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2016-07-06 06:36:18.978317+00

Kilbane

* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (2000), 87 Ohio St.3d 1494, 722 N.E.2d 527. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 739 Appellant, Kronoslav Muller, claims Judge Deborah A. LeBarron erred in denying his motion to withdraw his 1996 plea of no contest and vacate his conviction for domestic violence. He contends that then Acting Judge William Munroe failed: (1) to inform him of the consequences of his plea and the possibility of deportation; (2) to provide him with an interpreter so that he could understand the proceedings; and (3) to comply with Crim.R. 11, resulting in a plea that was neither knowingly or intelligently given. For the following reasons, we agree, reverse and remand. Muller entered this country from Croatia through a visitor's visa on January 26, 1994 and was to leave before July 26, 1994. His stay was extended through a plea for political asylum and he remains to this day seeking permanent resident status. Sometime before June 1996, however, Muller had married Mevlida Osmic and, along with her adult son, resided at 51 East 242nd Street in Euclid, Ohio. On June 22, 1996, Mrs. Muller claimed Muller hit her and threatened her with a pistol. He was arrested and charged with one count each of domestic violence; aggravated menacing; and discharging a firearm, all first degree misdemeanors. On June 25, 1996, a motion for a temporary protection order was filed by Mrs. Muller and granted. Unable to make the bond of $27,000, Muller remained in *Page 740 jail, but Judge Niccum granted him a continuance until July 11, 1996, in order to obtain the counsel of his choice. On July 11th, Muller's counsel appeared in court and filed a series of motions: (1) a motion for discovery, (2) a motion to reduce bond, (3) a motion for an interpreter, and (4) a motion to record all of the proceedings. The motion to reduce bond was denied while the remaining motions never received a ruling. On July 17, 1996, Muller, before then acting Judge William Munroe, and, pursuant to a plea bargain, entered a plea of no contest to the charge of domestic violence and the remaining two charges were dismissed. The acting judge then sentenced Muller to thirty-six days in jail, credited the twenty-six he had already served, and suspended the remaining ten days. Muller was also fined $350. In June 1997, the Mullers divorced and Muller is now married to an American citizen. On April 24, 1998, twenty-one months after Muller was sentenced, he filed a motion to withdraw his plea pursuant to Crim.R. 32.1. On May 6, 1998, Euclid filed an opposing motion. On May 13, 1998, as part of his response to (Euclid's) motion in opposition to withdraw plea, Muller provided an affidavit averring the fact that he is not a U.S. citizen.1 His motion also included a request for an oral hearing, which would have brought to the attention of the judge Muller's level of proficiency in English as well as his alien status. Muller's motion was denied on May 14, 1998. There is no transcript of any court proceedings in this case. Muller claims no recordings were ever made. Euclid counters that the tapes from the arraignment of June 25, 1996 are no longer available due to age and/or reuse. It does not, however, explain the absence of the July 17, 1996 sentencing recording. Muller assigns three errors for our review. His first assignment of error states: "I. The successor trial judge erred in denying appellant's motion to withdraw plea and vacate conviction and denying appellant an oral evidentiary hearing where the predecessor trial court failed to advise appellant of the immigration consequences of his no contest plea as required under O.R.C. 2943.031." Muller asserts, pursuant to R.C. 2943.031, that the acting judge committed reversible error when he failed to inform him of the consequences of his plea as it pertained to citizenship. Specifically, Muller contends he was not informed that his no contest plea may have the consequence of deportation since he was not a U.S. citizen and had no legal status in this country. *Page 741 Euclid counters, by affidavit, that on arraignment days Judge Niccum routinely addressed everyone in the courtroom of the Crim.R. 11 rights, in addition to notice required under R.C. 2943.031 and, moreover, Muller never proved to Judge LeBarron he was not a U.S. citizen. The record below contains Muller's affidavit concerning his non-citizenship and, during oral argument, Euclid conceded that he is indeed not a United States citizen. R.C. 2943.031 provides in pertinent part: "(A) Except as provided in division (B) of this section, prior to accepting a plea of guilty or a plea of no contest to an indictment, information, or complaint charging a felony or a misdemeanor other than a minor misdemeanor if the defendant previously has not been convicted of or pleaded guilty to a minor misdemeanor, the court shall address the defendant personally, provide the following advisement to the defendant that shall be entered in the record of the court, and determine that the defendant understands the advisement. ""If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.' "Upon request of the defendant, the court shall allow him additional time to consider the appropriateness of the plea in light of the advisement described in this division. "* * * "(D) Upon motion of the defendant, the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty or no contest and enter a plea of not guilty by reason of insanity, if, after the effective date of this section, the court fails to provide the defendant the advisement described in division (A) of this section, the advisement is required by that division, and the defendant shows he is not a citizen of the United States and that the conviction of the offense to which he pleaded guilty or no contest may result in his being subject to deportation, exclusion from admission to the United States **** "(E) In the absence of a record that the court provided the advisement described in division (A) of this section and if the advisement is required by that division, the defendant shall be presumed not to have received the advisement." (Emphasis added.) The lack of any transcript prevents us from determining whether either judge at either the arraignment or sentencing failed to inform Muller of the possibility of deportation prior to the taking of his plea, and subsequent conviction. Nothing in the record reflects that Muller, incarcerated for three days, was even present *Page 742 during the judge's pre-arraignment discussion of rights etc., or, if present, understood what was being said due to a language barrier. Euclid points out that in Muller's motion to record proceedings, his attorney expressly acknowledged that Muller desired a recording of the proceeding so that "he may defend himself in any immigration proceedings which may result depending on the disposition herein." This court has held that: "[I]n order for R.C. 2943.031 advisements to apply, the record must affirmatively demonstrate that a defendant is not a citizen of the United States through affidavit or other documentation. State v. Thomas (Mar. 18, 1993), Cuyahoga App. Nos. 63719, 63720, unreported [1993 WL 76892]. This court has held further that there must be some showing of prejudicial effect caused by the trial court's failure to advise a defendant with respect to possible deportation before a motion to vacate a guilty plea will be granted. State v. Guild (Jan. 13, 1994), Cuyahoga App. No. 63407, unreported [1994 WL 11688]." State v. Isleim (Aug. 18, 1994), Cuyahoga App. No. 66201, unreported, 1994 WL 449387. Euclid contends that even if Muller is not a U.S. citizen, he is still required to provide this court with evidence of the prejudicial effect to him resulting from the alleged failure to advise. Conviction for domestic violence, a petty offense, it argues, does not mandate deportation and, absent a deportation order, Muller has suffered no prejudice. Muller asserts that due to this conviction, he is facing possible deportation from the U.S. pursuant to Section 1230, Title 8, U.S.Code. Muller was in this country under "nonimmigrant" status, and, as a result, was given a voluntary departure date of May 20, 1998. Subsequent I.N.S. proceedings are not part of our record, but Muller still resides in this county and has not submitted any evidence of a deportation order. His situation, however, differs from earlier ones considered by this court in that the absence of such deportation notice is not dispositive of lack of prejudice. In Isleim, supra, the defendant had permanent resident status but was denied naturalization because of his conviction. This court held he could still reapply or appeal the decision and found no prejudice. In Guild, supra, the defendant failed to include any affidavit or documentation concerning lack of citizenship and had resided in Cuyahoga County in excess of twenty years. There appeared no reason to suggest that a judge's failure to advise Guild about deportation was prejudicial error.Id. In State v. Browley (Sept. 29, 1994), Cuyahoga App. No. 66038, unreported, 1994 WL 530907, there was, again, no evidence concerning lack of citizenship, and Browley, a long time resident of Cuyahoga County, failed to demonstrate how he would suffer any prejudice. *Page 743 Recently, in State v. Felix (Apr. 17, 1997), Cuyahoga App. No. 70898, unreported, 1997 WL 186838, the record revealed that the trial judge had failed to advise Felix of the possibility of deportation prior to taking his plea. The then incarcerated defendant presented the trial judge with documentation of his non-citizenship and a deportation order based upon that conviction, but his motion to withdraw his plea was denied. On review, this court reversed and remanded because there was more than sufficient evidence that his conviction "may result in his being subject to deportation." With Muller, however, we encounter a person who has no legal right to remain in this country unless he changes his status from non-immigrant to immigrant. He entered his plea in July 1996 when domestic violence was not a basis for deportation. Amendments to the Section 1227, Title 8, U.S. Code, effective September 26, 1996, added domestic violence as a deportable offense for a legal immigrant. The effect of that offense on one seeking immigrant status is clearly prejudicial. Therefore, any failure by either judge to advise Muller on the subject of non-citizenship would be error. The first assignment of error is well taken. The second assignment of error states: "II. The successor trial judge erred in denying appellant's motion to withdraw his plea and vacate conviction where the predecessor trial court failed to advise appellant of his rights pursuant to Criminal Rule 11, and failed to appoint an interpreter rendering appellant's plea involuntary and unknowing." Muller argues that his guilty plea was not knowingly, voluntarily or intelligently given because he was denied the assistance of an interpreter or given an explanation of his rights in a language he could understand. He alleges a failure to comply with Crim.R. 11(D), and argues that, pursuant to Crim.R. 32.1, his conviction should be vacated "to correct a manifest injustice". The city of Euclid maintains that Judge Niccum's recitation of rights "en masse" was sufficient to protect Muller's rights of due process as codified under Crim.R. 11 because the interpreter was requested only for assistance at trial, and Muller's attorney was able to communicate with him in Croatian during the plea and sentencing. Crim.R. 11(E) requires in pertinent part: "In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such pleas without first informing the defendant of the effect of a plea of guilty, no contest, and not guilty." In Garfield Heights v. Brewer (1984), 17 Ohio App.3d 216, 17 OBR 458,479 N.E.2d 309, second paragraph of the syllabus, this court determined that: *Page 744 "Crim.R. 11(E) requires that the record affirmatively demonstrate that a plea of no contest was entered voluntarily, intelligently and knowingly. A meaningful dialogue between the court and the defendant is required whenever the possibility of incarceration exists." An intelligent and knowing waiver will not be presumed from a silent record. Id. "This rule imposes a mandatory duty on the trial court to advise the accused, and the record must affirmatively demonstrate that the court discharged that duty." Cleveland v. Technisort (1985),20 Ohio App.3d 139, 20 OBR 172, 485 N.E.2d 294. The burden rests on the City of Euclid to demonstrate a valid waiver of constitutional rights.State v. Summers (1981), 3 Ohio App.3d 234, 3 OBR 265, 444 N.E.2d 1041; Brewer, supra. A judge, in taking a plea, must substantially comply with Crim.R. 11(E), failure to do so constitutes reversible error. Garfield Heightsv. Mancini (1997), 121 Ohio App.3d 155, 699 N.E.2d 132. 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, 108,564 N.E.2d 474, 476. Therefore, upon review "a finding of compliance with the rule can be based upon a consideration of the totality of the circumstances surrounding the entry of the plea." State v. Carter (1979), 60 Ohio St.2d 34, 14 O.O.3d 199, 396 N.E.2d 757. See, also,State v. Nero, supra. Whenever a trial court violates Crim.R. 11(E), it commits reversible error. Cleveland v. Wanzo (Sept. 8, 1998), Cuyahoga App. No. 73264, unreported, 1998 WL 546167. As stated above, there is neither a transcript memorializing the plea proceedings nor documentation of Muller's waiver of his constitutional rights. Summers, supra. Accordingly, Muller's second assignment of error is well taken. Muller's third assignment of error states: "III. The successor trial judge erred in denying appellant's motion to withdraw plea and vacate conviction where the predecessor trial court failed to record the proceedings and failed to enter a final judgment of conviction, thus there is no final appealable order." Muller seeks to counter any claim that his motions were untimely made by suggesting that no final judgment of his plea and conviction was ever documented in the Euclid court. He suggests that the judge's notations on the jacket of his files are not journal entries. Euclid counters that the jacket entries are properly time stamped and filed with the clerk of courts. It is a well established and long standing principle that a judgment of a trial court must be journalized in order to be final as the trial court speaks only *Page 745 through its journal. State ex rel. Indus. Comm. v. Day (1940),136 Ohio St. 477, 17 0.0. 86, 26 N.E.2d 1014, paragraph one of the syllabus. This rule must be adhered to as its requirements "are not met by a mere written minute or an oral pronouncement by a court or judge without the preparation and filing of a journal entry." Id. at paragraph two of the syllabus. Furthermore, in order for an appellate court to obtain subject matter jurisdiction, the judgment entry must be file stamped. State v. Domers (1991), 61 Ohio St.3d 592, 575 N.E.2d 832. The July 17, 1996 plea and sentence were properly journalized in the following entry: "DEFT'S PLEA-NO CONTEST/FOUND GUILTY. FINE-$350 COSTS — $55 36 DAYS CITY JAIL-CREDIT FOR 26 DAYS SERVED-DAYS SUSPENDED. CONDITIONS OF PROBATION-NO FURTHER VIOLENCE." Muller's third assignment of error is overruled. Judgment reversed and cause remanded. 1 This pleading may not have reached the judge before she rendered her decision. KARPINSKI, P.J., concurs. MICHAEL J. CORRIGAN, J., dissents.

2016-07-06 06:36:19.442184+00

Reece

This cause was heard upon the appeal of William Nickison III ("respondent") from the judgment of the Summit County Court of Common Pleas, Probate Division, holding that respondent's consent is not required in the adoption of his minor children by the appellee, Paul Lauck ("petitioner"). Respondent and Patricia Lauck (f.k.a. Patricia Nickison) were married in March 1982. They have two children, Jennifer M. and Kenneth Lloyd Nickison, born August 8, 1982, and July 10, 1984, respectively. The marriage was dissolved May 9, 1985, with Patricia receiving custody of the children pursuant to the dissolution decree. Patricia married petitioner on February 14, 1987. Fourteen days later, on February 28, 1987, respondent began serving a term of incarceration as a result of a criminal conviction. He is currently confined to the London Correctional Facility, becoming eligible for parole in 1995. As the children's stepfather, petitioner filed for their adoption on October 10, 1990. Petitioner alleged, pursuant to R.C. 3107.07(A), that respondent's consent to the adoption was not necessary because respondent had failed, without justification, to support or communicate with the children during the one year preceding the filing of the petition. Thereafter, respondent filed his objections to the adoption. A hearing on respondent's objections was held before a referee on June 11, 1991. At the commencement of the proceedings, the parties stipulated that respondent's failure to provide support for the children was justified due to his incarceration. The hearing proceeded solely on this issue of respondent's communication with his children. On August 5, 1991, the referee's report was filed with the court. The referee found that respondent failed, without justification, to communicate with his children for the requisite statutory period. Therefore, pursuant to R.C. 3107.07(A), the referee found that respondent's consent is not required, recommending that the adoption should proceed. On November 25, 1991, the court, over respondent's timely objections, adopted the findings and recommendations of the referee. It is from this judgment that the respondent appeals raising two assignments of error. *Page 350 Assignment of Error I "The probate court erred as a matter of law by placing the burden of proof on respondent-appellant to show that any failure to communicate with his children was due to justifiable cause." Under R.C. 3107.06(B), the adoption of these minor children requires the consent of the children's father. However, pursuant to R.C. 3107.07(A), such consent is not necessary when "* * * the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner." In application, R.C. 3107.07(A) requires the court to make a two-part determination. First, the court must determine whether the petitioner has proven by clear and convincing evidence that the natural parent has failed for the one-year period to either support or communicate with his minor child. Once either a failure to support or to communicate has been found, the court must then decide whether such failure by the parent was justified. Respondent contends the court erred in placing upon him the burden to prove that his failure to communicate with his children was justified. In support of his position, he cites to the referee's report which states: "In the case at bar, the petitioner has met his burden by credibly demonstrating to the court that there was an absence of communication between the natural father and the minors from October 9, 1989 to October 10, 1990. The father has failed toshow justification as the petitioner was able to prove by clearand convincing evidence that said failure was withoutjustification." (Emphasis added.) In construing R.C. 3107.07(A), the Ohio Supreme Court originally stated: "The party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the parent failed to communicate with the child during the requisite one-year period and that there was no justifiable cause for the failure of communication." In re Adoption of Holcomb (1985),18 Ohio St.3d 361, 18 OBR 419, 481 N.E.2d 613, paragraph four of the syllabus. See, also, In re Adoption of Masa (1986), 23 Ohio St.3d 163, 23 OBR 330, 492 N.E.2d 140, paragraph one of the syllabus (extending the holding in Holcomb). Holcomb and its progeny have been criticized for placing upon the petitioner in an adoption proceeding the burden to prove that the parent was not justified in failing to support or communicate with his child. The requirement that the petitioner prove a negative has been called an "oppressive and *Page 351 unworkable rule." See In re Adoption of Bovett (1987), 33 Ohio St.3d 102,106-107, 515 N.E.2d 919, 924 (Douglas, J., concurring). In Bovett the court was urged to reconsider its holding inHolcomb and Masa, requiring the natural parent to prove the "without justifiable cause" portion of R.C. 3107.07(A). While declining to reverse its previous decisions, the court did hold that: "Once the petitioner has established, by clear and convincing evidence, that the natural parent has failed to support the child for at least the requisite one-year period, the burden of going forward with the evidence shifts to the natural parent to show some facially justifiable cause for such failure. The burden of proof, however, remains with the petitioner."Bovett, supra, at paragraph two of the syllabus. Thus, while the petitioner in an adoption proceeding has the burden to prove both steps under R.C. 3107.07(A), a natural parent may not simply remain silent. Once the petitioner has presented clear and convincing evidence that the parent has failed to support or communicate with his child for the statutory period, the parent then has the "burden of going forward with the evidence * * * to show some facially justifiable cause for such failure." Id. at 104,515 N.E.2d at 922. In the present case, we find no error in the referee's statement of the law as it pertains to respondent's burden to go forward with the evidence of justification. Accordingly, respondent's first assignment of error is overruled. Assignment of Error II "The probate court's determination that respondent-appellant's failure to communicate with his children was without justifiable cause was against the manifest weight of the evidence." In addressing respondent's second assignment of error, we are mindful that in civil cases "[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v.Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261,376 N.E.2d 578, syllabus; Shear v. West Am. Ins. Co. (1984),11 Ohio St.3d 162, 164, 11 OBR 478, 480, 464 N.E.2d 545,547. However, when the requisite degree of proof is clear and convincing, the evidence must be sufficient to "produce in the mind of the trier of facts a firm belief or conviction as to the *Page 352 facts sought to be established." Cross v. Ledford (1954),161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118, paragraph three of the syllabus. In examining the record, our task is to determine whether the trier of fact had sufficient evidence before it to satisfy this heightened burden of proof. Id. at 477, 53 O.O. at 364, 120 N.E.2d at 123. At trial, Patricia testified that she received a letter from respondent early in 1988. In response, she wrote a letter to respondent, dated March 18, 1988, in which she "tried to explain to [respondent] why [she and petitioner] wanted to adopt the kids." Patricia went on to state that "[petitioner] and I made a decision that it was time that we tried to get a good relationship with [respondent] so he wouldn't put us through a court hearing, and he would sign the [adoption] papers." After this initial correspondence, Patricia admitted to throwing away three of respondent's letters received over the following two to three months. Future letters from respondent were refused and returned unopened. Three envelopes and one postcard, postmarked from February 1 through July 14, 1989, were introduced by the respondent. Two of the envelopes were addressed directly to respondent's children. On cross-examination, Patricia admitted that on each of these she wrote "return to sender." Patricia also testified that respondent made telephone calls to her home. The following was elicited on direct examination: "[By Attorney for Petitioner] "Q. Did he [respondent] ever make telephone calls to you from the institution? "[By Patricia Lauck] "A. I began receiving harassing phone calls after we filed the petition. I know that there was one or two prior to that, but I'm not positive of when I received those. Those were collect calls. He didn't ask for anybody. It just said, `M.C.I. Operator. Will you accept a collect call from Bill from a correctional institution?' and I said, `No.'" In explaining why she prohibited respondent's attempts to communicate with his children, Patricia testified that: "We [Patricia and petitioner] had made our decision to adopt the children. They [Jennifer and Kenneth] didn't know who [respondent] was. And I felt that there was no need. And I sent them back to let him know that we just didn't want the communication." *Page 353 Justification of a parent's failure to communicate with his child is shown when there has been "significant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication." Holcomb, 18 Ohio St.3d at 367-368, 18 OBR at 425, 481 N.E.2d at 620; In re Adoption of Hupp (1982), 9 Ohio App.3d 128, 9 OBR 192, 458 N.E.2d 878. In examining whether the parent's failure was justified, the court is not restricted to focusing only on events occurring during the statutory one-year period. The court must also examine preceding events having any bearing on the parent's failure to communicate with his child. See In re Adoption of Shea (July 24, 1990), Franklin App. No. 90AP-245, unreported, at 8-9, 1990 WL 106468. In the case sub judice, the evidence demonstrates that petitioner and his wife made a concerted effort to thwart respondent's efforts at communicating with his children. While they may believe their actions were in the children's best interest, they cannot undertake to prohibit communication and then claim the benefits of their efforts under R.C. 3107.07(A). As a reviewing court, we must be cautious not to substitute our judgment for that of the trial court when there is sufficient competent and credible evidence supporting its findings of fact. State v. Schiebel (1990), 55 Ohio St.3d 71,74, 564 N.E.2d 54, 60. In this case, the evidence does not clearly and convincingly support the court's conclusion that respondent was not justified in his failure to communicate with his children. Accordingly, respondent's second assignment of error is sustained. This case is remanded to the Summit County Court of Common Pleas, Probate Division, to enter judgment in accordance with this decision. Judgment accordingly. CACIOPPO, P.J., and COOK, J., concur. *Page 354

2016-07-06 06:36:19.753485+00

Painter

The courtroom door must remain open. The Ohio Constitution states, as does the Sixth Amendment to the United States Constitution, that a defendant has the right to a "public trial."1 The framers of the Ohio Constitution did not add rights as amendments — they put them right up front in Article I. We have to believe that they meant what they said. While the issue in this case arose not in a "trial" but in a motion hearing, "trial" includes all substantive parts of courtroom litigation.2 Thus, the fact that the problem arose in a pretrial hearing is not material. The requirement that trials be open is not only a criminal defendant's right — it is also the right of the public to see that justice is done. The cases concerning public access to the courts are grounded also in the First Amendment to the United States Constitution and Section 11, Article I, of the Ohio Constitution, the "freedom of the press" provisions. The courtroom door may be closed to anyone only when absolutely necessary, after the trial judge makes a specific finding to that effect. Any closure order must be as narrow as possible under the circumstances. (I also believe that the same rules apply to civil proceedings, because a trial is a public event that is of interest to the entire community — the disinfectant of sunlight applies equally to criminal and civil trials.3) All court proceedings are presumptively open to everyone.4 It is the trial judge's duty to enforce this policy of openness, over the objection of either side, or even despite the agreement of both sides to close a proceeding. The judge's role is to secure not only the parties' rights, but also the right of the public to open proceedings. But the trial judge must control the courtroom. Disruptive persons, whether they be members of the public, media representatives, or friends, family or supporters of the parties, must be dealt with. The right to a trial means the right to an orderly trial. If any people, by noise or behavior, disrupt the proceedings and fail to desist after warning, they may be removed from the courtroom. No one's rights are protected if the judge cannot even hear the testimony. Still, the *Page 216 removal order must be directed at specific persons — those found to be causing the disruption. The problem in this case is that we cannot tell from the record what, if anything, happened to cause a disturbance. An appellate court is limited to the record before it. While it is possible that people were talking, or even yelling, in the courtroom, there is nothing in the record concerning their behavior. After only the colloquy set out in the lead opinion, the judge ordered everyone on one side of the room removed. The dissent states that the record provides support for the removal. I am unable to discover where this alleged support lies. Constitutional rights may not be abrogated by wishful interlineation of the record. To make an appropriate record supporting the removal of unruly persons, the trial judge could have (1) stated the objectionable behavior on the record, (2) given a short warning that disruption would not be tolerated, and then (3) if the behavior persisted, stated that fact on the record and ordered the specific culprits removed. It may be that all those removed were causing problems, but there is nothing in the record to demonstrate that any of them were. Without such a reflection on the record, the removal of spectators violated the defendant's and the public's (the ejected spectators were members of the public) rights. The trial judge may have been justified in removing some or all of those ejected. But we simply cannot find anything in the record to support the removal. Because we are bound by the record, we must reverse. 1 Section 10, Article I, Ohio Constitution. 2 See Waller v. Georgia (1984), 467 U.S. 39, 46-47,104 S.Ct. 2210, 2215-2216; State ex rel. The Repository v. Unger (1986),23 Ohio St.3d 418, 504 N.E.2d 37 (right of public trial extends to pretrial proceedings). 3 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (July 27, 1999), 86 Cal Rptr 778, 1999 Cal. Lexis 4634, Cal. S.Ct. No. S056924. 4 Some hearings are restricted by statute. See, e.g., R.C.3107.17 (adoption). And deliberations, whether of a court or of a jury, are closed. But these are exceptions, and they do not negate the rule that court proceedings are presumptively open.

2016-07-06 06:36:19.805756+00

Duffey

On the record in this case, the application of the assured-clear-distance rule to a vehicle parked in a storage lane or road berm and within the public right of way is not presented. There is no evidence as to the width of the right of way on Beecham Road. A court might take judicial notice that, in general, public right of way exceeds the hard surface pavement of a county road. However, it cannot assume, in the absence of evidence, the right of way of a particular road. For this reason only, and without indicating any further opinion, I agree that assured clear distance should not be considered in this case. As to defendant's breach of a duty of ordinary care, it is well to state again the pertinent facts. Beecham Road is straight for a considerable distance before the point of impact. There are no significant obstructions to sight and only "minor dips" in the pavement. The night was dark and cloudy. There is nothing to indicate that the visibility was poor. The Murray Chevrolet had four headlights from the Pontiac shining directly on it from the front. There is nothing in the evidence as to reflected light, although it is most difficult to believe that this *Page 104 would be completely absent and invisible to an approaching vehicle. In any event, the defendant's testimony is that he was "suddenly blinded" by two headlights at about 100 to 150 feet from the Murray Chevrolet. Obviously then, two of the Pontiac's headlights shone past the Chevrolet and reached in a direct beam 100 to 150 feet down the road toward the approaching defendant's vehicle. As a matter of physical necessity, these headlights would light up the left or road side of the Chevrolet since the Pontiac was only one foot from it and virtually in front. To accept the defendant's testimony requires a finding that despite the beams of these two lights and their reflections on the road and atmosphere, together with the reflections from the other lights on the ground, air and Chevrolet, including the light provided by his own headlights, defendant saw absolutely nothing as he approached the Chevrolet prior to the moment that he was "blinded," and further that a reasonably prudent driver could not have seen anything. To find that defendant was not negligent requires not only the acceptance of that position but the further finding that upon being "blinded" the defendant in the exercise of ordinary care could not have avoided drifting to his right off the pavement and colliding with the the parked Chevrolet some 100 to 150 feet further on. Conceding that the evidence lacks precision, I still find this factual analysis incredible. An argument as to contributory negligence might be made as to Mrs. Murray. However, the trial court in its findings of fact and conclusions of law did not pass on contributory negligence. I cannot say on this record that Mrs. Murray was negligent as a matter of law. As to Mr. Murray's action in case No. 7153, it is for property damage to the Pontiac. Mr. Murray was not driving and was not present at the scene. He is simply the owner of the vehicle. Accordingly, I believe the judgment should be reversed. *Page 105

2016-07-06 06:36:20.022238+00

Fain

Defendant-appellant James Davis appeals from a judgment rendered in favor of plaintiff-appellee Carl Oda and against Davis in the amount of $1,050, together with interest and costs. Davis contends that the trial court erred by failing to grant his motion to dismiss this action upon the ground that the real party in interest, being the Davis-Linden Building Company ("Davis-Linden"), an Ohio partnership, was not a party. We conclude that Davis's motion was well taken, and that either the Davis-Linden partnership should have been joined as a party, Oda's representative capacity should have been reflected in the pleadings and judgment, or this action should have been dismissed. Accordingly, the judgment of the trial court is reversed, and this cause is remanded for further proceedings. I Davis leased space from Davis-Linden in a commercial building located at 400 Linden Avenue, Dayton, Ohio. In February 1991, Davis was served with a notice to leave the premises for failure to pay rent. Thereafter, this action was brought by Oda, in his own name, against Davis, for forcible entry and detainer, and for unpaid rent. In his complaint, Oda was simply set forth as the plaintiff, without any indication that he was acting on behalf of Davis-Linden. He was listed as the only plaintiff. Davis filed a document in several parts entitled "Answer, Jury Request, Motion Memorandum, and Counter-Complaint." Included in his document is the following: "Motion to Dismiss *Page 557 "1. Defendant now moves this Court to Dismiss Plaintiffs [sic] Complaint for the reason that Plaintiff Carl Oda is Not the Proper Party of Interest [sic]. "/s/ James R. Davis "Memorandum "1. The premises occupied by the Defendant is owned by The Davis-Linden Building Corporation. The relationship of the Plaintiff is unspecified and unknown by the Defendant and is therefore misrepresented to the Court and the Defendant." In due course, the court overruled the motion to dismiss, denied the writ because of a failure in the required three-day notice, and reserved the issue of the unpaid rent. Later, the trial court heard the rent issue, and rendered judgment for $1,050, plus interest and costs. The judgment entry recites as follows: "This cause came on for trial before the court on the 20th day of June, 1991, at which time the issues were duly tried, concerning which a decision has been rendered. "It is Ordered and Adjudged that the Plaintiff, Carl Oda, recover of the Defendant, James Davis, the sum of One Thousand Fifty and 00/100 ($1050.00) Dollars with interest thereon at the rate of ten percent (10%) from February 21, 1991, and his costs of the action." From the above-quoted judgment, Davis appeals. II Davis has asserted three assignments of error, as follows: "The trial court erred by not dismissing plaintiff's complaint for want of jurisdiction because plaintiff is not the real party of interest. "The trial court erred by not dismissing plaintiff's complaint because the plaintiff is not the real party of interest. "The trial court erred by rendering a judgment of $1050.00 when the evidence submitted by the plaintiff proved that no agreement between the plaintiff and defendant existed that would sustain such judgment." Essentially, there is but a single claim of error, and that is that the trial court erred by failing to dismiss the complaint for failure to join the real party in interest, and by rendering a judgment in favor of the wrong party. Oda was the managing partner of Davis-Linden, which owned the subject premises and leased them to Davis. The partnership agreement, which was admitted into evidence at the trial, contained the following provision: *Page 558 "Control of the Partnership and all of its affairs shall be in the Partners, who shall have equal rights in the management and conduct of the Partnership investment and activities. In order to simplify the operations of the Partnership, the Partners hereby designate Carl E. Oda as Manager of the Partnership and Donald E. Foucht as Assistant Manager of the Partnership to serve in such capacities until such time as the Partners designate a new Manager and/or Assistant Manager by a vote of FIFTY-ONE PERCENT (51%) in interest, not in numbers, of the Partners. The Manager and Assistant Manager shall receive a salary for serving as such as shall be determined by a vote of FIFTY-ONE PERCENT (51%) in interest, not in numbers. Partners hereby delegate to the Manager of the Partnership the responsibility for the day-to-day management and ministerial acts of the Partnership. "The Manager of the Partnership shall have the right and power to bind the partnership, subject to the conditions and limitations contained in paragraph 8.02 and elsewhere in this Agreement. It is agreed that the general management and final determination of all questions relating to the usual daily business affairs and ministerial acts of the Partnership shall rest in the Manager of the Partnership. In this connection, and not by way of limitation, the Manager of the Partnership is authorized to do any and all things and to execute any and all documents, contracts, evidences of indebtedness, security agreements, financing statements, etc., necessary or expedient to carry out an effectuate [sic] the purpose of the parties as expressed in this Partnership Agreement. All business arrangements entered into shall be on such terms and conditions as generally would be characteristic of a businessman in similar circumstances exercising prudent and sound business judgment. The Manager of the Partnership shall devote such attention, and business capacity to the affairs of the partnership as may be reasonably necessary. In this connection, the parties hereby acknowledge that the Manager of the Partnership manages and may continue to manage other Partnerships and may continue to engage in other distinct or related businesses." Oda also relies upon R.C. 1775.08(A), which provides as follows: "Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument for apparently carrying on in the usual way the business of the partnership of which he is a member, binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter and the person with whom he is dealing has knowledge of the fact that he has no authority." There is no question that Oda had authority to bring an action against Davis, both for eviction and for unpaid rent, on behalf of Davis-Linden. Oda *Page 559 contends that this is what he did, even though the action was brought solely in his name, and the judgment was awarded to him solely in his name, without anything to indicate that he was acting on behalf of the partnership. There seems to be confusion in Ohio as to whether a partnership is a legal entity distinct from the persons or members who comprise it. See 13 Ohio Jurisprudence 3d (1979) 46-47, Business Relationships, Section 929. However, partnerships have been given statutory authority to sue or be sued in their own name. R.C. 2307.24. Thus, it is clear that Davis-Linden could have been made a plaintiff in this action. Although we have found no Ohio cases directly on point, the closest case that we have found is Nationwide Mut. Ins. Co. v.Collins (1985), 23 Ohio Misc.2d 22, 23 OBR 187, 491 N.E.2d 407. In that case, Judge Adrine of the Cleveland Municipal Court analyzed the interplay between Civ.R. 17(A) and 19(A), and held as follows: "When a unitary cause of action is owned by more than one person, each co-owner of that unitary cause of action is a real party in interest with respect thereto, and the action is not brought in the name of the real party in interest unless all such co-owners are joined as co-plaintiffs. But if one such co-owner has not been made a party plaintiff, the failure to prosecute the action in the name of the real party in interest can be cured by the joinder of the absent co-owner. * * *"Id. at 25, 23 OBR at 190, 491 N.E.2d at 410. At most, Oda, being a partner in Davis-Linden, Davis's landlord, would be a co-owner of the cause of action against Davis for non-payment of rent, which is a unitary cause of action. Thus, following the holding in Nationwide Mut. Ins. Co.v. Collins, supra, he could not bring the action on his own behalf unless the partnership, or all of the other partners, were co-plaintiffs. We agree with the reasoning of the trial court inNationwide Mut. Ins. Co. v. Collins, supra. It is especially troubling that Oda has recovered a judgment against Davis in Oda's own name. There is nothing in the judgment entry to reflect that it represents an obligation payable to the partnership. In order to assert their interest in that judgment, Oda's partners would have to look behind the face of the judgment. For that matter, they would have to look behind the face of the complaint, which makes no reference to the partnership, but instead sets up the claim for rent as an obligation payable to Oda, individually, as Davis's landlord. Oda's partners might, or might not, succeed in proving that monies recovered on this judgment represent a business opportunity of the partnership. To do so, Oda's partners would have to make a collateral attack upon the face of the judgment, which declares otherwise, possibly in a foreign jurisdiction required to give full faith and credit to the judgment. Similarly, should the partnership bring an action *Page 560 against Davis, it would not be bound directly by the action in which it was not a party. Davis might or might not succeed in proving, again possibly in a foreign jurisdiction required to give full faith and credit to Oda's judgment, that Oda's recovery of his judgment against Davis bars the partnership's recovery of its own judgment against Davis. The requirement in Civ.R. 17(A) that an action be prosecuted in the name of the real party in interest is intended to avoid exactly these kinds of problems. When an action is prosecuted in the name of the real party in interest, and that party is awarded judgment, the party against whom the judgment is awarded is protected from the possibility of multiple judgments against him. Although the second sentence in Civ.R. 17(A) permits a person acting in a representative capacity to bring suit "in his name as such representative," this is not what Oda has done; there is nothing in either the pleadings or the judgment entry to reflect that Oda is acting in a representative capacity. It may be that Oda need not prove his authority to act in a representative capacity on behalf of the partnership, but the pleadings and judgment must still reflect that he is acting in that capacity, rather than in his individual capacity. To hold otherwise would require persons relying upon the judgment to look beyond the face of the judgment to determine in whose favor the judgment has been rendered. This places an unacceptable burden upon the full faith and credit that must be accorded to judgments under the federal Constitution. We conclude that although Oda clearly had the authority to bring this action on behalf of Davis-Linden, he was required to do so in its name, not in his own name, or at least indicate on the face of the pleadings and judgment that he was acting in a representative capacity on behalf of the partnership. Accordingly, we conclude that Davis's motion to dismiss was well taken, and that the trial court should either have granted Davis's motion or at least allowed Oda some time within which to join Davis-Linden as a party plaintiff, or otherwise to amend his pleadings to reflect that he is acting in a representative capacity on behalf of the partnership. Davis's assignments of error are sustained. III Davis's assignments of error having been sustained, the judgment of the trial court against him in the amount of $1,050, together with interest and costs, is reversed, and this cause is remanded to the trial court with instructions to dismiss the action unless, within a reasonable period of time, Davis-Linden shall be added as a party, or the pleadings shall otherwise be amended *Page 561 to reflect that Oda appears in this action in a representative capacity on behalf of Davis-Linden. Judgment accordingly. WOLFF, J., concurs. GRADY, J., dissents.

2016-07-06 06:36:20.028091+00

Grady

I must respectfully dissent from the decision of the majority holding that the trial court erred in denying appellant Davis's motion to dismiss for failure to comply with Civ.R. 17(A). The general rule implicit in Civ.R. 17(A) is that all co-owners of a single claim are parties united in interest, and as such they must be joined as co-claimants in the same action or the action will not be prosecuted in the name of the "real party in interest." But the second sentence of the rule carves out an express exception, stipulating that a party authorized by statute may sue in his own name as representative of a real party in interest without joining that party to the action. R.C. 1775.08(A) provides that every partner is an agent for the partnership and that the act of every partner binds the partnership, unless, in fact, the partner lacks the authority he purports to have. The Davis-Linden partnership agreement clearly gives Oda the authority to bring this action. Therefore, he brings the action as an agent of the partnership and the judgment he obtained is binding on the partnership in any future action, pursuant to statute. Thus, Oda is a "representative" of the partnership and may, pursuant to Civ.R. 17(A), bring this action in his own name. Oda's complaint styles the action as one brought by him personally, not as the representative of the partnership. However, that is not a defect. Civ.R. 9(A) provides that it is not necessary to aver the authority of a party to sue or be sued in a representative capacity. Furthermore, it is clear that the cause of action is one held by the partnership and that the relief is granted to the partnership and not to Oda personally. Oda will hold any proceeds in constructive trust for the partnership and payment by Davis will discharge his debt to the partnership. There is sufficient unity of parties and interests that any subsequent judgment in favor of Oda, another partner, or the partnership on the same debt will be barred by the doctrine of res judicata, if Davis properly pleads and proves it. Civ.R. 9(A) also provides that when a party "desires to raise an issue as to * * * the authority of any party to sue or be sued in a representative capacity, he shall do so by specific negative averment * * *." Davis, instead, presented *Page 562 his argument in the form of a motion to dismiss, which generally questions the power or jurisdiction of the court. Civ.R. 12(B)(7) specifically concerns the "failure to join a party under Rule 19 or Rule 19.1." Those rules concern parties who are "necessary" or "indispensable" to the litigation. The Davis-Linden partnership is neither because Oda has the contractual and statutory authority to sue in his representative capacity. By presenting his argument as a motion to dismiss instead of by negative averment, Davis has raised issues of jurisdiction and "capacity to sue" that are not contemplated by the "real party in interest" requirement. It may be that the trial court should have treated the motion to dismiss as a "negative averment" and permitted joinder of the partnership pursuant to Civ.R. 20. It didn't, but I see no prejudice to Davis as a result. I would overrule the assignments of error sustained by the majority and affirm the trial court.

2016-07-06 06:36:22.570818+00

Geiger

This matter had its inception in the Probate Court of Franklin county, Ohio. Robert H. Clark died intestate on the 15th day of May 1941, leaving Myrtle A. Clark, surviving spouse, and Roberta Lee Clark, an adopted child 12 years of age, as his only heirs-at-law and next of kin. Orla E. Rickey is the guardian of Roberta Lee Clark appointed as such on the 19th day of May 1941. On August 4, 1941, Orla E. Rickey, the guardian, filed an application in the Probate Court reciting the fact that Roberta Lee Clark, a minor of 12 years, is the adopted child of Robert H. Clark, deceased, she having been adopted by Robert H. Clark in 1929; and that prior to his death Robert H. Clark was divorced from his former wife, one of the adopting parents, and later married Myrtle A. Clark, the surviving spouse. It is alleged that the decedent left certain real estate appraised at $5,800 encumbered by a first mortgage upon which there is a balance owing of approximately $5,143; that in addition thereto there is $500 in cash; that by virtue of Section 10509-54, General Code, 20 per cent of such property was set aside, as exempt from administration, which exemption is for the benefit of the surviving spouse and also for the minor child; and that the minor child has been and is now living with the guardian and has no property other than that which she may receive from this property. The applicant requests the court for an order granting to such child an equitable share of the aforesaid 20 per cent and for such other rights as she may be entitled to. There is filed in the case an agreed statement of facts which briefly recites that the statement is submitted by agreement of Myrtle A. Clark, surviving spouse, and Orla E. Rickey, guardian. This statement, in substance, conforms to the facts heretofore recited. *Page 206 On September 23, 1941, the cause came on to be heard upon the application for an order apportioning the 20 per cent exemption between Myrtle A. Clark, surviving spouse, and Roberta Lee Clark, adopted daughter, and upon the agreed statement of facts. The court found that there was no authority in law for the apportionment of the 20 per cent and that therefore the applicant was not entitled to the relief prayed for and it was ordered that the application be dismissed. Thereupon, within proper time, Orla E. Rickey, guardian, gave notice of appeal on questions of law to the Court of Appeals of Franklin county, Ohio, from the judgment of the Probate Court entered on the 23rd day of September 1941. There is no bill of exceptions filed in this case. The Probate Court rendered a decision in which it points out the ambiguous, indefinite and confusing language of the statute and recites its provisions in connection with Section 10509-55, the succeeding section, the provisions of which we will note. The court recites the provisions of the latter section that "such exempted sum of money as is received by a surviving spouse shall belong to such surviving spouse." The court concludes that, inasmuch as there is no chattel property as enumerated in the section and inasmuch as the exemption consists solely of money he holds, the money belongs to the surviving spouse and that the court has no power to direct the payment of any of the same to the guardian or next friend of the surviving minor. The error assigned by the guardian in this court is the refusal of the Probate Court to apportion the 20 per cent exemption allowed to the surviving spouse and the minor child so as to allow the minor child a portion of such exemption. The court below in its opinion states: *Page 207 "This application again puts upon this court the obligation to construe, or attempt to construe, the ambiguous, indefinite and confusing language of the exemption statute." We quite readily agree with the court that all that has been said by it in reference to this statute is justified. Section 10509-54, General Code, provides, in substance, that when a person dies leaving a surviving spouse or minor child certain property, if selected, shall not be deemed assets or administered as such, but must be included in the inventory. The property specifically enumerated includes household goods, certain tools, wearing apparel, heirlooms, pictures and books to be selected by such surviving spouse, or, if there is no surviving spouse, then by the guardian, not exceeding in value 20 per cent of the appraised value of the property, real and personal, comprised in the inventory, but in no event is the value of the property not deemed assets to be more than $2,500, if there be a surviving spouse, nor more than $1,000, if there be no surviving spouse, but surviving minor children, and not less than $500 in either case, if there be so much comprised in the inventory and selected as provided; or, if the personal property be of less value than the total amount which may be selected,then such surviving spouse, guardian or next friend shall receive such sum of money as shall equal the difference between the value of the personal property so selected and such amount, and such sum shall be a charge on all property prior to the claim of unsecured creditors. Section 10509-55, General Code, states, in substance, thatexcept money and wearing apparel of the deceased the property exempted from administration shall remain in the possession of the surviving spouse, if *Page 208 any, during the time the spouse lives with and provides for such minor child; when such surviving spouse ceases to do so, she must be allowed to retain certain chattel property consisting of his or her wearing apparel, ornaments and certain household articles. The other articles so exempted and not consumed shall then belong to such minor child or children. If there be a surviving spouse and no minor child then such articles shall belong to the surviving spouse. Such exempted sum of money as is received bythe surviving spouse shall belong to such surviving spouse. The comments under Section 10509-54, General Code, are to the effect that under this new statute the amount of property exempt from administration in case there is a surviving spouse or minor child of the deceased has been greatly increased. The purpose of this increase is to compensate the spouse for the loss of the vested dower rights which have been abolished under Section 10502-1, General Code, and to supplement the other compensatory increase in the distributive share given to the spouse by the new statute of descent and distribution. Where there are minor children, but no surviving spouse, their share of exempt property has been increased to a possible maximum of $1,000. The widow or widower or guardian may select household goods, etc., to the value of 20 per cent of the gross estate, but not less than $500 nor more than $2,500. If these are less than 20 per cent of the gross estate, the balance is to be paid them in money. This balance is a prior claim on the proceeds of the conversion of the personalty into money. If that be insufficient, then the balance is to be paid from the proceeds from the sale of the real estate. This is in addition to the year's allowance for support if the person entitled thereto is a widow or minor under 15 years. *Page 209 Simply for reference we cite Sections 10509-74 and 10509-75 as providing for year's allowance. The interpretation of Section 10509-55 seems to be that in the disposition of the exempted personal chattels, money and wearing apparel of the deceased shall remain in the possession of the surviving spouse only during the time such surviving spouse lives with the minor child, but if the surviving spouse ceases to live with the child he or she is allowed to retain his or her wearing apparel and certain household furniture. It is difficult to understand why there should be a provision that if the surviving spouse ceased to live with the minor child he or she must be allowed to retain his or her wearing apparel, ornaments and certain household goods. Probably what the statute intended to provide was that when the spouse ceases to live with the minor child he or she must be allowed to retain the wearing apparel belonging to the deceased and not his or her own wearing apparel. The statute does not say this, but we give it that interpretation. Thereupon the other unconsumed articles exempted, which the statute earlier provides shall remain in the possession of the surviving spouse, shall belong to the minor child. That is, the minor child, upon the surviving spouse ceasing to live with it, is entitled to all the unconsumed property specifically enumerated in Section 10509-54, General Code, except money. In other words, the provision is to the effect that during the time the surviving spouse is living with the minor child she retains possession of this enumerated chattel property not deemed assets of the estate, but that in the event the surviving spouse deserts the minor child, then there shall be a division giving only certain articles to the surviving spouse, less in number than those which are selected *Page 210 and not deemed assets, but that the minor child shall have the rest of such property. The issue first to be determined is whether the provision of Section 10509-55, that, on desertion of the minor, the "other articles so exempted, and not consumed, shall then belong to such minor child," includes money. In the case at bar there was no, or little, chattel property such as enumerated in Section 10509-54. The statute provides that if there be a surviving spouse and no minor child, then such articles shall belong to the spouse. There is no difficulty about that provision but there is difficulty in the last sentence of the section — "such exempted sum of money as is received by a surviving spouse shall belong to such surviving spouse." The contention of the appellee is that the sentence provides that all exempted money that may have been received by the surviving spouse shall belong to her irrespective of whether there are minor children. On the other hand, it is contended that the reference to such exempted sum of money means only such sum of money as is received by a surviving spouse in the event that there is "no minor child or children," and it is urged that in this case, there being a minor child who is not living with or provided for by the surviving spouse, the exempted sum of money shall not, by virtue of the last sentence of the section, belong to the surviving spouse alone, but shall belong to the surviving spouse and the minor child and that the court should apportion the amount between the two. Section 10509-54, General Code, provides that if the personal property so selected be of less value than the total amount which may be selected, then such surviving spouse, guardian or next friend shall receive such *Page 211 sum as shall equal the difference between the value of the personal property so selected and the amount that may be selected and such sum shall be a charge on all the property, real and personal. It is urged under this provision that, if the selected property, no matter who selects the same, is less in amount than that sum which is allowed by the statute, the surviving spouse, guardian or next friend shall receive such sum of money. The statute earlier provides that the property is to be selected bythe surviving spouse, or, if there be no surviving spouse, by the guardian or next friend. If we read the statute consistently we must arrive at the conclusion that if the personal property has been selected by the surviving spouse, then, if it be of less value than the total amount which may be selected, whoever had the right to make the selection originally shall be the one to receive the sum of money that shall be equal to the difference between the value of the personal property and the amount that may be so selected. The statute provides that the value of the property not deemed assets shall not be more than $2,500 if there be a surviving spouse, nor more than $1,000, if there be no surviving spouse, but surviving minor child or children, and in neither case shall it be less than $500. It would thus appear that the Legislature intended that the surviving spouse could claim to the extent of $2,500, whereas, if there was no surviving spouse the maximum sum that could be claimed on behalf of guardian of minors would be $1,000. This evidences the intention that the surviving spouse could hold exemptions for much more than could be claimed by minor children, no matter how many in number they may be. Of course, this could be taken into consideration *Page 212 by the judge who might make the appointment on the ground that the surviving spouse produced more for the fund than did the minor. The surviving spouse alone might claim as exemptions the total of $2,500, whereas, all of the minors would be limited to the sum of $1,000 if there was no surviving spouse. We are forced to the conclusion that the statute does not provide that the minor child shall receive any portion of the decedent's estate, except the portion of the exempted chattels that are specifically awarded to the minor when the surviving spouse ceases to live with or provide for the minor. We are not any more in sympathy with such provision of the statute than is the court below, as expressed in its opinion, but we can not re-write the statute and must affirm the decision of the court for the reasons stated by it and concurred in by us. Judgment affirmed. BARNES, J., concurs. HORNBECK, J., concurs in judgment.

2016-07-06 06:36:23.104919+00

Sherick

This is the second appearance of this cause in this court. Upon its first review the judgment of the trial court was affirmed in its conclusion that the plaintiffs were not entitled to specific performance by reason of their laches, but reversed the cause at the behest of both parties because of an improper assessment of damages and remanded the same for a new trial upon that feature only. The petition upon which the cause was twice tried alleged and prayed for specific performance of a contract of lease which was claimed to have been breached by the appellant company. It was prayed that if they were denied the equitable relief asked that in the alternative the plaintiff appellees be awarded damages in lieu thereof. Both trials resulted in a judgment for damages in appellees' favor, the last of which is now complained of by the appellant lessor in several respects. We shall first consider the final error complained of. This cause was tried first to the court. No objection was made thereto. Neither was it urged as a ground of error in the first review that the damages were improperly found by the court without the intervention of a jury. We are advised by the record, however, that at the inception of the second trial and before the introduction of any evidence the defendant appellant moved for the impaneling of a jury to try the sole question of damages which was then before the court. This motion was denied, and, by reason thereof, it is maintained that it was thereby deprived of its constitutional *Page 40 right to a trial by jury. The reason assigned for the trial court's ruling, which was then advanced and is now argued by appellees' counsel, is found in "the equitable rule that where a court of equity has once acquired jurisdiction, it will retain the case until complete justice has been done, settling all question incident to the principal relief sought." As a general rule of equitable jurisdiction, we have no fault to find therewith, but we do doubt its applicability to the situation now presented. It will be remembered that this court reversed and remanded the proceeding in error for trial upon the sole question of damages, which is of course a purely legal question. All equitable features of the original controversy were determined adversely to the plaintiffs and were elided from the plaintiff's cause of action. The equitable rule upon which we are about to determine this claim of error does not appear to have ever been directly passed upon by our Supreme Court. That tribunal, however, did, inGunsaullus, Admr., v. Pettit, Admr., 46 Ohio St. 27,17 N.E. 231, say that: "The code provides, Section 5130 R.S. [Now Section 11379, General Code], that issues of fact arising in actions for the recovery of money only, shall be tried by a jury, unless waived by the parties. * * * Hence the right of a party to trial by jury, in a given case, does not depend upon the character of the principles upon which he may base his right to relief, but upon the nature and character of the relief sought. If the relief sought is a money judgment only, and all that is required to afford him a remedy, it is immaterial whether his right of action is based upon what were formerly regarded as equitable, or upon what were regarded as legal, principles. In either case the remedy must be sought in the civil action of the code; and, in it, trial by jury is given upon all issues of fact where the relief sought is a money judgment only." *Page 41 May we again point out that the cause of action tried upon retrial was a strictly legal one for damages for money only. No equitable relief was sought or awarded or could have been allowed. Had the relief sought and obtainable been properly equitable in character in part, it would have drawn unto itself the legal remedy incident thereto; but when no equitable remedy is requested or granted or could be awarded, there is a failure to establish any ground for equitable jurisdiction or consideration by a court of equity of a purely legal question for which the law provides adequate and complete relief. In the note appearing in 19 L.R.A. (N.S.), 1065, the writer collects the authorities and correctly states that: "The preponderance of opinion in relation to the subject under consideration clearly seems to be that where a case for relief in equity fails, a court of equity is without jurisdiction to award other relief by way of disposing of the entire controversy; unless, indeed, it appears that the remedy at law will be inadequate. Otherwise, as the courts have frequently pointed out, a litigant, by a pretended claim for equitable relief, might deprive his opponent of advantages incident to an action at law." This rule is not new. If Story's Equity Jurisprudence (14 Ed.), Volume 3, page 476, Section 1085, wherein the early English authorities are reviewed, is examined, it will be gleaned that Story considered that where the ground for equitable jurisdiction fails and damages are asked in the alternative that the cause should be relegated to courts of law (or the law side of our dual court's personality) and that damages ought only to be awarded by courts of equity when incidental to some equitable relief which is granted. Out of numerous adjudicated cases, reference to two is sufficient to illustrate the modern view of the majority *Page 42 holdings. In Wimer v. Wagner, 323 Mo., 1156, 20 S.W.2d 650, 79 A.L.R., 1231, it is stated in the syllabus of A.L.R.: "The rule that equity, having once become possessed of a cause, will retain it for the purpose of administering full and complete relief, does not apply when the facts relied on to sustain the equity jurisdiction fail of establishment." In the recent case of Reynolds v. Warner, 128 Neb. 304,258 N.W. 462, 97 A.L.R., 1128 (1133), the court says: "It is a general rule that, where a court in the exercise of its equity powers acquires jurisdiction for any purpose, its jurisdiction will continue for all purposes, and it will try all issues. * * * But where there is no equitable relief granted, a court of equity will generally decline jurisdiction to enter a money judgment on a legal cause of action. This is especially true where such a course would operate to deprive a party of his constitutional right to a trial by jury." It has frequently been held that one's right to a trial by jury may be extended but it may not be abridged. When equity operates on strictly legal matters in which the law affords an adequate and complete remedy, and courts of equity do not and cannot award equitable relief, equity then does not follow the law but supersedes it and abridges the right to a jury trial insured by Section 5 of Article I of the Ohio Constitution and Section 11379, General Code. The appellant was so deprived of its constitutional right. In view of the fact that this cause must be retried to a jury, and the rule that this court shall pass upon the errors assigned, we shall proceed to consider the irregularities claimed which pertain to the proper proof of damages and the measure thereof. Before proceeding therewith, it must be understood that the contract entered into and breached in this instance *Page 43 was the leasing of ordinary business property for a ten-year term at a stipulated average term rental of $225 per month. It was covenanted that the appellant lessor was to re-condition the premises and, according to certain plans, make the building usable for the operation therein of a motion picture show. Before the completion of these repairs and before the commencement of the term the lease was breached. It will be perceived from this brief statement that the parties to this lease contracted with the understanding that the leasehold was to be used for a particular purpose. This fact is important in view of the elements of damage and the competency of testimony in ascertaining values, and the measure of damages. The appellant maintains that the proper measure of damages is the difference, if any, between the fair rental market value of the premises at the time of breach of the contract and the rental value thereof as covenanted to be paid in the instrument of lease during and throughout the term. For adoption of the rule, the case of Rhodes v. Baird, 16 Ohio St. 573, is given as authority. We are unable to perceive that appellees seriously question this measure of damages; they do, however, entertain an opinion that evidence of such measure may be forfeited by showing anticipated profits. We do not think so. If this had been a situation where one had been wrongfully evicted from premises wherein an established business was being conducted then anticipated continuous profits might be shown as an element of damages. But such is not this case. In 99 A.L.R., 938, authorities are gathered which almost universally support the rule that is therein stated in this manner: "The following recent cases which distinguish between a new business or enterprise and one in actual operation support the general rule, as stated in the earlier annotation, that prospective profits of a new *Page 44 nonindustrial business or one merely in contemplation are too uncertain and speculative to form a basis for recovery, for the reason that there are no facts extant (provable data of past business), as in the case of an existing or established business, from which the amount of such profits may be established with reasonable certainty." See also 1 A.L.R., 156. Three matters of evidence will receive brief attention. We note that plaintiff produced the evidence of three expert witnesses as to the fair market value of the premises. They are properly qualified as experts. They gave their opinion as to the value thereof. They were then further interrogated, in chief, as to what they based that value upon. Part of their answers referred to anticipated profits. Other parts thereof were competent. It is our judgment that as a whole their testimony in this respect was competent. The matter of fact that their opinion was in fact based on expected profits was rather one for cross-examination to establish. When such appeared it went to the weight of the testimony given and would not have rendered incompetent the remainder of their testimony. It appears that the defendant called upon witnesses as to market lease value. It was developed that they were unfamiliar with lease values of picture show houses. They were therefore incompetent witnesses as to such value for the reason that the plaintiffs were entitled to have taken into consideration the fact that the parties contemplated that the building leased and conditioned was to be put to the use of a picture show place. Appellant says that there is no proper proof made as to a market lease value in excess of the rental value. We do not find this to be true. The testimony of the three witnesses commented upon is to the contrary. It is also evidenced that the appellant's present tenant is *Page 45 profitably occupying the premises at a higher rental than the lease's rental. This fact in itself is indicative, inferentially at least, of proof of a higher market lease value. As a final claim of error it is maintained that special damages are not pleaded or proven. In as much as this case is remanded for retrial and the trial court might with propriety permit an amendment in that respect we see no need to further consider this claim. In as much as the record discloses the ruling of the court throughout the trial to be contra to the judgment of this court herein stated, error is found to exist in this record. Judgment reversed and cause remanded. LEMERT, P.J., and MONTGOMERY, J., concur.

2016-07-06 06:36:23.066331+00

DECISION AND JOURNAL ENTRY {¶ 1} Defendant-Appellant Brian D. Lempner has appealed the decision of the Lorain County Court of Common Pleas, Domestic Relations Division, that granted Plaintiff-Appellee Melanie Lempner n/k/a Simko's motion to relocate the couple's minor child B.L. This Court reverses. {¶ 2} Appellant and Appellee were married on January 1, 1997 and granted a divorce on January 16, 2001. One child was born as issue of the marriage, to wit B.L., born April 9, 1998. A shared parenting plan was incorporated into the judgment entry of divorce. Pursuant to the terms of the shared parenting plan, neither parent was to relocate the child outside of Lorain County, Ohio, or remove B.L. from the State of Ohio without the written permission of the other parent. {¶ 3} Relevant to the instant appeal, on March 23, 2004, Appellee filed a motion requesting permission to relocate B.L. to Florida. On June 22, 2004, Appellee filed a motion requesting modification of the shared parenting plan. In both motions, Appellee argued that her employer was relocating to Florida and she must relocate with the company to Florida in order to keep her job. She further argued that her income would approximately double if she were permitted to relocate to Florida, and that it was in B.L.'s best interest that he relocate with her. {¶ 4} On August 11, 2004, Appellant filed a motion requesting that the trial court conduct an in camera interview of B.L. regarding Appellee's motions to modify the shared parenting plan and relocate B.L. to Florida. The trial court granted the motion and an in camera interview of B.L. was held on August 20, 2004. {¶ 5} The matter was tried to the court on September 9, 2004. On October 12, 2004, the trial court granted Appellee's motions to modify the shared parenting plan and relocate B.L. to Florida. Appellant has timely appealed the trial court's decision, asserting two assignments of error.1 II Assignment of Error Number One "THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION TO RELOCATE THE CHILD TO FLORIDA BECAUSE SAID DECISION CONSTITUTES AN ABUSE OF DISCRETION, AND/OR IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]" {¶ 6} In his first assignment of error, Appellant has argued that the trial court abused its discretion when it found a change in circumstances warranting modification of the shared parenting plan and when it granted Appellee's motion to relocate B.L. to Florida. Specifically, Appellant has argued that the evidence presented at trial clearly showed that the relocation of B.L. to Florida was not in the child's best interest. {¶ 7} It is well established that an appellate court will not disturb the custody decision of a trial court absent a finding that the trial court abused its discretion. Masters v. Masters (1994), 69 Ohio St. 3d 83,85. An abuse of discretion is "more than an error at law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Id., quoting Miller v. Miller (1988), 37 Ohio St. 3d 71,73-74. {¶ 8} Fundamentally, the primary concern in a child custody case is the child's best interest. Miller, 37 Ohio St.3d at 75. We note that shared parenting plans are governed in part by R.C. 3109.04(E)(1)(a), which states that a trial court cannot modify a shared parenting plan unless it first finds that a change of circumstances has occurred. R.C.3109.04(E)(1)(a). If a change of circumstances is found, then the trial court must also find that the contemplated modification is in the child's best interest. Id. In the context of a motion to relocate a minor child, the trial court must also find that the advantages of relocation outweigh any harm of relocation. R.C. 3109.04(E)(1)(a)(iii). {¶ 9} Appellant first has argued that the trial court abused its discretion when it concluded that Appellee's new job in Florida constituted a change of circumstances. Appellee has argued that the trial court's decision was not an abuse of discretion. {¶ 10} The Supreme Court of Ohio has held that "[t]he filing of a motion to remove the child from Ohio that merely reflects the mother's `desire' to leave the state does not on its own constitute a substantial change in circumstances under [the statute]." Masters, 69 Ohio St.3d at 86. However, the relocation of the child is certainly a factor the trial court should consider when determining if a change in circumstances has occurred. Green v. Green (Mar. 31, 1998), 11th Dist. No. 96-L-145, 1998 Ohio App. LEXIS 1434, at *8. The attendant circumstances, as well as the impact the move will have on the child, the non-moving party, and other extended family members who have formed a bond with the child, can be considered by the trial court when determining whether or not a change in circumstances has occurred. Id; See, also Zinnecker v. Zinnecker (1999),133 Ohio App. 3d 378, 384-385; In re Longwell (Aug. 30, 1995), 9th Dist. Nos. 94CA006006 and 94CA006007, at 17. {¶ 11} In the instant matter, Appellee has presented the following evidence in support of her motions. She and Richard Dasich ("Dasich"), her supervisor and the owner of her employer Retirement Education Group ("REG"), testified that her salary and benefits would greatly increase were she to relocate to Florida; that were she not to relocate, she would lose her position with REG; and that her position was a "niche" position that only existed in one other company in the country, and said company is not located in the State of Ohio. Appellee also testified that she had attempted and failed to secure new employment in Ohio that produced a comparable income to that which she might earn in Florida. {¶ 12} Based on the foregoing, we conclude that the trial court's decision that Appellee had incurred a change in circumstances was based upon competent, credible evidence. As such, the trial court did not abuse its discretion when it concluded the same. {¶ 13} Having found that a change of circumstances had occurred, this Court must next determine if the trial court abused its discretion when it determined that a modification of the shared parenting plan was in B.L.'s best interest. See R.C. 3109.04(E)(1)(a). {¶ 14} We note that although R.C. 3109.04(E)(1)(a) requires that the trial court find a change of circumstances before the court modifies the allocation of parental rights and responsibilities, "such a finding in and of itself, does not demand a modification." Pryer v. Pryer (1984),20 Ohio App. 3d 170, 171. Rather, the modification must also be in the best interest of the child and satisfy one of the conditions enumerated in R.C. 3109.04(E)(1)(a)(i), (ii) or (iii). See Id. {¶ 15} The best interest determination is controlled by R.C.3109.04(F)(1), which sets forth an extensive though non-exhaustive list of factors used to determine the best interests of the child. The factors include but are not limited to: 1) the wishes of the child's parents; 2) the wishes of the child as ascertained from an in camera interview of the child conducted in accord with R.C. 3109.04(B); 3) the child's interaction and relationship with its parents and any other person who may significantly affect the child's best interest; 4) the child's adjustment to its home, school, and community; and 5) whether either parent is planning to establish a residence outside of Ohio. R.C.3109.04(F)(1); see, also Vujovic v. Vujovic, 9th Dist. No. 04CA0083-M,2005-Ohio-3942, at ¶ 58. Once all of the relevant factors have been considered, the trial court must then determine if the benefits of relocation outweigh the harms of relocation. R.C. 3109.04(E)(1)(a)(iii). The statute sets forth this broad, far-reaching inquiry so that the trial court can make a fully informed decision on the critical issue of where the child will reside and how the parents will continue to raise the child after modification of the shared parenting plan. Haas v. Bauer,156 Ohio App. 3d 26, 36, citing Bunten v. Bunten (1998),126 Ohio App. 3d 443, 447. {¶ 16} Our review of the record reveals that in its judgment entry granting Appellee's motions to modify the shared parenting plan and relocate B.L. to Florida, the trial court concluded that a change of circumstances had occurred. The trial court then concluded that the harm of relocation was outweighed by the benefits of relocation. Nowhere in its judgment entry did it make any finding or conclusion that modification and relocation was in the best interest of B.L. As a result, the trial court's decision does not comport with the mandate of R.C. 3109.04(E)(1)(a) that the trial court "shall * * * find * * * that the modification is necessary to serve the best interest of the child." R.C. 3109.04(E)(1)(a). {¶ 17} Based on the foregoing, Appellant's first assignment of error has merit. Assignment of Error Number Two "THE TRIAL COURT ERRED IN GRANTING THE RELOCATION/MODIFICATION BECAUSE IT DID NOT PROPERLY CONSIDER R.C. 3109.04(F)(3)." {¶ 18} In his second assignment of error, Appellant has argued that the trial court erred when it granted Appellee's motions requesting modification and relocation. Specifically, he has argued that the trial court's decision ran afoul of R.C. 3109.04(F)(3). {¶ 19} Given our disposition of Appellant's first assignment of error, we decline to address his second assignment of error. See App.R. 12(A)(1)(c). III {¶ 20} Appellant's first assignment of error has merit. We decline to address his second assignment of error. The judgment of the trial court is reversed and the cause remanded for proceedings consistent with this opinion. Judgment reversed and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee. Exceptions. Carr, J., Moore, J. concur. 1 During the pendency of the instant appeal, Appellant filed an emergency stay to this Court of the trial court's decision granting Appellee's motions. By journal entry dated November 23, 2004, this Court granted Appellant's request for an emergency stay, stating that the stay will automatically expire upon the announcement of our decision in the instant appeal.

2016-07-06 06:36:22.672205+00

Defendant-appellant, Awa Nmi Uma, appeals from a judgment entry of the Franklin County Municipal Court overruling his motion for stay of eviction, and entering judgment for plaintiff-appellee, Samuel Alabi, on appellee's complaint. Appellee filed a complaint for restitution of premises, forfeiture of land contract, and money damages against appellant and his corporation, Team Heating and Air Conditioning, Inc. ("Team Heating"), alleging that appellant was in default under the terms of the parties' land installment contract for non-payment of the monthly installments, real estate taxes and insurance, as well as for filing bankruptcy. Appellee attached to the complaint a copy of the written notice required by R.C. 5313.06, which was served on appellant in his individual capacity and as statutory agent for Team Heating on March 3, 1998. A copy of the complaint and notice of the hearing set for April 24, 1998, was served on appellant by certified mail, and appellant signed a certified mail receipt on April 11, 1998. The hearing before the magistrate was rescheduled for May 4, 1998, and a summons reflecting the rescheduled date was personally served on appellant on April 25, 1998. The magistrate held a hearing on the complaint with appellant appearing pro se and with appellee represented by counsel, but the magistrate delayed the decision at the request of the parties so that they could attempt to settle the case. The magistrate issued a decision after appellee's attorney filed a notice of failure to settle. In the magistrate's decision, he found that appellant breached the terms of the land installment contract by not paying rent in a timely manner. In addition, the magistrate found that appellee fully complied with the requirements of R.C. Chapter 5313 in instituting the forfeiture action, that appellant had paid for less than five years under the contract, and that the sum of his payments on the principal were less than twenty percent of the purchase price. Thus, the magistrate recommended that the trial court issue appellee a writ of restitution. The trial court adopted the magistrate's decision. Appellant filed an "appeal" to the magistrate's decision on behalf of Team Heating, and he filed a motion for stay of eviction in his personal capacity. The trial court granted appellant's motion for stay, which the court considered as an objection to the magistrate's decision, and scheduled an objections hearing for September 3, 1998. The trial court held a hearing on the objection with appellant again appearingpro se and appellee represented by counsel. The trial court overruled appellant's objection and set aside the stay of eviction. Appellant filed a timely notice of appeal. On appeal, appellant asserts four assignments of error: I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-APPELLANT AND CO-DEFENDANT, TEAM HEATING AND AIR CONDITIONING, INC., THE RIGHT TO ATTORNEYS IN LIGHT OF THE FACT THAT THE COURT CONDUCTED THE TRIAL DEVOID OF THEIR FUNDAMENTAL RIGHTS. II. THE TRIAL COURT ERRED IN SUSTAINING THE PLAINTIFF-APPELLEE'S CLAIMS OF DEFAULT IN LIGHT OF THE CLAIMANT'S FAILURE TO STATE APPROPRIATE OR GOOD CAUSE AND THE COURT'S NEGLIGENCE TO CONSIDER THE TERMS OF THE LAND INSTALLMENT CONTRACT, SECTION 12 AND THE PROVISIONS OF ORC, SECTION 5313.05. III. THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFF-APPELLE'S MOTION FOR WRIT OF RESTITIUTION IN LIGHT OF THE MOVANT'S FAILURE TO STATE APPROPRIATE OR GOOD CAUSE AND THE COURTS [SIC] NEGLIGENCE TO OBSERVE THE STRICT PROVISIONS OF THE ORC, SECTION 5313.06. IV. THE TRIAL COURT ERRED IN REJECTING EVIDENCES [SIC] FOR EXTRA PAYMENT THAT SHOWED THAT MORE THAN 20% HAS BEEN PAID TOWARDS THE PURCHASE PRICE TO QUALIFY DEFENDANT-APPELLANT FOR OPTIONAL FORECLOSURE REMEDY AS PROVIDED BY ORC, SECTION 5313.07 The parties entered into an agreement for appellant to purchase the property located at 1628 Briarwood Avenue in Columbus, Ohio, from appellee under a land installment contract for $42,000, with $5,000 as a down payment and monthly payments of $438.69. Although appellant was to take possession of the house on June 1, 1995, and paid the June 1995 payment, appellant did not actually take possession until July 1, 1995. Appellant's monthly installment payments were frequently late. On November 29, 1997, appellee notified appellant that he would no longer accept late payments and would thereafter require strict compliance with the terms of the land installment contract. Appellant failed to pay the December 1997 installment until early January 1998. Appellee refused to accept this late payment and also refused to accept appellant's January and February payments, which were also made late. Appellee waited until March 3, 1998, to serve appellant with the notice of forfeiture, which provided appellant ten days to pay the late payments, late charges and past due real estate taxes and insurance. However, appellant failed to make these payments, so appellee instituted the action for restitution of the premises and forfeiture of the land contract. As a preliminary matter, appellant has failed to provide a transcript of the proceedings before the magistrate or the trial court as required by App. R. 9(B). Although appellee contends that the hearings were recorded, there is no indication in the court file that a record was made of the proceedings. Appellant also failed to submit a statement of the evidence under App. R. 9(C) or an agreed statement under App. R. 9(D). Without a transcript of the proceedings or a statement of the evidence, an appellate court cannot consider assignments of error arguing that a finding is against the weight of the evidence or is unsupported by the evidence. See Tyrrell v.Investment Assoc., Inc. (1984), 16 Ohio App.3d 47, 49. Thus, our review of appellant's assignments of error is limited to reviewing the magistrate's decision for errors of law. Smith v.Ohio Dept. of Rehab. Corr. (1995), 104 Ohio App.3d 210, 213. In appellant's first assignment of error, he argues that the trial court erred by adopting the magistrate's decision because the magistrate denied both him and Team Heating the right to obtain counsel to represent them in the proceedings. Without a transcript, we cannot review what occurred in the hearing before the magistrate. Although appellant claims he was denied the right to counsel because the magistrate would not allow him to represent Team Heating, a corporation cannot appear in court pro se but may only participate if represented by an attorney. Union SavingsAssn. v. Home Owners Aid (1970), 23 Ohio St.2d 60, syllabus. Moreover, our review of the record does not support appellant's claim that he did not have sufficient time to obtain counsel. Appellant had over three weeks from the date he signed the certified mail receipt for the complaint on April 11, 1998, until the hearing on May 4, 1998, to obtain counsel. Consequently, appellant's first assignment of error is overruled. In appellant's second assignment of error, he argues that the trial court erred by adopting the magistrate's decision finding that he was in default under the terms of the land installment contract. We are unable to review the magistrate's findings of fact without a transcript. However, even assuming arguendo that we could review the factual findings, the exhibits presented at trial support the magistrate's conclusion that appellant was in default for not paying the December 1997 payment within thirty days as required by Section 12 of the Land Installment Contract. The money orders which appellant purchased to pay the December payment and late fee are dated December 29, 1997, and December 31, 1997. The certificate of mailing indicates that one was mailed December 29, 1997. Taking judicial notice that January 1, 1998, was a legal holiday with no mail service, the earliest that appellee could have received the full amount is January 2, 1998, which is more than thirty days from the due date of December 1, 1997. Consequently, appellant's second assignment of error is overruled. In appellant's third assignment of error, he argues that the trial court erred by adopting the magistrate's decision because the notice of forfeiture given by appellee did not comply with the requirements of R.C. 5313.06. We disagree. As the magistrate found, the notice provided by appellee on its face complies with the requirements of R.C. 5313.05, 5313.06, and 1923.04. Appellee waited to enforce the forfeiture until March 3, 1998, which is clearly more than thirty days after the default as required by R.C. 5313.05. Additionally, the notice personally served on appellant fully complies with R.C. 5313.06: it was a written notice identifying the contract and the covered property; it specified the terms of the contract not complied with; it notified appellant that the contract would be forfeited unless appellant paid all past due payments, real estate taxes, and insurance payments within ten days; and it notified appellant to leave the premises by March 14, 1998. Finally, the notice complied with R.C. 1923.04 because it contained the required language of that section. Consequently, appellant's third assignment of error is overruled. In appellant's fourth assignment of error, he argues that the magistrate erred by concluding that he had paid less than twenty percent of the purchase price. Again, we cannot review the magistrate's factual findings without a transcript of the proceedings. Even assuming arguendo that we could review the factual findings, appellant's own exhibit supports the magistrate's conclusion that appellant paid less than twenty percent of the purchase price. The amortization schedule introduced by appellant indicates that he paid a total of $8,275.91 between June 1995 and November 1997, inclusive of the $5,000 down payment, towards the purchase price of $42,000, which amounts to only 19.7 percent. Moreover, there is no evidence supporting appellant's argument that the parties agreed that the June 1995 payment was to be credited fully towards the principal. Therefore, appellant's fourth assignment of error is overruled. Based upon the foregoing reasons, appellant's four assignments of error are overruled, and the judgment of the trial court is affirmed. Judgment affirmed. DESHLER and BRYANT, JJ., concur.

2016-07-06 06:36:22.70312+00

JOURNAL ENTRY AND OPINION. {¶ 1} Defendant-appellant James Hajdin appeals from the judgment entered pursuant to a jury verdict finding him guilty of breaking and entering, in violation of R.C. 2911, 13; theft, in violation of R.C.2913.02; and possession of criminal tools, in violation of R.C. 2923.24. For the following reasons, we reverse the decision of the trial court and remand for a new trial. {¶ 2} The record presented to us on appeal reveals the following: On November 20, 2001, Officers Carl Dooley and Marc Kruse of the Cleveland Police Department observed a white vehicle speeding and weaving in and out of traffic on West 73rd Street in Cleveland, Ohio. The officers followed the vehicle with their siren and lights on. After several blocks, the driver of the vehicle stopped and exited his car. The officers exited their cruiser and ordered the defendant to approach them with his hands out. The defendant was unable to produce a driver's license but did have the title to the vehicle he was driving. A status check of the defendant's vehicle revealed that defendant had a warrant for his arrest. {¶ 3} The officers arrested defendant, patted him down, and placed him in the back of the cruiser. On defendant's person, the officers found two credit cards, neither of which belonged to him, a gift certificate, made out to Cleveland Gourmet Corporation, and two bundles of cash. {¶ 4} The officers performed an inventory of the vehicle. During the inventory, they discovered a machete, two green moneybags labeled "NCB, National City Bank, Cleveland, Ohio," a pry bar, bolt cutters, binoculars and cellular phones. They also found two boxes: one containing $500 in quarters and the other containing $100 in nickels. {¶ 5} Sergeant Deborah J. Clare of the Cleveland Police Department was called to the location. She examined the gift certificate made out to Cleveland Gourmet Corporation at 4197 West 150th Street and called the dispatch center to see whether a break-in had been reported at that location. {¶ 6} Sergeant Clare went to Somer's Restaurant located at 4197 West 150th Street and was advised by two other Cleveland Police Officers that the restaurant had been burglarized. The back door had been pried open and the cash register and the manager's office had been rummaged through. While in the manager's office, Sergeant Clare recognized cardboard change boxes to be identical to the boxes found inside the defendant's vehicle. {¶ 7} On December 20, 2001, defendant was indicted by the Cuyahoga County Grand Jury on one count of breaking and entering, in violation of R.C. 2911.13; one count of vandalism, in violation of R.C. 2909.05; one count of theft, in violation of R.C. 2913.02; and one count of possession of criminal tools, in violation of R.C. 2923.24. {¶ 8} On February 6, 2002, defendant's jury trial began. At the trial, Gus Baz, the manager of Somers, testified that the credit cards found on defendant's person had been left at the restaurant by customers and placed in the cash drawer for safekeeping. He also identified the boxes found in defendant's vehicle containing the coins as the same type of boxes used by the restaurant to store coins. Finally, he testified that there was $200 in the cash drawer and $600 in his office. {¶ 9} Detective Maurice Hamilton of the Cleveland Police Department testified that he went to Somer's Restaurant on the morning of November 22, 2001. He testified that he observed the damaged door at the restaurant and opined that a pry bar, similar to the one found in defendant's vehicle, had been used to open the door. {¶ 10} On February 8, 2002, both parties rested and the jury retired to consider its verdict. Shortly thereafter, the judge, counsel for both parties, and the jury foreperson met in the judge's chambers where the jury foreperson advised all parties that a computer printout containing defendant's criminal history and police reports concerning the incident had been taken into the jury deliberation room. Specifically, this twenty-one page document was folded over a pry bar that had been admitted into evidence. Both parties denied responsibility for the exhibit's presence in the jury room. {¶ 11} The trial court questioned the jury foreperson and determined that two jurors had actually seen the document. The jury foreperson, however, advised the judge that the entire jury had been made aware that the defendant had a "wrap sheet [sic]." The judge asked the jury foreperson whether the jury could continue its deliberations and he said, "Yes." The judge then recalled the jury and inquired of the jury as a whole if they could continue their deliberations in an impartial manner to which they responded, "Yes." {¶ 12} On February 8, 2002, the jury returned guilty verdicts on the breaking and entering count, the theft count, and the possession of criminal tools count.1 On February 21, 2002, defendant was sentenced to ten months incarceration on each count, to be served concurrently. This appeal timely followed. {¶ 13} Although defendant raises a number of issues on appeal, we find Assignment of Error II and IV to be dispositive. {¶ 14} "II. The trial court erred by allowing the jury to view inadmissible other acts evidence thereby denying the appellant the right to a fair trial. {¶ 15} "IV. The trial court erred by failing to grant a mistrial after it learned that the jury viewed inadmissible and prejudicial evidence." {¶ 16} In these assignments of error, defendant argues that he was unfairly prejudiced when the jury viewed inadmissible evidence of his criminal history. We agree. {¶ 17} A defendant is entitled to an impartial jury that is free from bias. State v. Wilson (1972), 29 Ohio St.2d 203, 211. Accordingly, due process mandates that a defendant be tried before a fair and impartial jury on conclusions reached from evidence and argument in open court — not by outside influence. Petro v. Donner (1940),137 Ohio St. 168; State v. Taylor (1991), 73 Ohio App.3d 827, 831; Cityof Cleveland v. Wade (Aug. 10, 2000), Cuyahoga App. No. 76652; State v.Starks (April 18, 1996), Cuyahoga App. No. 69441. A jury tainted with outside information affects not only the defendant's rights but also the public's interest in the integrity of the judicial process. City ofCleveland v. Wade, supra; State v. Ross (Dec. 31, 2002), Summit App. No. 20980. {¶ 18} Here, the jury was given outside information which contained a detailed and prejudicial synopsis of the incident as well as the defendant's extensive criminal history, including almost identical charges which had been previously filed against him. {¶ 19} Ordinarily, the existence of a prior offense should not be revealed to the jury unless specifically permitted under statute or rule. State v. Allen (1987), 29 Ohio St.3d 53, 55. In such a situation, the danger exists that the jury will infer from it a propensity of the accused to commit the crime charged and will incite them to convict based on past misconduct rather than restrict their attention to the offense at hand. State v. Lenoir (Sept. 12, 1997), Montgomery App. No. 15469; Statev. Dotson (April 28, 1992), Franklin App. No. 91AP-999. Clearly, this jeopardizes the right of the accused to a fair trial on those charges. Id. Indeed, Evid.R. 404(B) codifies the common law rule that evidence of other crimes, wrongs, or acts is not admissible as evidence of a defendant's commission of similar acts for which he is on trial. {¶ 20} The State appears to concede that this evidence was inadmissible but argues that defendant was not denied a fair trial because only one juror saw the report and "most of the jurors did not hear the juror's remark about the police report." (Appellee brief at 12). We disagree. The record reflects that the entire jury was made aware that the defendant had a "rap sheet" and a "history," even if not all of them knew the particulars contained therein. We can only conclude that defendant was prejudiced by the presence of this document in the jury room, which contained highly inflammatory and inadmissible material tending to prove that defendant had a bad character, thus leading to an inference that he acted in conformity with that bad character in the present case. The possibility of such an inference is precisely what Evid.R. 404(B) was designed to prevent. See State v. Harbert (May 29, 1996), Summit App. No. 17320; State v. Smith (June 7, 1985), Highland App. No. 547. {¶ 21} Although the trial court, after questioning the jury foreperson, issued curative instructions to the entire jury, it is difficult, from the record, to determine the effect, if any, the presence of this document had on the remaining jurors. The trial court should have inquired of the particular juror who looked at this document and should have also questioned the other members of the panel, since it is undisputed that they were all made aware of the existence of this "rap sheet" (itself a demeaning, negative term). {¶ 22} We find this error was prejudicial to the defendant in that it deprived him of a fair trial. We, therefore, sustain Assignments of Error II and IV and remand this case for a new trial. {¶ 23} Our disposition of these assignments of error moots any consideration of the remaining assignments of error. See App.R. 12(A)(1)(C). Judgment reversed and remanded for a new trial. It is ordered that appellant recover of appellee 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. COLLEEN CONWAY COONEY, J., and DIANE KARPINSKI, J., concur. 1 The trial court dismissed the vandalism count of the indictment at the close of the defense case. The court reasoned that there was no evidence of the value of damages sustained as a result of the break-in at Somer's restaurant.

2016-07-06 06:36:22.778336+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} Plaintiff-Appellant State of Ohio (the "State") has appealed from the decision of the Lorain County Court of Common Pleas that granted Defendant-Appellee John M. Skorvanek's motion to dismiss. This Court reverses. I {¶ 2} On June 2, 2004, Defendant-Appellee was indicted on one count of trafficking in heroin, in violation of R.C. 2925.03(A), a felony of the fourth degree.1 This indictment arose from the arrest of Appellee on April 1, 2004, and concerned the controlled purchase of heroin from Appellee by the Lorain Police Department ("LPD") on or about March 10, 2004. Defendant-Appellee entered a plea of not guilty and waived his right to a speedy trial. {¶ 3} On March 25, 2005, Appellee was indicted on two counts of trafficking in heroin, in violation of R.C. 2925.03(A), felonies of the third and fourth degree, respectively; one count of possession of criminal tools, in violation of R.C. 2923.24(A), a felony in the fifth degree; two counts of permitting drug abuse, in violation of R.C. 2925.13(A), felonies of the fifth degree and a misdemeanor of the first degree, respectively; one count of possession of drug abuse instruments, in violation of R.C. 2925.12(A), a misdemeanor of the second degree; one count of possession of drug paraphernalia, in violation of R.C.2925.14(C), a misdemeanor of the fourth degree; one count of possession of drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree; and one count of possession of heroin, in violation of R.C. 2925.11(A), a felony of the fifth degree.2 This indictment arose from an attempted controlled purchase on March 13, 2004, a second effectuated controlled purchase of heroin on or about March 23, 2004, and evidence seized from searches executed on April 1, 2004. Appellee was arrested in this matter and posted bond on March 30, 2005. On April 7, 2005, Appellee filed a motion to dismiss on the ground that his statutory right to a speedy trial for case number 05CR067480 had been violated. {¶ 4} On June 15, 2005, the trial court, having found that Appellee was arrested on April 1, 2004 and was indicted 357 days later on March 25, 2005, concluded that Appellee had not been brought to trial within the statutory period set forth in R.C.2945.71(C)(2). Accordingly, the trial court granted Appellee's motion to dismiss on statutory speedy trial grounds. {¶ 5} The State has timely appealed this decision, asserting one assignment of error. II Assignment of Error Number One "THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION TO DISMISS." {¶ 6} In its first assignment of error, the State has argued that trial court erred when it granted Appellee's motion to dismiss on statutory speedy trial grounds. Specifically, the State has argued that a subsequent indictment is not subject to the speedy trial timetable of the initial indictment when additional criminal charges arise from facts different from the original charges, or when the State did not know of the facts at the time of the initial indictment. We agree. {¶ 7} This court reviews a trial court's decision to grant a motion to dismiss de novo. Indiana Ins. Co. v. Forsmark,160 Ohio App.3d 277, 2005-Ohio-1635, at ¶ 9. Under the de novo standard of review, we give no deference to the trial court's legal conclusions. Id. {¶ 8} R.C. 2945.71(C)(2) mandates that a person charged with a felony be brought to trial within 270 days after the person's arrest. R.C. 2945.71(D) provides that a person who has multiple charges pending of varying degrees, be they felonies, misdemeanors or a combination of both, all of which arose from the same transaction and occurrence, must be brought to trial on all of the charges within the time period required for the highest degree of offense charged. The State has argued that the trial court erred when it found that the indictment in case number 05CR067480 violated Appellee's statutory speedy trial rights in that Appellee was not indicted until 357 days after his arrest. We agree. {¶ 9} The Ohio State Supreme Court has carved out an exception to the speedy trial timetable with regards to subsequent indictments. In State v. Baker, the Court held that: "When additional criminal charges arise from facts distinct from those supporting an original charge, or the state was unaware of such facts at that time, the state is not required to bring the accused to trial within the same statutory period as the original charge under R.C. 2945.71 et seq." (Emphasis added). State v. Baker (1997), 78 Ohio St.3d 108, 112. See, e.g., State v. Overholt, 9th Dist. No. 03CA0119-M, 2004-Ohio-4969, at ¶ 11. {¶ 10} This Court has recognized the significance of the Supreme Court's use of the disjunctive "or" in Baker. SeeState v. Haggard (Oct. 6, 1999), 9th Dist. No. 98CA007154, at 8. Additionally, our cases indicate that the disjunctive nature of Baker's rule creates two separate exceptions to the speedy trial timetable, either of which may be employed by the state. See Haggard at 8; State v. Armstrong, 9th Dist. No. 03CA0064-M, 2004-Ohio-726, at ¶¶ 7-9. {¶ 11} In Haggard, Robert McFadden, Charles Butterfield, and defendant Terrence Haggard where involved in a brawl outside of a North Ridgeville restaurant. McFadden immediately pressed assault charges against Haggard, who did not contest the charge.Haggard at 2. Subsequently, Butterfield swore out a complaint of assault to which Haggard pled not guilty. We held that while the second prosecution would not be covered under Baker's "second exception," the "first speedy trial exception permitted by Baker" was applicable. Id. at 8. Specifically, we held that because the prosecution admittedly knew the facts concerning the Butterfield assault at the time it filed the McFadden assault charge, the second Baker exception did not apply. However, we noted that it could not be said that the facts as to the Butterfield assault were the same as the facts relating to the McFadden assault. Therefore, we concluded that the speedy trial clock for the second charge started upon the service of the second charge. In Haggard, we clearly advocated the Baker rule as comprising two separate exceptions. {¶ 12} In Armstrong, the defendant was arrested for possession of drug paraphernalia and criminal trespassing. At the time of his arrest, the police found white powder on his person which was sent to the Bureau of Criminal Investigation ("BCI") to be analyzed. In the interim, Armstrong pled no contest to the possession of drug paraphernalia and the criminal trespassing charge was dropped. Thereafter, the State received BCI's report, indicted Armstrong and arrested him. We utilized the secondBaker exception to hold that "[t]he State is not required to bring additional charges within the time period of the original indictment if the State did not have knowledge of the additional charges until performing investigations of later-seized evidence." Armstrong at ¶ 7. This was so even though both charges stemmed from the same arrest and arguably the same set of operative facts. In Armstrong, we clearly treated the Baker rule as having two distinct elements. {¶ 13} In the present case, Appellee has argued that his motion to dismiss was properly granted because all of the facts which gave rise to the offenses in the indictments were gathered under the umbrella of a single investigation and were known to the State on May 18, 2004, approximately two weeks prior to the first indictment on June 2, 2004. Conversely, the State has argued that Haggard explained that "facts different from the original charges" involve separate offenses and animus and that in this case, such separate offenses exist. See Haggard at 8, quoting Baker, 78 Ohio St.3d at the syllabus. We agree with the State. {¶ 14} In Haggard, this Court illustrated that "facts different from the original charges" could include separate victims, separate offenses, or a separate animus as to the offense. See Haggard at 7-8. In the case sub judice, despite Appellee's efforts to prove the contrary, separate facts and offenses gave rise to the second indictment on March 25, 2005. Although both indictments stem from the same investigation, the offenses Appellee is charged with are the direct result of different events on different dates. {¶ 15} The record3 reflects that the single count of trafficking in heroin set forth in case number 04CR065344 arose from a controlled drug buy on March 10, 2004. The first count in case number 05CR067480 arose from an attempted drug buy on March 13, 2004. Count two of the indictment in case number 05CR067480 stemmed from yet another controlled purchase of heroin from defendant on March 23, 2004. Finally, counts three through nine arose from valid searches conducted on April 1, 2004. It is apparent that while the investigation of Appellee may have been ongoing, the offenses with which he is charged were separate and distinct from one another. This conclusion is strongly evidenced in the record where counsel for Appellee admitted in open court that the charges did not arise from the same facts and circumstances and that separate incidences were involved.4 {¶ 16} We agree with the State that Appellee was charged with different offenses, on different dates stemming from different events. Therefore, given our decision in Haggard, we find that the first exception to the speedy trial statute is established in the present matter. {¶ 17} Assuming arguendo that both indictments arose from the same facts, this Court finds that the second Baker exception would also apply in the case sub judice. The second Baker exception simply states that where the "state was unaware of such facts at that time, the state is not required to bring the accused to trial within the same statutory period as the original charge[.]" Baker at 112. Put another way "in issuing a subsequent indictment, the state is not subject to the speedy-trial timetable of the initial indictment, when * * * the state did not know of these facts at the time of the initial indictment." Id. at 110. {¶ 18} Appellee has argued that "all of the facts which give rise to the offenses charged in the indictment were gathered in the investigation * * * and were known to appellant two weeks prior to [Appellee's] first indictment in case no. 04CR065344." This statement is not entirely accurate. The record indicates that the LPD was in possession of all facts relevant to both indictments on May 18, 2004. The Lorain County Prosecutor, however, did not come into possession of said facts until July 12, 2004; over one month after the initial indictment was handed down on June 2, 2004. {¶ 19} The police do not prosecute criminal cases; they enforce the laws of our state. The office of the prosecutor is responsible for the filing of charges, preparing court documents, and bringing the alleged criminal to trial. Therefore, it flies in the face of logic to presume that the Lorain County Prosecutor, on behalf of the State of Ohio, could indict Appellant on June 2, 2004 for the offenses stemming from the March 13, March 23, and April 1, 2004 incidents when they did not have all of the facts relating to those offenses until July 12, 2004. {¶ 20} Based on the foregoing, we conclude that the speedy trial period regarding the offenses included in the indictment for case number 05CR067480 did not begin to run on April 1, 2004, but rather upon Appellee's second arrest on March 29, 2005. {¶ 21} Having determined the commencement of the speedy trial period, we must next determine whether the State has violated Appellee's speedy trial rights with regard to the second indictment concerning case number 05CR067480.5 We will begin by reviewing the applicable statutory authority. {¶ 22} R.C. 2945.71 dictates the time limits within which a defendant must be brought to trial. Pursuant to R.C. 2945.73, if a defendant is not brought to trial within the prescribed time period, the trial court must discharge the defendant upon a motion for dismissal prior to or at the commencement of trial. R.C. 2945.73(B). But, the time within which a defendant must be brought to trial can be tolled. R.C. 2945.72. The time may be tolled for "[a]ny period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused [.]" R.C. 2945.72(E). See, e.g., Statev. Downing, 9th Dist. No. 22012, 2004-Ohio-5952, at ¶ 38. {¶ 23} Pursuant to the indictment in case number 05C067480, Appellee was charged with offenses ranging from a fourth degree misdemeanor to a third degree felony. When a defendant is charged with one or more offenses of varying degrees, the applicable speedy trial timetable is that which is required for the highest degree of offense charged. R.C. 2945.71(D). In the instant matter, the highest degree of offense with which Appellee was charged is a third degree felony. Therefore, he is entitled to be tried within 270 days after his arrest. R.C. 2945.71(C)(2). However, Appellee filed a motion to dismiss on April 7, 2005. Pursuant to R.C. 2945.72(E), this filing tolled the speedy trial timetable. The timetable remained tolled under R.C. 2945.72(E) until the trial court granted Appellee's motion to dismiss on June 15, 2005. See State v. Bickerstaff (1984),10 Ohio St.3d 62, 67 (finding that a motion to dismiss tolls the time in which a defendant must be brought to trial). {¶ 24} Appellee was arrested on March 29, 2004 and posted bond on March 30, 2004. R.C. 2945.71(E) directs that "each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days." However, "[w]hen computing the time within which a defendant must be brought to trial under R.C. 2945.71, the day of arrest or service of summons is not included." Kolvek at ¶ 5, citing State v. Steiner (1991), 71 Ohio App.3d 249, 250-251. Accordingly, because Appellee's speedy trial timetable effectively began running on March 30, 2005, and he posted bond on that same date, the triple count provision of R.C. 2945.71(E) is inapplicable. {¶ 25} Next, we must calculate the period between Appellee posting bond and his filing the motion to dismiss. Appellee posted bond on March 30, 2005 and filed his motion to dismiss on April 7, 2005, a total of eight days. This eight day period reduced Appellee's speedy trial timetable to 262 days. As discussed supra, Appellee's filing of the motion to dismiss tolled the speedy trial timetable until its resolution by the trial court on June 15, 2005. Because the trial court granted Appellee's motion to dismiss, he was no longer awaiting pending charges, and thus the speedy trial timetable has remained tolled during the subsequent period of appellate review.6 R.C.2945.72(I). Therefore, we conclude that the State has 262 days remaining with which to bring Appellee to trial for the charges levied against him in case number 05CR067480. {¶ 26} Based on the foregoing, the State's sole assignment of error is sustained. III {¶ 27} The State's sole assignment of error is sustained. The judgment of the trial court is reversed and cause remanded for proceedings consistent with this opinion. Judgment reversed, and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee. Exceptions. Moore, J. Concurs. Carr, J. Concurs in judgment only. 1 Case Number 04CR065344. 2 Case number 05CR067480. 3 See Stipulated Recitation of Underlying Facts. 4 At the May 25, 2005 hearing on the motion to dismiss case number 05CR067480, counsel for Appellee stated that "all of these charges arise from the same investigation, but they do not arise from the same facts and circumstances." Additionally, Appellee's counsel conceded that "the issue in the case was not whether these were separate incidences, because apparently they were." 5 As discussed in section I, Appellee waived his speedy trial rights with regard to the first indictment in case number 04CR065344. 6 The State filed a Notice of Appeal on June 22, 2005, which has been under appellate review since.

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OPINION {¶ 1} Plaintiff-appellant, Amy Gamble, appeals a decision of the Butler County Court of Common Pleas, Domestic Relations Division, granting a motion to reduce child support filed by defendant-appellee, Gary Gamble. For the reasons outlined below, we affirm the decision of the trial court. {¶ 2} The parties were divorced on October 5, 2006. The marriage produced one child, son Dominic, born August 23, 2004. Under the divorce decree, Gary was ordered to *Page 2 pay child support to Amy in the amount of $695.60 per month plus a two percent processing fee, for a total of $709.51 per month. At the time of the decree, both parties were employed at Cincinnati Financial Insurance Company ("Cincinnati Financial"). Amy was earning approximately $50,000 per year and Gary was earning approximately $35,000 per year. {¶ 3} Gary was terminated from his employment at Cincinnati Financial on December 4, 2006. After working a part-time job for a few months, he was hired on as an office manager at All Star Container ("All Star"). Gary earns $12 an hour at All Star and works an average of 40 hours per week. His annual salary is now approximately $25,000 per year. Amy continues to be employed at Cincinnati Financial, earning approximately $50,000 per year. She provides health insurance coverage for the parties' minor son at a cost of $1,731 per year and also pays for day care at a cost of $715 per month. She pays 1.5 percent local tax to the city of Fairfield, Ohio. {¶ 4} On February 20, 2007, Gary filed a motion to reduce his child support obligation. Following a hearing, the trial court granted the motion and reduced Gary's obligation to $540.81 per month plus a two percent processing fee, for a total of $551.63 per month. Amy timely appeals, raising one assignment of error. {¶ 5} Assignment of Error No. 1: {¶ 6} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN ESTABLISHING THE CHILD SUPPORT ORDER UTILIZING THE APPELLEE'S ACTUAL INCOME AND FAILING TO IMPUTE INCOME AS THE APPELLE WAS VOLUNTARILY UNDEREMPLOYED." {¶ 7} Amy argues that the trial court abused its discretion in granting Gary's motion to reduce his child support obligation because, according to Amy, Gary is voluntarily underemployed. She insists that Gary's termination resulted from job misconduct, and therefore urges this court to order the trial court to impute income to him in accordance with *Page 3 his former salary at Cincinnati Financial. {¶ 8} The issue of whether a parent is voluntarily underemployed is a matter to be determined by the trial court based upon the facts and circumstances of each case. Rock v. Cabral (1993), 67 Ohio St.3d 108, syllabus. We note that Amy failed to request that the trial court make separate findings of fact and conclusions of law under Civ. R. 52. Therefore, we must presume that the trial court applied the law correctly and affirm if there is some evidence in the record to support the trial court's judgment. McLead v. McLead, Washington App. No. 06CA67, 2007-Ohio-4624, ¶ 25. {¶ 9} In the absence of findings of fact and conclusions of law, we cannot readily ascertain the trial court's reasons for refusing to find that Gary was voluntarily underemployed. In its decision granting Gary's motion to reduce his child support obligation, the trial court noted only that Gary was terminated from Cincinnati Financial on December 4, 2006. The court made no mention of underemployment. Although there was evidence that Gary was terminated for substandard employee conduct, our review of the record reveals that there was evidence supporting that Gary's change in employment constituted a change in circumstances sufficient to reduce his child support obligation. See Farmer v.Farmer, Medina App. No. 03CA0115-M, 2004-Ohio-4449, ¶ 10-12. {¶ 10} Where a court recalculates the actual annual obligation required pursuant to the schedule and applicable worksheet and the resulting amount is ten percent greater or less than the existing actual annual child support obligation, a substantial change in circumstances exists. Id. See, also, R.C. 3119.79(A). The trial court completed a new child support computation worksheet, inserting Gary's current $25,000 income in place of his former $35,000 income. Amy's annual income figure was increased from $50,000 to $52,000 on the new worksheet, which appears to reflect the inclusion of a $2,000 Christmas bonus. {¶ 11} After the computations were performed, the resulting annual child support *Page 4 amount owed by Gary was over ten percent less than his existing actual annual child support obligation. Based upon our review of the record and the trial court's calculations, we cannot say that the court abused its discretion in determining that a reduction in Gary's child support obligation was warranted. See Foster v. Foster, 150 Ohio App.3d 298,2002-Ohio-6390, ¶ 9. {¶ 12} Amy's first assignment of error is overruled. {¶ 13} Judgment affirmed. WALSH, P.J., and POWELL, J., concur. *Page 1

2016-07-06 06:36:20.058072+00

OPINION {¶ 1} Defendant, Fentahun G. Mengistu, appeals from a decision and entry of the Franklin County Court of Common Pleas denying defendant's petition to vacate or set aside judgment under R.C. 2953.21. For the reasons that follow, we affirm the judgment of the trial court. {¶ 2} On February 13, 2001, defendant was indicted by the Franklin County Grand Jury on the following counts: one count of aggravated robbery, in violation of R.C. 2911.01; two counts of robbery, in violation of R.C. 2911.02; one count of kidnapping, in violation of R.C. 2905.01; and one count of receiving stolen property, in violation of R.C. 2913.51. The indictment contained firearm specifications as to counts one, two, three, and four. {¶ 3} In November 2001, the case proceeded to trial before a jury, but the trial court declared a mistrial and excused the jury. A second trial was commenced on December 10, 2001. The jury returned verdicts finding defendant guilty of all five counts contained in the indictment, including the firearm specifications. On April 16, 2002, by a corrected judgment entry, the trial court sentenced defendant to three years in prison as to count one (aggravated robbery) and six months in prison as to count five (receiving stolen property), to be served concurrently. The trial court imposed no sentence for counts two and three, and count four merged with count one.1 Defendant timely appealed from this judgment to this court. {¶ 4} On November 7, 2002, defendant filed, with the trial court, a petition to vacate or set aside judgment, pursuant to R.C. 2953.21. In said petition, defendant alleged ineffective assistance of trial counsel and due process violations, and also incorporated all errors assigned in his prior appeal to this court. In support of his petition, defendant submitted affidavits of individuals who did not testify at either trial. {¶ 5} On March 25, 2003, while the petition for post-conviction relief was pending before the trial court, this court, in Mengistu I, overruled defendant's three assignments of error and affirmed the judgment of the Franklin County Court of Common Pleas. This court held that double jeopardy did not bar the retrial of defendant under the facts of the case, and that defendant failed to demonstrate that he was denied effective assistance of counsel. See id. at ¶ 29, 64. We note that this court, in Mengistu I, thoroughly outlined and summarized the evidence that was presented at the second trial. Therefore, the evidence presented at the second trial that was discussed inMengistu I is included in this opinion by reference. {¶ 6} On November 12, 2003, the trial court denied defendant's petition for post-conviction relief, without conducting a hearing. The trial court determined defendant's claim of ineffective assistance of counsel to be barred by res judicata. The trial court also determined that "[e]ven if Defendant's claim of ineffectiveness of counsel was not barred byres judicata * * * this Court would have denied Defendant's argument." (Nov. 12, 2003 Decision and Entry, at 6.) The trial court observed, "Defendant's claim does not pass the well-established standard by which courts are bound in reviewing a claim of ineffective assistance of counsel." Id. at 6-7. Defendant appeals from the November 12, 2003 decision and assigns the following error for our review: The trial court violated appellant's rights as guaranteed by the sixth and fourteenth amendments to the united states constitution and comparable provisions of the Ohio constitution by denying his petition for relief under R.C. 2953.21 without first conducting an evidentiary hearing. {¶ 7} By his sole assignment of error, defendant asserts that the trial court erred when it denied his petition for post-conviction relief without first conducting a hearing. Specifically, defendant asserts that "the trial court erred in failing to grant relief, or at a minimum, to conduct an evidentiary hearing to determine the merits of Appellant's claims." (Defendant's brief, at 6.) {¶ 8} R.C. 2953.21 governs petitions for post-conviction relief. R.C. 2953.21(A)(1)(a) provides, in pertinent part: Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. {¶ 9} The Supreme Court of Ohio has stated that "before a hearing is granted, `the petitioner bears the initial burden to submit evidentiary documents containing sufficient operativefacts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness.'" (Emphasis sic.) State v. Calhoun (1999), 86 Ohio St.3d 279,283, quoting State v. Jackson (1980), 64 Ohio St.2d 107, at syllabus. If the petitioner fails to meet this burden, then the trial court may summarily dismiss the petition without a hearing.State v. Perry (1967), 10 Ohio St.2d 175, paragraph two of the syllabus. {¶ 10} In the context of reviewing an R.C. 2953.21 petition for post-conviction relief, "a trial court should give due deference to affidavits sworn to under oath and filed in support of the petition, but may, in the sound exercise of discretion, judge their credibility in determining whether to accept the affidavits as true statements of fact." Calhoun, at 284. Factors that a trial court should consider in this determination include, but are not limited to: * * * (1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner's efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial. Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by evidence in the record by the same witness, or to be internally inconsistent, thereby weakening the credibility of that testimony. * * * Calhoun, at 285, citing State v. Moore (1994),99 Ohio App.3d 748, 754-756. The Supreme Court of Ohio, in Calhoun, at 284, further stated, "not all affidavits accompanying a postconviction relief petition demonstrate entitlement to an evidentiary hearing, even assuming the truthfulness of their contents." We find that this principle applies to the case at bar. In other words, even if the information in the affidavits submitted by defendant is true, such information does not demonstrate ineffective assistance of counsel. See id. {¶ 11} In order to establish ineffective assistance of counsel, defendant must meet a two-part test. Strickland v.Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. First, defendant must demonstrate that his trial counsel's performance was deficient. That is, defendant must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. A defendant claiming ineffective assistance of counsel must identify specific acts or omissions of counsel that are alleged not to be within the realm of reasonable professional judgment. Id. at 690. A strong presumption exists that counsel's conduct or omissions are within the wide range of reasonable professional assistance. Id. at 689. See, also, State v.Nichols (1996), 116 Ohio App.3d 759, 764 (stating, "[t]here is a strong presumption that licensed attorneys are competent and that the challenged action is the product of sound trial strategy. * * * Even debatable trial tactics do not constitute ineffective assistance of trial counsel.") A court must ultimately determine whether, under the circumstances, the acts or omissions were "outside the wide range of professionally competent assistance."Strickland, at 690. {¶ 12} Second, in order to establish ineffective assistance of counsel, defendant must also demonstrate that the deficient performance prejudiced the defendant. This requires defendant to show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. In other words, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. {¶ 13} Preliminarily, we observe that res judicata will not bar a claim that is supported by evidence originally dehors the record because it "would have been impossible to fully litigate the claim on direct appeal." State v. Green, Mahoning App. No. 02 CA 35, 2003-Ohio-5142, citing State v. Reynolds (1997),79 Ohio St.3d 158, 161, and Perry, supra. Defendant correctly concludes that res judicata did not bar his claim of ineffective assistance of counsel contained in his petition for post-conviction relief because his claim relies on documentation outside the record in the original appeal. The affidavits submitted with the petition for post-conviction relief were not part of the record in Mengistu I. We note, however, that, based on the record before this court in Mengistu I, this court determined that defendant failed to demonstrate that he was denied effective assistance of counsel at trial. {¶ 14} A defendant that alleges ineffective assistance of counsel "occurring dehors the record * * * must support his allegations with evidentiary quality documents." State v. Mack (Oct. 26, 2000), Cuyahoga App. No. 77459, citing State v.Kapper (1983), 5 Ohio St.3d 36, and Jackson, supra. Thus, we must determine whether the affidavits submitted with the petition for post-conviction relief provide sufficient operative facts indicating that defendant's trial counsel was deficient and that defendant was prejudiced by this deficiency. {¶ 15} In his petition for post-conviction relief, defendant alleged that defendant's trial counsel "did not interview witnesses available to him and conduct a reasonable investigation of the case in order to discover relevant, exculpatory evidence." (See November 7, 2002 petition.) Defendant also alleged that his trial counsel was given, prior to the first trial, the names of "exculpating witnesses," which included the affiants. See id. {¶ 16} We observe that no documentation of evidentiary quality was submitted with the petition indicating that trial counsel was provided the names of the affiants prior to the first trial. Furthermore, defendant's allegations regarding trial counsel's action or inaction, with respect to potential witnesses, are not supported by sufficient documentation of evidentiary quality. We note that our analysis in this appeal, regarding trial counsel's alleged ineffective assistance, is essentially limited to the testimony contained in the affidavits, not what was merely alleged in the petition by defendant's counsel. Three of the submitted affidavits make the following statement: "During the course of Fentahun's first trial, I was not contacted to testify, neither was I interviewed about these events by Web Lyman, or any of his representatives." (Affidavits of Achenifi Molla, Hailu Mebrahtu, and Binian Golla.) Curiously, the submitted affidavits make no reference as to whether the affiants were contacted to testify or interviewed subsequent to the termination of defendant's first trial. Defendant was convicted following the presentation of the evidence in the second trial, not the first. Considering defendant's first trial ended as a mistrial, we find the affiants' identical statements inconsequential with respect to whether defendant's counsel provided ineffective assistance at trial. Assuming trial counsel had obtained the names of the affiants, the affidavits do not indicate that the affiants were not contacted or interviewed subsequent to the termination of the first trial. Moreover, even assuming trial counsel contacted or interviewed the affiants, our consideration of the statements contained within the affidavits, regarding the robbery, leads us to the conclusion that a decision not to call these individuals to testify would have been within the sound discretion of trial counsel. {¶ 17} Upon our consideration of the affidavits submitted with defendant's petition for post-conviction relief, we conclude that defendant has failed to submit evidentiary quality documents containing "sufficient operative facts" indicating that defendant's trial counsel fell below an objective standard of reasonableness. Consequently, we conclude that the trial court did not err when it denied defendant's petition for post-conviction relief without conducting a hearing. Accordingly, defendant's sole assignment of error is overruled. {¶ 18} Having overruled defendant's sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. Klatt and Watson, JJ., concur. 1 We observe that the trial court stated the following at the sentencing hearing: "[B]y law, I am required to impose a sentence of three years on the firearm specification. That would be consecutive to Counts One and Five." (Tr. II, at 193-194.) However, for reasons not apparent from the record before this court, the trial court did not impose, in its judgment entry, the mandatory three-year prison sentence for the firearm specification, which must be served consecutively with the underlying felony. See April 16, 2002 Corrected Judgment Entry; R.C. 2929.14(D)(1)(a) and (E)(1). This issue was not raised by the state in State v. Mengistu, Franklin App. No. 02AP-497, 2003-Ohio-1452 ("Mengistu I"), and has not been raised by the state in this appeal.

