirement benefits and twenty-five-year duration of the marriage as required by subsections (c), (d) and (e) of R.C. 3105.171 were considered by the trial court. {¶ 39} The standard of living, including expenses during marriage for the various forms of entertainment and vacations, along with the parties' monthly estimates, was reviewed carefully. {¶ 40} In fact, each of the required factors were extensively examined in reaching the various conclusions. While we cannot accept the concept of servitude presented by Appellant, we recognize that some expenditures customarily enjoyed will be curtailed. The rental income, of course, tends to obviate the necessity of burdensome working hours asserted relative to the monetary spousal support ordered. {¶ 41} Notwithstanding the division of assets providing a substantial financial base to Appellee, the court finds that spousal support, considering the factors of R.C. 3105.18, to be appropriate and reasonable. This meets the test of Kunkle v. Kunkle (1990),51 Ohio St.3d 64, wherein the court, after division of marital assets, must still determine if a need for spousal support still exists. {¶ 42} In conclusion, we find that under the totality of the evidence presented, no abuse of discretion warranting our interference with the court's decision as to spousal support occurred. {¶ 43} Appellant's First Assignment of Error is denied. II, III, IV AND V {¶ 44} The Second, Third and Fifth Assignments of Error and indirectly the Fourth Assignment question the division of martial assets. {¶ 45} As to the Second, Third and Fifth Assignments of Error, the controlling statutes are R.C. 3105.171(C)(1) and (F): {¶ 46} "(C)(1) Except as provided in this division or division (E) of this section, the division of marital property shall be equal. If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable. In making a division of marital property, the court shall consider all relevant factors, including those set forth in division (F) of this section. {¶ 47} "(F) In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors: {¶ 48} "(1) The duration of the marriage; {¶ 49} "(2) The assets and liabilities of the spouses; {¶ 50} "(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; {¶ 51} "(4) The liquidity of the property to be distributed; {¶ 52} "(5) The economic desirability of retaining intact an asset or an interest in an asset; {¶ 53} "(6) The tax consequences of the property division upon the respective awards to be made to each spouse; {¶ 54} "(7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property; {¶ 55} "(8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; {¶ 56} "(9) Any other factor that the court expressly finds to be relevant and equitable." {¶ 57} We shall divert our attention at this point to the Fourth Assignment which questions the court's denial of the requested authorization to sell D.A. Bagnola and Smart Health Care due to difficulty in evaluation. {¶ 58} As to valuation, while the experts used different methods of approaching the market worth of these companies and did differ as a result, neither Thomas Clevenger nor Mr. Trouten expressed an inability to render an opinion of value. The Court analyzed the methods of each to a very extensive degree with considerable explanations as to his acceptance and rejection of aspects thereof. {¶ 59} It must be remembered that we are not determining the court's opinions of the merits of the testimony, but rather, whether the court applied the statutory mandates and were the conclusions supported by competent, credible evidence. {¶ 60} Based upon the evidence presented and the thorough examination of the methods of each expert, we find that the court was well within its discretion in rejecting the requested sale. {¶ 61} Therefore, the Fourth Assignment of Error is not well taken. {¶ 62} The Second Assignment of Error fails in its conclusions in that not only is the court not required to divide marital assets based upon relative liquidity, but the testimony and the past income production from the business interests awarded to Appellant do not appear to be "risky" according to the testimony evaluated by the court. {¶ 63} We have addressed the asserted difficulty in valuation in our previous discussion of the Fourth Assignment. {¶ 64} The court attempted in this complicated scenario to divide the assets equally and found its conclusions to be equitable. {¶ 65} We find no abuse of discretion as to the Second Assignment of Error and reject such. {¶ 66} The Third Assignment of Error asserts the court's division of marital assets, being based on "earned income" of Appellant and utilization of the same figures for spousal support resulted in a "double dipping" for Appellee. {¶ 67} We must reject this argument. {¶ 68} Appellant's earned income from the three business ventures is inextricably tied to the valuations of each company and is necessarily a basis for determination of spousal support. Expert testimony from both parties produced data on these issues for the court's consideration. The court possesses wide latitude under the statutory guidelines to accept those portions of the respective experts opinions as it determines to be most credible McCoy v. McCoy (1993), 91 Ohio App.3d 570. {¶ 69} As stated previously, the court has the discretion to accept or reject any portion of an expert's valuation opinion. In the case sub judice, the court reviewed each microscopically in arriving at, in his judgment, an equitable division. {¶ 70} The Fifth Assignment his overruled. {¶ 71} This cause is affirmed at Appellant's costs. By: Boggins, J., Gwin, P.J. and Farmer, J. concur.

2016-07-06 06:36:15.774338+00

DECISION AND JUDGMENT ENTRY {¶ 1} These are consolidated appeals by appellant, Tyrone Johnson. The first is from a judgment of May 30, 2007, of the Lucas County Court of Common Pleas that convicted Johnson of two counts of aggravated murder1, of one count of aggravated *Page 2 robbery2, and a firearm specification3 on each count. The second appeal is from the trial court's subsequent denial of his petition for postconviction relief under R.C. 2953.21. We consider the direct appeal of the convictions first. {¶ 2} This prosecution concerned the killings of a man and woman who were shot to death in a Pontiac Bonneville automobile on September 19, 2006, in Toledo, Ohio. On the day of the murders, Toledo police learned that a witness saw two men exit the vehicle after the shootings. One of the men fell, dropped a firearm, and retrieved it as he exited the vehicle. They both ran. Nine days after the shootings, the Toledo Police completed their investigation of the vehicle and released it. Johnson was indicted for the killings after release of the vehicle, on November 17, 2006. {¶ 3} In the trial court, Johnson claimed that the automobile was a critical piece of evidence, that scientific testing of the automobile to identify the location of the shooter was not performed by Toledo Police, and that failure to preserve the automobile as evidence violated his right to due process of law. On May 4, 2007, appellant moved to dismiss or, alternatively, for the trial court to impose other sanctions due to the state's failure to preserve evidence. The trial court denied the motion on May 18, 2007, after a hearing. *Page 3 {¶ 4} The case proceeded to trial. On May 25, 2007, a jury found Johnson guilty of all three counts of the indictment. Under a judgment entry filed on May 30, 2007, Johnson was convicted on each count, sentenced to serve 20 years to life on each aggravated murder charge, to serve ten years for aggravated robbery, and to serve three years for the firearm specification. The aggravated murder prison terms run consecutively to each other and concurrent to the prison term for aggravated robbery. The sentence under the firearm specification was mandatory and consecutive. {¶ 5} Appellant appeals the judgment to this court. On appeal he asserts three assignments of error: {¶ 6} "I. The defendant's due process rights were violated when the state failed to preserve exculpatory evidence. {¶ 7} "II. The state's failure to preserve evidence was bad faith. {¶ 8} "III. The trial court erred by denying defendant's motion for sanctions for the state's failure to preserve evidence." {¶ 9} The legal consequences of the state's failure to preserve evidence material to a criminal prosecution differs depending on whether the evidence is classified as "materially exculpatory evidence" or "potentially useful" evidence. "The Due Process Clause of theFourteenth Amendment to the United States Constitution protects a defendant from being convicted of a crime when the state either failed to preserve for trial materially exculpatory evidence or, in bad faith, failed to preserve for trial potentially useful evidence. Arizona v.Youngblood (1988), 488 U.S. 51, 57-58; *Page 4 109 S.Ct. 333, 102 L.Ed.2d 281; California v. Trombetta (1984),467 U.S. 479, 488-489, 104 S.Ct. 2528, 81 L.Ed.2d 413; State v. Groce (1991),72 Ohio App.3d 399, 401, 94 N.E.2d 997; State v. Lewis (1990),70 Ohio App.3d 624, 633-635; 591 N.E.2d 854; State v. Thomas (Mar. 15, 1990), Cuyahoga App. No. 56652, unreported." Ohio v. Fort (July 18, 1997), 6th Dist. No. L-96-299; see State v. Greeslin, 116 Ohio St.3d 252,2007-Ohio-5239, ¶ 10. {¶ 10} Appellant argues due process violations under either classification of the evidence, alternatively. Under Assignment of Error No. 1, appellant argues that the automobile was exculpatory evidence. Under Assignment of Error No. 2, appellant argues that the failure to preserve the automobile was in bad faith and due process was violated even if the evidence were considered only potentially useful. {¶ 11} Under California v. Trombetta (1984), 467 U.S. 479, the exculpatory nature of the evidence must be "apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489; see State v. Cal, 6th Dist. No. OT-05-005,2006-Ohio-120, ¶ 34. {¶ 12} Appellant argues that the vehicle contained blood spatter evidence and physical evidence of a bullet hole in the dash that when considered with the physical remains of the victims would have provided a basis to identify the location and direction of the shooter in the car. There were two men in the back seat of the car. The victims *Page 5 were seated in the front. Appellant has agreed in his brief on appeal that he and Latrel Brown were the individuals in the back seat. {¶ 13} Brown testified at trial that Johnson was the shooter. Johnson did not testify at trial. His counsel argued that Brown was the shooter. {¶ 14} Appellant claims that evidence to identify the location and direction of the shooter is exculpatory evidence and that failure to preserve the evidence requires dismissal of the case without proof of bad faith by the state. {¶ 15} As the evidence stood in September 2006, when the car was released by police, the nature of the blood spatter evidence was unknown. It was not known whether the evidence would tend to exonerate or implicate appellant in the shootings. Further testing was required, testing that appellant criticizes the state for failing to undertake. {¶ 16} In Illinois v. Fisher (2004), 540 U.S. 544, the United States Supreme Court considered a due process claim based upon the destruction of drug evidence under established procedures. The defendant had been charged with possession of cocaine but became a fugitive while on bond. Testing of a white powder seized from appellant during a traffic stop had previously disclosed the substance to be cocaine. The powdery substance was subsequently destroyed under standard police procedures during a ten year period in which the defendant was a fugitive. {¶ 17} The defendant in Illinois v. Fisher argued that the substance was "essential to and determinative of the outcome of the case" and that it provided the defendant his "only hope for exoneration." Id. at 548. The Supreme Court held, however, that the *Page 6 distinction recognized in Youngblood between materially exculpatory evidence and potentially useful evidence controlled. Id at 549. The court deemed that the evidence "might have provided the defendant with an opportunity to show that the police tests were mistaken" but that such evidence "was, at best, `potentially useful' evidence, and therefore Youngblood's bad-faith requirement applies." Id. {¶ 18} Here, whether further testing would establish blood spatter evidence tending to exonerate appellant was unknown at the time the car was released. Under Youngblood, such evidence therefore does not constitute materially exculpatory evidence. Rather, it constitutes evidence potentially useful to the defense for which proof of bad faith in its destruction is necessary to establish denial of due process. {¶ 19} Our decision in State v. Durnwald, 163 Ohio App.3d 361,2005-Ohio-4867 does not compel a different result. The videotape considered in Durnwald was not materially exculpatory evidence. Id. at ¶ 31. The due process violation found in Durnwald was based upon a bad faith failure to preserve evidence. Id. at ¶ 36. Similarly, the First District Court of Appeals' decision in State v. Battease, 1st Dist. Nos. C-050837 and C-050838, 2006-Ohio-6617, was based upon a finding of bad faith of the police officer in intentionally destroying videotape evidence in violation of police regulations that required preservation of videotapes. State v. Battease at ¶ 17-19. {¶ 20} Appellant's Assignment of Error No. 1 is not well-taken. {¶ 21} Under Assignment of Error No. II, appellant argues that the police acted in bad faith in failing to preserve the automobile as evidence. "The term `bad faith' *Page 7 generally implies something more than bad judgment or negligence. `It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud." State v. Babos, 6th Dist. Nos. L-05-1394, L-05-1424, and L-06-1209, 2007-Ohio-2393, ¶ 21, quotingState v. Wolf, 154 Ohio App. 3d 293, 2003-Ohio-4885, ¶ 14 andHoskins v. Aetna Life Ins. Co. (1983), 6 Ohio St.3d 272, 276. {¶ 22} The trial court found that release of the automobile was not undertaken in bad faith. It concluded that the failure to do positioning studies and measurements inside the vehicle to help identify the location of the shooter was caused by the fact that the victim's bodies had been removed from the automobile by emergency medical responders before SUI investigators arrived at the scene. The trial court characterized appellant's criticism of the nature of the police investigation, including the lack of testing and the failure to preserve the automobile, as presenting questions as to the police department's "exercise in judgment, maybe bad judgment, but not bad faith." Appellant has not claimed that release of the automobile violated any police regulation. {¶ 23} We conclude that there is competent credible evidence supporting the trial court's conclusion that the police did not act in bad faith in failing to preserve the automobile as evidence in this case. As a due process violation for failure to preserve potentially useful evidence requires proof of bad faith, Assignment of Error No. II is not well-taken. *Page 8 {¶ 24} Under Assignment of Error No. III, appellant argues that the trial court erred in failing to impose sanctions due to the state's failure to preserve evidence. As this court has concluded that there was no denial of appellant's due process rights due to the failure to preserve the automobile as evidence, we find Assignment of Error No. III not well-taken. {¶ 25} We affirm the judgment of conviction and sentence of May 30, 2007, of the Lucas County Court of Common Pleas. Postconviction Relief {¶ 26} After conviction and sentence, appellant filed a petition for postconviction relief in the trial court pursuant to R.C. 2953.21. The state opposed postconviction relief and filed a motion to dismiss or, alternatively, for summary judgment on the petition. In a judgment entry filed on June 23, 2008, the trial court issued findings of fact and conclusions of law on the motion and denied postconviction relief. {¶ 27} Appellant has appealed the judgment denying postconviction relief to this court. This is a pro se appeal. Appellant asserts three assignments of error on appeal: {¶ 28} "(1) Prosecutor withheld exculpatory evidence and introduced false evidence. {¶ 29} "(2) Trial court erred in granting summary judgment. {¶ 30} "(3) Trial court erred when judge did not rule on all the claim." *Page 9 {¶ 31} Appellant has represented himself in proceedings for postconviction relief. He filed no documentary evidence to support the petition. The petition and appellant's brief on appeal are frequently unclear as to meaning and conclusory in form. {¶ 32} Under the first assignment of error in this appeal, appellant attempts to reargue his claim that he was denied due process by the state's failure to preserve the Pontiac Bonneville as evidence. The doctrine of res judicata, however, prevents appellants from asserting issues in postconviction proceedings that were raised or could have been raised on direct appeal. State v. Szefcyk (1996), 77 Ohio St.3d 93, 96;State v. Perry (1967), 10 Ohio St.2d 175, paragraphs seven and nine of syllabus. {¶ 33} Johnson also claims under the first assignment of error that the prosecutor "introduced false evidence." The appellant's brief includes a contention that there was false testimony at trial concerning DNA evidence. He argues evidence was lacking as the car was destroyed before his DNA sample was taken. Johnson also claims that Detective Molnar of the Toledo Police Department falsely testified that Johnson admitted that he was ambidextrous when Molnar interrogated him. {¶ 34} The nature of these objections is such that appellant could have raised them in the trial court and on direct appeal. Accordingly res judicata precludes consideration of the claims in an application for postconviction relief. {¶ 35} We find that Assignment of Error No. 1 is not well-taken. {¶ 36} Under Assignment of Error No. 2, appellant argues that the trial court erred in granting summary judgment against him on his petition for postconviction relief. The *Page 10 legal argument in his appellate brief appears to contend procedural error, not error on the merits. In his brief, appellant argues that "when defendant [sic] filed petition pro se the state was to inform petitioner of the motions filed by prosecution in regards to the petition." {¶ 37} Appellant cited two cases in his legal argument on this assignment of error: State v. Pless (1993), 91 Ohio App.3d 197 andState v. Davis (1999), 133 Ohio App.3d 511. State v. Pless was a decision of this court. The case reversed a trial court's judgment granting the state's motion for summary judgment to deny postconviction relief. The decision was based upon the fact that the petitioner had been denied an opportunity to oppose the motion. The trial court ruled on the motion before the 14 day time period for the petitioner's response had expired. {¶ 38} Appellant has not asserted any facts making the State v.Pless decision pertinent to his case. He has not asserted that that he was denied an opportunity to oppose the state's motion or that he was not served a copy the motion before the court's ruling. The record includes a certification by the state that its alternative motion to dismiss or for summary judgment was served upon appellant by ordinary mail on February 15, 2008. The trial court issued its ruling on the motion over four months later, on June 23, 2008. {¶ 39} State v. Davis (1999), 133 Ohio App.3d 511 is a decision of the Eighth District Court of Appeals. The Eighth District held in the case that the trial court erred by dismissing the petition for postconviction relief without a hearing. The court of appeals *Page 11 recognized in the case that a petition for postconviction relief may be dismissed without a hearing where the petitioner fails to submit evidentiary material with his petition setting sufficient operative facts demonstrating substantive grounds for relief. Id. at 515-516. The court of appeals held in State v. Davis that the trial court had erred in failing to review evidentiary materials submitted in support of the petition when considering whether the petitioner had in fact demonstrated substantive grounds for relief. The court of appeals concluded that the trial court had not reviewed a transcript that was key to the claimed right to relief. {¶ 40} Here, however, it cannot be claimed that the trial court failed to review evidentiary material filed in support of the petition for postconviction relief. Appellant submitted no evidentiary material in support of his petition. {¶ 41} We find that Assignment of Error No. 2 is not well-taken. {¶ 42} Under Assignment of Error No. 3, appellant asserts error because the trial "judge did not rule on all the claim." In his appellate brief, Johnson limited this argument to complaints of false testimony at trial by Detective Molnar and Latrel Brown, asserting that he did not make the statements attributed to him by Molnar. Johnson argued that because he was imprisoned from June 2000 until May 2005, and then from September 2005 to June 2006, testimony by Latrel Brown that he and Johnson had dealt drugs for four or five years were clearly false. Postconviction relief under R.C. 2953.21 is not a substitute for direct appeal. These issues could have been raised in the trial court or on direct appeal. Accordingly res judicata bars their consideration now. *Page 12 {¶ 43} Appellant also argues under Assignment of Error No. 3 that the trial court erred in dismissing his petition without conducting an evidentiary hearing. He has not identified any issue that required a hearing. {¶ 44} A trial court may summarily dismiss a postconviction petition without a hearing, where the petitioner fails to present supporting evidentiary documents sufficient to demonstrate the existence of operative facts supporting the petitioner's entitlement to relief.State v. Jackson (1980), 64 Ohio St.2d 107, at syllabus; State v.Williams, 162 Ohio App.3d 55, 2005-Ohio-3366, ¶ 23. {¶ 45} Appellant's first claim for relief in the petition was for claimed ineffective assistance of counsel due to the fact that trial counsel failed to seek admission into evidence at trial the videotape of Detective Molnar's interrogation of him when Molnar testified at trial. The trial court noted that the videotape was the subject of a motion to suppress in the case and the tape was capable of being evaluated on direct appeal. The trial court concluded that the ineffective assistance of counsel claim could have been raised by appellant's new counsel on appeal and was therefore barred by res judicata. {¶ 46} We agree. Where issues raised do not require consideration of evidence outside of the record in the original proceedings, the issues should have been raised on direct appeal from the original judgment and res judicata applies. State v. Thomson, 6th Dist. No. L-05-1213,2006-Ohio-1224, ¶ 27; State v. Brown, 8th Dist. No. 84322,2004-Ohio-6421, ¶ 8. Accordingly, no substantive basis for relief existed on the issue and a hearing on the claim was unnecessary. *Page 13 {¶ 47} The second claim in the petition for postconviction relief asserted improper arguments by the prosecutor in closing arguments. As that issue is also one that could have been raised in the trial court and on direct appeal, we conclude it also was barred under res judicata. No hearing was required, therefore, on that claim. {¶ 48} In the third claim in the petition, appellant claimed that the prosecution withheld exculpatory evidence concerning a handwriting exemplar and crime scene investigation. We have already determined that arguments based upon the contention that due process was denied due to failing to preserve the Pontiac Bonneville as evidence are barred by res judicata. We agree with the trial court that appellant failed to allege any facts to support his allegations that exculpatory evidence was withheld relating to any handwriting exemplar. {¶ 49} Finally, in the fourth claim in the petition, appellant claims that procedures used by Detective Molnar to secure photographic identification of appellant by Juan Hernandez violated due process. The trial court held that appellant failed to provide any evidence to support the contention. {¶ 50} Ohio has long recognized that there is no automatic right to a hearing on petitions for postconviction relief under R.C. 2953.21. Substantive grounds for relief must exist to warrant a hearing. E.g.,State v. Jackson (1980), 64 Ohio St.2d 107, 110; State v. Smith (2001), 6th Dist. No. L-99-1310. The petitioner carries the evidentiary burden in proceedings for postconviction relief to present evidentiary documents *Page 14 containing sufficient operative facts to present a substantative basis for relief. State v. Williams, 162 Ohio App.3d 55, 2005-Ohio-3366, ¶ 23. {¶ 51} We agree with the trial court that dismissal of the petition without a hearing was appropriate in this case. The grounds asserted for postconviction relief were either barred under res judicata or appellant failed to meet the evidentiary burden to present documents containing sufficient operative facts to present a substantive basis for relief. We find that Assignment of Error No. 3 is not well-taken. {¶ 52} On consideration whereof, the court finds that substantial justice has been done the party complaining. In appeal No. L-07-1193, the court affirms the judgment of May 30, 2007, of the Lucas County Court of Common Pleas of conviction and sentence. In appeal No. L-08-1230, the court affirms the judgment of June 23, 2008, of the Lucas County Court of Common Pleas denying postconviction relief. {¶ 53} Appellant is ordered to pay the costs of these consolidated appeals 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 in both appeals is awarded to Lucas County. JUDGMENTS AFFIRMED. *Page 15 A certified copy of this entry shall constitute the mandate pursuant to App. R. 27. See, also, 6th Dist. Loc. App. R. 4. Mark L. Pietrykowski, J., Arlene Singer, J. and Thomas J. Osowik, J., CONCUR. 1 The aggravated murder charges were for violations of R.C. 2903.01(B) and (F). 2 The aggravated robbery charge was for violation of R.C. 2911.01(A)(1). 3 The firearm specification was under R.C. 2941.145. *Page 1

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DECISION AND JUDGMENT ENTRY {¶ 1} Charles and Virginia Martin appeal the Jackson County Court of Common Pleas' entry of summary judgment in favor of Ronald T. Cochran, Margaret Cochran, Warren Cochran, Ruth V. and William B. Tucker, and James I. and Mozelle Meyer, on the Martins' claims of ownership of certain land Appellants assert that the court erred in granting summary judgment on their claim of mutual mistake in the language of the deed describing land they had purchased because the court considered inadmissible hearsay evidence and improperly applied the statute of frauds and the doctrine of laches. We conclude that, even if we strike the allegedly inadmissible evidence and do not apply the statute of frauds or the doctrine of laches, Appellants did not meet their burden of producing evidence demonstrating the existence of a mutual mistake. Accordingly, the court properly entered summary judgment in Appellees' favor. Appellants further argue that the court improperly entered summary judgment on their adverse possession claim. Because Appellants did not produce evidence demonstrating that their use of the land was sufficient to put the true owners on notice of Appellants' claim to the land or evidence demonstrating that they had used the land for the required twenty-one (21) year period, we conclude that the court properly entered summary judgment in favor of Appellees on that claim also. {¶ 2} In March 1957, Thomas B. Cochran ("Thomas") died testate. Thomas had named his daughter, Alice Lee ("Alice"), the executrix of his estate. At the time of his death, Thomas owned certain real estate in Bloomfield Township, Jackson County, that was separated into three parcels. Parcel One contained 40.50 acres, Parcel Two contained 80 acres, and Parcel Three was broken into two tracts that contained a total of 3.267 acres. {¶ 3} In May 1959, in her capacity as executrix, Alice conveyed real estate to Appellants. The executed deed described the conveyed land as that constituting Parcel One. In exchange for the conveyance, Appellants agreed to pay off the estate's mortgage to the Jackson Building, Loan and Savings Company totaling approximately $7,000.00, plus interest. The mortgage was secured by all three parcels of land {¶ 4} While the record in this action is not entirely clear, it appears that Thomas' estate was never settled. Through an oversight or neglect, the remaining parcels of land were never sold or distributed to the heirs. {¶ 5} In March 1995, Ronald T. Cochran ("Ronald") filed a complaint to quiet title to real estate against Margaret Cochran, Warren W. and Mary K. Cochran, James I. and Mozelle Meyer, Ruth V. and William B. Tucker, Alice and Larry Lee, Roger Lee, and all unknown heirs and descendants of Alice, Larry, and Roger Lee. Ronald, who is Thomas' grandson, sought to quiet title as to Parcels Two and Three. The original defendants are other descendants and/or heirs of Thomas. {¶ 6} Appellants filed a motion to intervene as third parties, which the trial court granted. Appellants then filed an Answer, Counterclaim and Crossclaim asserting that they were the sole owners of the property at issue. Appellants argued that they had purchased not only Parcel One, but all three parcels from Thomas' estate, and that the deed erroneously contained only a description of Parcel One. Therefore, Appellants sought reformation of their deed. In the alternative, Appellants argued that they own Parcels Two and Three through adverse possession. {¶ 7} In February 1997, Ronald and the original defendants (except Mary K. Cochran who no longer had an interest in the action due to the dissolution of her marriage to Warren W. Cochran) filed a motion for summary judgment on Appellants' claims. The court granted this motion in September 1997 and Appellants filed an appeal. In Cochran v. Cochran (Mar. 9, 1998), Jackson App. No. 97CA817, we dismissed this appeal after determining that the court's entry was not a "final appealable order" as the court did not state that there was no just reason for delay and Ronald's action to quiet title against the original defendants remained pending. In May 2003, the trial court again granted summary judgment to Ronald and the original defendants on Appellants' claims. This entry contained a finding that there was no just reason for delay. Appellants filed a timely appeal, assigning the following errors: "Assignment ofError Number One(1) — The trial court erred by granting summary judgment in favor of movants because the trial court relied upon inadmissible layers of hearsay evidence. Assignment of Error Number One[sic](2) — The trial court erred by granting summary judgment in favor of movant-appellees because the statute of frauds does not preclude reformation of a written agreement which as a result of mutual mistake fails to reflect the intent of the parties. Assignment of Error NumberOne [sic](3) — The trial court erred by granting summary judgment in favor of movants because of the misapplication of the doctrine of laches. Assignment of Error Number One [sic](4) — The trial court erred by granting summary judgment in favor of movants due to the doctrine of adverse possession." {¶ 8} When reviewing a trial court's decision regarding a motion for summary judgment, an appellate court conducts a de novo review. See, e.g., Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105,671 N.E.2d 241. Accordingly, an appellate court must independently review the record to determine if summary judgment was appropriate and need not defer to the trial court's decision. See Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411-412, 599 N.E.2d 786. {¶ 9} Civ.R. 56(C) provides, in part: "* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor." Thus, a trial court may not grant a motion for summary judgment unless the evidence before the court demonstrates 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 nonmoving party, that conclusion is adverse to the party against whom the summary judgment is made. See, e.g., Vahilav. Hall, 77 Ohio St.3d 421, 429-430, 1997-Ohio-259, 674 N.E.2d 1164. {¶ 10} In responding to a motion for summary judgment, the nonmoving party may not rest on "unsupported allegations in the pleadings." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64,66, 375 N.E.2d 46. Rather, Civ.R. 56 requires the nonmoving party to respond with competent evidence that demonstrates the existence of a genuine issue of material fact. Specifically, Civ.R. 56(E) provides: "* * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party." Consequently, once the moving party satisfies its Civ.R. 56 burden, the nonmoving party must demonstrate, by affidavit or by producing evidence of the type listed in Civ.R. 56(C), that a genuine issue of material fact remains for trial. A trial court may grant a properly supported motion for summary judgment if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that there is a genuine issue for trial. Dresherv. Burt (1996), 75 Ohio St.3d 280, 293, 75 Ohio St.3d 280; Jackson v.Alert Fire Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52,567 N.E.2d 1027. {¶ 11} In their motion for summary judgment, Appellees argued that Appellants' deed does not include a description of the land comprising Parcels Two and Three and, therefore, Appellants have no ownership interest in the real estate at issue. Appellees submitted that there was no mutual mistake as to the identity of the land purchased by Appellants from Thomas' estate. In support of their contention, Appellees produced a letter dated September 2, 1967, written by Alice and addressed to Margaret Cochran. In the letter, Alice expresses her wish that Ronald and his brother receive Parcels Two and Three. Appellees argued that this letter clearly demonstrates that Alice believed that the estate still owned this land and that Alice had not sold all of Thomas' real property to Appellants. Appellees further argued that the Statute of Frauds and the doctrine of laches preclude reformation of Appellants' deed to include Parcels Two and Three. {¶ 12} Concerning Appellants' adverse possession claim, Appellees argued that Appellants could not meet any of the necessary elements. However, Appellees specifically argued that Appellants could not demonstrate that their possession had been open, visible and notorious so as to raise a presumption of notice. Appellees argued that Ronald had used the land to hunt and allowed a tenant to use the land for hunting and cultivation. Therefore, Appellants had not exercised exclusive possession over the land {¶ 13} In their response to Appellees' motion, Appellants argued that the letter from Alice to Margaret Cochran was inadmissible and could not be considered for summary judgment purposes because Alice dictated the letter to an unknown third party who typed the letter. Appellants argued that the Statute of Frauds does not preclude the reformation of a written agreement that was the result of a mutual mistake. They also argued that Appellees could not invoke the doctrine of laches because they had unclean hands and could not show they had been materially prejudiced by the delay. Lastly, Appellants argued that they had satisfied all the elements of adverse possession. I. {¶ 14} In their first three assignments of error, Appellants assert that the trial court erred in considering Alice's letter, in applying the statute of frauds, and in applying the doctrine of laches when granting summary judgment. Because the trial court did not state its reasons for granting summary judgment, we do not know if the court actually considered the letter or applied the statute of frauds or the doctrine of laches. However, our own de novo review of the evidence produced by the parties demonstrates that summary judgment was appropriate even without considering Alice's letter or applying the statute of frauds or the doctrine of laches since Appellants failed to meet their evidentiary burden. {¶ 15} Appellees introduced summary judgment evidence that Appellants have no ownership interest in Parcels Two and Three as the property records reflect that ownership of only Parcel One passed to Appellants and the remaining parcels remained in Thomas' estate. Moreover, Appellants have never disputed that the property records do not reflect their ownership interest in Parcels Two and Three. Rather, Appellants contend that the deed is incorrect and both they and Alice intended for the estate to convey all three parcels of land As Appellees met their initial burden of demonstrating that Appellants have no interest in the land at issue, the burden shifted to Appellants to demonstrate that a genuine issue of material fact exists concerning the issue of mutual mistake and/or accuracy of the real estate records. {¶ 16} Appellants failed to produce any evidence through affidavits, deposition testimony or other means establishing that either they or Alice believed Appellants were purchasing Parcels Two and Three in addition to Parcel One. Instead, Appellants rely exclusively on the fact that the mortgage they agreed to pay as the purchase price for the land was secured by all three parcels. However, this evidence alone is insufficient to establish a genuine issue of material fact as it is certainly plausible that Alice and Appellants intended for the purchase price of Parcel One to be the payoff of the estate's mortgage despite the fact that the mortgage was secured by all three parcels. Perhaps if Appellants had produced evidence that the value of Parcel One alone was significantly less than the purchase price paid, Appellants would have met their burden. However, Appellants introduced no evidence as to either the current or past value of the land at issue. Because Appellants failed to meet their burden, the court properly entered summary judgment in Appellees' favor and assignments of error one, two and three are overruled. II. {¶ 17} In their final assignment of error, Appellants assert that the lower court erred in granting summary judgment on their adverse possession claim. {¶ 18} Because Appellees made a prima facie showing of legal ownership when they filed their motion for summary judgment, Appellants had the burden of making a prima facie showing as to each element of adverse possession to preclude summary judgment. Day v. Clifford (Aug. 24, 1993), Pike App. No. 93CA499, citing Bebout v. Peffers (Aug. 18, 1986), Knox App. No. 86-CA-02. To establish title to the land by adverse possession, Appellants were required to prove that they had exclusive possession and open, notorious, continuous and adverse use for a period of twenty-one (21) years. Grace v. Koch, 81 Ohio St.3d 577, 1998-Ohio-607,692 N.E.2d 2009, at the syllabus; also see, Perry v. Dearth (July 26, 2000), Washington App. No. 99CA26. It "is the visible and adverse possession with an intent to possess that constitutes [the occupancy's] adverse character." Humphries v. Huffman (1878), 33 Ohio St. 395, 402. In addition, the occupancy "must be such as to give notice to the real owner of the extent of the adverse claim." Id. at 404. {¶ 19} In their motion, Appellees asserted that Appellants could not meet this burden as Ronald had no knowledge that Appellants asserted ownership over the land, even though Ronald regularly hunted on the land and permitted a tenant to use the land for cultivation and hunting. Appellees submitted Ronald's affidavit, which stated that over the past twenty-nine years, he and his friends hunted the land regularly in the fall and that he visited at other times every other year or every three years to walk the land During his trips to the land, Ronald never observed any evidence that someone else was exercising ownership over the 83 plus acres. Further, Ronald allowed Roger Scurlock to hunt on the land and farm a small tract. Since 1967, Ronald has paid the taxes on the land Ronald also asserted that, in 1993, he informed Charles Martin that he owned the land and Mr. Martin could not authorize others to use the access road. At that time, Mr. Martin made no claim of ownership of the land {¶ 20} Appellees also submitted the affidavit of Roger Scurlock who stated that he is 32 years old and, for as long as he can remember, his father cultivated a one acre tract of the land at issue with the permission of the Cochran family. Upon his father's death, Roger continued farming the land with Ronald's permission. Roger has also hunted on the land every year for the past twenty years. In the fall of 1996, Roger was approached by Charles Martin who stated that the land "was going to be" his land This was the first time Roger had ever seen Martin on the land at issue. {¶ 21} In response to Appellees' motion, Appellants submitted the affidavit of Charles Martin. In his affidavit, Martin states that he and his family have personally exercised exclusive control over the land at issue, that Ronald Cochran's affidavit is untrue, that Martin claimed ownership of the land when he confronted Ronald, that the affidavit of Roger Scurlock is false, and that Martin's family has used the land for hunting to the exclusion of all others. {¶ 22} Although Martin asserts that he and his family have exercised "exclusive control" over the land in question, the only purpose Martin specifically states that he used the land for is hunting. The notorious possession element requires that: "the adverse claim of ownership must be evidenced by conduct sufficient to put a person of ordinary prudence on notice of the fact that the land in question is held by the claimant as his own. The possession must be visible and open to the common observer of the property so that the owner or his agent, on visiting the premises, might readily see that the owner's rights are being invaded." Jennewine v. Heinig (Dec. 29, 1995), Greene App. No. 95-CA-12. Hunting alone is clearly insufficient to put a true owner on notice that his land is being invaded with the intent to claim ownership. Here, there is no evidence that Appellants built structures on or made changes to Appellees' land which would result in Appellees having been put on notice of Appellants' claim to the land Moreover, Martin fails to state when his family's alleged "exclusive control" over the land began. Therefore, there is no evidence in the record that Appellants have satisfied the twenty-one (21) year time period. Because Appellants failed to make a prima facie showing that they met all the requirements of adverse possession, their fourth assignment of error is overruled. {¶ 23} Having overruled all of Appellants' assigned errors, we affirm the trial court's grant of summary judgment. Judgment Affirmed. Evans, P.J. and Kline, J., concur in Judgment and Opinion

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DECISION. {¶ 1} Defendant-appellant/cross-appellee, Air/Pro, Inc., appeals from the judgment of the trial court in favor of its former employee, plaintiff-appellee/cross-appellant, Roger W. Ruehl, on Ruehl's complaint for sales commissions and on Air/Pro's counterclaim for breach of contract. In two assignments of error, Air/Pro argues that the trial court erred by awarding commissions to Ruehl, and by finding that Ruehl had not violated a noncompetition provision of his employment agreement. In his cross-appeal, Ruehl argues that the trial court erred by failing to award him a greater amount of sales commissions. We affirm the judgment of the trial court. Ruehl's Employment History {¶ 2} In 1974, Ruehl began working as a salesman for Air/Pro, a company that sold industrial air supplies and air-moving equipment. In 1977, Ruehl entered into an employment agreement with Air/Pro. The agreement set forth Ruehl's commission rates and benefits, as well as a provision prohibiting Ruehl from competing with Air/Pro if he were to leave the company. In 1990, Ruehl and Air/Pro entered into a modification of the 1977 employment agreement. Under the modification, Ruehl was authorized to operate his own company, Air Custom Services, to provide ancillary products and services to Air/Pro customers. Ruehl agreed that the total annual invoices for Air Custom would not exceed $5,000 and that he would submit Air Custom's business records to J.A. Altherr, president of Air/Pro, on a yearly basis. {¶ 3} Beginning in the mid-1990s, the relationship between Ruehl and Altherr began to sour as a result of Ruehl's exceeding the $5,000 cap on Air Custom invoices and of Altherr's refusal to raise the cap. By July 2001, Ruehl's employment with Air/Pro was terminated. Ruehl's Previously Earned Commissions {¶ 4} In its first assignment of error, Air/Pro argues that the trial court erred by awarding commissions to Ruehl where the 1977 employment agreement provided for the forfeiture of accrued commissions upon Ruehl's termination. As we review the employment agreement, our role is to give effect to the intentions of the parties.1 Where the language of a contract is clear and unambiguous, its interpretation is a matter of law, and our review of the contract is de novo.2 But where a contract is ambiguous, the meaning of its terms raises questions of fact, and the trial court's interpretation should not be overturned on appeal absent a showing that the court abused its discretion.3 {¶ 5} "A contract is ambiguous if its terms cannot be clearly determined from a reading of the entire contract or if its terms are susceptible to more than one reasonable interpretation."4 If a contract is ambiguous, courts may resort to extrinsic evidence concerning the parties' intent.5 {¶ 6} As a basis for its argument that Ruehl had forfeited his commissions, Air/Pro relies on section 5 of the agreement, which provided the following: {¶ 7} "5. * * * Should The Salesman's termination by The Company be due to his identification with or interest in any other business endeavor while he is employed by The Company, and without the express written consent of an executive officer of The Company, he may forfeit all orpart of his accrued commissions to The Company." [Emphasis added.] {¶ 8} The trial court found that Ruehl had been terminated by Air/Pro due to his interest in Air Custom, and that he had exceeded Air/Pro's written consent to operate Air Custom. Accordingly, the court concluded, Ruehl's breach of the agreement triggered the forfeited-commissions provision. But the trial court distinguished Ruehl's "accrued commissions" from his previously earned commissions. As a result, the court found that Ruehl had forfeited tens of thousands of dollars in accrued commissions, but that Ruehl had not forfeited $12,646.57 in previously earned commissions. {¶ 9} We agree with the trial court's conclusion with respect to the forfeited commissions. The agreement's provision that a salesman "may" forfeit "all or part of" his commissions is ambiguous on its face because one cannot tell with certainty whether upon termination a salesman would definitely lose his commissions, or what portion, if any, would be lost. Because the provision was susceptible to more than one reasonable interpretation, the court was entitled to resort to extrinsic evidence to determine its meaning.6 {¶ 10} The agreement incorporated two exhibits, A and B, which provided for payment of commissions in two different ways. Exhibit A provided for a salesman's commissions in cases where Air/Pro had received payment for sales orders. Under Exhibit A, a salesman would receive his commission payment in the month following Air/Pro's receipt of payment on the order. So according to Exhibit A, Ruehl was entitled to the commissions he had earned on sales orders for which Air/Pro had already received payment. On the other hand, Exhibit B provided for the payment of commissions on a sliding scale according to the status of orders that had not been completely consummated at the time of a salesman's termination. {¶ 11} Following its determination that Ruehl was owed the previously earned commissions, the trial court found that the amount Air/Pro owed Ruehl was $12,646.57. The court based this amount upon an internal Air/Pro report for July 2001. At the end of each month, Air/Pro generated two different reports, one for a salesman's commissions that had been earned following Air/Pro's receipt of payment on orders and one for a salesman's commissions that had accrued for orders that had not yet been paid. In this case, the earned-commissions report for July 2001 showed that Ruehl was owed $12,646.57 for those orders where Air/Pro had previously received payment. At trial, Altherr conceded that Ruehl would have been paid that amount for his July 2001 paycheck. But he admitted that he had instructed an independent payroll company to stop payment on Ruehl's monthly paycheck. {¶ 12} We cannot say that the trial court abused its discretion in determining that, under the agreement, "accrued commissions" were distinguishable from earned commissions under the contract.7 On the basis of the evidence, the court was entitled to find that the parties' intention with respect to Ruehl's commissions was that he would not lose commissions on orders that had been paid, but that he would lose commissions on orders where payment had not been received. We cannot reverse the trial court's judgment as to the amount awarded for commissions owed Ruehl, because the judgment was supported by competent, credible evidence.8 {¶ 13} Therefore, we hold that the trial court did not err in awarding Ruehl the amount of his previously earned commissions. We overrule Air/Pro's first assignment of error. Air/Pro's Counterclaim {¶ 14} In its second assignment of error, Air/Pro argues that the trial court erred by finding for Ruehl on its counterclaim for Ruehl's breach of the noncompetition provision of the 1977 employment agreement. That provision read as follows: {¶ 15} "6. It is agreed that for a period of one year after the termination of The Salesman's employment with The Company, he will not directly or indirectly on behalf of himself or any other person, firm, or corporation represent any of The Company's existing Principals. This same condition applies to former Principals that The Company has represented within one year prior to The Salesman's termination. It is understood and agreed that The Company's Principals include all those factories whose products The Company has been selling whether or not a representative contract exists or existed between The Company and each of those Principals. Exceptions to this may be made only by express written consent of an executive officer of The Company." {¶ 16} The language of the provision indicated that Ruehl would not "represent" any of Air/Pro's principals for one year following his termination. But the term "represent" was not defined in the provision. Ruehl testified that his understanding that the term did not include the buy-resale arrangements in which he had engaged arose from the Revised Code. R.C. 1335.11(A)(3) defines a sales representative as one who is not compensated by commission and who may engage in buy-resale arrangements: {¶ 17} "`Sales representative' means a person who contracts with a principal to solicit orders for a product or orders for the provision of services and who is compensated, in whole or in part, by commission, butdoes not include a person who places orders for or purchases the productfor that person's own account for resale or places orders for theprovision of or purchases services for that person's own account, a person who is an employee of a principal, or a person who contracts with a principal to solicit within this state orders for a product or orders for the performance of services and who is not compensated, in whole or inpart, by commission." [Emphasis added.] {¶ 18} Relying on the portion of the provision that stated that Ruehl would not "directly or indirectly on behalf of himself or any other person, firm, or corporation represent any of The Company's existing Principals [emphasis added]," Altherr testified that his understanding of the provision was that Ruehl could not sell the same brands that Air/Pro had been selling. Altherr's understanding of the term "represent" therefore encompassed even a buy/resale arrangement. {¶ 19} As the trial court recognized, however, the term "represent" as used in the noncompetition provision was susceptible to more than one reasonable interpretation. So the trial court was entitled to consider extrinsic evidence to determine the parties' intention as to the meaning of the term.9 {¶ 20} At trial, the evidence demonstrated that at the time the parties entered into the employment agreement in 1977, Air/Pro operated as a manufacturer's representative. Air/Pro provided and solicited equipment on behalf of its principals, for which Air/Pro was paid commissions by the principals. In turn, Air/Pro's salesmen were paid percentages of the commissions received from the principals. Over the years, Air/Pro's business evolved to include its buying and reselling of manufacturer's products. In a buy-resale arrangement, Air/Pro marked up the price of a product and resold it. Then the salesman was paid a percentage of Air/Pro's net profit on the resale. {¶ 21} At trial, Ruehl testified that Altherr had circulated notices to salesmen over the years, including a notice that identified Air/Pro's principals as of May 2001. Ruehl testified that he did not attempt to contact, or try to sell products on behalf of, any principals on that list. Ruehl testified that he also did not contact those manufacturers with whom Air/Pro had a manufacturer-representative contract. Ruehl testified that, for one year following his termination, he did not work as a manufacturer's representative, but acted simply as a "design and build contractor," where he would buy and resell products and act as a problem-solving engineer. {¶ 22} Following our review of the record, we agree with the trial court's conclusion that "[t]he language `represent' does not include a buy-resale relationship." While the noncompetition provision prevented Ruehl from representing companies with whom Air/Pro had a manufacturer's-representative/commission relationship, the provision in no way prevented Ruehl from contacting companies that simply sold products to Air/Pro in a buy-resale relationship. Because Ruehl's post-termination efforts did not include contact with those companies with whom Air/Pro had a manufacturer's-representative/commission relationship, we cannot say that the trial court's determination in favor of Ruehl was against the weight of the evidence. We overrule Air/Pro's second assignment of error. Ruehl's Commissions on Uncompleted Sales {¶ 23} In his cross-appeal, Ruehl argues in a single assignment of error that the trial court's judgment was contrary to the manifest weight of the evidence to the extent that it did not award him all the commissions to which he was entitled. If the court's judgment was supported by competent, credible evidence, we cannot reverse the judgment as being against the manifest weight of the evidence.10 {¶ 24} Ruehl argues that the forfeited-commissions provision in section 5 of the employment agreement had not been triggered because (1) the 1990 modification of the agreement had allowed him to operate Air Custom; and (2) he had not been fired by Air/Pro but had voluntarily resigned. Therefore, Ruehl contends, the court erred by finding that he had forfeited his commissions on sales for which Air/Pro had not received payment. {¶ 25} The court found that Ruehl had breached the 1990 modification in two ways: (1) Ruehl had exceeded the $5,000 cap on Air Custom invoices, and (2) Ruehl had failed to provide the required business records to Air/Pro. By breaching the modification, the court concluded, Ruehl had triggered the forfeited-commissions provision of the employment agreement because he had been terminated by Air/Pro due to his interest in another company without the express written consent of Air/Pro. {¶ 26} Our review of the record demonstrates that the trial court's findings were supported by the evidence. The evidence showed that Ruehl had asked Altherr to raise the $5,000 cap on Air Custom invoices, but that Altherr had refused. Altherr testified that Ruehl repeatedly had exceeded the $5,000 cap. Altherr had tired of Ruehl's excuses for the excesses. In April 2001, Altherr asked Ruehl to provide him with Air Custom's 2000 tax return. By the end of May 2001, Ruehl still had not supplied the return. In late June, Ruehl gave the return to Altherr. According to the return, Air Custom's invoices for 2000 had totaled $10,767, well over the $5,000 cap. {¶ 27} Altherr "hit the roof." During a meeting in July 2001, Ruehl told Altherr that he wanted to increase Air Custom's business. Ruehl said that he would consider leaving Air/Pro if Altherr did not agree to the expansion of Air Custom. Altherr told Ruehl to give him a proposal. After reviewing Ruehl's proposal, Altherr asked Ruehl for the Air Custom business records for the years 1999 through 2001. Ruehl gave Altherr the records, but had redacted from them relevant information about the business. {¶ 28} On July 22, 2001, Altherr wrote a note to Ruehl telling him that he needed complete records for Air Custom, and that Ruehl was to explain any missing information. On July 25, Altherr called Ruehl and told him that he was still waiting for the records. At that point, Ruehl stated that he would not turn over the records to Altherr. On July 26, Altherr called Ruehl to tell him that his job was in jeopardy and that he wanted to meet with him. When Ruehl responded that he could not meet until the following day, Altherr sent an e-mail instructing Ruehl to report to his office the following day at 3:00 p.m. {¶ 29} The next morning, Altherr received a message from Ruehl stating that he could not attend the meeting. Then a customer called Altherr and said that Ruehl had told him that he had been fired from Air/Pro. Following that phone conversation, Altherr had the locks changed at the Air/Pro offices to keep Ruehl out. As Altherr testified, at that point, "[Ruehl] was terminated. He's not going to work at Air/Pro at this point. He's gone." On July 31, Altherr confirmed Ruehl's termination from Air/Pro by letter. After considering the testimony and exhibits, the trial court concluded that Ruehl had violated the terms of the modification and that he had been fired by Air/Pro, thereby triggering the forfeiture of any commissions on sales for which Air/Pro had not received payment. Because the court's judgment in this respect was supported by competent, credible evidence, we overrule Ruehl's assignment of error. We affirm the judgment of the trial court. Judgment affirmed. Hildebrandt, P.J., and Painter, J., concur. 1 See Hamilton Ins. Servs. Inc. v. Nationwide Ins. Cos.,86 Ohio St.3d 270, 273, 1999-Ohio-162, 714 N.E.2d 898. 2 See Nationwide Mut. Fire Ins. Co. v. Guman Bros.Farm,73 Ohio St.3d 107, 108, 1995-Ohio-214, 652 N.E.2d 684. 3 See Ohio Historical Soc. v. Gen. Maintenance Eng. Co. (1989),65 Ohio App.3d 139, 146-147, 583 N.E.2d 340; Kelly Dewatering Constr. Co. v. R.E. Holland Excavating, Inc., 1st Dist. No. C-030019,2003-Ohio-5670. 4 Kelly Dewatering Constr. Co., supra, at ¶ 21, citing UnitedStates Fid. Guar. Co. v. St. Elizabeth Med. Ctr. (1998),129 Ohio App.3d 45, 55, 716 N.E.2d 1201. 5 State ex rel. Petro v. R.J. Reynolds Tobacco Co., 104 Ohio St.3d 559,564, 2004-Ohio-7102, 820 N.E.2d 910, at ¶ 23. 6 See KellyDewatering Constr. Co., supra; R.J. Reynolds TobaccoCo., supra. 7 See Ohio Historical Soc., supra. 8 See C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279,376 N.E.2d 578, syllabus. 9 See R.J. Reynolds Tobacco Co., supra. 10 See C.E. Morris Co., supra.

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Plaintiff-appellant Robert Lee Harvey appeals from the November 16, 1999, Judgment Entry of the Muskingum County Court of Common Pleas. Plaintiff-appellee is Nancy Lee Harvey. STATEMENT OF THE FACTS AND CASE. Appellee-plaintiff, Nancy Lee Harvey [hereinafter appellee], filed a Complaint for divorce on November 24, 1998, alleging that the parties were incompatible as marriage partners and that the appellant-defendant Robert Lee Harvey [hereinafter appellant] was guilty of gross neglect of duty and extreme cruelty. On December 9, 1998, appellant filed an Answer. In his Answer, appellant admitted that the parties were incompatible as marriage partners, but denied all other allegations of misconduct. The matter came on for hearing before a Magistrate on June 14, 1999. On August 10, 1999, a Magistrate's Decision was issued, which found the following facts: Appellant and appellee were married on January 28, 1972. The parties had two children born issue of the marriage: Amanda L. Harvey, born July 1, 1976, and Dan R. Harvey, born February 15, 1979. Both children were emancipated. Appellee was forty-eight years of age and in apparent good health. Appellant was forty-nine years of age and in apparently good physical and mental health. Both parties had completed high school, but neither had completed college. By agreement of the parties, appellee did not work outside the home from the spring of 1976 until 1992. In 1992, appellee wanted to work part-time outside the home to "get out of the house." Appellee accepted a part-time job from her neighbor that required her to do word processing in her home. At the time of the hearing, appellee worked as a part-time manager in a video store. In 1997, she earned total gross wages of $5,956.65 from this employment. Appellant was employed as a product manager for Detroit Diesel, earning a salary of $83,275.00 and was paid $400.00 per month as a car allowance. In 1997, appellant earned a bonus of $6,228 and in 1998, he earned a bonus of $2,618.00. Appellee presented the expert testimony of Charles Loomis. Loomis testified that appellee's mental and emotional state would present an obstacle to appellee's ability to engage in work and training. In relevant part, the Magistrate recommended spousal support in the amount of $2,300.00 per month, plus processing charge, for a period of forty-eight months, and, thereafter, in the amount $1,300.00 per month, until appellee is age 65. This spousal support obligation was to terminate upon the death of either party or upon appellee's remarriage or cohabitation. Further, due to the length of the spousal support award and the ages of the parties, the Magistrate recommended that the trial court retain continuing jurisdiction over this spousal support award to modify or terminate the award upon a material change in the circumstances of either party. On August 23, 1999, appellant filed timely Objections to the Magistrate's Decision, further filing a motion for leave to supplement the Objections once the transcript of the hearing before the magistrate was prepared and filed. Thereafter, on August 24, 1999, appellee filed a timely motion requesting that the trial court grant an extension of time for her to file an Objection to the Magistrate's Decision, including an additional request to supplement her Objections within fourteen days after the transcript was provided to her. On August 24, 1999, the trial court issued a Judgment Entry which granted appellant leave to file the transcript of the hearing and leave to supplement his Objections no later than twenty-one days from the date the Judgment Entry was filed, unless an extension of time was granted by the trial court upon motion filed prior to the expiration of the deadline. Based upon the filing date of the Judgment, the transcript and supplement of the Objections were to be filed no later than September 14, 1999. On August 27, 1999, the trial court issued a Judgment Entry granting appellee an extension of time to file her Objections and the transcript of the hearing. Appellee was given until no later than September 14, 1999, to file Objections and the transcript. On September 9, 1999, appellee moved for an additional extension of time to file the transcript and/or supplement appellee's previously filed Objections. On September 14, 1999, appellant filed a motion to extend the time to file formal Objections to the Magistrate's Decision and to file the transcript. On September 16, 1999, the trial court issued a Judgment Entry which ordered that appellant file his Objections on or before October 18, 1999. The transcript of the hearing was filed on September 23, 1999. On September 28, 1999, appellee filed a motion requesting an additional extension to file a supplement to her Objections. On September 29, 1999, a Magistrate issued an order granting appellee until October 18, 1999, to supplement her previously filed Objections to the Magistrate's Decision. Thereafter, on October 18, 1999, appellee filed supplemental Objections to the Magistrate's Decision. Likewise, on October 18, 1999, appellant filed Objections to the Magistrate's Decision regarding the amount and duration of spousal support. On November 16, 1999, the trial court issued a Judgment Entry in which the court found that the Magistrate's Decision contained no error of law or other defect on its face. The court thereby approved and adopted the Magistrate's Decision and entered it as the trial court's judgment. It is from the November 16, 1999, Judgment Entry of the trial court that appellant brings this appeal, raising the following assignments of error: I. IN MAKING THE AWARD OF SPOUSAL SUPPORT, THE TRIAL COURT AND THE MAGISTRATE FAILED TO CONSIDER THE FACTORS SET FORTH IN R.C. 3105.18(C)(1)(a) AND R.C. 3105.18(C)(1)(I). THUS, THE AWARD OF SPOUSAL SUPPORT WAS AN ABUSE OF DISCRETION. II. THE MAGISTRATE'S DECISION AWARDING SPOUSAL SUPPORT TO THE APPELLEE IN THE SUM OF $2,300 PER MONTH FOR FOUR YEARS, AND THEREAFTER IN THE AMOUNT OF $1,300.00 PER MONTH UNTIL APPELLEE IS AGE SIXTY-FIVE IS AN ABUSE OF DISCRETION. Initially, we note that appellant failed to provide the trial court with a timely filed transcript of the proceedings before the Magistrate for the trial court's review of Appellant's Objections to the Magistrate's Decision. Any objection to a finding of fact must be supported by a transcript of all the evidence submitted to the Magistrate relevant to that fact or an affidavit of evidence if a transcript is not available. Civ.R. 53(E)(3)(b). It was the duty of the party presenting an Objection to timely provide a transcript of proceedings. Civ.R. 53(E)(3)(b). Absent a timely transcript or appropriate alternative, a trial court is limited to an examination of the Magistrate's conclusions of law and recommendations in light of the accompanying findings of fact unless the trial court elects to hold further hearings. Wade v. Wade (1996), 113 Ohio App.3d 414, 419. Likewise, our review is limited to a review of the trial court's actions in light of the facts as presented in the Magistrate's Decision. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728. Therefore, we are precluded from considering the transcript of the proceeding submitted with the appellate record. Id.; Civ.R. 53(E)(3)(b). I In the first assignment of error, appellant argues that the trial court failed to consider the factors set forth in R.C. 3105.18(C)(1)(a) and R.C. 3105.18(C)(1)(I) in awarding spousal support. Appellant, in essence, argues that the trial court abused its discretion in making its findings as it did, based upon the evidence presented, as well as in the application of the factors and evidence in determining the award of spousal support. Specifically, appellant argues that the trial court abused its discretion when it found that appellant was not a trained market analyst and therefore discounted appellant's testimony that appellee could generate 28% income on the liquid assets awarded to her in the divorce. Appellant contends that investment income of 28% should have been considered in determining spousal support. Appellant also argues that the trial court abused its discretion in finding that each of the parties would probably apply some of his/her cash assets toward a down payment for a residence, and that neither party may have the ability to generate substantial investment income from his or her share of the liquid accounts. Appellant further argues that the trial court abused its discretion by ordering that appellant pay the spousal support ordered in the decree, when the appellee was being granted $250,000.00 in assets. We disagree with appellant's arguments. A trial court's decision concerning spousal support may only be altered if it constitutes an abuse of discretion. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67. A trial court abuses its discretion when, in addition to making an error of law or judgment, it acts with an unreasonable, arbitrary, or unconscionable attitude. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Ohio Revised Code sections 3105.18(C)(1)(a) thru (n), provides the factors that a trial court is to review in determining whether spousal support is appropriate and reasonable and in determining the nature, amount, terms of payment, and duration of spousal support. R.C. 3105.18(C)(1) provides: In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; . . . (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties. . . . The Magistrate's Decision, adopted by the trial court, acknowledged that it "must consider all relevant factors, including those specifically listed in Section 3109.18 [sic — should be 3105.18] Ohio Rev. Code: . . . (recitation of factors omitted)". The Magistrate's Decision also found that "after carefully considering each of the statutory factors in light of the credible evidence presented, or the lack of it, . . . requiring Robert Lee Harvey to pay spousal support as set forth below is appropriate and reasonable. . . ." The Magistrate Decision expressly stated it had considered all the factors, including the factors of paragraphs (a) and (i) and made the following specific findings: (a) Nancy Lee Harvey can reasonably expect to earn gross wages of about $6,500 at the present time. Robert Lee Harvey can reasonably expect to earn gross wages, including a vehicle allowance, of at least $88,075. In addition, Robert Lee Harvey has earned bonuses over the last two years. Both parties can reasonably expect to generate some investment income that can be used to meet current living expenses from the property divided by the Court; however, the amount of this income is uncertain and depends in large part on whether the parties use some of their cash assets to purchase residences, a use the Magistrate expressly finds to be reasonable. . . . (i) The Court's division of property will place the parties in parity with respect to a net property award. Neither party has any significant separate property. We find that the trial court did not abuse its discretion in discounting appellant's testimony regarding the potential for appellee's investment to earn 28%. The Magistrate made detailed findings as to why appellant's testimony on this matter was discounted. In part, those findings (which were adopted by the trial court) state: "However, Robert Lee Harvey's estimate is based upon the current remarkable performance of the stock and mutual fund market. The Court does not find Robert Lee Harvey's testimony sufficient to determine that such rate of return is sustainable over a long period of time. Robert Lee Harvey is not trained as a market analyst and the Court will not presume to predict the future performance of the stock market. . . . Other than Mr. Harvey's testimony, neither party presented evidence as to the income that they could reasonably generate from investment of the liquid funds to be divided between the parties. . . ." It is the trial court's province to determine the credibility of the evidence before it, and we find the trial court's analysis above to be reasonable and not an abuse of discretion. Appellant also argues that there was no evidence presented to the trial court to indicate that either of the parties would use his/her cash assets toward the purchase of a residence. Appellant posits this as an abuse of discretion argument, but it appears to really be an argument that the finding of the trial court was against the manifest weight of the evidence. Since we cannot consider the transcript, any manifest weight arguments are moot. Appellant lastly argues, under this assignment of error, that the trial court abused its discretion in awarding the spousal support it did when appellee was receiving $250,000.00 in assets. However, we find no abuse of discretion in this regard. The trial court, in detail, considered all the factors under R.C. 3105.18 and considered that each party was getting a nearly equal portion of the marital assets. The amount of assets of the parties is only one factor under R.C. 3105.18. We have reviewed the findings in this case and find no abuse of discretion. The first assignment of error is overruled. II In the second assignment of error, appellant contends that the amount and duration of the spousal support awarded was an abuse of discretion. The trial court awarded spousal support in the amount of $2,300.00 per month for four years and $1,300.00 per month thereafter, until appellee reaches the age of 65. We find no abuse of discretion. The trial court correctly sets forth the law regarding the determination of the amount and duration of spousal support. As discussed in Assignment of Error I, the trial court delineated the factors to be used, as established by R.C. 3105.18. The trial court also acknowledged the Ohio Supreme Court's holding in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 554 N.E.2d 83, para. one of syllabus ("[e]xcept in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has the resources, ability and potential to be self-supporting, an award of sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties' rights and responsibilities.") Among other factors, the trial court noted the substantial length of the marriage (27 years), that appellee had worked in the home as a mother and homemaker (with limited part-time work out of the home between 1976 and 1990) and that appellant could be expected to earn gross wages of at least $88,075.00 per year in comparison to the $6,500.00 wages appellee could be expected to earn at the time of the hearing. The trial court further indicated that each party would have some investment income, albeit uncertain to predict. The trial court also found that "[appellee] will maximize her earning ability if she pursues additional education or training. The evidence did not show precisely the length of time she [appellee] will require to complete this education or training; however, the evidence supports an inference that this time period should be limited to approximately four years, particularly where she's continuing to work park-time." Magistrate Decision at 18. Further, the trial court found that "although [appellee] cannot be diagnosed with clinical depression, her emotional and psychological state will pose an obstacle to her future vocational rehabilitation and her ability to obtain and maintain full-time employment." Id. at 17. In reviewing the facts as found by the Magistrate, and the applicable law, including Kunkle, supra, we find that the trial court did not abuse its discretion in determining the amount and duration of spousal support. Appellant's second assignment of error is overruled. For the foregoing reasons, the judgment of the Court of Common Pleas, Muskingum County, Ohio, is hereby affirmed. ________________________ Edwards, J. Farmer, P.J. and Wise, J., concurs

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{¶ 36} Because I disagree with the majority's analysis and resolution of appellant's second assignment of error, I respectfully dissent. {¶ 37} I recognize that this court ruled on this issue in State v.Rupp, Butler App. No. CA2001-06-135, 2002-Ohio-1600. However, I now find the reasoning of Rupp unconvincing, and instead am more persuaded by that of the First, Second, and Fourth District Courts of Appeal. SeeKnaff, appeal not allowed (1998), 83 Ohio St.3d 1447; Morton, appeal not allowed 106 Ohio St.3d 1412, 2006-Ohio-3154; Fairbanks, appeal allowed111 Ohio St.3d 1491, 2006-Ohio-6171. {¶ 38} The majority rejects appellant's contention that the two charges at issue require proof of the same mental state. However, the Ohio Supreme Court, in State v. Earlenbaugh (1985), 18 Ohio St.3d 19,21-22, held that R.C. 4511.20 provides "two definite and clear bases" upon which a finding of guilt may be premised. Foremost, "[a] person may be found guilty of violating R.C. 4511.20 if he acts willfully. Such conduct implies an act done intentionally, designedly, knowingly, or purposely, without justifiable excuse." Id., citation omitted. Likewise, R.C. 2924.331(B) requires proof that the defendant "willfully" eluded or *Page 12 fled from a police officer, causing a substantial risk of serious physical harm. See State v. Taylor, Medina App. No. 04CA0078-M,2005-Ohio-2407. {¶ 39} Applying Best and the Blockburger test as cited by the majority to these two offenses, I conclude that it would be impossible to commit the felony offense of failure to comply without also committing the offense of reckless operation. Both R.C. 4511.20 and R.C. 2921.331(B) involve willful acts, related to the disregard of safety on the roadways or willfully eluding a police officer so as to cause a substantial risk of serious physical harm to persons or property. Both are satisfied by the facts of this case. {¶ 40} While the majority takes issue with the absence of the record forming the basis of the Warren County Court conviction, its own statement of facts is thorough and descriptive of the events which led to the charges against appellant. Further, as this court has previously held, "a guilty plea by itself is a complete admission of the defendant's guilt sufficient to permit a guilty finding. * * * [N]o factual basis for a guilty plea is required before a conviction may be entered. * * * [A] guilty plea is conclusive [of guilt] in itself without any supporting evidence." State v. Turpin (Dec. 31, 1986), Warren App. No. CA86-02-014, at 9. In the present case the charges of felony failure to comply and reckless operation arose out of the same course of conduct. Appellant pled guilty to the charge of reckless operation, and no further explanation of the facts is necessary to resolve this case. {¶ 41} I would sustain appellant's second assignment of error and reverse the conviction for felony failure to comply. Appellant was placed in jeopardy once when he pled guilty to reckless operation. Consequently, he could not be prosecuted again for felony failure to comply, arising out of the same facts, without violating the prohibition against double jeopardy. Accord Knaff; Morton; Fairbanks. This conclusion would render appellant's first assignment moot. *Page 1

2016-07-06 06:36:16.526663+00

OPINION {¶ 1} Appellant Ronald L. Foss appeals the decision of the Richland County Court of Common Pleas, Domestic Relations Division, which modified his child support obligation following an administrative recommendation by the Richland County Child Support Enforcement Agency. The appellee is Pamela A. Foss, appellant's former spouse. The relevant facts leading to this appeal are as follows. {¶ 2} On April 11, 2002, Ronald and Pamela were granted a divorce in Richland County pursuant to a decree filed on that date, which included a shared parenting plan approved by the court. Ronald was ordered to pay spousal support, but child support for the parties' two minor children, Kaleb and Kendall, was set by deviation to $0 (zero dollars) per month, even though the guideline child support amount would have been $700.36 per month per child. The shared parenting agreement indicated that a deviation was warranted due to "the amount of time father will be spending with children and father will be paying all the children's clothing, medical and school expenses per O.R.C. 3119.23 (D)[and](J)." Shared Parenting Agreement at 4. {¶ 3} In May 2004, Richland County CSEA issued an administrative recommendation to modify appellant's child support obligation to $861.03 per month for the parties' remaining unemancipated child, Kendall. Ronald filed an administrative appeal therefrom, resulting in a hearing before a domestic relations magistrate on August 16, 2004. The magistrate issued a decision on September 3, 2004, finding Ronald's worksheet line 14 adjusted income to be $97,447 annually, and Pamela's worksheet line 14 adjusted income to be $26,567 annually. Based on these figures, the magistrate set child support for Kendall at $875.00 per month, retroactive to June 1, 2004. {¶ 4} Ronald thereupon filed an objection to the decision of the magistrate. On December 30, 2004, the court issued a judgment entry overruling Ronald's objections and approving the decision of the magistrate. On January 28, 2005, Ronald filed a notice of appeal. He filed his appellant's brief on March 23, 2005; Pamela has not filed an appellee's brief in response. {¶ 5} Ronald herein raises the following three Assignments of Error: {¶ 6} "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FINDING THAT A SUBSTANTIAL CHANGE OF CIRCUMSTANCES JUSTIFIED A CHILD SUPPORT ORDER WITH NO DEVIATION. {¶ 7} "II. THE TRIAL COURT'S ORDER OF CHILD SUPPORT INCREASE WAS ARBITRARY AND CONTRARY TO THE EVIDENCE. {¶ 8} "III. THE TRIAL COURT'S ORDER OF GUIDELINE SUPPORT WAS UNJUST IN VIOLATION OF O.R.C. SEC. 3919.79(C) (SIC). I., II. {¶ 9} In his First and Second Assignments of Error, Ronald contends the trial court erred in finding the existence of a change in circumstances and granting a modification of child support. We disagree. {¶ 10} In Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028, the Ohio Supreme Court determined an abuse of discretion standard is the appropriate standard of review in matters concerning child support. In order to find an abuse of that 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, 219. Furthermore, as an appellate court, we are not the trier of facts. 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. Accordingly, 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 (1978), 54 Ohio St.2d 279,376 N.E.2d 578. {¶ 11} CSEA review of court child support orders is principally addressed in R.C. 3119.63. In addition, R.C. 3119.79 states, in relevant part, as follows; "(A) If an obligor or obligee under a child support order requests that the court modify the amount of support required to be paid pursuant to the child support order, the court shall recalculate the amount of support that would be required to be paid under the child support order in accordance with the schedule and the applicable worksheet through the line establishing the actual annual obligation. If that amount as recalculated is more than ten per cent greater than or more than ten per cent less than the amount of child support required to be paid pursuant to the existing child support order, the deviation from the recalculated amount that would be required to be paid under the schedule and the applicable worksheet shall be considered by the court as a change of circumstance substantial enough to require a modification of the child support amount." {¶ 12} The Ohio Supreme Court, in DePalmo v. DePalmo, 78 Ohio St.3d 535,1997-Ohio-184, 679 N.E.2d 266, rejected the "dual threshold" test for a change in circumstances set forth in Anderkin v. Lansdell (1992),80 Ohio App.3d 687, 610 N.E.2d 570. In DePalmo, the Court held that in a case where a support order already exists, the only test for determining whether child support shall be modified is that set forth in R.C. 3113.215(B)(4) [now R.C. 3119.79, supra]. In the case sub judice, the original decree deviated to a support order of zero pursuant to the parties' shared parenting plan. "[A] child support order which requires zero support to be paid is an existing child support order." Fields v.Fields, Medina App. No. 04CA0018-M, 2005-Ohio-471, ¶ 11, quotingRodriguez v. Rodriguez (May 2, 2001), 9th Dist. No. 00CA007699 (additional citations and quotations omitted). As the new guideline figure in this matter of $875.00 per month was clearly "more than ten per cent greater than * * * the amount of child support required to be paid pursuant to the existing child support order" (R.C. 3119.79(A)), we find no error in the trial court's finding of a change in circumstances. {¶ 13} Ronald additionally argues in his appellant's brief that Pamela "did not present any testimony or exhibit purporting to show that she has incurred more or paid any of the expenses that Appellant was to pay pursuant to the original decree of divorce." Appellant's Brief at 4. He further contends he submitted proof to the magistrate that he paid for Kendall's expenses such as clothing, car payments, and orthodontia. Id. This argument is in apparent reference to the trial court's decision to "modify the parties' Shared Parenting Plan, doing away with any obligation of Defendant to make direct payments on his daughter's behalf, and instead require child support in the amount of the Ohio Child Support Guidelines Worksheet." Magistrate's Decision at 3. {¶ 14} We nonetheless note Pamela's contrasting testimony that Kendall sometimes went "weeks at a time without being able to get a hold of her father," and that there was no longer a de facto equal-time shared parenting arrangement for this remaining unemancipated child (Tr. at 24-25), who was already seventeen years old at the time of the proceedings at issue. We are thus unable to find an abuse of discretion by the trial court in granting a modification of support under these circumstances, in lieu of maintaining the status quo. As the Supreme Court aptly recognized in DePalmo: "The law favors settlements. However, the difficult issue of child support may result in agreements that are suspect. In custody battles, choices are made, and compromises as to child support may be reached for the sake of peace or as a result of unequal bargaining power or economic pressures. The compromises may be in the best interests of the parents but not the child." Id. at 540. See, also, Fox v. Fox, Hancock App. No. 5-03-42, 2004-Ohio-3344, ¶ 19. {¶ 15} Therefore, upon review of the record, we are unpersuaded that the court's decision to modify child support and implicitly decline to deviate was an abuse of discretion or against the manifest weight of the evidence. {¶ 16} Appellant's First and Second Assignments of Error are overruled. III. {¶ 17} In Ronald's Third Assignment of Error, citing R.C. 3119.79(C), he challenges the trial court's decision to modify child support without evidence that there had been a substantial change in circumstances not contemplated by the parties at the time of the divorce. The cited statutory subsection reads as follows: {¶ 18} "(C) If the court determines that the amount of child support required to be paid under the child support order should be changed due to a substantial change of circumstances that was not contemplated at the time of the issuance of the original child support order or the last modification of the child support order, the court shall modify the amount of child support required to be paid under the child support order to comply with the schedule and the applicable worksheet through the line establishing the actual annual obligation, unless the court determines that the amount calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet would be unjust or inappropriate and would not be in the best interest of the child and enters in the journal the figure, determination, and findings specified in section3119.22 of the Revised Code." {¶ 19} In Lee v. Loos, Tuscarawas App. No. 2004 AP 02 0015, 2005-Ohio-254, ¶ 17, we addressed a similar argument by an obligor who maintained that his previous child support deviation "should have been continued unless the trial court made a finding that the substantial change in circumstances was not contemplated at the time of the original support order." We rejected that argument, relying on DePalmo, supra, and held there was no requirement that a trial court find that the substantial change in circumstances was not contemplated at the time the original support order was issued. Id. at ¶ 20. {¶ 20} Accordingly, appellant's Third Assignment of Error is overruled. {¶ 21} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Richland County, Ohio, is affirmed. Wise, J. Gwin, P.J., and Edwards, J., concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Richland County, Ohio, is affirmed. Costs to appellant.