2016-07-06 06:36:20.238359+00

OPINION {¶ 1} Plaintiffs-appellants Nancy Weakley, et al. appeal from the April 14, 2004, Judgment Entry of the Licking County Court of Common Pleas, Probate Division, granting the Motion for Summary Judgment filed by defendant-appellee Rebecca Carlyle, Executor of the Estate of James H. Carlyle. STATEMENT OF THE FACTS AND CASE {¶ 2} James H. Carlyle and Peggy Carlyle are the parents of appellants Nancy Weakley, Kathleen Lees (nka Kathleen Blaine) and James E. Carlyle. {¶ 3} On or about October 30, 1987, James H. Carlyle and Peggy Carlyle entered into a Separation Agreement. The Separation Agreement stated, in relevant part, as follows: {¶ 4} "A. That the residence located at 1018 Thornwood Drive, Heath, Ohio 43056, shall remain in both names with each party owning an undivided one-half interest in said property. However, the wife shall have the sole and exclusive right of possession and occupancy of said property as long as she desires, so long as she does not remarry or cohabit with another person. . . . {¶ 5} "D. If either party should die prior to the residence . . . being sold, that deceased party's interest in said real estate shall be conveyed to the children of the parties, namely, Nancy L. Weakley, Kathleen J. Lees, and James E. Carlyle." {¶ 6} The Separation Agreement was incorporated into the December 24, 1987, Decree of Dissolution of Marriage. {¶ 7} On January 20, 2002, James H. Carlyle died. Carlyle's Last Will and Testament, which was dated January 17, 1990, stated, in pertinent part, as follows: {¶ 8} "I refer to my divorce decree filed of record on December 24, 1987, in the Licking County Court of Common Pleas, Case Number 87-S-83991 and give, devise and bequeath any interest that I might have at the time of my death in the real estate located at 1018 Thornwood Dr., Heath, Ohio 43056 and the real estate located at 1858 and 1860 Cherry Valley Rd., Newark, Ohio 43055 and the real estate containing 7.68 acres in the Township of Granville, now the City of Newark, located on Cherry Valley Rd. to my children, namely, Nancy, Kathleen and James E., share and share alike." {¶ 9} The Last Will and Testament, which was admitted to Probate on May 20, 2002, named Rebecca Carlyle, James H. Carlyle's surviving spouse, as the Executor. {¶ 10} On July 25, 2002, an inventory and appraisal of James H. Carlyle's Estate was filed with the trial court. The trial court approved the same on August 16, 2002. {¶ 11} On November 12, 2002, appellants filed a complaint against Rebecca Carlyle, as Executor of the Estate of James H. Carlyle, and Rebecca Carlyle individually. Appellants, in their complaint, alleged that an undivided one-half interest in the real property located on Thornwood Drive vested in them, pursuant to the language of the Separation Agreement, upon James H. Carlyle's death and that, therefore, their interest in such real property should not be considered as part of James H. Carlyle's estate and included in the estate inventory. Appellants contended that their interest in the real property located on Thornwood Drive was a non-probate asset. Appellants specifically sought a declaratory judgment declaring that the approval of the inventory be set aside, that appellee Rebecca Carlyle, as Executor, be ordered to file a new inventory excluding appellants' interest in the real property, and that an order be filed transferring the same to appellants free and clear of any claims arising out of the Estate of James H. Carlyle. {¶ 12} On March 25, 2003, appellants filed an amended complaint adding Hopewell Credit Union1 and other entities that had filed claims against the Estate of James H. Carlyle as defendants "and as a result . . . have or may have an interest in the claims of Plaintiff's". {¶ 13} Both appellants and appellee Rebecca Carlyle filed Motions for Summary Judgment. Pursuant to a Judgment Entry filed on April 14, 2004, the trial court denied appellants' motion while granting that filed by appellee Rebecca Carlyle. The trial court, in its entry, stated, in relevant part, as follows: {¶ 14} ". . . The property settlement did not create joint ownership of the decedent's one-half interest in his real estate, with a condition of survivorship interest, to the children. The agreement entered into by the decedent and his former spouse bound the two but them only. The Court also notes that the decedent and his former spouse retained authority to sell or dispose of this property without the consent of the children. The Court notes that there was never a survivorship deed prepared and recorded which gave to decedent's children a vested interest in decedent's one-half interest in the real estate. This Court also notes with significance that in Item One (1) of the decedent's last will and testament, he specifically devises and bequeaths whatever interest he might have at the time of his death, in the real estate located at 1018 Thornwood Drive, Heath, Ohio to his three children, share and share alike. Although in this provision of his will he refers to his divorce decree in a general fashion, the specific mention of this real estate and the specific devise of it in his last will and testament, re-enforces this Court's conclusion that the interest in this real estate is an asset of the estate." {¶ 15} It is from the trial court's April 14, 2004, Judgment Entry that appellants now appeal, raising the following assignment of error: {¶ 16} "The trial court erred in granting defendant, rebecca carlyle's motion for summary judgment on the ground that the real property in question was a non-probate asset and should not be included in the inventory of decedent." STANDARD OF REVIEW {¶ 17} 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, 506 N.E.2d 212. As such, we must refer to Civ. R. 56(C) which provides, in pertinent 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 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 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, such party being entitled to have the evidence or stipulation construed most strongly in the party's favor." {¶ 18} Pursuant to the above rule, a trial court may not enter 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 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-259,674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107,662 N.E.2d 264. {¶ 19} It is pursuant to this standard that we review appellants' assignment of error. I {¶ 20} Appellants, in their sole assignment of error, argue that the trial court erred in granting appellee's Motion for Summary Judgment. Appellants specifically contend that the trial court erred in holding that the real property at issue was a probate asset and should be included in the estate inventory. We disagree. {¶ 21} A probate court is a court of limited jurisdiction and therefore is restricted to actions permitted by statute and the Ohio Constitution. Corron v. Corron (1988), 40 Ohio St.3d 75, 77,531 N.E.2d 708. A probate court lacks jurisdiction to determine interest in assets which are non-probate, as opposed to probate, assets. See SpangV. Rickbrodt, Cuyahoga App. No. 61353, 1991 WL 221993, citing In reEstate of Etzensperger (1984), 9 Ohio St.3d 19, 457 N.E.2d 1161. {¶ 22} Revised Code Chapter 5302 outlines the statutory forms of land conveyance. R.C. 5302.19, captioned "Tenancy in Common," states as follows:" Except as provided in sections 5302.17, 5302.20, and 5302.21 of the Revised Code, if any interest in real property is conveyed or devised to two or more persons, such persons hold title as tenants in common and the joint interest created is a tenancy in common." In turn, R.C. 5302.20, captioned "When survivorship tenancy exists; characteristics or ramifications," states, in relevant part, as follows: "if any interest in real property is conveyed or devised to two or more persons for their joint lives and then to the survivor or survivors of them, those persons hold title as survivorship tenants, and the joint interest created is a survivorship tenancy." {¶ 23} As noted by Hopewell Federal Credit Union in its amicus brief, pursuant to the language in the Separation Agreement, James. H. Carlyle and Peggy Carlyle held title as tenants in common. The Separation Agreement does not state that the couple's children were joint owners of the Thornwood Dr. property with a right of survivorship. Since the Separation Agreement did not comply with R.C. 5302.20, the Agreement did not create a joint and survivorship interest in appellant's in the real estate. In short, there was no survivorship deed granting Carlyle's children a vested interest in his onehalf interest in the real estate on Thornwood Drive. {¶ 24} Furthermore, we note that the Separation Agreement provides that if either party dies prior to the Thornwood Drive property being sold, "that deceased party's interest in said real estate shall be conveyed to the parties of the children . . ." Such language does not actually convey the property, but rather constitutes an agreement between James H. Carlyle and Peggy Carlyle to convey any interest he or she may have in such property to their children if either party dies prior to the property being sold. In accordance with the terms of the Separation Agreement, James. H. Carlyle, in his Last Will and Testament, gave, devised and bequeathed any interest he might have in the real property at the time of his death to appellants, his children. As noted by the trial court in its entry, the specific mention of the subject real estate in Carlyle's will and his specific devise of it reinforces "the conclusion that the interest in this real estate is an asset of the estate." Furthermore, this Court is unaware of any statutory or case law that permits an individual to convey property to his or her heirs via a Divorce Decree. {¶ 25} Based on the foregoing, we find that the trial court did not err in holding that the real property in question was a probate asset and including the same in the estate inventory. {¶ 26} Appellants' sole assignment of error is, therefore, overruled. {¶ 27} Accordingly, the judgment of the Licking County Court of Common Pleas, Probate Division, is affirmed. 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 Licking County Court of Common Pleas, Probate Division, is affirmed. Costs assessed to appellants. 1 Hopewell Federal Credit Union filed an amicus curiae brief in the case sub judice.

2016-07-06 06:36:20.374998+00

JOURNAL ENTRY AND OPINION {¶ 1} Appellant, Danny Cooper, appeals his postrelease control sentence. After a thorough review of the record, and for the reasons set forth below, we affirm. {¶ 2} On November 16, 2000, appellant received a seven year sentence for grand theft of an automobile, a fourth degree felony; assault on a police officer, a fourth degree felony; failure to comply with an order of a police officer, a third degree felony; and attempted felonious assault, a third degree felony. The sentencing journal entry indicates that the trial judge informed appellant "of the possibility of up to five years of postrelease control." {¶ 3} The Ohio Department of Rehabilitation and Correction became concerned that the journal entry did not properly authorize the imposition of postrelease control. On June 13, 2007 (one day before appellant was to be released from prison), the trial court held a hearing conducted via video conference. An assistant public defender represented appellant. Appellant requested more time to retain private counsel, but the trial court denied his request. Appellant also objected to the use of a video conference. {¶ 4} After the hearing, the trial court entered a nunc pro tunc entry under R.C. 2929.191, which appropriately indicated that appellant was subject to up to three years of postrelease control (rather than the five years, as erroneously indicated in the original journal entry). {¶ 5} Review and Analysis *Page 4 {¶ 6} Appellant brings this appeal, asserting seven assignments of error for our review. Because appellant's first and fourth assignments of error are substantially interrelated, we will address them together. {¶ 7} "I. The trial court's addition of postrelease control to Appellant's original sentence constituted a double jeopardy violation. {¶ 8} "IV. The trial court's imposition of postrelease control by video conference one day before appellant's release after serving a seven-year prison term violated his due process rights." {¶ 9} The crux of appellant's arguments within these assignments of error is that the trial court's imposition of three years of postrelease control on June 13, 2007, without a de novo resentencing hearing, constitutes a constitutional violation. For the reasons below, and based upon a totality of the circumstances, we find this argument to be without merit. {¶ 10} The Fifth Amendment of the United States Constitution, and Article I, Section 10 of the Ohio Constitution, protect defendants from being put in jeopardy twice for the same offense. The imposition of multiple criminal punishments for the same offense, arising out of the successive proceedings, is unconstitutional. Hudson v.United States (1997), 522 U.S. 93, 98-99, 118 S.Ct. 488, 139 L.Ed.2d 450. {¶ 11} The trial court resentenced appellant pursuant to R.C.2929.191. "R.C. 2929.191 authorizes the sentencing court — before the offender is released *Page 5 from prison — to `prepare and issue a correction to the judgment of conviction that includes in the judgment of conviction the statement that the offender will be [subject to postrelease control] after the offender leaves prison.'" State ex rel. Cruzado v. Zaleski,111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, at ¶ 29.1 {¶ 12} Postrelease control is a "period of supervision by the adult parole authority after a prisoner's release from imprisonment."Woods v. Telb, 89 Ohio St.3d 504, 509, 2000-Ohio-171, 733 N.E.2d 1103, quoting R.C. 2967.01(N). In State v. Jordan, 104 Ohio St.3d 21,2004-Ohio-6085, 817 N.E.2d 864, the Ohio Supreme Court held that a trial court must notify a defendant at the sentencing hearing about postrelease control and incorporate it into the journal entry.Jordan stated that any sentence imposed without this notification must be vacated and remanded for resentencing. Id. {¶ 13} As appellant correctly argues, when "postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense." State v. Bezak, 114 Ohio St.3d 94,2007-Ohio-3250, 868 N.E.2d 961, at syllabus. *Page 6 Most recently, the Ohio Supreme Court has held that, "because a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing, any sentence imposed without such notification is contrary to law." State v. Simpkins, 117 Ohio St.3d 420,2008-Ohio-1197, 884 N.E.2d 568, at ¶ 15. In those cases, a de novo resentencing is required in order to "add" postrelease control. {¶ 14} The case before us, however, differs significantly from the cases where the defendant was not advised about postrelease control at the original sentencing hearing. Here, appellant was originally told he could be subjected to an incorrect length of postrelease control. "In correcting a statutorily incorrect sentence, [a trial court] does not violate a defendant's constitutional guarantee against double jeopardy."State v. Ramey, Franklin App. No. 06AP-245, 2006-Ohio-6429, at ¶ 16. Accordingly, the trial court had the authority to correct the original incorrect sentence, R.C. 2929.191 was inapplicable, and a de novo sentencing hearing was not required. {¶ 15} A review of the applicable case law supports this position. InState v. Simpson, Cuyahoga App. No. 88301, 2007-Ohio-4301, at ¶ 106, at the defendant's sentencing hearing, the trial judge informed him that "when you come out [of prison], you will come out on postrelease control, parole, for a period of up to 10 years." The journal entry read, "defendant notified of possibility of postrelease control of up to 10 years." Id. This court held that only five years of postrelease control was *Page 7 appropriate and sua sponte modified Simpson's sentence to include five years of mandatory postrelease control. Id. at ¶ 111. See, also,State v. Leonard, Cuyahoga App. No. 88299, 2007-Ohio-3745 (this court modified Leonard's sentence when the trial court sentenced him to five years of postrelease control, rather than the appropriate three years). {¶ 16} The Simpson court found its case distinguishable fromBezak and Jordan because in Simpson, the defendant "was [originally] told that he would have to serve a longer term' than the five years actually required." Simpson, at ¶ 115, citing Cruzado, supra, at ¶ 26. The Simpson court stated that, because Simpson had some notice that he would be subjected to postrelease control, it was not necessary to conduct a new de novo sentencing hearing. Id. {¶ 17} Further, in State v. Rogers, 12th Dist. No. CA2006-09-036,2007-Ohio-3720, the court simply modified the defendant's sentence to include the appropriate discretionary three years of postrelease control after the trial court had erroneously originally imposed a mandatory five-year period. {¶ 18} Appellant's situation is similar to those in Simpson,Cruzado, and Rogers. He received some notice at his original hearing that he would be subject to postrelease control. Specifically, appellant was informed that he would receive up to five years postrelease control, when in fact the court should have imposed up to three years postrelease control. On June 13, 2007, the court properly corrected appellant's sentence to reflect that he would be subjected to up to three years *Page 8 postrelease control. Accordingly, appellant's first and fourth assignments of error are overruled. {¶ 19} "II. The trial court's `after-the-fact' imposition of postrelease control violated R.C. 2929.14(F) and R.C. 2967.28." {¶ 20} Appellant argues that the trial court violated R.C. 2929.14(F) and 2967.28 when it imposed "after-the-fact" postrelease control. This argument is without merit. {¶ 21} In the case at bar, the trial court did not impose "after-the-fact" postrelease control. We are aware that this court has reversed such after-the-fact postrelease control additions. SeeState v. Fletcher, Cuyahoga App. No. 89458, 2008-Ohio-320; State v.Lemieux, Cuyahoga App. No. 89678, 2008-Ohio-1253. However,Fletcher and Lemieux involved situations where the trial court failed to mention postrelease control at all at the original sentencing. Here, appellant knew during the entire time he was in prison that he was subject to postrelease control. The trial judge originally sentenced appellant to "up to five years" of postrelease control. In June 2007, while appellant was still in prison, the trial judge informed him that the term would actually be "up to three years." Appellant was already on notice that he could receive postrelease control; therefore, this cannot be considered after-the-fact. Accordingly, appellant's second assignment of error is overruled. {¶ 22} "V. The trial court erred in adding postrelease control to appellant's original sentence as the addition was precluded by the doctrine of res judicata when *Page 9 the state failed to appeal the omission of postrelease control from appellant's original sentence." {¶ 23} Appellant argues that the trial court erred when it added postrelease control to his sentence. More specifically, he alleges that res judicata prevents the trial court from "adding" postrelease control because "the state failed to appeal the omission of postrelease control from appellant's original sentence." As discussed above, postrelease control was not omitted from the original sentence; rather, the possible length of the term was simply incorrect. Accordingly, appellant's fifth assignment of error is overruled. {¶ 24} Appellant's first, second, fourth, and fifth assignments of error are dispositive of this case; therefore, assignments of error III, VI, and VII are moot.2 Judgment affirmed. It is ordered that appellee recover from 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 common pleas court to carry this judgment into execution. *Page 10 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 MELODY J. STEWART, J., CONCUR APPENDIX Appellant's remaining assignments of error: III. The trial court's imposition of postrelease control by video conference violated Crim.R. 43(A) and Appellant's due process right to be physically present at every stage of his criminal proceeding. VI. Am. Sub. H.B. 137 violates the one subject provision of the Ohio constitution and is therefore unconstitutional. VII. The Defendant was denied effective assistance of counsel. 1 Under R.C. 2929.191(A)(2), "the court shall place upon the journal of the court an entry nunc pro tunc to record the correction to the judgment of conviction and shall provide a copy of the entry to the offender. *** The court's placement upon the journal of the entry nunc pro tunc before the offender is released from imprisonment under the term shall be considered, and shall have the same effect, as if the court at the time of original sentencing had included the statement in the sentence and the judgment of conviction entered on the journal and had notified the offender that the offender will be so supervised." 2 Because we have held that the trial court had the authority to correct its statutorily incorrect sentence, and R.C. 2929.191 was inapplicable, these assignments of error are moot (See Assignments of Error III, VI, and VII in the Appendix to this Opinion). The third assignment of error pertains to the constitutionality of R.C. 2929.191; the sixth assignment of error pertains to the constitutionality of Am. Sub. H.B. 137; and the seventh assignment of error pertains to events that took place at appellant's R.C. 2929.191 hearing. *Page 1

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This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Defendant-Appellant Louis E. Kovanda has appealed from a judgment of the Summit County Common Pleas Court that awarded Plaintiff-Appellee Mary Frechette $176,117.30. This Court reverses. I. Mary Frechette is the sole shareholder of G J Industries, Inc. (Industries), and her husband, John, is the acting president of the company. During 1995, John was approached by Baytree Investors Inc., an investment group, concerning the purchase of Industries. Negotiations began between the Frechettes and Christopher Jansen, an employee from Baytree who acted as an agent for Louis Kovanda. First Capital Corporation (FCC) was contacted to finance the purchase and began an audit of Industries to verify there was enough collateral to secure the loan. On December 10, 1995, Mary Frechette signed a purchase agreement with G J Holdings (Holdings). According to the purchase agreement, Holdings may form a new corporation not named in the agreement to complete the transaction. The transaction consisted of Mary Frechette selling to Holdings all of her stock in Industries. According to the testimony at trial, the parties agreed that Kovanda would purchase Industries from Mary Frechette through his existing holding company, FETLA and change the name to Holdings. John Frechette would also continue to work for the company. After FCC was satisfied with its examination, a meeting was arranged to sign the loan documents. On February 13, 1996, a corporate resolution was adopted by in which Kovanda was named president of Industries and was authorized to borrow money from FCC. At that same meeting, Kovanda signed all the loan documents as president of Industries and Mary Frechette signed a trustee and custodian agreement that appointed her as a fiduciary on behalf of FCC. Mary Frechette also signed collateral report forms that contained an assignment and security agreement where all present and future accounts receivable were assigned to FCC as security for the loan. Next, Kovanda wrote two personal checks to Industries that totaled $60,000. It was understood by the parties that the checks were supposed to provide for any shortfall in the corporate cash flow. FCC also disbursed $100,000 on behalf of Industries to pay off a loan and disbursed $85,000 into Mary Frechette's personal account. Shortly thereafter, Kovanda notified the Frechettes and FCC that he was not going to purchase the stock of Industries and cancelled the purchase agreement. Kovanda stopped payment on both of his personal checks. Baytree prepared a letter that was signed by Kovanda which stated that his reasons for canceling the agreement were that: (1) the Frechettes failed to provide a true and complete financial statement regarding their company; (2) the Frechettes failed to report an adverse change in the company's financial condition; (3) the Frechettes made false and misleading statements regarding the business condition of Industries; (4) the Frechettes failed to provide complete statements regarding the ownership of property used by Industries; and, (5) the Frechettes failed to advise Kovanda of leasing arrangements between Industries and other companies owned by the Frechettes which were characterized as a method of financial support for the other companies. On June 20, 1996, FCC filed a complaint against Industries, the Ferchettes, Kovanda, FETLA and Industries' attorneys requesting judgment on the loan and security agreements executed on February 13, 1996. At some point, Kovanda, FETLA and Industries' attorneys were dismissed. The case proceeded to a jury trial, and the jury found in favor of FCC on all claims. On December 16, 1997, Mary Frechette filed a complaint in Summit County against Kovanda and Holdings for breach of contract, negligent misrepresentation and fraud. The matter went to binding arbitration pursuant to paragraph eleven of the purchase agreement. The arbitrators determined that Kovanda and Holdings were joint and severally liable to Mary Frechette for breach of contract, negligent misrepresentation and fraud. On April 13, 1999, Kovanda moved the trial court to vacate or modify the arbitration award pursuant to R.C. 2711.10 and 2711.11, arguing that the arbitrators exceeded their powers as: (1) they had no jurisdiction over Kovanda; (2) the arbitrators had no authority to change the provisions of the agreement; (3) the arbitrators misapplied the law and burden of proof relating to fraud; (4) the award was against the manifest weight of the evidence; and, (5) the arbitrators showed prejudice in handling the case. Mary Fechette responded in opposition and moved the trial court to confirm the arbitration award. Holdings did not respond to the motions. On September 29, 1999, the trial court confirmed the award against Holdings but set aside the award against Kovanda, holding that the arbitrators had no personal jurisdiction over him. Shortly thereafter, Mary Frechette moved to amend her complaint to include the doctrine of piercing the corporate veil, which the trial court granted. The matter then proceeded to trial without a jury. At the close of Mary Frechette's case, the trial court directed verdict in favor of Kovanda individually on the claims of breach of contract, fraud and negligent misrepresentation. However, the trial court found that there was sufficient evidence to proceed with the theory of piercing the corporate veil. At the end of the trial, the court allowed Mary Frechette to pierce the corporate veil and found Kovanda individually liable. Kovanda timely appealed, asserting two assignments of error. For ease of discussion, this Court has consolidated Kovanda's arguments. II. Assignment of Error Number One The judgment is contrary to law because the lower court incorrectly interpreted the law. Assignment of Error Number Two The judgment is contrary to law because the lower court incorrectly applied the law. In his first and second assignments of error, Kovanda has argued that the trial court erred in interpreting and applying the doctrine of piercing a corporate veil. Additionally, he has asserted that if the trial court had applied the appropriate law, the trial court would not have ruled in favor of Mary Frechette with regard to her claim of piercing the corporate veil. This Court will first discuss the appropriate legal standard for piercing a corporate veil before reviewing the evidence in this case. Generally, shareholders are not liable for the debts of the corporation. Belvedere Condominium Unit Owners' Assn. v. R.E. RoarkCos., Inc. (1993), 67 Ohio St.3d 274, 287. An exception exists where creditors of a corporation may "pierce the corporation's veil" and hold individual shareholders liable when the following three conditions present: [T]he corporate form may be disregarded and individual shareholders held liable for corporate misdeeds when (1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the Appellees from such control and wrong. Id. at 289. The first prong of the Belvedere test is basically the "alter ego doctrine." See Willoway Nurseries v. Curdes (Oct. 13, 1999), Lorain App. No. 98CA007109, unreported, at 4. In order to satisfy this requirement, a plaintiff must prove that the individual and the corporation are fundamentally indistinguishable. Belvedere,67 Ohio St.3d at 288. Some of the factors used to determine if this standard has been met include: (1) whether corporate formalities were observed; (2) whether corporate records were kept; (3) whether corporate funds were commingled with personal funds; and (4) whether corporate property was used for a personal purpose. LeRoux's Billyle Supper Club v. Ma (1991),77 Ohio App.3d 417, 422-423. When evaluating whether a judgment is against the manifest weight of the evidence in a civil context, the standard of review is the same as that in the criminal context. Frederick v. Born (Aug. 21, 1996), Lorain App. No. 95CA006286, unreported, at 14. 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 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. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, quoting State v.Martin (1983), 20 Ohio App.3d 172, 175; see, also State v. Otten (1986),33 Ohio App.3d 339, 340. The judgment entry in the present case reveals that the trial court found that the doctrine of piercing the corporate veil was not applicable to the facts in this case because Holdings was not a legal corporation at the time the parties signed the purchase agreement.1 Nevertheless, the trial court deemed that the elements of the doctrine were applicable to the case and found that: a. Kovanda's control over [Holdings] was so complete that [Holdings] had no separate mind, will, or existence of its own; b. Injustice or unfairness results from maintaining the corporate fiction; [Bucyrus-Erie Co. v. Gen. Prod. Corp., (C.A.6, 1981) 643 F.2d 413, 418; Ohio Bur. Of Workers' Comp. v. Widenmeyer Elec. Co. (1991), 72 Ohio App.3d 100] c. Injury or unjust loss resulted to the Plaintiff from such control or wrong. [Bucyrus-Erie] Based on the foregoing, this Court concludes that the trial court erred when it applied the alter ego theory as a matter of law and did not follow the test set forth in Belvedere. Although the alter ego theory is the first prong of the Belvedere test, the trial court did not consider the second prong of whether Kovanda's control over Holdings was exercised in such a manner as to commit fraud or an illegal act against Mary Frechette. Furthermore, in reviewing the record of the present case, this Court concludes that the decision of the trial court is against the manifest weight of the evidence. At trial, Mary Frechette relied on the fact that Kovanda set up the financing with FCC and then left her with the loan when he cancelled the purchase agreement as support for her claim of piercing the corporate veil. The evidence established that, after Kovanda cancelled the agreement, Industries experienced financial problems with FCC concerning the terms of the loan. Ultimately, Mary Frechette and Industries were bound by the terms of the loan. See First Capital Corp.v. G J Industries, Inc. (1999), 131 Ohio App.3d 106, 117-118. Lastly, Mary Frechette pointed to the fact that Kovanda later purchased another business similar to Industries as evidence that Kovanda intended to defraud Industries. In reviewing the record, this Court concludes that the evidence adduced at trial was inadequate to prove that Kovanda's control over Holdings resulted in fraud or an illegal act against Mary Frechette. Although Mary Frechette established that Industries experienced financial problems and that Kovanda later purchased another business, she has failed to demonstrate how Kovanda's control over Holdings was an act of fraud or illegal and how his actions ultimately caused her injury. Furthermore, the trial court directed verdict in favor of Kovanda because Mary Frechette failed to establish that Kovanda individually committed fraud or any false promise. Accordingly, Kovanda's arguments are well taken. III. Kovanda's first and second assignments of error are sustained. The judgment of the trial court is reversed. Pursuant to App.R. 12(B), this Court enters judgment with regard to the claim of piercing the corporate veil in favor of Kovanda. 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 Summit, 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 Appellee. Exceptions. ______________________________________ BETH WHITMORE SLABY, P.J., CARR, J. CONCUR. 1 This Court notes that the evidence in this case indicates that Holdings was not a valid legal entity, therefore, the trial court should not have applied the doctrine of piercing the corporate veil as there was no valid corporation to pierce. However, this Court will assume arguendo that the corporation is valid and address the elements of Belvedere because the arbitration award found Holdings liable for breach of contract, fraud and negligent misrepresentation.

2016-07-06 06:36:22.409571+00

JOURNAL ENTRY AND OPINION {¶ 1} This matter involves an appeal filed by appellant, Jay Ockunzzi ("Jay"), from the judgment entry of divorce with appellee, Tamara Nault Ockunzzi ("Tamara"), entered by the Cuyahoga County Court of Common Pleas, Division of Domestic Relations. For the reasons stated below, we affirm in part, reverse in part, and remand the matter for further proceedings. {¶ 2} The parties to this action were married on May 5, 1988. They have two children, a son, who was born in January 1990, and a daughter, who was born in December 1994. Jay works as a truck driver for Yellow Freight, and Tamara works at Progressive Insurance. {¶ 3} Tamara filed a divorce complaint on July 18, 2002, along with a motion for support pendente lite. The parties agreed to pass the temporary support issue to final hearing and agreed in the interim to split the household expenses and child care costs, with Jay to pay 60 percent of the costs and Tamara to pay 40 percent of the costs. Pending their divorce, the parties continued to reside together in the residence at 33430 Pettibone Road, Solon, Ohio, with their two minor children. {¶ 4} The matter proceeded to trial before a court magistrate over the course of six days during January, February, and March 2004. On March 17, 2004, the trial court issued a Civ.R. 53(E)(4)(C) interim judgment entry that granted Tamara's motion to vacate premises and ordered Jay to vacate the marital residence. On April 12, 2004, the magistrate issued her recommendation with findings of fact and conclusions of law. {¶ 5} Jay filed objections to the magistrate's decision. On May 17, 2004, the trial court sustained in part and overruled in part the magistrate's recommendation. More specifically, the trial court awarded one dependency exemption to each parent and specified which parent would claim each child. The trial court also corrected a clerical error. The remainder of the magistrate's findings and conclusions were adopted by the court. The trial court entered a final judgment entry on July 1, 2005. Jay submitted a motion for a nunc pro tunc order, requesting that the trial court clarify language pertaining to payment of the mortgage and home equity line of credit on the 33430 Pettibone Road property. The motion was denied by the trial court. {¶ 6} Jay timely filed this appeal on July 28, 2005. Jay also filed a motion for stay of execution of judgment pending appeal that was opposed by Tamara. This court granted Jay's motion upon Jay's posting of a $50,000 supersedeas bond. A bond was never posted. {¶ 7} On October 12, 2005, Jay filed a notice of bankruptcy. Subsequently, the bankruptcy court granted Jay relief from stay to continue this matter. Jay has raised eleven assignments of error for our review. Pertinent facts will be discussed under our review of the assignments of error. {¶ 8} An appellate court reviews the trial court's judgment in a divorce action under an abuse of discretion standard.Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 219. {¶ 9} Jay's first assignment of error provides the following: {¶ 10} "A. The trial court erred in adopting the magistrate's decision dated April 12, 2004, which determined that the total marital equity in the residence at 33430 Pettibone Road, Solon, Ohio was $73,786.00." {¶ 11} Under this assignment of error, Jay claims the trial court erred by (1) awarding Tamara $36,893 as her property division from the residence, (2) finding that Jay made a gift of his separate equity in the residence in 1992, (3) denying Jay his premarital equity in the residence in the amount of $37,205, and (4) denying Jay the return of his premarital funds of $21,130.66, which Jay claims to have invested in the residence during remodeling/construction in 1993. The real property in this case is situated at 33430 Pettibone Road in Solon, Ohio. The marital home is located in the middle of three adjacent parcels that Jay purchased in 1983, five years before the parties were married. Jay purchased all three parcels for the single sum of $62,100. He put $7,300 down and had a mortgage of $54,800. {¶ 12} During the course of the parties' marriage, the parcel on which the marital home is located was refinanced twice. The first refinance was in March 1990 for $56,400. The parties also took out a $40,000 home equity loan in 1992 that was used to pay off the existing mortgage and other liens. The second refinance occurred in 1993, at which time the home was appraised for $175,000. This time the parties took out a new conventional mortgage for $125,000 that was used to pay off the existing first mortgage and the home equity loan. The parties received net proceeds of $27,486. During the same year, the parties built a large addition onto the home, nearly doubling its size. In September 2001, the parties applied for and received an increase in the home equity line of credit to $75,000. {¶ 13} The trial court found that the two refinancings involved only the marital home and that the home itself had sufficient fair market value to carry the mortgages. The court concluded that any premarital interest Jay had in the marital home had been "so commingled through the various refinancings and home equity loans that it can no longer be traced." The court further stated: "the parties' course of conduct over the term of this marriage more than justifies the conclusion that all of the equity remaining is marital property * * *. There is no logical reason why his premarital equity should remain intact (and even increase through the addition of passive appreciation) and yet be protected from and unaffected by the periodic withdrawing of the home's equity over the years." The court found that the total existing equity in the home was to be divided equally between the parties, entitling each to $36,893. As for the two empty lots, the trial court found that they were added only as collateral to secure the home equity loans and that these two lots remained Jay's separate property. {¶ 14} Jay argues that the trial court erred by concluding that Jay made a gift to the marriage of his separate equity in the residence. Jay has misconstrued the language in the trial court's decision. The magistrate's findings indicate that "when the first home equity loan was taken for $40,000, there could not have been sufficient marital equity accumulated in the property to support that amount. Accordingly, the $40,000 could only have come from [Jay's] premarital equity. There was no evidence as to exactly what was done with this money other than that it was spent. Generally speaking, the parties used the home equity lines for major purchases or for paying off car loans. The Magistrate finds that, in effect, [Jay] made a gift of his separate equity to the marriage in 1992." {¶ 15} We agree with Tamara that the magistrate was not literally stating that Jay made a gift of his premarital equity. Rather, the trial court found the parties used the home equity line for unspecified purchases and that Jay's premarital equity, which had been used as collateral for the loan, lost its separate character and effectively became marital property. Further, no issue was even raised before the trial court pertaining to a gift of the premarital equity. In any event, since no evidence was introduced to establish Jay had gifted his premarital equity to the marriage, any finding to this effect would have been error. {¶ 16} Jay further claims that he should be entitled to any premarital equity he had in the home. The trial court found that Jay's calculation of $37,205 as his premarital equity in the marital home in 1988 was a reasonable figure. Nonetheless, as stated above, the court concluded that all equity remaining in the property was marital property, thereby denying Jay any separate interest in the marital home. A determination as to whether property is marital or separate will not be reversed on appeal unless this finding is against the manifest weight of the evidence. Ward v. Ward, Allen App. No. 1-03-63, 2004-Ohio-1390. Upon our review, and as further discussed below, we find the trial court's determination was against the manifest weight of the evidence. {¶ 17} Pursuant to R.C. 3105.171(A)(3)(a)(i), "marital property" includes all real and personal property that is currently owned by either or both of the spouses and that was acquired by either or both of the spouses during the marriage. Property that is acquired during the marriage is presumed to be marital property unless it can be shown to be separate.Frederick v. Frederick (Mar. 31, 2000), Portage App. No. 98-P-0071. On the other hand, "separate property" includes all real and personal property that was acquired by one spouse prior to the marriage. R.C. 3105.171(A)(6)(a)(ii). Such property remains separate property, even when it is commingled with other property, unless it is not traceable. R.C. 3105.171(A)(6)(b). {¶ 18} The key question before us is whether Jay's premarital equity in the home is traceable. As stated in Peck v. Peck (1994), 96 Ohio App.3d 731, 734, "traceability has become the focus when determining whether separate property has lost its separate character after being commingled with marital property * * *. The party seeking to have a particular asset classified as separate property has the burden of proof, by a preponderance of the evidence to trace the asset to separate property." {¶ 19} Here, the parties do not dispute that $37,205.00 was a reasonable value of Jay's premarital equity in the home. Jay claims that because he made the initial down payment on the home and lived in the home continuously until the trial court's decision, there is no issue as to the traceability of his premarital interest in the home. {¶ 20} Tamara asserts, and the trial court agreed, that because the premarital equity in the home was borrowed against to secure a home equity loan that was used for marital purposes and the home was refinanced twice, Jay's equity was not traceable. This argument is flawed. It has been held that the refinancing of a home after a marriage does not in any way convert separate property into marital property where the mortgage was not taken in order "to finance the purchase of the residence." Kohus v.Kohus, Clermont App. No. CA2002-07-055, 2003-Ohio-2551; Nudingv. Nuding (Dec. 7, 1998), Mercer App. No. 10-97-13. Also, this court held in Munroe v. Munroe (1997), 119 Ohio App.3d 530, that a husband's premarital down payment on the home was the husband's separate property. See also, Hemming v. Hemming, Franklin App. No. 02AP-94, 2002-Ohio-4735; Frederick, supra. {¶ 21} In this case, the refinancing and home equity lines were used to pay off existing mortgages, car loans and other debts, as well as for major purchases and to build an addition onto the home. Simply because Jay's premarital interest in the home was used as collateral to secure a home equity loan, which was used to purchase goods or services that became marital assets, did not convert Jay's separate interest to marital property. The repayment of the debt was made using marital funds, and Jay's separate interest remained intact and traceable. {¶ 22} Again, the commingling of separate property with other property does not, on its own, destroy the nature of the separate property. Instead, the question of whether the separate property is traceable is of paramount concern. Frederick, supra. Here, Jay introduced evidence of his premarital equity in the residence. Although this equity was borrowed against and the home was refinanced, these actions did not cause Jay's separate interest to become untraceable. {¶ 23} Accordingly, we find the trial court's determination was not supported by competent, credible evidence and that the court erred in finding Jay's premarital equity in the home had become marital property. The general rule with regard to separate property is that the trial court must disburse a spouse's separate property to that spouse. R.C. 3105.171(D). Nevertheless, the trial court has broad discretion in dividing property in a divorce. Berish v. Berish (1982), 69 Ohio St.2d 318, 319. Accordingly, on remand, the trial court retains the discretion to balance any inequitable property division in accordance with R.C.3105.171. {¶ 24} Jay next argues that he should be entitled to an additional $21,130.66 that he claims was separate property from his VSA profit-sharing plan that went toward the home addition in 1993. Once again, since Jay is the party seeking to have this particular asset classified as separate property, he has the burden of proof, by a preponderance of the evidence, to trace the asset as separate property. {¶ 25} The trial court found that Jay was able to show that he placed the funds from his profit-sharing plan into a certificate of deposit that was held in an individual retirement account at National City Bank. The funds, valued at $21,130.66, were withdrawn on April 5, 1993. The parties agreed that the funds were placed in the parties' joint checking account. Jay claims that he used all of the funds towards the addition on the house in 1993 and that Tamara disposed of the cancelled checks. Nonetheless, Jay carries the burden of proof and failed to provide evidence tracing the funds as his separate property. The funds were deposited into the joint account, and then money from that account was used for home improvements on the residence, a marital asset. {¶ 26} The trial court relied upon this court's decision in the case of Paras v. Paras (Dec. 7, 2000), Cuyahoga App. No. 77253. In Paras, the husband had inherited money that initially constituted separate property. Id. A portion of the funds were used to improve the marital home. Id. The court found that by investing the money into home improvements to increase the value of the home, a martial asset, the funds lost their separate nature and became marital property. Id. The court in Paras further recognized that investing a sum of money into home improvements does not necessarily increase the value of the realty to the same extent. Id. The court concluded that the parties evidenced an intent to combine their separate property to increase the value of their home, a marital asset, and the funds thereby became marital property. Id. {¶ 27} The trial court also relied upon Wright v. Wright (Jan. 3, 1996), Medina App. No. 95 CA 2423-M. In Wright, the wife's separate property was deposited into a joint account and used to increase the value of the home. Id. The court found that the parties had evidenced an intent to combine their separate property to increase the value of their home, a marital asset, and that the funds became a marital asset. Id. {¶ 28} Similarly, in this case, Jay's funds were placed in a joint checking account and were purportedly used for the addition to the house. The evidence supports a finding that the parties intended to combine their separate property in the joint account and use these funds to build an addition onto their marital home. We find the trial court did not abuse its discretion in finding Jay failed to sufficiently trace the proceeds of his profit-sharing plan as his separate property. {¶ 29} Jay's first assignment of error is sustained in part and overruled in part. Jays second assignment of error provides the following: {¶ 30} "B. The trial court erred in adopting the magistrate's decision dated April 12, 2004, which found [Jay] in contempt for interfering with appellee's personal property and fined him $500.00." {¶ 31} After Tamara filed for divorce, the trial court granted a temporary restraining order that restrained Jay from "annoying, abusing or harassing [Tamara]." Tamara filed a motion to show cause and motion for attorney's fees on January 5, 2004, claiming Jay had engaged in abusive conduct against Tamara by interfering with her personal property. The trial court granted the motion with respect to this conduct and awarded Tamara $500 as a sanction for contempt. {¶ 32} A finding of civil contempt must be supported by clear and convincing evidence. Sagan v. Tobin, Cuyahoga App. No. 86792, 2006-Ohio-2602. "Clear and convincing evidence implies that the trier of fact must have a firm conviction or belief that the facts alleged are true." Id., quoting Poss v. Morris, Ashtabula App. No. 2004-A-0093, 2006-Ohio-1441. A trial court's finding of civil contempt will not be reversed on appeal absent an abuse of discretion. Tradesmen Int'l v. Kahoe (Mar. 16, 2000), Cuyahoga App. No. 74420. {¶ 33} Jay argues that the trial court abused its discretion in finding him in contempt for removing Tamara's clothes from the closet in his bedroom and putting them on the bed in Tamara's bedroom. Although Jay testified he had put the clothes onto Tamara's bed and the pile was too high and, therefore, toppled over, Tamara asserted the clothes were maliciously dumped in her room. The record reflects that Tamara was not home when her clothes were moved. Tamara testified that she moved out of the master bedroom and into another bedroom before she filed for divorce. However, she left her clothes in what had been her closet in the master bedroom. She admitted that when she needed anything, she would just go into Jay's bedroom and get what she needed. She also admitted she would go into the room for her things even when Jay was in there and even when he was asleep. She would even go into the closet to get dressed. Jay testified that he had first asked Tamara to move her clothes herself and told her if she did not, he would do so. He also testified that there were times when he was sleeping that Tamara would enter his room after taking a shower and with a towel wrapped around her, and there were times she would leave the closet cracked open when she was getting dressed. Jay did not believe he should have to endure such actions. {¶ 34} Upon our review of the record, we do not find the above conduct amounts to "annoying, abusing, or harassing" conduct against Tamara. Jay moved Tamara's clothes out of his room and into her room. Tamara does not assert that any of her personal items were removed from the home or destroyed. Further, Tamara was not home at the time this occurred, and there is insufficient evidence to create a firm conviction or belief that the conduct was abusive in nature. Accordingly, we find the trial court's contempt finding on this matter was an abuse of discretion. Jay's second assignment of error is sustained. {¶ 35} Jay's third and fourth assignments of error provide the following: {¶ 36} "C. The trial court erred in adopting the magistrate's decision dated April 12, 2004, which named [Tamara] the residential parent for the minor children and which stated that [Tamara] is more likely to `honor and facilitate court-approved parenting time for [Jay] than he would be for her,' and which stated that [Jay's] `plan' is no `plan.'" {¶ 37} "D. The trial court erred in adopting the magistrate's decision dated April 12, 2004, which stated that [Jay] had the ability to control his work schedule." {¶ 38} Decisions of a trial court involving the care and custody of children are accorded great deference upon review.Miller v. Miller (1988), 37 Ohio St.3d 71, 74. Thus, any judgment of the trial court involving the allocation of parental rights and responsibilities will not be disturbed absent a showing of an abuse of that court's discretion. Davis v.Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260. {¶ 39} When making the allocation of the parental rights and responsibilities for the care of children, the court is required to take into account the best interest of the children. R.C.3109.04(B). In determining the best interest of the children, the court is to consider all relevant factors, including, but not limited to, those factors set forth in R.C. 3109.04(F)(1). Also, in determining whether shared parenting is in the best interest of the children, the court is to additionally consider the relevant factors enumerated under R.C. 3109.04(F)(2). {¶ 40} The trial court in this case thoroughly reviewed each of the factors set forth in R.C. 3109.04(F)(1) and (F)(2). The court found that shared parenting was in the best interest of the children, concluded that Tamara was to be named the residential parent, and adopted Tamara's plan for the exercise of shared parenting with some modifications. {¶ 41} Jay is a truck driver for Yellow Freight, and he concedes that he cannot control his work schedule. His work schedule changes frequently, which he claims makes compliance with a set possession schedule difficult. Because of this, Jay testified that the only possible way he could see the parenting arrangement was for him to have custody of the children in his home where he could see them "when I come and go." He believes that this is the only arrangement under which he would be able to have regular and frequent contact with the children. He indicated that if the court adopted Tamara's proposed schedule and the children lived with her, he would never see his children because he did not have a schedule he could work around. As Jay stated, "I come and go, you know, with the wind." His position was that because Tamara has a set schedule, she could schedule any kind of visitation. {¶ 42} The trial court found that Jay's "`plan' is no `plan' at all but rather an arrangement that would require a patchwork of care-givers (with heavy reliance on [Jay's] mother) who would never be sure when they would be needed. Child care would be arranged on an ad hoc basis around [Jay's] work. The only one benefitting from [Jay's] `plan' would be him. Everyone else would be left with uncertainty and the inability to make reasonable plans. * * * [T]he very argument [Jay] makes for being the primary residential parent is the strongest argument why he should not be." The trial court found that Jay had refused to concede he had any ability to control his schedule and would not agree, as Tamara testified, that he usually was off on Mondays. Also, the court considered the recommendation of the guardian ad litem, who believed that the children should reside primarily with Tamara. {¶ 43} In his brief, Jay takes issue with the trial court's statement that "it would be best for the children to remain in the Solon school system where they have always been." This statement was made by the court when considering shared parenting, wherein the court indicated that it would be important for both parties to remain in the same community after the divorce. The trial court was not implying, as Jay suggests, that Jay would not continue to live in Solon; but, rather, the court was simply stating the importance for the parties to remain there for the best interest of the children. {¶ 44} Jay also states that his proposal takes into consideration the best interest of the children. He states that under his schedule the children would be able to remain in the only house they have lived in, would be able to see both parents through the flexible arrangement, would remain in the Solon schools, and would have extended family members available to care for and supervise the children. He further states that under his schedule he would "honor and facilitate" parenting time for Tamara. {¶ 45} Although we recognize that allowing both parents to spend time with the children is in their best interest, we do not agree with Jay's position that his schedule is the only schedule that will allow him to spend time with his children. We agree with the trial court that Jay's proposal, which requires other parties to make arrangements around his irregular and uncertain schedule, is not in the best interest of the children. Our review of the record indicates that the trial court considered all of the relevant factors listed in R.C. 3109.04(F)(1) and (F)(2) and that there is competent, credible evidence supporting the trial court's conclusion that designating Tamara as the residential parent is in the children's best interest. We find no abuse of discretion in the trial court's decision. Jay's third and fourth assignments of error are overruled. {¶ 46} Jay's fifth assignment of error provides the following: {¶ 47} "E. The trial court erred in adopting the magistrate's decision dated April 12, 2004, which stated that [Jay's] child support obligation is $722.00 per month because the magistrate disregarded [Jay's] business expenses in the calculation, thereby overstating his income." {¶ 48} In determining Jay's child support obligation, the trial court averaged Jay's income over a three-year period (2001-2003). Jay's average income was calculated at $58,613.37. The trial court also found Jay was entitled to an adjustment for union dues of $620. The court indicated that other than local taxes and union dues, no other factors were to be considered in computing the worksheet. {¶ 49} Jay argues the trial court erred in failing to deduct his average road expenses, in the amount of $7,200 per year, or $600 per month, from his gross income. Jay refers to testimony from Tamara in which she conceded that the parties filed joint tax returns on which Jay's road expenses were detailed as part of his employment expenses. Tamara argues that Jay failed to produce any evidence as to his claimed "road expense." {¶ 50} Jay has failed to refer this court to evidence in the record establishing the amount of his "road expense." This court's review of the record reflects that Jay filed a pretrial statement on March 4, 2003, that included a statement of income, expenses, assets and liabilities. The statement set forth an amount of $790 per month for road expenses. We note that this amount is inconsistent with the $600 per month road expense Jay argues he is entitled to in his appellate brief. {¶ 51} Jay testified about an expense noted by Tamara of $790 per month. When asked about the figure, Jay stated he was not sure what the figure represented and was not even sure how it got there. Jay did testify about figures in his 2003 log book ranging from $450 a month to $900 a month. He stated that these expenses were out-of-pocket and not reimbursed. He also stated that the government allows $37.50 per day for these expenses. It appears no receipts or other evidence was submitted to substantiate the average monthly amount of Jay's claimed road expenses. {¶ 52} A trial court's decision regarding child support obligations is within the court's discretion and will not be disturbed absent a showing of an abuse of discretion. Glassmanv. Offenberg, Cuyahoga App. Nos. 85838, 85863 and 87175,2006-Ohio-3837. For purposes of determining child support, gross income includes "gross receipts" less "ordinary and necessary business expenses." Sullivan v. O'Connor, Geauga App. Nos. 2005-G-2641 and 2005-G-2642, 2006-Ohio-3206. {¶ 53} A party claiming a business expense has the burden of providing suitable documentation to establish the expense. A trial court is not required to blindly accept all of the expenses an appellant claims to have deducted in his tax returns as ordinary and necessary expenses incurred in generating gross receipts. Flynn v. Sender, Cuyahoga App. No. 84406,2004-Ohio-6283. Moreover, in determining a parent's income for child support purposes, a trial court must verify the income "with suitable documents, including, but not limited to, paystubs, employer statements, receipts and expense vouchers related to self-generated income, tax returns, and all supporting documentation and schedules for the tax returns." Id., quoting R.C. 3119.05. {¶ 54} Here, Jay did not provide suitable documentation to substantiate his claimed business expenses. Therefore, we find the trial court did not abuse its discretion in determining Jay's child support obligation without regard to business expenses. Accordingly, Jay's fifth assignment of error is overruled.1 {¶ 55} Jay's sixth assignment of error provides as follows: {¶ 56} "F. The trial court erred in adopting the magistrate's decision dated April 12, 2004, which denied equal responsibility for the parties' monthly household and child-related expenses, i.e., temporary support at 50/50 for the period from mid-2002 through January 2004, and which denied that [Jay] is due $4,849.59 from [Tamara]." {¶ 57} In October 2002, during the pendency of the divorce, the magistrate issued a temporary support order. Because both parties were residing in the marital home, the magistrate ordered each party to pay certain obligations rather than having one party pay the other a monthly amount. The magistrate stated in her findings that neither party was satisfied with the support order. Both parties indicate that they agreed to follow a 60/40 sharing of expenses while the matter was pending, with Jay to pay 60 percent and Tamara to pay 40 percent.2 {¶ 58} At trial, the court was asked to look back and allocate the expenses between the parties. Tamara argued that Jay earned 60 percent of the total income and that he should pay 60 percent of the basic expense. She also claimed that as of February 5, 2004, Jay owed her $2,000 for his share of the past-due and present bills based upon the 60/40 split. Jay argued that the correct split should be 50/50, and on that basis Tamara owed him $4,849.59 for 2003 and $1,330.73 for 2004. Ultimately, the trial court determined that the parties are equally responsible for the expenses of the household and that neither party owed the other any money. Jay asserts that because the court determined the parties are equally responsible, he is entitled to reimbursement for 2003 and 2004. {¶ 59} Our review reflects that the parties took it upon themselves to allocate the household expenses. As the trial court found, Jay regularly paid his share of the expenses. The parties chose to follow their own formula rather than following the temporary order of the court. Further, neither party sought to modify the temporary support order to reflect their agreement. The trial court determined that the parties were equally responsible, but also found that whether each party had contributed precisely the correct amount according to their income was immaterial. The court found the bills had been paid, and that neither party owed the other money under the temporary order. We find the trial court did not abuse its discretion in reaching this determination, and we find no merit to Jay's argument that he should be entitled to reimbursement of money he paid according to his agreement with Tamara. Jay's sixth assignment of error is overruled. {¶ 60} Jay's seventh assignment of error provides the following: {¶ 61} "G. The trial court erred in adopting the magistrate's decision dated April 12, 2004, which denied [Jay] his separate property interest accrued from the veteran's benefit paid to him for injuries incurred during his service in the armed forces years before his marriage to [Tamara] and which ordered that 50% of the veteran's benefit monies in the National City Bank Savings account be given to [Tamara]." {¶ 62} Jay received a disability benefit from the Veterans Administration as a result of an injury he sustained between 1969 and 1971, prior to the parties' marriage. During the parties' marriage, the veteran's disability checks were deposited into a joint savings account each month. The evidence reflected that the joint account was used to pay taxes, to make some home repairs, and to pay for vacations. The account, which was opened in 1995, had a balance of $4,632 as of August 2, 2002. During that month, Jay removed all but a few of dollars from the account. The trial court found that this was a violation of a restraining order issued July 18, 2002. The court also found that although Jay testified he used the money for living expenses, he offered no evidence to support this claim. The court concluded that Tamara was entitled to $2,316 as her share of the sum wrongfully removed. {¶ 63} Jay argues that regardless of whether he used any of his veteran's benefit money for living or other marital expenses, this did not transmute the benefit to marital property. He claims that because the benefit is for an injury that occurred before the parties' marriage, the benefit is his separate property. Tamara argues the money Jay receives is "income" that is to supplement his earnings and has been used throughout the marriage for household expenses. {¶ 64} Disability benefits are a form of compensation for a spouse's personal injury and, generally, are not considered marital property. Arkley v. Arkley, Jefferson App. No. 03 JE 10, 2003-Ohio-7021.3 Here, because Jay's veteran's benefits were traceable as his separate property, the trial court erred in awarding Tamara half of the sum removed as her share of the account. Jay's seventh assignment of error is sustained. {¶ 65} Jay's eighth assignment of error provides the following: {¶ 66} "H. The trial court erred in adopting the magistrate's decision dated April 12, 2004, which ordered Jay to pay $3,000.00 toward [Tamara's] attorney's fees, when [Jay] should pay nothing toward [Tamara's] attorney's fees and each party should be solely responsible for his/her own attorney's fees." {¶ 67} The trial court found that the parties had similar incomes, in view of Jay's child support obligation, and that the marital property had been equally divided. The court observed that the only substantial difference between the parties' respective economic situations was that Jay retained the parcels of real property adjacent to the marital home as his separate property valued at $106,000. On the other hand, the court found Tamara was without separate resources and would have to pay attorney's fees from her current income. The trial court concluded that after the division of marital property, Tamara would not have the financial ability to pay all of her attorney's fees without reducing the funds necessary to set up a new household, and that Jay had the ability to contribute to Tamara's attorney's fees. The court ordered Jay to pay $3,000 to Tamara for her attorney's fees. {¶ 68} Jay argues that the decision of the trial court was an abuse of discretion. He claims that the fact that he was being given his separate real estate with a stipulated value of $106,000 is no basis to determine he would have the ability to contribute to Tamara's attorney's fees. He states that these lots are not liquid nor can they be easily liquidated. Jay also asserts that his own attorney's fees were in excess of $27,000 and were discharged in bankruptcy court. He also claims he owes money to his mother, who loaned him money for his attorney's fees. Additionally, he claims Tamara stated she would be able to pay $12,000 toward his attorney's fees. A review of her testimony actually shows she stated she would need to take loans to do so. {¶ 69} Tamara states that she was awarded only a small portion of the attorney's fees she incurred. She states that her attorney's fees totaled $18,067.10 and Jay was only ordered to pay her $3,000. {¶ 70} A trial court's decision to award attorney's fees is subject to an abuse of discretion standard. Packard v.Mayer-Packard, Cuyahoga App. No. 85189, 2005-Ohio-4392. Although there is no automatic entitlement to attorney's fees in a domestic case, the court may decide whether attorney fees would be equitable on a case-by-case basis. Id. {¶ 71} R.C. 3105.73(A), which applies retroactively,4 provides the following: "In an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that action, a court may award all or part of reasonable attorney's fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties' marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate."5 {¶ 72} The record before us does not show an abuse of discretion in the trial court's decision. The trial court properly weighed the equities involved. The court considered the parties' incomes, found that in addition to the equal division of marital property Jay also owned separate property with considerable value, and determined it was reasonable to award Tamara a small portion of the attorney's fees she incurred. We find the trial court's award of attorney's fees to Tamara was equitable. Jay's eighth assignment of error is overruled. {¶ 73} Jay's ninth and eleventh assignments of error provide the following: {¶ 74} "I. The trial court erred in adopting the magistrate's decision dated April 12, 2004, which characterized [Jay's] Primerica IRA as marital, instead of as [Jay's] separate property." {¶ 75} "K. The trial court erred in failing to consider the parties' fifteen (15) year age difference when dividing their retirement accounts equally between them." {¶ 76} Marital property includes retirement benefits acquired during the marriage. R.C. 3105.171(A)(3)(a). "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, 559, paragraph one of the syllabus. {¶ 77} In this case, the trial court ordered an equal division of the parties' retirement accounts. The accounts included Jay's Teamster's' 401(k), Fidelity IRA, and Primamerica IRA; and Tamara's Progressive 401(k). The court added the values of the accounts and divided their total, determining an equal division would leave each party with $68,810.45. The court found the parties were to keep their own plans, but Tamara was entitled to receive a rollover of $17,914.47 from Jay's Fidelity IRA to equalize the retirement benefits. {¶ 78} Jay argues his Primamerica IRA, valued at $10,103.86, should not have been included in the calculation and claims it was his separate property. Jay testified that he thought he purchased it in 1985. He claimed he did not have any records of setting up the IRA because the records were thrown out by Tamara. {¶ 79} We find that the trial court did not abuse its discretion by including the Primamerica IRA in an equal property division. Jay failed to substantiate his testimony that the IRA was established in 1985. Although he claims the records of setting up the IRA were thrown out by Tamara, it does not appear he took any other actions to establish when the account was created. Further, his testimony as to when the account was created was not certain, as he stated, "I `think' it was in 1985." Accordingly, we find Jay failed to establish that the IRA was his separate property. {¶ 80} Jay also argues that because he is fifteen years older than Tamara and closer to retirement, the trial court's determination to divide the retirement accounts equally was not equitable. In dividing marital property, an equal division is to be made unless such a division would be inequitable. R.C.3105.171(C)(1). While Jay may be closer to retirement age than Tamara, we do not believe this factor alone is sufficient to find an equal distribution inequitable. The trial court considered the circumstances of the case and found that an equal division of marital property, including an equal division of the retirement accounts, was equitable. We find no abuse of discretion in the trial court's determination. Jay's ninth assignment of error is overruled. {¶ 81} Jay's tenth assignment of error provides the following: {¶ 82} "J. The trial court erred by not stating that [Jay] must pay the home equity line and that [Tamara] must pay monthly on the mortgage from the parties' physical separation on or about March 17, 2004 or earlier." {¶ 83} The determination of the trial court provides in relevant part: "[Jay] is hereby awarded [Tamara's] interest in the real estate located at 33430 Pettibone Road, Solon, Ohio 44139 as well as the two (2) adjoining parcels. He shall pay the mortgage and home equity line as well as the taxes and insurance on said real property and hold Plaintiff harmless thereon. "[Tamara] is hereby awarded as property division the lump sum of $42,209. "[Jay] shall have ninety [90] days from the entry of final decree to refinance the property, remove [Tamara's] name from the mortgage and pay her the sum of $42,209. If he fails to do so, the property shall be listed for sale. [Tamara] shall thereafter be entitled to $42,209 from the net proceeds. "In the interim, pending sale or refinancing, [Tamara] shall have exclusive use and possession. During the interim, [Tamara] shall pay the first mortgage and [Jay] the home equity line. "In the event of refinancing, [Tamara] shall have ninety (90) days from the time she receives the $42,209 in which to vacate the property. If she fails to do so, she shall pay rent of $800 per month to [Jay] until she moves." {¶ 84} Jay argues that the trial court's decision should be clarified to provide that Tamara is to pay the monthly mortgage payment from at least March 17, 2004, the date Jay was ordered to vacate the premises. We do find that the trial court's decision is ambiguous in this respect. Initially, the trial court instructs that Jay is awarded Tamara's interest in the real estate and then orders Jay to "pay the mortgage and home equity line as well as the taxes and insurance." After already instructing that Jay is to pay the mortgage, the court proceeds to state that pending sale or refinancing, "[Tamara] shall pay the first mortgage." The trial court also instructed that Jay was to pay child support commencing March 1, 2004. It is unclear from the trial court's decision when Tamara's responsibility for the mortgage was to begin and when Jay's responsibility for the mortgage would commence. {¶ 85} We find the trial court abused its discretion in failing to clarify its decision. We also find that it would be inequitable for Jay to pay the mortgage during months in which he had vacated the premises and for which he had been ordered to pay child support. Consequently, on remand, the trial court is instructed to amend its decision to reflect that "Tamara is responsible for the first mortgage payments while remaining in the Pettibone residence from March 14, 2004 until she vacates the premises or is required to pay rent under the refinancing/rent contingency." Jay's tenth assignment of error is sustained. CONCLUSION {¶ 86} We find the trial court erred by (1) failing to find Jay's premarital equity in the marital home, valued at $37,205.00, was his separate property, (2) finding Jay in contempt for interfering with Tamara's personal property and fining him $500 as a sanction, (3) awarding Tamara $2,316 for funds Jay removed from an account containing his veteran's benefit funds and failing to find the veteran's benefit funds were Jay's separate property, (4) and by failing to clarify responsibility for the monthly mortgage payment to reflect that "Tamara is responsible for the first mortgage payments while remaining in the Pettibone residence from March 14, 2004 until she vacates the premises or is required to pay rent under the refinancing/rent contingency." The decision of the trial court is affirmed in other respects, as set forth above. On remand, the trial court retains the discretion to balance any inequitable property division in accordance with R.C. 3105.171. Judgment affirmed in part, reversed in part, and remanded. This cause is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is ordered that appellant and appellee share the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Frank D. Celebrezze, P.J., and Michael J. Corrigan, J., concur. 1 Although Jay failed to submit suitable evidence to establish his business expenses, he is not precluded from filing future motions to modify the original order. If Jay is able to present such evidence, the trial court has broad discretion to modify the original order. 2 Our review of the temporary support order reflects that this agreement between the parties was not part of the support order. 3 "Disability pension benefits are not marital property unless they are accepted in lieu of old-age retirement pay, in which event they are marital property to the extent that the retirement pay value is included in the disability pension benefit." Id., quoting Bauser v. Bauser (1997),118 Ohio App.3d 831. 4 See notes to R.C. 3105.73. 5 We note that the trial court relied upon R.C. 3105.18(H) as statutory authority for an award of attorney's fees. This statute has been repealed, and R.C. 3105.73 now governs an award of attorney fees in a divorce proceeding.

2016-07-06 06:36:22.61391+00

DECISION AND JUDGMENT ENTRY This case is on appeal from the February 3, 2000 judgment of the Erie County Court of Common Pleas, Domestic Relations Division, which denied the motion of appellant, Russell E. Brennan Jr., for relief from the court's September 30, 1998 judgment. On appeal, appellant asserts the following assignments of error: "FIRST ASSIGNMENT OF ERROR The Trial Court abused its discretion in upholding the Magistrate's Decision, which stated that the Trial Court is `without jurisdiction to rule on and/or enforce (Mag. Decision, p. 3)' Appellant's request to be reimbursed for Court costs pursuant to the May 1, 1998 Judgment Entry issued by the Sixth District Court of Appeals. "SECOND ASSIGNMENT OF ERROR The Trial Court erred and abused its discretion in upholding the decision of the Magistrate, when Appellee's brief contained no supporting factual information, the Magistrate failed to take testimonial evidence before ruling on the Motion for Relief, and the Magistrate failed to verify or discredit Appellant's facts before ruling on Appellant's Motion for Relief. "THIRD ASSIGNMENT OF ERROR The Trial Court abused its discretion in upholding the Magistrate's Decision, which ruled that `Defendant's motion attempts to relitigate issues previously presented and therefore is barred by res judicata. The Magistrate proposes Defendant's motion should be DENIED (Mag. Decision, p. 3)' and fails to recognize that the presence of the transcript provides new facts and therefore the doctrine of res judicata does not apply. "FOURTH ASSIGNMENT OF ERROR The Trial Court abused its discretion in upholding the Magistrate's Decision, which ruled that `Defendant's motion attempts to relitigate issues previously presented and therefore is barred by res judicata. The Magistrate proposes Defendant's motion should be DENIED (Mag. Decision, p. 3)' and fails to recognize that the presence of the letter from Citizens Bank provides new facts and therefore the doctrine of res judicata does not apply. "FIFTH ASSIGNMENT OF ERROR The Trial Court abused its discretion in upholding the Magistrate's Decision, which ruled that `Defendant's motion attempts to relitigate issues previously presented and therefore is barred by res judicata. The Magistrate proposes Defendant's motion should be DENIED (Mag. Decision, p. 3)' and fails to recognize that the Judgment Entry filed 6/22/99 provides new facts and conditions and therefore the doctrine of res judicata does not apply. "SIXTH ASSIGNMENT OF ERROR The Trial Court abused its discretion in upholding the Magistrate's Decision, which ruled that `Defendant's motion attempts to relitigate issues previously presented and therefore is barred by res judicata. The Magistrate proposes Defendant's motion should be DENIED (Mag. Decision, p. 3)' and fails to recognize that several issues brought forth in Appellant's 60(B) motion were not `previously presented'. "SEVENTH ASSIGNMENT OF ERROR The Trial Court abused its discretion in upholding the Magistrate's Decision, which ruled that "Defendant's motion attempts to relitigate issues previously presented and therefore is barred by res judicata. The Magistrate proposes Defendant's motion should be DENIED (Mag. Decision, p. 3)' and fails to recognize that Appellee's testimony regarding the New Life fitness debt was fraudulent, the doctrine of res judicata does not apply, and Appellant should have been granted relief due to misconduct on the part of the prevailing party. "EIGHTH ASSIGNMENT OF ERROR The Trial Court abused its discretion in upholding the Magistrate's Decision, which ruled that `Defendant's motion attempts to relitigate issues previously presented and therefore is barred by res judicata. The Magistrate proposes Defendant's motion should be DENIED (Mag. Decision, p. 3)' and fails to recognize that Appellee's testimony regarding the Firelands Hospital lawsuit was fraudulent, the doctrine of res judicata does not apply, and Appellant should have been granted relief due to misconduct on the part of the prevailing party. "NINTH ASSIGNMENT OF ERROR The Trial Court abused its discretion in upholding the Magistrate's Decision, which ruled that `Defendant's motion attempts to relitigate issues previously presented and therefore is barred by res judicata. The magistrate proposes Defendant's motion should be DENIED (Mag. Decision, p. 3)' and fails to recognize Appellee's testimony regarding the overdrawn checking account was fraudulent, the doctrine of res judicata does not apply, and Appellant should have been granted relief due to misconduct on the part of the prevailing party. "TENTH ASSIGNMENT OF ERROR The Trial Court abused its discretion in `cautioning the Defendant's colleague, Kim Chase, from engaging in conduct that may be deemed the unauthorized practice of law (Feb. 3, 2000 JE)'." Appellant and appellee, Lisa A. Sharp, were divorced in 1992. In 1995, appellant moved to reduce his child support obligation due to a disability. On April 28, 1997, appellee filed a motion to show cause alleging that appellant had not made his support payments and was in arrears. Appellant's motion to reduce his child support obligation was denied on October 27, 1997. This order was reversed, in part, on appeal and remanded for further proceedings. This court concluded in its May 1, 1998 decision that the trial court erred by imputing to appellant his former full-time wages after he quit his job to seek rehabilitation because of a disability and by issuing an indefinite order as to appellant's health care coverage obligation. Appellee was ordered to pay the appellate court costs pursuant to App.R. 24. On September 30, 1998, the lower court granted appellee's motion to show cause filed on April 28, 1997. Based upon evidence submitted during a hearing held on September 23, 1997, the magistrate's decision of October 9, 1997, and appellant's objections, the court found appellant in contempt for failure to comply with the court's order of November 3, 1992 regarding child support and payment of marital debts. The court sentenced him to thirty days in jail and fined him $250. The court further ordered that appellant could purge his contempt and have his jail sentence and $100 of the fine suspended if he began paying his support obligation of $130 and an additional $100 each week on the arrears, plus poundage, paid $150 of the fine and court costs by January 1, 1998, and complied with all current and future orders of the court. On October 2, 1998, appellant moved for a retrial on the motion to show cause. Appellant's motion was denied on December 1, 1998, on the grounds that it did not present any issues that were not already considered by the court. We affirmed the decision of the trial court on May 11, 1999. On June 29, 1999, the lower court issued a separate order noting the parties' agreement and ordering that appellant's weekly child support obligation be reduced for the period of August 24, 1995 through November 31, 1997 to $88 and set at $125 from December 1, 1997 onward, plus $100 each week in payment of appellant's child support arrears. The court also ordered that appellee provide medical insurance coverage for the minor children. On July 27, 1999, appellant filed a motion for appellee to pay for the preparation of the trial transcript submitted in the 1997 appeal. The following month, on August 2, 1999, appellant filed two Civ.R. 60(B) motions for relief from the judgments entered on September 30, 1998 (finding appellant in contempt of court) and June 28, 1999 (determining appellant's child support obligation and the heath insurance coverage for the minor children). A hearing on the motions was held on December 6, 1999. In the motion for relief from the September 30, 1998 judgment, appellant alleges that the trial court erred by considering the motion to show cause, by modifying a prior order without a proper motion or due process, by finding appellant in contempt of an order made within the same order, by making factual findings based upon appellee's false testimony, and by finding him in contempt of the child support order when that order was vacated by an appellate court. All of these same arguments were made in the October 2, 1998 motion for retrial of the motion to show cause. The magistrate held in its January 6, 2000 decision that the lower court lacked jurisdiction to enforce the court of appeal's mandate that appellee pay the appellate court costs. The magistrate also denied appellant's motion for relief from judgment on the ground that the litigation of the issues was barred under the doctrine of res judicata. Appellant filed objections to the magistrate's report on January 19, 2000. The magistrate's decision was approved and adopted by the trial court in a February 4, 2000 judgment. Appellant sought an appeal from this decision on February 23, 2000. On appeal, appellant has filed a partial transcript of the December 6, 1999 hearing, stating that he has excluded those portions concerning the motion for relief from the June 28, 1999 judgment. In his first assignment of error, appellant argues that the trial court erred by finding that it lacked jurisdiction to enforce the appellate court's mandate of May 1, 1998 that appellee pay the court costs incurred on appeal. We find appellant's assignment of error not well-taken. The trial court does not have jurisdiction to enforce our order regarding the payment of court costs incurred on appeal. Appellant argues in his second assignment of error that the trial court erred by denying his motion for relief from judgment without giving him an opportunity to present his evidence at a hearing. The movant is entitled to a hearing only if he alleges operative facts which demonstrate that the relief requested would be warranted. Gaines Stern Co., L.P.A. v.Schwarzwald, Robiner, Wolf, Rock, Co., L.P.A. (1990), 70 Ohio App.3d 643,646, and Adomeit v. Baltimore (1974), 39 Ohio App.2d 97,103-105. We review the trial court's ruling on the necessity for a hearing under an abuse of discretion standard. Supra. Since we find in the following assignments of error that the court properly applied the doctrine of res judicata in this case, we find that the trial court did not abuse its discretion by denying the motion without a hearing. Appellant's second assignment of error is not well-taken. In his third assignment of error, appellant argues that the doctrine of res judicata should not be applied in this case because he has presented new facts. Generally, an appellate court will not reverse the trial court's ruling on a motion for relief from judgment unless it finds that the trial court abused its discretion. In re Whitman (1998), 81 Ohio St.3d 239, 241. A Civ.R. 60(B) motion may be denied on the basis of res judicata. Cadle Co. v. White (1999), Hamilton App. No. C-980492, unreported. The issue of whether the doctrine of res judicata is applicable is a question of law, which the appellate court reviews de novo. RohnerDistributors v. Pantona (Apr. 8, 1999), Cuyahoga App. No. 75066, unreported. Under the doctrine of res judicata, a party cannot litigate an issue that was previously fully litigated between the parties and determined in a final judgment on the merits by a court of competent jurisdiction. Grava v. Parkman Twp. (1995),73 Ohio St.3d 379, 382. While appellant alleges that he sought to present new facts at the hearing on his motion, he was really presenting the transcript of the contempt hearing that he failed to include with his 1998 appeal. This transcript does not constitute new facts. Furthermore, because of the doctrine of res judicata, appellant cannot present new facts to litigate an issue already determined by the court. Appellant's third assignment of error is not well-taken. In his fourth assignment of error, appellant argues that the issue of how much he owed on the debt to Ohio Citizens Bank was not supported by any evidence because the court did not require appellee to prove the amount of the debt. Since the issue of the debt was raised in the motion to show cause, appellant has had the opportunity to challenge the amount of the debt, but failed to do so. Therefore, he is precluded from doing so now under the doctrine of res judicata. Appellant's fourth assignment of error is not well-taken. In his fifth assignment of error, appellant argues that the issue of whether he was in contempt for failure to pay child support is a new issue because the trial court did not recalculate his child support obligation until June 1999. Even though the trial court did not recalculate appellant's child support obligation until 1999, the issue of whether he should be held in contempt after this court had reversed the trial court's order denying a reduction in child support was presented in his motion for retrial and affirmed on appeal. Thus, he is precluded from litigating this issue again. Appellant's fifth assignment of error is not well-taken. In his sixth assignment of error, appellant argues that he presented two new issues in his motion for relief from judgment. Upon a review of both motions, we find that appellant raised the same issues in both motions. The only new "issues" he raises are that he has now obtained factual evidence to support his case. Appellant is barred under the doctrine of res judicata from presenting such evidence to litigate the same issues a second time. Appellant's sixth assignment of error is not well-taken. In his seventh, eighth, and ninth assignments of error, appellant argues that the doctrine of res judicata does not apply where he has proof that appellee committed perjury and fraud during the contempt hearing. We disagree. Appellant raised these same issues during his motion for retrial. He cannot do so again. Appellant's seventh, eighth, and ninth assignments of error are not well-taken. In his tenth assignment of error, appellant argues that the trial court improperly cautioned appellant's friend, Kim Chase, from engaging in conduct that may be deemed to be the unauthorized practice of law. Since this cautionary instruction is not an order of the court, we do not have jurisdiction to review it on appeal. Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Erie County Court of Common Pleas, Domestic Relations Division, is affirmed. Pursuant to App.R. 24, appellant is hereby ordered to pay the court costs incurred on appeal. __________________________ HANDWORK, J. James R. Sherck, J., George M. Glasser, J., JUDGES CONCUR. Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

2016-07-06 06:36:24.789666+00

OPINION. {¶ 1} Plaintiffs-appellants Christie M. Leake, a minor, and Margrethe Elliot Rose, her mother (collectively referred to as the Leakes) appeal from the Mahoning County Common Pleas Court's grant of summary judgment for defendant-appellee Valley Sports, Ltd. The issue facing this court is whether the trial court erred in granting summary judgment by holding that the owner of a business owes no duty to an invitee relative to a danger that is open and obvious. For the reasons stated below, the decision of the trial court is affirmed. STATEMENT OF FACTS {¶ 2} In February 1999, Christie and her family went to Valley Sports in Mahoning County, Ohio to watch her brother play soccer. (Christie Depo. 11). Valley Sports has an indoor soccer field with one set of bleachers on the side of the field. Christie watched the majority of the soccer game standing beside the soccer field, however, with about 10 to 15 minutes left in the game, Christie decided to watch the remainder of the game from the bleachers. (Christie Depo. 14-16). Christie ascended a staircase of about 12 or 13 steps to get to the bleachers. (Christie Depo. 17). At the top of the staircase, Christie noticed a spilled brown liquid, presumably pop, on the step. (Christie Depo. 18-19). About 10 to 15 minutes later when the game was about to end, Christie descended the staircase. (Christie Depo. 23). Upon her descent, Christie slipped on the spilled liquid and sustained injuries. (Christie Depo. 24-25). Christie admits that she had knowledge of the spilled liquid and that she was careful walking down the steps because of this spilled liquid; she stated that she used the handrail and watched where she was stepping. (Christie Depo. 23-24). {¶ 3} As a result of the injuries, the Leakes filed suit against Valley Sports. After depositions, Valley Sports filed a motion for summary judgment which the trial court granted. The Leakes timely appeal raising two assignments of error. ASSIGNMENT OF ERROR NUMBER ONE {¶ 4} "The trial court erred in holding as a matter of law that a premises owner owes no duty to invitees to warn of or protect against an open and obvious danger which exists on the premises." {¶ 5} An appellate court reviews a trial court's decision to grant summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,1996-Ohio-336. Summary judgment is properly granted when: 1) no genuine issues as to any material fact exists; 2) the moving party is entitled to judgment as a matter of law; and 3) reasonable minds can only come to one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. Civ.R. 56(C); Harless v. Willis DayWarehousing Co. (1978), 54 Ohio St.2d 64, 66. The evidence must be viewed in the light most favorable to the nonmoving party. Id. {¶ 6} Under this first assignment of error, the Leakes argue that the open-and-obvious doctrine has been limited by the enactment of the comparative negligence statute. The Leakes acknowledge that prior to comparative negligence, the open-and-obvious doctrine constituted an absolute bar to recovery by relieving the property owner of any duty to protect the invitee. However, relying on case law from the First and Eighth Appellate Districts, the Leakes insist that since the enactment of the comparative negligence standards in Ohio, the open-and-obvious doctrine is no longer applicable to the element of duty, but rather is applicable to the element of causation. Schindler v. Gale's SuperiorSupermarket, Inc. (2001), 142 Ohio App.3d 146, 153; McGowan v. St.Antoninus Church (Apr. 6, 2001), 1st Dist. No. C-000488. {¶ 7} The open-and-obvious doctrine states that a premises-owner owes no duty to persons entering those premises regarding dangers that are open-and-obvious. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph one of the syllabus. After the enactment of the comparative negligence standards in Ohio, some appellate districts began analyzing the open-and-obvious doctrine in terms of causation rather than in terms of duty. Schindler, 142 Ohio App.3d at 153. Under a causation analysis, the obviousness of the hazard is one factor to be taken into account in determining a plaintiff's comparative negligence. Id. But other appellate districts maintained that the open-and-obvious doctrine applied to duty and, as such, if a hazard was open-and-obvious the plaintiff was barred from recovery as there was no duty to warn of an obvious hazard. Steinerv. Ganley Toyota-Mercedes Benz, 9th Dist. No. 20767, 2002-Ohio-2326; Kirkv. Scioto Downs (Feb. 22, 2001), 10th Dist. No. 00AP-1087; Grigsby v.Sooy, 12th Dist. No. CA2002-01-001, 2002-Ohio-3601. Due to the split among the districts, the conflict was certified to the Ohio Supreme Court in Armstrong v. Best Buy, 99 Ohio St.3d 79, 2003-Ohio-2573. In accordance with that conflict, we sua sponte held this case in abeyance pending the decision in Armstrong. {¶ 8} In early June, the Ohio Supreme Court released the decision in Armstrong. The Court held that: "The open-and-obvious doctrine remains viable in Ohio. Where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, approved and followed." Armstrong, 99 Ohio St.3d 79, syllabus and ¶ 14. The Court explained that "when courts apply the rule, they must focus on the fact that the doctrine relates to the threshold issue of duty." Id. at ¶ 13. "The fact that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves the property owner of liability. Rather, it is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the plaintiff." Id. Therefore, given the Armstrong holding and reasoning, the Leakes' argument that the open-and-obvious doctrine applies to causation rather than duty fails. {¶ 9} Accordingly, since the open-and-obvious doctrine is viable in Ohio, we turn our analysis to the facts of the case at hand. Christie admitted in her deposition that she noticed the spilled liquid when she was ascending the stairs, and due to this knowledge she was careful, watching where she was stepping when she walked down the stairs. Therefore, Christie had actual knowledge of the condition and she appreciated the danger. Her prior exposure to and knowledge of the condition, renders the danger open-and-obvious. Raflo v. LosantibilleCounty Club (1973), 34 Ohio St.2d 1, 3-4; Sherred v. Estate of Koon, 10th Dist. No. 02AP-325, 2002-Ohio-6562 (pre-existing knowledge negates any duty on part of owner to warn invitee); Dota v. CTW Development Corp., 7th Dist. No. 99CA191, 2001-Ohio-3153. This assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER TWO {¶ 10} "The trial court erred in holding that no genuine issue of material fact exists and that as a matter of law appellee Valley Sports LTD. is not liable under a premises liability theory." {¶ 11} In order for an invitee to recover damages from a slip and fall case, she must establish one of the following elements: {¶ 12} "1. That the defendant through its officers or employees were responsible for the hazard complained of; or {¶ 13} "2. That at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly; or {¶ 14} "3. That such danger had existed for a sufficient length of time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care." Combs v.First Natl. Supermarkets, Inc. (1995), 105 Ohio App.3d 27, 29, citingJohnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589. {¶ 15} The Leakes argue that the trial court erroneously held that they could not establish any one of these elements. The Leakes insist that a genuine issue of material fact exists as to the third element, i.e. the length of time the liquid remained on the steps. {¶ 16} Despite the Leakes contention, their argument fails. Establishing any one of the above three referenced elements indicates that the owner of the premises breached the duty of ordinary care. Baloghv. Goldstein Properties (May 11, 2000), 8th App. No. 76196. Our holding under assignment of error number one that Valley Sports owed no duty to the Leakes renders any argument about breach moot since a person cannot breach a duty he does not owe. This assignment of error is without merit. {¶ 17} For the foregoing reasons, the decision of the trial court is hereby affirmed. Judgment affirmed. Waite, P.J., and DeGenaro, J., concur.

2016-07-06 06:36:24.398929+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a Jackson County Court of Common Pleas, Probate Division judgment finding that the consent of James P. Stephenson, Appellee herein, was required for the adoption of his minor son by David F. Caudill, Appellant herein. Appellant argues that the trial court misapplied the law and entered a judgment that is against the manifest weight of the evidence. We find that the trial court erred when it found that Appellee justifiably failed to maintain and support the minor child for a one-year period. Accordingly, we reverse the judgment and remand this cause for further proceedings consistent with this opinion. {¶ 2} Appellant assigns the following assignments of error: {¶ 3} I. "The trial court erred as a matter of law when it failed to properly apply the ohio supreme court's decision in Inre adoption of holcomb to this case." {¶ 4} II. "The trial court erred when it held that the absence of maintenance and support of the child for one year prior to the filing of the petition for adoption was justifiable and that the consent of James P. Stephenson was, therefore, required." {¶ 5} III. "The trial court erred when it held that the absence of communication with the child for one year prior to the filing of the petition for adoption was justifiable and that the consent of James P. Stephenson was, therefore, required." {¶ 6} Jessica Caudill, the minor child's mother, and Appellant both worked at Fairfield Medical Center and became romantically involved in 2001. On December 3, 2002, Mrs. Caudill gave birth to Braydon Caudill.1 At that time, she lived with Appellee. In early March 2003, Mrs. Caudill ended her relationship with Appellee and moved with her child to her mother's home in Wellston, Ohio. She resided in that home until June 2003, when she moved in with Appellant. Appellant and Mrs. Caudill married in August 2003. On April 5, 2004, Appellant filed a petition to adopt the minor child. Mrs. Caudill consented to the adoption. {¶ 7} On August 25, 2004, the trial court held an evidentiary hearing to determine if Appellee's consent was required for the adoption. At that hearing, Appellee testified that he last saw his son in March 2003, and admitted that he had not initiated contact with the child since then. He also testified that the only maintenance and support he provided the child after March 2003 was to add his son to his health insurance, but admitted that he failed to provide the mother with a health insurance card. {¶ 8} Appellee testified that Mrs. Caudill did not interfere with any attempt to visit or support the child. He simply did not attempt communication or support because he felt it was inappropriate because of his contentious relationship with the mother. Appellee testified that the child's maternal grandmother threatened, when he first visited the child in March 2003, to procure a restraining order and that he failed to initiate contact, in part, due to this threat. However, he did admit that he visited the child at the maternal grandmother's home two other times in March 2003, after, and in spite of, the threat. Appellee testified that he also did not initiate communication with the child because the mother asked him to sign over his paternal rights in April 2003 and did not provide maintenance and support because the mother informed him, in May 2003, that the child did not need his support. Appellee asserted that he felt it was best to procure a court order for visitation and support, rather than personally initiate such contact. On August 20, 2003, he filed a complaint in the Fairfield County Common Pleas Court to determine parentage and procure parenting orders. {¶ 9} Mrs. Caudill testified that she left Appellee's home because she felt it was an unsafe environment for her child. She admitted that Appellee visited the child three times in March 2003 and that she permitted him contact with the child each time. She also asserted that Appellee has not attempted to communicate or support the child since then and that she has not acted to interfere with any attempted communication or support. She denied any knowledge that Appellee added the child to his health insurance and testified that she never received an insurance card. Mrs. Caudill advised the court that Appellee had her cellular phone number, which she kept active until January 2004. She admitted that he contacted her through this phone number only for personal conversations and not to initiate communication with the child or to offer maintenance and support for the child. {¶ 10} Mrs. Caudill admitted that she asked Appellee to sign over his parental rights in April 2003, when he was hospitalized for a self-inflicted gun-shot wound. She testified that she requested him to sign over his rights, but told him he could visit the minor child at her mother's home. However, she advised Appellee that he could not take the child out of the home because she felt it was unsafe. Over Memorial Day weekend, Mrs. Caudill called Appellee to ask for the minor child's social security number. She testified that Appellee refused to give her the identification number, told her he would never give her the number, and threatened to physically injure her and take the minor child from her. During the phone conversation, she told him that the minor child now had a new father, referring to Appellant, and that she did not need his financial support. She filed a police report, but took no further action. {¶ 11} The trial court ruled that Appellee failed to communicate or maintain and support the child for a one-year period, but found such failure justifiable. The trial court found that it was reasonable for the father not to engage in "unproductive or blocked communication with a very young child." The trial court also noted that the Fairfield County Domestic Relations Court delayed Appellee's complaint for parenting orders until this case was resolved and reasoned that the trial court should not sever Appellee's parental rights due to that court's failure to issue temporary support or visitation orders. The trial court further found that Appellee clearly wanted a relationship with his son and was prepared to become financially responsible for, and visit with, the child. {¶ 12} Because we find Appellant's second assignment of error dispositive, we address it first. In his second assignment of error, Appellant argues that the trial court erred when it found that Appellee had justifiable cause for his failure to provide maintenance and support for the minor child. {¶ 13} Unless the judgment is against the manifest weight of the evidence, we cannot reject a finding that a natural parent's consent is necessary for adoption. In re Adoption of Bovett (1987), 33 Ohio St. 3d 102, paragraph four of the syllabus; In reAdoption of Masa (1986), 23 Ohio St. 3d 163, paragraph two of the syllabus. A judgment is against the manifest weight of the evidence if some competent, credible evidence in the record does not support it. Shemo v. Mayfield Hts., 88 Ohio St. 3d 7,2000-Ohio-258; Vogel v. Wells (1991), 57 Ohio St. 3d 91; C.E.Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, syllabus. We apply this highly deferential standard of review because the trial court, as the trier of fact, is in the best position to view the witnesses and observe their demeanor, gestures and voice inflections, and to use those observations in weighing the credibility of the proffered testimony. Myers v.Garson, 66 Ohio St. 3d 610, 615, 1993-Ohio-9; Seasons Coal Co.v. Cleveland (1984), 10 Ohio St. 3d 77, 80. {¶ 14} Parents have a fundamental liberty interest in the care, custody, and management of their children and a basic civil right to raise their children. Troxel v. Granville (2000),530 U.S. 57, 65; Santosky v. Kramer (1982), 455 U.S. 745, 753; Inre Hayes (1997), 79 Ohio St. 3d 46, 48; In re Murray (1990),52 Ohio St. 3d 155, 157. Because adoption terminates these rights, Ohio law forbids adoption without the natural parents' consent unless a specific statutory exemption applies. R.C. 3107.06(A);McGinty v. Jewish Children's Bur. (1989), 46 Ohio St. 3d 159. {¶ 15} R.C. 3107.07(A) provides an exemption to the general parental consent requirement. It states: "A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or placement of the child in the home of the petitioner." {¶ 16} In the case sub judice, the relevant one-year period is April 5, 2003 through April 5, 2004. Neither party challenges the trial court's finding that Appellee failed to communicate or maintain and support the minor child during the relevant period. Therefore, we limit our analysis to whether the trial court's finding that Appellee's failure to maintain and support the minor child was justifiable. {¶ 17} In Masa (1986), supra, the Ohio Supreme Court held that R.C. 3107.07(A) authorizes adoption without a natural parent's consent if that parent failed, without justifiable cause, to maintain and support the child for at least one year. Id. at paragraph one of the syllabus. The Court ruled that "[t]he question of whether justifiable cause for failure to support the child has been proven by clear and convincing evidence in a particular case is a determination for the probate court and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence." Id. at paragraph two of the syllabus. {¶ 18} The petitioner has the burden of proving, by clear and convincing evidence that (1) the natural parent failed to maintain and support the child for the requisite one-year period and (2) that this failure was without justifiable cause.Bovett, supra, at paragraph one of the syllabus. Once the petitioner establishes that the natural parent failed to maintain and support the child for at least one year, the burden of going forward with the evidence to show a facially justifiable cause for the failure shifts to the natural parent. Id. at paragraph two of the syllabus. However, the overall burden of proof remains with the petitioner. In re Adoption of Gibson (1986),23 Ohio St. 3d 170, 172. Once the natural parent shows a facially justifiable cause for failing to maintain and support the child, the petitioner must show, by clear and convincing evidence, that the justification is illusory. In re Adoption of Kessler (1993), 87 Ohio App. 3d 317, 323. {¶ 19} In the case sub judice, Appellant met his initial burden of proof and showed that Appellee failed to maintain and support the child for at least one year. Appellee then had the burden of going forward with evidence showing a facially justifiable reason for failure to provide maintenance and support. At the evidentiary hearing, Appellee testified that his sole attempt at maintenance and support was to add the minor child to his health insurance, but that he never gave a health insurance card to the mother.2 Appellee claimed that he thought it best to procure a court order for support, but admitted that he knew he could provide maintenance and support without a court order. When asked why he did not provide maintenance and support without a court order, Appellee answered "I don't know." Appellee also admitted that he was employed full-time, as a registered nurse, throughout the requisite period.3 {¶ 20} We acknowledge that exceptions to the requirement of parental consent to adoption must be strictly construed to protect the rights of the natural parents. Masa, supra, at 142. Nonetheless, we find that Appellee failed to show a facially justifiable cause for not providing maintenance and support during the requisite one-year period. {¶ 21} In Masa, the Ohio Supreme Court noted the factual difference between a parent who can provide maintenance and support but chooses not to, and a parent who cannot afford to provide maintenance and support. Id. at 143. Here, the evidence showed that Appellee was employed, with a sufficient salary, but failed to provide maintenance or support. Appellee did not proffer any evidence that providing support would constitute a hardship for him. {¶ 22} At the evidentiary hearing, Appellee argued that he failed to communicate with the minor child because of the contentious relationship with the mother. Appellee asserted that he believed it was best to wait until he obtained a court order for visitation. Appellee asserted this same reasoning to his failure to provide maintenance and support, arguing that the mother told him, during an intense argument, that she did not need him to provide maintenance and support. However, Appellee expressly acknowledged that he was aware that he could send maintenance and support without a court order, and did not know why he failed to do so. Appellee also admitted that the mother did not prevent him from providing maintenance and support. {¶ 23} The trial court ruled that Appellee showed justifiable cause for not providing maintenance and support because he filed a complaint in the Fairfield County Domestic Relations Court seeking parenting orders. The trial court found that it would be unjust to sever his parental rights when the Domestic Relations Court failed to issue temporary support orders with which he could comply. We find that the trial court erred because the lack of a support order does not constitute justifiable cause for failure to provide maintenance and support. {¶ 24} A temporary or permanent support order is not required for a parent to provide maintenance and support for a minor child. At the evidentiary hearing, Appellee admitted that he understood that a support order was not required to provide maintenance and support for the minor child. Appellee also acknowledged that he was aware he could send money to the mother without such an order and that he failed to do so without reason. Appellee then argued that he failed to provide maintenance and support because the mother told him, during an argument, that she did not need money to support the child. This argument occurred sometime between May 23 and May 26, 2003. The mother had left Appellee's home with the child in March 2003 and Appellee provided no support for the minor child during March or April 2003 and provided no reason at trial for this failure.4 We also find very compelling that Appellee never attempted to mail money or in-kind contributions to the mother for the child5 and admitted that the mother never interfered with any attempt to do so. {¶ 25} Filing a complaint seeking orders for support is simply not sufficient to establish a justifiable cause for a failure of maintenance and support. Appellee was financially able to provide support, knew the mother's phone number, and had an address to send money or in-kind contributions but failed to do so.6 Without showing that the mother spurned actual offers of support, Appellee cannot show a facially justifiable cause for failing to provide for the minor child, whether that be with money or in-kind contributions. Appellee had the means to support the child and failed to do so. For the trial court to rule that filing the complaint, alone, provided justifiable cause is wholly against the manifest weight of the evidence. It fails to take into consideration Appellee's failure to initiate maintenance and support before or after the argument in May and his admission that he knew he could provide support without a court order and that the mother did not interfere with his attempts to do so. Accordingly, we sustain Appellant's second assignment of error. {¶ 26} Because our resolution of Appellant's second assignment of error renders the remaining assignments of error moot, we decline to address them. See App.R. 12(A)(1)(c). Accordingly, we reverse the judgment and remand this cause for further proceedings consistent with this opinion. Judgment reversed and remanded. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED and the cause remanded and that Appellant recover of Appellee costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Jackson County Court of Common Pleas, Probate 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. Exceptions. Abele, P.J.: Concurs in Judgment and Opinion. Harsha, J.: Dissents. 1 From the record, it appears that the minor child's name at birth was Braydon Stephenson. 2 In In re Adoption of McNutt (1999), 134 Ohio App. 3d 822, we ruled that "[c]ontributions which are of no value to the child generally do not qualify as maintenance and support." Id. at 830. We held that placing a child on health insurance, but failing to disclose that coverage to the custodial parent does not constitute maintenance and support. Id. at 830, citing In reAdoption of Knight (1994), 97 Ohio App. 3d 670, 672; In reAdoption of Strawser (1987), 36 Ohio App. 3d 670, 672. Here, the mother argued that Appellee never informed her of the minor child's coverage through his health insurance. The trial court ruled that no evidence showed that Appellee advised the mother of the coverage and that he failed to provide an insurance card to the mother. 3 In 2002, Appellee earned $43,637.03. In 2003, Appellee earned $43,969. In 2004, Appellee's hourly rate was approximately $23.59, with the potential extra earnings through shift differential. 4 We note that March 2003 falls outside the relevant one-year period, but feel that Appellee's failure to provide support for almost three months before is relevant to his argument that he did not provide support only because of the mother's statements in late May 2003. 5 We note that our reasoning would be different if Appellee had offered maintenance and support either in person, or through the mails or other means, and the mother refused the offer. 6 We note Appellee only knew the mother's address when she resided with her mother in Wellston, Ohio and that the mother apparently did not provide him with a new address when she moved. However, her mother continued to reside in the address Appellee knew and did not attempt to send maintenance and support through that address. Also, there was no testimony that the mother's new address was unpublished and, thus, inaccessible.

2016-07-06 06:36:24.427281+00

JOURNAL ENTRY AND OPINION Appellant Al Nayman appeals the city of Cleveland Housing Court's decision in City of Clev. v. Nayman (Oct. 4, 1999) M.C. No. 99CRB5941, unreported, and City of Clev. v. Nayman (Oct. 4, 1999) M.C. No. 96CRB36561, unreported, denying, in each case, his motion to withdraw his plea, to vacate the finding of guilt, and to dismiss his complaint. This Court consolidated appellant's appeals for review and decision. Appellant assigns the following two errors for our review inCity of Clev. v. Nayman (Oct. 4, 1999) M.C. Nos. 96CRB36561 and 99CRB5941: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW PLEA OF NO CONTEST; TO VACATE FINDING OF GUILTY AGAINST ALVIN NAYMAN; AND TO DISMISS COMPLAINT. II. THE RECORD IN THIS CASE IS IRREGULAR, PREJUDICIAL TO DEFENDANT AND SHOULD NEVER SUPPORT A CONVICTION. Additionally, appellant assigns the following third error inCity of Clev. v. Nayman (Oct. 4, 1999) M.C. No. 99CRB5941: III. THE COMPLAINT AGAINST DEFENDANT IS FATALLY FLAWED. Having reviewed the record and the legal arguments of the parties, we conclude that this Court lacks jurisdiction to consider appellant's second and third assignments of error as an improper attempt to perfect an untimely appeal. With regard to appellant's first assignment of error, we affirm the decision of the trial court. The apposite facts follow. The city of Cleveland charged appellant in City of Clev. v.Nayman (Oct. 4, 1999) M.C. No. 96CRB36561 and 99CRB5941 with various building code violations in connection with commercial property located on Praha Avenue. In City of Clev. v. Nayman (Oct. 4, 1999) M.C. No. 96CRB36561, the city served appellant with a summons dated December 2, 1996 which required appellant to appear in court on January 13, 1997. Appellant acknowledged receipt of the summons on December 12, 1996, but failed to appear in court on January 13, 1997. The court issued a capias, which it recalled upon contact with appellant on March 12, 1999. At appellant's request and for good cause shown, the trial court continued this case until March 25, 1999. The city served appellant with a summons in City of Clev. v.Nayman (Oct. 4, 1999) M.C. No. 99CRB5941 dated February 5, 1999, which required appellant to appear in court on March 25, 1999. Appellant acknowledged receipt of the summons on February 9, 1999. On March 25, 1999, appellant, appearing pro se, entered a plea of no contest to the charges in both cases. The trial court found appellant guilty and fined him Two thousand dollars ($2,000) inCity of Clev. v. Nayman (Oct. 4, 1999) M.C. No. 99CRB5941 and One thousand five hundred dollars ($1,500) in City of Clev. v. Nayman (Oct. 4, 1999) M.C. No. 96CRB36561. The trial court clerk file stamped both sentencing orders for entry on the court's journal on March 25, 1999. On June 9, 1999, appellant, through counsel, filed a motion to withdraw his plea of no contest, vacate the guilty finding and dismiss the complaints (Motion) in both cases. In his motion to withdraw his plea in City of Clev. v. Nayman (Oct. 4, 1999) M.C. No. 96CRB36561, appellant urged the court to grant his motion because he did not own the property in question; the offense was more than two and one half years old; and he did not make his plea knowingly, intelligently, or voluntarily.1 In his motion to withdraw his plea in City of Clev. v. Nayman (Oct. 4, 1999) M.C. No. 99CRB5941, appellant contended that the court should permit him to withdraw his plea because he did not own the property and did not make his plea knowingly, intelligently, or voluntarily. In the affidavit appellant attached to his motion in both cases, appellant stated that he was not the owner of the property; that Quality Stamping Inc. owned the property; that he was unaware of the significance of corporate ownership; and accordingly, wished to change his plea. The trial court announced its denial of appellant's motions on July 8, 1999, finding as it had previously determined that appellant fit the definition of owner as defined under C.C.O. 3101.5(j). The trial court concluded that appellant's allegation that he did not hold legal title to the property in question did not preclude legal liability.2 Further, in denying appellant's request for a hearing, the trial court found that appellant failed to allege sufficient facts which, if accepted as true, would require the court to permit appellant to withdraw his plea. The court did not journalize the order until October 4, 1999. Appellant, who alleges that he received notice of the court's denial on August 17, 1999, filed his appeal on September 15, 1999. However, as previously noted, the trial court did not enter its judgment denying appellant's motion until October 4, 1999. "A notice of appeal filed after the announcement of a decision, order, or sentence but before entry of the judgment or order that begins the running of the appeal time period is treated as filed immediately after the entry." App.R. 4(C). Pursuant to App.R. 4(C), this Court treats appellant's premature appeal as filed on October 4, 1999. In appellant's first assignment of error, he alleges that the trial court erred in denying his notions to withdraw his plea of no contest. The appellate court reviews the grant or denial of a motion to withdraw a plea under an abuse of discretion standard.State v. Xie (1992) 62 Ohio St. 3d 521, 584 N.E.2d 715. While the trial court should freely grant pre-sentence motions to withdraw pleas, the court should grant post sentence motions to withdraw pleas only to correct manifest injustice. Id. at 525,584 N.E.2d at 718. The burden of establishing the existence of manifest injustice belongs to the defendant seeking to withdraw his plea. State v.Smith (1977), 49 Ohio St. 2d 261, 264, 361 N.E.2d 1324, 1326. In the instant case., appellant alleges that he entered his plea without the benefit of counsel and, therefore, lacked awareness of a potential defense to the charges. Notably, appellant does not allege that the trial court failed to inform him of the nature of the charges against him, the effects of a no contest plea, or his right to counsel as required under R.C. 2937.02. Additionally, appellant does not allege that the trial court acted to prevent him from obtaining counsel. Further, appellant chose not to provide this Court with a transcript of the sentencing hearing, nor did he provide an agreed statement of the proceeding as an alternative method of placing the trial court's proceedings before us for review pursuant to App.R. 9. Appellant, in challenging the trial court's denial of his motion to withdraw, bears the responsibility of providing the reviewing court with a record of the facts, testimony, and evidentiary matters necessary to support his assignment of error.Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197,400 N.E.2d 384. When an appellant fails to provide the reviewing court with a transcript necessary for the resolution of assigned errors, "the reviewing court has nothing to pass upon and thus, as to the assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." Id. at 199,400 N.E.2d at 385. Accordingly, we overrule appellant's first assignment of error. In his second and third assignments of error, appellant challenges the sufficiency of the court record and complaint supporting his conviction. Appellant could have raised these alleged errors in a direct appeal of the conviction. The trial court entered appellant's sentence in both cases on March 25, 1999. Appellant did not file his notice of appeal until September 15, 1999, six months after the trial court entered his sentence. Under App.R. 4(A), "[a] party shall file the notice of appeal * * * within thirty days of the later of entry of the judgment or order appealed." App.R. 4(A). Appellant failed to take a direct appeal from his conviction within the thirty day limit provided under App.R. 4(A). Consequently, we have no jurisdiction to review these issues. Accordingly, we overrule appellant's assignments of error two and three. 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 Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is teminated. 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. LEO M. SPELLACY. P.J., and MICHAEL J. CORRIGAN, J., CONCUR. ____________________________ PATRICIA ANN BLACKMON, JUDGE 1 Appellant also advanced an argument in two separate and unrelated 1996 cases, City of Clev. v. Nayman (Oct. 4, 1999) M.C. Nos. 96CRB012321 and 96CRB012322, pertaining to alleged fire code violations. Appellant argued that "[i]t appears that Defendant was cited in 1996 for a violation of the fire code in Case No. 96CRB012321. Defendant was then cited, apparently for the same violation in the instant case (96CRB012322) * * * it appears that case No. 96CR3012321 was nollied [sic] by the court on October 30, 1996." 2 C.C.O. 3101.5(j) definition of owner includes "[t]he owner or owners of the premises, a vendee in possession, a mortgagee or receiver in possession, a lessee or joint lessees of the whole thereof, or an agent or any other person, firm or corporation directly in control of the premises or having legal or equitable interest in the property.