2016-07-06 06:36:17.483093+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant, Charles Gatson ("Gatson"), appeals his conviction. Finding some merit, we reverse in part and affirm in part. {¶ 2} In January 2007, the Cuyahoga County Grand Jury indicted Gatson for (1) domestic violence, a violation of R.C. 2919.25, (2) felonious assault, a violation of R.C. 2903.11, (3) disrupting public service, a violation of R.C. 2909.04, (4) intimidation, a violation of R.C. 2921.04, (5) kidnapping, a violation of 2905.01, and (6) endangering children, a violation of R.C. 2919.22. Gatson pled not guilty to the charges and the matter proceeded to a bench trial where the following evidence was presented. {¶ 3} Tanya Gatson-Brown ("Tanya"), Gatson's wife, testified that on October 30, 2006, approximately four days after Gatson returned home from prison, he left the house to buy some shoes for their son. While he was gone, Tony Thompson, the father of one of Tanya's children, came over to visit. They were drinking beer and wine and eventually fell asleep on the couch. Tanya later awoke when Gatson slapped her across the face and spit in her face. Tanya jumped from the couch and followed Gatson to a back room, where the two began arguing over her alleged infidelity. Tanya denied having been unfaithful but Gatson did not believe her. {¶ 4} The argument continued to the front of the house where Gatson subsequently pushed Tanya into a door, resulting in a cut to her heel. At some point, Gatson threw a broom at her. The two returned to the living room where *Page 4 Gatson pushed her again, causing her to fall backwards, hit the edge of the couch, and suffer a back injury. {¶ 5} Tanya further testified that she later called for an ambulance because of the pain in her back. While the Cleveland Heights firefighters/paramedics questioned her and evaluated her, Gatson stood in the other room and watched her. Tanya testified that she was scared because she was afraid that Gatson would "get mad." She also insinuated that Gatson stood in the other room to ensure that she did not tell the paramedics that he caused her injuries. Gatson declined to accompany the paramedics to the hospital. {¶ 6} A few days later, Tanya contacted the police and reported that she had been a victim of domestic violence. {¶ 7} On cross-examination, Tanya testified that Gatson had not threatened her after the alleged incident. She further acknowledged that she had not reported the alleged domestic violence earlier despite having opportunities to do so. Tanya also testified as to her multiple prior convictions, which included an assault against a police officer, an aggravated assault against Gatson, identity theft, and vandalism. {¶ 8} Following the close of the state's case, the trial court granted Gatson's motion for an acquittal on the kidnapping and endangering children counts. The trial court ultimately found Gatson guilty of domestic violence and intimidation and not guilty on the remaining charges of felonious assault and *Page 5 disrupting public service. The trial court sentenced Gatson to two years in prison on each count, to be served concurrently. {¶ 9} Gatson appeals his conviction, raising the following three assignments of error: {¶ 10} I. The evidence is insufficient to support a conviction for intimidation of a witness under Ohio R.C. 2921.04. {¶ 11} II. The verdict of guilty on the charge of intimidation of witness was against the manifest weight of the evidence. {¶ 12} III. The verdict of guilty on the charge of domestic violence was against the manifest weight of the evidence. Sufficiency of the Evidence: Intimidation Count {¶ 13} In his first assignment of error, Gatson argues that the state failed to produce sufficient evidence to support a conviction of intimidation. {¶ 14} A challenge to the sufficiency of the evidence supporting a conviction requires a court to determine whether the State has met its burden of production at trial. State v. Thompkins, 78 Ohio St.3d 380,1997-Ohio-52. On review for sufficiency, courts are to assess not whether the State's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. Id. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact *Page 6 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. {¶ 15} Gatson was convicted of intimidation, a violation of R.C. 2921.04(B), which provides as follows: {¶ 16} "(B) No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder the victim of a crime in the filing or prosecution of criminal charges or an attorney or witness involved in a criminal action or proceeding in the discharge of the duties of an attorney or witness." {¶ 17} Gatson contends that the state failed to prove the element of "force" or "by unlawful threat of harm" to sustain a felony intimidation conviction. The state concedes that it did not produce any evidence of force; rather, its case focused on intimidation "by unlawful threat of harm." The state contends that the collective evidence of Gatson staring at Tanya while she spoke with the paramedics, her own apprehension of how he would react if she told the truth, and the fact that he allegedly rendered the phone inoperable when he left the house sufficiently satisfied the element of unlawful threat of harm. The state further argues that Gatson's act of inducing Tanya to promise not to report any abuse to ensure that he did not return to prison also satisfied the element of unlawful threat of harm. We disagree. *Page 7 {¶ 18} In distinguishing between the misdemeanor and felony offenses of intimidation, the Ohio Supreme Court in State v. Cress,112 Ohio St.3d 72, 2006-Ohio-6501, discussed the significance of the phrase "unlawful threat of harm," which is contained in the felony offense (R.C. 2921.04(B)) and not the misdemeanor offense (R.C. 2921.04(A)), and explained the following: {¶ 19} "`Intimidation' by definition involves the creation of fear in a victim, and the very nature of a threat is the creation of fear of negative consequences for the purpose of influencing behavior. We simply do not discern a meaningful difference between intimidation of a witness and the making of a threat to a witness. According, both R.C. 2921.04(A) and (B) prohibit the threatening of a witness. {¶ 20} "An unlawful threat must accordingly connote more than just a threat, i.e., more than just a communication to a person that particular negative consequences will follow should the person not act as the communicator demands. The word `unlawful' in R.C. 2921.04(B) must add substantive meaning, or it is superfluous. * * * {¶ 21} "* * * [T]he statutory language in R.C. 2921.04(B), proscribing intimidation by an `unlawful threat of harm,' is satisfied only when the very making of the threat is itself unlawful because it violates established criminal or civil law." Id. at ¶ 40-42. *Page 8 {¶ 22} Applying the foregoing to the instant case, we find insufficient evidence to convict Gatson of felony intimidation. First, Tanya testified that Gatson never threatened her. Secondly, the state's collective evidence of "unlawful threat of harm" falls short of satisfying the element. Indeed, Tanya's apprehension or fear of Gatson alone, even if justifiable, is insufficient to support a felony conviction of intimidation. Cress, supra; see, also, State v.Gooden, 8th Dist. No. 81320, 2003-Ohio-2864, ¶ 27 (victim's fear of defendant is insufficient to support intimidation count). We further fail to see how Gatson's alleged act of removing the telephone cord constitutes an unlawful threat of harm. Even if the state's evidence arguably demonstrated a "threat," thereby supporting a misdemeanor conviction for intimidation, the state failed to meet the higher threshold of "an unlawful threat of harm." {¶ 23} Accordingly, Gatson's first assignment of error is sustained. Having found that the state failed to present sufficient evidence to support the intimidation conviction, his second assignment of error challenging the manifest weight of the evidence to support an intimidation conviction is moot. Manifest Weight of the Evidence: Domestic Violence Count {¶ 24} In his third assignment of error, Gatson argues that his conviction for domestic violence is against the manifest weight of the evidence. We disagree. *Page 9 {¶ 25} A challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. Thompkins, supra, at 387. Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the judgment is against the weight of the evidence. Id., citing State v. Robinson (1955), 162 Ohio St. 486, 487. {¶ 26} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as a "thirteenth juror," and, after "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."Thompkins, supra, at 387, quoting State v. Martin (1983),20 Ohio App.3d 172, 175. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the "exceptional case in which the evidence weighs heavily against the conviction." Id. {¶ 27} Gatson was convicted of one count of domestic violence, as defined in R.C. 2919.25, which provides: {¶ 28} "No person shall knowingly cause or attempt to cause physical harm to a family or household member." *Page 10 {¶ 29} Gatson argues that the state's evidence that he caused or attempted to cause physical harm was extremely weak. The crux of his argument is that Tanya's testimony failed to unequivocally demonstrate that he caused significant injury. This argument, however, lacks merit. {¶ 30} "Significant injury" is not an element to domestic violence. See R.C. 2919.25. Instead, the state only needed to prove that Gatson caused or attempted to cause "physical harm," which includes "any injury, illness, or other physiological impairment, regardless of its gravity or duration." See R.C. 2901.01(A)(3). {¶ 31} Here, Tanya's testimony established the necessary elements of the offense. Tanya testified that Gatson slapped her across the face, that he pushed her into a door, and that he pushed her down on the couch. The state further offered photographic evidence of the injury Tanya sustained to her foot. The circumstances surrounding the incidents, namely, Gatson's belief that Tanya was unfaithful, evidence that these acts were done knowingly and with the intent to cause physical harm. The mere fact that Tanya did not seek medical treatment at a hospital for the injuries she sustained does not negate Gatson's unlawful conduct. Accordingly, based on the record, we cannot say that the trier of fact "lost its way." {¶ 32} Gatson's final assignment of error is overruled. Judgment affirmed in part and reversed in part. *Page 11 It is ordered that appellant and appellee split 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. The defendant's conviction having been affirmed in part, 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, P.J., and JAMES J. SWEENEY, J., CONCUR. *Page 1

2016-07-06 06:36:17.742537+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff-appellant Guy Templeton Black ("plaintiff") appeals from the dismissal of his complaint against defendant-appellee Roosevelt Coats ("defendant") by the Cuyahoga County Court of Common Pleas for failure to state a claim. For the following reasons, we affirm the decision of the trial court. {¶ 2} On January 27, 2004, plaintiff filed a pro se complaint against the defendant seeking a restraining order, permanent injunction, and damages in the amount of $13,000. The gist of plaintiff's fragmented and unclear complaint appears to allege that defendant, a city councilman, falsely accused plaintiff of dumping newspapers into a trash bin at Wayside and Euclid Avenue, Cleveland, Ohio. He claimed that because of defendant's unlawful action he has "suffered irreparable harm by threat of being arrested falsely or some other action by a police power or other source." {¶ 3} On April 27, 2004, defendant filed a Civ.R. 12(C) motion for judgment on the pleadings asserting failure to state a claim. On July 9, 2004, the trial court granted the motion for judgment on the pleadings. {¶ 4} Plaintiff timely appealed this order and argues that the trial court erred in dismissing his complaint without sufficient evidence to support a dismissal, since he did not have the opportunity to conduct discovery.1 {¶ 5} As an initial matter, we note that plaintiff does not address Civ.R. 12(C) or make reference to why he is entitled to relief. Accordingly, his brief lends no support to the ultimate issue in this case. Nonetheless, we shall discuss the propriety of the trial court's dismissal of plaintiff's complaint in the interest of justice. {¶ 6} The Ohio Supreme Court has held that a Civ.R. 12(C) motion for judgment on the pleadings is to be considered as if it were a belated motion to dismiss for failure to state a claim upon which relief can be granted. State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591, 592. Therefore, we will analyze the judgment below under the same principles which we would apply in reviewing a Civ.R. 12(B)(6) dismissal. {¶ 7} A motion to dismiss for failure to state a claim upon which relief can be granted is a procedural motion that tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548. In order to dismiss a complaint for failure to state a claim upon which relief can be granted, the court must find beyond doubt that plaintiff can prove no set of facts warranting relief after it presumes all factual allegations in the complaint are true, and construes all reasonable inferences in plaintiff's favor. Stateex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490. {¶ 8} Civ.R. 8(A) sets forth requirements for a complaint and provides in pertinent part: "A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled." {¶ 9} Here, plaintiff's complaint does not allege any set of facts that would entitle him to relief under Ohio law. The "false accusation" of which the plaintiff complains of was nothing more than an attempt by the defendant, a city councilman, to ensure that the resources of the City were not being wasted. Specifically, in the January 20, 2004 inter-office memorandum, defendant advised the Director of Waste Collection and Disposal that "an individual is using [a] gray Subaru as his delivery truck from the Scene magazine to dump piles of newspapers back into the trash bin receptacle at Wayside Avenue and Euclid Avenue. This situation is causing the garbage collectors to have to come into the area at least two to three times per week to empty the trash bin where these newspapers have been dumped." The memo requested that "a ticket be issued to this individual in order to stop this activity." {¶ 10} We find nothing unusual or threatening about this memorandum. Plaintiff was, in fact, the owner of a grey Subaru and delivered magazines for Scene magazine. He was notified by Scene's circulation manager of the defendant's allegation and advised accordingly. Plaintiff was not issued a ticket. While we are mindful of the obstacles presented to a pro se plaintiff, it is clear that even when construing his complaint liberally, he does not assert any actionable claim. Since the plaintiff has not asserted any actionable claim, the trial court did not err in dismissing his complaint prior to conducting discovery. See Stateex rel. Brantley v. Ghee (1998), 83 Ohio St.3d 521, 522. Judgment affirmed. It is ordered that appellee recover of appellant his 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 Court of Common Pleas 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. Blackmon, A.J., and Gallagher, J., concur. 1 Plaintiff's appeal does not set forth any actual assignment of error.

2016-07-06 06:36:18.818378+00

OPINION This timely appeal arises from a trial court judgment finding Appellant, Ray G. Rice, guilty of driving while intoxicated in violation of New Middletown Ordinance 333.01 (A) (3). For the reasons stated herein, this Court affirms the decision of the trial court. The record reflects that on December 27, 1994, Patrolman Vincent D'Egidio of the New Middletown, Ohio, Police Department observed appellant turn south-bound onto State Route 170, nearly colliding with a vehicle traveling north-bound on State Route 170. The officer followed Appellant south-bound on State Route 170 and observed him cross the center-line six (6) times. Appellant, failing to respond to the officer's emergency lights, proceeded to his residence at 111247 Youngstown-Pittsburgh Road, New Middletown, Ohio where he parked his vehicle in the garage. Appellant exited his vehicle, approached the officer and immediately asked whether Patrolman D'Egidio had a search warrant since he was on his own property. When the officer requested Appellant's driver's license he detected a strong odor of alcohol. He also noticed that Appellant's speech was confused and his balance was poor. Appellant initially complied with the officer's request to perform field sobriety tests. However, after completing the "Walk and Turn" test, Appellant refused to comply with additional tests. When Patrolman D'Egidio directed Appellant to the front of his cruiser and attempted to apply his hand-cuffs, Appellant, according to the incident report, "attempted to struggle" with him. After hand-cuffing and reading the Miranda rights to Appellant, the officer transported Appellant to the New Middletown municipal building to administer a BAC Verifier test. The test revealed that Appellant had a blood alcohol content of .186 grams per 210 liters of breath. Patrolman D'Egidio cited Appellant for driving under the influence of alcohol, in violation of New Middletown Ordinance 333.01 (A) (1), driving while intoxicated, in violation of New Middletown Ordinance333.01 (A) (3), and driving left of center in violation of New Middletown Ordinance 333.01. Furthermore, Appellant's driver's license was placed under administrative suspension pursuant to R.C. § 4511.191. Appellant was arraigned in New Middletown Mayor's Court on January 4, 1995, where he pled not guilty and waived his right to a speedy trial. Upon Appellant's request, his case was transferred to Struthers Municipal Court on February 1, 1995 and filed there on February 2, 1995. On May 9, 1995, Appellant filed a motion to dismiss on the basis of double jeopardy. Appellant claimed that he was subjected to a civil punishment in the form of the administrative license suspension and that a subsequent criminal penalty would violate his constitutional protection against double jeopardy. On July 5, 1995, Appellant appeared at trial and changed his plea to no contest. The trial court dismissed the charge of driving under the influence in violation of New Middletown Ordinance 333.01 (A) (1). With respect to the violation of New Middletown Ordinance 333.01 (A) (3), the trial court held its ruling in abeyance pending the Ohio Supreme Court's determination as to whether the imposition of an administrative license suspension in conjunction with subsequent criminal penalties for the same offense violated the constitutional protection from double jeopardy. On July 30, 1996, the Ohio Supreme Court ruled that the protections against double jeopardy afforded by the United States and Ohio constitutions do not preclude the criminal prosecution and trial of individuals for violating R.C. § 4511.19 subsequent to an administrative license suspension pursuant to R.C. § 4511.191. State v. Gustafson (1996), 76 Ohio St.3d 425, paragraph one of the syllabus. Relying on this decision, the trial court in the present matter found Appellant guilty of driving while intoxicated on February 26, 1997. The trial court imposed a fine and court costs and sentenced appellant to 180 days in jail with 177 days suspended and one year of probation. Appellant was given the option of serving his remaining three days in the Driver's Education Alternative Program. The trial court further imposed a 180 day license suspension with credit for this suspension. On March 19, 1997, Appellant filed his notice of appeal. Appellant alleges as his sole assignment of error: "DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW, UNDER THE LAWS OF OHIO AND THE OHIO AND U.S. CONSTITUTIONS BY THE TRIAL COURT, WHEN IT UNREASONABLY AND PREJUDICIALLY DELAYED THE RENDERING OF A DECISION AS TO HIS GUILT OR INNOCENCE." We note at the outset that Appellee, State of Ohio, has failed to file a brief in this matter. Pursuant to App. R. 18 (C) this Court is granted the authority to accept Appellant's statement of the facts and issues as correct and reverse the judgment of the trial court if Appellant's brief reasonably appears to sustain such action. Appellant argues that the nineteen (19) month delay between his entering a no contest plea and the trial court's rendering a decision as to his guilt or innocence violated R.C. § 2938.11 (F) which provides in relevant part that "* * * [a]ny finding by the judge or magistrate shall be announced in open court not more than forty-hours after submission of the case to him." Appellant claims that such a violation caused him substantial prejudice. In deciding a matter concerning a delay in disposition of a case, we apply the abuse of discretion standard. James Weaver, Inc. v.Leyshon (March 31, 1993), Mahoning App. No. 91 C.A. 208, unreported. We will not reverse a trial court's decision absent an abuse of discretion. Id. An abuse of discretion is more than an error of law or judgment. The decision must be unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151,157. The time frame imposed by R.C. § 2938.11 (F) is directory rather than mandatory. State v. Fiorenzo (1996), 108 Ohio App.3d 500,506. Although the forty-eight hour period described in R.C. § 2938.11 (F) is not controlling, a defendant is still entitled to a ruling within a reasonable time after his case has been submitted to the court for disposition. Id. Cases addressing the directory nature of R.C. § 2938.11 (F) have not established guidelines for determining what constitutes a reasonable delay in ruling on a pending matter. However, we can glean from these cases that what is reasonable depends greatly on the individual circumstances of each case. In finding that a fifteen day delay between submission of a traffic case to the court and sentencing the defendant was not an unreasonable delay, one court stressed that the need to research and reflect on the matter are relevant to a courts discretion in delaying a ruling. State v. Hatcher (1982) 2 Ohio Misc.2d 8, 11. In another case, the court of appeals considered the "numerous legal issues" before the trial court and multiple charges pending against the defendant when it determined that a three month delay in ruling was reasonable. City of Xenia v. Manker (1984), 18 Ohio App.3d 9,14. Furthermore, the Eleventh District Court of Appeals held likewise when it considered the complexity of the issues involved in addition to the visiting judge's necessary attendance to matters on his own docket. State v. Fiorenzo, supra at 507. In the present case, the delay between submission of the matter to the trial court and disposition does appear at first blush to be excessive. However, considering the circumstances, we cannot say the delay was unreasonable. The trial court was charged with determining whether the imposition of an administrative license suspension in conjunction with subsequent criminal penalties for the same offense violated the constitutional protection from double jeopardy. When Appellant pled no contest on July 5, 1995, the state of the law on the issue was in flux. This Court had held in State v. Gustafson (June 27, 1995), Mahoning App. No. 94 C.A. 232, unreported, that a court could not impose further criminal sanctions on a DUI offender whose license was suspended pursuant to R.C. § 4511.191. However, the State of Ohio appealed that decision upon a determination of conflict with the rulings of other appellate districts. See, State v. Gustafson, 76 Ohio St.3d 425, supra, 10. On July 30, 1996, the Ohio Supreme Court ruled that the protection against double jeopardy afforded by the United States and Ohio constitutions does not preclude the criminal prosecution and trial of individuals for violating R.C. § 4511.19 subsequent to an administrative license suspension. Id., paragraph one of the syllabus. The record reflects that the trial court was cognizant of the state of the law when it held its ruling in abeyance pending the Ohio Supreme Court's ruling. Such caution is reasonable in light of the facts contained herein. In reaching this conclusion, we note our decision in State v.Kent (Nov. 23, 1998), Mahoning App. No. 97 C.A. 102, unreported. In that matter, the appellant was charged with driving while intoxicated and moved to dismiss the charges based on double jeopardy and the authority of State v. Gustafson (June 27, 1995), Mahoning App. No. 94 C.A. 232, unreported. That motion was implicitly denied and the case continued from July 26, 1995 to April 7, 1997. The appellant later filed a motion to dismiss based on the issue of speedy trial, which was also denied. The appellant appealed his conviction on the grounds that despite his waiver of speedy trial, the twenty four months that elapsed from his arrest to his conviction was unreasonable. We affirmed the trial court decision stating that the appellant failed to take action to compel the trial of his case. We based our decision onState v. O'Brien (1987), 34 Ohio St.3d 7, where the Ohio Supreme Court held that following a written waiver of the right to a speedy trial, a defendant is not entitled to have his case dismissed when he does not file a formal written objection to the delay and demand trial of his case. Id. citing State v. O'Brien at 9. We further stated in State v. Kent that the record reflected that the trial court was waiting for the Ohio Supreme Court's decision is State v. Gustafson, 76 Ohio St.3d 425 in order to appropriately rule on the appellant's motion to dismiss based on double jeopardy. From this we could infer that the appellant, as well as the State, was awaiting the Ohio Supreme Court's pending decision. We found that the trial court's continuation of the matter did not violate the appellant's constitutional right to a speedy trial. In the present matter, Appellant waived his right to a speedy trial and filed a motion to dismiss on grounds of double jeopardy. The trial court, according to its journal entry, continued ruling on Appellant's guilt or innocence pending the Ohio Supreme Court's decision in State v. Gustafson,76 Ohio St.3d 425. Appellant did not object to the trial court's continuation of the matter, nor did he attempt to compel the trial court to issue a ruling in his case. From these circumstances, we can infer that Appellant himself was awaiting the decision in State v. Gustafson, 76 Ohio St.3d 425. We also note that although Appellant has claimed that the court's delay resulted in prejudice to him, he has failed to articulate such prejudice. Appellant's strongest argument that the delay was prejudicial was that he was denied the benefit of this Court's holding in State v. Gustafson (June 27, 1995), Mahoning App. No. 94 C.A. 232, unreported. However, we have already stated that the record reflects that Appellant was awaiting, without challenge, the Ohio Supreme Court's determination of the viability of our holding in State v.Gustafson. Therefore, any alleged prejudice was as a result of Appellant's own inaction. Inasmuch as there are no hard and fast rules to the reasonableness of delay, we conclude that under the limited circumstances of the present case and noting the state of flux of the law relevant to determining the question of Appellant's double jeopardy challenge, the trial court's delay in ruling was not unreasonable. We therefore affirm the judgment of the trial court. Cox, P.J., Vukovich, J., concurs. APPROVED: _________________________ CHERYL JUDGE

2016-07-06 06:36:18.941007+00

OPINION {¶ 1} Defendant, Russell Terrell, appeals from his conviction and sentence for domestic violence and assault. {¶ 2} The victim in this case, Alice Carter, is the mother of Defendant's two year old son, Hollis Terrell. At the time of this incident Defendant and Carter were separated and were *Page 2 not getting along. They communicated with each other only through third parties in order to avoid confrontations. A few days prior to July 24, 2006, Carter allowed Defendant to use her Sam's Club card to purchase diapers for their son. Carter had given the card to Defendant's aunt, who passed it on to Defendant. {¶ 3} On July 24, 2006, Defendant called Carter several times at her place of employment. Carter talked to Defendant once, but she was busy at work and she hung up the phone on him. A couple of hours later, Defendant came to Carter's place of employment, the Montgomery County Treasurer's Office, which is located at 451 W. Third Street in Dayton. {¶ 4} Carter did not see Defendant approach her work cubicle. Carter's co-worker, Latoya Isabelle, saw Defendant lean over Carter's cubicle and heard Defendant call Carter a bitch, and saw Defendant throw something. Carter was on the phone at the time and she saw an arm reach over her cubicle and fling something at her that hit her in the face and then dropped down onto her desk. That article was the Sam's Club card she had let Defendant use. {¶ 5} Carter's co-worker, Latoya Isabelle, immediately came over to Carter's cubicle and she and Carter discovered that Carter had a small cut above her eye. The Montgomery *Page 3 County Sheriff's Office was notified of the incident and took photographs of Carter's face. {¶ 6} Another of Carter's co-workers, Kathy Littlejohn, was returning from lunch when she got onto the same elevator with Defendant. She thought Defendant seemed angry. Defendant followed Littlejohn into the Treasurer's Office, thinking that he was an angry customer. As Littlejohn was preparing to enter a secured area of the office, she heard an outburst, a man's voice, coming from the area where Carter's cubicle is located. When Littlejohn turned around and looked, she saw Defendant walking quickly out of the Treasurer's Office. {¶ 7} Defendant was subsequently charged via complaints filed in Dayton Municipal Court with one count of domestic violence involving causing physical harm, R.C. 2919.25(A), one count of domestic violence involving making threats of force, R.C. 2919.25(C), one count of assault, R.C. 2903.13(A), one count of menacing, R.C. 2903.22(A), and one count of telephone harassment, R.C. 2917.21(A)(5). The matter was tried to the court. {¶ 8} At trial, Defendant testified that Carter had called his father, and as a result of that call Defendant attempted to return Carter's Sam's Club card to her. Defendant wanted *Page 4 to return the card to Carter without having any contact with her. Defendant went to Carter' place of employment and walked over to Carter's cubicle and tossed the Sam's Club card toward Carter's computer screen, which is an area away from where Carter usually sits at her desk. Defendant did not know at that time that Carter was in her cubicle. Defendant heard the card hit Carter's computer screen, and he had no idea that the card had hit Carter. {¶ 9} At the conclusion of the State's case, and pursuant to Defendant's Crim.R. 29 motion for acquittal, the trial court dismissed three of the five charges including domestic violence (making threats of force), menacing and telephone harassment. The trial court refused to dismiss the remaining domestic violence (causing physical harm) and assault charges. Following the close of all of the evidence, the court found Defendant guilty of those offenses. The trial court merged the offenses for sentencing purposes and sentenced Defendant only on the domestic violence to sixty days in jail, and a one hundred dollar fine plus court costs. The court suspended the sixty day jail term on condition that Defendant complete a four day domestic violence anger management program. {¶ 10} Defendant timely appealed to this court from his conviction and sentence. The trial court stayed execution of *Page 5 Defendant's sentence pending the outcome of this appeal. FIRST ASSIGNMENT OF ERROR {¶ 11} "THE TRIAL COURT SITTING WITHOUT A JURY ERRED BY OVERRULING DEFENDANT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE'S CASE BECAUSE THE EVIDENCE PRESENTED BY THE STATE WAS LEGALLY INSUFFICIENT TO SUSTAIN CONVICTIONS FOR DOMESTIC VIOLENCE AND ASSAULT." SECOND ASSIGNMENT OF ERROR {¶ 12} "THE JUDGMENT OF THE TRIAL COURT SITTING WITHOUT A JURY AS TO COUNTS 1 (ASSAULT) AND 2 (DOMESTIC VIOLENCE: HARM) WAS CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST, THEREFORE, BE REVERSED." {¶ 13} In these related assignments of error Defendant argues that his convictions are not supported by legally sufficient evidence and are against the manifest weight of the evidence because the State failed to prove that he "knowingly" caused physical harm to the victim, Alice Carter. {¶ 14} In State v. Battle, Montgomery App. No. 21644, 2007-Ohio-2977, this court observed: {¶ 15} "{¶ 11} When considering a Crim.R. 29 motion for acquittal, the trial court must construe the evidence in a light most favorable to the state and determine whether reasonable minds could reach different conclusions on whether *Page 6 the evidence proves each element of the offense charged beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261. The motion will be granted only when reasonable minds could only conclude that the evidence fails to prove all of the elements of the offense.State v. Miles (1996), 114 Ohio App.3d 738. {¶ 16} "{¶ 12} A Crim.R. 29 motion challenges the legal sufficiency of the evidence. A sufficiency of the evidence argument challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law. State v. Thompkins, (1997), 78 Ohio St.3d 380. The proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259: {¶ 17} "{¶ 13} `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 *Page 7 essential elements of the crime proven beyond a reasonable doubt.'" {¶ 18} To prove the offenses of which Defendant was convicted, domestic violence in violation of R.C. 2919.25(A) and assault in violation of R.C. 2903.13(A), the State was required to prove beyond a reasonable doubt that Defendant knowingly caused physical harm to another person. "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 person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B) {¶ 19} R.C. 2901.22(E) provides: "When knowledge suffices to establish an element of an offense, then purpose is also sufficient culpability for such an element." R.C. 2901.22(A) states: "A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature." {¶ 20} Defendant readily admits that the uncontroverted evidence in this case shows that he tossed, flung or threw a *Page 8 plastic Sam's Club membership card into Alice Carter's cubicle at work, and that the card struck Carter in the face above the eye, causing a small cut. Defendant argues, however, that given the size, weight and nature of the Sam's Club card he tossed into Carter's cubicle, an article which is neither heavy nor sharp, but rather is very similar to an ordinary credit card, the evidence is insufficient to prove that Defendant's conduct would probably cause an injury to Carter. Accordingly, the evidence is insufficient to prove that Defendant "knowingly" caused physical harm to Carter. {¶ 21} Alice Carter testified at trial that she saw an arm reach over her cubicle wall and fling something at her which turned out to be her Sam's Club card. The card struck Carter in the face just above the eye, causing a small cut. Carter's co-worker, Latoya Isabelle, testified that Defendant leaned over Carter's cubicle, called her a bitch, and threw something. Another co-worker, Kathy Littlejohn, testified that Defendant appeared to be angry when he entered the Treasurer's Office. As Littlejohn was preparing to enter a secured area in the office, she heard an outburst, a man's voice, coming from the area where Carter's cubicle is located. When she turned around and looked, she saw Defendant walking quickly out of the office. *Page 9 {¶ 22} Viewing the totality of this evidence in a light most favorable to the State, as we must, Defendant's attempts to minimize his wrongful conduct by emphasizing the relatively small size of the object he threw are unavailing. While the Sam's Club card Defendant threw into Carter's work cubicle may not be inherently dangerous, the evidence is sufficient to show that it became dangerous because of the way in which it was used by Defendant. A rational trier of facts, the trial court here, could find beyond a reasonable doubt that Defendant purposely caused physical harm to Alice Carter in acting as he did. Purposeful conduct satisfies a requirement that a defendant acted "knowingly." R.C. 2901.22(E). Defendant's convictions are therefore supported by legally sufficient evidence. {¶ 23} "{¶ 23} A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v.Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563, unreported. The proper test to apply to that inquiry is the one set forth in State v.Martin (1983), 20 Ohio App.3d 172, 175: {¶ 24} "{¶ 24} `[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers *Page 10 the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' Accord: State v. Thompkins, supra. {¶ 25} "{¶ 25} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve.State v. DeHass (1967), 10 Ohio St.2d 230. In State v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed: {¶ 26} "{¶ 26} `[b]ecause the factfinder . . . has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.' Id., at p. 4. {¶ 27} "{¶ 27} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. Bradley *Page 11 (Oct. 24, 1997), Champaign App. No. 97-CA-03." Battle, supra. {¶ 28} Defendant argues that the guilty verdicts are against the manifest weight of the evidence because the evidence fails to prove that he "knowingly" caused physical harm to Alice Carter. More specifically, the evidence does not demonstrate that tossing the Sam's Club card into Carter's work cubicle would probably cause or result in physical harm to Carter. In that regard Defendant testified at trial that his intention was to return the Sam's Club card to Carter without having any contact with her. Defendant tossed the Sam's Club card at Carter's computer screen, which is an area away from where Carter would ordinarily be seated at her desk. Defendant heard the card hit the computer screen, and he was not aware when he tossed the card that Carter was even inside her cubicle, much less that the card hit her. {¶ 29} In reality, Defendant is complaining because the trial court did not believe his version of the events. As we previously discussed, the evidence presented by the State, if believed, demonstrates that Defendant appeared angry when he entered the Treasurer's Office, that he approached Carter's cubicle, leaned over the barrier, called Carter a bitch, and flung Carter's Sam's Club card at her that struck her above *Page 12 the eye, causing a small cut. The trial court, sitting as the trier of facts, did not lose its way in this case simply because it chose to believe the State's witnesses and their version of these events. The credibility of the witnesses and the weight to be given to their testimony were matters for the trier of facts, the trial court here, to decide. DeHass. The testimony of the State's witnesses, if believed, is not contrary to Defendant's guilt, and therefore no manifest miscarriage of justice occurred. State v. McDaniel (May 1, 1998), Montgomery App. No 16221. {¶ 30} Reviewing this entire record we cannot say that the evidence weighs heavily against a conviction, that the trial court lost its way in choosing to believe the State's witnesses, or that a manifest miscarriage of justice has occurred. Defendant's convictions are not against the manifest weight of the evidence. {¶ 31} Defendant's assignments of error are overruled. The judgment of the trial court will be affirmed. FAIN, J. And DONOVAN, J., concur. *Page 1

2016-07-06 06:36:16.387947+00

OPINION {¶ 1} The defendant-appellant, Alphonso King, appeals from the judgment of the trial court finding him guilty and sentencing him to a combined seven-year prison term on one count of aggravated vehicular homicide and one count of vehicular homicide, violations of R.C.2903.06(A)(1) and R.C. 2903.06(A)(3), respectively. The convictions were the product of a jury trial that also resulted in King being found not guilty of a second count of aggravated vehicular homicide. In his five assignments of error, he challenges (1) the weight and sufficiency of the evidence to support his convictions; (2) the admission into evidence of test results from blood samples taken from him after the automobile accident that gave rise to the charges; and (3) the permitting of testimony from the victim's wife concerning the emotional and financial impact of the loss of her husband. For the following reasons, we find no merit in any of the assignments of error and thus affirm. FACTS {¶ 2} The accident occurred on Columbia Parkway on a wet November 2000 morning. King and his friend, Leroy Goodrum, had been at a nightclub called Annie's and were traveling westbound in the outermost lane at approximately 3:00 a.m. The speed limit was forty-five miles per hour. According to the state's experts, King was driving his Q-45 Infiniti automobile at seventy-five miles per hour when he lost control of his vehicle. The Infiniti crossed the center lane, struck the guardrail twice, and then crashed into a Nissan Sentra that was traveling in the eastbound lane at approximately thirty-eight miles per hour. The driver of the Sentra, Sammy Wolfe, died from his injuries later that night at University Hospital. King, who suffered a fractured skull and broken bones in his jaw, hip, and ribs, was first treated at University Hospital before being transferred to Drake Hospital for a prolonged period of rehabilitation. {¶ 3} Cincinnati Police Officer Charles Beebe, an accident investigator, arrived at the scene of the accident at approximately 4:05 a.m. Beebe testified (at the trial, but not at the suppression hearing1) that he could smell the odor of alcohol on King before he was transported away by ambulance. Beebe communicated this information to Officer Paul Grein, who attempted to have the paramedics on the scene draw blood from King. The paramedics refused, however, because of King's critical status. Beebe therefore dispatched Police Specialist Greg Kaufman to University Hospital to obtain a sample of King's blood. {¶ 4} Kaufman arrived at the hospital at approximately 4:30 a.m. and found King lying on a gurney, attended by medical personnel. Kaufman, who did not have a warrant, waited and observed. Kaufman testified that King was wearing a neck brace, with tubes extruding from either his mouth or nose, but that he was able, when asked by the nurse, to write down his telephone number. It was Kaufman's impression that King, despite his physical condition, was alert and his mental faculties were intact. The nurse who was attending to King, Jill Bowman, testified that King had received narcotic pain medication, Fentanyl, but that she still considered him fully oriented to time and place. According to Bowman, before taking King's blood, she performed a "Glas[g]ow Coma Test" and scored him at the highest number of the scale, meaning that she believed that King fully understood what was being said to him. {¶ 5} Kaufman testified at the suppression hearing that when he arrived at the hospital, his purpose was not to place King under arrest. However, after waiting for the physicians to leave, Kaufman read to King first his Miranda rights and then recited to him language from the ALS (administrative license suspension) form designed to inform citizens of the implied-consent law under R.C. 4511.191. The first sentence that Kaufman read to King from the ALS form stated, "You are now under arrest for operating a vehicle under the influence of alcohol, a drug of abuse, or both alcohol and a drug of abuse." {¶ 6} After reading additional language from the form, Kaufman asked King if he would consent to a blood sample being drawn. According to Kaufman, King responded with an unintelligible grunt. Kaufman testified that he asked for King's consent a second time, and that again King grunted unintelligibly. Kaufman's impression was that King was being deliberately obtuse. Bowman then interceded, asking the question herself, and King, according to both Kaufman and Bowman, responded by clearly articulating his approval. Kaufman testified that he did not ask King to sign the form, which provided a space for that purpose, because King's arms were by that time strapped to the gurney. {¶ 7} The blood sample was drawn at approximately 5:00 a.m. After analysis the blood-alcohol content of the sample was shown to be .10 percent grams of alcohol per one hundred milliliters of blood, or right at the minimum prohibited level. The chief toxicologist for the Hamilton County Coroner's Office, Dr. Robert Powers, testified that alcohol dissipates from the blood at a rate of .02 percent per hour. He also testified that the "outside window" of the margin for error for the testing was five percent, but that his office's quality control reduced the margin to "actually two percent or under." A separate blood sample taken by hospital personnel as part of King's medical treatment after the accident was analyzed by a toxicologist from the Health Alliance Laboratory, who found a blood-alcohol level of .10 to .104 grams of alcohol per one hundred milliliters of blood. {¶ 8} King was arrested eighteen days later and charged with two counts of aggravated vehicular homicide. King did not testify during his trial. His friend Goodrum testified that King did not appear intoxicated when they left Annie's together, and that he remembered the sensation of King's Infiniti hitting a wet spot before the vehicle spun out of control. (Goodrum was later knocked unconscious when the car struck the guardrail.) King also produced testimony from Cincinnati Police Officer Ryan Hudson that Columbia Parkway was prone to overflow during heavy rains, and that the police had, on a number of occasions in the past, shut down the exact area where the accident occurred due to hazardous water conditions. Another friend of King's, Verdial Lewis, who was driving in a separate vehicle ahead of the Infiniti, testified that the "traction control" light of his vehicle had earlier become illuminated over the same patch of roadway where King's vehicle spun out. Lewis also testified that King could not possibly have been driving seventy-five miles per hour, as he himself had slowed down after spotting a police car on the berm shortly before encountering the wet spot, and that the Infiniti had not appeared to gain ground. Another friend of King's, Demetrias Cromwell, was driving a third vehicle, this one behind King, and he estimated King's speed at between 55 and 60 miles per hour. Cromwell also denied that King had given any appearance of being intoxicated before leaving Annie's. Finally, a traffic-accident reconstructionist hired by the defense testified that he had calculated King's speed at between 61 and 64 miles per hour, and also noted that the oversized tires on the Infiniti would have caused its speedometer to report a speed of five miles slower than the actual speed. {¶ 9} In addition to the testimony that King was under the influence, the state presented the testimony of Beebe, as an accident reconstruction expert, that the "critical speed" for the roadway that morning was 74 miles per hour, and that, according to his calculations, King must have been going at least 75 miles per hour to have caused the accident. Such a speed, Beebe stated, was clearly unreasonable given the conditions. The state also presented the testimony of Wolfe's widow, Mary Beth Wolf, who stated that she and their young son would have been in the car with her husband had she not contracted an ear infection. Mary Beth Wolfe was further allowed to testify how the loss of her husband had affected her, how his death had meant the loss of his income, and how the couple had had no life insurance policy. SUFFICIENCY AND WEIGHT OF THE EVIDENCE {¶ 10} In his first and second assignments of error, King challenges the weight and sufficiency of the evidence to support his convictions. As noted, King was found guilty of one count of aggravated vehicular homicide (causing the death of another as the proximate result of violating R.C. 4511.19, which proscribes driving while under the influence) and one count of simple vehicular homicide (causing the death of another by driving negligently). See R.C. 2903.06(A)(1) and (A)(3). {¶ 11} The issues of weight and sufficiency involve two separate tests on review. Sufficiency is essentially a test of adequacy and asks not whether the state's evidence is to be believed, but, if it is believed, whether it is sufficient to support a conviction. See Statev. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541 (Cook, J., concurring). In contrast, a weight-of-the-evidence review requires that the appellate court enter the jury box, sitting as a "thirteenth juror" and asking itself if the other members of the panel have either lost their way or created such a manifest miscarriage of justice that their verdict must be reversed and a new trial ordered. Id. at 387, 678 N.E.2d 541. The discretionary power to grant a new trial, however, may only be exercised in the exceptional case in which the evidence weighs heavily against a conviction. Id. {¶ 12} King argues that the blood samples taken from him were insufficient to establish a violation of R.C. 4511.19(A), given the margin of error associated with the tests for blood-alcohol content. We disagree that the margin of error discussed by Dr. Powers (which was described by him as actually two percent or lower) rendered the test results unreliable as a matter of law. As noted, the test for sufficiency requires that we give the state the benefit of all reasonable inferences from its evidence, and so we cannot assume that these particular test results were affected by error. The evidence of the rate of dissipation and the timing of the sample also supports an inference that the results would have been higher had the sample been taken sooner. Significantly, the other test results showed a range of alcohol content between .10 to .104 milligrams of alcohol per one hundred millimeters of blood. There was also testimonial evidence to support the inference that King was intoxicated — that of Beebe and Kaufman that they smelled the odor of alcohol on his person directly after the accident and in the hospital. Considering all these factors, we hold that the state presented sufficient evidence to get the case to the jury on whether King was driving while intoxicated. {¶ 13} King's argues that his convictions were contrary to the manifest weight of the evidence in view of the testimony of Goodrum, Lewis, and Cromwell that he did not appear intoxicated and that he was not speeding on Columbia Parkway. In King's reckoning, their testimony should have been accorded greater weight than the blood-sample evidence, the testimony of Beebe and Kaufman that he smelled of alcohol, and Beebe's testimony, as an expert on accident reconstruction, that the Infiniti had to have hit the wet spot at 75 miles per hour to have spun so wildly out of control. It is well settled, however, that the credibility of witnesses is a determination uniquely within the province of the jury, which has had the opportunity to observe their demeanor and make uniquely human assessments of their trustworthiness. As pointed out in Thompkins, to speak of the weight of the evidence is not to describe a mathematical formulation, but, rather, to examine the effect of the evidence in inducing belief. Id. at 387, 678 N.E.2d 541. {¶ 14} Here the jury, after listening to the testimony of Goodrum, Lewis, and Cromwell, obviously chose not to believe their testimony that King was not intoxicated after a night out at a bar with these same three friends, when the medical tests indicated otherwise, or that King was observing the speed limit when he caused the accident that killed Wolfe, when the state's expert testified to the contrary that the accident required a speed of 75 miles per hour. Although there was certainly evidence on either side in this case, we cannot say, even sitting as a thirteenth juror, that the jury lost its way or committed a miscarriage of justice in convicting King, or that this is the exceptional case in which the evidence weighed heavily against a conviction. {¶ 15} King's first and second assignments of error are, accordingly, overruled. MOTION TO SUPPRESS {¶ 16} In his third assignment of error, King argues that "it is clear" that he did not consent to have his blood drawn in the hospital. In this regard, he focuses on Kaufman's testimony that he grunted his responses, arguing that his grunting was not a "clear, unambiguous consent to draw blood." He argues further that the blood tests should have been suppressed even if it is assumed that he did give his consent, because Ohio's implied-consent law requires the suspect to be placed under arrest in order for any consent to be valid. The state on the other hand, argues that in this case King gave his actual, not implied, consent to the taking of a blood sample, and therefore this is not a case implicating Ohio's implied-consent law. {¶ 17} We address first the threshold factual issue whether King actually indicated his consent to have the police draw a blood sample. King's argument that he did not — that he merely grunted indecipherable responses — ignores entirely the testimony that he verbalized a positive response after Nurse Bowman interceded and asked for his consent. Both Kaufman and Bowman testified that King did, in fact, verbally give his permission. In overruling King's motion to suppress, the trial court emphasized Bowman's testimony that King consented when she asked for his permission take his blood sample, as well as her testimony that King was "oriented to time, place and situation." Because the trial court's finding of a verbalized consent was supported by competent, credible evidence, and no clear error appears in its statements of historical fact, we are bound to accept its findings.Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657; Statev. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172. {¶ 18} We must now independently determine, as a matter of law, and without deference to the trial court's conclusions, whether King's verbalization of his consent to the search was sufficient to justify the taking of his blood. Id. As noted, King contends that his consent, even if verbalized, was invalid under Ohio's implied-consent law because Kaufman had not placed him under arrest. This assertion is based upon Kaufman's testimony, at the suppression hearing, that his purpose at the hospital that morning was not to place King under arrest. As we have also noted, however, the first line of the ALS form that Kaufman then read to King informed him that that he was "now under arrest." {¶ 19} R.C. 4511.191(A) provides that a person operating a vehicle in Ohio on "a highway or any public or private property used by the public for vehicular travel or parking" is deemed to have given consent for the administration of chemical tests to determine a level of alcohol consumption or drug use. The same statutory section makes clear that the police can only use such implied consent after the person has been arrested for driving under the influence. Id. The legislative purpose is to make refusals to take such tests after a lawful arrest a basis for administrative license suspension. The law is not intended to give police the authority to stop people and administer chemical tests before making an arrest based on probable cause. See, generally, Painter, Ohio Driving Under the Influence Law (2003 Ed.), 8.1-8.21. {¶ 20} Given the importance of an arrest for DUI in triggering the statutorily implied consent, an entire body of case law has arisen on the arrest requirement under R.C. 4911.191(A). Generally, four elements must coalesce in order for their to be an arrest under Ohio law: (1) an intent to arrest, (2) under real or pretended authority, (3) accompanied by some form of actual or constructive seizure or detention, (4) so that the person understands that he or she is not free to leave. State v. Darrah (1980), 64 Ohio St.2d 22, 26, 412 N.E.2d 1328. In this case, the trial court made no factual or historical findings on this issue of an arrest. Although King was obviously not going anywhere with a fractured skull and broken jaw, hip, and ribs, not to mention the fact that he was intubated and sedated, it is unclear whether Kaufman would have allowed King, had he been able, to get up and walk away. {¶ 21} Courts are divided on whether the mere rote recitation of language on the ALS form to a suspect, informing him that he is under arrest, is sufficient to imply an actual intent to arrest. Some courts have held that, in the absence of contradictory evidence, the rote recitation of the form is enough to manifest intent to arrest and to constitute a constructive seizure. See State v. Barr (Apr. 26, 1995), 9th Dist. No. 16822. Barr is not helpful here, however, because there is contrary evidence — Kaufman's statement that his purpose in going to the hospital was not to place King under arrest. Other courts, including this court, have held that a rote recitation of the ALS form is not sufficient of itself to constitute a valid arrest. State v Vickrey (July 5, 1989), 1st Dist. No. C-880336.2 A separate, valid arrest must actually precede the reading of the ALS form because the mere reading of the form is not enough to constitute an arrest to trigger the implied consent. See State v. Rice (1998), 129 Ohio App.3d 91, 97-99,717 N.E.2d 351(collecting cases).3 {¶ 22} As noted, the state argues that the issue of whether there was an arrest, and therefore a triggering of the implied consent law, is simply irrelevant because in this case King gave his actual consent to the test. We agree with the proposition that actual, voluntary consent to a blood test to determine alcohol content obviates the need for the state to establish the prerequisites of R.C. 4511.191. See Fairfield v.Regner (1985), 23 Ohio App.3d 79, 85, 491 N.E.2d 333. Indeed, actual, voluntary consent by a citizen obviates the need for probable cause for any search. Still, the state's argument begs the question — was the consent King gave voluntary? As noted by the court in Regner, "`if under all the circumstances it has appeared that the consent was not given voluntarily — that it was coerced by threats or force, or granted only in submission to a claim of lawful authority [as advising a suspect of the consequences of failure to submit to a chemical test * * *] — then we have found the consent invalid and search unreasonable.'" Id. at 84-85, 491 N.E.2d 333, quoting and incorporatingSchneckloth v. Bustamone (1973), 412 U.S. 218, 233, 93 S.Ct. 2041. {¶ 23} Several courts have reversed convictions where the consent appeared to have been more in the nature of acquiescence or submission to authority after the suspect was erroneously read the ALS warning without, in fact, being under arrest. See, e.g., State v. Gottfried (1993), 86 Ohio App.3d 106, 619 N.E.2d 1185; State v. Chard (Feb. 24, 1984), 6th Dist. No. L-83308; State v. Szalai (1983), 13 Ohio Misc.2d 6,468 N.E.2d 396; see, also Vickrey, supra. 4 In Regner, the court found that the defendant had voluntarily consented to a blood draw free from coercion or constraint In that case, however, the ALS form was not read to the suspect — the blood was drawn in the ambulance after Regner had been told that she was not under arrest, that she could refuse to allow a sample to be withdrawn, and that her consent must be voluntary, to which she responded, "You can do anything you want. You can take anything you want." {¶ 24} Here, King was told, pursuant to the language read to him from the ALS form, that he was under arrest and that he had to submit to the test or violate the law. Under such circumstances, it is difficult to imagine that the consent he gave was voluntary. Indeed, Kaufman's own testimony that King was playing games to avoid the questioning by grunting, would strongly indicate that he was not eager to volunteer his consent. We do note, however, that King did not testify at the suppression hearing, and therefore the record does not contain any testimony from him that he felt coerced into giving his consent after being read the ALS form. The burden is on the state, however, not King, to demonstrate a voluntary consent to a warrantless search. See Statev. Denune (1982), 82 Ohio App.3d 497, 612 N.E. 768.5 {¶ 25} The state next argues, alternatively, that consent of any sort, actual, implied, or voluntary, was not legally necessary because the trial court found that the drawing of blood was justified under the evanescent-evidence exception established in Schmerber v. California (1966), 364 U.S. 757, 86 S.Ct. 1826. See, also, Cupp v. Murphy (1973),412 U.S. 291, 93 S.Ct. 2000. In Schmerber, the petitioner challenged his conviction for driving while intoxicated upon the basis that the warrantless seizure of his blood, over his objection, violated his Fourth Amendment rights. Although rejecting his claim, the Supreme Court held that a warrantless search that intruded into the human body was not justifiable as a search incident to a lawful arrest. But the warrantless seizure could be justified, the Court held, based upon the evanescent nature of the evidence — the fact that the level of alcohol in blood decreased with the passage of time. Id. At 779, 86 S.Ct. 1826. Because of the fleeting nature of the evidence, the time necessary to obtain a warrant, and the prior of establishment of probable cause to justify an arrest, the Court upheld the warrantless seizure of the petitioner's blood as reasonable under the Fourth Amendment.6 {¶ 26} Although there was an arrest in Schmerber, the Court did not make its holding dependent upon the fact that the defendant had been arrested, only that there was probable cause for the DUI arrest. (As noted, the seizure of blood was held not to be an incident of the arrest.) Consequently, as one state supreme court has recently noted, "there now appears to be universal agreement among the courts that have addressed the question that an arrest in not integral to the Schmerber holding and, consequently, that a warrantless extraction of blood from a driver lawfully suspected of DUI, does not violate the [F]ourth [A]mendment even in the absence of an arrest or actual consent." Statev. Entrekin (2002), 98 Haw. 221, 230, 47 P.3d 336 (citing cases); see, also, State v. Murray (2001), 271 Kan. 223, 228-232, 21 P.3d 528 (citing cases). Schmerber is thus held to present only a three-prong test in order to determine whether blood alcohol evidence can be take from a suspect without consent and without a warrant: "1) there must be exigent circumstances in which the delay necessary to obtain a warrant would threaten the destruction of the evidence; (2) the officer must have probable cause to believe that the suspect has been driving under the influence of alcohol; and (3) the procedures used to extract the blood must be reasonable." Murray at 227, 21 P.3d 528. {¶ 27} Here, officers testified at the suppression hearing that there was not sufficient time to obtain a warrant for the blood sample. The blood sample was drawn by trained medical personnel using medically acceptable procedures. The determinative question becomes, then, whether the police had probable cause to suspect that King was guilty of driving while intoxicated before his blood was seized. As noted, Beebe, the officer at the scene who had the most contact with King, did not testify at the suppression hearing. Officer Grein testified, however, "Officer Beebe had told me he smelled alcohol on [King's] person." Although this was hearsay, such a statement is admissible at a suppression hearing and may be used to support a finding of probable cause. State v. Woodring (1989), 63 Ohio App.3d 79, 577 N.E.2d 1157. Furthermore, Kaufman testified at the hearing that he had deliberately drawn near to King at the hospital to confirm the fact that he smelled of alcohol, a smell he described as that of "an alcoholic beverage, like a beer smell * * *." The accident, as we have described, occurred after King's vehicle spun wildly out of control in the early morning hours. {¶ 28} We hold that probable cause exists to arrest for driving while under the influence when in the early morning hours a vehicle clearly goes out of control, there is an accident, and the driver has the odor of alcoholic beverages on his breath. {¶ 29} Accordingly, regardless of the issues involving consent and the application of the Ohio implied-consent law, the seizure of King's blood by the police was justified under Schmerber given the evanescent nature of the evidence and given that the police had probable cause to arrest King for driving under the influence. As this court has previously noted, "Ohio's implied-consent statute does not create a right of refusal or expand on the constitutional rights of a person suspected of driving under the influence." State v. Carter (Nov. 5, 1999), 1st Dist Nos. C-980942, C-980943, and C-980944. Further, as we also noted inCarter, provided that there is no constitutional violation involved in the taking of a blood sample, compliance with the procedures set forth in R.C. 4511.191 is not a requirement for the admissibility of the blood test results. Even assuming there had been a statutory violation, unless the violation implicated King's constitutional rights under the Fourth and Fourteenth Amendment, the test results were not subject to the exclusionary rule. See Hilliard v. Elfrink (1996), 77 Ohio St.3d 155,672 N.E.2d 166; Painter, supra, at 11.47. {¶ 30} King's third assignment of error is overruled. VICTIM-IMPACT TESTIMONY {¶ 31} In his fourth assignment of error, King argues that the trial court erred by admitting into evidence the testimony of Wolfe's widow regarding the emotional and financial impact of her husband's death. Initially we note that King's trial attorney did not object to the specific testimony now challenged by King. Without an objection by defense counsel, the trial court was under no responsibility to suasponte strike the testimony. When counsel did object to such testimony, the objection was properly sustained and the testimony was stricken. Any error in failing to challenge the testimony when it was offered rests clearly with King's trial counsel and gives rise, if at all, to a claim of ineffective assistance of counsel, not a claim of evidentiary error by the trial court. The assignment of error is overruled. HEALTH ALLIANCE TEST RESULTS {¶ 32} In his fifth and final assignment of error, King claims that the trial court erred by admitting into evidence the results of the blood test conducted by the Health Alliance Laboratory. He claims that the actions of state employees at the hospital in securing the results constituted a "de facto" search by the police, implicating his rights under the Fourth and Fourteenth Amendments. We have previously held, however, that the state was entitled to a warrantless seizure of King's blood, so that even if we were to accept the premise of King's argument, we would have no basis to hold that his constitutional rights had been violated. {¶ 33} Accordingly, all five of King's assignments of error are overruled and the judgment of the trial court is affirmed. Judgment affirmed. HILDEBRANDT, P.J., concurs. PAINTER, J., concurs separately. Painter, J. concurring. {¶ 34} Judge Gorman's analysis is flawless. We are, however, breaking new ground, at least in Ohio. {¶ 35} This is an unusual case. We have held that the driver's consent was not voluntary, because he was coerced, as a matter of law, by the reading of the ALS warnings. That is correct. {¶ 36} We next hold that absent consent, if the officers have probable cause to arrest — whether or not an actual arrest occurs — they may draw blood without a warrant, if exigent circumstances exist. This holding would not have been possible before the legislature removed the words "no test shall be given" from the implied-consent law — because the statute indicated that following the implied-consent formula was the only way to obtain a test. This language is now gone, allowing the result here. {¶ 37} We also hold that probable cause existed under the facts of this case: an accident, after 3:00 a.m., a vehicle out of control, and the driver smelling as if he had been drinking. The obviously erratic driving, coupled with the odor, is sufficient to constitute probable cause. 1 As will be discussed infra with respect to the issues surrounding King's motion to suppress, Beebe was not among the officers called to testify at the suppression hearing. 2 Since Kaufman also read King his Miranda rights in the hospital, it should also be pointed out that this court has rejected as well the proposition that merely informing a suspect of his Miranda rights is tantamount to an arrest. Vickrey, cited in the text, relying upon Statev. Barker (1972), 53 Ohio St.2d 135, 372 N.E.2d 1324. 3 This court has rejected, without analysis or discussion, the proposition that "an arrest for driving under the influence is a pre[-]requisite for the administration of a breath test pursuant to R.C.4511.191." State v. Tonne (Sept. 24, 1999), 1st Dist. No. C-980710. InTonne, though, the suspect was "taken" by the police officers to the police station prior to the breath test being administered, so it was quite clear in that case that there had been a preceding arrest. 4 In Vickrey, this court held that a mere recitation of the ALS form language, telling the suspect that she was under arrest when she was not, was insufficient to constitute an arrest and thus trigger the running of the time limitations for a speedy trial under R.C.2945.71(B)(2). Although concurring in this result, Judge Hildebrandt wrote separately to express his concern on an issue that was not raised in the appeal — whether the erroneous statement in the ALS form that Vickrey was under arrest vitiated her consent to the officer's taking her blood sample. 5 The state's burden would appear to be only to show that the consent was voluntary and not necessarily knowing and intelligent, which is the standard reserved for waivers of due process trial rights. SeeRegner, cited in text, at 85, 491 N.E.2d 333. But see Vickrey, cited in the text (Hildebrandt, J. concurring separately) (consent to a blood test must be "understanding and intelligent"), and State v. Szalai (1983),13 Ohio Misc.2d 6, 468 N.E.2d 396, citing City of Lakewood v. Smith (1965), 1 Ohio St.2d 128, 205 N.E. 388 (waiver must be understanding and intelligent). Even if the state need only show that the consent was voluntary, however, and not necessarily understanding and intelligent, the circumstances must still demonstrate that the consent was more than just an acquiescence or involuntary submission to authority. 6 The Court has made clear that the procedure for the removal of bodily fluids and the retrieval of ingested evidence must be relatively harmless. The forced ingestion of an emetic in an attempt to retrieve two swallowed capsules was viewed by the Court as too intrusive in Rochinv. California (1952), 342 U.S. 165, 72 S.Ct. 205. In Briethaupt v.Abram (1957), 352 U.S. 432, 77 S.Ct. 408, however, the Court upheld the drawing of blood from an unconscious driver who was suspected of driving under the influence, observing that the withdrawal of blood by a trained professional was neither brutal nor offensive. After Schmerber andBriethaupt, when the blood sample is drawn by a medical professional in accordance with accepted medical practice, the manner of the search is reasonable for purposes of the Fourth Amendment.