2016-07-06 06:36:24.454686+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a Marietta Municipal Court judgment of conviction and sentence. After James R. Fleeman, defendant below and appellant herein, entered his no contest plea, the court found appellant guilty of possessing drug paraphernalia, in violation of R.C. 2925.14(C)(1), and of marijuana possession in violation of R.C. 2925.11(C)(3). {¶ 2} Appellant assigns the following error for our review: {¶ 3} "The trial court erred in denying appellant's motion to suppress evidence obtained during the unlawful detention of the appellant and subsequent search and seizure of the appellant which was warrantless and a direct violation of theFourth Amendment to the United States Constitution and Article 1, Section 14 of the Ohio Constitution." {¶ 4} On the evening of April 15, 2000, Ohio State Highway Patrol Trooper Ira Walker drove on State Route 7 between Belpre and Marietta when he clocked a Chevy Blazer driving sixty (60) miles per hour in a fifty-five (55) mile per hour zone. Trooper Walker turned and pursued the vehicle. After Trooper Walker exited his cruiser, he approached the vehicle and asked the driver (appellant) to produce his license and registration. Appellant seemed nervous during the encounter and he did not make eye contact with the officer. Trooper Walker became suspicious and he asked appellant to accompany him to the cruiser where he intended to issue a written warning. {¶ 5} When appellant exited his vehicle, Trooper Walker noticed "a large bulge" in appellant's left front pants pocket. Concerned that this bulge might be indicative of a weapon, Trooper Walker performed a protective frisk or pat-down search. During the pat-down, Trooper Walker felt something "squishy." He then asked appellant what was in his pocket. Appellant answered that the bulge was a pack of cigarettes. Appellant then reached into his pocket and appeared to be "moving" or "manipulating" something. After Trooper Walker asked appellant to remove his hand from his pocket, appellant pulled out an open "gray draw-string bag." Not quite convinced that the object was cigarettes, Trooper Walker asked appellant if he could see the bag. Appellant handed him the bag and Trooper Walker looked inside. Trooper Walker detected, by both smell and sight, the presence of marijuana. Trooper Walker placed appellant in the cruiser and called for backup. A subsequent search of appellant's car yielded more marijuana wrapped up in a shirt and concealed behind the vehicle's console. {¶ 6} On April 17, 2000, Trooper Walker filed criminal complaints charging appellant with possession of both marijuana and drug paraphernalia.1 Appellant pled not guilty and filed a motion to suppress evidence. Appellant's motion asserted that Trooper Walker did not have "reasonable and articulable suspicion" to have him exit his vehicle for a pat-down search and then conduct a search of his vehicle. {¶ 7} On May 29, 2000, the trial court conducted a hearing to consider appellant's motion. Trooper Walker described the circumstances surrounding the encounter and explained his reasons for patting down appellant's clothing. On July 12, 2000, the trial court determined that Trooper Walker was justified in stopping the vehicle, in asking appellant to step out of the car and then performing a pat-down for weapons. The court found that Trooper Walker did nothing improper by simply asking appellant about the bulge in his pants. As for appellant removing the bag and showing it to the officer, the court found that this action was "voluntary" on appellant's part. Finally, the court concluded that the officer conducted a lawful vehicle search ancillary to the discovery of contraband {¶ 8} Appellant subsequently changed his plea to "no contest" and the trial court found appellant guilty of both charges. The court imposed $350 in fines and ordered appellant's driver's license suspended for one hundred and eighty (180) days on each charge, both of which run concurrently with one another. This appeal followed. {¶ 9} Appellant argues in his assignment of error that the trial court erred by overruling his motion to suppress evidence. We disagree. {¶ 10} Initially we note that appellate review of rulings on motions to suppress evidence present mixed questions of law and fact. See State v. McNamara (1997), 124 Ohio App. 3d 706, 710,707 N.E.2d 539, 541; State v. Brite (1997),120 Ohio App. 3d 517, 519; 698 N.E.2d 478, 479; also see United States v.Martinez (C.A. 11 1992), 949 F.2d 1117, 1119; United States v.Wilson (C.A. 11 1990), 894 F.2d 1245, 1254. A trial court assumes the role of trier of fact during proceedings on motions to suppress. State v. Payne (1995), 104 Ohio App. 3d 364, 367,662 N.E.2d 60, 61-62; State v. Robinson (1994), 98 Ohio App. 3d 560,570, 649 N.E.2d 18, 25; State v. Rossiter (1993),88 Ohio App. 3d 162, 166, 623 N.E.2d 645, 648. Thus, the evaluation of evidence and credibility of witnesses during those proceedings are issues to be determined by the trial court. State v. Smith (1997), 80 Ohio St. 3d 89, 105, 684 N.E.2d 668, 685; State v.Brooks (1996), 75 Ohio St. 3d 148, 154, 661 N.E.2d 1030,1036-1037; State v. Fanning (1982), 1 Ohio St. 3d 19, 20,437 N.E.2d 583, 584-585. Factual findings rendered by the court must be accepted by an appellate court unless these findings are "clearly erroneous." State v. Long (1998), 127 Ohio App. 3d 328,332, 713 N.E.2d 1, 3; State v. Kennedy (Sep. 30, 1999), Ross App. No. 99CA2472, unreported; State v. Babcock (Feb. 13, 1997), Washington App. No. 95CA40, unreported; also seeUnited States v. Lewis (C.A. 1 1994), 40 F.3d 1325, 1332. That is to say that a reviewing court must accept the factual determinations of a trial court during a suppression hearing so long as those findings are supported by competent and credible evidence. State v. Harris (1994), 98 Ohio App. 3d 543, 546,649 N.E.2d 7, 9; State v. Claytor (1993), 85 Ohio App. 3d 623, 627,620 N.E.2d 906, 908; also see State v. DePalma (Jan. 18, 1991), Ross App. No. 1633, unreported. The application of the law to those facts, however, is then subject to de novo review.Harris, supra at 546, 649 N.E.2d at 9; State v. Anderson (1995), 100 Ohio App. 3d 688, 691, 654 N.E.2d 1034, 1036; alsosee Lewis, supra 1332; Wilson, supra at 1254. With these principles in mind, we turn our attention to the merits of the case at bar. {¶ 11} Appellant asserts that Trooper Walker violated his constitutional rights by conducting a protective frisk or pat-down for weapons, and then asking to see the grey bag appellant retrieved from his pants pocket. Once the officer discovered that the bag was not a weapon, appellant continues, the officer should have "stopped there" and issued the citation (or warning) rather than continuing his investigation. Appellant concludes that any further search contravened his rights under both the United States and Ohio Constitutions and that the evidence should have been suppressed. Again, we disagree. {¶ 12} Our analysis begins with the Fourth Amendment to the United States Constitution which guarantees the rights of people to be secure from unreasonable searches and seizures. This protection is made applicable to the states through theFourteenth Amendment Due Process Clause, see generally Mappv. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684. Similar safeguards are provided under Section 14, Article I of the Ohio Constitution. See State ex rel. Wright v. Ohio AdultParole Auth. (1996), 75 Ohio St. 3d 82, 88, 661 N.E.2d 728, 733;State v. Andrews (1991), 57 Ohio St. 3d 86, 87, 565 N.E.2d 1271,1273. These guarantees ensure that searches and seizures, conducted outside the judicial process without prior approval by judge or magistrate, are per se unreasonable subject only to a few specifically established and well delineated exceptions.See Thompson v. Louisiana (1984), 469 U.S. 17, 19-20,93 L. Ed. 2d 246, 250, 105 S. Ct. 409, 410; Katz v. United States (1967), 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507,514; also see State v. Veit (May 26, 1998), Athens 97CA34, unreported. {¶ 13} In the case sub judice, the officer's initial stop of appellant's vehicle for speeding was constitutionally permissible. Traffic violations automatically justify a brief stop and detention. See State v. Kennedy (Sep. 30, 1999), Ross App. No. 99CA2472, unreported; State v. Hart (Dec. 23, 1997), Athens App. No. 97CA18, unreported; State v. McNamara (Dec. 19, 1997), Athens App. No. 97CA11, unreported; State v.Chelikowsky (Aug. 18, 1992), Pickaway App. No. 91CA27, unreported. Given that the officer lawfully stopped appellant for a traffic violation, Trooper Walker was also justified in asking appellant to exit his vehicle. See Pennsylvania v. Mimms (1977), 434 U.S. 106, 110, 54 L. Ed. 2d 331, 336, 98 S. Ct. 330,333; also see State v. Robinette (1997), 80 Ohio St. 3d 234,239, 685 N.E.2d 762, 767. This brings us to the pat-down search issue. {¶ 14} For their protection during investigative stops, police officers may conduct pat-down searches for weapons if the officers have reason to believe the suspect is armed and dangerous. See Adams v. Williams (1972), 407 U.S. 143, 146,32 L. Ed. 2d 612, 617, 92 S. Ct. 1921, 1923; Terry v. Ohio (1967),392 U.S. 1, 27, 20 L. Ed. 2d 889, 909, 88 S. Ct. 1868, 1883; alsosee State v. White (1996), 110 Ohio App. 3d 347, 353,674 N.E.2d 405, 409. These protective frisks or pat-down searches generally raise two separate and distinct issues: (1) was the officer justified in performing the pat-down search in the first place; and (2) if the pat-down search was justified, did the police conduct themselves within the lawful scope of the pat-down search. See generally State v. Evans (1993),67 Ohio St. 3d 405, 408-416; 618 N.E.2d 162, 166-171; also see State v.Kennedy (Sep. 30, 1999), Ross App. No. 99CA2472, unreported. In the instant case, we resolve both those issues in the affirmative. {¶ 15} During the suppression hearing Trooper Walker testified that appellant behaved nervously, that appellant would not make eye contact with him and that appellant was "looking off in every direction but towards [him]." The officer explained that this type of behavior always gave him concern about the "weapon factor." Moreover, when appellant exited his vehicle, Trooper Walker observed a very large and noticeable bulge in appellant's pants pocket in a location where a weapon would most likely be kept. We agree with the trial court's conclusion that the totality of these circumstances provided ample justification for a protective pat-down search. {¶ 16} We also believe that Trooper Walker confined himself to the proper scope of a weapons pat-down. Trooper Walker explained how he ran the "flat part of [his] hand" over appellant's pants to make sure that the bulge was "not anything hard like a knife or a gun." We find nothing in the officer's uncontroverted testimony to suggest that the search was overly intrusive or exceeded what was necessary to ensure that appellant was not armed. {¶ 17} Having determined that the pat-down was proper, we also find nothing constitutionally infirm with the officer asking appellant about the object in his pocket. We note that appellant was still being detained for the original purpose of the stop (i.e. speeding violation). Law enforcement officers are free to question motorists during the course of a traffic stop about drugs, weapons or any other suspicious activity. See e.g., Statev. Trembly (Jun. 22, 2000), Washington App. No. 99CA3, unreported (Abele, J. Concurring). An officer is not required to limit questions solely to the scope and purpose of the initial traffic stop. Id. {¶ 18} We further agree with the trial court that appellant's subsequent actions were voluntary. Appellant responded to the officer's question by telling him that the bulge was from a pack of cigarettes. Appellant then reached into his pocket and pulled out the gray bag where it could be viewed by Trooper Walker. It was uncontroverted that appellant retrieved the bag of his own volition. The officer testified that he did not ask appellant to produce the object. Once appellant had retrieved the bag, Trooper Walker could merely see into the opening of the bag and he immediately recognized the site and smell of marijuana. As the trial court correctly held, this discovery was the end result of appellant voluntarily producing the bag from his pocket. {¶ 19} Appellant counter argues that Trooper Walker should have ceased any further investigation once it was discovered that the "squishy" bulge in his pants pocket was not a weapon. He cites to our previous opinions in Kennedy, supra, and Statev. White (1996), 110 Ohio App. 3d 347, 674 N.E.2d 405, for the proposition that the officer could not lawfully take the evidence from appellant unless the evidence was immediately apparent as contraband The flaw, however, in appellant's argument is that Trooper Walker did not uncover the contraband himself. Rather, appellant volunteered the contraband in response to the officer's questions. Consequently, we agree with the trial court that under particular facts and circumstances in this case, the encounter did not constitute a violation of appellant's constitutional rights. {¶ 20} For these reasons, we find that appellant's assignment of error is without merit and it is hereby overruled. We hereby affirm the trial court's judgment. JUDGMENT AFFIRMED. JUDGMENT ENTRY {¶ 21} It is ordered that the judgment be affirmed and that appellee recover of appellant costs herein taxed. {¶ 22} The Court finds there were reasonable grounds for this appeal. {¶ 23} It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution. {¶ 24} If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period. {¶ 25} The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. {¶ 26} A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Harsha, J.: Concurs in Judgment Only. Kline, J.: Concurs in Judgment Opinion. 1 Drug paraphernalia is defined, inter alia, as a container or device for storing or concealing a controlled substance. R.C. 2925.14(A)(10).

2016-07-06 06:36:24.652974+00

DECISION AND JUDGMENT ENTRY {¶ 1} Appellant, Lamond Johnson, appeals from a judgment of the Lucas County Court of Common Pleas. For the following reasons, we affirm the trial court's judgment of conviction. *Page 2 {¶ 2} This is appellant's second appeal of his sentence of August 10, 2004. The facts from the first appeal are as follows: {¶ 3} "On May 7, 2004, appellant entered a plea of no contest to one count each of aggravated robbery, kidnapping and rape. The trial court accepted appellant's plea and found him guilty. Each offense for which appellant was convicted is a first-degree felony subject to a prison sentence of three to ten years. On August 10, 2004, appellant was sentenced to three years on the aggravated robbery count, three years on the kidnapping count and eight years on the rape count. The trial court ordered appellant's sentences to be served consecutively." State v.Johnson, 6th Dist. Nos. L-04-1258 and L-04-1239, 2005-Ohio-5459, ¶ 4. {¶ 4} The appellant asserted during his first appeal that, "the trial court erred because it based his sentence upon findings not charged in an indictment, submitted to a jury or admitted by appellant." Id. On October 14, 2005, this court affirmed the judgment of the trial court pursuant to the current law in Ohio, which, at that time, required certain judicial findings of fact in order for a court to sentence a defendant to greater than minimum sentences and consecutive terms. {¶ 5} On February 27, 2006, the Ohio Supreme Court found R.C.2929.14(B) unconstitutional and severed that portion of the statute from Ohio's Criminal Sentencing Statute, R.C. Chapter 2929. State v.Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, ¶ 99. The court stated that the severance resulted in "judicial fact-finding not being required before a prison term may be imposed within the basic ranges of R.C. 2929.14(A)" Id. The Ohio Supreme Court also held that R.C. 2929.14(E)(4) and2929.41(A) are unconstitutional *Page 3 and severed those parts of the sentencing statute, stating that "judicial fact-finding is not required before imposition of consecutive prison terms." Id. {¶ 6} Appellant appealed to the Ohio Supreme Court based on theFoster decision, and on May 3, 2006, the Supreme Court reversed the judgment of this court and remanded the case to the trial court for resentencing. In re Ohio Criminal Sentencing Statutes Cases,109 Ohio St. 3d 313, 2006-Ohio-2109, ¶ 206, 212. On October 10, 2006, the original trial court resentenced appellant to the same sentence previously imposed on August 10, 2004. {¶ 7} Appellant filed a timely appeal based on the resentencing and raises a single assignment of error: {¶ 8} "The trial court erred to the prejudice of Mr. Johnson by sentencing him to consecutive, non-minimum sentences in violation of his right to protection from Ex Post Facto sentencing and his right to due process as guaranteed by the Fifth, Sixth, Eighth andFourteenth Amendments to the United States Constitution and the applicable portion of the Ohio Constitution." {¶ 9} Appellant does not offer, and this court cannot find, support for the assertion that his rights guaranteed by the Fifth orEighth Amendments were violated. All remaining issues in appellant's sole assignment of error are indistinguishable from the assignments of error taken up by this court in State v. Coleman, 6th Dist. No. S-06-023,2007-Ohio-448, ¶ 8-11. All pertinent facts of this case are also indistinguishable from those in Coleman. Both Coleman and the case before us involve a post-Foster *Page 4 resentencing wherein the trial court did not make any finding in support of the greater than minimum or consecutive sentences. The trial court did, however, consider the principles and purposes of those parts of the Ohio Criminal Sentencing Statutes that have remained intact afterFoster. Each appellant was also sentenced to serve the same term before and after Foster. {¶ 10} Appellant argues that his Sixth and Fourteenth Amendment due process rights were violated by being sentenced to greater than minimum, consecutive terms. We noted in Coleman, that "[e]very Ohio appellate court to confront the issue to date has held that no due process rights are implicated by Foster." Coleman, at ¶ 19 (Citations omitted.). We find that there is no reason to reconsider that holding. See Id. at ¶ 18-21. {¶ 11} Appellant further argues that resentencing according toFoster violates the Ex Post Facto Clause of the Federal Constitution. Again, based on our reasoning in Coleman, we find that the Ex Post Facto Clause does not apply to resentencing hearings conducted pursuant toFoster. Coleman, at ¶ 12-17. {¶ 12} Finally, appellant argues that Ohio's "rule of lenity," codified as R.C. 2901.04(A), requires the trial court to sentence appellant to minimum concurrent sentences. This issue was also decided in Coleman, in which we held that "[t]he rule of lenity `applies where there is ambiguity in or conflict between the statutes' at issue.State v. Arnold (1991), 61 Ohio St. 3d 175, 178. The rule has no application here, since there is no ambiguity or conflict between statutes, and Foster severed the portions of the sentencing statutes which violated the Sixth Amendment." Coleman, at ¶ 23. *Page 5 {¶ 13} Accordingly, Ohio's "rule of lenity" has no application in post-Foster resentencing because there is no ambiguity or conflict of law after the constitutionally offending sections are severed. {¶ 14} Consequently, this court finds that there were no violations of the appellant's constitutional due process rights, the Ex Post Facto Clause to the United States Constitution, or Ohio's "rule of lenity." Appellant's sole assignment of error not well-taken. The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the cost 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., Arlene Singer, J., Thomas J. Osowik, J., Concur. *Page 1

2016-07-06 06:36:24.711178+00

DECISION AND JUDGMENT ENTRY Lester Stephenson appeals the granting of relief from a judgment awarded to him against Elizabeth Myers by the Ross County Court of Common Pleas. He asserts that the trial court erred in granting Myers' Civ.R. 60(B) motion for relief from judgment because she failed to demonstrate excusable neglect and failed to set forth operative facts to support her claim that she had a meritorious defense to Stephenson's complaint. Because we find that the trial court abused its discretion in granting Myers' motion even though she failed to demonstrate a meritorious defense, we agree. Accordingly, we reverse the judgment of the trial court and remand this case to the trial court with special instructions. I. On May 14, 2001, Jaclyn A. Clipner filed a complaint against Lester Stephenson, State Farm Mutual Automobile Insurance Company ("State Farm"), and Allstate Insurance Company ("Allstate"). The clerk of courts properly served the complaint on all defendants. On June 11, 2001, Lester Stephenson answered Clipner's complaint and filed a third-party complaint against Elizabeth Myers seeking indemnification. On June 13, 2001, Allstate filed an answer to Clipner's complaint and filed a cross-claim against Lester Stephenson. On June 21, 2001, Lester Stephenson answered Allstate's cross-claim against him. In November 2001, State Farm filed an untimely answer to Clipner's complaint, which the trial court permitted. On November 19, 2001, Stephenson filed a motion for default judgment against Myers because she failed to plead, defend, or otherwise appear in the action. Allstate then amended its answer to include a claim against Myers. On December 4, 2001, the trial court granted Stephenson's motion for default judgment against Myers. On December 5, 2001, Myers filed a motion to set aside the default judgment.3 In her supporting motion, she asserted that the "liability between the defendants Lester Stephenson and Elizabeth Myers is hotly contested." She further asserted that her attorney's excusable neglect resulted in her failure to respond to the complaint filed against her. She explained that after the Allstate attorney who was overseeing the case went on maternity leave, attorney Jane Wichman took over but was busy with other duties. She answered the complaint filed against Allstate, but, according to Myers, inadvertently failed to answer on behalf of Myers. The original attorney resigned shortly after returning from maternity leave. Allstate again assigned the case to Wichman, who was out of the office the week Stephenson filed his motion for default judgment. Once the original attorney's replacement realized the mistake, she immediately attempted to get consent from the opposing counsel to set aside the default judgment. Myers also filed the affidavit of Attorney Wichman. In this affidavit, Wichman swore that "Myers has a meritorious defense to the allegations in the third-party complaint * * * [and the] parties have always disputed the liability allegations of this suit." Allstate did not seek a hearing on its motion to set aside the default judgment. On December 28, 2001, the trial court granted Myers' motion to set aside the default judgment previously entered against her. Stephenson appeals and asserts the following assignments of error: "The trial court erred in granting Elizabeth Myers' Motion to Set Aside Default Judgment because, pursuant to Civil Rule 60(B), `excusable neglect' was not demonstrated by counsel for defendant Myers." "The trial court erred in granting Elizabeth Myers' Motion to Set Aside Default Judgment because counsel for defendant Myers failed to set forth operative facts, * * * upon which the Court might determine whether a meritorious defense was available to defendant Myers." II. We consider Stephenson's second assignment of error first because it is dispositive. In his second assignment of error, he argues that the trial court erred in granting Myers' Civ.R. 60(B) motion to set aside the default judgment against her because she failed to allege operative facts that would support a finding that she had a meritorious defense. In an appeal from a Civ.R. 60(B) determination, a reviewing court must determine whether the trial court abused its discretion. State ex rel.Richard v. Seidner (1996), 76 Ohio St. 3d 149, 151, citing RoseChevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 20. An abuse of discretion connotes conduct that is unreasonable, arbitrary, or unconscionable. State ex rel. Richard at 151, citing State ex rel.Edwards v. Toledo City School Dist. Bd. of Edn. (1995), 72 Ohio St. 3d 106,107. In order to prevail on a motion for relief from judgment pursuant to Civ.R. 60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness of the motion. RoseChevrolet at 20, citing GTE Automatic Electric v. ARC Industries (1976),57 Ohio St. 3d 146, paragraph two of the syllabus; see, also, BuckeyeFed. S. L. Assn. v. Guirlinger (1991), 62 Ohio St. 3d 312, 314. If one of these three requirements is not met, the motion should be overruled.Rose Chevrolet at 20, citing Svoboda v. Brunswick (1983), 6 Ohio St. 3d 348,351; Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App. 3d 578. Furthermore, if the movant files a motion for relief from judgment and it contains allegations of operative facts that warrant relief under Civ.R. 60(B), the trial court should grant a hearing to take evidence and verify those facts before it rules on the motion. Coulson v. Coulson (1983), 5 Ohio St. 3d 12, 16. However, an evidentiary hearing is not required "where the motion and attached evidentiary material do not contain allegations of operative facts which would warrant relief under Civ.R. 60(B)." State ex rel Richard at 151, citing S. Ohio Coal Co. v.Kidney (1996), 100 Ohio App. 3d 661, 667. "[T]he requirement that the movant demonstrate that the party has a meritorious defense or claim to present, will not be met where the movant submits an affidavit in which he asserts, in conclusory fashion, that he has a meritorious defense." Jordan v. Sitosky (Jan. 24, 1991), Cuyahoga App. No. 57913, citing Baschenbach v. Feola (Mar. 12 1987), Cuyahoga App. Nos. 51888, 51889; Riley v. Mills (Oct. 9, 1986), Cuyahoga App. No. 51165; MTS Precision Products, Inc. v. Kennedy (Feb. 13, 1986), Cuyahoga App. No. 50133. We find that the trial court abused its discretion in granting Myers' motion for relief from judgment because she failed to demonstrate that she had a meritorious defense. Myers alleged only that she had a meritorious defense and that she "hotly contested" liability. She alleged no operative facts to demonstrate that she had a meritorious defense, as required by Rose Chevrolet and GTE Automatic. Therefore, we find that the trial court erred in granting Myers' Civ.R. 60(B) motion for relief from judgment. Accordingly, we sustain his second assignment of error. III. We do not address Stephenson's first assignment of error because our disposition of his second assignment of error has rendered it moot. App.R. 12(A)(1)(c). IV. In sum, we sustain Stephenson's second assignment of error and find his first assignment of error moot. Accordingly, we reverse the judgment of the trial court and remand this case to the trial court with instructions to reinstate the default judgment against Myers. JUDGMENT REVERSED AND REMANDED WITH INSTRUCTIONS. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED and the cause remanded to the trial court for further proceedings consistent with this opinion, costs herein taxed to appellee. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as the date of this Entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. 3 The trial court accepted this document for filing even though it was captioned in the Franklin County Common Pleas court.

2016-07-06 06:36:24.883281+00

OPINION *Page 2 {¶ 1} On July 11, 2007, the girlfriend of appellee, Gary Sullivan, called the Delaware County Sheriff's Office to report she and appellee had had an argument, and appellee left and was possibly drunk. Deputy Charles Gannon responded to the dispatch call. Deputy Gannon observed a vehicle matching the description given by appellee's girlfriend, and noticed it was traveling 20 m.p.h. in a 35 m.p.h. zone. Deputy Gannon activated his lights. Thereafter, appellee pulled into a drive-thru area of a restaurant and exited his vehicle. Upon investigation, appellee was cited for driving under the influence of alcohol in violation of R.C.4511.19 and impeding the flow of traffic in violation of R.C. 4511.22. {¶ 2} On September 10, 2007, appellee filed a motion to suppress. A hearing was held on November 7, 2007. By judgment entry filed December 6, 2007, the trial court granted the motion and suppressed all evidence seized after the traffic stop. {¶ 3} Appellant, the state of Ohio, filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶ 4} "THE TRIAL COURT ERRED IN FINDING THAT THE FACTS OF THE CASE AS FOUND BY THE TRIAL COURT DID NOT PROVIDE THE ARRESTING OFFICER REASONABLE SUSPICION TO STOP THE VEHICLE." I {¶ 5} Appellant claims the trial court's conclusion that Deputy Gannon did not have reasonable articulable facts to initiate the stop of appellee is contrary to law. We agree. *Page 3 {¶ 6} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. State v. Fanning (1982), 1 Ohio St. 3d 19; State v. Klein (1991), 73 Ohio App. 3d 485; State v.Guysinger (1993), 86 Ohio App. 3d 592. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. State v. Williams (1993),86 Ohio App. 3d 37. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App. 3d 93; State v.Claytor (1993), 85 Ohio App. 3d 623; Guysinger. As the United States Supreme Court held in Ornelas v. U.S. (1996), 116 S. Ct. 1657, 1663, " . . . as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." {¶ 7} In Terry v. Ohio (1968), 392 U.S. 1, 22, the United States Supreme Court determined that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." However, for the propriety of a brief investigatory stop pursuant to Terry, the police officer involved "must be able *Page 4 to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be viewed in the light of the totality of the surrounding circumstances" presented to the police officer. State v. Freeman (1980), 64 Ohio St. 2d 291, paragraph one of the syllabus. {¶ 8} Appellant does not contest the trial court's findings of fact, but argues that under the totality of the circumstances test, there were reasonable articulable facts to stop appellee. Appellee argues that "going too slow," 20 m.p.h. in a 35 m.p.h. zone, was not sufficient to stop him. Because no written transcript was provided pursuant to App.R. 9, we must accept as true the trial court's specific factual findings. {¶ 9} In reaching the decision sub judice, the trial court rejected the argument that there was a violation of R.C. 4511.22 (impeding the flow of traffic due to slow speed), and that the girlfriend's tip was reliable. {¶ 10} We may concur with the trial court that there is certainly questionable motivation regarding the girlfriend as the tipster. However, we find appellee's driving actions and Deputy Gannon's observations prior to the stop rise to the level of reasonable suspicion of driving under the influence. {¶ 11} From the trial court's factual findings, appellee was traveling 20 m.p.h. in a 35 m.p.h. zone for approximately seven miles with a stream of ten cars following behind him. Even disregarding the tip, we find this clearly raised a red flag to the deputy of some troubled driving. We find these observations are sufficient articulable facts to lead to a reasonable suspicion of criminal activity. The focus of the deputy's observation was the suspicion of impaired driving, not speed. *Page 5 {¶ 12} In State v. McCormick (February 5, 2001), Stark App. No. 2000CA00204, this court held that any traffic violation, even a de minimis violation, would form a sufficient basis upon which to stop a vehicle, and stated the following at 9: {¶ 13} "The severity of the violation is not the determining factor as to whether probable cause existed for the stop. State v. Wei master(Dec. 21, 1999), Richland App. No. 99CA36, unreported. Rather, `* * * where an officer has an articulable reasonable suspicion or probable cause to stop a motorist for any criminal violation, including a minor traffic violation, the stop is constitutionally valid * * *' Id. (Citations omitted)." See also, State v. Cook, Stark App. No. 2006 CA 00280, 2007-Ohio-4648. {¶ 14} A seven mile trek at fifteen miles below a low speed limit is sufficient to create reasonable suspicion. In particular, 20 m.p.h. in a 35 m.p.h zone is completely different than 50 m.p.h. in a 70 m.p.h. zone or 40 m.p.h. in a 60 m.p.h. zone. A speed of 20 m.p.h. is the lowest speed limit and is generally used for school zones where extreme caution is required. {¶ 15} Upon review, we find the trial court erred in granting appellee's motion to suppress. {¶ 16} The sole assignment of error is granted. *Page 6 {¶ 17} The judgment of the Municipal Court of Delaware County, Ohio is hereby reversed and remanded. Farmer, J. Gwin, P.J. and Delaney, J. concur. *Page 7 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Municipal Court of Delaware County, Ohio is reversed, and the matter is remanded to said court for further proceedings consistent with this opinion. *Page 1

2016-07-06 06:36:24.97812+00

{¶ 1} Defendant-appellant Jonathan Sims appeals from a judgment of conviction which found him guilty of failure to comply with an order or signal of a police officer (with a firearm specification), carrying a concealed weapon and having a weapon while under disability. He sets forth seven assignments of error that collectively challenge the sufficiency of the evidence, the admission of hearsay evidence, whether the police had cause to pursue him and the imposition of sentence. We find no error and affirm. {¶ 2} The state's evidence showed that the police received a late-night call reporting that a male, subsequently identified as Sims, had been in a bar and was carrying a gun. One of the officers who responded to the scene testified that she and her partner parked one block from the bar and saw a crowd of people standing outside the bar. A security officer for the bar told them that a shirtless male with a gun had run around the corner. The officers turned the corner and saw Sims enter a vehicle. {¶ 3} The officer took cover behind another car and "several times" ordered Sims to exit his vehicle. Sims ignored the order, started his car and pulled away. The officers returned to their zone car and pursued Sims. By this time, another zone car had joined the pursuit. Sims drove the wrong-way down two streets, exceeding the posted speed limit. After a chase of approximately 80 blocks, Sims' car struck a curb and veered into a utility pole. Sims exited the car and tried to flee on foot, but *Page 4 tripped on the curb. Officers from the second zone car then arrested him. The testifying officer saw the other officers confiscate from the waistband of Sims' pants a revolver with black tape around the handle. Two live rounds were emptied from the gun and subsequent testing confirmed that the gun was operable. I {¶ 4} Sims' first assignment of error complains that the court denied him his right to cross-examine witnesses by allowing a detective to identify and testify to the contents of a police laboratory report which verified the operability of the firearm. Sims objected to the detective's testimony on grounds that it was hearsay unless the officer who prepared the report testified. The court overruled the objection, finding that the report and the conclusions listed therein fell under the Evid.R. 803(6) business record exception to the hearsay rule. Sims maintains that the admission of the report violated his right to confrontation and cross-examination. {¶ 5} The Sixth Amendment to the United States Constitution grants the accused the right "to be confronted with the witnesses against him * * *." The right to confrontation is implicated by hearsay. In Crawford v.Washington (2004), 541 U.S. 36, 53-54, the United States Supreme Court held that the Confrontation Clause bars "testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." *Page 5 {¶ 6} The Ohio Supreme Court recently addressed this issue as it pertains to the admission of an autopsy report when the coroner who prepared the report did not testify at trial. In State v. Craig,110 Ohio St. 3d 306, 2006-Ohio-4571, the supreme court noted thatCrawford distinguished between testimonial and nontestimonial statements and "indicated that business records are, `by their nature,' not testimonial." Id. at 81, quoting Crawford, 581 U.S. at 56. The supreme court stated: {¶ 7} "An autopsy report, prepared by a medical examiner and documenting objective findings, is the quintessential business record.Rollins v. State (2005), 161 Md.App. 34, 81, 866 A.2d 926. The essence of the business record hearsay exception contemplated inCrawford is that such records or statements are not testimonial in nature because they are prepared in the ordinary course of regularly conducted business and are by their nature not prepared for litigation.People v. Durio (2005), 7 Misc. 3d 729, 734, 794 N.Y.S.2d 863." (Internal quotation marks omitted.) {¶ 8} Evid.R. 803(6) creates a hearsay exception for records and reports "if kept in the course of a regularly conducted business activity" and if it was a "regular practice of the business activity to make" the record or report. The detective testified that reports generated from the test-firing of ballistic weapons were kept in the regular course of business by the Cleveland Police Department. This testimony established that the ballistic report prepared by the laboratory fell within the Evid.R. *Page 6 803(6) business records exception to the hearsay rule. Like the autopsy report referenced in Craig, the ballistic test was nontestimonial because the conclusions stated in the report were fact, not opinion. Sims' constitutional right to confront witnesses was not violated. {¶ 9} Even if there had been some error in the admission of the ballistic report, the error would have been harmless beyond a reasonable doubt because the state offered independent evidence to verify the operability of the firearm. The detective who identified the contents of the laboratory report also testified that, during a break in his testimony, he went to the ballistics laboratory and personally witnessed a second test of the firearm's operability. The detective testified, "[w]ell, on this day, I personally took that weapon back down to SIU, and again, had it test fired by the scientific examiner * * *. And I personally witnessed this firearm to be operational." The state offered into evidence a spent bullet that the detective identified as having been fired from the firearm in the test that he witnessed. {¶ 10} This testimony constituted separate evidence of operability and would have rendered any perceived error in the admission of hearsay statements to be harmless beyond a reasonable doubt. II {¶ 11} Sims next argues that the court erred by admitting into evidence the gun seized from him after he had been apprehended. He maintains that the state failed *Page 7 to establish a proper chain of evidence and that the gun produced at trial did not have a barrel and had black tape wrapped around the handle. {¶ 12} The predicate inquiry for the admission of any evidence is that it be authenticated or identified to show that "the matter in question is what its proponent claims." See Evid.R. 901. In practice, this requires the state to establish a "chain of custody" which shows that it had a process and method for tracking, maintaining control over, and providing accountability for all evidentiary items in the criminal investigation. The specific requirements necessary to show a chain of custody are not absolute. In State v. Gross, 97 Ohio St. 3d 121,2002-Ohio-5524, T|57, the supreme court stated: {¶ 13} "As a general matter, `the state [is] not required to prove a perfect, unbroken chain of custody.' State v. Keene (1998),81 Ohio St. 3d 646, 662, 693 N.E.2d 246. Accordingly, `[a] strict chain of custody is not always required in order for physical evidence to be admissible.' State v. Wilkins (1980), 64 Ohio St. 2d 382, 389,18 O.O.3d 528, 415 N.E.2d 303." {¶ 14} "[T]he state need only establish that it is reasonably certain that substitution, alteration or tampering did not occur. State v.Blevins (1987), 36 Ohio App. 3d 147, 150. If a chain of custody is broke, that fact alone will not render evidence inadmissible — the broken chain goes to the weight afforded the evidence, not its admissibility." Id. See, also, State v. Barzacchini (1994), *Page 8 96 Ohio App. 3d 440, 457-458 ("even when a break in the chain of custody is uncovered, it goes to the credibility of the evidence and not to its admissibility"). {¶ 15} The police officer who testified at trial said that she was present at Sims' apprehension, watched him being searched, and saw that Sims had "a revolver in his waistband with black tape around the handle." She said that she "marked, tagged and entered" the gun into the police property book. At trial, she identified the gun, noting that it had the same black tape on the handle that she saw when the gun was confiscated from Sims at the time of his arrest. This testimony effectively established a chain of custody. III {¶ 16} For his third assignment of error, Sims complains that he was erroneously convicted of a felony count of carrying a concealed weapon because the court failed to make a finding that the gun confiscated from him had been loaded. {¶ 17} Count 2 of the indictment charged Sims with carrying a concealed weapon under R.C. 2923.23(A)(2). That section states that "[n]o person shall knowingly carry or have, concealed on the person's person or concealed ready at hand * * * [a] handgun other than a dangerous ordnance * * *." A violation of R.C. 2923.12(A) is normally a first degree misdemeanor; however, "if the weapon involved is a firearm that is * * * loaded," the offense becomes a fourth degree felony. See R.C.2923.12(G)(1). *Page 9 {¶ 18} When facts produced at trial can affect the degree of the offense, R.C. 2945.75(A)(2) requires that "[a] guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged." In State v. Pelfry, 112 Ohio St. 3d 422,2007-Ohio-256, the supreme court stated that R.C. 2945.75 is mandatory and that "a verdict form signed by a jury must include either the degree of the offense of which the defendant is convicted or a statement that an aggravating element has been found to justify convicting a defendant of a greater degree of a criminal offense." {¶ 19} The state acknowledges Pelfry, but argues that it has no direct application here because Sims elected to be tried to the court and there are no "verdict forms" in a bench trial. It maintains that the court's judgment of conviction is the de facto "verdict form," and that the journal entry memorializing the conviction stated that the court found Sims guilty of "carrying concealed weapons 2923.12 — F4 as charged in count(s) 2 of the indictment." The state contends that this journal entry sufficiently complied with R.C. 2945.75. {¶ 20} We agree with the state that the court's journal entry memorializing its judgment of conviction is functionally equivalent to a "verdict form" as contemplated by Pelfry. Nothing in the Rules of Criminal Procedure requires a court sitting without a jury to complete a verdict form. Instead, the court issues a "judgment of *Page 10 conviction" which must set forth "the plea, the verdict or findings, and the sentence." See Crim.R. 32(C). As noted by the state, the court's judgment of conviction clearly stated that it found Sims guilty of "carrying concealed weapons 2923.12 — F4 as charged in count(s) 2 of the indictment." This judgment entry was in full compliance with R.C.2945.75 because it was a guilty verdict that stated the degree of the offense for which Sims was found guilty. That degree of the offense could only apply if Sims had been in possession of a loaded weapon, so we find the court's journal entry adequate to state that Sims had been in possession of a loaded weapon. IV {¶ 21} Sims' fourth assignment of error complains that he was convicted of failure to comply based on police violations of theFourth Amendment because the police had no constitutional or statutory basis for pursuing him. {¶ 22} Sims did not file a motion to suppress or any other motion that called the court's attention to a perceived lack of probable cause to support his arrest, hence he waived the right to raise this argument for the first time on appeal. See State v. Moreland (1990),50 Ohio St. 3d 58, 62; State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus. Even though an issue may be waived for purposes of appeal, we have the option of conducting a plain error analysis. See Crim.R. 52(B). Plain error "does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise."Moreland, *Page 11 50 Ohio St.3d at 62; see, also, State v. Long (1978), 53 Ohio St. 2d 91, at paragraphs two and three of the syllabus. {¶ 23} We find no error, much less plain error, in Sims' arrest because the police had clear cause to arrest Sims. In State v.Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, T|39, the supreme court stated: {¶ 24} "Probable cause for a warrantless arrest requires that the arresting officer, at the time of the arrest, possess sufficient information that would cause a reasonable and prudent person to believe that a criminal offense has been or is being committed. Gerstein v.Pugh (1975), 420 U.S. 103, 111-112, 95 S. Ct. 854, 43 L. Ed. 2d 54;Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142. In determining whether probable cause existed, we examine the `totality' of facts and circumstances surrounding the arrest. See State v. Homan (2000), 89 Ohio St. 3d 421, 427, 2000 Ohio 212, 732 N.E.2d 952." {¶ 25} The totality of the facts support a finding that the police had probable cause to arrest Sims. The testifying police officer said that she and her partner responded to a radio broadcast concerning an armed male in a bar. R.C. 2923.121(A) states that "no person shall possess any firearm in any room in which liquor is dispensed" and for which a liquor permit has been issued. It makes no difference that the testifying officer did not actually see Sims' gun before ordering him to stop. The officer testified that the bar's security personnel on the scene corroborated the initial call relating to Sims' presence in the bar and his possession *Page 12 of a firearm. Moreover, the officer said that there was a "large crowd" in front of the bar, "and everyone was yelling and screaming" and running for their cars because they were afraid. These facts independently corroborated the initial broadcast and gave the police probable cause to believe a crime had been committed. V {¶ 26} Sims next argues that his convictions on all three counts were unsupported by sufficient evidence. A {¶ 27} When reviewing a claim that there is insufficient evidence to support a conviction, we view the evidence in a light most favorable to the prosecution to determine whether 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. B {¶ 28} Count 1 of the indictment charged that Sims "operated a motor vehicle so as to willfully elude or flee a police officer after receiving a visible or audible signal from a police officer to bring his motor vehicle to a stop." This language tracked the language of R.C.2921.331(B). "A plain reading of [R.C. 2921.331(B)] shows that a signal from an officer need not be verbal; the blue lights and siren qualify as an applicable signal to stop." State v. Wooden (1993),86 Ohio App. 3d 23, 26. *Page 13 {¶ 29} Viewing the evidence in a light most favorable to the state shows that Sims entered his car and drove away despite repeated orders to stop. Sims then continued driving, forcing the police to pursue him. The officer testified that her car's lights and sirens were activated for the entire pursuit. In addition, the evidence showed that Sims twice proceeded the wrong way down one-way streets and at other times far-exceeded the speed limit. A rational trier of fact could view these facts to show that Sims operated his vehicle to willfully elude the police after receiving a visible or audible signal to stop. C {¶ 30} Sims next argues that there was no evidence to show that he carried a loaded handgun or that he had concealed the gun. {¶ 31} The evidence could have led the court to conclude rationally that the gun was "loaded." A firearm is defined in R.C. 2923.11(B)(1) as "any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant." Although the word "loaded" is not defined by the Revised Code, it is commonly used to mean that ammunition, in the form of a projectile, had been placed in the gun so that it could be expelled by the action of an explosive or combustible propellant. {¶ 32} The evidence showed that upon apprehension, the police confiscated a gun from Sims and emptied "two rounds." The court could rationally conclude that *Page 14 the recovery of live rounds from the gun was sufficient to prove that the gun was loaded. {¶ 33} We likewise find that the evidence showed that Sims' had concealed his weapon. In State v. Pettit (1969), 20 Ohio App. 2d 170,173, the court stated the following test to use for determining whether a weapon is concealed: {¶ 34} "We think that a recognized test is that a weapon is concealed if it is so situated as not to be discernible by ordinary observation by those near enough to see it if it were not concealed, who would come into contact with the possessor in the usual associations of life; but that absolute invisibility is not required, since ordinary observation does not extend to a search unusually careful, thorough or detailed, made because of suspicion that contraband which is not visible by ordinary observation may in actuality be present." (Citation omitted.) {¶ 35} The evidence showed that Sims had placed the gun in the waistband of his pants. The handle of the revolver had been covered in black tape. The court could have viewed these facts to show that Sims partially concealed the gun by placing it partway into his pants and used the tape to further conceal the appearance of the gun. Concealed in this manner, the gun's existence may not have been visible upon ordinary observation, and thus sufficiently concealed so as to constitute a violation of R.C. 2923.12. D *Page 15 {¶ 36} Finally, Sims argues that the state did not produce sufficient evidence to show that he had a weapon while under disability because there was no evidence that the gun was operable. We summarily reject this argument as the state offered proof of the ballistic test and the first-hand observations of a detective who witnessed the gun being test fired. VI {¶ 37} For his sixth assignment of error, Sims complains that he was subjected to unconstitutional, multiple punishments when he was separately sentenced under a firearm specification. He maintains that his convictions for failure to comply (with a firearm specification), carrying a concealed weapon, and having a weapon while under disability punished him for the same conduct — having a gun — and thus subjected him to multiple punishments for the same conduct. {¶ 38} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits an accused from being "tried twice for the same offense * * *." In the context of multiple convictions for the same conduct, R.C. 2941.25(A) states that "[w]here the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." The Committee Comment to R.C. 2941.25 states: {¶ 39} "The basic thrust of the section is to prevent `shotgun' convictions. For example, a thief theoretically is guilty not only of theft but of receiving stolen goods, *Page 16 insofar as he receives, retains, or disposes of the property he steals. Under this section, he may be charged with both offenses but he may be convicted of only one, and the prosecution sooner or later must elect as to which offense it wishes to pursue." {¶ 40} To determine whether conduct constitutes two or more allied offenses of similar import, the courts employ a two-part test to determine when convictions may be obtained for two or more allied offenses of similar import. State v. Rance (1999), 85 Ohio St. 3d 632,1999-Ohio-291. In the first step, the elements of the offenses at issue are compared in the abstract to determine whether the elements correspond to such a degree that the commission of one offense will result in the commission of the other. Id. at 638. However, if a defendant commits offenses of similar import separately or with a separate animus, he may be punished for both of them pursuant to R.C.2941.25(B). Id. at 638-639. {¶ 41} The offense of failure to comply with a lawful order of a police officer is not allied in any respect with carrying a concealed weapon or having a weapon under disability because the elements of these crimes do not correspond to such a degree that a failure to comply will result in the commission of the other offenses. A failure to comply may be committed regardless of whether the offender is armed with a weapon, so it is not an allied offense to carrying a concealed weapon or having a weapon under disability. *Page 17 {¶ 42} The offenses of carrying a concealed weapon and having a weapon under disability are likewise not allied offenses. In State v. Rice (1982), 69 Ohio St. 2d 422, the syllabus states, "[t]he crimes of carrying a concealed weapon, R.C. 2923.12, and having weapons while under disability, R.C. 2923.13, are not allied offenses of similar import under R.C. 2941.25(A), and may be committed separately and with a separate animus under R.C. 2941.25(B)." See, also, State v. Kole,92 Ohio St. 3d 303, 2001-Ohio-191, fn.1. {¶ 43} The court did not err by sentencing Sims separately on separate counts of carrying a concealed weapon and having a weapon under disability. VII {¶ 44} For his seventh assignment of error, Sims maintains that the court erred by sentencing him to a firearm specification on the failure to comply count. He argues that the firearm specification had no relationship to the failure to comply charge and that it truly stemmed from either carrying a concealed weapon or having a weapon under disability, and that neither one of those charges could legally support a firearm specification. {¶ 45} We reject Sims' argument to the extent that he maintains that the firearm specification stemmed, in actuality, from either the concealed weapons charge or the weapon under disability charge. The indictment carried only one specification, and that specification pertained to the failure to obey charge listed in count 1. *Page 18 {¶ 46} The firearm specification arose under R.C. 2941.141, which states that a one-year mandatory prison term may be imposed upon the offender only if the indictment "specifies that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense." A firearm specification is not a separate offense, but a sentence enhancement. State v. Blankenship (1995), 102 Ohio App. 3d 534, 547. {¶ 47} The evidence showed that Sims had a firearm on his person as he committed the offense of failure to comply. He failed to stop just outside the bar when ordered to do so, and then evaded the police and caused them to pursue him despite their lights and sirens operating as a signal for him to stop. Upon being apprehended immediately after crashing his car into a utility police, the police found the gun in the waistband of Sims' pants. The court therefore rationally concluded that Sims had a firearm on his person at the time he committed the offense of failure to comply. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. *Page 19 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MARY EILEEN KILBANE, P.J., and ANN DYKE, J., CONCUR. *Page 1

2016-07-06 06:36:20.117546+00

Slaby

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 375 Appellant, Donald M. Georgeoff, appeals from the entry of summary judgment by the Summit County Court of Common Pleas in favor of appellee, Kerry O'Brien, in appellant's legal malpractice action against him. We affirm. *Page 376 The essential facts were not in dispute. Appellee represented appellant in a federal criminal action. After four days of trial, appellee entered into plea negotiations on appellant's behalf with the United States district attorney. As a result of the negotiations, three of four counts against appellant were dismissed, no restitution was required, a fine was imposed, and charges against appellant's daughter, who had been indicted with appellant, were dropped. Appellant was sentenced to time in a federal institution on the remaining count. Prior to sentencing, appellee was permitted to withdraw as counsel. Appellant moved to withdraw his plea, but the motion was denied. The Sixth Circuit Court of Appeals affirmed the denial on appeal. Approximately one year later, appellant was again indicted on federal charges. He sought to have that indictment dismissed because the charges arose out of the same circumstances that led to his prior guilty plea. Although the district court had dismissed the second indictment against one of appellant's codefendants, who also had been indicted with appellant on the first indictment and had entered a guilty plea, the district court denied the motion to dismiss appellant's indictment because, unlike the codefendant's prior plea agreement, appellant's guilty plea did not include language that prohibited related charges based on facts known or made known to the United States during the course of the prior proceedings. The district court also noted that the quid pro quo for the guilty plea was the dismissal of the indictment against appellant's daughter, not immunity from further prosecution. Appellant pleaded guilty to the charges in the second indictment. Appellant, proceeding without an attorney, filed this malpractice action against appellee, in which he alleged that appellee negligently failed to include standard language in the plea agreement that would have prohibited further prosecution and required dismissal of the second indictment. Appellant sought discovery from appellee through interrogatories, a request for admissions and a request for production of documents. Appellee responded to the discovery; however, he objected to certain interrogatories and document requests without specification of the underlying reason for the objections. Appellant moved to compel discovery; the court failed to address the motion. Both parties moved for summary judgment. Appellee supported his motion with affidavits, including an affidavit from an expert witness who concluded that appellee acted "well within acceptable standards of legal care, fully meeting his duties to [appellant]." Appellant did not file any affidavits, but instead filed an uncertified transcript of his codefendant's hearing on the dismissal of the indictment. Testimony of the district attorney in that hearing indicated that the omitted language was "standard language" and would have been included had it been requested. The trial court, reasoning that expert testimony was required, *Page 377 granted summary judgment to appellee because appellant had failed to refute appellee's expert's opinion. Appellant assigns three errors on his appeal from the court's judgment. Assignments of Error I and II "I. The trial court erred in granting summary judgment to appellee. "II. The trial court erred in overruling appellant's motion for summary judgment." In reviewing an entry of summary judgment, an appellate court applies the same standard used by the trial court. McConville v.Jackson Comfort Sys., Inc. (1994), 95 Ohio App.3d 297, 301,642 N.E.2d 416, 419. Before summary judgment may be granted, a trial court must determine that: "(1) [N]o 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 the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party." State ex rel.Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589,639 N.E.2d 1189, 1192, citingTemple v. Wean United, Inc. (1977), 50 Ohio St.2d 317,327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. The moving party has the burden of showing that summary judgment is appropriate. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112,115, 526 N.E.2d 798, 801-802. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. ofTexas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. The elements of a legal malpractice claim that arises from criminal representation are (1) an attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. Krahn v. Kinney (1989), 43 Ohio St.3d 103, 538 N.E.2d 1058, syllabus. Expert testimony is required to establish a breach of professional duty unless the claimed breach is within the ordinary knowledge and experience of laymen, or is so obvious that it may be determined as a matter of law. Rosenblum v. Riemenschneider (May 6, 1992), Summit App. No. 15324, unreported, at 3, 1992 WL 98851; see, also, McInnis v. Hyatt Legal Clinics (1984), 10 Ohio St.3d 112,113, 10 OBR 437, 438, 461 N.E.2d 1295, 1296-1297; Bloom v.Dieckmann (1983), 11 Ohio App.3d 202, 203, 11 OBR 298, 298-299,464 N.E.2d 187, 187-188. On a summary judgment motion, if expert testimony is required and the moving party produces expert opinion evidence that the attorney did not breach a professional duty of care owed to the client, then summary judgment is properly entered unless the *Page 378 nonmoving party produces expert testimony that the attorney did breach such a duty. Rosenblum, unreported, at 3-4;Dieckmann, 11 Ohio App.3d at 203-204, 11 OBR at 298-299,464 N.E.2d at 187-188. In the instant case, expert testimony was required. The factors to be considered in the negotiation and acceptance of any particular plea agreement are not commonly within the knowledge and experience of laymen. Nor is the failure to include immunity language an obvious breach of duty. Accordingly, when appellee produced the testimony of an expert that he had exercised the requisite degree of care in his representation of appellant, appellant was required to offer expert testimony to refute that conclusion. Appellant instead countered with a transcript of a federal court hearing in which the United States district attorney testified that the immunity language was "standard" in plea agreements of this type and that he, the district attorney, had forgotten to put the language in appellant's agreement. Appellant's evidence does not raise an inference that appellee breached a duty by failing to include the language in appellant's plea agreement; therefore, the trial court correctly granted summary judgment in favor of appellee and against appellant. Appellant's first and second assignments of error are overruled. Assignment of Error III "The trial court erred in not sanctioning appellee for his failure to comply with appellant's discovery requests." Appellant's last assignment of error is addressed to the failure of the court to rule upon a motion to compel discovery. Appellee had responded to certain interrogatories and document requests by objection without stating the basis of the objection. Appellant twice moved for default judgment as a sanction for the failure to fully respond to the interrogatories and, in addition, moved to compel the discovery. The motion to compel discovery was coupled with a motion for leave to file summary judgment. The court granted the motion for leave within the time frame requested by appellant, overruled the motions for default judgment, but did not rule on the motion to compel. Appellant now complains that he could not properly present expert testimony without the requested discovery. When a trial court fails to rule upon a motion, it will be presumed that it was overruled. Newman v. Al Castrucci FordSales, Inc. (1988), 54 Ohio App.3d 166, 169, 561 N.E.2d 1001,1004; Solon v. Solon Baptist Temple, Inc. (1982), 8 Ohio App.3d 347,351-352, 8 OBR 458, 462-464, 457 N.E.2d 858, 863-864. Thus, we presume that the court in this case denied appellant's motion to compel discovery. We review the denial of discovery motions under an abuse of discretion standard. See State ex rel. Daggettv. Gessaman (1973), 34 Ohio St.2d 55, 63 O.O.2d 88,295 N.E.2d 659, paragraph one of the syllabus; Bland v. Graves (1993),85 Ohio App.3d 644, 659, 620 N.E.2d 920, 929-930. *Page 379 In the context of a Civ.R. 56 summary judgment proceeding, the evidence cannot be examined in a light most favorable to the nonmoving party if full access to necessary materials and witnesses is denied. Manofsky v. Goodyear Tire Rubber Co. (1990), 69 Ohio App.3d 663, 668, 591 N.E.2d 752, 755. Nevertheless, the court's discretion includes the power to limit discovery so as to prevent a "fishing expedition" for incriminating evidence. Bland, 85 Ohio App.3d at 659,620 N.E.2d at 929-930; Manofsky, 69 Ohio App.3d at 668, 591 N.E.2d at 755. Appellant's discovery requests were "designed, among other things, to discover the level of experience that appellee had in representing white collar crime defendants in the [United States] district court and the preparation that appellee made to represent appellant at the upcoming trial." Appellee's trial preparation and his past experience are not particularly relevant to whether he breached a duty of care by failing to include particular language in appellant's plea agreement. In addition, to bring the court's omission to its attention, appellant could have requested that the trial court continue the date on which his motion for summary judgment was due until the court could rule upon the motion to compel. See Civ.R. 56(F). He did not. Under these circumstances, we do not find that the trial court abused its discretion by failing to order more complete responses to the discovery requests. Appellant's third assignment of error is overruled. The judgment of the trial court is affirmed. Judgment affirmed. REECE, P.J., and DICKINSON, J., concur.

2016-07-06 06:36:20.17795+00

Craweord

Judgment for $3,493 was entered in favor of plaintiff, appellee, against defendant, appellant, upon a cognovit promissory note which Jenkins Auto Sales, Inc., as payee, had endorsed to the plaintiff. Upon motion and answer of the defendant, the judgment was suspended. Defendant, by answer, alleges that he signed a purported agreement with Jenkins Auto Sales, Inc., as part consideration for which he delivered to Jenkins a Buick automobile and executed and delivered to them his promissory note, and executed a chattel mortgage upon a Dodge Coronet automobile to secure the payment of the note. He further alleges that the purported agreement "did in fact constitute a game, a lottery and a scheme of chance, * * * *Page 106 a bet, stake and wager," and that the Buick and the note and mortgage were delivered in consideration of the right to participate in the same. Upon hearing, the court found that the agreement was valid, binding and enforceable, and re-entered judgment for the plaintiff for the amount above stated, together with interest. It is agreed between counsel that if the agreement is valid, judgment should be entered for the plaintiff; if invalid, all other issues shall be tried. The nature and provisions of the agreement are therefore vital and determinative. Its terms provide that upon completion of the sale of an automobile to the defendant, Jenkins' Advertising Department retains his services as an "Independent Salesman" or representative for a period of twelve months; that defendant shall submit to Jenkins the names of individuals considered by him to be qualified prospective purchasers of new Dodge automobiles; that Jenkins shall pay to defendant as earned commission the sum of $100 for each individual whose name is so submitted and who thereafter becomes "a qualified Owner-Representative" with Jenkins; that "Jenkins Auto Sales, Inc., shall pay Representative, as earned commission the sum of Fifty Dollars ($50.00) for each name first subsequently submitted by the individual referred to * * * at the time that he too becomes an Automobile Owner-Representative with Jenkins Auto Sales, Inc."; that Jenkins may, if it sees fit, apply certain portions of moneys due defendant upon the purchase price of his automobile; that Jenkins will in no way control defendant, who is not required to work regular hours but may sell at any and all times he may see fit; that defendant shall procure an Ohio Motor Vehicle Salesman's License; and that defendant "alone is obligated to make each payment due on the automobile as it comes due." The essential elements of a lottery or game of chance are recognized to be: (1) consideration, (2) chance, and (3) a prize or award. 35 Ohio Jurisprudence (2d), 63, ff., Lotteries, Section 3; Westerhaus Co., Inc., v. City of Cincinnati, 165 Ohio St. 327. The issue in the present case centers upon the element of chance. "All that is required is that the element of chance is the controlling or predominant feature, and the Supreme Court has announced the rule that in order to have a lottery, the determination as to who gets a prize or how much of a prize he *Page 107 gets must be dependent at least `predominately' upon the element of chance." 35 Ohio Jurisprudence (2d), 65, Section 3. And seeWesterhaus Co., Inc., v. City of Cincinnati, supra (165 Ohio St. 327). The only Ohio case cited by counsel or discovered by the court which bears directly upon such an agreement as that before us is DeWitt Motor Co. v. Bodnark, 84 Ohio Law Abs., 48, decided by the Court of Common Pleas of Summit County in 1960. That case involved an agreement almost identical in nature with the one before us. That court held the contract valid. The logic of the opinion is sound and the language clear and applicable to the present case. An element of chance permeates most of the affairs of men. But the vital question here is whether chance, or volition and effort, are predominant. This contract is so framed that if the representative is to hope for any substantial returns, he must exercise thought, judgment and diligence in order to produce live prospects. It offers every inducement to persuade or to assist in persuading the prospect. The representative's role in the agreement, if it is to produce fruit, must be active and not merely passive. The same is true, even if slightly less directly, in the second step, if he is to earn and receive the $50 commission. The representative must find not merely other purchasers, but other active representatives. He must in truth be a salesman who will communicate not only his own satisfaction with the product, but also his enthusiasm for selling it. The analogy between the commissions provided in this agreement and the perfectly lawful overwriting commissions of a general agent, jobber, etc., on the sales of his subordinates, is a valid one, even though the representative here must depend upon persuasion alone without actual authority. The agreement is, as it purports to be, one for earned commissions. It is valid, binding and enforceable. The judgment of the Court of Common Pleas will be, and hereby is, affirmed. Judgment affirmed. KERNS and SHERER, JJ., concur. *Page 108

2016-07-06 06:36:22.896237+00

Matthews

The plaintiffs entered into a written contract with the defendants to do certain work and furnish certain material in making alterations in and additions to a dwelling house in Cincinnati, as shown on the plans and specifications attached to and made a part of the contract. The plaintiffs agreed that all work would be done in a first-class workmanlike manner, and completed within 90 days from *Page 409 September 6, 1945 — the date of the contract. They also agreed that the entire cost, including material, labor, superintendent's fees and profits "shall not exceed $4,600, and the parties of the second part shall not be liable to the party of the first part for any sum in excess thereof." The plaintiffs agreed to carry workmen's compensation and public liability insurance, and to strive at all times to keep all costs as low as possible. Within the maximum cost of $4,600, it was agreed that the plaintiffs were to be paid $2 per hour while on the job for superintending, and had the right to employ all other workmen at the scale of wages in Cincinnati at the time the contract was made. It was agreed that the plaintiffs should be paid "every two weeks for all costs of material and labor furnished by them or under their supervision, upon delivery of receipted bills therefor." Upon completion of the alterations and additions, the defendants agreed to pay to the plaintiffs ten per cent "for overhead charges and an additional ten (10) per cent for profit" limited, however, as already noted, to a total cost including fees and profits of $4,600. The plaintiffs entered upon the work, and on September 20, October 8, October 20, and November 8, 1945, delivered receipted bills for labor and material aggregating $2,252.15, and the defendants in each instance paid the amounts to the plaintiffs within a few days after the bills were submitted. The latter part of November (either the 27th or 30th) the plaintiffs delivered to the defendants receipted bills totaling $1,476.59. There is a dispute as to the details, but there is no dispute that the defendants did not pay this last item, but after some discussion *Page 410 with the plaintiffs arranged for them to meet in the office of their attorney on December 5th, to discuss the situation. At that meeting the plaintiffs produced other receipted bills which made the total unpaid to the defendants $1,715.35. There is no dispute that at this meeting of December 5th the plaintiffs asked for payment of the receipted bills and that the defendant Charles Hartman called attention to the status of the work on the dwelling and the possibility of mechanic's liens being filed against the premises, and the parties made an estimate of what it would cost to complete the work required by the contract. Attention was called to the fact that the plaintiffs had already presented receipted bills for $3,967.49, and that left only $632.51 as the maximum to be paid to the plaintiffs for full performance of the contract. The total cost of the alterations and additions was estimated by the defendants at $1,851.13 above the maximum of $4,600. In reaching this figure the items were taken up separately and an estimate made. Both plaintiffs and defendants took part in this process, but to what extent the plaintiffs agreed is in dispute. The parties discussed the situation presented by the payments apparently being disproportionate to the progress of the work, but the meeting adjourned without any agreement being reached or any payment being made. On one hand, it is claimed that defendants refused to pay. On the other, it is claimed that there was no refusal to pay, that the meeting adjourned with the understanding that Ben Mays, who had attended the meeting on behalf of the plaintiffs, was to consult J.K. Mays in the light of the developments at the meeting, and that another conference should be held thereafter. However, no such meeting was held. On December *Page 411 6, 1945, which was the next day after the meeting, the plaintiffs discontinued all work on the dwelling house, and on March 23, 1946, filed this action on the contract to recover not only for the labor and materials actually furnished but also 10 per cent for overhead and 10 per cent for profit "as provided in said contract" making a total, including $561.19 for extras, of $3,020.89. The plaintiffs did not allege full performance of the contract. They alleged that the defendants had failed and refused to pay the amount of the receipted bills and that the plaintiffs had performed all conditions on their part to be performed up to that time. The defendants by answer pleaded the terms of the contract, alleged that the plaintiffs had failed to complete the performance of their contract, and denied generally the allegations of the petition. By cross-petition, the defendants alleged that after the plaintiffs had abandoned the contract without excuse, they were required to expend $1,514.20 in excess of the maximum contract price and they prayed judgment for that amount. By reply to the answer and answer to the cross-petition, the plaintiffs alleged that they abandoned the work only after defendants' refusal to pay and because thereof, and that the defendants' interference prevented completion within the 90 days from date of contract. The jury returned a verdict of $1,510 for the plaintiffs and judgment was entered thereon. It is from that judgment that this appeal was taken. Neither the pleadings nor the evidence raised any issue as to the making of the contract. The contract was in writing and the terms were undisputed. The only issues were as to which party had been guilty of a breach of the contract and the damage resulting therefrom. *Page 412 It should be observed that the evidence is conflicting as to what took place at the conference on December 5th. The defendant, Charles R. Hartman, denied that he refused to pay. His testimony was that he delayed his decision to pay or not until he was informed of the attitude of the plaintiffs on the subject of the disproportion of payment and performance by the plaintiffs, and that the plaintiffs were to notify him thereon; and that without doing so the plaintiffs abandoned the contract. Section 276, paragraph (a), of Restatement of Contracts is: "Unless the nature of a contract is such as to make performance on the exact day agreed upon of vital importance, or the contract in terms provides that it shall be so, failure by a promisor to perform his promise on the day stated in the promise does not discharge the duty of the other party." Assuming, without deciding, that the absolute refusal of the defendants to pay would constitute a breach of a condition which would justify the plaintiffs in abandoning the contract, we are of the opinion that no such situation is presented here. As the evidence was conflicting, it became an issue of fact as to whether the first breach was committed by the defendants in refusing to pay, or whether the plaintiffs committed the first breach by abandoning the work the next day, instead of waiting a reasonable time for the defendants to perform by paying the installment, assuming that the defendants were not justified in so withholding payment. At the request of the plaintiffs, the court gave two special charges, to which the defendants excepted, and which they now assign as error. These special charges are: "Whether or not the work could be completed and *Page 413 the materials furnished within the price stipulated in the contract (exhibit 2), has nothing to do with the obligation of the defendants to pay to the plaintiffs up to a total of $4,600 when and if money became due under the terms of the contract." "If your verdict is in favor of the plaintiffs, you will add to any amount found due for labor and materials furnished by the plaintiffs, or under their supervision, an amount equal to 10 per cent of all labor and materials furnished, for overhead charges under the contract, and another 10 per cent for profit; provided that the total amount of your verdict cannot exceed $4,600 plus the reasonable value of all extras ordered by the defendants and furnished by the plaintiffs, less $2,252.15 previously paid by the defendants, plus 6 per cent interest from December 5, 1945, on the remainder." Taken together, those two special charges gave to the plaintiffs the full damage resulting from the breach of all the defendants' promises without any deduction by reason of being relieved of performance of promises made by them. By abandoning the contract, whether for just cause or otherwise, the plaintiffs avoided the completion of the alterations and additions at a cost in excess of the contract price. By so doing, they relieved themselves of a burdensome promise and cast upon the defendants the burden. In Restatement of Contracts, at Section 335, the rule applicable to the situation is stated as follows: "If the defendant's breach of contract saves expense to the plaintiff by discharging his duty of rendering a performance in return or by excusing him from the performance of a condition precedent, the amount of this saving is deducted from the damages that would otherwise be recoverable." *Page 414 In the footnote to Section 335, this illustration of the application of the rule is given: "A contracts to build a house for $10,000 promised by B. When it is partly built, B repudiates the contract. A's recoverable damages are $10,000 less the amount saved by A in not having to complete the house." Where the specific situation is covered by the Restatement of the Law, we deem it unnecessary to cite supporting authority. It is the highest authority under such circumstances. However, the same rule is stated in 17 Corpus Juris, at pages 927 et seq. That rule was applied in Molyneux v. Twin Falls Canal Co.,54 Idaho 619, 35 P.2d 651, 94 A.L.R., 1264, under these circumstances as stated in the syllabus as reported in A.L.R.: "In a contractor's action for loss of profits through not being permitted to complete performance of his contract, allowance should be made, in ascertaining the damages recoverable, of a reasonable amount for release from care, trouble, risk, and responsibility which would have attended the full execution of the contract." Although we construe the petition to state a cause of action on the contract and not on quantum meruit, we think the same measure of damages should be applied. In 5 Williston on Contracts (Rev. Ed.), at page 4132, the author states that when once it is admitted that the plaintiff has a valid claim, the only problem would be "possible advantages received by the plaintiff from the part performance which had taken place, or (2) a possible right of recoupment or deduction in behalf of the defendant for the plaintiff's failure completely to fulfill his contract." And, at pages 4123, and 4124, it is said: "* * * and the weight of authority strongly supports *Page 415 the statement that a builder, whose breach of contract is merely negligent, can recover the value of his work less the damages caused by his default, but that one who has willfully abandoned or broken his contract cannot recover." We are of the opinion the issue as to whether the defendants by withholding payment or the plaintiffs by abandoning the work committed the breach of the contract should have been submitted to the jury. The party in default could not recover either on the contract or in assumpsit. Mehurin v. Stone, 37 Ohio St. 49, at page 55 et seq., where it is said: "The judge in his opinion employs language which would lead to the inference that a different rule from the one above stated prevails in regard to building contracts, as respects the performance by the builder; and he cites in support of that view,Hayward v. Leonard, 7 Pick., 181. This case, however, in view of its peculiar facts, is not understood by the Supreme Judicial Court of Massachusetts, as laying down any rule peculiar to building contracts. In Olmstead v. Beale, 19 Pick., 528, after stating the general rule to be, that, where under the contract, performance by one party is to precede payment by the other, no recovery could be had either upon the contract, or upon an implied assumpsit, where the precedent conditions were not performed, the court say, `The cases of Hayward v. Leonard, 7 Pick., 181, and Smith v. First Congr. Meeting-House in Lowell, 8 Pick., 178, are neither incompatible with, nor exceptions to the rule. It will be found in these and other similar cases, that there was an express or implied assent to the deviations from the contract, or a substantial performance of it. The equitable principle which governs them, and which itself is of recent introduction, only extends to unimportant, accidental and unintentional deviations, *Page 416 which, from the differences of opinion, that so often exist, in relation to the exact requisition in the details of a special contract, had become indispensable to the administration of justice in such cases. But where there is an important and voluntary deviation or omission from the contract, the doctrine of Faxon v. Mansfield, 2 Mass. 147, will apply, and the contractor can have no remedy for the materials furnished and the services performed.'" See, also, Ginther v. Shultz, 40 Ohio St. 104. However, as one or the other was in default and one or the other entitled to recover, the measure of damage would be the same no matter which was the defaulter, with the exception that the defaulter would be limited to recoupment against the damages suffered by the non-defaulter. If the jury found that the defendants committed the breach, then the plaintiffs would be entitled to recover the damages resulting to them by the failure of the defendants to perform their promises, less the benefit resulting to the plaintiffs from being relieved of the necessity of full performance on their part. If the jury found that the plaintiffs committed the breach, then the defendants would be entitled to recover their damage for the plaintiffs' failure to completely perform, which, of course, would give the plaintiffs credit for the part performed by them. We find no other prejudicial error in the record. For failure to submit the issue of breach to the jury, and error in giving the special charges, the judgment is reversed and the cause remanded for further proceedings according to law. Judgment reversed. MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur in the syllabus, opinion and judgment. *Page 417

2016-07-06 06:36:22.996955+00

George

The plaintiffs-appellees include the Akron-Canton Chapter, American Subcontractors Association; Builders Exchange of Akron Vicinity, Inc.; Associate General Contractors of America, Inc.; Ohio Building Chapter, Akron Division; Ruhlin Company; John P. Novatny Electric Co.; Bassak Brothers, Inc.; and James A. Dougherty. After commencement of the action Larry Parker was permitted to intervene as a plaintiff. The defendants initially included the Ohio Department of Administrative Services (DAS); the Office of the State Architect (Architect); the University of Akron (University); the Board of Trustees of the University of Akron (Trustees); Gibbons-Grable Co.; Siegferth, Inc.; City Mechanical Contractors, Inc.; Medina Electric Co.; Fire Protection Industries; and the state of Ohio. The state of Ohio was voluntarily dismissed on April 6, 1983, and only DAS, Architect, University, and Trustees remained as defendants-appellants. This action was instituted to enjoin construction of an office addition to the University's new physical education complex. The legislation authorizing monies for its construction was Am. Sub. H.B. No. 522. The appellees contested the validity of the contracts for the office addition, contending they were not awarded through the competitive bidding process (R.C. Chapter 153) and they were, therefore, void. The trial court granted a temporary restraining order on April 7, 1983. This order enjoined further payments to the named contractors until such time as a final hearing was held. On April 28, 1983, an amended complaint was filed requesting an accounting and the payment of monies due the named contractors be paid into a fund under the control of the court. On May 9, 1983, the trial court entered a judgment dismissing the action with prejudice on the basis of an agreement between the parties. The agreement called for a deduct change order, letting the work out for competitive bidding, and dismissing the claim for attorney fees and costs against the named contractors. However, the appellees' claim for attorney fees and costs was reserved for later adjudication as between the appellees and the remaining appellants, DAS, Architect, University, and Trustees. A stipulation, briefs, testimony and oral arguments were presented to the trial court on attorney fees and costs. The parties agreed that the question of the propriety of the filing of this action and the qualification of the appellees as representative taxpayers would not be raised. However, the appellees are, for the most part, organizations, companies and associations which appear to have *Page 8 interests in public contracts beyond that of the average taxpayer. The trial court issued findings of fact and conclusions of law. On August 3, 1983, the trial court granted appellees $12,229.25 for attorney fees and $3,391.45 for expenses. It is from this award that the appellants bring this appeal. This court concludes that the appellees are not entitled to an award of attorney fees and expenses for the following reasons: (1) there is no specific statutory authorization for such an award; (2) no common fund was created or preserved; and (3) there was no finding of bad faith, which would justify such an award. Assignment of Error "The trial court erred in ordering the University of Akron and Board of Trustees, University of Akron to pay costs and attorney's fees of the plaintiffs-appellees." The state of Ohio was voluntarily dismissed as one of the named defendants prior to the trial court's adjudication and this appeal. However, this action is in essence prosecuted against the state of Ohio. The appellants, DAS, Architect, University, and Trustees, are no more than alter egos of the state of Ohio. The appellants are not autonomous and are not political subdivisions which might otherwise individually be amenable to this litigation. McElhiney v. Univ. of Akron Personnel Dept. (Dec. 30, 1981), Summit App. No. 10343, unreported. The trial court held that the settlement reached between the parties was tantamount to a successful judgment for the appellees. Next, it awarded attorney fees and costs to the appellees. That award was based upon the trial court's following conclusions: first, that (Am. Sub. H.B. No. 552 and) R.C.154.01(K) specifically authorized such expenses (specific statutory authorization is frequently referred to as the "American Rule," Grandle v. Rhodes [1959], 169 Ohio St. 77 [8 O.O.2d 40]; and Alyeska Pipeline Service Co. v. WildernessSociety [1975], 421 U.S. 240); and second, that there was a preservation of a fund from which attorney fees and costs could be awarded. Section 11 of Am. Sub. H.B. No. 552 (effective November 24, 1981) was the legislation appropriating the funds for the additional work on the physical education complex. It provided: "All items set forth in the section are hereby appropriated out of any moneys in the state treasury to the credit of the Higher Education Improvement Fund created by division (F) of section154.21 of the Revised Code, and not otherwise appropriated for higher education facilities. The following amounts shall be used to pay the cost of capital facilities as defined in section154.01 of the Revised Code. * * *" The trial court found that the appellees' legal fees and costs were authorized by R.C. 154.01(K) which provides in part: "`Costs of capital facilities' means the costs of acquiring, constructing, reconstructing, rehabilitating, remodeling, renovating, enlarging, improving, equipping, * * * including the cost of clearance and preparation of the site and of any land to be used in connection with capital facilities, * * * cost of engineering and architectural services, designs, plans, specifications, surveys, and estimates of cost, legal fees, fees and expenses of trustees, depositories, and paying agents for the obligations, cost of issuance of the obligations and financing charges and fees and expenses of financial advisers and consultants in connection therewith, * * * and all other expenses necessary or incident to planning or determining feasibility or practicability with respect to capital facilities, and such other expenses as may be necessary or incident to the acquisition, *Page 9 construction, reconstruction, rehabilitation, remodeling,renovation, enlargement, improvement, equipment, and furnishing of capital facilities, the financing thereof and the placing of the same in use and operation, including any one, part of, or combination of such classes of costs and expenses." (Emphasis added.) A close reading of the language used in context suggests that the term "legal fees" is meant to include legal expenses incurred incidental to the planning and actual construction phases of a capital facility. It does not include attorney fees incurred in a successful taxpayer's action. Third Natl. Bank v. Impac Limited,Inc. (1977), 432 U.S. 312. If the legislature intended to include attorney fees and costs of a taxpayer's suit as a cost of capital facilities under R.C.154.01(K), it would have clearly expressed this intention as it has done in various other legislation. See R.C. 163.21(B),309.13, 733.61, 1313.51 and 50 Ohio Jurisprudence 2d (1961) 139, Statutes, Section 169 et seq. Therefore, R.C. 154.01(K) does not specifically authorize legal fees and costs to a successful taxpayer in a taxpayer's suit. The appellees next argued, and the trial court agreed, that attorney fees were properly awarded according to the common fund exception to the "American Rule." This exception simply gives the trial court discretion to award attorney fees where the action results in the creation or the preservation of a fund for the benefit of all taxpayers. 52 Ohio Jurisprudence 2d (1962) 49, Taxpayers' Actions, Section 33; and, see, Rocca v. Wilke (1977),53 Ohio App. 2d 8 [7 O.O.3d 12]. The appellants contend that no such common fund exists from which attorney fees may be awarded. The appellees argue that the common fund in this case is that savings, approximately $200,000, realized as a result of the parties' agreement to let the contracts for competitive bidding. A "common fund" was not created or preserved where the funds involved were paid into the state treasury, were specifically appropriated for a particular purpose, and were held by public authorities for a public purpose not for the benefit of specific individuals. The $200,000 referred to here falls within the Grandle reasoning. Grandle v.Rhodes, supra. In State, ex rel. Yontz, v. West (1939), 135 Ohio St. 589 [14 Ohio Op. 527], the successful taxpayer was awarded attorney fees out of funds which were to be collected as a result of his successful action. However, the fund created there consisted only of taxes collected. Such fees and costs would be awarded from this fund before they had reached the state treasury. In Rocca v. Wilke, supra, the taxpayer was successful in his action to compel tax refunds for a certain class of taxpayers. There, the court found that a common fund had been created from those tax monies to be refunded to the class of taxpayers involved. The funds to be used for construction of the University's physical education complex had been appropriated from the state treasury for a specific purpose, i.e., construction. Thus, the very nature of the alleged fund involved here is that which does not constitute a common fund. See Grandle v. Rhodes, supra. No common fund was in fact created or preserved from which attorney fees could have been awarded. The trial court further found that an award of attorney fees and costs was proper because the appellees' action benefited the state and all taxpayers. However, the Supreme Court has held that although a public benefit is conferred by the appellees' successful action, an award of attorney fees will not be proper unless there also exists statutory authorization for awarding such fees. State, ex rel. Grosser, v. Boy (1976), 46 Ohio St. 2d 184,185 [75 O.O.2d 228]. Thus, the trial court improperly *Page 10 awarded fees based upon the existence of a public benefit because, as stated previously, no statutory authorization for such fees exists. Finally, the appellees argue that the appellants, by not letting the contracts out for competitive bidding, acted in bad faith, thus justifying an award of attorney fees. However, the trial court made no finding of bad faith or other oppressive acts on the part of the appellants, nor does this court find any support for such a finding in the record. G.S.T. v. Avon Lake (1978), 59 Ohio App. 2d 84, 89 [13 O.O.3d 142]. Therefore, the appellants' assignment of error is well-taken. The trial court improperly awarded attorney fees and costs to the appellees. For the reasons set out above, this court reverses the judgment of the trial court and grants judgment to the appellants. Judgment reversed. BAIRD, P.J., and QUILLIN, J., concur.

2016-07-06 06:36:24.542899+00

Ahl

Plaintiff in the trial court instituted an action against the defendant on an account, claiming there was due him from the defendant the sum of $1,764.24, with interest from April 25, 1951, for seven cows sold and delivered by plaintiff to defendant. To this petition, defendant filed an answer and cross-petition. Defendant's answer denies each and every allegation in plaintiff's petition. For his cross-petition, defendant adopts the allegations of his answer, and alleges that on April 25, 1951, plaintiff sold at a public sale held on plaintiff's farm near London, Ohio, certain cows which plaintiff represented to be free from tuberculosis and Bangs disease; that plaintiff represented further that such cattle had been tested by the state of Ohio, and tested negative; that defendant attended such sale and, relying upon plaintiff's published and oral representations concerning the cattle, purchased seven cows, all of which were either afflicted with Bangs disease or had been exposed to the same. Defendant alleges further that the cattle were delivered to him at the Spot Farm, Logan county, Ohio, where defendant conducts a registered cattle sales business, that the cattle shortly after arrival at the farm showed the effects of Bangs disease, and that upon being tested they were found to be afflicted with such disease or to have been exposed thereto. Defendant avers that by reason of the false and fraudulent representations of plaintiff, defendant's *Page 437 registered cattle were afflicted and defendant's premises were contaminated with the dangerous, communicable and infectious Bangs disease; that his business of selling registered cattle has been disrupted and curtailed; and that he has been compelled to sell a substantial number of registered breeding cattle for slaughter on account of said cattle being afflicted with Bangs disease, which was communicated to them from the cattle purchased by defendant from plaintiff. Defendant alleges further that by reason of plaintiff's false, fraudulent and wrongful conduct defendant has been compelled to expend $1,000 for the testing and treatment of his cattle, and that he has been damaged in the amount of $30,000 by reason of the loss in value of his cattle and the disruption and curtailment of his business of selling registered breeding cattle. Defendant, in his cross-petition, prays for a judgment against the plaintiff in the sum of $31,000. To this cross-petition, plaintiff filed a reply wherein he denies each and every allegation contained in the cross-petition. At the conclusion of plaintiff's case in chief, defendant's motion for a verdict in his favor was overruled by the court. At the conclusion of all the testimony, plaintiff's motion that the jury be instructed to return a verdict in favor of the plaintiff upon defendant's cross-petition was overruled by the court. Upon the issues raised by the pleadings, testimony, exhibits, and the charge of the court, the cause was submitted to the jury which returned the following verdict, agreed to by all twelve members thereof: "We, the jury, being duly impaneled and sworn, find upon the issues joined between the plaintiff and *Page 438 defendant upon the matters set out in the plaintiff's petition, in favor of the defendant. "We further find upon the issues joined between the defendant and the plaintiff upon the matters set up in the defendant's answer and cross-petition, in favor of the defendant, and that there is due to the defendant from the plaintiff the said E. M. Ridenour, the sum of no dollars. "And we do so render our verdict upon the concurrence of 12 members of our said jury, that being three-fourths or more of our number. Each of us said jurors concurring in said verdict signs his name hereto this 1st day of May, 1952." Plaintiff's motion for a judgment notwithstanding the verdict was overruled by the court and judgment was rendered as follows: "This matter came on for further hearing on plaintiff's motion for judgment upon the pleadings, notwithstanding the said verdict, and the court having heard the arguments of counsel and being fully advised, finds that said motion is not well taken and is accordingly overruled. "It is therefore ordered, adjudged and decreed by the court that plaintiff's motion be and is hereby overruled. "The jury in this action having, on a former day of this court, rendered a verdict against the plaintiff and for the defendant. "It is therefore considered, ordered and adjudged by the court that the said defendant go hence without day, and recover from plaintiff his costs herein expended to all of which plaintiff excepts. "Approved: Elmer M. Godwin, Judge. "Campbell, Thompson Finefrock, attorney for plaintiff. "Howard A. Traul, attorney for defendant." *Page 439 Thereafter, a motion for new trial filed by plaintiff was overruled by the court, with exceptions saved for plaintiff. From that judgment, plaintiff appeals to this court on questions of law. Plaintiff assigns three grounds of error. 1. The trial court erred in improperly allowing defendant's exhibit E to be introduced into evidence. 2. The trial court erred in not granting the motion for judgment notwithstanding the verdict. 3. The trial court erred in not granting a motion for a new trial. Plaintiff's first assignment of error is not well taken, as defendant's exhibit E was admissible and could properly be considered by the jury in determining the extent of defendant's business, which, in his cross-petition, he claimed was disrupted and curtailed by the presence of the diseased cattle on the Spot Farm. Plaintiff's second assignment of error is not well taken. The pleadings raise an issue of fact as to damages sustained by defendant. An examination of the record shows substantial credible evidence from which a reasonable conclusion might be drawn that defendant was damaged by the delivery of the seven cows to the Spot Farm. The action of the trial court in overruling plaintiff's motion for a judgment notwithstanding the verdict was not erroneous and was in line with the decisions of the courts. Krueger v. Schoenling Brewing Co., 82 Ohio App. 57,79 N.E.2d 366; McAtee v. Western Southern Life Ins. Co.,82 Ohio App. 131, 81 N.E.2d 225; Kenny v. MetropolitanLife Ins. Co., 82 Ohio App. 51, 80 N.E.2d 677;Robertson v. City Produce Commission Co., 78 Ohio App. 471,70 N.E.2d 778; Ames and Buckingham v. Sloat, Wright, 578. Plaintiff's third assignment of error, namely, that the trial court erred in not granting plaintiff's motion *Page 440 for a new trial, is well taken as to ground six contained in the motion for a new trial. Ground six is as follows: "The verdict of the jury is contrary to law." It will be noted that the jury, in its verdict herein, found upon the issues joined between the plaintiff and defendant on the matters set out in plaintiff's petition in favor of the defendant, and further found upon the issues joined between the defendant and the plaintiff, on the matters set up in defendant's answer and cross-petition in favor of the defendant, and that there was due the defendant from the plaintiff, E. M. Ridenour, the sum of no dollars. Section 11420-19, General Code, provides as follows: "When by the verdict either party is entitled to recover from the adverse party, the jury must assess the amount of the recovery in its verdict." In this action, plaintiff sought to recover money from the defendant and the defendant sought to recover money from the plaintiff. When the jury found in favor of the defendant on defendant's cross-petition it was required to assess the amount to which defendant was entitled to recover, and its failure to do so was contrary to law. This court has not been able to find any cases interpreting Section 11420-19, General Code. However, the Supreme Court of Oregon in the case of Klein v. Miller, 159 Ore., 27,77 P.2d 1103, 116 A. L. R., 820, involving the interpretation of a similar statute, held, as disclosed by the first A. L. R. headnote: "In a personal-injury action wherein defendant set up a counter-claim, a verdict reading: `We, the jury, * * * find * * * for the plaintiff and assess his damages at the sum of $ no damages,' is not sufficient to support a judgment for defendant, where a statute provides *Page 441 that a jury returning a general verdict in an action for the recovery of money shall also assess the amount of recovery." Also, in the case of McLean v. Sanders, 139 Ore., 144,7 P.2d 981, a verdict reading, "We, the jury, duly impanelled to try the above entitled cause, find our verdict for the plaintiff and against the defendants, and assess plaintiff's general damages in the sum of no dollars, and further assess punitive damages against defendants in the sum of no dollars," was held to be insufficient to support a valid judgment because it was impossible to ascertain from such verdict whether the jury intended to find for the plaintiff or the defendants. In the present case, upon the return of the verdict the trial court erred in accepting same. It was the duty of the trial court to point out this defect to the jury and send it back with instructions either to assess the damages recoverable by defendant from plaintiff or else return a verdict finding a certain definite sum due plaintiff from defendant on plaintiff's petition, a certain definite sum due defendant from plaintiff on defendant's cross-petition, strike a balance and make a finding of a definite sum in dollars and cents due either plaintiff or defendant, as the computation showed. This error rendered the entire verdict invalid both as to the issues raised by the petition and the answer thereto and as to the issues raised by the cross-petition and the reply. Furthermore, defendant, answering plaintiff's petition by general denial, could not offer evidence proving or tending to prove that the cows purchased by him were not as represented and that he was damaged thereby. Such a defense is an affirmative defense and *Page 442 must be affirmatively pleaded. His evidence, as shown by the record, shows without conflict that the defendant received the cows set forth in plaintiff's petition and that he did not pay for the same. It therefore follows that that part of the verdict wherein the jury found for defendant and against plaintiff upon the matters set out in plaintiff's petition is against the manifest weight of the evidence. For the reasons mentioned, the judgment of the trial court is reversed and the cause remanded to that court for a new trial and further proceedings according to law on the issues joined between the plaintiff and defendant upon the petition and cross-petition and the reply to the cross-petition, or upon amended pleadings. Judgment reversed. MIDDLETON, P. J., and GUERNSEY, J., concur.

2016-07-06 06:36:24.578653+00

Mahoney

This is an appeal from a conviction and sentence in the Court of Common Pleas for possessing hallucinogens for sale, in violation of R. C. 3719.44(B). The defendant, Donald Eugene Kuykendall, asserts five assignments of error, arising out of the court's failure to suppress evidence obtained under an alleged improper and insufficient search warrant. We affirm. On the evening of April 8, 1976, the affiant, James W. Wheadon, appeared at an evening session of the Wayne County Municipal Court. He had in his possession a form styled "Affidavit and Journal Entry for Search Warrant." The blanks were filled in but neither the affidavit nor journal entry were signed. Wheadon had a few sheets of paper attached to the form, one of which was an unsigned affidavit *Page 216 setting forth some facts in addition to those in the form. The rest of the papers were a list of the serial numbers of United States currency allegedly used to purchase marijuana earlier that evening. Mr. Wheadon was sworn in by the chief deputy clerk of the court, Marjorie Vore, in the presence of the judge of the court. The judge read the affidavits and Wheadon acknowledged that they were true and signed them. His acknowledgement on the affidavit form and the separate attached affidavit were both by Marjorie Vore. The parties then went into the court room where Wheadon was sworn in as a witness and examined by the city prosecutor concerning the basis of his information and the facts upon which he was requesting a search warrant. This testimony was substantially the same as that contained in the affidavit for a search warrant and the separate affidavit. Wheadon testified that earlier in the evening he had gained some information from a reliable informant that defendant, Kuykendall, was in the possession of a quantity of marijuana. Wheadon then arranged for the informant to be furnished with a hidden microphone and some marked currency. The informant then contacted a known but unnamed dealer, (X). Wheadon listened to and recorded the conversations between the informant and X. The informant accompanied X to the village of Marshallville, where he waited in a parking lot while X went into Kuykendall's home with the marked currency to make the purchase. X returned with a brown paper bag containing green vegetable matter which he turned over to the informant. This activity was observed by another Med-Way agent (Medina-Wayne County drug enforcement group) outside the home. The informant and X separated. The informant joined the affiant and other agents of Med-Way and gave them the bag. A field test was run on the green vegetable matter. This test revealed the matter was marijuana. Wheadon testified he felt it was necessary to obtain a search warrant forthwith in the night season to recover *Page 217 the "marked" currency and seize the contraband marijuana and other drug paraphernalia in the Kuykendall home. The judge granted and signed the search warrant. Wheadon then turned the warrant over to the sheriff who executed the warrant and seized the contraband which the defendant now seeks to suppress. Defendant appeals and alleges as error: "I. The trial court erred in overruling defendant's motion to quash the search warrant and suppress evidence on the ground that the affidavits upon which the warrant was issued lacked factual matter upon which a neutral magistrate could find that the informant was reliable or credible. "II. The trial court erred in overruling defendant's motion to quash the search warrant and suppress evidence on the ground that the warrant was issued for the search of 116 Market Street, Marshallville, Ohio, rather than 16 Market Street, Marshallville, Ohio, the latter being the place actually searched under color of said warrant. "III. The trial court erred in overruling defendant's motion to quash the search warrant and suppress evidence on the ground that the affidavits to the search warrant were sworn to before a clerk of the court and not before the judge. "IV. The trial court erred in overruling defendant's motion to quash the search warrant and suppress evidence on the ground that the affidavit affixed to the search warrant and upon which said warrant was issued failed to show reasonable cause for the execution of said warrant in the nighttime as required by law. "V. The trial court erred in overruling the objection of defendant to question No. 14 at page 5, of Section III, Transcript, on the ground that the answer to said question was inadmissible into evidence at a hearing upon a motion to suppress evidence." Assignment of Error I. Our Supreme Court in State v. Haynes (1971), 25 Ohio St. 2d 264, stated that when determining probable cause for the issuance of a search warrant, a trial judge *Page 218 is bound by the standards set forth in the United States Supreme Court cases of Aguilar v. Texas (1964), 378 U.S. 108;Spinelli v. United States (1969), 393 U.S. 410; and UnitedStates v. Ventresca (1965), 380 U.S. 102. We have examined the record here in accordance with the criteria of those three cases. We find that the affidavits were properly issued by a neutral magistrate and were based upon reliable and credible facts obtained from personal observation, hearsay and reliable informants from which the magistrate could determine probable cause sufficient to issue the warrant. Assignment of Error II. This objection is without merit since the officers did, in fact, search the residence of Donald E. Kuykendall. This search was within their authority under the warrant. That the address was erroneously typed as "116" instead of "16 East Market Street" is inconsequential. Assignment of Error III. Crim. R. 41(C) provides that a search warrant may only issue upon an affidavit sworn to before a judge. Here, the affiant was sworn to by the deputy clerk of the court in the presence of the judge and the judge heard the affiant swear to its truthfulness before the clerk. Additionally, the affiant testified in open court, under oath before the same judge, to substantially the same facts contained in the form affidavit, as well as the separate affidavit (which supplemented the form affidavit). Affiant also testified to the necessity for the issuance of a warrant in the night season. All of that testimony was recorded and transcribed as required. While we find that it is technically incorrect to have the affidavit acknowledged by the clerk, we find that such error was not prejudicial. The facts indicate that the defendant received all of his constitutional guarantees. The search warrant was issued by a neutral magistrate only after the receipt of a reliable and credible affidavit and sworn testimony. We believe these were sufficient to find probable cause to issue the warrant. This meets the Aguilar-Spinelli-Ventresca standards. We do not feel that *Page 219 the error was of constitutional proportion and certainly was not prejudicial to the substantial rights of the defendant. See, Crim. R. 52 and R. C. 2945.83. Assignment of Error IV. We find sufficient facts in affiant's testimony before the trial court from which the judge could find reasonable cause for the issuance of a warrant to search in the night season in order to recover the "marked" currency from the home of Donald Kuykendall, as well as the other drug paraphernalia. Assignment of Error V. We find that the Court of Common Pleas judge erred in permitting the municipal judge to be examined regarding the circumstances surrounding his issuance of the warrant. This testimony would naturally be of a "bolstering" self-serving nature to explain his decision. However, the municipal judge's testimony was basically a recitation of the affiant's testimony at the time of the hearing before the issuance of the warrant. The question was highly improper and went beyond the scope of the hearing, but it was not prejudicial. Crim. R. 52. We overrule all of the assignments of error and affirm the judgment of conviction and sentence. Judgment affirmed. VICTOR, P. J., and HUNSICKER, J., concur. HUNSICKER, J., retired, was assigned to active duty under authority of Section 6(c), Article IV, Consitution. *Page 220

2016-07-06 06:36:24.626909+00

Shaw

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 668 {¶ 1} Defendant-appellant Scott Masters appeals from the October 24, 2006 judgment entry of the Court of Common Pleas, Crawford County, sentencing him to two years in prison for his conviction of felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1). {¶ 2} This matter stems from events of April 20, 2005, in Crawford County. On this date, Masters went to the home of his friend, Larry Whittington, after receiving information from his wife that she and Larry had had an affair approximately 20 years ago. When Masters arrived at Larry's home, he became upset, lost his composure, and struck Larry in the face. {¶ 3} On May 10, 2005, the Crawford County Grand Jury indicted Masters on one count of felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(1). On May 13, 2005, Masters appeared for his arraignment and entered a plea of not guilty. Masters was released on bond with the restriction that he have no contact with the victim. {¶ 4} On September 28, 2005, the trial court entered a pretrial scheduling order and set this matter for a January 12, 2006 jury trial.1 However, on January 5, 2006, Masters filed a motion requesting a continuance of the trial date. In his motion, Masters stated that the prosecutor joined in this request so as to allow the parties to pursue the possibility of resolving this matter without a trial. Masters also advised the court in the motion, "Defendant waives time herein." The trial court granted Masters's request for a continuance and ordered that the trial be reassigned by the court's assignment commissioner. Although this matter was initially reset for trial on May 4, 2006, the trial was subsequently continued to September 7, 2006. {¶ 5} On June 27, 2006, Masters filed a motion to dismiss the indictment and all charges against him, alleging that he had been denied his right to a speedy trial. This motion was denied by the trial court on June 30, 2006. {¶ 6} On September 1, 2006 Masters filed a jury-trial waiver. Accordingly, this matter proceeded to a trial to the court on September 7, 2006. At the close of *Page 669 evidence, the court found Masters guilty of felonious assault. On October 23, 2006, the trial court conducted Masters's sentencing hearing and sentenced him to two years in prison for his conviction. The trial court also ordered Masters to pay restitution in the amount of $1,253.62. {¶ 7} Masters now appeals, asserting five assignments of error. Assignment of Error No. 1 The trial court committed plain and reversible [sic] in it's [sic] failure to dismiss the case as the defendant was not afforded his right to a speedy trial as guaranteed by Section 2945.71 of the Ohio Revised Code, Article I Section 10 of the Ohio Constitution, and the 6th and 14th Amendments to the United States Constitution. Assignment of Error No. 2 The trial court committed plain and reversible error when over objection the trial court allowed lay witnesses to testify without foundation, knowledge and expertise to an essential element of the offense that involved medical diagnosis and prognosis. Assignment of Error No. 3 The trial court committed plain and reversible error when it convicted the defendant of felonious assault in violation of Section 2903.11 of the Revised Code when there was no competent evidence of serious physical harm. Assignment of Error No. 4 The trial court committed reversible error by failing to grant a Rule 29 motion to acquit at the conclusion of the states [sic] case as again argued after the conclusion of all the evidence on the grounds there was no competent evidence to suport [sic] a conviction of feloneous [sic] assault. Assignment of Error No. 5 The verdict was unsupported by and against the manifest weight of the evidence. Assignment of Error No. 1 {¶ 8} In his first assignment of error, Masters argues that the trial court erred in failing to dismiss this case when Masters was not afforded his right to a speedy trial pursuant to the Ohio and United States Constitutions and R.C.2945.71. *Page 670 {¶ 9} Both the United States and Ohio Constitutions guarantee a criminal defendant the right to a speedy trial. State v. Baker (1997),78 Ohio St. 3d 108, 110, 676 N.E.2d 883. Additionally, R.C. 2945.71 through2945.73 provide specific time requirements in which the state must bring an accused to trial. Id. The Ohio speedy-trial statute is mandatory and constitutional and must be construed strictly against the state. State v. Steinke,158 Ohio App. 3d 241, 2004-Ohio-1201, 814 N.E.2d 1230, ¶ 5, citingState v. Singer (1977), 50 Ohio St. 2d 103,4 O.O.3d 237, 362 N.E.2d 1216. Pursuant to R.C. 2945.71(C)(2), a person against whom a felony charge is pending must be brought to trial within 270 days from the date of his arrest, not including the date of his arrest. State v. Davenport, 12th Dist. No. CA2005-01-005, 2005-Ohio-6686, 2005 WL 3454876, ¶ 7, citing Baker, 78 Ohio St.3d at 110,676 N.E.2d 883. R.C. 2945.71(E), known as the "triple count provision" states that when an accused is held in jail in lieu of bail on the pending charge, each day shall be counted as three days. Id. {¶ 10} Once a criminal defendant shows that he was not brought to trial within the permissible period, the accused presents a prima facie case for release. State v.Steinke, 158 Ohio App. 3d 241, 2004-Ohio-1201,814 N.E.2d 1230, ¶ 5, citing State v. Caudill (Dec. 2, 1998), 3d Dist. No. 05-97-35, 1998 WL 833729; see, also, State v.Howard (1992), 79 Ohio App. 3d 705, 707, 607 N.E.2d 1121. At that point, the burden shifts to the state to demonstrate that sufficient time was tolled or extended under the statute.State v. Butcher (1986), 27 Ohio St. 3d 28, 31,27 OBR 445, 500 N.E.2d 1368. Furthermore, a defendant's right to a speedy trial may be waived provided that such waiver is either expressed in writing or made in open court on the record.State v. King (1994), 70 Ohio St. 3d 158,637 N.E.2d 903, syllabus. {¶ 11} Appellate review of speedy-trial issues involves a mixed question of law and fact. State v.High (2001), 143 Ohio App. 3d 232, 242, 757 N.E.2d 1176. A reviewing court must give due deference to the trial court's findings of fact if they are supported by competent, credible evidence, but will independently review whether the trial court correctly applied the law to the facts of the case. Id. {¶ 12} Our review of the record reveals that Masters was arrested on May 13, 2005. Time starts to run from the date of the arrest; however, the day of the arrest itself is not counted when computing the statutory time period.State v. Stewart (Sept. 21, 1998), 12th Dist. No. CA98-03-021, 1998 WL 640909. Therefore, the first date that counts for Masters's speedy-trial purposes is May 14, 2005.2 *Page 671 {¶ 13} On January 5, 2006, Masters requested a continuance of the January 12, 2006 trial date, which was granted by the trial court. Masters's motion for continuance also stated, "Defendant waives time herein." A defendant's motion for a continuance will toll the speedy-trial time period. R.C. 2945.72(H). Accordingly, in this case, the speedy-trial time period was tolled on January 5, 2006. Therefore, from May 14, 2005, to January 5, 2006, 237 days had elapsed for speedy trial purposes. {¶ 14} On February 15, 2006, the trial court entered a second pretrial scheduling order and reset this matter for a jury trial on May 4, 2006. This order contained the exact language regarding continuances or substitution of counsel with the time-waiver provision as the court's September 28, 2005 pretrial scheduling order: "Continuances or substitution of counsel will not be granted within three (3) weeks of trial absent extraordinary circumstances. If acontinuance is requested, a time waiver must be submitted withsame." (Emphasis added.) {¶ 15} Therefore, the time between Masters's filing his motion for a continuance on January 5, 2006, and the May 4, 2006 jury trial date set by the court equals119 days. This time is charged to Masters for speedy-trial purposes and tolls the calculation of the speedy-trial time. {¶ 16} However, on April 12, 2006, the court's assignment commissioner sent notice to the parties advising them that the jury trial set for May 4, 2006, had been cancelled but that the matter had been rescheduled for a 15-minute hearing on that date.3 At the May 4, 2006 hearing, the parties advised the court of their proposed negotiated plea and recommended sentence. However, the court advised the parties that the proposal would not be approved. On the same day, the trial court issued an order continuing this matter and resetting it for a jury trial on September 7, 2006. {¶ 17} We note that the trial court's May 4, 2006 order of continuance and pretrial scheduling order contained the exact same language regarding continuances or substitution of counsel with the time-waiver provision as contained in the September 28, 2005, and February 15, 2006 pretrial scheduling orders: "Continuances or substitution of counsel will not be granted within three (3) weeks of trial absent extraordinary circumstances. If a continuance isrequested, a time waiver must be submitted with same." (Emphasis added.) {¶ 18} On June 27, 2006, Masters filed a motion to dismiss, requesting that the court dismiss the indictment and all charges against him, because he had been *Page 672 denied his right to a speedy trial. Specifically, Masters argued that he did not cause the delay that caused this matter to be set for trial outside of the 270-day requirement. {¶ 19} The trial court denied Masters's motion to dismiss and found that Masters had previously waived his right to a speedy trial in his January 5, 2006 motion for continuance. The trial court found that this waiver acted as a waiver of unlimited duration because Masters's motion did not mention a specific time period to be waived. {¶ 20} Masters now argues that the waiver contained in his January 5, 2006 motion for a continuance was not of unlimited duration. Rather, Masters contends that his motion for a continuance of the January 12, 2006 trial was for the limited purpose of allowing the parties the opportunity to pursue the possibility of resolving this matter without a trial. Masters further notes that when the trial court granted Masters's motion and rescheduled the trial date to May 4, 2006, the court's February 15, 2006 order doing so contained language specifically stating that any further continuances would require a time waiver. It is well established that in Ohio, a court speaks through its journal. State ex rel Worcester v.Donnellon (1990), 49 Ohio St. 3d 117, 118, 551 N.E.2d 183. As a result, Masters would argue that it is apparent from the language of the court's own order of continuance that the trial court did not consider Masters's January 5, 2006 time waiver to be a waiver of unlimited duration — and accordingly, it would not be appropriate for this court to construe it as such now. {¶ 21} In sum, Masters argues that the stated purpose for the January 5, 2006 motion for continuance and time waiver expired when the trial court refused to accept the proposed plea bargain on May 4, 2006. Therefore, Masters argues that pursuant to his signed time waiver, the period from January 5, 2006, to May 4, 2006 was tolled. However, by the terms of the trial court's own judgment entry of continuance, time started to run again on May 4, 2006. Since 237 days passed between Masters's arrest and the date of his signed time waiver, and time started to run again on May 4, 2006, when Masters filed his motion to dismiss (June 27, 2006), 291 days had elapsed from the date of Masters's arrest. This is 21 days over the time limit set forth in R.C. 2945.71(C)(2), which provides that a person against whom a felony charge is pending must be brought to trial within 270 days from the date of his arrest. When Masters finally appeared for trial on September 7, 2006, 363 days had elapsed from the date of his arrest, which is 93 days over the 270-day time limit. {¶ 22} In considering this argument, we would note that the record reflects that it was the court's assignment commissioner who advised the parties on April 12, 2006, that the May 4, 2006 trial date was cancelled. Although the *Page 673 time within which an accused must be brought to trial may be extended by the period of any reasonable continuance granted other than upon the accused's own motion, such as a continuance granted by the court, we note that the trial court never journalized the reason for this cancellation. See R.C.2945.72(H). The Ohio Supreme Court addressed this situation inState v. Mincy (1982), 2 Ohio St. 3d 6, 2 OBR 282,441 N.E.2d 571, and stated in its syllabus as follows: When sua sponte granting a continuance under R.C. 2945.72(H), the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limit prescribed in R.C.2945.71 for bringing a defendant to trial. (Emphasis added). {¶ 23} Additionally, in State v. Benson (1985), 29 Ohio App. 3d 321, 323, 29 OBR 448, 505 N.E.2d 987, the Eighth District Court of Appeals set forth the requirements for continuing a trial when it found as follows: The test for whether a continuance sua sponte or otherwise, may extend the speedy trial limitation is whether the granting of the continuance is journalized and identifies the party to whom the continuance is chargeable. In the case of a sua sponte continuance, the reason therefor must also be indicated in the journal entry. {¶ 24} Not only is the April 12, 2006 notice from the assignment commissioner silent as to the reasons for cancelling the May 4, 2006 jury trial, we also note that there is no transcript of the hearing that occurred on May 4, 2006, in place of the cancelled jury trial. Although the record indicates that the court did not accept the parties' plea agreement and continued the jury trial to September 7, 2006, the court's May 4, 2006 order of continuance and pretrial scheduling order does not identify the party to whom the continuance is chargeable and again contained language requiring that any further continuances must include a time waiver. {¶ 25} In contrast to the foregoing argument and circumstances, the state points to State v. O'Brien (1987), 34 Ohio St. 3d 7, 516 N.E.2d 218, wherein the Supreme Court of Ohio held that a defendant's express written waiver of his statutory rights to a speedy trial may also constitute a waiver of speedy trial rights guaranteed by the United States and Ohio Constitutions. Id. at paragraph one of the syllabus. Specifically, the Supreme Court of Ohio held that "[following an express, written waiver of unlimited duration by any accused of his right to a speedy trial, the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection and demand for trial." Id. at paragraph two of the syllabus.4 It is undisputed that Masters did *Page 674 not file a formal written objection to the court's May 4, 2006 order, nor did he file a formal demand for trial. {¶ 26} However, on June 27, 2006, Masters filed a motion to dismiss for failure to bring him to a timely trial. Although this motion contained no specific revocation of his prior blanket waiver or any specific indication that the ostensible purpose of the waiver, i.e., settlement, was no longer being pursued, it is nevertheless our conclusion that at the very least, the motion to dismiss should have unequivocally acted to notify the trial court that the prior waiver dated January 5, 2006, was now being revoked or withdrawn. As a result, the trial court should have considered, at the very least, that time could no longer be tolled after June 27, 2006. {¶ 27} In sum, it is our conclusion that regardless of Masters's argument for a May 4, 2006 cut-off date, at the very latest, as of June 27, 2006, Masters no longer was willing to waive time, and time started to run again on June 28, 2006.5 {¶ 28} Thus, the relevant time calculation is as follows: 237 days passed between Masters's arrest and the date of his signed time waiver on January 5, 2006; time was tolled as of January 5, 2006, but at the latest should have started to run again on June 28, 2006; between June 28, 2006, and September 7, 2006, 72 days elapsed for speedy-trial purposes. Taken together, the 237 days that elapsed between Masters's arrest and the date of his signed time waiver on January 5, 2006, and the 72 days that elapsed between the date of Masters's motion to dismiss and the date he finally appeared for trial equals 309 days. This is 39 days over the 270-day time limit. {¶ 29} Accordingly, under either interpretation set forth above, Masters was not brought to trial in time pursuant to R.C. 2945.71(C)(2), which provides that a person against whom a felony charge is pending must be brought to trial within 270 days from the date of his arrest. {¶ 30} Accordingly, to this extent, Masters's first assignment of error is sustained. Based upon our disposition of Masters's first assignment of error, his second, third, fourth, and fifth assignments of error are moot, and we decline to address them. See App.R. 12(C). *Page 675 {¶ 31} Accordingly, Masters's conviction for felonious assault is reversed and he is hereby ordered discharged. Judgment reversed and cause remanded. ROGERS, P.J., and PRESTON, J., concur. 1 The pretrial scheduling order also stated as follows: "Continuances or substitution of counsel will not be granted within three (3) weeks of trial absent extraordinary circumstances. If a continuance is requested, a time waiver must be submitted with same.' 2 We note that at the May 13, 2005 arraignment, Masters was released on bond with the restriction that he have no contact with the victim. Accordingly, it is not necessary for us to compute the amount of time that has elapsed for speedy trial purposes pursuant to the "triple count provision" of R.C.2945.71(E). 3 This notice provided no reason why the May 4, 2006 jury trial was cancelled. 4 "The Supreme Court of Ohio in O'Brien did not favor us with the specific language therein found to be `unlimited' in duration." See State v. Scolaro (1992),73 Ohio App. 3d 555, 558, 597 N.E.2d 1184. In Scolaro, the Fifth District Court of Appeals held that the waiver in that case was a waiver of limited and reasonableduration and not a waiver of unlimited duration; therefore the waiver in Scolaro was distinguishable from the express waiver of unlimited duration as contained in Statev. O'Brien. 5 We would note at this point the state would have had some 33 days remaining to bring Masters to trial.