2016-07-06 06:36:16.425245+00

OPINION {¶ 1} Defendant-appellant, Robert E. Wagerman, appeals the denial of his motion to dismiss a charge of Failure to Comply with an Order or Signal of a Police Officer by the Warren County Court of Common Pleas and subsequent conviction thereof. We affirm. {¶ 2} On January 8, 2006 at approximately 3:38 a.m., a police officer observed appellant traveling eastbound at a high rate of speed on State Route 63 near the Warren County/Butler County line. The officer engaged his overhead lights and began to follow appellant. Appellant ran a red light at the State Route 63 and northbound I-75 ramp, nearly *Page 2 striking a vehicle at the intersection. Appellant entered the ramp and merged onto northbound I-75, increasing his speed to over 100 mph. The officer continued to follow appellant with his overhead lights and siren activated. Appellant exited at State Route 122, struck a guard rail on the ramp, and ran a stop sign at the bottom of the ramp. Appellant drove eastbound on State Route 122 towards State Route 741. While pursuing appellant on State Route 122, Officers observed appellant drive across the highway divide towards oncoming traffic without his headlights on and come close to crashing into several vehicles on the road. In the area of State Route 122 and State Route 741, officers placed "stop sticks" in the road, which appellant drove his car through, causing the tires to deflate. Appellant's car subsequently crashed and appellant began to flee on foot. Appellant was then apprehended by the police. {¶ 3} On January 12, appellant came before the Lebanon Municipal Court for a preliminary hearing. Having no subject matter jurisdiction to hear felony cases, the Lebanon Municipal Court bound over one count of Failure to Comply with an Order or Signal of a Police Officer ("Failure to Comply") in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a third-degree felony, to the Warren County Court of Common Pleas. Further, because several acts of the high-speed chase occurred along State Route 122 in Warren County, but outside the geographic jurisdiction of the Lebanon Municipal Court, appellant was charged with three misdemeanors in the Warren County Court. Appellant was charged with one count of Driving Under Suspension in violation of R.C. 4510.16(A), one count of Operating a Vehicle with Disregard to Public Safety ("Reckless Operation") in violation of R.C. 4511.20, and one count of Failure to Stop After an Accident Involving Injury to Persons or Property in violation of R.C. 4529.021(A). Like the Lebanon Municipal Court, the Warren County Court does not have subject matter jurisdiction to hear felony cases. On January 31, 2006, appellant entered a plea of guilty to each misdemeanor count in the Warren County Court and was sentenced to *Page 3 three days in jail, a $350 fine, a six-month driver's license suspension, and two years of basic probation. {¶ 4} On February 6, 2006, appellant was indicted in the Warren County Court of Common Pleas for the felony Failure to comply charge that was bound over from the Lebanon Municipal Court. Appellant moved to dismiss the felony charge, claiming double jeopardy and that he had already been prosecuted for the same course of conduct. The Warren County Court of Common Pleas denied appellant's motion and appellant entered a plea of no contest. Appellant was sentenced to one year in prison with credit for 108 days served, a two-year license suspension, and attorney's fees and costs. {¶ 5} Appellant timely appealed, raising two assignments of error. We will first address appellant's second assignment of error. {¶ 6} Assignment of Error No. 2: {¶ 7} "APPELLANT'S CONVICTION FOR RECKLESS OPERATION BARRED PROSECUTION FOR FELONY FAILURE TO COMPLY." {¶ 8} Appellant argues in his second assignment of error that felony failure to comply constitutes the same offense as reckless operation. Specifically, appellant argues that since he was prosecuted and convicted of reckless operation, a subsequent prosecution for felony failure to comply is a violation of double jeopardy. {¶ 9} The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides that, "[n]o person shall * * * be subject for the same offense to be twice put in jeopardy of life or limb." Similarly, Section 10, Article I, Ohio Constitution provides, "No person shall be twice put in jeopardy for the same offense." To determine if a prior conviction is a bar to a subsequent prosecution, a court applies the test set forth in Blockburger v. United States (1932), 284 U.S. 299. "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to *Page 4 be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. * * * A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Id. at 304. {¶ 10} In State v. Best (1975), 42 Ohio St.2d 530, the Ohio Supreme Court set out four factors to consider when reviewing claims of double jeopardy: 1) whether there was a prior prosecution in the same state for the identical offense; 2) whether the same person was charged relative to the first prosecution; 3) whether the same parties were involved in both prosecutions; and 4) whether the first offense prosecuted was of such a nature as to constitute a bar to the successive prosecution. Id. at 533. {¶ 11} "If application of the Blockburger [(1932), 284 U.S. 299], test reveals that the offenses have identical statutory elements or one is a lesser included offense of the other, the subsequent prosecution is barred." State v. Tolbert (1991), 60 Ohio St.3d 89, paragraph one of the syllabus. However, "a mere overlap in proof between two prosecutions does not establish a double jeopardy violation." United States v.Felix (1992), 503 U.S. 378, 386, 112 S.Ct. 1377. {¶ 12} Reckless operation under R.C. 4511.20 provides, "No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property." {¶ 13} Failure to comply under R.C. 2921.331(B) provides, "No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person's motor vehicle to a stop." For the charge to constitute a felony, R.C. 2921.331(C)(5)(a)(ii) requires, "A violation of * * * this section is a felony of the third degree if the jury or judge as trier of fact finds any of the following by proof *Page 5 beyond a reasonable doubt: (ii) The operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property." {¶ 14} Appellant claims his subsequent prosecution for failure to comply is barred by double jeopardy because he was convicted of reckless operation under the same course of conduct. Appellant relies onState v. Knaff (1998), 128 Ohio App.3d 90. In Knaff, the First District held that it is impossible to commit the felony version of failure to comply without also committing reckless operation. Id. at 94. See, also,State v. Morton, Montgomery App. No. 20358, 2005-Ohio-308; State v.Fairbanks, Ross App. No. 05CA2870, 2006-Ohio-3530, appeal accepted for review, 111 Ohio St.3d 1491, 2006-Ohio-6171. {¶ 15} However, this court addressed the issue of whether reckless operation is a different offense than failure to comply in State v.Rupp, Butler App. No. CA2001-06-135, 2002-Ohio-1600. The appellant inRupp was charged with felony failure to comply following a slow speed chase. Id. The appellant argued that the trial court erred by not instructing the jury on reckless operation because, he claimed, reckless operation is a lesser included offense of failure to comply. Id. In affirming appellant's conviction, this court held that the trial court did not err by failing to instruct on reckless operation because reckless operation is not a lesser included offense of failure to comply and contains different statutory elements. Id at 5. {¶ 16} In Rupp, this court stated, "The crime of 'willful and wanton disregard of safety on highways,' which appellant refers to as 'reckless operation' is not always and necessarily included within the third degree felony 'failure to comply.' R.C. 4511.20 [reckless operation] requires the state prove operation of a motor vehicle with 'willful or wanton disregard for the safety of persons or property.' R.C. 2921.331(B) [failure to comply] states that 'no person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal' to stop. A third degree felony conviction under R.C. 2921.331(B) *Page 6 requires proof that the defendant operated a motor vehicle so as to cause a 'substantial risk of serious physical harm to persons or property,' regardless of the defendant's mental state with respect to persons or property. Conceivably, a defendant could willfully fail to comply with a police officer's signal, and, without acting with 'willful or wanton disregard of the safety of persons or property,' cause 'a substantial risk of serious physical harm to persons or property.' Thus, it is possible to commit the third degree felony offense under R.C. 2921.331(B), without violating R.C. 4511.20." Id. See, also, State v.Jackson, Cuyahoga App. No. 80421, 2002-Ohio-5329, ¶ 12-16; and State v.Dowd, Mahoning App. No. 03-MA-84, 2004-Ohio-5787. {¶ 17} Further, in Perkins v. State of Ohio (S.D.Ohio 2006), No. 2:05-CV-189, the United States District Court for the Southern District of Ohio, Eastern Division, examined the exact issue at bar. That court stated, "An examination of the elements of each offense reveals that R.C. 2921.331(B), failure to comply, requires that defendant flee a police officer after receiving a signal from the officer to stop. Such elements are not present in reckless operation, R.C. 4511.20. Similarly, reckless operation contains an element not present in failure to comply, namely that defendant showed a 'willful and wanton disregard of [sic] the safety of persons or property.' Each charge requires the state to prove an element not present in the other charge. It is clear that the two provisions have separate elements, and do not serve to put defendant in jeopardy twice for the same action." Id. at 4. {¶ 18} Appellant focuses on the "willful or wanton disregard for the safety of persons or property" element for reckless operation and equates it to the "caused a substantial risk of serious physical harm to persons or property" element included in felony failure to comply. Appellant contends that these are functionally equivalent mental states that make reckless operation a lesser included offense of failure to comply. Appellant's focus is misplaced though because, as this court noted in Rupp, the element appellant cites for reckless *Page 7 operation is a requisite mental state, while the element appellant claims is equivalent in failure to comply does not require proof of the defendant's mental state. 2002-Ohio-1600 at ¶ 26. In Rupp, this court stated that "willful or wanton disregard for the safety of persons or property" is the requisite mental state for reckless operation while a "felony conviction [for failure to comply only] requires proof that the defendant operated a motor vehicle so as to cause a 'substantial risk of serious physical harm to persons or property,' regardless of the defendant's mental state with respect to persons or property." Id. Based on the foregoing, it is clear that reckless operation and failure to comply each require proof of a different statutory element which the other does not. {¶ 19} Further, there are no facts in the record of the Warren County Court to show the basis of appellant's guilty plea to reckless operation. Without facts in the record to show the basis for appellant's the guilty plea, this court cannot determine what facts constituted the reckless operation charge that appellant pled guilty to and what facts constituted the failure to comply charge that appellant pled no contest to. See State v. Dowd, Mahoning App. No. 03-MA-84, 2004-Ohio-5787, ¶ 13. As a result, it is unclear whether appellant was being separately charged for the same act or separate acts during the high-speed chase. Id. at ¶ 14. {¶ 20} Based on the foregoing, failure to comply and reckless operation do not constitute the same offense because they do not contain the same statutory elements; nor is reckless operation a lesser included offense of failure to comply. Accordingly, the subsequent charge of failure to comply was not barred by appellant's previous conviction for reckless operation. {¶ 21} Appellant's second assignment of error is overruled. {¶ 22} Assignment of Error No. 1: {¶ 23} "THE TRIAL COURT WAS WITHOUT JURISDICTION WHERE ANOTHER *Page 8 POLITICAL SUBDIVISION HAD ALREADY PROSECUTED THE APPELLANT FOR THE SAME COURSE OF CONDUCT." {¶ 24} Appellant argues in his first assignment of error that his prosecution for failure to comply in the Warren County Court of Common Pleas is barred by double jeopardy because appellant was already prosecuted for the course of conduct in the Warren County Court. Appellant claims that since the charge for failure to comply originated in the Lebanon Municipal Court and was referred to the Warren County Court of Common Pleas, an equivalent court, the Warren County Court, had already prosecuted appellant for the course of conduct. Specifically, appellant argues that only one jurisdiction can prosecute a defendant for a single course of conduct and since the Warren County Court proceeded on the charges, the Lebanon Municipal Court's proceedings, and subsequent referral to the Common Pleas Court, were barred. Appellant therefore claims that his motion to dismiss the Lebanon Municipal Court proceedings should have been granted. {¶ 25} R.C. 2901.12(H) provides, "When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred. Without limitation on the evidence that may be used to establish the course of criminal conduct, any of the following is prima-facie evidence of a course of criminal conduct: * * * (3) The offenses were committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective." (Emphasis added.) {¶ 26} The course of conduct in this case occurred within Warren County. However, the high-speed chase occurred within separate municipal jurisdictions in Warren County that each had criminal subject matter jurisdiction. The chase began near the intersection of I-75 and State Route 63, in the jurisdiction of the Lebanon Municipal Court, and continued north to State Route 122, in the jurisdiction of the Warren County Court. R.C. 2901.12(H) allows *Page 9 appellant to be prosecuted in either jurisdiction for the entire course of conduct; however it does not require that all charges for the conduct be prosecuted in a single jurisdiction. {¶ 27} Accordingly, we must now address constitutional considerations to determine whether double jeopardy requires that appellant be prosecuted in only one jurisdiction for the entire course of conduct. {¶ 28} Appellant asserts in his brief that "[w]hile the government may punish a person separately for each conviction that is a separate offense, the Supreme Court has long held that the prosecution must bring its prosecutions for those offenses at the same time." However, appellant's proposition of law is incorrect. Appellant relies onState v. Urvan (1982), 4 Ohio App.3d 151, wherein the court held that for purposes of double jeopardy "[o]nce a county with subject matter jurisdiction of an alleged crime or crimes under R.C. 2901.12(H) takes action on any one of them, it preempts jurisdiction for all offenses originating in the same 'course of criminal conduct.' And the jurisdiction of the charges is not affected by their disposition." Id. at paragraph three of the syllabus. This proposition is very similar to the United States Supreme Court's holding in Grady v. Corbin (1990),495 U.S. 508. In Grady, the Supreme Court held that generally the government must bring its prosecutions for separate offenses arising from the "same conduct" in a single prosecution. Id. at 510. {¶ 29} However, in United States v. Dixon (1993), 509 U.S. 688, the United States Supreme Court overturned the Grady "same-conduct" rule. InDixon, the United States Supreme Court held that "[the government] is entirely free to bring [its prosecutions] separately, and can win convictions in both" as long as the separate prosecutions do not violateBlockburger Id. at 705. The court found that the "same conduct" rule announced in Grady "lacks constitutional roots" and is "wholly inconsistent with earlier Supreme Court precedent." Id. at 704. Double jeopardy only prevents multiple prosecutions for the "same *Page 10 offense" or a "separate offense where the government has lost an earlier prosecution involving the same facts;" but does not require that the government must bring its prosecutions together. Id. at 705, citingAshe v. Swenson (1970), 397 U.S. 436. {¶ 30} Further, we also note that, "The Ohio Supreme Court has traditionally applied federal law in the double jeopardy context."State v. Gonzalez, 151 Ohio App.3d 160, 2002-Ohio-4937, ¶ 30, citingState v. Moore (1996), 110 Ohio App.3d 649. Each case appellant cites in support of his proposition of law predates Dixon. {¶ 31} "To sustain a plea of former jeopardy, it must appear * * * that there was a former prosecution in the same state for the same offense * * * and that the particular offense, on the prosecution of which jeopardy attached, was such an offense as to constitute a bar."Best, 42 Ohio St.2d at 533. Having already established that reckless operation and failure to comply are separate offenses and that reckless operation is not a lesser included offense of failure to comply, the separate prosecutions in this case do not violate double jeopardy. {¶ 32} As stated above, separate prosecutions arising from a single course of conduct may be pursued in separate jurisdictions as long as the prosecutions do not violate Blockburger. Based on Dixon, it is clear that double jeopardy does not require that the government bring all prosecutions for the same course of conduct in a single prosecution in one jurisdiction as appellant suggests; it only prohibits a defendant from being charged twice with the same offense or a subsequent charge for lesser included offense. The "course of conduct" in this case was the result of multiple criminal acts by appellant through multiple jurisdictions which resulted in separate criminal charges. Appellant was not charged twice for the same offense. {¶ 33} Further, when entering his guilty plea for the misdemeanors, appellant stated that he was aware of the pending felony charge in the common pleas court and *Page 11 acknowledged that fact. Also, as we noted previously, there is nothing in the record to show the facts that were the basis of appellant's guilty plea in Warren County Court. {¶ 34} Accordingly, the trial court did not err by denying appellant's motion to dismiss. Appellant's first assignment of error is overruled. {¶ 35} Judgment affirmed. BRESSLER, J., concurs. WALSH, J., dissents.

2016-07-06 06:36:16.562061+00

OPINION {¶ 1} Defendant-appellant, Jonathon D. Monroe ("appellant"), appeals from a judgment of the Franklin County Court of Common Pleas denying his petition for post-conviction relief. {¶ 2} Appellant was indicted on April 11, 2001, on eight counts of aggravated murder arising out of the deaths of Deccarla Quincy and Travinna Simmons. The indictment contained for each victim one count of aggravated murder based on prior calculation and design, one based on commission of the crime during an aggravated burglary or burglary, one based on commission of the crime during aggravated robbery or robbery, and one based on commission of the crime during a kidnapping. Each aggravated murder count contained four capital punishment specifications, three based on the felony murder specifications, and one alleging that appellant committed the aggravated murders as part of a course of conduct involving the purposeful killing or attempted killing of two or more persons. The remaining five counts of the indictment were for aggravated burglary and one count of aggravated robbery and a kidnapping for each victim. Each of the counts of the indictment included a firearm specification. {¶ 3} After trial, the jury returned the verdict of guilty on all charges. After the penalty phase of the trial, at which appellant presented only a single witness and his own unsworn statement, the jury recommended death on all aggravated murder counts. The trial court then imposed the death penalty as recommended by the jury. {¶ 4} On September 26, 2003, while appellant's direct appeal from his criminal conviction was still pending before the Supreme Court of Ohio, appellant filed a petition for post-conviction relief in the Franklin County Court of Common Pleas pursuant to R.C. 2953.21. The trial court denied appellant's petition for post-conviction relief without a hearing by decision and entry filed June 1, 2004. Appellant then timely appealed to this court. During the pendency of this appeal, the Supreme Court of Ohio has decided appellant's direct appeal from his criminal conviction:State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282. {¶ 5} In the appeal from his post-conviction action, appellant brings the following assignments of error: ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN DENYING JONATHAN MONROE'S CLAIMS THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY PHASE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS AS WELL AS ART. I, §§ 2, 9, 10, AND 16 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. II INTRODUCTION OF GRUESOME TRIAL PHASE PHOTOGRAPHS AT THE PENALTY PHASE DEPRIVED JONATHON MONROE OF DUE PROCESS AND A FAIR AND RELIABLE SENTENCING DETERMINATION. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT FAILED TO MERGE THE EIGHT COUNTS OF AGGRAVATED MURDER WHEN THERE WERE ONLY TWO DEATHS AND FAILED TO MERGE THE DUPLICATIVE AGGRAVATING CIRCUMSTANCES, THUS DENYING JONATHON MONROE A FAIR AND RELIABLE SENTENCING DETERMINATION IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AS WELL AS ART. I, SEC. 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. IV THE PROSECUTOR FAILED TO PROVIDE MONROE WITH MATERIAL, EXCULPATORY AND MITIGATING EVIDENCE PRIOR TO TRIAL, IN VIOLATION OF THE FIFTH, SIXTH,EIGHTH AND FOURTEENTH AMENDMENTS AND ART. I, SEC. 2, 9, 10, AND 16 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. V OHIO HAS FAILED TO PROVIDE AN ADEQUATE SYSTEM OF APPELLATE AND PROPORTIONALITY REVIEW IN DEATH PENALTY CASES. MONROE'S SENTENCE IS DISPROPORTIONATE AND INAPPROPRIATE. ASSIGNMENT OF ERROR NO. VI COUNSEL FAILED TO OBTAIN EXPERT ASSISTANCE TO ENABLE THEM TO EXPLAIN TO DEVASTING EFFECTS OF MONROE'S IMPOVERISHED BACKGROUND, DENYING MONROE THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS, AND A FAIR SENTENCING DETERMINATION. ASSIGNMENT OF ERROR NO. VII OHIO'S STATUTORY SCHEME FOR THE IMPOSITION OF THE DEATH PENALTY VIOLATES ARTICLE I, §§ 2, 9, 10, AND 16 OF THE OHIO CONSTITUTION, THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS, AND THE VARIOUS TREATY AND COMPACT OBLIGATIONS OF THE UNITED STATES UNDER INTERNATIONAL LAW. ASSIGNMENT OF ERROR NO. VIII JONATHON MONROE WAS DENIED DUE PROCESS, A FAIR TRIAL, AND THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE JURY SELECTION PROCESS, INCLUDING VOIR DIRE; DURING THE PRE-TRIAL AND MOTION PRACTICE PHASE; AND DURING THE TRIAL AND PENALTY PHASES. ASSIGNMENT OF ERROR IX OHIO PROVIDES AN INADEQUATE POST-CONVICTION REMEDY TO PERMIT MONROE TO FULLY AND FAIRLY VINDICATE HIS FEDERAL CONSTITUTIONAL CLAIMS UNDER THEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AND ART. I, § 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR X THE TRIAL COURT'S ACTIONS IN FAILING TO RULE ON MONROE'S REQUESTS FOR EXPERT AND INVESTIGATIVE ASSISTANCE DENIED MASON [SIC] A FULL AND FAIR OPPORTUNITY TO LITIGATE HIS CONSTITUTIONAL CLAIMS IN POST CONVICTION UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AS WELL AS ART. I, SEC. 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION. {¶ 6} A petition for post-conviction relief in Ohio is a statutorily created procedure designed to provide an avenue to correct a violation of a defendant's constitutional rights in his criminal trial. The remedy is defined under R.C. 2953.21: (A)(1)(a) 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. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief. * * * (3) In a petition filed under division (A) of this section, a person who has been sentenced to death may ask the court to render void or voidable the judgment with respect to the conviction of aggravated murder or the specification of an aggravating circumstance or the sentence of death. * * * Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. * * * {¶ 7} The post-conviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E. 2d 905, 908. It is a means by which the petitioner may allow the court to reach constitutional issues that would otherwise be impossible to review because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction. State v. Murphy (Dec. 26, 2000), Franklin App. No. 00AP-233. The petition for post-conviction relief is thus not intended to provide a defendant with a second opportunity to litigate his conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition. State v. Jackson (1980), 64 Ohio St.2d 107,413 N.E.2d 819. {¶ 8} In order for the trial court to grant a hearing the petitioner must provide evidence that demonstrates a cognizable claim of constitutional error, R.C. 2953.21(C), and such evidence must demonstrate that the denial or infringement of the petitioner's constitutional rights renders the petitioner's conviction or sentence void. State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 175, paragraph four of the syllabus. If such evidentiary materials are not submitted, the trial court may deny the petition without a hearing. Murphy, citing Jackson, supra, at 110. {¶ 9} The most significant restriction on Ohio's statutory procedure for post-conviction relief is that the doctrine of res judicata requires that the claims presented in support of the petition represent error supported by evidence outside of the record generated by the direct criminal proceedings. "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 the judgment, any defense or claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or that conviction, or on an appeal from that judgment." State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169, quoting Perry, supra, at paragraph nine of the syllabus. "Res judicata also implicitly bars a petitioner from `re-packaging' evidence or issues which either were, or could have been, raised in the context of the petitioner's trial or direct appeal." State v. Hessler, Franklin App. No. 01AP-1011, 2002-Ohio-3321, at ¶ 27. {¶ 10} We will first address those assignments of error in this case that we find to be barred by application of res judicata under the above-outlined authorities. {¶ 11} Appellant's second assignment of error asserts that the introduction of the gruesome murder-scene photographs during the penalty phase of his trial was unnecessarily inflammatory and prejudiced the jury, depriving him of due process in the sentencing determination. This error is entirely found within the record, and was the object of appellant's eighth proposition of law on direct appeal to the Supreme Court of Ohio. The issue is accordingly barred by the application of res judicata, both in the context of a post-conviction motion raising facts that are found within the record and because we are bound by the Supreme Court of Ohio's determination that no error existed in this respect. Appellant's second assignment of error is accordingly overruled. {¶ 12} Appellant's third assignment of error asserts that the trial court erred in failing to merge the four counts of murder arising out of each death when submitting the matter to the jury for the sentencing determination. This argument was the object of appellant's 12th proposition of law on direct appeal to the Supreme Court of Ohio, which found no error in this respect. Appellant's third assignment of error is accordingly overruled on the grounds of res judicata. {¶ 13} Appellant's fifth assignment of error asserts generally that Ohio has not provided an adequate statutory framework for review of death penalty cases on proportionality grounds, thereby denying appellant due process and equal protection under the law. Appellant's seventh assignment of error likewise argues that Ohio's statutory scheme for imposition of the death penalty is unconstitutional. These constitutional arguments were also made in appellant's direct appeal before the Supreme Court of Ohio in his propositions of law six and nine. Appellant's assignments of error five and seven are thus also overruled on the grounds of res judicata. {¶ 14} Next we turn to appellant's ninth assignment of error, which asserts that Ohio's post-conviction relief statute provides an inadequate remedy under which to vindicate his federal and state constitutional claims. Appellant's tenth assignment of error is related in that it asserts that the trial court in his post-conviction case failed to grant counsel's request for appointment of an expert to assist counsel and to provide investigative assistance in the post-conviction action. {¶ 15} This court has previously rejected the proposition that "Ohio's post-conviction statute does not afford an adequate corrective process."Hessler, 2002-Ohio-2231, at ¶ 85. We accordingly find no error based on this broad allegation regarding the post-conviction statute. With respect to the specific claim of error in the denial of an expert, it is clear that a defendant who has received the death sentence has a statutory right to appointed counsel to pursue a post-conviction motion. R.C. 2953.21(I). The statute, however, does not provide for appointment of experts or investigators. The Supreme Court of Ohio has specifically held that there is no constitutional right to appointment of counsel in such circumstances and the right is granted strictly by statute. State v.Crowder (1991), 60 Ohio St.3d 151, 152, 573 N.E.2d 652. There is no authority holding that a corresponding constitutional right would exist to provide appointment of an expert or investigator predicated upon the specific statutory entitlement to counsel in a proceeding in which a constitutional right to counsel would not attach. Ohio appellate courts have accordingly concluded that there is no constitutional right to appointment of an expert even where the statute provides for appointed counsel in a post-conviction proceeding. State v. Smith (Mar. 15, 2000), Loraine App. No. 98CA-007169; State v. Trummer (Dec. 16, 1998), Columbiana App. No. 96CO97. Two cases raised by appellant in support of his argument that such a right to appointment of an expert or investigator exists on a pure constitutional basis, Long v. Iowa (1966),385 U.S. 192, 87 S.C. 362, 17 L.d.2d 290, and Smith v. Bennett (1961),365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39, are clearly distinguishable because they stand, respectively, for the proposition that transcripts must be provided and filing fees waived for indigent defendants pursuing post-conviction relief, when a state has chosen to establish a post-conviction mechanism by statute. These cases do not stand for the more expansive proposition that the state must provide appointed and state-funded experts and investigators in such a proceeding. Appellant's ninth and tenth assignments of error accordingly do not demonstrate reversible constitutional error based on the statutory framework under which Ohio provides post-conviction relief to defendants, and both assignments of error are overruled. {¶ 16} Appellant's fourth assignment of error asserts that the trial court erred in failing to find that there was sufficient evidence to warrant a hearing on the question of whether the prosecution in appellant's criminal trial had failed to provide the defense with material exculpatory and mitigating evidence prior to trial. While appellant does specifically aver in his petition for post-conviction relief that defense counsel filed numerous discovery motions specifically requesting evidence obtained by law enforcement officials during the investigation, and that the state failed to disclose additional exculpatory material or mitigating evidence, appellant never particularizes the information withheld or its exculpatory value. {¶ 17} "The suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland (1963), 373 U.S. 83,83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215. In order to establish a Brady violation, a defendant must establish three elements: (1) that the prosecution withheld evidence, (2) that the defense was not aware of the evidence, and (3) that the evidence withheld was material and exculpatory. State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898, paragraph four of the syllabus; United States v. Agurs (1976), 427 U.S. 97,103, 96 S.Ct. 2392, 49 L.Ed.2d 342. Appellant in the present case has presented no specifics regarding the evidence withheld or its exculpatory or mitigating value, he has merely asserted that the prosecution did not respond to discovery requests and motions. "Apart from defendant's bare assertions, in the absence of any facts indicating prosecutorial misconduct, the trial court properly held that a hearing was not warranted" in a defendant's post-conviction petition. State v. Zerla (Sept. 25, 1997), Franklin App. No. 96AP-1583. We accordingly find that appellant has not established any error on the part of the trial court in overruling his petition for post-conviction relief on the basis of a purported Brady violation, and appellant's fourth assignment of error is accordingly overruled. {¶ 18} We lastly turn to appellant's first, sixth, and eighth assignments of error, which all assert that he was not provided his constitutionally guaranteed effective assistance of counsel at trial, and that he introduced sufficient evidence outside the record in support of his post-conviction motion to establish a constitutional violation in this respect. As the three assignments of error raise similar legal grounds and, to a great extent, rest on a similar factual basis, we will discuss and address them together. {¶ 19} Appellant asserts that he was denied effective assistance of trial counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. In order to establish a claim of ineffective assistance of counsel, a defendant must first demonstrate that his trial counsel's performance was so deficient that it was unreasonable under prevailing professional norms. Strickland v.Washington (1984), 466 U.S. 668, 687, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. The defendant must then establish "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." Id. at 693. {¶ 20} "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, quotingMichel v. Louisiana (1955), 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83. A verdict adverse to a criminal defendant is not of itself indicative that he received ineffective assistance of trial counsel. State v.Hester (1976), 45 Ohio St.2d 71, 75, 341 N.E.2d 304. {¶ 21} The principal unprofessional error alleged on the part of trial counsel herein is a failure to investigate appellant's family background and resulting psychosocial characteristics that could have been presented to the jury as a mitigating factor in the penalty phase of the trial. Appellant also alleges that trial counsel was deficient in failing to explain to appellant the purpose and impact of the penalty phase of the trial, and that in the absence of such reliable information appellant understood the penalty phase to be merely an opportunity for him and his family to "beg" for his life, a posture that appellant apparently refused to adopt. Also in connection with this, appellant asserts that counsel failed to request an evaluation of appellant's competence based on his decision to forego much of his opportunity to present mitigation. In addition, appellant asserts that counsel refused to allow appellant to pursue an alibi defense when appellant's relatives were willing and able to testify in support of the alibi defense, and that counsel failed to adequately cross-examine prosecution witnesses to bring out factors undermining their credibility. {¶ 22} Finally, appellant argues that counsel was ineffective during the jury selection process, and that the trial court's conduct of jury selection proceedings was violative of appellant's constitutional right to a fair and impartial jury. These last two arguments refer to matters entirely within the record and are accordingly barred by res judicata. We will examine the remaining arguments in support of appellant's allegation of ineffective assistance of trial counsel with reference to the evidentiary material presented by appellant in support of his petition for post-conviction relief. Principally, this consists of the trial transcript and three affidavits. {¶ 23} In his own affidavit, appellant averred that he had only limited contact with his attorneys prior to trial; that he wanted to present an alibi defense, including the testimony of his family members; and that, after these family members had been excluded from presence at the trial because they were potential witnesses, counsel suddenly at the close of trial told the judge that family members no longer wished to testify. Appellant further avers that a prosecution witness, Chuck White, a jailhouse snitch, who testified that appellant had admitted committing the crimes, was a former cellmate of another prosecution witness, Shannon "Killer Bunny" Boyd, who had admittedly participated in the murders of Deccarla Quincy and Trevinna Simmons. Appellant's affidavit asserts that his defense counsel failed to adequately bring out on cross-examination that Chuck White could not have known appellant for the length of time claimed, and that Chuck White's testimony might have been influenced by his previous time as a cellmate with Shannon Boyd, who as an active participant in the murders had every motive to minimize his own culpability and maximize that of appellant. {¶ 24} Appellant further asserts in his affidavit that defense counsel failed to investigate or proffer letters written by Shannon Boyd admitting greater culpability in the murders and requesting that appellant take the blame. Appellant generally asserts that counsel repeatedly failed to question witnesses on specific subjects or follow up on information provided by appellant. {¶ 25} Finally, appellant's affidavit sets forth assertions that trial counsel failed to adequately explain the purposes of the penalty phase of the trial, the importance of presenting mitigating evidence therein, and the character of such mitigating evidence that would be admissible. Appellant claims that he was led to believe that the only purpose of the penalty phase was for him and his family to beg for a lesser sentence. {¶ 26} Appellant also presented the affidavit of James F. Crates, a mitigation specialist retained at trial. Crates' affidavit, based largely on his recollections of his pre-trial investigation, describes the financial and emotional hardship experienced by appellant as a child, and the impact upon appellant of his parents, whose parenting styles seem to have varied only in the narrow spectrum between abuse and neglect. While Crates' affidavit does give great detail regarding the "unspeakable" circumstances of appellant's upbringing, the affidavit does not outline the circumstances under which this information, which clearly was unearthed prior to the penalty phase of the trial, was ultimately not presented by defense counsel, and specifically whether this was due to appellant's alleged refusal to "beg" for his life at the penalty phase by presenting mitigating evidence. {¶ 27} The final affidavit presented by appellant in support of his petition for post-conviction relief was that of Donald Schumacher, an experienced death-qualified criminal defense attorney who has represented 40 defendants indicted for capital crimes in Ohio. Schumacher's affidavit addresses general principles of representation of clients in capital cases and sets forth prevailing professional norms, principally with respect to the need to investigate and present potential mitigating factors at the penalty phase. The affidavit stresses the interplay between effective representation through the guilt phase and subsequent efforts in the penalty phase if a guilty verdict is returned. While the affidavit develops in a scholarly form the law on various specific areas of effective representation of such cases, it does not specifically relate these to the conduct of appellant's trial as it occurred. {¶ 28} We will first address appellant's contention that his trial counsel failed to adequately investigate his background and his mental health history. The record reveals that the trial court authorized expenditures for a mitigation expert, a psychologist, and an investigator in the case. {¶ 29} The affidavit of the mitigation specialist, Crates, which accompanies appellant's petition for post-conviction relief, is in fact counterproductive to appellant's petition because it evidences a thorough and effective inquiry into appellant's personal and family history. Crates interviewed family members in appellant's original hometown in West Virginia, and thoroughly developed the circumstances of appellant's admittedly harsh upbringing, which included an absent and abusive alcoholic father, a drug-abusing and alcoholic mother who exhibited symptoms of mental illness, including displays of supernatural mysticism, and a home environment often lacking in heat, electricity, and running water. Since appellant does not present specific information either in his own affidavit or other materials submitted to demonstrate that investigation into mitigating circumstances was lacking, no deficient conduct on the part of trial counsel can be ascertained in this respect. {¶ 30} The record also reveals that a psychologist, Dr. Dennis Eshbaugh, consulted with defense counsel and examined appellant. Appellant does concede in his affidavit that he met with a psychologist working with his trial counsel. Compensation for Dr. Eshbaugh was authorized by the trial court. The record further discloses a request by counsel for approval of an investigator, Gary Phillips, retained by defense counsel. His role in the pre-trial preparation is less clear, but the court also approved compensation for his services. Because the record demonstrates that efforts by defense counsel to develop mitigation evidence appear on their face to be sufficient, and appellant supported no specific allegation in his petition that additional efforts would have developed information not already available to the defense, we find that the trial court did not err in concluding that no cognizable claim for ineffective assistance of trial counsel was presented on this basis. {¶ 31} The second prong of appellant's argument on this issue is that the defense, even if it adequately developed evidence to be introduced in mitigation, failed to effectively place this evidence before the jury, both by refusing to present witnesses and allowing appellant to unreasonably waive the opportunity to present mitigation at the penalty phase. The defense only called a single witness, Eliza Dillard, a family friend from appellant's childhood hometown of Omar, West Virginia. Defense counsel also allowed appellant to present his unsworn statement allowed under R.C. 2929.03(A)(1), thus avoiding the difficulty of appellant testifying under oath, which would have opened the door to inquiry into appellant's conviction in an unrelated murder case. {¶ 32} Mrs. Dillard presented testimony regarding the circumstances of appellant's difficult childhood in West Virginia, and the generally neglectful conduct of his parents. She stated that she had known appellant between the ages of five and ten, after which he moved to Columbus and she had only intermittent contact with him and his family. She described the Omar area, and specifically appellant's neighborhood of Superior Bottoms, as rural, poor, and largely devoid of effective social services. Appellant, even as a small child, was forced to work odd jobs. Although appellant's paternal grandfather was well-off by local standards, he disliked appellant's mother so intensely that he provided little assistance to appellant and his siblings, even in the most extreme need. Appellant's father was illiterate, and although a skilled carpenter, was mostly absent and provided little visible support. Appellant's mother frequented a house in the neighborhood known to harbor drug and alcohol use and immoral conduct. {¶ 33} Defense counsel then addressed the court, making the following statement prior to allowing appellant to make his unsworn statement: MR. JANES: YOUR HONOR, HERE'S OUR POSITION. WE STARTED TO INDICATE TO THE COURT THAT IT WAS OUR BELIEF THAT WE WOULD CALL ONE WITNESS PLUS MR. MONROE UNLESS THERE WAS A PROBLEM WITH OPENING THE DOOR. WE CALLED THAT WITNESS, THAT WITNESS HAS COMPLETED HER DIRECT AND CROSS EXAMINATION. NOW, IT IS OUR INTENT TO CALL OR ALLOW MR. MONROE TO MAKE AN UNSWORN STATEMENT AND THEN TO INTRODUCE OUR EXHIBITS AND THEN REST. NOW, BASED ON THAT, MR. MONROE, WHO DID NOT WANT HIS FAMILY TO PARTICIPATE IN THIS AS WITNESSES, IN THE MITIGATION, AND SPECIFICALLY INSTRUCTED MR. RIGG AND I NOT TO CALL ANY FAMILY MEMBERS IN MITIGATION; AND WE HAVE HONORED HIS WISHES. BUT HE NOW WOULD LIKE TO HAVE THE FAMILY MEMBERS HERE IN THE COURTROOM, TO BE ALLOWED TO HEAR HIS UNSWORN STATEMENT. SO YOUR HONOR, WE'RE BASICALLY SAYING WE'RE FINISHED REALLY SO I CANNOT IMAGINE ANY CIRCUMSTANCE WHERE WE WOULD BE CALLING ANY OF THE FAMILY MEMBERS, BUT I WANTED TO MAKE THE COURT AWARE OF OUR SITUATION. NOW, THERE IS ONE OTHER THING, AND JUST TO MAKE YOU UNDERSTAND, JUDGE, WE HAVE A WHOLE FAMILY OUT HERE WHO ARE VERY, VERY UPSET WITH US BECAUSE THEY BELIEVE WE ARE KEEPING THEM OUT OF THE COURTROOM, AND ALL WE'RE DOING IS EXERCISING MR. MONROE'S DESIRES TO HAVE THEM NOT PARTICIPATE IN THE MITIGATION, AND YOUR HONOR, WE HAVE NOT BEEN ABLE TO BE THAT BLUNT WITH THEM, AND NOW WE HAVE ACCOMPLISHED WHAT WE WANTED TO ACCOMPLISH, AND NOW WE WOULD LIKE TO MOVE TO THE UNSWORN STATEMENT. {¶ 34} Thereafter, appellant presented his unsworn statement: MR. MONROE: I'M SURE YOU ARE ALL TIRED, YOU ALL BEEN ON THIS SINCE THE TRIAL STARTED. I GUESS I ASK MY MOTHER AND FATHER NOT TO TAKE THE STAND, I DID NOT ASK THEM TO TAKE THE STAND IN MY DEFENSE. I HAVE A STATEMENT THAT I HAVE AND I WANT TO READ IT TO YOU. I HAVE, WHEN I READ IT TO YOU, IT'S DIRECTED TO MY FAMILY. I DON'T REALLY CARE HOW YOU TAKE IT, IT'S NOT TO BE TAKEN ANY CERTAIN WAY, BUT JUST BASICALLY IT'S FOR MY FAMILY. I DON'T WANT ANY OF THEM GETTING ON THE STAND TODAY AND BEGGING OR PLEADING FOR MY LIFE, I WONT' DO IT EITHER. I HAVE NOT BEEN GIVEN A FAIR TRIAL. IT'S NOT YOUR FAULT I HAVE NOT BEEN GIVEN A FAIR TRIAL. NOW, I JUST WANT TO READ MY STATEMENT. FIRST, I'D LIKE TO GIVE MY CONDOLENCES TO THE FAMILIES OF THE VICTIMS. THE SECOND THING I WOULD LIKE TO SAY IS I'M NOT HERE BEGGING FOR OR PLEADING FOR MY LIFE. I DID ENOUGH BEGGING AND PLEADING AS A KID WHEN I WAS EIGHT YEARS OLD. WE HAD NO WATER, ELECTRIC, OR FOOD IN THE HOUSE, AND NO FATHER PROVIDER, AND OFTEN I WENT DOOR TO DOOR ASKING FOR WORK. I WOULD CUT YOUR GRASS, RAKE YOUR LEAVES, TAKE YOUR TRASH OUT, I WOULD FIND WORK SOMEHOW IF THERE WAS NO WORK. NO WORK, I WOULD RESORT TO BEGGING. I DON'T CARE WHAT IT IS, JUST I SEE AND IF I HAVE NOT EATEN ALL DAY UNTIL I DO THEN THEY WON'T EAT EITHER. I AM 25 YEARS OLD AND I REFUSE TO BEG FOR ANYTHING. BUT IT'S BEEN A LONG TRIAL AND I AM TIRED AND I'M SURE YOU ARE TIRED AS WELL. I RESPECT ALL OF YOUR DECISIONS, MAINLY BECAUSE BASED ON THE EVIDENCE PRESENTED TO YOU. HOWEVER, I DO NOT AGREE WITH ALL THIS, THIS IS MY LAWYERS', MY LAWYERS' WHO MADE THIS TRIAL. I KNOW IT'S NOT FAIR. ONE OF THE THINGS I DISAGREE WITH IS THE FACT THAT MY LAWYERS DECIDED NOT TO PRESENT LETTERS THAT WERE WRITTEN TO ME BY SHANNON BOYD OFFERING ME MONEY TO SAY, TO SAY I DID THESE HORRIBLE CRIMES. THE LETTERS TOLD ME EXACTLY WHAT HE WANTED ME TO SAY, BUT IF I DID ALL THE THINGS HE TESTIFIED TO, I DID THESE HORRIBLE CRIMES THEN WHY DID HE EXPLAIN WHAT TO DO AND SAY, NONE OF THESE THINGS ARE ANY OF YOUR FAULT, NOR ANY OF MY SHORTCOMINGS OR MY SITUATION OR MY FAMILY'S FAULT. THERE HAVE BEEN A LOT OF PEOPLE LATELY TO IMPLY MAYBE I'M NOT IN THIS SITUATION BECAUSE OF WHAT OR THE WAY I WENT THROUGH COMING UP AS A KID, AND MAYBE MY FATHER IS TO BLAME, AND MAYBE I SHOULD BLAME MY FATHER WHO WAS NOT THERE FOR ME, AND MY FAMILY. MAYBE BECAUSE AROUND EIGHT OR NINE OR TEN, MY MOTHER COULD NOT WORK, COULD NOT WORK OUT THERE. I WAS NOT BEGGING OR CRYING FOR ANYTHING. HE HANDED ME A FISHING ROD AND IT WAS HIS FAVORITE FISHING POLE AND HE NEVER, NEVER, NEVER WOULD LEAVE IT ANYWHERE IF HE WAS NOT PLANNING ON RETURNING, YOU KNOW, HE WAS SHOWING ME THAT HE WAS COMING BACK. HE ASSURED ME THAT HE WAS COMING BACK, AND SO HE WANTED ME TO HOLD IT UNTIL HE CAME BACK FOR US, BUT HE NEVER CAME BACK FOR US. I OFTEN THOUGHT IT WAS MY FAULT, MAYBE IF I LEFT AND RAN AWAY HE WOULD COME BACK AND BE WITH MY FAMILY BUT I WOULD NOT SEE HIM. MAYBE I SHOULD BLAME IT ON MY MOTHER FOR BEING DEPRESSED, FOR MY FATHER NOT BEING THERE, AND FOR STARTING TO DRINK AND SPENDING MOST OF THE MONEY THAT I MADE WORKING CUTTING GRASS ON ALCOHOL, AND LATER ON DRUGS. HOW CAN I BLAME MY FATHER WHEN HE BLAMED HIS FATHER FOR HIS ACTIONS, HE MOSTLY BLAMED HIS FATHER, BUT THEN I COULD GO ON AND ON, BUT HOW COULD I BLAME MY MOTHER. SHE WAS ABUSED AND MOLESTED AS A CHILD BY HER FATHER. HOW COULD ANYONE BE A GOOD MOTHER AND A GOOD FATHER IF NOT RAISED BY GOOD PARENTS. IF YOU ARE TOLD WHAT YOU'RE TAUGHT AND YOU WENT THROUGH IN YOUR LIFE WHAT MY PARENTS WENT THROUGH IN THEIR LIVES, SO I PLACE NO BLAME ANYWHERE, AND I LEFT MY FAMILY'S REGARDS IN THE PAST — BECAUSE GOING THROUGH TOUGH TIMES MADE ME WHO I AM TODAY. AND I HAVE NOTHING AS A CHILD, AND MAYBE IF I COULD GIVE MY FAMILY EVERYTHING, AND I AM OLD ENOUGH TO TAKE CARE OF THEM AND IF I TRIED, AND IF I COULD HAVE MADE IT EASIER ON MY YOUNGER BROTHER AND SISTERS, AND SUPPORTED MY MOTHER AS I WANTED TO DO. AND I WENT ABOUT IT THE WRONG WAY BY SELLING DRUGS, AND I THOUGHT THAT MY FAMILY THAT IT WOULD BE EASIER FOR THEM TO GET THEIR EDUCATION, AND — OKAY, FOR THESE REASONS I'M NOT PROUD OF MYSELF AND I CANNOT AND WILL NOT PLEAD OR BEG FOR MY LIFE. WHY SHOULD I BEG FOR MY LIFE, THAT IS WORSE THAN LIFE OR DEATH, AND TO AVOID DEATH FOR THE COMFORT OF A LIFE. LIFE COSTS ME PAIN AND WORRY AND DEATH IS NOTHING BUT PEACE AND CALM SO WHY SHOULD I AVOID THAT? WHY SHOULD I TRY. LIKE I SAID BEFORE, I RESPECT ALL OF YOUR DECISIONS AND I THINK THAT IF THE EVIDENCE IS PRESENTED TO YOU THE WAY I THINK IT SHOULD HAVE BEEN, I DON'T THINK I WOULD BE SITTING HERE BEGGING FOR MY LIFE NOW. WELL, I'M NOT BEGGING FOR LIFE OR WHATEVER YOU WANT TO CALL IT, I'M NOT BEGGING OR WHATEVER YOU WANT TO CALL IT, OKAY. THANK YOU FOR YOUR TIME. GOD BLESS YOU. {¶ 35} The assertions in appellant's affidavit in his petition for post-conviction relief that he was never adequately informed by trial counsel of the purpose of the mitigation process are directly contradicted by evidence in the trial record, particularly appellant's own unsworn statement, that appellant was sufficiently aware of the nature and purpose of the mitigation process, and simply made the deliberate decision not to avail himself of the opportunity to present such evidence. The facts of this case do not support the nuance invoked by appellant, that is, that he was not informed of the distinction to be made between the opportunity to "beg" for his life and the opportunity to present evidence by which the jury could determine the just and appropriate for his acts, taking into consideration all aspects of the crimes and the person committing it. The mere fact that an attorney has honored or has been unable to alter a defendant's desire not to present mitigation evidence, does not, of itself, establish ineffective assistance of trial counsel. State v. Cowans (1999), 87 Ohio St.3d 68-80-81, 717 N.E.2d 298; State v. Keith (1997), 79 Ohio St.3d 514,684 N.E.2d 47. While appellant now wishes to attribute his choice to a lack of information, the record sufficiently reflects that appellant made his decision not to present mitigation evidence out of defiance rather than ignorance of the proceedings. {¶ 36} Based on the foregoing, we find that appellant's petition does not present sufficient evidence under which the trial court would have been compelled to hold an evidentiary hearing in order to ascertain whether appellant received ineffective assistance of trial counsel based upon a failure to investigate and uncover further mitigating evidence that could have been presented at the penalty phase, and a failure on the part of trial counsel to adequately inform appellant as to the opportunity presented as to the mitigation process. {¶ 37} Turning to appellant's contention that trial counsel was ineffective for failure to develop the alibi defense, the record contains some discussion by counsel with the trial court regarding the reluctance of the witnesses to testify because of the passage of six years between the occurrence of the crime and the time of trial. (Tr. 1211-1212.) The ambiguous attitudes of the witnesses, counsel postulated, would have made such testimony counterproductive and caused more harm then good; by association, other witnesses presented by the defense would have lost credibility. Id. Appellant's affidavit in the present action presents no specifics as to the content of the alibi testimony proposed, and appellant's own affidavit as to what others might have testified is not competent to establish what that testimony would have been and its value to the defense. A defendant's own self-serving affidavit, at least insofar as it sets forth matters outside his personal knowledge, alleging a constitutional deprivation will not compel a hearing in a post-conviction hearing. State v. Combs (1994), 100 Ohio App.3d 90, 98,652 N.E.2d 205. {¶ 38} We now turn to appellant's contention that trial counsel was ineffective because counsel failed to request that appellant be examined for competency after appellant partially waived the presentation of mitigation evidence. Nothing in testimony in the original trial or in the post-conviction proceeding, including appellant's own documentation in the post-conviction action, supports the view that appellant was or is incompetent. While the Supreme Court of Ohio in State v. Ashworth (1991), 85 Ohio St.3d 56, 706 N.E.2d 1231, paragraph one of the syllabus, held that a court must, in a capital case, conduct an inquiry of a defendant on the record to determine whether the decision to forego presentation of all mitigating evidence is knowing and voluntary, that case is distinguishable from the present one in that in appellant's case some mitigation evidence was presented. Moreover, a defendant's decision in a death penalty case to forego adequate attempts to present mitigation "does not by itself call his competence into question." State v. Tyler (1990), 50 Ohio St.3d 24, 29, 553 N.E.2d 576. The defense in the present case had access to the services of a psychological expert approved by the court, and at no time chose to raise a competency defense. The present post-conviction action, although calling into question the failure to request an examination of appellant's competence, does not assert that appellant is or was incompetent, rather than merely contrary or misguided. We accordingly find no unprofessional error on the part of trial counsel in this respect. {¶ 39} Turning to appellant's contention that trial counsel was ineffective for failing to adequately investigate or cross-examine Chuck White, the jailhouse snitch, regarding White's history as a cellmate of Shannon Boyd, the co-perpetrator of the murders for which appellant was convicted, the record reflects that defense counsel, in fact, developed a fair amount of information regarding this very subject. (Tr. 1111-1132, 1149-1155.) White and Boyd, in subsequent testimony, admitted that they had shared a cell, and White on cross-examination repeated certain self-incriminating statements made by Boyd during that period. Appellant does not further detail in his petition how additional questioning would have elicited information that would have resulted in a different verdict. We accordingly find that the petition does not present sufficient evidence of prejudicial unprofessional errors by trial counsel in this respect. {¶ 40} Finally, appellant also alleges that counsel failed to present at trial evidence of letters sent by Boyd to appellant in which Boyd admitted his principal role in the murders, and requested that appellant, who was already serving a term for an unrelated murder, take the blame for the murders of Deccarla Quincy and Travinna Simmons. Appellant does not explain in his petition how evidence of such letters could have been presented without putting appellant on the stand, which counsel, as a matter of sound tactical choice, was intent to avoid. Moreover, the letters themselves have not been presented in support of this petition, and we again have only appellant's self-serving affidavit to substantiate their existence at all. {¶ 41} In accordance with the foregoing, we find that appellant did not present sufficient evidence to establish the need for a hearing on his claims of ineffective assistance of trial counsel in his original trial, and the court in his post-conviction action did not err in denying appellant's conviction without a hearing on these claims. Appellant's first, sixth, and eighth assignments of error are accordingly overruled. {¶ 42} In summary, appellant's ten assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas denying appellant's post-conviction petition for post-conviction relief pursuant to R.C. 2953.21 is affirmed. Judgment affirmed. Deshler, J., concurs. Bryant, J., concurs in part and dissents in part. Deshler, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:36:16.767486+00

DECISION {¶ 1} Defendant-appellant Michael Gaynor was an accountant employed by the University of Cincinnati. Gaynor used university credit cards to make unauthorized purchases totaling $13,389.55. As a result, Gaynor was indicted for theft, in violation of R.C.2913.02(A)(2), and misuse of credit cards, in violation of R.C.2913.21(B)(2). Both offenses were felonies of the fourth degree. Following Gaynor's pleas of no contest, the trial court found him guilty of both offenses and sentenced him to concurrent seventeen-month prison terms. {¶ 2} Gaynor now appeals. In a single assignment of error, Gaynor argues that the trial court erred by imposing a prison sentence that was not supported by the record. Gaynor contends that the trial court's imposition of a prison term, as well as its imposition of a nonminimum prison term, was contrary to law. Right to Appeal and Standard of Review {¶ 3} If a trial court specifies at sentencing one of the enumerated imprisonment factors under R.C. 2929.13(B)(1), an offender convicted of a felony of the fourth or fifth degree may not appeal his or her sentence as a matter of right, except upon the ground that the sentence is contrary to law.1 If the trial court makes the required findings, a reviewing court may modify or vacate the sentence only if it clearly and convincingly finds that the record does not support the findings or that the sentence is otherwise contrary to law.2 In this case, the trial court specified that it had found one of the imprisonment factors under R.C. 2929.13(B)(1) to be present. Therefore, we may not modify or vacate the sentence unless we clearly and convincingly find that the sentence is contrary to law because the record fails to support the trial court's findings under R.C.2929.13(B).3 Imposition of a Prison Term {¶ 4} A trial court must impose a prison term upon an offender convicted of a fourth- or fifth-degree felony if the court makes one of the enumerated findings in R.C. 2929.13(B)(1), finds that a prison term is consistent with the sentencing principles and purposes set forth in R.C. 2929.11 and 2929.12, and finds that the offender is not amenable to a community-control sanction.4 Even if the court does not make one of the enumerated findings in R.C. 2929.13(B)(1), it may still impose a prison sentence when it finds that "consistent with the purposes and principles of sentencing, an offender is not amenable to community control."5 {¶ 5} In this case, the trial court determined that the imprisonment factor in R.C. 2929.13(B)(1)(d) applied, namely that Gaynor held a public office or position of trust, and that the offense related to his office or position. The court also determined that a prison term was consistent with the sentencing purposes and principles set forth in R.C. 2929.11, as well as with the seriousness and recidivism factors set forth in R.C.2929.12. The court further concluded that Gaynor was not amenable to a community-control sanction, and it accordingly sentenced him to prison. {¶ 6} Gaynor does not challenge the trial court's finding that he held a public office or position of trust, and that his offenses related to that office or position, pursuant to R.C.2929.13(B)(1)(d). Because Gaynor was an accountant who had abused his position of trust at a public university, certainly the trial court's finding regarding the applicability of the sentencing factor in R.C. 2929.13(B)(1)(d) was proper.6 {¶ 7} But Gaynor does challenge the trial court's conclusion that he was not amenable to community control. Initially, we note that R.C. 2929.13(B) does not require that the trial court give reasons for its finding that an offender is not amenable to community control. But the statute's "requirement of a `finding' is still not satisfied unless the trial court (1) notes that it engaged in the required analysis and (2) selects one of the statutory criteria."7 To make its determination that imprisonment is consistent with the purposes and principles of sentencing, the court must consider the seriousness and recidivism factors under R.C. 2929.12 and any other relevant factors.8 {¶ 8} In this case, the trial court specifically found, under the seriousness and recidivism factors in R.C. 2929.12, that Gaynor's offenses related to his public office or position of trust, that his relationship with the university had facilitated the offenses, and that he had demonstrated no genuine remorse for the offenses.9 It is clear from the record that the trial court engaged in the proper analysis and further specified its findings as required by R.C. 2929.13(B) before imposing the prison terms. Imposition of a Nonminimum Prison Term {¶ 9} Gaynor further argues that the trial court erred by imposing a prison term for each offense that exceeded the minimum term for a fourth-degree felony. In order to impose a nonminimum sentence on a first offender like Gaynor, the trial court must find at the sentencing hearing that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime.10 A trial court is not required to give its reasons for those findings before it imposes a nonminimum sentence.11 In this case, the trial court found that the shortest prison term would demean the seriousness of Gaynor's conduct. Gaynor contends that the record does not support that finding. {¶ 10} The record demonstrates that, at the outset of the case, as early as October 8, 2002, Gaynor had agreed to make full restitution to the university by using funds from his pension. Then the case was continued several times. On December 20, 2002, Gaynor proffered a check for $6,000 to the university as partial payment of the restitution owed. The court noted at the time that Gaynor had made the restitution payment and stated, "And I think under the guidelines [Gaynor] probably would be eligible for probation, if he pays." The court did not know at the time whether Gaynor had a criminal history. {¶ 11} On January 15, 2003, Gaynor entered pleas of no contest to the charges. The trial court explained to Gaynor that he could be sentenced to prison for eighteen months for each offense or to community control for five years, and Gaynor indicated that he understood the possible penalties. {¶ 12} At that time, a representative from the university informed the court that Gaynor's $6,000 restitution check had been presented for payment on two occasions but had not been honored by the bank. Gaynor's attorney indicated that Gaynor was experiencing financial difficulty. The court warned Gaynor that he faced three years in prison and that Gaynor should clear up the problem with the bounced check by the date of sentencing, "[b]ecause if you make them whole, that helps out a lot." {¶ 13} The trial court accepted Gaynor's pleas of no contest and found him guilty of both charges. The court told Gaynor that he should pay the restitution by the sentencing date. Gaynor acknowledged that he had received $53,000 from his pension and told the court that he had been using the money for his living expenses. The court gave Gaynor additional time to make full restitution and ordered a presentence-investigation report. {¶ 14} By the date of sentencing on March 28, 2003, Gaynor had paid only $6,000 in restitution. His attorney indicated to the court that Gaynor could probably pay the balance within a few months. A university police detective informed the court that Gaynor had not been cooperative during the police investigation. {¶ 15} The presentence-investigation report revealed that Gaynor had only a prior misdemeanor drug-abuse conviction and several convictions for traffic offenses. The report included a statement from Gaynor that he had used three of the university's credit cards for various personal reasons, including the purchase of clothing and a sound system, as well as for payment for a hotel room where he had smoked crack cocaine. {¶ 16} The court noted that Gaynor had indicated from the outset of the case that he would pay full restitution, but had failed to do so. The court remarked that Gaynor had spent his pension money rather than using it to pay restitution as he had agreed. The court reminded Gaynor that he could have been charged with a felony when he passed a bad check to the university for restitution. {¶ 17} The court noted that Gaynor had demonstrated no remorse for his actions, and that Gaynor had been in a position of trust. The court stated also that, had Gaynor made restitution in full, the court may have sentenced him to community control or to a shorter prison term. The court indicated that it would consider releasing Gaynor from prison after a few months if Gaynor were to pay the remaining balance. {¶ 18} Even if Gaynor's failure to pay full restitution had entered into the court's consideration of a nonminimum sentence, we note that the record still supports the court's imposition of the prison terms in this case. The trial court was in a better position to evaluate Gaynor's demeanor and to determine whether he would be amenable to a community-control sanction.12 In this case, the court noted that Gaynor had demonstrated no genuine remorse for the offenses, which is considered an indicator that an offender is likely to commit future crimes.13 Moreover, the court had an opportunity to evaluate the seriousness of Gaynor's crimes and to determine whether a community-control sanction would be commensurate with and not demeaning of the seriousness of Gaynor's conduct.14 {¶ 19} Following our review of the record, we cannot say that the trial court's findings supporting its imposition of a nonminimum prison term were not supported by clear and convincing evidence or that they were contrary to law.15 Accordingly, we overrule the assignment of error and affirm the judgment of the trial court. Judgment affirmed. Gorman and Sundermann, JJ., concur. 1 R.C. 2953.08(A). 2 R.C. 2953.08(G)(2). 3 See R.C. 2953.08(G)(2); State v. Condon,152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696, at ¶ 97. 4 R.C. 2929.13(B)(2)(a). 5 State v. Brown, 146 Ohio App.3d 654, 2001-Ohio-4266,767 N.E.2d 1192; State v. Brewer (Nov. 24, 2000), 1st Dist. No. C-000148. 6 See Brewer, supra. 7 Brewer, supra, citing State v. Edmonson,86 Ohio St.3d 324, 1999-Ohio-110, 715 N.E.2d 131. 8 R.C. 2929.12(A). 9 See R.C. 2929.12(B)(3) and (6); R.C. 2929.12(D)(5). 10 R.C. 2929.14(B)(2); State v. Comer, 99 Ohio St.3d 463,2003-Ohio-4165, 793 N.E.2d 473, paragraph two of the syllabus. 11 State v. Edmonson, supra, syllabus. 12 See State v. Jones, 93 Ohio St.3d 391, 2001-Ohio-1341,754 N.E.2d 1252. 13 R.C. 2929.12(D)(5). 14 See R.C. 2929.11(B) and 2929.13(B). 15 R.C. 2953.08(G).

2016-07-06 06:36:17.651699+00

OPINION *Page 2 {¶ 1} Appellant John Sterling and appellant Sandra Sterling appeal from the February 27, 2008, Entry of the Fairfield County Court of Common Pleas, Juvenile Division, terminating appellant John Sterling's parental rights and granting permanent custody of appellant Sandra Sterling to Fairfield County Child Protective Services. STATEMENT OF THE FACTS AND CASE {¶ 2} Appellant Sandra Sterling (DOB 8/16/01) is the biological child of appellant John Sterling and Tammy Casey.1 The two have never been married. {¶ 3} On March 20, 2003, a complaint was filed alleging that appellant Sandra Sterling was a dependent and/or neglected child. Following a shelter care hearing, appellant Sandra Sterling, as memorialized in an Entry filed on March 26, 2003, was placed in the temporary custody of Fairfield County Childrens Services (FCCS). The trial court, in its Entry, ordered that appellant Sandra Sterling "be placed with her alleged father, John Sterling, barring any unforeseen circumstances." A trial was scheduled for April 22, 2003, but was continued to June 17, 2003. {¶ 4} A case plan that was filed with the trial court on June 3, 2003, required appellant John Sterling to abstain from using drugs and/or alcohol and to abstain from using or abusing the same while caring for or in the presence of his daughter, among the other matters. {¶ 5} At the trial held on June 17, 2003, appellant John Sterling agreed that appellant Sandra Sterling was a dependent child and that she should be placed in the temporary custody of FCCS. The trial court, in its June 20, 2003, Entry, ordered that *Page 3 appellant John Sterling have supervised visitation with his daughter. In October of 2003, appellant Sandra Sterling was returned to her father on a visit status. {¶ 6} On December 2, 2003, FCCS filed a motion requesting that the trial court terminate its temporary custody of appellant Sandra Sterling and place her in the legal custody of appellant John Sterling with protective supervision. Pursuant to an Entry filed on January 6, 2004, the trial court granted such motion and ordered that the temporary custody of appellant Sandra Sterling with FCCS be terminated and that she be placed in the legal custody of her father with court-ordered protective supervision. {¶ 7} Following a review hearing held on March 25, 2004, the trial court, pursuant to an Entry filed on April 20, 2004, ordered that appellant John Sterling abstain from the use of alcohol or illegal drugs. Pursuant to a Memorandum Entry filed on May 11, 2004, FCCS was granted temporary shelter custody of appellant Sandra Sterling after appellant John Sterling drank alcohol while Sandra was in his care. On May 10, 2004, appellant John Sterling had tested positive for alcohol. {¶ 8} On May 14, 2004, FCCS filed a motion requesting temporary custody of appellant Sandra Sterling. As memorialized in an Entry filed on May 26, 2004, appellant Sandra Sterling was placed in the emergency custody of FCCS. Following a review hearing held on July 1, 2004, the trial court ordered that appellant John Sterling have increased visitation with his daughter at the discretion of FCCS. A review hearing was scheduled for August 26, 2004. Following such hearing, appellant Sandra Sterling was returned to her father on a visit status. {¶ 9} Subsequently, on March 24, 2005, FCCS filed a motion requesting that the trial court terminate its temporary custody of appellant Sandra Sterling and place her *Page 4 in the legal custody of appellant John Sterling with protective supervision. FCCS, in its motion, indicated that appellant John Sterling was successfully complying with the case plan and that appellant Sandra Sterling was doing well with her father. As memorialized in an Entry filed on May 5, 2005, the trial court granted such motion. {¶ 10} A shelter care hearing was held on September 12, 2005, after appellant John Sterling admitted to alcohol use. As a result of such hearing, appellant Sandra Sterling was placed in the temporary shelter custody of FCCS. Thereafter, on January 12, 2006, appellant Sandra Sterling was placed in the temporary custody of FCCS. {¶ 11} FCCS, on March 6, 2006, filed a motion seeking permanent custody of appellant Sandra Sterling. FCCS, in its motion, alleged that it had been involved for almost three years and that appellant John Sterling had failed "repeatedly and consistently to remedy the circumstances causing the need for Sandra's placement." A trial was scheduled for March 28, 2006, but was continued after the Guardian Ad Litem (GAL) filed a motion seeking leave to withdraw as GAL for appellant Sandra Sterling on the basis that he had a conflict in this dual appointment as GAL and attorney for her. The trial court granted such motion and continued the trial to June 29, 2006. Martha Dean was appointed as GAL for appellant Sandra Sterling. Based on the progress that appellant John Sterling had been making the trial court, pursuant to an Entry filed on July 25, 2006, continued the trial to October 5, 2006. On such date, the trial court, upon FCCS's motion, found that appellant John Sterling had made significant progress and dismissed FCCS's Motion for Permanent Custody without prejudice. Appellant Sandra Sterling was ordered to remain in the temporary custody of FCCS. *Page 5 {¶ 12} In January of 2007, Anona Wheeler was substituted as GAL for appellant Sandra Sterling. {¶ 13} On February 4, 2007, appellant Sandra Sterling was returned to her father on a visit status. Thereafter, on March 7, 2007, FCCS filed another motion requesting that the trial court terminate its temporary custody of appellant Sandra Sterling and place her in the legal custody of appellant John Sterling with protective supervision. FCCS, in its motion, stated, in relevant part, as follows: {¶ 14} "The Agency represents to the Court that on January 17, 2006, John Sterling entered the James K. Marsh House in Portsmouth, Ohio, a residential treatment center located in Portsmouth, Ohio. The Agency represents to the Court that John Sterling has made tremendous progress while at the James K. Marsh House. The Agency further represents to the Court that Sandra Sterling was placed with her father on a visit status on February 4, 2007." {¶ 15} As memorialized in an Entry filed on April 10, 2007, the trial court granted such motion. {¶ 16} Thereafter, on May 21, 2007, appellant Sandra Sterling was placed in the temporary shelter custody of FCCS after appellant John Sterling admitted to using alcohol. On May 24, 2007, FCCS filed a motion seeking temporary custody of her. FCCS, in its motion, alleged that for over four years, it had been concerned with appellant John Sterling's "ability to maintain sobriety and economic stability." FCCS further indicate that it had learned, on May 20, 2007, that appellant John Sterling had lost his job and had been consuming alcohol and had a domestic disturbance with his *Page 6 girlfriend. The trial court granted such motion pursuant to an Entry filed on June 25, 2007. {¶ 17} On May 24, 2007, FCCS filed a motion seeking temporary custody of appellant Sandra Sterling. A hearing was scheduled for June 26, 2007. On June 26, 2007, the trial court granted the motion to dismiss the motion for temporary custody filed by FCCS after FCCS made an oral motion to dismiss the same without prejudice. The trial court, in its July 20, 2007 Entry, ordered appellant Sandra Sterling to remain in the temporary shelter custody of FCCS and scheduled a review hearing for August 28, 2007. Following the hearing, the trial court, as memorialized in an Entry filed on September 14, 2007, placed appellant Sandra Sterling in the temporary custody of FCCS. FCCS had filed a motion seeking temporary custody on August 14, 2007. {¶ 18} Thereafter, on October 1, 2007, FCCS filed a motion seeking permanent custody of appellant Sandra Sterling. A trial on such motion was held on February 5, 2008. {¶ 19} Appellant John Sterling was not in attendance at the trial and his counsel's request for a continuance to contact his client was denied. Karla Nelson was the only witness to testify at trial. Nelson testified that she was the family-based care director for Fairfield County Job and Family Services, Child Protective Services Division. Nelson first read a lengthy statement to the court that she had prepared outlining the facts of this case. Nelson, in her statement, noted that appellant John Sterling's case plan required him to refrain from using drugs and alcohol, to provide a stable home and to maintain employment. When asked whether she believed that appellant John Sterling had failed continuously and repeatedly to substantially remedy the conditions that *Page 7 caused Sandra to be placed outside the home, Nelson responded "Yes, he has." Transcript at 21. {¶ 20} Nelson further testified that appellant Sandra Sterling had been in the actual custody of the Agency for over 1400 days. While she testified that she believed that appellant Sandra Sterling and her father were bonded, Nelson testified as follows when asked why she believed it was important for Sandra to have a legally secure placement: {¶ 21} "A. Sandra needs to have stability in her life. She needs consistency. Um, Sandra struggles constantly with whether or not she's going to be able to see her dad or not be able to see her dad. Um, when dad didn't show up for the visits, um, Sandra would get upset, you know, and she would talk about, you know, her daddy not wanting to see her that day and kind of projecting that on herself at some, you known, at some point in time. She, um, she emotionally has just been up and down. She, since she's, um, been in the foster home, she's been more stable; she's doing better with her education. Um, she needs to know where she's going to be every day and every night. She needs to know where she's going to go to bed at night, where she's going to wake up and that that's going to be the same place that she comes back to, you know, when she gets out of school. She needs to know that where she is at is going to keep her safe; they're going to be able to, you know, give her food each day to eat. They're going to be able to keep her, keep her in a house where she's warm. She's going to be able to just do the day-to-day things that kids do; she needs to be able to, to have the ability to have a life in which she can grow up to be a happy, healthy, productive adult. *Page 8 {¶ 22} "Um, Sandra has just had in her young life, she's had a lot of back and forth and, um, and in talking to Sandra it's, it's very interesting just to hear some of the things she says and some of the perceptions that she has regarding her like with her daddy. Um, but she just needs some stability. {¶ 23} "Q. Is she in counseling? {¶ 24} "A. Yes, she is. {¶ 25} "Q. Do you think that's been hard on her to be back and forth so many times? {¶ 26} "A. Yes, I do. {¶ 27} "Q. All right. Do you think that she can get this type of legally secure permanent placement with John Sterling? {¶ 28} "A. Not at this time. {¶ 29} "Q. Do you think she can get this type of legally secure permanent placement with Tammy Casey? {¶ 30} "A. No. {¶ 31} "Q. Uh, what do you think, uh, would be in the best interest of Sandra Sterling? {¶ 32} "A. That she be placed in the permanent custody of the agency and legally freed for an adoptive plan." Transcript at 22-24. {¶ 33} The GAL, in a report filed with the trial court on February 5, 2008, recommended that FCCS's motion for permanent custody be granted. In her report, the GAL indicated that appellant Sandra Sterling was bonded with her father, but recognized that he was unable to care for her in an appropriate manner due to his *Page 9 substance abuse. She further noted that appellant John Sterling "has attempted to take the steps necessary for reunification with his daughter, however each attempt has been unsuccessful due to Mr. Sterling's continuing issues with substance abuse" and that he was unable to maintain a stable home. {¶ 34} The trial court, pursuant to an Entry filed on February 27, 2008, terminated appellant John Sterling's parental rights and granted permanent custody of appellant Sandra Sterling to Fairfield County Child Protective Services. The trial court, in its Entry, found that appellant Sandra Sterling had been in the temporary custody of FCCS (then known as Fairfield County Child Protective Services) for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999. The trial court further made the following conclusions of law: {¶ 35} "(1) Fairfield County Childrens Services, now known as Fairfield County Child Protective Services, developed a reasonable case plan for John Sterling and exerted diligent efforts to assist John Sterling to remedy the problems that initially caused Sandra Sterling to be placed outside the home. {¶ 36} "(2) Ohio Revised Code Section 2151.414(E)(1), (4), and/or (16) applies as to John Sterling. {¶ 37} "(3) Ohio Revised Code Section 2151.414(E)(10) and/or (16) applies as to Tammy Casey. {¶ 38} "(4) Sandra Sterling cannot be placed with either of her parents within a reasonable time or should not be placed with either of her parents. *Page 10 {¶ 39} "(5) Sandra Sterling needs a legally-secure permanent placement and this permanent placement cannot be achieved without a granting of permanent custody to the Agency. {¶ 40} "(6) Pursuant to Ohio Revised code Section 2151.414.(D), it would be in the best interest of Sandra Sterling to permanently terminate the parental rights of John Sterling and Tammy Casey and to grant permanent custody of Sandra Sterling to Fairfield County Child Protective Services." {¶ 41} Appellant John Sterling now appeals from the trial court's February 27, 2008, Entry, raising the following assignment of error in Case No. 08-CA-18: {¶ 42} "THE DECISION OF THE TRIAL COURT GRANTING PERMANENT CUSTODY OF APPELLANT'S CHILD TO FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES WAS NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE, AS THE RECORD DOES NOT CONTAIN CLEAR AND CONVICIING EVIDENCE THAT PERMANENT CUSTODY WAS IN THE CHILD'S BEST INTEREST." {¶ 43} Appellant Sandra Sterling also appeals from the trial court's February 27, 2008, Entry, raising the following assignment of error in Case No. 08-CA-21: {¶ 44} "THE DECISION OF THE TRIAL COURT GRANTING PERMANENT CUSTODY OF APPELLANT, SANDRA STERLING, TO FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES WAS NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE, AS THE RECORD DOES NOT CONTAIN CLEAR AND CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS IN THE CHILD'S BEST INTEREST." *Page 11 Cases 08-CA-18 08-CA-21 {¶ 45} Both appellants argue that the trial court's finding, that the grant of permanent custody to Fairfield County Child Protective Services was in appellant Sandra Sterling's best interest, was against the sufficiency of the evidence. We disagree. {¶ 46} A trial court's decision to grant permanent custody of a child to a public children services agency must be supported by clear and convincing evidence. The Ohio Supreme Court has defined "clear and convincing evidence" as "[T]he measure or degree of proof that will produce in the mind of the trier of fact 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 required beyond a reasonable doubt, as in criminal cases." Cross v.Ledford (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118; In re: Adoptionof Holcomb (1985), 18 Ohio St.3d 361, 481 N.E.2d 613. {¶ 47} In reviewing whether the trial court based its decision upon clear and convincing evidence, "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." State v.Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60. See also,C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279,376 N.E.2d 578. If the trial court's judgment is "supported by some competent, credible evidence going to all the essential elements of the case," a reviewing court may not reverse that judgment.Schiebel, 55 Ohio St.3d at 74, 564 N .E.2d 54. {¶ 48} Moreover, "an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the *Page 12 findings of fact and conclusion of law." Id. Issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact. As the court explained in Seasons CoalCo. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273: {¶ 49} "The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Moreover, deferring to the trial court on matters of credibility is "crucial in a child custody case, where there may be much evident in the parties' demeanor and attitude that does not translate to the record well." Davis v.Flickinger, 77 Ohio St.3d 415, 419, 1997-Ohio-260, 674 N.E.2d 1159. See, also, In re: Christian, Athens App. No. 04CA10, 2004-Ohio-3146; In re:C.W., Montgomery App. No. 20140, 2004-Ohio-2040. {¶ 50} Pursuant to 2151.414(B)(1), the court may grant permanent custody of a child to the movant if the court determines "that it is in the best interest of the child to grant permanent custody to the agency that filed the motion for permanent custody and that any of the flowing apply: . . . {¶ 51} "(d) 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, or 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 and, as *Page 13 described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state." {¶ 52} In the case sub judice, the trial court found that appellant Sandra Sterling had been in the temporary custody of Fairfield County Children Services for twelve or more months of a consecutive twenty-two month period. Such finding has not been challenged on appeal. {¶ 53} Both appellants, however, challenge the trial court's finding that it would be in appellant Sandra Sterling's best interest to grant permanent custody to Fairfield County Child Protective Services. {¶ 54} Pursuant to R.C. 2151.414(D), in determining the best interest of a child, the court shall consider all relevant factors, including but not limited to the following: {¶ 55} "(1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster care givers and out-of-home providers, and any other person who may significantly affect the child; {¶ 56} "(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; {¶ 57} "(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; {¶ 58} "(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; * * *" *Page 14 {¶ 59} At issue in the case sub judice is whether there was clear and convincing evidence that permanent custody was in appellant Sandra Sterling's best interest. As is stated above, the GAL, in her report, indicated that appellant Sandra Sterling was "bonded with her father, however she recognizes that her father is unable to care for her in an appropriate manner." At the trial, the GAL stated to the trial court, in relevant part, as follows: {¶ 60} "Uh, she does want to be with her father despite all of his issues; however, Mr. Sterling's inability to maintain sobriety and a permanent situation where Sandra can go to school and continue to be a happy child, it just doesn't appear to be happening and, um, I believe it is in, um, Sandra's best interests that permanent custody be granted to, um, to uh, Fairfield County Child Protective Services." Transcript at 30. {¶ 61} At the trial, the following testimony was adduced when Karla Nelson was asked how long Sandra had been in the temporary custody of the Agency: {¶ 62} "A. Um, she's been in the actual custody of the agency fourteen, over fourteen hundred days. Um, she's been in foster care placement or kinship placement, for, uh, three years, two hundred and forty-five days." {¶ 63} Nelson further testified that Sandra, who was in counseling, needed to have stability in her life and that, since she had been in her foster home, she was more stable and "doing better with her education." Transcript at 22. {¶ 64} Nelson further testified that it was difficult on Sandra going back and forth from her father's home so many times and that Sandra could not get "this" type of legally secure permanent placement with her father. Nelson also indicated, when asked, *Page 15 that it was in Sandra's best interest to be placed in the permanent custody of the Agency. {¶ 65} Moreover, at the trial, appellant Sandra Sterling's attorney indicated to the trial court that while she had been unequivocal that she wanted to be with her father, "she was angry with her father; I guess it was the lack of progress." Transcript at 29. {¶ 66} Based on the foregoing, we find that there was competent, credible evidence to support the trial court's determination that granting permanent custody of Sandra Sterling to the Fairfield County Child Protective Services was in her best interest. We also find that the trial court did not err in finding that this was so by clear and convincing evidence. {¶ 67} The sole assignment of error in each case is, therefore, overruled. {¶ 68} Accordingly, the judgment of the Fairfield County Court of Common Pleas, Juvenile Division, is affirmed. By: Edwards, J. Gwin, P.J. and Wise, J. concur JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Fairfield County Court of Common Pleas, Juvenile Division is affirmed. Costs assessed to appellant, John Sterling. 1 The trial court, in its February 27, 2008, Entry, noted that Tammy Casey's whereabouts had been unknown since March 20, 2003. *Page 1

2016-07-06 06:36:17.685033+00

OPINION {¶ 1} Barbara Brown is appealing the judgment of the juvenile division of the Montgomery County Common Pleas Court, which terminated the parental rights of Ms. Brown's son and awarded permanent custody to Montgomery County Children's Services Board ("MCCSB"). {¶ 2} On October 20, 2001, P.P. was born seven weeks premature and addicted to narcotics. As a result of her mother's drug use during the pregnancy, P.P. is developmentally delayed. A caseworker from MCCSB, Jenny Gardner, met with Deanna Price, P.P.'s mother, six days after P.P. was born because Ms. Price wanted to place P.P. up for adoption. As a result of the meeting, P.P. was placed in a "legal risk" foster home when she was released from the hospital. A "legal risk" foster home is a situation where the foster parents intend to adopt the child if MCCSB gains permanent custody of the child. {¶ 3} Neither of P.P.'s parents completed their case plan objectives or regularly visited with the baby. After a DNA test, Anthony Brown was considered by the juvenile court to be P.P.'s father. Mr. Brown visited P.P. on February 7, 2002 accompanied by his mother, Barbara Brown, and fiancee. Mr. Brown never again sought to have contact with P.P. but Ms. Brown began making several sporadic visits over the course of the next six months. However, Ms. Brown attended less than half of her scheduled visitation dates. {¶ 4} Ms. Brown, who lives in Columbus, indicated to MCCSB that she had an interest in obtaining custody of P.P. As a result, MCCSB requested Franklin County Children's Services conduct a home study of Ms. Brown. The report from the home study indicated that Ms. Brown did not understand P.P.'s special needs, the care required to attend to these needs, and that Ms. Brown did not have a special bond with P.P. {¶ 5} On November 15, 2001, MCCSB filed a complaint alleging that P.P. was a dependent child. A guardian ad litem was appointed and he filed a preliminary report recommending MCCSB be granted custody on February 4, 2002. On July 16, 2002, the guardian ad litem filed an updated report in which he recommended that Ms. Brown be granted temporary custody of P.P. A hearing on MCCSB's permanent custody motion was held on July 18, 2002, wherein Ms. Brown and Ms. Gardner, an MCCSB caseworker, testified. Ms. Gardner testified at the hearing that MCCSB wished to have permanent custody of P.P. so that her foster parents could adopt her. On August 5, 2002, the juvenile magistrate issued an order granting permanent custody to MCCSB. Ms. Brown filed objections, but not a transcript of the hearing with the trial court. The trial court overruled Ms. Brown's objections and affirmed the judgment granting MCCSB permanent custody. Ms. Brown has filed this appeal from that judgment. {¶ 6} Ms. Brown raises the following assignment of error: {¶ 7} "Whether the trial court abused its discretion in rejecting paternal grandmother Barbara Brown as temporary custodian with supervision and whether the decision granting Montgomery County Children Services permanent custody was supported by clear and convincing evidence under O.R.C. 2151.414, et seq." {¶ 8} Appellant argues that the trial court abused its discretion in denying her temporary custody of P.P. because there was not clear and convincing evidence that granting MCCSB permanent custody was in P.P.'s best interest. We disagree. {¶ 9} A juvenile court's discretion in determining whether an order of permanent custody is in the best interests of a child should be given a great deal of respect because of the nature of the proceeding and the impact on the lives of the parties involved. In re Awkal (1994),95 Ohio App.3d 309, 316. Further, the juvenile court gains knowledge essential to weighing credibility at the hearing through observing the witnesses which cannot be conveyed to a reviewing court through a printed record. Id.; see also Seasons Coal Co. v. Cleveland (1984),10 Ohio St.3d 77, 80. As a result, a reviewing court should not reverse a juvenile court's determination on permanent custody absent an abuse of discretion, specifically a finding that the trial court acted in an arbitrary, unreasonable, or capricious manner. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. A trial court has broad discretion in custody matters. Miller v. Miller (1988), 37 Ohio St.3d 71, 74. A reviewing court should be guided by the presumption that the trial court's findings were correct. Seasons Coal Co., supra, at 80. {¶ 10} When making a permanent custody determination, the juvenile court must have clear and convincing evidence supporting its decision. R.C. 2151.414(B). In order for a court to grant permanent custody of a child to the State, the State must prove: {¶ 11} "[T]hat it is in the best interests of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: {¶ 12} "* * * {¶ 13} "(b) The child is abandoned." R.C. 2151.414(B)(1). {¶ 14} Whether a grant of permanent custody to the State is in the child's best interests is a matter for the discretion of the trial court and should be determined pursuant to R.C. 2152.414(D). Awkal, supra, at 316. {¶ 15} R.C. 2151.414(D) requires a court to consider all relevant factors including the following when determining the best interests of the child: {¶ 16} "(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; {¶ 17} "(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; {¶ 18} "(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; {¶ 19} "(4) The child's need for legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; {¶ 20} "(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). {¶ 21} Barbara Brown is appealing her son, Anthony Brown's, termination of parental rights and placement of P.P. in MCCSB's permanent custody. Although Ms. Brown was not a party in the action below, Ms. Brown has standing to appeal because the trial court permitted her to testify at the hearing and considered her request to have custody of P.P. In re Travis Children (1992), 80 Ohio App.3d 620, 625-626. Ms. Brown asserts that when considering the R.C. 2151.414(D) factors the trial court did not have before it clear, convincing evidence that awarding the State permanent custody was in P.P.'s best interests. {¶ 22} In addressing the first factor under R.C. 2151.414, Ms. Brown first argues that the trial court gave no weight to P.P.'s interaction and relationship with Ms. Brown. However, the lower court looked at Ms. Brown's visitation with P.P. Ms. Brown attended less than half of her opportunities to visit with P.P. Ms. Brown asserts that she explained that she missed those visitations because she was afraid to drive to Dayton alone and could not arrange to have someone accompany her. However, Ms. Brown had a vehicle and a drivers licence, making her physically able to attend the visitation. Thus, there was evidence to support the trial court's conclusion that Ms. Brown's failure to attend over half of the scheduled visitation appointments did not amount to a commitment to P.P. Further, the home study of Ms. Brown's home revealed a lack of a relationship between P.P. and Ms. Brown, as Ms. Brown could not remember P.P.'s name or birth date. At the hearing, Ms. Brown denied not knowing P.P.'s name. Further, the Franklin County caseworker who evaluated Ms. Brown's home stated that she sensed that Ms. Brown was only seeking custody of P.P. out of a sense of duty. This evidence supports the magistrate's conclusion that Ms. Brown did not have a significant bond with P.P. {¶ 23} This is contrasted against P.P.'s relationship with her foster parents. P.P. has lived with her foster parents since November 16, 2001, the day she was released from the hospital. Additionally, the guardian ad litem noted that P.P.'s foster parents' home was very appropriate for P.P. and that she was doing very well in the home. Further, P.P. is very well bonded with her foster parents and continues to grow with minimal health concerns. Therefore, clear and convincing evidence supported the lower court's decision that P.P.'s relationship with her foster parents was more beneficial to her than her brief relationship with Ms. Brown. {¶ 24} On the second factor listed under R.C. 2151.414, Ms. Brown argues that the trial court did not properly consider the guardian ad litem's report and recommendation that she be granted temporary custody of P.P. Although a juvenile court must consider the recommendation of the guardian ad litem, it is not required to follow the recommendation. In reHaywood, Allen App. Nos. 1-99-93, 1-99-94, 1-99-95, 2000-Ohio-1740. The Third District Court of Appeals has stated: {¶ 25} "The function of a guardian ad litem or for a representative for the child is to secure for such child a proper defense or an adequate protection of its rights. The ultimate decision in any proceeding is for the judge and not for the representative of the parties and the trial court did not, for that reason, err in making an order contrary to the recommendation of the child's representative." In reHeight, (1975), 47 Ohio App.2d 203, 206. {¶ 26} Ms. Brown argues that the guardian ad litem's report should have been given more weight and points to a misstatement by the magistrate regarding the guardian ad litem's report. The magistrate mistakenly stated that the guardian ad litem recommended P.P. be placed with a non-relative but then continued on to state that it considered Ms. Brown as a legal relative. Also, the magistrate did not reiterate properly that the guardian ad litem had recommended P.P.'s placement with Ms. Brown on a temporary custody basis, supervised by the Franklin County Department of Children's Services. However, at the hearing the guardian ad litem clearly advocated that P.P. be placed with Ms. Brown on a temporary custody basis and aggressively cross examined Ms. Gardner, P.P.'s caseworker. It is apparent from the record of the hearing that the guardian ad litem made his position clear and the simple fact that the magistrate's decision was contrary to the guardian ad litem's report does not mean the report was not considered. {¶ 27} Additionally, the guardian ad litem's recommendation was problematic. The guardian ad litem's report stated that the Franklin County caseworker found Ms. Brown's home to be appropriate for P.P. In actuality, the caseworker stated that the home only had two very small, crowded bedrooms and that Ms. Brown planned to place a crib in her bedroom, to which the caseworker noted, "it would be very difficult to fit a crib in the bedroom." (Tr. Exhibit 1). Ms. Gardner further noted that when a child is placed in a home there should be a bed and bedroom for the child. Thus, Ms. Brown's home was not found to be "appropriate" as the guardian ad litem described. {¶ 28} Moreover, the guardian ad litem failed to address concerns raised by the caseworker who conducted the home study. Specifically, the home study report stated that Ms. Brown did not appreciate the extent of P.P.'s medical needs and the "requirements necessary in caring for [P.P.]." (Tr. Exhibit 1). In addition, the home study stated, "Ms. Brown does not appear to have a bond with [P.P.]. She did not know child's name or birth date. Ms. Brown also made comments regarding child's physical appearance. Ms. Brown has had only minimal contact with child." (Tr. Exhibit 1). At the hearing, the guardian ad litem claimed that the State was not concerned about Ms. Brown's ability to care for P.P., to provide for her special needs, or her interactions with P.P. This is directly contrary to the statements in the home study. Also, Ms. Gardner stated that she was concerned about the care P.P. would receive in Ms. Brown's home. Ms. Gardner pointed to Ms. Brown's statements that she would utilize various relatives for childcare while she worked, particularly that either a couple of her children or grandchildren were always at her home, as concerning because P.P. has special needs which "need to be addressed consistently with consistent persons so that she [doesn't have] any further developmental delays." (Tr. p. 38). Therefore, the guardian ad litem's report did not adequately address these valid concerns raised by the State. Thus, the trial court had clear and convincing evidence before it contrary to the guardian ad litem's recommendation. {¶ 29} In regard to the third factor under R.C. 2151.414, Ms. Brown does not address this factor, but this factor supports the lower court's decision. The third factor asks the court to consider the custodial history of the child. P.P. has been in the temporary custody of the MCCSB since shortly after her birth. P.P. has been in the care of her foster parents since the day she came home from the hospital. This custodial history supports the juvenile court's decision to grant permanent custody of P.P. to the State. {¶ 30} As for the fourth factor listed under R.C. 2151.414, Ms. Brown asserts that clear and convincing evidence was not presented that she could not fulfill P.P.'s need for legally secure permanent placement or that a grant of permanent custody to the state was in P.P.'s best interests. Although R.C. 2151.412(G) and 2151.414(D) provide guidelines for an agency to consider in placing a child, the statutes do not require the agency to award custody to a relative rather than to the agency. Inre Branstetter (May 18, 2001), Montgomery App. No. 18539, at *2; In reDixon (Nov. 29, 1991), Lucas App. No. L-91-021. The court should grant permanent custody to the State if the State has proven by clear and convincing evidence that it is in the best interests of the child. R.C.2151.414(B). Clear and convincing evidence is proof that produces "in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." In re Pieper Children (1993),85 Ohio App.3d 318, 326. The best interests of a child are served by the child being placed in a permanent situation that fosters growth, stability, and security. In re Adoption of Ridenour (1991),61 Ohio St.3d 319, 324. Therefore, courts are not required to favor a relative if, after considering all the factors, it would be in the child's best interest for the agency to be granted permanent custody. Inre Knight, (March 22, 2000), Lorain App. No. CA 98CA0072589, CA 98CA00726698;In Re Dyal, Hocking App. No. 01CA11, 2001-Ohio-2383; In reWilkenson, (Oct 12, 2001), Hamilton App. No. C-010402, C-010408; In reLewis, Athens App. No. 01CA20, 2001-Ohio-2618. {¶ 31} At the hearing, evidence was presented which questioned the stability of the home Ms. Brown could provide. Although Ms. Brown denied it, the home study reported that Ms. Brown did not know P.P.'s name or birth date and did not have sufficient room in her home for P.P. Also, Ms. Brown's planned childcare for P.P. was that various relatives would help watch P.P. while she worked. (Tr. Exhibit 1). The home study report indicated that Ms. Brown had stated that there was "always someone at her home, either one or two of her children or a couple of her grandchildren." (Tr. Exhibit 1). Thus, the State presented evidence that Ms. Brown did not have stable childcare arranged. Further, the evidence in the home study indicated that Ms. Brown was not prepared to care for P.P.'s special needs. {¶ 32} In contrast, P.P.'s foster parents are prepared to adopt her. P.P.'s foster parents provided a "very appropriate" home and are "bonded very well" with P.P. (Guardian ad litem updated report). P.P. has thrived in her foster home, demonstrating few developmental delays. Moreover, P.P.'s foster parents have enrolled her in Early Intervention, a service which has helped to prevent further developmental delays. Thus, the grant of permanent custody to the State places P.P. in her foster parents' home, which would certainly be secure. Clear and convincing evidence existed that secure, stable permanent placement for P.P. was best achieved through a grant of permanent custody to the State, in order for adoption by P.P.'s foster parents. {¶ 33} R.C. 2151.414 also permits the court to consider any other relevant factors. Specifically, the State points to testimony by Ms. Brown which indicated a lack of sincerity and evidence that Ms. Brown might place P.P. at risk by exposing her to her father. {¶ 34} At the hearing, Ms. Brown testified that the home study was inaccurate. Ms. Brown claimed that she was able to recall P.P.'s name at the time of the home study. Yet, Ms. Brown had no explanation for why the caseworker stated she could not recall the child's name. Also, Ms. Brown testified that she could fit a crib into her bedroom, which also conflicted with the home study report. Additionally, Ms. Brown made several statements regarding her lack of visitation which were refuted by Ms. Gardner, P.P.'s caseworker. Ms. Brown claimed that when she canceled her scheduled visitation she explained to Ms. Gardner that she was afraid to drive alone. (Tr. 59). However, Ms. Gardner testified that Ms. Brown never said anything to her when she canceled her visits. (Tr. 71) Further, Ms. Brown claimed at the hearing that she had missed some of the scheduled visitation because of work. (Tr. 72). However, Ms. Gardner testified that she had scheduled the visitation at Ms. Brown's convenience, specifically to accommodate Ms. Brown's work schedule. (Tr. 72). Also, Ms. Brown testified that she had asked Ms. Gardner to help her get to Dayton more often. (Tr. 58). Yet, Ms. Gardner testified that Ms. Brown had never made such a request. {¶ 35} Further, Ms. Brown testified that her son, Anthony Brown, did not live with her and further that he had not been to her house in two weeks. (Tr. 61-62). Ms. Brown claimed that she accepted service for him but denied that he spent much time there. (Tr. 62-64). Yet, Ms. Gardner testified that not only did she have Ms. Brown's address listed as one of Anthony Brown's addresses, but she elaborated that she spoke with him that morning at Ms. Brown's address. (Tr. 21). The trial court could have concluded that Ms. Brown was not acting in good faith in seeking custody of P.P. {¶ 36} The trial court may also have been concerned by evidence that Ms. Brown would allow her son, Anthony Brown, to have access to P.P. in defiance of MCCSB's advice. At trial, Ms. Brown gave the following testimony: {¶ 37} "[Prosecutor]: [g]iven that [Anthony] has had some troubled history, what kind of access would you, if [P.P.] came to live with you, what kind of access are you going to let Anthony have to [P.P.]? {¶ 38} "[Ms. Brown]: Well, I mean, from what I gathered, the courts say that he cannot be around her. So, I already told him that. {¶ 39} "[Prosecutor]: Which court was that? {¶ 40} "[Ms. Brown:] Well, Jenny [Gardner] told me that he couldn't be around her, that he is not supposed to have no communication with her because of his record. But, he is going through a program. So, I don't know. {¶ 41} "[Prosecutor:] If [P.P.] was living with you, what do you think would be appropriate, as far as her contact with your son? {¶ 42} "[Ms. Brown:] I really don't know. As she grows older, you know — he does have other kids and never harmed them." (Tr. 62-63). {¶ 43} The magistrate could have reasonably been troubled by this exchange and its indication that Ms. Brown was not committed to protecting P.P. from exposure to Anthony Brown. This was also clear, convincing evidence of Ms. Brown's lack of dedication to P.P. {¶ 44} After having reviewed the evidence and applying it to the factors listed in R.C. 2151.414, we find that there was clear and convincing evidence that P.P.'s best interests were served by placing her in the permanent custody of the State. We cannot say that the trial court abused its discretion. Ms. Brown's assignment of error is without merit and is overruled. {¶ 45} The judgment of the trial court is affirmed. BROGAN, J. and WOLFF, J., concur.

2016-07-06 06:36:17.774591+00

OPINION. {¶ 1} Defendant-appellant, Jeffrey Crutchfield, appeals his conviction in the Warren County Court of Common Pleas for complicity to improperly discharging a firearm at or into an habitation. We affirm appellant's conviction. {¶ 2} Alan Poole lives on Laura Marie Drive in Waynesville, Ohio. Appellant lives on Lytle Road in Waynesville, about one-half mile southwest of Poole's home. On February 15, 2005, Poole came home in the middle of the afternoon to the sound of automatic weapon fire. The gunfire, which "sounded like a war zone," was coming from the direction of appellant's property and lasted about an hour. That day, John Purdum, who lives next door to appellant, also came home in the afternoon to the sound of gunfire. According to Purdum, the gunfire was so close it was "absolutely frightening;" alternated between semi-automatic weapon fire and full automatic weapon fire; was coming from appellant's property; was not directed at his property, but rather was directed toward Poole's street; and did not let up until it stopped abruptly. Because they were "absolutely right on top of it," Purdum had no doubt it was coming from appellant's property. The next day, Poole found a .223 caliber bullet in the casement of a window in his house. The bullet had gone through the roof and a wall before hitting the window. {¶ 3} Appellant's property was searched on March 16, 2005. Two days later, appellant was indicted on one count of improperly discharging a firearm at or into an habitation in violation of R.C. 2923.161(A)(1). A jury trial revealed the following additional facts: {¶ 4} Jack Stubbs, a neighbor of Poole on Laura Marie Drive, generally testified about hearing automatic gunfire coming from the vicinity of appellant's property. Poole, Stubbs, and Purdum unsuccessfully tried to videotape appellant's property from Purdum's property whenever they would hear gunfire. Although they never saw anyone physically shoot on appellant's property, all three men did observe people on appellant's property. Purdum testified he saw three men on the property, two of them had long rifles and were discussing the weapons they were handling. Stubbs also once saw three men on appellant's property. One of the men had a rifle that looked like an AR-15 rifle. Stubbs testified that as soon as two police cruisers pulled into Purdum's driveway, the three men went into appellant's garage and closed the door. {¶ 5} Deputy Brian Lewis of the Warren County Sheriff's Office investigated the February 2005 shooting incident. On February 16, Dep. Lewis went to appellant's property and explained to him that as it had happened in 2004, there were once again complaints regarding shooting over on Lytle Road and bullets were striking houses on Laura Marie Drive. Appellant told the deputy he was at work on February 15, and denied shooting on February 15 or having someone shoot on his property. He refused the deputy's request to search the property without a warrant. {¶ 6} A search warrant was executed on March 16. Although no weapons were recovered during the search, various items associated with semi-automatic and automatic rifles were recovered at the property. These included 25 .223 cartridge casings found on the ground; magazines for an AR-15 type rifle with a capacity to hold 56 cartridges; trigger pins; AR and M16 parts; collapsible stocks for an AR or M16 rifle; a magazine loader for a .223 rifle; .223 caliber magazines; a drum magazine possibly for an AR or M16 rifle; and ammunition. Some recovered items were brand new and still in their factory packing. Appellant came home while the search was being conducted. He denied having shot weapons on his property or letting others shoot weapons. After being told about the recovered items, appellant stated "you've got to have the firearm to match with the ballistics and the bullet." {¶ 7} The .223 caliber bullet found in Poole's house and the 25 .223 casings found on appellant's property were examined by Timothy Duerr, a specialist in firearms and tool mark identification for the Miami Valley Regional Crime Laboratory. Duerr identified the bullet found in Poole's house as one that would be compatible with a semi-automatic AR-15 rifle. Duerr testified that the 25 .223 casings were fired from the same weapon. He could not, however, state whether the bullet from Poole's house came from one of the 25 casings. He further testified that the trigger pins found on appellant's property were only used with AR-15 rifles. {¶ 8} Dep. Lewis is a certified firearm instructor and an armorer certified to work on AR-15 and M16 rifles. He testified that a bullet fired from a semi-automatic weapon can travel over 3,000 yards. Thus, a bullet fired from such a weapon could travel the half-mile distance between appellant's and Poole's properties and then penetrate a roof, drywall, and window. Dep. Lewis also testified that based on maps and GPS readings, there was almost a straight line between appellant's property and Poole's house with only a few degrees off. The line was consistent with the angle of the bullet found in Poole's house. Gary Wilgus, a shooting reconstruction expert with the Ohio Bureau of Criminal Investigation, testified that he could not determine exactly from where the bullet found in Poole's house was fired. However, the bullet was fired from somewhere south of Poole's house, could have been fired from appellant's property, and could not have been fired from or near Poole's house. Both Wilgus and Detective Roger Barnes of the Warren County Sheriff's Office testified that the bullet could not have been fired from a firing range located two miles south of Poole's property. {¶ 9} Poole testified that there has been no further automatic gunfire since appellant's arrest. Likewise, Det. Barnes testified that there have been no reports of shooting since appellant's property was searched. {¶ 10} Over appellant's objections, the trial court allowed testimony regarding shooting incidents in 2004. Three neighbors living on the same street as Poole testified that in June 2004 they heard semi and/or full automatic gunfire coming from a location south of their properties. Appellant's property is south of their properties. The houses of two of the neighbors were hit by a bullet while a bullet was recovered from the third neighbor's car. A crime lab report showed that these bullets had been fired by a high caliber rifle. Poole likewise testified about hearing automatic gunfire in 2004. {¶ 11} Deputy Troy Lauffer of the Warren County Sheriff's Office investigated the 2004 shootings. Information from residents on Laura Marie Drive and Lytle Road led his investigation to appellant. Dep. Lauffer told appellant about the shooting complaints. He also advised appellant that if he was shooting on his property, to make sure he had an adequate backstop. Appellant admitted having an AK rifle and an AR rifle but refused to let the deputy see or take the weapons without a warrant. Dep. Lauffer returned to appellant's property on July 2, 2004 on a complaint of an illegal burn. At that time, he observed bullet holes in trees at the edge of the property. The deputy removed a spent round from a tree with his knife. Once again, appellant told the deputy to get a warrant before he looked any further. {¶ 12} Two witnesses testified on behalf of appellant. Randy Allen lives on appellant's street on a property owned by Ronald Wical. Allen testified he has heard gunfire coming from all directions, and has heard semi and full automatic gunfire mostly from the firing range. He also testified about hearing automatic gunfire one day near his property, from a place that was closer than the firing range. On that particular day, Allen brought his children inside his home. Wical testified about hearing automatic gunfire coming from various directions, including from appellant's property. {¶ 13} Finally, appellant testified on his behalf. Appellant testified that he was working on February 15, 2005, the day Poole's house was hit. Appellant denied shooting that day or in June 2004, and denied allowing people to shoot on his property. To his knowledge, nobody has shot from his property. Appellant testified that over the years, he has heard a lot of gunfire, typically from the firing range. However, appellant agreed that the bullet found in Poole's house could not have been fired from the firing range. {¶ 14} With regard to the 2004 shooting incidents, appellant denied telling Dep. Lauffer he had an AK or AR rifle. According to appellant, he never heard complaints in 2004 regarding automatic gunfire and high powered rifles; in fact, Dep. Lauffer only told him about one struck house. With regard to the people seen on his property by Poole, Purdum, and Stubbs, appellant testified he had no idea who they were. Appellant did say, however, that on the day Stubbs saw three persons on appellant's property, two persons were indeed on his property to look at a tractor. Appellant explained he had a lot of gun-related items, including parts for AR-15 rifles, because he intended to start a gun parts business and AR-15 and AK-47 rifles were the most popular weapons on the market. {¶ 15} Appellant also testified that (1) it was highly improbable Dep. Lauffer removed a bullet from a tree; (2) he did not allow his property to be searched without a warrant because he either had to leave or it was too late in the day; (3) he did not remove weapons from his property before the search warrant because there were no weapons to move; (4) the 25 .223 casings found on his property were likely fired by his wife's grandfather when he used to shoot at ground hogs; and (5) he would not shoot high powered rifles on his property because of safety concerns due to new construction. Appellant stated there was only a remote possibility that bullets fired from his property could strike houses on Poole's street; "it would have to be a magic bullet." {¶ 16} On September 28, 2005, a jury found appellant not guilty of improperly discharging a firearm at or into an habitation, but found him guilty of complicity to improperly discharging a firearm at or into an habitation. Appellant was sentenced to two years in prison. This appeal follows in which appellant raises two assignments of error. {¶ 17} Assignment of Error No. 1: {¶ 18} "THE CONVICTION SHOULD BE REVERSED BECAUSE THE EVIDENCE TO SUPPORT THE CHARGE WAS INSUFFICIENT AS A MATTER OF LAW." {¶ 19} In reviewing a claim of insufficient evidence, "[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. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 70, quotingState v. Jenks (1991), 61 Ohio St.3d 259, paragraph one of the syllabus. A reviewing court must not substitute its evaluation of the witnesses' credibility for that of the jury's. See State v. Benge,75 Ohio St.3d 136, 1996-Ohio-227. {¶ 20} In the case at bar, appellant's conviction was based solely on circumstantial evidence. However, both circumstantial and direct evidence have the same probative value, and in some instances, certain facts can only be established by circumstantial evidence. State v.Mobus, Butler App. No. CA2005-01-004, 2005-Ohio-6164, ¶ 51. "[C]ircumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant's guilt beyond a reasonable doubt." McKnight, 107 Ohio St.3d at ¶ 75. A conviction based on purely circumstantial evidence is no less sound than a conviction based on direct evidence. State v. Apanovitch (1987),33 Ohio St.3d 19, 27. {¶ 21} Appellant was convicted of complicity to improperly discharging a firearm at or into an habitation in violation of R.C. 2923.161(A)(1) and 2923.03. Under R.C. 2923.03(F), a defendant "may be convicted of [an] offense upon proof that he was complicit in its commission, even though the indictment is `stated * * * in terms of the principal offense' and does not mention complicity." State v. Herring, 94 Ohio St.3d 246,251, 2002-Ohio-796. {¶ 22} R.C. 2923.161(A)(1) provides that "no person, without privilege to do so, shall knowingly * * * discharge a firearm at or into an occupied structure that is a permanent or temporary habitation of any individual." "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 person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B). Complicity is defined in pertinent part in R.C. 2923.03 as follows: "No person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense, [or] [c]ause an innocent or irresponsible person to commit the offense." R.C. 2923.03(A)(2) and (4). "It is no defense to a charge under this section that no person with whom the accused was in complicity has been convicted as a principal offender." R.C. 2923.03(B). {¶ 23} To aid and abet is "[t]o assist or facilitate the commission of a crime, or to promote its accomplishment." State v. Johnson,93 Ohio St.3d 240, 243, 2001-Ohio-1336, quoting Black's Law Dictionary (7 Ed.Rev. 1999) 69. "To support a conviction for complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal." Johnson at syllabus. Such intent may be inferred from one's presence, companionship, and conduct before and after the offense is committed. Id. at 245. {¶ 24} Upon thoroughly reviewing the record, we find that the evidence was sufficient to support a finding that appellant was guilty of complicity to improperly discharging a firearm at or into an habitation with regard to the February 2005 shooting incident. The state presented circumstantial evidence that appellant knowingly (1) aided and abetted another in the commission of the offense or (2) caused an innocent or irresponsible person to commit the offense. {¶ 25} Following shooting incidents in 2004 in which houses and a car on Poole's street were struck by bullets coming from the direction of appellant's property, appellant was told by Dep. Lauffer about the shooting incidents and that he needed an adequate backstop on his property. When appellant's property was searched in March 2005, there was no such backstop. The semi and full automatic gunfire heard in 2004 came from the direction of appellant's property. Although he admitted owning an AK rifle and an AR rifle, appellant refused to let Dep. Lauffer look at the weapons or look around the property without a search warrant. Dep. Lauffer did observe bullet holes in trees at the edge of appellant's property and removed a bullet from a tree. {¶ 26} The bullet found in Poole's house was a .223 caliber bullet, the type of ammunition used in an AR-15 rifle. Experts for the state of Ohio estimated that the bullet's path crossed appellant's property and that it could not have been fired from the firing range. When Dep. Lewis contacted appellant on February 16, 2005 about the new shooting incident, appellant refused to let him search his property without a warrant. By the time the property was searched in March, no weapons were found. However, several gun related items were recovered including 25 .223 casings, .223 ammunition, magazines for an AR-15 type rifle with a capacity to hold 56 cartridges, and AR or M16 parts. Appellant explained the presence of those items by stating his intention to start a gun parts business. People with rifles were seen on appellant's property. Although appellant testified he did not know who those persons were, he did acknowledge that on the day a neighbor saw people on his property, two persons were on his property allegedly to look at a tractor. After his property was searched, the automatic gunfire stopped. {¶ 27} As previously noted, participation in criminal intent may be inferred from conduct before and after the offense is committed.Johnson, 93 Ohio St.3d at 245. A person acts knowingly when he is aware that his conduct will probably cause a certain result. R.C. 2901.22(B). Considering all of the foregoing facts and circumstances in the light most favorable to the prosecution, we find that the evidence is sufficient to support appellant's conviction for complicity to improperly discharging a firearm at or into an habitation. Appellant's first assignment of error is overruled. {¶ 28} Assignment of Error No. 2: {¶ 29} "THE TRIAL COURT DENIED APPELLANT A FAIR TRIAL AS GUARANTEED BY THE STATE AND FEDERAL CONSTITUTIONS WHEN IT LET THE PROSECUTION PRESENT EVIDENCE OF SIMILAR SHOOTINGS THAT HAPPENED MONTHS BEFORE THE CHARGED INCIDENT." {¶ 30} Appellant argues that the trial court erred by allowing several witnesses to testify about shooting incidents from 2004. The record shows that prior to the testimony, appellant objected to it on the ground that such evidence was irrelevant and prejudicial. The trial court overruled the objection, stating "[t]he fact that it may have occurred and [appellant] was on notice of those is relevant to one of the elements of this, which is knowledge [of the circumstances surrounding the February 15, 2005 shooting incident]." {¶ 31} The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173,180. Thus, we will not reverse the trial court's decision absent an abuse of discretion as well as a showing that the accused has suffered material prejudice. State v. Martin (1985), 19 Ohio St.3d 122, 129. Abuse of discretion connotes more than an error of law or judgment, and implies that the decision of the trial court was unreasonable, arbitrary, or unconscionable. State v. Hancock, 108 Ohio St.3d 57,2006-Ohio-106, ¶ 130. {¶ 32} 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 may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Thus, evidence of prior acts cannot be admitted merely to show that a defendant has a criminal character. However, under the exceptions of Evid.R. 404(B), the evidence can be admitted to show, inter alia, knowledge. As noted earlier, 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 person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B). {¶ 33} In the case at bar, witnesses living on the same street as Poole briefly testified that in June 2004, they heard semi and/or full automatic gunfire coming from a location south of their properties. Appellant's property is south of their properties. Their testimony also indicated that the houses of two of the witnesses were hit by a bullet while a bullet was recovered from the car of a third witness. Dep. Lauffer' s investigation of these shootings led him to appellant. Dep. Lauffer told appellant about the shooting complaints and advised him to have an adequate backstop. Although appellant told the deputy he had an AK rifle and an AR rifle, he refused to let him see or take the weapons without a warrant. The gunfire heard in 2004 resumed in 2005 but ceased following the search of appellant's property in March 2005. {¶ 34} The foregoing testimony was not offered to show that appellant acted in conformity with previous bad acts. Rather, it was offered to show that he had previously been told about the 2004 shooting incidents and had knowledge that shootings coming from the direction of his property had hit at least one house in Poole's neighborhood. Appellant was therefore aware that bullets fired from his property or its vicinity could strike houses a half of a mile away. Accordingly, the evidence was properly admitted under Evid.R. 404(B) to establish knowledge. SeeState v. Ridgeway, Cuyahoga App. No. 82713, 2004-Ohio-497. {¶ 35} In addition, the trial court specifically instructed the jury during trial: "Earlier, we heard testimony from a number of witnesses regarding allegations of other shootings or bullets in homes in June of 2004. * * * That evidence was received only for a limited purpose. It was not received and you are not permitted to consider it to prove the character of the Defendant or to show he acted in conformity or in accordance with that character. * * * [I]f you find that that evidence is true and that the Defendant committed those acts, you may then consider that evidence only for the purpose of deciding whether or not it proves the Defendant's knowledge of circumstances surrounding the offense charged in this trial. You are not permitted to consider that evidence to demonstrate the Defendant possessed a certain character or that he acted in accordance with that character[.]" A similar instruction was given to the jury before jury deliberations. {¶ 36} A jury is presumed to follow the instructions given by a trial judge, including curative instructions. State v. Loza, 71 Ohio St.3d 61,75, 1994-Ohio-409. There is no evidence that the jury disregarded the trial court's instructions. {¶ 37} We therefore find that the trial court did not abuse its discretion when it allowed testimony regarding shooting incidents from 2004. Appellant's second assignment of error is overruled. {¶ 38} Judgment affirmed. POWELL, P.J. and BRESSLER, J., concur.

2016-07-06 06:36:17.800884+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, Breland Johnson, appeals the judgment imposed by the Summit County Court of Common Pleas sentencing him to a prison term of thirty years. We affirm Defendant's sentence. {¶ 2} On November 26, 2003, Defendant was indicted on the following charges: two counts of attempted murder, in violation of R.C. 2903.02(A); one count of aggravated robbery, in violation of R.C. 2911.01(A)(3); one count of aggravated burglary, in violation of R.C. 2911.11(A)(1); two counts of felonious assault, in violation of R.C. 2903.11(A)(2); one count of robbery, in violation of R.C. 2911.02(A)(2); one count of escape, in violation of R.C. 2921.34(A); one count of grand theft, in violation of R.C. 2913.02(A)(4); one count of assault, in violation of R.C. 2903.13(A); one count of petty theft, in violation of R.C. 2913.02(A)(1); and one count of aggravated menacing, in violation of R.C. 2903.21. {¶ 3} Pursuant to a plea agreement, journalized on April 4, 2003, Defendant pleaded guilty to two counts of attempted murder, one count of aggravated robbery, one count of aggravated burglary, one count of complicity to commit felonious assault, one count of escape, and one count of assault. The remaining charges were dismissed. Defendant was originally sentenced on June 4, 2003. He appealed that sentence to this Court, and inState v. Johnson, 9th Dist. No. 21665, 2004-Ohio-1231, we affirmed his sentence in part, reversed in part and remanded for resentencing. We upheld the maximum and consecutive sentences, stating that the trial court properly made "the required findings and presented sufficient reasons in support of those findings when it sentenced [Defendant] to maximum * * * and concurrent terms of incarceration for the crimes of attempted murder and aggravated burglary." Id., at ¶ 28. {¶ 4} On remand, the trial court conducted a resentencing hearing and found, amongst other things, that Defendant had committed the worst form of the offenses, that he posed a great likelihood of committing future offenses, that he had a lengthy criminal record, and that he posed a danger to society. The trial court sentenced him to thirty years in prison. Defendant now appeals, asserting a sole assignment of error for our review. ASSIGNMENT OF ERROR "The trial court erred in imposing more-than-minimum, maximum, and consecutive sentences based upon findings made by the trial court and not a jury in violation of [Defendant's] Sixth Amendment right to trial by jury." {¶ 5} In his only assignment of error, Defendant maintains that the trial court violated his Sixth Amendment right to trial by jury in sentencing him to more than minimum and consecutive sentences. Defendant asserts that Blakely v. Washington (2004),542 U.S. 296 and U.S. v. Booker (2005), 125 S.Ct. 738,160 L.Ed. 621, compel reversal of his sentence. We affirm the decision of the trial court and overrule Defendant's assignment of error. {¶ 6} In State v. Rowles, 9th Dist. No. 22007,2005-Ohio-14, at ¶ 19-20, we held that Blakely is inapplicable to Ohio's sentencing scheme. Contrary to Defendant's assertions, the more recent U.S. Supreme Court case of U.S. v. Booker does not provide any rationale for us to revisit our prior holding, as stated in Rowles. State v. Burns, 9th Dist. No. 22198,2005-Ohio-1459, at ¶ 5. Consequently, Defendant's assignment of error is overruled. See State v. Bruce, 159 Ohio App.3d 562,2005-Ohio-373. {¶ 7} We overrule Defendant's assignment of error and affirm his sentence as imposed by the Summit County Court of Common Pleas. 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. Exceptions. Whitmore, J., Moore, J., concur

2016-07-06 06:36:17.843178+00

OPINION {¶ 1} Appellant, Betty L. Carroll, appeals from a June 7, 2006 judgment of the Portage County Court of Common Pleas, granting the motion for summary judgment of appellee, Victor V. Vigluicci, Portage County Prosecutor. {¶ 2} Because the trial court correctly determined that it did not have jurisdiction to hear appellant's foreclosure action, and because appellant's constitutional claims *Page 2 are not ripe for review as appellant has not exhausted the remedies afforded to her by R.C. 2925.42, we affirm. {¶ 3} Procedural Facts {¶ 4} On March 3, 2006, in Case No. 2006 CV 242, the state of Ohio, through appellee, filed an action against defendant, Martin W. Carroll, to abate the nuisance of felony drug activities located at 10478 Hopkins Road, in Nelson Township, Portage County, Ohio ("the property"), as well as a motion for temporary restraining order and preliminary and permanent injunction. The trial court granted the temporary restraining order the same day, finding that the property was dangerous and harmful to the health and safety of the community and was a nuisance pursuant to R.C. 3719.10 and 2925.13(F). The trial court further ordered that the property be padlocked and not be used for any purpose. On March 23, 2006, the trial court granted a preliminary injunction to continue the operative terms of the temporary restraining order. {¶ 5} On March 9, 2006, in Case No. 2006 CR 00089, defendant was indicted by the Portage County Grand Jury on multiple counts of felony drug trafficking, complicity to trafficking in cocaine, and permitting drug abuse. The indictment specified that the violations occurred between January 27 and February 28, 2006, and contained criminal forfeiture specifications for the property pursuant to R.C. 2925.42. {¶ 6} On March 21, 2006, appellant, defendant's mother, recorded a mortgage against the property. On April 3, 2006, in Case No. 2006 CV 0374 (the case underlying this appeal) she filed a "Complaint on Promissory Note and in Foreclosure" in the Portage County Court of Common Pleas against defendant and appellee. Appellant alleged, inter alia, that on November 14, 2001, defendant had executed a promissory note to her, in the amount of $60,000, and had given her a mortgage on the *Page 3 property to secure the note. Appellant stated that defendant failed to make the payments due on the mortgage and that the amount of $60,000, plus interest, was immediately due to her. {¶ 7} On May 3, 2006, appellee filed a motion to dismiss appellant's foreclosure action against the state, or in the alternative, a motion for summary judgment. The crux of appellee's argument was that pursuant to R.C. 2925.42(F)(1), appellant was prohibited from filing a civil foreclosure action against the state subsequent to the filing of a criminal indictment, which alleges that the property is subject to forfeiture. Appellee maintained that it was necessary for appellant to wait to file her claim in the criminal forfeiture hearing when that time arose.1 The trial court set the matter for non-oral hearing on May 30, 2006. {¶ 8} On May 18, 2006, appellant moved the trial court for default judgment against defendant. On May 22, 2006, appellant filed her response to appellee's motion for dismissal or summary judgment, maintaining, as she does in this appeal, that R.C. 2925.42(F) violated her due process and equal protection rights, and that it impaired her right to contract. {¶ 9} On May 23, 2006, the trial court granted default judgment to appellant for the amount of $60,000, but held it in abeyance pending a decision on appellee's motion to dismiss or summary judgment. *Page 4 {¶ 10} On June 7, 2006, the trial court granted appellee summary judgment on appellant's claims. Appellant filed this timely appeal, raising the following three assignments of error: {¶ 11} "[1.] [R.C.] 2925.42 deprives appellant of due process as well as her right of private property guaranteed by the United States and Ohio Constitution. {¶ 12} "[2.] [R.C.] 2925.42 deprives appellant of equal protection of the law guaranteed by the United States and Ohio Constitution. {¶ 13} "[3.] [R.C.] 2925.42 impairs appellants [sic] contract (note mortgage) with her son in violation of the United States and Ohio Constitution." {¶ 14} We review a trial court's decision to grant summary judgment de novo. Lubrizol Corp. v. Lichtenberg Sons Constr., Inc. 11th Dist. No. 2004-L-179, 2005-Ohio-7050, at ¶ 26, citing Grafton v. Ohio EdisonCo. (1996), 77 Ohio St.3d 102, 105. Under the de novo standard of review, we conduct an independent review of the evidence without deference to the trial court's decision. Brown v. Cty. Commrs. of SciotoCounty (1993), 87 Ohio App.3d 704, 711. Pursuant to Civ.R. 56(C), summary judgment is proper when: (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 but to one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made; that party being entitled to have the evidence construed most strongly in his or her favor. Id. {¶ 15} With this standard of review in mind, we now turn to appellant's arguments. Appellant's three assignments of error raise constitutional questions regarding R.C. 2925.42. At the outset, we note that "`no constitutional question is ripe for judicial review where the case can be disposed of upon other tenable grounds. The *Page 5 rule has been elaborated upon in a long line of cases.'" In the Matterof Yurchison and Treese (1993), 11th Dist. No. 92-T-4655, 1993 Ohio App. LEXIS 3321, at 4-5, quoting Van Fossen v. Babcock Wilcox Co. (1988),36 Ohio St.3d 100, 105. Therefore, we must first determine if these assignments are ripe for review. {¶ 16} Remedies Provided by R.C. 2925.42 {¶ 17} R.C. 2925.42 sets forth the procedures for forfeiture of property in connection with felony drug offenses. "The statute establishes that in certain instances a person who is convicted of a specific felony drug abuse offense forfeits all right, title and interest he or she may have in property if that property was an integral part of the specified illegal activity." (Emphasis sic.) State v.Hill (1994), 70 Ohio St.3d 25, 31. It was obviously enacted to combat various felony drug acts, acting not only as a penalty to those who choose to commit certain crimes, but also to dispossess a person of the means to commit further offenses. Id. at 32. It further assists the state in defraying expenses associated with the investigation and prosecution of those offenses. Id. {¶ 18} In Dept. of Liquor Control v. Sons of Italy Lodge (1992),65 Ohio St.3d 532, 534, the Supreme Court of Ohio stated: {¶ 19} "In construing a forfeiture statute the court must begin with a fundamental premise: Forfeitures are not favored by the law. The law requires that we favor individual property rights when interpreting forfeiture statutes. To that end, `statutes imposing restrictions upon the use of private property, in derogation of private property rights, must be strictly construed.' State v. Lilliock (1982), 70 Ohio St.2d 23,26 * * *." {¶ 20} When the state intends to seek forfeiture of private property, it must, in accordance with R.C. 2925.42(B)(1)(a), specify in the instrument charging the felony drug offense the nature of the right, title or interest the alleged offender has in the *Page 6 property potentially subject to forfeiture. If the trial court in the underlying criminal action subsequently determines by a preponderance of the evidence that the property is subject to forfeiture, it must clearly state so in an entry. The sentencing court then orders the property's forfeiture under R.C. 2925.42(B)(5)(a). {¶ 21} With respect to possible innocent owners of the property subject to forfeiture, the statute sets forth procedures to protect their interests. R.C. 2925.42(F)(2) mandates that after the entry offorfeiture, the prosecuting attorney who prosecuted the felony drug abuse offense "shall conduct or cause to be conducted a search of the appropriate public records that relate to the property, and make or cause to be made reasonably diligent inquiries, for the purpose of identifying persons who have any right, title, or interest in the property." {¶ 22} Upon completion of the search, "[t]he prosecuting attorney then shall cause a notice of the order of forfeiture, of the prosecuting attorney's intent to dispose of the property * * * and of the manner of the proposed disposal, to be given to each person who is known * * * to have any right, title, or interest in the property, by certified mail, return receipt requested, or by personal service." Id. Furthermore, this provision also instructs the prosecuting attorney to "cause a similar notice to be published once a week for two consecutive weeks in a newspaper of general circulation in the county in which the property was seized." Id. {¶ 23} Once a person asserting an interest in the property receives notice from the prosecutor, he or she has thirty days to petition the court that issued the order for a hearing to adjudicate the validity of his or her alleged right, title, or interest in the property. R.C.2925.42(F)(3)(a). In the case of a secured party or other lienholder of *Page 7 record, he or she, "[i]n lieu of filing a petition * * *, may file an affidavit * * * to establish the validity of the alleged right, title, or interest in the property." R.C. 2925.42(F)(3)(b). {¶ 24} However, under R.C. 2925.42, the General Assembly made it unequivocal that once an indictment against an alleged felony drug offender is filed, alleging that the property is subject to forfeiture, "no person claiming any right, title, or interest * * * may commence an action at law or equity against the state concerning the validity of the person's alleged right, title, or interest in the property * * *." R.C.2925.42(F)(1). Instead, an innocent property owner must follow the procedures set forth in the preceding synopsis of R.C. 2925.42(F)(2) and (3). {¶ 25} In the case sub judice, appellant filed her foreclosure action against defendant and the state on April 3, 2006, almost one monthafter the indictment against defendant was filed, alleging that the property was subject to forfeiture. The foreclosure action was prematurely filed and the trial court dismissed the action. {¶ 26} Appellant had a remedy under the statute to assert her alleged interest in the property. R.C. 2925.42(F)(2) and (3). If she asserted her alleged property interest in the forfeiture case, the trial court could have very well determined that she did have an interest in the property. If the trial court determined such, then she would not have an "injury" under R.C. 2925.42(F), which she seeks to be declared unconstitutional. Whether R.C. 2925.42(F) deprives one of his or her constitutional rights cannot be determined until he or she exhausts the remedies provided for in that statute. {¶ 27} Of course, if appellant did not receive proper notice of the forfeiture action or was in some other way deprived of her due process rights in that case, she had the right to bring a timely appeal from any final order in the forfeiture case to challenge the ruling of the trial court. See Taylor v. Toledo Ohio Police Dept. (Mar. 30, 2001), 6th *Page 8 Dist. No. L-00-1376, 2001 Ohio App. LEXIS 1502, at 5; State ex rel.Jackson v. State (Jan. 27, 2000), 8th Dist. No. 77261, 2000 Ohio App. LEXIS 219, 2. {¶ 28} Likewise, if the trial court, after hearing evidence on the matter in the forfeiture case, found that she did not have an interest in the property, she would have the right to appeal that ruling. Until one of these injuries occurs, appellant has not suffered a cognizable injury where she would be in a position to question the constitutional validity of the provisions under R.C. 2925.42. Thus, her claims are not ripe for judicial review. {¶ 29} Thus, just as the trial court properly concluded that it could not address the issues before it, including the constitutional questions, we, too, cannot decide these matters. Appellant has failed to show any error that would require us to reverse the trial court's judgment. {¶ 30} As such, the judgment of the Portage County Court of Common Pleas is affirmed. CYNTHIA WESTCOTT RICE, P.J., COLLEEN MARY OTOOLE, J., concur. 1 At the time of appellee's motion, defendant's criminal case was still pending. According to documents attached to appellee's motion, the trial court in Case No. 2006 CR 0089 accepted defendant's written pleas of guilty on May 8, 2006, to four counts of drug trafficking in cocaine with forfeiture specifications for the property and entered a nolle prosequi on the remaining counts. It further ordered that the matter be referred to the adult probation department for statutory investigation and written report. Thus, at the time of appellee's motion, defendant had not been sentenced yet, nor had there been a criminal forfeiture hearing. *Page 1

2016-07-06 06:36:16.210911+00

Hildebrant

Plaintiff herein disaffirmed his contract of purchase of a used automobile from defendant on the ground of the former's minority and recovered a judgment for the return of the consideration less the cost of certain accessories furnished by defendant and less certain proved damage and an allowance for depreciation covering the period from date of purchase to time of filing suit. That is the judgment appealed from on questions of law. The car was purchased September 22, 1948, with the certificate of title furnished the following day, and the suit based on disaffirmance due to minority was instituted December 29, 1948. The record discloses that the automobile was returned to the possession of the defendant a few days after the purchase, where it remained in dead storage until the time of trial on May 3, 1950, at which time a certificate of title was tendered and delivered to the defendant enabling him to exercise ownership over the car. Upon substantial evidence, the trial court made the following findings of fact: "1. That at the time of the purchase of a 1940 model Chevrolet sedan by the plaintiff, Raymond Rush, from the defendant, Gilbert J. Grevey, in September, 1948, plaintiff was a minor of the age of 20 years. *Page 538 "2. That the plaintiff at the time he purchased said automobile in September 1948 represented to the defendant that he was over the age of 21 years; that this representation, coupled with the appearance of the plaintiff, his size, demeanor, etc. induced the defendant to believe that plaintiff was not an infant. "3. That the plaintiff when he returned the car to the defendant's place of business a few days after the purchase of the same, did not make known to the defendant that he was disaffirming the contract of purchase because of his minority. "4. That the plaintiff did not at any time before the actual hearing of this cause, which was on May 3, 1950, tender back to the defendant a duly executed certificate of title for the automobile. "5. That some time in October 1948 one of plaintiff's counsel made a demand upon the defendant for the return of the consideration paid to him by plaintiff, because of his minority. "6. No fraud or imposition was worked upon the plaintiff infant by the defendant in reference to the sale of this motor vehicle and that the contract of purchase was fair. "7. At the time of the return of the car to the defendant it was damaged to the extent of $60, said damage taking place while the car was in possession of plaintiff. "8. The automobile declined in value on the market approximately $100 between October 1948 and January 1, 1949." In applying the law of Ohio as announced in Mestetzko v.Elf Motor Co., 119 Ohio St. 575, 165 N.E. 93, the trial court limited the allowance for depreciation or decline in market value of the car to the time between the date of purchase, September 22, 1948, and January 1, 1949, approximately the date of filing the *Page 539 petition on December 29, 1949, which the court viewed as conclusive notice of intention to disaffirm. A certificate of title was actually delivered to defendant on May 3, 1950, the date of trial, and counsel now agree that the sole question for decision here is as to the amount allowable to the defendant as a deduction for depreciation. Although plaintiff pleads that he has at all times been ready, willing, and able to transfer title to defendant upon a return of the purchase price, it is clear, and the court so found as a fact, that no certificate of title was tendered prior to the date of trial on May 3, 1950. Mere restoration of possession of the car and placing it in dead storage by defendant were not effective to restore the incidents of ownership parted with by the defendant at the time of sale, and of which he was deprived until May 3, 1950. The courts recognize the legal right of the minor to disaffirm under the circumstances here, with or without restoration. But the legal right to disaffirm on the ground of minority, where no fraud or imposition has been worked upon the plaintiff, but, on the contrary, where the minor by his misrepresentation as to his true age induced defendant to deal with him, must proceed upon equitable principles, and the minor, treated as an adult, must be required to do equity in seeking equity. Consonant with that view, the burden was on the plaintiff to tender the certificate of title without which mere restoration of possession of the automobile was ineffective to constitute a complete restoration of ownership to the defendant such as would be recognizable in the courts in accordance with the holding inMielke v. Leeberson, 150 Ohio St. 528, 83 N.E.2d 209, 7 A.L.R. (2d), 1342. There is ample evidence in the record from which the court can find and allow the depreciation or the *Page 540 amount of decline in market value of the car between September 22, 1948, the date of sale, and May 3, 1950, the date of effective restoration of title to the defendant. The judgment is, therefore, reversed and the cause remanded for further proceedings in accordance with this opinion. Judgment reversed. HILDEBRANT, P. J., MATTHEWS and ROSS, JJ., concur in the syllabus, opinion, and judgment.