2016-07-06 06:36:24.684488+00

Lloyd

On October 6, 1939, Pauline Gasior, as plaintiff, filed a petition in the Court of Common Pleas alleging therein facts claimed to constitute gross neglect of duty and extreme cruelty on the part of her husband, Frank Gasior. By the prayer of the petition, she asks for alimony only and the custody of their two minor children. By answer thereto, the defendant husband denies the facts stated in the petition as to the alleged gross neglect of duty and extreme creulty, and in a cross-petition alleges facts claimed by him to constitute gross neglect of duty and extreme cruelty on the part of his wife and describes therein certain parcels of real estate. His prayer is for a divorce and "an equitable division of the properties and business of the parties hereto" and "for all other and further relief in law and equity defendant is entitled to." To this cross-petition the plaintiff replies, denying the alleged facts as to the gross neglect of duty and extreme cruelty on her part, and avers that the accumulation of the properties described in the cross-petition of the defendant was the result of her industrious application to the various business places they operated. She concludes her reply with a prayer for dismissal of the answer and cross-petition "and that she be granted a divorce and permanent alimony from the defendant" and be given the sole care and custody of the minor children. By the judgment of the trial court, a divorce was granted to the plaintiff and the defendant was ordered to pay to her $10 per week for the support of the minor children. She was awarded one of the parcels of real *Page 86 estate described in the cross-petition of the defendant, upon which was a mortgage held by The First Federal Savings Loan Association, and, in addition thereto, she was awarded all of the household goods and furniture, all of the fixtures, the stock and merchandise in the building located on the premises, and the grocery and cafe business conducted therein. He was given the other three parcels of real estate, and certain described personal property incidental to the operation by him of a retail liquor store, and also was given his personal effects and clothing. A motion was filed by plaintiff for a new trial, one of the grounds of which was that the court was without jurisdiction to grant plaintiff a divorce. This motion was overruled, and the plaintiff gave written notice of appeal on questions of law to this court. The assignments of error especially urged are: 1. That the court erred in granting this appellant a divorce when appellant did not pray for same — appellant prayed for alimony only and therefore the court was without jurisdiction to grant her a divorce and bar her from property that only she held title to and which she acquired by her accumulations and purchases. 2. That the court erred in the division of the property, both real and personal, and there is no evidence or testimony as to the real or personal property. The only request by plaintiff for a divorce is found in the prayer of her reply to the answer and cross-petition of the defendant. By Section 11997, General Code, it is provided that: "The wife may file her petition for alimony alone, or, if a petition for divorce has been filed by the husband, she may file a cross-petition for alimony, with or without a prayer for a dissolution of the marriage contract." Then follows the enumerated grounds for the granting of alimony alone. *Page 87 No pleading, other than the petition, in conjunction with the cross-petition if there be one, need be filed in an action for divorce and alimony, or for alimony alone. Whether there is or is not an answer by the opposing party, the cause is adversary and must be submitted and determined on its merits. If the proffered evidence sustains one of the statutory grounds for divorce, the divorce should be granted; if not, it should be denied, and this is equally true of a petition or cross-petition for alimony alone. There can be no judgment by default in such a case, even if there were no more potent reason than that it would be against public policy. And only when a divorce is granted to one of the parties, can there be an equitable division of their property. The reply is no part of the petition, and in the instant case by no reference therein is it sought to make it a part thereof, as an amendment thereto, unless the prayer thereof makes it so. There are no allegations therein of any grounds for divorce or alimony, and if it may be considered as an amendment to the petition, then thereby a new cause of action would be created upon which a summons must issue with a copy of the petition as amended served therewith upon the defendant; and the court, over objection, would be without jurisdiction to hear the cause until the time provided by Section 11985, General Code, had expired. Viewing the effect of the pleadings in this light, the judgment of the court was erroneous and contrary to law. Calvert v.Calvert, 130 Ohio St. 369, 376, 199 N.E. 473. It is claimed by the defendant that no proper bill of exceptions was filed by plaintiff because, although the bill of exceptions bears the file mark of the clerk of courts as having been filed in his office on August 6, 1940, there is no entry thereof on the appearance docket of the Court of Common Pleas and also, as appears in *Page 88 the bill, it was presented to the trial judge on August 16, 1940, on which day it was signed by him, there having then elapsed only nine of the ten days allowed by statute to counsel for defendant to examine it and make such objections or propose such amendments thereto as might be deemed proper. In the authenticated transcript of the appearance docket entries in the Court of Common Pleas, included in the record of the proceedings therein filed in this court, there appears the following notation: "1940 — August 6th — bill of exceptions filed," and this notation corresponds with that on the bill of exceptions. It is apparent, therefore, that counsel inadvertently overlooked this fact. The record of the proceedings in the trial court contains nothing to show that defendant was not aware of the filing of the bill of exceptions or of its approval by the trial judge or that he had any objection to any part of it or any proposed amendments thereto. All that the plaintiff was required to do was to prepare and file with the clerk of courts, within the allotted time, her bill of exceptions and the duty with respect thereto thereafter devolved upon the clerk of courts and the judge. In any event, it will be presumed, in the absence of some showing to the contrary, that the trial judge acted correctly and that if it was prematurely signed, the defendant had consented thereto. As to the second ground of error above noted, no evidence was offered at the trial by the defendant and nowhere in the bill of exceptions is there any evidence as to the property of the parties, how acquired or what the value of any of it may be — nothing upon which any judgment of division could be made. The judgment of the Court of Common Pleas is reversed and the cause remanded thereto for a new trial. Judgment reversed and cause remanded. CARPENTER and OVERMYER, JJ., concur. *Page 89

2016-07-06 06:36:24.823351+00

Richards

This case was tried in the court of common pleas on the amended petition, in which the plaintiff, William Starr, merely averred that he entered into a written contract with the defendant, a copy of which was attached to the pleading, that the plaintiff had fully complied with the conditions of the agreement, but that the defendant, John R. Jeffery, had failed to comply and failed to pay the plaintiff the sum of $2,500 due him thereon. The trial resulted in a verdict and judgment in favor of the plaintiff, William Starr, for $2,656.64, the contract price for molding sand sold to the defendant. The plaintiff in error contends that the charge to the jury contains error prejudicial to him, and that the verdict and judgment are against the weight of the evidence. The contract between the parties recites that the *Page 118 first party, William Starr, sells to the second party, John R. Jeffery, all of the marketable molding sand located on twelve acres of land owned by Starr. The parties stipulated that Jeffery was to pay Starr therefor 15 cents per ton for the sand removed by him, and a further sum of 5 cents per ton as royalty, the payments to be made monthly for sand removed and shipped by Jeffery. The contract also provides that it should be in force for five years from November 1, 1921, and the purchaser agreed to remove an average of 3,000 tons a year, and, in the event that he did so remove not less than that number of tons per year on the average during the first five years, the contract would be extended for an additional period of five years. The purchaser made an advance payment of $500 on the contract, and it is agreed that he has paid to the owner $1,057.01, which covers the full contract price for all sand which he removed from the premises. The answer admits the making of the agreement, and denies every other allegation contained in the amended petition. It avers that the sand was not marketable, for the reason that it was filled with roots of what is known as foxtail, and also contained hardpan. On the trial of the case the plaintiff introduced evidence tending to show the quantity of sand removed and the payments therefor, and rested his case. Evidence was introduced on both sides bearing on the question whether the sand was marketable molding sand, the plaintiff's evidence tending to show that it was, and that offered by the defendant tending to show that it was not that quality or grade of sand. The plaintiff in error insists that prejudicial error was committed in the following portion of the charge: "If, under the law as given to you in this charge and by a preponderance of the evidence in this case you find that the plaintiff fully complied with the conditions of said contract by him to be performed, but that *Page 119 the defendant has failed in the particulars claimed by the plaintiff to comply with said contract, then your verdict should be for the plaintiff. On the other hand, if, under the law as given you in this charge and by a preponderance of the evidence in this case you find that none of the sand in question was marketable molding sand as claimed by the defendant, then your verdict should be for the defendant." We think the foregoing is not a proper statement of the law applicable to this case under the terms of the contract made by the parties. By the terms of the first portion of that contract, the purchaser could remove all the sand on the twelve acres of land, and by the latter portions of the contract he was obligated to remove 3,000 tons of the sand per year, for a period of five years, and he was entitled to no extension of the contract because he had not removed the full amount so required to be removed. After removing a substantial quantity of sand, the evidence tends to show that the purchaser notified the owner that he would not take any more, for the reason that it was not according to contract, was mixed with the roots of foxtail, and contained hardpan. The court should have told the jury that in no event could Starr recover for more sand than remained on the premises. Under the charge as given, the plaintiff would be entitled to recover for the full 15,000 tons, less the amount delivered, regardless of the quantity of sand on the premises, and the defendant would only be entitled to a verdict by showing that all of the sand was not marketable molding sand; that is to say, that none of the sand was marketable molding sand. If, under the charge, the jury should find that only one ton of merchantable molding sand remained, it would have been justified in returning a verdict for the plaintiff for the purchase price of 15,000 tons, less the amount delivered and paid for. The defendant having denied in his answer all the *Page 120 allegations except the making of the agreement, the burden rested on the plaintiff to prove, in an action to recover the contract price, that he had and was able to deliver the goods sold, and the burden of proof did not rest on the defendant. The quality of the sand, that is, that it was marketable molding sand, was part of the description, and the burden rested on the plaintiff to show by a preponderance of the evidence that he had the quantity and quality required by the contract before he could recover the price therefor. Pierson v. Crooks, 115 N.Y. 539, 22 N.E. 349, 12 Am. St. Rep., 831. The bill of exceptions contains no evidence showing the quantity of sand remaining, and there is a conflict in the evidence as to whether the sand was merchantable molding sand, and yet the charge as given submitted neither of these matters to the jury and allowed the plaintiff to recover the amount claimed with no showing of these facts. Not only this, but the testimony of the plaintiff himself showed that he had subsequently contracted in writing to sell the sand to another party; thus, under the evidence in the record, rendering himself unable to perform. The following testimony of the plaintiff appears in the bill of exceptions: "Q. Didn't you sell this sand after Jeffery quit in 1926? Didn't you contract this sand to another concern? A. I did. "Q. How much did they take? A. They haven't taken any. "Q. Their contract has expired, hasn't it? A. I don't think the last one has." The Uniform Sales Act, which is a part of the statute law of the state, covers the sale of all "goods." The word "goods" is defined in the act, Section 8456, General Code, as including "things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale." The contract to sell this sand therefore comes within the *Page 121 statute. The case at bar is not one to recover damages for the breach of a contract, but to recover the price of the goods. Section 8440, General Code, provides a remedy in case the seller has resold the goods, and that remedy is for him to recover from the buyer the damages for any loss occasioned by the breach of the contract of sale. The next succeeding section provides a like remedy where the seller has rescinded the sale upon the default of the buyer for an unreasonable time. Section 8444, General Code, likewise provides the remedy of the seller where the buyer refuses to accept and pay, and fixes the measure of damages. Section 8443, paragraph 2, General Code, provides the circumstances under which a seller may bring an action to recover the price, although the property in the goods has not passed. The section, however, contains this limitation: "But it shall be a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it." The injustice of permitting a seller, after default on the part of the buyer, to resell the goods and subsequently recover the contract price from the first buyer, must be manifest. Prejudicial error was committed in the charge of the court and the judgment is manifestly against the weight of the evidence, and for these reasons the judgment is reversed and the cause remanded for further proceedings. Judgment reversed and cause remanded. LLOYD and WILLIAMS, JJ., concur. *Page 122

2016-07-06 06:36:25.011878+00

Levine

The parties appear here in an order the reverse of that held in the trial court, where defendant in error was plaintiff and plaintiff in error was defendant. Defendant in error, William J. Renkel, brought suit against the Midwest Properties Company, under a 99-year lease, wherein he was named lessor and plaintiff in error was named lessee, for the ground rent incurred under said lease, which had *Page 505 not been paid by the plaintiff in error in accordance with the provisions of said lease. Subsequent to the filing of this action, plaintiff in error tendered the installment of rent due on November 1, 1929, with interest thereon at the rate of eight per cent. to the date of tender, as well as the court costs incurred in the action, and upon refusal of defendant in error to accept this tender the above amounts were paid into court by plaintiff in error. Thereafter, plaintiff in error filed a motion to show cause why the petition of defendant in error should not be dismissed, and later the action was advanced for trial on the merits and was heard in the common pleas court. The sole question presented to the court was: Does the clause of the lease providing for the payment by the lessee of attorney fees incurred and paid by the lessor in enforcing the covenants of a lease to pay rent create an enforceable obligation on the part of the lessee to pay lessor the reasonable attorney fees paid by such lessor? The trial court ruled that such a provision is a valid provision which can be properly enforced, and accordingly allowed $100 as attorney fees incurred by the lessor in enforcing the covenants and agreements of the lease. Error proceedings are prosecuted from this decision of the common pleas court. The exact wording of the provision in the lease, which was the basis of the allowance of $100 as attorney fees, in addition to interest on the installment of rent due and unpaid, is as follows: "(j). In case the lessor, without fault on his part, be made a party to any litigation commenced by or against the lessee, then the lessee shall and will pay all *Page 506 costs, reasonable attorneys' fees and expenses incurred by or imposed on the lessor by or in connection with such litigation. The lessee will also pay all costs, reasonable attorneys' fees and expenses which may be incurred or paid by the lessor in enforcing the covenants and agreements of this lease, and all such costs and attorneys' fees, if paid by the lessor, upon the failure of the lessee so to do, shall be so much additional rent due on the next rent day after such payment or payments, together with interest at eight (8) per cent. per annum, from the date of payment, and shall be collected as any other rent specifically reserved herein." For the purpose of this review, we may take it as conceded that the amount allowed as attorney fees was reasonable. It is the contention of plaintiff in error that the said provision for the payment of attorney fees, in addition to payment of interest on installments of rent which remain unpaid, is invalid in law for the following reasons: 1. Because such a payment, in addition to interest at the rate of eight per cent., is regarded as usurious and void under the Ohio statute, and the decisions. 2. Such payment is in the nature of a penalty levied against the lessee because of his failure to pay the rental obligation on the day when it becomes due, and is therefore unenforceable. 3. That such provision is against public policy, in that it encourages litigation. In support of the first contention that the provision is in the nature of an evasion of the usury statute, we are referred first to Section 8303, General Code: "The parties to a bond, bill, promissory *Page 507 note, or other instrument of writing for the forbearance or payment of money at any future time, may stipulate therein for the payment of interest upon the amount thereof at any rate not exceeding eight per cent. per annum, payable annually." It is urged that a lease containing a covenant by the lessee to pay rent at a future time, and stipulating therein for the payment of interest, is an instrument of writing which comes within the contemplation of the statute. Various reported cases decided by the Ohio Supreme Court are cited which indicate that the courts jealously guarded the protection sought to be afforded to debtors by the General Code. The attempts of creditors at various times and by various means to circumvent the usury statute have almost invariably been defeated by the courts. In the case of State, ex rel. Fund Commrs. of Muskingum County, v. Taylor, 10 Ohio, 378, the defendant borrowed surplus revenue of the United States deposited with the state of Ohio, and signed a note agreeing to pay interest at the rate of seven per cent. per annum, which, at that time, was the highest rate of interest countenanced by law, and, in addition thereto, agreed to pay attorney fees not to exceed five per cent. of the principal sum for the collection of said note. In the opinion, page 380 of 10 Ohio, the court said: "If this agreement can be enforced, the statutes of Ohio regulating the rate of interest, whether upon loans by the fund commissioners, or in other cases, are at once virtually repealed. * * * Now, it seems to us to be of little consequence, in this case, what this five per cent. may be called, but the inquiry is, what is the thing *Page 508 itself? However it may be disguised, it is very clear to us it is a mere shift or device by which twelve per cent. is retained, as interest, upon this loan, and in this view of the case can not be enforced." In Miller et al., Exrs., v. Kyle, 85 Ohio St. 186, at page 192, 97 N.E. 372, the court said: "In this state it has been firmly established, and long and consistently maintained, that such contracts for the payment of counsel fees upon default in payment of a debt will not be enforced." Counsel for defendant in error, while recognizing the force of the cases above cited, contend that the rule laid down in Miller v. Kyle, supra, is limited to cases of promissory notes which contain provisions for reasonable or percentage attorney fees, and that the rule enunciated by the Supreme Court is strictly limited to cases of negotiable instruments where money has been loaned. It is also pointed out by counsel for defendant in error that the plaintiff in error being a corporation is not in a position to raise the question of usury, because Section 8623-78, General Code, provides: "The limitations of Section 8303 of the General Code shall not apply to any corporate obligation for the payment of money maturing or payable, in whole or in part one year or more after the date thereof, and no corporation, wherever organized, nor anyone in its behalf, shall interpose the defense or make the claim of usury in any suit, action or proceeding upon or with reference to any such obligation." It is contended by defendant in error that the language of Section 8303, which is the section dealing with the legal rate of interest which may be charged in Ohio, may be reasonably construed to *Page 509 be limited to parties to an instrument in writing for the payment of money at a future time, that is to an instrument which deals with no other subject than the payment of money at a future time; that a leasehold instrument which is not limited to the one subject only, namely, the payment of money at a future time, but contains a variety of mutual obligations agreed to and covenanted by the respective parties thereto, does not come within the purview of the usury statute. When one considers the primary purpose of Section 8303, which fixes the maximum rate of interest which parties may stipulate in certain instruments, it is quite clear that the Legislature intended to guard embarrassed debtors against the greed and rapacity of harsh creditors. The need for such protection of debtors seems to us apparent in all cases where the relation of debtor and creditor is formed, whether it be by means of a bond, bill, promissory note, or other instrument of writing for the payment of money at any future time. The argument presented by defendant in error, that the rule found in the adjudicated cases against the enforceability of a provision to pay attorney fees, in addition to the legal rate of interest, is limited to cases of negotiable instruments where money has been loaned, would seem very plausible were it not for the language of Section 8303, which is "the parties to a bond, bill, promissory note, or other instrument of writing for the * * * payment of money at any future time * * *." The section specifies promissory notes and bills of exchange. If it were true that the phrase "or other instrument of writing for the * * * payment *Page 510 of money at any future time" is limited to negotiable instruments only, there would have been no need for specifying bills and promissory notes, which are, of course, embraced in the term "negotiable instruments." We are inclined to hold that any instrument in writing which contains an obligation to pay money at any future time is subject to the limitation of the section that the rate of interest to be stipulated shall not exceed eight per cent. per annum. It would therefore follow that the rule enunciated by our Supreme Court in the various cases cited, against the enforceability of a provision for the payment of attorney fees in addition to the legal rate of interest, is applicable to a case such as the case at bar, and is not limited to negotiable instruments only. The argument that by virtue of Section 8623-78, above cited, the plaintiff in error, which is a corporation, is not in a position to raise the question of usury, would seem sound were it not for the limitation found in the language of said section in the following words, "shall not apply to any corporate obligation for the payment of money maturing or payable, in whole or in part one year or more after the date thereof." The lease provides for the quarterly payment of rent, and it would seem to us that it is an obligation which matures in less than one year and that therefore the plaintiff, though a corporation, may claim the benefit and protection of the usury statute. In considering the second point made by plaintiff in error, namely, that this provision which is the basis of recovery of attorney fees in addition to the maximum rate of interest is in the nature of a *Page 511 penalty, we must not lose sight of the purpose it seeks to accomplish. The leasehold instrument provides for mutual obligations of the contracting parties. The principal obligation of the lessee is to pay rent when the same falls due. When the lessee breaches his obligation to pay rent as provided in the lease, the lessor has the option to declare a forfeiture of the lease and sue for a breach of contract or to sue for each installment of rent as the same falls due. The failure to pay rent as the same falls due is unquestionably a breach of contract on the part of the lessee. The law attaches certain consequences to every breach of contract. The consequence attached by law to the breach of an obligation to pay money is invariably the payment of interest in addition to the principal sum which fell due. "Interest is the almost universal measure of damages for mere delay of payment." Sutherland on Damages (4th Ed.), Section 286. If the lease contained no provision whatsoever as to the consequences to follow the breach of the obligation on the part of the lessee to pay rent, the law would, nevertheless, attach the well-recognized consequences, namely, the payment of interest in addition to the principal sum due. When the parties seek to prescribe consequences other than those which the law attaches to such a breach, and which are not in proportion to the actual damage suffered on account of it, such provision is usually viewed in the nature of a penalty and held to be unenforceable. It is only in cases where the damages in the event of a breach are uncertain, and will apparently be difficult of ascertainment, that the parties may *Page 512 by agreement fix in advance the amount of damages for the breach of contract. The contention of defendant in error that the provision for the payment of attorney fees contained in the lease is in the nature of a principal obligation, and that it should be viewed as an increased rental on the happening of a certain event, is not, in our opinion, well taken. The provision definitely deals with the consequences which attach to the breach on the part of a lessee of his obligation to pay rent when due. In other words, it seeks to establish a measure of damages other than that which the law provides. There is no uncertainty about the damage suffered by the lessor on account of the breach. It is not a matter concerning which courts or juries would be required to speculate. The legal rate of interest, by universal sanction, is made the measure of damages in all cases of a breach of an obligation to pay money when due. This attempt on the part of the parties to this lease to depart from the well-recognized measure of damages, which is the consequence prescribed by law for any such breach of a contract, cannot be upheld on the theory that it is a provision for liquidated damages. We hold that unless the provision prescribing the consequences of a breach of contract and specifying a measure of damages other than that which the law would apply can be justified on the theory of liquidated damages, it is unenforceable, because it would be regarded as a penalty only. It may be observed that even though this provision found in the lease — wherein the parties attempted to prescribe their own measure of damages *Page 513 and called for the payment of attorney fees in addition to a payment of interest, which is the measure of damages recognized by law — were regarded in the nature of a provision for liquidated damages, there is a very serious flaw apparent therein. No adjudicated case can we find wherein a provision was viewed as one for liquidated damages, even in proper cases, where the amount of damages was not specified in dollars and cents. The theory of courts in sustaining provisions for liquidated damages was to enable the parties to fix the amount of damages in all cases where the damages, in the event of breach, were uncertain and difficult of ascertainment; that rather than leave the matter of awarding damages to the mere speculation and guess of courts and juries, the parties were permitted to stipulate in advance in all such cases. In the case at bar the provision calls for reasonable attorney fees, without specifying the amount. It again leaves in an uncertain state the amount that courts and juries will regard as reasonable attorney fees. This provision cannot be regarded as one of liquidated damages, because the amount is left uncertain, and still calls for future action by courts and juries to determine what, in their opinion, are reasonable attorney fees. We are not in accord with the argument of counsel for defendant in error that this provision is in the nature of an increased rental on the happening of certain events, because the clear language of the provision shows that it prescribes what shall be the consequences to the lessee for his breach of the obligation to pay rent when due. It deals with the measure of damages attaching to such breach. Since *Page 514 it cannot be regarded as a provision for liquidated damages, and since counsel depart from the measure of damages which the law so clearly attaches to such a breach, the provision can be regarded in no other light than as being in the nature of a penalty, and therefore unenforceable. There is much strength in the last point made by counsel for plaintiff in error that if such provision for the payment of attorney fees were enforceable it would encourage creditors to institute litigation hastily, and that therefore the same is against public policy. In Jeremiah Shelton v. Joseph Gill, 11 Ohio, 417, the court held that: "A stipulation in a warrant of attorney to pay collection fees, in addition to the principal debt and interest, is against public policy and void." The various arguments presented by plaintiff in error are clearly expressed in the case of Raleigh County Bank v. Poteet,74 W. Va. 511, 82 S.E. 332, 334, L.R.A., 1915B, 928, Ann. Cas., 1917D, 359. The clear reasoning of the decision induces us to adopt its language, and to quote therefrom at length, as follows: "Having specified what may be recovered, whether the common law would have permitted more or not, by its prescription of rules, the Legislature has impliedly negatived any supposed right to obtain anything in addition thereto. The detriment to the payee or holder, resulting from default in payment, is compensated as fully as the Legislature intended it to be, by the costs and fees prescribed by the statute, wherefore there can be *Page 515 no consideration for the promise, even in the sense of detriment. "Viewed as a contract of indemnity, the stipulation fails on the same principle. It is indemnity against what a debtor, unable or unwilling to pay, has a legal right to do, avail himself of the delay in payment, accorded him by law, subjecting himself to the incidental punishment inflicted in the form of costs and fees prescribed, and recoverable. This legal, though not moral, right in the debtor precludes the existence of any consideration for the contract as one of indemnity, and the agreement amounts to no more than one to bear the burden imposed by law upon the person in whose favor it is made, an agreement to give something for nothing. For reasons of public policy, the Legislature has, in effect, declared that the lender or creditor shall take the risk of expense of collection in excess of the allowance it has made by way of indemnity or reimbursement. It has not left the matter in the hands of the parties to be provided for by agreement. It has acted upon the subject itself and declared its will, for the same reason that impelled it to act upon the subject of interest, to the end there should be no open door to oppression and undue advantages, attended by constant temptation to money lenders, to violate the law against usury, and, on the part of collectors, to encourage litigation and inflict unnecessary costs and expenses amounting, in an economic sense, to waste and loss. It would encourage the employment of collectors and attorneys and be an inducement to attorneys to seek claims for collection and institute actions unnecessarily." *Page 516 For the reasons set forth above the judgment of the common pleas court is ordered modified so as to disallow attorney fees. Judgment modified. VICKERY, P.J., and WEYGANDT, J., concur.

2016-07-06 06:36:25.073984+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Andrew Daniels, appeals his conviction out of the Elyria Municipal Court. This Court affirms. I. {¶ 2} On September 1, 2008, Daniels was cited by the Elyria Police Department for failure to signal a turn in violation of R.C. 4511.39(A), a minor misdemeanor. He was personally served with summons the same day. The case was assigned to the docket of the Honorable John Musson. {¶ 3} On September 8, 2008, Daniels filed a motion to dismiss. On October 1, 2008, the Honorable Lisa Locke Graves signed an order on behalf of Judge Musson, denying Daniels' motion to dismiss. The order stated that Daniels had also invoked his right to a speedy trial. Trial was scheduled for October 9, 2008. *Page 2 {¶ 4} On October 2, 2008, Daniels filed a document captioned "Ruling of Judge Lisa Graves is Without Merit and Authority," effectively moving to vacate the October 1, 2008 order denying his motion to dismiss on the grounds that Judge Graves lacked the authority to issue the order. Judge Musson vacated the October 1, 2008 order on October 9, 2008, and ordered that Daniels' motion to dismiss would be heard in conjunction with trial. {¶ 5} The day before trial, the City moved to continue the trial because the police officer was unavailable. The trial court granted a continuance and rescheduled the matter for a bench trial on October 16, 2008. On October 16, 2008, the trial court issued an order, denying Daniels' original motion to dismiss and his subsequent oral motion to dismiss for speedy trial violation. At the conclusion of trial, the court found Daniels guilty of the signal violation and imposed a fine and costs. Daniels filed a timely appeal, raising four assignments of error for review. II. ASSIGNMENT OF ERROR I "THE COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ALLOWED ANOTHER JUDGE TO TAKE OVER THIS CASE FOR JUDGE MUSSON IN HIS ABSENT ON THAT DATE AND RULE IN A PREJUDICE MANNER AGAINST APPELLANT." (sic) {¶ 6} Daniels argues that he was prejudiced by Judge Graves' ruling on his motion to dismiss. This Court disagrees. {¶ 7} Daniels admits that Judge Musson vacated Judge Graves' October 1, 2008 order, which denied his motion to dismiss. Judge Musson, the judge assigned to the case, ultimately ruled on Daniels' motion after a hearing. Accordingly, Daniels' first assignment of error is overruled as moot. *Page 3 ASSIGNMENT OF ERROR II "THE COURT ERRED AND ABUSED ITS DISCRETION WHEN IT REFUSED TO DISMISS THE CASE PURSUANT TO [R.C.] 2945.71 SPEEDY TRIAL." {¶ 8} Daniels argues that the trial court erred by denying his motion to dismiss based on a violation of his right to speedy trial. This Court disagrees. {¶ 9} "When reviewing an appellant's claim that he was denied his right to a speedy trial, this Court applies the de novo standard of review to questions of law and the clearly erroneous standard of review to questions of fact." State v. Downing, 9th Dist. No. 22012,2004-Ohio-5952, at ¶ 36. See, also, State v. Hamlet, 9th Dist. No. 04CA008527, 2005-Ohio-3110, at ¶ 15. {¶ 10} The right to a speedy trial by the State is guaranteed to a criminal defendant by the Sixth and Fourteenth Amendments to the United States Constitution. Klopfer v. North Carolina (1967), 386 U.S. 213,222-223. The same right is conferred upon a criminal defendant by Section 10, Article I, Ohio Constitution. State v. O'Brien (1987),34 Ohio St. 3d 7, 8. A criminal defendant may waive his right to a speedy trial only if it is knowingly, voluntarily and intelligently made.State v. Adams (1989), 43 Ohio St. 3d 67, 69. The waiver must also be expressed in writing or made in open court on the record. State v.King (1994), 70 Ohio St. 3d 158, syllabus. In this case, Daniels did not waive his right. {¶ 11} R.C. 2945.71 et seq. is an enforcement mechanism to ensure the upholding of the constitutional right to a speedy trial. State v.Pachay (1980), 64 Ohio St. 2d 218, syllabus. R.C. 2945.71 dictates the time limits in which a defendant must be brought to trial. R.C. 2945.71(A) provides that "[a] person against whom a charge *** of minor misdemeanor is pending in a court of record, shall be brought to trial within thirty days after the person's arrest or the service of *Page 4 summons." R.C. 2945.71(E) addresses the computation of time and provides that "each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days." Time is calculated to run the day after the date of arrest. State v.Friedhof (July 10, 1996), 9th Dist. No. 2505-M, citing State v.Steiner (1991), 71 Ohio App. 3d 249, 250-51. See, also, Crim. R. 45(A). In this case, Daniels did not spend any time in jail in lieu of bail. Accordingly, each day counts merely as one day for time computation. {¶ 12} Pursuant to R.C. 2945.73, if a defendant is not brought to trial within the prescribed time period, the trial court must discharge the defendant upon motion for dismissal prior to or at the commencement of trial. R.C. 2945.73(B). However, the time within which a defendant must be brought to trial can be tolled. {¶ 13} R.C. 2945.72(H) provides that the statutorily prescribed time for a speedy trial may be lengthened by any period of continuance granted on the accused's own motion, or by any reasonable period granted other than on the accused's motion. See, also, Hamlet at ¶ 18. In addition, this Court has held that the time in which a trial court is required to bring a criminal defendant to trial is effectively extended, or tolled, when the defendant files a motion to dismiss until the time when the trial court denies the motion. State v. Hughes, 9th Dist. No. 02CA008206, 2003-Ohio-5045, at ¶ 15, citing State v. Bickerstaff (1984),10 Ohio St. 3d 62, 67. Furthermore, R.C. 2945.72(E) provides that the statutorily prescribed time for a speedy trial may be lengthened by "[a]ny period of delay necessitated by reason of a *** motion, proceeding, or action made or instituted by the accused." {¶ 14} In this case, Daniels was served with the summons on September 1, 2008. He filed a motion to dismiss on September 8, 2008, thereby tolling time until the trial court purportedly ruled on the motion on October 1, 2008. At this point, only 7 days had elapsed. *Page 5 Time ran for one additional day from October 1, 2008, until October 2, 2008, when Daniels filed a motion to vacate the October 1, 2008 order. This motion tolled time pursuant to R.C. 2945.72(E). The trial court disposed of Daniels' motion to vacate, which reactivated the motion to dismiss. The trial court ruled on Daniels' motion to dismiss on October 16, 2008, at which time only 8 days had elapsed. Daniels' trial commenced the same day, well within the 30 days allowed in which the City had to bring him to trial. Daniels' second assignment of error is overruled. ASSIGNMENT OF ERROR III "THE COURT ERRED AND ABUSED IT'S (sic) DISCRETION WHEN IT GRANTED THE PROSECUTOR['S] MOTION TO CONTINUE THE CASE SIXTEEN (16) HOURS BEFORE THE TRIAL DATE AND SUCH MOTION WAS GRANTED SUA SPONTE TO THE PREJUDICE OF THE APPELLANT AND WITHOUT PROPER NOTICE TO HIM ALL TO HIS PREJUDICE." {¶ 15} Daniels argues that the trial court abused its discretion by granting the City's motion to continue trial. This Court disagrees. {¶ 16} This Court has set forth the applicable standard of review as follows: "The Supreme Court of Ohio has held that the grant or denial of a continuance is a matter that is entrusted to the broad, sound discretion of the trial judge. State v. Unger (1981), 67 Ohio St. 2d 65, syllabus. In making that decision, the trial court must weigh all competing considerations. Id. at 67-69. The trial court must balance any potential prejudice to the defendant against the court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice. Id. at 67. When reviewing a decision that has been entrusted to the discretion of the trial court an appellate court may not substitute its judgment for that of the trial court. State v. Finnerty (1989), 45 Ohio St. 3d 104, 107-08. *** Abuse of discretion is more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151, 157-58." (Internal quotations omitted.) State v. Burson (Apr. 19, 2000), 9th Dist. No. 99CA0017. {¶ 17} The City filed a motion to continue trial upon discovering that the police officer necessary for the prosecution of the case would not be available to attend trial on the date *Page 6 scheduled due to his participation in mandatory training. Daniels does not specify how he was prejudiced by the one week continuance of trial. Under those circumstances, this Court cannot say that the trial court abused its discretion by granting the City's motion to continue trial upon balancing the potential prejudice to Daniels against the court's right to control its docket and the public interest in the efficient dispatch of justice. Daniels' third assignment of error is overruled. ASSIGNMENT OF ERROR IV "THE COURT ERRED AND ABUSED IT'S (sic) DISCRETION WHEN IT ALLOWED THE POLICE OFFICER TO LIE ON THE STAND UNDER OATH." {¶ 18} Daniels argues that the trial court erred by admitting perjured testimony. This Court disagrees. {¶ 19} Daniels' argument in this regard consists of one sentence: "The Ninth District Court of Appeals can determine from the transcript of the police officer and the questions that I asked him that he lied under oath and the court and the prosecutor allowed this to happen all to the prejudice of the appellant and his right to due process." {¶ 20} There is no transcript of the trial in the record before this Court. Daniels' docketing statement indicates both that the record will consist of "ONLY the original papers, exhibits, a certified copy of the docket and journal entries, and any transcripts of proceedings that were filed in the trial court prior to final judgment" and "a statement of the evidence of proceedings pursuant to App. R. 9(C) or an agreed statement of the case pursuant to App. R. 9(D)." No transcript of proceedings was filed in the trial court prior to final judgment, and the record contains no App. R. 9 statements. {¶ 21} Daniels, as the appellant, is responsible for providing this Court with a record of the facts, testimony, and evidentiary matters necessary to support the assignments of error. Volodkevich v.Volodkevich (1989), 48 Ohio App. 3d 313, 314. Specifically, it is an appellant's *Page 7 duty to transmit the transcript of proceedings. App. R. 10(A); Loc. R. 5(A). "When portions of the transcript which are necessary to resolve assignments of error are not included in the record on appeal, the reviewing court has `no choice but to presume the validity of the [trial] court's proceedings, and affirm.'" Cuyahoga Falls v. James, 9th Dist. No. 21119, 2003-Ohio-531, at ¶ 9, quoting Knapp v. EdwardsLaboratories (1980), 61 Ohio St. 2d 197, 199. {¶ 22} "This Court has repeatedly held that it is the duty of the appellant to ensure that the record on appeal is complete." Lunato v.Stevens Painton Corp., 9th Dist. No. 08CA009318, 2008-Ohio-3206, at ¶ 11, citing Ruf v. Ruf, 9th Dist. No. 23813, 2008-Ohio-663, at ¶ 6, quoting Loc. R. 5(A). Daniels failed to ensure that the transcript of the trial was contained in the record on appeal. Because the transcript is necessary for a determination of Daniels' assignment of error, this Court must presume regularity in the trial court's proceedings and affirm the judgment of the trial court. See Knapp, 61 Ohio St.2d at 199. Daniels' fourth assignment of error is overruled. III. {¶ 23} Daniels' assignments of error are overruled. The judgment of the Elyria Municipal 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 Elyria Municipal Court, 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. *Page 8 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. WHITMORE, J., MOORE, P. J. CONCUR *Page 1

2016-07-06 06:36:25.129828+00

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellant-defendant Goodyear Tire Rubber Co. ("Goodyear") appeals the judgment of the Summit County Court of Common Pleas, finding Goodyear liable for wrongful termination in violation of public policy. This Court reverses. Appellee-plaintiff Bruce G. Van Sweden was an Account Executive with Goodyear in Detroit, Michigan. In 1996, Van Sweden was involved in discussions for temporary reassignment to Akron in connection with the implementation of a new software program. Van Sweden advised Goodyear that he was not interested in a permanent relocation to Akron since his wife had a good job in Michigan, and was against relocating for the temporary assignment to Akron. Out of deference to Van Sweden's marital status, Goodyear officials agreed to a special arrangement beyond its typical payment to full relocation: Van Sweden was provided an Akron apartment and his travel expenses (mileage, meals, and tolls) back to Michigan to see his wife on the weekends were to be reimbursed. Management also tolerated Van Sweden's early Friday departures and late Monday arrivals. In January of 1997, Van Sweden separated from his wife, and moved to Kalamazoo, Michigan with his son. The divorce was finalized on January 29, 1998. Van Sweden never advised Goodyear of this change, but still availed himself of the special arrangement from July, 1997 through August, 1999. In 1998, Van Sweden advised a fellow employee of the separation, after instructing her to keep his secret because of his good deal with Goodyear. By August of 1999, Goodyear management learned of Van Sweden's divorce. After meeting with Van Sweden on August 11, 1999, Goodyear terminated him for continuing to avail himself of the special arrangement by concealing his divorce. On October 1, 1999, Van Sweden sued Goodyear for invasion of privacy and wrongful termination in violation of public policy. Goodyear counter-claimed against Van Sweden for fraudulent concealment. The matter proceeded to trial, and the jury returned a verdict in favor of Van Sweden's claim of wrongful termination in violation of public policy, and found against the remaining claims. The jury awarded Van Sweden $140,000 in damages. Goodyear timely appealed, asserting four assignments of error. ASSIGNMENT OF ERROR I "THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT IN FAVOR OF GOODYEAR ON PLAINTIFF'S PUBLIC POLICY CLAIM." ASSIGNMENT OF ERROR II "THE TRIAL COURT ERRED IN FINDING THAT A PUBLIC POLICY EXISTED IN THIS CASE WHICH WAS POTENTIALLY VIOLATED." The foregoing assignments of error are considered together as they raise similar issues of law and fact. In its first and second assignment of error, Goodyear claims the trial court erred in concluding that Van Sweden stated a lawful claim of wrongful termination in violation of public policy based on his changed marital status. This Court agrees. Traditionally, the common law employment-at-will doctrine allowed an employer to terminate the employment of his worker "`at will for any cause, at any time whatsoever, even if done in gross or reckless disregard of [an] employee's rights.'" Painter v. Graley (1994),70 Ohio St. 3d 377, 382, quoting Phung v. Waste Mgt., Inc. (1986),23 Ohio St. 3d 100, 102, quoting Peterson v. Scott Constr. Co., (1982),5 Ohio App. 3d 203, 205. The Ohio Supreme Court has recognized an exception to the traditional employment-at-will doctrine in Ohio common law. A discharged employee has a private cause of action sounding in tort for wrongful discharge where his or her discharge is in contravention of a clear public policy.Painter, supra, at paragraph two of the syllabus. The existence of such a public policy may be discerned by the Ohio judiciary based on sources such as the Constitutions of Ohio and the United States, legislation, administrative rules and regulations, and the common law." Id. at 384. InPainter, the Ohio Supreme Court prescribed a useful test when reviewing cases of wrongful termination in violation of public policy: (1) clear public policy existed and was manifest in a state or federal constitution, statute or regulation, or in common law; (2) dismissing employees under such circumstances would jeopardize the public policy; (3) the plaintiff's termination was motivated by conduct related to the public policy; and (4) the employer lacked overriding business justification for the dismissal. Id. at 384, fn. 8. R.C. 4112.02(A) enumerates protected categories upon which an employment decision cannot be based, and absent from these protected categories is a change in marital status. The omission is dispositive of this case: "We note that the General Assembly has not remained silent on the respective rights of unclassified employees and their employers, but rather has enacted several statutes as legislative statements of public policy in this area. Where the General Assembly has spoken, and in so speaking violated no constitutional provision, the courts of this state must not contravene the legislature's expression of public policy. "Judicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy." State v. Smorgala (1990), 50 Ohio St. 3d 222, 223, 553 N.E.2d 672, 674." Id. at 385. This court defers to the General Assembly in R.C. 4112.02(A), and honors the Ohio Supreme Court holding in Painter, in concluding that Van Sweden has failed to demonstrate that a clear public policy was implicated by his termination. Even if Van Sweden demonstrated that clear public policy was violated based upon termination for his marital status, his claim would still fail. Not surprisingly, there is no evidence in the record that Goodyear had undertaken a marital status inquisition of its employees, intent on ousting divorcees like Van Sweden. Rather, Van Sweden's marital status was a mere back drop for his primary offense — his lack of candor in revealing the termination of his marriage, the condition upon which his special arrangement with Goodyear was based. Accordingly, Goodyear's first and second assignments of error are sustained. The judgment of the trial court relating to the cause of action for wrongful termination in violation of public policy is reversed. ASSIGNMENT OF ERROR III "THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON PLAINTIFF'S PUBLIC POLICY CLAIM." ASSIGNMENT OF ERROR IV "THE JURY'S VERDICT IN FAVOR OF THE PLAINTIFF ON THE PUBLIC POLICY CLAIM WAS SUPPORTED BY COMPETENT SUBSTANTIAL AND CREDIBLE EVIDENCE." Pursuant to the disposition of the first and second assignment of error, this Court need not address the remaining assignments of error. See. App.R. 12(A)(1)(c). Judgment reversed. SLABY, P.J., BATCHELDER, J. CONCUR

2016-07-06 06:36:25.159823+00

Defendant-appellant, Lamont Jones, appeals from the judgment of the trial court, after a bench trial, convicting him of four counts of gross sexual imposition and declaring him a sexual predator. Appellant contends that the trial court was without authority to find him to be a sexual predator. We agree and, accordingly, reverse the adjudication of appellant as a sexual predator. In addition, due to numerous sentencing errors, we sua sponte modify appellant's sentence and, as modified, affirm the sentence. In May 1998, the Cuyahoga County Grand Jury indicted appellant on three counts of rape, in violation of R.C. 2907.02, three counts of attempted rape, in violation of R.C. 2923.02 and 2907.02, and two counts of gross sexual imposition, in violation of R.C.2907.05. Each count contained a sexually violent predator specification pursuant to R.C. 2971.01(I). Appellant was released on bond. He waived his right to a jury trial and on November 9, 1998, the case proceeded to a bench trial. Pursuant to R.C. 2971.02, the trial court deferred the hearing regarding the sexually violent predator specifications on each count until after a verdict was rendered. The trial testimony included that of the two alleged victims, sisters who were both under thirteen years of age when the alleged incidents occurred. The younger victim testified that she and her two sisters spent two weekends at appellant's house in May 1998. She testified that one night after she had fallen asleep on the couch in the living room of appellant's home, she awoke to find appellant trying to finger her private. She also testified that appellant tried to make me suck his thing. She testified that she then woke her sister, who was also in the living room, and they went to an upstairs bedroom, where they put stuff behind the door, so that way he wouldn't come in. This witness also testified that on another occasion, appellant used one finger and touched her back part or bottom. The witness' testimony regarding whether appellant ever penetrated her with his finger was inconsistent. The older sister similarly testified that appellant touched her when she and her sisters stayed at appellant's house in May 1998. She testified that one night when she was sitting on the couch watching television with appellant, appellant reached over and then he went down into my shorts and my underwear and just had his hand on my private * * * and then he tries to go even farther and tries to finger me * * *. She testified that on another occasion, after falling asleep on appellant's living room floor, she woke up to find appellant trying to touch her private over her clothing as he lay on the floor behind her. At the conclusion of the trial testimony, the state dismissed count two (rape), count five (attempted rape) and count eight (gross sexual imposition). The trial court found appellant guilty of four counts of gross sexual imposition, in violation of R.C. 2907.05(4). Specifically, on counts one (rape), three (rape) and six (attempted rape), the trial court found appellant not guilty of the indicted offense but guilty of the lesser included offense of gross sexual imposition.1 The trial court also found appellant guilty on count seven (gross sexual imposition). The trial court found appellant not guilty on count four, attempted rape. Prior to sentencing, the trial court held a hearing regarding the sexually violent predator specifications for each count and the issue of classifying appellant as a sexual predator. At the hearing, the state incorporated by reference all of the trial testimony. It also presented the testimony of Jenita Curlee, who testified that she and her family moved in with appellant and his family in November 1998, while appellant was out on bond. Ms. Curlee testified that she believed appellant inappropriately touched her ten-year-old daughter while her family was staying with appellant. The state also presented the testimony of Ms. Curlee's ten-year-old daughter. This witness had testified for appellant at trial that the younger of the two alleged victims had asked her to lie and say that Uncle Lamont had did something to me. At the hearing, however, she testified that she fell asleep on the couch at appellant's home one night while watching television and woke to find appellant reaching under the blanket that covered her and rubbing her leg. At the conclusion of the hearing, the trial court acquitted appellant of the sexually violent predator specifications. The trial court determined, however, that appellant is a sexual predator, pursuant to R.C. 2950.09(B). The trial court sentenced appellant to two years of imprisonment on each count. The trial court ordered that the two-year terms on counts three, six and seven be served concurrently, but ordered further that the sentence on count one be served consecutive to that imposed on counts three, six and seven. The trial court also ordered that appellant pay restitution for any counseling undergone by the alleged victims. Appellant timely appealed, presenting two assignments of error for our review: I. THE TRIAL COURT IMPROPERLY FOUND THE APPELLANT TO BE A SEXUAL PREDATOR AND SUCH FINDING MUST BE VACATED. II. THE APPELLANT'S SENTENCE IS CONTRARY TO OHIO LAW.2 In his first assignment of error, appellant argues that the trial court erred in adjudicating him to be a sexual predator. Appellant contends that the trial court could not adjudicate him to be a sexual predator under R.C. 2950.09 once he was acquitted of the sexually violent predator specification. Appellant does not challenge his underlying conviction. R.C. 2950.09(A), (B) and (C) set forth the methods for classifying a person as a sexual predator. R.C. 2950.09(A) provides that an offender is automatically classified as a sexual predator if the person is convicted of or pleads guilty to a sexually violent offense and also is convicted of or pleads guilty to a sexually violent predator specification that was included in the indictment. Where an offender cannot be classified as a sexual predator pursuant to R.C. 2950.09(A), he or she may be classified as a sexual predator for purposes of this chapter only in accordance with division (B) or (C) of this section. R.C. 2950.09(B) allows an offender to be classified as a sexual predator, after a hearing, if the offender committed a sexually oriented offense that is not a sexually violent offense, or if he or she committed a sexually oriented offense that is a sexually violent offense and a sexually violent predator specification was not included in the indictment * * *. R.C. 2950.09(C) allows an offender to be classified as a sexual predator after a hearing but applies to only to those persons who were convicted of or pleaded guilty to a sexually oriented offense prior to January 1, 1997. Neither R.C. 2950.09(A), (B) or (C) apply in this case. R.C.2950.09(C) obviously does not apply because appellant was convicted after January 1, 1997. Similarly, R.C. 2950.09(A) obviously does not apply because the trial court found appellant not guilty of the sexually violent predator specification. Therefore, he could not automatically be classified as a sexual predator pursuant to R.C.2950.09(A). R.C. 2950.09(B) also does not apply in this case. Appellant committed a sexually violent offense and a sexually violent predator specification was included in the indictment.3 Thus, appellant's case does not meet either of the requirements for conducting a sexual predator hearing pursuant to R.C. 2950.09(B). Moreover, R.C. 2950.09(B)(4) specifically precludes a hearing under such circumstances: A hearing shall not be conducted under division (B) of this section regarding an offender if the sexually oriented offense in question is a sexually violent offense and the indictment, count in the indictment, or information charging the offense also included a sexually violent predator specification. This preclusion only makes sense. First, if an offender commits a sexually violent offense and the indictment includes a sexually violent predator specification of which the offender is convicted or pleads guilty, the offender is automatically classified as a sexual predator and, accordingly, no hearing is necessary. R.C. 2950.09(A). There is similarly no need for a hearing regarding whether the offender is a sexual predator if an offender commits a sexually violent offense but is acquitted of the sexually violent predator specification included in the indictment. For purposes of the sexually violent predator specification, R.C. 2971.01(H)(1) defines a sexually violent predator as a person who has been convicted of or pleaded guilty to committing * * * a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses. For purposes of classifying sexual offenders, R.C. 2950.01(E) defines a sexual predator as 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. By acquitting an offender of the sexually violent predator specification, the trial court necessarily concludes that the evidence fails to establish that the offender is likely to engage in the future in one or more sexually violent offenses. Therefore, it would be logically inconsistent for the trial court to then find that an offender is a sexual predator, i.e., a person * * * likely to engage in the future in one or more sexually oriented offenses. This court recently addressed the very same issue in State v. Wynn(Dec. 2, 1999), Cuyahoga App. No. 75281, unreported. In Wynn, the defendant was indicted on two counts of gross sexual imposition, both with a sexually violent predator specification, and two counts of assault on a peace officer. The jury found the defendant guilty of one of the gross sexual imposition charges and acquitted him of the remaining charges. The trial court subsequently acquitted the defendant of the sexually violent predator specification but found him to be a sexual predator and a sexually oriented offender. In reversing the trial court's judgment that the defendant was a sexual predator, this court stated, There are no provisions of R.C. 2950.09, as it is currently drafted, which permit a trial court to adjudicate a defendant to be a sexual predator once he has been acquitted of a sexually violent predator specification. Id. Under Crim.R. 52(B), we have discretion to recognize plain errors or defects affecting substantial rights * * * although they were not brought to the attention of the court. Notice of plain error under Crim.R. 52(B) is to be taken with the 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. Here, we conclude that the trial court committed plain error in adjudicating appellant to be a sexual predator even though it acquitted him of the sexually violent predator specification. Accordingly, we sustain appellant's first assignment of error and reverse the trial court's determination that appellant is a sexual predator. In his second assignment of error, appellant contends that his sentence is contrary to law. We agree. Pursuant to R.C. 2907.05(B), a violation of R.C. 2907.05(4), of which appellant was convicted, is a third-degree felony. R.C.2929.14(A)(3) sets forth the sentencing guidelines applicable to third-degree felonies, allowing prison terms of one year to five years. Pursuant to R.C. 2929.14(B), if a defendant has not previously served a prison term, the trial court must impose the minimum sentence unless it specifies on the record that the shortest prison term will demean the seriousness of the conduct or will not adequately protect the public from future crime by the offender: [I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the shortest prison term authorized for the offense * * * unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. In State v. Edmonson (1999), 86 Ohio St. 3d 324, the Ohio Supreme Court recently addressed the principles governing minimum and maximum sentences. With respect to minimum terms, the Supreme Court stated, [U]nless a court imposes the shortest term authorized on a felony offender who has never served a prison term, the record of the sentencing hearing must reflect that the court found that either or both of the two statutorily sanctioned reasons for exceeding the minimum term warranted the longer sentence. Id. at 326. Here, although appellant had not previously served a prison term, the trial court did not impose the minimum sentence of one year of incarceration. It did not, however, as required by R.C.2929.14(B) and Edmonson, make a finding on the record that a one-year minimum sentence would demean the seriousness of the offender's conduct or would not adequately protect the public from future crime by appellant. Moreover, the trial court erred in not imposing a one-year minimum sentence on each count because the statutory factors identified in R.C. 2929.14(B) for imposing other than the minimum sentence are not present in this case. A minimum prison term does not demean the seriousness of appellant's conduct nor fail to adequately protect the public from future crime by appellant. The trial court also erred in imposing consecutive sentences in this case. R.C. 2929.14(E) provides in pertinent part: If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) 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 the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. Thus, pursuant to R.C. 2929.14(E)(4), the trial court may impose consecutive prison terms for convictions of multiple offenses upon the making of certain findings enumerated in the statute. Moreover, under R.C. 2929.19(B)(2)(c), if the trial court imposes consecutive sente Here, the trial court did not make the necessary findings on the record to satisfy the criteria imposed by R.C. 2929.14 (E) (4). Indeed, the trial court gave no reason whatsoever for imposing consecutive sentences in this case. Moreover, we find that the trial court erred in imposing consecutive sentences because appellant does not meet the statutory conditions set forth in R.C. 2929.14(E)(4). There is nothing in the record to indicate that consecutive sentences are necessary to protect the public or to punish appellant. Furthermore, the consecutive sentences imposed in this case are disproportionate to the seriousness of appellant's conduct and the danger he poses to the public. Accordingly, appellant's sentences should have been ordered to be served concurrently. Finally, although the trial court was authorized pursuant to R.C. 2929.18 to order appellant to pay restitution to the alleged victims,4it erred in ordering appellant to pay restitution without first, considering appellant's ability to pay the sanction. R.C.2929.19(B) (6) provides: Before imposing a financial sanction under section 2929.18 of the Revised Code, the court shall consider the offender's ability to pay and other matters under section 2929.181 of the Revised Code.5 R.C. 2929.18(E) provides that a court that imposes a financial sanction upon an offender may hold a hearing if necessary to determine whether the offender is able to pay the sanction or is likely in the future to be able to pay it. A review of the record indicates that the trial court did not comply with the above-stated statutory requirements. The trial court did not hold a hearing to determine whether appellant was able to pay the financial sanction imposed by the court nor did it consider, even cursorily, whether appellant has the means to pay the sanction imposed by the court. In light of the trial court's finding, for purposes of appointing appellate counsel, that appellant is indigent, however, we conclude that it is apparent that appellant does not have the means to pay the financial sanction imposed by the court. Therefore, we modify appellant's sentence to one year of incarceration on each count, the sentences to be served concurrently, and vacate the financial sanction imposed by the trial court. As modified, we affirm the sentence. Appellant's second assignment of error is sustained. The conviction is affirmed in part and reversed in part; the sentence modified and, as modified, affirmed. It is, therefore, ordered that appellant recover of appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. _____________________________________ TIMOTHY E. McMONAGLE, PRESIDING JUDGE JAMES D. SWEENEY, J., CONCURS; PATRICIA ANN BLACKMON, J., CONCURS IN JUDGMENT ONLY. 1 See State v. Johnson (1988), 36 Ohio St. 3d 224, paragraph one of the syllabus. 2 Appellant's second assignment of error was not included in his original brief on appeal. On April 26, 2000, appellant filed a motion for leave to file a supplemental assignment of error instanter regarding his sentence. This court granted appellant's motion and allowed appellee to file a supplemental brief regarding appellant's second assignment of error. 3 Gross sexual imposition of a child under thirteen years of age, a violation of R.C. 2907.05(4), is a violent sex offense to which the sexually violent predator specification may be attached. See R.C. 2971.01(H)(1) and R.C. 2971.01(L)(1). 4 R.C. 2929.18(A) provides, in pertinent part: The court imposing a sentence upon an offender for a felony may sentence the offender to any financial sanction or combination of financial sanctions authorized under this section * * *. * * * Financial sanctions that may be imposed pursuant to this section include, but are not limited to, * * *: (1) Restitution by the offender to the victim of the offender's crime * * * in an amount based on the victim's economic loss. 5 R.C. 2929.181, which would have required courts to hold a hearing in order to determine an offender's ability to pay a fine, was initially enacted by S.B. No. 2 and was set to take effect on July 1, 1996. However, Am.Sub.S.B. No. 269, which was subsequently enacted on June 28, 1996, repealed R.C. 2929.181 effective July 1, 1996 and, therefore, R.C. 2929.181 never became governing law within the state of Ohio. State v. Frede (Nov. 24, 1997), Clermont App. No. CA97-02-011, unreported.

2018-11-08 17:38:05.472252+00

http://www.courts.state.ny.us/reporter/3dseries/2018/2018_07545.htm

People v Fernandez (2018 NY Slip Op 07545) People v Fernandez 2018 NY Slip Op 07545 Decided on November 8, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 8, 2018 Friedman, J.P., Richter, Kahn, Oing, Moulton, JJ. 7567 3593/14 [*1]The People of the State of New York, Respondent, v Luigi Fernandez, Defendant-Appellant. Christina Swarns, Office of The Appellate Defender, New York (Victorien Wu of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Julia L. Chariott of counsel), for respondent. An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Marc Whiten, J. at plea; Raymond Bruce, J. at sentencing), rendered November 12, 2015, Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 8, 2018 CLERK Counsel for appellant is referred to § 606.5, Rules of the Appellate Division, First Department.

2018-11-08 17:38:06.165468+00

http://www.courts.state.ny.us/reporter/3dseries/2018/2018_07540.htm

People v Candelario (2018 NY Slip Op 07540) People v Candelario 2018 NY Slip Op 07540 Decided on November 8, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 8, 2018 Friedman, J.P., Richter, Kahn, Oing, Moulton, JJ. 7560 3505N/08 [*1]The People of the State of New York, Respondent, v William Candelario, Defendant-Appellant. Christina Swarns, Office of The Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent. Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered December 21, 2011 convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the first degree, and sentencing him, as a second felony drug offender, to term of 12 years, unanimously affirmed. The court providently exercised its discretion in denying defendant's motion to withdraw his plea. "[T]he nature and extent of the fact-finding procedures on such motions rest largely in the discretion of the court" (People v Fiumefreddo , 82 NY2d 536, 544 [1993]). Defendant received a full opportunity to state his claims, with the assistance of newly assigned counsel. Defendant's claim that he did not understand his obligations under the plea agreement is contradicted by the record (see People v Frederick , 45 NY2d 520, 526 [1978]). The plea colloquy and written plea agreement, both of which were translated for defendant by an interpreter, spelled out the conditions of the plea, and defendant acknowledged that he understood them. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 8, 2018 CLERK

2016-08-05 17:01:13.130142+00

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/05/14-15540.pdf

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RONNIE D. STILWELL; No. 14-15540 COURTNEY STILWELL, husband and wife, D.C. No. Plaintiffs-Appellants, 3:12-cv-08053-HRH v. OPINION CITY OF WILLIAMS, an Arizona Municipal Corporation; JOSEPH DUFFY, Interim City Manager of the City of Williams; LYDA DUFFY, husband and wife; RAYMOND GLENN CORNWELL, former Public Works Director of the City of Williams; ELSIE CORNWELL, husband and wife; BILLY PRUITT; BESSIE PRUITT, husband and wife; TRACY FULLER; KATHY FULLER, husband and wife, Defendants-Appellees. Appeal from the United States District Court for the District of Arizona H. Russel Holland, District Judge, Presiding 2 STILLWELL V. CITY OF WILLIAMS Argued and Submitted March 14, 2016 San Francisco, California Filed August 5, 2016 Before: Ferdinand F. Fernandez, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Friedland; Dissent by Judge Fernandez SUMMARY * Civil Rights/Age Discrimination in Employment Act The panel reversed the district court’s summary judgment and remanded in an action brought by a City of Williams employee who alleged that he was fired for planning to testify against the City in a lawsuit relating to age discrimination. The panel first held that plaintiff was engaged in speech as a citizen for First Amendment purposes because his sworn statements and imminent testimony about the City’s retaliatory conduct were outside the scope of his ordinary job duties and were on a matter of public concern. The panel held that the retaliation provision of the Age Discrimination in Employment Act (ADEA), did not * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  STILLWELL V. CITY OF WILLIAMS 3 preclude plaintiff’s 42 U.S.C. § 1983 First Amendment retaliation claim. The panel held that the disparities between the rights and protections of the ADEA’s retaliation provision and the First Amendment as enforced through § 1983 — including differences in who may sue and be sued, the standards for liability, and the damages available — which made the ADEA’s protections narrower than the First Amendment’s in some respects, led the panel to conclude that Congress did not intend to preclude § 1983 First Amendment retaliation suits when it enacted the ADEA. Dissenting, Judge Fernandez stated that this court was bound by Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051 , 1057 (9th Cir. 2009), which held that “the ADEA precludes the assertion of age discrimination in employment claims, even those seeking to vindicate constitutional rights, under § 1983.” COUNSEL Charles Anthony Shaw (argued), Law Offices of Charles Anthony Shaw, PLLC, Prescott, Arizona, for Plaintiffs- Appellants. Kenneth H. Brendel (argued), Mangum, Wall, Stoops & Warden, PLLC, Flagstaff, Arizona, for Defendants- Appellees. 4 STILLWELL V. CITY OF WILLIAMS OPINION FRIEDLAND, Circuit Judge: Plaintiff-Appellant Ronnie Stilwell sued his city employer for retaliation, alleging that he was fired for planning to testify against the City in a lawsuit relating to age discrimination. Stilwell asserted that his termination violated both the First Amendment and the retaliation provision of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(d). The question we must answer is whether the retaliation provision of the ADEA precludes a plaintiff such as Stilwell from bringing a First Amendment retaliation claim under 42 U.S.C. § 1983. We hold that it does not. I. Stilwell became Superintendent of the Water Department of the City of Williams, Arizona (the “City”), in 1991, and he served in that position until his termination in January 2011. It is the events surrounding his termination that gave rise to the instant lawsuit. 1 Those events began when Stilwell became aware of a lawsuit against the City filed by Carolyn Smith, the City’s former Human Resources Director (the “Smith suit”). Smith alleged that the City retaliated against her in violation of the retaliation provision of the ADEA, after she complained about age discrimination against a different city employee, Glen Cornwell. In August 1 Because this case comes to us on appeal from a grant of summary judgment to Defendants, “[w]e view the facts in the light most favorable to Stilwell, the non-moving party.” Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187 , 1193 (9th Cir. 2007).  STILLWELL V. CITY OF WILLIAMS 5 2009, Stilwell signed a sworn statement that supported Smith’s ADEA retaliation claim, and agreed to testify in Smith’s lawsuit. Later that month, a formal disclosure regarding Stilwell’s involvement as a witness was served upon the City as well as on then-Assistant City Manager Joe Duffy. Stilwell alleges that following this agreement to testify, Duffy took numerous negative actions towards him that constituted retaliation. Between August and December 2009, Duffy sent Stilwell emails with negative comments, including emails attacking his job performance. In December 2009, Duffy became Interim City Manager and met with Stilwell to discourage him from testifying in the Smith suit. In June 2010, the judge in the Smith suit denied a motion from the City Attorney to prevent Stilwell’s testimony. Duffy then had another meeting with Stilwell, in which Duffy stated that he wanted Stilwell to find a way out of testifying. In September 2010, at a meeting with another city department head, the issue of Stilwell’s anticipated testimony for the Smith suit arose again. Stilwell explained that he would tell the truth if he was called to the stand, including by describing how Duffy had retaliated against Smith. Duffy and Stilwell subsequently had another confrontation in which Duffy expressed displeasure about Stilwell’s agreeing to testify. Following that confrontation, Duffy began to express additional concerns about Stilwell’s job performance. In October 2010, Duffy continued to find problems with Stilwell’s job performance, including criticizing Stilwell’s 6 STILLWELL V. CITY OF WILLIAMS handling of a situation in which the City’s water turned brown. Duffy also sent the City Council a memo accusing Stilwell of neglecting security concerns at the City’s water plant. Stilwell asserted that these issues were not his fault. In December 2010, Stilwell was placed on paid administrative leave, pending an investigation into Duffy’s allegations. In January 2011, the City terminated Stilwell’s employment based on the results of that investigation. Stilwell sued the City and Duffy, among others, in the United States District Court for the District of Arizona. The suit asserted sixteen claims, including retaliation in violation of the ADEA and the First Amendment. 2 Stilwell moved for partial summary judgment, and Defendants cross-moved for summary judgment as to all claims. The district court granted Defendants’ motion, and Stilwell appealed the rulings on eight claims. 3 II. The district court granted summary judgment in favor of Defendants on Stilwell’s § 1983 First Amendment claim on the sole ground that the retaliation provision of the ADEA, 29 U.S.C. § 623(d), precluded a § 1983 First Amendment retaliation claim such as Stilwell’s. We review the district court’s decision de novo. In re Oracle Corp. Sec. Litig., 627 F.3d 376 , 387 (9th Cir. 2010). Applying the framework 2 Stilwell sued along with his wife. Because the Complaint does not allege any claims individual to Stilwell’s wife, we have referred to the claims as Stilwell’s claims. 3 Stilwell’s appellate arguments relating to claims other than his § 1983 First Amendment retaliation claim are addressed in a concurrently-filed memorandum disposition.  STILLWELL V. CITY OF WILLIAMS 7 set forth in Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009), for determining the preclusive effect of a statute on § 1983 actions to remedy constitutional violations, we hold that Stilwell’s § 1983 First Amendment lawsuit is not precluded. A. As a threshold matter, before turning to the preclusion question, we reject the City’s argument that Stilwell’s speech was not “speech as a citizen on a matter of public concern” and so fell outside the First Amendment’s protections. Lane v. Franks, 134 S. Ct. 2369 , 2378 (2014). Stilwell’s sworn statement and imminent testimony were “outside the scope of his ordinary job duties,” which means that he was engaged in “speech as a citizen for First Amendment purposes.” Id. (explaining that an employee’s testimony in response to a subpoena about his employer’s practices was “outside the scope of his ordinary job duties” and thus “speech as a citizen”). And Stilwell’s sworn statement and planned testimony about the City’s retaliatory conduct were on a matter of public concern. See Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917 , 927 (9th Cir. 2004) (“[W]e hold that a public employee’s testimony addresses a matter of public concern if it contributes in some way to the resolution of a judicial or administrative proceeding in which discrimination or other significant government misconduct is at issue.”). Moreover, contrary to the City’s argument, the fact that Stilwell had submitted only an affidavit and did not ultimately testify in court does not foreclose First Amendment protection. In Alpha Energy Savers, we held that although the plaintiff, a city contractor, never actually testified in a former associate’s federal discrimination 8 STILLWELL V. CITY OF WILLIAMS lawsuit because the suit settled, the conduct that occurred prior to the settlement was protected under the First Amendment. 381 F.3d at 922 , 923–24. That conduct included “not only the affidavit that [the contractor] filed on [the associate’s] behalf and his testimony at [the associate’s] grievance hearing but also [the contractor’s] agreement to be listed as a witness in the judicial proceedings.” Id. at 923– 24. Similarly, Stilwell’s sworn statement on a matter of public concern and his express plan to testify in court along the same lines, fall within the purview of the First Amendment. Cf. Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412, 1418 (2016) (holding that whether the protected speech was actually engaged in by the employee is not determinative because it is the perception of the employer as to whether that protected activity occurred that matters to a First Amendment retaliation claim). B. Congress enacted the ADEA in order to “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U.S.C. § 621(b). Although nearly all of the ADEA focuses on direct age discrimination, it contains a retaliation provision as well: It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for  STILLWELL V. CITY OF WILLIAMS 9 membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 29 U.S.C.A. § 623(d). Section 1983, in contrast, is not itself a source of substantive rights, but is a mechanism for vindicating federal statutory or constitutional rights. Baker v. McCollan, 443 U.S. 137 , 144 n.3 (1979). Specifically, § 1983 provides that “[e]very person who, under color of [State law] . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. Despite § 1983’s broad wording, that section’s availability as a remedy for violations of federal statutory or constitutional rights may be foreclosed in the event that Congress enacts a statutory scheme indicating an intent to preclude § 1983 suits. In a line of cases beginning with Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981), the Supreme Court has set forth principles for determining when a § 1983 cause of action is precluded. Because this line of cases, and particularly Fitzgerald, 555 U.S. 246 , the most recent of them, provides the framework for our analysis here, we describe the cases in some detail. 10 STILLWELL V. CITY OF WILLIAMS In Sea Clammers, the Court addressed whether the Federal Water Pollution Control Act and the Marine Protection, Research, and Sanctuaries Act precluded § 1983 suits to remedy violations of those Acts. To divine Congress’s intent, the Court examined “the remedial devices provided in [each] particular Act,” to determine if they were “sufficiently comprehensive” to indicate a “congressional intent to preclude the remedy of suits under § 1983.” Sea Clammers, 453 U.S. at 20 . The Court observed the “unusually elaborate enforcement provisions” in each Act— which provided for civil as well as criminal penalties that could be assessed by the Environmental Protection Agency, and included citizen suit provisions that required private plaintiffs to “comply with specified procedures” before filing in court. Id. at 13–14. The Court held that these comprehensive remedial provisions demonstrated that Congress intended to preclude § 1983 lawsuits to remedy a violation of the statutory rights created in those same Acts. Thus, the Court held that a plaintiff could not bring a § 1983 suit to remedy a violation of either the Federal Water Pollution Control Act or the Marine Protection, Research, and Sanctuaries Act. In Smith v. Robinson, 468 U.S. 992 , 1013 (1984), superseded on other grounds by Handicapped Children’s Protection Act, Pub. L. No. 99-372, § 2, 100 Stat. 796 (1986) (codified at 20 U.S.C. § 1415(1)), the Supreme Court considered a related, but distinct question—whether a statute precluded a § 1983 suit to enforce a constitutional right. In Smith, the Court examined whether the Education of the Handicapped Act (the “EHA”) precluded § 1983 suits alleging Fourteenth Amendment equal protection violations based on disability discrimination in education. 468 U.S. at  STILLWELL V. CITY OF WILLIAMS 11 1013. 4 In holding that such suits were precluded, the Court first explained that constitutional equal protection rights and the rights protected by the EHA were essentially co- extensive. See id. at 1009. Such congruence was unsurprising given that the EHA was enacted as a response to a series of court cases that established the “right to an equal education opportunity for handicapped children,” id. at 1010, and that “Congress perceived the EHA as the most effective vehicle for protecting the constitutional right of a handicapped child to a public education” recognized in those cases. Id. at 1013. Indeed, the Senate Report on the EHA described the statute as having “incorporated the major principles of th[ose] right to education cases.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 , 194 n.18 (1982). After concluding that the statutory and constitutional claims were “virtually identical,” Smith, 468 U.S. at 1009 , the Supreme Court turned to the EHA’s remedial scheme, explaining that “the Act establishes an elaborate procedural mechanism to protect the rights of handicapped children,” that “begins on the local level and includes ongoing parental involvement, detailed procedural safeguards, and a right to judicial review.” Id. at 1010–11. Ultimately, the Court held that “[a]llowing a plaintiff to circumvent the EHA administrative remedies” through a § 1983 action “would be inconsistent with Congress’ 4 In City of Rancho Palos Verdes, California v. Abrams, 544 U.S. 113 (2005), the Court appears to have mischaracterized Smith as involving the question of whether § 1983 suits could enforce statutory rights. Compare Rancho Palos Verdes, 544 U.S. at 121 (“We have found § 1983 unavailable to remedy violations of federal statutory rights in two cases: Sea Clammers and Smith.”), with Smith, 468 U.S. at 1008 –09 (“As petitioners emphasize, their § 1983 claims were not based on alleged violations of the EHA, but on independent claims of constitutional deprivations.” (footnote omitted)). 12 STILLWELL V. CITY OF WILLIAMS carefully tailored scheme,” id. at 1012, and that because Congress gave no indication in the EHA’s legislative history that it intended to allow such § 1983 suits, the alternative § 1983 remedy was precluded. The Supreme Court again confronted the question of preclusion of § 1983 actions in City of Rancho Palos Verdes, California v. Abrams, 544 U.S. 113 , 127 (2005). The Court there asked whether the Telecommunications Act of 1996 precluded § 1983 suits alleging violations of that Act—a question of enforcement of a statutory right akin to that in Sea Clammers. To answer that question, the Court contrasted Sea Clammers and Smith with other cases that had held § 1983 actions to be available to enforce federal statutes that “did not provide a private judicial remedy (or, in most of the cases, even a private administrative remedy) for the rights violated.” 544 U.S. at 121 (citing Livadas v. Bradshaw, 512 U.S. 107 , 133–34 (1994) and Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 , 108–09 (1989), among other cases). 5 Because the 5 In Gonzaga University v. Doe, 536 U.S. 273 , 281–83 (2002), the Supreme Court made it much more difficult to infer privately enforceable rights in federal statutes that lack private rights of action. This decision had the effect of cabining the line of cases that had held § 1983 actions to be available to enforce such statutes. Post-Gonzaga, “‘[t]he question whether Congress . . . intended to create a private right of action [is] definitively answered in the negative’ where a ‘statute by its terms grants no private rights to any identifiable class.’” Id. at 283– 84 (alterations in original) (quoting Touche Ross & Co. v. Redington, 442 U.S. 560 , 576 (1979)); see Sanchez v. Johnson, 416 F.3d 1051 , 1057 (9th Cir. 2005) (explaining that Gonzaga clarified that it is only “Congress’s use of explicit, individually focused, rights-creating language that reveals congressional intent to create an individually enforceable right in a spending statute”). And, where there was no private right to enforce, there could be no § 1983 action to enforce it. See Sanchez, 416 F.3d at 1062 (“After Gonzaga, . . . a plaintiff seeking  STILLWELL V. CITY OF WILLIAMS 13 Telecommunications Act created a private right of action— and, particularly, a limited one with a 30-day statute of limitations and no provision for attorney fees or costs—the Court held that allowing § 1983 suits that would not have those limitations “would distort the scheme of expedited judicial review and limited remedies created by [the Act].” Id. at 127. The Act thus “precluded resort to § 1983.” Id. Most recently, in Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009), the Supreme Court considered again, as it had in Smith, whether a statute precluded use of § 1983 to remedy an alleged constitutional violation. Specifically, the Court evaluated whether Title IX, which prohibits gender discrimination in educational programs receiving Federal financial assistance, 20 U.S.C. § 1681(a), was “meant to be an exclusive mechanism for addressing gender discrimination in schools,” or whether plaintiffs alleging gender discrimination could also bring equal protection claims under § 1983. 555 U.S. at 258 . Looking to Sea Clammers, Smith, and Rancho Palos Verdes as guiding precedent, the Court emphasized that those “cases establish that ‘the crucial consideration is what Congress intended.’” Fitzgerald, 555 U.S. at 252 (alteration omitted) (quoting Smith, 468 U.S. at 1012 ). The Court then summarized different approaches for determining Congress’s intent with respect to preclusion of § 1983 suits, depending on whether the § 1983 suits would enforce statutory or constitutional rights. “In those cases in which the § 1983 claim is based on a statutory right, redress under § 1983 must assert the violation of an individually enforceable right conferred specifically upon him, not merely a violation of federal law or the denial of a benefit or interest, no matter how unambiguously conferred.”). 14 STILLWELL V. CITY OF WILLIAMS ‘evidence of such congressional intent [to preclude the § 1983 remedy] may be found directly in the statute creating the right, or inferred from the statute’s creation of a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.’” Id. (quoting Rancho Palos Verdes, 544 U.S. at 120 (emphasis added)). With respect to constitutional claims, however, the Court explained: In cases in which the § 1983 claim alleges a constitutional violation, lack of congressional intent may be inferred from a comparison of the rights and protections of the statute and those existing under the Constitution. Where the contours of such rights and protections diverge in significant ways, it is not likely that Congress intended to displace § 1983 suits enforcing constitutional rights. Our conclusions regarding congressional intent can be confirmed by a statute’s context. Id. at 252–53 (emphasis added). After setting forth these inquiries, the Court first observed that, in contrast to the statutes at issue in Sea Clammers, Smith, and Rancho Palos Verdes, “Title IX has no administrative exhaustion requirement and no notice provisions.” Id. at 255. Rather, Title IX’s implied right of action allows plaintiffs to “file directly in court,” and to “obtain the full range of remedies.” Id. The Court stated that, “[a]s a result, parallel and concurrent § 1983 claims will neither circumvent required procedures, nor allow access to new remedies.” Id. at 255–56.  STILLWELL V. CITY OF WILLIAMS 15 The Court then compared the “substantive rights and protections” provided by Title IX to those afforded under § 1983 suits to remedy violations of the Equal Protection Clause. The Court examined the mismatch in which entities may be sued and which entities are exempted, id. at 256–57, the differences in what conduct is prohibited, id. at 257, and the disparate standards of liability and burdens of proof required to prevail under each provision, id. at 257–58. With respect to which entities may be sued under Title IX and § 1983 equal protection causes of action, respectively, the Court explained that “Title IX reaches institutions and programs that receive federal funds, which may include nonpublic institutions,” but does not “authoriz[e] suit against school officials, teachers, and other individuals.” 555 U.S. at 257 (citations omitted). In contrast, “[t]he Equal Protection Clause reaches only state actors, [and] § 1983 equal protection claims may be brought against individuals as well as municipalities and certain other state entities.” Id. In its comparison of the “substantive rights and protections,” the Court also underscored the differences between the types of conduct prohibited under each of the schemes. The Court explained that “Title IX exempts elementary and secondary schools from its prohibition against discrimination in admissions, § 1681(a)(1); it exempts military service schools and traditionally single-sex public colleges from all of its provisions, §§ 1681(a)(4)– (5).” Fitzgerald, 555 U.S. at 257 . But, the Court noted, some of what is exempted under Title IX “may form the basis of equal protection claims” for gender discrimination under § 1983. Id. Finally, the Court observed that “[e]ven where particular activities and particular defendants are subject to both Title IX and the Equal Protection Clause, the standards for 16 STILLWELL V. CITY OF WILLIAMS establishing liability may not be wholly congruent.” Id. at 257. It explained that “a Title IX plaintiff can establish school district liability by showing that a single school administrator with authority to take corrective action responded to harassment with deliberate indifference,” whereas “[a] plaintiff stating a similar claim via § 1983 for violation of the Equal Protection Clause by a school district or other municipal entity must show that the harassment was the result of municipal custom, policy, or practice.” Id. at 257–58 (citing Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658 , 694 (1978)). The Court concluded that “[i]n light of the divergent coverage of Title IX and the Equal Protection Clause, as well as the absence of a comprehensive remedial scheme comparable to those at issue in Sea Clammers, Smith, and Rancho Palos Verdes, . . . Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools.” Fitzgerald, 555 U.S. at 258 . Because Title IX was not intended as a “substitute for § 1983 suits as a means of enforcing constitutional rights,” the Court held “that § 1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools.” Id. The Supreme Court then reasoned that its “conclusion [was] consistent with Title IX’s context and history.” Id. The Court explained that “Congress modeled Title IX after Title VI of the Civil Rights Act of 1964,” and “[a]t the time of Title IX’s enactment . . . Title VI was routinely interpreted to allow for parallel and concurrent § 1983 claims.” Id. Given “the absence of any contrary evidence, it follows that Congress intended Title IX to be interpreted similarly to allow for parallel and concurrent § 1983 claims.” Id. at 259. The Court noted that “the relevant question is not whether  STILLWELL V. CITY OF WILLIAMS 17 Congress envisioned that the two types of claims would proceed together in addressing gender discrimination in schools; it is whether Congress affirmatively intended to preclude this result,” id. at 259 n.2, and the Court found no such intent reflected in the legislative history, id. at 259 . The Sea Clammers line of cases teaches that when Congress creates a right by enacting a statute but at the same time limits enforcement of that right through a specific remedial scheme that is narrower than § 1983, a § 1983 remedy is precluded. This makes sense because the limits on enforcement of the right were part and parcel to its creation. When a right is created by the Constitution, however, and a statute merely recognizes it or adds enforcement options, the analysis differs. Fitzgerald teaches that, in that situation, if the statute’s rights and protections diverge in “significant ways” from those provided by the Constitution, a § 1983 remedy is not precluded. 555 U.S. at 252 –53. C. Following Fitzgerald, to determine whether the ADEA’s retaliation provision precludes § 1983 First Amendment retaliation suits, we must determine whether the “contours of such rights and protections” provided by the two “diverge in significant ways.” Fitzgerald, 555 U.S. at 252 –53. The ADEA provides an express private right of action, which weighs in favor of finding preclusion under Sea Clammers and its progeny. But the disparities between the rights and protections of the ADEA’s retaliation provision and the First Amendment as enforced through § 1983—including differences in who may sue and be sued, the standards for liability, and the damages available—which make the ADEA’s protections narrower than the First Amendment’s 18 STILLWELL V. CITY OF WILLIAMS in some important respects, cause us to conclude that Congress did not intend to preclude § 1983 First Amendment retaliation suits. 1. The ADEA provides both an express private right of action, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62 , 67 (2000), and an administrative exhaustion requirement to file a complaint with the EEOC. 29 U.S.C. § 626(c)–(d). If we were evaluating the preclusion of § 1983 suits as a mechanism to enforce a statutory right created by the ADEA, the detailed nature of its remedial scheme might be dispositive. But, under Fitzgerald, it is not. Fitzgerald instructed that, “[i]n cases in which the § 1983 claim alleges a constitutional violation,” the presence of significant differences in the “rights and protections” offered by the Constitution and the statute in question make it unlikely “that Congress intended to displace § 1983 suits enforcing constitutional rights” by enacting the statute. 555 U.S. at 252 –53. 6 Accordingly, the Supreme Court in Fitzgerald looked not only to whether Title IX had an express cause of action; it also engaged in a detailed comparison of Title IX’s implied right of action and § 1983 equal protection claims. Following this guidance from Fitzgerald, we turn to comparing the substantive rights and protections afforded by the ADEA’s retaliation provision and those provided under the First Amendment, as enforced through § 1983. 6 Of course, because Fitzgerald was discussing a statute that lacked an express private right of action, the Supreme Court was not confronted with the question of how important the comprehensiveness of the remedial scheme is vis-à-vis the significant divergence of “the contours of . . . rights and protections.” 555 U.S. at 252 –53. Nor did it attempt to answer that question.  STILLWELL V. CITY OF WILLIAMS 19 2. a. Like the disparities identified in Fitzgerald, our examination of the ADEA’s retaliation provision and First Amendment retaliation claims brought under § 1983 reveals differences in who may sue and be sued. First, the ADEA does not allow for suit against individuals, whereas § 1983 does. See Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583 , 587– 88 (9th Cir. 1993) (holding that individual defendants cannot be held liable for damages under the ADEA); Hafer v. Melo, 502 U.S. 21 , 31 (1991) (“We hold that state officials, sued in their individual capacities, are ‘persons’ within the meaning of § 1983.”); see also Levin v. Madigan, 692 F.3d 607 , 621 (7th Cir. 2012) (“In contrast [to an ADEA plaintiff], a § 1983 plaintiff may file suit against an individual, so long as that individual caused or participated in the alleged deprivation of the plaintiff’s constitutional rights.” (citation omitted)). Second, state employees, in practice, cannot sue under the ADEA but can sue under § 1983. In Kimel, the Supreme Court held that “in the ADEA, Congress did not validly abrogate the States’ sovereign immunity to suits by private individuals,” and thus, state employers could not be sued by state employees under the ADEA. 528 U.S. at 91 . This holding, combined with the fact that the ADEA does not allow suits against individuals (and thus does not allow suits against state officials or supervisors), means that state employees may not bring claims under the ADEA. See Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051 , 1060 (9th Cir. 2009) (explaining that “[i]f the ADEA is the exclusive remedy for age discrimination in the workplace, then plaintiffs are left without a federal forum for age discrimination claims against state actors.”). Although 20 STILLWELL V. CITY OF WILLIAMS § 1983 likewise did not abrogate States’ Eleventh Amendment immunity and therefore does not allow suits against States themselves or individuals in their official capacities, Will v. Mich. Dep’t of State Police, 491 U.S. 58 , 71 (1989), § 1983 does provide a remedy to state employees by allowing suits against state officials in their individual capacities, see Hafer, 502 U.S. at 31 . Third, the ADEA is generally applicable to private and public (but not state) employers with twenty or more employees. 29 U.S.C. § 630(b) (defining “employer”). 7 In contrast, § 1983 is generally inapplicable to private employers. 8 See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 , 49–50 (1999) (“[T]he under-color-of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.’” (quoting Blum v. Yaretsky, 457 U.S. 991 , 1002 (1982))). Finally, the Supreme Court has held that independent contractors may sue under § 1983 for First Amendment retaliation. Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668 , 686 (1996) (“[W]e recognize the right of independent government contractors not to be terminated for exercising their First Amendment rights.”). In contrast, “[a] claimant under . . . the ADEA must establish himself as an ‘employee,’” thus excluding independent 7 The 1974 Amendments to the ADEA extended the protections of the ADEA to federal employees. Bunch v. United States, 548 F.2d 336 , 338 (9th Cir. 1977); 29 U.S.C. § 633a (setting forth ADEA requirements for federal employers). 8 In certain circumstances a private employer could be considered a state actor. In such circumstances, an employee plaintiff could sue such an employer under § 1983 as well as under the ADEA. See Dennis v. Sparks, 449 U.S. 24 , 27–28 (1980).  STILLWELL V. CITY OF WILLIAMS 21 contractors. Barnhart v. N.Y. Life Ins. Co., 141 F.3d 1310 , 1312 (9th Cir. 1998). b. Also similar to the differences identified in Fitzgerald, there is a difference between ADEA retaliation suits and § 1983 First Amendment retaliation suits in how liability is established under each. See Fitzgerald, 555 U.S. at 257 (examining different standards of liability for Title IX and § 1983 claims). First, an ADEA plaintiff bears a greater burden of proof as to causation than a plaintiff bringing a First Amendment retaliation claim. Once the plaintiff bringing a First Amendment retaliation claim via § 1983 has demonstrated that the protected conduct was a “motivating factor” in the retaliatory action, “the burden shifts to the government to show that it ‘would have taken the same action even in the absence of the protected conduct.’” O’Brien v. Welty, 818 F.3d 920 , 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755 , 770 (9th Cir.2006)); see also Thomas v. County of Riverside, 763 F.3d 1167 , 1169 (9th Cir. 2014) (per curiam) (explaining that First Amendment retaliation cases are governed by Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), under which, once a plaintiff makes a showing that protected speech was a substantial or motivating factor in the employer’s taking a non-trivial adverse employment action, a defendant can escape liability only by meeting the burden of proving by a preponderance of the evidence that it would have reached the same decision even absent the plaintiff’s protected speech). 22 STILLWELL V. CITY OF WILLIAMS In contrast, in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), the Supreme Court outlined a different framework in the context of Title VII retaliation claims—which is relevant to ADEA retaliation claims because we have long considered the ADEA retaliation provision to be the “equivalent of the anti- retaliation provision of Title VII,” O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 , 763 (9th Cir. 1996). In Nassar, the Court held that a plaintiff alleging retaliation under Title VII must prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” 133 S. Ct. at 2533 . The Court explained that this burden on the plaintiff to “establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer” is “more demanding than the motivating-factor standard.” Id. at 2534. Second, exactly as in Fitzgerald, 555 U.S. at 257 , there is a difference in the requirements for establishing liability between the ADEA retaliation clause and § 1983 when the defendant is a municipality. Under § 1983, “municipalities [may not] be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 , 691 (1978). In contrast, no such requirement exists for ADEA claims brought against municipalities. See Hill v. Borough of Kutztown, 455 F.3d 225 , 245, 247 (3d Cir. 2006) (explaining that “a municipality may be held liable for the conduct of an individual employee or officer only when that conduct implements an official policy or practice” in § 1983 actions, but that “a plaintiff may bring an ADEA claim against a political subdivision of a state based on the actions of its employee(s)” (footnotes omitted)); see also Spengler v. Worthington Cylinders, 615 F.3d 481 , 491 (6th Cir. 2010)  STILLWELL V. CITY OF WILLIAMS 23 (explaining in the context of an ADEA retaliation claim that “[a]n employer will be strictly liable for a supervisor’s proven discrimination where such discrimination results in an adverse employment action”). c. Finally, the remedies available to those individuals bringing suit under the ADEA’s retaliation provision and § 1983 are different. For example, ADEA plaintiffs may recover lost wages and liquidated damages from employers but may not recover damages for emotional pain and suffering. See C.I.R. v. Schleier, 515 U.S. 323 , 326 (1995) (“[T]he Courts of Appeals have unanimously held, and respondent does not contest, that the ADEA does not permit a separate recovery of compensatory damages for pain and suffering or emotional distress.”). In contrast, the Supreme Court has explained that “compensatory damages [in § 1983 suits] may include not only out-of-pocket loss and other monetary harms, but also such injuries as ‘impairment of reputation . . . , personal humiliation, and mental anguish and suffering.’” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299 , 307 (1986) (second alteration in original) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323 , 350 (1974)). 3. These distinctions demonstrate that the ADEA’s retaliation protections diverge significantly from those available under § 1983 First Amendment lawsuits. 9 Most 9 The list of differences between ADEA retaliation actions and § 1983 First Amendment retaliation actions discussed herein is not necessarily exhaustive. 24 STILLWELL V. CITY OF WILLIAMS significantly in our view, the ADEA’s retaliation provision provides less protection to an alleged victim of retaliation than does the First Amendment in several important ways— the ADEA’s protections exclude independent contractors and state employees, do not allow for suit against individuals, require plaintiffs to bear a heavier burden of proof as to causation, and exclude certain types of remedies like damages for mental suffering. And although the ADEA affords greater protection to some individuals that would not normally be covered by § 1983 because it subjects private employers to suits and it does not require proof of a municipal policy for those suing municipalities, this does not negate the fact that the ADEA provides less protection in the important ways discussed above. If we were evaluating a purely statutory right, as in Sea Clammers or Rancho Palos Verdes, the fact that some aspects of the ADEA’s protections are narrower would suggest preclusion. That is because, if a statute creating a right also creates a mechanism for enforcement that is more limited than § 1983, we assume Congress intended those limits to apply to that right. See Rancho Palos Verdes, 544 U.S. at 121 (“[T]he existence of a more restrictive private remedy for statutory violations has been the dividing line between those cases in which we have held that an action would lie under § 1983 and those in which we have held that it would not.”). When considering “substantial” constitutional rights, however, we are “[m]indful that we should ‘not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy.’” Fitzgerald, 555 U.S. at 256 (quoting Smith, 468 U.S. at 1012 ). Thus, if there are differences in the protections offered by the statute as compared to those provided by the Constitution, particularly if the protections  STILLWELL V. CITY OF WILLIAMS 25 granted by the statute are narrower, we will not hold § 1983 suits to be precluded unless Congress manifested an intent to preclude. See id. at 259 n.2 (explaining that the relevant inquiry is not whether “Congress envisioned that the two types of claims would proceed together,” but whether “Congress affirmatively intended to preclude,” § 1983 suits to vindicate constitutional rights) (emphasis added)). Here, as in Fitzgerald, the disparities—in particular those that demonstrate the ADEA’s protections are narrower than those guaranteed by the Constitution—are sufficient to cause us to conclude that, unless Congress manifested a clear intent to do so, § 1983 First Amendment retaliation suits are not precluded. And there is no express statement of preclusion in the text of the ADEA that would cause us to conclude that Congress did in fact affirmatively intend to preclude § 1983 First Amendment retaliation suits relating to speech about age discrimination. D. The Senate and House Reports on the ADEA also offer no reason to believe that Congress intended through the ADEA to preclude § 1983 First Amendment retaliation claims related to allegations of age discrimination. “Speech by citizens on matters of public concern lies at the heart of the First Amendment, which ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” Lane v. Franks, 134 S. Ct. 2369 , 2377 (2014) (quoting Roth v. United States, 354 U.S. 476 , 484 (1957)). Given the importance of speech in our democracy, it seems unlikely that Congress would narrow First Amendment protections without serious consideration. At a minimum, we would expect to find some discussion of such a significant change in the official Reports on the ADEA. Yet we find nothing in 26 STILLWELL V. CITY OF WILLIAMS those Reports suggesting that Congress even considered preclusion of First Amendment claims, let alone intended such a result. 10 Unlike in Smith where the legislative history made clear that the EHA was specifically designed to “protect[] the constitutional right of a handicapped child to a public education,” Smith, 468 U.S. at 1013 , the Senate Committee Report accompanying the original ADEA legislation says nothing about the purpose of the retaliation provision, and it never mentions the First Amendment. With respect to the retaliation provision, the full statement in the “section by section” analysis portion of the Report provides: [This subsection] makes it unlawful for employers, employment agencies and labor unions to discriminate against a person because he has opposed a practice made unlawful by this act, or because he has made a charge, testified, or assisted or participated in any manner in an investigation, proceeding, or litigation under this act. S. Rep. No. 90-723, at 8 (1967). This statement is essentially a recitation of the language of the retaliation provision and sheds no additional light on its purpose. The House Report accompanying the original legislation is similarly devoid of any indication that Congress considered the preclusive effect of the retaliation provision 10 We “rel[y] on official committee reports when considering legislative history.” Hertzberg v. Dignity Partners, Inc., 191 F.3d 1076 , 1082 (9th Cir. 1999). The parties have not pointed us to any other legislative history, beyond the Committee Reports, describing the purpose or intent of the retaliation provision of the ADEA.  STILLWELL V. CITY OF WILLIAMS 27 of the ADEA on § 1983 First Amendment retaliation claims. See H.R. Rep. No. 90-805, at 9 (1967). The House Report offered essentially the same recitation of the statutory language as the Senate Report, with no additional analysis that would shed light upon Congress’s intent. Id. (“[This subsection] makes it unlawful for employers, employment agencies and labor unions to discriminate against a person because he has opposed a practice made unlawful by this act, or because he has made a charge, testified, or assisted or participated in any manner in an investigation, proceeding, or litigation under this act.”). 11 E. The result that the retaliation provision of the ADEA does not preclude § 1983 First Amendment retaliation suits makes sense in light of the heightened level of protection that the Constitution affords First Amendment rights. Rights subject to heightened scrutiny are much more likely to be the basis of a successful constitutional claim than are those subject to rational basis review. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62 , 84 (2000) (explaining the greater difficulty in prevailing on an equal protection claim subject 11 This lack of comment on the retaliation provision’s relationship to the First Amendment is unsurprising because as originally enacted, the ADEA did not apply to states or the federal government. See Kimel v. Florida Bd. of Regents, 528 U.S. 62 , 68 (2000) (“In 1974, in a statute consisting primarily of amendments to the FLSA, Congress extended application of the ADEA’s substantive requirements to the States.”). The focus of the Reports accompanying those amendments was on the expansion of coverage, and there is no indication that Congress re- considered the retaliation provision in light of the expansion of coverage. See S. Rep. No. 93-690, at 55–56 (1974) (discussing the amendments to the definition of employer to expand coverage, but not mentioning the retaliation provision); H.R. Rep. No. 93-913, at 40–41 (1974) (same). 28 STILLWELL V. CITY OF WILLIAMS to rational basis review than on one subject to heightened scrutiny). When a statute creates a cause of action to enforce a right that would only be subject to rational basis review under the Constitution, it is very unlikely as a practical matter that the statute will provide less protection than the Constitution. For example, as the Supreme Court explained in Kimel, “[t]he [ADEA], through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard.” Id. at 86. As a consequence, we look to such a statute for the substance of the right, just as we do with a right created entirely by statute. And as with situations in which the right is entirely created by statute, see Rancho Palos Verdes, 544 U.S. at 121 , if Congress has also limited enforcement through the provisions in the statute, those limits indicate an intent to preclude recourse to § 1983 as a remedy. In contrast, where a constitutional right is protected by heightened scrutiny, neither the substance nor the enforcement of the right will typically depend on any statute further defining the right. We do not assume that when a statute merely touches upon conduct that would violate the Constitution, the statute precludes the enforcement of that constitutional right unless there is a clear indication of Congressional intent that it do so. See Fitzgerald, 555 U.S. at 256 , 259 n.2 (declining to preclude § 1983 suits alleging constitutional equal protection claims for gender discrimination in the absence of an indication that Congress affirmatively intended such preclusion). Consistent with this, courts have allowed § 1983 constitutional claims and statutory claims to coexist when  STILLWELL V. CITY OF WILLIAMS 29 the constitutional claim gets heightened scrutiny, but not when the constitutional claim gets rational basis review. For instance, in Fitzgerald, as discussed above, the Supreme Court held that Title IX does not preclude § 1983 suits alleging equal protection violations based on gender discrimination, 555 U.S. at 258 , which are subject to heightened scrutiny, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 , 135 (1994). Similarly, we have explained that Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of “race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e–2, does not preclude suits under § 1983 alleging constitutional equal protection violations for discrimination on the basis of race or sex, both of which receive heightened scrutiny under the Equal Protection Clause. Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051 , 1058 (9th Cir. 2009) (explaining that Title VII does not deprive plaintiffs of other avenues for asserting claims of race and sex discrimination) (citing Johnson v. Ry. Express Agency, Inc., 421 U.S. 454 , 459 (1975)); City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 , 440 (1985) (explaining that classifications based on race, alienage, national origin, and gender all receive heightened scrutiny). In contrast, in Smith, the Supreme Court held that the EHA precluded § 1983 equal protection claims regarding disability discrimination in education. Smith, 468 U.S. at 1009 . Disability, like age, is subject to rational basis review, not heightened scrutiny, under the Equal Protection Clause. See City of Cleburne, 473 U.S. at 446 . It is well established that First Amendment claims like Stilwell’s, that allege retaliation following speech on a matter of public concern, are reviewed with heightened scrutiny. Lane v. Franks, 134 S. Ct. 2369 , 2381 (2014) 30 STILLWELL V. CITY OF WILLIAMS (explaining that “a stronger showing [than legitimate government interests] may be necessary if the employee’s speech . . . involve[s] matters of public concern” (last alteration in original) (quoting Connick v. Myers, 461 U.S. 138 , 151–52 (1983))). Our holding today that § 1983 suits alleging retaliation in violation of the First Amendment are not precluded by the ADEA’s retaliation provision is thus consistent with the tendency of courts to conclude that there is a lack of preclusion when the right to be enforced is subject to heightened scrutiny. F. Contrary to Defendants’ argument, a different result is not required by our prior decision in Ahlmeyer v. Nevada System of Higher Education, 555 F.3d 1051 , 1054 (9th Cir. 2009), which held that the ADEA precludes § 1983 suits to remedy equal protection violations based on age discrimination. In Ahlmeyer, we compared § 1983 equal protection claims based on age discrimination in employment to such claims under the ADEA and determined that “the ADEA provides broader protection than the Constitution,” so “a plaintiff has ‘nothing substantive to gain’ by . . . asserting a § 1983 claim” in addition to an ADEA claim. Id. at 1058 (quoting Williams v. Wendler, 530 F.3d 584 , 586 (7th Cir. 2008)). In light of the ADEA’s greater protections, we held that its discrimination provisions are sufficiently comprehensive to preclude § 1983 equal protection claims.12 12 There is a circuit split on this issue. Compare, e.g., Hildebrand v. Allegheny County, 757 F.3d 99 (3d Cir. 2014) (holding that because the ADEA provides more expansive protection against age discrimination than the Equal Protection Clause, the ADEA precludes § 1983 suits  STILLWELL V. CITY OF WILLIAMS 31 Ahlmeyer’s holding was motivated at least in part by the fact that classifications based on age are subject to rational basis review. Ahlmeyer relied heavily on Zombro v. Baltimore City Police Department, 868 F.2d 1364 , 1366 (4th Cir. 1989), a pre-Fitzgerald case holding that § 1983 suits alleging age discrimination were precluded by the ADEA in part because of this level-of-scrutiny characteristic. See Ahlmeyer, 555 F.3d at 1057 . Zombro had emphasized that “the equal protection clause does not recognize a ‘class defined as the aged’ to be a suspect class in need of special protection in which alleged discrimination is subject to ‘strict judicial scrutiny,’” 868 F.2d at 1370 (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 , 313–14 (1976) (per curiam)), and that this differentiated age discrimination claims from “§ 1983 actions predicated on race, sex, or religious discrimination or an infringement of specific First Amendment rights.” Id. at 1370. Ahlmeyer itself also noted that, unlike “claims of discrimination based on race or sex [that] are entitled to heightened scrutiny, age discrimination claims under the Constitution are subject to rational basis scrutiny.” Ahlmeyer, 555 F.3d 1059 n.8. Thus, a plaintiff “has little to gain by circumventing the ADEA, which affords more protection in the area of age discrimination than does the federal Constitution.” Id. alleging equal protection violations based on age discrimination in employment), cert. denied, 135 S. Ct. 1398 (2015), with Levin v. Madigan, 692 F.3d 607 , 617 (7th Cir. 2012) (holding that “[a]lthough the ADEA enacts a comprehensive statutory scheme for enforcement of its own statutory rights, akin to Sea Clammers and Rancho Palos Verdes, . . . it does not preclude a § 1983 claim for constitutional rights” because of “the ADEA’s lack of legislative history or statutory language precluding constitutional claims, and the divergent rights and protections afforded by the ADEA as compared to a § 1983 equal protection claim” (citing Fitzgerald, 555 U.S. at 252 –53)). 32 STILLWELL V. CITY OF WILLIAMS Because the ADEA’s retaliation provision is critically different from the ADEA’s discrimination provision at issue in Ahlmeyer, that opinion is not controlling here. As explained above, the ADEA’s retaliation protections are narrower than the First Amendment’s in some important respects, whereas the ADEA discrimination provision provides more protection against age discrimination than does the Equal Protection Clause. Cf. Kimel, 528 U.S. at 86 (“Judged against the backdrop of our equal protection jurisprudence, it is clear that the ADEA is ‘so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.’” (quoting City of Boerne v. Flores, 521 U.S. 507 , 532 (1997)). Given the substantial difference between the level of scrutiny afforded age discrimination equal protection claims and First Amendment retaliation claims, we cannot assume that Congress intended the ADEA to affect the availability of § 1983 claims in the same manner in both subject areas. III. For the foregoing reasons, we REVERSE and REMAND for proceedings consistent with this opinion. FERNANDEZ, Circuit Judge, dissenting: I respectfully dissent. Our quest here is not to search for or to explicate constitutional principles; it is to search for congressional intent. That is to say, Congress can set up a statutory scheme wherein it demonstrates its intent to have that scheme, not 42 U.S.C. § 1983, apply to claims for enforcement of rights  STILLWELL V. CITY OF WILLIAMS 33 under the statute. See, e.g., Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 , 252–54, 129 S. Ct. 788 , 793–94, 172 L. Ed. 2d 582 (2009); Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1 , 13, 20–21, 101 S. Ct. 2615 , 2622–23, 2626–27, 69 L. Ed. 2d 435 (1981). Here our task is to determine whether Congress intended to make the ADEA 1 exclusive in that sense. We have already said that Congress did just that. Specifically, we have held that “the ADEA precludes the assertion of age discrimination in employment claims, even those seeking to vindicate constitutional rights, under § 1983.” Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051 , 1057 (9th Cir. 2009). In that case, lest there be any doubt, we went on to conclude that: “the ADEA is the exclusive remedy for claims of age discrimination in employment, even those claims with their source in the Constitution.” Id. at 1060–61. In Ahlmeyer, we were dealing with the claim of an older employee that her employer had discriminated against her on account of her age. Id. at 1054; see also 29 U.S.C. § 623(a)(1). The majority says that this case differs from Ahlmeyer because what is involved here is a claim of retaliation. 2 See 29 U.S.C. § 623(d). In effect, the majority says that Congress has had two different intents regarding the ADEA. The first of those relates to individuals whose need for protection formed the mainspring of the ADEA—employees 1 Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634. 2 Ahlmeyer did not draw that distinction. Of course, it is not at all unusual for those who make claims of discrimination to make claims of retaliation also. In fact, at the trial court level that happened in Ahlmeyer itself. See Ahlmeyer, 555 F.3d at 1054 n.1. 34 STILLWELL V. CITY OF WILLIAMS discriminated against on account of their age. See id. § 621; see also id. § 623(a)–(c). The second, somewhat more collateral, intention was designed to more fully protect the older employees for whom the ADEA was created. It relates to individuals who are retaliated against, not necessarily because of their own ages, but because they have “opposed any practice made unlawful” by the ADEA. Id. § 623(d). While the majority’s opinion is quite persuasively written, I am not quite persuaded because I do not believe that in creating this relatively simple piece of legislation Congress held two very different intentions regarding the ADEA. Those for whom the ADEA was primarily designed had to rely upon ADEA remedies alone, but those who were protected in order to assure that the protection of those in the first group would be more effective did not have their remedies so limited. The latter could spell out a § 1983 claim also. Nothing Congress said makes that so, 3 and I am unable to conclude that Congress contemporaneously held separate intentions when enacting and amending this fairly uncomplicated piece of legislation. Again, it is congressional intent that we must seek, and even if we ignore the broad and encompassing language of Ahlmeyer, I cannot say that Congress held those two separate intents. In short, I believe that in deciding this case we are bound by Ahlmeyer. Thus, I must respectfully dissent. 3 Indeed, the majority explains that the legislative history helps not at all.