2016-07-06 06:36:16.244536+00

Doyle

This action was commenced in the Municipal Court of Akron. The plaintiffs therein recovered a judgment in the sum of $1,132.10 and costs against the defendant for damages to an automobile. The issues of negligence, contributory negligence, proximate cause and damages were presented to the court for decision, a jury having been waived. The defendant has appealed to this court, alleging error in the rendition of the judgment against him. There is evidence tending to prove that on April 25, 1953, Bennett, a plaintiff, was operating his automobile north on the Akron-Canton Road and that traffic was moving in both directions, including a tractor-trailer unit traveling south. The defendant, Krauss, had parked his car off the west side of the four-lane highway, and, when leaving the parking area to proceed north toward Akron, drove easterly across the southbound lanes, and behind the aforementioned tractor-trailer unit traveling south in the southbound lane. As he emerged from behind the tractor-trailer, he saw the plaintiff's car proceeding north on its proper side of the highway. The defendant thereupon applied his brakes and came to a stop in the center of the highway, with the front part of his *Page 497 car over the center line. At this moment, Bennett, a plaintiff, had arrived at the scene and, to avoid a collision, turned his car to the right. He then applied his brakes, and his car swerved off the highway and into the front wall of a building adjacent to the roadway. The resulting damage to the car and the reasons therefor caused the lawsuit. The General Exchange Insurance Corporation is a party plaintiff through an assignment by Bennett of a part of his claim. The appellant, Krauss, asserts the following errors, which he claims are prejudicial to him: "A. That the plaintiffs failed to prove by a preponderance of the evidence that the proximate cause of the accident was the result of defendant's negligence. "B. That the plaintiff Bennett was guilty of contributory negligence, in that he failed to have his car under proper control so as to bring it to a stop within the assured clear distance ahead. "C. That the finding and judgment is against the greater weight of the evidence." 1. Section 4511.44, Revised Code, provides: "The operator of a vehicle, streetcar, or trackless trolley about to enter or cross a highway from a private road, driveway, alley, or building shall stop and yield the right of way to all traffic approaching on said highway." Section 4511.01, Revised Code, in part, provides: "(RR) `Right of way' means the right of a vehicle, streetcar, trackless trolley, or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, streetcar, trackless trolley, or pedestrian approaching from a different direction into its or his path." These Code provisions are cognate sections, and must be construed together. One section requires the operator of an automobile, when about to enter or cross a public highway from a "private road, driveway, alley, or building," to yield the right of way to all traffic approaching on the highway. The other section, which defines "right of way," confers an absolute right upon all traffic approaching on the highway to proceed uninterruptedly *Page 498 in a lawful manner in the direction in which it is moving in preference to a vehicle entering or crossing the highway from a private road, driveway or alley. See: Morris v. Bloomgren,127 Ohio St. 147, 187 N.E. 2, 89 A. L. R., 831. The absolute right conferred upon approaching traffic on the highway is qualified only by the requirement that, in proceeding uninterruptedly, it must proceed in a lawful manner. A failure to yield the right of way to a lawful user of the highway in violation of the above-quoted Section 4511.44, Revised Code, constitutes negligence per se. It is a specific and definite requirement of the law. Ewing v. Burkhardt Brewing Co.,57 Ohio App. 463, 15 N.E.2d 160; Bohn v. Deyo, 66 Ohio App. 500, 35 N.E.2d 451. See, also, annotation in 29 A.L.R. (2d), 112 et seq. The conclusion by the trier of the facts, that the plaintiff when driving north at the time of the accident was proceeding lawfully, is amply sustained by the evidence. The assured-clear-distance-ahead statute (Section 4511.21, Revised Code), which provided, among other things, that "no person shall drive any motor vehicle * * * in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead," if it may be said to have some bearing on the case, could indeed be found not to have been violated by the trier of the facts. Surely, when evidence of probative worth indicates that an automobile proceeds across a public highway from a parking space to join the flow of traffic, and in doing so blocks the path of another car which is almost upon it, a finding of fact to the effect that the driver on the main highway did not violate the assured-clear-distance-ahead statute is within the reason and spirit of the many Ohio cases treating the legal question; and in the case before us is not manifestly against the weight of the evidence. McFadden, Admx., v. Elmer C. Breuer Transp. Co., 156 Ohio St. 430,103 N.E.2d 385; Sherer v. Smith, a Minor, 155 Ohio St. 567,99 N.E.2d 763; Erdman v. Mestrovich, 155 Ohio St. 85,97 N.E.2d 674; Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81,33 N.E.2d 3, 133 A. L. R., 960. In finding that the plaintiff was proceeding lawfully, the court could very properly find, as it apparently did, that the defendant *Page 499 was guilty of negligence as a matter of law in violating the provisions of Section 4511.44, Revised Code. 2. Now to the question of whether the court could properly find that negligence of the defendant, Krauss, was the proximate cause of the damage to the automobile. In the case of Gedeon, Admr., v. East Ohio Gas Co., 128 Ohio St. 335,190 N.E. 924, the following is the syllabus of the court: "Damages for an injury resulting from a negligent act of the defendant may be recovered if a reasonably prudent and careful person, under the same or similar circumstances, should have anticipated that injury to the plaintiff or to those in a like situation would probably result." In the Gedeon case, the defendant's negligence influenced another individual to take action immediately resulting in injury to a third person. In the case under consideration, the defendant's negligence influenced the plaintiff Bennett to take emergency action to avoid a collision between the two automobiles. It was for the court to determine, from the facts, whether a reasonably careful and prudent person might be expected to know that the sudden and unexpected appearance of his automobile in front of an oncoming car, in violation of the statute, would probably cause the driver thereof to take emergency action to avoid a collision, which action might consist in swerving off the highway and into adjacent buildings with consequent damage. It would seem that the conclusion could be properly reached that the collision with the building was a probable consequence of the defendant's conduct. There are sometimes circumstances under which a chain of causation is broken, but in this case the effect of the negligence of the defendant could be properly traced through the conduct of the plaintiff into the collision with the building; and the probability of such a result was, in this case, one which the trier of the facts could properly find should have been anticipated by the mind of a reasonably prudent and careful person. Mouse v. Central Savings Trust Co., 120 Ohio St. 599,167 N.E. 868. See, also, Tanzi v. New York Central Rd. Co.,155 Ohio St. 149, 98 N.E.2d 39, 24 A. L. R. (2d), 1151. *Page 500 It is our conclusion that the court's findings on the causes of negligence, proximate cause, contributory negligence and damages were entirely justified by the evidence, and that the judgment should be affirmed. Judgment affirmed. STEVENS, P. J., and HUNSICKER, J., concur.

2016-07-06 06:36:16.278124+00

Resnick

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 559 This accelerated case is before the court on appeal from a judgment of the Lucas County Court of Common Pleas, which granted the summary judgment motion of defendant-appellee, the city of Toledo, and the motion to dismiss of defendant-appellee, M.A. Hauser Enterprises, Inc. Plaintiffs-appellants, Carl Pippin, Sr., and Carol Pippin, appeal that judgment and set forth the following assignments of error: "A. The trial court erred in granting defendant city of Toledo's motion for summary judgment. "B. The trial court erred in determining as a matter of law that plaintiff was a `recreational user' under Ohio Revised Code1533.18 and that the defendant, city of Toledo, was therefore immune from liability. "C. The trial court erred in determing, as a matter of law, that the fee paid to the city of Toledo was not paid on behalf of plaintiff. "D. The trial court erred in determining that the plaintiff knowingly signed a waiver and release of liability. "E. The trial court erred in granting M.A. Hauser's motion to dismiss inasmuch as plaintiff was in the process of serving this defendant by publication." Due to the fact that this case involves an issue not previously decided by this court, it is hereby placed on the court's regular docket. See Sixth Dist.Loc. App.R. 12(B). *Page 560 In 1992, C C Painting, a business owned and operated by Carl Pippin, Sr., paid a $450 sponsor's fee to the city of Toledo for the purpose of permitting a company softball team to participate in the Toledo Amateur Federation, a city softball league. None of the players on the C C Painting team, including Carl Pippin, Sr., who also played on the team, paid an individual fee. All games were played at Scott Park, a facility operated and maintained by the city of Toledo. At the time that he paid the fee, Carl Pippin, Sr., was required to sign, in his representative capacity, a written contract agreeing to abide by the rules and regulations of the softball league. In addition, the agreement included a "Player Contract" containing a waiver and release of liability clause that protected the city of Toledo from suit in the event that one of the players was injured during a softball game. A space for the signature of each player was provided in this portion of the contract. On July 28, 1992, Carl Pippin fractured his leg during a softball game when, as he was sliding into second base, his foot went into a hole under the base. The base, known as "Saf-T-Slider," was manufactured by M.A. Hauser Enterprises, Inc. ("Hauser"). On July 27, 1994, Carl Pippin, Sr., and his spouse, Carol Pippin, filed suit against appellees. They alleged that the base manufactured by Hauser was defectively designed and/or failed to adequately warn of the dangers of the product. The Pippins also claimed that the city of Toledo was negligent in its maintenance of the playing field and that this negligence was a proximate cause of Carl Pippin's injury. Appellants attempted service of process on Hauser by means of certified mail to a post office box in California. This service was returned marked "BOX CLOSED, UNABLE TO FORWARD, RETURN TO SENDER." Appellants then sent notice per certified mail to a California address belonging to a corporation having no relationship with or connection to Hauser. Due to this insufficiency of service of process, Hauser filed, on April 19, 1995, a motion to dismiss pursuant to Civ.R. 12(B)(5). In July 1995, appellants filed an affidavit and proposed notice to be used in serving process on Hauser by means of publication. No evidence that notice by publication was actually attempted or achieved is in the record of this case. The city of Toledo answered the complaint and, on June 9, 1995, filed a motion for summary judgment. The city asserted that no genuine issues of material fact existed on the questions of (1) whether the city was immune from liability because Carl Pippin, Sr., was a "recreational user" of the park facilities within the meaning of R.C. 1533.18(B), (2) whether, by engaging in a sports activity, Carl Pippin, Sr., assumed the ordinary risks of the activity and could not recover because the city's conduct was not reckless or intentional, and (3) whether Carl *Page 561 Pippin, Sr., signed a written waiver and release of liability at the time he signed the contract. On November 1, 1995, the trial court granted Hauser's motion to dismiss and the city's motion for summary judgment. The court based the grant of summary judgment on R.C. 1533.18(B) and on the fact that Pippin signed a waiver and release of liability. In Assignments of Error A, B and C, appellants assert that the trial court erred in granting summary judgment on the ground that Pippin was a recreational user. Appellants contend that facts offered in the present case create a factual dispute as to whether Pippin was a "recreational user" within the meaning of the statute because C C Painting was required to pay a fee to the city in order to participate in the softball league. Summary judgment is a method for promptly disposing of actions in which there is no genuine issue of material fact.Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2, 24 O.O.3d 1, 1-2, 433 N.E.2d 615, 616. Civ.R. 56(C) provides that when a party moves for summary judgment, it shall be rendered if: "* * * the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor." It is undisputed that the baseball diamond where Pippin was injured is one of four such diamonds located in a city or municipal park. Therefore, the city of Toledo had a statutory duty to maintain that park. See R.C. 723.01. Nevertheless, R.C.1533.181 provides that the owner or occupant of recreational premises owes no duty to a recreational user to keep the premises safe. Properties owned and maintained by the state, a political subdivision, or a board of education are premises within the meaning of the statute. Johnson v. New London (1988), 36 Ohio St.3d 60,64, 521 N.E.2d 793, 797. Thus, R.C. 1533.18(B) affords statutory immunity to municipalities from negligent maintenance actions brought by recreational users injured at municipal parks.LiCause v. Canton (1989), 42 Ohio St.3d 109, 537 N.E.2d 1298, syllabus. A recreational user is "a person to whom permission has been granted, without the payment of a fee or consideration to the owner, lessee, or occupant of *Page 562 premises, * * * to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits." R.C. 1533.18(B). Softball is a "recreational pursuit" within the meaning of the statute.Miller v. Dayton (1989), 42 Ohio St.3d 113, 115,537 N.E.2d 1294, 1296-1297. The issue raised by appellants is one of first impression in this district and was not, as asserted by appellees, directly decided in Miller. In Miller, Robert Miller was injured when sliding into second base during a softball tournament. Miller's team was required to pay a $200 fee to an unknown sponsor in order to enter the tournament. The tournament was held in a municipal park. Miller sued the city of Dayton. Pursuant to the recreational user statutes, the trial court granted Dayton's motion for summary judgment. The court of appeals reversed. On appeal to the Ohio Supreme Court, the fact that a fee was paid to the tournament sponsor was raised with regard to the issue of whether that sponsor was an "occupant" within the meaning of R.C. 1533.18(B) of the park for the purpose of taking Miller outside the ambit of the recreational user statutes. Id.,42 Ohio St.3d at 115-116, 537 N.E.2d at 1296-1297. The Miller court rejected this contention, finding that the city of Dayton was the "owner, lessee or occupant" of the park. Thus, the question of whether a fee paid by a sponsor to a municipality prevents application of the recreational user statute was not decided by the Ohio Supreme Court. In reaching its decision in the instant case, the trial court relied on Dinarda v. Louisville (July 15, 1991), Stark App. No. CA-8415, unreported, 1991 WL 136101, to find that the payment of a fee by a team sponsor to a municipality does not affect the status of individual members of that team as "recreational users." The Dinarda court reasoned that the fee was paid to allow the sponsored team, regardless of composition, to play in the softball league. That is, the fee was not for the purpose of allowing individual players to use the municipality's field for a recreational use. Id. Our research discloses another appellate district that used similar reasoning to reach the same conclusion. Dowdell v.Eastlake (Aug. 10, 1990), Lake App. No. 89-L-14-121, unreported, 1990 WL 117083. However, the Cuyahoga County Court of Appeals came to the opposite conclusion. Nowak v. Ries (Dec. 19, 1991), Cuyahoga App. No. 59276, unreported, 1991 WL 271353. In what is essentially dicta (the trial court's judgment was affirmed on other grounds), the Eighth Appellate District determined that the injured softball player could not have used the city of Parma's softball field absent the payment of a fee to the city by the team sponsor. For the following reason, we do not find the reasoning in Nowak persuasive. In reversing the court of appeals, the Miller court held that, in determining an individual's status as a recreational user, "the analysis should focus on the *Page 563 character of the property upon which the injury occurs and the type of activities for which the property is held open to the public." Id. at syllabus. The nature of the property in this case is, admittedly, a municipal park. There is no evidence in the record from which one could infer that Pippin as an individual, could not have utilized the softball facilities without the payment of a fee. The evidence offered in this case reveals only that the fee in question in this case was a sponsor's fee that permitted a C C Painting team to join a league. That is, the fee was not required for any specific team member to make use of the park's recreational facilities. Accordingly, we find that the trial court did not err in finding that no genuine issue of material fact exists as to whether Pippin was a recreational user and that reasonable minds could only conclude that the city was immune from liability pursuant to R.C. 1533.181. Assignments of Error A, B, and C are found not well taken. Assignment of Error D challenges the grant of summary judgment on the basis that Pippin knowingly signed a waiver and release of liability thereby precluding him from recovering damages from the city of Toledo that resulted from his softball injury. Appellants assert two arguments. First, they argue that no evidence exists to demonstrate that Pippin signed, in his individual capacity as a player, the waiver and release of liability. Second, they maintain that because Pippin avers, by means of affidavit, that he cannot read or write, no evidence exists on the issue of whether he understood what he signed. Express assumption of the risk occurs when a person expressly contracts with another not to sue for any future injuries caused by the negligence of that second person. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 6 OBR 170, 174, 451 N.E.2d 780,783-784. Thus, a participant in a recreational activity is free to contract with the proprietor of that activity to relieve the proprietor of liability for injury to the participant caused by the negligence of the proprietor. Cain v. Cleveland ParachuteTraining Ctr. (1983), 9 Ohio App.3d 27, 28, 9 OBR 28, 29-30,457 N.E.2d 1185, 1186-1187. In such an instance, the proprietor can be held liable only if its conduct was willful or wanton. Id. In the present case, appellants do not argue that the release of liability clause is ambiguous. Our reading of that clause reveals that it is plain and unambiguous in relieving the city of Toledo from liability for injury to softball players caused by the negligence of the city or its agencies. Thus, with regard to the contract itself, the only question before this court is whether Pippin's claim of a failure to understand the terms of the release creates a question of fact as to whether he is bound by that signed release. Although it is impossible to read his signature under the "Player Contract" section of the agreement, Pippin declared, in his affidavit: *Page 564 "2. When I signed the Waiver and Release of Liability I was unable to read and write. Further, I did not completely understand this document." (Emphasis added.) Accordingly, no question of fact exists on the issue of whether Pippin signed the release. With regard to Pippin's alleged failure to "understand" the release of liability, he testified, in his deposition, that his wife, Carol, read the waiver and release of liability section of the contract to him. The waiver contains such language as "We, the undersigned, hereby declare, assert and affirm that our participation in the * * * Toledo Amateur Federation is done having voluntarily and knowingly assumed the risks involved in the above-stated program * * *." The release also states: "We further certify that we have read and understand the above Waiver and Release of Liability prior to signing." A person who signs a contract without making a reasonable effort to know its contents cannot, in the absence of fraud or mutual mistake, avoid the effect of the contract. CampcoDistrib. v. Fries (1987), 42 Ohio App.3d 200, 203,537 N.E.2d 661, 664-665, quoting Indep. Directory Corp. v. Vandenbrock (Ohio App. 1950), 43 O.O. 229, 230-231, 57 Ohio Law Abs. 313, 316-317, 94 N.E.2d 228, 230. This rule is applicable even in cases where the person seeks to avoid the effect of the contract by citing ignorance of the contract's contents or a failure to understand those contents. Muskovitz v. Sun Underwriter's Agencyof Sun Ins. Co. (1913), 3 Ohio App. 422, 424. See, also,McAdams v. McAdams (1909), 80 Ohio St. 232, 241, 88 N.E. 542,544-545. Therefore, any statement in Pippin's affidavit related to an inability to understand the release is insufficient to raise a question of fact as to whether he can avoid the effect of the release. Accordingly, we find that the trial court did not err in finding that no question of fact existed on the issue of whether Pippin relieved the city of Toledo of any liability for injury resulting from its negligent conduct by executing a valid waiver and release of that liability. Further, as observed by the trial court, there is no evidence in the record of this case that Pippin's injury was caused by willful or wanton misconduct on the part of the city of Toledo. For these reasons, appellants' Assignment of Error D is found not well taken. Assignment of Error E asserts that the trial court erred in dismissing the Pippins' case against Hauser for insufficiency of service of process under Civ.R. 12(B)(5) because appellants were attempting to serve this defendant by means of publication. Hauser's motion to dismiss for insufficiency of service of process could be premised only on Civ.R. 3(A), which requires service of process upon a named defendant within one year after the filing of a complaint. Hauser's motion to *Page 565 dismiss was filed less than one year after appellants filed their complaint. Nevertheless, process was not served on Hauser by the time the trial court entered judgment, some fifteen months after appellants filed their complaint. Thus, we shall consider Hauser's motion to be simply premature. Effective service of summons is a requisite to the commencement of a cause of action. Lash v. Miller (1977),50 Ohio St.2d 63, 4 O.O.3d 155, 362 N.E.2d 642. It is undisputed in this case that certified mail service, as required by Civ.R. 4.3(B)(1), on Hauser failed and that, even if proper, service by publication was not achieved. Such failure of proper service is not a minor, hypertechnical violation of the Civil Rules.Cleveland v. Ohio Civ. Rights Comm. (1988), 43 Ohio App.3d 153,157, 540 N.E.2d 278, 281-282. Rather, the service failed to satisfy the due process requirements afforded by proper service, See Mullane v. Cent. Hanover Bank Trust Co. (1950),339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873, and deprived the trial court of personal jurisdiction over Hauser, State ex rel.Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 183,553 N.E.2d 650, 651-652. Consequently, the trial court did not err in dismissing appellants' cause of action against Hauser. Appellants' Assignment of Error E is found not well taken. The judgment of the Lucas County Court of Common Pleas is affirmed. Carl and Carol Pippin are ordered to pay the costs of this appeal. Judgment affirmed. ABOOD and SHERCK, JJ., concur.

2016-07-06 06:36:18.855462+00

McCormac

In this cause, the court is presented with the issues of whether, under R.C. 3105.31(F) and 3105.32(F), a party seeking annulment must demonstrate fault on the part of the defendant, and whether promises contained in an antenuptial agreement, which agreement omits to provide that subsequent nonconsummation of the marriage would void the agreement or render it unenforceable, are extinguished by nonconsummation under Gross v. Gross (1984),11 Ohio St.3d 99. On June 23, 1982, Lynn Reetz-Lang, defendant-appellant, and Earl Lang, plaintiff-appellee, entered into an antenuptial agreement which provided, in part, that in consideration of marriage the real estate known as 268 East Royal Forest Boulevard, then owned solely by plaintiff, was to be placed in the names of both parties in a tenancy by the entireties. The wedding ceremony took place on July 31, 1982. The deed was executed by plaintiff prior to the wedding, held by a third party until after the wedding, and then recorded. On the parties' wedding night, they failed to consummate the marriage and, thereafter, neither party made any further attempt to consummate. In December 1982, plaintiff filed a complaint for annulment and later an amended complaint for annulment or divorce. On September 27, 1983, the trial court issued its decision on the matter, awarding plaintiff an annulment. Findings of fact and conclusions of law, issued on November 14, 1983, determined that the marriage was voidable under R.C. 3105.31(F), that the antenuptial agreement was rescinded for failure of consideration, and that the plaintiff was restored to sole title of the real estate. Defendant has stated four assignments of error. Her first assignment of error is as follows: "I. The trial court committed error as a matter of law by failing to make any determination pursuant to O.R.C. § 3105.31(F) of a condition existing prior to marriage which prevented consummation." R.C. 3105.31(F) provides, as a ground for annulment, the following: "That the marriage between the parties was never consummated although otherwise valid." Defendant argues that R.C. 3105.31(F) must be read as requiring that one or both of the parties must have been incapable of performing coition at the time of the marriage to constitute the ground of nonconsummation. Plaintiff, on the other hand, argues that R.C. 3105.31(F) does not require that a party prove that one is incapable of intercourse, but, rather, that intercourse did *Page 79 not take place. In effect, defendant is arguing that the ground of nonconsummation means impotency; incapability to perform the act. Plaintiff's approach is that the statute means exactly what it says and the reasons for nonconsummation are irrelevant. R.C. 3105.31(F) does not require that a condition exist prior to marriage which would prevent consummation of the marriage and which continues throughout the marriage to the point of annulment. While R.C. 3105.31(F) includes the condition of impotency, it does not mean impotency because the drafters could have used that term as it was used in the divorce section to mean nonconsummation. Therefore, the pre-existence of a condition preventing consummation is not a requisite for annulment for nonconsummation. Rather, R.C. 3105.31(F) should be interpreted as requiring some finding of "fault" on the part of defendant. (See discussion infra.) The first assignment of error is overruled. As to the second assignment of error, defendant states: "II. The trial court committed error as a matter of law by failing to make any finding of fault pursuant to O.R.C. §3105.32(F)." The proper interpretation of R.C. 3105.31(F) and 3105.32(F) is that an action based upon nonconsummation contemplates that the defendant is somehow at fault. The language utilized in R.C.3105.32(F) imparts this meaning — the "party aggrieved" brings the action for nonconsummation. One treatise writer has indicated that the draftsmen had in mind, in addition to impotency, a willful refusal to consummate the marriage without good cause as a ground for annulment. The court finds this is to be a logical interpretation of the nonconsummation subsection. Where one of the parties has willfully or knowingly refused or avoided consummation of the marriage, the other has a proper ground for annulment, although the marriage was valid otherwise. That the trial court failed to include a definitive assignment of "fault" to defendant as a prerequisite to the decreeing of the annulment, however, cannot be said to have been prejudicial error and ground for reversal, inasmuch as the record below clearly demonstrated that defendant knowingly avoided, if not outright refused, participation in intercourse with plaintiff. SeeAnderson v. Anderson (1966), 8 Ohio Misc. 97 [37 O.O.2d 108] (level of proof for ground must be clear and satisfactory). The second assignment of error is overruled. Defendant, for her third and fourth assignments of error, states: "III. Even if the trial court was correct in granting an annulment, the court committed error in conveying the property to the appellee without a showing of fault by appellant. "IV. The trial court committed error when it conveyed the property to appellee." Defendant argues that the Ohio Supreme Court's holding inGross, supra, requires that this court reverse the trial court's conveyance of the real estate mentioned in the antenuptial agreement to plaintiff. Plaintiff asserts that the trial court properly conveyed the property back to him upon failure of the consideration, the marriage. A marriage which fails for nonconsummation is not void abinitio but, rather, is voidable. Darling v. Darling (1975),44 Ohio App.2d 5 [73 O.O.2d 5]. That is, the marriage is otherwise valid when entered into until one of the parties obtains a court order annulling the relationship. Marriage is said to be the highest consideration in the law; marriage to be thereafter consummated is a valuable consideration which will support a promise. Rudrick v. Thull (1931), *Page 80 39 Ohio App. 69; Groves v. Groves (1902), 65 Ohio St. 442. The parties were married on July 31, 1982. As part of the consideration for the marriage, plaintiff placed the name of his house in the names of both parties. As a result of conduct by defendant, the marriage was not consummated. The parties remained married for only four months, much of which time was spent in fighting and adversity. As pointed out previously, the marriage was properly annulled on the grounds of nonconsummation. The parties lived in the house for four months, during which time defendant had done some painting and other maintenance, but she had not expended any money. The type of work that she did appeared to be the kind that a person living in a house would reasonably perform. The trial court conveyed the property back to plaintiff, finding no consideration for the transfer of the property. The record fully supports that finding. As pointed out in Darling, supra, an annulment decree operates to hold the marriage as a nullity as though it had never existed with the limitation that the legal fiction of retroactive nullification should not be applied to work an injustice.Darling, supra, at 8. In this case, the consideration for the transfer of the property was a marriage valid at the time of its inception. By finding grounds for annulment in favor of plaintiff, the trial court has found that the marriage was invalid from its inception. Consummation of a marriage in this case, and, ordinarily, is considered an essential part of the marriage contract which is recognized by the fact that the General Assembly has declared nonconsummation to be grounds for annulling a marriage and declaring it void from its inception. Thus, the trial court properly found that there was no consideration for transfer of the property of plaintiff to defendant since the marriage ceremony was not followed by the expected consummation. Justice is served by retroactive nullification, although the parties failed to expressly provide therefor in their prenuptial agreement. It is true, as indicated in Darling, that retroactive nullification should not be applied where it would operate to work an injustice. In Darling, retroactive nullification would have been an injustice because the first husband would have been required to pay alimony to his former wife after nullification of her second marriage had the fiction been employed. In this case, retroactive nullification is the only way to achieve justice. As pointed out, defendant failed to consummate the marriage. Thus, there was no consideration for the marriage or for transfer of the property. She has not invested any money in the property and would, thus, receive a windfall for her four-month failure to consummate the marriage if she were to receive the consideration for a marriage contract that was declared to be void at its inception. It is unrealistic to expect the parties to have placed a condition that the marriage first be consummated in the contract to transfer the property. Consummation of the marriage was an inherent part of the marriage contract and was an implied condition of the agreement. Moreover, the agreement was not an antenuptial agreement of the type referred to in Gross, supra. The rationale of Gross is inapplicable because the fault inGross was not one that went to the very heart of the marriage contract causing the marriage contract to be annulled and void at its inception. In Gross, the court was referring to conduct of a party that was ground for a divorce later. Defendant's third and fourth assignments of error are overruled. Defendant's assignments of error *Page 81 are overruled, and the judgment of the trial court is affirmed. Judgment affirmed. REILLY, P.J., concurs. CASTLE, J., dissents. CASTLE, J., retired, of the Twelfth Appellate District, was assigned to active duty under authority of Section 6(C), Article IV, Constitution.

2016-07-06 06:36:18.911276+00

Walsh

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 172 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 173 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 174 AMENDED OPINION {¶ 1} Defendant-appellant, George Gann, appeals from his conviction and sentence in the Butler County Common Pleas Court on four counts of illegal use of a minor in nudity-oriented material, two counts of attempted unlawful sexual conduct with a minor, two counts of compelling prostitution and one count of disseminating matter harmful to juveniles. {¶ 2} On August 16, 2001, Gann was indicted on six counts (Counts 1, 3, 5, 7, 9 and 13) of illegal use of a minor in nudity-oriented material or performance, pursuant to R.C. 2907.323(A)(1); six counts (Counts 2, 4, 6, 8, 10 and 14) of illegal use of a minor in nudity-oriented material or performance, pursuant to R.C. 2907.323(A)(3); two counts (Counts 11 and 17) of attempted unlawful sexual conduct with a minor, pursuant to R.C. 2923.02(A); two counts (Counts 12 and 15) of compelling prostitution, pursuant to R.C. 2907.21(A)(3); and one count (Count 16) of disseminating matter harmful to juveniles, pursuant to R.C. 2907.31(A)(1). The charges arose from allegations that Gann contacted several teenage girls via the Internet and, among other things, offered them money for sexual acts. {¶ 3} In February 2002, Gann waived his right to a jury trial, and was tried on the charges by the bench. Gann was found guilty on Counts 2, 8, 10, 11, 12, 14, 15, 16 and 17. He was found not guilty of the remaining charges. In April 2002, Gann was adjudicated a sexual predator pursuant to R.C. 2950.09(B). The trial court sentenced Gann to a total of five years and eight months in prison and fined him $5,000. *Page 175 {¶ 4} Gann appeals from his conviction and sentence, raising six assignments of error. Assignment of Error No. 1: {¶ 5} "O.R.C. [SECTION] 2907.323(A)(3) IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD." {¶ 6} Gann argues that the trial court committed plain error by failing to find, sua sponte, that R.C. 2907.323(A)(3)1 is unconstitutionally vague and overbroad. We disagree with this argument. {¶ 7} The First Amendment's overbreadth doctrine prohibits a statute from criminalizing constitutionally protected conduct. See Statev. Gaines (1990), 64 Ohio App.3d 230, 234. The overbreadth doctrine "is limited in its application to laws in which the deterrence of protected activities is substantial. Where, * * * a statute regulates conduct rather than pure speech, its overbreadth `* * * must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" State v. Young (1988), 37 Ohio St.3d 249, 251, quoting Broadrick v. Oklahoma (1973), 413 U.S. 601, 615, 93 S.Ct. 2908,2918. {¶ 8} In Young, the Ohio Supreme Court overruled an over breadth challenge to R.C. 2907.323(A)(3), after construing that statute to prohibit "the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewdexhibition or involves a graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the person charged." (Emphasis added.) Id. at 252. This aspect of the Young court's decision was affirmed in Osborne v. Ohio (1990), 495 U.S. 103,110 S.Ct. 1691.2 *Page 176 {¶ 9} Gann argues that the court's construction of R.C.2907.323(A)(3) in Young still leaves the statute overbroad because, among other things, it includes within its purview "morally innocent states of nudity as well as lewd exhibitions." In support of his argument, Gann relies on Justice Brennan's dissenting opinion in Osborne at 126-148. However, the majority in Osborne rejected Justice Brennan's view, and found that R.C. 2907.323(A)(3), "as construed by the Ohio Supreme Court [in Young], plainly survives overbreadth scrutiny." Osborne at 113-114; see, also, State v. O'Connor, Butler App. No. CA2001-08-195, 2002-Ohio-4122, at 12, quoting Osborne. The Osborne court further stated that by limiting R.C. 2907.323(A)(3)'s operation to cases where the minor's nudity "constitutes a lewd exhibition or involves a graphic focus on the genitals," "the Ohio Supreme Court avoided penalizing persons for viewing or possessing innocuous photographs of naked children." Osborne at 113-114. {¶ 10} Gann also argues that the Young construction of R.C.2907.323(A)(3) uses terms that are unconstitutionally vague. Specifically, Gann argues that Young provided few clues as to the meaning of the phrase "lewd exhibition of nudity," and failed to supply an authoritative definition of the term "lewd exhibition." In support of this argument, Gann once again relies on Justice Brennan's dissent inOsborne, in which Brennan stated, "[t]he `lewd exhibition' and `graphic focus' tests not only fail to cure the overbreadth of the statute, but they also create a new problem of vagueness." {¶ 11} "A criminal statute is impermissibly vague only where it is so imprecise and indefinite that persons of ordinary intelligence * * * must necessarily guess at its meaning and differ as to its application."Young, 37 Ohio St.3d at 252. A criminal statute is not tested for undue vagueness "`on its face,' but rather with its `judicial gloss,' that is, as it has been authoritatively construed by state courts." 1 LaFave Scott, Jr., Substantive Criminal Law (1986) 127, Section 2.3. {¶ 12} The terms "lewd exhibition" and "graphic focus on the genitals" are plainly susceptible to common understanding, and give persons with ordinary intelligence fair warning as to what conduct is proscribed by R.C. 2907.323(A)(3). Furthermore, while the majority inOsborne did not expressly address whether the "lewd exhibition" and "graphic focus" tests are unconstitutionally vague, it is apparent that they did not find them to be so. In light of the foregoing, we conclude that the trial court did not commit error, plain or otherwise, in failing to find, sua sponte, that R.C. 2907.323(A)(3) is unconstitutionally vague or overbroad. {¶ 13} Gann's first assignment of error is overruled. *Page 177 Assignment of Error No. 2: {¶ 14} "THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. GANN BY ENTERING A JUDGMENT OF GUILTY BASED UPON INSUFFICIENT EVIDENCE." {¶ 15} Gann argues that the state presented insufficient evidence to convict him on all but one of the counts (Count 16) on which he was found guilty. Gann presents five arguments in support of this assignment of error. {¶ 16} "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." State v. Jenks (1991),61 Ohio St.3d 259, paragraph two of the syllabus, following Jackson v.Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781. {¶ 17} In his first argument, Gann asserts that the state failed to prove that he attempted to engage in unlawful sexual conduct with a minor, as alleged in Counts 11 and 17 of the indictment, in violation of R.C. 2923.02 and 2907.04. Specifically, Gann asserts that the state presented insufficient evidence to establish that he took a "substantial step" towards engaging in unlawful sexual conduct with a minor, which was strongly corroborative of his purpose to commit that offense. We disagree with this argument. {¶ 18} "A `criminal attempt' is when 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. (R.C. 2923.02[A] construed.)" State v. Woods (1976), 48 Ohio St.2d 127, paragraph one of the syllabus. {¶ 19} In Count 11, Gann, who was approximately 29 years old at the time of the offense, was charged with attempting to engage in sexual conduct with J.B., a 14-year-old female. {¶ 20} The state's evidence showed that J.B. and Gann communicated with each other over the Internet and telephone about four times a week over a period of several months, beginning in early December 2000, and extending to March 2001. Gann sent J.B. a picture of himself over the Internet. At one point, Gann asked J.B. to meet him at a movie theatre in neighboring Hamilton County. Gann told J.B. that he wanted to sit in the back row with her, have oral sex with her, "finger" her, and feel her "boobs." The encounter was to take place during *Page 178 the time that J.B. was visiting her brother. J.B. initially agreed to meet with Gann at the movie theatre, but later changed her mind after her brother encouraged her not to go since Gann was so much older than her, and because J.B. "didn't feel comfortable going any ways (sic)." J.B. had her final communication with Gann in March 2001. She decided to stop communicating with him because she started feeling "really uncomfortable" about "talking about sexual things with someone older than me." {¶ 21} The evidence establishes that Gann arranged to meet with J.B. at a specific location during the time J.B. was visiting with her brother. Gann also told J.B. that he wanted their encounter to take place in the back row, with the obvious purpose of concealing their activities. When the evidence is viewed in a light most favorable to the prosecution, we conclude that the state presented sufficient evidence to show that Gann took a substantial step, which was strongly corroborative of his criminal purpose, in a course of conduct planned to culminate in his engaging in sex with J.B., a minor. {¶ 22} In Count 17, Gann was charged with attempting to engage in sexual conduct with M.N., a 15-year-old female. The state presented evidence showing that Gann contacted M.N. in May 2001 over the Internet. M.N. told Gann that she was 15 years old, even though she acknowledged listing her age as 16 on her Yahoo profile. Gann sent M.N. two photographs over the Internet, each showing a young girl engaging in fellatio. Gann said to M.N., "Look how much fun these little girls are having. You could have this much fun too." M.N. contacted one of her neighbors and showed her the photographs. The neighbor contacted the police. {¶ 23} After the police arrived at M.N.'s house, Gann again contacted M.N., and asked to meet with her. The police instructed M.N. to agree to meet with him. Gann and M.N. agreed to meet at a Wendy's restaurant. Gann arrived by motor vehicle. When M.N. walked up to Gann's vehicle, Gann asked what they were going to do. At that point, the police arrested Gann. A box of unopened condoms was found in his vehicle. {¶ 24} The foregoing evidence provides ample proof that Gann took a substantial step in a course of conduct planned to culminate in his engaging in unlawful sexual conduct with M.N., a minor. Furthermore, the conduct constituting the substantial step was strongly corroborative of Gann's criminal intent. Here, Gann not only arranged to meet with a female between the ages of 13 but less than 16, he actually showed up to meet her with a box of unopened condoms in his vehicle. *Page 179 {¶ 25} In his second argument, Gann asserts that the trial court erred by finding him guilty of two counts (Counts 12 and 15) of compelling prostitution pursuant to R.C. 2907.21(A)(3). We agree with this argument. {¶ 26} In Count 12, Gann was charged with knowingly paying or agreeing to pay N.T., a minor, to engage in sexual activity for hire, whether or not he knew her age, in violation of R.C. 2907.21(A)(3). In Count 15, Gann was charged with knowingly paying or agreeing to pay M.N., a minor, to engage in sexual activity for hire, whether or not he knew her age, in violation of R.C. 2907.21(A)(3). Both of these charges were third-degree felonies. {¶ 27} R.C. 2907.21 provides in relevant part: {¶ 28} "(A) No person shall knowingly do any of the following: {¶ 29} "* * * {¶ 30} "(2) Induce, procure, encourage, solicit, request, or otherwise facilitate a minor to engage in sexual activity for hire, whether or not the offender knows the age of the minor; {¶ 31} "(3) Pay or agree to pay a minor, either directly or through the minor's agent, so that the minor will engage in sexual activity, whether or not the offender knows the age of the minor[.]" {¶ 32} As to Count 12, the evidence showed that Gann said to N.T., "[w]ell if I through [sic] in a few bucks would that help * * * with you wanting to have sex with me." N.T. told Gann, "no." N.T. said that she was "pissed off" by the offer and she ended the conversation. N.T. testified that Gann e-mailed an apology to her, but she never spoke with him again. As to Count 15, M.N. testified that Gann offered to give her $20 for a "blow job." However, M.N. never agreed to engage in sexual activity with Gann. {¶ 33} We conclude that while this evidence would have been sufficient to convict Gann of compelling prostitution pursuant to R.C.2907.21(A)(2), it was insufficient to convict him of compelling prostitution pursuant to R.C. 2907.21(A)(3). Under R.C. 2907.21(A)(2), Gann could have been convicted under both Counts 12 and 15 for inducing, encouraging, soliciting, requesting, or otherwise facilitating a minor to engage in sexual activity. However, Gann was not charged in Counts 12 and 15 with violating R.C. 2907.21(A)(2). Instead, Gann was charged in those counts with violating R.C. 2907.21(A)(3). {¶ 34} In order to obtain a conviction for violating R.C.2907.21(A)(3), the state is required to show that the alleged offender paid or agreed to pay a minor, either directly, or through the minor's agent, so that the minor would engage in sexual activity. The evidence showed that Gann never paid N.T. nor M.N., either directly or through their agents, so that the minors would engage in sexual *Page 180 activity. Thus, the issue boils down to whether Gann agreed to pay either N.T. or M.N., either directly or through their agents, so that the minors would engage in sexual activity. {¶ 35} R.C. Chapter 2907 does not define the phrase, "agree to pay." Therefore, the phrase must "be read in context and construed according to the rules of grammar and common usage." R.C. 1.42. Webster's defines "agree" in relevant part as "to indicate willingness: consent" and "to achieve harmony * * *: become of one mind[.]" Webster's Third New International Dictionary (1993) 43. Consequently, in order to prove the "agree to pay" element for purposes of obtaining a conviction pursuant to R.C. 2907.21(A)(3), the state must show that there was an agreement or "meeting of the minds" between the offender and the victim (or the victim's agent) that the minor would engage in sexual activity in return for payment. {¶ 36} Here, there was no showing of an agreement or meeting of the minds between Gann and either N.T. or M.N. While Gann offered to pay N.T. and M.N. to engage in sexual activity with him, neither N.T. nor M.N. showed any willingness to do so. While Gann's conduct constitutes a violation of R.C. 2907.21(A)(2), it does not constitute a violation of R.C. 2907.21(A)(3), because it fails to show an agreement or meeting of the minds between Gann and N.T. or M.N. (or their agents). Thus, evidence showing that Gann offered to pay N.T. and M.N. to engage in sexual activity was insufficient to show that he had "agreed to pay" N.T. and M.N. to engage in sexual activity, because there was no evidence to show an agreement or meeting of the minds between Gann and N.T. or M.N. that N.T. or M.N. would engage in sexual activity in return for payment from Gann. The state simply charged Gann under the wrong subsection of R.C.2907.21(A). As a result, while the state produced sufficient evidence to charge and convict Gann with violating R.C. 2907.21(A)(2), the state failed to produce sufficient evidence to convict Gann of violating R.C.2907.21(A)(3). Therefore, Gann should have been acquitted on the compelling prostitution charges set forth in Counts 12 and 15. {¶ 37} In his third argument, Gann asserts that the state failed to prove that the individuals depicted in the material forming the basis for Counts 2, 8 and 10 were actual persons, or that they were minors. We disagree with this argument. {¶ 38} Count 2 was based on a photograph entitled "Bab07.jpg." The photograph depicts a young girl, who is substantially under the age of 18, lying down, with her legs spread apart, and with the girl exposing her genitals. Count 8 was based on a video entitled "Maria02.mpg." The video shows a nude young female, who is substantially younger than 18 years of age, engaging in sexual intercourse. Count 10 is based on a video entitled "17 hotelfuck.mpg." This video also depicts *Page 181 a nude young female, who is substantially younger than 18 years of age, engaging in sexual intercourse. {¶ 39} The trial court found that it had "no problem, absolutely none" in finding Gann guilty on Count 2, and it further found that the persons depicted in the evidentiary material that formed the basis of Counts 8 and 10, were minors who were under the age of 18. {¶ 40} In Young, 37 Ohio St.3d at 258, the court rejected an argument similar to the one being raised by Gann here: {¶ 41} "Appellant Osborne further argues that no proof was offered that the subject in the photographs was a minor. We cannot agree with appellant's contention that the minority of the person depicted was not demonstrated in the evidence. The majority of the photographs speak for themselves. The person depicted is obviously under the age of eighteen by a substantial margin, and a jury would have been clearly justified in finding, beyond a reasonable doubt, that the subject was a minor." {¶ 42} Gann argues, however, that Young was decided at a time when "the advanced computer technology now available to the general public did not exist." Gann asserts that under today's technology, it "is almost impossible to determine from looking, if an image in a photograph is true and unaltered, computer generated in whole or in part, or morphed." However, Gann never presented any evidence to show that the persons depicted in the evidentiary exhibits used to prove Counts 2, 8 and 10 were not actual persons but, instead, were computer generated or morphed, nor did Gann present any evidence showing that these persons were 18 years old or older. As in Young, the photograph and videos that form the basis for the charges in Counts 2, 8 and 10 "speak for themselves." Consequently, the trial court did not commit error by finding Gann guilty of Counts 2, 8 and 10. {¶ 43} In his fourth argument, Gann asserts that the state failed to prove that he recklessly possessed the material that formed the basis for the charges in Counts 2, 8, 10 and 14. Gann asserts that while the state proved that the files forming the basis of the charges were transferred to Gann's computer, it failed to prove that Gann accessed the files or had knowledge or notice of their contents. We find this argument unpersuasive. {¶ 44} Gann was charged in Counts 2, 8, 10 and 14 with recklessly possessing material that showed a minor, who was not Gann's child or ward, in a state of nudity where the nudity constituted a lewd exhibition or involved a graphic focus on the genitals, in violation of R.C.2907.323(A)(3). "A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a *Page 182 certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist." R.C. 2901.22(C). {¶ 45} In order to establish that the defendant recklessly possessed the material that forms the basis of a charge under R.C.2907.323(A)(3), the state must show "that the defendant had some notice of the character of the material possessed." Young,37 Ohio St.3d at 253. "[O]nly those who are on notice as to the illicit character of the material are subject to criminal penalties." {¶ 46} "The state may prove the required notice by demonstrating, for example, the defendant's attempts to conceal the material or to disguise his ownership, his possession of a massive amount of such material, or the obviousness of the character of the material. Mishkinv. New York (1966), 383 U.S. 502, 511, 86 S.Ct. 958, 964. The state need not prove that the accused was aware of the actual content of the material, but only that he was on notice as to its nature or character. See State v. Burgun (1978), 56 Ohio St.2d 354, 363-364 * * *." (Emphasis sic.) Young, 37 Ohio St.3d at 253-254. {¶ 47} Here, the state presented ample evidence to demonstrate that Gann was on notice of the nature and character of the files he downloaded. The state's computer expert, Detective Richard Sweeney, testified that he recovered from Gann's hard drive over 500 images; numerous, sexually explicit chat-room conversations; and chat logs that revealed numerous requests for child pornography. Sweeney's testimony revealed that the files had been intentionally transferred to a directory created by the computer's user. The images and short videos taken from Gann's hard drive had not been deleted, but had been categorized and sorted into different directories. There was also circumstantial evidence that Gann had, indeed, accessed the files. In light of these facts, the trier of fact could reasonably infer that Gann was aware of the pornographic images found on his computer. {¶ 48} In his fifth argument, Gann asserts that the state failed to prove the "lewd exhibition" element required to obtain a conviction for illegal use of a minor in nudity-oriented material or performance in Counts 2, 8, 10 and 14. We disagree with this argument. {¶ 49} "R.C. 2907.323(A)(3) prohibits the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the person charged." Young, 37 Ohio St.3d at 252. "Lewd" is defined as "[o]bscene or *Page 183 indecent; tending to moral impurity or wantonness * * *." Blacks Law Dictionary (7 Ed. 1999) 919. {¶ 50} The charge in Count 2 was based on a photograph labeled, "bab07.jpg," which depicts a child, substantially younger than 18, with her legs spread apart, pushing aside the crotch of her underwear to expose her genitals for viewing. The photograph is obscene or indecent, and tends to show moral impurity or wantonness. The photograph also focuses graphically on the victim's genitals. {¶ 51} The charge in Count 14 was based on a photograph of A.G., entitled 172.139.107, a smaller version of which was marked as state's exhibit 11(C). A.G., who was 16 years old at the time, is shown in a lascivious and licentious manner. A.G. is shown bending over, looking back at the camera, with her bare buttocks exposed. Essentially, the picture shows A.G. "mooning" the camera lens. Looked at in the light most favorable to the state, the photograph is obscene or indecent, and tends to show moral impurity or wantonness. {¶ 52} The charge in Count 8 was based on a video entitled "Maria02.mpg." As stated earlier, the video depicts a nude young female, who is substantially younger than 18 years of age, engaging in sexual intercourse. Looked at in the light most favorable to the state, the video is obscene or indecent, and tends to show moral impurity or wantonness. {¶ 53} The charge in Count 10 was based on a video entitled "17hotelfuck.mpg." As stated earlier, the video depicts a nude young female, who is substantially younger than 18 years of age, engaging in sexual intercourse. Looked at in the light most favorable to the state as it must be, see Jenks, 61 Ohio St.3d 259, paragraph two of the syllabus, the video is obscene or indecent, and tends to show moral impurity or wantonness. {¶ 54} Gann's second assignment of error is sustained in part and overruled in part. Assignment of Error No. 3: {¶ 55} "MR. GANN WAS DENIED HIS CONSTITUTIONAL GUARANTEE OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL." {¶ 56} Gann argues that his trial counsel provided him with constitutionally ineffective assistance by failing to call an expert witness on computers to contradict the testimony of the state's expert that he (Gann) recklessly possessed the material that was the subject of Counts 2, 8, 10 and 14. Gann further argues that his counsel was constitutionally ineffective for failing to raise, and thereby preserve for review, the issue of whether R.C. 2907.323(A)(3) is unconstitutionally vague or overbroad. We disagree with these arguments. *Page 184 {¶ 57} To prevail on an ineffective assistance of counsel claim, a criminal defendant must first show that his trial counsel's performance was deficient. Strickland v. Washington (1984), 466 U.S. 668, 687,104 S.Ct. 2052. This requires the defendant to show that his "counsel's representation fell below an objective standard of reasonableness." Id. at 688. Second, the defendant must show that he was prejudiced by his counsel's deficient performance. Id. at 687. This requires the defendant to show that there is a reasonable probability that but for his counsel's unprofessional errors, the outcome of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. A failure to make either showing will doom the defendant's ineffective assistance claim. Id. at 687, 697. {¶ 58} Gann cannot show on this record that his trial counsel provided him with constitutionally ineffective assistance of counsel by failing to call an expert witness on computers who could have rebutted the testimony of the state's expert. The record not only fails to showwhat such an expert's testimony would have been, but also that any such expert witness could have been called who would have been willing to testify favorably on Gann's behalf. Hence, Gann cannot demonstrate on this record that his counsel's decision not to call an expert witness on his behalf fell below an objective standard of reasonableness, or that there is a reasonable probability of a different outcome had Gann's trial counsel presented such expert testimony. {¶ 59} Gann also argues that his counsel provided him with constitutionally ineffective assistance by failing to raise, and thereby preserve for review, the issue of whether R.C. 2907.323(A)(3) was constitutionally vague and overbroad. We reject this argument on the basis of our disposition of Gann's first assignment of error. {¶ 60} Gann's third assignment of error is overruled. Assignment of Error No. 4: {¶ 61} "MR. GANN'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 62} While acknowledging that the standards of review between an insufficiency of the evidence claim and a manifest weight of the evidence claim are different, Gann argues that the reasoning and authority which supports the arguments advanced under his second assignment of error are applicable under this assignment of error, as well. *Page 185 {¶ 63} When reviewing a manifest weight of the evidence claim, an appellate court must examine the evidence presented, including all reasonable inferences that can be drawn from it, and consider the credibility of the witnesses, to 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." State v. Thompkins, 78 Ohio St.3d 380, 386,1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. It must be remembered, however, that the weight to be given the evidence presented and the credibility of the witnesses are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The trier of fact's decision is owed deference since the trier of fact is "best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Seasons Coal Co.v. Cleveland (1984), 10 Ohio St.3d 77, 80. {¶ 64} Initially, we have already found with respect to Gann's second assignment of error that the trial court erred in finding Gann guilty on the two counts of compelling prostitution (Counts 12 and 15). Thus, this portion of Gann's fourth assignment of error has been rendered moot. See App.R. 12(A)(1)(c). {¶ 65} As to the remainder of Gann's manifest weight claim, we conclude that there was sufficient, and often ample, evidence to support Gann's conviction on the remainder of the counts on which he was convicted. Accordingly, Gann's fourth assignment of error is overruled. Assignment of Error No. 5: {¶ 66} "THE COURT ERRED IN CLASSIFYING MR. GANN AS A SEXUAL PREDATOR." {¶ 67} Gann argues that the trial court erred in classifying him as a sexual predator in light of the arguments raised in his previous assignments of error. We disagree with this argument. {¶ 68} 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)(1). The trial court which sentences an offender who is convicted of or pleads guilty to a sexually oriented offense is required to conduct a hearing to determine whether the offender is a sexual predator. See R.C. 2950.09(B)(1). In order to determine whether an offender is a sexual predator, the trial court must consider the factors listed in R.C. 2950.09(B).3 These factors include the offender's and victim's ages, *Page 186 and the offender's previous criminal record regarding all offenses he may have committed. The trial court has discretion to determine what weight, if any, it will assign to each factor. State v.Thompson, 92 Ohio St.3d 584, 588, 2001-Ohio-1288. Additionally, the trial court may consider other factors not expressly listed in R.C. 2950.09(B). Id. {¶ 69} The trial court must find that the offender is a sexual predator by clear and convincing evidence. See R.C. 2950.09(B)(4). "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 facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. {¶ 70} Gann was interviewed by two psychologists who came to differing conclusions about the likelihood of whether Gann would commit another sexual offense. Dr. Roger H. Fisher, a clinical psychologist, concluded that Gann's likelihood of committing another sexual offense was "quite remote." However, Dr. Bobbie G. Hopes, a forensic psychologist, concluded that Gann "has a high risk of committing one or more sexually oriented offenses in the future." In support of her conclusion, Hopes noted that Gann has prior convictions for, among other things, assault, and that prior convictions for violent offenses are associated with increased risk of recidivism. Hopes also found that Gann's Internet activities "involved extensive hours on the Internet chat rooms with logs that showed a voluminous and long-term pattern of engaging in sexual conversations, requests to meet, and offers of money in exchange for sex with persons whom he believed to be minors." Hopes found that the intensity of Gann's interest in such deviant sexual activity is among the "best predictors of sex offense recidivism." {¶ 71} The trial court was entitled to give Dr. Hopes' report greater weight than Dr. Fisher's. See DeHass, 10 Ohio St.2d 230, paragraph one of the syllabus (weight to be given the evidence is primarily matter for the trier of fact). Furthermore, the trial court found that Gann had neither accepted responsibility for his offenses, understood the seriousness of them, nor demonstrated any remorse for them. Under these circumstances, we conclude that there was sufficient evidence presented to support the trial court's determination that Gann is a sexual predator. {¶ 72} Gann's fifth assignment of error is overruled. Assignment of Error No. 6: {¶ 73} "THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUISITE FINDINGS OF FACT." *Page 187 {¶ 74} Gann argues that the trial court erred by imposing consecutive sentences without making the necessary findings of fact required by R.C. 2929.14(E)(4). Gann also argues that the trial court failed to state sufficient supporting reasons for imposing consecutive sentences, as required by R.C. 2929.19(B)(2)(c). We disagree with these arguments. {¶ 75} At Gann's sentencing hearing, the trial court made all of the findings of fact necessary under R.C. 2929.14(E)(4) to impose consecutive sentences. The trial court found that consecutive sentences were necessary to protect the public from future crime and to punish Gann, and were not disproportionate to the seriousness of Gann's conduct and to the danger Gann poses to the public. The trial court also found that two of the three circumstances set forth in R.C. 2929.14(E)(4)(a)-(c) were present. Specifically, the trial court noted that "the harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of [Gann's] conduct and his history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime." See R.C.2929.14(E)(4)(b) and (c). {¶ 76} Also, the trial court adequately stated its reasons for imposing consecutive sentences, as required by R.C. 2929.19(B)(2)(c). Among other things, the trial court found that the sex offender treatment program (i.e., the Polaris Program) available to offenders like Gann in the prison system provided for a longer treatment program than Gann would otherwise receive outside of it. The trial court stated that the Polaris Program was "a much more appropriate program" for Gann, since the trial court was not satisfied that Gann had "come to grips with the seriousness of his conduct and the damages that it causes." The trial court further stated that it still had not received an explanation from Gann as to why he pursued contacts with the female minors who were victimized by his actions. {¶ 77} Gann's sixth assignment of error is overruled. {¶ 78} The trial court's judgment is affirmed in part and reversed in part. Gann's two convictions for compelling prostitution (Counts 12 and 15) are reversed, and this cause is remanded to the trial court for resentencing and any other action that may be required as a result of this opinion. Gann is ordered discharged as to Counts 12 and 15. VALEN, P.J., and POWELL, J., concur. Anthony Valen, Presiding Judge, James E. Walsh, Judge, and Stephen W. Powell, Judge, concur. 1 {¶ a} R.C. 2907.323 provides in relevant part: {¶ b} "(A) No person shall do any of the following: * * * {¶ c} "(3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the following applies: {¶ d} "(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance. {¶ e} "(b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred." 2 Osborne reversed Young on other grounds, see Osborne at 122-126, which do not concern us here. 3 These factors, which were formerly listed in R.C. 2950.09(B)(2), are now listed in R.C. 2950.09(B)(3)(a)-(j). *Page 188

2016-07-06 06:36:17.926512+00

DECISION AND JUDGMENT ENTRY Jeffery Braun appeals his commitment to the Ohio Department of Youth Services ("DYS") by the Washington County Juvenile Court. The trial court initially sentenced Braun to both a suspended commitment to DYS, conditioned upon Braun's good behavior, and to a period of probation. The court later released Braun from probation. After his release from probation, however, Braun misbehaved and the court lifted the suspension on the initial commitment to DYS. Braun contends on appeal that the trial court committed plain error in imposing the suspended commitment, violating his right to equal protection, due process, and freedom from double jeopardy. Because the trial court retained jurisdiction over Braun until the age of twenty-one, and further because the trial court originally imposed probation in addition to the suspended DYS commitment, not as an alternative to the DYS commitment, we disagree. Braun also contends that his trial counsel was ineffective in failing to object to the DYS commitment. Having found no error with the commitment, and further noting that Braun's counsel acted in accordance with the wishes Braun expressed at his hearing, we disagree. Accordingly, we overrule each of Braun's assignments of error and affirm the judgment of the trial court. I. On June 16, 1998, Braun admitted to an allegation of delinquency arising from actions that, if committed by an adult, would constitute assault, a fifth degree felony violation of R.C. 2903.13(A). In its journal entry the trial court stated: 1. The child is committed to the legal custody of the Ohio Department of Youth Services for institutionalization for an indefinite term consisting of a minimum period of six (6) months and a maximum period not to exceed the child's attainment of the age of twenty-one, pursuant to O.R.C. 2151.355(A)(4). 2. The above order committing the child to the legal custody of the Ohio Department of Youth Services is hereby Suspended upon condition he be of good behavior; 3. The child is placed on probation; * * *. On January 19, 1999, the trial court found that Braun had satisfactorily abided by the terms of his probation and, therefore, ordered him discharged from probation. The journal entry did not mention Braun's suspended commitment to DYS. Following his discharge from probation, the trial court adjudicated Braun delinquent on a second, unrelated assault charge, and committed him to the Washington County Juvenile Center ("WCJC.") While at the WCJC, Braun received 130 incident reports, escaped from the facility, and accumulated 4,695 negative points for his behavior. Additionally, he was charged with a third assault arising from an incident at the WCJC on October 16, 2001. On October 25, 2001, a Washington County Juvenile Probation Officer filed a motion for further disposition in Braun's original assault case, alleging that Braun had not been of good behavior as required by the DYS suspension. The trial court held a hearing at which Braun was accompanied by his mother and his attorney. Braun admitted that he was not of good behavior, whereupon the following dialogue occurred: THE COURT: Do you understand by admitting to this motion that you will be sent to the [DYS] for a minimum period of six months to a maximum age of twenty-one? BRAUN: Yes, sir. THE COURT: The other case, 2001-DE-1020, alleges a misdemeanor assault which occurred on or about October 16th, 2001 * * *. It's the court's desire, Jeff, to have you admit to that, put you back in the [WCJC] program, and hopefully get you to complete it. But you'd rather admit to the suspended or to the motion in the DYS case, is that correct? BRAUN: Yes, sir. THE COURT: Do you understand that you have a choice of completing that [WCJC] program at the Juvenile Center, as long as you make significant progress during the next sixty days, I would not send you to DYS? BRAUN: I understand. THE COURT: But you still wish to just admit and be sent in the DYS case and terminate from the Juvenile Center, is that correct? BRAUN: Yes, sir. Based upon Braun's admission, the trial court imposed the previously suspended commitment to DYS. Additionally, the court dismissed the new misdemeanor assault allegation in case number 2001-DE-1020 and terminated Braun's probation and commitment to the WCJC in his second assault case. Braun now appeals, asserting the following assignments of error: THE TRIAL COURT COMMITTED PLAIN ERROR IN IMPOSING A SUSPENDED COMMITMENT AFTER THE JUVENILE APPELLANT'S PERIOD OF PROBATION HAD ENDED. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSITIUTION AND ARRICLE I, SECTION 2 OF THE OHIO CONSTITUTION, BY IMPOSING APPELLANT'S SUSPENDED COMMITMENT AFTER HIS DISCHARGE FROM PROBATION. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO NOTICE AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ARTICLE I, SECTION 16, OF THE OHIO CONSITTUTION BY IMPOSING APPELLANT'S SUSPENDED COMMITMENT AFTER HIS DISCHARGE FROM PROBATION. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT NOT TO BE PUNISHED TWICE FOR THE SAME OFFENSE AS GUARANTEED BY THE DOUBLE JEOPARDY CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION, BY IMPOSING APPELLANT'S SUSPENDED COMMITMENT AFTER HIS DISCHARGE FROM PROBATION. APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE IMPOSITION OF A SUSPENDED COMMITEMENT AFTER APPELLANT'S DISCHARGE FROM PROBATION. II. In his first through fourth assignments of error, Braun challenges the constitutionality of the trial court imposing a suspended commitment upon him after the court had discharged his period of probation. Braun acknowledges that he did not object to the commitment at trial, but asserts that the trial court's action amounts to plain error, as well as a violation of his rights to equal protection, due process, and freedom from double jeopardy. III. The version of R.C. 2151.355(A) that was in effect at the time of the trial court's initial dispositional order in this case provided the court with numerous dispositional options. These options included probation (R.C. 2151.355(A)(2)), and commitment to the DYS (R.C. 2151.355(A)(4)). Additionally, R.C. 2151.355(A)(12) authorized the court to "[m]ake any further disposition that the court finds proper." The General Assembly did not list these dispositional options in the alternative in the statute. Therefore, the court possessed the authority to issue any number of the dispositional orders listed. In this case, the trial court imposed both a suspended term of commitment to the DYS and a period of probation. The two dispositions were listed in separate paragraphs and were not made contingent upon one another. Thus, contrary to Braun's contention, his suspended DYS commitment in this case was never contingent upon him successfully completing the terms of his probation. Rather, the suspended DYS commitment was contingent upon Braun's good behavior through the age of twenty-one, regardless of his probation status. Within this analytical framework, we consider each of Braun's assignments of error in turn. A. In asserting that the trial court committed plain error by lifting the suspension of his commitment to the DYS, Braun first challenges the trial court's subject matter jurisdiction. Braun notes that several Ohio courts have held that when a period of probation ends, the subject matter jurisdiction of the sentencing court terminates. See State v. Jones (1997), 123 Ohio App.3d 144; State v. Jackson (1995), 106 Ohio App.3d 345;State v. Jackson (1988), 56 Ohio App.3d 141. However, a juvenile court's jurisdiction to reinstate an order of commitment may continue even after the juvenile is released from probation. See In re Bracewell (1998),126 Ohio App.3d 133, 137, citing In re Ravanna T. (Aug. 1, 1997), Lucas App. No. L-96-371. See, also, In re Cross (Dec. 11, 2000), Stark App. No. 2000CA00122, discretionary appeal allowed (2001), 91 Ohio St.3d 1513; Inre DaCosta (Mar. 6, 2002), Lorain App. No. 01CA007877. In Bracewell, the majority reasoned that because dispositions in delinquency proceedings are not punitive in nature, but rehabilitative, the trial court retained jurisdiction to rehabilitate the child even after the period of probation ended. The dissenting judge argued for a narrower view of the juvenile court's jurisdiction, reasoning that the court could impose the suspended commitment after successful completion of probation only "if the court conditioned the suspended commitment on a separate order of unlimited duration in addition to probation * * *."Bracewell at 142, (Painter, J., dissenting), citing Ravanna T., supra, and In re Proctor (Dec. 24, 1997), Summit App. No. 18257. Thus, even the dissenting viewpoint, upon which Braun relies in his brief, holds that juveniles may, in some instances, be subject to the jurisdiction of the juvenile court even after they have been discharged from probation. Likewise, in Ravanna T., the appellate court held that the trial court's suspension of a DYS commitment continued to age twenty-one despite the juvenile's successful completion of his probation period, because the trial court conditioned the suspension not only on the completion of probation, but also on the juvenile's continued compliance with the law. In this case, the court conditioned Braun's suspended commitment on a separate order requiring Braun to be of good behavior in addition to the probation order. Thus, we find that the court retained jurisdiction over Braun and was free to lift the suspended DYS commitment upon Braun's admission that he was not of good behavior. Accordingly, we overrule Braun's first assignment of error. B. In his second assignment of error, Braun asserts that the trial court's commitment of him after releasing him from probation violates equal protection because a court cannot revoke an adult's probation after the adult's term of probation expires. However, as noted above, the trial court did not revoke Braun's probation in this case. Rather, the court imposed a suspended commitment. While juveniles facing commitment are protected by the Constitution, In re Gault (1967), 387 U.S. 1, Braun has not argued that the court's jurisdiction over him until the age of twenty-one, nor the court's power to suspend a commitment until the age of twenty-one, is unconstitutional. See R.C. 2151.49; Bracewell at 142. In imposing the suspended commitment, the court merely exercised its continuing jurisdiction over Braun. Therefore, this case is not analogous to that of an adult who has completed a period of probation. We find that the trial court did not violate Braun's right to equal protection. Accordingly, we overrule Braun's second assignment of error. C. In his third assignment of error, Braun asserts that the trial court violated his rights to notice and due process of law by imposing his suspended commitment after his discharge from probation. Braun asserts that, because the trial court discharged him from probation, he had no way of knowing that the conditions of his probation were still enforceable against him. Again, we note that the trial court lifted the suspension on Braun's commitment to the DYS not based upon a probation violation, but based upon Braun's violation of the condition of good behavior. The language of the original disposition reveals that trial court clearly issued the good behavior requirement separate and apart from the probation requirement, giving Braun notice that the good behavior requirement continued through the age of twenty-one. Moreover, while the terms of Braun's probation are not in the record, probation generally includes restrictions and requirements, such as reporting to a probation officer, which are lifted when one is discharged from probation. Given the clarity of the trial court's original order, the lifting of these restrictions and requirements could not have reasonably signaled to Braun that he no longer needed to be of good behavior to continue the suspension of his commitment. Thus, we find that the trial court did not violate Braun's rights to notice and due process when it lifted the suspension upon his commitment to DYS. Accordingly, we overrule Braun's third assignment of error. D. In his fourth assignment of error, Braun asserts that the trial court violated his right not to be punished twice for the same offense when it lifted the suspension on his DYS commitment after he had completed a period of probation for the same offense. As we noted above, R.C. 2151.355(A), as it existed at the time of the original dispositional order in this case, provided the court with numerous dispositional options, including probation, commitment to the DYS, and any other disposition that the court deemed proper. See R.C.2151.355(A). The General Assembly did not list these dispositional options in the alternative in the statute. Therefore, pursuant to R.C.2151.355(A), the court possessed the authority to issue any number of the dispositional orders listed. Braun has not challenged the constitutionality of R.C. 2151.355(A) on its face, and we presume the constitutionality of legislative enactments. See Anderson Twp. Bd. ofTrustees v. Tracy (1996), 76 Ohio St.3d 353, 356, citing State ex rel.Dickman v. Defenbacher (1955), 164 Ohio St. 142, paragraph one of the syllabus. In this case, the trial court imposed a suspended term of commitment to the DYS in one paragraph of its dispositional order and a period of probation in a separate paragraph of its dispositional order. Thus, the trial court's dispositional order, imposing both a suspended commitment contingent upon good behavior and a period of probation, complied with R.C. 2151.355(A). Therefore, we find that the trial court did not violate Braun's constitutional protection from double jeopardy by ordering both dispositions. Accordingly, we overrule Braun's fourth assignment of error. IV. In his fifth and final assignment of error, Braun asserts that he did not receive effective assistance of counsel in the trial court because his counsel failed to object to the trial court lifting the DYS suspension on the grounds that Braun had already been released from probation. In State v. Ballew (1996), 76 Ohio St.3d 244, 255, the Ohio Supreme Court stated the following: Reversal of a conviction or sentence based upon ineffective assistance requires (a) deficient performance, "errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by theSixth Amendment"; and (b) prejudice, "errors * * * so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Stricklandv. Washington (1984), 466 U.S. 668, 687. As 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. In this case, Braun can demonstrate neither deficient performance nor prejudice. With regard to prejudice, as we have found in our analysis of Braun's first four assignments of error, the trial court did not err in imposing the suspended DYS commitment and, therefore, the outcome would not clearly have been different but for counsel's failure to object. As to deficient performance, given Braun's statement of his wishes before the trial court, counsel's actions were geared toward obtaining the result Braun desired. Thus, counsel's actions constituted sound trial strategy. Accordingly, we overrule Braun's final assignment of error, and we affirm the judgment of the trial court. JUGDMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that 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 Washington County Court of Common Pleas, Juvenile Division, to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Harsha, J.: Concurs with Concurring Opinion Evans, J.: Concurs in Judgment and Opinion

2016-07-06 06:36:18.018373+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: The State of Ohio appeals the decision of the Lorain County Court of Common Pleas, which granted defendant/appellee's motion to dismiss. We reverse. I. Allan Norfus was arrested after he had allegedly assaulted his girlfriend Cheryl Adkisson on March 13, 1997. Adkisson pressed charges that same evening. According to the police report, when Adkisson went to see Norfus at his house that evening, he went into a jealous rage, and began to attack Adkisson. He held her down, sexually assaulted her, and held her against her will in his bedroom for one and a half hours. He repeatedly hit her with a telephone. The police examined Adkisson, and saw welts and bruises on her legs. The police asked Adkisson if she wanted to file an affidavit regarding the assault and domestic violence, and she agreed to do so. The police report also indicated that several charges, in addition to the domestic violence charge, could be lodged against Norfus. These included felonious sexual penetration, assault, and unlawful restraint. Norfus was detained and questioned and the investigating officer arrested him. Norfus was charged in Lorain Municipal Court with domestic violence, a first degree misdemeanor in violation of R.C.2919.25(A).1 On July 15, Norfus pled guilty to a reduced charge of disorderly conduct. On August 5, 1997, Adkisson decided to press charges against Norfus for robbery in connection with the events of March 13. On March 18, 1998, the Lorain County Grand Jury returned an indictment against Norfus for both rape, in violation of R.C.2907.02(A)(2), and kidnapping, in violation of R.C. 2905.01(A)(4). Norfus filed a motion to dismiss these charges, on the basis that they were barred by res judicata pursuant to the resolution of the domestic violence charges arising out of the same course of conduct. After a hearing on the motion, the trial court granted the motion to dismiss. The trial court dismissed the case not on the issue of res judicata but because the municipal court had held no preliminary hearing on the felony charges, as required by Crim.R. 5(B)(1). The State of Ohio filed the instant appeal. Appellant asserts a single assignment of error. II. ASSIGNMENT OF ERROR: A TRIAL COURT ERRS IN DISMISSING A FELONY CASE BASED UPON AN INDICTMENT EVEN IF THE DEFENDANT WAS NOT AFFORDED A PRELIMINARY HEARING IN THE TIME PERIOD SET FORTH IN [R.C.] 2945.71 AND OHIO CRIM.R. 5(B)(1). The trial court below dismissed the felony charges against Norfus, on the basis that the municipal court had never held a preliminary hearing on the felony charges which were pending against Norfus, in violation of Crim.R. 5(B)(1). This rule requires the court to hold a preliminary hearing within fifteen days after a defendant is arrested for or charged with a felony, or within ten days if the defendant is incarcerated on the charge. Although it is not clear that the entire record of the proceedings from the municipal court case is before us, there was sufficient testimony and evidence before the trial court to indicate that Norfus was never charged in that case with the felony counts suggested in the police report. At the hearing on the motion to dismiss, the prosecutor submitted a certified copy of the docket sheet in the case number 97CRB00912. The form notes an initial arraignment on March 14, 1997 and includes an area marked "CHARGES" followed by four lines, for up to four counts to be listed in the case. The instant form had only one charge listed, "Domestic Violence 2919.25A 1st M[.]" The prosecutor also testified that although the police report of March 13, 1997 listed four charges, three of which were felonies, the listed charges did not represent the actual charges filed. He testified that this list was more in the way of a recommendation to the prosecutor. Adkisson's complaint dated March 13, 1997 listed only the domestic violence charge. However, even assuming that the felony charges were also before the municipal court, we find that the common pleas court's later dismissal of the felony charges was inappropriate. The Ohio Revised Code provides that "[a] person against whom a charge of felony is pending * * * shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge." R.C.2945.71(C)(1). Furthermore, "[a] charge of felony shall be dismissed if the accused is not accorded a preliminary hearing within the time required by sections 2945.71 and 2945.72 of the Revised Code." R.C. 2945.73(A). However, "[w]hen a charge of felony is dismissed pursuant to division (A) of this section, such dismissal has the same effect as a nolle prosequi." R.C.2945.73(D). "[A] valid indictment can be returned subsequent to either a nolle prosequi or a dismissal of prior felony charges for failure to provide a preliminary hearing within 15 days of the initial arrest." State v. Bonarrigo (1980), 62 Ohio St.2d 7, 12, citing State v. Pugh (1978), 53 Ohio St.2d 153, 159 (Brown, J., concurring). Even if the municipal court denied Norfus a preliminary hearing on the felony charges, this was no bar to a subsequent indictment on the felony charges. The trial court erred in dismissing the subsequent indictment for lack of a preliminary hearing in the municipal court. We find appellant's assignment of error to be well-taken. We reverse the judgment of the trial court, and remand this cause for further action consistent with this decision. Judgment reversed and cause remanded. 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 Court of Common Pleas, County of Lorain, 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 FOR THE COURT SLABY, J. BATCHELDER, J. CONCUR 1 The record before this Court includes at least some of the docket of the Lorain Municipal Court case 97CRB912, which terminated with the guilty plea. At the hearing on the motion to dismiss, the Lorain city prosecutor, Mark Provenza, testified that the domestic violence charge was the only charge prosecuted in that case. Other evidence presented at the hearing also indicated that this was the sole charge before the municipal court in that case. See discussion, infra.

2016-07-06 06:36:19.103875+00

OPINION *Page 2 {¶ 1} Plaintiff-appellant Mary Ruckman appeals the judgment of the Delaware Municipal Court, which affirmed the decision of the magistrate, rendering a verdict in favor of defendant-appellee Greg Hovatter following a bench trial. STATEMENT OF FACTS AND LAW {¶ 2} Our review of the complaint and magistrate's decision reveals the following facts. Appellant Ruckman hired appellee Hovatter in January of 2005 to do some home improvement work in the kitchen area of her home. Appellant wanted repairs to be done to her ceiling and she wanted cherry cabinets to be hung on her walls. Appellee began the work on January 13, 2005, and continued on January 14, 2005, working a total of seven hours at the appellant's residence. Appellant claimed she fired appellee due to his shoddy work, which appellee denied. {¶ 3} Appellant filed a complaint in the Delaware Municipal Court, Small Claims Division, in which she alleged that the work performed by appellee was unworkmanlike and that the appellee damaged her property. Appellant admitted that she paid appellee, but claimed that she only paid appellee after firing him because she felt intimidated by appellee and his crew, and she feared for her safety. {¶ 4} The matter went to trial before a magistrate on February 16, 2006. Appellant set forth her arguments as referenced above. Appellee denied that the unworkmanlike work was done by him, and argued that one of the *Page 3 reasons the appellant hired him was to rectify previous repairs that had been done in an unworkmanlike manner. Appellee also denied damaging appellant's property, and argued that appellant signed a release when she paid him for the work performed through January 14, 2005. The record does not reflect that appellant requested findings of fact and conclusions of law. {¶ 5} On February 27, 2006, the magistrate issued a judgment entry/magistrate's decision which stated that "neither witness was obviously more credible than the other", and held that the evidence failed to establish that the unworkmanlike work was performed by appellee and failed to establish that the appellee was the one who damaged appellant's cabinets. Appellant objected to the magistrate's decision on March 9, 2006, and on March 24, 2006, the trial court issued a judgment entry in which it overruled the appellant's objections and affirmed the decision of the trial court. The appellant appealed, setting forth the following assignment of error: {¶ 6} "THE TRIAL COURT ERRED BY FINDING AGAINST PLAINTIFF/APPELLANT WITHOUT ANY OBJECTIVE EVIDENCE BEING CONSIDERED AND NO FINDINGS OF FACT AND CONCLUSIONS OF LAW." {¶ 7} The appellant appears to be arguing that the trial court's judgment was against the manifest weight of the evidence, and argues that the trial court erred in failing to issue findings of fact and conclusions of law. We disagree. *Page 4 I {¶ 8} In the case sub judice, the record transmitted on appeal included a videotape of the trial. No transcript was provided. App. R. 9 provides for the record on appeal, and states in pertinent part: {¶ 9} "(A) Composition of the record on appeal The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases. A videotape recording of the proceedings constitutes the transcript of proceedings other than hereinafter provided, and, for purposes of filing, need not be transcribed into written form. Proceedings recorded by means other than videotape must be transcribed into written form. When the written form is certified by the reporter in accordance with App. R. 9(B), such written form shall then constitute the transcript of proceedings. When the transcript of proceedings is in the videotape medium, counsel shall type or print those portions of such transcript necessary for the court to determine the questions presented, certify their accuracy, and append such copy of the portions of the transcripts to their briefs." {¶ 10} Accordingly, if the transcript of proceedings is in the videotape medium, the appellant must type or print those portions of the transcript necessary for the appellate court to determine the questions presented, certify their accuracy, and append such copy of the portions of the transcript to his or her brief. In State v. Ashbaugh (Dec. 20, 1991), Delaware App. No. CA-91-15, *Page 5 1991 WL 302409, this court held that App. R. 9 sets forth a mandatory procedure for a videotape transcript, and failure to comply with the Rule represents failure to demonstrate the claimed error. Id. at 1. The case of Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199,400 N.E.2d 384, was cited by the Ashbaugh Court for the holding that the duty to provide a transcript for appellate review falls upon the appellant, as it is the appellant who bears the burden of showing error by reference to matters in the record. Knapp held further that when portions of the transcript necessary for resolution of the assigned errors are not in the record, a reviewing court has nothing to pass upon, and has no option but to presume the validity of the trial court's proceedings and affirm. Knapp, supra, at 199; Ashbaugh supra, at 1. See, also, State v. Flahive, Delaware App. No. 03CA-C-11-062, 2004-Ohio-2913, at ¶ 21; and, State v. Komadina, Lorain App. No. 02CA008104, 2003-Ohio-1800, at ¶ 26-27. *Page 6 {¶ 11} Appellant's sole assignment of error is overruled. Accordingly, the judgment of the Delaware County Municipal Court is affirmed. By: Edwards, J. Hoffman, P.J. and Boggins, J. concur JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Delaware County Municipal Court is affirmed. Costs assessed to appellant. *Page 1

2016-07-06 06:36:18.577648+00

DECISION AND JOURNAL ENTRY {¶ 1} Defendant-Appellant Julie A. Bolt has appealed from a decision of the Wayne County Court of Common Pleas that convicted her of uttering a forgery. This Court affirms. I {¶ 2} As an initial matter, this Court notes that the State failed to file an appellate brief. As such, this Court may accept Appellant's statement of the facts and issues as correct. App.R. 18(C). {¶ 3} On May 8, 2003, Appellant was indicted by the Wayne County Grand Jury on one count of uttering a forgery, in violation of R.C. 2913.31, a felony of the fifth degree. The basis of the indictment was a forged check made payable to Ms. Amy Ickes, in the amount of $14.74. Appellant pleaded not guilty to the crime as charged in the indictment and the matter proceeded to a jury trial. The jury returned a verdict of guilty on the charge of uttering a forgery. A sentencing hearing was held on November 19, 2003, and the trial court sentenced Appellant to a term of twelve months probation. {¶ 4} Appellant has timely appealed, asserting two assignments of error. II Assignment of Error Number One "The trier of fact's finding that appellant violated [R.C.2913.31], knowingly uttering a forgery, is against the manifest weight of the evidence." {¶ 5} In Appellant's first assignment of error, she has argued that her conviction for uttering a forgery was against the manifest weight of the evidence. This Court disagrees. {¶ 6} In reviewing whether a conviction is against the manifest weight of the evidence, this Court must: "[R]eview 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. {¶ 7} Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. State v. Thompkins (1997),78 Ohio St. 3d 380, 387. Further, when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a "thirteenth juror," and disagrees with the factfinder's resolution of the conflicting testimony. Id. {¶ 8} In the case sub judice, Appellant was convicted of uttering a forgery, a violation of R.C. 2913.31(A)(3). That section provides, in pertinent part: "(A) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following: "* * * "(3) Utter, or possess with purpose to utter, any writing that the person knows to have been forged." {¶ 9} R.C. 2901.22(B) further 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 person has knowledge of circumstances when he is aware that such circumstances probably exist." This Court has held that to determine whether a person acts "knowingly," her state of mind must be determined from the totality of circumstances surrounding the alleged crime. State v. Cureton, 9th Dist. No. 01CA3219-M, 2002-Ohio-5547, at ¶ 15, appeal denied (2003), 100 Ohio St. 3d 1412, citing State v. Dorsey (Feb. 13, 1991), 9th Dist. No. 90CA004796. {¶ 10} On appeal, Appellant has argued that the State failed to prove that she "knowingly" passed a forged check or that she knew that the endorser's signature on the back of the check was a forgery. Specifically, she has argued that "the testimony of virtually every witness failed to show that Appellant, even if she was the one who uttered the check, had actual knowledge that Beth Ann Ray forged Amy Ickes' signature on the back of the check as an endorsement." Appellant has further argued that Beth Ann Ray, the person who confessed to forging the check and who has since been convicted of several crimes of deceit, was a less than credible witness. {¶ 11} At trial, Ms. Kathleen Imhoff testified on behalf of the State. Ms. Imhoff testified to the following. In November 2002, she was employed as a manger with A W, All American Good ("A W"), which was located on Lincoln Way, in Wooster Ohio; the A W was located in the same building as a store called Marathon Mart. On November 22, 2003, Ms. Imhoff issued a payroll check to Ms. Ickes, an A W employee, but because Ms. Ickes was not available to pick up the check Ms. Imhoff placed the check in the drawer of her desk at work. Ms. Imhoff was later informed by a Marathon Mart employee that the payroll check issued to Ms. Ickes had been cashed. Ms. Imhoff reviewed the check and discovered that it had not been endorsed by Ms. Ickes. Ms. Imhoff also reviewed a videotape obtained from the store surveillance camera and the tape confirmed that Ms. Ickes was not the person who cashed the check. Ms. Imhoff then spoke with Ms. Ickes, who informed Ms. Imhoff that she did not pick up her payroll check. Ms. Imhoff filed a police report as a result. {¶ 12} Laura Heath, an employee at Marathon Mart, also testified on behalf of the State. She stated the following to the jury. Ms. Heath was familiar with Beth Ann Ray; Ms. Ray previously worked at the A W store located in the same building as Marathon Mart. Ms. Heath was working behind the counter at Marathon Mart on November 23, 2002, at approximately 11:30 p.m., when she saw Ms. Ray enter the A W section of the building. Ms. Heath watched Ms. Ray's movements because "it was kind of late for her to be out because she normally worked in the morning." Ms. Heath walked around to the back door of the A W section of the store and asked Ms. Ray "what are you doing" in a joking manner. Ms. Ray told her that she was trying to find something. Ms. Heath then turned on the lights in the A W section, and then "went about [her] business." {¶ 13} Before Ms. Ray left the store, she asked Ms. Heath to cash a payroll check in the amount of $169. Ms. Heath noticed that the check appeared odd because it "had white on it." Ms. Heath cashed the check despite its odd appearance because Ms. Ray "was employed by the A W and it was an A W check. So [she] figured it was legitimate and that's the only reason [she took] the check." {¶ 14} At approximately 6:00 a.m. on November 24, 2003, Ms. Heath was still working at Marathon Mart when she saw Ms. Ray re-enter A W. Ms. Ray stayed in the store for approximately five minutes and then left again. Immediately after Ms. Ray left the store, a woman with blond hair entered Marathon Mart. The woman, whom Ms. Heath later identified in court as Appellant, "looked really disoriented and messy. She was missing an eye. She had hair that was covering the eye and she kept over and over pulling her hair down like a nervous habit." Appellant approached the counter and asked Ms. Heath if she could cash a payroll check for her. Ms. Heath cashed the check, which was in the amount of $14.74. Ms. Heath explained that she never met Appellant, but because she was not close friends to all of the A W employees she was not sure whether Appellant was an employee of A W. However, when Ms. Heath asked Appellant whether she was an A W employee, Appellant replied: "Yes." Appellant purchased a pack of Pall Mall cigarettes with the proceeds of the check; a register receipt showing the cigarette purchase and the amount of the payroll check was provided to the jury. When Appellant left the store, she got into a red car with Ms. Ray. Ms. Heath stated that she was "absolutely positive" that Appellant was the same women who entered Marathon Mart to buy cigarettes with an A W payroll check. {¶ 15} Another employee of Marathon Mart, Anna Stern, testified for the State. Ms. Stern was employed with Marathon Mart as a manager. While reviewing the register tape that recorded all of the store's transactions, Ms. Stern stated that at approximately 5:57 a.m. a transaction occurred in which a pack of Pall Mall cigarettes was sold for $2.65 and paid for with a check in the amount of $14.74. Ms. Stern further explained that security cameras were placed throughout the store. A security camera was located above the register, which recorded all transactions that occurred on the night of November 23, 2002, and the morning of November 24, 2002. Appellant's trial counsel stipulated that the videotape recovered from the store showed Appellant entering the store and completing a transaction. On cross-examination, Ms. Stern explained that another transaction occurred at 5:48 a.m. on the morning of November 24, 2002, at which time a customer also purchased a pack of Pall Mall cigarettes with cash. Ms. Stern further admitted that the time date stamps on the register tape, which the State used to show Appellant purchased cigarettes with a payroll check, and the surveillance tape were inconsistent. The register tape showed that a transaction occurred at 5:57 a.m., but the surveillance tape showed Appellant purchasing cigarettes at 5:59 a.m. Ms. Stern explained, however, that the cash registers were not synchronized with the security cameras, which could account for the time discrepancies. {¶ 16} Beth Ann Ray also took the witness stand on behalf of the State. Ms. Ray stated that she met Appellant at a "drug house" on the night of November 23, 2002. She admitted that she was using crack cocaine and was involved in another unrelated case concerning forged checks; she explained that she had pleaded guilty to forging checks she had stolen from her mother. When shown a copy of the check in the amount of $14.74, she acknowledged that she took the check from A W in the early morning of November 24, 2002, and was responsible for signing Ms. Ickes' name on the back of the check. She further admitted that Ms. Ickes did not give her permission to endorse the check on her behalf. Ms. Ray testified that Appellant was present when she forged Ms. Ickes' name on the check; after which she handed the check to Appellant to cash. She stated that after Appellant cashed the payroll check in Marathon Mart, the two women went back to the drug house and brought crack cocaine with the money from the forged check. {¶ 17} On cross-examination, Ms. Ray admitted that she and Appellant were high on crack cocaine on the night of November 23, 2002. She denied any knowledge that Appellant was staying at a trailer owned by Herb Coppa so she could escape an abusive relationship. Ms. Ray believed Appellant was living with Mr. Coppa so she could smoke crack cocaine. Ms. Ray admitted that she told two people, Alice Ray and Tim McElfresh, that if she was ever caught for forging checks should was "going to take someone with [her]." {¶ 18} Lieutenant Steve Glick, a police officer with the City of Wooster Police Department, presented testimony on behalf of the State. Lieutenant Glick stated that he was dispatched to investigate the passing of forged checks on November 25, 2002. In the course of his investigation, Lieutenant Glick talked to Ms. Heath, Ms. Stern, and Ms. Imhoff. After talking to employees of Marathon Mart and A W, and watching the surveillance tape, "the first suspect [he] developed was Beth Ray primarily from the first check that was — that had been passed that she passed herself using her name. The second suspect [he] developed was [Appellant] based on the descriptions that the cashier gave [him]." The officer further explained that after hearing the description of a thin, blond woman with one eye, he knew it was Appellant because he "had personal contact with [Appellant] in the past. [He was] aware that she was a victim of gun shot injury and ha[d] extensive scarring and the loss of her left eye from that incident." Lieutenant Glick stated that he could not locate Appellant for an interview until February 2003. When asked about the forged A W check at Marathon Mart and her involvement with Ms. Ray, Appellant told the officer: "[S]he was in the store probably about the time involved, but didn't know anything about a check. * * * She admitted to buying cigarettes, but denied using the check." {¶ 19} On cross-examination, Lieutenant Glick stated that Appellant told him that she was having problems. Her children had been taken from her and placed in foster care. Appellant was attempting to get away from her abusive boyfriend, so she moved in with a man named Herb Coppa. The officer also stated that Appellant did not know she was living in a crack house until after she moved in; she stayed in her bedroom to avoid any problems. Lieutenant Glick stated that Ms. Ray admitted to forging the $14.74 payroll check. The officer testified that he sent the checks, including the check in the amount of $14.74, to the Bureau of Criminal Identification for fingerprint analysis. The partial fingerprint on the $14.74 check did not match Appellant's fingerprints; however, the partial fingerprint was also compared to Ms. Ray, who admitted to forging the check, and it did not match Ms. Ray. The officer further explained that checks generally pass through the hands of "five or six legitimate people." {¶ 20} Appellant testified in her own behalf. During direct examination, she explained that as a result of her shot gun injuries she was taking "some pretty strong stuff," like morphine. She testified that she moved into Herb Coppa's trailer because she was having problems with an abusive boyfriend and needed to move. Mr. Coppa told Appellant that he would provide her with a place for "cheap rent" and she accepted the offer "so [she] could get [her] kids back." She further explained that she met Ms. Ray at Mr. Coppa's home on November 24, 2002. Ms. Ray was doing crack cocaine with Mr. Coppa. Appellant stated that she did not get along with Ms. Ray "[b]ecause [she] didn't want [Ms. Ray] in her house. They were all in there doing crack, being noisy, being obnoxious." Appellant stated that the next morning, November 25, 2002, Ms. Ray accused Appellant of smoking crack cocaine with her husband, "Eddie." {¶ 21} Appellant admitted that she drove Ms. Ray's car to Marathon Mart in the early morning of November 24, 2002. While driving to Marathon Mart, Ms. Ray "was bugging [Appellant] in the car [about crack cocaine]." Appellant admitted that she purchased a pack of Pall Mall cigarettes, but she claimed that she paid for the item with cash. Appellant could not remember, however, whether she paid for the cigarettes with a five dollar bill or three ones. {¶ 22} Based on the testimony presented at trial, this Court finds that the jury did not clearly lose its weigh when it convicted Appellant of uttering a forgery. Two employees of Marathon Mart identified Appellant as the woman who passed a forged payroll check in the amount of $14.74. Appellant admitted to purchasing a pack of Pall Mall cigarettes on the morning in question. The videotape confirms Appellant's story that she purchased cigarettes, but it also shows that she paid for the cigarettes with something other than cash. Her partner in crime, Ms. Ray, testified that Appellant knew the check was forged when she gave it to the Marathon Mart clerk. Furthermore, Appellant never testified that she worked at A W or that she knew Ms. Ickes, the person to whom the check was made payable. The evidence overwhelmingly shows that Appellant knowingly used a forged check, in violation of R.C. 2913.31. Consequently, we find that Appellant's first assignment of error lacks merit. Assignment of Error Number Two "Appellant's Sixth Amendment right to effective assistance of counsel was denied by that trial counsel's failure to adequately safeguard appellant's interest." {¶ 23} In Appellant's second assignment of error, she has argued that she was denied the effective assistance of counsel. Specifically, Appellant has argued that trial counsel was aware that Appellant was suffering from the effects of morphine and other prescription drugs during trial, but that he allowed Appellant to testify on her own behalf, to Appellant's detriment. {¶ 24} Appellant bears the burden of proof in a claim of ineffective assistance of counsel. State v. Colon, 9th Dist. No. 20949, 2002-Ohio-3985, at ¶ 49. In order to establish the existence of such a claim, Appellant must satisfy a two-pronged test. First, Appellant must demonstrate that trial counsel's performance was deficient by showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed Appellant by the Sixth Amendment. Strickland v.Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052,80 L. Ed. 2d 674. When analyzing the reasonableness of trial counsel's challenged conduct, this Court must consider the facts of the particular case as they existed at the time of trial counsel's conduct. State v. Palmison, 9th Dist. No. 20854, 2002-Ohio-2900, at ¶ 31. Appellant must identify the acts or omissions of his attorney that he claims were not the result of reasonable professional judgment. Id. This Court must then decide whether counsel's conduct fell outside the range of that which is considered professionally competent. Id. {¶ 25} Second, Appellant must also demonstrate that she was prejudiced by her trial counsel's deficient performance.Palmison, 2002-Ohio-2900, at ¶ 30. Prejudice entails "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. This requires a showing that counsel's errors were so serious as to deprive Appellant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687. Additionally, "[a]n appellate court may analyze the second prong of theStrickland test alone if such analysis will dispose of a claim of ineffective assistance of counsel on the ground that the defendant did not suffer sufficient prejudice." State v.Lansberry, 9th Dist. No. 21006, 2002-Ohio-4401, at ¶ 16, citingState v. Loza (1994), 71 Ohio St. 3d 61, 83. Accordingly, we will begin our analysis with a discussion of the prejudice prong of Strickland. {¶ 26} Assuming, arguendo, that trial counsel was ineffective for failing to prevent Appellant from taking the stand due to her allegedly impaired mental state, Appellant has failed to show that she was prejudiced by trial counsel's alleged errors. Specifically, Appellant has failed to show that the jury would have reached a different verdict if it did not have the benefit of Appellant's testimony. At trial, Ms. Heath, who stated that she did not know Appellant, testified that Appellant purchased a pack of cigarettes with a check in the amount of $14.74. Ms. Heath testified that she was "absolutely positive" that Appellant was the woman who cashed the forged check. Ms. Heath also stated that Appellant told her that she was an employee with A W. Ms. Ray, a self-admitted crack addict, also testified that Appellant was present when she forged Ms. Ickes' name on the back of the check. Ms. Ray explained that they were going to use the money from the forged check to buy crack cocaine. Further, the surveillance tape showed Appellant entering the store and purchasing cigarettes with a check. Based on the evidence presented, this Court concludes that even if Appellant had refused to take the stand as a result of her allegedly impaired condition, the jury was presented with sufficient evidence to convict her of uttering a forgery. The jury did not need to hear testimony from Appellant to find her guilty of the crime as charged in the indictment. Thus, we cannot say that "but-for" trial counsel's alleged errors the result of the trial would have been different. {¶ 27} Appellant's second assignment of error is not well taken. III {¶ 28} Appellant's 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 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. Exceptions. Slaby, J., Batchelder, J., concur.

2016-07-06 06:36:18.660346+00

OPINION {¶ 1} Defendant-appellant, M.B.1 ("appellant"), appeals from the judgment of the Franklin County Court of Common Pleas, whereby a jury convicted appellant of seven counts of rape, first-degree felonies, in violation of R.C. 2907.02. For the following reasons, we affirm in part and reverse in part. {¶ 2} The following is a recitation of the facts relative to appellant's convictions, which were adduced at trial. Additional facts will be discussed as they concern each *Page 2 assignment of error. The victim in this case is R.B., appellant's minor daughter. In April 2005, R.B. was diagnosed with trichomonas, a sexually transmitted disease.2 At the time, R.B. was 15 years old. When she learned of the diagnosis, R.B. told her mother that her father had been sexually abusing her for several years. Because of R.B.'s statements, Kerri Marshall ("Marshall"), a licensed social worker employed by the Child Assessment Center3 interviewed R.B., while other evaluators, including Gail Hornor ("Hornor"), a pediatric nurse practitioner, watched on closed circuit television. During this interview, R.B. reported being raped by her father on numerous occasions. Hornor subsequently conducted a physical examination of R.B., finding no injuries or signs of past injuries. {¶ 3} Based on this information, appellant was indicted on ten counts of rape in violation of R.C. 2907.02, for incidents of vaginal and anal intercourse which occurred when R.B. was between four and 12 years old. The case was tried to a jury which found appellant guilty of seven counts of rape, but not guilty on the remaining three counts. After a pre-sentence investigation, the trial court gave appellant five sentences of ten years to life, with four of the sentences to be served concurrent to each other, and the fifth to be served consecutive to the others. On the two remaining counts, appellant was sentenced to two 10-year terms of imprisonment, to be served concurrently. *Page 3 {¶ 4} Appellant filed a timely appeal, advancing nine assignments of error. For sake of clarity and ease of discussion, each assignment of error is separately set forth, and our analysis of same immediately follows. FIRST ASSIGNMENT OF ERROR: THE COURT IMPOSED SENTENCES ON COUNTS THREE THROUGH SIX IN EXCESS OF THOSE PROVIDED BY THE CONTROLLING STATUTES. {¶ 5} In this assignment of error, appellant argues that the trial court erred in sentencing him under the version of R.C. 2907.02 that was amended in 2002, rather than the version of the statute that was in effect at the time appellant committed the crimes for which he was convicted. Appellant contends that, while the above-referenced counts were premised upon violations of R.C. 2907.02(A)(1)(b), the language of which remained unaffected by the 2002 amendments, the penalty imposed for a violation of the statute as contained in R.C. 2907.02(B) did change. The state agrees with appellant and requests a remand for resentencing.4 {¶ 6} Upon review of the record, we agree with the parties' assessment that the trial court erred. We therefore remand appellant's case for resentencing on counts three through six. Appellant's first assignment of error is sustained. SECOND ASSIGNMENT OF ERROR: APPELLANT WAS DENIED DUE PROCESS OF LAW AND MADE SUBJECT TO EX POST FACTO APPLICATION OF R.C. 2907.02(B) BY THE COURT'S REFUSAL TO INSTRUCT THE JURY IN ACCORDANCE WITH VERSIONS OF THE STATUTE IN FORCE AT THE TIMES SPECIFIED IN COUNTS ONE THROUGH SIX OF THE INDICTMENT. *Page 4 {¶ 7} In this assignment of error, appellant argues that he was denied due process of law when the trial court refused to instruct the jury in accordance with the version of R.C. 2907.02 at the time the offenses were committed. According to appellant, the version of R.C. 2907.02 in effect at the time the offenses were committed specified that the forcible rape of a victim under 13 years of age carried the penalty of a life sentence. The trial court, however, instructed the jury using the version of the statute as amended by H.B. 485 in 2002, which eliminated the requirement of force or threat of force for a sentence of life of imprisonment for the rape of a child under the age of ten. Thus, appellant contends the trial court's erroneous instruction to the jury warrants reversal. {¶ 8} The state concedes that the trial court erred, but argues that because force was not an issue in counts one through six and the instructions on those counts created an increased burden regarding age for the state, no prejudice resulted. We agree. Crim. R. 52(A) provides that "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Upon review, we do not find that any prejudice to appellant has been established. Appellant's second assignment of error is overruled. THIRD ASSIGNMENT OF ERROR: THE COURT ERRONEOUSLY REFUSED TO ORDER THE STATE MAKE A RECORDING OF THE VICTIM'S FORENSIC INTERVIEW AVAILABLE TO THE DEFENSE IN ADVANCE OF THE PRESENTATION OF EXPERT TESTIMONY BASED ON THAT INTERVIEW. {¶ 9} At the time Marshall interviewed R.B. about the allegations she made regarding her abuse, Hornor was watching the interview from another room via closed-circuit television. After the interview, Hornor performed a physical examination of R.B. *Page 5 {¶ 10} At trial, defense counsel moved the court to order the state to produce the videotape of R.B.'s interview by Marshall so that it could be reviewed prior to Horner's testimony. Counsel argued that the videotape was discoverable for two reasons: (1) the opinions that would be offered by Hornor were hearsay and solely derived from her viewing the videotaped interview; and (2) failure to produce the videotape would violate appellant's constitutional right to confront witnesses underCrawford v. Washington (2004), 541 U.S. 36, 124 S. Ct. 1354. The court held an Evid. R. 104 hearing and concluded that the videotape was not discoverable, Hornor's testimony was not inadmissible hearsay, andCrawford was inapplicable. {¶ 11} On appeal, appellant first argues that because Hornor was testifying as an expert on child sexual abuse, the videotape constituted "underlying facts or data" required to be disclosed under Evid. R. 705.5 We disagree. Hornor watched Marshall's interview of R.B. from another room via closed-circuit television as it was taking place. The "underlying data or facts" that served as the basis of Hornor's testimony was her physical examination of R.B., the scope of which was determined by R.B.'s statements to Marshall, who had already testified. Thus, we find no violation of Evid. R. 705. {¶ 12} Appellant next argues that the videotape of the interview "was more than a witness statement" and constitutes a document or tangible object or a report and, as such, was subject to disclosure under Crim. R. 16(B)(1)(c) and (d), which provides: (c) * * * Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions *Page 6 thereof, available to or within the possession, custody or control of the state, and which are material to the preparation of his defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant. (d) * * * Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, made in connection with the particular case, or copies thereof, available to or within the possession, custody or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney. {¶ 13} We find appellant's argument to be misplaced and agree with the state that "[i]t is not the tangible object of the videotape itself that the [appellant] is attempting to acquire but the statement that is contained on the video which is governed by Crim. R. 16(B)(1)(g)." (State's brief at 6.) Moreover, as will be discussed, infra, the reports of both Hornor and Marshall were admitted as evidence. Thus, we find the state was not compelled to produce the videotape under Crim. R. 16(B)(1)(c) or (d). {¶ 14} Lastly, appellant argues that "the videotape was subject to disclosure" pursuant to Evid. R. 612 because Hornor "had reviewed it prior to her testifying in order to refresh her recollection." (Appellant's brief at 16.) That rule states: Except as otherwise provided in criminal proceedings by Rules 16(B)(1)(g) and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, if a witness uses a writing to refresh memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. The adverse party is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. * * * *Page 7 {¶ 15} We do not find Evid. R. 612 supports appellant's argument for several reasons. First, the statements made by R.B. during Marshall's interview are subject to Crim. R. 16(B)(1)(g), and, therefore, Evid. R. 612 is not applicable. Second, as previously explained, Hornor's physical examination of R.B. provided the basis for her testimony, not her subsequent review of Marshall's videotaped interview, which Hornor actually witnessed as it was taking place. Hornor did not use the videotape to refresh her recollection while testifying, and we do not find the trial court abused its discretion when it failed to determine that production of the videotape was necessary in "the interests of justice." And, lastly, the record discloses that appellant's counsel did, in fact, watch the videotape after R.B. testified, in accordance with the procedure set forth in Crim. R. 16(B)(1)(g). Thus, appellant's counsel was afforded the opportunity to recall any witness and address any perceived issue after having viewed the videotape. {¶ 16} Based on the foregoing, we overrule appellant's third assignment of error. FOURTH ASSIGNMENT OF ERROR: THE COURT ERRONEOUSLY ADMITTED STATE'S EXHIBITS ONE AND TWO. {¶ 17} In this assignment of error, appellant asserts that the trial court erred in the admission of two reports: (1) the medical forensic interview summary prepared by Marshall during R.B.'s assessment (Exhibit 1); and (2) the medical report authored by Hornor (Exhibit 2). According to appellant, the statements of Marshall and Hornor, which are contained within these reports, are beyond the scope of the hearsay exception found in Evid. R. 803(4)6 *Page 8 {¶ 18} A review of the record discloses that appellant's counsel did not object to the admission of Exhibits 1 and 2 based on hearsay grounds but, rather, asserted an objection based on Crawford, supra. Evid. R. 103(A)(1) states that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and * * * a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context[.]" Here, the specific ground raised by appellant at trial was Crawford confrontation clause grounds, which is not the same challenge that he now raises on appeal. Thus, pursuant to Evid. R. 103(A)(1), appellant has waived the argument he advances herein, and we may not entertain the issue unless plain error exists. See, e.g., State v. Barnes (2002), 94 Ohio St. 3d 21, 27, 2002-Ohio-68; Crim. R. 52(B); see, also, State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus ("[A]n appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court."). And, based upon our review of the record, we note that the admission of Exhibits 1 and 2 do not rise to the level of plain error. Evid. R. 103(D). Accordingly, we overrule appellant's fourth assignment of error. FIFTH ASSIGNMENT OF ERROR: APPELLANT'S CONVICTION FOR RAPE AS CHARGED IN COUNT TEN OF THE INDICTMENT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AS THE STATE FAILED TO ESTABLISH THE ELEMENTS OF FORCE, PENETRATION, AND THE AGE OF THE VICTIM. *Page 9 {¶ 19} In this assignment or error, appellant argues that there was insufficient evidence to support his conviction on count ten, which reads in pertinent part that appellant: * * * from on or about August 1, 2002 to June 1, 2003, within the County of Franklin aforesaid, in violation of section 2907.02 of the Ohio Revised Code, did engage in sexual conduct, to wit: vaginal intercourse, with [R.B.], not his spouse, and the said [R.B.] being less than thirteen (13) years of age, to wit: twelve (12) years of age, and the said [M.B.] having purposely compelled [R.B.] to submit by force or threat of force, contrary to the statute in such cases made and provided and against the peace and dignity of the State of Ohio. Specifically, appellant argues that there was insufficient evidence that R.B. was under the age of 13, that appellant used force, or that there was penetration to R.B.'s vaginal and/or anal cavities. {¶ 20} The state concedes that there was insufficient evidence of penetration to support appellant's conviction for rape on count ten. Nevertheless, the state argues that there was sufficient evidence presented regarding R.B.'s age and appellant's use of force to support a conviction for attempted rape and urges this court to remand this count to the trial court to enter judgment accordingly. Given that the state concedes there was insufficient evidence regarding the issue of penetration, our discussion shall focus upon whether sufficient evidence was presented as to the elements of age and force. {¶ 21} When an appellant challenges his or her conviction as not supported by sufficient evidence, an appellate court construes the evidence in favor of the prosecution and determines whether such evidence permits any rational trier of fact to find the essential elements of the offense beyond a reasonable doubt. State v. Jenks (1991), *Page 10 61 Ohio St. 3d 259, paragraph two of the syllabus, superseded by constitutional amendment on other grounds in State v. Smith (1997),80 Ohio St. 3d 89; State v. Thompkins (1997), 78 Ohio St. 3d 380, 386, reconsideration denied, 79 Ohio St. 3d 1451; State v. Conley (Dec. 16, 1993), Franklin App. No. 93AP-387. In a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state's witnesses testified truthfully and determines if that testimony satisfies each element of the crime. State v. Woodward, Franklin App. No. 03AP-398,2004-Ohio-4418, at ¶ 16, cause dismissed, 103 Ohio St. 3d 1489,2004-Ohio-5606, reconsideration denied, 104 Ohio St. 3d 1428,2004-Ohio-6585. {¶ 22} Comparatively, when presented with a manifest-weight claim in a criminal matter, an appellate court engages in a limited weighing of the evidence to determine whether the fact finder's verdict is supported by sufficient competent, credible evidence to permit reasonable minds to find guilt beyond a reasonable doubt. Thompkins, at 387;Conley, supra; State v. Group, 98 Ohio St. 3d 248, 2002-Ohio-7247, at ¶ 77. "[S]ufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, at ¶ 25, citing Thompkins, at 386-387. When presented with a manifest-weight claim, "a reviewing court asks whose evidence is more persuasive — the state's or the defendant's?" Id." `When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a "thirteenth juror" and disagrees with the factfinder's resolution of the conflicting testimony.'" Id., quoting Thompkins, at 387, citingTibbs v. Florida (1982), 457 U.S. 31, 42, 102 S. Ct. 2211. *Page 11 {¶ 23} As germane to this assignment of error, one of the elements the state had to prove was that appellant engaged in sexual contact with R.B. when she was under the age of 13. According to the record, R.B. was born on March 17, 1990 and, therefore, turned 13 during the time period covered in this count. R.B. testified that the last incident of sexual contact occurred sometime "in the middle" of her seventh grade year. (Tr. 266.) There is no evidence in the record, however, which definitely establishes that R.B. was under the age of 13 when the last alleged incident took place. {¶ 24} In State v. Tiderman, Cuyahoga App. No. 83930, 2004-Ohio-6095, the Eighth District Court of Appeals was confronted with virtually the same scenario. In that case, the appellant argued, and the state conceded, that there was insufficient evidence to sustain evidence as to his victim's age. In reversing appellant's conviction on five counts of rape, the court explained: For counts one through five, the State had to prove Tiderman engaged in sexual conduct with the victim when she was under the age of thirteen. The record reveals the victim was born February 8, 1987. The victim testified the first sexual encounter with Tiderman was Halloween night in 1999 or 2000. This is crucial to the validity of the conviction on the first five counts of the indictment. If the first sexual encounter was in 1999, the victim would have been twelve years old, but if it occurred in 2000, she would have been thirteen years old. However, she was not certain as to whether it was 1999 or 2000. Because the State failed to overcome this uncertainty, we sustain the first two assigned errors and reverse convictions for counts one through five. Id. at ¶ 26. {¶ 25} Given the similarity in facts, we are persuaded by the court's reasoning in Tiderman. Here, the state failed to prove that R.B. was under the age of 13 at the time the incident alleged in count ten took place, and such was "crucial to the validity of the *Page 12 conviction" on this count. Id. Cf. State v. Crosky, Franklin App. No. 06AP-655, 2008-Ohio-145, at ¶ 48 (demonstration that the victim was under the age of 13 becomes an issue when age is disputed); State v.Hurd, Trumbull App. No. 2001-T-0086, 2002-Ohio-7163, at ¶ 30 (noting that age of victim is essential when "there is an issue of whether [the victim] had reached the age of thirteen when the abuse occurred"). Appellant's fifth assignment of error is sustained. Accordingly, we reverse appellant's conviction on count ten. SIXTH ASSIGNMENT OF ERROR: APPELLANT'S CONVICTIONS ON COUNTS THREE, FOUR, FIVE, SIX, SEVEN AND NINE WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE. {¶ 26} Employing the sufficiency of the evidence standard set forth in our analysis of appellant's fifth assignment of error, we believe that the state presented sufficient evidence from which a jury could conclude, beyond a reasonable doubt, that appellant committed the rapes alleged in the above referenced counts. Rape is defined in R.C. 2907.02(A)(1) as "sexual conduct with another * * * less than thirteen years of age." R.C. 2907.02(A)(1)(b). The gravamen of appellant's argument is that the evidence adduced at trial did not correlate to the specific counts of the indictment, and, without evidence relating to exact dates and specific details relative to each count, there is no basis to support his convictions. {¶ 27} At this juncture, we note the difficulties inherent in prosecuting cases of child abuse, especially cases involving a pattern of abuse occurring over years involving persons who reside in the same household. Often times, the victims are young and unable to remember exact dates and times of particular events, particularly where the *Page 13 abuse is alleged to have occurred over an extended period of time, such as in the case at bar. See State v. Mundy (1994), 99 Ohio App. 3d 275,296. Further, the exact date and time is not an essential element of these offenses. State v. Adams, Erie App No. E-03-042, 2004-Ohio-4673, at ¶ 14. Thus, a reasonable degree of latitude and inexactitude is allowed with respect to the timing of the offense. It is sufficient to prove that the alleged offense occurred at or about the time charged.State v. Reinhardt, Franklin App. No. 04AP-116, 2004-Ohio-6443, at ¶ 20, citing State v. Madden (1984), 15 Ohio App. 3d 130, 131. The question presented by this assignment of error is whether or not the state presented sufficient evidence demonstrating that appellant engaged in sexual contact with R.B. within the period of time alleged in the various counts of the indictment. {¶ 28} In counts three and four, the state alleged that appellant engaged in vaginal and anal intercourse with R.B. between March 17, 1995 and March 17, 1996, when R.B. was between five and six years of age. R.B. testified that appellant began sexually abusing her when she was around five or six years old and was in kindergarten the first time he put his penis in her vagina. She believes the first incident took place when she was living at Bolivar Arms. R.B. testified to another incident during the time frame covered by these counts when appellant bought R.B. and her brother a meal at McDonald's and then took them back to his apartment. There, R.B. stated that she and her brother fell asleep, appellant woke her up and told her to come to his bedroom with him so that they could watch her favorite movie, "Pocahantas." During this incident, appellant inserted his penis into her vagina. With respect to the allegation that appellant had anal intercourse with R.B., she testified at trial that every time appellant had vaginal intercourse with her, he also had anal intercourse with her. Although there was conflicting *Page 14 testimony given by Marshall, such evidence has no bearing on the sufficiency of the evidence regarding the allegation. As set forth, this testimony is sufficient evidence for a trier of fact to find that appellant had sexual contact with R.B. as alleged in counts three and four. {¶ 29} In count five, the state alleged that appellant engaged in vaginal intercourse with R.B. between August 1, 1997 and June 1, 1999, when R.B. was between seven and nine years old. R.B. testified that when she was in either the second or third grade, she had a friend over to play. While her friend was downstairs watching television, R.B. was upstairs in appellant's bedroom and he inserted his penis into her vagina. R.B.'s testimony is sufficient evidence for a trier of fact to find that appellant had engaged in sexual conduct with her as alleged in count five. {¶ 30} In count six, the state alleged that appellant engaged in vaginal intercourse with R.B. between February 1, 1998 and June 1, 2000, when R.B. was between eight and ten years of age. R.B. testified that that she was in either the fourth or the fifth grade when appellant had vaginal intercourse with her. She recalled the incident because she testified that the next day when she went to school she could not concentrate and was confused about what had happened the previous evening. R.B. also recounted that appellant had vaginal intercourse with her while watching a "South Park" movie. We find this testimony is sufficient evidence for a trier of fact to find that appellant had sexual contact with R.B. as alleged in count six. {¶ 31} In count seven, the state alleged that appellant engaged in vaginal intercourse with R.B. between August 1, 2001 and March 13, 2003, when R.B. was between 11 and 13 years old. And, in count nine, the state alleged that appellant *Page 15 engaged in vaginal intercourse with R.B. between August 1, 2002 and March 16, 2003, when R.B. was between 12 and 13 years of age. As opposed to the aforementioned counts, we find counts seven and nine are problematic due to lack of detail. R.B.'s testimony that vaginal intercourse happened "too many times to count" (Tr. 261) falls short of placing the events within or even in the near proximity of the time frames alleged in the indictment. Succinctly stated, we find such testimony exceeds the outer limits of sufficiency. {¶ 32} In summary, we find that appellant's convictions for rape on counts three, four, five, and six are supported by sufficient evidence, and we find that appellant's convictions on counts seven and nine were not supported by sufficient evidence. Accordingly, we overrule in part and sustain in part appellant's sixth assignment of error. SEVENTH ASSIGNMENT OF ERROR: THE COURT ERRONEOUSLY OVERRULED APPELLANT'S MOTIONS FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29. {¶ 33} In this assignment of error, appellant challenges the trial court's denial of his motions pursuant to Crim. R. 29(A), (B), and (C). A trial court grants a Crim. R. 29 motion for acquittal if the evidence is insufficient to sustain a conviction. Columbus v. Myles, Franklin App. No. 04AP-1255, 2005-Ohio-3933, at ¶ 17; State v. Woodward, Franklin App. No. 03AP-398, 2004-Ohio-4418, at ¶ 11; Crim. R. 29. Conversely, a trial court shall not grant a motion for acquittal if reasonable minds can reach different conclusions as to whether the prosecution has proved each material element beyond a reasonable doubt. Woodward at ¶ 11;Myles at ¶ 17. In considering a motion for acquittal, the trial court must construe the evidence in a light most favorable to the prosecution.Woodward at ¶ 11; Myles at ¶ 17. *Page 16 {¶ 34} We apply de novo review to the trial court's decision on a Crim. R. 29 motion for acquittal. Id. at ¶ 18. We will only reverse a trial court's decision to deny a motion for acquittal if, after viewing the evidence in a light most favorable to the prosecution, we conclude that reasonable minds could only reach the conclusion that the evidence failed to prove all the elements of the crime beyond a reasonable doubt. Id. {¶ 35} A motion for acquittal focuses on the legal sufficiency of the evidence, not its weight or credibility. Id. at ¶ 19; State v.Harcourt (1988), 46 Ohio App. 3d 52, 56. Therefore, in reviewing a trial court's decision to deny a motion for acquittal, "`our analysis of the evidence focuses not upon its weight or credibility * * * but rather its quantitative sufficiency to establish beyond a reasonable doubt each element of the offense.'" State v. Jackson (Feb. 20, 2001), Franklin App. No. 00AP-183, quoting State v. Kline (1983), 11 Ohio App. 3d 208,213; see, also, State v. Carlisle (Oct. 7, 1997), Lawrence App. No. 97 CA 13, citing Thompkins, supra (acknowledging that the appellate court does not address the issue of whether it should believe the evidence when reviewing the sufficiency of such evidence). {¶ 36} Against the above standard, we first note that because appellant was not convicted on counts one and two, his arguments regarding these two counts are moot. State v. Williams (1996),74 Ohio St. 3d 569, 576. And, any error regarding counts seven, nine, and ten have been rendered moot by our disposition regarding the same. With respect to counts three, four, five, and six, based on our previous determination that there was sufficient evidence to support appellant's convictions on these counts, we do not find the trial court erred in denying appellant's Crim. R. 29 motions. Thus, appellant's seventh assignment of error is overruled. *Page 17 EIGHTH ASSIGNMENT OF ERROR: APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 37} In this assignment of error, appellant asserts that his convictions are against the manifest weight of the evidence. Appellant advances the same general argument that he asserted in his sixth assignment of error, that being the state failed to produce specific evidence relating to each count of rape for which appellant was convicted. Having previously addressed counts seven, nine, and ten, our discussion below focuses on appellant's convictions as to the other counts. {¶ 38} The weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other. State v. Brindley, Franklin App. No. 01AP-926, 2002-Ohio-2425, at ¶ 16. When presented with a challenge to the manifest weight of the evidence, an appellate court, after "`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 [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."'Thompkins, supra, at 387, quoting State v. Martin (1983),20 Ohio App. 3d 172, 175. An appellate court should reserve reversal of a conviction as being against the manifest weight of the evidence for only the most "`exceptional case in which the evidence weighs heavily against the conviction.'" Id. {¶ 39} A defendant is not entitled to a reversal on manifest-weight grounds merely because inconsistent evidence was presented at trial.State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21. The trier of fact is free to believe or disbelieve all or *Page 18 any of the testimony. State v. Jackson, Franklin App. No. 01AP-973, 2002-Ohio-1257; State v. Sheppard (Oct. 12, 2001), Hamilton App. No. C-000553. The trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner and demeanor, and determine whether the witnesses' testimony is credible. State v.Williams, Franklin App. No. 02AP-35, 2002-Ohio-4503, at ¶ 58; State v.Clarke (Sept. 25, 2001), Franklin App. No. 01AP-194. Consequently, although an appellate court must act as a "thirteenth juror" when considering whether the manifest weight of the evidence requires reversal, it must also give great deference to the fact finder's determination of the witnesses' credibility. State v. Covington, Franklin App. No. 02AP-245, 2002-Ohio-7037, at ¶ 28; State v.Hairston, Franklin App. No. 01AP-1393, 2002-Ohio-4491, at ¶ 74. {¶ 40} Based upon our review of the record, despite R.B.'s failure to give specific, detailed information regarding each count, the jury heard her testimony firsthand and could evaluate her credibility. We cannot say that the jury clearly lost its way in making this decision. While R.B. was not very specific in describing the criminal conduct, her testimony was generally consistent, and we cannot say that the jury's verdict reflected a manifest miscarriage of justice. The jury obviously chose to believe R.B.'s accusations and disbelieve appellant's denials. This was within the province of the jury, and, as such, we overrule appellant's eighth assignment of error. NINTH ASSIGNMENT OF ERROR: COUNSEL'S OMISSIONS IN PURSUING THE POST-VERDICT MOTIONS FOR ACQUITTAL AND FOR A NEW TRIAL, AND IN RELATION TO SENTENCING, DENIED APPELLANT HIS SIXTH AMENDMENT AND ARTICLE I, SECTION 10 RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. *Page 19 {¶ 41} In this assignment of error, appellant asserts that his trial counsel was deficient with respect to her handling of his post-verdict motion for acquittal, and "identifying changes in the law over the period of the indictment as they related to sentencing." (Appellant's brief at 36.) In evaluating an ineffective assistance of counsel claim, we must employ the two-step process as described in Strickland v.Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052. First, the court must determine whether there was a "substantial violation of any of defense counsel's essential duties to his client." State v. Bradley (1989), 42 Ohio St. 3d 136, 141; State v. Lytle (1976),48 Ohio St. 2d 391, 396, vacated in part on other grounds, 438 U.S. 910, 98 S. Ct. 3135. Second, the court must determine if prejudice resulted to the defendant from counsel's ineffectiveness. Bradley, at 141-142, citingLytle, at 396-397. Prejudice exists where there is a reasonable probability that the trial result would have been different but for the alleged deficiencies of counsel. Id., at paragraph three of the syllabus. Appellant bears the burden of proof and must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." State v. Colon, Summit App. No. 20949, 2002-Ohio-3985, at ¶ 48, quoting Strickland, supra. {¶ 42} As previously explained in resolving appellant's fifth, sixth, and eighth assignments of error, with the exception of counts seven, nine, and ten, we concluded that appellant's convictions on counts three, four, five, and six were supported by sufficient evidence and not against the manifest weight of the evidence. Thus, we fail to find that appellant's counsel was ineffective, and further note that our disposition of counts seven, nine, and ten do not serve as a basis for ineffective assistance. In addition, given our disposition of appellant's first and second assignment of error, we likewise do not find *Page 20 that appellant's counsel was ineffective with respect to those issues. Thus, appellant's ninth assignment of error is overruled. {¶ 43} To summarize, we sustain appellant's first and fifth assignments of error, sustain in part and overrule in part appellant's sixth assignment of error, and overrule appellant's remaining assignments of error. Accordingly, appellant's convictions on counts seven, nine, and ten are reversed, and his convictions on counts three, four, five, and six are affirmed. The judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and this matter is remanded to that court to resentence appellant on counts three through six. Judgment affirmed in part, reversed in part, and cause remanded withinstructions. BRYANT and TYACK, JJ., concur. 1 Initials have been used for purposes of anonymity. 2 R.B.'s mother, as well as appellant, had been diagnosed with and treated for trichomonas in the past. 3 Child advocacy centers, such as the Child and Family Advocacy Center at Children's Hospital, were established in 2005 by the adoption of R.C. 2151.425 through 2151.428. These statutes authorize collaboration between children services agencies, local law enforcement, prosecutors, and other appropriate entities through a memorandum of understanding. Local law enforcement and prosecutors are permitted to access information at the centers when investigating alleged abuse. This collaboration does not make the centers' employees agents of the police when providing services to alleged victims of sexual abuse. 4 According to the state, appellant should be resentenced as follows: "[f]or counts three and four he should receive the pre-Senate Bill 2 indeterminate sentence. For counts five and six, he should be sentenced to a definite term between three and ten years." (The state's brief at 3.) 5 Evid. R. 705 provides, "[t]he expert may testify in terms of opinion or inference and give the expert's reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise." 6 The hearsay exception found in Evid. R. 803(4) extends to "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." *Page 1

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OPINION {¶ 1} Defendant-Appellant Cloyd Anthony Swartz appeals a judgment of the Hancock County Common Pleas Court, Juvenile Division, overruling his motion to reallocate parental rights and to change custody of the minor children from the mother, Brenda Inbody, to himself Swartz argues that the trial court's decision was against the manifest weight of the evidence and that the trial court erred in permitting the guardian ad litem to submit his final report after the conclusion of the hearing on the motion. Finding that the trial court's decision is not contrary to the manifest weight of the evidence, and that Swartz waived any objection to the tardy submission of the guardian ad litem's report, we affirm the trial court's decision. {¶ 2} The parties hereto, Cloyd Anthony Swartz ("the father") and Plaintiff-Appellee Brenda Inbody ("the mother"), lived together without the benefit of marriage for over ten years. During that time, they produced three minor children: Noah Swartz, age 6, Drew Swartz, age 8, and Cory Swartz, age 11. After the parties' separation in 1999, paternity was established, and on November 20, 2002, the trial court entered judgment, approving and ordering the parties' agreement, which designated the mother as the residential parent of the minor children, subject to specific visitation rights granted to the father. *Page 3 {¶ 3} On June 3, 2004, the father filed the present motion for re-allocation of parental rights and responsibilities and for an order restraining the mother from removing the children from the state of Ohio. The restraining order was granted by the court, and on June 14, 2004, the mother filed a notice of intent to relocate to the state of Michigan. {¶ 4} The matter was referred to the court's magistrate, and on July 14, 2004, the magistrate conducted an in camera interview with the children. On November 2, 2004, the court appointed a guardian ad litem to investigate this matter and to make a report to the court, including his recommendation. The motion came on for hearing before the magistrate on December 7, 2004, at which time the mother, the father, and four other witnesses testified. The guardian ad litem did not testify at the hearing but filed his written report on December 8, 2004. {¶ 5} Based upon the mother's expressed intent to relocate to Michigan, the magistrate found that a significant change in the circumstances of the minor children had arisen since the prior grant of parenting status. However, the magistrate found it was in the minor children's best interests for the mother to remain as the residential parent. The magistrate recommended that the father's motion to reallocate be denied, but that parenting time be modified to accommodate the move to Michigan. *Page 4 {¶ 6} The father filed objections to the magistrate's decision, claiming that the recommendation was against the manifest weight of the evidence and that the magistrate erred in considering the report of the guardian ad litem, which was filed after the conclusion of the hearing. The trial court overruled the objections and entered judgment on the recommendations of the magistrate. {¶ 7} It is from this judgment that the father appeals, setting forth two assignments of error for our review. Because the second assignment of error relates to an evidentiary ruling that bears on the manifest weight determination, we will address it first. Second Assignment of Error The trial court erred, according to Hancock County Domestic Relations Rule 2.27(D), by permitting the guardian ad litem to submit a final Guardian's report after the conclusion of the final hearing held on December 7, 2004. {¶ 8} Pursuant to a motion filed by the mother, the court appointed a guardian ad litem on November 2, 2004. The appointment directed the guardian ad litem to "investigate and report to the court such information as will assist in obtaining what is in the best interest of the children; and shall make recommendations regarding this (sic) children to the court * * *." {¶ 9} The father now attempts to challenge the admissibility of the report of the guardian ad litem based upon Hancock County Loc.R. 2.27(D), which provides that "[a]t least fourteen (14) days prior to the final hearing in a pending *Page 5 action, or as otherwise directed by the court, the guardian ad litem shall submit to the court a written report * * *." {¶ 10} The final hearing on this matter was originally scheduled for November 17, 2004; however, upon motion of the father, based upon a request to allow the guardian ad litem additional time to prepare, that hearing was continued to December 7, 2004. The guardian ad litem appeared at and participated in the final hearing on that date. At no time did the father request to inquire of the guardian ad litem as to his report and any recommendation that he might have for the court. {¶ 11} At the conclusion of the hearing, the magistrate stated on the record, pursuant to the authority of Loc.R. 2.27(D), the guardian ad litem: has a week to prepare a final guardian's report, which will be sent to, you can share it with the attorneys — actually, why don't you file it with the court and the attorneys can come here and read it. If either of you want to respond to the guardian's report, I will give you a week to do that after it has been filed with the court, just saying that it doesn't conform to the evidence, basically. Counsel for the father acknowledged that order on the record and made no objection to it. {¶ 12} With respect to the admission of the guardian ad litem's report and recommendation, it is well established that a trial court has broad discretion in the admission or exclusion of evidence. Rigby v. LakeCounty (1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056, citing Evid.R. 401; State v. Sage (1987), *Page 6 31 Ohio St.3d 173, 510 N.E.2d 343, paragraph two of the syllabus. So long as the court exercises its discretion in line with the rules of procedure and evidence, its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice. Id., citingState v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543 N.E.2d 1233. The term "`abuse of discretion' * * * implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v.Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144, internal citations omitted. {¶ 13} At the December 7, 2004 hearing, the father had the opportunity examine and/or cross-examine the guardian ad litem about his report and recommendation. He had the opportunity to object to the court's order granting an additional week to file the report, and he had the opportunity to request further hearing so he could examine the guardian ad litem on his report and recommendation. He did neither. Therefore, we find that the father waived this issue, and we further find that the trial court has not abused its discretion in admitting the guardian ad litem's report and recommendation into evidence. {¶ 14} Accordingly, the father's second assignment of error is overruled. First Assignment of Error The trial court's decision was an abuse of discretion and therefore against the manifest weight of the evidence when the court ruled that the minor children shall remain in the custody of Plaintiff-Appellant. *Page 7 {¶ 15} In this assignment of error, the father argues that the manifest weight of the evidence indicates it is in the children's best interests to modify parental rights in order for them to remain in Findlay, Ohio, contrary to the decision of the trial court. {¶ 16} Trial courts are vested with broad discretion in determining the allocation of parental rights and responsibilities for the care of minor children. Miller v. Miller (1988), 37 Ohio St.3d 71, 74,523 N.E.2d 846, citing Baxter v. Baxter (1971), 27 Ohio St.2d 168,271 N.E.2d 873; Palladino v. Palladino (1971), 27 Ohio St.2d 175,271 N.E.2d 826; Ross v. Ross (1980), 64 Ohio St.2d 203, 414 N.E.2d 426. Therefore, a reviewing court must uphold the trial court's decision in such cases absent an abuse of discretion. Masters v. Masters, 69 Ohio St.3d 83, 85,1994-Ohio-483, 630 N.E.2d 665, citing Miller, at 73-74. {¶ 17} An abuse of discretion will only be found where the court's decision is unreasonable, arbitrary, or unconscionable.Blakemore, at 219. Under the abuse of discretion standard, "an appellate court may not merely substitute its judgment for that of the trial court." Blaker v. Wilhelm, 6th Dist. No. WD-04-003, 2005-Ohio-317, at ¶ 10, citing Davis v. Flickinger (1997),77 Ohio St.3d 415, 416, 674 N.E.2d 1159. "This highly deferential standard of review rests on the premise that the trial judge is in the best position to determine the credibility of witnesses because he or she is able to observe their demeanor, gestures and attitude. * * *. This is especially true in a child custody case, since there may be much that is evident in *Page 8 the parties' demeanor and attitude that does not translate well to the record." Id., quoting In re L.S., 152 Ohio App.3d 500, 2003-Ohio-2045,788 N.E.2d 696, at ¶ 12. Accordingly, a judgment supported by some competent, credible evidence will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. FoleyConst. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at syllabus. {¶ 18} R.C. 3109.04(E)(1)(a) provides: The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree * * *, that a change has occurred in the circumstances of the child, his residential parent, * * *, and that modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree, unless a modification is in the best interest of the child and one of the following applies: * * * (iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child. {¶ 19} The father concedes the trial court properly found that a change of circumstances had arisen, namely the mother's intended move to the state of Michigan. Therefore, pursuant to R.C. 3109.04, the court was required to make a determination of the best interests of the children in deciding whether to modify residential parenting status as requested by the father. *Page 9 {¶ 20} In considering the best interest of a child, the court is mandated "to consider all relevant factors," including a non-exclusive list of ten specified factors. R.C. 3109.04(F)(1). In her decision, the magistrate recited each listed factor and discussed the evidence as it applied thereto. Thereafter, the magistrate concluded it was not in the children's best interests to modify residential parenting. In considering the objections, the trial court reviewed that finding in light of the statutory requirements and independently reached the same conclusion. {¶ 21} In reviewing the record, this court finds competent, credible evidence upon which the trial court could rely to find that a change of residential parent was not in the best interests of the children. There was evidence that while the children wished to spend significant time with each parent, the mother was much more involved with the children's schooling, activities, and lives than the father. There was evidence that the mother would more likely facilitate any visitation schedule ordered by the court. There was evidence that while the children expressed a desire to remain in Findlay, this choice was based upon the fact that the father was much more indulgent with the children than the mother. There was evidence that the mother provided a more stable and structured environment for the children, and that the children were better prepared for school when they were with the mother. There was evidence from which the court could infer that the father has not been forthright with stating his income, to the end that *Page 10 the children have been deprived of child support to which they may have been entitled. {¶ 22} After reviewing those factors the trial court discussed in determining the children's best interests, we conclude that the trial court's best interest finding is supported by a substantial amount of credible and competent evidence and was, therefore, not an abuse of discretion. The trial court considered the appropriate statutory factors in making its decision. We may not substitute our judgment for that of the trial court when the trial court's findings are supported by substantial credible and competent evidence. Accordingly, the father's first assignment of error is overruled. {¶ 23} For the reasons stated herein, the judgment of the Hancock County Common Court, Juvenile Division, is hereby affirmed. Judgment affirmed. ROGERS, P.J., and SHAW, J., concur. (Walters, J., sitting by assignment in the Third Appellate District.)r *Page 1