2016-07-06 06:36:26.025072+00

DECISION AND JUDGMENT ENTRY Mary Warwick ("Mary") appeals the dismissal of her complaint by the Ross County Court of Common Pleas. She asserts that the trial court erred in dismissing her claim against Ralph Penisten and Dixie Starr ("the purchasers") because they were not bona fide purchasers for value. We disagree because competent, credible evidence supports the trial court's findings that: (1) the purchasers did not know that William Warwick ("William") was married to Mary at the time of the sale and (2) the purchasers paid fair market value for the property. She also asserts that the trial court erred in dismissing her claims against William for admeasurement and assignment of her dower rights because its decision is against the manifest weight of the evidence, contrary to law and against public policy. We disagree because Mary waived any right to dower in her marriage contract. Lastly, Mary asserts that the trial court erred in overruling her motion for a new trial. We do not address this argument because we do not have jurisdiction to consider it. Accordingly, we affirm the judgment of the trial court. I. William and Mary married in 1962 in Montreal, Quebec, Canada. Two days prior to their marriage, the Warwicks signed a "marriage contract." The contract provided that "[t]here shall be no dower, the future wife hereby renouncing to all (sic) dower for herself and for her child or children that may be born of the said intended marriage." At the time of the marriage, neither Mary or William resided in Quebec. Also at that time, William was the beneficiary of a trust created by his grandmother. The trust held title to a one-hundred ninety-seven acre farm in Ross County, Ohio. After William's father died, William inherited the farm pursuant to the terms of the trust. The Warwicks visited the Chillicothe area twice to visit the farm. On the second visit, in 1979, they met with Attorney Joseph Kear to discuss selling the property. In the summer of 1980 or 1981, the Warwicks visited Ross County for a third time and met Penisten, who was the tenant farmer on William's property. This was the only contact Penisten had with Mary until after the sale at issue. In 1982 or 1983, William sold his property for three hundred twenty five thousand dollars. He gave Mary ninety-five thousand dollars of the proceeds. The trial court found that this payment was not intended as payment for any dower interest in the property. In 1983, Rear's secretary deeded an approximately two acre tract in this property to William. Rear referred to this transaction as a "straw man" deed. In 1992, Mary separated from William and filed for a division of marital property and an order of spousal support in Ontario, Canada. At that time, the approximately two acre tract was the only real property owned by either of the Warwicks. The Canadian court issued an entry that provided, in part: "THIS COURT ORDERS AND ADJUDGES that the personal property of the parties had been divided by them to their mutual satisfaction and that such division shall compromise full and final equalization of the net family properties, of the parties." In 1993, William conveyed the approximately two acre tract to the purchasers by a deed wherein he was identified as single. The purchasers paid seven thousand four hundred dollars for the property. Mary was unaware of the sale until after it was completed. In 1995, Mary filed an action against William and the purchasers seeking admeasurement and assignment of her dower and the cash value of her dower rights in the approximately two acre tract. The purchasers filed a cross-claim against William. At trial Mary, William, and their son, John Warwick, testified. As of the date of the trial, the Warwicks remained married. After Mary finished presenting her case, both William and the purchasers moved for a Civ.R. 41 (B) (2) dismissal. The trial court granted the purchasers' motion but denied William's motion. At that point, the purchasers dismissed their cross-claim against William. Ultimately, the trial court found in favor of William. In so doing, the trial court determined that neither the marriage contract or the Canadian court order apply to the Ross County property because the issue of dower is governed by laws of the jurisdiction where the property is located. Through an application of Ohio law, the trial court determined that Mary has no right to an admeasurement, to an assignment of her dower, or to any other compensation for the dower. The trial court further found that the purchasers were bona fide purchasers for value. Accordingly, the trial court dismissed Mary's claims against all defendants. Mary appealed. Upon her request, we stayed the appeal and remanded this case to the trial court for consideration of her Civ.R. 60 (B) motion. In the Civ.R. 60 (B) motion, she asserted that she was entitled to relief from judgment because she had newly discovered evidence. The trial court denied the motion. Mary did not file a notice of appeal from the denial of the Civ.R. 60 (B) motion, seek leave to amend her original notice of appeal, or attempt to have the record of the Civ.R. 60 (B) proceedings transmitted to this court. We reinstated this appeal after the trial court denied Mary's motion. Mary asserts the following assignments of error: I. THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR DISMISSAL OF THE PENNISTEN (SIC)/STARR DEFENDANTS AND ITS FINDING THAT THEY WERE BONA FIDE PURCHASERS 1.) THE TRIAL COURT ERRED IN HOLDING THAT THE $7400.00 PURCHASE PRICE WAS FAIR MARKET VALUE 2.) THE TRIAL COURT ERRED IN HOLDING THAT THE DEFENDANTS PENNISTEN (SIC) AND STARR WHERE (SIC) WITHOUT KNOWLEDGE OR IMPLIED KNOWLEDGE. II. THE TRIAL COURT ERRED IN DISMISSING THE PLAINTIFF'S COMPLAINT AND IN ITS HOLDING THAT THE PLAINTIFF IS NOT ENTITLED TO THE RELIEF FOR WHICH SHE SEERS 1.) THE TRIAL COURT ERRED IN APPLYING THE SHORT v. CONN CASE TO THE FACTS BEFORE THE COURT IN THE MATTER AT HAND. 2.) THE COURTS (SIC) DISMISSAL OF THE PLAINTIFF'S COMPLAINT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, CONTRARY TO LAW, AND AGAINST PUBLIC POLICY. III. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR A NEW TRIAL. II. In her first and part of her second assignment of error, Mary argues that the trial court erred by granting the purchasers' motion to dismiss because she presented a prima facie case that the purchasers paid less than the property's true value and had knowledge sufficient to question William's representation that he was single. A Civ.R. 41 (B) (2) dismissal is used in non-jury actions and requires the trial court and reviewing court to apply different tests. Central Motors Corp. v. Pepper Pike (1979), 63 Ohio App. 2d 34,48. Civ.R. 41 (B) (2) provides: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all of the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52 if requested to do so by any party. (Emphasis added). Thus, the rule specifically provides that the trial court may consider both the law and the facts. Under the rule, the trial judge, as trier of fact, does not view the evidence in a light most favorable to the plaintiff, but instead actually determines whether the plaintiff has proven the necessary facts by a preponderance of the evidence. L.W. Shoemaker, M.D., Inc. v.Connor (1992), 81 Ohio App. 3d 748; Harris v. Cinncinnati (1992),79 Ohio App. 3d 163; Central Motors Corp., supra. Because the trial court is not required to view the evidence in the light most favorable to the plaintiff, even if the plaintiff has presented a prima facie case, dismissal may still be appropriate. Thus, where the trial court weighs the evidence and determines that the evidence makes it clear that the plaintiff will not prevail; the motion may be granted. See Fenley v. Athens CountyGenealogical Chapter (May 28, 1998), Athens App. No. 97CA36, unreported, citing 3B Moore, Federal Practice (1990), Paragraph 41.13 (4), at 41-177. However, if, in weighing the evidence, the trial judge finds that the plaintiff has proven the relevant facts by the necessary quantum of proof, the motion must be denied and the defendant required to put on evidence. CentralMotors Corp. at 49; Fenley. On appellate review, to the extent that the trial court's determination rests on findings of fact, we must not disturb the findings unless they are against the manifest weight of the evidence. Fenley. We will not reverse a finding of fact as against the manifest weight of the evidence if the trial court's finding is supported by some competent, credible evidence.Security Pacific Natl. Bank v. Roulette (1986), 24 Ohio St. 3d 17,20. However, application of legal standards to such findings are reviewable de novo as mixed questions of law and fact. Shoemaker;Fenley at 6, citing 3B Moore, Federal Practice (1990), Paragraph 41.13 (1), at 41-166. Mary asserts that the trial court erroneously made the following findings of fact: (1) the purchasers paid fair market value for the approximately two acre tract and (2) the purchasers had no notice that William was married. We first examine the trial court's finding that the purchasers paid fair market value for the approximately two acre tract. The purchasers paid seven thousand four hundred dollars for the property. John E. Lloyd appraised the property and valued it at eight thousand dollars. He opined that the highest and best use of the property would be residential. Lloyd's appraisal constitutes competent, credible evidence that the purchasers paid fair market value for the property. We next examine the trial court's finding that the purchasers had no knowledge that William was married at the time of the sale. William was listed as single on the deed. However, Mary and her son testified that she was once introduced to Penisten as William's wife at least ten years before the sale. The fact that William represented himself as single and the only opportunity for the purchasers to have learned otherwise happened at least ten years prior is competent, credible evidence to support the trial court's finding that the purchasers did not know that William was married at the time of the sale. Thus, neither finding is against the manifest weight of the evidence and the trial court did not err in dismissing with prejudice Mary's claim against the purchasers. Accordingly, we overrule her first assignment of error and that part of her second assignment of error dealing with the trial court's dismissal of Mary's claim against the purchasers. III. In the remainder of her second assignment of error, Mary argues that the trial court erred in dismissing her claims against William. She asserts that the trial court erred by: (1) applyingShort v. Conn (Jan. 25, 1994), Jackson App. No. 93CA709, unreported to this case, (2) issuing a holding that is contrary to public policy, and (3) issuing a holding that is contrary to law. The trial court dismissed her complaint after the court trial because she was not entitled to either an admeasurement or assignment of dower because William is alive and the Warwicks are still married. In so deciding, the trial court determined that the marriage contract did not apply to the property because the issue of dower is governed by the law of the site of the property, i.e., the lex rei sitae. We find that the trial court correctly determined that Ohio law applies to the property situated in Ohio. However, the marriage contract is not irrelevant simply because Ohio law applies. Rather, the marriage contract must comport with Ohio law to effectively waive dower. See, Kyle v. Kyle (1961),128 So. 2d 427 (an antenuptial agreement signed in Quebec, Canada, which provided "there shall be no dower" must comply with Florida law to effectively waive dower to Florida property). Under both Ohio and Canadian law, a woman may waive her dower rights through a valid agreement. Mintier v. Mintier (1876), 28 Ohio St. 307;Grogan v. Garrison (1875), 27 Ohio St. 50; Quebec Civil Code, Section 14311; see, also, Kajtar v. Kajtar (1992, Ontario Gen. Div.), 95 D.L.R.4th 525. In her pre-trial briefs and written arguments to the trial court, Mary asserted that the French-Canadian definition of dower is different than that commonly used in the United States. However, she provided no legal support for that conclusion. To the contrary, our research indicates that although dower has several meanings in the civil code of Quebec, the only meaning that can reasonably be given to the marriage contract is that of "customary dower," which is similar to the American definition. See, also, Henri Turgeon,Matrimonial Property Law in the Province of Quebec, in Matrimonial Property Law 139, 161 (Wolfgang Friedmann ed., 1955) ("Dower is the right of survivorship that belongs to the wife and the children. It is of two kinds, customary and prefixed. Customary dower is that imposed by the law, and consists in the usufruct for the wife of half the immovable property of the husband. Prefixed dower is conventional, and may consist in any agreement * * * .") The only difference between Ohio and French-Canadian dower is the size of the interest the wife receives. The interest in the property is identical. "But it is lawful to stipulate that there shall be no dower, and such a stipulation binds the children as well as the mother. The other types of dower, prefix or conventional, are created by a marriage contract. Since the Warwicks' marriage contract did not create a right to dower, the only type of dower that Mary could have waived was the customary dower. Mary has never argued that the marriage contract was void in any way. Therefore, we find that Mary waived her right to all dower in William's property, including the approximately two acre tract, by executing the marriage contract. Accordingly, the trial court did not err in finding that she was not entitled to the relief she sought and in dismissing her complaint with prejudice. We overrule the portion of her second assignment of error dealing with the trial court's dismissal of Mary's claims against William. IV. In her third assignment of error, Mary asserts that the trial court erred by refusing to grant her motion for a new trial. Although she refers to a motion for new trial in her assignment of error, in her argument, she only discusses the trial court's denial of her motion for relief from judgment that she filed while her appeal of the dismissal was pending. We stayed Mary's appeal after she filed a Civ.R. 60 (B) motion for relief from judgment. Mary's only notice of appeal provides that she appealed from the December 29, 1997 entry of the trial court. That entry deals only with the dismissal of Mary's complaint. She never sought to amend her notice of appeal to include the denial of her Civ.R. 60 (B) motion. Accordingly, we do not have jurisdiction to consider an appeal of her motion for relief from judgment. See, Trowbridgev. Bd. of Commissioners for Scioto Cty. (Dec. 1, 1998), Scioto App. No. 97CA2527, unreported (no jurisdiction to consider appeal pursuant to R.C. Chapter 5563, when notice of appeal states that appeal is taken pursuant to R.C. 2505.01 and R.C. 2506.01) Further, the record was transmitted before appellant filed her Civ.R. 60 (B) motion. She never sought to supplement the record with any of the filings regarding her motion, including the trial court's decision on the motion. The appellant bears the burden of showing error by reference to the record. State v. Prince (1991),71 Ohio App. 3d 694, 698-699. Without a record, we must presume that the judgment and proceedings below were valid and affirm the judgment. Id. Accordingly, we overrule her third assignment of error because we do not have jurisdiction to consider it. V. In sum, we overrule all of Mary's assignments of error and affirm the judgment of the trial court. JUDGMENT AFFIRMED. 1 This section provides: "If there be no contract of marriage, or if in that which has been made the parties have not explained their intentions on the subject, customary dower accrues by the sole operation of law. 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 Ross County Court of Common Pleas 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. Exceptions. Evans, J. and Harsha, J.: Concur in Judgment and Opinion. For the Court BY: _________________________ Roger L. Kline, Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes afinal judgment entry and the time period for further appealcommences from the date of filing with the clerk.

2016-07-06 06:36:26.113112+00

OPINION *Page 2 {¶ 1} Appellant Matthew Stein appeals from his conviction for felonious assault in the Court of Common Pleas, Richland County. The relevant facts leading to this appeal are as follows. {¶ 2} On October 27, 2003, Aiden Stein was born to Arica Heimlich and Appellant Matthew Stein. Aiden was born with his umbilical cord around his neck, but he suffered no trauma as a result. For the first four and one-half months of his life, Aiden was generally a normally developing baby boy. On March 14, 2004, Arica, his mother, woke Aiden up and fed him at approximately 6:30 AM. When she left for work at 7:43 AM, leaving Aiden in appellant's care, the baby appeared fine. However, at about 10:30 AM that day, appellant banged on the door of his neighbor, Gerald Holland, stating that Aiden had stopped breathing. {¶ 3} Holland immediately took the baby from appellant's arms and checked him for signs of choking. Finding nothing, Holland began performing CPR and directed his girlfriend to call 911. Paramedics arrived about five minutes later and transported Aiden to Med Central Hospital. The emergency room physician, Dr. Anthony Midkiff, was told by the paramedics and appellant that the baby had gagged while nursing from a bottle. Dr. Midkiff later testified that he did not see the usual symptoms of choking in Aiden during the examination. {¶ 4} Aiden was intubated and transported by helicopter to Akron Children's Hospital. Dr. Daryl Steiner thereupon took over treatment of Aiden. A CT scan revealed evidence of extensive bleeding around Aiden's brain, as well as indications of "older" blood in the baby's subdural region. Dr. Steiner further observed indication of *Page 3 brain swelling and discovered a skull fracture on the left side of Aiden's skull. Dr. Steiner also observed Aiden had severe retinal hemorrhages, not in the nature of hemorrhages caused by birth. His eventual diagnostic conclusion was that Aiden had suffered brain damage caused by physical abuse. Two other examining physicians at Akron Children's, Dr. Vivek Malhotra and Dr. John Pope, concurred in the diagnosis. {¶ 5} In the meantime, the Mansfield Police Department and Richland County Children's Services began an investigation concerning Aiden's injuries, which had left him in a permanent vegetative state. On April 7, 2005, the Richland County Grand Jury indicted appellant on one count of felonious assault and one count of child endangering, both felonies of the second degree. The matter proceeded to a jury trial which commenced on August 25, 2005, and lasted until September 7, 2005. The State's theory of the case was premised on Shaken Baby Syndrome. At the conclusion of the trial, the jury found appellant guilty on both counts of the indictment. {¶ 6} A sentencing hearing was conducted on September 12, 2005. The trial court thereupon imposed the statutory maximum sentence of eight years in prison for the offense of felonious assault. The court further found the child endangering charge to be an allied offense of similar import; hence, appellant was not sentenced for said offense. {¶ 7} On October 13, 2005, appellant filed a notice of appeal. He herein raises the following sole Assignment of Error: {¶ 8} "I. THE INEFFECTIVENESS OF DEFENSE COUNSEL VIOLATED APPELANT'S (SIC) RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT TO THE *Page 4 UNITED STATES CONSTITUTION AND ARTICLE I, S. 16 OF THE OHIO CONSTITUTION." I. {¶ 9} In his sole Assignment of Error, appellant contends he was deprived of his right to the effective assistance of counsel at trial. We disagree. {¶ 10} Our standard of review is set forth in Strickland v.Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. Ohio adopted this standard in the case of State v. Bradley (1989),42 Ohio St. 3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel's assistance was ineffective; i.e., whether counsel's performance fell below an objective standard of reasonable representation and was violative of any of his or her essential duties to the client. If we find ineffective assistance of counsel, we must then determine whether or not the defense was actually prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires a showing that there is a reasonable probability that but for counsel's unprofessional error, the outcome of the trial would have been different. Id. Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie (1998),81 Ohio St. 3d 673, 675, 693 N.E.2d 267. *Page 5 Seating of Jurors Schwartz and Smith {¶ 11} Appellant first argues that his trial counsel was ineffective for failing to object to the seating of two jurors, Allen Schwartz and Lindsey Smith, who he alleges had "direct connections" to certain witnesses in the case.1 Appellant's Brief at 5. {¶ 12} "[T]he selection and qualification of jurors are largely under the control of the trial court and, unless an abuse of discretion is clearly shown with respect to rulings thereon, they will not constitute ground for reversal." State v. Trummer (1996), 114 Ohio App. 3d 456, 461,683 N.E.2d 392, citing Berk v. Matthews (1990), 53 Ohio St. 3d 161,559 N.E.2d 1301. {¶ 13} Appellant herein chiefly raises the issue of "implied bias," a principle we have previously addressed only in limited fashion. SeeState v. Winegardner (Feb. 1, 1984), Licking App. No. CA-2958. InState v. Vasquez, Franklin App. No. 03AP-460, 2004-Ohio-3880, the court recognized: "Because the bias of a juror will rarely be admitted by the juror himself, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it, it necessarily must be inferred from surrounding facts and circumstances." Id. at ¶ 14, quoting McDonough Power Equipment, Inc. v.Greenwood (1984), 464 U.S. 548, 558, 104 S. Ct. 845, 849, 78 L. Ed. 2d 663, Brennan, J., concurring (internal quotations and additional citations omitted). {¶ 14} "[C]ourts have been inclined to presume bias in `extreme' situations where the prospective juror is connected to the litigation at issue in such a way that is highly unlikely that he or she could act impartially during deliberations." Vasquez, supra, at ¶ *Page 6 14 Nonetheless, a juror "* * * ought not to suffer a challenge for cause when the court is satisfied from an examination of the prospective juror or from other evidence that the prospective juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial." State v. Duerr (1982), 8 Ohio App. 3d 404,457 N.E.2d 843, paragraph two of the syllabus. {¶ 15} The record indicates Juror Allen Schwartz is employed as an administrator at Med Central Hospital, where Aiden was first taken on March 14, 2004. Several testifying physicians from Med Central testified at trial. One of them, Dr. Anthony Midkiff, was a work acquaintance of Schwartz. Upon being questioned by the court during voir dire, Schwartz stated that his acquaintance with Dr. Midkiff would not influence his judgment regarding the physician's testimony. Tr. I at 40. Schwartz also stated he could think of no reason that he would not want someone like himself on the jury, were he to be in appellant's place. Tr. I at 154-156. Schwartz also noted he was aware that appellant had filed a lawsuit against the hospital, but denied it would impact his jury service.2 Tr. I at 155. {¶ 16} The second instance cited by appellant centers on Juror Lindsey Smith. She indicated during voir dire that her children are seen by pediatrician Dr. Brad Olson, another Med Central physician, who had assisted in Aiden's care. Appellant suggests that Smith was dependent on Dr. Olson's expertise to treat her own children, and this would create concern in her mind were she to consider the possibility of Dr. Olson being mistaken in Aiden's treatment. Nonetheless, Smith stated that she would not treat Dr. Olson's testimony in a different manner than the other witnesses, and that she *Page 7 would be objective in listening to Dr. Olson on the stand. Tr. I at 39-40. Smith indicated that she had seen a picture of Aiden, but that it would not affect her judgment, and she otherwise had not experienced any pre-trial publicity. Tr. I at 85-86. {¶ 17} Having reviewed the pertinent voir dire portions of the trial transcript, we are unable to conclude the trial court would have abused its discretion in seating Jurors Schwartz and Smith, such that we find no violation of trial counsel's duty to appellant. Duerr; Bradley, supra. We therefore find no merit in appellant's ineffective assistance claims in regard to trial counsel's performance during voir dire. Misconduct of Juror Smith {¶ 18} Appellant next argues that trial counsel was ineffective for failing to object to the court's denial of a hearing on the allegation of juror misconduct by Juror Smith. {¶ 19} Toward the end of the trial, the court obtained information that Smith had allegedly had conversations about the case with an individual named Shawn Berendt at her place of employment, Flex-Pak, Inc. When confronted by the trial judge, Smith repeatedly denied knowing anyone by that name. Tr. VIII at 1876. In response to further questioning, Smith stated she had only mentioned appellant's name at work, just one time. Tr. VIII at 1877. She denied making any statements concerning the evidence in the case. Id. Although the court thereafter allowed each side the opportunity to explore the conversation further, neither the prosecutor nor defense counsel chose to do so. About six months after the trial, appellant's counsel moved for a new trial on the alleged misconduct, which the court denied. {¶ 20} "Conversations by a third person with a juror during the progress of a trial for the purpose of influencing the verdict may invalidate the verdict, but where there is *Page 8 nothing in the record to demonstrate that the decision might have been influenced by such conversation, the refusal of the trial court to grant a new trial will not be disturbed." State v. Hipkins (1982),69 Ohio St. 2d 80, 83, 430 N.E.2d 943, citing State v. Higgins (1942),70 Ohio App. 383, 41 N.E.2d 1022. Furthermore, as an appellate court reviewing a claim of ineffective assistance, we "must keep in mind that different trial counsel will often defend the same case in different manners."State v. Samatar, 152 Ohio App. 3d 311, 787 N.E.2d 691, 2003-Ohio-1639, ¶ 88. {¶ 21} Upon review of the record, we are unpersuaded that appellant was prejudiced by his trial counsel's performance, in regard to the issue of Juror Smith's third-party contact, to the degree that the outcome of the trial would be suspect. Strickland, supra. {¶ 22} Appellants' sole Assignment of Error is therefore overruled. {¶ 23} For the foregoing reasons, the judgment of the Court of Common Pleas, Richland County, Ohio, is affirmed. Gwin, P. J., Wise, J. and Farmer, J., concur. *Page 9 JUDGEMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. Costs to appellant. 1 Appellant also briefly mentions Juror Birmelin in his brief, but does not develop the argument. See App.R. 16(A)(7). 2 We note appellant's trial counsel did challenge Schwartz because of his knowledge of the lawsuit; however, the court overruled said challenge. Tr. I at 246-247. *Page 1

2016-07-06 06:36:26.146712+00

OPINION {¶ 1} Plaintiff-appellant, Robert Burrows, appeals the judgment of the Portage County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Ultimate Wash, Ltd. For the following reasons, we affirm the decision of the court below. {¶ 2} On Sunday, February 9, 2003, at about 3:00 p.m., Robert Burrows and his wife, Norma, pulled into the Ultimate Wash self-service car wash off of State Route 82, in Aurora, Ohio. The day was bright and windy. It had snowed a day or two before and the parking lot at the Ultimate Wash had been plowed. Patches of snow and ice were still visible in the parking lot. Earlier that day, between 11:30 a.m. and noon, Kerry Dechant, owner of the Ultimate Wash, had salted the parking lot. The floors of the bays and the sidewalk around the car wash are heated. The sidewalk was clear of snow and ice on the day in question. {¶ 3} Burrows pulled into the third of five bays. He exited the vehicle and attempted to feed dollar bills into the washing meter. The meter would not accept the bills so Burrows left the bay to make change. Burrows made his way toward the bill changing machine using the heated sidewalk. As Burrows passed the first washing bay, he stepped off the sidewalk onto the parking lot to avoid water spray coming from the bay. Burrows slipped and fell on the parking lot, hitting his head and suffering a concussion. Norma was notified by another patron that Burrows had fallen. Norma testified that there was black ice in the area where Burrows fell. {¶ 4} On May 10, 2004, Burrows filed suit against Ultimate Wash alleging negligence. Ultimate Wash moved for summary judgment. On May 25, 2005, the trial court entered judgment in favor of Ultimate Wash. {¶ 5} Burrows timely appeals and raises the following assignment of error: "The Trial Court erred in granting Defendant's Motion for Summary Judgment since genuine issues of material fact existed demonstrating that Defendant Ultimate Wash, LTD. was negligent in creating a hazardous condition on its premises which proximately caused Plaintiff-Appellant Robert Burrows to sustain injury." {¶ 6} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) the evidence shows "that there is no genuine issue of material fact" to be litigated, (2) "[t]he 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 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 the party's favor." A trial court's decision to grant summary judgment is reviewed by an appellate court under a de novo standard of review. Grafton v. Ohio Edison Co.,77 Ohio St. 3d 102, 105, 1996-Ohio-336. A de novo review requires the appellate court to conduct an independent review of the evidence before the trial court without deference to the trial court's decision.Brown v. Cty. Commrs. of Scioto Cty. (1993),87 Ohio App. 3d 704, 711 (citation omitted). {¶ 7} "In order to establish actionable negligence, the plaintiff must show the existence of a duty, a breach of the duty, and an injury proximately resulting therefrom." Texler v.D.O. Summers Cleaners Shirt Laundry, Co., 81 Ohio St. 3d 677,680, 1998-Ohio-602 (citation omitted). {¶ 8} Initially, we must determine whether Burrows' fall was the result of a natural or an unnatural accumulation of ice and snow. {¶ 9} A business owner or occupier "owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger." Paschal v. Rite Aid Pharmacy,Inc. (1985), 18 Ohio St. 3d 203. However, an owner does not owe a duty to invitees to remove natural accumulations of snow and ice. "The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of premises may reasonably expect that a business invitee on his premises will discover those dangers and protect himself against them."Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, paragraph two of the syllabus. {¶ 10} This court has adopted a definition of unnatural accumulations of snow or ice as being "man-made" or "man-caused" accumulations. Lawrence v. Jiffy Print, Inc., 11th Dist. No. 2004-T-0065, 2005-Ohio-4043, at ¶ 15, citing Porter v. Miller (1983), 13 Ohio App. 3d 93, 95. "An unnatural accumulation refers to causes and factors other than the winter's low temperatures, strong winds, drifting snow, and natural thaw and freeze cycles. Unnatural accumulations are caused by a person doing something that would cause ice and snow to accumulate in an unexpected place or way." Id. at ¶ 14 (citation omitted). {¶ 11} Burrows argues the ice that caused him to fall was an unnatural accumulation, being the result of water running off vehicles exiting the washing bays and mist from the hoses. Since Burrows' theory of how the ice that caused him to fall formed is not an unreasonable inference from the evidence in the record, we must accept that inference in his favor. Civ.R. 56(C). Accordingly, a genuine issue of material fact exists whether Ultimate Wash owed Borrows a duty to maintain the car wash so that Burrows would not be unnecessarily and unreasonably exposed to the danger caused by ice forming outside the bays. See Notmanv. AM/PM, Inc., 11th Dist. No. 2002-T-0144, 2004-Ohio-344, at ¶ 14 (a genuine issue of material fact exists whether the ice accumulations that caused plaintiff to fall were unnatural "in that they could have been formed by mist or runoff from the hoses at the car wash"). {¶ 12} The second element of Burrows' claim is whether Ultimate Wash breached that duty of care, i.e. whether Ultimate Wash was "actively negligent in permitting and/or creating a dangerous or unnatural accumulation of snow or ice." Lopatkovichv. Tiffin (1986), 28 Ohio St. 3d 204, 207. "Even if a hazard is created by some act of a defendant * * *, plaintiff has the burden of proving * * * that such act was a negligent act * * *."Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537, 541. "Whether the duty of ordinary care * * * requires [a business owner] to prevent, remove, or warn against a particular hazard will necessarily depend on factor[s] such as the potential hazard involved, the opportunity which * * * an invitee * * * would * * * have to avoid that potential hazard by the exercise of ordinary care, and the practicability of preventing, removing or warning against such hazard." Id. at 541-542. {¶ 13} The undisputed facts of the present case demonstrate that Ultimate Wash did all that it could reasonably be expected to do to protect its invitees from the danger posed by freezing runoff from the washing bays. The parking lot had been plowed since the previous snowfall. Dechant had salted the area outside the washing bays earlier that day. There were signs posted in all the bays warning that "bays may be slippery when wet or icy." The floors of the bays were heated. There was a sidewalk leading from the bays to the bill changing machine which was also heated and free from ice on the day in question. {¶ 14} The risk of freezing water is inherent in the operation of any car wash in a climate where the temperature may remain below freezing for weeks at a time. Ultimate Wash's duty is not to guarantee that ice from runoff water never forms, but to ensure that its patrons were not unreasonably nor unnecessarily exposed to that danger when it occurs. The danger of freezing runoff or mist in the operation of a car wash is one that cannot be completely avoided. Accordingly, it is incumbent upon the business owner to take reasonable precautions to minimize the risk and upon invitees to take reasonable precautions to protect themselves from this risk.1 {¶ 15} Burrows' own duty of care leads to a consideration of the third element of the claim, the proximate cause of Burrows' injury. "[E]ven when an owner or occupier is aware of an unnatural accumulation of ice and breaches its duty by failing to remove or warn, the owner or occupier will not be liable `if the owner or occupier and the invitee are equally aware of the dangerous condition and the invitee voluntarily exposes himself to the hazard, the owner or occupier will not be liable.'"Notman, 2004-Ohio-344, at ¶ 16 (citation omitted); Bowins v.Euclid Gen. Hosp. (1984), 20 Ohio App. 3d 29, 31. {¶ 16} Burrows fell only after he left the heated sidewalk. Burrows testified that he was aware of snow and ice in the parking area and that the snow and ice were clearly visible. However, Burrows decided to cut across the parking lot because of spray coming out of the first bay. Burrows' decision to leave the ice-free sidewalk, rather than waiting for the person using the first bay to change the direction of the spray, constitutes Burrows' own failure to exercise ordinary care. But for Burrows' decision to leave the sidewalk, Burrows would have been able to reach the money changing machine without encountering any accumulation of snow or ice. {¶ 17} In sum, Ultimate Wash's duty to Burrows "was to keep [its] premises in a reasonably safe condition and to warn [Burrows] about any hidden dangers of which [it] had or should have had knowledge." Estate of Mealy v. Sudheendra, 11th Dist. No. 2003-T-0065, 2004-Ohio-3505, at ¶ 29. Ultimate Wash was cognizant of the danger of ice forming outside the washing bays and took reasonable precautions, plowing and salting the parking area and providing heated walkways. Ultimate Wash warned Burrows of the danger by posting signs warning of icy conditions. Burrows testified that the parking area had been plowed but that patches of snow and ice remained; that the walkway was clear; that nothing prevented him seeing the snow and ice in the parking area; and that he chose to walk in the parking area because of water spray coming from one of the washing bays. Based on the record before us, Burrows has failed to demonstrate that a genuine issue of material fact exists regarding the elements of breach of duty and proximate cause. Burrows' assignment of error is without merit. {¶ 18} For the foregoing reasons, the judgment of the Portage County Court of Common Pleas granting summary judgment in Ultimate Wash's favor is affirmed. Rice, J., concurs, O'Toole, J., concurs in judgment only. 1 Although this court has declined to do so, other appellate districts have held that the dangers posed by freezing runoff from a car wash constitute an "open and obvious" hazard relieving the operator of a car wash from any duty toward its patrons relative to freezing runoff. See Couture v. Oak Hill Rentals,Ltd., 6th Dist. No. OT-03-048, 2004-Ohio-5237, at ¶ 18; Bevinsv. Arledge, 4th Dist. No. 03CA19, 2003-Ohio-7297, at ¶ 19.

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JOURNAL ENTRY and OPINION {¶ 1} Appellant Kevin Corrigan, Sr. appeals from the trial court's resentencing him to a term of eight years on three counts, each to run consecutively for a total of twenty-four years. On May 25, 2000, this court in State v.Corrigan,1 (hereinafter referred to as Corrigan I) affirmed in part, reversed in part, and remanded Corrigan's original case for resentencing. On June 3, 2002, the trial court resentenced Corrigan as ordered by this court's remand Corrigan appeals and assigns the following errors for our review: {¶ 2} "I. A 31 month delay between remand from this court to resentencing violated appellant's Sixth Amendment speedy trial rights." {¶ 3} "II. The trial court erred by ordering appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14(E)(4)." {¶ 4} Corrigan filed a pro se supplemental brief on February 20, 2003, which this court accepted for review. He presents the following additional errors for review: {¶ 5} "I. The sentencing court erred to the prejudice of the appellant by failing to discharge the appellant when a thirty-six month delay between remand and resentencing resulted in a violation of his right to a speedy trial under theSixth Amendment to the Constitution of the United States." {¶ 6} "II. The trial court prejudiced the appellant's due process rights, and further offended his right to a speedy trial, by failing to consider and address both maximum and consecutive sentencing issues on remand" {¶ 7} "III. The trial court committed prejudicial and reversible error by imposing consecutive sentences when its stated reasons for imposing such are in stark contrast to the evidence contained within the court's record." {¶ 8} We will review the assigned errors jointly except where they raise distinct and separate issues. {¶ 9} Having reviewed the record and pertinent law, we affirm Corrigan's sentence. The apposite facts follow. {¶ 10} In Corrigan I, Corrigan appealed his plea to three counts of attempted rape and a twenty-four year sentence. This court in Corrigan I affirmed Corrigan's guilty plea and reversed and remanded his consecutive sentence. The state and Corrigan agree that the trial court resentenced Corrigan some thirty-one months after the remand was issued in Corrigan I. At the resentencing hearing, the trial court, pursuant to this court's order, only resentenced Corrigan on the consecutive portion of his sentence. {¶ 11} At the sentencing hearing, Corrigan's wife, adult son who was not a victim, teenage daughter, and sister-in-law testified on his behalf. They requested Corrigan receive a concurrent sentence and promised to keep him away from children. They claimed the family could not heal as long as Corrigan was in prison. {¶ 12} Corrigan's wife admitted she suspected her husband was abusing the victim and at one time found Corrigan lying on the kitchen floor with his pants unzipped while the victim knelt beside him, pleading with his dad to not to make him do it. The victim's aunt testified that the victim at first denied the abuse had occurred; and to this day does not talk about it, and he has refused to seek counseling. {¶ 13} The prosecutor presented to the court the victim's police statement detailing the long period of sexual abuse by his father. The prosecutor also detailed Corrigan's prior convictions. In 1977, Corrigan broke into the home of an elderly woman and attempted to rape her. In 1986, Corrigan was convicted of sexual imposition involving a family friend's young daughter. {¶ 14} The victim recalled the first time his father abused him. The victim received a bike for his birthday that was stolen. His father forced him to perform oral sex in order to get a new bike. The abuse continued for about two to three years. The victim eventually came forth with his allegations out of fear for his younger sister. {¶ 15} At the hearing, Corrigan apologized to his son for "any wrongs I've done to him" and asked the court for mercy. {¶ 16} In determining the appropriateness of the consecutive sentence, the trial court considered the following factors: (1) the victim was approximately seven years old when the abuse started, (2) the father-son relationship between Corrigan and the victim facilitated the offense, (3) Corrigan had prior convictions for sexual offenses, and (4) he abused both alcohol and drugs. {¶ 17} In both of his first assigned errors, Corrigan argues the unnecessary delay in resentencing him violates his rights under Crim.R. 32(A) and the Sixth Amendment of the U.S. Constitution. We disagree. {¶ 18} The parties agree the delay between our remand and the resentencing amounted to thirty-one months. The issue is whether this delay is presumptively prejudicial, requiring a dismissal of the case. In State v. Taylor,2 this court held Crim.R. 32 does not apply to resentencing. We, therefore, proceed to analyze the delay in resentencing pursuant to the Sixth Amendment of the U.S. Constitution. Therefore, in order to resolve this issue, we look to the criteria set forth in Barker v.Wingo,3 which are the length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. {¶ 19} We agree the court's failure to act within a reasonable time in sentencing appellant is not the better course of action. However, the concern is whether Corrigan was prejudiced. This court has held that a twenty-two month delay between remand and resentencing is prejudicial when the appellant is out on bond.4 In City of Euclid v. Brackis, this court found Brackis had been out of jail on bond and to return Brackis to jail after he had been out of jail on bound to serve the remaining two months would be extremely prejudicial. {¶ 20} In the instant case, Corrigan was in jail and not out on bond. Therefore, because he was in jail for a twenty-four year sentence, the thirty-one month delay did not result in prejudice like in Brackis. {¶ 21} Corrigan, however, argues he was deprived of his ability to immediately appeal this court's affirmance of his guilty plea until he was resentenced. However, the Supreme Court has jurisdiction over "judgments" from the court of appeals. Art. IV Section 2(B)(2) provides: {¶ 22} "(2) The supreme court shall have appellate jurisdiction as follows: {¶ 23} "* * * {¶ 24} "(b) In appeals from the courts of appeals in cases of felony on leave first obtained." {¶ 25} The Ohio Supreme Court in State v. Robinson5 explained it has jurisdiction in felony cases to review a "judgment" of the court of appeals as distinguished from a "final order." Therefore, the judgment of our court affirming Corrigan's guilty plea, and reversing and remanding for resentencing was appealable to the Supreme Court of Ohio once our decision was entered in Corrigan I. Accordingly, Corrigan was not prejudiced by the trial court's delay, and we overrule his first assigned error. {¶ 26} Corrigan argues in his second assigned error and third assigned pro se error, that the trial court erred by ordering the sentences to run consecutively, because it failed to set forth findings with reasons in support of the consecutive sentence and because the evidence did not support the sentence. Our review of the sentencing transcript indicates the trial court adhered to R.C. 2929.14(E). {¶ 27} In imposing consecutive prison terms for convictions of multiple offenses, the trial court must make certain findings enumerated in R.C. 2929.14(E)(4). According to this statute, a court may impose consecutive sentences only when it concludes that the sentence is (1) necessary to protect the public from future crime or to punish the offender; (2) not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (3) the court finds one of the following: (a) the crimes were committed while awaiting trial or sentencing, under sanction or under post-release control; (b) the harm caused by multiple offenses was so great or unusual that a single prison term would not adequately reflect the seriousness of the offense; or (c) the offender's criminal history demonstrates that consecutive sentences are necessary to protect the public from future crime.6 {¶ 28} When the trial court makes the above findings, it must also state its reasons on the record why it made the findings.7 According to the Ohio Supreme Court's opinion in State v. Comer,8 the sentencing court must align its statutory findings for imposing the consecutive sentence with its reasons. Here, the trial court set forth the statutory findings in support of the consecutive sentence and aligned its reasons in support of each finding. {¶ 29} First, in finding that a consecutive sentence is "necessary to protect the public from future crime or to punish the offender," the trial court noted that along with his current sex offenses, Corrigan is a sexual predator and has two prior sexual offenses. The court also found the consecutive sentence is necessary to punish Corrigan because the crimes involved his own son. {¶ 30} Corrigan contends in his pro se assigned error that because the crime was committed against his son and not the public, he did not pose a danger to the public. However, he fails to realize the fact he violated the trust of his son indicates an especially heinous crime. This, in addition to the fact he committed crimes against strangers in the past, indicates he is a danger to the public. {¶ 31} Second, the trial court, in finding that the consecutive sentence is not disproportionate to the seriousness of Corrigan's conduct, reasoned that the crimes involved the abuse of Corrigan's son, who was under the age of ten years old. Corrigan contends in his pro se assigned error that simply because he committed the act against his son should not result in a consecutive sentence, because such a conclusion results in "per se" consecutive sentences for parents who sexually abuse their children. {¶ 32} However, the trial court's finding does not lead to this conclusion. In the instant case, the court found the abuse against his son occurred over many years. The court also cited one instant, where Corrigan forced his son to perform oral sex to earn a new bike to replace his stolen one. This type of behavior against one's own child is reprehensible. Therefore, along with the fact he committed these crimes against his son, the length of the abuse and the nature of it, was also part of the trial court's consideration. Furthermore, R.C. 2929.14(E) requires additional findings by the court, which prevents" per se" consecutive sentences as alleged by Corrigan. {¶ 33} Third, the trial court also found that a consecutive sentence is not disproportionate to the danger Corrigan poses to the public. The trial court noted that in addition to the current sexual offenses, Corrigan had two prior convictions for sexual offenses, and the fact that Corrigan is a sexual predator. {¶ 34} Finally, the court found that the harm caused was so great that no single prison term adequately reflects the seriousness of the crime. The court stated the abuse occurred over a period of years, adults suspected the abuse but did nothing, and the psychological effect of all of this on Corrigan's son. The court also found Corrigan's history of criminal conduct makes multiple terms necessary. {¶ 35} Although as Corrigan contends in his pro se brief, the son contended at the hearing he just wanted to get on with his life and has not had counseling, it is not hard to imagine a young child, abused by his father, would suffer psychological harm. Further-more, the trial court also found Corrigan's prior criminal history justified the consecutive sentence. Therefore, whether there was psychological harm to the victim or not is irrelevant, because the trial court need only find one of the factors under R.C. 2929.14(E)(3) applies. {¶ 36} Corrigan also relies on this court's case of State v.De Amiches9 in arguing the court cannot rely on the fact the victim was his son to enhance the penalty, because it is an element of the offense. However, in the instant case, the fact the victim is related to the offender is not an element of the offense of attempted rape. Therefore, the precedent of DeAmiches does not apply. {¶ 37} Also, contrary to Corrigan's assertion, the trial court properly stated that Corrigan showed no remorse for his crime. The trial court referred to the lack of Corrigan's remorse in statements he made to his probation officer in the presentence report. In the presentence investigation report, Corrigan denied the abuse occurred and placed the blame on his son. Corrigan contended his son was lying because he was mad that Corrigan would not permit him to live at home. Therefore, the trial court properly referred to the lack of remorse Corrigan showed in the presentence report. {¶ 38} Finally, we note, contrary to Corrigan's assertion, R.C. 2929.14(E)(4) does not require the trial court to specifically state on the record that it has considered concurrent sentences before imposing consecutive sentences.10 {¶ 39} Based on the foregoing, the trial court adhered to the mandate of R.C. 2929.14(E) and was meticulous in setting forth its findings and adjacent reasons. Accordingly, Corrigan's second assigned error and third assigned pro se error are overruled. {¶ 40} In Corrigan's second assigned pro se error he contends the trial court erred by not also determining on remand whether the maximum sentence was appropriate. {¶ 41} This court in Corrigan I remanded the sentence only as to the consecutive sentence and did not vacate the entire sentence pursuant to the dictates of State v. Bolton.11 The trial court, therefore, did not err by failing to conduct an entirely new sentencing hearing, as the law of the case doctrine compels trial judges to follow the mandates of reviewing courts.12 "A judge is without authority to extend or vary the mandate given."13 Therefore, the trial court was without authority to consider anything but the consecutive sentence and did not err by failing to consider whether the maximum sentence was appropriate. Accordingly, Corrigan's second assigned pro se error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Corrigan, A.J., and Calabrese, Jr., J., Concur. 1 State v. Corrigan (May 25, 2000), Cuyahoga App. No. 76124. 2 (Oct. 29, 1992), Cuyahoga App. No. 63295. 3 (1972), 407 U.S. 514, 530, 92 S. Ct. 2182,33 L. Ed. 2d 101. 4 City of Euclid v. Brackis (1999), 135 Ohio App. 3d 729. 5 161 Ohio St. 213. 6 R.C. 2929.14(E). 7 State v. Gray (February 22, 2001), Cuyahoga App. No. 77849. 8 State v. Comer, 99 Ohio St. 3d 463, 2003-Ohio-4165, at paragraph 1 of syllabus. 9 (Mar. 1, 2001), Cuyahoga App. No. 77609. 10 State v. Peoples, Cuyahoga App. No. 82308, 2003-Ohio-5639. 11 (2001), 143 Ohio App. 3d 185. 12 Nolan v. Nolan (1984), 11 Ohio St. 3d 1, 3; State v.Gates, Cuyahoga App. No. 82385, 2004-Ohio-1453. 13 State v. Kincaid (Dec. 14, 2000), Cuyahoga App. No. 77645.

2016-07-06 06:36:26.247854+00

DECISION Fabiaen L. Mitchell, defendant-appellant, a minor, appeals the December 19, 2000 judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, adjudicating him to be a delinquent minor, having committed aggravated robbery, in violation of R.C. 2911.01, a first-degree felony if committed by an adult, and grand theft of a motor vehicle, in violation of R.C. 2913.02, a fourth-degree felony if committed by an adult. On September 28, 2000, two complaints were filed, alleging on August 30, 2000, appellant was delinquent for having committed aggravated robbery and grand theft of a motor vehicle while possessing a handgun during the offenses. On December 12, 2000, the matter came on for a bindover hearing; however, the prosecutor informed the court that it had reached an agreement with appellant. The agreement was that appellant would admit to both offenses and be permanently committed to the Department of Youth Services ("DYS") for a minimum of two years as to the aggravated robbery count and a minimum of one year as to the grand theft of a motor vehicle count, with each to be served consecutively. The court proceeded to disposition and committed appellant to DYS for a minimum of two years on the aggravated robbery count and a minimum of one year on the grand theft of a motor vehicle count. The court ordered the sentences to run consecutively for a total minimum sentence of three years with a maximum of appellant reaching the age twenty-one. The court's disposition was journalized on December 19, 2000. Appellant appeals the judgment of the trial court, asserting the following assignments of error: I. THE TRIAL COURT ERRED WHEN IT COMMITTED FABIAEN MITCHELL TO A MINIMUM OF ONE (1) YEAR AND A MAXIMUM OF HIS TWENTY-FIRST BIRTHDAY IN THE DEPARTMENT OF YOUTH SERVICES FOR GRAND THEFT OF A MOTOR VEHICLE, A FELONY OF THE FOURTH DEGREE IF COMMITTED BY AN ADULT. II. FABIAEN MITCHELL WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO OBJECT TO FABIAEN'S SENTENCE OR OTHERWISE BRING THE SENTENCING ERROR TO THE COURT'S ATTENTION. Appellant asserts in his first assignment of error that the trial court erred in committing him to a minimum of one year and a maximum of his twenty-first birthday in DYS for grand theft of a motor vehicle. R.C.2913.02(B)(5) provides that if a child is adjudicated delinquent for committing an act that would be a felony of the fourth degree if committed by an adult, the court may commit the child to DYS for a minimum period of six months and a maximum of the child's twenty-first birthday. Thus, appellant's commitment for a minimum term of one year for grand theft of a motor vehicle, a fourth-degree felony if committed by an adult, was improper. The state agrees that the sentencing in this respect was improper and that we must remand the matter for further disposition. However, the state contends that upon remand, the trial court should be permitted to refashion the sentence as to the aggravated robbery count, so as to commit appellant for a total minimum of three years on both counts in accord with the parties' and trial court's original intent. Appellant claims that double jeopardy prohibits the trial court from refashioning the commitment as to the aggravated robbery count upon remand. Appellant also asserts there is nothing in the record to demonstrate a specific intent of the parties to commit him to DYS for a minimum of three years. In support of its argument, the state points to several federal cases. There exists in federal case law a principle entitled the "sentencing package doctrine." Pursuant to this doctrine, when a defendant is sentenced under a multi-count indictment and the sentences imposed on those counts are interdependent, a trial court has the authority to reevaluate the entire aggregate sentence or sentencing package, including the unchallenged portions, upon remand. Santiago v. United States (N.D.Ohio. 1996), 954 F. Supp. 1201; United States v. Callins (C.A.6, 1999), 182 F.3d 919. The underlying theory is that in imposing any sentence, a district judge typically looks to the bottom line, or the total number of years, in effectuating a sentencing package. See United States v. Smith (C.A.7, 1996), 103 F.3d 531, 533. Thus, when part of a sentence is vacated, the entire sentencing package becomes "unbundled," and the trial judge is entitled to resentence a defendant on all counts to effectuate its previous intent. United States v. Martenson (C.A.7, 1999), 178 F.3d 457, citing United States v. Shue (C.A.7, 1987),825 F.2d 1111. As aptly explained by the United States Court of Appeals for the First Circuit: [W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal. United States v. Pimienta-Redondo (C.A.1, 1989), 874 F.2d 9, 14. Federal courts have found that the sentencing package doctrine does not violate the Double Jeopardy Clause. The Double Jeopardy Clause proscribes resentencing only when a defendant has developed a legitimate expectation of finality in his original sentence. United States v. DiFrancesco (1980), 449 U.S. 117, 139; State v. Jackson (1997), 123 Ohio App. 3d 22. Finality generally attaches once a sentence has been executed via delivery from the temporary detention facility of the judicial branch to the penal institution of the executive branch. United States v. Benz (1931), 282 U.S. 304, 51 S. Ct. 113; United States v. Davidson (C.A.10, 1979), 597 F.2d 230; State v. Hayes (1993), 86 Ohio App. 3d 110, 112, citing State v. Addison (1987), 40 Ohio App. 3d 7. However, a defendant does not have a legitimate expectation in the finality of his original sentence if he challenges one count of two or more interdependent convictions upon appeal. Pasquarille v. United States (C.A.6, 1997),130 F.3d 1220, 1222; see, also, Shue, supra. In that situation, a defendant places the validity of his entire sentencing package, not merely its individual components, at issue. See id. "Because the defendant has no legitimate expectation of finality in any discrete part of an interdependent sentence after a partially successful appeal or collateral attack, there is no double jeopardy bar to enhancing an unchallenged part of an interdependent sentence to fulfill the court's original intent." United States v. Harrison (C.A.8, 1997), 113 F.3d 135, 138, citing United States v. Binford (C.A.7, 1997),108 F.3d 723, 728-730. One recently decided Ohio case touches upon the issue in the present case. In State v. Nelloms (June 1, 2001), Montgomery App. No. 18421, unreported, the defendant was convicted of one count of felonious sexual penetration and seven counts of rape of his daughter. The trial court sentenced him to life imprisonment on each count, with four counts to be served consecutive to each other and concurrent to the other four counts. On direct appeal, the appellate court reversed two of the consecutive counts and two of the concurrent counts for lack of subject matter jurisdiction and remanded for resentencing on the four remaining counts. Upon remand, the trial court resentenced the defendant to four consecutive life sentences on the four remaining counts. The defendant appealed, claiming the trial court erred upon remand when its sentence altered the remaining counts from concurrent to consecutive. On appeal, the court of appeals in Nelloms stated "[i]n multi-count situations, the judge imposes a sentence as a package, taking into consideration a myriad of factors." Citing numerous federal and United States Supreme Court cases, the court of appeals went on to state that "when one or more counts constituting the original sentence are vacated, the trial court should be able to review what remains and reconstruct the sentence in light of the original sentencing plan." Id. The court in Nelloms explained that, in other words, upon remand, a judge may reshape the entire impost as a means of bringing the original sentencing intentions to fruition after some new development has intervened. Although the issue and underlying legal procedure was different in Nelloms, we find the logic in Nelloms and the above-cited federal case law instructive in the present case. The disposition of appellant in the current case was pursuant to a multi-count complaint. Appellant has appealed his disposition on the grand theft of a motor vehicle adjudication, while leaving the aggravated robbery adjudication and disposition unchallenged. Although he has already begun to serve the time imposed, by challenging one portion of his disposition package and placing his entire disposition at issue, appellant no longer has a legitimate expectation of finality. Thus, upon remand, the trial court may, within its discretion, refashion disposition as to both counts, in order to achieve a rational, coherent structure to effectuate the court's original intentions. We note that the only other Ohio case we found that discussed this issue was State v. Varney (Mar. 26, 1991), Miami App. No. 90 CA 30, unreported. In Varney, the defendant was convicted of seven felony counts. The court of appeals reversed three counts and remanded the other four for resentencing. Upon remand, the trial court re-imposed the same terms of confinement on the four counts, but three of the counts were ordered to be served consecutively rather than concurrently as previously ordered. The defendant claimed the increased penalty violated double jeopardy because he had already begun to serve the previous sentences after his delivery to the penal institution of the executive branch, and the court of appeals agreed. Although the court of appeals recognized that jeopardy does not apply after a defendant has begun to serve his sentence if he has no expectation of finality in the sentencing order, it found that the defendant did have an expectation of finality in his sentencing. The court found that because in his original appeal he had not challenged the sentencing in any respect and only challenged the validity of his convictions, the defendant had the expectation for only the possibility of a remand for a new trial. However, the appellate court in Varney then acknowledged: "We are aware of cases in other jurisdictions that apply a theory that when a defendant challenges one of several interdependent sentences, he in effect challenges the entire sentencing plan." The court differentiated the Varney case by finding that it did not view the sentences in the case before it to be interdependent. The court stated that for the purposes of the Double Jeopardy Clause, it viewed the convictions to be analytically the same as if they had been imposed in seven separate cases and appealed in separate appeals. That distinction is not present in this case. In Varney, the defendant was convicted on various counts of engaging in a pattern of corrupt activity, drug trafficking, having a weapon under disability, and possession of a dangerous ordnance (blasting caps). The weapon and blasting caps were confiscated from the defendant's home some time after his arrest for trafficking drugs, and the engaging in a pattern of corrupt activity resulted in his ongoing drug operation with other individuals. Also, the felony convictions in Varney resulted from two separate trial court cases, and there is nothing indicating all of the felony counts were contained in the same indictment. To the contrary, in the present case, appellant's aggravated robbery and grand theft of an automobile were interdependent because both occurred at the same time, resulted from the same conduct, and were contained in the same juvenile court complaint. Further, unlike Varney, in the present case appellant challenged the terms of his sentence and thus, could have expected his aggregate sentence would be affected by his appeal. For the foregoing reasons, appellant's first assignment of error is sustained. Appellant argues in his second assignment of error that he was denied effective assistance of counsel. Specifically, appellant asserts that his trial counsel was ineffective in not raising the issue regarding the one-year minimum commitment for the grand theft of a motor vehicle count. Given our disposition of appellant's first assignment of error, appellant's second assignment of error is rendered moot, and we decline to address it. See App.R. 12(A)(1)(c). Accordingly, appellant's first assignment of error is sustained, his second assignment of error is rendered moot, and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch is reversed and this case is remanded for resentencing. __________________ BROWN, J. PETREE and DESHLER, JJ., concur.

2016-07-06 06:36:26.301628+00

OPINION In the spring of 1997, appellant Keith Alan Sherman lived with his brother, Cecil Sherman, and his sister-in-law, Ronda Sherman. At the time, Ronda worked as a babysitter for Rachel Gombosh, a two-year old girl,. On several occasions, Ronda left appellant home alone with Rachel and her brother, Alex. After one of these occasions, Rachel told her mother, "Uncle Keith licks my pee-pee." Rachel then showed her mother how appellant licked her by using her doll. After Rachel's mother reported to the authorities that she believed her daughter had been sexually molested by appellant, Shannon Mahoney of Richland County Children's Services and Sergeant Jeff McBride of the Richland County Sheriff's Department went to appellant's residence to question him. Appellant admitted that he had fondled Rachel's vagina and butt. He told them that he would pull down her diaper and fondle her vagina with his hand. He admitted to licking her vaginal area while masturbating. He would then ejaculate on toilet paper or a towel, which he placed on Rachel's stomach. He admitted to performing cunnilingus on Rachel on two occasions. Appellant was charged with two counts of rape in violation of R.C. 2907.02 (A)(1)(b). The case proceeded to bench trial in the Richland County Common Pleas Court. Appellant was convicted of both counts of rape. He was sentenced to a term of nine years incarceration on count one, and nine years incarceration on count two, to be served concurrently. The court further adjudicated appellant to be a sexual predator. Appellant assigns a single error on appeal: ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN FINDING DEFENDANT-APPELLANT GUILTY OF TWO COUNTS OF RAPE, WHEN THE EVIDENCE SUPPORTED A FINDING OF GUILTY ON THE LESSER INCLUDED OFFENSES OF GROSS SEXUAL IMPOSITION. Appellant argues that because the acts of vaginal and anal intercourse require penetration of the vagina, the act of cunnilingus requires penetration as well. He argues that because there is no evidence of penetration, he should have been convicted of gross sexual imposition rather than rape. Appellant was convicted of two counts of rape in violation of R.C. 2907.02: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: (b) the other person is less than thirteen years of age, whether or not the offender knows the age of the other person. Sexual conduct is defined: "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. 2907.01 (A) The statute clearly does not require penetration to complete the act of cunnilingus. Further, the Ohio Jury Instructions define the act of cunnilingus as a sexual act committed with the mouth and the female sex organ. The law clearly does not require penetration, and requires no further activity beyond the placing of one's mouth on the female's vagina. State v. Bailey (1992), 78 Ohio App. 3d 394, 395. The assignment of error is overruled. The judgment of the Richland County Common Pleas Court is affirmed. By Gwin, J., Wise, P.J., and Farmer, J., concur

2016-07-06 06:36:29.546371+00

OPINION {¶ 1} Defendant-appellant, Giltz Associates, Inc., appeals the judgment of the Trumbull County Court of Common Pleas, awarding damages to plaintiffs-appellees, Daniel and Mary Jane Reitz, in an action for breach of a real estate contract. For the following reasons, we affirm the decision of the court below. {¶ 2} The Reitzes owned approximately 2.79 acres of land located at 2725 Niles Cortland Road in Howland Township, north of U.S. Route 422. The Reitzes resided at the property which contained a house, guest house and swimming pool. In the late 1990s, the area around Niles-Cortland Road and Route 422 was being developed commercially. In 1996, Barbara J. Peyatt, a realtor acting on behalf of Giltz Associates, approached the Reitzes about selling their property. In April 1997, the Reitzes and Giltz signed a Real Estate Purchase Agreement for the sale of the property for $555,000. The agreement provided Giltz with 120 days to conduct due diligence plus an additional 60 days for further diligence or to close the sale. {¶ 3} The sale did not close within 180 days of the agreement being signed. On November 13, 1997, the Reitzes filed suit against Giltz alleging that Giltz was in breach of the agreement and seeking to have the agreement declared null and void so that the property could be sold to other persons. The court referred the parties to mediation. In June 1998, the parties reached an oral settlement agreement at a mediation conference, which reaffirmed the agreement to sell with certain modifications. An Agreed Judgment Entry was drafted which Giltz refused to sign. On November 23, 1998, the trial court adopted the Agreed Judgment Entry and declared it to be "a valid and binding contract between the parties." {¶ 4} According to the terms of the Agreed Judgment Entry, Giltz had until October 1, 1998, to close on the property. Therefore, at the time of the trial court's judgment in November 1998, Giltz was already in breach of the agreement. Giltz never took action to close on the property. In 1998, 2000, and 2002, the Reitzes contacted Giltz about closing the deal on the property but received no response. {¶ 5} Four days after the November 1998 judgment entry, the Reitzes retained Francis ("Bud") J. Soltesz, a realtor with Coldwell Banker, and listed the property for sale at the price of $900,000. Soltesz thought the price somewhat high, but testified that other properties in the area had, at this time, sold for between $800,000 and $1,000,000 and believed that they "might be able to do something" with a $900,000 listing price. No offers were received and the listing price was reduced to $695,000. {¶ 6} In April 2000, Ross Development Company offered to purchase the land under an option agreement for $600,000. According to the proposed terms, Ross would pay $1,000 deposit for "the exclusive right and option to purchase the property" during a 180-day option period. Thereupon, Ross could extend the option period for an additional 180 days by paying a $5,000 deposit for each 90-day extension. At any time prior to the expiration of the option period, Ross could elect to terminate the agreement and the Reitzes would return the deposit to Ross. The Reitzes counter-offered, proposing a $625,000 sale price and a nonrefundable 180-day option price of $6,000. No agreement was ever reached with Ross Development Company. {¶ 7} The Reitzes further reduced the listing price of their property to $495,000. {¶ 8} In 2002, Gordon Food Service offered to purchase the Reitzes' property for $425,000. In June 2002, the Reitzes and Gordon Food Services entered an agreement to purchase the property for $445,000, dependent upon certain contingencies including approval of the sale by Gordon Food's board of directors and the determination that there will be "adequate and sufficient * * * sanitary sewer and storm water drainage servicing the Property." {¶ 9} The provision regarding sewerage was significant for the following reasons. The Reitzes' property is situated in Howland Township, a few hundred feet north of the City of Niles. While the property was used for a residential purpose, a septic system adequately served its sewerage needs. As a commercial development, it would be necessary to link the property with a municipal sewer system. Although Howland Township had represented for many years that it would be extending its sewer lines down Niles Cortland Road toward Route 422, it never did so.1 There is evidence that Giltz and the Reitzes were aware of the sewerage issue in 1997. The problem remained unresolved during the years that the Reitzes were attempting to sell the property. In order to tap into the Niles sewer system, the Reitzes ultimately had to file an application to have their property annexed to the City of Niles. The Reiztes did so in course of their negotiations with Gordon Food. It was not until the annexation was complete and Niles guaranteed sewer availability that Gordon Food would close the deal with the Reitzes. {¶ 10} The sale of the Reitzes property closed in September 2003. Unlike the agreement with Giltz, the Reitzes were responsible for paying the real estate commission of $44,500 in the sale to Gordon Food. Accordingly, the Reitzes' net profit on the sale of the property was $400,500. {¶ 11} On July 12, 2002, the Reitzes filed suit against Giltz alleging breach of contract and seeking statutory interest, the difference between the net sale price of the property and the original contract price of $550,000, or, in the event the property could not be sold, an order to compel Giltz to complete the sale according to the terms of the contract. {¶ 12} The matter was heard in a bench trial on July 7, 2004, after the sale of the property to Gordon Food. On October 5, 2005, the trial court issued its judgment entry finding for the Reitzes and awarding damages in the amount of $150,000 for breach of contract and interest, at the statutory rate of ten per cent, in the amount of $271,082, for a total judgment of $421,082. {¶ 13} Giltz timely appeals and raises the following assignments of error. {¶ 14} "[1.] The Trial Court erred in rendering a verdict in favor of Appellees. {¶ 15} "[2.] The Trial Court erred in overruling Appellant's Motion for Directed Verdict. {¶ 16} "[3.] The Trial Court erred in calculating and awarding damages to Appellees. {¶ 17} "[4.] The Trial Court erred by not requiring Appellees to mitigate any damages they experienced. {¶ 18} "[5.] The Trial Court erred in awarding interest to Appellees." {¶ 19} Giltz' first argument under its first assignment of error is that the trial court erred in rendering judgment because the Reitzes are not the real party in interest. At trial, Daniel Reitz testified that their property is held in revocable trust, with Daniel as trustee for Mary Jane's interest and Mary Jane as trustee for Daniel's interest. Giltz' position is that, since the property was held in trust, Daniel and Mary Jane Reitz could only act as trustees with respect to the property. The Real Estate Purchase Agreement with Giltz was signed by the Reitzes in their individual capacities, not as trustees. Likewise, the Reitzes filed suit against Giltz in their individual capacities, not as trustees. {¶ 20} Ohio Civil Rule 17(A) provides that "[e]very action shall be prosecuted in the name of the real party in interest" and that a trustee "may sue in his name as such representative without joining with him the party for whose benefit the action is brought." "A `real party in interest' has been defined as `* * * one who has a real interest in the subject matter of the litigation, and not merely an interest in the action itself, i.e., one who is directly benefited or injured by the outcome of the case.'" Shealy v. Campbell (1985), 20 Ohio St. 3d 23, 24, 20 Ohio B. 210, 485 N.E.2d 701, quoting West Clermont Edn. Assn. v.West Clermont Bd. of Edn. (1980), 67 Ohio App. 2d 160, 162,426 N.E.2d 512 (internal citations omitted). In the case of a trust, the trustee is not technically the real party in interest as they hold the property for another's benefit. Under Civ.R. 17(A), the trustee is permitted to represent the beneficiary's interest in the trust property in legal actions. Phillips v. May, 11th Dist. No. 2003-G-2520, 2004-Ohio-5942, at ¶ 40 (citations omitted). {¶ 21} The purpose of the rule requiring actions to be prosecuted by the real party in interest "is to protect a defendant from facing a subsequent similar action brought by one not a party to the present proceeding and to ensure that any action taken to judgment will have its proper effect as res judicata." Security Trust Co. v. Gross (Dec. 16, 1985), 12th Dist. Nos. CA83-06-054, CA83-06-058, and CA83-06-069, 1985 Ohio App. LEXIS 9653, at *13, citing Prevor-Mayorsohn Carribean Inc.v. Puerto Rico Marine Management, Inc. (C.A.6 1980), 620 F.2d 1,4. {¶ 22} In the present case, Daniel and Mary Jane Reitz are the sole trustees and the sole beneficiaries of the trust that held title to the subject property. This court has held previously that, when the trustee and beneficiary of trust property is the same person, that person is the real party in interest regardless of their designation in the complaint as trustee. Phillips v. May, 11th Dist. No. 2003-G-2520,2004-Ohio-5942, at ¶ 41; Young v. Louisville Title Agency forN.W. Ohio, Inc. (Jan. 15, 1993), 6th Dist. No. 91WD097, 1993 Ohio App. LEXIS 66, at *13-*14. Furthermore, there is no danger that Giltz might face a subsequent similar action regarding the subject property or that trial court's judgment will not have its proper effect as res judicata. {¶ 23} Accordingly, the trial court did not err in allowing this case to be prosecuted by the Reitzes in their individual capacities. {¶ 24} Giltz' second argument under its third assignment of error is that the trial court erred by failing to apply the liquated damage clause contained in the Real Estate Purchase Agreement. Giltz refers to a portion of the contract which provides that Giltz has 120 days conduct tests on the property before closing the sale. If Giltz was not "satisfied * * * with any of the results of such tests," it was entitled to terminate the purchase agreement by giving written notice. Thereupon, the following handwritten provision was added: "In this instance, however, the Seller shall keep the $5,000 down payment anything else in this agreement to the contrary." {¶ 25} Where the provision of a contract is clear and unambiguous, its interpretation is a matter of law. InlandRefuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio St. 3d 321, 322. The trial court found that no "applicable liquidate damages provision" existed in the parties contract. We agree. {¶ 26} A plain reading of the provision relied upon by Giltz demonstrates that it concerns the return of deposit money paid on an option contract, not a provision apportioning damages in the case of breach. Furthermore, as the Reitzes point out, Giltz never paid the $5,000 deposit or gave written notice that it was terminating the agreement. Cf. Gaskins v. Young, 2nd Dist. No. 20148, 2004-Ohio-2731, at ¶ 30 (holding that an earnest money provision that failed to specify a fixed amount of money to be paid "in lieu of actual damages in the event of breach of contract" did not constitute a liquidated damages provision). {¶ 27} Accordingly, the trial court did not err by limiting the Reitzes recovery to $5,000 in liquidated damages. {¶ 28} Giltz' other arguments under the first three assignments of error all challenge the trial court's award of damages to the Reitzes for breach of contract. Although Giltz raises the same arguments, the standard of review differs according to the assignment of error. Under the first and third assignments, Giltz argues generally that the trial court erred in awarding damages. Our standard of review in this context is whether the trial abused its discretion in its determination of damages. Kaufman v. Byers, 159 Ohio App. 3d 238, 2004-Ohio-6346, at ¶ 37; Williams v. Kondziela, 11th Dist. No. 2002-L-190, 2004-Ohio-2077, at ¶ 19. {¶ 29} Under the second assignment of error, Giltz raises the issue of damages in the context of its motion for a directed verdict on this issue made at trial. The trial court may grant a duly made motion for directed verdict where, "after construing the evidence most strongly in favor of the party against whom the motion is directed, [it] finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party." Civ.R. 50(A)(4). "[W]hen there is sufficient evidence relating to [an] issue to permit reasonable minds to reach different conclusions on that issue," the motion should be denied. O'Dayv. Webb (1972), 29 Ohio St. 2d 215, paragraph four of the syllabus. Therefore, a motion for directed verdict presents a question of law which is reviewed on appeal under a de novo standard of review. Id. at paragraph three of the syllabus;Chilson v. Conrad, 11th Dist. No. 2005-P-0044, 2006-Ohio-3423, at ¶ 14 (citation omitted). {¶ 30} "It is well established that the proper measure of damages for a breach of a real estate contract is the difference between the original contract price and the fair market value of the property at the time of breach." Williams v. Kondziela, 11th Dist. No. 2002-L-190, 2004-Ohio-2077, at ¶ 20 (citation omitted); Roesch v. Bray (1988), 46 Ohio App. 3d 49, 50 (citation omitted). "[A] party seeking to recover damages must present evidence not only of the resale price, but that party must also put forth sufficient evidence that the resale price was the true indicator of the fair market value at the time of the breach." Kaufman v. Byers, 159 Ohio App. 3d 238, 2004-Ohio-6346, at ¶ 39 (citation omitted). {¶ 31} Giltz argues that the trial court improperly calculated damages by merely taking the difference between the contract price and resale price of the property where there was no evidence that the resale price was the true indicator of the fair market value at the time of breach. Williams, 2004-Ohio-2077, at ¶ 20. Giltz further argues the evidence demonstrates that the fair market value of the Reitzes' property at the time of breach was, at the least, the contract price of $555,000. Giltz cites to Ross Development's offer to buy the property for $600,000 in 2000, and the testimony of Giltz' realtor, Peyatt, that the fair market value at the time of breach was "around $600[,000], maybe a little more." Peyatt also testified that an adjoining property, the Basile property, sold for $350,000 in April 1998 although about half the size of the Reitzes' property. Moreover, the Reitzes themselves testified that they believed the contract price of $555,000 was below the fair market value. {¶ 32} The Reitzes counter that the trial court is entitled to consider the resale price, when such resale is made within a reasonable time and at the highest price obtainable after the breach. Roesch, 46 Ohio App.3d at 50 (citation omitted). The Reitzes rely on the testimony of Daniel Reitz and Soltesz that the real estate market had begun "to slow down" and that the "bottom fell out" about the time of breach. The Reitzes note that Peyatt testified to a transitional market that was affected by the perceived availability of sewer connection. Prior to the fall of 1998, there was an expectation that sewerage would be available. Peyatt qualified her testimony regarding the fair market value of the Reitzes property in 1998, stating that its value could be fixed between $400,000 and $600,000. "If you take the high end [of what had been sold there in '96 and '97], their property would be worth 600. In '98 if you take the low end it may be worth 400." {¶ 33} Peyatt testified that, when Giltz acquired the smaller Basile property for $350,000, it was believed that sewerage would be available. {¶ 34} The decline in real estate prices was further reflected in Peyatt's testimony regarding the Antennucci property, a property of similar size to the Reitzes' property and located nearby. In 1997, Giltz acquired the Antennucci property for $450,000. In May 2001, after it had become evident that sewers were not going to be available in the "foreseeable future," Peyatt acquired the Antennucci property for only $270,000. {¶ 35} Giltz relies heavily on the evidence that Ross Development offered to purchase the property for $600,000. Giltz cites to Hussey v. Daum (May 3, 1996), 2nd Dist. No. 15434, 1996 Ohio App. LEXIS 1758, where the court of appeals overturned a lower court adopting the resale price where there had been an intervening offer to purchase for more than the resale price. The court of appeals concluded the calculation of damages was against the weight of the evidence inasmuch as the resale price "was not the highest price obtainable after the breach" in light of the intervening offer. Id. at *7. We find Hussey to be distinguishable. The situation in the present case is unique in several respects. First, the transaction in the present case involves the sale of a residential property for redevelopment for commercial use. Second, the market was unstable for a number of years due to uncertainly about sewer availability which bore directly on the marketability of the property for commercial purposes. Third, Ross Development's offer to purchase was only an offer for an option to purchase. Under the terms of Ross Development's offer, the Reitzes' property could have been taken off the market for up to a year without any firm commitment or obligation on the part of Ross Development to close the sale. Even the Second District, in a latter appeal of the Hussey case, acknowledged that "due to the tenuous and uncertain nature of many offers to purchase real estate, an alleged intervening offer between the time of the breach and the time of the sale ordinarily would be no more than some evidence of market value."Hussey v. Daum (Dec. 28, 1998), 2nd Dist. No. CA 17148, 1998 Ohio App. LEXIS 6277, at *2. {¶ 36} Giltz is also incorrect that the Reitzes testimony that the fair market value of their property exceeded the purchase price of their agreement with Giltz constitutes a binding judicial admission. It is well-established in Ohio law that a property owner is competent to testify to the value of his or her property and that such testimony is sufficient to establish the value of that property. Smith v. Padgett (1987),32 Ohio St. 3d 344, 347; Gaskins, 2004-Ohio-2731, at ¶ 46. The weight afforded to the testimony of a property owner is for the trier of fact to determine. Sumra v. Sumra, 2nd Dist. No. 20605, 2005-Ohio-4513, at ¶ 16; Cincinnati v. Banks (2001),143 Ohio App. 3d 272, 292. Unless entered into as part of a stipulation, the trial court is not bound to adopt the Reitzes valuation of their property. Cf. Gaskins, 2004-Ohio-2731, at ¶47. {¶ 37} For the foregoing reasons, we agree with the Reitzes that, in light of all the evidence before the trial court, it was not an abuse of discretion to adopt the resale price of $400,000 as the fair market value for the purpose of determining damages. Although the evidence supported a range of values for the fair market value at the time of breach, $400,000 was within that range and was supported by other evidence supporting the adoption of that figure. Likewise, we hold that, since reasonable minds could have reached differing conclusions in regard to the fair market value of the property at the time of breach, the trial court properly overruled Giltz' motion for directed verdict. {¶ 38} Accordingly, the Reitzes "are entitled to the benefit of their bargain: the contract price less the actual resale price." Roesch, 46 Ohio App.3d at 51. The first three assignments of error are without merit. {¶ 39} Under the fourth assignment of error, Giltz argues the Reitzes forfeited their right to damages by failing to mitigate and the trial court erred by failing to rule in their favor. {¶ 40} The duty to mitigate damages, otherwise known as the doctrine of avoidable consequences, requires a plaintiff to avoid those damages resulting from a breach of contract that may be avoided "with reasonable effort and without undue risk or expense." Williams, 2004-Ohio-2077, at ¶ 21, citing TokaiFinancial Servs. v. Mathews, Gallovic, Granito Co. (Nov. 24, 1995), 11th Dist. No. 95-L-098, 1995 Ohio App. LEXIS 5163, at *6-*7. The duty "aris[es] from the cardinal principle that the damage award should put the injured party in as good a position had the contract not been breached at the least cost to the defaulting party." F. Enterprises, Inc. v. Kentucky FriedChicken Corp. (1976), 47 Ohio St. 2d 154, 159-160. "The doctrine of avoidable consequences requires only reasonable, practicalcare and diligence, not extraordinary measures to avoid excessive damages." Tokai Financial, 1995 Ohio App. LEXIS 5163, at *7 (citation omitted). {¶ 41} Giltz asserts that the Reitzes breached their duty to mitigate damages in several instances. Initially, Giltz claims the Reitzes' listing of price of $900,000 was unreasonably high and contrary to the advice of their retained realtor, Soltesz. Giltz also claims the Reitzes breached their duty to mitigate by not accepting Ross Development's offer for $600,000, which was above the contract price negotiated with Giltz. {¶ 42} We hold that the trial court acted within its discretion by concluding that the Reitzes made "a reasonable effort to market the subject property so as to mitigate their damages." Although Soltesz, a professional realtor for over twenty years, deemed the initial listing price high, he considered the price workable. Soltesz and Peyatt both testified that some properties in the preceding years had sold for up to one million dollars. There is also evidence that, at the time the property was initially listed, Soltesz and/or the Reitzes believed that sewerage would be available for the property. {¶ 43} Soltesz testified regarding his diligent efforts to market and advertise the Reitzes' property and this testimony is not disputed. The price of the property was gradually reduced until Ross Development came forward with an offer for $600,000. Giltz maintains that the risks associated with Ross Development's offer were just as great as the risks in agreement to sell to Gordon Food and that there was no good reason for the Reitzes not to accept the offer. There were, however, significant differences between the two offers. Unlike Ross Development, Gordon Food was willing to pay nonrefundable earnest money for its option and was willing to negotiate the final sale price. As discussed above, Ross Development's offer for an option to buy did not guarantee a final sale. Gordon Food was aware of the sewerage issue and discussed the issue in its negotiations with the Reitzes. There is no evidence that Ross Development had considered this contingency in making its offer. {¶ 44} We also note that the Reitzes mitigated their damages by regularly contacting Giltz about the possibility of reviving the 1998 purchase agreement. {¶ 45} Accordingly, the record demonstrates that the Reitzes acted with reasonable, practical care and diligence in finding another buyer for their property. The fourth assignment of error is without merit. {¶ 46} Under the fifth and final assignment of error, Giltz argues that the trial court erred in awarding interest to the Reitzes. Under the version of R.C. 1343.03(A) in effect at time of the trial court's judgment, a judgment creditor was entitled to interest at the rate of ten per cent per annum "upon all judgments * * * for the payment of money arising out of * * * a contract." {¶ 47} Giltz argues that the award of interest is invalid on the grounds that the November 1998 judgment entry declaring the agreed judgment entry "a valid and binding contract" was void ab initio since it was impossible to perform, since it required Giltz to close the sale by October 1998. We disagree. The November 1998 judgment entry did not create a binding contract between the parties but merely declared the existence of such a contract as of the date of the June 1998 mediation conference. {¶ 48} Giltz further argues that the 1998 judgment entry cannot be the basis for an award of interest because it did not award damages, but rather ordered specific performance by the parties, which was impossible for the reason stated above. Again we disagree. The 1998 judgment entry merely declared the existence of a binding contract. The judgment entry did not address the issue of remedies for the breach of that contract, although it noted that the Reitzes "shall be entitled to collect statutory interest on any unpaid sums which may have become due" under the contract. {¶ 49} The fifth assignment of error is without merit. {¶ 50} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas, awarding damages plus interest to the Reitzes for the breach of a contract for the sale of real estate is affirmed. Rice, J., O'Toole, J., concur. 1 According Daniel Reitz' testimony, the sewer problem involved a practical difficulty in that the Niles Cortland Road ran down the slope of a hill. In order to tap into Howland Township's sewer lines, it would have been necessary to pump the waste uphill.

2016-07-06 06:36:30.666822+00

{¶ 3} I respectfully dissent from the decision of the majority. {¶ 4} The domestic violence statute, R.C. 2929.25(A) states: "No person shall knowingly cause or attempt to cause physical harm to a family or household member." R.C. 2919.25(F)(1)(ii) defines family or household member to include "[a] spouse, a person living as a spouse, or former spouse of the offender." {¶ 5} The Defense of Marriage Amendment, Article XV, Section11, Ohio Constitution, states: {¶ 6} "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." {¶ 7} Defendant-Appellant and Amicus Citizens For Community Values both argue that the equivalent treatment of spouses, former spouses, and persons living as spouses in R.C. 2919.25 offends the prohibitions of the Amendment, because the statute thereby confers on those unmarried persons "a legal status . . . that intends to approximate the design, qualities, significance or effect of marriage." Those descriptive terms are all encompassing, but they don't define the object and the operative term of the second sentence of the Amendment in which they are used and to which they apply. That object is the general term, "legal status." {¶ 8} The textual canon of interpretation esjudem generis calls for interpreting a general term to reflect the class of objects reflected in more specific terms accompanying it. Applying that rule, the term "legal status" in the second sentence of the Amendment reasonably refers to the existence of a marriage as marriage is defined in the first sentence of the Amendment, that being a union between one man and one woman and only that. The descriptive terms which follow "legal status" merely proscribe conferring marital status in any of those respects on persons living in a different relationship. {¶ 9} Part of the challenge in interpreting the Amendment is that the prepositional phrase "for relationships of unmarried persons" is misplaced in the order of words in the sentence. It follows the term "legal status," but it functions as an adverbial clause modifying the verbs "create or recognize." In so doing, it merely prohibits treating relationships of unmarried persons as being a marriage. It does not mean that unmarried persons are denied some collateral legal benefit or relieved of a collateral legal detriment which is also incident to a marriage merely because they are unmarried. {¶ 10} R.C. 2919.25(A) imposes a collateral detriment on unmarried persons that it likewise imposes on married persons. It does not thereby create the legal status of a marriage for their relationship, which is all the Amendment prohibits. That might have been clearer had its authors written the Amendment to say that the state "shall not create or recognize for relationships of unmarried persons a legal status that intends to approximate the design, qualities, significance or effect of marriage." That order of presentation would properly reflect the prohibitions the terms of the Amendment imposes. That a different order was used doesn't alter the meaning of the Constitutional Amendment the voters subsequently approved. {¶ 11} For the foregoing reasons, I agree with the views expressed by Judge Donovan in her dissenting opinion in State v.Ward, Greene App. No. 05-CA-75, 2006-Ohio-___, and find that R.C. 2919.25(A) and its prohibitions are unaffected by the Defense of Marriage Amendment, Article XV, Section 11, Ohio Constitution. Therefore, I would affirm the judgment of the trial court in the present case, denying Defendant-Appellant McIntosh's motion to dismiss.

2022-09-09 23:54:30.771691+00

Denied

2016-07-06 06:36:25.227508+00

Fain

The issue in this case is whether the application of the exclusionary rule may be avoided with respect to evidence obtained by a police officer as a result of an investigative stop based upon conduct observed by the officer that the officer mistakenly, but reasonably, believes to constitute a violation of law. The trial court excluded the evidence, and the state appeals. We conclude that in a limited class of circumstances, including the circumstances in this case, the application of *Page 301 the exclusionary rule may be avoided with respect to evidence obtained as a result of an investigative stop based upon conduct observed by a police officer that the officer reasonably, but mistakenly, believes to be a violation of law. Accordingly, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion. The relevant facts are succinctly set forth in the trial court's decision, as follows: "Officer David Crigler, of the Riverside Police Department, was, on September 16, 1995, at approximately 2:45 p.m. traveling eastbound on Valley Street, west of the intersection with Harshman Road. Officer Crigler was traveling behind a rust colored vehicle which made a right hand turn onto Harshman Road and proceeded into a southerly direction. Harshman Road is a divided four lane highway with two lanes southbound and two lanes northbound. The vehicle was traveling in a southbound direction on Harshman Road in the left hand lane. After traveling approximately 150 yards, the vehicle approached a traffic light which controls traffic on both sides from private property. As the vehicle approached the light, it turned left into the crossover area without using the left turn lane provided and proceeded to travel northbound in the right hand northbound lane. Officer Crigler fell in behind the vehicle and stopped it at a Speedway gasoline station, which is just north of the intersection of Valley and Harshman. "As a result of the stop, defendant-appellant Claude Greer was arrested and charged with Driving Under the Influence, an unlawful turn, and the failure to wear a seatbelt." It appears that Greer may also have been charged with aggravated menacing and resisting arrest, but these charges are not the subject of this appeal. Greer moved to suppress the evidence, contending that it was obtained as the result of an unlawful stop. The trial court agreed with Greer that the U-turn forming the predicate for the stop was not unlawful under the Riverside city ordinances, found that the investigative stop was unlawful, granted Greer's motion to suppress, and dismissed all three charges upon the grounds that the suppression order left insufficient evidence to sustain a conviction. From this order, the state appeals. The state's sole assignment of error is as follows: "The trial court erred in concluding that Officer Crigler did not have probable cause to stop the defendant after the officer witnesses the defendant make a U-turn at a traffic light." The trial court held, and the state appears to concede, that Greer's U-turn was not unlawful under the applicable Riverside city ordinance, which provides that *Page 302 "no vehicle shall be turned so as to proceed in the opposite direction within an intersection." Riverside Ordinance 331.12(c). The trial court reached this conclusion by considering the definition of the word "intersection," which is as follows: "(a) The area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in [contact]. "(b) Where a highway includes two roadways thirty feet or more apart, then every crossing of each roadway of such divided highway by an intersecting highway shall be regarded as a separate intersection. If an intersecting highway also includes two roads thirty feet or more apart, then every crossing of two roadways of such highways shall be regarded as a separate intersection. "(c) The junction of an alley with a street or highway or with another alley shall not constitute an intersection." Riverside Ordinance 301.17; see, also, R.C. 4511.01(K). The trial court described the place at which Greer made his U-turn as follows: "[T]he area in question is a four-lane divided highway, which has a traffic control light, which controls the northbound and southbound traffic on Harshman Road. In the opposite direction, the lights control traffic coming from the parking lot of Stebbins High School and in the opposite direction from a lane leading back to the Middle School. At this point, Harshman Road is not intersected by a dedicated street. A review of § 301.17 R.C.O. does not include a definition which describes the area in which the Defendant made his turn. Subsection (a) talks about `roadways of two highways which join one another.' Subsection (b) deals with two double lane highways which intersect with one another. Subsection (c) tells us that the junction of an alley with a street or highway does not constitute an intersection. It is fundamental * * * criminal law that statutes and ordinances are strictly construed against the State. The Court is of the opinion therefore that the area of junction between the Stebbins High School parking lot and the driveway leading to the Middle School does not constitute an intersection with Harshman Road." We agree with the reasoning of the trial court. Accordingly, we conclude that the trial court properly dismissed the illegal U-turn charge. The state contends, however, that the evidence relating to the DUI and seatbelt violations should not have been suppressed. Essentially, the state argues that even though Officer Crigler based the investigative stop upon his mistaken belief that the U-turn he observed was in violation of a city ordinance, *Page 303 the stop was nevertheless reasonable, and the evidence obtained as a result of the stop should not be barred by the exclusionary rule. The state relies upon State v. Banks (May 25, 1994), Montgomery App. No. 14201, unreported, 1994 WL 220401, in which we held that evidence should not be excluded that is obtained as the result of an arrest based upon the officer's reasonable, but mistaken, belief that an arrest warrant was outstanding. That case involved a mistake of fact. An arrest warrant had been outstanding, but the judge who had issued the warrant recalled and withdrew it. That latter action had not made its way into the computer records accessible to the police when the defendant was arrested. We held that the evidence obtained as the result of the arrest need not be excluded because the officer's belief that he was authorized to make the arrest was reasonable. The case before us involves a police officer's mistake of law, rather than a mistake of fact. Courts must be cautious in overlooking police officers' mistakes of law, for the reasons set forth in People v. Teresinski (1980), 26 Cal. 3d 457, at 462-464, 162 Cal. Rptr. 44, at 47, 605 P.2d 874, at 876-877: "If we were to find Officer Rocha's mistake of law [that the observed conduct violated a loitering ordinance] reasonable under these circumstances, we would provide a strong incentive to police officers to remain ignorant of the language of the laws that they enforce and of the teachings of judicial decisions whose principal function frequently is to construe such laws and to chart the proper limits of police conduct." Even that court hinted that the result might be different under exceptional circumstances: "We need not decide, however, whether under exceptional circumstances an officer's reasonable mistake of law might validate police conduct because in this case the officer's mistake cannot be found reasonable." Id. Similarly, in People v. Molenda (1979), 71 Ill.App.3d 908, 28 Ill. Dec. 393, 394, 390 N.E.2d 560, 561, an Illinois court, in holding that an officer's mistake of law invalidated a stop, opined: "We might be of a different view if the statute was ambiguous, or required judicial construction to determine its scope or meaning." The interpretation of the Riverside city ordinance prohibiting U-turns in the case before us is not free from difficulty. The trial judge appropriately invoked the principle that a criminal statute must be construed strictly against the state. Had the ordinance been liberally construed, the fact that the place where the U-turn occurred did not fall within the expressed exception, in part (c) of the definition of intersection, might permit a conclusion that the place where Greer made his U-turn was an intersection under the ordinance. Although we agree *Page 304 with the trial court's conclusion that Greer's U-turn was not, in fact, prohibited by the ordinance, we agree with the state that this is not an obvious legal result, and that judicial construction of the ordinance is required to reach that conclusion. The exclusionary rule for evidence obtained as a result of unlawful searches and seizures is of purely federal construction. Ohio has no independent exclusionary rule for evidence obtained as a result of an unlawful search and seizure.State v. Mapp (1960), 170 Ohio St. 427, 11 O.O.2d 169,166 N.E.2d 387, reversed on other grounds sub nom. Mapp v. Ohio (1961),367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081. As a creation of federal jurisprudence, the exclusionary rule is subject to some exceptions. Among these is the good-faith exception set forth inUnited States v. Leon (1984), 468 U.S. 897, 104 S. Ct. 3405,82 L. Ed. 2d 677. In that case, the court referred to the competing interests of presenting probative, reliable evidence in criminal cases versus avoiding unreasonable searches and seizures. The court made the following observation: "An objectionable collateral consequence of this interference with the criminal justice system's truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains. Particularlywhen law enforcement officers have acted in objective good faithor their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Indiscriminate application of the exclusionary rule, therefore, may well `generat[e] disrespect for the law and administration of justice.'" (Emphasis added; citations omitted.) Id. at 907-908,104 S.Ct. at 3412, 82 L.Ed.2d at 688-689. In Leon, as in Banks, supra, evidence was seized as the direct result of an unlawful search. In the case before us, evidence was obtained as a result of an unlawful investigative stop. The search in the case before us was not independently unlawful; its invalidity depends on the unlawfulness of the investigative stop that preceded it. Because an investigative stop involves less intrusion upon protected liberty interests, less justification is required than would be required for a full-blown search or arrest. Terry v. Ohio (1968), 392 U.S. 1,88 S. Ct. 1868, 20 L. Ed. 2d 889; see, also, State v. Brandenburg (1987), 41 Ohio App. 3d 109, 534 N.E.2d 906. In our view, the proper balance of the competing interests referred to in Leon, supra, permits the use of evidence in a small range of cases in which the evidence has been obtained as the result of an investigative stop that is based upon a police officer's mistaken, but reasonable, belief that the conduct that the officer has observed is in violation of the law. This exception to the exclusionary rule must be narrowly tailored in order to avoid giving police officers the incentive to construe statutes and ordinances broadly for the purpose of finding a violation upon which to predicate an investigative stop. The police officer must be held to *Page 305 a higher standard of knowledge of the law than would be appropriate for an ordinary citizen, since it is the police officer's special function to apply and to enforce laws. The police officer's mistake of law must be objectively reasonable. In the case before us, we are satisfied that Officer Crigler's mistaken belief that Greer's U-turn was in violation of the ordinance was objectively reasonable. We note that the proper interpretation of the U-turn ordinance is not free from difficulty, and, in fact, the trial judge was unable to reach a decision at the hearing, but had to take the matter under advisement. In our view, Officer Crigler can be forgiven for having concluded that Greer's U-turn, at a place where access to and from a high school on one side and a middle school and government offices on the other side, intersected Harshman Road, with traffic on all four sides governed by a stop light, was in violation of the ordinance. We conclude that Officer Crigler's mistaken belief that the U-turn he observed was illegal is an example of a "minor transgression" by a police officer described in Leon, supra, as being insufficient to necessitate invocation of the exclusionary rule. Greer cites Whiteley v. Warden (1971), 401 U.S. 560,91 S. Ct. 1031, 28 L. Ed. 2d 306. We are not persuaded that Whiteley supports the exclusion of the evidence in the case before us. In the first place, that case precedes Leon, supra, which gave birth to the good-faith exception to the exclusionary rule. Second, Whiteley involves evidence obtained as the result of an arrest, rather than evidence obtained as a result of an investigative stop. The arrest in Whiteley was based upon an invalid warrant, the invalidity of which was known, or should have been known, by the arresting officer. In the case before us, evidence was obtained as a result of an investigative stop, which represents significantly less intrusion upon an individual's protected liberty interests. We conclude thatWhiteley is not controlling in the case before us. The issue in the case before us is close. In close cases, it is well to recall that the limitation upon the government's power of search and seizure, contained in the Fourth Amendment to the United States Constitution, is directed againstunreasonable searches and seizures: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches andseizures shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (Emphasis added.) Section 14, Article I of the Ohio Constitution is comparable. The touchstone of search-and-seizure analysis, in areas where the law has not been fully articulated, is whether a police officer has acted unreasonably in intruding upon a citizen's *Page 306 privacy. In the case before us, we cannot find Officer Crigler's act of stopping Greer to have been unreasonable under all the circumstances. The state's sole assignment of error is sustained. The state's assignment of error having been sustained, that part of the order of the trial court suppressing the evidence and dismissing the DUI and seatbelt charges is reversed, and that part of the order dismissing the illegal U-turn charge is affirmed. Judgment accordingly. WOLFF and GRADY, JJ., concur.