2016-07-06 06:36:19.04216+00

OPINION *Page 2 {¶ 1} Appellant-landlord, Showe Management Corp., appeals the trial court's dismissal of its forcible entry and detainer action for lack of jurisdiction. Appellee, Karen Moore, is the tenant receiving subsidized housing. STATEMENT OF FACTS AND CASE {¶ 2} On February 7, 2000, Karen Moore (hereinafter "Moore"), entered into a lease with Showe Management Corporation dba Pataskala Green III Apartments, (hereinafter "Showe Management"). The lease agreement acknowledged Moore was eligible for subsidized housing. Moore was obligated to pay a monthly fee which was less than the market (unsubsidized) rent on the housing. Specifically, the lease stated Moore's monthly rent was being subsidized by the United States Department of Agriculture (USDA) Rural Housing Service. {¶ 3} With regard to the payment of rent, Moore's lease agreement stated the rental amount was due "on the first day of the month at the rental office." The lease also stated if the Tenant did not pay the full amount of rent by the close of business hours on the 10th day of the month, the Landlord could collect a fee of $10.00 on the 11th day of the month. The lease further stated: [the landlord] "reserves the right to refuse payments offered on or after the 11th day of the month," and that the landlord would not accept any late rent payments unless late charges were included. Finally, the lease stated the acceptance of rental payments after the due date would in no manner constitute a waiver of landlord's rights. {¶ 4} With regard to the termination of the tenancy, the lease stated that any termination of the lease had to be carried out in accordance with the Rural Housing *Page 3 Service Regulations, State and Local law, and the terms of the agreement. The lease stated that the Landlord could terminate this agreement for "the Tenant's material noncompliance with the terms of this agreement." {¶ 5} The lease defined the term "material non-compliance" in pertinent part as "(1) one or more substantial violations of the lease," "(2) repeated minor violations of the lease," and "(4) nonpayment of rent or any other financial obligation due under the lease beyond any grace period permitted under State law." {¶ 6} On March 12, 2007, Showe Management served Moore with a Notice to Leave Premises for nonpayment of rent. In the notice, Showe indicated that appellant had failed to pay her rent on or before March 1, 2007. {¶ 7} On March 30, 2007, Showe Management filed a forcible entry and detainer action (FED) against Moore in Licking County Municipal Court, Case Number 07CVG869, for the immediate possession of Moore's residence at 199-C Poff Drive. Showe Management sought restitution of the premises for nonpayment of rent on or before March 1, 2007. {¶ 8} On April 13, 2007, Showe Management presented the trial court with an agreed judgment entry signed by both counsel for Showe Management and Moore acting pro se. Pursuant to the agreed judgment entry, restitution of the premises was granted to Showe Management within 31 days. The agreed entry stated in pertinent part, "[d]efendant(s) hereinafter may tender any monies owed to Plaintiff, who may accept same without prejudice to and without waiver of Plaintiff's right to enforce its judgment for restitution granted herein." *Page 4 {¶ 9} On April 18, 2007, Moore, by and through counsel, filed a motion to vacate the agreed entry and moved to dismiss the underlying FED action. In the motion, Moore argued that she paid her monthly rent from child support for her two children, which she received sporadically and at different times of the month. Moore argued that, for this reason, her payments were often late and had been repeatedly accepted by agents of Showe Management. Moore argued that, after she was served with the FED complaint, she contacted an agent of Showe Management and was advised that her late rent payment would be accepted in exchange for her signature on a document, i.e. the agreed judgment entry. On April 6, 2007, Moore went to the rental office, paid her late rent for March 2007 with an additional late fee, made a future payment for April 2007, and signed a document. Moore stated she left the office believing the matter was resolved. Moore argued she did not understand that the document was an agreed judgment entry for restitution of the premises. She argued the actions of Showe Management were fraudulent and the judgment of restitution should be vacated. {¶ 10} Moore also moved the trial court to dismiss the FED action for lack of jurisdiction. In support, Moore argued that Showe Management's acceptance of future rent payments, i.e. April's payment, after service of the ten day notice to leave the premises, waived the notice requirement. Moore argued the ten day notice requirement was a condition precedent to the trial court's jurisdiction over the FED proceeding, and since notice had been waived, the trial court lacked jurisdiction to proceed. {¶ 11} On April 20, 2007, Showe Management filed a response to Moore's motions to vacate and dismiss. In the response, Showe Management argued the agreed entry was not induced by fraud and Moore failed to establish grounds in her *Page 5 affidavit which would support the motion to vacate. Showe Management also argued the agreed entry permitted Showe to accept future rent without waiving the right to enforce the judgment entry of restitution of the premises. {¶ 12} On May 11, 2007, the trial court granted Moore's motion to vacate the judgment entry of restitution of the premises filed on April 13, 2007, denied the motion to dismiss and rescheduled the matter for hearing on May 25, 2007. {¶ 13} On July 17, 2007, after the May 25, 2007, hearing, the trial court again granted Moore's motion to vacate the judgment of restitution and granted Moore's motion to dismiss for lack of jurisdiction. In the entry, the trial court stated in pertinent part as follows: {¶ 14} "Based on the evidence presented at the hearing, the Court finds that the Defendant made future rent payments which were accepted by the Plaintiff's representatives at the time she signed the agreement. As a result the Court is without jurisdiction to proceed on the Plaintiff's complaint and enforce the Agreed Judgment Entry submitted to the Court at the original eviction hearing. In Shimko v. Marks (1993),91 Ohio App. 3d 458, the Fifth District Court of Appeals reiterated that by accepting future rent payments after serving a Notice to Vacate, the landlord is deemed to have waived the Notice to Vacate as a matter of law since such acceptance is inconsistent with the landlord's Notice to Vacate. {¶ 15} "In this case, it is undisputed that the Defendant signed the Agreed Judgment Entry on April 6, 2007. It is also undisputed that she paid, and the Plaintiff accepted, on that date her rental payment for the month of March, the March late fee, and her April payment through the end of the month. At that point she paid ahead on *Page 6 her rent and Plaintiff accepted those future rent payments. Accordingly, the Court finds as a matter of law, Plaintiff waived the Notice to Vacate which [was] served on the Defendant on March 12, 2007. {¶ 16} "Accordingly, Defendant's Motion for Relief from Judgment and Motion to Dismiss Plaintiffs Complaint are hereby granted and Plaintiffs Complaint is dismissed at its costs." {¶ 17} It is from this judgment that appellant now seeks to appeal setting forth the following assignments of error: {¶ 18} "I. THE LICKING COUNTY MUNICIPAL COURT HAS JURISDICTION AND PROPERLY APPROVED THE AGREED ENTRY ON APRIL 13, 2007. {¶ 19} "II. THE AGREED JUDGMENT ENTRY IS A VALID AND BINDING CONTRACT BETWEEN THE PARTIES. {¶ 20} "III. TENANT BEARS A HEAVY BURDEN TO PROVE THE TRIAL COURT ACTED IMPROPERLY. {¶ 21} "IV. TO NOT UPHOLD THE AGREED JUDGMENT ENTRY UPSETS THE BALANCE OF THE LAND-LORD TENANT ACT AND IS NOT IN THE INTEREST OF JUSTICE." {¶ 22} On July 24, 2008, Moore filed a "Notice" with this Court advising this Court that on July 9, 2008, she had vacated the residence at issue. In the notice, Moore urged the Court to hear the appeal, arguing the appeal is not moot because it involves an issue of great public importance, the resolution of the issues would benefit others who are similarly situated, and/or that the issues are capable of repetition, yet evading review. *Page 7 {¶ 23} Since Moore vacated the premises, the first issue which must be addressed by this Court is whether the appeal is moot and/or if the appeal is moot, whether it should be heard by this Court. {¶ 24} "As a general rule, courts will not resolve issues that are moot. See, Nextel West Corp. v. Franklin Cty. Bd. of ZoningAppeals, Franklin App. No. 03AP-625, 2004-Ohio-2943, at ¶ 10, citingMiner v. Witt (1910), 82 Ohio St. 237: {¶ 25} "The doctrine of mootness is rooted both in the `case' or `controversy' language of Section 2, Article III of the United States Constitution and in the general notion of judicial restraint. * * * While Ohio has no constitutional counterpart to Section 2, Article III, the courts of Ohio have long recognized that a court cannot entertain jurisdiction over a moot question. (Citations omitted.)" Redmon v. CityCouncil of City of Columbus, Franklin App. No. 05AP466, 2006-Ohio-2199. {¶ 26} The Ohio Supreme Court has stated forcible entry and detainer actions decide the right to immediate possession of property and "nothing else." Seventh Urban, Inc. v. Univ. Circle Property Dev.,Inc. (1981), 67 Ohio St.2d 19, 25, n. 11, 423 N.E.2d 1070. "Once a landlord has been restored to property, the forcible entry and detainer action becomes moot because, having been restored to the premises, there is no further relief that may be granted to the landlord." United StatesSecy. of Hous. and Urban Dev. v. Chancellor (Feb. 25, 1999), 8th Dist. No. 73970. See Crossings Dev. Ltd. Partnership v. H.O.T., Inc. (1994),96 Ohio App.3d 475, 479-80, 645 N.E.2d 159; Reck v. Whalen (1996),114 Ohio App.3d 16, 19, 682 N.E.2d 721. Therefore, a tenant's vacation of the premises renders all the issues in regard to a forcible entry and detainer action moot. United States Secy. of Hous. and Urban Dev., supra. See, Crossings Dev. *Page 8 Ltd. Partnership, 96 Ohio App.3d at 480, 645 N.E.2d 159; Alex-BellOxford Ltd. Partnership v. Woods (June 5, 1998), 2nd Dist. No. 16038. {¶ 27} In the case sub judice, the controversy has been resolved by appellee's voluntary actions, i.e., vacation of the premises. Appellant has been restored to immediate possession of the premises. Even if this Court found the trial court's actions to be an abuse of discretion and remanded the matter, there would be no further relief available to appellant. As such our opinion would simply be advisory.1 {¶ 28} An Appellate Court is not required to render an advisory opinion on a moot question or to rule on a question of law that cannot affect matters at issue in a case. Folmar v. Griffin, Delaware App. No. 07 CAE 06 0025, 2008-Ohio-2941. See, also, State v. Bistricky (1990)66 Ohio App.3d 395, 584 N.E.2d 75. Accordingly, the matter is hereby dismissed as being moot. Edwards, J. Wise, P.J. and Delaney, J. concur *Page 9 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the appeal of the Licking County Municipal Court is dismissed. Costs assessed to appellant. 1 "[I]t is well settled * * * that appellate courts do not grant advisory opinions or prospective relief"); Schwab v. Lattimore,166 Ohio App.3d 12, 2006-Ohio-1372, at ¶ 10 (footnote omitted) (stating that "[t]he duty of a court of appeals is to decide controversies between parties by a judgment that can be carried into effect, and the court need not render an advisory opinion on a moot question or a question of law that cannot affect the issues in a case"). *Page 1

2016-07-06 06:36:19.126169+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). Plaintiff-appellee, the city of Cincinnati, filed a complaint against defendant-appellant, Al Gammarino, Trustee, seeking to recover unpaid fines for violations of the Cincinnati Building Code on property owned by Gammarino. Gammarino never appeared at the administrative hearings on the alleged violations. He contended that he had not received notice of the proceedings and that the building code was unconstitutional. The trial court granted summary judgment in favor of the city. On appeal, Gammarino presents two assignments of error for review. In his first assignment of error, he contends that the trial court erred in granting summary judgment in favor of the city when a genuine issue of material fact existed as to whether he had received adequate notice of the proceedings. This assignment of error is not well taken. The judgment in this case relates to two properties owned by Gammarino on Edwards Road and Baltimore Avenue. Gammarino relies on two of the initial notices, which he contends were simply posted at those two addresses. However, he completely ignores the city's evidence showing that notices regarding each of the violations were mailed to Gammarino at 3700 E. Galbraith Road. Gammarino admitted receiving mail at that address for over twenty years. Both notices informed him of the procedure for requesting an administrative hearing and of the doubling of fines not paid within a certain time after those notices. Gammarino also relies on notices relating to another property on Considine Avenue, which were sent to a post office box at which Gammarino had never received mail. However, the city dismissed the part of its complaint relating to the Considine Avenue property, and the judgment involved only the Edwards Road and the Baltimore Avenue properties. Due process requires that notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them the opportunity to present their objections. In re Forfeiture of Liens for Delinquent Taxes (1980),62 Ohio St.2d 333, 405 N.E.2d 1030, paragraph one of the syllabus. Notice by ordinary mail to a party's last-known address is reasonably calculated to provide actual notice and meets minimum due process requirements.Tulsa Prof. Collections Services, Inc. v. Pope (1988), 485 U.S. 478,489-490, 108 S.Ct. 1340, 1347; Central Trust Co. v. Jensen (1993),67 Ohio St.3d 140, 142, 616 N.E.2d 873, 876. In this case, Gammarino failed to rebut the city's evidence that it had sent him notice that was reasonably calculated to apprise him of the pendency of the action and to afford him the opportunity to present his objections. In fact, he acknowledged that he had been receiving mail for many years at the address to which the city had mailed the notices. Consequently, he failed to meet his burden to show that a genuine issue of material fact existed as to that issue. See Drescher v. Burt (1996),75 Ohio St.3d 280, 293, 662 N.E.2d 264, 274; Stinespring v. NatorpGarden Stores, Inc. (1998), 127 Ohio App.3d 213, 216, 711 N.E.2d 1104,1106. Accordingly, the trial court did not err in granting summary judgment in the city's favor, and we overrule Gammarino's first assignment of error. In his second assignment of error, Gammarino contends that Title XV of the Cincinnati Municipal Code relating to civil offenses is unconstitutional. He contends that the civil-offense notices deprive landowners of property without due process. He also contends that the fines are arbitrary, unreasonable and excessive. This assignment of error is not well taken. A strong presumption exists in favor of the constitutionality of municipal ordinances. A party challenging a legislative enactment bears the burden to show that it is unconstitutional. Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69, 71, 458 N.E.2d 852, 855. Numerous courts have held that civil penalties imposed administratively are constitutional. See Atlas Roofing Co., Inc. v. Occupational Safetyand Health Rev. Comm. (1977), 430 U.S. 442, 97 S.Ct. 1261; ReconstructionFin. Corp. v. Bankers Trust Co. (1943), 318 U.S. 163, 63 S.Ct. 515; VanHarken v. Chicago (C.A.7, 1997), 103 F.3d 1346; Gardner v. Columbus (C.A.6, 1988), 841 F.2d 1272. Further, an ordinance enacted pursuant to a municipality's police power is valid unless it clearly appears that the ordinance "bears no real and substantial relation to the public health, safety, morals or general welfare of the public or is unreasonable or arbitrary." Wilson v. Cincinnati (1976), 46 Ohio St.2d 138, 141-142,346 N.E.2d 666, 669; Devon v. Ohio Bur. of Motor Veh. (1986),31 Ohio App.3d 130, 133, 508 N.E.2d 984, 986. Our review of Chapter XV of the Cincinnati Municipal Code convinces us that the civil-offense system, particularly in relation to the building code, has a substantial relation to the health and safety of the general public and that it is neither unreasonable nor arbitrary. It is an efficient system for the enforcement of municipal regulations without the time and expense of criminal prosecution. See Van Harken, supra;Gardner, supra. Further, Gammarino presented no evidence to show that the fines are arbitrary or excessive. See United States v. Bajakajian (1998), 524 U.S. 321, 118 S.Ct. 2028; Van Harken, supra; Gardner, supra. Accordingly, Gammarino failed to meet his burden to show that Chapter XV of the Cincinnati Municipal Code is unconstitutional. Accordingly, we overrule his second assignment of error and affirm the trial court's judgment. 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. Doan, P.J., Hildebrandt and Winkler, JJ.

2016-07-06 06:36:19.202377+00

OPINION {¶ 1} Appellant, Walter Phibbs, appeals from a Mahoning County Common Pleas Court, Juvenile Division decision adjudicating him a delinquent child for trafficking in drugs, corrupting another with drugs, theft, and involuntary manslaughter. {¶ 2} On February 4, 2003, appellant took two Kadian pills from his mother. Kadian is a morphine drug. He sold one pill to Paul Graham, Jr. for three dollars and gave him the other pill. The next day, Graham was discovered dead at home. An autopsy revealed the presence of morphine, cocaine, amphetamines, and marijuana in the decedent's body. The coroner concluded that the cause of death was arrhythmia due to combined drug toxicity. {¶ 3} A complaint was filed against appellant on May 23, 2003. It alleged that appellant, who was 16 at the time, was a delinquent child based on one count of trafficking in drugs, a third degree felony in violation of R.C. 2925.03; one count of corrupting another with drugs, a second degree felony in violation of R.C. 2925.02; one count of theft, a fourth degree felony in violation of R.C. 2913.02; and one count of involuntary manslaughter, a first degree felony in violation of R.C. 2903.04(A). {¶ 4} Appellant entered into stipulations that he illegally obtained morphine tablets from his mother and that he furnished them to Graham. The court subsequently held a hearing and determined that probable cause existed to believe that appellant committed an act that would be involuntary manslaughter if committed by an adult. The parties later agreed to forego a trial and submitted the matter to the court on their briefs arguing the facts of the case. {¶ 5} The trial court found that appellant committed the offenses as charged and adjudicated him a delinquent child. It subsequently committed him to the Ohio Department of Youth Services for a minimum of six months for trafficking in drugs, one year for corrupting another with drugs, six months for theft, and three years for involuntary manslaughter. The court ordered that the sentences in counts one and three were to run concurrent with the sentences in counts two and four and that the sentences in counts two and four were to run consecutively for a total sentence of a minimum of four years. Appellant filed a timely notice of appeal on June 10, 2004. {¶ 6} Appellant raises six assignments of error. Appellee, the State of Ohio, has conceded error as set out in assignments of error three and four. We will address those assignments of error first as they are dispositive. Appellant's third assignment of error states: {¶ 7} "THE TRIAL COURT VIOLATED WALTER PHIBBS' RIGHT TO DUE PROCESS WHEN IT ADJUDICATED HIM DELINQUENT WITHOUT CONDUCTING AN ON-THE-RECORD COLLOQUY ACCORDING TO JUV.R. 29. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION, AND JUVENILE RULE 29." {¶ 8} Appellant argues that the trial court accepted his admission to trafficking in drugs, corrupting another with drugs, and theft without affording him his due process rights. He contends that the court failed to comply with Juv. R. 29(D) because it did not address him personally to determine whether he made his admission voluntarily with an understanding of the allegations against him and the consequences of an admission. Appellant asserts that the court failed to address him personally at all during the hearing. {¶ 9} In pertinent part, Juv. R. 29(D) provides: {¶ 10} "The court may refuse to accept an admission and shall not accept an admission without addressing the party personally and determining both of the following: {¶ 11} "(1) The party is making the admission voluntarily with understanding of the nature of the allegations and the consequences of the admission; {¶ 12} "(2) The party understands that by entering an admission the party is waiving the right to challenge the witnesses and evidence against the party, to remain silent, and to introduce evidence at the adjudicatory hearing." (Emphasis added.) {¶ 13} In examining the juvenile court's compliance with Juv. R. 29, this court has stated: {¶ 14} "Juv. R. 29(D) imposes a positive obligation upon the trial court to make certain determinations before accepting an admission from a party. The court cannot accept an admission without first addressing the juvenile personally and determining that he or she is making the admission voluntarily, with an understanding of the nature of the allegations and the consequences of entering the admission. Juv. R. 29(D)(1). Furthermore, the court must determine that the juvenile understands that by entering an admission he or she is waiving the right to challenge the witnesses and evidence against him or her, the right to remain silent, and to introduce evidence at the adjudicatory hearing. Juv. R. 29(D)(2). The juvenile court's failure to substantially comply with the requirements of Juv. R. 29 constitutes prejudicial error that requires reversal of the adjudication in order to permit the party to plead anew. In re Beechler (1996), 115 Ohio App.3d 567, 573,685 N.E.2d 1257." In re Adams, 7th Dist. Nos. 01-CA-237, 01-CA-238, 02-CA-120, 2003-Ohio-4112, at ¶ 8. {¶ 15} At appellant's probable cause hearing, his attorney informed the court that appellant was stipulating to the charges of trafficking in drugs, corrupting another with drugs, and theft. After an off-the-record conference with counsel, the court stated: "[T]his hearing will deal with evidence being presented on the involuntary manslaughter offense, * * *. Trafficking in drugs and corrupting another with drug charges have been stipulated to." (8/25/03 Tr. 15). Subsequently, appellant and the prosecuting attorney filed joint stipulations. The stipulations included admissions that appellant illegally obtained morphine tablets from his mother in violation of R.C. 2913.02 and that he furnished the morphine to Graham in violation of R.C. 2925.03 and R.C. 2925.02. {¶ 16} The trial court failed to comply with any of Juv. R. 29(D)'s requirements. There is no indication on the record that the court ever personally addressed appellant regarding his admission to trafficking in drugs, corrupting another with drugs, or theft. It never inquired of appellant to determine whether he understood the nature of the allegations against him or the consequences of his admission. Furthermore, the court never determined whether appellant was aware that by admitting his actions, he waived the right to challenge witnesses and evidence against him, the right to remain silent, and the right to introduce evidence at an adjudicatory hearing. Thus, appellant's third assignment of error has merit. {¶ 17} Appellant's fourth assignment of error states: {¶ 18} "THE TRIAL COURT VIOLATED WALTER PHIBBS' RIGHT TO DUE PROCESS WHEN IT ADJUDICATED HIM DELINQUENT WITHOUT CONDUCTING A TRIAL OR OBTAINING A VALID WAIVER OF HIS RIGHT TO TRIAL. FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 10 AND16 OF THE OHIO CONSTITUTION, AND JUVENILE RULE 29." {¶ 19} Here appellant argues that the trial court failed to comply with Juv. R. 29(D) as it pertains to waiver of the right to a trial. He notes that he never entered an admission to involuntary manslaughter. Appellant contends that he did not intend to waive his right to a trial on this charge. {¶ 20} On January 23, 2003, the date for which his trial was to take place, appellant's counsel informed the court: {¶ 21} "[A]fter discussions with the prosecution, that we would be okay in the interest of judicial economy and economy for my client with respect to his legal fees, we would like to submit a written brief and argument in support of what we believe our side of the facts, and the State would then be free to submit its brief in arguing its version of the facts for the court's review. You already heard the doctor's testimony of the relevant — the relevant autopsy report at the probable cause hearing. We would submit that transcript for your review under a reasonable doubt standard as well as submission of additional evidence in the form of police reports." (1/23/04 Tr. 3). {¶ 22} The trial court agreed with this procedure. It did not address appellant to explain his right to an adjudicatory hearing. {¶ 23} Subsequently, both parties filed briefs with the court and various exhibits. The court relied on the submitted evidence and previous testimony, found appellant guilty, and adjudicated him delinquent. {¶ 24} Juv. R. 29(D) provides requirements for the court to follow in accepting an admission from a juvenile. As stated above, one of the requirements is that the court determines that the juvenile understands that by entering an admission, he waives the rights to challenge the witnesses and evidence against him, to remain silent, and to introduce evidence at an adjudicatory hearing. {¶ 25} Here appellant did not admit to involuntary manslaughter. However, his attorney waived his right to an adjudicatory hearing by agreeing to submit the matter on briefs. The court never personally addressed appellant or inquired of him to determine whether he knowingly and voluntarily wished to waive his right to an adjudicatory hearing. Accordingly, appellant's fourth assignment of error has merit. {¶ 26} Appellant's remaining assignments of error state: {¶ 27} "THE TRIAL COURT VIOLATED WALTER PHIBBS' RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION, AND JUV.R. 29(E)(4) WHEN IT ADJUDICATED HIM DELINQUENT OF INVOLUNTARY MANSLAUGHTER ABSENT PROOF OF EVERY ELEMENT OF THE CHARGE AGAINST HIM BY SUFFICIENT, COMPETENT, AND CREDIBLE EVIDENCE." {¶ 28} "THE TRIAL COURT VIOLATED WALTER PHIBBS' RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION WHEN IT ADJUDICATED HIM DELINQUENT OF INVOLUNTARY MANSLAUGHTER, WHEN THAT FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 29} "WALTER PHIBBS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO ENSURE THE COURT RECOGNIZED AND UPHELD WALTER PHIBBS' BASIC RIGHTS TO DUE PROCESS. SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION." {¶ 30} "R.C. 2152.17(F) VIOLATES THE EQUAL PROTECTION CLAUSE OF THEFOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION BECAUSE IT DOES NOT REQUIRE THE JUVENILE COURT TO MAKE ANY FINDINGS BEFORE IT IMPOSES A CONSECUTIVE SENTENCE FOR A FELONY OFFENSE IN A JUVENILE DELINQUENCY PROCEEDING." {¶ 31} Given our resolution of appellant's third and fourth assignments of error, his remaining assignments of error are moot. {¶ 32} For the reasons stated above, the trial court's judgment is hereby reversed and remanded for further proceedings pursuant to law and consistent with this opinion. Vukovich, J., concurs Waite, J., concurs.

2016-07-06 06:36:19.265166+00

OPINION Appellant Frederick Bourjaily appeals the decision of the Licking County Court of Common Pleas, Domestic Relations Division, concerning the distribution of pension benefits in his divorce. Appellee is the prior spouse, Kathleen Bourjaily. The facts giving rise to this appeal are as follows. Appellant and appellee were married on July 8, 1978. Two children were born as issue of the marriage. Appellant has been employed since 1983 with the Social Security Agency, and is a participant in the federal civil service retirement system ("CSRS"). He also serves in the United States Army Reserve, with approximately fifteen years of creditable service accrued. Appellee has had limited employment during the marriage. On September 23, 1997, appellant filed for divorce. The matter ultimately went to trial before a magistrate on October 1, 1998. Both parties filed objections to the magistrate's decision. The trial judge ruled on the objections on August 25, 1999, and a final decree of divorce was entered on September 23, 1999. The decree mandates the division of retirement benefits as follows: 7. The defendant shall be awarded one-half of the plaintiff's Civil Service pension accrued between July 8, 1978 and October 1, 1998. This shall be accomplished by means of a Court Order Acceptable for processing (COAP) which shall include COLA's and survivorship rights for the defendant. 8. The defendant shall be awarded one-half of the marital portion (accrued between July 8, 1978 and October 1, 1998) of the plaintiff's military retirement. This shall also be accomplished by a COAP and shall include rights of survivorship and COLAs. The marital portion of the military pension shall be determined either by using the marital years of retirement divided by the total retirement or marital points divided by total retirement points, whichever percentage is larger. Further, the plaintiff cannot defeat the division of this marital asset through any circumvention language or action such as Voluntary Separation Incentive payments. * * *. Appellant timely appealed from the decree and herein raises the following sole Assignment of Error: I. THE TRIAL COURT ERRED IN FAILING TO CONSIDER SOCIAL SECURITY BENEFITS AS AN OFFSET IN DETERMINING THE VALUE TO APPELLANT'S CIVIL SERVICE PENSION, SAID FAILURE TO CONSIDER AN OFFSET IS AN ABUSE OF DISCRETION AND CONTRARY TO LAW. I. In his sole Assignment of Error, appellant argues that the trial court erred in failing to offset the value of his "hypothetical" social security benefits against his civil service pension, prior to apportioning retirement benefits between the parties. We disagree. In addressing the division of marital property, pension benefits accumulated during the marriage are assets subject to property division in a divorce action. Erb v. Erb (1996), 75 Ohio St.3d 18,20. When considering a fair and equitable distribution of pension or retirement benefits in a divorce, the trial court must apply its discretion based upon the circumstances of the case, the status of the parties, the nature, terms, and conditions of the pension or retirement plan, and the reasonableness of the result. Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 179. It is well settled that in a divorce matter, the trial court should strive to disentangle the parties' economic partnership whenever the circumstances permit. Hoyt at 182. Appellant focuses his appeal on the issue of "hypothetical social security offset" in pension evaluation, a concept cogently analyzed in a Pennsylvania case, Cornbleth v. Cornbleth (1990), 397 Pa. Super. 421, 580 A.2d 369. Appellant specifically cites the Ninth District's reliance on Cornbleth in Stovall v. Stovall (Sept. 23, 1992), Summit App. No. 15335, unreported, where the court explained: * * * [T]he [Cornbleth] court noted that public employees who do not participate in the social security system are at a disadvantage in that their entire pension value is considered marital property while a private employee's contributions to Social Security are precluded by federal statute from consideration as marital property. Id. at 3. In Stovall, one spouse maintained a State Teachers' Retirement System (STRS) pension, while the other spouse had held employment in the private sector. The trial court in Stovall adjusted the value of STRS pension to exclude a calculated "hypothetical social security" figure, i.e., that part of the STRS public employee pension which might, figuratively, be considered "in lieu of" social security benefits. This method was approved by the Ninth District on appeal, which held that no abuse of discretion had occurred. Id. at 4. Appellant proposes that the holding in Stovall is applicable to the evidence presented in the case sub judice, wherein appellant submitted as exhibits expert evaluations of his civil and military reserve pensions, as well as his hypothetical social security benefit analysis pertinent thereto. However, as appellant concedes, the Ohio Supreme Court has not mandated the Cornbleth approach as the preferred method of addressing these types of private/public retirement benefit scenarios. Moreover, our most recent ruling in this realm can be found in Back v. Back (Dec. 29, 1999), Richland App. No. 99 CA 46, unreported. In that case, appellant wife was employed by the City of Mansfield and participated in PERS, the public employees' retirement plan. Appellee husband worked for a waste management company, participating in social security but not in any pension plans. We held: Upon reconsideration, we find the trial court did not abuse its discretion in calculating the division of retirement benefits on remand even though the trial court did not follow the mandate of this court. We conclude, as did the trial court, the proper division of retirement benefits is to subtract appellee's potential social security benefit from appellant's potential PERS benefit and divide the remaining portion of the potential monthly PERS benefit equally between the parties. Id. at 2. Appellee in the case sub judice testified that she stayed at home in order to care for the parties' first child after giving birth in 1980. From 1985 to 1990 and from 1990 to 1993, she worked about thirty hours per week, excluding summers, at two school systems. She also recounted several miscellaneous short-term jobs. Tr. at 86-87, 103. However, the record in the case sub judice does not reveal an attempt by either party to further exact any figures for appellee's potential social security benefits. Therefore, the trial court effectively complied with this court's guidance in Back under the facts and circumstances presented to it, and we are unable to find an abuse of discretion in the trial court's distribution of retirement benefits. Hoyt, supra. Appellant's Assignment of Error is overruled. For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Domestic Relations Division, Licking County, Ohio, is hereby affirmed. By: Reader, V. J. Edwards, P.J., and Milligan, V. J., concur.

2016-07-06 06:36:19.344055+00

OPINION *Page 2 {¶ 1} This case presents the overarching issue of whether the trial court abused its discretion during case management when it issued a "Lone Pine" Order; and whether dismissal with prejudice in accordance with Civ.R. 41(B)(1) for failure to comply with the Lone Pine Order was proper under these circumstances. {¶ 2} Appellants in this action are comprised of thirteen students, their parents, and four teachers who attended and worked in the Girard Intermediate School building for the 2000-2001 school year. Appellees are comprised of eight individuals and corporations who were involved in the building of the Girard Intermediate School. {¶ 3} Procedural History {¶ 4} Following the closure of the school due to reported health problems,1 on October 31, 2002, appellants filed a complaint in the Trumbull County Court of Common Pleas alleging claims of negligence, negligence per se, negligent infliction of emotional distress, intentional tort, intentional infliction of emotional distress, ADA violation, fraudulent non-disclosure, breach of contract, and products liability against the defendants-appellees. {¶ 5} On or about September 24, 2003, appellants served discovery requests upon the appellees. *Page 3 {¶ 6} On December 19, 2003, before appellees responded to the discovery request of appellants, appellees filed a motion for a "Lone Pine Order"2 to "conserve judicial resources and expedite discovery in this case." {¶ 7} In turn, on January 29, 2004, appellants filed a motion to compel discovery. Six months later, on June 16, 2004, appellees' "Lone Pine" motion was granted, and appellants' motion to compel was denied. {¶ 8} On October 26, 2004, appellants filed a motion for reconsideration to compel discovery and to overturn the "Lone Pine" Order, after submitting affidavits from their medical experts which stated that the experts could not meet the requirements of the "Lone Pine" Order without first receiving discovery from appellees. The court denied these motions on February 24, 2005, and on March 1, 2005, the "Lone Pine" Order was reinstated for case management purposes. {¶ 9} On June 13, 2005, appellees filed a motion to dismiss, and on October 20, 2005, appellants filed a combined motion for reconsideration and for sanctions due to spoliation of evidence. On April 6, 2006, appellant's combined motion was denied, and appellees' motion to dismiss under Civ.R. 41(B)(1) for failure to comply with the "Lone Pine" Order was granted. Appellants' claims were dismissed in their entirety, with prejudice. {¶ 10} Appellants filed this timely appealed and raise the following seven assignments of error: {¶ 11} "(1) The trial court erred in denying [appellants'] Motion to Compel; *Page 4 {¶ 12} "(2) The trial court erred in granting [appellees'] Motion for Lone Pine Case Management Order; {¶ 13} "(3) The trial court erred in dismissing [appellants'] claims in their entirety; {¶ 14} "(4) The trial erred in dismissing [appellants'] fraud claims; {¶ 15} "(5) The trial court erred in dismissing [appellants'] negligent infliction of emotional distress claims; {¶ 16} "(6) The trial court erred in dismissing [appellants'] intentional infliction of emotional distress claims and; {¶ 17} "(7) The trial court erred in denying [appellants'] motion for sanctions." {¶ 18} Since appellants' first three assignments of error deal with the overarching issue of whether the trial court abused its discretion in managing discovery by issuing the "Lone Pine" Order, and subsequently dismissing their case with prejudice for failure to comply with this court order under Civ.R.41(B)(1), we will address these issues together. {¶ 19} For the reasons that follow, we find that the trial court abused its discretion in issuing the "Lone Pine" Order at the stage in the proceedings where there had yet to be any meaningful discovery proceedings and in dismissing the case with prejudice for failure to comply with the order. {¶ 20} We also reverse and remand on appellants' seventh assignment of error, which deals with the denial of appellants' motion for sanctions for spoliation. Since we find the motion to dismiss was premature in this case, reconsideration of the motion for sanctions is necessary. We find appellants' argument has merit and remand to the trial court to hold a hearing on this motion. *Page 5 {¶ 21} Since we reinstate appellants' claims, the remaining assignments of error, which deal with the dismissal of the substantive claims of fraud, negligent infliction of emotional distress, and intentional infliction of emotional distress, need not be addressed. {¶ 22} Standard of Review {¶ 23} A trial court's decision in a discovery matter is reviewed under an abuse of discretion standard. Masek v. Jean Gehring, 11th Dist. No. 2001-G-2373, 2002-Ohio-5151, at ¶ 8. Abuse of discretion "`connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the court.'"Quonset Hut, Inc. v. Ford Motor Co. (1997), 80 Ohio St.3d 46, 47, citingPembaur v. Leis (1982), 1 Ohio St.3d 89, 91. {¶ 24} Whether a trial court has properly dismissed a case with prejudice under Civ.R. 41(B)(1) is also reviewed under an abuse of discretion standard. Since dismissal with prejudice is a particularly harsh sanction we use a "heightened abuse of discretion standard." This is so because we are "reviewing decisions that forever deny a plaintiff a review of a claim's merits." Jones v. Hartranft (1997),78 Ohio St.3d 368, 372. Thus, we review this case under a "heightened" abuse of discretion standard. {¶ 25} Although the trial court has broad discretion in managing pretrial practice and issuing case management orders, this discretion is not without its limits. In fact, appellate courts will reverse a discovery order "when the trial court has erroneously denied or limited discovery." Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St. 3d 578,592, citing Wright, Miller Marcus, Federal Practice Procedure (2 Ed. 1994), 92, Section 2006. Thus, the appellate court will reverse if a trial court has extinguished a *Page 6 party's right to discovery, if the trial court's decision is improvident, and if it affects the discovering party's substantial rights. Rossman v. Rossman (1975), 47 Ohio App.2d 103, 110. {¶ 26} The goal of modern discovery procedures should be to make civil trials "less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." Id. at 107, citing U.S. v. Procter Gamble Co. (1958), 356 U.S. 677,Hickman v. Taylor (1947), 329 U.S. 495, 501. Consistent with this policy3 is the underlying principle inherent in the Ohio Rules of Civil Procedure which contain provisions for broad discovery of any matter, not privileged, that is relevant to the subject matter of the pending action. "In doing so, the rules exemplify a policy of affording attorneys every opportunity and advantage in preparing their case before trial." Rossman at 107, citing Hlavin v. Plechaty (1971),28 Ohio App.2d 43, 45. {¶ 27} A "Lone Pine" Order {¶ 28} A "Lone Pine" Order is a type of case management order that has been used in other jurisdictions4 to expedite claims and increase judicial efficiency in mass toxic tort litigation. Under such an order plaintiffs are required to submit reports or affidavits that identify the chemical or substance causing the injury, the specific disease, illness, or injury caused by the substance, and the causal link between the exposure and injury in order to substantiate their health and property value claims to a reasonable degree of probability or certainty. *Page 7 {¶ 29} The genesis of such a case management order was in a case from the New Jersey Superior Court entitled Lore v. Lone Pine Corp. (1986), 1986 N.J. Super LEXIS 1626, in which homeowners filed suit against 464 defendant landfill operators for personal injury and property damage alleged to have been caused by the polluted waters arising from the operation of the landfill. {¶ 30} At a case management conference, the Lone Pine court determined that the plaintiffs had failed to allege a prima facie case in their complaint, and in light of an EPA report presented by the defense which contradicted the plaintiffs' claims, the court issued a case management order, now known as the "Lone Pine" Order. {¶ 31} The Lone Pine Order required the plaintiffs to provide documentation with respect to each individual plaintiffs exposure to the alleged toxic substances at or from the site; reports of treating physicians and medical or other experts, supporting each individual plaintiffs claim of injury and causation; each individual plaintiffs address for the properties alleged to have declined in value; and reports of real estate or other experts supporting each plaintiffs claim of diminution in property value. {¶ 32} The plaintiffs' submitted a report from a realtor, only, which provided no evidence of contamination of the plaintiffs' property and no medical records to substantiate any physical problems were submitted. The court granted the defense motion to dismiss, and the appellate court upheld the dismissal on the grounds that the appellants failed to present a prima facie case on the face of the complaint and failed to comply with the order after being granted an extension of time, under circumstances where the trial court was of the opinion that plaintiffs filed without good grounds. *Page 8 {¶ 33} In reviewing the handful of cases in which state courts have addressed the "Lone Pine" issue,5 the facts in those cases reveal the difficulty of managing cumbersome and expensive mass toxic tort litigation cases with extremely large numbers of parties and often unknown defendants. The injuries complained of are largely speculative and unsubstantiated. They have occurred over a long period of time. The cases present multiple theories of recovery, unique causation issues, and require extensive medical and scientific expert testimony. Traditional tort law, in these cases, overlaps with statutory environmental law. Thus, efficiency and case management are cited as the primary justifications of the issuance of Lone Pine Orders. (See Burnett, Lone Pine Orders: A Wolf in Sheep's Clothing for Environmental and Toxic Tort Litigation (1998), 14 J. Land Use Envtl. Law 53, 74. {¶ 34} The "Lone Pine" order has faced harsh criticism because it gives courts the means to ignore existing procedural rules and safeguards. When the "Lone Pine" order cuts off or severely limits the litigant's right to discovery, such an order closely resembles summary judgment albeit without the safeguards the Civil Rules of Procedure supply. Furthermore, many "Lone Pine" orders are inconsistently applied which further confuses their purpose. Id. at 75. {¶ 35} The "Lone Pine" Order in this Case {¶ 36} The trial court issued its "Lone Pine" order on March 1, 2005, which required appellants to supply the following information within three months from the date of the order: *Page 9 {¶ 37} Identify with specificity the illnesses, injuries, and conditions claimed by the plaintiffs; {¶ 38} Identify with specificity each toxin, contaminant or other foreign substance that plaintiffs were exposed to in the school; {¶ 39} Provide specific details of the testing relied upon to support the plaintiffs' claims of exposure; {¶ 40} Provide sworn statements from experts that to a reasonable degree of medical probability, the plaintiffs' illnesses, injuries, and conditions were caused by the exposure; and {¶ 41} Provide sworn statements from experts that to a reasonable degree of medical probability the plaintiffs' illnesses, injuries, and conditions could not have been caused but for that exposure. {¶ 42} Appellees characterize the "Lone Pine" Order as a simple case management order that was intended to expedite discovery and was "designed to avoid delay, repetition, and undue expense and to prevent an all out fishing expedition." They further argue that it was in the court's discretion to impose a "Lone Pine" order and that there is clear precedent in Ohio for such an order. {¶ 43} We reject appellees' contention. Contrary to what the appellees would have us believe, there is no well-established precedent in Ohio for a "Lone Pine" order. Appellees cite to the one Ohio "Lone Pine" case, Baker v. Chevron USA, Inc. (2006), No. 1:05-CV-227, 2006 U.S. Dist. LEXIS 54545. {¶ 44} In Baker, a magistrate judge for the United States District Court for the Southern District of Ohio, Western Division, was assigned to oversee pretrial and *Page 10 discovery matters in a toxic tort case. When the magistrate revised the original "Lone Pine" order to eliminate the expert physician and property owner affidavit requirements, the defense objected. {¶ 45} The district court judge upheld the revision. The court found that the revision comported with the Rules of Civil Procedure in that it allowed the "[d]efendant to obtain the information it needs to effectively rebut [plaintiffs' claims without imposing undue burdens on [p]laintiffs." Id at 9. Thus, the court held that the "Lone Pine" order may be modified as discovery proceeds in order to allow for fairness and judicial efficiency to both parties. A modification was needed inBaker because the original "Lone Pine" order imposed too heavy of a burden on plaintiffs, which prevented them from complying. {¶ 46} We find that the issuance of the "Lone Pine" order at the stage in the proceedings where there had yet to be any meaningful discovery, followed by the dismissal of the case with prejudice for failure to comply with the order, was an abuse of discretion in this case. {¶ 47} A review of the record fails to demonstrate that appellants were trying to thwart discovery. Rather, appellants timely responded to appellees' discovery requests. The appellants sent discovery requests to the appellees, which were never answered Appellees' response to the discovery request was to file a motion for a "Lone Pine" Order. Moreover, appellants' motion to compel discovery was denied. {¶ 48} Appellees allege that the "Lone Pine" order was necessary because "[t]ime and time again, the Trial Court granted Appellants leave to file pleadings after *Page 11 filing deadlines had been missed. Time and time again, the Trial Court entertained Appellants' Motions for Reconsideration." {¶ 49} The record does not support appellees' assertions. The record reveals that appellant did file for several extensions, however, the appellees' filed just as many, if not more. Nowhere does the record reveal that appellants were late in filing motions. However, we do note that appellees themselves filed a motion one day late on November 19, 2004. {¶ 50} The reason the timeline of this case is concerning is because it is apparent that appellants were not given the full range and benefit of discovery before the "Lone Pine" order was issued. In most of the "Lone Pine" cases we have reviewed in coming to this conclusion, the "Lone Pine" order was issued only after one party was refusing to comply with discovery requests, or when the plaintiffs failed to set forth a prima facie claim. These circumstances are not present in this case. {¶ 51} The most disturbing factor in this case is that the record before us indicates there was no discovery provided by the appellees at any time period during the pendency of the case. The fact that documents may have been provided to appellants pre-suit is not an acceptable substitute for formal discovery proceedings. Once the "Lone Pine" order was in place and appellant's motion to compel was denied, the appellants were effectively prevented from any type of discovery with which to build their case and proceed forward in order to meet the requirements of the order. {¶ 52} The trial court's own case flow management rule cautions that "it is important that the court supervise the progress of all cases from filing to termination in a *Page 12 process that is fundamentally fair, and neither too deliberate nor too hasty." Loc.R. 10(A) of the Trumbull County Court of Common Pleas. {¶ 53} By issuing a "Lone Pine" order when it did, the trial court put the cart before the horse, and in its effort to move along a case that had been once before it and dismissed, bypassed the orderly processes provided by the civil rules, which are designed to both bring the meritorious case to a conclusion and derail the meritless case. {¶ 54} A meritless case may be initially challenged through a Civ.R. 12(B) motion. No Civ.R. 12(B) motion was filed in this case. {¶ 55} If the matter survives that test, discovery is to proceed, and the parties and the court have many tools at their disposal to address even the most difficult discovery issues, including the appointment of a special master or magistrate to oversee discovery. {¶ 56} Should problems arise in discovery that cannot be resolved between the parties, a motion for protective order may be filed. The appellees failed to file such a motion. {¶ 57} The timing of the issuance of the "Lone Pine" order in this case effectively and inappropriately supplanted the summary judgment procedure provided in Civ.R. 56. In Dresher v. Burt (1996),75 Ohio St. 3d 280, the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion, identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. The evidence must be in the record or the motion *Page 13 cannot succeed. The moving party cannot discharge its initial burden under Rule 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case but 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. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of Rule 56(E) to set forth specific facts showing there is a genuine issue for trial, failing which summary judgment, if appropriate, shall be entered against the nonmoving party based on the principles firmly established in Ohio for some time in Mitseff v. Wheeler (1988),38 Ohio St. 3d 112. {¶ 58} The Supreme Court in Dresher went on to hold that whenneither the movant or the non-movant provides evidentiary materials demonstrating that there are no material facts in dispute, the movant is not entitled a judgment as a matter of law as the moving party bears the initial responsibility of informing the trial court of the basis for the motion, "and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher at 296. {¶ 59} In Mitseff, supra, the court held that a party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond. Accordingly, the court made it clear that the party moving for summary judgment bears the burden of affirmatively demonstrating with respect to every essential issue in each count of the *Page 14 complaint that there is no genuine issue of fact even with regard to the issues on which the plaintiffs would have the burden of proof should the case go to trial. {¶ 60} The summary judgment procedure also allows for extension of time to respond when more discovery is needed. See Civ.R. 56(F). The controlling case is Tucker v. Webb (1983), 4 Ohio St.3d 121, in which the Supreme Court of Ohio reversed the decision of the court of appeals affirming the trial court's granting of a motion for summary judgment on the basis that the trial court should have given the appellant more time for discovery pursuant to Civ.R. 56(F), and that summary judgment was improper prior to such discovery. {¶ 61} Thus, in the face of a summary judgment motion, if a plaintiff is required to obtain affidavits from expert witnesses to successfully oppose defendant's motion for summary judgment, that plaintiff should be given adequate opportunity to do so after the filing of the motion for summary judgment because of the expense and difficulty in securing any expert's affidavit. {¶ 62} As the court of appeals held in Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, Civ.R. 56(F) authorizes the trial court to delay decision on a summary judgment motion while the nonmoving party gathers necessary rebuttal data and discretion should be exercised liberally in favor of the nonmoving party who proposes any reasonable interval for the production of those materials. {¶ 63} The appellants herein were denied the procedural protections of Civ.R. 56 because the court prematurely issued a "Lone Pine" order, which, in effect, became a motion of summary judgment, and the "Lone Pine" order lifted the burden placed upon the appellee to specifically point to some evidence of the type listed in Civ.R. 56(C) *Page 15 which affirmatively demonstrates that the appellants have no evidence to support their claims. {¶ 64} Dismissal With Prejudice {¶ 65} Proper factors for consideration in a Civ.R. 41(B)(1) dismissal with prejudice include the drawn-out history of the litigation, including a plaintiffs failure to respond to interrogatories until threatened with dismissal, and other evidence that a plaintiff is deliberately proceeding in dilatory fashion or has done so in a previously filed and voluntarily dismissed, action. Jones at 372 referencing Link v. Wabash RR. Co. (1962), 370 U.S. 626, 633-35;Indus. Risk Insurers v. Lorenz Equip. Co. (1994), 69 Ohio St.3d 576, syllabus. None of these actions are demonstrated in the record before us in the instant case. {¶ 66} The appellees assert that appellants had enough documentation from public records from which they could comply, yet appellants argue that they cannot meet their burden of proof without proper discovery. Appellants' experts requested various tests and other documents that are in the privy of the appellees. Their experts claim they cannot comply with the "Lone Pine" order without a review of these documents. It would follow that appellants should be afforded discovery if they have set forth a prima facie case in their complaint. {¶ 67} Nor is there anything unusual, as the appellees suggest, with filing two or more cases related to the same matter in mass toxic tort cases. Often, the same facts in these cases give rise to many different issues that need to be litigated. This is not always a sign of appellants filing frivolous claims, but rather overcoming the difficult hurdles this type of complex litigation presents. *Page 16 {¶ 68} We find the decision of the United State District Court for the Eastern Division of Kentucky most instructive in determining the inequities inherent in the trial courts granting of the "Lone Pine" order in this case, In Re: 2004 DuPont Litigation and In Re: 1995 DuPontLitigation (2006), 2006 U.S.Dist. LEXIS 9631. The court was handling two cases under the same pretrial schedule even though the cases dealt with two different chemical releases at two different time periods. The defendants filed a motion for a "Lone Pine" order to require the plaintiffs to provide certain information to the defendant before proceeding further on the 2004 case. However, defendants' motion for a "Lone Pine" order was declared premature. That court balanced the equities, and found that "[b]ased on the representations of plaintiffs' counsel that all outstanding responses will soon be forthcoming, and to avoid duplication of responses to requests previously promulgated by defendant, the court will deny defendant's request. Should defendant prove unable to obtain the information it seeks from plaintiffs' responses to written discovery, the court may re-examine the necessity of a Lone Pine Order." Id. at 6. {¶ 69} Indeed, the Ohio Supreme Court has stated that "judicial discretion must be carefully — and cautiously — exercised before this court will uphold an outright dismissal of a case on purely procedural grounds." Quonset at 48, citing DeHart v. Aetna Life Ins.Co. (1982), 69 Ohio St.2d 189, 192. "In the context of dismissing a case, Ohio courts have held that `an abuse of discretion will be found' where the trial court has not considered other less drastic alternatives." Nozik v.Dalheim, (1998), 11th Dist. No. 96-L-205, 1998 Ohio App. LEXIS 1072, 5, citing Ina v. George Fraam Sons, Inc. (1993), 85 Ohio App. 3d 229,231. "The law favors deciding cases on their merits *Page 17 unless the conduct of a party is so negligent, irresponsible, contumacious, or dilatory as to provide substantial grounds for a dismissal with prejudice for a failure to prosecute or obey a court order. Nozik at 5, 6, citing Schreiner v. Karson (1977),52 Ohio App.2d 219, 222-223. {¶ 70} We find that the trial court abused its discretion in prematurely issuing the "Lone Pine" order in this case, if at all, as it is questionable whether there is any authority for such an order under Ohio law. We also find that the trial court abused discretion in dismissing appellants' claims in their entirety with prejudice under Civ.R. 41(B)(1) for failure to comply with the "Lone Pine" order since there is nothing in the record that suggests the trial court considered less severe sanctions and nothing to indicate why appellants' claims should be dismissed in their entirety. The record does not reflect circumstances which are so "negligent, irresponsible, contumacious, or dilatory" that dismissal with prejudice is warranted. {¶ 71} Spoilation Sanctions {¶ 72} Appellants, in their seventh assignment of error, argue that the court erred in denying their motion for sanctions for spoliation of the evidence. Specifically, appellants argue that relevant evidence was intentionally, negligently, or inadvertently destroyed or discarded by appellees, which resulted in prejudice to appellants on the issue of causation. {¶ 73} Appellants allege that appellees were on proper notice that evidence concerning the faulty materials used in constructing the school should have been preserved. Specifically, appellants allege that on June 1, 2001, before litigation commenced and shortly after the closure of the school, the plaintiffs' counsel sent *Page 18 correspondence to appellees specifically cautioning them to preserve the evidence. Appellants claim that appellees did not provide any of this evidence for their inspection either before or after the commencement of this suit. Appellees never denied this allegation, nor did they respond to appellants' motion for spoliation sanctions. Instead, appellees responded with a motion to dismiss. The court adopted appellees' proposed judgment entry which granted the motion to dismiss for not complying with the Lone Pine Order and further found the motion for reconsideration "not well taken." {¶ 74} We find appellants' argument has merit, and, therefore, we reverse and remand to the court to not only reinstate appellants' claims, but to also hold a hearing on the motion for spoliation and determine whether evidence was, indeed, destroyed and sanctions are warranted. {¶ 75} We review a denial of a motion for sanctions for the spoliation of evidence under an abuse of discretion standard. Cincinnati Ins. Co.v. General Motors Corp. (1994), 6th Dist. No. 940T017, 1994 Ohio App. LEXIS 4960, 9. A motion for sanctions for spoliation of the evidence is properly filed under Civ.R. 37. The proponent must first establish that: (1) the evidence is relevant; (2) that the offending party's expert had an opportunity to examine the unaltered evidence; and (3) that, even though the offending party was put on notice of impending litigation, this evidence was intentionally or negligently destroyed or altered without providing an opportunity for inspection by the proponent.Cincinnati Ins. Co. at 11, citing Hirsch v. General Motors Corp. (N.J.Super.L. 1993), 628 A.2d 1108, 1118. *Page 19 {¶ 76} If the court finds that relevant evidence was, indeed, destroyed, then the court has the power to fashion a just remedy.American States Ins. Co. v. Tokai-Seiki (1997), 94 Ohio Misc. 2d 172,175 (Citations omitted). {¶ 77} Even if the court finds the evidence was not deliberately destroyed, "negligent or inadvertent destruction of evidence is sufficient to trigger sanctions where the opposing party is disadvantaged by the loss." Id. at 176, citing Farley Metals, Inc. v.Barber Collman Co. (1994), 645 N.E.2d 964, 968. "The intent of the spoliator in destroying or altering evidence can be inferred from the surrounding circumstances. In other words, intent can be inferred from the fact that the evidence was destroyed prior to the commencement of any litigation against the defendant and where there is only a potential for litigation. Therefore, the spoliator is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action." Cincinnati at 9, citing Hirsch at 1130. {¶ 78} Furthermore, "where the loss of evidence is belated, a court should not dwell on intent but, rather, focus on the importance of information legitimately sought and which is unavailable as a result of the destruction of evidence." American States Ins. Co. at 176. {¶ 79} The court must balance "the intent of the offending party, the level of prejudice, and the reasonableness of the offending party's action in fashioning a just remedy. The relative importance of the information denied the opposing party bears directly on the reasonableness of the offending party's action and the resulting prejudice." Id. *Page 20 {¶ 80} If the court does find that spoliation of evidence did occur because the offending party failed to preserve the evidence, then "the court must impose a sanction that is proportionate to the seriousness of the infraction under the facts of this particular case." Id. {¶ 81} We find the court abused its discretion in denying appellants' motion for sanctions of spoliation of the evidence since it is not clear from the judgment entry whether the court properly considered the motion or whether evidence was destroyed. This is especially troublesome under these circumstances where appellees have not responded to any of discovery and have not denied this allegation. In addition to reinstating appellants' claims, we reverse the court's denial of this motion and remand for the court to determine if indeed evidence was destroyed and if so, what sanctions are warranted. {¶ 82} We reverse the judgment of the trial court, and this case is remanded for further proceedings. WILLIAM M. O'NEILL, J., COLLEEN MARY OTOOLE, J., concur. 1 The school was closed after health problems were reported by numerous students and staff. (Dayton Daily News, 5/03/01). 2 A "Lone Pine" Order, as will be more fully explained, is a type of pre-discovery case management order that certain courts have used to manage mass toxic tort litigation. 3 The underlying policy of the Ohio discovery provisions adopts the "liberal discovery philosophy of the Federal Rules." Staff Note, Civ.R. 26(B)(1). 4 While federal courts in Ohio have addressed the issue of a "Lone Pine" order; this appears to be the first time such an order has been addressed at the state appellate court level. 5 For example see Kinnick v. Schierl, Inc. (1995), 541 N.W. 2d 803;Bell v. ExxonMobil Corp. (2005), 2005 Tex. App. LEXIS 1680; Martinez v.City of San Antonio (2001), 40 S.W.3d 587; Acuna v. Brown Root,Inc. (2000), 200 F.3d 335. *Page 1

2016-07-06 06:36:19.376235+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas which, following a jury trial, found appellant, Robert Moore, guilty and sentenced him to a term of imprisonment. For the reasons stated herein, this court affirms the judgment of the trial court. {¶ 2} The following facts are relevant to this appeal. On September 8, 1998, appellant was indicted on one count of possession of crack cocaine in violation of R.C. 2925.11(A) and (C)(4)(f) and one count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a), with a major drug offender specification. Appellant entered a not guilty plea. {¶ 3} On October 27, 1998, appellant filed a motion to suppress, arguing that there was no legal basis for the stop and ensuing search and seizure. A hearing on the motion was held on November 4, 1998. Following the submission of supplemental briefs, the trial court denied the motion. {¶ 4} Appellant's trial commenced on June 21, 1999, and continued on June 22, 1999. On June 22, 1999, the jury found appellant guilty of the counts charged. On June 23, 1999, appellant's sentencing hearing was held; appellant was sentenced to a term of ten years on the possession of crack cocaine count, to be served concurrently with a term of eleven months on the possession of cocaine count. Appellant was sentenced to a term of five years on the major drug offender specification. {¶ 5} Appellant filed a motion for a new trial on July 27, 1999. On August 9, 1999, the state filed a memorandum in opposition to appellant's motion for a new trial. On August 11, 1999, retained counsel for appellant filed a motion to stay proceeding on the motion for a new trial; in this motion, counsel stated that appellant wished to replace counsel. On August 17, 1999, appellant and his co-defendant filed a pro se motion to stay proceeding on the motion for a new trial in order to obtain additional affidavits. On August 18, 1999, the trial court granted appellant's motion to stay proceedings. New counsel filed a notice of appearance on January 10, 2000, and filed a motion for a new trial on February 15, 2000. The state filed an opposition to this second motion for a new trial on February 29, 2000. {¶ 6} On April 26, 2000, the trial court denied appellant's motion for a new trial. On May 26, 2000, appellant filed a notice of appeal of his conviction and the denial of his motion for a new trial. On June 15, 2000, this court sua sponte dismissed appellant's appeal of the July 1999 conviction as untimely. In January 2001, this court sua sponte dismissed appellant's appeal as to the denial of his motion for a new trial for failure to file a brief. In April 2001, upon appellant's pro se application for reconsideration, this court reinstated the appeal on the grounds that appellant's counsel was ineffective; new counsel was appointed. In July 2001, this court granted appellant's newly appointed counsel's motion to appeal the original 1999 conviction. {¶ 7} Edward J. Fischer, appellant's court-appointed counsel, has filed a brief with this court together with a motion to withdraw as counsel, pursuant to the guidelines set forth in Anders v. California (1967), 386 U.S. 738. In Anders, the United States Supreme Court established five criteria which must be met before a court may grant appellate counsel's motion to withdraw. Id. at 744. The five criteria are: (1) a showing that appellate counsel thoroughly reviewed the transcript and record in the case before determining the appeal to be frivolous; (2) a showing that a motion to withdraw has been filed by appellate counsel; (3) the existence of a brief filed by appellate counsel raising any potential assignments of error that can be argued on appeal; (4) a showing that appellate counsel provided appellant with a copy of the brief which was filed; and (5) a showing that appellate counsel provided an adequate opportunity for appellant to file a pro se brief raising any additional assignments of error appellant believes the appellate court should address. Id. at 744. All five criteria have been met in this case. {¶ 8} Appellant's court appointed counsel indicates that a thorough review of the record resulted in a determination that the appeal was without merit and that he so advised appellant. Counsel states further that he provided appellant with a copy of the brief and advised appellant of his right to file his own brief. The brief filed by appellant's counsel contains the following two proposed assignments of error: {¶ 9} "First proposed assignment of error {¶ 10} "As defendant-appellant was entrapped and his trial counsel failed to prove the same, he was subjected to ineffective assistance of counsel. {¶ 11} "Second proposed assignment of error {¶ 12} "The trial was tainted with misconduct on the prosecutor's part by virtue of his failure to provide all facts at the suppression hearing and his failure to consider the confidential informant as the crime's perpetrator." {¶ 13} On May 28, 2002, appellant filed a pleading captioned "POINTS OF APPELLANT PURSUANT TO ANDERS." The document appellant has submitted as a brief does not contain a statement of the assignments of error as required by App.R. 16(A)(3), but rather, a series of "arguments".1 We construe the text of appellant's brief as raising the following assignments of error: {¶ 14} 1. that the trial court erred in denying his motion to suppress; {¶ 15} 2. that the trial court erred in denying his motion for acquittal as there was insufficient evidence; {¶ 16} 3. that appellant received ineffective assistance of trial counsel in that trial counsel did not ask for instructions appropriate to the defense asserted and trial counsel did not ask for instructions in regard to the confidential informant's ("CI") testimony; {¶ 17} "4. that the trial court committed plain error in not giving instructions appropriate to the defense asserted and instructions in regard to the informant's testimony; {¶ 18} 5. that the State committed a Brady violation in failing to disclose the involvement of the CI's wife with the police; and {¶ 19} 6. that R.C. 2941.10(B), the major drug offender specification, is unconstitutional. {¶ 20} The state did not file an appellee's brief. App.R. 18(C) discusses the consequences of the failure of an appellee to file a brief: {¶ 21} "* * * If an appellee fails to file his brief within the time provided by this rule, or within the time as extended, he will not be heard at oral argument except by permission of the court upon a showing of good cause submitted in writing prior to argument; and in determining the appeal, the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action." Although appellee failed to file a brief, we decline to follow App.R. 18(C) in this case because appellant's briefs have failed to convince us that errors occurred in the trial court. {¶ 22} This court will discuss some of the assignments of error in an order other than presented and will address the potential assignments of error raised by appointed counsel together with the assignments of error raised by appellant as some are interrelated. Appellant first argues that the trial court erred in denying his motion to suppress. This court finds no merit in this assignment of error. {¶ 23} On the authority of State v. Glover (November. 9, 2000), Lucas App. No. L-99-1412, and State v. Edwards, 6th Dist. App. Nos. L-00-1190, L-00-1149, 2002 Ohio 55022, and this court's agreement with the trial court's finding of probable cause3 to justify a warrantless search of his vehicle, this court finds that the trial court properly denied appellant's motion to suppress. {¶ 24} Accordingly, appellant's first assignment of error is found not well-taken. {¶ 25} In his second assignment of error, appellant argues that the trial court erred in denying his motion for acquittal as there was insufficient evidence. This court finds no merit in this assignment of error. {¶ 26} At the close of the state's case, appellant moved for acquittal pursuant to Crim.R. 29. The motion was denied. The defense presented its case. Appellant moved for acquittal again after presentation of his defense. {¶ 27} A motion for acquittal will be sustained if the evidence presented is insufficient as a matter of law to permit a conviction. Crim.R. 29(A)4; State v. Pickett (1996), 108 Ohio App.3d 312, 314. "`Sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins (1997), 78 Ohio St.3d 380, 386. In essence, sufficiency is a test of adequacy. Whether the evidence presented in a case is legally sufficient to sustain a verdict is a question of law and a conviction based upon legally insufficient evidence constitutes a denial of due process. Id. "On review for sufficiency, courts are to assess not whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." Id. at 390 (Cook, J., concurring). {¶ 28} 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. State v. Jenks (1991),61 Ohio St.3d 259, paragraph two of the syllabus. Stated in other words: "An appellate court * * * will not reverse the trial court's judgment unless reasonable minds could only reach the conclusion that the evidence failed to prove all elements of the crime beyond a reasonable doubt."State v. Miley (1996), 114 Ohio App.3d 738, 743. When an appellate court reviews a trial court's decision regarding a motion for acquittal, the appellate court must construe the evidence in a light most favorable to the state. State v. Fyffe (1990), 67 Ohio App.3d 608, 613; State v.Wolfe (1988), 51 Ohio App.3d 215, 216. Further, upon appellate review, the court may not substitute its judgment for the trier of fact on issues as to the credibility of witness testimony. State v. Walker (1978),55 Ohio St.2d 208, 212. After reviewing the record of proceedings in the trial court, we find that the evidence was such that reasonable minds could reach different conclusions as to whether each element of the offenses was proven beyond a reasonable doubt. {¶ 29} Accordingly, appellant's second assignment of error is found not well-taken. {¶ 30} This court will next discuss the first proposed assignment of error raised by appointed counsel together with the third assignment of error raised by appellant as both assert ineffective assistance of trial counsel. This court finds no merit in these assignments of error. {¶ 31} The standard for determining whether a trial attorney was ineffective requires appellant to show: (1) that the trial attorney made errors so egregious that the trial attorney was not functioning as the "counsel" guaranteed appellant under the Sixth Amendment, and (2) that the deficient performance prejudiced appellant's defense. Strickland v.Washington (1984), 466 U.S. 668, 686-687. In essence, appellant must show that his trial, due to his attorney's ineffectiveness, was so demonstrably unfair that there is a reasonable probability that the result would have been different absent his attorneys' deficient performance. Id. at 693. {¶ 32} Furthermore, a court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" in reviewing a claim of ineffective assistance of counsel. Id. at 689. A properly licensed attorney in Ohio is presumed to execute his duties in an ethical and competent manner. State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56. Thus, appellant bears the burden of proving that his trial counsel was ineffective. Id. at 156; State v. Martens (1993), 90 Ohio App.3d 338,351. {¶ 33} It is well established that the constitution does not guarantee a perfect trial or even the best available defense. The Sixth Amendment guarantee of effective assistance of counsel requires only that defense counsel perform at least as well as an attorney with ordinary training and skill in criminal law. State v. Martens,90 Ohio App.3d at 351. Effective assistance of counsel does not guarantee results. Statev. Longo (1982), 4 Ohio App.3d 136, 139. {¶ 34} In the first proposed assignment of error, appellate counsel contends that trial counsel was ineffective for failing to prove appellant was entrapped. This court finds no merit in this assignment of error. {¶ 35} "The defense of entrapment is established where the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute." Statev. Doran (1983), 5 Ohio St.3d 187, paragraph one of the syllabus. "Entrapment is a `confession and avoidance' defense in which the defendant admits committing the acts charged, but claims that the criminal design arose with the state's agent * * *. The primary consideration in any determination of entrapment is the defendant's predisposition to commit the crime." State v. Johnson (1982),4 Ohio App.3d 308, 310. However, the defense of entrapment is inapplicable to this case since the accused must admit his participation in the conspiracy and then show that he lacked the predisposition to commit the offense. That was not the defense asserted. {¶ 36} In his third assignment of error, appellant claims that his trial counsel was ineffective for failing to request jury instructions based upon appellant's theory of the case and for failing to request jury instructions in regard to the CI's testimony. This court finds no merit in this assignment of error. {¶ 37} Generally, the failure to request jury instructions is purely a matter of trial tactics and will not be disturbed upon review.State v. Clayton (1980), 62 Ohio St.2d 45, 47-49, cert. denied (1980),449 U.S. 879. "A failure to prevail at trial does not grant an appellant license to appeal the professional judgment and tactics of his trial attorney." State v. Hart (1988), 57 Ohio App.3d 4, 10. {¶ 38} This court has reviewed the performance of appellant's trial counsel in light of the errors of practice asserted in the first proposed assignment of error and appellant's third assignment of error. This court concludes, on the state of this record, that appellant has failed to demonstrate that his trial attorney's conduct at trial was ineffective in his representation. {¶ 39} The record reflects that counsel presented sound arguments to the court and jury, he challenged the testimony of witnesses by vigorous cross-examination, and he made timely objections. Appellant's counsel was able to elicit conflicting testimony from the state's witnesses. However, inconsistent testimony is a matter for determination by the jury. "Where the evidence at trial is conflicting, the determination of what occurred is a question for the trier of fact and an appellate court may not, in reviewing that decision, substitute its judgment for that of the fact finder." State v. Wise (January. 29, 1993), Wood App. No. 91WD113. See, also, State v. Jenks (1991),61 Ohio St.3d 259, 273. Appellant has not met the burden of proving that his trial counsel was ineffective. {¶ 40} Furthermore, appellant has failed to show that his trial counsel's actions or inactions were prejudicial. In order to prevail on this assignment of error, appellant 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 669. {¶ 41} Accordingly, the first proposed assignment of error and appellant's third assignment of error are found not well-taken. {¶ 42} In his fourth assignment of error, appellant contends the trial court committed plain error when it failed to give jury instructions based upon appellant's theory of the case and failed to give jury instructions in regard to the CI's testimony. This court finds no merit in this assignment of error. {¶ 43} As previously discussed in regard to appellant's third assignment of error, his trial counsel did not request these jury instructions. "On appeal, a party may not assign as error the giving or failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." Crim.R. 30(A). However, we may consider whether plain error occurred pursuant to Crim.R. 52(B): "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." In order to prevail under a plain error analysis, appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. Notice of plain error must be taken with utmost caution, under 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. An omitted instruction does not constitute plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. Id. at paragraph two of the syllabus. {¶ 44} Upon review of the instructions to the jury, we find the trial court's failure to instruct as asserted by appellant did not constitute plain error. The trial court gave instructions on credibility of witnesses, the application of tests of truthfulness and belief or disbelief of witnesses as well as instructions on the elements of the crimes charged. The jury instructions accurately stated the law relevant to the case. {¶ 45} Accordingly, appellant's fourth assignment of error is found not well-taken. {¶ 46} In his fifth assignment of error, appellant contends that the state committed a Brady violation in failing to disclose that the CI's wife paged the CI at the request of the police, which appellant characterizes as her "involvement" with the police. This court finds no merit in this assignment of error. {¶ 47} Brady v. Maryland (1963), 373 U.S. 83, created a duty in the state to disclose material exculpatory to the defense. In UnitedStates v. Agurs (1976), 427 U.S. 97, 103, the Supreme Court stated: {¶ 48} "The rule of Brady * * * arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." (Emphasis added.) See also, State v. Wickline (1990),50 Ohio St.3d 114, 116 (holding that a Brady violation occurs only where the suppressed evidence is discovered after trial.) Thus, where the evidence is ultimately presented at trial, no Brady violation occurs. {¶ 49} During the trial, appellant learned that the CI's wife paged the CI after the police found cocaine buried by his swimming pool. Thus, appellant learned during trial that the CI's wife had some involvement with the police. As the "involvement" of the CI's wife was presented during the trial, there exists no Brady violation. {¶ 50} Accordingly, appellant's fifth assignment of error is found not well-taken. {¶ 51} In the second proposed assignment of error, it is asserted that appellant's trial was tainted by misconduct on the prosecutor's part by virtue of his failure to provide all the facts at the suppression hearing and by his failure to consider the CI as the crime's perpetrator. This court finds no merit in this assignment of error. {¶ 52} Appellant fails to point out any specific misconduct on the prosecutor's part or identify which facts the prosecutor failed to provide. This court has already reviewed appellant's suppression hearing in regard to his first assignment of error. Upon our independent review, we find no misconduct on the prosecutor's part. {¶ 53} In the second proposed assignment of error, appellant also asserts that the prosecutor failed to consider the CI as the crime's perpetrator. Again, appellant fails to support this assertion with any argument. {¶ 54} Accordingly, the second proposed assignment of error is found not well-taken. {¶ 55} In his sixth assignment of error, appellant contends that R.C. 2941.10(B), the major drug offender specification, is unconstitutional. This court finds no merit in this assignment of error. {¶ 56} On the authority of State v. Elkins, 148 Ohio App.3d 370,2002 Ohio 2914, and State v. McCoy (November. 9, 2001), Hamilton App. No. C-000659 and C-000660, this court finds that R.C. 2941.10(B), the major drug offender specification, is not unconstitutional. {¶ 57} Accordingly, appellant's sixth assignment of error is found not well-taken. {¶ 58} Pursuant to Anders, this court is required to review the record independently to determine that appellate counsel has made a diligent, thorough and sound effort and that the proceedings below were free from prejudicial error and conducted without infringement of appellant's constitutional rights. This court's own thorough and independent review of the record in this case fails to demonstrate any arguable issues. {¶ 59} Therefore, this court finds this appeal to be without merit. The motion to withdraw filed by appellant's appointed counsel is found well-taken and is granted. The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal. JUDGMENT AFFIRMED. Peter M. Handwork, P.J., Richard W. Knepper, J., and Mark L.Pietrykowski, J., concur. 1 "Assignments of error should designate specific rulings which the appellant wishes to challenge on appeal." Taylor v. Franklin Blvd.Nursing Home, Inc. (1996), 112 Ohio App.3d 27, 32. Specific assignments of error "may dispute the final judgment itself or other procedural events in the trial court." North Coast Cookies, Inc. v. SweetTemptations, Inc. (1984), 16 Ohio App.3d 342, 343. See also Whiteside, Ohio Appellate Practice (2003 Ed.) 106, § T5.13. 2 Edwards was appellant's co-defendant. 3 The trial court found that the information received from the confidential informant, combined with independent police work, established probable cause to believe that appellant's vehicle contained contraband. 4 Crim.R. 29(A) states that the trial court shall enter a judgment of acquittal "if the evidence is insufficient to sustain a conviction of such offense or offenses."