2016-07-06 06:36:26.221969+00

Putman

This is an appeal from a judgment of the Canton Municipal Court entered pursuant to proceedings under R. C. 4511.191, ordering the Registrar of Motor Vehicles of the state of Ohio not to suspend the driver's license of Sylvia Hurbean, hereinafter designated as the licensee. This matter was thoroughly considered by the trial court, as reflected by two separate journal entries, the first styled "Court's Ruling" filed April 18, 1969, and the second styled "Court's Ruling on Motion for Reconsideration — Reversal of Suspension Ruling" filed April 25, 1969. Because of the clarity with which they set forth the issues, we set them forth in full: "COURT'S RULING "This matter comes before the Court on an appeal from an order of the Registrar of Motor Vehicles suspending the operator's license of the appellant for a period of six months for having refused to take a chemical test, after having been arrested and charged with operating a motor vehicle while under the influence of alcohol. "The entire procedure in this case is subject to the provisions of R. C. 4511.191, effective 3/10/68. The gist of this section, and the penalties connected therewith is, `the refusal of the arrested person to take the test.' "R. C. 4511.191 subsection (F) provides in part: "`Any person whose license or permit to drive or nonresident operating privilege has been suspended under this section, may, within twenty days of the mailing of the notice provided above, file a petition in the Municipal Court or the county court, * * * in whose jurisdiction such person resides, agreeing to pay the cost of the proceedings and alleging error in the action taken by the Registrar of Motor Vehicles under division (D) * * *. The *Page 121 scope of such hearing shall be limited to the issues of whether a police officer had reasonable ground to believe the person had been driving a motor vehicle upon the public highway in this state while under the influence of alcohol, whether the person was placed under arrest, whether he refused to submit to the test upon request of the officer, and whether he was advised of the consequences of his refusal.' "Subsection (G) provides in part: "`In hearing the matter and determining whether such person has shown error in the action taken by the Registrar of Motor Vehicles under division (D) of this section, the court shall decide such issue upon the registrar's certified affidavit and such additional relevant, competent, and material evidence as either the registrar or the person whose license is sought to be suspended submits. "If the court finds from the evidence submitted that such person has failed to show error in the action taken by the registrar of motor vehicles under division (D) of this section or in one or more of the matters within the scope of the hearing as provided in division (F) of this section * * *.' "The court notes that subsection (G) places the burden of proof on the appellant to show any error in the action taken by the Registrar. This subsection also provides that the court shall decide this issue upon the registrar's certified affidavit and such additional evidence as either side submits. "The scope of the hearing is also spelled out in subsection (F) of R. C. 4511.191, namely: "1. Whether the officer had reasonable grounds to believe that the defendant had been driving a motor vehicle upon the public highways in this state while under the influence of alcohol. "2. Whether the defendant was placed under arrest. "3. Whether she refused to submit to the test upon request of the officer. "4. Whether she was advised of the consequences of her refusal. *Page 122 "The appellant offers no evidence and raises no issue on the first three grounds. On issue number 4 there is no denial that she was offered some advice, and that something was read to her, but that she did not understand the meaning of what was read and said to her. "The court believes that both officers did tell her that if she did not take the test she would lose her license for six months. The appellant has been in this country for many years, during which she has been exposed to the English language, and a person who speaks a foreign language usually understands English better, and before they learn to speak it. "The court is of the opinion that the appellant has failed to show any error in one or more of the matters within the scope of this hearing in the action taken by the Registrar of Motor Vehicles, and the court hereby assesses the costs against the appellant and orders that the operator's license of the appellant be and the same is hereby suspended for a period of six months. Exceptions to the appellant. "JUDGE" "COURT'S RULING ON MOTION FOR RECONSIDERATION — REVERSAL OF SUSPENSION RULING "The defendant has filed a motion for reconsideration which has caused the court added concern as to the correctness of the decision heretofore rendered. The court is satisfied with the analysis of the applicable parts of the statute and the burden placed upon the defendant or appellant in this case. "Webster's Third New International Dictionary defines the word `understand' as follows: `To grasp the meaning of; comprehend. To apprehend the meaning or idea by knowing what is conveyed by the words.' "The exact state of the mind of the defendant at the time of her arrest and as to how clear she did or did not understand what was told her, only she will ever know. The court has attempted to form a mental picture of the events and circumstances surrounding her apprehension and detention. The court pictures this defendant stopped by a police officer a few blocks from her home late at night. *Page 123 She is somewhat of an emotional person, and there were words, and even a tussle between her and the arresting officer to the extent that she suffered a cut on her hand and she was handcuffed. "The court further notes that her English was not too good, and as heretofore stated, just how much and how well she understood everything that was said and read to her under these circumstances, is subject to some question or doubt in the court's mind. "This being a criminal case, every phase of the proof on behalf of the State ought to satisfy a court beyond a reasonable doubt. Her knowledge and understanding is an essential element to be considered. "Taking all of these things into consideration, the court believes that error was committed in the opinion heretofore rendered, and now reverses said opinion, and finds that the petitioner has shown error in the proceedings, and the petition is granted and no suspension of her driver's license shall be imposed. "Exceptions to the state. "JUDGE" After these Municipal Court proceedings were completed and this matter pending in our Court of Appeals, the Supreme Court of Ohio in the case of State v. Starnes, 21 Ohio St. 2d 38, decided January 14, 1970, that the "Implied Consent" statute, R. C. 4511.191, was civil and administrative in nature and constitutional. The second paragraph of the syllabus reads: "Section 4511.191 (F), Revised Code, does not violate the due process clause of the Fourteenth Amendment to the United States Constitution by permitting suspension of a person's driver's license upon proof less than proof beyond a reasonable doubt that (1) a police officer had reasonable ground to believe the person had been driving a motor vehicle upon the public highways in this state while under the influence of alcohol (2) the person was placed under arrest (3) the person refused to submit to a chemical test upon request of the officer and (4) the person was advised of the consequences of her refusal. Proceedings under *Page 124 Section 4511.191 (F), Revised Code, are civil and administrative in nature and are intended for the protection of the traveling public, and are independent of any criminal proceedings which may be instituted pursuant to other statutes or ordinances." Applying that paragraph of the syllabus, we hold that it was reversible prejudicial error to require proof "beyond a reasonable doubt." In view of the fact that the first two justiciable issues under R. C. 4511.191 (F) were resolved in favor of the state, no prejudice respecting the court's finding on those issues appears to have been done the state. Likewise, the court's finding on the third and fourth justiciable issue, that, in fact, the officers had requested her to take a test and had given the licensee the requisite statutory advice in the statutory form and manner, was in favor of the state. No prejudice results therefrom even though the court stated that it tested the evidence by the standard of "beyond a reasonable doubt." The Municipal Court did not, in its second entry, state upon which justiciable issue it had erred in the first entry. Therefore, we proceed to examine which, if any, statutory issues require a subjective understanding on the part of the licensee. I. For reasons hereafter stated, only the statutory issue of refusal to take the test, when requested by the officer, could possibly include the factual question of the licensee's understanding. Because of the licensee's admissions on cross-examination, it is insupportable to construe the Municipal Court's second entry, finding reasonable doubt that the licensee "understood everything that was said and read to her under these circumstances," to include doubt that she understood she was being asked to take a test to determine if she were drinking. However, under the Starnes case, 21 Ohio St. 2d 38, the presence of reasonable doubt on any fact does not constitute legal error in the record, and we *Page 125 hold that the Municipal Court erred prejudicially to the state of Ohio in holding that it was. Having determined that a reversal is required, we must determine whether to remand the cause to the Municipal Court for rehearing or enter final judgment in favor of the state. II. Therefore, we confront the legal question whether on this record reasonable minds could differ as to whether the licensee refused to take the test. This includes the question of law whether the evidence in this record is unclear by any degree of proof less than "beyond a reasonable doubt" that in fact she did not understand she was being requested to take a test by the officer. We determine both those points of law against the licensee. III. The statute provides that persons "incapable of refusal" are deemed not to have withdrawn their "implied consent" to take the test and authorizes the officers to test them. The licensee does not claim, nor does any evidence indicate, that she was such a person. Her claim is simply that (1) she did not understand why the officers wanted to test her or (2) the consequences of her refusal. For reasons which follow, we hold, as a matter of law, that she has demonstrated no error in this respect. On cross-examination the licensee admitted that she knew that the officers were asking her to take a test and that the purpose of the test was to determine whether she had been drinking. However, she had already admitted drinking; therefore, she couldn't understand why they wanted to test her to find out something she had already told them: "Q. And, you say that they did ask you to take a test? "A. Well, to tell the truth, they asked me to take a test. I told them I knew I was drinking, I don't know it was a must, I knew I was drinking a little bit, I tell them. *Page 126 "Q. You knew what the test was for, to test whether or not you were drinking or not? "A. Well, yes, but I say I was drinking; I told them I worked from different places; I told them I was drinking; that is all I know. "Q. Did you know why they wanted you to take a test? "A. I don't know why. "Q. They didn't tell you why? "A. No, sir." We hold, as a matter of law, that that is an admission of all the understanding necessary to establish an actual refusal to take the test. IV. An understanding of the advice respecting the consequences of a refusal to take the chemical test is not an element of the mental process of refusal to take the test. All the understanding requisite to a refusal to take the test is an understanding that one has been asked to take a test. One who does not understand he has been asked to take a test cannot, of course, be said to have refused to take a test. Whether one who has been asked to take a test has understood that such a request has been made is a question of fact to be determined by the court from all the evidence. In this case it was admitted. This evidence may include the licensee's claim that he did not understand the advice as to the consequences of the refusal to take the test. But an understanding of the consequences of the refusal to take the test is not an element of understanding that a request to take the test has been made, nor a precondition of refusal. The fact of refusal to take the chemical test provided for in R. C. 4511.191 appears whenever a preponderance of all the evidence shows that, under the circumstances described in the statute, the person who was given the request and advice in the statutory manner and form has thereafter conducted himself in such a way as to justify a reasonable person in the position of the requesting officer reasonably to believe that such requested person was *Page 127 capable of refusal and manifested unwillingness to take the test. We hold, as a matter of law, that reasonable minds could only conclude that such a refusal was shown by this evidence. We recognize that the Legislature has required an actual subjective refusal to take the test, but in this, as in all other cases, the state of the person's mind must be gathered from all the evidence, including that of his objective conduct. In these civil administrative licensing cases this includes all reasonable inferences flowing from his having voluntarily operated a motor vehicle upon the public highways of this state. Minimum language skills are inherent in the ability to drive safely and essential to pass the written licensing examination. Conversations with an arresting officer are now a part of the statutory administrative procedures included in the basic fabric of the Ohio driver's licensing regulations. We hold that a person who voluntarily operates a motor vehicle upon the highways of this state is estopped, in a proceeding under R. C. 4511.191, to assert insufficient language skill to comprehend the request and advice provided in R. C.4511.191 (C), when received in the statutory manner and form. For a stronger reason, the incapacity cannot be asserted where it depends in part upon the effect of alcoholic beverages upon the licensee. Reasonably extended, such a contention would require that a statute enacted to clear drunk drivers from the highway could be judicially repealed by the defense of "too drunk to understand" the licensing procedures. In the instant case the arresting officer felt it necessary to restrain the licensee with handcuffs. There was no claim that she lacked capacity to refuse the test, and the evidence confirms that she had the capacity to and did effectively block the taking of the test. It is not clear what proportionate causal role the licensee's temperment, voluntary use of alcohol and lack of language skill played in this regrettable incident. What *Page 128 is clear is that, taken together, the circumstances aggravate rather than mitigate. They justify the suspension rather than avoid it. V. One contention advanced is that her refusal to take the test was based upon her desire to avoid losing her license as a result of a conviction for operating under the influence of alcohol, which would have resulted from the evidence of the test, and her failure to appreciate that her refusal to take the test would cause her to lose her license for a longer period of time than would a conviction for driving under the influence of alcohol. That contention cannot prevail, for the reason that there is no requirement that the officer give her any advice respecting the license suspension consequences of a driving-under-the-influence conviction or any legal opinion as to the comparative severity of the two upon her personal right to drive. In short, it is no defense, even if true, that she did not understand a subject upon which the officers are neither required nor permitted to give her legal advice. VI. It is conceivable that the trial court took the view that, as a matter of law, an indispensible element of the registrar's authority to suspend a license under R. C. 4511.191 is a subjective understanding on the part of the licensee of the statutory advice given. The statute expressly enumerates the factual issues which the Municipal Court may judicially determine, and that issue is not one of them. We do not examine the general finding made by the trial court, that there is reasonable doubt on the evidence before it respecting the licensee's understanding, because State v.Starnes, 21 Ohio St. 2d 38, renders that finding without legal consequence. Nor do we examine the implied included specific finding of the trial court finding reasonable doubt that the licensee understood the advice given to her respecting the consequences of her refusal to take the test. We hold, as a matter of law, that this is not an independently justiciable issue. *Page 129 Whether that fact is shown by the evidence by any degree of proof is without independent legal consequence. We hold, as a matter of law, that, where there is, in fact, a refusal to take the test, and where the advice as to the consequences of the refusal to submit to the test is given in the manner and form prescribed by the statute, it is not a defense to the license suspension that the licensee did not subjectively understand or fully comprehend the consequences of refusing to take the test. If there was no subjective awareness on the part of the licensee that she was being asked to take the test, then, of course, it could not be true that she refused to take it. However, refusal to take a test when requested is a separate factual matter from an understanding of the consequences of the refusal. Evidence bearing upon the fact question of whether the person under arrest understood what was told him may be considered for whatever light, if any, it may shed upon the issue whether such person did, in fact, refuse to submit to the test. However, where, under the statutory circumstances, there is in fact a refusal to take the test and where the advice as to the consequences of the refusal to submit to the chemical test is given in the manner and form prescribed by law, nothing more need be shown. The issue whether the advice was subjectively understood by the person under arrest is not an independently justiciable issue. The Legislature has prescribed the form and manner in which the advice must be given to the licensee by the officer, and when compliance with all the statutory procedures appears it is not legally permissible or competent for the licensee to negate such compliance by establishing the fact that he did not understand the advice. It is not mysterious why the Legislature has clearly provided the foregoing. The broad purpose of the statutes is to clear the highways of unsafe drivers, and the Legislature has not provided a means for the licensee to regain his license merely by asserting those personal defects which tend to impair his ability to be a safe driver. *Page 130 The title "Implied Consent," following the statute number, is expressly stated in the first paragraph to relate to consent to a chemical test, and immediately thereafter the Legislature provides that those incapable of refusal shall be deemed not to have withdrawn this consent, and the test may be administered in those cases. A statute authorizing a test upon a "person who is dead, unconscious, or who is otherwise in a condition rendering him incapable of refusal, * * *" should not be judicially amended to prohibit a test upon someone incapable of understanding advice. Those provisions are constitutionally authorized, reasonable regulations, under the police power of the state, in the interest of public safety, upon the privilege to operate a motor vehicle upon a public street or highway. VII. Although it was never called to the attention of the Municipal Court nor in the brief in this court, it was discussed in oral argument before this Court of Appeals that the advice given under R. C. 4511.191 (C) did not include the advice which is contained in the last paragraph of R. C. 4511.19. We hold it need not. Those two paragraphs read as follows: R. C. 4511.191. IMPLIED CONSENT. "(C) Any person under arrest for the offense of driving a motor vehicle while under the influence of alcohol shall be advised at a police station of the consequences of his refusal to submit to a chemical test designated by the law enforcement agency as provided in division (A) of this section. The advice shall be in a written form prescribed by the Registrar of Motor Vehicles and shall be read to such person. The form shall contain a statement that the form was shown to the person under arrest and read to him in the presence of the arresting officer and one other police officer or civilian police employee. Such witnesses shall certify to this fact by signing the form." R. C. 4511.19. DRIVING WHILE INTOXICATED OR DRUGGED; TEST; BLOOD ALCOHOL CONTENT. "The person tested may have a physician, or a qualified *Page 131 technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a police officer, and shall be so advised. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a police officer." We hold that the two statutes are to be read separately. The second paragraph of the syllabus of State v. Starnes, 21 Ohio St. 2d 38, says that proceedings under R. C. 4511.191 are "independent of any criminal proceedings * * *." Had the Legislature wished to require, as a matter of law, that the advice under civil R. C. 4511.191 (C) include the advice stated in the last paragraph of criminal R. C. 4511.19, it would have been a simple thing for it to make an express statement in that section to that effect. These statutes were not hastily drawn nor thoughtlessly considered. Their provisions have been hammered out by the legislatures of many other states and, as pointed out by our Supreme Court in the Starnes case, supra, have been litigated in the highest courts of several other states. "* * * for the sure and true (a) interpretation of all statutes in general (be they penal (B) or beneficial, restrictive or enlarging of the common law,) * * * "* * * the office of all the judges is always to make such (d) construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act, pro bono publico." Heydon'scase (1584), 3 Co. Rep. 7 a, 76 Eng.-Rep. 637, at 638. The statutes, R. C. 4511.19 and R. C. 4511.191, are a legislative response to the mischief of drunk drivers. Those statutes have as their general purpose the protection of the public from drunk drivers, and to give effect to that general purpose there is prescribed separate from, independent of, and cumulative to criminal prosecution a clear remedy of suspending the licenses of those drivers *Page 132 who refuse to take a sobriety test. We construe the statute to suppress the mischief and advance the remedy. VIII. The last issue to consider relates to the statutory requirement that the officer show the licensee the form required by R. C. 4511.191. R. C. 4511.191 provides in pertinent part as follows: "(C) Any person under arrest for the offense of driving a motor vehicle while under the influence of alcohol shall be advised at a police station of the consequences of his refusal to submit to a chemical test designated by the law enforcement agency as provided in division (A) of this section. The advice shall be in a written form prescribed by the Registrar of Motor Vehicles and shall be read to such person. The form shallcontain a statement that the form was shown to the person underarrest and read to him in the presence of the arresting officer and one other police officer or civilian police employee. Such witnesses shall certify to this fact by signing the form. "(D) If a person under arrest for the offense of driving a motor vehicle while under the influence of alcohol refuses upon request of a police officer to submit to a chemical test designated by the law enforcement agency as provided in division (A) of this section, after first having been advised of theconsequences of his refusal as provided in division (C) of thissection, no chemical test shall be given, but the registrar of motor vehicles, upon the receipt of a sworn report of a police officer that he had reasonable grounds to believe the arrested person had been driving a motor vehicle upon the public highways of this state while under the influence of alcohol and that the person refused to submit to the test upon the request of the police officer and upon the receipt of the form as provided indivision (C) of this section certifying that the arrested person was advised of the consequences of his refusal, shall suspend his license or permit to drive, or any nonresidence operating privilege for a period of six months, subject to review as provided in this section; * * *." (Emphasis added.) *Page 133 For this Court of Appeals to render a final judgment of suspension, we would be required to find as a matter of law, construing the evidence most favorably in favor of the licensee, that reasonable minds could only conclude that the form was shown to Sylvia Hurbean. The evidence does not call for such a finding. We hold that the Legislature has made showing the form to the licensee a condition precedent to the existence of refusal, and that the evidence on this issue requires a remand for rehearing. On this fact issue of whether the form was shown to her, Sylvia Hurbean, the licensee-appellant in the case at bar testified: "Q. Can you tell us today whether or not you saw a piece of paper like this that evening or whether it was shown to you? "A. No, sir. "Q. Did they show you anything? "A. No, didn't see nothing. "Q. You didn't see a paper like that? "A. No. "Q. Do you know whether or not the officer read something to you from a paper? Do you know whether the officer read anything from a paper? "A. I can't remember that." "* * * "Q. Did you know why they wanted you to take a test? "A. I don't know why. "Q. They didn't tell you why? "A. No, sir. "* * * "Q. Do you remember them reading to you from a paper? "A. No, I don't remember that." "* * * "Q. Did he have a piece of paper in front of him or in his hands? "A. I don't see it." *Page 134 * * * "Q. Do you remember him telling you if you didn't take the test, your license would be taken from you? "A. No, he asked me, would I take the test. I said I know I was drinking. "Q. And, no one asked you anything about it, or told you anything about it, is that what you are saying? "A. No, they put me in jail after that over there." The affidavit filed in Municipal Court containing as a part thereof the form prescribed under R. C. 4511.191 (C), by the Registrar of Motor Vehicles was signed by Patrolman G. S. Skraba, arresting officer, and witnessed by E. E. Schoeneman, Jailer. Pertaining to whether the form was read to and shown to Sylvia Hurbean as required by the provisions of subsections (C) and (D), supra, of R. C. 4511.191, Patrolman Skraba testified that he read it to her, and that Schoeneman did not read it to her. With reference to showing her the test, Patrolman Skraba testified: "Q. This form that you use says in bold lettering `The following must be read and shown to the person under arrest'; isn't that right? "A. That is what it reads, yes, sir. "Q. And, you cannot say here today that you showed her a form of this kind, isn't that right? "A. That is right, I do not remember." For the foregoing reasons, the judgment is reversed and the cause is remanded to the Canton Municipal Court for further proceedings according to law not inconsistent with this opinion. Judgment reversed and cause remanded. VAN NOSTRAN, P. J., and RUTHERFORD, J., concur in the syllabus and in the judgment of reversal and remand to Canton Municipal Court for a new trial and further proceedings according to law. *Page 135

2016-07-06 07:30:03.931626+00

Day

The question here presented is whether, in granting the plaintiff herein a new trial, the court abused its discretion. The granting of a motion for a new trial is not a final order and, therefore, not subject to review, except in cases where it clearly appears from the record that the trial court has abused its discretion in so doing. Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221, and cases there cited. It is basic that litigants are entitled to have their rights tried and determined by a jury of impartial, unprejudiced and unbiased men and women. To enable litigants to test the qualifications of prospective jurors, the law affords them the right to conduct voir dire examinations. "The purpose of the examination of a prospective juror upon his voir dire is to determine whether he has both the statutory qualifications of a juror and is free from bias or prejudice for or against either litigant." Paragraph one of the syllabus of Dowd-Feder, Inc., v. Truesdell, 130 Ohio St. 530,200 N.E. 762. *Page 175 To make voir dire examinations serve the purpose intended, it is essential that the prospective juror examined should search his memory and give frank and truthful answers to the questions propounded. Where, on voir dire examination, the undisclosed or denied facts are such as to be indicative of a mind which it is reasonable to believe is biased or prejudiced, or such as would disqualify the prospective juror in the first instance, the granting of a new trial under such circumstances is not an abuse of discretion. The trial court, in granting the motion for a new trial, made the following entry: "Motion for new trial is granted on the sole ground that two jurors did not fully disclose regarding former accidents." There were three jurors who did not fully disclose former accidents, and since the depositions of all three and the facts surrounding their fitness to serve as jurors were before the court, and since the trial court did not mention which two he referred to in the journal entry, we may assume that juror Elmer J. Mlinar was one of the two jurors considered. Juror Marie E. Robinson had sustained minor injuries about two or three years prior to the trial of this case and had collected $10 in settlement thereof. It is altogether reasonable to assume that she had completely forgotten the occurrence, as she testified. The fact that a juror recalls trifling incidents after trial which he had completely forgotten during the voir dire examination, does not necessarily show that the juror was disqualified. Drury v. Franke, 247 Ky. 758, at 795,57 S.W.2d 969, 88 A. L. R., 917, at 940. With respect to juror Herman C. Neitzel, the injury to his son was not sustained in an automobile accident. It is therefore reasonable to assume that in answering the interrogations of plaintiff's counsel, the juror was honestly mistaken in the scope of counsel's inquiry and assumed that it was directed to automobile accidents. *Page 176 With respect to juror Elmer J. Mlinar, the accident which he sustained was minor, with no resultant damage, and it is very likely that he had forgotten it. However, when he was asked: "Have you done any work for any automobile liability insurance company that insures motorists?" he answered: "No." Yet, on deposition, he admitted that he had worked for the Pinkerton Detective Agency, and, in connection with the duties of his employment, had been engaged in "adjusting — investigating and adjusting — personal injury accidents." It is highly improbable that this juror had forgotten having been thus employed. From his testimony on deposition, we are of the opinion that he had intentionally withheld this information, to the prejudice of the plaintiff. Had the juror been frank and disclosed on voir dire examination the facts which he disclosed on deposition, the plaintiff would have had an opportunity to exercise his right of peremptory challenge. Not having made such disclosure, plaintiff lost a valuable right. See Mathisen v. Norton, 18 Wash. 240, 60 P.2d 1. In view of all the above, we are of the opinion that the trial court did not abuse its discretion in granting a new trial to the plaintiff. The judgment of the Court of Appeals is affirmed. Judgment affirmed. WEYGANDT, C.J., ZIMMERMAN, WILLIAMS and HART, JJ., concur. MATTHIAS, J., concurs in the judgment. *Page 177

2016-07-06 06:36:29.637413+00

OPINION *Page 2 {¶ 1} Defendants-appellants Mohammad Meslat, dba Lakeshore Farm Market, Alhasake, Inc. dba Midtown Market and Mario Meslat appeal from the June 12, 2007, Judgment Entries issued by the Canton Municipal Court overruling their Motions to Vacate Judgment. STATEMENT OF THE FACTS AND CASE {¶ 2} On November 6, 2006, appellee Amster-Kirtz Company filed a complaint (Case No. 2006-CVF-8736) against appellants Alhasake, Inc. dba Midtown Market c/o Mohammad Meslat and Mario Meslat1 in the Canton Municipal Court. Appellee, in its complaint, alleged that such appellants had failed to pay it the sum of $3,260.98 for goods delivered by appellee to appellant Alhasake pursuant to a "Credit Application and Terms and Conditions of Sale." Appellee, in its complaint, further alleged that appellant Alhasake had presented four checks to appellee which were returned due to insufficient funds, for an additional $200.00 in damages. Moreover, appellee, in its complaint, alleged that the Sales Agreement executed by appellant Mario Meslat contained a personal guaranty and that appellant Mario Meslat was, therefore, personally liable to appellee in the amount of $3,460.98 ($3,260.98 plus $200.00). {¶ 3} On the same date, appellee filed a complaint (Case No. 2006-CVF-8759) against appellant Mohammad Meslat, dba Lakeshore Market, alleging that, in accordance with the Sales Agreement between the parties, appellee had delivered goods valued at $1,081.27 to such appellant and that such appellant had failed to pay for the same. Appellee further alleged that such appellant had presented a check to it *Page 3 which was returned for insufficient funds for an additional $50.00 in damages. Appellee alleged a total of $1,131.27 in damages ($1,081.27 plus $50.00). {¶ 4} With respect to Case 2006-CVF-8736, appellant Meslat was personally served with a copy of the summons and complaint by certified mail at his home address on November 9, 2006. In addition, a copy of the summons and complaint sent by certified mail to the address of the Midtown Market was signed for on November 8, 2006 by Brenda Lafferty. {¶ 5} With respect to Case No. 2006-CVF-8759, appellant Meslat was personally served by certified mail with the summons and complaint at his home address on November 9, 2006. A copy of the summons and complaint sent by certified mail to the address of the Lakeshore Farm Market was signed for on November 30, 2006 by Gaston Dowthy. {¶ 6} After appellants failed to file an answer in either case, appellee, on December 21, 2006, filed Motions for Default Judgment in both cases. Pursuant to a Judgment Entry filed on December 26, 2006 in Case No. 2006-CVF-8736, appellee was granted judgment against appellants Alhasake, Inc., dba Midtown Market and Mario Meslat in the amount of $3,460.98 plus interest. Pursuant to a separate Judgment Entry filed on December 28, 2006 in Case No. 2006-CVF-8759, appellee was granted judgment against appellant Mohammed Meslat, dba Lakeshore Farm Market in the amount of $1,131.27 plus interest. {¶ 7} Thereafter, on May 25, 2007, appellants filed Motions to Vacate Judgment pursuant to Ohio Civil Rule 60(B) in both cases. Attached to both motions was an affidavit from appellant Mohammad Meslat. Appellant Meslat, in his affidavits, alleged *Page 4 that he was in an automobile accident on October 29, 2006, and that, due to his injuries and medications that he was on, he was not able to engage in his normal routine, including the running of his businesses. He further alleged that he had to close his business for a few months after the accident. Appellant Meslat further alleged in his affidavits as follows: {¶ 8} "Affiant further says that he became aware on May 22, 2007, that his minor daughter signed a certified mail service for him giving him notice that a debtor's examination was scheduled in this matter on June 20, 2007, which caused him to request undersigned counsel to represent him and which resulted in a docket check of this matter which reveals service on Defendant back on November 9, 2006, upon a person who helped him out in the store right after the accident and in another case filed simultaneously with Case No. 206 CVF 8736, namely, Case No. 2006 CVF 8759 by the Plaintiff against him, by a tenant at the commercial address of 14824 Lakeshore Boulevard, Cleveland, Ohio and that he does not recall being informed by either of these people that mail came for him and was not otherwise aware that these undesignated persons signed mail for him and neither are his agent per se. {¶ 9} "Affiant futher (sic) says that he has a dispute with the Plaintiff as to an alleged amount of indebtedness and wants the opportunity to be heard so that he may raise his legal and equitable defenses in this dispute between these parties by having his full day in court to decide the merits of this case." {¶ 10} A joint hearing on both of appellants' Motions to Vacate Judgment was held before the trial court on June 11, 2007. Appellant Mohammad Meslat, his counsel and appellee's counsel were present at the hearing. *Page 5 {¶ 11} At the hearing, appellant Mohammad Meslat testified that he was the owner and President of a corporation named Alhasake, Inc. located in Elyria, Ohio and that Lakeshore Farm Market was not a corporation. Appellant Meslat testified that he did not recall being served with a copy of the complaint and did not become aware until he was notified of the judgments against him. {¶ 12} Appellant Meslat testified that the order which appellee had delivered to Lakeshore Market was the wrong order and that he had called appellee and was told that it would take care of the problem. According to appellant Meslat, appellee never did. He further testified that, at one point, appellee agreed to go to the Lakeshore Market to pick up money because the check that was sent to appellee was returned due to insufficient funds. Appellant testified that the order to Lakeshore Market was short two cartons of cigarettes. He further testified that, due to his car accident, he had shots of morphine in his back and took pain mediation that caused him to become sleepy and dizzy. Because of the accidents appellant Meslat was not able to drive or carry more than three pounds. {¶ 13} On cross-examination, appellant Meslat was questioned about the $1,087.21 invoice (Exhibit C) for Lakeshore Market. He testified that the signature on the invoice "could be" someone who worked for him and agreed that the invoice stated that a signature signified a correct cigarette count. He further testified that, on the credit application for Alhasake, Inc. he signed under the word guarantor. {¶ 14} On redirect, appellant Meslat testified that when cigarette cartons are delivered, he does not normally stand and count them while the delivery person waits. Appellant testified that if there is a discrepancy in an order, he normally calls appellee's *Page 6 office and that when he called to report that two cartons of cigarettes were missing from the Lakeshore Market order, he was not told that, because of the signature on the invoice, appellee was unable to help him. {¶ 15} As memorialized in Judgment Entries filed on June 12, 2007 in both cases, the trial court overruled both of appellants' Motions to Vacate Judgment, holding that appellants had failed to demonstrate a meritorious defense and excusable neglect. {¶ 16} Appellants now appeal from the trial court's June 12, 2007, Judgment Entry in Case No. 2006-CVF-8759. Such appeal has been assigned Case No. 2007CA00189. Appellants also appeal from the trial court's June 12, 2007, Judgment Entry in Case No. 2006-CVF-8736. Such appeal has been assigned Case No. 2007CA00190. {¶ 17} Appellants raise the following assignments of error in both cases: {¶ 18} "I. THE TRIAL COURT ERRED BY APPLYING THE WRONG STANDARD IN DECIDING DEFENDANTS-APPELLANTS' MOTION TO VACATE PURSUANT TO OHIO CIVIL RULE 60(B). {¶ 19} "II. THE TRIAL COURT ERRED BY ALLOWING EXHIBITS TO BE INTRODUCED INTO EVIDENCE OVER DEFENDANTS-APPELLANTS' OBJECTION WHEN THE PLAINTIFF DID NOT APPEAR TO INTRODUCE SAME INTO EVIDENCE AND THE SAME WAS NOT OTHERWISE AUTHENTICATED. {¶ 20} "III. THE TRIAL COURT ERRED BY PROCEEDING WITH THE EVIDENTIARY HEARING WHEN THE PLAINTIFF DID NOT APPEAR. *Page 7 {¶ 21} "IV. THE TRIAL COURT ERRED AS ITS DECISION WAS ARBITRARY, UNREASONABLE AND UNCONSCIONABLE AND/OR AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 22} "V. THE TRIAL COURT ERRED WHEN IT FOUND THAT IT HAD SUBJECT MATTER JURISDICTION OF THE ISSUES ALLEGED IN THE COMPLAINT AS CONCERNS TRANSACTIONS THAT OCCURRED IN LORAIN COUNTY, OHIO AND CUYAHOGA COUNTY, OHIO. {¶ 23} "VI. THE TRIAL COURT ERRED BY NOT CONDUCTING SEPARATE EVIDENTIARY HEARINGS FOR CASE NOS. 2006 CVF 8759 AND 2006 CVF 8736 GIVEN ONLY THE PLAINTIFF IS THE SAME, BUT THE DEFENDANTS-APPELLANTS ARE DIFFERENT ENTITIES." {¶ 24} Although not consolidated, we shall address the two cases together for purposes of judicial economy. I, IV {¶ 25} Appellants, in their first assignment of error in each case, argue that the trial court applied the wrong standard in ruling on appellants' Motions to Vacate pursuant to Civ. R. 60(B). Appellants, in their fourth assignment of error in both cases, argue that the trial court's decision was arbitrary, unconscionable or unreasonable. We disagree. {¶ 26} Civ. R. 60(B) provides the basis upon which a party may obtain relief from judgment, and states in pertinent part: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable *Page 8 neglect; . . . or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules." "A motion for relief from judgment under Civ. R. 60(B) is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion." Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. See also Citibank (SouthDakota), N.A. v. Stein, Fairfield App. No. 05CA71, 2006-Ohio-2674 at paragraph 27. {¶ 27} The Ohio Supreme Court interpreted Civ. R. 60(B) in the seminal case of GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976),47 Ohio St.2d 146, 351 N.E.2d 113 as follows: "To prevail on his motion under Civ. R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ. R. 60(B)(1), (2), or (3), not more than one year after the judgment, order or proceeding was entered or taken." Id. at 150-151. {¶ 28} As an initial matter, we note that appellants contend that the trial court applied the wrong standard in ruling on their Motions to Vacate. As is stated above, the trial court, in its June 12, 2007, Judgment Entries, stated that it found that appellants had failed to demonstrate a meritorious defense and excusable neglect. There is no evidence that the trial court applied the wrong standard. *Page 9 {¶ 29} The issue thus becomes whether the trial court abused its discretion in overruling appellants' Motions to Vacate. While appellants maintain that they demonstrated excusable neglect for their failure to answer, we disagree. The record establishes that appellant Mohammad Meslat was personally served with a copy of the summons and complaint in both cases at his home on November 9, 2006. Appellant Mohammad Meslat testified that he was unable to respond to the two complaints because, due to a car accident, he was on pain medication for a back injury. {¶ 30} However, we "have no operative facts as to the severity of [appellant's] mental condition or whether [his] condition would have rendered [him] incompetent for purposes of receiving service or comprehending [him] legal obligations." See Fouts v. Weiss-Carson (1991), 77 Ohio App.3d 563, 566, 602 N.E.2d 1231. While appellant testified that he was on pain medication and that he was not permitted to drive a vehicle, there was no medical evidence before the trial court that appellant Mohammad Meslat was incompetent due to his pain and/or the medications that he was taking and could not manage his business affairs. We find, therefore, that appellants failed to establish excusable neglect. {¶ 31} We further find that the trial court did not abuse its discretion in overruling appellant's motions because appellants failed to demonstrate that they had a meritorious defense in either case. At the hearing in this matter, appellant Mohammad Meslat testified that, with respect to the Midtown Market, he executed the Credit Application and Terms and Conditions of Sale and that he also signed the personal guaranty. Testimony also was adduced that a check that was written to appellee on the appellant Alhasake's account on September 1, 2006, in the amount of $1,667.68 was *Page 10 returned due to insufficient funds. As noted by appellee, appellants did not at the hearing even allege a meritorious defense with respect to Case No. 2006-CVF-8736. {¶ 32} With respect to the Lakeshore Farm Market (Case No. 2006-CVF-8759), appellant testified at the hearing that he had a defense because his order was incomplete. However, testimony was adduced at the hearing that a check written on the account of Lakeshore Farm Market to appellee on August 31, 2006, for the full amount was returned due to insufficient funds and that, after being notified that the check was returned, appellant Meslat testified that he called appellee's office and agreed that appellee's salesman could come and pick up the money. Appellant Meslat further testified that the money was "there waiting for him to come and collect." Transcript at 13. {¶ 33} Based on the foregoing, we find that appellants failed to demonstrate that they had a meritorious defense in either case. {¶ 34} The trial court, therefore, did not err in overruling appellants' Motions to Vacate Pursuant to Civ. R. 60(B). {¶ 35} Appellants' first assignment of error in each case is, therefore, overruled. II {¶ 36} Appellants, in their second assignment of error in each case, contend that the trial court erred in allowing exhibits to be introduced into evidence over their objection when appellee did not appear to introduce the same into evidence and the same was not otherwise authenticated. {¶ 37} At the hearing in this matter, appellee presented the check that was issued to appellee from Lakeshore Farm Market and returned due to insufficient funds *Page 11 (Exhibit A), the check that was issued to appellee from Alhasake, Inc. and returned due to insufficient funds (Exhibit B), and the invoice for Lakeshore Farm Market showing a balance due and owing of $1,087.27 (Exhibit C). The final exhibits (Exhibit D E) that appellee admitted were the Credit Applications for Lakeshore Farm Market and Midtown Market. {¶ 38} At the hearing, appellants' counsel objected to the admission of such documents, stating as follows: {¶ 39} "BY MS. MESLAT: Well, I'll object for the record, but there's no one that I can cross examine to present it, and and (sic) hearsay grounds or other ability to authenticate it's origin or even whether it's the original — in fact, that one document is clearly an altered document. It has a piece a paper taped onto it. For those reasons, I would object, yes, Your Honor." Transcript at 25. {¶ 40} However, with regard to an objection based on lack of authentication, the provisions of Evid. R. 901(A) require only that a proponent of a document produce "evidence sufficient to support a finding that the matter in question" is what the proponent claims it to be. With respect to Exhibits A and B (the two checks), appellant Meslat testified that the checks were returned due to insufficient funds. When questioned about Exhibit C, the invoice for Lakeshore Market, appellant Mesalt testified as follows: {¶ 41} "Q. Okay. And is that for Lakeshore Market? {¶ 42} "A. Yes. {¶ 43} "Q. And how much was the invoice for? {¶ 44} "A. It was one thousand eighty-one twenty-seven. *Page 12 {¶ 45} "Q. Now there's a signature about two thirds of the way down. Do you recognize that signature? {¶ 46} "A. No, sir. {¶ 47} "Q. You don't recognize that as anyone who works for you? {¶ 48} "A. Mmm, must — must be they signed, yes. I don't recognize that. {¶ 49} "Q. Okay. So you think that somebody — it must be the signature of somebody who worked for you then? {¶ 50} "A. Could be." Transcript at 18-19. {¶ 51} Moreover, with respect to Exhibits D E, which were the Credit Applications for the two markets, appellant admitted signing the same under the word guarantor. In short, as noted by appellee, appellant Meslat himself authenticated the documents. {¶ 52} Furthermore, pursuant to Evid. R. 1003, a duplicate of a document is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original or in the circumstances it would be unfair to admit the duplicate in place of an original. With respect to Exhibits A, B, D, and E, appellant Mohammad Meslat did not raise a genuine question as to the authenticity of the checks and Credit Applications and did not present any evidence that it would be unfair to admit duplicates of the same. {¶ 53} Appellants' second assignment of error, in each case, is therefore, overruled. *Page 13 III {¶ 54} Appellants, in their third assignments of error in each case, argue that the trial court erred in proceeding with the hearing on June 11, 2007, when appellee did not appear. {¶ 55} As is stated above, appellant Mohammad Mesalt, his counsel and appellee's counsel appeared at the June 11, 2007, hearing. No representative appeared on appellee's behalf. {¶ 56} However, as noted by appellee, there is no requirement in the Civil Rules or elsewhere requiring a party to attend a hearing unless ordered to do so. Appellee was not ordered to appear at the hearing in this case. Moreover, because appellants filed the Motions to Vacate, the burden was on them to demonstrate that the requirements of Civ. R. 60(B) have been met. The burden was not on appellee and, for such reason, appellee need not appear. {¶ 57} Appellants' third assignment of error in each case is, therefore, overruled. V {¶ 58} Appellants, in their fifth assignment of error in each case, argue that the trial court erred in finding that it had subject matter jurisdiction of the issues alleged in the complaints. We disagree. {¶ 59} Ohio municipal courts can exercise only such powers as statutes confer upon them. State ex rel. Foreman v. Bellefontaine Mun. Court (1967), 12 Ohio St.2d 26, 27, 231 N.E.2d 70. R.C. 1901.17 states, in relevant part, as follows: "A municipal court shall have original jurisdiction only in those cases in which the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not *Page 14 exceed fifteen thousand dollars, except that this limit does not apply to the housing division or environmental division of a municipal court. As relevant here, R.C. 1901.18(A)(3) provides that "subject to the monetary jurisdiction of municipal courts * * *, a municipal court has original jurisdiction within its territory in * * * any action at law based on contract." {¶ 60} There is no dispute that appellee's two complaints both are based upon a contract claim and that the amount sought in both does not exceed $15,000.00. Therefore, the Canton Municipal Court had subject matter jurisdiction over this particular matter. {¶ 61} However, appellants argue that the Canton Municipal Court did not have territorial jurisdiction because appellant Meslat resides in Cuyahoga County and the two markets are located in Lorain County. Appellants contend that the transactions in both cases occurred in Lorain County. {¶ 62} Appellants are, in essence, challenging venue in this case. Venue "relates to the geographic division where a cause can be tried [.]" Morrison v. Steiner (1972), 32 Ohio St.2d 86, 88, 290 N.E.2d 841. Pursuant to Civ. R. 3(B), proper venue lies in the "county in which the defendant conducted activity that gave rise to the claim for relief" or in the "county in which all or part of the claim for relief arose." Civ. R. 3(B)(3) and (6). In a contract collection action, that county may include the location where the appellant was required to deliver money to the appellee. Soloman v. Excel Marketing, Inc. (1996),114 Ohio App.3d 20, 25-26, 682 N.E.2d 724. See also Oxford Systems Integration,Inc. v. Smith-Boughan Mechanical Services, 159 Ohio App.3d 533,2005-Ohio-210, 824 N.E.2d 586, in which the court held that the county in which the appellee had its offices *Page 15 (Miami County) was a proper venue for its action on an account against a customer. The court in such case noted that while the appellant complained that the only connection Miami County had with the transaction is that the appellant had sent several payments to the appellee at its offices in Miami County, "[w]e have held that form of contact sufficient to withstand a motion for change of venue." Id. at paragraph 27. {¶ 63} In the case sub judice, appellants were required to pay appellee in Canton, Ohio which is located in Stark County. The complaints in both cases are based on appellants' alleged failure to do so. We find, therefore, that venue was proper in the Canton Municipal Court. {¶ 64} Appellants' fifth assignment of error in each case is, therefore, overruled. VI {¶ 65} Appellants, in their final assignment of error in each case, contend that the trial court erred in not conducting separate evidentiary hearings in the two cases. Appellants note that while the plaintiff is the same in both cases, the defendants are different entities. {¶ 66} We note that at no point did appellants request separate hearings in this matter. We further note that there was only one witness and that appellants' counsel, during direct examination, questioned appellant Meslat about both cases. Thus, appellants were not prejudiced. {¶ 67} Appellants' sixth assignment of error in each case is, therefore, overruled. *Page 16 {¶ 68} Accordingly, the judgments of the Canton Municipal Court in Case Nos. 2006-CVF-8736 and 2006-CVF-8759 are affirmed. Edwards, J., Farmer, P.J., and Delaney, J., concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgments of the Canton Municipal Court, in Case Nos. 2006 CVF 8736 and 2006 CVF 8759 are affirmed. Costs assessed to appellants. 1 From the record, it appears that Mohammad Meslat and Mario Meslat are the same person. *Page 1

2016-07-06 06:36:29.676073+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiffs-appellants, Cornel Ungur, his wife, Doina Ungur, and their two daughters appeal the trial court granting summary judgment in favor of defendant-appellee, Buckeye Union Insurance Co. For the reasons that follow, we affirm in part and reverse in part the decision of the trial court. {¶ 2} In a complaint for Declaratory Judgment and breach of contract, plaintiffs sought underinsured (UIM) motorist coverage from defendant. Plaintiffs' request for UIM benefits arose from a motor vehicle accident in June 1995 in which Cornel Ungur was severely injured. In December 1995, plaintiffs settled with the tortfeasor1 and his insurance company for policy limits which were insufficient to fully compensate plaintiffs.2 It is undisputed that plaintiffs did not notify defendant of their settlement/release until approximately five years later. {¶ 3} In their complaint Plaintiffs claimed to be insureds under a policy of insurance held by Cornel Ungur's employer, Wire Lab Co., a part of Omni Tech Products Inc. The policy was issued by defendant. {¶ 4} Plaintiffs and defendant moved for summary judgment with the trial court granting judgment in favor of defendant. Appealing that order, plaintiffs assign the following error for our review: {¶ 5} "The Trial Court Erred In Granting Defendant-appellee Buckeye Union Insurance Company's (Aka Cna Insurance Company) Motion For Summary Judgment And Denying Plaintiffs' Motion For Summary Judgment On March 27, 2002." {¶ 6} Plaintiffs claim that the trial court erred in granting defendant's motion for summary judgment. Our review of the trial court's decision to grant summary judgment is de novo. Taylor v. Kemper Ins.Co., Cuyahoga App. No. 81360, 2003 Ohio 177 citing Zivich v. MentorSoccer Club (1998), 82 Ohio St.3d 367, 369-70, 696 N.E.2d 201. Civ.R. 56(C) provides that "summary judgment may be granted when the moving party demonstrates that (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, 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." Taylor, supra at ¶ 11; Holliman v. Allstate Ins. Co.,86 Ohio St.3d 414, 1999 Ohio 116, 715 N.E.2d 532; Harless v. Willis DayWarehousing Co. (1978), 54 Ohio St.2d 64, 65-66, 375 N.E.2d 46. {¶ 7} In the case at bar, the policy3 contains an endorsement titled {¶ 8} "Ohio Uninsured Motorists Coverage." That section states that Omni {¶ 9} Tech Products Inc. is the "named insured." The endorsement specifically modifies the insurance provided under the "Business Auto Coverage Form" and further defines an insured for purposes of UIM coverage as follows: {¶ 10} "B. Who is an Insured {¶ 11} "1. You. {¶ 12} "2. If you are an individual, any `family member'. [sic] {¶ 13} "3. Anyone else `occupying' a covered `auto' or a temporary substitute for a covered `auto'. [sic] The covered `auto' must be out of service because of its breakdown, repair, servicing, loss or destruction. {¶ 14} "4. Anyone for damages he or she is entitled to recover because of `bodily injury' sustained by another `insured'."4 [sic] {¶ 15} The auto policy also contains an endorsement captioned "Drive Other Car Coverage-Broadened Coverage for Named Individuals," which further modifies the insurance provided under the "Business Auto Coverage Form." The endorsement reiterates that Omni Tech Products Inc. is the "named insured" but now specifically identifies "Robert Olga Fulop" as additional insureds under the Schedule section of the policy.5 {¶ 16} Defendant argues that the inclusion of specific individuals as named insureds in the Broadened Coverage endorsement removes the ambiguity in `you' and, therefore, Scott-Pontzer v. Liberty Mut. Ins.Co. (1999), 85 Ohio St.3d 660, which resolves the ambiguity of "you," is not applicable. {¶ 17} In Warren v. Hartford Ins. Co., Cuyahoga App. No. 81139, 2002-Ohio-7067, this court reviewed a virtually identical endorsement to the one at issue in this appeal. In that case, we determined that because the issue then was currently pending before the Supreme Court of Ohio6 we followed "the rule as it was recently articulated in Addie v.Linville (Oct. 3, 2002), Cuyahoga App. Nos. 80547, 80916, 2002-Ohio-5333. In Addie, this court stated: `Primarily, we reject the notion that the holding of Scott-Pontzer does not apply because a separate endorsement modifies the Business Auto Coverage Form of the liability policy to add certain named individuals to the definition of who is an insured contained therein. We note that the particular endorsement relied upon does not substitute for, but rather explicitly adds to, the definition of who is an insured in the Business Auto Coverage Form. Thus, the ambiguity found in Scott-Pontzer remains and the ambiguous `you' must still be deemed to include employees of the corporate entity identified as the `Named Insured.' Independent of the fact, the Ohio Uninsured Motorists Coverage-Bodily Injury endorsement separately modifies the Business Auto Coverage Form by changing the provisions of `Who is An Insured' for purposes of UIM coverage. This endorsement does not reference the individuals identified in Drive Other Car Coverage-Broadened Coverage for Named Individuals endorsement.'"Warren, supra at ¶¶ 32-33. {¶ 18} While still awaiting a decision in Galatis, we continue to follow Addie and Warren. We, therefore, conclude plaintiff, Cornel Ungur, is an insured for purposes of UIM coverage under defendant's auto liability policy and thus the trial court erred in deciding otherwise. {¶ 19} Next, plaintiffs argue that the court erred in granting summary judgment in favor of defendant for a second reason: that they failed to give defendants timely notice of their claims and had settled with the tortfeasor. Defendant's policy requires plaintiffs to promptly notify it of any loss or accident and further requires defendant's consent prior to settlement. In addition, as insureds, plaintiffs were required to do everything necessary to protect defendant's subrogation rights. According to defendant, breach of any one of these provisions allows it to deny plaintiffs coverage. {¶ 20} According to the trial court, plaintiffs' settlement with the tortfeasor and their delay in giving notice of that settlement prejudiced defendant. In its order granting defendant judgment, the court found that five years was too long and stated: "To allow claims to be presented long after the time when notice of such claims would reasonably be considered to be timely and after full releases have been executed by the insureds to the underlying tortfeasor thereby extinguishing any subrogation right of the Defendant insurance carrier would be extremely prejudicial to the Defendant insurance carrier." {¶ 21} Plaintiffs maintain that neither of these issues can be determined on summary judgment. According to plaintiffs, the issues of whether their notice is unreasonable and whether their settlement prejudiced defendant, leave too many questions of material fact to be resolved under Civ.R. 56. {¶ 22} We agree in light of the Ohio Supreme Court's recent decision in Ferrando v. Auto-Owners Mutual Insurance, 2002-Ohio-7217, a decision not available to the trial court when it ruled. It was error to grant summary judgment for defendant, because there are genuine issues of material fact left to resolve: the issues of plaintiffs' notice and whether their settlement/release with the tortfeasor prejudiced defendant. {¶ 23} In Ferrando, the Court established a two-part test for late-notice UM/UIM auto insurance cases. First, the trial court must "determine whether a breach of the provision at issue actually occurred." Id., at ¶ 89. In making this determination, the court must consider the surrounding facts and circumstances of the notification. Second, if the notice given is deemed to be unreasonable, then there is a "presumption of prejudice to the insurer, which the insured bears the burden of presenting evidence to rebut." In light of the evidence presented, the court must then "inquire whether the insurer was prejudiced." Id., at ¶ 90.7 {¶ 24} The same analysis applies to the question of whether an insured breaches a consent-to-settle clause or other subrogation-related provision when, without notice to the insurer he settles/releases the tortfeasor. "We see no reason for a breach of a consent-to-settle clause or other subrogation-related provision in a UIM policy to be evaluated any differently than a breach of a prompt-notice provision. It is not logical that the breach of a notice provision should necessitate an inquiry into prejudice while the breach of a consent-to-settle provision should be deemed prejudicial to the insurer in all cases as a matter of law. To be consistent, the same fundamental inquiry should be applied in either case." Ferrando, at ¶ 84; see Karafa v. Toni, Cuyahoga App. No. 80664, 2003 Ohio 155. {¶ 25} Under Ferrando, the court must consider all the facts and circumstances surrounding plaintiffs' notice to defendant. If the court finds the delay/settlement unreasonable, then the trial court must determine whether either act prejudiced the insurance company. {¶ 26} In the case at bar, the trial court considered only the length of time that had passed between Ungur's accident and plaintiffs' notice to defendant. The court did the same thing when it looked at the issue of breach and the policy's subrogation provisions. By looking exclusively at the five-year time lapse and the fact that plaintiffs settled/released the tortfeasor, the trial court determined that defendant had been prejudiced. Under Ferrando, this conclusion satisfies only the first stage of the required analysis. It is also unclear which party the trial court assigned the burden of demonstrating prejudice. {¶ 27} Obviously, questions relating to breach, prejudice and whether plaintiffs met their burden of proof require the presentation and review of evidence not considered by the trial court before it granted defendant's summary judgment motion. On each of these issues there remain genuine issues of material fact yet to be determined. This court cannot say whether plaintiffs' five-year delay, in light of the surrounding circumstances and facts, constitutes "prompt notice" under defendant's policy. There is some evidence that, before the decision in Scott-Pontzer in June 1999, plaintiffs did not realize defendant's policy might provide a source of UIM coverage for them. Genuine issues of material fact, therefore, remain on the question of whether plaintiffs should have discovered the possible UIM coverage sooner than they did.8 SeeFerrando, ¶ 98. {¶ 28} Moreover, whether the tortfeasor was judgment proof, as plaintiffs claim, must be decided. Accordingly, the trial court correctly denied plaintiffs' motion for summary judgment but erred in granting summary judgment in favor of defendant. Plaintiff's sole assignment of error is therefore sustained in part and overruled in part. The judgment of the trial court granting summary judgment in favor of defendant is reversed. {¶ 29} The judgment of the trial court is affirmed in part and reversed in part and the case is remanded for further proceedings consistent with this decision. ANNE L. KILBANE, P.J., AND JOSEPH NAHRA (*SITTING BY ASSIGNMENT: JUDGE JOSEPH NAHRA, RETIRED, OF THE EIGHTH DISTRICT COURT OF APPEALS.), CONCUR. 1 Plaintiff alleges that at the time of the accident the tortfeasor was uncollectible. 2 At the time of the accident, Cornel Ungur exhausted his own UIM policy limits of $12,500 per person and $25,000 per accident. 3 The effective dates of the policy are May 24, 1995 to May 24, 1996. 4 This definition of an insured here is identical to the definition of an insured in the policy reviewed in Scott-Pontzer v. Liberty Mut.Ins. Co. (1999), 85 Ohio St.3d 660. 5 Under the "Changes in Auto Medical Payments and Uninsured and Underinsured Motorists Coverages," the endorsement also adds the following: "Any individual named in the Schedule and his or her `family members' are `insured' while `occupying' or while a pedestrian when being struck by any `auto' you don't own except: Any `auto' owned by that individual or by any `family member'." [sic] 6 In Westfield Ins. Co. v. Galatis (2002), 96 Ohio St.3d 1446,771 N.E.2d 260, the Ohio Supreme Court certified a conflict between the Summit County Court of Appeals and the Stark County Court of Appeals. The Court will decide "Whether the inclusion of a `Broadened Coverage Endorsement,' adding individual named insureds to a commercial motor vehicle liability policy, eliminates any ambiguity over the use of the term `you' therein?" 7 A breach is material only when the insurer is prejudiced by the breach. Ferrando, supra, at ¶ 30. 8 Plaintiffs' complaint was not filed until September 17, 2001.

2016-07-06 06:36:29.709374+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, George D. Pamer, appeals from the denial of his post-conviction petition in the Medina County Court of Common Pleas. This Court affirms. {¶ 2} On January 4, 2001, the Medina County Grand Jury indicted Appellant on four counts of trafficking in marijuana, two counts of possession of marijuana, one count of having a weapon under a disability, two counts of engaging in a pattern of corrupt activity, and two counts of conspiracy to engage in a pattern of corrupt activity, with forfeiture specifications. The Appellant pled not guilty to all of the charges and forfeiture specifications. On April 16, 2001, Appellant was charged with an additional count of money laundering. Appellant also pled not guilty to this charge. {¶ 3} On May 27, 2003, Appellant retracted his not-guilty plea and entered a plea of guilty to all of the charges. The court accepted Appellant's plea and found him guilty. On February 6, 2004, prior to sentencing, Appellant filed a motion to withdraw his guilty plea.1 The trial court denied the motion. On March 25, 2004, the court sentenced Appellant accordingly. {¶ 4} Appellant appealed to this Court from the trial court's denial of this motion, assigning error to the trial court's denial of his motion to withdraw his guilty plea. This Court affirmed the trial court's judgment in a decision and journal entry dated December 22, 2004. State v. Pamer, 9th Dist. No. 04CA0027-M, 2004-Ohio-7190, at ¶ 16. {¶ 5} In the interim, on November 14, 2004, Appellant filed a motion captioned a "Motion to Vacate and Set Aside Conviction" in the trial court. In this motion, Appellant raised a constitutional challenge of ineffective assistance of trial counsel, questioned the trial court's jurisdiction over his case, and challenged venue. In a judgment entry dated December 14, 2004, the trial court denied Appellant's motion, concluding that the court did not have jurisdiction to modify its judgment because Appellant appealed and the matter was pending with this Court. Appellant has appealed pro se from this judgment entry, asserting one assignment of error for review. Assignment of Error "THE TRIAL COURT ERRED WHEN THE COURT DISMISSED APPELLANT'S POST CONVICTION PETITION UNDER RC § 2953.21, DISREGARDING THE LANGUAGE BY THE LEGISLATION AWARDING THE COURT JURISDICTION TO ENTERTAIN THE PETITION[.]" {¶ 6} In his sole assignment of error, Appellant contends that the trial court erred when it denied his post-conviction petition. We disagree, for the following reason. {¶ 7} Pursuant to R.C. 2953.21(A)(2), a petition for post-conviction relief must be filed no later than 180 days after the day the trial transcript is filed in the direct appeal from the judgment of conviction and sentence, or, if no direct appeal is taken, 180 days after the expiration of the time to file an appeal. See App.R. 3(A) 4(A). A trial court is not to entertain a motion that is filed after the timeframe set forth in R.C.2953.21(A)(2). {¶ 8} In this case, the transcript was received and filed in this Court on May 14, 2004. Appellant filed his petition on November 15, 2004, 185 days after the filing of the transcript in the direct appeal from his conviction and sentence. Therefore, Appellant's motion was untimely. Furthermore, we find that none of the exceptions articulated in R.C. 2953.23(A) apply to allow the trial court to consider this motion. Thus, the trial court lacked the jurisdiction to entertain the motion. See State v.Elkins (Aug. 27, 2003), 9th Dist. No. 21380, at *2. {¶ 9} Based upon the foregoing analysis, we find that the trial court did not err in denying Appellant's petition. {¶ 10} Appellant's sole assignment of error is overruled. The judgment of the Medina County Court of Common Pleas is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. Slaby, P.J. Whitmore, J. Concur. 1 Appellant had volunteered to testify on behalf of the State at the forfeiture hearing of a co-defendant in 2003. Sentencing of Appellant was continued several times during this time.

2016-07-06 06:36:29.742117+00

OPINION {¶ 1} The appellant-defendant, Damien Jenkins (hereinafter "Jenkins"), appeals the judgment of the Henry County Court of Common Pleas finding him guilty of aggravated murder with a firearm specification. {¶ 2} Jenkins was indicted for aggravated murder with a firearm and a death specification. The April 24, 2001 indictment alleged that Jenkins fatally shot his father. At the time of his initial appearance, Jenkins was incarcerated in New York for two counts of assault, two counts of reckless endangerment, one count of resisting arrest, and one count of reckless driving. {¶ 3} On August 10, 2004, the trial court held a hearing on Jenkins competence to stand trial. At the competency hearing, the trial court reviewed reports from Dr. Gregory Forac and Dr. Bob Stinson concerning Jenkins competency. Dr. Forac's report found that Jenkins was "able to understand the nature and objectives of the proceedings which have been brought against him, and was capable of assisting his attorney in his own defense." Dr. Stinson's report, however, found that Jenkins was "not presently capable of assisting in his defense." Subsequently, the trial court found that Jenkins was incompetent to stand trial but was capable of being returned to competency within one year. The trial court ordered Jenkins to Twin Valley Behavioral Health Care (hereinafter "Twin Valley") to undergo treatment. {¶ 4} On November 8, 2004, the trial court held a second competency hearing. At that hearing, the trial court determined that Jenkins was now competent to stand trial based upon the report written by Dr. Kristen Haskins, a clinical psychologist at Twin Valley. {¶ 5} On June 7, 2005, Jenkins pled guilty to one count of aggravated murder pursuant to R.C. 2903.01(B), and one firearm specification pursuant to R.C. 2941.145.1 Thereafter, the trial court sentenced Jenkins to three years in prison for the firearm specification and to life in prison with eligibility for parole after twenty years for the aggravated murder. {¶ 6} It is from this judgment that Jenkins appeals and sets forth two assignments of error. ASSIGNMENT OF ERROR NO. I THE DEFENDANT WAS NOT AFFORDED HIS CONSTITUTIONAL RIGHTS UNDERCRIMINAL RULE 11, SPECIFICALLY DUE TO THE DEFENDANT NOT KNOWINGLYAND VOLUNTARILY WAIVING THE RIGHTS AFFORDED TO A DEFENDANT UNDERCRIMINAL RULE 11. {¶ 7} In his first assignment of error, Jenkins argues that "it is clear that the Court covered the necessary requirements under Criminal Rule 11, but it is also clear that the defendant lacked any true understanding of these proceedings." Jenkins also asserts that, because his previous mental state was questionable, his responses were not voluntary. {¶ 8} The competency standard for entering a guilty plea is the same as the standard for competency to stand trial. Godinez v. Moran (1993),509 U.S. 389, 391, 113 S.Ct. 2680, 125L.Ed.2d 321; State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1064, 805 N.E.2d 1064, ¶ 57; State v. Bolin (1998), 128 Ohio App. 3d 58, 62, 713 N.E.2d 1092. Competency to stand trial is determined by whether the defendant "has `sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding' and a `rational as well as a factual understanding of the proceeding against him.'" Moran, 509 U.S. 389 at 397, quoting Dusky v.United States (1960), 362 U.S. 402, 80 S.Ct. 788, 4L.Ed.2d 824: Mink,101 Ohio St.3d 350 at ¶ 57. {¶ 9} In determining Jenkins competency to stand trial, the trial court examined the report prepared by Dr. Haskins. Both parties stipulated to Dr. Haskins' report. In her report, Dr. Haskins stated her opinion that "Mr. Jenkins is capable of understanding the nature and objective of the proceedings against him and of assisting in his defense." Based upon Dr. Haskins' report, the trial court found that Jenkins was competent to stand trial. The trial court's finding was supported by reliable evidence, and we cannot find that the trial court abused it's discretion in finding Jenkins competent to stand trial. SeeState v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, at ¶ 33 citing State v. Williams (1986), 23 Ohio St.3d 16, 490 N.E.2d 906,State v. Hicks (1989), 43 Ohio St. 3d 72, 79, 538 N.E.2d 1030. {¶ 10} "A finding that a defendant is competent to stand trial, however, is not all that is necessary before he may be permitted to plead guilty * * *. In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary." Moran, 509 U.S. at 400 (citations omitted). {¶ 11} In the case sub judice, Jenkins argues that his plea was not knowing and voluntary. As a basis for his argument, Jenkins points to excerpts from the transcripts of the plea hearing which provided, in pertinent part, as follows: The Court: Do you now voluntarily give up all these rights and pleadguilty to the charge of aggravated murder, as amended, and the firearmspecification as contained in the bill of indictment? Defendant: Can you give me a brief moment? The Court: Sure. (THEREUPON followed a discussion between the defendant and hiscounsel which was off the record.) Defendant: All right, you can continue. * * * The Court: Okay, my last question to you was, do you now voluntarilygive up all these rights that I've explained to you and do you pleadguilty to the bill of indictment as amended, the charge of aggravatedmurder and the firearm specification? Defendant: With a max — with amandatory twenty life, no. The Court: Pardon? Defendant: No. The Court: My question is do you plead guilty to the indictment asamended? Defendant: I would like to withdraw my plea and say no. I'm not goingto plead guilty. The Court: Pardon? Defendant: I said I'm withdrawing my plea and I'm not going toplead guilty, no. The Court: Do you want some time to talk to your attorneys? Defendant: Yes. * * * [The court took a recess] * * * Court: Okay, now, again, we're back to the point where, understandingthe rights that I advised you of previously, do you now voluntarily giveup those rights and plead guilty to the indictment as amended? Defendant: A brief moment (THEREUPON followed a discussion betweendefendant and his counsel which was off the record.) The Court: How do you wish to proceed? Defendant: Uh — (THEREUPON followed a discussion between defendant andhis counsel which was off the record.) The Court: How do you with [sic] to proceed? Defendant: Can I think it over? The Court: Pardon? Defendant: I'm thinking it over. (Long period of silence.) It's a bigdecision on it, you know. The Court: I understand. Defendant: Bringing it out, uh — (Long period of silence.) The Court: Mr. Jenkins, how do you plead? * * * Defendant: Can I use a bathroom, please. Can we, you know, hold this upfor a bathroom? * * * [The court took a recess] * * * The Court: Mr. Jenkins, again, the Court's question is do you pleadguilty to the bill of indictment, as amended? Defendant: Yes. The Court: Mr. Jenkins, the bill of indictment, as amended, alleges,states that on or about the 19th of June, 2000 in Henry County, Ohio, youdid purposely cause the death of Ernest Jenkins while fleeing immediatelyafter committing or attempting to commit aggravated robbery. Do you admitthat? (THEREUPON followed a discussion between defendant and his counselwhich was off the record.) * * * The Court: Again, the indictment, as amended, states that on or aboutthe 19th day of June, 2000 in Henry County, you did purposely cause thedeath of Ernest Jenkins while fleeing immediately after committing orattempting to commit aggravated robbery. Do you admit that? Defendant: Could I — I plead guilty to, to, to you know, the chargeof, you know, to aggravated murder but it's the thing about that robberything, I'm not — I ain't, all I know about them — well, f____ it, I guessI will, yes. The Court: Your answer is yes? Defendant: Yeah. The Court: You admit that? Defendant: I admit that ain't — never mind, go ahead. Yes. The Court: The indictment further states, and this is the specificationabout the firearm, that you had a firearm on or about your person orunder your control while committing the offense and displayed thefirearm, brandished the firearm, indicated you possessed the firearm orused it to facilitate the offense. Do you admit that? Defendant: Yes. * * * {¶ 12} After reviewing the plea hearing transcript, we find that Jenkins' guilty plea was knowingly and voluntarily given. The above quoted excerpt reveals that Jenkins was initially unsure whether he wanted to plead guilty but not that he lacked a true understanding of the plea hearing. During the plea hearing, Jenkins responded appropriately to the trial court's questions. Furthermore, in his brief, Jenkins admits that the trial court complied with the mandates of Criminal Rule 11. {¶ 13} Because Jenkins was competent to plead guilty and because the plea was knowingly and voluntarily given, we hold Jenkins first assignment of error to be without merit. ASSIGNMENT OF ERROR NO. II THE DEFENDANT'S COUNSEL WAS INEFFECTIVE DUE TO THE LACK OF TRUST ANDCOMPREHENSION BY THE DEFENDANT. {¶ 14} In his second assignment of error, Jenkins argues that his counsels failed to explain what type of questions the judge was going to ask at the change of plea hearing. Jenkins also claims that his attorneys used tricks to force him into pleading guilty. More specifically, Jenkins asserts that his attorneys tricked him into pleading guilty by arguing that this was a death penalty case and that he was going to die if he did not plead guilty to the amended charges to trick him into pleading guilty. {¶ 15} It is well-settled that in order to establish a claim of ineffective assistance of counsel, appellant must show two components: (1) counsel's performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defense.State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148. To warrant reversal, the appellant must show that there is a reasonable probability that, but for counsel's performance, the result of the proceeding would have been different. Strickland v. Washington (1984), 466 U.S. 668,104 S.Ct. 2052. {¶ 16} In order to show that an attorney's conduct was deficient or unreasonable, the appellant must overcome the presumption that the attorney provided competent representation, and show that the attorney's actions were not trial strategies prompted by "reasonable professional judgment." Strickland, 466 U.S. at 687. Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie (1998),81 Ohio St.3d 673, 675, 693 N.E.2d 267. Tactical or strategic trial decisions, even if ultimately unsuccessful, do not generally constitute ineffective assistance. State v. Carter (1995), 72 Ohio St.3d 545, 558,651 N.E.2d 965. Instead, the errors complained of must amount to a substantial violation of defense counsel's essential duties to his client. State v. Bradley (1989), 42 Ohio St.3d 136, 141, 538 N.E.2d 373, quoting State v. Lytle (1976), 48 Ohio St.2d 391, 396 vacated in part (1978) 438 U.S. 910, 98 S.Ct. 3135. {¶ 17} In the case sub judice, Jenkins has not overcome the presumption that his counsels were not ineffective. After reviewing the record, we find no evidence that Jenkins was forced into pleading guilty by his attorneys or was provided ineffective assistance of counsel. At the change of plea hearing, the trial court asked, "[H]as anyone threatened you in anyway or promised you anything to force you to enter this plea today?" Jenkins answered, "No." The trial court then inquired into whether Jenkins' attorneys had explained everything. Jenkins answered, "Yes." Further, the trial court questioned if Jenkins was satisfied with his attorneys "advice and their competency." Jenkins answered, "Yes." Jenkins responses on the record rebut any claim of trickery, threats, or ineffective assistance of counsel. {¶ 18} Having found no error prejudicial to appellant here, in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed. Bryant and Shaw, JJ., concur. 1 The state dismissed the death specification when Jenkins entered the guilty plea.

2016-07-06 06:36:29.801255+00

OPINION Appellant, Landmark Insurance Company, brought an action seeking indemnification, for amounts paid to settle a personal injury claim, against appellees, Cincinnati Insurance Company, Westfield Insurance Company, State Farm Fire Casuality Insurance Company, Nationwide Insurance Company, and Auto Owners Insurance Company. Appellant timely appeals from the Portage County Court of Common Pleas' judgment, granting appellees' motions for summary judgment, entered July 28, 2000. During the spring semester of 1995, Chad Johnson was pledging the Delta Upsilon Fraternity at Kent State University. On April 29, 1995, Johnson participated in a tug-of-war philanthropy. The Delta Upsilon team consisted of Johnson, another pledge named Greg Cooper, and three active members of the fraternity, one of which was Greg Brown. Shortly after the tug-of-war ended, Brown and Cooper slid headfirst into the mud pit where the event was held. Johnson then slid headfirst into the mud pit. As a result of this slide, Johnson suffered serious injuries, which resulted in quadriplegia. Johnson claims he was told to slide into the mud pit by Brown. Johnson said that Brown essentially made sliding into the mud pit a condition of membership into the fraternity, because of threats to blackball him if he did not do it. Johnson described Brown as a "bully" and stated that Brown demanded he participate in the tug-of- war, even though he really did not want to. On April 23, 1996, Johnson brought suit against the National Chapter of Delta Upsilon, the Kent State University Chapter of Delta Upsilon, another fraternity and a sorority both affiliated with the tug-of-war event, an employee of Kent State University, and against individual members of the Delta Upsilon Fraternity. The individual members of Delta Upsilon named in the lawsuit were: Bill Sopko, President; Ian Conroy, Secretary; Dave Schwartz, Treasurer; Stuart Thom, Vice President for Member Education; Jeff Stine, Vice President for Public Relations; Josh Rider, Vice President for Rush and Assistant Pledge Educator; Yong Rhee, Vice President for Scholarship; Mike Harwood, Risk Manager; Steve Johnson, Social Chair and House Manager; Jason Grant, Pledge Educator; and Greg Brown, Member. All of the named individuals, except Greg Brown, held an elected and/or an executive position in the Delta Upsilon Fraternity. Johnson alleged his injuries were the result of negligence and violations of R.C. 2903.31, a statute prohibiting hazing. Appellant, Landmark Insurance, provided liability coverage to both the Delta Upsilon Fraternity and its members. Additionally, many of the individual members were covered by their parents' homeowner's insurance. Specifically, Bill Sopko was insured by appellee, Cincinnati Insurance Company; Greg Brown was insured by appellee, Westfield Insurance Company; Stuart Thom, Jeff Stine, and Jason Grant were all insured by appellee, State Farm Fire Casualty Insurance Company; Mike Harwood was insured by appellee, Nationwide Mutual Insurance Company; and Steve Johnson was insured by appellee, Auto Owners Insurance Company. On the eve of trial, appellant Landmark settled the suit between Johnson and the defendants associated with the Delta Upsilon Fraternity for $1.75 million. Pursuant to the settlement, Johnson waived his right to bring further legal action against any of these defendants, including the individual members. After settling the case with Johnson, appellant brought this action seeking indemnification from the appellees. On July 28, 2000, the trial court granted appellees' motion for summary judgement, holding that appellant was a volunteer in settling the underlying matter and was not entitled to contribution. Appellant raises the following assignment of error: "The trial court erred in granting defendants-appellees' motions for summary judgement" The trial court relied on Farm Bureau Mut. Auto. Ins. Co., v. Buckeye Union Cas. Co. (1946), 147 Ohio St. 79, and found that appellant acted as a volunteer when it settled the underlying claim. The Supreme Court of Ohio has held that "[g]enerally speaking, the party making payment is a volunteer if, in so doing, he has no right or interest of his own to protect, and acts without obligation, moral or legal, and without being requested by anyone liable on the obligation." Aetna Cas. Surety Co. v. Buckeye Union Cas. Co. (1952), 157 Ohio St. 385, at 392-393, quoting 50 American Jurisprudence, 698, Section 22. The trial court concluded that appellant, by settling the underlying action and relieving appellees of liability, was acting as a volunteer, as it was not protecting its own interests and was acting without obligation. Therefore, the trial court found that appellant was not entitled to contribution from the appellees. The standard of review for an appellate court reviewing a trial court's decision to grant a motion for summary judgment is de novo, because it only involves questions of law. Grafton v. Ohio Edison Co. (1996),77 Ohio St.3d 102, 105. Therefore, we are to review this case as the trial court did, to determine if the requirements of Civ.R. 56(C) have been met. Drawl v. Cornicelli (1997), 124 Ohio App.3d 562. Summary judgment is proper, pursuant to Civ.R. 56(C), if there is evidence showing that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. All of the insurance policies in this case contain an "other insurance" clause. These clauses provide that if there is other insurance covering the same risk, the policy will only pay amounts in excess of the amount paid by other insurance. The Supreme Court of Ohio has addressed the issue of assigning liability to multiple insurance companies when all have "other insurance" clauses: "Where two insurance policies cover the same risk and both provide that their liability with regard to that risk shall be excess insurance over other valid, collectible insurance, the two insurers become liable in proportion to the amount of insurance provided by their respective policies." Buckeye Union Ins. Co. v. State Auto. Mut. Ins. Co. (1977), 49 Ohio St.2d 213, syllabus. The effect of these clauses is that appellees would be liable on a pro rata basis if the individual member they represent was found liable for the accident. Likewise, appellant would also be liable for its pro rata share. Appellant would then split the costs incurred with the insurance company of any individual who is assigned personal liability. Each insurance company would only be liable for its share of the liability, not the entire amount. Since appellees would have had a duty to pay their proportionate share of the liability, appellant has effectively relieved them of this duty by becoming a volunteer. The trial court was correct in relying on FarmBureau. In that case the Supreme Court of Ohio held that an insurance company, who pays the entire loss when it is not obligated to do so, is a volunteer and not entitled to contribution. Id. at 89-90. This court applied the holding in Farm Bureau more recently in the case of Buckeye Union Ins. Co. v. Allstate Ins. Co. (Feb. 23, 1981), Ashtabula App. No. 1017, unreported, 1981 Ohio App. LEXIS 14128. In this case, Buckeye paid the entire loss, even though it was not required to do so. We held that Buckeye was a volunteer, and could not recover from the other insurance company. Id. at *3. In another factually similar case, the Eighth District Court of Appeals addressed this issue in Ins. Co. of N. Am. v. Travelers Ins. Co. (1997),118 Ohio App.3d 302. This case also concerned two insurance companies who were both potentially liable in a personal injury suit. ICNA settled the case and sought indemnification from Travelers. The court, applying theFarm Bureau analysis, held that ICNA was a volunteer and was not entitled to contribution. Id. at 316. Appellant devotes a significant portion of its brief to argue that theFarm Bureau case no longer prevails given today's legal environment and recent Supreme Court mandates encouraging settlement. However, FarmBureau still provides the controlling case law on this issue and, therefore, we are to follow the law as established by the Supreme Court of Ohio. Appellant encourages us to follow Arkwright Mut. Ins. Co. v. LexingtonIns. Co. (Sept. 29, 2000), Hamilton App. No. C-990347, unreported, 2000 Ohio App. LEXIS 4468. This case is factually quite different from the case sub judice. This case involved property loss, while the case at bar involves liability. Therefore, we find Farm Bureau and the cases following it to be more applicable to the case at bar. Appellant argues, based on Owens-Corning Fiberglass Corp. v. Am.Centennial Ins. Co. (1995), 74 Ohio Misc.2d 183, that the "other insurance" clauses in this case do not limit liability to a proportion of the loss, as the clause in Farm Bureau did. The court in Owens-Corning distinguished that case from Farm Bureau, in part, on this ground, and held that the settling insurance company was entitled to contribution from other collectible insurance. Id. We disagree with this rationale. Following the holding in Buckeye Union, two insurers that cover the same risk will be liable in proportion to the amount of insurance provided. See Buckeye Union v. State Auto. Mut. Ins. Co., and analysis, supra. Further, in Buckeye Union, the Supreme Court of Ohio's holding does not make any reference to any distinction to be given to "other insurance" clauses with or without the proportional language. Id. In the case at bar, we agree with the trial court and hold that appellant was a volunteer. By paying the entire amount of the settlement, appellant has paid for amounts it was not obligated to pay. Therefore, appellant acted as a volunteer in settling the underlying case, and is not entitled to contribution from the appellees. Appellant's assignment of error is without merit. The judgment of the trial court is affirmed. PRESIDING JUDGE WILLIAM M. O'NEILL, NADER, J., GRENDELL, J., concur.

2016-07-06 06:36:30.564408+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: Appellant, James Badger, appeals the judgment of the Medina County Court of Common Pleas, Domestic Relations Division. We affirm. I. Mr. Badger and Frances Badger, appellee, were married on December 31, 1994. Prior to the marriage, on December 30, 1994, the couple signed an antenuptial agreement which was to control all issues of spousal support and the division of property. There were no children born as issue of the marriage, and, on July 7, 1998, Ms. Badger moved out of the marital residence. On April 21, 2000, Ms. Badger filed a complaint for divorce. Mr. Badger filed his answer and counterclaim on May 23, 2000. A hearing was held on March 14, 2001, and, on April 3, 2001, the trial court entered a divorce decree. In the decree, the trial court held that the antenuptial agreement was valid and controlled the division of property and the issue of spousal support. The court also held that Ms. Badger did not breach the antenupial agreement when she no longer contributed to the household expenditures as of the time she moved out of the marital residence. This appeal followed. II. Mr. Badger asserts one assignment of error: The trial court committed error at law to the prejudice of the Defendant-Appellant by failing to grant a set-off against the money owed to the Plaintiff-Appellee. Mr. Badger asserts that the trial court erred when it failed to grant him a setoff for the amount of money that he asserts Ms. Badger owes him for household expenditures under the antenuptial agreement. Specifically, Mr. Badger asserts that the antenuptial agreement required the couple to share household expenditures during the marriage and that, consequently, Ms. Badger owes him for these expenses from the time she moved out of the marital residence until the time when the divorce was granted. We disagree. An "antenuptial agreement" is a contract entered into between a man and a woman in contemplation of their future marriage whereby the property rights and economic interests of the parties are determined and set forth. Rowland v. Rowland (1991), 74 Ohio App.3d 415, 419; Sasarak v.Sasarak (1990), 66 Ohio App.3d 744, 747. It is well settled law in Ohio that antenuptial agreements are enforceable so long as certain conditions are met. See Fletcher v. Fletcher (1994), 68 Ohio St.3d 464, 466; Kelmv. Kelm (1993), 68 Ohio St.3d 26, 28. We need not be concerned with whether those conditions were met in the present case inasmuch as both parties have agreed that the antenuptial agreement is valid and binding on them. Rather, this court must construe and apply the terms of that agreement to the facts and circumstances herein. The Ohio Supreme Court has ruled that antenuptial agreements are contracts and that the law of contract will generally apply to their application and interpretation. See Fletcher, 68 Ohio St.3d at 467. This is a matter of law to be determined by the courts. See Davis v. LoopcoIndustries, Inc. (1993), 66 Ohio St.3d 64, 66; Latina v. Woodpath Dev.Co. (1991), 57 Ohio St.3d 212, 214. The trial court's resolution of a legal issue is reviewed de novo on appeal, without any deference afforded to the result that was reached below. See Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 313; Nationwide Mut. Fire Ins. Co. v. GumanBros. Farm (1995), 73 Ohio St.3d 107, 108. A court should interpret a contract to carry out the intent of the parties as manifested by the language of the contract. Skivolocki v. EastOhio Gas Co. (1974), 38 Ohio St.2d 244, paragraph one of the syllabus. If the contract is unambiguous on its face, a court will not construe the contract's meaning contrary to its plain terms. Aultman Hosp. Assn. v.Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, syllabus. Additionally, when the contract's written language is a complete and accurate integration of the parties' contract, then the parol evidence rule precludes the introduction of evidence of conversations or declarations which occurred prior to or contemporaneous with the formation of the written contract and which attempt to vary or contradict the written terms of the contract. AmeriTrust Co. v. Murray (1984),20 Ohio App.3d 333, 335. The first paragraph of the antenupial agreement expressly provides that the agreement "shall become effective and shall remain in effect irrespective of any change of residence or domicile by either or both of the parties." The sixth paragraph states that "[e]ach of the parties has sufficient property to provide adequately for his or her own care, maintenance and support, and it is contemplated that during marriage they will jointly contribute to provide for their expenses of care, maintenance and support." In the case at bar, Mr. Badger asserts that the antenuptial agreement was a binding contract between the parties which required the couple to share household expenditures equally during the marriage. He asserts that Ms. Badger no longer contributed to the household expenses once she left the marital residence, and, therefore, she still owes him one-half of all expenses incurred from the time she moved out of the residence until the divorce was granted. Ms. Badger responds that the antenuptial agreement does not require the household expenditures to be divided as of the time she moved out of the couple's residence. She explains that, once she moved out of the residence, each person maintained their own household without contribution from the other spouse. When the trial court interpreted the antenuptial agreement, it held that the plain meaning of the contract language required the parties to jointly contribute to marital expenses. Ms. Badger, the court held, did not owe Mr. Badger any money for household expenses as the couple had followed the dictates of the antenuptial agreement by jointly contributing to the household expenses when they resided together and by each providing for his or her own expenses when living apart in separate households. While the trial court's interpretation of the contract is reviewed denovo on appeal, this court agrees with the trial court's interpretation of the antenuptial agreement. Together, the plain meaning of the first and sixth paragraphs, is that, regardless of any change of residence, each person in the marriage must contribute to the couple's care, maintenance, and support expenses. There is no requirement that the expenses are shared equally, nor is there a requirement as to the specific amount each person must contribute. Rather, the plain meaning of the agreement is that neither person in the couple is solely responsible for all of the couple's expenses. The parties fulfilled their contractual obligations by each person contributing to the joint household expenses when they resided together and each providing for his or her own household expenses when residing apart. III. This court takes note of a plain mathematical error in the trial court's division of the couple's joint bank account. The trial court noted that, as of the time Ms. Badger left the marital residence, the account had a balance of $6,300. Both parties agreed that Ms. Badger then took $1,000 from the account. The trial court ruled that the joint account should be divided equally and split the remaining balance of $5,300 among the parties, awarding Ms. Badger $2,650. This court holds that, as the account was to be split equally, the correct amount for the division should have been $6,300, not $5,300, with Ms. Badger receiving $1,000 credit for the amount she had already received. This results in Ms. Badger receiving $2,150 rather than $2,650. Accordingly, the amount Ms. Badger receives from the joint marital account is modified from $2,650 to $2,150. App.R. 12(A)(1)(a) and (B). IV. Mr. Badger's assignment of error is overruled. The judgment is modified as to the division of the couple's joint bank account. We affirm the judgment of the Medina County Court of Common Pleas, Domestic Relations Division, as modified. Judgment accordingly. 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 Medina, 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. BAIRD, J. SLABY, J. CONCUR

2016-07-06 06:36:30.628175+00

OPINION {¶ 1} Defendant-appellant, Joseph Jones, Sr., appeals from a Mahoning County Court Number Four judgment denying his motion to vacate his guilty plea to a charge of domestic violence. {¶ 2} On August 18, 2004, appellant was charged with three counts of domestic violence, first degree misdemeanors in violation of R.C. 2919.25. These charges stemmed from allegations made by his fiancée's children that appellant hit them with an electric fly swatter. The children were ages 11 and 16 at the time. The matter was set for trial. {¶ 3} On March 9, 2005, appellant filed a motion to dismiss based on the unconstitutional application of the domestic violence statute in light of Ohio's Constitutional amendment to include Article XV.1 {¶ 4} Nonetheless, two days later appellant appeared in court for his trial date. At this time, appellant changed his plea to guilty to one count of domestic violence. {¶ 5} The trial court found appellant guilty and sentenced him to 180 days in jail, 170 days suspended; a $150 fine, plus jury costs; 12 months of reporting probation; anger management classes; and a psychological evaluation with counseling if necessary. Appellant subsequently retained new counsel and filed a timely notice of appeal. {¶ 6} Appellant served his ten-day jail sentence and then filed a motion to stay the balance of his sentence pending appeal. Appellant also filed a motion to withdraw his guilty plea. This court issued a limited remand so that the trial court could rule on appellant's motion to vacate his guilty plea. The trial court held a hearing on the motion and subsequently denied it. Appellant then filed another timely notice of appeal. *Page 2 {¶ 7} On appeal, this court reversed appellant's conviction and remanded the matter. State v. Jones, 7th Dist. No. 05-MA-69,2006-Ohio-3636. We found merit to appellant's first assignment of error, which stated: {¶ 8} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INFORM THE APPELLANT OF THE FACT THAT HE COULD ENTER A PLEA OF NO CONTEST TO A CHARGE OF DOMESTIC VIOLENCE, FOR WHICH HE WAS CONVICTED, AS REQUIRED BY OHIO R. CRIM. PROC. 11(E)." {¶ 9} We ruled that the trial court did not properly inform appellant of the effect of his plea to the petty misdemeanor of domestic violence pursuant to Crim. R. 11(E). Thus, we concluded that appellant did not enter his plea knowingly, intelligently, and voluntarily. We then certified a conflict on the issue to the Ohio State Supreme Court finding our decision to be at odds with decisions from the Second and Tenth Districts. See State v. Horton-Alomar, 10th Dist. No. 04AP-744,2005-Ohio-1537; State v. Raby, 2d Dist. No. 2005-CA-88, 2005-Ohio-3741. {¶ 10} The Ohio Supreme Court subsequently reversed our decision.State v. Jones, 116 Ohio St.3d 211, 877 N.E.2d 677, 2007-Ohio-6093. It held that while our interpretation of the Crim. R. 11(E) language "effect of the plea" was essentially correct, there was no prejudice in this case because appellant was aware that his plea was a complete admission of his guilt. Id. at paragraphs one and two of the syllabus and at ¶ 55. {¶ 11} The Supreme Court remanded the matter back to this court to address appellant's second assignment of error. We now address appellant's second assignment of error, which states: {¶ 12} "THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY OVERRULING APPELLANT'S MOTION TO WITHDRAW PLEA OF GUILTY UNDER CRIM. R. 32.1." {¶ 13} Appellant argues here that the trial court erred in failing to grant his *Page 3 motion to withdraw his guilty plea. He cites at length to the transcript of the hearing on his motion to withdraw his plea. At that hearing, appellant presented his own testimony along with that of his fiancée and her children. He also points to letters from the oldest child, which he attached to his affidavit filed with his motion to withdraw his plea, where she expressed remorse for lying about appellant. {¶ 14} On reviewing a trial court's decision on a motion to withdraw a guilty plea, this court applies an abuse of discretion standard.State v. Lintner (Sept. 21, 2001), 7th Dist. No. 732. 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. State v. Adams (1980), 62 Ohio St.2d 151, 157,404 N.E.2d 144. {¶ 15} Crim. R. 32.1 provides: "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." {¶ 16} At the hearing on appellant's motion, appellant called two of his fiancée's children to testify on his behalf. They testified that they made up the allegations about appellant hitting them with a bug zapper and that the prosecutor threatened them. (Motion hearing Tr. 16-18, 27-30). They also stated that they told the prosecutor on the day the case was set to go to trial that they had lied about appellant hitting them. (Motion hearing Tr. 16, 27). {¶ 17} Appellant also took the stand. He testified that when he appeared on the day of trial, his attorney told him that one of the children was ready to testify that appellant hit him with the bug zapper. (Motion hearing Tr. 12). He stated that his attorney advised him to take a plea deal whereby he would plead guilty to one count of domestic violence and the state would recommend a ten-day sentence. (Motion hearing Tr. 12-14). He stated that his attorney told him he only had two minutes to make his decision. (Motion hearing Tr. 13). Appellant stated that he took the plea deal because he was afraid if he went to trial he would be sentenced to the full 180 days in jail. (Motion hearing Tr. 14). Finally, when asked whether he felt that he *Page 4 made the plea knowingly and voluntarily, appellant responded, "yes." (Motion hearing Tr. 14). {¶ 18} Finally, appellant's fiancée took the stand. She basically corroborated appellant's testimony. And when asked by the court whether she thought that appellant entered his plea knowingly and voluntarily, she too responded, "yes." (Motion hearing Tr. 46). {¶ 19} "In order to prevail on a postsentence motion to vacate that alleges ineffective assistance of counsel, a defendant is required to show that (1) his counsel's performance was, in fact, deficient, and (2) there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and instead, would have insisted on going to trial." State v. Wynn (1998), 131 Ohio App.3d 725, 729,723 N.E.2d 627. {¶ 20} In its judgment entry, the trial court found that appellant, through his own admission, entered his plea knowingly and voluntarily. It further stated that it found the arguments of appellant's counsel to be unpersuasive. {¶ 21} Despite appellant's testimony, we cannot conclude that the trial court abused its discretion in finding his arguments to be unpersuasive. Appellant called the children to testify that they recanted their story prior to trial and that they were not going to testify against him. He attempted to use this testimony to show that his counsel lied to him when counsel told him that the state had a witness who was ready to testify that he hit the witness with a bug zapper. Appellant contends that had his counsel told him the truth, i.e., had counsel told him the children were not going to testify against him, then he would not have pleaded guilty. {¶ 22} It was within the trial court's sound discretion to judge the credibility of these children. Both of them admitted to changing their story regarding appellant and lying to police. Thus, it was reasonable for the court not to believe their testimony. Furthermore, appellant admitted that he entered his plea knowingly and voluntarily. Therefore, appellant's second assignment of error is without merit. *Page 5 {¶ 23} For the reasons stated above, the trial court's judgment is hereby affirmed. 1 In December 2004, the Ohio Constitution was amended to include Article XV. Section 11, the defense of marriage provision, states: "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." This amendment has been used to challenge the constitutionality of the domestic violence statute when applied to people who are not related. *Page 1

2016-07-06 06:36:30.725217+00

Defendant-appellant, George A. Kilgore, appeals his no contest plea and subsequent conviction in the Butler County Court of Common Pleas for receiving stolen property. We affirm. On December 9, 1997, appellant was pulled over on I-75 in Butler County, Ohio by Deputy Greg Wargo of the Butler County Sheriff's Office because appellant's vehicle displayed plates belonging to a different vehicle. Dep. Wargo requested that appellant exit the vehicle and show his operator's license and registration. Dep. Wargo noticed that there was a passenger and that there was a large box present in the back seat of the vehicle. Appellant appeared extremely nervous and dropped his license when handing it to Dep. Wargo. The registration papers showed that the vehicle was a rental car rented to appellant's girlfriend. Dep. Wargo asked appellant where he was coming from, where he was going, how long he had been at his last location, and the identity of his passenger. Appellant was nervous and gave elusive and conflicting answers. Dep. Wargo ordered appellant to stay at the rear of the vehicle, and proceeded to question the passenger. The passenger gave answers which conflicted with appellant's answers. Based upon the conflicting stories, appellant's nervousness, and the fact that appellant's stated origin and destination were known drug locations, Dep. Wargo suspected criminal activity. At this time, Dep. Wargo had appellant sit in the back of the patrol car while the deputy recorded routine information from the stop. Dep. Wargo also called for Dep. Ron Axt of the canine unit to provide back up. Dep. Axt arrived within five minutes, and proceeded to walk the trained drug dog around the vehicle. The dog alerted that there were drugs present. At this time, the deputies searched the vehicle and found marijuana residue, stems, and leaves throughout the car. The deputies also looked in a box in the back seat, believing that drugs may have been concealed in the box. Instead, the box held smaller boxes containing expensive lamps, similar in type. The smaller boxes all had inventory and shipping labels from a Lazarus department store. From his previous experience as a security officer with Lazarus and Parisian department stores, Dep. Axt believed that the lamps had been stolen. When appellant was asked where he got the lamps, he stated that he had bought them from a friend at a flea market, but he could not provide any details or a receipt. The deputies called Springdale Police Department to see if there were any reports from the Lazarus in Tri-County Mall concerning stolen merchandise. This was the store closest to appellant's stated origin. Because it was after business hours, the Springdale police were unable to contact the store personnel, and the deputies seized the lamps pending further investigation. Dep. Wargo made out a receipt which he furnished to appellant. It was later determined that the lamps were stolen, and on April 21, 1998, the Butler County Grand Jury indicted appellant on one count of receiving stolen property, a violation of R.C.2913.51(A). Appellant filed a motion to suppress the lamps as evidence, asserting that the search of the vehicle and box were improper. The trial court held an evidentiary hearing on the motion on June 25, 1998, and filed its entry denying appellant's motion the following day. On August 3, 1998, appellant entered a no contest plea to the charge. The trial court found appellant guilty, and on September 10, 1998, sentenced appellant. The trial court ordered that appellant serve a twelve-month term of incarceration, pay a $2,000 fine, and make restitution as determined by the Adult Probation Department. Appellant appeals, raising a single assignment of error: THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE IN DENYING THE MOTION TO SUPPRESS BECAUSE THE OFFICER'S DETENTION AND WARRANTLESS SEARCH OF APPELLANT WERE UNJUSTIFIED AND VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS. In his assignment of error, appellant contends that the trial court erred in denying his motion to suppress because the scope of his detention and the search exceeded the justification underlying the stop. The state responds that the officers had reason to extend the length of the stop based upon the circumstances of the stop and that the officers had probable cause to conduct the search. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best role to evaluate the credibility of witnesses and resolve questions of fact. State v.Clay (1973), 34 Ohio St.2d 250, 251. In reviewing the decision of a trial court on a motion to suppress, the appellate court must accept the findings of fact if supported by competent, credible evidence. State v. Retherford (1994), 93 Ohio App.3d 586, 593, appeal dismissed, 69 Ohio St.3d 1488. Accepting such facts as true, the appellate court must then independently determine, as a matter of law, and without deference to the trial court's conclusion, whether the facts satisfy the applicable legal standard. Id. Appellant does not contest the propriety of the initial stop, or Dep. Wargo's justification for initially questioning appellant. Instead, appellant argues that once Dep. Wargo determined that the fictitious plates were not the result of any action by appellant, the deputy had no reason to continue the stop and search the vehicle. If the circumstances of an otherwise proper stop give rise to a reasonable suspicion of illegal activity which is different from that triggering the initial stop, the vehicle may be detained as long as the new reasonable suspicion continues. Such a detention is lawful, even though the officer is satisfied that the suspicion underlying the initial stop has dissipated. State v. Myers (1990), 63 Ohio App.3d 765, 771. It must be noted, though, that a detention can continue only so long as necessary to effectuate the purposes of the stop or detention. State v. Chatton (1984),11 Ohio St.3d 59, 63, certiorari denied, 469 U.S. 856, 105 S.Ct. 182. In the instant case, after Dep. Wargo questioned appellant and his passenger, Dep. Wargo reached the conclusion that there was possible criminal activity. He had a reasonable basis for this belief. Appellant was extremely nervous, and his answers to questions concerning his origin and destination were conflicting and suspicious. Furthermore, appellant's story conflicted with that of the passenger. In addition, both the origin and destination of appellant's travels were known drug locations. Thus, Dep. Wargo had reasonable suspicion to continue the stop and have a trained canine examine appellant's vehicle for drugs.State v. French (1995), 104 Ohio App.3d 740, 743. Because Dep. Wargo had a reasonable justification to continue the stop, waiting on the drug dog for only five minutes did not infringe upon appellant's rights. See id. Once appellant had been properly detained, Dep. Wargo's use of a drug sniffing dog to detect the presence of illegal drugs did not violate a reasonable expectation of privacy, and it was not a search under either the United States or Ohio Constitutions. French,104 Ohio App.3d at 749; State v. Waldroup (1995), 100 Ohio App.3d 508, 514. Once a trained drug dog alerts to the odor of drugs from a lawfully detained vehicle, an officer had probable cause to search the vehicle for contraband. French, 104 Ohio App.3d at 749;Waldroup, 100 Ohio App.3d at 514-515. Furthermore, "if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross (1982), 456 U.S. 798, 825, 102 S.Ct. 2157, 2173; New York v.Belton (1981), 453 U.S. 454, 101 S.Ct. 2860, rehearing denied,453 U.S. 950, 102 S.Ct. 25. "Probable cause" is defined as "a reasonably strong suspicion supported by facts and circumstances sufficiently strong in themselves to warrant a prudent person in believing an accused person had committed or was committing an offense." State v. Ratcliff (1994), 95 Ohio App.3d 199, 205. The deputies were authorized to search the vehicle and any contents which may have contained the drugs smelled by the drug dog. In the case of the box, the officers had reason to believe the drugs may have been present, both due to the alert by the drug dog, and the box's appearance — a large, nondescript cardboard box. That the search revealed that the box did not contain drugs is irrelevant, as it uncovered evidence indicating that appellant was engaged in different criminal activity, possession of stolen property. Therefore, we conclude that the trial court properly found that the continued detention of appellant and the subsequent search of the vehicle were not unlawful. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. POWELL, P.J., and YOUNG, J., concur.

2016-07-06 06:36:30.772059+00

OPINION On December 14, 1998, the Stark County Grand Jury indicted appellant, John Sloat, on one count of domestic violence in violation of R.C. 2919.25(A). Said charge arose from an incident on November 8, 1998 wherein appellant kicked and shoved his pregnant girlfriend, Brenda Morgan. A jury trial commenced on January 27, 1999. The jury found appellant guilty as charged. By judgment entry filed February 1, 1999, the trial court sentenced appellant to a determinate term of twelve months in prison. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I. THE TRIAL COURT ERRED IN REFUSING TO GIVE APPELLANT'S PROPOSED LIMITING INSTRUCTION ADVISING THE JURY THAT PRIOR INCONSISTENT STATEMENTS OFFERED FOR IMPEACHMENT ARE NOT SUBSTANTIVE EVIDENCE. II. APPELLANT WAS PREJUDICED BY TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE WHEN COUNSEL REPEATEDLY FAILED TO OBJECT TO THE PROSECUTOR'S IMPEACHMENT OF HER OWN WITNESS BY MEANS OF A PRIOR INCONSISTENT STATEMENT. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY ALLOWING THE PROSECUTOR TO IMPEACH HER OWN WITNESS WITH PRIOR INCONSISTENT STATEMENTS WHEN THE PROSECUTOR ADMITTED SHE WOULD NOT BE SURPRISED BY THE WITNESS' TESTIMONY AND KNEW HER TESTIMONY WOULD DIFFER FROM PREVIOUS STATEMENTS. IV. APPELLANT'S SENTENCE CONSTITUTES AN ABUSE OF DISCRETION WHEN THE TRIAL COURT GAVE APPELLANT THE MAXIMUM SENTENCE WITHOUT COMPLYING WITH THE STATUTORY CRITERIA AND MAKING THE NECESSARY REQUISITE FINDINGS. I Appellant claims the trial court erred in not giving an instruction to the jury regarding prior inconsistent statements of Ms. Morgan. We disagree. Appellant argues because Ms. Morgan's prior statements made to Patrolman James Hilles and her mother's fiancé, Frank Wolf, Sr., were inconsistent with her trial testimony, an instruction that such statements could only be used to consider Ms. Morgan's credibility was warranted. Appellant argues Evid.R. 801(D)(1) required the requested instruction. Said rule states as follows: (D) Statements which are not hearsay A statement is not hearsay if: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with his testimony, and was given under oath subject to cross-examination by the party against whom the statement is offered and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (c) one of identification of a person soon after perceiving him, if the circumstances demonstrate the reliability of the prior identification. The trial court permitted testimony from Patrolman Hilles and Mr. Wolf that on the night of the incident, Ms. Morgan told them appellant had kicked her in the head. Contrary to appellant's assertions regarding the testimony of Mr. Wolf, the trial court did give the following limiting instruction as to hearsay: THE COURT: Ladies and gentlemen, normally, ah, statements made by a person outside of the courtroom or presence of the other parties are hearsay. It is, there is an exception and it is permitted for the question to be asked as to whether an individual made such a statement. And it is permissible to inquire in that regards not for, ah, the truth of the statement being made, because that's a jury determination, as to the truth of statements, but merely as to whether or not such statements were made. And I'm permitting that context as, as an exception. T. at 128-129. Patrolman Hilles testified when he took Ms. Morgan's statement regarding the incident, Ms. Morgan was upset and crying. T. at 135-136. Ms. Morgan's statement clearly falls within an exception to the hearsay rule under Evid.R. 803(2) as an excited utterance. Given the trial court's instruction to the jury during the trial and the exception under Evid.R. 803(2), we find the trial court did not err in denying appellant's request for a limiting instruction. Assignment of Error I is denied. II Appellant claims his trial counsel was ineffective because she failed to object to the prosecutor's impeachment of her own witness. We disagree. The standard this case must be measured against is set out in State v. Bradley (1989), 42 Ohio St.3d 136,142, certiorari denied 497 U.S. 1011. Appellant must establish two criteria: 1) [C]ounsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition. 2) [P]rejudice arises from counsel's performance. Appellant must further establish ". . . but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland v. Washington (1984), 466 U.S. 668,696. On direct, Ms. Morgan testified after she returned home, she and appellant got into an argument. T. at 93-94. Appellant told her to leave him alone and she agitated him to the point of being sick. T. at 93, 96. Appellant then shoved her off of the couch. Id. Ms. Morgan called Mr. Wolf to come pick her up and later told him appellant had shoved her off of the couch. T. at 100-101. Ms. Morgan admitted to telling Patrolman Hilles that appellant had kicked her, and she made a written report of the incident. T. at 102. Ms. Morgan testified she told Patrolman Hilles that appellant had kicked her because "I only said that that night because I was scared. I was upset that night. I know, I know what the truth is though. And that is that he shoved me off, pushed me off the couch to get sick." T. at 104. Appellant argues his trial counsel did not object to the trial court's ruling that the prosecution could question Ms. Morgan about differences between her trial testimony and her statements to Patrolman Hilles and the grand jury. T. at 114. Defense counsel did object to the prosecutor impeaching Ms. Morgan. T. at 105. A side bar was held wherein the trial court discussed the attempt to question Ms. Morgan on her prior inconsistent statements. T. at 106-113. The trial court eventually ruled the prosecutor could ask limited questions. T. at 111, 113. We fail to find defense counsel was in any way deficient during the side bar. Defense counsel participated in the discussion and objected to the use of the grand jury testimony. T. at 105, 110. Ms. Morgan freely admitted she told different stories to Mr. Wolf and Patrolman Hilles because she was scared that appellant had called the police on her. T. at 97. On cross-examination, Ms. Morgan testified she was mad at appellant that night. T. at 121. Although the prosecutor's method of examination may be borderline and ill advised, Ms. Morgan's direct testimony included the reason that she told Mr. Wolf and Patrolman Hilles appellant had kicked her was because she was scared and mad. The additional questioning on this issue led to the very same testimony. Upon review, we find defense counsel protected the record, and no evidence of ineffective assistance of counsel. Assignment of Error II is denied. III Appellant claims the trial court erred in permitting the prosecutor to impeach Ms. Morgan when there was no showing of surprise. We disagree. Evid.R. 607(A) prohibits impeachment of one's own witness absent a showing of surprise and affirmative damage: (A) Who may impeach The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(a), 801(D)(2), or 803. As noted by the rule, this does not apply to excited utterances [Evid.R. 803(2)] or prior inconsistent statements of a witness [Evid.R. 801(D)(1)(a)] or admissions by a party-opponent [Evid.R. 801(D)(2)]. Ms. Morgan's statements were made contemporaneous with the event, when she was visibly upset and crying therefore, they qualify as excited utterances. At the end of Ms. Morgan's direct testimony, the trial court permitted the prosecutor to question Ms. Morgan as to her statements to Mr. Wolf: Q. Okay. Also, previously you had stated that you had told Frank what happened that evening, correct? A. Yes. Q. Isn't it also fair to say that you told Frank that he had, the defendant had hit you in the back of the head? A. Yes. T. at 116. Thereafter, Mr. Wolf testified as to what Ms. Morgan had told him on the evening of the incident. Mr. Wolf testified Ms. Morgan "said that he had kicked her in the head." T. at 129. We fail to find the questions to Ms. Morgan were tantamount to a violation of Evid.R. 607(A). We find the questioning to be harmless error because Ms. Morgan's statements became admissible when Mr. Wolf testified. Assignment of Error III is denied. IV Appellant claims the trial court erred in imposing the maximum sentence. We disagree. R.C. 2929.14(C) permits the imposition of a maximum sentence "only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section." When the maximum sentence is given, the trial court must give its reasons for so imposing the sentence. R.C.2929.19(B)(2)(d). At the sentencing hearing, the trial court noted appellant had three previous domestic violence convictions as well as alcohol related offenses (appellant was drunk when the incident sub judice occurred). T. at 223. Appellant had been through domestic violence counseling and had not learned from the experience. T. at 224. As the trial court stated "[t]here is three separate times, counseling, and, ah, nothing is of any success." T. at 226. We find the trial court adequately explained its reasons pursuant to R.C. 2929.19(B)(2)(d), and classified appellant's actions as one of the worst forms of the offense when the trial court stated "[a]nd we do need to protect the public and, ah, because the greatest risk, to, ah, females that are unable to defend themselves, the, ah, period of incarceration here of 12 months would be imposed, with credit for time served." Id. Upon review, we find the trial court did not err in imposing the maximum sentence. Assignment of Error IV is denied. The judgment of the Court of Common Pleas of Stark, County, Ohio is hereby affirmed. By FARMER, J. GWIN, P.J. and WISE, J. concur.

2016-07-06 06:36:31.287641+00

DECISION AND JOURNAL ENTRY INTRODUCTION {¶ 1} Chester and Theresa Owca married in 1986 and divorced in 1999. At the time of the divorce, the trial court divided the parties' property, including a pension plan in which Mr. Owca participated as an employee of Ford Motor Company. In 2005, the trial court vacated its final divorce decree because it determined Ms. Owca had fraudulently concealed marital property in the form of insurance proceeds. Following Ms. Owca's unsuccessful appeal of the order vacating the final divorce decree, the trial court held an evidentiary hearing and entered a new final divorce decree. Ms. Owca has now appealed from that decree, arguing that the trial court incorrectly divided the Ford Motor Company pension, incorrectly awarded Mr. Owca attorney fees, and incorrectly failed to award her spousal support. This Court affirms the trial court's judgment because Ms. Owca has not demonstrated that the trial court abused its discretion in awarding Mr. Owca attorney fees and the remainder of her arguments are either *Page 2 barred by the doctrine of law of the case or insufficiently developed to comply with the Rules of Appellate Procedure. THE PENSION PLAN {¶ 2} In its 1999 final divorce decree, the trial court determined that 38.16% of the Ford Motor Company pension was marital property and that Ms. Owca was entitled to one-half of that 38.16%. Although Ms. Owca attempted to appeal the final divorce decree, that appeal was dismissed because she failed to respond to an order of this Court directing her to demonstrate that her attempted appeal was timely. {¶ 3} Part of Ms. Owca's first assignment of error appears to be a challenge to the original determination that 38.16% of the total pension was marital property. She does not appear to have made this argument during the most recent proceeding before the trial court, and, even if she had, the trial court would have been foreclosed from reconsidering its original division of the pension by the doctrine of law of the case. "[T]he doctrine of law of the case precludes a litigant from attempting to rely on new arguments on retrial which could have been pursued in a first appeal." Pipe Fitters Union Local No. 392 v. Kokosing Constr. Co.Inc., 81 Ohio St. 3d 214, 218 (1998) (citing Beifuss v. Westerville Bd.of Educ, 37 Ohio St. 3d 187, 191 (1988)). To the extent Ms. Owca's first assignment of error is a challenge to the original division of the pension, therefore, it is overruled. {¶ 4} Ms. Owca's first assignment of error also appears to be a challenge to the trial court's determination that Ms. Owca shall not receive any further pension benefits until Mr. Owca is reimbursed for his share of the insurance proceeds Ms. Owca fraudulently concealed, plus attorney fees and interest. The trial court determined that Ms. Owca fraudulently concealed $60,000 in insurance proceeds she received for damage to marital, personal property. It further *Page 3 determined that she had paid the lawyer who represented her in obtaining those proceeds $20,000 and had spent the remaining $40,000. It ordered Ms. Owca to prepare a new Qualified Domestic Relations Order that directs the pension plan administrator to pay the full amount of the pension benefits to Mr. Owca until such time as he is reimbursed the full amount of his share of the insurance proceeds plus attorney fees of $6719.90 and interest. {¶ 5} Ms. Owca's entire argument in support of this part of her first assignment of error is an assertion that the trial court's decision to order Mr. Owca's reimbursement out of the pension benefits is "inconsistent" with what she describes as two approaches for dividing pensions. She has neither explained how it is "inconsistent" nor cited a single case in support of the proposition that it is an abuse of discretion to use pension proceeds to equalize a property division. This Court will not develop an argument for an appellant who fails to develop one for herself. See App. R. 16(A)(7). To the extent Ms. Owca's first assignment of error is a challenge to the trial court's determination that Ms. Owca shall not receive any pension benefits until Mr. Owca is reimbursed, it is overruled. ATTORNEY FEES {¶ 6} Ms. Owca's second assignment of error is that the trial court incorrectly directed her to reimburse Mr. Owca for $6719.90 in attorney fees. Section 3105.73(B) of the Ohio Revised Code provides a domestic relations court authority to award reasonable attorney fees in a post-decree proceeding. In determining whether an award is equitable, the trial court may consider the parties' income, the conduct of the parties, and any other relevant factor it considers appropriate. In this case, the trial court specifically found that Mr. Owca incurred legal fees as a "direct and proximate result" of Ms. Owca's fraud in concealing the insurance proceeds. This *Page 4 Court cannot conclude that the trial court abused its discretion in awarding attorney fees to Mr. Owca. Ms. Owca's second assignment of error is overruled. SPOUSAL SUPPORT {¶ 7} Ms. Owca's final assignment of error is that the trial court incorrectly failed to award her adequate spousal support. At the time of the original divorce decree, the trial court awarded her spousal support of $10 per month. At the most recent hearing in the trial court, she asked it to retroactively increase her spousal support award, but it refused to do so. As with her argument about the original division of the pension, Ms. Owca's argument about the original spousal support award is foreclosed by the doctrine of law of the case. By failing to pursue on appeal an argument that her spousal support award was inadequate at the time it was made, Ms. Owca forfeited that argument. Her third assignment of error is overruled. CONCLUSION {¶ 8} Ms. Owca's assignments of error are overruled. The judgment of the Medina County Common Pleas Court, Domestic Relations Division, 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 Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the *Page 5 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. MOORE, J. CONCURS

2016-07-06 06:36:30.886404+00

This cause comes into this court both upon error and appeal by S.S. Kresge Company. Motion is made on behalf of The B.D.K. Company to dismiss the appeal, it being claimed for this motion that the action below was not a chancery proceeding. "Where a defeated litigant is doubtful of his right of appeal, he may prosecute appeal and error concurrently to the Court of Appeals. "Where both appeal and error have been prosecuted to the Court of Appeals, a perfected appeal suspends the judgment of the trial court; and if a motion to dismiss is filed by the appellee it becomes the first duty of the appellate court to determine whether the case is appealable; if the case is one in chancery, the appellate court errs in hearing and determining the error case and in dismissing the appeal, when such motion remains undecided. * * * "While the motion to dismiss the appeal is pending and remains undecided, the appellant cannot be compelled to elect whether he will try his case on error or appeal." Union TrustCo. v. Lessovitz, 122 Ohio St. 406, 171 N.E. 849. This court must, therefore, first decide the motion to dismiss the appeal. The proceeding was originally instituted under the Declaratory Judgments Act. The question is whether a proceeding so brought is a chancery proceeding; if a chancery proceeding, motion to dismiss the appeal must be overruled, otherwise sustained, *Page 104 as the jurisdiction of the Court of Appeals in the trial of cases on appeal is expressly limited by the Constitution to chancery cases. Wagner v. Armstrong, 93 Ohio St. 443,113 N.E. 397. The action was instituted in the Common Pleas Court under the provisions of Section 12102-1, et seq., General Code. It is claimed by The B.D.K. Company et al., designated appellees herein, that the Declaratory Judgments Act authorizes a special statutory proceeding, and, therefore, is not appealable to this court. We are of opinion that the question of the appealability of a case does not depend solely upon whether the right and remedy are created by statute, but upon the broader proposition as to whether the basic principles of the proceedings authorized by the statute are equitable in character and based upon some equitable doctrine formerly cognizable in courts of chancery. Where rights are created by a statute which prescribes the particular method by which they are to be enforced, and both the right and the remedy are unknown to equitable jurisprudence, the case is not appealable to this court, since the jurisdiction of this court is limited by the Constitution to chancery cases. The plaintiffs are persons interested in the matters defined by the provisions of Sections 12102-2 and 12102-4, General Code, and are authorized to bring the proceeding. Looking to the pleadings, it is apparent that the issues submitted in the Common Pleas Court are: 1. Reformation of the lease made under authority of the will of Henry Moff, deceased, which will had theretofore been admitted to probate in the Probate Court of Columbiana county wherein administration with the will annexed of the estate of Henry Moff, deceased, was granted; 2. Specific performance of a written contract to make a lease; 3. Construction of the will of Henry Moff, deceased; *Page 105 4. Declaration of rights of the parties under the lease as executed and as reformed. An action for specific performance is equitable in its character and belonged to the exclusive jurisdiction of courts of chancery before the adoption of the civil code and this character was not changed by its adoption. Hull v. Bell Bros. Co., 54 Ohio St. 228, 43 N.E. 584; Pierce, Assignee, v.Stewart, 61 Ohio St. 422, 56 N.E. 201. It may be stated generally that a petition for the reformation of an instrument is equitable in character. The remedy prescribed by the Declaratory Judgments Act is not exclusive. The civil action for reformation of written contracts is recognized as one of the distinctive fields of equity jurisdiction and presents a chancery case. Both before and since the constitutional amendment of 1912 the appealable character of a case has been held determinable from the pleadings and the issues made thereby. Hummer v.Parsons, 111 Ohio St. 595, 146 N.E. 62; Grapes v. Barbour,58 Ohio St. 669, 49 N.E. 306. It is true that the petition in this case seeks a construction of the will of Henry Moff, deceased, but this relief is incidental only to the real issue made by the pleadings, which is the reformation of the lease executed by the widow, devisees and executors under the will of Henry Moff, deceased. So, we need not determine whether in all cases an action for the construction of a will is a chancery proceeding, but it may be noticed that in the absence of statutory authority courts of equitable jurisdiction render declaratory judgments in certain circumstances, one of which is to construe trusts and wills. 3 Freeman on Judgments (5th Ed.), 2781, Section 1353. That an action for reformation of a contract is a chancery proceeding is held by the Supreme Court in *Page 106 the case of Bingham v. Nypano Rd. Co., 112 Ohio St. 115,147 N.E. 1. While the petition likewise prays that the contract of lease in question be declared a valid and binding lease between the parties, the determination of this issue depends upon the other issues made by the pleadings, and we think a fair construction thereof clearly shows that the issues made by the pleadings, as well as the ultimate relief sought, are equitable in principle and formerly cognizable in courts of chancery. We conclude that the action in the Common Pleas Court was in chancery, and is, therefore, appealable. We do not determine that every action brought under the Declaratory Judgment Act is appealable. The motion to dismiss the appeal in this case is overruled. Motion overruled. ROBERTS and CARTER, JJ., concur.

2016-07-06 06:36:30.893153+00

Henry Moff, late of Columbiana county, Ohio, died in December, 1915, seized in fee simple of a parcel of land known as the Commercial Block in Salem, Ohio. His will, which was duly admitted to probate and record in the Probate Court of Columbiana county, Ohio, contained the following items: "First: My will is that all my just debts and funeral expenses be paid out of my estate as soon after my decease as shall be found convenient. "Second: I give, devise and bequeath to my beloved wife Kate Moff, all the rest, residue and remainder of my estate, the same to be hers during her life time provided she remains my widow, at the date of her death or re-marriage, then it is my will that at her death all that remain of my estate shall go and pass to my children Walter A. Moff and Ralph W. Moff *Page 107 share and share alike, and if either die leaving children, said child or children to take the share their parent would have taken if living. In case my wife, Kate Moff should re-marry then I will and bequeath her the undivided one-third part of my estate left at that time and the balance to go and absolutely belong to my two sons aforesaid, to-wit: Walter A. Moff and Ralph W. Moff share and share alike, and if either die leaving child or children said child or children to have the share their parent would have been entitled to if living. "Third: When my executors have settled my estate so far as my debts are concerned from this time on my wife can have the right, so long as she remains my widow, to sell and dispose of my real or personal property she using the proceeds to live upon and to assist my children same as I could if living. "Fourth: I name my wife, Kate Moff and my son Walter A. Moff to be my executors, and I request the Probate Court to direct the omission of bond for the trust here reposed in them and should it be necessary to pay debts or to pay legacies or to carry out the provisions of my will I authorize my Executors to sell any of my real estate for such price and upon such terms as they deem prudent and proper deeds to make, execute and deliver to purchasers thereof on payment of consideration money. And I authorize said sale of real estate or of my personal property to be made either at Public or Private Sale without any order of Court and I request that no appraisement be made if this can be legally done." Henry Moff left surviving him his widow, Kate Moff, and two sons, Walter A. Moff and Ralph W. Moff. The executors named in the will were duly appointed and qualified in the Probate Court of Columbiana county and proceeded to administer the estate, and on or about the 19th day of January, 1923, such executors filed what was termed their fourth and final *Page 108 account, obtained an entry in the Probate Court of Columbiana county, Ohio, showing the estate settled in so far as the payment of the debts of the testator were concerned and the executors were excused by the court from filing further accounts during the life of the widow, Kate Moff. On the 9th day of September, 1928, Ralph W. Moff, one of the sons of said Henry Moff, died testate, leaving his widow, Juliet E. Moff, as his sole legatee and devisee under his will, which was duly admitted to probate, and Juliet E. Moff was subsequently duly appointed and qualified as the executrix under his will. On or about the 16th day of October, 1929, Kate Moff and Walter A. Moff, as executors of the estate of Henry Moff, deceased, together with Juliet E. Moff, executrix of the estate of Ralph W. Moff, deceased, and Kate Moff, Walter A. Moff and Juliet E. Moff, individually, made a written proposal to Zinn and Robbins, agents for S.S. Kresge Company, to lease the property designated as #11-13-13 1/2, Broadway, Salem, Ohio, being the same property upon which the Commercial Block is located, for the period of fifty years, beginning March 1, 1930, at a rental of $3,000 net per year, payable in equal monthly installments in advance and in conformity to all conditions, covenants and agreements contained in a form of lease attached to the proposal and made a part thereof. This proposal was, on the 28th day of October, 1929, accepted by S.S. Kresge Company, and thereby became a valid written contract for the lease of the premises in accordance with the terms of the proposal and form lease attached thereto. Thereafter, on the 9th day of November, 1929, pursuant to the written contract last above referred to, Kate Moff and Walter A. Moff, as executors of the estate of Henry Moff, deceased, Juliet E. Moff as executrix of the estate of Ralph W. Moff, deceased, and *Page 109 Kate Moff, Walter A. Moff, and Juliet E. Moff, as well as the S.S. Kresge Company, by its vice-president and assistant secretary, executed a lease of the premises known as Commercial Block in the city of Salem, Ohio, to the S.S. Kresge Company for the period of fifty years beginning March 1, 1930, wherein the S.S. Kresge Company agreed to pay to the lessors the rental for such demised premises, as follows: "One hundred fifty thousand ($150,000.00) Dollars payable as follows: At the rate of Three Thousand ($3,000.00) Dollars net per year during the term hereof, payable in equal monthly installments of Two hundred Fifty ($250.00) Dollars each in advance, on the first business day of each and every month during the term hereof, beginning March 1, 1930, and ending February 29, 1980." This written instrument of lease was upon a form endorsed on the back in printing, "Real Estate Department S.S. Kresge Company, Detroit." The acknowledgment of Kate Moff and Walter A. Moff, individually, appear on the original printed form of the lease, and on the same sheet of paper with the rest of the lease. The acknowledgment of the proper official of the S.S. Kresge Company appears upon the same sheet of paper with the rest of the lease. The acknowledgment of Kate Moff and Walter A. Moff as Executors of the estate of Henry Moff, deceased, as well as the acknowledgment of Juliet E. Moff in her capacity as executrix of the estate of Ralph W. Moff, deceased, and of Juliet E. Moff in her individual capacity, are upon a sheet of paper which is firmly pasted upon the printed form of lease. The lease was duly recorded in the Recorder's office of Columbiana county, Ohio, on the 11th day of December, 1929, and the S.S. Kresge Company went into possession of the leased premises at the beginning of the term stated therein and have ever since been in *Page 110 possession of the premises and paying the rentals stipulated in said lease. It is stipulated between the parties to this litigation that the sheet of paper attached by mucilage to the form upon which the lease is written and upon which certain of the acknowledgments appear, was fastened thereto by mucilage before the parties, witnesses and notaries signed the instrument, and were so fastened by mucilage at the time of the delivery and recording of the lease. Walter A. Moff, one of the sons of Henry Moff, died intestate on the 8th day of June, 1933, leaving Josephine R. Moff, his widow, and Raymond H. Moff, a minor, as his only next of kin and heirs at law, and on or about the 12th day of June, 1933, Josephine R. Moff was duly appointed and qualified, and is still acting, as the administratrix of the estate of said Walter A. Moff, deceased, and one Harry M. Vogel was duly appointed, qualified and is still acting as the guardian of the person and property of said Raymond H. Moff, a minor. Juliet E. Moff, widow and sole devisee of Ralph W. Moff, deceased, on or about the 1st day of December, 1932, sold and conveyed to The B.D.K. Company a one-fourth interest in the Commercial Block (Juliet E. Moff at the time being the owner of the one-half part of such premises, subject to the lease). Kate Moff and Juliet E. Moff each elected to take under the respective wills of their deceased husbands, either by election in open court or by their conduct and action; at least, it is not questioned in this case that each such widow elected to take the provisions made for them in the will of their respective husbands. Kate Moff, widow of Henry Moff, did not remarry, and died February 1, 1932. A re-acknowledgment of the lease was made on the original sheet thereof by Juliet E. Moff and subscribed by the notary under date of February 2, 1934. *Page 111 It is stipulated between the parties that at the time of the filing of this action the fee simple title to the premises described in the lease is as follows: The B.D.K. Company has an undivided one-fourth interest; Juliet E. Moff an undivided one-fourth interest; Josephine R. Moff an undivided one-fourth interest; and Raymond H. Moff an undivided one-fourth interest, all of whom are proper parties plaintiff in this action. Since the appeal of this proceeding to this court certain conveyances have been made changing the title to said property, and substitutions have been made of parties to conform thereto, and no question is made in this proceeding upon the subject of the fee simple title to the premises which are the subject of this action. Upon the trial of this action in the Common Pleas Court the re-acknowledged lease was tendered by the plaintiffs to the S.S. Kresge Company, which tender was refused by the company. Prior to the institution of the action in the Common Pleas Court the S.S. Kresge Company, in writing, notified the owners of the fee title that it intended to vacate the premises and terminate, on February 28, 1934, its liability under what it designated the "purported lease," recorded in volume 34, page 36 of Columbiana county Record of Leases. The questions raised before this court are the following: (1) Did Kate Moff have the power, under the will of Henry Moff, deceased, to make a lease of the premises in question for fifty years? (2) Does the lease in question conform to the provisions of Section 8510, General Code? (3) Are the appellees entitled to have the lease reformed according to the manifest intention of the parties? (4) Is the appellant estopped to question the validity of the lease? *Page 112 "In construing a will, the great object is to ascertain the intention of the testator, and this is to be gathered from the phraseology of the will itself; and in order to arrive at this intention, it is necessary to look into the whole instrument. It will not do to seize upon an isolated passage, and give it a controlling effect. Rules of construction, as recognized in the books, should be adhered to, and resort may be had to decided cases. But these cannot be conclusive, as it is not to be expected that any two wills will be exactly alike. After all, the sound judgment of the court, in any given case, must be relied upon to ascertain the meaning of the testator, from the language which he has employed." Lessee of Williams v. Veach,17 Ohio, 171. "It has become a formula, in the construction of wills, that the intention of the testator must govern. This intention must, of course, be ascertained from the language of the instrument, as applied to the subject matter, and the surrounding circumstances. "The rule for construing the language of a will is less rigid than it is in regard to any other instrument. It is not, necessarily, to be viewed technically, and, with strict grammatical accuracy, but sensibly and liberally, in order to give effect to intention. * * * In whatever language an intended disposition is expressed, if the disposition itself be not unlawful, it must follow the ascertained intent." Brasher v. Marsh, 15 Ohio St. 103. By Item Second of the will of Henry Moff, deceased, he gave, devised and bequeathed to his wife, Kate Moff, all of the rest, residue and remainder of his estate after the payment of his debts and funeral expenses, the same to be hers during her lifetime, provided she remained his widow, and at the date of her death, or re-marriage, all that remained of his estate should go and pass to his children, Walter A. Moff and Ralph W. Moff, share and share alike, and if either *Page 113 die leaving children, such child or children to take the share their parent would have taken if living. By Item Third of the will of Henry Moff he directed that when his executors have settled his estate so far as his debts are concerned, from this time on his wife can have the right, so long as she remains his widow, to sell and dispose of his real and personal property, she using the proceeds to live upon and to assist his children, the same as he could do if living. By the language in the will we find there is granted to the widow the power to sell and dispose of the testator's real estate and use the proceeds to live upon and to assist the children the same as the testator could do if living, and this power is coupled with the life interest in the real estate devised by the will to the widow. It is conceded that the will is broad enough to authorize the widow to make a sale of the real estate in question, but it is claimed by the appellant that the power granted to the widow in this will does not authorize the widow to execute the lease for fifty years, and we are cited by counsel for appellant to the case of Breuer v. Hayes, 10 Dec. Rep., 583, 22 W.L.B., 144, as authority to sustain this position of the appellant. From the syllabus in the last cited case it is stated: "1. A naked power of sale does not imply a power to lease." In that case the executors made a void lease under a naked power of sale and conveyed the reversion subject to the lease. It was there held "that the claim that the two acts constitute a lawful execution of the power is, at least, so doubtful that in the absence of the cestuis que trust a court of equity ought not to force upon a purchaser, a title dependent for its validity upon the deed of the reversion." The facts in Breuer v. Hayes, supra, are in no respect similar to the facts in the case under consideration by this court. In Breuer v. Hayes, supra, as to *Page 114 four-fifths of the real estate the power was a naked power of sale not coupled with any interest in the executors, and it was held that the executors, under such power, had no right to make a lease of the premises. In the case at bar, we have a power coupled with an interest, and, in addition to the power of sale, there is granted by the will of Henry Moff to his widow the power to dispose of his real estate and personal property, she using the proceeds to live upon and to assist his children the same as he could do if living. The words "the same as he could do if living" need not be given their strict grammatical construction, but in interpreting the will so as to ascertain the intention of the testator these words will be held to modify the power of disposition of the real estate, as well as modifying the use of the proceeds, provided this construction is not in conflict with the intention of the testator as determined from the whole instrument. Looking further to the language of the will we find that the testator directs that at the death of the widow "all that remain" of his estate shall pass to his children, if living, and it is further provided in the will that if the widow, Kate Moff, should remarry then a provision is made disposing of that part of the estate "left at that time." In examining the case of Breuer v. Hayes, supra, in the opinion by Taft, J., reference is made to the case of Liefe v.Saltingstone, 1 Mod., 189, 86 Eng. Rep. Reprint, 819, where the will made "A devise to the wife for life with power to dispose of the estate to the children"; and wherein the court held that the greater includes the less. Speaking of this case of Liefe v. Saltingstone, Judge Taft says: "We do not think this case supports the plaintiff's contention for several reasons. The power under consideration was a power coupled with an interest, which *Page 115 is a material distinction in this, that the ordinary construction of such a power may have to be materially modified, as it was in the case cited, in order to carry out the intention of the donor with respect to the enjoyment of the interest. Again, a close examination of the chancellor's language shows that what he was considering the effect of, was the words `dispose of.' He cites a case to show that those words have been held, under circumstances of necessity, to justify a sale of the fee and then, in effect, says that if those words will justify so extreme a measure as a sale, they will, on the principle that the greater includes the less, justify a lease, which is a more limited disposition of the estate. This is a very different thing from saying that a power to sell includes a power to lease, because the one is greater than the other. The term `dispose of' is a much wider term than sale or lease, and includes them both." So, we find that the case of Breuer v. Hayes, supra, is authority for holding that the words "dispose of" used in the will of Henry Moff, deceased, constitute a term of much wider significance than sale or lease, and include them both. It is also noted that in the opinion of Taft, J., in the case of Breuer v. Hayes, supra, attention is called to the fact that the cestuis que trust were the parties to the action of Liefe v. Saltingstone, supra, and we observe here that all parties having an interest in the real estate in question are parties to this proceeding, and are upholding the validity of the lease in question, so that it is quite plain for us to see from the record and the evidence that the disposition made by the widow under the power granted in the will in making this lease is and was for the benefit of the estate and for the benefit of all persons interested therein. In the case of Wolff v. O'Brien, 231 Mass. 487,121 N.E. 368, it was held in the syllabus: "A testator devised and bequeathed all his property *Page 116 to his wife `for her natural life, with power to sell or mortgage said property if she considers it necessary,' leaving the remainder to his children upon her death. The widow made a lease of certain real estate that had belonged to her husband, and died while three years of the term of the lease were unexpired. In a suit in equity by the tenant under the lease against the children of the testator to enjoin them from interfering with his quiet enjoyment of the property, it washeld that the power of the widow to sell the property included the power to lease it, and that accordingly the lease was good against the defendants, and the tenant was entitled to an injunction." It will be noted that the power granted to the widow in the will of Henry Moff is to sell and dispose of his real estate. In the case of Hill v. Sumner, 132 U.S. 118, 33 L. Ed., 284,10 Sup. Ct., 42, Mr. Justice Miller, of the Supreme Court of the United States, said: "The definition of the words `dispose of' or `sell,' in this article, must be considered with reference to the remainder of the contract, to ascertain its meaning. Obviously the word `dispose' must have some meaning in the contract, and is not synonymous with the word `sell.' It would be useless, if such were its construction. It must mean something more or something less than the word `sell.' In the circumstances of this case, it would seem to mean something more. The references of counsel in their briefs to decided cases attempting to define that word are of course of very little avail, as in each instance it must be taken in connection with the circumstances in which it is used. In the language of this court in the case of Phelps v.Harris, 101 U.S. 370, 380, `the expression "to dispose of" is very broad, and signifies more than "to sell." Selling is but one mode of disposing of property.'" Counsel for appellant seemingly place great reliance upon the case of Rutledge v. Crampton, 150 Ala. 275, *Page 117 43 So. 822. This case has no similarity to the facts in the case at bar. In the opinion the court states: "Our attention is called to the case of Phelps v. Harris, and authorities there cited and considered in 101 U.S. 370,25 L. Ed. 855, wherein it is held, and properly so, that the right to sell and dispose of the property gave the right to partition, and wherein a proper distinction is made between the words `sell' and `dispose'; but such cannot be the meaning of the word `dispose' in the case at bar, for the words as used in the will of Bell are synonymous, for, while it says `sell and dispose' of as she may think best, it further says, `either at public or private sale,' thus directing the method of disposition and limiting it to a conveyance." (Italics ours.) In the case at bar there is no limitation upon the phrase "sell and dispose of" in the will of Henry Moff, otherwise than by the words "she using the proceeds to live upon and to assist my children same as I could do if living." In the case of United States v. Gratiot, 39 U.S. 526,10 L. Ed., 573, the syllabus is as follows: "The words `dispose of' the public lands, used in the Constitution of the United States, cannot, under the decisions of the Supreme Court, receive any other construction than that Congress has the power, in its discretion, to authorize the leasing of the lead mines on the public lands, in the territories of the United States." In arriving at the true intent and meaning of this will it is pertinent to observe that the testator provided therein that at the death of his wife "all that remain of my estate" shall go and pass, etc., and provided therein that upon the re-marriage of his wife "then I will and bequeath her the undivided one-third part of my estate left at that time and the balance" etc. Taking this language in connection with the fact that the *Page 118 testator used both the words "sell" and "dispose of" in the third clause of his will, and with the further fact that the disposition made by the widow in granting the lease in question is for the benefit of the estate, as well as for the benefit of the residuary devisees, and taking into consideration the fact that the term "dispose of" has a broader and more general meaning than the word "sell," and the further fact that it must be held that the testator had some purpose in using the additional words "dispose of," and the further fact that the power granted to the widow is coupled with an interest, and the further fact that the language used is capable of the reasonable construction that the testator intended to grant to his wife the same power of disposition over this real estate as he "could if living," we have arrived at the conclusion that the intendment of the testator by the language used in this will in view of all the circumstances surrounding the same is sufficiently broad to have authorized the making of the lease in question. It is said in oral argument of counsel for the appellant that if the court should find that the will in question granted the power to the widow to make the lease in question that would finally dispose of this case, but we deem it proper to further refer to the situation presented by other facts and circumstances surrounding the execution of the lease. In this connection we first observe that it is stipulated between the parties that the debts and funeral expenses of Henry Moff have been paid, and it follows that there is no further power of the executors of Henry Moff, deceased, to sell or dispose of his real estate after the payment of his debts and funeral expenses. It therefore follows that, in any event, the widow and the two sons of Henry Moff, all of whom survived the father, were the only persons interested in the real estate so long as the widow and both of the sons of Henry Moff lived. Upon the death of Ralph W. Moff, his widow, Juliet E. Moff, *Page 119 succeeded to all the interest of Ralph W. Moff in this real estate by virtue of the will of Ralph W. Moff, so that we find and hold that at the time of the execution of the lease in question the only persons who could possibly have had any right, title or interest in the real estate leased were Kate Moff, Walter A. Moff and Juliet E. Moff. The lease in question was concededly signed and properly acknowledged upon the same sheet of paper by Kate Moff and Walter A. Moff. As shown by the written contract, which is a part of the record in this case, it was clearly the intention of the parties that a lease for fifty years be granted to the S.S. Kresge Company. All that the S.S. Kresge Company can reasonably demand is a lease which shall protect them in their peaceable enjoyment of the premises during the term therein. The acknowledgment of Juliet E. Moff was upon a sheet of paper which had been firmly attached by mucilage to the main body of the instrument, and it is stipulated that it was so firmly attached at the time the instrument was executed, delivered, accepted and recorded. Juliet E. Moff has subsequently acknowledged the execution thereof and her acknowledgment has been set forth on the main body of the instrument and the lease again tendered to the lessee, and upon the trial said re-acknowledged lease was brought into court and tendered to the lessee. Under all these circumstances it is the finding of this court that the lease should be and is reformed so as to conform with the real intent of all the parties thereto, when the same was executed and delivered, and such lease, as so modified and corrected, is held to be a good and sufficient lease for the full term thereof and is valid and legally sufficient to convey the fifty year term sought to be conveyed thereby, and is a valid and binding lease as to all parties thereto and their successors in title, and that judgment be entered for the appellees and against *Page 120 the appellant as prayed for in plaintiffs' petition, and for costs. It is further ordered by this court that the clerk of this court certify to the recorder of this county the judgment and decree entered herein, and that the same be entered by such recorder on the margin of the record of the lease in volume 34, page 36, et seq., of the Lease Records of Columbiana county, Ohio, and that a copy of the journal entry of this court showing the judgment and decree hereby ordered be recorded in its entirety in the Recorder's Office of Columbiana county, Ohio. Decree accordingly. CARTER and ROBERTS, JJ., concur.

2016-07-06 06:36:30.953878+00

OPINION {¶ 1} Appellant, Roberto D. Grayer, appeals from his sentence for one count of aggravated burglary and two counts of felonious assault. We affirm. {¶ 2} On May 12, 2002, Grayer, who was seventeen at the time, and two friends, robbed the Marc's store located in Willoughby Hills, Ohio. Grayer had been employed at the store for the eleven months preceding the robbery. During the course of the crime, Grayer beat Lorraine Burich and Thomas Severovich with a miniature baseball bat causing severe injury to both. The victims were fifty and seventy-eight years old respectively. {¶ 3} Grayer was indicted on two counts of attempted murder, R.C. 2903.02 and 2923.02, first degree felonies; three counts of aggravated robbery, R.C. 2911.01(A)(1), first degree felonies; two counts of felonious assault, R.C. 2903.11(A)(1), second degree felonies; two counts of felonious assault, R.C.2903.11(A)(2), second degree felonies; and one count of theft, R.C. 2913.02(A)(1), a fifth degree felony. Grayer pled guilty to one count of aggravated robbery, R.C. 2911.01(A)(1), a first degree felony; and two counts of felonious assault, R.C.2903.11(A)(1), second degree felonies. A nolle prosequi was entered on the remaining counts. After a presentence investigation and sentencing hearing, the trial court sentenced Grayer to serve ten years for aggravated robbery and eight years on each count of felonious assault, with the sentences to run concurrently. Grayer appeals from the trial court's sentencing entry raising two assignments of error: {¶ 4} "[1.] The trial court erred to the prejudice of the defendant-appellant when it ordered a term of imprisonment by making findings under the applicable sentencing statute that were not supported by the record." {¶ 5} "[2.] The trial court erred by sentencing the defendant-appellant to the maximum term of imprisonment on all charges." {¶ 6} We review a felony sentence de novo. State v.Bradford (June 2, 2001), 11th Dist. No. 2000-L-103, 2001 WL 589271, 1. We will not disturb a sentence unless we find, by clear and convincing evidence, that the record does not support the sentence or that the sentence is contrary to law. Id. "Clear and convincing evidence is that evidence which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established." Id. {¶ 7} In his first assignment of error, Grayer argues that the trial court's findings do not support a term of imprisonment. We disagree. {¶ 8} R.C. 2929.13(D) provides: {¶ 9} "* * *, for a felony of the first or second degree * * * it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing * * *. Notwithstanding the presumption established under this division, the sentencing court may impose a community control sanction or a combination of community control sanctions instead of a prison term on an offender for a felony of the first or second degree * * * if it makes both of the following findings: {¶ 10} "(1) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism. {¶ 11} "(2) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under section 2929.12 of the Revised Code that indicate that the offender's conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender's conduct was more serious than conduct normally constituting the offense." {¶ 12} Thus, in order to impose a community control sanction in the instant case the trial court was required to find that such a sanction would adequately punish Grayer, that Grayer was less likely to reoffend, and that such a sanction would not demean the seriousness of the offense, because Grayer's conduct was less serious than conduct normally constituting the offense. {¶ 13} To make this determination the trial court must look to the factors set forth in R.C. 2929.12(B)-(E). These sections provide in relevant part: {¶ 14} "(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense: {¶ 15} "(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim. {¶ 16} "(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense. {¶ 17} "(3) * * *. {¶ 18} "(4) * * *. {¶ 19} "(5) * * *. {¶ 20} "(6) The offender's relationship with the victim facilitated the offense. {¶ 21} "(7) * * *. {¶ 22} "(8) * * *. {¶ 23} "(9) * * *. {¶ 24} "(C) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is less serious than conduct normally constituting the offense: {¶ 25} "(1) The victim induced or facilitated the offense. {¶ 26} "(2) In committing the offense, the offender acted under strong provocation. {¶ 27} "(3) In committing the offense, the offender did not cause or expect to cause physical harm to any person or property. {¶ 28} "(4) There are substantial grounds to mitigate the offender's conduct, although the grounds are not enough to constitute a defense. {¶ 29} "(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: {¶ 30} "(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. {¶ 31} "(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. {¶ 32} "(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. {¶ 33} "(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. {¶ 34} "(5) The offender shows no genuine remorse for the offense. {¶ 35} "(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: {¶ 36} "(1) Prior to committing the offense, the offender had not been adjudicated a delinquent child. {¶ 37} "(2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense. {¶ 38} "(3) Prior to committing the offense, the offender had led a law-abiding life for a significant number of years. {¶ 39} "(4) The offense was committed under circumstances not likely to recur. {¶ 40} "(5) The offender shows genuine remorse for the offense." {¶ 41} The record in the instant case supports the trial court's judgment. Grayer had previously been adjudicated a delinquent child. This adjudication resulted from Grayer's assault of a younger child. Grayer also had a demonstrated history of drug and alcohol abuse and was under the influence of marijuana laced with crack cocaine at the time he committed the offenses in the instant case. While Grayer's juvenile adjudication occurred four and one-half years prior to the instant offenses, given Grayer's young age, we cannot say that Grayer had led a law-abiding life for a significant number of years. The state's expert, Dr. Fabian, submitted a report in which he concluded that Grayer would likely violently re-offend. {¶ 42} Grayer argues that he showed remorse immediately following the crimes and that this militated against the sentences. While there is substantial evidence that Grayer was genuinely remorseful for his action, this evidence does not outweigh the evidence supporting the trial court's conclusion that Grayer is likely to reoffend. {¶ 43} The record also supports the trial court's finding that the instant offenses were more serious than conduct normally constituting the offenses. {¶ 44} The victims were fifty and seventy-eight years old at the time of the crimes. Ms. Burich had recently lost her husband and this made her more susceptible to mental injury. Burich testified that she was afraid to be alone and suffered from nightmares because of the attack. Burich also incurred serious physical injuries, including head injures. Mr. Severovich testified that he was afraid to board the elevator in his apartment building and suffered from nightmares. Severovich also suffered serious injuries, including significant hearing loss. Grayer's relationship with the victims facilitated the crimes. Grayer knew the operations of the Marc's store because of his employment. He knew Burich and Severovich. When Grayer and his cohorts entered the store, Grayer paged Burich to go to the cash room where the attacks occurred. The trial court also properly found that imposing community control sanctions would demean the seriousness of the offenses. {¶ 45} The trial court found that none of the factors set forth in R.C. 2929.12(C) applied to indicate that Grayer's conduct was less serious. Grayer argues that there was substantial evidence that he did not intend to cause physical injury and that there are substantial grounds to mitigate his conduct, i.e., his drug abuse and difficult upbringing. We disagree. {¶ 46} Grayer armed himself with a miniature baseball bat prior to entering the store. The victims were also threatened during the course of the robbery. Thus, there was substantial evidence that Grayer caused and expected to cause physical harm. {¶ 47} While the record shows that Grayer's father had abandoned him and that his mother suffered from drug addiction, this does not outweigh those factors discussed above that indicate that Grayer's conduct was more serious. {¶ 48} Appellant's first assignment of error is without merit. {¶ 49} In his second assignment of error, Grayer contends that the trial court erred in imposing maximum sentences because the evidence does not support the conclusion that he is likely to reoffend. We disagree. {¶ 50} R.C. 2929.14(C) provides in relevant part: {¶ 51} "* * * the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense * * * only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders * * *, and upon certain repeat violent offenders * * *." {¶ 52} The trial court found that, pursuant to R.C.2929.14(C), appellant posed the greatest likelihood of recidivism. For the reasons discussed above, we cannot find, by clear and convincing evidence, that the record did not support Grayer's sentence. Appellant's second assignment of error is without merit. {¶ 53} For the foregoing reasons the judgment of the Lake County Court of Common Pleas is affirmed. Judgment affirmed. O'Neill and Grendell, JJ., concur.

2016-07-06 06:36:30.996321+00

DECISION AND JUDGMENT ENTRY {¶ 1} Tina Roop, now known as Tina White ("Appellant"), appeals the decision of the Hocking County Common Pleas Court which deviated from the child support worksheet amount in calculating child support and modified parenting time between Appellant and Michael Roop ("Appellee"). Appellant contends that the trial court abused its discretion in deviating from the child support worksheet amount and modifying parenting time, as the modification was not in the best interests of the parties' minor child. Because the trial court offers no rationale to support its modifications, we conclude that those modifications were arbitrary, and thus, an abuse of discretion. {¶ 2} Appellee and Appellant were divorced on March 19, 1998. Their shared parenting plan was approved by the court; Appellant was designated residential parent of the parties' only minor child. The original Judgment Entry of divorce provided Appellee with visitation pursuant to the companionship schedule adopted by the Hocking County Common Pleas Court and on other occasions mutually agreed upon by the parties. With respect to child support, Appellee was ordered to pay $312.19 per month, based on yearly incomes of $16,000.00 for both parties. {¶ 3} Subsequently, Appellant married Jim White, who is in the U.S. Army. In January 2004, Appellant relocated to Fort Bragg, North Carolina. The parties' minor child expressed a desire to try living with Appellee instead of moving to North Carolina. Based on her son's request, Appellant agreed to a modification of the shared parenting order, which was to be reviewed in August 2004. This modification was included in the Judgment Entry/Shared Parenting Decree filed February 17, 2004. The terms of the modification included the following: Appellee was designated residential parent for school purposes; Appellant was to have ten weeks of parenting time during the summer, subject to one week of uninterrupted vacation time for the Appellee; Appellant was to have extended weekends with the child and could visit with the child whenever she was in Ohio; and, despite the modification being subject to review, holidays and school breaks would alternate between parents in odd and even years. It was further ordered that Appellant was responsible for all transportation and transportation costs for parenting time. Appellee was to provide the parties' child with medical insurance. Pursuant to the agreement of the parties, the issues of child support and income tax dependency exemption were to be decided by the court based on the evidence adduced at a hearing in December 2003. {¶ 4} On April 1, 2004, the magistrate issued a decision, later adopted by the court, regarding child support and tax exemption. Based upon Appellee's annual income of $30,000.00 per year and an imputed income of $10,712.00 to Appellant, the worksheet amount was $178.03. However, the magistrate found that because of the travel costs associated with parenting time and the extended summer parenting time, a deviation from the worksheet amount was appropriate. The magistrate deviated from $178.03 per month to $143.03 per month for Appellant's child support obligation. {¶ 5} In the ensuing months, the parties' minor child vocalized a wish to return to Appellant's custody. In July 2004, Appellant filed a motion to modify the February 17 Shared Parenting Decree, requesting that she be designated residential parent for school purposes. At the scheduled review hearing in August 2004, the parties could not reach an agreement, and the matter was set for hearing in November 2004. {¶ 6} A full hearing was held on November 10-11, 2004. The evidence showed that the level of hostility between the parties had remained so high during the period between February and November 2004 that parenting time was affected. Appellee testified at the hearing that he was self-employed as a contractor, and that his net income was $1,500.00 to $2,000.00 monthly. The evidence showed that Appellant's annual income was $14,856.00. The evidence further demonstrated that the parties' minor child was provided with medical insurance through Mr. White's military insurance plan, instead of being provided by Appellee, as the parties had agreed. {¶ 7} On or about November 22, 2004, the guardian ad litem filed her supplemental report, recommending that Appellant be designated residential parent for school purposes. The guardian ad litem also recommended modifications to the parenting time schedule, such that Appellee would have the parties' minor child all of Thanksgiving break each year, all of Christmas break during even years and half of Christmas break during odd years, all of spring break each year, Easter each year, and the entire summer break each year. In addition, the guardian ad litem recommended extended weekend parenting time. {¶ 8} On March 21, 2004, the magistrate filed her Decision and Judgment Entry/Shared Parenting Decree. The magistrate found that there had been changes in circumstance for the minor child, as well as for Appellant, and that it was in the child's best interests that shared parenting continue, but Appellant be designated residential parent. As to parenting time, the magistrate made the following orders: For the school year 2004/2005, the child shall remain with the father through the end of the school year in Logan, Ohio. The Father shall have parenting time with the child for the first half of the summer of 2005, summer being determined to be from the day that school ends in Logan until school begins in North Carolina. The Mother shall have parenting time with the child for the second half of the summer. The child shall then begin the new school year residing with his mother. Mother shall have the child for Spring Break, 2005, and Father shall have [child] for Thanksgiving break and all of Christmas break as defined by the shared parenting plan of February 17, 2004. During the second half of 2005, the Defendant/Father shall have the right to exercise companionship with the minor child any time the Plaintiff/Mother brings the child to Ohio. Mother continues to have the right to exercise companionship with the minor child when she is in Ohio. Father may have the child anytime he is in North Carolina. Beginning in calendar year 2006, the Defendant/Father shall have the child with him for ten weeks during the summer. Mother shall provide father with a school calendar not later than October 1 of each year. Father will notify Mother of the ten weeks he wishes to have [minor child] with him in the summer 60 days prior to the first week of the visit. The holiday schedule shall remain as set forth in the shared parenting plan of February 19 (sic), 2004, except that Defendant/Father may have the child with him during Spring Break each year. {¶ 9} The magistrate further ordered that "the parties will equally divide transportation, with the receiving parent to arrange for transportation to their home, and the other parent arranging transportation for the return trip." With respect to child support, the magistrate ordered a deviation from the worksheet amount of $223.00 per month, which amount was based on an annual income of $18,000.00 for the father and $14,856.00 for the mother. The magistrate ordered that "[t]his amount is unjust and inappropriate due to the extended parenting time that the Defendant/Father will have with the child, and the cost of transportation. An order that neither party pay support to the other is appropriate in this case." {¶ 10} On April 1, 2005, Appellant filed two objections to the magistrate's decision. Appellant's first objection was that the child support deviation was unjust and unreasonable. Appellant's second objection was to the magistrate's order regarding parenting time for Thanksgiving and Christmas breaks, as well as summer parenting time. A hearing was held on the objections on June 28, 2005. {¶ 11} On June 29, 2005, the lower court issued its Judgment Entry Adopting Magistrate's Decision with Exceptions. The lower court adopted the magistrate's decision in full with the following changes: (1) father shall have visitation from the day after school is out in the spring until the 7th day before school starts at the end of summer; (2) father shall pay child support of $50.00 per month throughout the year; and (3) [minor child] shall return to his mother the last 4 days of Christmas vacation. Appellant now appeals this judgment, asserting the following assignments of error: {¶ 12} I. THE LOWER COURT ABUSED ITS DISCRETION IN DEVIATING FROM THE CHILD SUPPORT WORKSHEET AMOUNT TO THE EXTENT THAT THE CHILD SUPPORT OBLIGATION WAS REDUCED TO FIFTY DOLLARS ($50.00) PER MONTH. FURTHER, THE DEVIATION IS NOT IN THE BEST INTERESTS OF THE CHILD. {¶ 13} II. THE LOWER COURT ABUSED ITS DISCRETION BY MODIFYING PARENTING TIME, AS SAID MODIFICATION WAS NOT BASED ON THE BEST INTERESTS OF THE CHILD. {¶ 14} Appellant argues the trial court abused its discretion when it deviated from the child support worksheet amount and modified parenting time. Initially, we note that a trial court's modification of a prior child support order is within the broad discretion of the trial court and will not be disturbed absent an abuse of discretion. See Wolfe v. Wolfe, Franklin App. No 04AP-409, 2005-Ohio-2331, at ¶ 7, citing Woloch v. Foster (1994), 98 Ohio App.3d 806, 810, 649 N.E.2d 918. In order to find that a trial court abused its discretion, we must find more than an error of law or judgment; an 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. Most instances of an abuse of discretion result in decisions that are unreasonable, as opposed to arbitrary and capricious. AAAA Enterprises, Inc. v. RiverPlace Community Urban Redevelopment Corp. (1990),50 Ohio St.3d 157, 553 N.E.2d 597. A decision that is unreasonable is one that has no sound reasoning process to support it. See Wolfe v.Wolfe, supra, at ¶ 7. {¶ 15} Civ.R. 53(E)(4)(b), which addresses the disposition of objections to a Magistrate's decision, provides that a trial court "shall rule on any objections the court may adopt, reject, or modify the magistrate's decision, hear additional evidence, recommit the matter to the magistrate with instructions, or hear the matter." In the case sub judice, the trial court adopted the Magistrate's decision in full with three changes: "1) Father shall have visitation from the day after school is out in the spring until the 7th day before school starts at the end of summer; 2) Father shall pay child support of $50.00 per month throughout the year; 3) [Minor child] shall return to his mother the last 4 days of Christmas vacation." {¶ 16} Although granted wide discretion, a trial court is obligated to adhere to the statutory guidelines set forth in R.C. Chapter 3119. See Heyman v. Heyman, Franklin App. No. 05AP-475,2006-Ohio-1345, at ¶ 37. Specifically, when awarding child support, the trial court must complete a child support computation worksheet and enter that worksheet into the record.Marker v. Grimm (1992), 65 Ohio St.3d 139, 601 N.E.2d 496, paragraph one of the syllabus. In so doing, the terms of the statute and the corresponding worksheet must be followed literally and technically in all respects. Id., at paragraph 2 of the syllabus. The resultant guideline amount is rebuttably presumed to be the correct and equitable amount of child support. See Glassner v. Glassner, 160 Ohio App.3d 648, 2005-Ohio-1936, at ¶ 20. A court may order a deviation from that amount, but it must enter that deviation, as well as supporting findings of fact, within its journal entry. Marker, supra, paragraph 3 of the syllabus. {¶ 17} In this case, the parties entered into a shared parenting agreement. Accordingly, R.C. 3119.24 is the governing statute. It provides: {¶ 18} (A) (1) A court that issues a shared parenting order in accordance with section 3109.04 of the Revised Code shall order an amount of child support to be paid under the child support order that is calculated in accordance with the schedule and with the worksheet set forth in section 3119.022 [3119.02.2] of the Revised Code, through the line establishing the actual annual obligation, except that, if that amount would be unjust or inappropriate to the children or either parent and would not be in the best interest of the child because of the extraordinary circumstances of the parents or because of any other factors or criteria set forth in section 3119.23 of the Revised Code, the court may deviate from that amount. {¶ 19} (2) The court shall consider extraordinary circumstances and other factors or criteria if it deviates from the amount described in division (A)(1) of this section and shall enter in the journal the amount described in division (A)(1) of this section its determination that the amount would be unjust or inappropriate and would not be in the best interest of the child,and findings of fact supporting its determination. R.C. 3119.24 (Emphasis added). Pursuant to the language of the statute, the trial court is required to make findings of fact if it deviates from the support computation calculated by the worksheet. As the trial court here has deviated from the worksheet amount, it was required to make findings of fact supporting its determination. Because it has not made the required findings, its deviation is unsupported. Therefore, because there is no sound reasoning process demonstrated in the entry to support the deviation, the trial court abused its discretion when it deviated from the worksheet support amount. {¶ 20} With regard to the parenting time modifications set forth in the entry, R.C. 3109.04 governs the allocation of parental rights and responsibilities for the care of children. R.C. 3109.04(E)(2)(b) provides: The court may modify the terms of the plan for shared parenting approved by the court and incorporated by it into the shared parenting decree upon its own motion at any time if the court determines that the modifications are in the best interest of the children or upon the request of one or both of the parents under the decree. Modifications under this division may be made at any time. The court shall not make any modification to the plan under this division, unless the modification is in the best interest of the children. {¶ 21} In the case sub judice, there is no indication in the entry that the modification in parenting time is in the best interest of the parties' minor son. The modification is therefore not properly supported. {¶ 22} Because the trial court failed to issue findings of fact pursuant to R.C. 3119.24(A)(2) to support its deviation from the support calculation determined by the worksheet, and because there is no indication that the modification in parenting time is in the best interest of the parties' minor son, we reverse the decision of the trial court and remand the case for clarification of the basis of its decision. Reversed and remanded. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED AND REMANDED and that the Appellant recover of Appellee costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court 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 of the Rules of Appellate Procedure. Exceptions. Abele, J. and Kline, J.: Concur in Judgment and Opinion.

2016-07-06 06:36:31.080585+00

OPINION {¶ 1} Defendant-Appellant, Karma Ross, appeals from her conviction of possession of crack cocaine in the Montgomery County Court of Common Pleas pursuant to her no-contest plea. *Page 2 {¶ 2} In her sole assignment of error, Ross contends that "[t]he trial court erred in not ordering the evidence suppressed because the officers lacked a reasonable suspicion to pat search Appellant; therefore, the conviction should be reversed." {¶ 3} The following facts were adduced from the evidence at the suppression hearing. On June 6, 2006, Lieutenant Beane of the Dayton Police Department instructed Dayton police officers to be on the lookout for a gray Dodge Magnum bearing a partial license plate number D T and possibly X because it was suspected of being involved in a shooting on Tennyson Street on June 6. Lieutenant Beane further instructed officers to stop any vehicle matching the description and to identify the occupants. On June 10, 2006, sometime after 4 p.m., Officers Christopher Cornwell and Tiffany Conley spotted a vehicle matching the description heading southbound on Salem Avenue near the intersection of Salem and Ravenwood.1 The officers called for backup and then continued to follow the vehicle southbound on Salem until backup arrived. The vehicle then changed lanes without signaling, and the officers pulled the car over. Officer Cornwell approached the driver side of the vehicle while Officer Conley and Officer Saunders approached the passenger side of the vehicle. The driver of the vehicle reported to Officer Cornwell that he did not have a license and that he knew that the vehicle or one similar to it had been used in a shooting and that the police were looking for it. Cornwell asked the driver to step out of the car, and he patted him down for his safety. After placing him in his cruiser, Cornwell confirmed that the driver was driving under suspension, and he placed him under arrest. He also cited him for failing *Page 3 to properly signal his change of lanes. {¶ 4} Officers Conley and Saunders had Ross, who was the front passenger, and Bailey, who was the rear passenger, exit the vehicle because the car was not registered to the driver and it was going to be towed. While Officer Conley walked toward Ross, she noticed a large round bulge — a little larger than a baseball — between the Appellant's breasts. Conley testified she thought it could be a weapon or drugs. Officer Conley asked the Appellant what the bulge was, but she did not respond. Officer Conley proceeded with the pat down around Ross's legs and asked the Appellant a second time, to which she responded, "Drugs." At that point, Officer Conley patted the object and felt what appeared to be a hard object she recognized as crack cocaine, as well as a softer object. Conley then retrieved the object from inside the Appellant's blouse and identified it as crack cocaine and powder cocaine. Appellant was then read her rights. Officer Conley asked the Appellant if the drugs belonged to her, and the Appellant said, "No." The Appellant was then placed in a police cruiser and taken to jail. {¶ 5} The grand jury indicted Ross on July 3, 2006 for one count of possession of cocaine in an amount that exceeded twenty-five grams but was less than one hundred grams and for one count of possession of crack cocaine in an amount that exceeded ten grams but was less than twenty-five grams. On August 2, 2006, Ross filed a motion to suppress. A hearing on the motion was held August 23, 2006. On September 12, 2006, Judge Gorman issued an order suppressing Ross's statement made during the pat down that the bulge contained drugs. However, the order denied the motion to suppress as to the seized drugs, and Ross then entered her no-contest plea. Appellant was sentenced to two years in prison, suspension of her driver's license for six months, and *Page 4 fined $7,500. {¶ 6} On appeal, Ross raises several arguments in support of her assignment of error. First, she contends that the prosecution presented no information about who the possible shooter might have been or what his or her relation was to the car. Second, she asserts that even if the officers could reasonably detain the car's driver in order to investigate the shooting, it was unreasonable for the officers to suspect a passenger of criminal activity. Third, it was unreasonable for the officer to think that the bulge the way she described it was a weapon. Finally, Ross contends that the officer did not have reasonable suspicion to think that the bulge contained narcotics. {¶ 7} The lower court concluded that Officer Conley was justified in conducting the pat down search of Appellant. The court found three justifications for the pat down search. First, the officers were investigating the possibility that the vehicle was used in a shooting. Second, there was a traffic violation for which the driver was arrested. Finally, Officer Conley saw a bulge on Ross that she believed could be a weapon or contraband. {¶ 8} When considering a motion to suppress, the trial court is the trier of fact and as such it is in the best position to resolve conflicts in the evidence, determine the credibility of the witnesses, and to determine the weight to be given to the witness testimony.State v. Retherford (1994), 93 Ohio App.3d 586, 592, 639 N.E.2d 498. Reviewing the trial court's decision requires the appellate court to accept the trial court's factual findings if they are supported by competent evidence in the record. Id. Accepting those facts as true, the reviewing court must then independently determine, *Page 5 as a matter of law and without deference to the trial court's conclusion, whether the trial court applied the correct legal standard to the facts of the case. Id. {¶ 9} Ross argues that the trial court should have suppressed the cocaine because the police had no reason to suspect her of being involved in the shooting a few days earlier and, thus, no grounds to pat her down. We disagree. When the driver admitted to the police he knew the car was wanted in connection with a shooting, it was reasonable for the police to believe one of the occupants of the car might be the shooter. When a police officer engages in a lawful stop, he may frisk the suspect if he has reasonable grounds to believe the suspect may be armed and dangerous. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The test is whether a reasonably prudent officer in the circumstances confronting the officer would be warranted in the belief that his safety or the safety of others was in danger. Id. at 30. {¶ 10} The Eighth Circuit Court of Appeals determined that a pat-down search conducted on a passenger of a vehicle initially stopped for traffic violations did not violate the Fourth Amendment in U. S. v.Stevens (C.A. 8, 1975), 509 F.2d 683. Stevens was one of multiple passengers in a car that was observed by police committing traffic violations. The officers decided to pull the car over and issue a traffic citation. Id. at 686. Initial questioning of the driver revealed that he did not have an operator's license. Id. Thereafter, a warrant check on the vehicle's license number revealed that the vehicle was wanted in connection with a burglary, which had occurred about three weeks earlier. Id. After learning that the car was suspected in a previous crime, one of the officers ordered all occupants to get out of the car, and they were patted down for weapons. The pat-down search of Stevens led to the discovery of a shotgun shell, *Page 6 which then led to the discovery of a sawed-off shotgun in the car. Id. {¶ 11} In affirming Stevens' conviction for possessing an unregistered firearm, the court of appeals rejected Stevens' claim that the search of his person was unlawful because Stevens had not committed any offense known to the officers at the time he was requested to get out of the car. Id. Noting that the officers "had a valid reason to be somewhat wary of the occupants of a vehicle wanted in connection with a recent felony," the court held that "the privacy of an individual must yield to a limited investigatory intrusion of this sort where there is good reason to believe that he may be `armed and dangerous.'" Id. at 687,688. {¶ 12} After Officer Conley began the pat-down of the defendant and before she discovered the cocaine, she asked the defendant what was in her blouse. When Ross stated the bulge was "drugs," the officers had probable cause to arrest Ross and remove the drugs from her blouse incident to her arrest. Officer Conley was not required to "Mirandize" Ross before she asked what was in her blouse because Ross was not in custody. Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317. The Appellant's assignment of error is Overruled. The judgment of the trial court is Affirmed. DONOVAN and VALEN, JJ., concur. Hon. Anthony Valen, retired from the Twelfth Appellate District, sitting by assignment of the Chief Justice of the Supreme Court of Ohio. 1 There is nothing in the record to indicate precisely what time the stop occurred after Officer Cornwell went on duty at 4 p.m. *Page 1

2016-07-06 06:36:31.132123+00

OPINION On September 22, 1997, the Coshocton County Grand Jury indicted appellant, Thomas Johnson, on one count of operating a motor vehicle while under the influence of alcohol or drugs in violation of R.C. 4511.19(A). The offense was charged as a felony of the fourth degree. On November 13, 1997, appellant pled guilty to the charge. By judgment entry filed February 9, 1998, the trial court sentenced appellant to a mandatory term of sixty days in jail, imposed three years community control sanctions and a $750.00 fine, and permanently revoked his driver's license. The trial court also imposed a special condition of community control sanctions, three hundred four days in jail which included the mandatory sixty days with credit for seventy-eight days time served. On December 7, 1999, appellee, the State of Ohio, filed a motion to revoke appellant's community control sanctions due to his being convicted on August 26, 1999 of operating a motor vehicle while under the influence of alcohol or drugs. A hearing was held on December 20, 1999. By judgment entry filed December 21, 1999, the trial court granted the motion and sentenced appellant to a definite term of seventeen months in prison with credit for three hundred sixty-five days time served. Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO A TERM OF IMPRISONMENT FOR HIS FIRST FELONY O.M.V.I. OFFENSE. I Appellant claims the trial court erred in sentencing him to a term of imprisonment for violating a community control sanction related to his first felony OMVI offense. We agree. R.C. 2929.13(G)(1) governs sentencing related to first time felony four OMVI offenses. R.C. 2929.13(G)(1) in effect at the time of appellant's sentencing stated the following: (G) Notwithstanding divisions (A) to (E) of this section, if an offender is being sentenced for a fourth degree felony OMVI offense, the court shall impose upon the offender a mandatory term of local incarceration or a mandatory prison term in accordance with the following: (1) Except as provided in division (G)(2) of this section, the court shall impose upon the offender a mandatory term of local incarceration of sixty days as specified in division (A)(4) of section 4511.99 of the Revised Code and shall not reduce the term pursuant to section 2929.20, 2967.193, or any other provision of the Revised Code. The court that imposes a mandatory term of local incarceration under this division shall specify whether the term is to be served in a jail, a community-based correctional facility, a halfway house, or an alternative residential facility, and the offender shall serve the term in the type of facility specified by the court. The court shall not sentence the offender to a prison term and shall not specify that the offender is to serve the mandatory term of local incarceration in prison. A mandatory term of local incarceration imposed under division (G)(1) of this section is not subject to extension under section 2967.11 of the Revised Code, to a period of post-release control under section 2967.28 of the Revised Code, or to any other Revised Code provision that pertains to a prison term. (Emphasis added.) On February 9, 1998, the trial court sentenced appellant to a mandatory term of sixty days in jail and imposed three years community control sanctions. As a special condition of community control sanctions, the trial court sentenced appellant to three hundred four days in jail which included the mandatory sixty days with credit for seventy-eight days time served. This sanction was proper under R.C. 2929.16. Thereafter, appellee filed a motion to revoke appellant's community control sanctions due to his being convicted on August 26, 1999 of operating a motor vehicle while under the influence of alcohol or drugs. By judgment entry filed December 21, 1999, the trial court found appellant had in fact violated the terms of his community control sanctions. As a result of these violations, the trial court ordered the following: The Court finds pursuant to R.C. § 2929.14(B) that the shortest prison term will not adequately protect the public from future crime by the defendant or others and would demean the seriousness of the defendant's conduct. Therefore, it is the Order of this Court that the Defendant be sentenced to a definite term of 17 months confinement in a State Penal Institution as supervised by the Ohio Department of rehabilitation and corrections for the offense of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, contrary to and in violation of Section 4511.19(A) of the Ohio Revised Code, a Felony of the Fourth Degree. Said sentence is to be served consecutively to any sentence of any other court. It is appellant's position that R.C. 2929.13(G)(1) barred the trial court from imposing any penal institution time even though appellant failed to live by the community control sanctions. R.C.2929.15 governs community control sanctions. Subsection (B) provides the right of a trial court to impose a prison term if community control sanctions are violated: (B) If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of the court or the offender's probation officer, the sentencing court may impose a longer time under the same sanction if the total time under the sanctions does not exceed the five-year limit specified in division (A) of this section, may impose a more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the Revised Code, or may impose a prison term on the offender pursuant to section 2929.14 of the Revised Code. The prison term, if any, imposed upon a violator pursuant to this division shall be within the range of prison terms available for the offense for which the sanction that was violated was imposed and shall not exceed the prison term specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(3) of section2929.19 of the Revised Code. The court may reduce the longer period of time that the offender is required to spend under the longer sanction, the more restrictive sanction, or a prison term imposed pursuant to this division by the time the offender successfully spent under the sanction that was initially imposed. The issue raised by this appeal is whether a first time felony four OMVI offender who violated a community control sanction can be sentenced to a term of imprisonment under R.C. 2929.14. In support of his position, that a trial court cannot impose any penal institution time, appellant cites the case of State v. Corbin (1999), 131 Ohio App.3d 239. In Corbin at 242, our brethren from the Third District, in reviewing the same issue sub judice, held the following: Nonetheless, the state argues that pursuant to R.C. 2929.15(B) a court may impose `a more restrictive sanction,' including a prison term upon an offender found to have violated terms of his community control. However, a complete reading of that statute indicates a court may impose only `a more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the Revised Code.' (Emphasis added.) These specific sections of the sentencing statute apply only to more restrictive community control sanctions and do not authorize a court to impose a prison term when conditions of community control are violated. Furthermore, R.C.2929.15(B) requires that any prison term imposed for violating a community control sanction be `pursuant to section 2929.14 of the Revised Code.' R.C. 2929.14(A) expressly excepts from its operation `division (G)(1) of section 2929.13 of the Revised Code,' relating to the appropriate punishment for first time felony OMVI offenders. In State v. Roy (June 9, 2000), Hamilton App. Nos. C-990509 C-990510, unreported, our brethren from the First District reviewed the same issue and held the following: In accordance with the felony sentencing scheme, the trial court could punish an offender for a community-control violation in one of three ways: (1) by lengthening the term of the community-control sanction; (2) by imposing a more restrictive community-control sanction; or (3) by imposing a prison term on the offender pursuant to R.C.2929.14. See R.C. 2929.15(B). Under the ordinary situation contemplated by the statutory scheme, a fourth-degree felony offender violating a community-control sanction could be punished by a prison term of six to eighteen months. See R.C.2929.14(A)(4). Here, the trial court imposed the maximum prison term in accordance with the warning it had given* * *. * * * But the changes enacted by the legislature to exempt first-time felony OMVI offenders from a prison term at sentencing also limited a trial court's ability to punish offenders who had violated the terms of their community-control sanctions. As noted by the Third District Court of Appeals in its review of a trial court's imposition of an eighteen-month prison term upon a first-time felony OMVI offender for violating community-control sanctions, a sentence imposed for violating the sanctions `must be in accordance with R.C. 2929.14, and "within the range of prison terms available for the offense for which the sanction that was violated was imposed."' State v. Rhoda (Sept. 29, 1999), Henry App. No. 7-99-03, unreported, quoting R.C. 2929.15(B). Thus, any punishment imposed in accordance with R.C. 2929.14(A) could not include a definite prison term if that prison term was `prohibited by division (G)(1) of section 2929.13 of the Revised Code * * *.' See State v. Corbin, 131 Ohio App.3d at 242,722 N.E.2d at 157. We concur with the reasoning cited above. Therefore, we find the trial court erred by imposing an ordinary fourth degree felony penalty for the community control sanctions violation in this case. The sole assignment of error is granted. The judgment of the Court of Common Pleas of Coshocton County, Ohio is hereby reversed and remanded. ____________________ Farmer, J. Gwin, P.J. and Wise, J. concur.

2016-07-06 06:36:31.387705+00

OPINION {¶ 1} Defendant-appellant, Kenneth Welch, appeals his conviction in Brown County Court for domestic violence. We affirm appellant's conviction. {¶ 2} Appellant is married to Jennifer Welch ("Welch"), the victim in this case. On June 4, 2002, at approximately 12:45 a.m., Welch and appellant separately returned to their marital residence in Williamsburg, Brown County, Ohio. Welch had been at a friend's house since the afternoon of the previous day. Appellant was upset that Welch was not at their residence and had been looking for her. While appellant was out, he struck a deer with his car, which he blamed on Welch. {¶ 3} Upon their arrival, Welch and appellant had an argument outside the residence. Appellant told Welch that she would be denied entry into the residence. When appellant attempted to enter the house, Welch grabbed the hood of his sweatshirt in an effort to continue their discussion. Appellant pulled away from Welch and went inside the residence, attempting to close the door behind him. Welch tried to enter the residence, and inserted her foot in the door to prevent the door from closing. Welch eventually managed to wedge her body between the door and the frame. During one of appellant's attempts to close the door, Welch's chest was struck by the door. When she cried out in pain, appellant opened the door and allowed Welch into the residence. Welch proceeded to call 9-1-1. A deputy soon arrived and obtained statements from the parties. {¶ 4} In June 2001, a complaint was filed in Brown County Court charging appellant with domestic violence in violation of R.C. 2919.25(A). After a bench trial in September 2001, the trial court found appellant guilty of domestic violence. Appellant filed this appeal, setting forth two assignments of error. Assignment of Error No. 1 {¶ 5} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY FAILING TO GRANT DEFENDANT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL BECAUSE THE STATE FAILED TO ESTABLISH EACH MATERIAL ELEMENT OF THE OFFENSE BEYOND REASONABLE DOUBT." {¶ 6} In his first assignment of error, appellant contends that the trial court erred in failing to grant his Crim.R. 29(A) motion. Specifically, appellant argues, the state did not present sufficient evidence that he knowingly caused harm to Welch. {¶ 7} Crim.R. 29(A) provides in part: {¶ 8} "The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." {¶ 9} An appellate court undertakes de novo review of the trial court's decision on a Crim.R. 29(A) motion and 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. Upham (May 12, 1997), Butler App. No. CA96-08-157, citing State v. Jenks (1991), 61 Ohio St.3d 259, 273. Viewing the evidence in a light most favorable to the prosecution, if any rational trier of fact could have found the essential elements of an offense proven beyond a reasonable doubt, the appellate court will not disturb the conviction. State v. Williams, 74 Ohio St.3d 569, 576,1996-Ohio-91; Jenks, 61 Ohio St.3d at 273. {¶ 10} Appellant was convicted of domestic violence pursuant to R.C. 2919.25(A). R.C. 2919.25(A) states that "[n]o person shall knowingly cause or attempt to cause physical harm to a family or household member." For a conviction of domestic violence under R.C.2919.25(A), the state must prove the essential element that the offender "knowingly" caused or attempted to cause the physical harm. "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." R.C. 2901.22(B). {¶ 11} At trial, Welch testified that she and appellant had an argument outside their marital residence. When appellant went inside the house, she attempted to follow him. Appellant then tried to shut the door while Welch inserted her foot in between the door and the frame. Importantly, Welch testified that appellant knew her foot was wedged between the door and the frame, but nevertheless attempted to shut the door three times. On the last attempt, the door struck Welch's chest. When she yelled out in pain, appellant opened the door and allowed her to enter. {¶ 12} Our review of the record indicates that the state presented evidence that, if believed, would permit the trier of fact to convict appellant of domestic violence. The trier of fact could infer from Welch's testimony that appellant knowingly caused the physical harm. According to Welch's testimony, appellant knew Welch had placed her foot between the door and the frame. Appellant could also see that her whole body was in the doorway, but he nevertheless attempted to shut the door. The trier of fact could reasonably infer from this testimony that appellant was aware that Welch probably would suffer physical harm as a result of his efforts to close the door. Accordingly, we find that the trial court properly overruled appellant's Crim.R. 29(A) motion for acquittal. Appellant's first assignment of error is overruled. Assignment of Error No. 2 {¶ 13} "THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 14} In his second assignment of error, appellant asserts that the facts "are not of such character as to attain the high degree of probative force and certainty necessary to sustain a criminal conviction for domestic violence." We disagree. {¶ 15} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in evidence, that 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. Franco (Apr. 27, 1998), Madison App. No. CA97-08-035, citing State v. Thompkins, 78 Ohio St.3d 380,387, 1997-Ohio-52. In reviewing the evidence that was presented at trial, the reviewing court must take into consideration that the trier of fact is in the best position to judge the credibility of witnesses and to determine the weight to be given to the evidence. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. {¶ 16} At trial, Welch testified that when she and appellant separately returned to their marital residence, they had a verbal argument. When he went inside the house, she tried to gain entry into the house. However, he tried to close the door. She then pushed against the door and inserted her foot between the door and the frame. Welch also testified that appellant knew her foot was wedged between the door and the frame, and that she was trying to gain entrance into the house. He tried to shut the door three times, and on the last attempt, the door struck her chest. When she yelled out in pain, appellant opened the door and allowed her to enter. {¶ 17} Deputy Stamper testified that when he arrived at the house he found appellant outside and spoke with him. Appellant told the officer that he and Welch had a verbal argument and that he did not want Welch inside the house. Thereafter, the deputy went inside the house, and Welch showed him a small red area on her chest. He obtained a written statement from Welch and arrested appellant. {¶ 18} Appellant testified that he did not threaten or hit Welch. Appellant also testified that the house was dark, and that he did not see Welch's foot wedged between the door and the frame. He believed that a rug was caught between the door and the frame. Appellant stated that he tried to shut the door only two times, and, once he saw her foot, he opened the door and allowed Welch to enter. {¶ 19} We find that the trier of fact did not lose its way and create a miscarriage of justice when it found appellant guilty of domestic violence pursuant to R.C. 2919.25(A). Given that the trial court was in the best position to judge the credibility of the witnesses, appellant's conviction was not against the manifest weight of the evidence. The trial court could have reasonably believed Welch's testimony and inferred that appellant "knowingly" caused her physical harm. Accordingly, appellant's second assignment of error is overruled. Judgment affirmed. WALSH, P.J., and YOUNG, J., concur.

2016-07-06 06:36:31.412292+00

OPINION {¶ 1} Defendant-appellant, Richard D. Rehaut, appeals from two judgments of the Franklin County Court of Common Pleas finding him guilty of two counts of possession of LSD and one count of trafficking in LSD, and sentencing him accordingly. For the reasons that follow, we affirm those judgments. {¶ 2} By indictment filed July 20, 2002, appellant was charged in case No. 01CR-07-4104 ("Case 4104") with one count of possession of LSD in violation of R.C. 2925.11 and one count of preparation of marijuana for sale in violation of R.C. 2925.07. Later, in a second indictment filed August 15, 2001, appellant was charged in case No. 01CR-08-4687 ("Case 4687") with two counts of aggravated trafficking in drugs in violation of R.C. 2925.03, two counts of trafficking in LSD in violation of R.C. 2925.03, and one count of possession of LSD in violation of R.C.2925.11. {¶ 3} On February 27, 2002, appellant entered guilty pleas in both cases. In Case 4104, appellant pled guilty to one count of possession of LSD, a felony of the fourth degree; in Case 4687, appellant pled guilty to one count of trafficking in LSD and one count of possession of LSD, both felonies of the second degree. All other charges against appellant were dismissed. As a result of the guilty pleas, the trial court sentenced appellant to a 16-month prison term in Case 4104, and a six-year prison term for each count in Case 4687. The court ordered the prison terms in Case 4687 to be served concurrently, but consecutively to the 16-month prison term imposed in Case 4104, for a total prison term of seven years and four months. {¶ 4} Appellant appeals, assigning the following error: {¶ 5} "The sentences imposed by the Court of Common Pleas of Franklin County, Ohio upon Appellant did not comply with the purposes of felony sentencing guidelines." {¶ 6} Appellant's assignment of error does not identify any specific reason why the sentences imposed upon him do not comply with the felony sentencing guidelines. We will, therefore, review appellant's sentence to determine if it was imposed contrary to law. {¶ 7} Appellant pled guilty to one felony of the fourth degree, for which he could have received a prison term of 6 to 18 months. He also pled guilty to two felonies of the second degree, for which he could have received a prison term of two to eight years. The trial court did not sentence appellant to the minimum prison term for any of these counts, but also did not impose the maximum permissible prison term for these counts. R.C. 2929.14(B) allows a trial court to impose a prison term greater than the shortest prison term authorized on an offender who has not previously served a prison term. However, in imposing such a term, the trial court must find on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. Id. While the trial court need not state its reasons for making either of these findings, it must make one of the required findings. State v. Edmonson (1999), 86 Ohio St.3d 324, 326. {¶ 8} The trial court also ordered appellant's sentences to be served consecutively. A trial court must make specific findings under R.C. 2929.14(E)(4) and state its reasons for making those findings in order to impose consecutive sentences. R.C. 2929.19(B)(2)(c); State v. Scott, Franklin App. No. 01AP-801, 2002-Ohio-2251, at ¶ 8-12. R.C.2929.14(E)(4) provides that the trial court may require an offender to serve consecutive prison sentences if it finds: (1) that consecutive sentences are necessary to protect the public from future crime or to punish the offender; (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (3) that any one of following applies: {¶ 9} "(a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. {¶ 10} "(b) 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 the offender's conduct. {¶ 11} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." {¶ 12} The sentencing entry in this matter demonstrates the trial court made all the required findings to impose the sentences it chose to impose on appellant. While the trial court was also required to state its reasons for imposing consecutive sentences, appellant has not provided a copy of the sentencing transcript to allow us to review whether the trial court complied with this requirement. "The duty to provide a transcript for appellate review falls upon appellant. `When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower courts proceedings, and affirm.' " State v. Miller (June 13, 2001), Richland App. No. 00-CA-103, quoting Knapp v. Edwards Lab. (1980), 61 Ohio St.2d 197,199. {¶ 13} Because appellant has not provided this court with the transcript of the sentencing hearing that is necessary for the resolution of his assigned error, we must presume the regularity of the proceedings below and affirm the trial court's imposition of consecutive sentences. State v. Ervin, Shelby App. No. 17-01-14, 2002-Ohio-2177, at ¶ 18 (affirming consecutive sentences where appellant failed to provide transcript). {¶ 14} The trial court complied with the applicable statutory requirements in sentencing appellant. Appellant's assignment of error is overruled and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. BRYANT and LAZARUS, JJ., concur.

2016-07-06 06:36:31.440128+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Patrick T. Guenther, appeals from judgment of the Akron Municipal Court, which found him guilty of Improper Pulling from a Curb, in violation of Akron City Code Section 72.14(A). We affirm. I. {¶ 2} On November 27, 2002, Mr. Guenther was involved in an automobile accident in Akron, Ohio. Pursuant to this accident, Mr. Guenther was issued a citation for Improper Pulling from a Curb, in violation of Akron City Code Section 72.14(A). Mr. Guenther pled not guilty to this citation. On January 24, 2003, a trial was held before a magistrate, pursuant to which the magistrate issued a journal entry which found Mr. Guenther guilty of this citation. {¶ 3} On March 14, 2003, Mr. Guenther filed an appeal with this Court, which we subsequently dismissed pursuant to Mr. Guenther's motion for voluntarily dismissal. On April 1, 2003, Mr. Guenther filed a motion for leave to file objections to the magistrate's journal entry, which the municipal court granted. Mr. Guenther then filed objections to the magistrate's journal entry, asserting that the magistrate's decision was against the manifest weight of the evidence. {¶ 4} Subsequently, the magistrate issued another journal entry, recommending that Mr. Guenther be found guilty of violating Akron City Code Section 72.14(A). Mr. Guenther filed objections to this journal entry. In a judgment entry dated June 17, 2003, the municipal court adopted the magistrate's decision, and found Mr. Guenther guilty of Improper Pulling from a Curb, in violation of Akron City Code Section 72.14(A). The court sentenced Mr. Guenther accordingly. It is from the municipal court's judgment entry that Mr. Guenther now appeals. {¶ 5} Mr. Guenther timely appealed, asserting two assignments of error for review. Because our analysis below is dispositive of both assignments of error, we address the assignments of error together. II. First Assignment of Error "Based upon the record before it, the trial court erred as a matter of law in adopting the recommendation of the Magistrate and finding appellant guilty of violating akron city code Section 72.14(a)." Second Assignment of Error "Based upon the record before it, the decision of the trial court adopting the Magistrate's journal entry, and finding appellant to be guilty of violating akron city code sec[tion] 72.14(a), is against the manifest weight of the evidence." {¶ 6} In his first assignment of error, Mr. Guenther asserts that the trial court erred when it adopted the magistrate's recommendation. In his second assignment of error, Mr. Guenther asserts that the trial court's decision to adopt the magistrate's recommendation and the court's finding of guilt are against the manifest weight of the evidence. {¶ 7} Our review is limited to the record provided by the appellant for his appeal. App.R. 9; see, also, App.R. 12(A)(1)(b). App.R. 9(B) provides that it is an appellant's duty to ensure that the record, or the portion necessary for review on appeal, is filed with the appellate court. State v. Sugalski, 9th Dist. No. 02CA0054-M, 2002-Ohio-6767, at ¶ 11, citing RoseChevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19; see, also, App.R. 10(A) and Loc.R. 5(A). {¶ 8} An appellant must order the transmission of the record, including a certified transcript of those portions of the proceedings required for the appellant's appeal. See App.R. 9(B)(8) and Loc.R. 6(B) and (C); Amistadi v. Bender-Higdon,Inc. (Jan. 12, 1977), 9th Dist. No. 680. Our review of Mr. Guenther's first and second assignments of error requires an evaluation of the transcript of the proceedings before the magistrate. Mr. Guenther filed a copy of a transcript of the audio cassette recording of the trial proceedings before the magistrate.1 However, this transcript was not properly made part of the record before this Court. The transcript is neither properly certified nor incorporated into an App.R. 9(C) statement approved by the trial court. See App.R. 9(C) and Loc.R. 6(C)(1) and (4). Additionally, the record does not indicate that the trial court made an entry appointing a court reporter to certify a transcript, or that the transcript was part of the original papers and exhibits filed with the municipal court. See App.R. 9(B)(8) and Loc.R. 6(C)(2) and (3). {¶ 9} Since Mr. Guenther has failed to demonstrate the error on appeal with respect to his first and second assignments of error, we decline to address them. Accordingly, Mr. Guenther's first and second assignments of error are overruled. III. {¶ 10} Mr. Guenther's first and second assignments of error are overruled. The judgment of the Akron Municipal Court is affirmed. Judgment affirmed. BAIRD, P.J. and CARR, J. CONCUR. 1 We find it interesting to note that during the proceedings at the municipal court level, Mr. Guenther asserted that the audio cassette recording of the trial proceedings was inaudible and could not be transcribed, and these assertions were supported by an affidavit of a court reporter who attested to the condition of the cassette. Yet, subsequent to his filing of the notice of appeal, an uncertified copy of a transcript of audio cassettes from these proceedings, transcribed by this same court reporter, was filed.

2016-07-06 06:36:31.749676+00

OPINION On March 6, 1997, appellee, Paul Locker, filed a complaint against appellant, Steven Thomakos, Esq., as well as R.E. Goforth Co., L.P.A., the legal professional association which employed appellant and Richard Goforth, Esq. as owner of said association. Appellant had represented appellee in a workers' compensation matter. Appellee sought to enforce an order of the industrial commission which required "the law firm" to refund appellee $2,873.14 in excess fees. On April 4, 1997, appellant filed a motion to dismiss. By decision filed January 12, 1999, a magistrate granted said motion. The trial court approved and adopted the decision on same date. On January 29, 1999, appellant filed a motion for attorney fees. On February 4, 1999 and February 17, 1999, appellant filed an amended motion for attorney fees and a second amended motion for attorney fees, respectively. A hearing before a magistrate was held on April 16, 1999. By decision filed June 10, 1999, the magistrate denied appellant's motion. The trial court approved and adopted the decision on same date. On June 21, 1999, appellant objected to the magistrate's decision. Another hearing before the magistrate was held on September 2, 1999. By decision filed January 19, 2000, the magistrate again denied appellant's motion. The trial court approved and adopted the decision on same date. On February 1, 2000, appellant objected to the magistrate's decision. By judgment entry filed June 27, 2000, the trial court overruled the objections and approved and adopted the magistrate's January 19, 2000 decision. Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR SANCTIONS AGAINST APPELLEE'S COUNSEL. I Appellant claims the trial court erred in denying his Civ.R. 11 and R.C. 2923.51 motion for attorney fees for the filing of a lawsuit which attempted to collect attorney fees already paid out of a workers' compensation award. We disagree. A decision on whether or not to impose sanctions, including attorney fees, lies within the trial court's sound discretion. State ex rel. Fantv. Sykes (1987), 29 Ohio St.3d 65; Riley v. Langer (1994),95 Ohio App.3d 151. 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. R.C. 2323.51(A)(2)(a) defines "frivolous conduct" as follows in pertinent part: `Frivolous conduct' means either of the following: Conduct of an inmate or other party to a civil action, of an inmate who has filed an appeal of the type described in division (A)(1)(b) of this section, or of the inmate's or other party's counsel of record that satisfies any of the following: It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation. It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law. The magistrate's decision filed January 19, 2000, ratified by the trial court on June 27, 2000, denied appellant's motion for attorney fees for the following reasons: Section 2323.51 defines frivolous conduct as the filing of a civil action that is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law. The Court believes that the action filed herein was warranted under existing law. The suit did not serve merely to harass or maliciously injure another party. Furthermore, the evidence of attorney fees incurred by the defendant, Steven Thomakos, was deficient under the standards of this statute. This defendant failed to adequately show that reasonable attorney fees were actually incurred. From our review of the record of the September 2, 1999 hearing, we find sufficient evidence on the reasonableness of the attorney fees as testified to by Richard Hinig, Esq.1 T. at 20-21. There is no evidence the attorney fees were ever billed to appellant or were paid by appellant. In its decision filed January 12, 1999, ratified by the trial court on same date, the magistrate granted appellant's motion to dismiss for the following reasons: The Court can discern no cause of action with the evidence submitted that would allow for the return of fees legitimately charged and later, in some manner, ordered returned as that claim would relate to a pure employee of the law firm. The claim, if thusly recognized, would permit this plaintiff to file the action against all employees of the law firm on the theory that the employees were paid their regular compensation. If the action is ultimately meritorious, the proper party from whom to collect would be the law firm which collected the fee — not its employees. In his supplemental memorandum filed January 7, 1998, appellee explained the theory of his claim against appellant as follows: Attorney Thomakos, by personally representing Paul Locker in worker's compensation hearings, had a personal and professional responsibility to make sure that Locker's payment of fees was lawful and not excessive. DR 2-106(A). As a professional, he was a member of the firm subject to the order of the Industrial Commission. R.C. 1785.04 and Gov.R. III(D). It makes no difference that Thomakos was an employee of a legal professional association instead of a partner in a law firm. All lawyers, in all forms of association and practice, are prohibited from using any form of association to limit their personal responsibility to their clients. We concur with the trial court's decision in dismissing appellant. We cannot find the trial court abused its discretion in not awarding attorney fees to appellant based upon a failure of proof as to whether fees were actually paid or on the advancement of an expansion of new law. The sole assignment of error is denied. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the New Philadelphia Municipal Court of Tuscarawas County, Ohio is affirmed. Hon. Julie A. Edwards, P.J. Hon. Sheila G. Farmer, J. and Hon. John W. Wise, J. concur. 1 We note there appears to have been animosity between appellee's counsel, Richard Renner, Esq., and Mr. Hinig. Mr. Renner asked Mr. Hinig if he liked him or had any feelings toward him. T. at 16-17.

2016-07-06 06:36:32.06399+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: Appellant-defendant Richard A. Remines appeals from a sexual predator adjudication in the Lorain County Court of Common Pleas. This Court affirms. On March 5, 1997, the Lorain County Grand Jury issued two indictments against Remines. The first indictment was in case number 97CR050118 and charged nine counts of corruption of a minor in violation of R.C. 2907.04(A) and one count of gross sexual imposition in violation of R.C. 2907.05(A)(4). The second indictment was in case number 97CR050275 and charged Remines with three counts of gross sexual imposition in violation of R.C.2907.05(A)(4). Both cases were assigned to the same trial court judge. Remines initially pleaded not guilty to all of the charges against him, then subsequently changed his plea to guilty on August 1, 1997. The following week, the trial court sentenced Remines in case number 97CR050118 to eight months on the first five counts of corruption of a minor, to run concurrently, and eight months on the remaining four counts of corruption of a minor. These latter four counts were to run concurrently with a two-year sentence on the tenth count of gross sexual imposition. The trial court further ordered that counts one through five were to be served consecutively to counts six through ten and that the sentence was to be served consecutive to the sentence imposed in the unrelated case number 94CR044852. On that same day, Remines was also sentenced in case number 97CR050275 to two years on each count of gross sexual imposition, with the sentence on each count to run concurrently. This sentence, however, was to be served consecutive to the sentences imposed in case numbers 97CR050118 and 94CR044852. The trial court also conducted an August 7, 1997 sexual predator hearing and, in an entry journalized August 11, 1997, found Remines to be a sexual predator. Remines timely appeals from this order, raising three assignments of error. Assignment of Error No. I THE TRIAL COURT ERRED IN APPLYING AN UNCONSTITUTIONAL LAW TO THE DEFENDANT-APPELLANT AND FINDING HIM TO BE A SEXUAL PREDATOR. Assignment of Error No. II THE TRIAL COURT ERRED IN APPLYING AN UNCONSTITUTIONALLY VAGUE LAW TO THE DEFENDANT-APPELLANT AND FINDING HIM TO BE A SEXUAL PREDATOR. In his first two assignments of error, Remines raises a number of constitutional arguments that this Court has previously considered. Specifically, Remines argues that R.C. Chapter 2950 violates the constitutional prohibitions against cruel and unusual punishment and retroactive and ex post facto laws, and that it is unconstitutionally vague.1 This Court has held to the contrary. State v. Smith (Mar. 3, 1999), Lorain App. No. 97CA006904, unreported. Remines' first two assignments of error are not well taken. Assignment of Error No. III THE TRIAL COURT ERRED IN FAILING TO TAKE THE MANIFEST WEIGHT OF THE EVIDENCE AS OFFERED BY THE STATE AND FOLLOW THE SEXUAL PREDATOR LAWS, AS CODIFIED, AND APPLY IT PROPERLY TO THE DEFENDANT-APPELLANT. In his final assignment of error, Remines challenges the weight of the evidence supporting his adjudication, arguing that the state failed to satisfy its burden of proving by clear and convincing evidence that he is a sexual predator. This Court disagrees. R.C. 2950.09(B)(1) provides that in order for a trial court to find an individual such as Remines to be a sexual predator, the court must conduct a hearing in which both the state and the defendant are given the opportunity to present evidence related to whether such a classification is appropriate. In making this determination, the trial court must consider all relevant factors, including, but not limited to: (a) The offender's age; (b) The offender's prior criminal record regarding all offenses, including, but not limited to, all sexual offenses; (c) The age of the victim of the sexually oriented offense for which sentence is to be imposed; (d) Whether the sexually oriented offense for which sentence is to be imposed involved multiple victims; (e) Whether the offender used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting; (f) If the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders; (g) Any mental illness or mental disability of the offender; (h) The nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; (i) Whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made one or more threats of cruelty; (j) Any additional behavioral characteristics that contribute to the offender's conduct. R.C. 2950.09(B)(2). Upon consideration of these and other relevant factors, the trial court shall determine whether an individual is a sexual predator based upon clear and convincing evidence. R.C.2950.09(B)(3). This Court has previously explained that the standard of clear and convincing evidence is satisfied if the evidence produces in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.State v. Rexroad (Apr. 1, 1998), Summit App. No. 18539, unreported. The clear and convincing standard requires more than a preponderance of the evidence, but does not require proof beyond a reasonable doubt. Id. Examination of the record reveals that the evidence before the trial court clearly supports Remines' designation as a sexual predator. At the sexual predator hearing, the officer who had investigated Remines' crimes testified that Remines, thirty-three years old at the time, had had sexual relations with a fourteen-year-old female. Such relations had occurred at least nine times over an extended period of time. The officer further testified that the investigation had revealed that Remines had also committed a sex act on a six-year-old female and that he had had an eight-year-old female and a three-year-old female touch his genitalia.2 Although the state did not satisfy each of the statutory factors to be considered pursuant to R.C. 2950.09(B)(2), it was not required to do so; rather, the state merely had to prove by clear and convincing evidence that Remines is likely to commit one or more sexually oriented offenses in the future. The testimony received by the trial court indicated that Remines had had numerous victims ranging in age from three to fourteen years old and that he had engaged in reprehensible sexual conduct with at least one of these victims on multiple occasions. This Court has recognized that the tender age of the victims may be considered inherently indicative of a strong likelihood to reoffend: "[There is] overwhelming statistical evidence supporting the high potential of recidivism among sex offenders whose crimes involve the exploitation of young children. The age of the victim is probative because it serves as a telling indicator of the depths of offender's inability to refrain from such illegal conduct. The sexual molestation of young children, aside from its categorization as criminal conduct in every civilized society with a cognizable criminal code, is widely viewed as one of the most, if not the most, reprehensible crimes in our society. Any offender disregarding this universal legal and moral reprobation demonstrates such a lack of restraint that the risk of recidivism must be viewed as considerable." (Citations omitted.) State v. Hamilton (Apr. 14, 1999), Lorain App. No. 97CA006793, unreported, quoting State v. Daniels (Feb. 24, 1998), Franklin App. No. 97APA06-830, unreported (affirming a finding of likelihood to reoffend based upon single conviction involving four-year-old victim). There can be no doubt that the evidence presented to the trial court produced a firm belief or conviction that Remines was likely to commit one or more future sexually oriented offenses and that he should be adjudicated a sexual predator. Remines' three assignments of error are overruled. Accordingly, the judgment of the court of common pleas is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Lorain County 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 SLABY, P.J. BATCHELDER, J. CONCUR 1 In his brief, Remines argues that the registration requirements of R.C. Chapter 2950 "serve [the] same function" as registration and identification requirements imposed upon individuals of Jewish descent in Germany in the 1930s. This Court finds this analogy fatuous. 2 The officer also testified that Remines had been convicted for the attempted rape of a ten-year-old female. Counsel for Remines explained that an Alford plea had been entered in that case, which was also being appealed, and the trial court stated that for purposes of the sexual predator hearing, it would not consider the conviction.

2016-07-06 06:36:31.7137+00

Per Curiam

This case is before the court on appeal from a judgment of the Ottawa County Court of Common Pleas, which, after a trial on a request for a permanent *Page 404 injunction, dismissed the complaint filed by plaintiff-appellant, the Catawba Orchard Beach Association, Inc. ("the Association"). Appellant now raises the following assignment of error: "The Trial Court erred to the prejudice of the Plaintiff by granting judgment to the Defendants at the close of the Plaintiff's case as the same was against the manifest weight of the evidence and the law of Ohio, and the Court failed to rule on all matters properly before it, and further, the Trial Court erred in failing to grant Plaintiff's motion for a new trial based on the same issues." The relevant facts of this case are as follows. In 1922, the Catawba Orchard Company ("Company") created Catawba Orchard Beach, a subdivision, on land located in Catawba Island Township, Ottawa County, Ohio. The deed conveying the entire tract of land to Willard G. Farnsworth, the president of the Company, was filed by the county recorder on June 8, 1922, and contained the following provisions: "WHEREAS, in order to make certain covenants, agreements, easements, restrictions, provisions, conditions, and charges benefit and bind all of the land contained in Plat One (1) of Catawba Orchard Beach, and also benefit and bind all present and future holders and occupants of said land, the Company and the Purchaser have agreed to enter into this Deed and Agreement, whereby the Company will convey to the Purchaser all the lots and parcels of land as shown on said Plat one (1) of Catawba Orchard Beach, and immediately thereafter, the purchaser will reconvey to the Company (charged with all the covenants, agreements, easements, restrictions, provisions, conditions and charges) hereinafter set out, all of the lots so conveyed to him. "* * * "ARTICLE 4. RESTRICTIONS. "The lots in said The Catawba Orchard Beach shall be used for private residences only. No building or other structures shall be erected or maintained on any lot other that [sic] a single residence, designed for the use of one family, and a private garage for the use of the owner of said lot. "* * * "ARTICLE 8. STREETS AND PARKS. "It is expressly agreed that nothing herein contained or indicated or expressed on said Plat one (1) of Catawba Orchard Beach shall constitute a dedication of any street, road, way, lane, path, easement, water front and right, harbor, right of way or park, but the title to all property so shown, designated, or described, is expressly reserved to the company and neither this deed nor any deed hereafter made by the Company conveying any of the land in said plat shall be held to *Page 405 convey the title to or dedicate the bed of or land covered by any street, road, way, lane, waterfront and right, harbor, easement, right of way or park. "The Company hereby gives and grants to each owner hereafter acquiring title to any of the land included in said plat the right to such use of the streets shown on said plat, as may be necessary for reasonable and convenient ingress and egress to and from the land belonging to such owner, and also the right to use in common with other owners, those portions of said land indicated on said plat as water front and `park' for recreation, bathing, and similar proposes; but subject to such uses by said owners." The plat referred to in the deed contains the following statement: "We the undersigned Owners and Trustees of the above described premises do hereby adopt this subdivision into lots as shown hereon, Lot Number 1 and Lot Number 126 are reserved for parks. No part or parts of said premises shown hereon as streets[,] roads, lanes, ways, paths, rights of way, parks, haven, or reservations are dedicated or granted to public use, the title being reserved by the undersigned for the use of the lot owners in the above subdivision and any subsequent subdivision developed by the Catawba Orchard Company." In August 1949, the Association, a nonprofit corporation composed of owners of property in Catawba Orchard Beach, was formed. The Association's articles of incorporation state the purpose of the Association in part as "[t]o accept and hold title to roads, parks, boat basin or lagoon, and other community property, real or personal, for the owners of the lots in Catawba Orchard Beach." Moreover, Article XI defines members as owners of a lot or lots in Catawba Orchard Beach, and reads in part: "Privileges of members in good standing shall be defined as the right to use, in common with other members in good standing, the parks, beaches, playgrounds, and lagoon or boat basin in the allotment of Catawba Orchard Beach * * *." Subsequently, Audrey G. Blade obtained title to the common areas and to lot numbers 1 and 126, referred to above. Then, on September 8, 1949, Blade conveyed by quitclaim deed her interest in those properties to the Association. That deed described the property as follows: "[L]and, situated in the Township of Catawba Island County of Ottawa and State of Ohio: known as and being all those portions of Catawba Orchard Beach, a subdivision in said township, designated on the plat thereof as roads, streets, walks, parks, lagoon, boat basin, rights of way and beaches; the above mentioned park and boat basin being designated on said plat as Lot One (1) and the playground designated as Lot One Hundred Twenty-six (126). Subject to the rights of the grantor and other lot owners in said subdivision, their heirs and *Page 406 assigns, to use the same under and subject to the rules and regulations of grantee corporation, its successors and assigns." The deed further contained the following restrictions: "It is further stipulated and agreed and a part of the consideration hereof, and the following shall be covenants running with the land: "1. Said premises shall never be used for commercial purposes of any kind, nor for any other purpose, except boating, dockage, recreation, bathing, ingress and egress and noncommercial park purposes, it being understood that in being hereby conveyed to the grantee herein, said premises are at the same time dedicated to the joint and community use of the lot owners in Catawba Orchard Beach, their heirs and assigns forever, for the uses and purposes hereinabove set forth." On July 16, 1990, defendants-appellees, Rick L. and Claudia A. Basinger, purchased lots four, five and thirty-nine in Catawba Orchard Beach. In 1993, the Basingers built single-family homes on lots four and five for the express purpose of leasing the properties to renters. At the time of the construction, the Basingers informed Thomas K. Higgins, the president of the Association, that they intended to use the homes as rental properties. Despite his belief that the deed restrictions did not allow for such rentals, Higgins did not dissuade the Basingers or inform them of his understanding of the restrictions. Subsequently, the Basingers advertised their rental properties as "house for rent with beach." Despite concern from other property owners, no official action was taken until February 16, 1995 when an attorney hired by the Association wrote the Basingers a letter informing them that their use of their lots was "in violation of the deed restrictions and association articles and rules in that you rent the lots and allow the renters to use the common areas." The attorney then requested that the Basingers stop all of the violative activities and warned them that failure to do so would result in legal action. On May 10, 1995, the Association filed a complaint in the Ottawa County Court of Common Pleas against the Basingers, alleging that the Basingers had rented and continued to rent their property and had allowed and encouraged renters to use the common areas of Catawba Orchard Beach in violation of the deed restrictions and articles of incorporation. The complaint further alleged that the Basingers had failed to pay the 1994 assessments for their three lots in the total of $345. The complaint then alleged that appellees' violations were causing irreparable harm to the other property owners and requested that the restrictions be enforced, that appellees be temporarily and permanently enjoined from violating the restrictions, and that appellant be awarded a judgment against appellees in the amount of $345. In answering the complaint, appellees asserted, *Page 407 among other defenses, that the lower court lacked subject matter jurisdiction over appellant's claim for $345. The case proceeded to a hearing on the motions for preliminary and permanent injunction on September 8, 1995, at which the court consolidated the matters for trial. Appellant called both appellees; Thomas Higgins; Hope Davenport, a property owner and former secretary of the Association; and Jordan Davenport, an Association trustee and the harbormaster of Catawba Orchard Beach, to testify. At the conclusion of appellant's case, appellees moved for a directed verdict. Upon consideration, the court granted judgment in favor of appellees, specifically finding that appellant had made no showing of irreparable harm and that nothing in Article 4 of the restrictions prohibited the use of the property for rental of single-family dwellings. Subsequently, appellant filed a motion for a new trial, which was denied. Appellant asserts that the trial court's judgment in favor of appellees was against the manifest weight of the evidence and that the court had failed to rule on appellant's claims that appellees had violated the restriction regarding the use of common areas and that appellant was entitled to a judgment against appellees in the amount of $345. We will first address appellant's argument that the court's judgment was against the manifest weight of the evidence. The trial court entered judgment in favor of appellees on appellant's request for an injunction only with regard to appellant's claim that the deed restrictions prohibited appellees from renting their property. "The allowance of an injunction rests within the sound discretion of the trial court." Farrow Restoration, Inc. v. Kowalski (1991), 81 Ohio App.3d 54,57, 610 N.E.2d 458, 460. Moreover, "[a] present owner of a lot subject to a restriction has the right to enforce the same or similar restrictions imposed upon the other lots by a common grantor," Devendorf v. Akbar Petroleum Corp. (1989),62 Ohio App.3d 842, 845, 577 N.E.2d 707, 709, and "[p]roof of actual damage is not required as a basis for granting injunctive relief regarding deed restrictions." Goutras v. Dillon-McDonald (Sept. 30, 1991), Stark App. No. CA-8349, 1991 WL 207949. Accordingly, absent an abuse of discretion, we will not reverse the trial court's denial of injunctive relief. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude in denying the motion was unreasonable, arbitrary or unconscionable. Farrow Restoration,Inc., supra, 81 Ohio App.3d at 57, 610 N.E.2d at 459-460. The Supreme Court of Ohio has consistently held that "[w]here the language contained in a deed restriction is indefinite, doubtful and capable of contradictory interpretation, that construction must be adopted which least restricts the free use of the land." Houk v. Ross (1973), 34 Ohio St.2d 77, *Page 408 296 N.E.2d 266, paragraph two of the syllabus, overruled on other grounds by Marshall v. Aaron (1984), 15 Ohio St.3d 48, 15 OBR 145, 472 N.E.2d 335. "Where the language in the restriction is clear, the court must enforce the restriction. Otherwise, the court would be rewriting the restriction. * * * The key issue is to determine the intent of the parties as reflected by the language used in the restriction." Dean v. Nugent Canal YachtClub, Inc. (1990), 66 Ohio App.3d 471, 475, 585 N.E.2d 554,556-557. Appellant contends that because Article 4 in the deed reads, "The lots in said The Catawba Orchard Beach shall be used for private residences only," the deed forbids any commercial use of the property, including rentals. Appellant cites Linwood ParkCo. v. Van Dusen (1900), 63 Ohio St. 183, 58 N.E. 576, in support. In Linwood, the plaintiff, owner of the property, and the defendants entered into ninety-nine-year leases by which defendants leased the property and agreed to "use such premises for the purpose of a private dwelling or residence only, except on special permit from the company." Id. at 189, 58 N.E. at 578. One defendant then built a two-story structure containing seventeen rooms, which covered almost the entire lot and was designed for occupancy during the summer months only. The other defendants built similar structures. The defendants then rented furnished rooms to different persons for terms varying from one day to one month. The plaintiff sought an injunction to stop the rentals. The Supreme Court of Ohio held that injunctive relief was proper where the defendants made a business of renting rooms to temporary occupants and refused to obtain a special permit from the plaintiff. In particular, the court found that the defendants' use of the property violated the covenant to use the premises for the purpose of a private dwelling. Appellant asserts that Linwood controls because it was the state of the law at the time the deed restrictions were drafted and is still good law today. In ruling as it did, however, the court inLinwood stated: "They may exercise their right to assign or sublet freely until they subject the property to uses other than that of a private dwelling or residence. The moment they do that they have broken the covenant, unless they have done it under special permit from the company. Now have they subjected the property to a use different from that covenanted? For it is admitted by the defendants that they have rented rooms in their dwellings without permission from, and in defiance of, the company. The findings of the circuit court indicate that they have done this so systematically, and to such an extent, as to amount to a business. Yet they insist that each house is still a dwelling house, or at least a collection of dwellings. `Each of such tenants,' says the counsel for defendants, `used his apartment for the purposes of a private dwelling.' But the plain provision of the covenant is that the leased premises shall be used for the purposes of a dwelling or residence only, not for a number of dwellings. More *Page 409 than that, they are restricted to the use of it for a private dwelling or residence; and that is not a private dwelling or residence which is used in the business of renting rooms to lodgers or tenants." Id. at 199-200, 58 N.E. at 581. In addition to the section of Article 4 upon which appellant relies, the deed restriction at issue provides: "No building or other structures shall be erected or maintained on any lot other that [sic] a single residence, designed for use of one family * * *." In Devendorf, supra, 62 Ohio App.3d at 846,577 N.E.2d at 709, the court stated: "The words `residence' or `residential' in restrictive covenants are used in contradiction to the word `business.'Hunt v. Hunt [Held] (1914), 90 Ohio St. 280, 283, 107 N.E. 765,766. The `use' of a thing has been defined as the `means that one is to enjoy, hold, occupy or have some manner of benefit thereof.' Black's Law Dictionary (5 Ed. 1979) 1382." With these terms in mind, and in light of the rationale set forth in Linwood, we cannot conclude that appellees' use of their homes as rental properties violated the terms of the restrictive covenant. While the rental of the homes did earn appellees an income, no business was being conducted on the property as in Linwood, where the defendants were running a tenement house. Rather, the rental properties in the case at bar were used as single residences for one family each. Accordingly, the trial court did not err in granting judgment to appellees on appellant's claim that the rental of the properties violated the restrictive covenant. Appellant further asserts that the trial court erred in failing to rule on its claim that appellees also violated the terms of the deed and articles of incorporation by allowing renters to use the common areas of Catawba Orchard Beach. Appellant's complaint set forth a separate and independent claim based on appellees' renters' use of the common areas. Control and use of the common areas of Catawba Orchard Beach are not covered by Article 4 of the deed restrictions. Rather, such control and use is covered by Article 8 of the 1922 deed, the plat filed with the 1922 deed, the Association's articles of incorporation, and the 1949 deed from Blade to the Association. The trial court was required to review the evidence before it and determine if the renters' use of the common areas violated these restrictions in view of the court's ruling that the rental of the properties did not violate the restrictive covenant. Because the court failed to make that determination, it erred in dismissing the complaint. Finally, appellant asserts that the trial court failed to rule on its claim that appellees owed appellant $345 in assessments made against their property. At the trial below, appellees asserted that the court lacked jurisdiction over claims of less than $500. The court initially stated that it did not have jurisdiction for *Page 410 claims under $500; however, upon further argument of counsel, the court stated that it would reconsider the issue. The following then occurred: "MR. GRAVES: I assume we will be hearing evidence on that question. "THE COURT: Yes. It wouldn't make a lot of sense to send that $345 matter over to Municipal Court when we are litigating everything else regarding the case here, but I wonder if I do have jurisdiction over that amount. "There is an amount below which I have no jurisdiction, and then there is an amount above which I have concurrent jurisdiction with Municipal Court up to $10,000. "Then from $10,000 up, it is exclusive jurisdiction with the Common Pleas Court, but I will sort it out or you can brief it as we go." During the trial, evidence was presented regarding appellees' failure to pay the assessment. At the conclusion of the trial, however, the court failed to make any ruling on this issue and dismissed the entire case. Appellees assert that pursuant to R.C. 1907.03 and 2305.01, the lower court did not have monetary jurisdiction over appellant's $345 claim. R.C. 1907.03(A) reads in part: "Under the restrictions and limitations of this chapter, county courts have exclusive original jurisdiction in civil actions for the recovery of sums not exceeding five hundred dollars * * *." R.C.2305.01 then reads in part: "The court of common pleas has original jurisdiction in all civil cases in which the sum or matter in dispute exceeds the exclusive original jurisdiction of county courts * * *." The present case, however, comes to us from Ottawa County. Ottawa County does not have county courts. Rather, the Ottawa County Municipal Court has jurisdiction within all of Ottawa County. R.C. 1901.02. R.C. 1901.17, regarding the monetary jurisdiction of municipal courts states: "A municipal court shall have original jurisdiction only in those cases where the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed ten thousand dollars." Accordingly, while the Ottawa County Municipal Court has original jurisdiction in those cases in which the amount at issue does not exceed ten thousand dollars, it does not have exclusive original jurisdiction. R.C.2305.01 further provides: "The court of common pleas may on its own motion transfer for trial any action in the court to any municipal court in the county having concurrent jurisdiction of the subject matter of, and the parties to, the action, if the amount sought by the plaintiff does not exceed one thousand dollars and if the judge or presiding judge of the municipal court concurs in the proposed transfer." Accordingly, the trial court had concurrent jurisdiction with the municipal court over appellant's claim for $345. The lower court recognized that for purposes of *Page 411 judicial economy, transferring the matter to the municipal court would not be prudent. Nevertheless, the trial court failed to rule on the claim. We find that failure to rule to be in error. Accordingly, the assignment of error is well taken in part. On consideration whereof, the court finds that substantial justice has not been done the party complaining. The judgment of the Ottawa County Court of Common Pleas is affirmed in part and reversed in part. This case is remanded to that court for further proceedings consistent with this decision. The parties are ordered to pay their own costs of this appeal. Judgment affirmed in part,reversed in partand cause remanded. GLASSER, ABOOD and SHERCK, JJ., concur.

2016-07-06 06:36:32.099064+00

Wiseman

This is an appeal on questions of law from a judgment of the Common Pleas Court of Clark County, rendered on a verdict returned in favor of the plaintiff in the amount of $2,500 on a claim for the support of a child of the plaintiff and the defendant, *Page 424 the latter having been adjudged the reputed father of the child in a bastardy proceeding. The defendant, appellant herein, has assigned 21 separate grounds of error, most of which involve the question of jurisdiction. A recital in chronological order of the various steps taken in these special proceedings is necessary for a full appreciation of the questions presented. On January 7, 1938, the plaintiff, an unmarried woman, filed an affidavit in bastardy against the defendant in the Municipal Court of Springfield. On February 10, 1938, the cause was transferred to the Common Pleas Court of Clark County. The cause was duly tried on August 4, 1939, and a judgment was entered on the verdict in which the jury adjudged the defendant to be the reputed father of the child born to the plaintiff. In the judgment, the court adjudged that the defendant pay to the plaintiff $250 for her support, maintenance and necessary expenses caused by pregnancy and childbirth. The judgment did not provide a weekly sum to be paid plaintiff for the support and maintenance of the child. On October 23, 1939, plaintiff filed an affidavit in the Juvenile Court of Clark County, charging the defendant with nonsupport of the child. The defendant could not be located and was not served. Soon thereafter the defendant entered the armed services of the United States, from which he was released in the latter part of 1944. After being released from the armed services and upon returning to Clark county, the defendant voluntarily appeared in Juvenile Court and discussed with the officer of that court his obligation to support the child. It was agreed that he should pay into the Juvenile Court the sum of five dollars per week for the child's support. He began making payments to the Juvenile Court on January 22, 1945, and made *Page 425 weekly payments intermittingly until August 3, 1949, the date this action was instituted. The total sum paid by the defendant to the Juvenile Court up until this suit was instituted amounted to $844.35, which was remitted to the plaintiff. The record shows that the Juvenile Court never held a hearing on the affidavit charging nonsupport. The arrangement to pay five dollars per week was unofficial and voluntary, and no court order was made in regard thereto. No further effort was made to prosecute the defendant for nonsupport. On the trial of this case, counsel for the defendant at different stages of the proceeding challenged the jurisdiction of the Common Pleas Court to hear and determine the issues presented. The point made by defendant is twofold: First, that the court in the bastardy proceeding failed to make an order for the support and maintenance of the child, as provided in Section 12123, General Code, now Section 8006-17, General Code, and, second, that the plaintiff had invoked the jurisdiction of the Juvenile Court in filing the nonsupport affidavit, and that, in consequence, the Juvenile Court still has jurisdiction in the matter, which deprives the Common Pleas Court from the exercise of jurisdiction in this action. The provision in Section 12123, General Code, requiring the court in a bastardy proceeding to adjudge the amount which the reputed father shall pay to the mother for support and maintenance of the child was placed in that section by an amendment effective May 17, 1938. The amendment became effective prior to the date of the judgment in the bastardy proceeding, which was August 4, 1938. However, the amendment was not expressly made applicable to pending proceedings. Section 26, General Code, provides that an amendment shall not affect pending proceedings, and *Page 426 when the amendment relates to the remedy, such amendment shall not affect proceedings existing at the time of the amendment unless expressly provided in the act. The bastardy proceeding was pending at the time the amendment became effective. Therefore, Section 12123, General Code, as it existed prior to the amendment applies. Prior to the amendment this section did not require the court to adjudge the amount the reputed father should pay to the mother for the support and maintenance of the child. The judgment of the court was proper in every respect. Does the fact that a nonsupport charge was filed in Juvenile Court oust the jurisdiction of the Common Pleas Court? We do not think so. The plaintiff in filing her affidavit in Juvenile Court was proceeding under Section 1639-46, General Code, which makes "nonsupport" a criminal offense. The filing of an affidavit in Juvenile Court charging the defendant with a criminal offense under this section in no way deprives the Common Pleas Court of the proper exercise of its jurisdiction in a civil action to recover for the support and maintenance of such child. Furthermore, the record shows that the nonsupport charge was not prosecuted. No hearing was had and no formal order was made by the court. The court speaks through its journal entries. The appearance of the defendant in the Juvenile Court was unofficial and voluntary, and the understanding with respect to payments was unofficial and voluntary. The court charged the jury to take into consideration the payments made by the defendant to the Juvenile Court, which the plaintiff acknowledged receiving. We find no error in giving special instructions before argument or in the general charge. In view of the evidence presented, we cannot find the verdict to *Page 427 be excessive. In our opinion, the verdict and judgment are sustained by sufficient evidence and are not contrary to law. We have considered carefully all errors assigned and do not find any well made. Judgment affirmed. HORNBECK, P. J., and MILLER, J., concur.