2016-07-06 06:36:19.40286+00

Appellant-defendant Wilbur Lewis appeals from a denial of his motion to withdraw a plea of guilty in the Lorain County Court of Common Pleas. This Court affirms. On December 16, 1994, Lewis pled guilty to aggravated robbery, an aggravated felony of the first degree, and having a weapon under disability, a felony of the fourth degree. Both charges included specifications related to previous convictions for two aggravated felonies and for possession of a firearm. The underlying facts giving rise to the 1994 charges are not relevant to this appeal. Of relevance, however, is the fact that prior to his plea of guilty, Lewis had pled not guilty. The matter was set for trial, but on December 14, 1994, the prosecution presented to the court tape-recorded evidence that Lewis, his mother, and his grandmother were involved in a scheme to bribe witnesses who were scheduled to testify against Lewis. Shortly thereafter, Lewis changed his plea to guilty. The trial court sentenced Lewis to twelve to twenty-five years, with three years of actual incarceration for the aggravated robbery count, and one-and-a-half to five years for the weapons under disability count, with the sentences to run concurrently. On September 20, 1996, Lewis filed for postconviction relief pursuant to R.C. 2953.21. In support of that petition, he attached a personal affidavit that alleged he was compelled to enter a plea of guilty as a result of threats made by the prosecutor and communicated through Lewis' counsel that failure to plead would result in more vigorous action against Lewis' mother and grandmother. Lewis requested a hearing on the motion. Despite the passage of months, Lewis produced no further evidence supporting his claim of coercion. Thereafter, on June 2, 1997, the trial court denied both Lewis' motion for leave to file additional evidence and his petition for postconviction relief. No hearing was held. The trial court found that Lewis had failed to present substantive grounds for relief, explaining: At the time he entered his plea, the Defendant stated, in response to questions from the Court, that no one had forced him to plead guilty, that no one had threatened him in order to make him plead guilty, and that no promises had been made to him in order to make him plead guilty. * * * Thus, the Court finds that the Defendant knowingly, voluntarily, and intelligently entered his plea of guilty in this case. Appellant attempted a delayed appeal from this denial; however, this Court dismissed the appeal, because a delayed appeal is not available for a postconviction relief determination. State v. Nichols (1984), 11 Ohio St.3d 40, paragraph one of the syllabus. Appellant then moved to withdraw his plea of guilty on December 19, 1997. Accompanying his motion was an affidavit by Lewis that contained the same basic assertions that had formed the basis of his earlier motion for postconviction relief. In denying the motion, the trial court stated: Defendant's motion to withdraw his guilty plea merely restates the arguments set forth in Defendant's petition for postconviction [sic] relief. Further, the transcript of the plea hearing shows that the Court complied with [Crim.R.] 11 and that Defendant knowingly, voluntarily, and intelligently entered his plea of no contest. Lewis timely appeals this latter denial and asserts the following assignment of error: THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED APPELLANT'S MOTION TO WITHDRAW APPELLANT'S PLEA OF GUILTY AND IT FURTHER ERRED BY DENYING APPELLANT'S MOTION WITHOUT CONDUCTING AN ORAL HEARING[.] In addressing this assignment of error, this Court need not reach the underlying merits of Lewis' claim. The Supreme Court of Ohio has held: Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21. State v. Reynolds (1997), 79 Ohio St.3d 158, syllabus. This Court has previously applied Reynolds in holding that a motion to withdraw a plea of guilty after the time for direct appeal that seeks vacation of a conviction and sentence on a claimed violation of a defendant's constitutional rights must be construed as a successive petition for postconviction relief.State v. Shie (July 23, 1997), Wayne App. No. 96CA0073, unreported. As with the defendant in Shie, Lewis has failed to satisfy the criteria under R.C. 2953.23(A) permitting second or successive postconviction relief petitions.1 Lewis does not claim that he was unavoidably prevented from discovering the facts upon which he relies or that the United States Supreme Court has recognized a new, applicable federal or state right since his prior petition that is the basis of his claim. Nor has Lewis shown by clear and convincing evidence that, but for the alleged constitutional error, a reasonable factfinder would have found him innocent of the charges to which he pled guilty. Lewis has failed to satisfy the statutory requirements for second or successive petitions for postconviction relief. The decision 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 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. -------------------- DONNA J. CARR FOR THE COURT REECE, P. J., DICKINSON, J., CONCUR 1 R.C. 2953.23 provides in relevant part: (A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply: (1) Either of the following applies: (a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief. (b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right. (2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.

2016-07-06 06:36:19.87263+00

OPINION {¶ 1} Appellant Charity Kidd appeals from the June 25, 2007 and July 2, 2007 judgments of the Stark County Court of Common Pleas, Juvenile Division, terminating her parental rights, privileges and obligations with respect to her two minor daughters, Tory Gibbons (DOB 7/10/91) and Brandy Gibbons (DOB 7/4/92). Appellant also appeals from the July 5, 2007 judgment of the trial court denying appellant's motion for new trial. Appellee is the Stark County Department of Job and Family Services ("DJFS"). STATEMENT OF THE CASE AND FACTS {¶ 2} Tory and Brandy Gibbons are the natural children of appellant and Jack Gibbons.1 The children were adjudicated dependent on December 6, 2005 and have continuously remained in the custody of DJFS. On September 29, 2006, the trial court extended temporary custody for six months to permit continued attempts at reunification. {¶ 3} DJFS involvement with appellant began in 1991. DJFS's initial concerns were lack of basic necessities, poor home conditions and lack of supervision involving appellant's older children, Clarence and Brett Kidd. In 1993, Jack Gibbons was convicted of gross sexual imposition and child endangering regarding Clarence Kidd, age six at the time. The gross sexual imposition conviction was reversed by this Court inState of Ohio v. Jack Gibbons, Stark County App. No. CA-9556 (September 19, 1994). This Court upheld the conviction for child endangering as there was there was evidence that Jack Gibbons had repeatedly punched and beaten Clarence with a belt, *Page 3 and made him stand in a corner for six hours, from the time he returned from school, until the time he went to bed. {¶ 4} In 2001, DJFS addressed concerns regarding the sexual abuse of Tory and Brandy Gibbons by Clarence Kidd and cousins Raymond and Charles Fox. Thereafter, in September, 2005, DJFS sought removal of Tory and Brandy Kidd for several reasons: 1) deplorable residential conditions (overflowing trash, fly infestation, broken windows, falling ceiling); 2) lack of food; 3) the presence of numerous other adults living at the house, including cousins Raymond and Charles Fox who sexually molested the girls in the past; 4) appellant's lack of cooperation with DJFS; and 5) physical and verbal abuse. {¶ 5} On February 12, 2007, DJFS filed a motion for permanent custody. The trial court held a hearing on June 7, 2007 regarding this motion. The witnesses who testified include Cheri Vandeborne, the DJFS caseworker assigned to this case; Cynthia Zurbrugg, mental health therapist with Child and Adolescent Services; and both parents, who were represented by legal counsel. Brandy Gibbons was also represented by legal counsel because, at the time of the filing of the motion for permanent custody, she was not in favor of permanent custody; however, at the time of hearing, she had changed her mind and was not contesting the permanent custody action. Dwaine Hemphill, the Attorney Guardian Ad Litem ("GAL"), also testified and submitted a written report. {¶ 6} At hearing, Ms. Vandeborn testified in regards to appellant's efforts to comply with the case plan that was developed by DJFS with reunification as its goal. Ms. Vanderborn testified that the mother had substantially complied with the plan by obtaining acceptable housing, obtaining verifiable employment, completing a parenting *Page 4 evaluation, and complying with urine screens. Appellant was being treated for depression and was taking an anti-depressant; due to the medication, she was much calmer and has a better outlook. However, since DJFS's custody of the children, appellant was allowing individuals who had engaged in inappropriate sexual contact with the children (Clarence Kidd, Raymond and Charles Fox) to be present during visitation and to reside at her home. In addition, appellant brought a convicted sex offender to a visitation with the children. Ms. Vandborne testified her main "concern remains that she [appellant] still does not understand how much risk she's placing her girls in when she allows these people to be around them. I mean when I've spoken with her about this in the past, just in the recent past, she says that they're my family, I understand they're your family, but your girls are your family too, they're not adults, they're still children and they need someone to look out for their best interest." T. at 36. {¶ 7} The GAL testified and "clearly and unequically (sic) recommend permanent custody for both girls" and had "no hesitation in saying that neither girl should ever return to the home with either parent." June 7, 2007 Hearing Transcript, p. 105. The GAL further testified that Tory clearly did not want to return home and desired placement and/or adoption with her current foster placement. He further noted that Brandy had difficulties in her initial foster family placement, had runaway, and was subsequently placed in a group home. Initially, Brandy viewed return to her mother as an option to the group home, but Brandy "subsequently pulled things together and has moved out of the group home into an appropriate placement." T. 106-107. {¶ 8} Mother testified she is now a stronger person and even though she feels that she can trust the other family members who sexually molested her children "if the *Page 5 State says I can't take my girls around there, that the way it'll be." T. at 101. It is undisputed that appellant loves the children, but the bond with her children is strained and the children have requested that visitation with her not continue, according to the caseworker. T. at 80. {¶ 9} On June 25, 2007, the trial court granted permanent custody to DJFS and terminated both parent's parental rights, stating the children have been in custody of DJFS for 12 or more months in a consecutive 22-month period; the children cannot be placed with either parent at this time or within a reasonable period of time; and it was in the children's best interest to grant permanent custody to DJFS. {¶ 10} On July 2, 2007, appellant filed a "Motion for New Trial," pursuant to Civ.R. 59(A)(8). In her motion, appellant relied on "new discovered evidence, material for the Mother applying for new trial, which with reasonable diligence could not have been discovered or produced at trial". Attached to the motion was a copy of a handwritten letter allegedly written by Tory Kidd, stating she loves her mother and she "had no part in making this desition (sic)." {¶ 11} The trial court denied the motion for new trial on July 5, 2007. {¶ 12} It is from the trial court's findings of fact, conclusions of law and judgment entries that the mother appeals and sets forth the following assignments of error: {¶ 13} "I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH THE APPELLANT WITHIN A REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. *Page 6 {¶ 14} "II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS OF THE CHILDREN WOULD BE SERVED BY THE GRANTING PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. {¶ 15} "Ill. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES PUT FORTH GOOD FAITH AND DILIGENT EFFORTS TO REHABILITATE THE FAMILY SITUATION. {¶ 16} "IV. THE JUDGMENT OF THE TRIAL COURT TO DENY APPELLANT'S MOTION FOR NEW TRIAL WAS AN ABUSE OF DISCRETION." I. {¶ 17} As an appellate court, we neither weigh the evidence nor judge the credibility of the 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 (Feb. 10, 1982), Stark App. No. CA-5758. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence.C.E. Morris Co. v. Foley Constr. (1978), 54 Ohio St. 2d 279,379 N.E.2d 578. {¶ 18} Revised Code 2151.414 sets forth the guidelines a trial court must follow when deciding a motion for permanent custody. R.C.2151.414(A)(1) mandates the trial court must schedule a hearing, and provide notice, upon the filing of a motion for permanent custody of a child by a public children services agency or private child *Page 7 placing agency that has temporary custody of the child or has placed the child in long-term foster care. {¶ 19} Following the hearing, R.C. 2151.414(B) authorizes the trial court to grant permanent custody of the child to the public or private agency if the court determines, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody and that any of the following apply: (a) the child is not abandoned or orphaned, and the child cannot be placed with either of the child's parents within a reasonable period of time or should not be placed with the child's parents; (b) the child is abandoned; (c) the child is orphaned and there are no relatives of the child who are able to take permanent custody; or (d) the child has been in the temporary custody of one or more public children services agencies or private child placement agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999. {¶ 20} Therefore, R.C. 2151.414(B) establishes a two-prong analysis the trial court must apply when ruling on a motion for permanent custody. In practice, the trial court will usually determine whether one of the four circumstances delineated in R.C. 2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding the best interest of the child. {¶ 21} In this case, the trial court found that two of the four circumstances delineated in R.C. 2151.414(B)(1) were found by clear and convincing evidence. First, the trial court found that the children have been in DJFS custody for 12 or more months in a consecutive 22 month period under division (d) of the statute. No party has appealed this finding. Pursuant to R.C. 2151.414(B)(1), this conclusive finding, coupled *Page 8 with a showing by clear and convincing evidence that permanent custody is in the best interest of the children, provides a sufficient basis for this Court to affirm the trial court. {¶ 22} Nevertheless, this Court will address the issues raised by the appellant's first assignment of error because the trial court further determined that the children cannot be placed with either parent at this time or within a reasonable period of time under division (a) of the statute. Appellants claim this finding is against the manifest weight and sufficiency of the evidence. {¶ 23} Under R.C. 2151.414(E), the trial court must consider all relevant evidence before making this determination. The trial court is required to enter such a finding if it determines, by clear and convincing evidence, that one or more of the factors enumerated in R.C.2151.414(E)(1) through (16) exist with respect to each of the child's parents. {¶ 24} The trial court found by clear and convincing evidence that the following factors set forth in R.C. 2151.414(E)(1) were present: Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. *Page 9 {¶ 25} In regards to termination of the mother's parental rights, the trial court found that it was "unable to find that these children could be safely returned to Charity Kidd based upon her failure to remedy the problems that led to the removal of these children." {¶ 26} This Court finds relevant competent, credible evidence was given at the motion hearing to support this finding. The evidence demonstrates a pattern of appellant's involvement in a cycle of physical and sexually abuse. Mr. Gibbons allegedly physically abused appellant and abused appellant's son who in turn abused Tory and Brandy. Appellant continued to expose her daughters to sex offenders and continued to associate with them during the agency's attempt at reunification. Ms. Vandeborn testified in recommending permanent custody: "Because just in my over two years of dealing with this family, the same presenting factors have been evident throughout the whole case, and yes, mom has completed the majority of her case plan, however her mind set has not changed and the girls still need protection * * * we have concerns all the way back to 2000 and before that, mom allowing sex offenders to be around her children and that was why they were removed at one point * * * so I don't feel that anything in that respect has changed with mom. T. at 85. {¶ 27} In light of the above, this Court finds the trial court's conclusion that the children cannot or should not be placed with mother was not against the manifest weight and sufficiency of the evidence. {¶ 28} Appellant's first assignment of error is overruled. *Page 10 II. {¶ 29} In her second assignment of error, appellant contends the trial court's finding that the best interest of the girls would be served by granting permanent custody was against the manifest weight and sufficiency of the evidence. {¶ 30} In determining the best interest of the child at a permanent custody hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including, but not limited to, the following: (1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (2) the wishes of the child 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; and (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. {¶ 31} Of paramount concern to the trial court and this Court is the safety of the Tory and Brandy. See also, In re A.B. v. Summit CountyChildren Services Board (2006) 110 Ohio St.3d 230, 234, 852 N.E.2d 1187,1191 (the law places safety as the paramount concern in the delivery of child welfare services and decision-making). In making determinations relative to permanent custody, a court shall not consider the effect the granting of permanent custody to the agency would have upon any parent or child. R.C. 2151.414 (C). {¶ 32} In light of the extended period of time the children have been in the custody of DJFS, the mother's inability to protect her children from incidents of abuse throughout their lifetime, and the report of the GAL and his testimony regarding the *Page 11 wishes of the children, this Court finds the trial court's decision to permanently sever the parental relationship in the best interest of the children is supported by reliable, credible and competent evidence. {¶ 33} Appellant's second assignment of error is overruled. III. {¶ 34} Appellant contends DJFS failed to make a good faith effort to initiate and implement the reunification plan, relying upon R.C.2151.414(E)(1). Specifically, appellant claims that the caseworker made no effort to have appellant enroll in a Parent Mentoring Project. {¶ 35} This argument is without merit for several reasons. First, the trial court found that the children had been in the temporary custody of DJFS for twelve of the prior twenty-two consecutive months, and this finding, coupled with a best interest determination, is sufficient reason for granting permanent custody in favor of DJFS. {¶ 36} Second, the Ohio Supreme Court recently ruled in In ReC.F., 113 Ohio St.3d 73, 2007-Ohio-1104, that an agency need not establish it made reasonable efforts toward reunification at a hearing on a motion for permanent custody filed pursuant to R.C. 2151.413 if the agency has established that reasonable efforts have been made prior to the hearing on a motion for permanent. In this regard, the record reflects the trial court made a reasonable-efforts finding when the children were adjudicated dependent on December 6, 2005. {¶ 37} Lastly, Ms. Vandeborne testified at the permanent custody hearing the agency referred appellant for substance-abuse assessment, parenting evaluation, and individual and family counseling at Community Services in Alliance. Appellant was also *Page 12 referred and recommended for the Parenting Mentoring Project in Alliance. However, no classes were scheduled to be held in Alliance, so the agency offered a bus pass to appellant so she could attend the classes in Canton, however, appellant did not complete the class. {¶ 38} Based on the evidence, we cannot say that the trial court abused its discretion when it concluded that "notwithstanding reasonable case planning and diligent efforts by the agency", the children could not or should not be placed with either parent within a reasonable time, granting permanent custody to DJFS. {¶ 39} Appellant's third assignment of error is overruled. IV. {¶ 40} Appellant argues that the trial court abused its discretion in denying appellant's motion for new trial. We disagree. {¶ 41} Appellant moved for a new trial on the basis of newly discovered evidence. Appellant claims she "recently received a letter from her daughter [Tory] stating that she had no part in making this decision" and "the letter goes on to say how the daughter loves her family." Alternatively, appellant requested the trial court reconsider its judgment, take additional testimony, and have an in-camera interview with the children. {¶ 42} The trial court summarily denied the motion. {¶ 43} Civ.R. 59(A)(8) permits a new trial on the ground of newly discovered evidence where such evidence is material for the party applying, and where it could not with reasonable diligence have been discovered and produced at trial. Case law has established that before a new trial may be granted on the basis of newly discovered *Page 13 evidence, the evidence (1) must be such as will probably change the result if a new trial is granted, (2) must have been discovered since the trial, (3) must be such as could not in the exercise of due diligence have been discovered before the trial, (4) must be material to the issues, (5) must not be cumulative to former evidence, and (6) must not merely impeach or contradict the former evidence. Sheen v.Kubiac (1936), 131 Ohio St. 52, paragraph three of the syllabus. See also, In re: S.S., A.S. and J.S., 9th Dist. No. 04CA0032, 2004-Ohio-5371 (applying the Scheen standard for determining a motion for a new trial based upon newly discovered evidence in a permanent custody case). {¶ 44} A motion for a new trial is addressed to the trial court's sound discretion and may not be disturbed on appeal absent an abuse of discretion. Taylor v. Ross (1948), 150 Ohio St. 448, paragraph two of the syllabus. An abuse of discretion implies that a court's ruling is unreasonable, arbitrary, or unconscionable; it is more than a mere error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,219. {¶ 45} R.C. 2151.414(D) sets forth the factors for the court to consider when determining the best interest of the child. One of the statutory factors is, "[t]he 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." R.C. 2151.414(D)(2). The Ohio Supreme Court has held, "[t]he statute unambiguously gives the trial court the choice of considering the child's wishes directly from the child or through the guardian ad litem". In re: C.F., supra, at ¶ 55. {¶ 46} Upon review, we determine the "new discovered evidence" relied upon by appellant does not justify the granting of a new trial. As an initial matter, we note *Page 14 appellant did not request that the court conduct an in camera interview of the children. Appellant could have exercised due diligence before trial and given the trial court the option of having the child assert her opinion rather than relying upon the GAL's representations. {¶ 47} In addition, we agree with DJFS that the letter is consistent with the GAL's testimony. He stated ". . . Tory has this long term placement in a foster home that is not an adoptive home and Tory would really like to remain in this home until she turns 18, she's very bonded with the people in the home . . . she's certain she doesn't want to ever return home, she's very clear on that . . . her position now is she would like to leave it to Your Honor to decide what's best for her, she certainly doesn't want to go home and she's comfortable where she is, but I believe permanent custody is in her best interest." T. at 107. {¶ 48} In the handwritten letter, Tory never states she wants to return to her parents. She indicates very briefly and vaguely that she had no part in making the decision. Even if we presume this is in reference to the permanent custody determination, such a statement was consistent with the evidence at trial, is cumulative and would not have changed the outcome of the hearing. We find the trial court did not abuse its discretion in denying appellant's motion for new trial. {¶ 49} Accordingly, appellant's fourth assignment of error is overruled. *Page 15 {¶ 50} The judgment of the Stark Division, is affirmed. Delaney, J. Gwin, P.J. and Hoffman, J. concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas, Juvenile Division, is affirmed. Costs assessed to appellant. 1 Jack Gibbons is not a party to this appeal. *Page 1

2016-07-06 06:36:19.930634+00

OPINION This is an accelerated calendar case submitted on the record and the brief of appellant, Demetreous W. Shaw ("Shaw"). Appellee, City of Geneva, has failed to file a brief. After a jury trial, Shaw was convicted of menacing, a forth degree misdemeanor, in violation of Geneva Codified Ordinance 636.05. The city of Geneva's ordinances on menacing and aggravated menacing duplicate the corresponding Ohio Revised Code sections, R.C. 2903.22 and R.C. 2903.21, respectively. Shaw and the victim, Steven Nagy ("Nagy"), rented separate apartments in the same house. Shaw liked to play his stereo very loud. Nagy complained to Shaw, then to the landlord and, then, when Shaw continued playing it loud, to the police. Nagy called the police on more than one occasion. At trial, Nagy gave the following testimony describing the incident: "I was sitting in my home relaxing that evening, and I thought I heard what sounded like rocks hitting the outside wall. Out of curiosity, I opened the door and there was Mr. Shaw standing at the bottom of my steps. He called me a pussy, a homosexual, and asked me what my problem was; and before I could respond, he said, if you ever call the police on me again, and then he began to walk away. He walked maybe five feet, and then he turned around and said, by the way, you're getting jumped. I'm calling a few boys from Ashtabula and you're getting jumped." Nagy then testified that he was afraid and took the threat seriously, because the threat was made after Nagy had already been to the police for assistance. The above testimony was essentially the full extent of the testimony on the crime charged. No other witnesses testified on behalf of the prosecution, and neither Shaw nor any other witnesses testified on behalf of the defense. Shaw was charged with aggravated menacing, and the jury was also given an instruction on the lesser-included offense of menacing. The trial court, in accordance with the applicable ordinances, gave the following jury instruction: "Before you can find this defendant guilty of Aggravated Menacing, you must find beyond a reasonable doubt that * * * the defendant knowingly caused Steven Nagy to believe that the defendant would cause serious physical harm to him. "* * * "Serious physical harm to person means any of the following: any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; any physical harm that carries a substantial risk of death; any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary substantial incapacity; any physical harm that involves some permanent disfigurement or that involves some temporary serious disfigurement; any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain. "* * * "Menacing is knowingly causing another to believe that the defendant would cause physical harm to the person. Physical harm to persons means injury, illness or other physiological impairment regardless of its gravity or duration." The jury found Shaw not guilty of aggravated menacing, but found him guilty of menacing. From this judgment, Shaw timely filed his notice of appeal, and has assigned two errors. In his first assignment of error, Shaw contends his conviction was against the manifest weight of the evidence. The standard of review for a manifest weight of the evidence claim is as follows: "`In determining whether the verdict was against the manifest weight of the evidence, * * * "[t]he 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. * * *"' (Citations omitted.) (Emphasis added.) [State v.] Davis [(1988)], 49 Ohio App.3d [109], at 113." State v. Schlee (Dec. 23, 1994), Lake App. No. 93-L-082, unreported, 1994 Ohio App. LEXIS 5869, at *14-15. Typically, in a manifest weight of the evidence exercise, there is some conflicting testimony. In this case there was none. There was only the cross-examination of Nagy, during which the testimony adduced at best mitigated the nature of the threat. We cannot say the jury clearly lost its way in resolving the conflicts in the evidence, or has there been a manifest miscarriage of justice. Shaw's first assignment of error is without merit. In Shaw's second assignment of error, he argues there was insufficient evidence to sustain a conviction. When reviewing a claim of insufficient evidence, "the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense [proven] beyond a reasonable doubt." State v.Martin (1983), 20 Ohio App.3d 172, 175. Nagy's testimony was sufficient with respect to each of the elements. Viewing the evidence in a light most favorable to the prosecution, a jury could have found all of the elements proven beyond a reasonable doubt. Shaw's second assignment of error is without merit. The judgment of the trial court is affirmed. NADER, J. and GRENDELL, J. concur.

2016-07-06 06:36:19.983103+00

OPINION {¶ 1} William Carey appeals from his conviction and sentence in the Miami County Common Pleas Court on one count of rape with a specification that the victim was less than ten years of age. {¶ 2} Carey advances four assignments of error on appeal. First, he contends that he was prejudiced by the lack of specific offense dates in his indictment and bill of particulars. Second, he argues that the trial court erred in failing to exclude the testimony of an expert witness who was not identified until shortly before trial. Third, he asserts that the expert's testimony should have been excluded under the Ohio Rules of Evidence. Fourth, he maintains that his conviction is against the manifest weight of the evidence. {¶ 3} The record reflects that Carey was indicted on September 25, 2002, on three counts of raping C.C. by forcing her to perform fellatio on him. The matter proceeded to trial before a jury on November 5-7, 2002. At trial, seven-year-old C.C. testified that all three incidents occurred at the Carey residence, where she often stayed while her mother worked. According to C.C., on each occasion she was upstairs in a room watching Carey play a video game. C.C. testified that Carey's conduct during each incident was the same. He first directed her to "come here" and made her touch his penis. He then "took her head" and forced her to perform fellatio on him, telling her afterward that it was their "little secret." C.C. testified that she delayed disclosing the abuse to her maternal grandmother. She failed to report Carey's actions immediately because she was afraid and did not know what would happen if she told someone. {¶ 4} C.C.'s maternal grandmother and mother also testified about C.C.'s disclosure of the sexual abuse allegations in mid-August, 2002, but they lacked first-hand knowledge about whether the allegations were true. Also testifying for the State was William Davis, the chief of the Pleasant Hill, Ohio, police department. Davis testified that he interviewed C.C. for about twenty minutes after her mother reported the sexual abuse allegations. After interviewing C.C., Davis arrested Carey and contacted the prosecutor, who approved the filing of criminal charges. The State's final witness was clinical counselor Caryn Smith, who testified about delayed disclosure of sexual abuse by child victims. Smith explained that abused children usually do not report the abuse immediately because the traumatic event produces fear and anxiety. She also testified that young children tend to disclose abuse more by accident than by design. Finally, Smith explained that when children do disclose abuse, they tend to tell someone who they think will believe and support them. {¶ 5} After the State rested, defense counsel called Carey's wife to testify. According to Mrs. Carey, the appellant never watched C.C. alone, and she was unaware of C.C. ever being alone with him upstairs. In addition, Mrs. Carey testified that C.C. never complained to her about the appellant, never appeared afraid of him, and never "acted out" sexually. She acknowledged on cross examination, however, that the appellant sometimes was home when she was babysitting for C.C. Carey then testified in his own defense and stated that he did not recall ever being alone with C.C. upstairs. He also denied ever babysitting for C.C. by himself. In addition, Carey denied ever touching C.C. inappropriately, forcing her to perform oral sex on him, or telling her that "this is gonna be our little secret." On cross examination, he agreed that C.C. had no reason to be afraid of him or mad at him. {¶ 6} Following deliberations, the jury found Carey not guilty on counts one and two of the indictment, but guilty of rape and the accompanying specification in count three. The trial court sentenced Carey to life in prison. He then filed a timely appeal, advancing the four assignments of error set forth above. {¶ 7} In his first assignment of error, Carey contends that he was prejudiced by the lack of specific offense dates in his indictment and bill of particulars. He argues that he "had no way of knowing if he could present evidence that he was elsewhere at the time in question because he did not know what time was in question." Stated differently, Carey suggests that he may have been able to offer an alibi if he had known precisely when the sexual abuse was alleged to have occurred. {¶ 8} Upon review, we find this assignment of error to be unpersuasive. In cases of child sexual abuse, young victims often are unable to remember exact dates when the offenses occurred. Because the precise date of the offense of rape is not an element of the crime, a degree of inexactitude in averring the date of the offense is not necessarily fatal to a prosecution. State v. Sellards (1987),17 Ohio St.3d 169. Nevertheless, when a defendant requests a bill of particulars, the State must supply a specific date for the alleged offense if it possesses such information. Id. Even when the State does not possess a specific date for the offense, the lack of this information may be fatal to the prosecution if it creates a material detriment to the defendant's ability to defend himself for example where the defendant asserts an alibi and claims he was elsewhere during part, but not all, of the time period specified for the offense. State v. Boehm (Dec. 31, 1997), Montgomery App. No. 16335. {¶ 9} In the present case, Carey was acquitted on counts one and two of the indictment. With regard to count three, the indictment originally alleged that the offense had occurred on or about "August through November, 2001." The State subsequently amended the indictment, however, to allege that the offense in count three had occurred on or about "July through August, 2002." The State then filed a bill of particulars, repeating its assertion that the offense in count three had occurred "on or about July through August, 2002, the exact date being unknown." Thereafter, the State filed an amended bill of particulars, stating, with regard to count three: "The specific date of the offense is: on or about July through August, 2002, the exact date being unknown, although this incident occurred near the time of a soccer camp in Pleasant Hill, Ohio, that took place around July 15, 2002." {¶ 10} Carey does not dispute that the State was unable to supply a specific date for the offense charged in count three because it did not have such information. Indeed, we find no evidence that the State possessed more specific information about the offense date than it provided in the amended bill of particulars. The remaining question is whether the State's inability to supply Carey with a specific date for the offense in count three was materially detrimental to his ability to defend himself. Although Carey suggests without elaboration that he may have been able to advance an alibi defense, he neither attempted to assert an alibi defense at trial nor filed a notice of alibi. In other words, Carey did not attempt to show at trial that he was indisputably elsewhere during at least part of the time when the offense allegedly occurred. Instead, he simply claimed that the incident never happened and that he never touched C.C. inappropriately. Under these circumstances, the record does not establish that Carey's ability to defend himself was materially prejudiced.1 Accordingly, we overrule his first assignment of error. {¶ 11} In his second assignment of error, Carey argues that the trial court erred in failing to exclude the testimony of expert witness Caryn Smith, who was not identified until shortly before trial. In support, Carey contends that he might have obtained his own expert witness if he had known earlier that the State intended to introduce expert psychological testimony. {¶ 12} Although we believe Smith's identity should have been disclosed earlier, we do not find that the trial court abused its discretion in allowing her to testify. The record reflects that trial in this matter was set for November 5, 2002. Defense counsel on October 22, 2002, filed a motion to compel the State to provide the names of its witnesses. On October 28, 2002, the trial court filed an order directing the State to provide this information by 4:00 p.m. on Friday, November 1, 2002. The case then proceeded to trial on November 5, 2002. Just prior to Smith's testimony in the middle of trial, defense counsel objected on the basis that her identity was not timely disclosed. In support, defense counsel argued that her name did not appear on an October 25, 2002, witness list. Defense counsel also asserted that on October 30, 2002, he received a letter from the prosecutor's office stating that an "unknown expert" would testify. According to defense counsel, he did not discover Smith's identity until November 4, 2002, the day before trial. Defense counsel did not dispute, however, that on November 1, 2002, the prosecutor had hand-delivered a letter identifying Smith in compliance with the court's order of October 28, 2002. {¶ 13} In any event, while discussing defense counsel's mid-trial objection to Smith's testimony, the trial court asked whether he needed "some additional time to prepare" or "some sort of a continuance or anything" if Smith were allowed to testify. Defense counsel responded, "Nope." In addition, on the morning of trial, the court, addressing a different issue, filed a written entry noting that it "has offered to continue the trial if the Defendant feels additional time is needed to prepare, or review material recently submitted, which offer the Defendant has eschewed in favor of proceeding with his trial strategy." {¶ 14} In light of defense counsel's representation that he did not need a continuance or time to prepare for Smith's testimony, and his rejection of an offered continuance, we cannot say that the trial court abused its discretion in allowing her to testify. If Carey believed that he would be prejudiced by Smith's testimony, he should have raised the issue before trial and should have accepted the trial court's offer of a continuance. Given his failure to do so, we are unpersuaded that the trial court abused its discretion in allowing Smith to testify. {¶ 15} In rejecting Carey's second assignment of error, we note too that Smith's testimony was brief and not particularly damaging to him. Smith first testified that children typically do not report abuse immediately because the traumatic event produces fear and anxiety. In the present case, however, C.C. reported the sexual abuse alleged in count three soon after it occurred. Although the delay was longer between the abuse and the reporting in counts one and two, Carey was acquitted of those charges. Smith also testified that young children tend to disclose abuse accidentally rather than intentionally. In the present case, however, C.C.'s reporting of the abuse was not accidental. To the contrary, she testified that she "thought it over" and decided that she should tell her grandmother. Finally, Smith explained that when children do disclose abuse, they tend to tell someone who they think will believe and support them. This revelation was not particularly prejudicial to Carey. Accordingly, we reject his argument that he was prejudiced by the trial court's decision to allow Smith to testify, and we overrule his second assignment of error. {¶ 16} In his third assignment of error, Carey asserts that Smith's testimony should have been excluded under Evid.R. 702(A), which provides that a witness may testify as an expert if her testimony "relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons." According to Carey, Smith's testimony did not assist the jury in its understanding of the evidence and had no purpose other than to bolster C.C.'s credibility. As a result, he contends that the testimony was inadmissible. {¶ 17} Upon review, we find Carey's argument to be unpersuasive. As an initial matter, we question whether he properly raised the Evid.R. 702(A) issue in the trial court. The record reveals that just prior to the start of Smith's testimony, he specifically objected on the basis of Evid.R. 702(C), which provides that expert testimony must be "based on reliable scientific, technical, or other specialized information." Carey also cited Evid.R. 104(A), which generally provides that whether a witness is qualified to testify as an expert is a matter for the court to decide. See State v. Cartwright, Montgomery App. No. 18723,2002-Ohio-539. In any event, even if Carey properly preserved the Evid.R. 702(A) issue, it was within the trial court's discretion to find that Smith's testimony about the disclosure and reporting of abuse by children related to matters beyond the knowledge and experience of lay persons. See, e.g., State v. Moore (Feb. 7, 2001), Lorain App. No. 00CA007587 (recognizing that "it is usually not within a juror's common knowledge or experience how a child sexual abuse victim might respond");State v. Carte (Jan. 14, 1999), Cuyahoga App. No. 72955 ("We do not believe that an ordinary juror would be conversant with a child sexual abuse victim's tendency to delay reporting the abuse."); State v. James (Aug. 24, 1995), Hardin App. No. 6-94-18 (finding that expert testimony was admissible because it "illuminated for the jury" reasons why children might not immediately report abuse). Accordingly, we overrule Carey's third assignment of error. {¶ 18} In his fourth assignment of error, Carey maintains that his conviction on count three of the indictment is against the manifest weight of the evidence. In support, he argues that the jury acquitted him on two counts yet seemingly inconsistently convicted him on count three based upon essentially the same evidence. He also argues that C.C.'s testimony was unreliable, that the State lacked any physical evidence, and that the State could not prove precisely when the crime occurred. {¶ 19} The foregoing arguments fail to persuade us that Carey's conviction is against the manifest weight of the evidence. When a defendant raises a manifest-weight challenge, we must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387,1997-Ohio-52. A judgment should be reversed as being against the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Martin (1983),20 Ohio App.3d 172, 175. {¶ 20} Having performed the appropriate review in the present case, we do not find that the evidence weighs heavily against Carey's conviction. Although a reviewing court is entitled to consider witness credibility when reviewing a manifest-weight challenge, such a review must be tempered by the principle that weight and credibility of a witness' testimony primarily are for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. In the present case, C.C. testified that Carey forced her to perform oral sex, and he denied the allegation. Thus, given the absence of any physical evidence, the jury simply was required to choose whom to believe. In electing to believe C.C., the jury did not clearly lose its way and create a manifest miscarriage of justice. We have reviewed C.C.'s testimony carefully, and we find nothing to call its credibility into doubt. {¶ 21} We also find no merit in Carey's argument that his conviction on count three is against the manifest weight of the evidence because the jury acquitted him on counts one and two. It is true that C.C.'s testimony about each of the three incidents was identical. C.C. testified that on each occasion, she went upstairs to watch Carey play a video game and he engaged in the same abusive conduct. Although we do not know why the jury acquitted Carey on the first two counts and convicted him on the third, it is well established that the several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts. Dunn v. United States (1932), 284 U.S. 390; Browningv. State (1929), 120 Ohio St. 62. It may have been that the jury was more comfortable with their verdict on the count in which C.C. was more precise about the date of the alleged rape. For present purposes, however, we need not speculate why the jury acquitted Carey on counts one and two. The issue is whether his conviction on count three is against the manifest weight of the evidence. After reading the full transcript of his trial, we conclude that it is not. Accordingly we overrule his fourth assignment of error and affirm the judgment of the Miami County Common Pleas Court. Judgment affirmed. GRADY, J., and YOUNG, J., concur. 1 We are not wholly unsympathetic to Carey's argument that he had no opportunity to present an alibi defense because he did not know the specific date at issue. Our prior case law suggests, however, that Carey should have presented an alibi establishing that he was elsewhere during at least part of the time period when the offense allegedly occurred. SeeState v. Smith (Nov. 8, 1995), Greene App. No. 94. For example, if Carey could have presented evidence that he was out of town on certain days within the time frame alleged by the State, he would have a much stronger argument that the lack of specificity materially prejudiced his ability to defend himself. Given that Carey presented no such evidence, however, we cannot find that the State's inability to provide a specific date for the offense was prejudicial.

2016-07-06 06:36:20.084072+00

DECISION AND JUDGMENT ENTRY This matter is before the court on appeal from the Lucas County Court of Common Pleas wherein appellant William Thomas' petition for postconviction relief was denied. Appellant sets forth the following assignment of error: "THE COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANT/APPELLANT'S MOTION FOR EVIDENTIARY HEARING CONTAINED IN HIS PETITION FOR POST-CONVICTION RELIEF." In his petition, appellant argued that he did not knowingly, voluntarily or intelligently waive his right to a jury trial. Appellant now contends that the trial court erred in denying him an evidentiary hearing on the issue of his jury trial waiver. R.C. 2953.211 provides for petitions to vacate or set aside sentence, also known as petitions for postconviction relief, and states in pertinent part: "(A) Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which 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. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief. " * * * "(C) Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. Such court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal." It is well established that res judicata is a proper ground upon which to dismiss, without hearing, a R.C. 2953.21 petition. State v. Perry (1967), 10 Ohio St.2d 175. See, also, State v. Cole (1982),2 Ohio St.3d 112. Specifically, the court in Perry, supra, held at paragraph nine of the syllabus: "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 on an appeal from that judgment." (Emphasis in the original.) In addition, the doctrine of res judicata is applicable to constitutional issues raised in a petition for postconviction relief. "Constitutional issues cannot be considered in postconviction proceedings under Section 2953.21 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him." Id., at paragraph seven of the syllabus. Accordingly, to avoid a finding of res judicata, a petitioner must submit evidentiary documents containing sufficient operable facts outside the record to demonstrate that he is entitled to relief. State v.Kapper (1983), 5 Ohio St.3d 36, 38, certiorari denied (1983), 464 U.S. 856,78 L.Ed.2d 157, 104 S.Ct. 174. In other words, the petitioner bears the initial burden of showing that the issue could not have been determined without resort to evidence outside the record on direct appeal, Cole,supra, at 114, and the petitioner is entitled to a hearing only if the allegations outside the record are not rebutted by the record of the original criminal prosecution. R.C. 2953.21(E). In the present case, appellant submitted no evidence outside the record to support his petition. Moreover, appellant raised this same issue on his direct appeal. State v. Thomas (June 30, 1999), Lucas App. No. L-96-020, unreported. Accordingly, appellant's sole assignment of error is found not well-taken. On consideration whereof, the court finds that substantial justice has been done the party complaining, and the judgment of the Lucas County Court of Common Pleas is affirmed. Costs assessed to appellant. 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. ____________________________ Melvin L. Resnick, J. JUDGE Richard W. Knepper, J., Mark L. Pietrykowski, P.J., CONCUR.

2016-07-06 06:36:22.856368+00

OPINION On November 11, 1996, appellee Stark County Department of Human Services filed a complaint seeking temporary custody of John Oravec, II., (Date of Birth: 04-14-96). Appellant Jean Oravec, the child's mother, and John Oravec, Jr., the child's father, stipulated to a finding of dependency of the child. The child was found to be dependent, and temporary custody was granted to appellee. A case plan was filed requiring that both parents attend Quest for evaluation and recommendations. The father was to receive anger management assessment and therapy, appellant was to continue counseling with West Care, and appellant was to obtain and maintain independent housing. The child was returned to appellant with protective supervision on August 12, 1997. Legal custody was returned to appellant, subject to protective supervision, on September 5, 1997. In October of 1997, appellant was arrested for DUI, driving under suspension, and child endangering. She was driving while intoxicated with John, who was 18 months old at the time, on her lap. In addition, appellant had violated a no-contact order and allowed the father to have access to the child. Temporary custody was returned to DHS. In May of 1998, the child was sent on an extended visit with appellant, and DHS filed a motion to return the child to appellant's custody with protective supervision. In August, appellee discovered that the mother had violated the no-contact order with the father in June, and during the resulting altercation appellant's arm was broken. The child was again removed from appellant's care, and appellee filed a motion for permanent custody. The matter proceeded to a trial in the Stark County Common Pleas Court, Family Court Division. Following a hearing, the court terminated appellant's parental rights, and awarded permanent custody of John to appellee. Appellant assigns a single error: ASSIGNMENT OF ERROR THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. There was abundant evidence to support the court's finding that the child could not be placed with the mother within reasonable time. Appellant testified on cross-examination. She testified that pursuant to her case plan, she was to obtain appropriate housing, go to Quest, attend parenting classes, and address her mental health issues. She testified that she had appropriate housing. She further testified that she had been diagnosed as alcohol dependent, and had been through drug abuse treatment at Quest, Glenbeigh, and Molly Stark. She testified that she had been convicted of three DUI offenses, the most recent being in October, 1999, at which time she had her son on her lap. She testified that after this incident, she entered Quest Deliverance House, where she remained for 30 days. While she successfully completed the program, she stated that she had relapsed since completion of her treatment in February of 1998. She admitted that she had been drinking on and off since February of 1998, and drank when her son was with her. Appellant also testified concerning her mental health problems. She testified that her main problem is that she enters a catatonic state of some type, causing numerous hospitalizations. In the three to four months preceding trial, appellant guessed she had been hospitalized approximately five times. Appellant admitted that while the child was with her, she allowed the father to have contact with him, despite a no-contact order. She admitted that the father continued to be violent towards her, and some of the violence occurred while the son was with them. She admitted that he broke her arm on one occasion, resulting in surgery. Shortly thereafter, she engaged in sexual intercourse with the father, following which he punched her, leaving bruises on her face. Appellant's case manager with NOVA also testified. He stated that appellant had a long history of non-compliance with the agency regarding her mental health appointments and drug and alcohol treatment. A counselor from Quest Deliverance House testified that appellant had been diagnosed as alcohol dependent and referred to treatment. She struggled through the program, but ultimately did complete the program. While she had been told to return to residential treatment if she ever relapsed on alcohol, Quest had no further contact with appellant after her discharge in February of 1998. Tammy Lowe, appellant's former DHS social worker, testified that she was assigned to the case in November of 1996, through March of 1997. She testified that there were concerns of violence between the parents, and that appellant has significant mental health and psychiatric problems. Appellant would experience breakdowns where she would become comatose. Due to comatose breakdowns, appellant was hospitalized twice during the time period on which Ms. Lowe had the case. Marge Kazlauskas, the on-going DHS social worker, also testified concerning her involvement with the family since March of 1997. During the time in which she had the case, at least two physical altercations occurred between appellant and her husband, and appellant had been hospitalized at least four times. Appellant had stated in the past that she was going to divorce the father, but never followed through. She did not feel the child could be placed with either parent due to the father's complete failure to comply with the case plan, appellant's mental health issues, and the continuing violence between the parents. There was abundant evidence to support the court's finding that the child could not be placed with appellant within a reasonable time. DHS attempted on two occasions to return the child to the mother's custody, and on both occasions he had to be removed soon thereafter. The evidence reflected that appellant continued to have on-going problems with alcohol and mental health issues which where not addressed. The assignment of error is overruled. The judgment of the Stark County Court of Common Pleas, Family Court Division, is affirmed. By GWIN, P.J., HOFFMAN, J., and EDWARDS, J., concur

2022-11-23 16:02:00.288613+00

Nichols

Nichols, Judge, delivered the opinion of tlie court: Plaintiff James E. Jones, a civilian employee of the United States Army Materiel Command (AMC) brings this action to recover losses incurred by him as a result of his reduction in grade from the position of supervisory contract specialist — GS-15, step 6, to the position of commodity program management specialist — GS-14, step 10, with salary retention rights for two years. This was done in course of a reduction in force associated with a reorganization. We have jurisdiction under 28 U.S.C. § 1491. Plaintiff has contended that his reduction in grade was improper because: 1.) the “competitive levels” used in the reduction in force were unduly restrictive, 2.) in the reorganization an excessive number of supervisory positions were reserved for military incumbents, leaving too few for civilians at the GS-15 level, and 3.) the Army, in violation of its own regulations relied on evidence of an ex parte nature made available some six months after the oral hearing of his administrative appeal. We consider only the latter contention in arriving at our decision. The two former are not urged before us except as background. The relevant facts are as follows: Mr. Jones accepted his reduction in grade under protest and on May 25,1970, filed an appeal through the Commanding General to the Chief of Staff, seeking restoration to a GS-15 position in the Directorate of Eequirements. His ap*546peal was referred to a Grievance Examiner. The function of the Grievance Examiner in cases such as this is to hear evidence and on the basis of such evidence to provide the agency with a recommended decision. Such decision is not binding on the agency. However, as we shall later see in detail, the agency acts on evidence developed by the Grievance Examiner in its disposition of the case. The right of the plaintiff to challenge the policies reflected in issues 1.) and 2.) in the grievance procedure was not contested at any point and must be assumed here. The Grievance Examiner held a formal hearing on October 21-22, 1970, at which Messrs. Bowman and Schaeffer were produced and testified for the defendant, saying that the position or positions plaintiff claimed a right to were earmarked for military personnel in the AMC reorganization in order to provide a “rotation base” which was necessary to satisfy the training requirements of such personnel. The Report of the Grievance Examiner, dated April 20, 1971 stated that the evidence considered therein had been developed through correspondence, personal interviews, personnel records, and telephone communications as well as the formal hearing. On the basis of such evidence the report concluded that: (1) Mr. Jones’ reduction in grade was the result of unduly restrictive competitive levels, (2) that the additional military positions were properly established, and (8) that due to a procedural error in the reduction in force notice, plaintiff should receive a 15 day extension of time to appeal to the Civil Service Commission (CSC) commencing upon his receipt of an amendatory notice advising him of such right. This was never done but the omission is not heavily relied on here and need not be considered further. The Grievance Examiner’s Report of Inquiry was referred to the Deputy Chief of Staff for Personnel who had the responsibility of deciding the case. By letter dated April 20, 1971, his office asked AMC to provide further justification for each of the positions converted to military occupancy in the reorganization since the Report of Inquiry did not establish that each individual position was necessary for purposes of providing a “rotational base”. *547Mr. Robert Velthuis, Chief Civilian Personnel Officer responded for AMC. He stated that the “rotational base” justification advanced by the defendant’s witnesses at the hearing was the result of a misunderstanding on their part. Mr. Velthuis justified the designation of the positions in question for military occupancy on the grounds that these were “key procurement positions” within the meaning of Department of the Army Regulations, AR 614-133. Since such information was not known to the plaintiff or the Grievance Examiner at the time of the hearing, the case was remanded to the Grievance Examiner. Upon receipt of a copy of Mr. Velthuis’ letter, furnished to him for comment, Mr. Jones objected to the attempt to reopen the case for the introduction of new evidence in a letter dated June 8, 1971, which read in part as follows: b. The new information requested by ACSFOR is the same information that I requested in my letters of 27 and 29 April 1970, and again at the hearing. Management did not provide the information in response to my request and should not be permitted to introduce it now. c. DCSPER’s remand is based upon information furnished by 1st Indorsement from Civilian Personnel Office, AMC dated 30 April 1971 signed by Robert Velthuis. Mr. Robert Velthuis was not sworn as a witness at the hearing attending the appeal nor does the indorsement show that the information contained therein represents Mr. Velthuis personal knowledge. Mr. Velthuis was available at the time of hearing. He could have testified and subjected himself to cross examination. Instead he designated Mr. Bowman to represent AMC. Furthermore, the Civilian Personnel Office at all times since the close of the hearing has had a complete set of the grievance record and never pleaded error until the case was remanded by DCSPER, 21 May Í971. Their request to respond at this late date would violate my right to a fair and impartial hearing and decision on the merits of my appeal. If Mr. Velthuis’ statement is to be considered, I must be allowed an opportunity to meet and rebut this new challenge. d. If the case is reopened over my objections I would expect and request that those officials that made the decisions as to the positions to be filled by military personnel, be called to testify as to the need, justification and basis for their decision in each case. I would also expect and *548request that the members of the HQ Reorganization Committee mentioned in the 1st Indorsement, dated 30 April 1971, be identified and called as witnesses. e. Repeated efforts on my part, both before and during the hearing, to identify and have available for questioning, the personnel that made these decisions, produced only two names, Mr. Bowman of the Civilian Personnel Office and Mr. Schaeffer of the Manpower Office. Both of these stated that they could speak with authority on this matter. The transcript of the hearing contains some 10 or 12 pages of testimony on the question of military positions, all of which indicates that the need for a rotational base was the basis for the decision. It now appears from the statements in the 1st Indorsement, dated 30 April 1971, that the rotation base and training requirements had no bearing on the decision but that the real reason was the fact that the positions met the criteria for designation as Key Procurement Position under AR 614r-133. To this extent, Mr. Velthuis’ statement appears to impeach the testimony of his own representative. * * * * * 4. From the foregoing it should be quite apparent now that the decision to place military personnel in the positions in question was an arbitrary one based solely on someone’s desire to place all of the military personnel assigned to the Directorate vin key positions, DOD and DA policy to the contrary notwithstanding. DCSPER letter of 20 Apr 71 supports this conclusion. 5. This case should not be reopened but should 'be decided on its merits without further delay. I submit that the information now available warrants an immediate decision in my favor. James E. Jones The Grievance Examiner proceeded to consider the new evidence without reopening the hearing, and filed an Amendment to the Report of Inquiry. He found that the “rotational base” testimony of Mr. Schaeffer and Mr. Bowman at trial was more credible than Mr. Velthuis’ post hearing justification of the military slots as “key procurement positions”. The report went on to conclude that the “rotational base” justification was contrary to regulations and that therefore the Division and Branch Chief positions should be reassigned to civilians, one of whom should be the plaintiff. Following the issuance of the Amendment to the Report of Inquiry, Mr. Velthuis; by letter dated'June 28, 1971, fur*549nished the office of the Deputy Chief of Staff for Personnel with comments on the Grievance Examiner’s amendments which were intended to clarify his earlier post hearing letter. This communication was never disclosed to the Grievance Examiner or to the plaintiff. Plaintiff was informed of the Department of the Army’s decision by a letter dated August 9,1911, from D. S. Euben-stein, Acting Director of Civilian Personnel. The decision upheld Mr. Jones’s reduction in grade concluding that: a. the competitive levels used were not unduly restrictive, 'b. that the additional military positions were justified as “key procurement positions”, and c. that there was no procedural error in the reduction in force notice. Plaintiff appealed this decision to the Secretary of the Army who affirmed it by letter dated November 9,1971. We conclude that the Department of the Army’s decision suffers from the fatal flaw of failure to comply with the applicable procedural regulations relating to evidence utilized as the basis of decision. The relevant section of defendant’s Grievance and Appeal Procedures, CPE E.2, revised June 1962, provides as follows: APPENDIX I * * * * * 6. HEARING Procedures. * * * b. The Grievance Examiner will advise participants as follows: sfs íJj >¡« sfc (2) Of their obligation to— (b) Introduce all evidence or other testimony at the hearing. In this connection, it is important for all persons to be advised that no pertinent evidence should be withheld since in case of review by high authority, such review is made on the basis of the original record, unless new evidence not possessed at the time of the hearing is subsequently introduced. * ❖ * * * The Department of the Army violated this regulation by using Mr. Velthuis’ post hearing justification of the additional military positions as “key procurement positions” as *550the basis of its decision. Such evidence could not be considered on the basis of the exception in the regulation concerning evidence not possessed at the time of the hearing since this was not the situation. Such evidence was available at the time of the hearing before the Grievance Examiner, as was Mr. Velthuis. It was apparently just more convenient to send subordinates who testified, but who proved to be ill informed about the policies involved. In fact, plaintiff had requested, prior to the hearing, that he be provided with all pertinent data justifying the 13 specified positions for military as opposed to civilian occupancy, a matter which was vital to the determination of his case and which should have been provided him under the Army’s discovery regulations pertinent to civilian grievances and appeals. CPE. E-2, §§ 5c.; 5d.(l) (1962). Defendant in effect repudiated its witnesses at the hearing and proposed a disposition of the case on grounds unknown to them. Assuming arguendo it had inherent power to reopen an obviously defective and insufficient investigation, it should have reopened the proofs and given plaintiff the same opportunity to cross examine the new witness Velthuis that he had exercised with respect to the repudiated ones. The procedural irregularity spares us the necessity of considering plaintiff’s other arguments since such defect renders an adverse personnel action, such as plaintiff’s reduction in grade, void ah initio. Service v. Dulles, 354 U.S. 363 (1957); Vitarelli v. Seaton, 359 U.S. 535 (1959); Greene v. United States, 376 U.S. 149 (1963); Chisholm v. United States, 149 Ct. Cl. 8 (1960); Garrott v. United States, 169 Ct. Cl. 186, 340 F. 2d 615 (1965). This is not an instance of a court relying on a mere technicality in arriving at its result. Defendant need not have opened up its policies respecting administrative slots for its uniformed personnel, to this kind of inquest, but having-done so, it had to adhere to its commitment. Defendant’s regulation requiring a decision based solely on the record is an administrative promulgation of a procedural right long recognized as essential to our Anglo-American system of justice. Although the Army personnel officers involved, no doubt acted in good faith (as personnel officers usually do), *551we would be making a mockery of administrative adjudication should we arrive at a different result in this case. The defendant’s cross motion for summary judgment is denied. The plaintiff’s motion for summary judgment is allowed. Judgment is entered for the plaintiff. The determination of the amount of recovery is reserved for further proceedings in accordance with Eule 131 (c).

2016-07-06 06:36:17.992251+00

BeowN

This is an appeal from a sentence imposed by the Painesville Municipal Court, after a jury found the defendant, appellant herein, guilty of the charge of operating a vehicle while under the influence of intoxicating liquor, in violation of Section4511.19, Revised Code. It should be noted that this section of the Code defines two offenses. State v. Wilgus, 31 Ohio Opinions, 443. Defendant was charged only with operating. Defendant claims that the verdict was against the manifest weight of the evidence; that the charge to the jury was erroneous and prejudicial; and that the judgment of the court below is contrary to law in other respects. Specifically, the defendant claims that the two state highway patrolmen in their testimony differed in recollecting the test reading on the alcometer machine. We find no such difference. The testimony appears to us to be substantially in agreement and to the effect that defendant when examined was under the influence of intoxicating liquor. However, if there were no such substantial agreement, this would go to the weight of the testimony only and would not raise a reasonable doubt as a matter of law. The defendant argues also that there is no evidence upon which the jury was justified in finding that he was driving the car while drunk. He takes the position that when arrested he was asleep in the car parked at the road's edge, and that no one saw him driving the car prior to his arrest. Defendant argues that the evidence bearing on whether he was under the influence of intoxicants when he was arrested, interrogated, observed, examined and tested was insufficient and was not properly introduced. We have examined the record in this regard and conclude that the testimony of the arresting officers as to the appearance and actions of the defendant at the time of the arrest was some evidence upon which a jury could rightly rely in concluding that the defendant was under the influence of intoxicants at the time of his arrest. This testimony was properly submitted and admitted. *Page 3 State v. Neff, 104 Ohio App. 289; State v. Steele, 95 Ohio App. 107. The opinion of the officers that the defendant was under such influence was properly admitted after a foundation had been laid for the testimony and after the officers had been properly qualified as able to form and express such opinion. The evidence of the results of the chemical test (alcometer) given to the defendant at that time was properly introduced and has probative value. It was proved that the test was a recognized scientific inquiry into the problem under investigation; that it was given in the regular manner; that a test reading of 0.15 is recognized as a calibration reading usually identified with the degree of drunkenness in which there is definite inability to control a motor vehicle; and that the defendant's test showed 0.17. We conclude that the evidence that the defendant was under the influence was sufficient in quantum and properly introduced. The additional questions of whether the defendant was actually operating the car and whether he was operating the car while under the influence of intoxicants must be answered by the evidence. Defendant admitted that he drove the car. We are aware that the corpus delicti cannot be proved by extrajudicial confessions alone. City of Columbus v. Glover, 73 Ohio Law Abs., 430; 15 Ohio Jurisprudence (2d), 622, Section 455. However, the defendant took the stand and admitted that he was driving the car; that he drove it to the position where he was found seated behind the wheel in a recognizably drunken condition; and that the driving had occurred after 9:00 p. m. The arrest took place between 9:30 and 10:00 p. m. This eliminated the serious question of chronology present inCity of Columbus v. Samuels, 112 Ohio App. 28, upon which case defendant relies. In that case, there was no relationship between the time of the driving and the time when evidence showed the influence of intoxicants. Clearly, there must be a chronology which justifies the jury in finding beyond a reasonable doubt that the drunkenness existing at the time of the evidence on that subject existed at the time of the defendant's driving as charged. We are aware that the state of intoxication may have been greater when the defendant was discovered and examined than it was one hour before when he was driving. *Page 4 But the evidence before this jury was sufficient to justify the verdict here. We also find that the jury was properly charged, and that no other error assigned is well made. The judgment is affirmed. Judgment affirmed. DONAHUE and GRIFFITH, JJ., concur.