2016-07-06 06:36:32.380258+00

TRoop

Thomas Dudley, Jr., was indicted and tried for assault with intent to kill one Roger Breckenridge on or about September 17, 1967. The jury returned a verdict of guilty, and a judgment was entered accordingly from which this appeal is taken. *Page 15 Section 2901.24, Revised Code, defines the offense, as follows: "No person shall assault another with intent to kill * * *." While the section does not contain words suggesting specific intent as an element of the crime, Ohio courts have held that a showing of malice is necessary for conviction under the statute. Roger Breckenridge was a night watchman at the plant of Columbus Malleable Iron Company, and on the night of September 17, 1967, failed to make required reports to the ADT supervisory system. Investigation by an ADT officer revealed that Breckenridge was not on the plant premises and that his automobile was gone. A red cap was found on the floor of the boiler room, a later examination of which revealed bloodstains. Spots of blood were inside and outside the plant building and along the nearby sidewalk. The car belonging to Breckenridge was located, showing bloodstains outside and on the front and rear seats. A crowbar was found on the front seat of the car, stained with blood found to be the same type of blood as found on the car. Police conducted an extensive search for Breckenridge. He was not found, nor has he ever been contacted. No trace of Breckenridge, or his body, has ever appeared. Defendant, appellant herein, details three assignments of error. The first is addressed to the testimony of a Columbus Police Officer as to the content of an "in-custody" statement made by the defendant. Counsel argues that it was error to admit the testimony because the statement was made under conditions violative of the Miranda rules. The other two assignments of error relate to the evidence and will be considered together. Counsel says there is "no" competent evidence to support the judgment, direct or by reasonable inference, and that there was "no" credible evidence indicating guilt beyond a reasonable doubt. Objection was timely made when Detective Charles L. Phillips was called as a witness for the prosecution. The trial court allowed a preliminary examination of the witness, out of the presence of the jury, because counsel for *Page 16 the defendant urged that the officer's testimony would reflect statements made by the defendant while in custody. A voir dire examination was conducted, following which the trial court admitted the testimony of the police officer. The transcript contains a record of the voir dire examination and the testimony of the officer in the presence of the jury. Counsel for defendant cites, and relies upon, Miranda v.Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974, and Jackson v. Denno (1964), 378 U.S. 368,12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205, in support of his assertion that the testimony of Detective Phillips was inadmissible. The Supreme Court in Miranda makes specific reference to its decision in Escobedo v. Illinois (1964),378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, which makes it necessary to note all three cases in this discussion. An examination of the pertinent part of the record fails to disclose that Tom Dudley, Jr., ever made a confession. He never admitted at any time an assault upon the watchman. In this respect he is totally unlike Jackson (Denno case supra) who, while confined in the hospital and after having been given 50 milligrams of demerol, said, "I shot the colored cop," and admitted the robbery of a hotel. Jackson made a "confession" described in the case as involuntary. Tom Dudley, Jr., made certain statements, or admission, to the police, which call for an examination of the procedure at the time of the interview applying the rules propounded in Miranda and Escobedo. The center of interest in this examination comes on September 19, 1967, beginning shortly after noon, the watchman having disappeared sometime after 2 a. m., September 17, 1967. Following the interview, in the afternoon, the defendant accompanied police officers to Franklin Park in the city of Columbus, who went there to investigate the validity of certain statements made by the defendant during the interview. Again, on the evening of that same day, another conversation took place at police headquarters at approximately 8:45 p. m., at which time the statements of Dudley were reduced to writing. Formal charges were filed against Dudley eight days later, September 27, 1967. *Page 17 This discussion is concerned with the events of September 19, and not with the matter of a lie detector test, in contemplation of which defendant was asked to sign a waiver and refused, which event took place on September 27 after charges were filed. The character of the admissions made to Detective Phillips by Tom Dudley, Jr., deserve brief comment. They are not in the nature of a confession of guilt, but explanations of, or perhaps excuses for, certain conduct. Basically, at least, Dudley accounts for his whereabouts and relates happenings at the places where he was, of which he had knowledge. He reveals his presence at the scene of the crime, accounts for activities preceding that time, describes seeing blood spots at the scene and admits the presence of a blood spot on the knee of his trousers, and explains the burning of his trousers and tennis shoes, saying that if the blood were found he would be accused for the reason that he had been accused on the occasion of a prior incident of violence respecting another plant employee. To discuss Miranda and Escobedo in detail is without point. General rules specifically concerned with the instant case are noted categorically, as follows: 1. "Police have power to investigate an unsolved crime by gathering information from witnesses and by other proper investigative efforts." (Escobedo, paragraph 8 of S. Ct. headnotes.) 2. Miranda speaks of custodial interrogation indicating the beginning point to be when an "individual is taken into custody or otherwise deprived of his freedom by authorities in any significant way * * *." (Miranda, paragraph 66 of S. Ct. headnotes.) 3. Incriminating statements of a suspect are inadmissible where "police have not effectively warned him of his absolute constitutional right to remain silent, * * *." (Escobedo, paragraph 7 of S. Ct. headnotes.) 4. "An accused may intelligently and knowingly waive his privilege against self-incrimination and his right to counsel either at a pretrial stage or at the trial." (Escobedo, paragraph 6 of S. Ct. headnotes.) 5. An accused must be informed of his right to remain silent and be told that any statement he makes may be used *Page 18 against him but he may "voluntarily, knowingly and intelligently" waive the right to be silent and the right of counsel. (Miranda, paragraph 6 of S. Ct. headnotes.) Eight days elapsed between the first interview Dudley had with the police and the filing of the formal charge. It must be apparent that the problem before the police officers during that period could well be labeled an "unsolved crime" when the missing watchman had not been located. It is conceded that it is difficult to determine from a written record just the point at which general inquiry moves to the specifically accusatory, but in the instant case the unusual factor of the missing watchman does much to continue the general inquiry characterization. Further support for the conclusion that the general inquiry continued beyond September 19, 1967, comes from the fact that James Cowan, characterized by his mother as "immature," was present at the scene. The presence of Cowan at the scene produces further investigative necessity because of the effort of Maynard Clinton Brown, who talked to the police "to help Thomas Dudley." Brown's testimony was that he told police officers that he had been with Dudley and Cowan at the scene, that Dudley "hadn't done it and that this boy Cowan had done it." In answer to a question, he said that he put the finger on Cowan. Cowan was questioned the first time September 27, the date upon which charges were filed against Dudley. In the presence of such testimony it appears that the general inquiry continued to the date of the filing of formal charges; in any event, the police inquiry was clearly general as of September 19, 1967. Thomas Dudley, Jr., was not taken into custody on September 19, 1967. Detective Phillips testified, in response to a question by defense counsel, that after two interrogations and a check of the park on September 19, the defendant was sent on home. It is clear that Dudley appeared at police headquarters voluntarily. Dudley's own testimony was that he was picked up by the police and — "They asked me if I'd come with them." Detective Phillips establishes that Dudley was sent home with his father and stepmother the evening of September 19. It is significant *Page 19 that Thomas Dudley, Sr., advised his son "that the best thing for him to do, in my estimation, was to go to the Columbus Detective Bureau and discuss the whole thing." Thomas Dudley, Jr., was not "taken into custody" or "deprived of his freedom" until September 27, 1967, and he certainly was not in custody on September 19, 1967. Detective Phillips says that, after the accused voluntarily accompanied police officers to the headquarters and before conversation, his civil rights were explained to him and he was supplied with a paper titled, "Your Constitutional Rights." The paper, State's Exhibit 25, was handed to him to read. The detective says, "We read and he read it." The paper advises of the right to remain silent — that what is said may be used against the one who says it — and of the right to be represented. The section indicating a willingness to speak and waiving a right to counsel is signed by Thomas Dudley, Jr. Thomas Dudley, Jr., testified that — he signed the constitutional rights statement, he realized what it was and that he could read. When told by the court that it says on the slip that he didn't have to speak, he replied, "I never even thought about that." And when asked if he understood. he said, "I imagine I did." The accused was warned of his right to remain silent and as to the possible consequence of breaking that silence. He waived his right to be represented. There is nothing in the record to indicate that the waiver was not "voluntarily, knowingly, and intelligently" executed. If there be any genuine question in this whole matter of advice as to rights, it concerns the waiver of the right to counsel. Detective Phillips' testimony was that he did not recall Dudley "saying or asking for an attorney at that time." This Dudley disputes, insisting that he signed the waiver with the understanding that he would get a lawyer. Two facts support the police officer. Dudley was back at headquarters eight days after the execution of the waiver, still without any attorney. He testified that he had not called an attorney during the interval, because, he said, "I figured the matter was over." The other fact bears directly on his credibility. When asked concerning *Page 20 the truth of statements made to Detective Phillips, Dudley admitted that he had lied, at least in part, to the officer. Where credibility is a determinative factor, the statements of an admitted liar are subject to substantial discount. We conclude, as did the trial court, that there is no violation of the principles laid down in Miranda in the instant case and that, therefore, defendant's first assignment of error is not well taken and is overruled. In reviewing the remaining two assignments of error suggested by the defendant, there is no attempt to discuss the refinements of the supporting argument advanced by counsel. On the contrary, the approach will be to investigate what appears to be regarded by counsel as a major weakness in the state's case, the lack of a corpus deliciti, in some depth, and then to survey the total evidence supplied by testimony and exhibits, in order to evaluate the weight thereof. The problem of corpus delicti presents itself in this case because of counsel's repeated reference to the absence of a complaining witness. It seems that counsel insists that there must be a victim who shows up, swathed in bandages, and explains how he was beaten with intent to kill. Although particularly pertinent in murder cases, text writers make it perfectly plain that corpus delicti does not mean a dead body. The reporters of the old English common law did, however, look in askance on any conviction for homicide without a body being present, and some took the extreme view that there should never be a conviction for murder or manslaughter unless a body be produced, even though there is no such common-law requirement. (See 2 Hale, Pleas of the Crown 290 [1678].) It seems apparent from much that is reported in the past, as well as some current cases, that the view that actual production of a body is a corpus delicti requirement persists in the thinking of some lawyers and of some courts. An existing Texas statute (Article 1204, P. C., Texas Statutes) is illustrative of the extreme view prevailing in some states. It reads as follows: "No person shall be convicted of any grade of homicide *Page 21 unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the fact of the death of the person charged to have been killed." There are decisions reported, that flatly deny the requirement of a body in murder or manslaughter cases. UnitedStates v. Williams (1858), 28 Fed. Cas. 636, reports an appeal in a case charging murder on the high seas. The court observed that a murderer would only have to consume the body by fire or decompose it by chemical means or sink it in the depth of the seas and the laws of society would be powerless to punish the offender. The court then suggests the kind and quantum of evidence required for conviction and proof of the corpus delicti, at page 643, as follows: "* * * it may be proved by direct evidence, or where such does not exist, it may be proved by cogent circumstances, provided they are sufficient to produce conviction on the mind of the jury and to exclude every reasonable doubt. It must be so, else the laws for the punishment of felonious homicide are insufficient to reach the secret offender, provided he has the opportunity and employs the means to destroy the body." Reference is also to a California case, People v. Cullen (1951), 37 Cal.2d 614, 234 P.2d 1. At page 624, the court said: "Here the corpus delicti consists of two elements, the death of the alleged victims and the existence of some criminal agency as the cause, either or both of which may be proved circumstantially or inferentially. * * * "It is not necessary in order to support the conviction that the bodies actually be found. * * * to require direct and positive proof of the corpus delicti would be most unreasonable; * * * the worst crimes are naturally committed at chosen times, in darkness and secrecy; * * * human tribunals must act upon such indications as the circumstances admit; * * * more often than not the attendant and surrounding facts remove all mystery and supply that degree of certainty men are daily accustomed to regard as sufficient in the most important concerns of life. "Proof of the corpus delicti does not require identity *Page 22 of the perpetrators. It is not necessary that it connect the defendant with the commission of the crime although it may do so. * * *" A more recent case from a California District Court of Appeals is of particular interest in the instant case. It is the case of People v. Scott (1959), 176 Cal.App.2d 458, 1 Cal. Reptr. 600. In Scott there was only a trace of a missing person. The wife's denture and two pairs of glasses with her exact prescription were found buried near her home. The murder conviction of her husband was upheld. Significantly — the bodywas not found and there was no confession. The court, at page 490, summarizes and observes, as follows: "In the reported cases of murder there was almost invariably proof of death consisting of (1) direct evidence of the use of the means of death upon the body of the missing person, as in some cases of death at sea, (2) production of a body or part of a body identified as that of the missing person, or (3) incriminating circumstances sufficient to prove the corpus delicti and an admission or confession of the fact of death. * * * "There are a great many cases of the third class which without exception hold that proof of the corpus delicti plus a confession is legally sufficient. The facts of the present case, in our opinion, bring it clearly within the principle of the confession cases." What the court pinpoints is that; first, a minimum amount of independent evidence is required to prove a corpus delicti and may be essentially circumstantial evidence, and then, the activities and actions of a defendant may be introduced and may have the same effect as a confession. The court speaks succinctly at page 496, as follows: "* * * the circumstantial evidence of the fact of death by criminal means was as strong and convincing as a confession would have been and much stronger than a confession of questionable validity." To avoid being submerged by doctrines concerning that category of cases when the production of a body is deemed *Page 23 a requirement, we need to look to the text writers for the broader concepts relating a corpus delicti principle to other criminal offenses. Text material in 30 American Jurisprudence 2d, beginning at page 315 and Section 1140, suggests some basic rules applicable in all trials for crime. By way of summary of text material, the following is suggested: 1. The prosecution should first prove to a jury that a crime has been committed — "the act." 2. Until it is proved that a particular crime has been committed, it is not competent to try to show who did it — "the criminal agency of the act." 3. Where basic evidence of the circumstances of the crime and of its commission is such that it is absolutely necessary to prove the act and the agency at the same time, or abandon all such composite proof, it will establish the corpus delicti. 4. The corpus delicti may be established by circumstantial evidence where the inference of the happening of the criminal act is the only probable or natural explanation of the proved facts and circumstances. See, also, 15 Ohio Jurisprudence 2d, beginning at page 620, Section 455, and page 683, Section 513, and State v. Nevius (1947), 147 Ohio St. 263. This court, in State v. Curtis (1959), 83 Ohio Law Abs. 25, calls attention to this broader concept of the term corpus delicti. Two statements by the court explain its view, as follows: "* * * `Corpus delicti' means the body or substance of the crime. * * *" "* * * Proof of `corpus delicti' requires proof that a certain result has been produced, as that a man has died, or a building has been burned, or a piece of property is not in the owner's possession, and that some one is criminally responsible for the result. * * *" Many cases dealing with the corpus delicti concept involve a confession by the accused. Quite uniformly, courts have held that there must be some independent evidence to support a statement to the police. It is not difficult to see why such a view makes it necessary to produce *Page 24 a "body" as "some" evidence. In the homicide cases a body provides conclusive independent evidence and commonly it is not difficult to obtain. A classic Ohio case, State v. Maranda (1916), 94 Ohio St. 364, cited and relied upon by counsel for the defendant, is pertinent to the instant review. Maranda is a case in which there was a confession. The crime was arson. Basic rules and concepts are provided. Paragraph one of the syllabus says that corpus delicti includes two elements — "1. The act. 2. The criminal agency of the act." It reiterates, in paragraph two of the syllabus, the prevailing rule that there must be evidence outside the confession to establish the corpus delicti, and, as to such evidence, says: "The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make it a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged." The announced basic rules found in Maranda bear an amazingly close resemblance to those in People v. Scott, supra, in which the court said that the minimal amount of evidence to prove a corpus delicti could be circumstantial. In Scott there was no confession and no body and yet the court held that it belonged in the same group as those cases in which there were "incriminating circumstances sufficient to prove the corpus delicti" and an admission or confession of the fact of death. Language employed in paragraph two of the syllabus ofMaranda is similar to that in People v. Scott, as follows: "It has long been established as a general rule in Ohio that there must be some evidence outside of a confession, tending to establish the corpus delicti, before such confession is admissible. * * *" The syllabus then concludes as quoted supra. The principle announced in Scott and Maranda is that there need only be some evidence introduced tending to prove some material element of the crime charged before any and all evidence of the acts and statements of the defendant, *Page 25 circumstantially consistent with a theory of guilt, may be admissible in evidence. "When there is any evidence, direct or circumstantial, tending to establish the corpus delicti, the question of its sufficiency is for the jury. The corpus delicti is required to be proved beyond a reasonable doubt, and it is for the jury to determine whether it has been so proved." (30 American Jurisprudence 2d 316, Section 1140.) The jury in this case was properly instructed as to the elements of the crime. It was directed to determine — "the act" — "the criminal agency of the act" and whether that "agency" intended to kill Roger Breckenridge. Defendant's assignment of error insisting on the production of a body is not well taken. Under prevailing rules the corpus delicti was established. Defendant was able to see and hear all the witnesses against him. There is nothing in the applicable law that suggests that conviction for the offense charged requires confrontation by a bleeding, damaged, and bandaged complaining witness. In fact, under present day concepts, production of a "body" is not absolutely essential to convict, even in a murder case. Consideration of the remaining assignment of error, directed to the evidence, is approached in the light of the rule inState v. Sheppard (1956), 165 Ohio St. 293, which directs that a reviewing court shall not retry the issues but "will confine its consideration to a determination of whether there is sufficient evidence to have warranted the submission of the case to the jury and whether there is sufficient substantial evidence to support the verdict rendered." To attempt a summary of extensive evidence is always difficult. It is nonetheless so in the instant case. A careful review of the transcript and the exhibits, however, does present certain highlights bearing upon the contentions of counsel for the defendant that there is "no" competent evidence to support the judgment, and that there is "no" credible evidence to support proof beyond a reasonable doubt, and that there is insufficient evidence to present a question for the jury. The following summary avoids reference to any evidence previously noted in the discussion *Page 26 on corpus delicti and attempts only to congeal certain other evidence under basic fact categories. 1. Defendant is placed at the scene of the crime by his own admissions to Officer Phillips as to the early hours of September 17. The father of the defendant, Thomas Dudley, Sr., testified that his son told him that he was at the plant the Saturday night and Sunday morning of Breckenridge's disappearance, having gone there to see Pat James. 2. The time that Breckenridge and the defendant were at the plant falls within clearly established limits. The defendant admitted that he looked at the watchman's clock between 2:30 and 2:35 a. m. Dudley, Sr., said that the tape in the watchman's clock indicated that Breckenridge had completed a round at about 2:20 a. m. A report was made to the ADT supervisory office at 2 a. m. No later report was made as required, and ADT called and tried to reach the watchman at 2:28 a. m. and then investigated directly. 3. Breckenridge was alone at the plant at the times established as significant. Thomas Dudley, Sr., a supervisory employee of Columbus Malleable, said there was no plant employee working at the time. Pat James also said that he was not working and no one was working. The defendant admitted that he called for Pat and nobody was there. State's Exhibit 3 shows that the night watchman, Breckenridge, began his tour of duty September 16 at 11:35 p. m., but never clocked out thereafter. 4. Bloodstains are the subject of much testimony. They were found in the plant, on and in the Breckenridge car, and on the red cap. The stains of greatest interest, however, are those said to have been on the pants which belonged to the defendant. The defendant admitted that there was blood on the knee of the trousers, which he said came after he hit his knee on a grinding machine in the shop. Defendant said he burned his pants and shoes at Franklin Park. He admitted that he had burned them because, he said, if they were found he would be accused as to a prior incident when a plant guard had been hit in the head. Mr. Dudley, Sr., spoke of the blood on Tom's clothes and further testified that his son's explanation *Page 27 was that he had spilled ketchup on them at a bar. Mr. Dudley said also that Tom had mentioned that he had burned the clothes. 5. Testimony as to physical facts and certain tangible items introduced as state's exhibits, chief among which is a crowbar (State's Exhibit 23), are an important segment of the total evidence adduced. James Cowan testified that the defendant had a crowbar in his pants and took it with him when he left the Cowan home. Anderson saw the defendant with a crowbar. The entire testimony of Lloyd Shupe, police chemist, must be noted in connection with the physical evidence before the jury. Detective Baker secured samples of hair from the head of Breckenridge from his home, which matched those taken from the crowbar and those taken from the red cap which Dudley, Sr., said was the cap the watchman normally wore. Mrs. Breckenridge supplied pajama bottoms carrying a bloodstain, definitely that of her husband, which matched bloodstain samples taken from his car and from bloody areas about the plant. Incidentally, a police expert, found a complete absence of fingerprints on the watchman's car. 6. Considerable testimony moves toward establishing "the agency of the act." Some of it comes from James Cowan, described by his mother as "immature." It is, notwithstanding, admissible evidence, and the weight is for the jury. Cowan said that defendant, Tom, argued with a man and pulled a crowbar out of his pants and hit him four times. It appears that the location of Cowan at the time of the described attack may have been somewhat away from the defendant and the "man." Perhaps Cowan was a distance removed for his own protection, or to discourage involvement; in any event, when asked to identify a photo of Breckenridge (State's Exhibit 5), he said, "That's the one Tom Dudley hit." According to the testimony of Police Officer Jones, Cowan had previously selected a photo, being that of Breckenridge, out of a group of five photos of white male subjects. Anderson said that the defendant told him he was going to get this man — a night watchman. Thomas Dudley, Sr., checked at the home of Tom, Jr., as to the whereabouts of his son, making a telephone call at *Page 28 about 4 a. m., after he knew what had happened at the plant, because he said that he knew "that they were going to try to incriminate Tommy in some way or another." 7. Maynard Brown refers somewhat indefinitely to a "pot" night, which could have been the night of September 16. More specifically, the defendant admitted to Detective Phillips that he purchased and "popped" two yellow jackets and drank three-quarters of a bottle of "Robitussin," a narcotic cough syrup, before going to the plant of Columbus Malleable, and that he felt dizzy when he leaned over to pick up the "ingots" after he arrived. This Court of Appeals, then the Second District, has aptly put the proposition that must be respected in the instant case. The case is State v. Butler (1949), 57 Ohio Law Abs. 385, and the proposition is stated as follows: "2. The links of the chain of circumstantial evidence taken alone may not be conclusive of the guilt of a defendant, but taken together they may make a case which cannot be reconciled upon the hypothesis of innocence." The argument of counsel that there is "no" evidence in the instant case overlooks the direct evidence noted and the very reasonable inferences therefrom — such as that only a guilty man will burn his trousers to destroy an incriminating bloodstain, and that a man who got such stain from an injury sustained by striking a grinding wheel will explain it to his mother and allow the stain to be removed by washing. The total evidence is clearly sufficient to warrant submission to the jury and, when all the "links" are taken together, is not only so sufficient and substantial as to support the verdict but is so "strong and cogent" as to leave no room for a reasonable doubt. The judgment of the trial court is affirmed, this appeal is dismissed at appellant's costs, and the cause is remanded for further proceeding according to law. Judgment affirmed. DUFFY, P. J., and STRAUSBAUGH, J., concur.

2016-07-06 06:36:33.073439+00

OPINION Defendant-appellant Tina R. Bronkar appeals the June 26, 2001 Judgment Entry of the Muskingum County Court of Common Pleas which continued her community control, and sentenced her to sixty days in the Muskingum County Jail for community control violations. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE On March 9, 1998, appellant plead guilty to one count of theft of $100,000, in violation of R.C. 2913.02(A)(2), a felony of the third degree. In an April 23, 1998 Judgment Entry, the trial court sentenced appellant to three years of community control with certain conditions. The judgment entry set forth fourteen different sanctions of community control, ordered appellant to pay restitution and serve sixty days in jail. On April 7, 2000, appellee filed a motion alleging appellant had violated three conditions of community control. In a September 20, 2000 Judgment Entry, the trial court, after hearing evidence, modified appellant's restitution amount and denied all other motions, presumably including appellee's motion charging appellant with community control violations. On October 19, 2000, appellant appealed the September 20, 2000 ruling to this Court in appellate Case Nos. CT2001-003, 2000-0033, and 2001-0001. On November 29, 2000, the trial court filed an amended entry purporting to amend the September 20, 2000 ruling which was the subject of the aforementioned appeal. In its November 29, 2000 Judgment Entry, the trial court found appellant had violated her community control, including the restitution modifications, and of specific importance to the matter sub judice, the trial court extended appellant's period of community control for two years and ordered an additional fifty hours of community service. On February 13, 2001, the State filed another motion to revoke appellant's community control. On June 26, 2001, the trial court again concluded appellant had violated the terms of her community control. The trial court continued appellant on community control, but sentenced her to sixty days in jail. On June 28, 2001, the trial court stayed the sentence pending the outcome of this appeal. On October 4, 2001, this Court rendered its opinion on appellant's first appeal. In our decision, we vacated the trial court's November 29, 2000 Amended Entry for lack of jurisdiction. Appellant now appeals the June 26, 2001 Judgment Entry which continued her on community control and sentenced her to an additional sixty days in jail. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED WHEN IT VIOLATED THE TERMS OF THE DEFENDANT/APPELLANTS COMMUNITY CONTROL AFTER HER COMMUNITY CONTROL PERIOD HAD EXPIRED WHICH ENDED THE TRIAL COURTS' JURISDICTION. II. THE COURT ERRED IN FAILING TO GIVE THE DEFENDANT/APPELLANT THE PROPER NOTICE THAT IF SHE VIOLATED COMMUNITY SHE COULD FACE ANY ADDITIONAL JAIL OR PRISON TIME. Before addressing the merits of the assignments of error, we turn to our attention to the procedural posture of this case. As noted above, appellant was sentenced to three years of community control beginning on April 23, 1998. Accordingly, appellant's three year term of community control, absent any lawful modification, would end on April 23, 2001. In its November 29, 2000 Amended Entry, the trial court extended appellant's community control for a period of two years. If this order were valid, appellant's community control would expire April 23, 2002. However, as noted above, this Court specifically vacated the trial court's November 29, 2000 Judgment Entry for lack of jurisdiction in our opinion filed October 4, 2001. Because of this ruling, the trial court's attempt to extend appellant's community control for an additional two years was ineffective. Accordingly, appellant's community control terminated on April 23, 2001. On February 13, 2001, before appellant's community control had expired, the State filed a motion to revoke appellant's community control for alleged violations. In its June 26, 2001 Judgment Entry, the trial court concluded appellant had violated the terms of her community control but did not reference whether the violation was of its April 23, 1998 Entry or its November 29, 2000 Judgment Entry. The motion does reference the paragraph numbers contained in the original list of sanctions in the April 23, 1998 Judgment Entry. However, we also note the November 29, 2000 Judgment Entry, incorporated the original sanctions by reference and included three additional sanctions. Based upon the language contained in the judgment entries, we conclude the trial court's June 26, 2001 Judgment Entry found appellant had violated the November 29, 2000 Judgment Entry as opposed to the earlier April 23, 1998 Entry. In its June 26, 2001 Judgment Entry, the trial court stated "the defendant is continued on community control and sentenced to sixty days in the Muskingum County Jail." (Emphasis added). However, in the trial court's November 29, 2000 Judgment Entry, the trial court stated "It is, however, ordered and adjudged by the court that the defendant, Tina Bronkar, is to remain on community control. It is further ordered that the defendant's community control is extended an additional two years for a total of five (5) years." (Emphasis added). We find the find the fact the trial court "continued" appellant on community control in its June 26, 2001 Judgment Entry, indicates the trial court believed appellant was in fact, still on community control. Appellant could only be on community control on June 26, 2001, if the trial court believed its November 29, 2000 Judgment Entry, an entry which extended appellant's community control through April of 2002, was in effect. Because the trial court's June 26, 2001 Judgment Entry was based upon the November 29, 2000 Judgment Entry, this Court subsequently found to be void, we find the June 26, 2001 Judgment Entry to likewise be void and order it vacated. In light of our decision to vacate the June 26, 2001 Judgment Entry, we find it unnecessary to address the merits of either of appellant's assignments of error. By: HOFFMAN, P.J. GWIN, J. and WISE, J. concur JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the June 26, 2001 Judgment Entry of the Muskingum County Court of Common Pleas is vacated. Costs assessed to appellee.

2016-07-06 06:36:33.106693+00

OPINION {¶ 1} Plaintiff-appellant Jerry Wilkins appeals from a civil protection order, contending that the trial court was without authority to impose restrictions upon him, the petitioner, because defendant-appellee Pamela Wilkins, the respondent, had not filed a separate petition for a civil protection order, as required by R.C. 3113.31(E)(4) for the issuance of a bilateral civil protection order imposing restrictions upon a petitioner. We agree. Accordingly, that part of the civil protection order issued by the trial court imposing restrictions upon Jerry Wilkins is reversed and vacated. In all other respects, the civil protection order is affirmed. I {¶ 2} Jerry Wilkins filed a petition for a domestic violence civil protection order alleging that his spouse, Pamela Wilkins, had harassed him by telephone, and had threatened him and his family with physical harm. A divorce action was pending between the Wilkinses. {¶ 3} Pamela Wilkins, the respondent, never filed her own petition for a civil protection order. {¶ 4} Jerry Wilkins' petition was heard by a magistrate on June 10, 2003. Jerry Wilkins was represented by counsel; Pamela Wilkins, who was present and who testified, was not. {¶ 5} Two days later, on June 12, 2003, a civil protection order was entered, imposing various restrictions against Pamela Wilkins, the respondent. Pamela Wilkins filed objections to this order, contending, among other things, that the order should have been a mutual order of protection, because the magistrate had expressed his intention at the hearing to make the order mutual, and Jerry Wilkins did not object. {¶ 6} Although the trial court found Pamela Wilkins' other objections to the order not to be well-taken, the trial court found her objection to the fact that the order was not an order of mutual protection to be well-taken, because the transcript of the hearing before the magistrate reflected that the magistrate had expressed an intention to make the order mutual, to which no objection was interposed. Specifically, by entry filed August 28, 2003, the trial court ordered the following: {¶ 7} "Upon consideration of all matters in the case, the Court sustains the objections of Defendant in part. In doing so the Court adopts the Decision of the Magistrate in part and modifies the Magistrate's Decision so that the Civil Protection Order requires each party to refrain from having any contact with the other party." {¶ 8} From this order of the trial court, Jerry Wilkins appeals. II {¶ 9} Jerry Wilkins' sole assignment of error is as follows: {¶ 10} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ALTERED THE MAGISTRATE'S DECISION TO ISSUE A CIVIL PROTECTION ORDER AGAINST THE APPELLANT WHEN NO PETITION FOR SUCH HAD EVER BEEN FILED BY THE APPELLEE. THE TRIAL COURT WAS WITHOUT JURISDICTION TO DO SO." {¶ 11} Pamela Wilkins has not filed a brief. {¶ 12} Jerry Wilkins relies upon R.C. 3113.31(E)(4), which provides, in pertinent part, as follows: {¶ 13} "A court may not issue a protection order that requires a petitioner to do or to refrain from doing an act that the court may require a respondent to do or to refrain from doing under division (E)(1)(a), (b), (c), (d), (e), (g), or (h) of this section unless all of the following apply: {¶ 14} "(a) The respondent files a separate petition for a protection order in accordance with this section. {¶ 15} "(b) The petitioner is served notice of the respondent's petition at least forty-eight hours before the court holds a hearing with respect to the respondent's petition, or the petitioner waives the right to receive this notice. {¶ 16} "(c). . . . {¶ 17} "(d) After a full hearing at which the respondent presents evidence in support of the request for a protection order and the petitioner is afforded an opportunity to defend against that evidence, the court determines that the petitioner has committed an act of domestic violence or has violated a temporary protection order issued pursuant to section 2919.26 of the Revised Code, that both the petitioner and the respondent acted primarily as aggressors, and that neither the petitioner nor the respondent acted primarily in self-defense." {¶ 18} Jerry Wilkins contends, and the record bears him out, that Pamela Wilkins, the respondent, never filed a separate petition for a protection order. Based upon our review of the record, we agree with him, also, that the requirements of R.C.3113.31(E)(4)(b) and (d) for the issuance of a mutual civil protection order were not complied with. {¶ 19} The trial court based its decision to make the civil protection order mutual upon the following comments made by the magistrate at the hearing, to which neither party made any objection: {¶ 20} "The Court: Okay. Well, what the Court's probably going to do is issue maybe a bilateral order. I want him to stay away from you, and his family et cetera, et cetera." {¶ 21} ". . . . {¶ 22} "The Court: To summarize, do you understand what happened, and I don't mean to be — {¶ 23} "Mrs. Wilkins: I understand that they have — you have granted them a civil protection order, and that goes both ways. Is that correct? {¶ 24} "The Court: Yes. I'm going to put in there that yeah, he likewise, even though you didn't ask for it, I'm going to put language in there, Mr. Lagos [Jerry Wilkins' counsel], about that. Do you understand that, Mrs. Wilkins? {¶ 25} "Mrs. Wilkins: Yes. Yes, I do." {¶ 26} There is no question that the requirements of R.C.3113.31(E)(4) for the issuance of a mutual civil protection order were not complied with in this case. If these requirements are not jurisdictional, meaning they can be waived, we would have no hesitancy in finding that Jerry Wilkins' failure to object to the magistrate's repeated expressions of intent to make the order mutual would constitute a waiver. {¶ 27} We conclude that the requirement in R.C.3113.31(E)(4)(a) is jurisdictional. {¶ 28} ". . . there is no presumption of jurisdiction where a court of general jurisdiction exercises, in a special statutory manner or otherwise than according to the course of the common law, special statutory powers not belonging to it as such court and not within its ordinary jurisdiction, since, under such circumstances, the court stands, with respect to the special powers exercised, on the same footing with courts of limited and special jurisdiction, and the record of such court must show upon its face a full compliance with the requirements in order to obtain jurisdiction." State ex rel. Parsons v. Bushong (1945),92 Ohio App. 101, at 105-106 (Citations omitted). {¶ 29} We construe R.C. 3113.31 to represent a specific grant of authority by the Ohio General Assembly to certain common pleas courts specified in division (A)(2) of that section to issue civil protection orders, a power not ordinarily exercisable before the enactment of the statute. The jurisdictional power to issue civil protection orders reposed in those courts by the statute comes with limitations placed upon that jurisdiction. At a minimum, R.C. 3113.31(E)(4)(a) requires that a respondent shall have filed a separate petition for a protection order, as a jurisdictional predicate for the issuance of a protection order that imposes obligations upon the petitioner. Significantly, the subsequent requirement, in R.C. 3113.31(E)(4)(b), of at least forty-eight hours' notice, is expressly subject to the possibility of waiver. No comparable provision for waiver is set forth with respect to the requirement of R.C. 3113.31(E)(4)(a). {¶ 30} We conclude that the requirement that a respondent file a separate petition for protection order, as a prerequisite for the issuance of a protection order imposing restrictions upon a petitioner, is a jurisdictional limitation upon the special statutory power conferred by the statute. Consequently, that limitation, being jurisdictional, cannot be waived. {¶ 31} Jerry Wilkins' sole assignment of error is sustained. III {¶ 32} Jerry Wilkins' sole assignment of error having been sustained, that part of the judgment of the trial court purporting to make the restrictions set forth in the civil protection order apply to Jerry Wilkins, the petitioner, is reversed and vacated. In all other respects, the civil protection order issued by the trial court is affirmed. Wolff and Grady, JJ., concur.

2016-07-06 06:36:33.168088+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, Shirley Blankenship, appeals from the decision of the Medina County Court of Common Pleas, which granted the motion for summary judgment of appellee, Wadsworth-Rittman Hospital ("the Hospital"). We affirm. {¶ 2} On April 19, 1995, Ms. Blankenship drove to the Hospital, located at 195 Wadsworth Road, Wadsworth, Ohio, in Medina county, to receive an allergy shot. While walking from the parking lot to the Hospital, Ms. Blankenship tripped on an area of the sidewalk where two cement slabs meet. The difference in height between the cement slabs was between three-fourths of an inch to one inch. Ms. Blankenship fell on the sidewalk, sustaining bruises and a broken elbow. {¶ 3} Ms. Blankenship filed a complaint alleging negligence against the Hospital on April 18, 1997. She voluntarily dismissed her case on March 26, 1999. Ms. Blankenship filed another complaint against the Hospital on March 24, 2000. The trial court dismissed the case without prejudice on March 15, 2001 due to Ms. Blankenship's failure to respond to discovery requests. Ms. Blankenship again filed a complaint against the Hospital on June 19, 2001. The Hospital filed a motion for summary judgment, which the trial court granted. It is from this judgment that Ms. Blankenship now appeals. {¶ 4} Ms. Blankenship asserts one assignment of error: {¶ 5} "SUMMARY JUDGMENT WAS IMPROVIDENTLY GRANTED BY THE TRIAL COURT WHICH DENIED APPELLANT HER RIGHT TO HAVE HER CLAIM DECIDED BY A JURY OF HER PEERS." {¶ 6} In her assignment of error, Ms. Blankenship asserts that the trial court erred by granting the Hospital's motion for summary judgment. We disagree. {¶ 7} Pursuant to Civ.R. 56(C), summary judgment is proper if no genuine issue of material fact remains to be litigated, the moving party is entitled to judgment as a matter of law, and it appears from the evidence that, viewing such evidence most strongly in favor of the non-moving party, reasonable minds can come to only one conclusion.Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Appellate review of a lower court's entry of summary judgment is de novo, applying the same standard used by the trial court. McKay v. Cutlip (1992),80 Ohio App.3d 487, 491. "We review the same evidentiary materials that were properly before the trial court at the time it ruled on the summary judgment motion." Am. Energy Servs. v. Lekan (1992), 75 Ohio App.3d 205,208. {¶ 8} The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied, the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that shows a genuine dispute over the material facts exists. Henkle v. Henkle (1991),75 Ohio App.3d 732, 735. {¶ 9} "In an action for negligence, a plaintiff must prove (1) the defendant owed her a duty of care; (2) the defendant breached that duty of care; and (3) as a direct and proximate result of the defendant's breach, the plaintiff suffered injury." Raj v. Burkhardt Consol. Co., 9th Dist. No. 21206, 2003-Ohio-245, at ¶ 11. An owner or occupier of property owes a business invitee a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger. Paschal v. Rite AidPharmacy, Inc. (1985), 18 Ohio St.3d 203, 203. "Ordinary care connotes `that which an ordinarily reasonable and prudent person exercises.'" Leekv. Miller (May 6, 1998), 9th Dist. No. 18749, quoting Parsons v. LawsonCo. (1989), 57 Ohio App.3d 49, 50. A business owner, however, is not an insurer of the invitee's safety. Paschal, 18 Ohio St.3d at 203. {¶ 10} Ms. Blankenship argues that the Hospital was negligent in not ensuring that the two cement slabs were even when it replaced a portion of the sidewalk. A business owner is generally not liable for minor defects in sidewalks and walkways because these are commonly encountered and pedestrians should expect such minor defects. Stockhauserv. Archdiocese of Cincinnati (1994), 97 Ohio App.3d 29, 32. In Kimballv. Cincinnati (1953), 160 Ohio St. 370, the Ohio Supreme Court stated what has now come to be known as the "two-inch rule," which provides that a difference in elevation in a sidewalk or walkway, which is less than two inches, is insubstantial as a matter of law. Raj, at ¶ 12; see, also Kimball, 160 Ohio St. 370; Stockhauser, 97 Ohio App.3d at 33. InCash v. City of Cincinnati (1981), 66 Ohio St.2d 319, 324, the Ohio Supreme Court modified the two-inch rule, stating that when determining a business owner's liability for defects in a sidewalk, the court should consider any attendant circumstances which would render the defect substantial. "Thus, Cash established a rebuttable presumption that height differences of two inches or less are insubstantial as a matter of law. The presumption may be rebutted by showing attendant circumstances sufficient to render the defect substantial." Stockhauser,97 Ohio App.3d at 33. {¶ 11} "In other words, in situations where the difference is less than two inches, courts must look further to determine if there is some factor in the attendant circumstances which would still raise a jury question as to the existence of danger to the pedestrian. In such cases where reasonable minds could differ as to whether the variation was so trivial as to relieve the owner from liability, that issue is properly left for the jury, and summary judgment is therefore improper." (citations omitted.) Raj, at ¶ 12. {¶ 12} In the present case, the parties do not dispute that the difference in elevation between the two portions of the sidewalk measured less than two inches. Therefore, the Hospital is entitled to summary judgment as a matter of law unless the attendant circumstances raise a jury question as to whether the defect was substantial. {¶ 13} In support of its motion for summary judgment, the Hospital attached the deposition and affidavit of Ms. Blankenship and pictures of the sidewalk. In her deposition, Ms. Blankenship testified that it was a clear day, there was no snow, and the sidewalk was not wet. Ms. Blankenship also testified that the sidewalk was not loose. {¶ 14} Ms. Blankenship argues that there is a genuine issue of material fact as to whether the attendant circumstances render the minor deviation a substantial defect. Specifically, Ms. Blankenship argues that the attendant circumstances include the fact that elderly and infirm people use the Hospital's sidewalks. {¶ 15} This Court addressed this same argument in Raj. We found that the circumstances cited by Ms. Blankenship, namely the type of individuals who use the sidewalks, "are not the type of attendant circumstances which would render the minor defect in the sidewalk substantial." Raj, at ¶ 17. Accordingly, there are no issues of material fact regarding whether the deviation was substantial. {¶ 16} Finally, Ms. Blankenship argues that summary judgment should have been denied on the basis of res judicata. The doctrine of res judicata is explained in the syllabus of Grava v. Parkman Twp. (1995),73 Ohio St.3d 379, "[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out the transaction or occurrence that was the subject matter of the previous action." In the present case, there is no dispute that the parties are litigating the same claims against the same parties. The dispute is whether there is a prior final judgment. {¶ 17} The trial court denied the Hospital's summary judgment motion in a previous case. Ms. Blankenship then dismissed the previous case in accordance with Civ.R. 41(A)(1). A complaint dismissed without prejudice, according to Civ.R. 41(A), leaves the parties included in the dismissal notice "as if no action had been brought at all." (citations omitted.) Ohio Farmers Ins. Co. v. Modine Manuf. (Sept. 5, 2001), 9th Dist. Nos. 3114-M, 3116-M. Consequently, the trial court's judgment entry in the previous case denying the Hospital's motion for summary judgment did not become final after the Civ.R. 41(A) dismissals; it became a nullity. See Ohio Farmers Ins. Co. {¶ 18} Because the trial court's order was not a valid, final judgment, it did not operate to bar the Hospital from filing another motion for summary judgment on the same claim. {¶ 19} There is no genuine issue of material fact. Consequently, the trial court did not err in granting the Hospital's motion for summary judgment. Ms. Blankenship's sole assignment of error is overruled. {¶ 20} Ms. Blankenship's assignment of error is overruled and the judgment of the Medina County Court of Common Pleas is affirmed. BAIRD, P.J. and CARR, J. CONCUR.

2016-07-06 06:36:33.491961+00

Matia

Since I am disagree with the majority opinion's liberal rendition of the facts, and its disregard of our limited scope of review in these matters as an appellate court, I respectfully dissent. I find it necessary to restate the facts as they appear in the record. Defendant-appellant, Leroy R. Heaven, appeals from his convictions in the Cuyahoga County Court of Common Pleas for drug abuse, R.C. 2925.11, and for possessing criminal tools, R.C. 2923.24. Appellant was tried jointly with his wife, co-defendant Robin Sims, with whom he had been arrested. A co-defendant, Sims, was discharged, however, after the trial court granted her motion for acquittal pursuant to Crim.R. 29. I The Facts, Generally Evidence adduced at trial revealed that appellant is a Jamaican citizen who resides in Sunrise, Florida. In late September 1986, appellant traveled to Cleveland, Ohio, where his wife resides, and checked into Room 312 at the Lake Erie Motel on September 21, 1987. Sergeant Charles Lane of the Cleveland Police Narcotics Unit testified that on September 22, 1987, he had received information leading him to suspect that two Jamaicans staying on the third floor of the Lake Erie Motel were in possession of a large amount of cocaine, and that one of them, named Alan, was a suspect in a Florida homicide. Police officers sent to the motel obtained a master key from the desk clerk, and learned that the two suspects were in Room 312 and Room 316. Room 316 was secured first by the police, and a gun was found therein. The police then focused on Room 312. Sergeant Lane testified that he knocked on the door of Room 312 and announced that he was a police officer. Robin Sims, the defendant's wife and a co-defendant at trial, opened the door and walked into the hall to talk to the police. The door closed behind her, and noises were heard from inside the *Page 837 room which sounded to the police like someone running a short distance, followed by the slam of a toilet seat against the tank. Using the master key, the police opened the door and entered the room, finding appellant, Heaven, coming out of the bathroom. The police informed appellant that they suspected he was in possession of cocaine. Appellant denied this, and stated that he had nothing to hide. According to Sgt. Lane, appellant was then asked if the police could look around in the room, and appellant replied, "I have nothing to hide. Go ahead and search. You arenot going to find anything." (Emphasis added.) Appellant refused, however, to sign a written consent form offered by the police. Police observed two large plastic bags in the bathroom, one in the toilet bowl and one on the floor next to the toilet. The plastic bags were collected, and a small amount of white powder was confiscated from the rim of the toilet. While the majority opinion might lead one to believe that cocaine was found in the plastic bags which were confiscated, in fairness to the appellant I feel it necessary to note that there is no evidence in the record to support this statement. Rather, theonly cocaine found was taken from the rim of the toilet seat, which powder was scraped into police envelopes and then placed in police evidence bags. This powder was later scientifically identified as cocaine. Police also seized a digital pager from Robin Sim's purse, a weight conversion table written on a piece of paper and nearly a thousand dollars in bundles of $100 from appellant's wallet, and an Ohaus triple-beam scale from under a couch in the room. Appellant and Robin Sims were indicted, and their joint trial began April 19, 1988. Co-defendant Robin Sims was acquitted after presentation of the state's case; appellant was found guilty on both counts, and sentenced to one year of incarceration plus costs on each, to run concurrently. II Consent Search In his first assignment of error, appellant contends: "The trial court erred by overruling the defense motion to suppress physical evidence." In contrast to Sgt. Lane's testimony, noted above, appellant and Robin Sims testified that the police never asked for consent, and that none was ever given. Appellant also asserted that he was coerced and intimidated by the police. *Page 838 The majority opinion seems to assert that probable cause is lacking in the instant case. Probable cause is, however, not at all relevant to the validity of a consent search. The majority opinion intimates that the trial court found that there was insufficient probable cause to obtain a warrant. While I first point out that a trial court's personal comments from the bench do not constitute a "determination," I further note that the warrant requirement is also completely irrelevant to the propriety of a search based on consent. I find it necessary to set forth the relevant law applicable to the instant case. Under the Fourth and Fourteenth Amendments to the United States Constitution, a search conducted without a warrant issued upon probable cause is "per se unreasonable * * * subject only to a few specifically established and well-delineated exceptions." Katz v. United States (1967), 389 U.S. 347, at 357,88 S.Ct. 507, at 514, 19 L.Ed.2d 576, at 585; Schneckloth v.Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854;State v. Posey (1988), 40 Ohio St.3d 420, at 427, 534 N.E.2d 61, at 66. One of the specifically established exceptions to the warrant and probable cause requirements is a search conducted pursuant to consent. Schneckloth, supra; State v. Childress (1983), 4 Ohio St.3d 217, 4 OBR 534, 448 N.E.2d 155. When the state purports to rely on the consent exception, it must prove to the trial court by clear and positive evidence that the consent was freely and voluntarily given. Bumper v.North Carolina (1968), 391 U.S. 543, 88 S.Ct. 1788,20 L.Ed.2d 797; Posey, supra; State v. Danby (1983), 11 Ohio App.3d 38, 11 OBR 71, 463 N.E.2d 47. Whether consent is voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth, supra; Posey, supra. Since one would never be able to glean this court's scope and standard of review from the majority opinion, I note that it is not unlimited.This court should not reverse a trial court's decision regardingthe validity of consent if the finding is supported bysubstantial evidence. State v. Winger (1974), 40 Ohio App.2d 236, at 238, 69 O.O.2d 217, at 218, 318 N.E.2d 866, at 868. As stated by this court in State v. McCarthy (1969), 20 Ohio App.2d 275, at 284, 49 O.O.2d 364, at 370, 253 N.E.2d 789, at 796: "[In consent search cases, the] appellate court will accept the finding of the trial court unless it is clearly erroneous. This occurs because the trial court is best able to gauge the credibility of witnesses." (Emphasis added.) Other cases utilizing the "clearly erroneous" standard of review include Wren v. United States (C.A.10, 1965),352 F.2d 617, certiorari denied (1966), 384 U.S. 944, 86 S.Ct. 1469,16 L.Ed.2d 542; and our own State v. Elison (Jan. 11, 1979), Cuyahoga App. No. 38807, unreported. *Page 839 This court explained in State v. Collins (Apr. 16, 1981), Cuyahoga App. Nos. 42389 and 42390, unreported, a case involving very similar factual disputes, as follows: "At a hearing on a motion to suppress, the trial court sits as both trier of fact and law. As trier of fact, the trial court thus had the responsibility of resolving any conflicts in testimony and evaluating the credibility of the witnesses in determining the factual issues of whether appellant consented and whether the consent was voluntary. As a reviewing court, wecan only say that [the arresting officer's] testimony alone wassufficient to demonstrate that the search had been undertakenpursuant to a voluntary consent." (Emphasis added.) Moreover, we have held that "a trial court may find voluntaryconsent based on a police officer's testimony that the consentwas freely given." (Emphasis added.) State v. Haynes (Apr. 28, 1983), Cuyahoga App. No. 45467, unreported, 1983 WL 5973,citing State v. Kelly (Oct. 22, 1981), Cuyahoga App. Nos. 42929 and 42939, unreported, 1981 WL 4579. The trial court is, of course, free to believe the testimony of the state's witnesses, and to disbelieve that of the defense. See Kelly, supra, at 7. I am unable to say, upon review of the record, that the trial court's ruling was clearly erroneous. There was substantial evidence, in the form of Sgt. Lane's testimony, supporting the court's finding of a valid consent search, and so this court iswithout authority to reverse on this issue, our personal beliefsnotwithstanding. Accordingly, I find appellant's first assignment of error is not well taken. III Possessing Criminal Tools Appellant asserts in his second assignment of error that: "The evidence is insufficient to sustain a conviction of possession of criminal tools." In the bill of particulars filed by the prosecution, only the Ohaus triple-beam scale and the plastic bags were listed as criminal tools. Appellant argues that the evidence was insufficient to justify conviction for possessing these items. Possessing criminal tools is proscribed at R.C. 2923.24, which provides in pertinent part as follows: "(A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. *Page 840 "(B) Each of the following constitutes prima-facie evidence of criminal purpose: "* * * "(3) Possession or control of any substance, device, instrument, or article commonly used from criminal purposes, under circumstances indicating such item is intended for criminal use. "(C) Whoever violates this section is guilty of possessing criminal tools, a felony of the fourth degree." Concerning 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 beyond a reasonable doubt."State v. Martin (1983), 20 Ohio App.3d 172, at 175, 20 OBR 215, at 218-219, 485 N.E.2d 717, at 720. This court will not reverse a verdict supported by substantial credible evidence from which a trier of fact could reasonably conclude that each element of the offense charged has been proved beyond a reasonable doubt. State v. Eley (1978),56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132. The record reveals that an Ohaus triple-beam scale was recovered by police under a couch in a motel room under the exclusive control of the appellant. Sergeant Lane's testimony that such scales are commonly used for criminal purposes was unrebutted. Further, cocaine and large plastic bags were found in the same room in which the scale was discovered. Clearly, a rational juror could reasonably conclude that appellant possessed or had control over the scale under circumstances indicating that it was to be used in a criminal manner. I find appellant's second assignment of error not well taken. *Page 841

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JOURNAL ENTRY AND OPINION {¶ 1} Defendant-Appellant, Frank J. Webb, appeals pro se from the judgment of the Common Pleas Court denying his motion to vacate and modify his sentence. For the reasons that follow, we reverse and remand. {¶ 2} The record reflects that in 1989, Webb and his co-defendant, Merl Sharpley, were jointly indicted in two separate cases for offenses arising out of three armed robberies and a shooting. The cases were consolidated for trial. After a jury trial, Webb was convicted of five counts of aggravated robbery, three counts of kidnapping, felonious assault, attempted murder, possession of a dangerous ordnance, and having a weapon while under disability. {¶ 3} On appeal, this court reversed Webb's and Sharpley's convictions for the firearm specification appurtenant to the conviction for the aggravated robbery which occurred on January 31, 1989, and reversed Webb's conviction for felonious assault. We affirmed the remaining convictions. State v. Webb (Jan. 2, 1992), Cuyahoga App. Nos. 59544/59626/59627. {¶ 4} In light of this court's decision reversing two of his convictions, Webb subsequently filed a motion to vacate and modify his sentence, which the trial court denied. This appeal followed. FAILURE TO CONDUCT A RESENTENCING HEARING {¶ 5} In his first assignment of error, Webb contends that the trial court erred in failing to conduct a resentencing hearing pursuant to this court's decision reversing his conviction on the firearm specification appurtenant to the conviction for aggravated robbery which occurred on January 31, 1989, and his felonious assault conviction. {¶ 6} The State concedes this error, but argues that the matter should be remanded for resentencing only on the reversal of the firearm specification on the aggravated robbery conviction and the reversal on the felonious assault conviction. The State contends that a "completely new sentencing hearing" is not necessary. We disagree. {¶ 7} As this court previously stated in State v. Gray, Cuyahoga App. Nos. 81474, 2003-Ohio-436, at ¶ 12: {¶ 8} "The court of appeals does not have the power to vacate just a portion of a sentence. State v. Bolton (2001),143 Ohio App.3d 185, 188-189. Therefore, when a case is remanded for resentencing, the trial court must conduct a complete sentencing hearing and must approach resentencing as an independent proceeding complete with all applicable procedures. See Bolton, supra at 188-189. See, also, State v. Steimle, Cuyahoga App. Nos. 79154 and 79155, 2002-Ohio-2238." {¶ 9} Furthermore, this court has recognized that trial judges customarily view the sentence as a package in which the trial judge balances various parts to arrive at the desired end.State v. Moore, Cuyahoga App. No. 83703, 2004-Ohio-6303, at ¶34. Thus, on remand, trial judges should have the opportunity to move within the prescribed range of possible sentences. {¶ 10} The Tenth District explained this principle as follows: {¶ 11} "The sentence package doctrine provides that, when a defendant is sentenced under a multi-count indictment and the sentences imposed on those counts are interdependent, the trial court has the authority to reevaluate the entire aggregate sentence, including those on the unchallenged counts, on remand from a decision vacating one or more of the original counts. Inthe Matter of Fabiaen L. Mitchell (June 28, 2001), Franklin App. No. 01AP-74. The underlying theory is that, in imposing a sentence in a multi-count conviction, the trial court typically looks to the bottom line, or the total number of years. Id. Thus, when part of a sentence is vacated, the entire sentencing package doctrine becomes `unbundled,' and the trial judge is, therefore, entitled to resentence a defendant on all counts to effectuate its previous intent. Id." State v. Jackson, 2004-Ohio-1005, at ¶ 5, Franklin App. No. 03AP-698. {¶ 12} Accordingly, upon remand, the trial court is to conduct a complete sentencing hearing upon resentencing Webb. {¶ 13} Appellant's first assignment of error is sustained. SENTENCING ON THE FIREARM SPECIFICATIONS {¶ 14} In his second assignment of error, Webb argues that the trial court erred in sentencing him under former R.C.2929.71(B) to consecutive three-year terms on the firearm specifications because it did not find that any of the felonies were committed as part of the same act or transaction. Former R.C. 2929.71(B) provided that if a defendant were found guilty of one or more felonies and two or more firearm specifications, the firearm specifications were to be served consecutively, unless the felonies were part of the same act or transaction. Webb argues that the trial court erred in sentencing him to four consecutive three-year terms on the firearm specifications because the jury did not consider whether any of the felonies were committed as part of the same act or transaction. {¶ 15} Webb's argument, however, is barred by the doctrine of res judicata. Under the doctrine of res judicata, a final judgment of conviction bars a defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or an appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. "Res judicata may be applied to bar further litigation of issues that were raised previously or could have been raised previously in an appeal." State v.Houston (1995), 73 Ohio St.3d 346, 347, citing Perry, supra. {¶ 16} Webb filed a direct appeal of his conviction and could have raised any sentencing errors on appeal. Accordingly, his argument is barred by the doctrine of res judicata. {¶ 17} Appellant's second assignment of error is therefore overruled. BLAKELY ISSUE {¶ 18} In his third assignment of error, Webb contends that the imposition of consecutive sentences for the firearm specifications violates the United States Supreme Court's recent decision in Blakely v. Washington (2004), ___ U.S. ___,124 S.Ct. 2531, 159 L.Ed.2d 403, because the jury did not determine whether the underlying offenses were part of the same act or transaction, a fact allegedly exposing him to an enhanced penalty beyond the statutory maximum. Webb's argument is without merit. {¶ 19} Webb was sentenced on March 15, 1990, nearly 15 years before the United States Supreme Court decided Blakely. Since the decision in Blakely was announced, numerous federal courts have declined to apply Blakely retroactively. See, e.g., In reDean (C.A.11, 2004), 375 F.3d 1287; Cuevas v. Derosa (C.A.1, 2004), 386 F.3d 367; United States v. Stoltz (D.Minn. 2004),325 F.Supp.2d 982; United States v. Stancell (D.D.C. 2004),346 F.Supp.2d 204; United States v. Traeger (N.D.Ill. 2004),325 F.Supp.2d 860; Patterson v. United States (E.D.Mich, June 25, 2004), 2004 U.S. Dist. LEXIS 12402. {¶ 20} As explained by the Eleventh Circuit Court of Appeals: {¶ 21} "For a new rule to be retroactive to cases on collateral review * * *, the Supreme Court itself must make the rule retroactive. * * * Additionally, the Supreme Court does not make a rule retroactive through dictum. Multiple cases can, together, make a rule retroactive, but only if the holdings in those cases necessarily dictate retroactivity of the new rule. {¶ 22} "* * * [T]he Supreme Court has not expressly declaredBlakely to be retroactive to cases on collateral review. Moreover, no combination of cases necessarily dictate retroactivity of the Blakely decision. Blakely itself was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review. The same day the Supreme Court decided Blakely, the Court also issued its decision in Schriro v. Summerlin, ___ U.S. ___,124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), holding that Ring v. Arizona,536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which extended application of Apprendi to facts increasing a defendant's sentence from life imprisonment to death, is not retroactive to cases on collateral review. * * * Because Blakely, like Ring, is based on an extension of Apprendi, [defendant] cannot show that the Supreme Court has made that decision retroactive to cases already final on direct review." In re: Dean, supra. {¶ 23} Webb's third assignment of error is therefore overruled. Reversed and remanded. This cause is remanded for further proceedings consistent with the opinion herein. It is, therefore, ordered that appellant recover from appellee 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. Kilbane, J., Concurs. Gallagher, P.J., Concurs in part anddissents in part with separate concurring and dissentingopinion. CONCURRING AND DISSENTING OPINION

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JOURNAL ENTRY AND OPINION Defendant-appellant the Chief of Police, City of Maple Heights, ("Maple Heights") appeals from the judgment of the trial court finding that Maple Heights had not lawfully forfeited a vehicle owned by plaintiff-appellee Broadvue Motors, Inc., D.B.A. Ganley Lincoln Mercury ("Ganley"). Maple Heights assigns the following errors for review: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ANALYZING APPELLANT'S FORFEITURE OF APPELLEE'S VEHICLE UNDER R.C. § 4513.63 (JUNK MOTOR VEHICLES) WHEN IN FACT SAID VEHICLE WAS PROPERLY FORFEITED PURSUANT TO R.C. § 4513.61 (ABANDONED MOTOR VEHICLES). II. THE TRIAL COURT ERRED IN NOT FINDING THAT APPELLANT LAWFULLY FORFEITED APPELLEE'S VEHICLE PURSUANT TO R.C. § 4513.61. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN AWARDING APPELLEE COMPENSATORY DAMAGES WHERE THERE WAS A FAILURE OF PROOF ON DAMAGES. IV. THE TRIAL COURT ERRED IN RULING THAT R.C. § 2744.02(A) DOES NOT PROVIDE APPELLANT GOVERNMENTAL IMMUNITY AGAINST DAMAGES ON APPELLEE'S COMPLAINT. Finding the third assignment to have merit, the judgment of the trial court is affirmed in part and reversed in part. I. On June 3, 1995, a citizen stopped Maple Heights police officers Blaha and Burton to complain about an automobile which had been parked on the street for a couple of days. The officers pulled up to the vehicle in question, a new 1995 Mercury Grand Marquis worth in excess of twenty thousand dollars. The officers discovered that the Grand Marquis had fictitious license plates. Terrence Sanders approached the police officers and explained that the car had been loaned to him by Ganley. Sanders telephoned Ganley and the police dispatcher also contacted Ganley. The dispatcher advised Ganley that the vehicle would be towed and to bring a dealer tag or proof of ownership to retrieve the automobile. The tow report filed by Officer Blaha listed Ganley as the owner. Upon his return to the police station, Officer Blaha telephoned Ganley and spoke to a person who identified himself as the general manager. Officer Blaha informed the general manager of what steps Ganley needed to take to regain possession of the Grand Marquis. On July 3, 1995, Officer Blaha sent a certified letter to Ganley advising Ganley that the Grand Marquis had been impounded as a junk vehicle abandoned on public property. The letter stated the automobile would be at the towing company for ten days and would become the property of Maple Heights if not claimed. The receipt for the certified letter was signed by Andy Tracy, the new car/finance manager at Ganley. On August 10, 1995, Officer Blaha requested that a title search of the vehicle be done. The Ohio Bureau of Motor Vehicles reported it had no record of the Grand Marquis. A certificate of title is not issued until a dealer sells a vehicle to a customer. The dealership has a certificate of origin issued by the manufacturer that is kept until the automobile is retailed. On September 5, 1995, Officer Blaha filled out an unclaimed and abandoned junk motor vehicle affidavit to begin the process of obtaining title to the Grand Marquis pursuant to R.C. 4513.61. The space for the name of the vehicle's owner was left blank. Salvage title to the Grand Marquis was obtained with the Maple Heights Chief of Police listed as owner. Radio equipment was installed in the automobile which was driven by the mayor of Maple Heights and police detectives. In December of 1995, Ganley realized the Grand Marquis was missing from its inventory. Ganley reported the apparent theft to the Middleburg Heights police department. Ganley eventually learned that the automobile was in the possession of the City of Maple Heights. Maple Heights refused to return the Grand Marquis to Ganley upon Ganley's request in November of 1996. On February 19, 1997, Ganley filed a complaint for declaratory judgment asking the trial court to declare the salvage certificate of title to be null and void and declare that Ganley was the owner of the vehicle. Ganley later amended its complaint to add a prayer for damages. After denying both parties' motions for summary judgment, the trial court held a hearing on the matter. The trial court found that the Grand Marquis did not meet the definition for an "abandoned junk motor vehicle" which is set forth in R.C. 4513.63. The trial court concluded that Maple Heights could not convert the automobile to its own use when it knew the vehicle belonged to Ganley. The trial court declared that Maple Heights had no ownership interest in the Grand Marquis and ordered the vehicle returned to Ganley. Maple Heights was ordered to pay Ganley three thousand six hundred dollars ($3,600.00) for rent and five thousand twenty-five dollars ($5,025.00) for mileage. II. Maple Heights' first and second assignments of error will be addressed together. Maple Heights argues the trial court committed reversible error by analyzing its forfeiture of the Grand Marquis under R.C. 4513.63 as a junk vehicle. Maple Heights avers the automobile actually was forfeited pursuant to R.C.4513.61 which governs abandoned vehicles. Maple Heights asserts it fully complied with the dictates of R.C. 4513.61. R.C. 4513.61 requires the police to have a search conducted of the records of the bureau of motor vehicles to discover the owner of the abandoned vehicle and states that notice must be sent to the owner by certified mail. If the vehicle is not claimed within ten days, the vehicle may be disposed of pursuant to R.C. 4513.62. The chief of police must file an affidavit with the county clerk of courts showing compliance with R.C. 4513.61. Once the affidavit is filed, a salvage certificate of title will be issued to the chief of police. If the vehicle is disposed of pursuant to R.C. 4513.62, an affidavit will be executed by the chief of police describing how the vehicle was disposed of and that all the requirements of R.C. 4513.61 were followed. Although the Maple Heights police department did technically follow R.C. 4513.61 by having the bureau of motor vehicles conduct a certificate of title search, Maple Heights admits it knew Ganley owned the vehicle in question. Further, Maple Heights should have been aware that a certificate of title would not be issued for an automobile which had not yet been sold by a dealer. The affidavit executed by Maple Heights to obtain the salvage title did not list an owner. Instead Maple Heights relied on the title search to imply that there was no owner. Maple Heights was aware of the identity of the owner yet basically relied upon a technicality to obtain title to the Grand Marquis. Therefore, Maple Heights did not truthfully fill out the affidavit. The trial court correctly declared the title null and void. Whether the trial court relied upon R.C. 4513.63 or R.C.4513.61, the result is the same. Any error was harmless. The trial court's order returning ownership and possession of the Grand Marquis is upheld. Maple Heights' first and second assignments of error lack merit. III. Maple Heights' third assignment of error challenges the award of damages to Ganley. After the conclusion of counsels' questioning of Ganley's sole witness, general manager Richard Courey, Sr., the trial court asked Courey what the approximate cost would be to lease the Grand Marquis for a month. Courey answered the cost would be between two hundred fifty dollars ($250.00) and three hundred dollars ($300.00) per month. The trial court awarded damages based upon a figure of two hundred dollars ($200.00) a month for Maple Heights' failure to return the Grand Marquis after Ganley's request and fifteen cents ($0.15) per mile for driving the car thirty-three thousand five hundred miles. The plaintiff bears the burden of proving damages. Damages cannot be awarded if the plaintiff fails to meet this burden by presenting adequate proof. Henderson v. Spring Run Allotment (1994), 99 Ohio App.3d 633. Evidence of damages must be shown with a reasonable degree of certainty. A plaintiff may not recover speculative damages. Glenwood Homes, LTD. V. State AutoMut. Ins. Co. (Oct. 1, 1998), Cuyahoga. App. No. 72856, unreported. A plaintiff must prove the extent of his damages to be entitled to compensation. Arko-Plastic v. Drake Industries (1996), 115 Ohio App.3d 221. No evidence was presented at trial at all regarding compensation for added mileage caused by Maple Heights' use of the Grand Marquis. Ganley could not recover these damages for failure to present any proof below on the matter. The trial court also awarded damages for rent based upon the trial court's inquiry as to the cost of a lease. The issue of damages for Maple Heights' use of the vehicle was never addressed by Ganley. In its amended complaint and during trial, Ganley only requested damages for the invoice price of the Grand Marquis. Even so, the trial court awarded damages which were not requested or proven by the plaintiff. The award of the figure of two hundred dollars ($200.00) per month appears to be purely speculative. Ganley offered no proof to support the damages awarded for mileage and for "leasing" the vehicle. Ganley did not ask for these damages. Because there was a failure of proof on the issue, the trial court erred by awarding damages for three thousand six hundred dollars ($3,600.00) for rent and for five thousand twenty-five dollars ($5,025.00) for mileage. If a plaintiff fails to meet its burden of proof on damages, an appeals court will not remand the issue for the correct determination of compensatory damages; rather, the plaintiff is foreclosed from recovering damages.Spalding v. Coulson (Sept. 3, 1998), Cuyahoga App. Nos. 70524 and 70538, unreported. Ganley cannot recover damages for mileage or for Maple Heights' use of the vehicle. Maple Heights' third assignment of error is sustained. IV. In its fourth assignment of error, Maple Heights contends that the trial court erred in finding Maple Heights was not immune from the award of damages under R.C. 2744.02(A). Maple Heights argues that it was engaged in a governmental function when it obtained salvage title to the Grand Marquis, making it immune from liability. The broad immunity from civil liability granted to political subdivisions under R.C. 2744.02(A) is subject to enumerated exceptions which are set forth in R.C. 2744.02(B). In Globe Amer.Cas. Co. v. Cleveland (1994), 99 Ohio App.3d 674, this court held that sovereign immunity will not shield a political subdivision from liability when another provision of the Revised Code expressly imposes liability. See R.C. 2744.02(B)(5). Before Maple Heights could obtain a salvage title to the Grand Marquis, it was required to file an affidavit with the clerk of courts demonstrating compliance with the requirements of R.C.4513.61. It already has been determined that the affidavit Maple Heights filed incorrectly showed that the owner was unknown. Therefore, Maple Heights did not comply with the requirements of R.C. 4513.61. Further, R.C. 2933.41 requires a law enforcement agency which lawfully seizes and keeps property to make a reasonable effort to locate the person entitled to possession of the property and return the property to that person at the earliest possible time. In Globe, supra, this court determined that R.C. 2933.41 controlled with respect to the return of stolen property to the true owner. Similarly, R.C. 2933.41 also may control regarding property lawfully impounded by a law enforcement agency. Maple Heights filed an affidavit under R.C. 4513.61 which was misleading regarding its knowledge of the owner of the Grand Marquis. The correct information may have led to the return of the vehicle to Ganley. Because Maple Heights did not comply with R.C. 4513.61, it had to fulfill the dictates of R.C. 2933.41 and return the vehicle to its proper owner at the earliest possible time. Maple Heights' failure to do so constitutes an exception to the doctrine of sovereign immunity. Accord Globe, supra. Maple Heights' fourth assignment of error is overruled. Judgment affirmed in part, reversed in part, and remanded. This case is affirmed in part, reversed in part and remanded for further proceedings consistent with this journal entry and opinion. It is ordered that appellee recover of appellant one-half of the costs herein taxed. It is ordered that appellant recover of appellee one-half of the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, ADM. J. and TIMOTHY E. McMONAGLE, J.CONCUR. __________________________________ LEO M. SPELLACY JUDGE

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DECISION {¶ 1} Plaintiff-appellant, Vance Vandyke ("appellant"), appeals from the October 17, 2006 entry of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, the City of Columbus, and Columbus Police Officer Michael Shannon (collectively "appellees"). {¶ 2} On October 12, 2005, appellant filed a complaint asserting various causes of action and seeking compensatory damages from appellees based upon an automobile accident that occurred on October 13, 2005 between appellant and Officer Shannon. On *Page 2 November 14, 2005, the City of Columbus filed an answer and counterclaim. Appellees moved for summary judgment on August 18, 2006. On September 27, 2006, the trial court rendered a decision granting appellees' motion for summary judgment finding that appellees were entitled to immunity pursuant to R.C. 2744.02(A) and 2744.03(A)(6), and that no genuine issues of material fact remained to be tried. A judgment entry reflecting said decision was filed on October 17, 2006. Neither the decision nor the judgment entry makes any reference to the counterclaim. While the judgment entry states that it is a "final entry," it does not include any language referenced in Civ.R. 54(B) pertaining to a determination that there is no just cause for delay. {¶ 3} On appeal, appellant raises two assignments of error for our review: ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY GRANTING SUMMARY JUDGMENT TO THE CITY OF COLUMBUS. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY GRANTING SUMMARY JUDGMENT TO OFFICER SHANNON. {¶ 4} In these assignments of error, appellant asserts it was error to grant summary judgment in favor of appellees when genuine issues of material fact exist regarding the applicability of R.C. 2744.02 and2744.03. We do not reach the merits of these assignments of error, however, because we lack jurisdiction to do so. {¶ 5} The question of whether an order is final and appealable is jurisdictional and can be raised sua sponte by an appellate court.Chef Italiano Corp. v. Kent State Univ. *Page 3 (1989), 44 Ohio St.3d 86, 87. Pursuant to Section 3(B)(2), Article IV of the Ohio Constitution, this court's appellate jurisdiction is limited to the review of final orders of lower courts. {¶ 6} "* * * [T]he entire concept of `final orders' is based upon the rationale that the court making an order which is not final is thereby retaining jurisdiction for further proceedings. A final order, therefore, is one disposing of the whole case or some separate and distinct branch thereof." Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, quoting Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St.2d 303, 306. "A judgment that leaves issues unresolved and contemplates that further action must be taken is not a final appealable order." State ex rel.Keith v. McMonagle, 103 Ohio St.3d 430, 2004-Ohio-5580, at ¶ 4, citingBell v. Horton (2001), 142 Ohio App.3d 694, 696. {¶ 7} To be final and appealable, an order that adjudicates one or more but fewer than all the claims or the rights and liabilities of fewer than all the parties, as does the order in the present case, must meet the finality requirements of R.C. 2505.02 and must properly contain the lower court's certification pursuant to Civ.R. 54(B).Noble, supra, at syllabus. R.C. 2505.02 defines a final order as, inter alia, an order that "affects a substantial right in an action that in effect determines the action and prevents a judgment[.]" R.C.2505.02(B)(1). Civ.R. 54(B) provides: When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order *Page 4 or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. {¶ 8} In the case at bar, the trial court never entered judgment on the counterclaim asserted against appellant, nor did the trial court's judgment entry contain Civ.R. 54(B) language that there was no just cause for delay. Thus, the fact that the judgment entry states that it is a "final entry" is immaterial. See Shimko v. Lobe (Apr. 25, 2002), Franklin App. No. 01AP-1113. Without an express determination that there is no just cause for delay, any order, that adjudicates fewer than all the claims does not terminate the action. "Indeed the use of the language `no just reason for delay' in an entry is mandatory under Civ.R. 54(B) and unless such words appear in an entry, the order is subject to modification and is neither final nor appealable." Id., citing Bay W. Paper Corp. v. Schregardus (2000), 137 Ohio App.3d 685,689, citing Noble, supra. See, also, Bell v. Turner, Fourth Dist. No. 05CA10, 2006-Ohio-704; Dutch Maid Logistics, Inc. v. Acuity, Eighth Dist. No. 86600, 2006-Ohio-1077; Hillis v. Humphrey, Fifth Dist. No. 04-CA-06, 2005-Ohio-253. {¶ 9} Because appellee's counterclaims are still pending, and the trial court's judgment entry does not contain the "no just reason for delay" language of Civ.R. 54(B), *Page 5 we are not presented with a final appealable order.1 Accordingly, we lack jurisdiction to consider the appeal, and appellant's appeal must be dismissed. {¶ 10} For the foregoing reasons, appellant's appeal is dismissed. Appeal dismissed. BROWN and TYACK, JJ., concur. 1 The Supreme Court of Ohio has held that Civ.R. 54(B) language is not required to make the judgment final and appealable where the effect of that judgment is to render the remaining claims moot. GeneralAccident Ins. v. Ins. Co. of North America (1989), 44 Ohio St.3d 17, 21;Noble, supra. We note that in this case the judgment of the trial court does not render appellee's counterclaims moot. *Page 1

2016-07-06 06:36:32.178106+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas that found appellant guilty of one count of assault on a peace officer in violation of R.C. 2903.13(A) and (C)(3). For the reasons that follow, this court affirms the judgment of the trial court. {¶ 2} Appellant sets forth two assignments of error: {¶ 3} "I. The jury verdict was against the manifest weight of the evidence because the evidence demonstrated that the appellant did not cause or attempt to cause harm to the police officers. {¶ 4} "II. The trial court failed to instruct the jury on the affirmative defense of self-defense." {¶ 5} On July 19, 2002, appellant was indicted on one count of assault on a peace officer in violation of R.C. 2903.13(A) and (C)(3). Appellant entered a plea of not guilty and the matter was tried before a jury on October 24 and 25, 2002. The jury returned a verdict of guilty on October 25, 2002. The case was set for sentencing on December 16, 2002, and bond was ordered continued. On November 22, 2002, a capias was issued on the request of appellant's probation officer, who stated that appellant had failed to report for his presentence investigation as required and that he had been unable to contact appellant. The capias remained in effect and eventually the matter was referred to the clerk of courts for commencement of bond forfeiture proceedings. The matter was set several times for a bond forfeiture hearing; notices sent to appellant's home were refused. On July 2, 2003, the trial court ordered appellant's bond forfeited. On November 23, 2004, appellant was arrested and taken into custody. On December 8, 2004, appellant appeared before the trial court for sentencing and was ordered to served a term of 17 months in prison. Appellant now appeals from his judgment of conviction. {¶ 6} As his first assignment of error, appellant states that the jury's verdict was against the weight of the evidence. The Supreme Court of Ohio has defined the standard applied to determine 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 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 (1997),78 Ohio St.3d 380 at 387, 1997-Ohio-52, quoting State v. Martin (1983),20 Ohio App.3d 172 at 175. Only if we conclude that the trier of fact clearly lost its way in resolving conflicts in evidence and created a manifest miscarriage of justice will we reverse the conviction and order a new trial. Martin at 175 . {¶ 7} R.C. 2903.13(A) and (C)(3) provide: {¶ 8} "(A) No person shall knowingly cause or attempt to cause physical harm to another or to another's unborn. {¶ 9} "* * * {¶ 10} "(C) Whoever violates this section is guilty of assault. Except as otherwise provided in division (C) (1), (2), (3), (4), or (5) of this section, assault is a misdemeanor of the first degree. {¶ 11} "(3) If the victim of the offense is a peace officer, a firefighter, or a person performing emergency medical service, while in the performance of their official duties, assault is a felony of the fourth degree." {¶ 12} The jury in this case heard the testimony of the arresting officers, appellant's girlfriend, appellant, and several other individuals. {¶ 13} In the early morning hours of June 2, 2002, Officers Charles Williams and Robert Tolles of the University of Toledo Police Department initiated a traffic stop in an attempt to assist a woman who said she had left her car keys in her boyfriend's car after they had an argument. Officer Williams testified that the woman identified appellant's car as her boyfriend's automobile when she saw it at an intersection near the university. The officers decided to stop appellant and question him. Williams stated that the woman then told him she was mistaken, but by that time Officer Tolles had approached appellant's car. Officer Tolles testified that as he pulled over, appellant got out of his car and walked toward the cruiser. Tolles ordered him back into his car and appellant became verbally belligerent. After being told several times, appellant sat in his car, leaving the door open and one leg outside. Tolles became concerned when appellant put his right hand into his pocket and refused to take his hand out when asked. When Tolles reached into the car and put his hand on appellant's, appellant began to struggle. Officer Williams approached to assist and appellant continued to struggle as the officers tried to remove him from his car. Tolles testified that before appellant was handcuffed, all three men fell to the ground and appellant kicked him several times. {¶ 14} Officer Williams testified that after the stop he noticed Tolles was having a "physical altercation" with appellant and approached to help. Williams was told appellant was trying to remove something from his pants pocket. Williams heard Tolles tell appellant to remove his hand from his pocket and appellant refused. He also heard Tolles tell appellant to step out of the car. Williams testified he noticed Tolles was holding appellant's right wrist. Williams then grabbed appellant's left arm to lift him out of the car. Appellant resisted and fought, kicking both of them, but they were able to remove him from the car. During the course of the struggle, the officers and appellant fell into the car and then onto the ground. Both officers used mace several times, and then were able to gain control of appellant. Williams testified he asked for the Toledo Fire Department to respond to treat any injuries. Appellant refused medical treatment. Officer Williams testified he received bruises as a result of the struggle. {¶ 15} Officer James Grothaus, also with the University of Toledo Police Department, testified he responded to the scene and saw appellant on the ground as the officers tried to handcuff him. He heard appellant shouting obscenities and verbal threats. Grothaus testified he saw appellant kick Officer Williams in the back. {¶ 16} James Babka, a lieutenant with the Toledo Fire Department, testified that when he responded to the scene appellant was handcuffed. Appellant was combative and uncooperative and refused medical treatment. He stated appellant had no noticeable injuries. {¶ 17} Irledy Mysinger, appellant's girlfriend, testified she met appellant in a parking lot after she finished work that night. They sat in appellant's car and quarreled. She then got out to go home, accidentally leaving her keys behind. Mysinger testified that by the time she realized she had no keys, appellant had driven away, so she decided to walk to his house. As she was walking, Officer Williams stopped her and asked if she was all right. She explained where she was going and accepted his offer of a ride. Mysinger testified that as they drove she spotted what appeared to be appellant's car. Williams radioed Tolles, who pulled appellant over to see if he had Mysinger's keys. At that point, Mysinger told Williams they had stopped the wrong car and that she did not know appellant. She testified she then saw Tolles grab appellant and "throw him out of the car." Mysinger testified that appellant did not try to hit the officers. Mysinger testified that she told Officer Williams she did not know appellant because she "did not trust [the officer]." {¶ 18} Appellant testified that when Officer Tolles signaled him to pull over, he parked his car, got out and walked toward the cruiser. He stated that when the officer told him to get back in his car he did so immediately. Appellant further testified that when he reached into his pocket for his driver's license, Tolles "got all paranoid" and struck him with his night stick, sprayed him with mace, dragged him out of the car, hit him continuously with the night stick, and sprayed him with mace several more times. Appellant denied doing anything other than try to protect himself. {¶ 19} Officer Tolles testified further that the University of Toledo Police Department does not issue nightsticks and stated he did not have one. {¶ 20} This court has reviewed the entire record, weighed the evidence and all reasonable inferences, and considered the credibility of the witnesses. We are unable to find that the jury clearly lost its way in resolving conflicts in evidence and created such a manifest miscarriage of justice that appellant's conviction must be reversed. Accordingly, appellant's first assignment of error is not well-taken. {¶ 21} In his second assignment of error, appellant asserts the trial court erred by failing to instruct the jury on self-defense. This argument fails for several reasons. First, we note that appellant attempts to support his argument with case law regarding the giving of jury instructions for a lesser included offense, which is totally inapplicable in this case. Second, trial counsel did not request a jury instruction on the affirmative defense of self-defense, thereby effectively waiving any error on that issue. This court has held that "[a] defendant's failure to request a jury instruction or object to its omission normally waives error associated with the instruction absent plain error." State v. Wymer, 6th Dist. No. L-03-1125, 2005-Ohio-1775 at ¶ 27, citing State v. Underwood (1983), 3 Ohio St.3d 12, at syllabus. Further, only errors affecting substantial rights constitute plain error. Crim.R. 52(B). Plain error has been defined as an error without which the outcome of the trial clearly would have been otherwise. Statev. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, at ¶ 53. The facts of this case, as summarized above, clearly do not support a finding that the outcome of appellant's trial would have been otherwise had an instruction on self-defense been given. Accordingly, the failure to instruct the jury on self-defense did not constitute plain error. Based on the foregoing, we find appellant's second assignment of error not well-taken. {¶ 22} On consideration whereof, this court finds appellant was not prejudiced or prevented from having a fair trial and 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, amended 1/1/98. Singer, P.J., Skow, J., Parish, J., concur.

2016-07-06 06:36:32.204942+00

This is an appeal of a DUI conviction and sentence in Medina Municipal Court. The Defendant-appellant assigns three errors: I. THE TRIAL COURT ERRED IN WHEN IT ALLOWED SGT. MEDING TO TESTIFY AT THE TRIAL ABOUT HIS ADMINISTRATION OF THE HORIZONTAL GAZE NYSTAMUS (sic) TEST TO APPELLANT. II. THE TRIAL COURT ERRED IN WHEN IT ALLOWED SGT. MEDING TO TESTIFY AT THE TRIAL ABOUT THE RESULTS OF THE HORIZONTAL GAZE NYSTAMUS (sic) TEST TO HE GAVE TO APPELLANT. III. THE TRIAL COURT ERRED IN WHEN IT ALLOWED SGT. MEDING TO TESTIFY AT THE TRIAL ABOUT HIS OPINION AS THE MEANING OF THE SIX OUT OF SIX SCORE ON THE HORIZONTAL GAZE NYSTAMUS (sic) TEST TO APPELLANT. The charges in this case were presented to a jury. In direct testimony the arresting officer testified as to his schooling at the State Highway Patrol Academy (where a portion of the studies dealt with DUI investigations), a "detection of impaired drivers' school" in both 1976 and 1988. At the last school it was "primarily a class for horizontal gaze nystagmus testing, which was just coming into vogue at that time." T. 25, 26. He also has had training and is a senior operator for the Smith and Wesson breathalyzer, T. 26, and the CMI 5000 instrument. T. 27. The officer has taught DUI at the basic law enforcement academy at Medina Joint Vocational Center. The officer stopped the Appellant after observing a traffic light violation. The car did not stop at first signal but was followed for approximately .3 miles before it stopped in the parking lot of a McDonalds. T. 29, 30. He noticed a "strong odor of alcoholic beverage coming from Mr. Cheyney as I spoke with him [through the open car window]. I also noted that his eyes were very bloodshot." T. 33. Appellant, when asked, denied he had anything to drink. T. 34. When the appellant got out of the car he administered "physical coordination tests, the field sobriety tests[.]" T. 34, 35. Q. Have you been trained in the administration of those tests? A. Yes, sir. Q. Okay. When you administer those tests, Sergeant, do you normally do them in a certain sequence? A. Yes. T. 35. Because of the ice and snowy conditions the officer eliminated the walking and turning tests. He described in substantial detail the other tests and the conduct of the Appellant. Thereafter the officer testified that he administered a horizontal gaze nystagmus test. Q. Okay. Now, have you been trained in the administration of the horizontal gaze nystagmus? A. Yes, sir. T. 38. Thereafter the officer described in detail the content and function of the test. T.38-40. Bench conference was held concerning the applicability of State v. Bresson (1990),51 Ohio St.3d 123. Thereafter the officer testified as to the specifics of what was done in administration of the test and the actions and reactions of the Appellant, after which he concluded that Appellant scored six (6) points on the test. Q. No, based on your training and your experience relative to that singular test, what does that six out of six mean to you? Mr. Campbell: Objection. The Court: Overruled based on my prior ruling. A. It indicates that there's over an 80 percent probability that the subject is under the influence of alcohol. T. 46, 47. Thereafter the officer was questioned about his experience and his observations of Appellant and concluded, over objection: A. I felt that Mr. Cheyney was impaired and that he was under the influence of alcohol at the time of the arrest. T.49. All of the assigned errors address the foundation and testimony of the officer as to that part dealing with the horizontal gaze nystagmus test. Appellant claims favor of Bresson, supra, for each of his postulates. I and II. We conclude that the evidence was sufficient to qualify the foundational, threshold requirements of training and ability to administer the test. The first and second assignments of error are overruled. III. It is clear from an examination of the transcript that the testimony was not based solely on the HGN results. The third assignment of error is overruled. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the County of Medina, Medina Municipal Court, 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. -------------------- JOHN R. MILLIGAN FOR THE COURT SLABY, P. J., BAIRD, J., CONCUR

2016-07-06 06:36:32.261751+00

OPINION This is an appeal by Robert A. Gattis, Appellant, from a judgment of the Bellefontaine Municipal Court denying Appellant's motion to suppress inculpatory statements made by Appellant after he was caught shoplifting at a Kroger grocery store. On May 2, 1997, Scott Hitchings, a Kroger's grocery store security officer, observed Gattis conceal bottles of vitamins under his jacket and attempt to exit the store without paying for them. Hitchings stopped Gattis between the double doors at the store entrance and escorted him back inside the store to the manger's office for questioning. The Bellefontaine Police Department was contacted. Before police arrived, Hitchings proceeded to interview Gattis and fill out a shoplifting report. Three quarters of the way into the process, Officer Jim Tetirick arrived. Officer Tetirick allowed Hitchings to finish his interview and report without his interference and without participating in any conversation. It was during this time and in the presence of Officer Tetirick that Gattis signed an inculpatory statement contained within the shoplifting report written out by Hitchings. At no time was Gattis informed of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436. Officer Tetirick subsequently issued Gattis a summons in lieu of arrest on one count of petty theft, in violation of Bellefontaine City Ordinance 545.05. Gattis entered a plea of not guilty to the charge on May 14, 1997. On June 19, 1997, Gattis filed a motion to suppress any written and oral statements he made while detained by Hitchings and Officer Tetirick on the basis that the statements were obtained as a result of a custodial interrogation without the benefit of Miranda warnings. The trial court denied the motion on July 25, 1997, finding insufficient "state action" to give rise to the rights enumerated in Miranda. Gattis subsequently changed his plea to no contest and was found guilty by the trial court and sentenced, accordingly. Appellant now complains of the following error by the trial court: The trial court erred in denying Defendant-Appellant's motion to suppress the statement made to a store employee and police officer. Appellant contends that the presence of Officer Tetirick at the scene of his detention and interrogation at the Kroger grocery store constituted a "custodial interrogation" prior to which Appellant should have been advised of his Miranda rights. Since Appellant was not advised of his rights before he made incriminating statements to Hitchings, Appellant claims the statements were obtained in violation of the Fifth and Fourteenth Amendments and should have been suppressed by the trial court. The Miranda rule was established to protect the Fifth Amendment rights of persons subjected to custodial interrogation by law enforcement officials. Miranda, 384 U.S. at 444. When determining whether a person is in custody for purposes ofMiranda, a court must examine the totality of the circumstances surrounding the interrogation; however, the ultimate inquiry is simply whether there was an arrest or restraint on freedom of movement of the degree associated with formal arrest. Californiav. Beheler (1983), 463 U.S. 1121, 1125. Appellant argues that his freedom to move about was restrained by the fact that he was forcibly stopped and escorted back to an office inside the Kroger's store by Hitchings. His detainment was continued upon the arrival of Officer Tetirick. Appellant claims he was clearly not at liberty to leave the premise and that he was in police custody at the time the interview was being conducted by Hitchings. Assuming, for the moment, Appellant is correct that he was in police custody at the time Hitchings conducted his interview of Appellant, this alone is not enough to trigger the need forMiranda warnings. It must also be established that there was an "interrogation" initiated by a "law enforcement officer." Miranda,384 U.S. at 444. The Supreme Court of Ohio has held that an employee of a merchant, who detains a suspected shoplifter pursuant to R.C. 2935.041, is not the type of "law enforcement officer" contemplated by Miranda. State v. Bolan (1971), 27 Ohio St.2d 15, 18; State v. Giallombardo (1986),29 Ohio App.3d 279; See, also, State v. Watson (1971), 28 Ohio St.2d 15, paragraph five of the syllabus (statement made to a news reporter by a defendant while in police custody does not warrantMiranda warnings since such questioning is not the result of an interrogation by a law enforcement official). The court in Bolan stated: Essentially this same conclusion has been reached almost uniformly by courts of other jurisdictions. The rationale of these cases is that the duty of giving " Miranda warnings" is limited to employees of governmental agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies; that it does not include private citizens not directed or controlled by a law enforcement agency, even though their efforts might aid law enforcement. Bolan, 27 Ohio St.2d at 18. In the present case, it is undisputed that Hitchings alone asked questions of Appellant and filled out the paperwork which Appellant later signed describing the theft. Officer Tetirick was only present the during the end of Hitchings interview of Appellant and did not in any way participate in the questioning process. Testimony taken at the hearing on the motion to suppress indicated that Hitchings had finished his questioning of Appellant by the time Officer Tetirick arrived at the store and that Officer Tetirick was only the present for the finalization of the store's paperwork reporting the theft. We find these facts do not implicate Miranda warnings since there was no custodial interrogation initiated by a law enforcement officer. Consequently, Appellant's assignment of error is overruled. 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. SHAW, P.J., and HADLEY, J., concur.

2016-07-06 06:36:32.33315+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff-appellant, North Coast Payphones, Inc. ("North Coast"), appeals the trial court's order affirming the decision of defendant-appellee, City of Cleveland Board of Zoning Appeals ("BZA" or the "Board"), to sustain the order of the Cleveland's Commissioner of Assessments and Licenses ("Commissioner"), which rejected forty-three of North Coast's applications for outdoor pay telephone permits.1 North Coast asks this court to "reverse the findings of the lower court and the BZA." Finding no merit to the appeal, we affirm. {¶ 2} The apposite facts are as follows. In 2001, the City of Cleveland ("City") passed Ordinance No. 1989-01, which enacted Chapter 670B of the Cleveland Codified Ordinances ("C.C.O."), pertaining to the regulation of outdoor pay telephones ("payphones"). The ordinance requires, in pertinent part, that the owner of a payphone that is located in a public right-of-way must contract with the City and obtain a permit for installation of the payphone. North Coast contracted with the City, but the Commissioner investigated numerous citizen and council member complaints about the payphones. Based upon the findings of the investigation, the Commissioner notified North Coast that fifty-five of its payphones *Page 2 were in violation of the City's payphone ordinance and ordered the company to remove the phones.2 North Coast appealed the Commissioner's order to the BZA. The BZA set the matter for a public hearing at which the Board voted to sustain the decision of the Commissioner as to forty-three of the fifty-five payphones.3 North Coast filed a notice of appeal with the common pleas court. The common pleas court affirmed the BZA's order, finding that the board's decision was "supported by the preponderance of substantial, reliable, and probative evidence." North Coast then filed its notice of appeal with this court. Standard of Review {¶ 3} In regard to a common pleas court's review of an order from any board of a political subdivision, R.C. 2506.04 provides that the common pleas court "may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record." Dudukovich v. Lorain Metro. Hous.Auth. (1979), 58 Ohio St.2d 202, 207, 389 N.E.2d 1113. However, the trial court "should not substitute its judgment for that of an administrative board * * * unless the court finds that there is not a preponderance of reliable, probative and substantial evidence to support the board's decision." Kisil v. City of Sandusky *Page 3 (1984), 12 Ohio St.3d 30, 34, 465 N.E.2d 848; On Point Prof. Body Artv. Cleveland, Cuyahoga App. No. 87572, 2006-Ohio-5728. In other words, the trial court is to presume that the board's determination is valid unless the party opposing the determination can demonstrate that it is invalid. Rotellini v. West Carrollton Bd. of Zoning Appeals (1989),64 Ohio App.3d 17, 21, 580 N.E.2d 500. {¶ 4} In Henley v. City of Youngstown Board of Zoning Appeals,90 Ohio St.3d 142, 2000-Ohio-493, 735 N.E.2d 433, the Ohio Supreme Court distinguished the standard of review to be applied by common pleas courts and appellate courts in R.C. Chapter 2506 administrative appeals. The Court stated: "The common pleas court considers the `whole record,' including any new or additional evidence admitted under R.C. 2506.03, and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. * * * The standard of review to be applied by the court of appeals in an R.C. 2506.04 appeal is "more limited in scope." Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 465 N.E.2d 848, 852. "This statute grants a more limited power to the court of appeals to review the judgment of the common pleas court only on `questions of law,' which does not include the same extensive power to weigh `the preponderance of substantial, reliable and probative evidence,' as is granted to the common pleas court." Id. "It is incumbent on the trial court to examine the evidence. Such is not the charge of the appellate court. * * * The fact that the court of appeals, or this court, might have arrived at a different conclusion than the administrative agency is immaterial. Appellate courts must not substitute their judgment for those of an administrative agency or a trial court absent the approved criteria for doing so." Lorain City School Dist Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264, 267." Id. at 147. *Page 4 {¶ 5} Thus, this court will only review the judgment of the trial court to determine if the lower court abused its discretion in finding that the administrative order was supported by reliable, probative, and substantial evidence. See Wolstein v. Pepper Pike City Council,156 Ohio App.3d 20, 804 N.E. 2d 75, 2004-Ohio-361. It is based on this standard that we review the assignments of error. Record Before the Common Pleas Court {¶ 6} In the instant appeal, North Coast raises four assignments of error for our review. In the first assignment of error, North Coast argues that the lower court erred in considering all of the documents submitted by the BZA to the court. {¶ 7} R.C. 2506.02 provides that within forty days of the filing of a notice of appeal with a trial court, the officer or body from which the appeal is taken must prepare and file in the trial court "a complete transcript of all the original papers, testimony, and evidence offered, heard, and taken into consideration in issuing the final order, adjudication, or decision." Id. {¶ 8} North Coast claims that the City improperly sent the entire BZA file to the trial court for review. North Coast argues that only two exhibits were entered into evidence at the BZA hearing, but more than fifty documents and photos were made part of the trial court record. North Coast claims that this action was improper because North Coast had no opportunity to refute or challenge any of the additional documentation at the initial hearing and because the trial court should not have seen or relied on that information. *Page 5 {¶ 9} As an initial matter, we note that North Coast filed an objection to the record in the trial court, which therefore preserved this issue for our review. The trial court did not rule on the objection, however, so we will assume the lower court has overruled the objection. {¶ 10} As North Coast notes, the City did not formally introduce any exhibits at the hearing. The traditional rules of evidence are relaxed in administrative hearings. Haley v. Ohio State Dental Bd. (1982),7 Ohio App.3d 1, 453 N.E.2d 1262. North Coast argues that it was unable to refute any of the documents, but it makes no claim that it did not possess copies of the documents at the time of the hearing nor that the BZA filed documents that were not "taken into consideration." {¶ 11} From our review of the transcript, we find few instances of formal introduction of any of the disputed documents or photos. The transcript indicates that the BZA was looking at the inspection reports and accompanying photos during the testimony as the board and witnesses repeatedly referred to the inspection reports and photos throughout the hearing. Although it may have been preferable for the hearing to have proceeded like the customary civil trial, we find no requirement that the hearing proceed as such. The statute required the BZA to file "a complete transcript of all the original papers, testimony, and evidence offered, heard, and taken into consideration" in rendering its final order. R.C. 2506.02. Thus, the board was required to submit all the documents which it considered in reaching its decision. *Page 6 {¶ 12} We find that the trial court did not err in considering the documents submitted by the BZA. The first assignment of error is overruled. Lower Court's Abuse of Discretion {¶ 13} In the second assignment of error, North Coast argues that the lower court abused its discretion in affirming the decision of BZA that the City acted properly in rejecting North Coast's permit applications. {¶ 14} North Coast is essentially asking this court to thoroughly review the evidence presented at the BZA hearing and to substitute our judgment for the BZA. It makes no argument demonstrating the trial court's error. {¶ 15} Our review is limited in scope and does not include the same extensive power to weigh the evidence as is granted to the common pleas court. Henley, supra at 147, citing K/s/7 v. Sandusky (1984),12 Ohio St.3d 30 at fn. 4. Because our review is limited to reviewing the trial court's decision and not reviewing the evidence presented to the BZA, we overrule the second assignment of error. Due Process Violation and Bias {¶ 16} In the third assignment of error, North Coast argues that the trial court abused its discretion when it failed to find that North Coast was denied due process when the BZA limited witness testimony. In the fourth assignment of error, North Coast argues that the lower court erred in failing to find that the BZA acted with bias. *Page 7 {¶ 17} In Sohn v. Bd. of Edn. of Warrensville hits. School Dist. (1974), 39 Ohio Misc. 108, 111, 315 N.E.2d 848, citing 2 American Jurisprudence 2d 166, Administrative Law, Section 353, we stated: "In administrative proceedings of a judicial or quasi-judicial character, the liberty and property of the citizen must be protected by the observance of the rudimentary requirements of fair play. Whether a person has been deprived of due process of law by the action of an administrative agency depends upon whether it acted contrary to the statutes and rules and with arbitrary and unreasonable discrimination." {¶ 18} North Coast first claims that it was denied due process because it was not allowed to fully set forth its arguments on each permit application due to the time constraints set at the hearing. {¶ 19} R.C. 2506.03 states, in pertinent part, that the trial court "shall be confined to the transcript [as] filed * * * unless it appears, on the face of that transcript or by affidavit filed by the appellant, that one of the following applies: (1) [t]he transcript does not contain a report of all evidence admitted or proffered by the appellant. (2) [t]he appellant was not permitted to appear and be heard in person, or by the appellant's attorney, in opposition to the final order, adjudication, or decision, and to do any of the following: (a) Present the appellant's position, arguments, and contentions; (b) Offer and examine witnesses and present evidence in support; *Page 7 (c) Cross-examine witnesses purporting to refute the appellant's position, arguments, and contentions; (d) Offer evidence to refute evidence and testimony offered in opposition to the appellant's position, arguments, and contentions; (e) Proffer any such evidence into the record, if the admission of it is denied by the officer or body appealed from." {¶ 20} Before any deficiencies listed in R.C. 2506.03 may be cured at the common pleas level, the statute specifically requires that said deficiencies must either appear on the face of the transcript or be brought to the attention of the court by affidavit. Schoell v.Sheboy (1973), 34 Ohio App.2d 168, 172, 296 N.E.2d 842. {¶ 21} First, we note that North Coast fails to cite any authority for its proposition that it must be allowed a certain amount of time to argue before the BZA. In its brief, North Coast sets forth that evidence which it would have offered had it been allowed to fully place its arguments on the record during the hearing. However, we note that no proffer was made regarding that testimony at the hearing; therefore, we are unable to consider those arguments on appeal. Moreover, the record indicates that the BZA placed the three-minute time limit on witnesses for both sides and repeatedly allowed witnesses to exceed the time limit. Finally, a review of the portions of the transcript transmitted in the instant appeal reveals that North Coast never objected to the time limit during the hearing related to the instant case.4 Since it is not apparent from the face of the transcript that the BZA prevented North Coast *Page 8 from presenting its arguments and evidence, and North Coast did not file an affidavit with the trial court in support of its position, the trial court was limited to the transcript filed by the BZA. {¶ 22} Secondly, North Coast argues that the lower court erred when it failed to find that the BZA acted with bias. {¶ 23} Although due process entitles an individual in an administrative proceeding to a fair hearing before an impartial tribunal, a substantial showing of personal bias is required to disqualify a hearing officer or to obtain a ruling that the hearing is unfair. Staschak v. State Med. Bd. of Ohio, Franklin App. No. 03AP-799,2004-Ohio-4650, citing St. Anthony Hosp. v. U.S. Dept. of Health HumanServ. (C.A. 10, 2002), 309 F.3d 680, 711; see also Broadway Video v.Cleveland Bd. of Zoning Appeals (June 12, 1997), Cuyahoga App. No. 71184 (holding that "there must be evidence of bias or prejudice in the manner in which an administrative hearing is conducted in order to support a denial of due process"). The party alleging a disqualifying interest bears the burden of demonstrating that interest to a reviewing court.Ohio State Bd. of Pharmacy v. Poppe (1988), 48 Ohio App.3d 222, 229,549 N.E.2d 541. {¶ 24} In support of its argument, North Coast cites a portion of the transcript that is not part of the record in the instant case. That transcript page is in the record of one of the aforementioned companion cases; however, it is insufficient for North *Page 9 Coast to merely cite to a portion of the transcript that was submitted in another appeal. {¶ 25} North Coast complains in its brief that the BZA failed to file germane portions of the transcript, but North Coast failed to file an affidavit with the trial court to supplement the record. If North Coast wanted the trial court to consider a portion of the transcript not filed by the BZA, it was incumbent upon North Coast to do more than merely attach an unidentified transcript page as an exhibit. {¶ 26} Moreover, North Coast filed no affidavit of deficiency with the trial court nor do we perceive any deficiency on the face of the transcript. North Coast has not demonstrated that the additional transcript should have been added to the record pursuant to any of the reasons set forth in R.C. 2506.03, nor did North Coast file an affidavit illustrating this point. Thus, we find that the trial court correctly limited its review of the propriety of the administrative body's ruling to the transcript filed with the appeal below. {¶ 27} There is nothing in the limited record before us which convinces us that North Coast's administrative hearing was conducted unfairly. We have reviewed the transcript of the administrative hearing and find no discernable bias or prejudice on the part of the BZA. {¶ 28} Therefore, the third and fourth assignments of error are overruled. Because North Coast has failed to show that the trial court abused its discretion in its review of the BZA decision, the judgment is affirmed. *Page 10 It is ordered 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 common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANK D. CELEBREZZE, JR., A.J. and MELODY J. STEWART, J., CONCUR 1 North Coast has filed two other appeals relating to the rejection of its pay telephone permits and the City has filed one related appeal.North Coast Payphones, Inc. v. Cleveland, Cuyahoga App. No. 88190,North Coast Payphones, Inc. v. Cleveland, Cuyahoga App. No. 88244,North Coast Payphones, Inc. v. Cleveland, Cuyahoga App. No. 88324. 2 It appears from the record that most, if not all, of the rejected permits were for already existing payphones. 3 The number of rejected permits was redued from fifty-five to forty-three because the Commissioner's original order listed duplicates and North Coast withdrew its appeal as to five of the rejected permits. 4 Although we note that North Coast repeatedly objected to the time limit in other portions of the transcript, those portions of the transcript are not a part of the record in the instant case. *Page 1

2016-07-06 06:36:32.491399+00

OPINION In this timely appeal Edward Bettem ("Appellant") challenges the Belmont County Court of Common Pleas finding that he is a sexual predator as set forth under R.C. § 2950.09. In the discussion that follows this Court affirms the judgment of the trial court. On June 6, 1996, Appellant was sentenced to an aggregate term of imprisonment of not less than 83 nor more than 203 years after a jury found him guilty of one count of rape with a firearm specification and seven counts of kidnaping. The charges stemmed from a 1992 incident during which Appellant attacked his former girlfriend, Meralin Crane, and raped Crane's friend, Carol. On the afternoon of August 15, 1992, Appellant appeared at Carol's house in Shadyside, Ohio. Ms. Crane was there with her children, who were playing with her friend's children. Altogether, there were five children, all under the age of eleven, in the house at the time. After his arrival, Appellant drew a gun, pointing it at Carol's head. After binding the women's hands and feet, Appellant taped their mouths shut and forced them into a bedroom. The children were present during this undertaking. Appellant then forced the children into the bedroom closet and secured the door with pieces of furniture. Then, over a span of about two hours, Appellant proceeded to sexually violate the women in one fashion or another. Their children, trapped in the nearby closet, witnessed the attacks through small slats in the closet's door. Appellant eventually left, but before doing so he threatened to kill them all if anyone tried to leave or get help. Carol managed to escape through a window and ran naked to the home of a neighbor who promptly contacted the police. Appellant was charged with rape, felonious sexual assault and kidnaping, in the wake of the attack. After a jury trial, during which Appellant appeared pro se, he was found guilty on most counts. On appeal, however, this Court reversed and remanded the matter for a new trial because the record did not reflect that Appellant was properly admonished prior to waiving his right to counsel. See State v. Bettem I (August 30, 1995), Belmont App. No. 93-B-6, unreported. Following a second trial where Appellant was represented by counsel, a jury convicted him on one count of rape with a firearm specification and seven counts of kidnaping. The trial court then imposed consecutive terms of ten to twenty-five years on each count for a total sentence of not less than 83 nor more than 203 years. We affirmed his conviction and sentence in State v. Bettem II (January 15, 1999), Belmont App. No. 96-BA-39, unreported. The state later sought to have Appellant classified as a sexual offender in accordance with R.C. § 2950.01. On April 30, 2001, the matter proceeded to a hearing. Appellant insisted on representing himself at this hearing. There, he argued somewhat inartfully that his conviction and sentence were voided by the enactment of Senate Bill 2, which, among other things, replaced the former sentencing structure with determinate sentencing. (Tr. p. 2). According to Appellant, he could not be adjudicated a sexual offender because the new law did not apply. Furthermore, Appellant maintained, he should not be forced to serve the balance of his sentence, which he claimed was now void. The trial court disagreed and attempted to explain to Appellant the consequences of a sexual offender classification. Appellant interjected, however and insisted that the trial court recuse itself to avoid "grand constitutional misconduct." (Tr. p. 6). When the trial court refused, Appellant declared that he no longer wished to participate in the hearing, stating, "[t]he Belmont County Sheriff's Department can remove me, because I will not go any further at this time." (Tr. p. 6). The trial court granted Appellant's request, had him removed from the courtroom, and proceeded to conduct the hearing in his absence. The state called Shadyside's Chief of Police, Russell Patt, who participated in the investigation of the kidnaping and rape offenses for which Appellant was ultimately convicted. Chief Patt testified about the egregiousness of the offense. According to Chief Patt, Appellant used force and threats of force to accomplish his crimes. Specifically, Chief Patt recalled that Appellant had used a gun and a knife to commit the offenses. (Tr. p. 8). He recounted the offensive nature of the sexual conduct involved, indicating that Appellant had tortured one of the victims with a vibrator. (Tr. p. 9). Compounding the aggravating nature of the offenses was the fact that the children, locked in a closet in the very room where the attacks took place, were forced to witness the sights and sounds of the attacks through the slats in the closet door. (Tr. p. 9). Chief Patt went on to detail the emotional trauma suffered by the victims in the aftermath of the incident. All of the victims, children and adults, have undergone extensive psychological therapy in the wake of the incident. The marriage of one of the adult victims failed, apparently as a result of Appellant's attack. In sum, Chief Patt believed that in all his years with the Shadyside Police Department, this was one of the worst crimes he had encountered. (Tr. p. 10). At the conclusion of Chief Patt's testimony the trial court found, based upon clear and convincing evidence, that Appellant met the criteria for a sexual predator classification. (Tr. p. 10). On May 11, 2001, Appellant filed his notice of appeal. Appellant's pro se brief fails to conform in any meaningful sense to the requirements set forth under App.R. 16(A). The pleading is a vituperative and largely unfocused condemnation of the lengthy aggregate sentence he received as well as an assault on the overall fairness of the sexual classification hearing. Given the brief's complete failure to conform to the dictates of App.R. 16(A), this Court may simply dismiss this appeal without reaching its merits. Nevertheless, given the fact that the brief was prepared without assistance of legal counsel and in the interests of justice, we will exercise our discretion and attempt to address the merits of the issues attempted to be raised. See State v. Young, 3rd Dist. No. 4-01-18, 2002-Ohio-406. We are hampered in that Appellant's brief does not provide explicit assignments of error as required under App.R. 16(A)(3). Close examination of the entire document does reveal essentially three areas of complaint. First, Appellant maintains that the enactment of the so-called "truth in sentencing law" makes his indeterminate sentence of 83 to 203 years, imposed before that law became effective, invalid. According to Appellant, under this state's new felony sentencing guidelines, the longest term he can receive is ten years, the maximum sentence allowable for a felony of the first degree. Consequently, Appellant claims that the ten to twenty-five year terms the trial court imposed are invalid. Appellant further proposes that the trial court erroneously imposed his sentences to run consecutively where he was convicted of related offenses of similar import, which were not committed with a separate animus. (Appellant's Brf. pp. 1, 3). Based on this, Appellant is seeking his immediate release. In his second challenge to the proceedings in the trial court, Appellant contends that R.C. § 2950, the law under which he was classified a sexual predator, violates his constitutional rights to due process, equal protection, and the ex post facto clause. Other than complaining generally about a, "GRAND miscarrage of justic," (sic), Appellant fails to explain in what respect the trial court proceedings violated his rights to due process or equal protection. Rather, Appellant complains that the retroactive application of the new sentencing law which apparently includes the provision under which he was deemed a sexual predator violates the constitution's ex post facto clause. Appellant thirdly argues that his classification as a sexual predator was contrary to the manifest weight of the evidence. As Appellant puts it, "Even if the Defendant was under the knew (sic) law as he should be, he can not be classified as a suxual (sic) preditor (sic) his case does not support these findings." (Appellant's Brf. p. 2). This Court notes that Appellee has not filed a brief in this case. Consequently, under App.R. 18(C) this Court may accept Appellant's statements of the facts and issues as correct and reverse the matter if Appellant's brief reasonably appears to support reversal. Our examination of the record shows that it does not. Appellant's first two arguments are easily addressed. This Court has no jurisdiction to review Appellant's complaint concerning the validity of his sentence. Any appeal concerning sentencing issues is untimely. This is an appeal from the trial court's later order concluding that Appellant is a sexual predator. Therefore, we are confined to a review solely on issues surrounding that determination. Moreover, in seeking a reduction or modification of his sentence and his immediate release, Appellant overlooks the fact that this Court has already affirmed his conviction and the admittedly lengthy sentence the trial court imposed in Bettem II, supra. This Court has once held that the trial court did not err in concluding that the offenses (seven counts of kidnaping involving different victims, one count of rape, and a firearm specification) each involved a separate animus. Consequently, we held that the trial court did not err in imposing consecutive, rather than concurrent, sentences. Since this Court has already addressed the propriety of Appellant's sentence, res judicata bars reconsideration of the issue now. See, Stateex rel. Carroll v. Corrigan, (2001), 91 Ohio St.3d 331, 332. Even if we were to address the merits of such a challenge, we would hold against Appellant. The "truth in sentencing law," upon which Appellant grounds his challenge, does nothing to alter or invalidate this Court's conclusion inBettem II that the trial court's decision to impose consecutive sentences was correct. Appellant's second contention, that R.C. § 2950 violates the federal constitution's ex post facto clause, was addressed by the Ohio Supreme Court in State v. Cook (1998), 83 Ohio St.3d 404. The Cook Court unanimously held that R.C. § 2950 did not violate the ex post facto clause because it served solely a remedial, and therefore non-punitive, purpose of protecting the public. In so concluding, the Court recognized, "that the notification requirements may be a detriment to the registrant, but the sting of public censure does not convert a remedial statute into a punitive one." Id. at 423; citing Dept. of Revenue ofMontana v. Kurth Ranch (1994), 511 U.S. 767, 777. Appellant's challenge to the constitutionality of the statute under the due process and equal protection clauses was similarly resolved to the contrary in State v.Williams (2000), 88 Ohio St.3d 513. Consequently, Appellant's constitutional challenges must fail. Appellant's third contention, essentially challenging the weight of the evidence presented at his sexual offender classification hearing, also lacks merit. A review of the record in this case demonstrates that the trial court did not err in concluding that Appellant was properly classified a sexual predator as contemplated under R.C. §2950.01(E). R.C. § 2950.01(E) provides that an individual who has been convicted of, or entered a guilty plea to, a sexually oriented offense may be deemed a sexual predator if the state demonstrates by clear and convincing evidence that the offender is likely to engage in such conduct in the future. Clear and convincing evidence is that which, "produces in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established." State v. Eppinger (2001),91 Ohio St.3d 158, 164. Persons who are so adjudicated must thereafter register with the sheriff in the county of residence unless the trial court issues an order pursuant to R.C. § 2950.09 removing the sexual predator status. In determining whether the sexual predator label properly applies to an offender, the trial court may consider a variety of factors, including but not limited to the following: "(a) The offender's age; "(b) The offender's prior criminal record, regarding all offenses, including, but not limited to, all sexual offenses; "(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed; "(d) Whether the sexually oriented offense for which sentence is to be imposed involved multiple victims; "(e) Whether the offender used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting; "(f) If the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders; "(g) Any mental illness or mental disability of the offender; "(h) The nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; "(i) Whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made one or more threats of cruelty; "(j) Any additional behavioral characteristics that contribute to the offender's conduct." R.C. § 2950.09(B)(2). The trial court must consider all of the above-mentioned factors in determining whether a defendant is a sexual predator. State v. Qualls (Mar. 4, 1999), Cuyahoga App. No. 72793, at p. 5. Such consideration requires the court, "to reflect on [and] think about with a degree of care or caution," these factors as they relate to a defendant. State v.Thompson (2001), 92 Ohio St.3d 584, 588, fn. 1, quoting, Webster's Third New International Dictionary (1986) at 483. Nevertheless, the list of factors under R.C. § 2950.09(B)(2) is not exhaustive and each case is driven by its own facts. State v. Lozano (2001), 90 Ohio St.3d 560, 562. Rigid rules generally have no place in determining whether an offender is a sexual predator as contemplated under R.C. § 2950.01(E). State v. Robertson (Feb. 17, 2002), Hancock App. No. 5-01-31, unreported. Therefore, the trial court can consider any evidence it deems relevant in determining whether an offender is a sexual predator. Thompson, supra, at 588. Further, an offender may be properly classified as a sexual predator even if his behavior conforms to only one or two of the statutory factors noted above, "so long as the totality of the relevant circumstances provides clear and convincing evidence that the offender is likely to commit a future sexually-oriented offense. State v. Wilkinson, 1st Dist. No. C-010229, 2002-Ohio-1032; quoting, State v. Randall (2000),141 Ohio App.3d 160. In adjudicating a defendant under R.C. § 2950, the trial court is not required to formally parrot the criteria set forth in R.C. §2950.09(B)(2). The record need only reflect that the court "consider[ed] all relevant factors * * * in making his or her findings." State v.Cook, supra at 426. Accordingly, the record, including the transcript of the sexual offender hearing and/or the court's judgment entry resulting from the hearing, must include a general discussion of the factors so that the substance of the determination can be properly reviewed for purposes of appeal. State v. Burke (Sept. 21, 2000), Franklin App. No. 00AP-54, unreported, at 4-5. In the instant case, Appellant first chose to represent himself at the sexual offender classification hearing, then refused to participate altogether when the trial court judge predictably declined his improper demand that she recuse herself. (Tr. p. 6). As a consequence, Appellant offered nothing to rebut the state's claim that his conduct warranted his classification as a sexual predator. In support of the sexual predator classification, the state relied on the facts underlying the 1992 rape and kidnaping charges. Chief Russell Patt underscored the violent and unusually horrific nature of the incident and the lasting damage it caused to the victims. When it concluded that the evidence clearly and convincingly demonstrated that Appellant was a sexual predator, the trial court stated as follows: "This Court agrees with Officer Patt's assessment that this is one of the most heinous and brutal sex offenses that this county has experienced. The total disregard for the mental and physical well being of all persons, adults and children, that are named in the Indictment is without comparison. The fact that the Defendant raped and sodimized (sic) the victim in this case and made the victim's friend watch all while the children were locked in a closet in the same room makes this offender's conduct the most serious of its kind. Furthermore, the fact that a gun was used only exacerbates an already horrible situation." (Judgment Entry, May 11, 2001). The shear ugliness and brutality of Appellant's conduct, viewed in conjunction with Appellant's obvious disregard for the impact this dreadful undertaking might have on the five children forced to watch it, indicate that a sexual predator classification was proper. Seven individuals were cruelly victimized and terrorized by this incident. A psychological assessment of Appellant, prepared in 1993 before his first trial, further evidences that Appellant has a lengthy history of mental illness that, to date, does not appear to have been addressed. In enacting the sex offender registration and reporting legislation at issue in this case, the General Assembly explicitly designated the measure to, "protect the safety and general welfare of the people of this state," and that the "* * * classification, registration, and notification requirements in H.B. 180 are a means of assuring public protection." State v Williams, supra at 518; and See Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560 ("H.B. 180"). Consequently, the General Assembly concluded that if the public is provided with notice and information about sexual predators, habitual sex offenders, and other individuals convicted of sexually oriented offenses as defined in R.C. § 2950.01, citizens can inform and prepare themselves and their children for the release from confinement of a sex offender. R.C. § 2950.02(A)(1). Protection of the public from sexual predators and habitual sex offenders who pose a high risk of recidivism is of "paramount governmental interest." Id. Based on the record presented, the trial court's conclusion that Appellant's case warranted such a measure was not unjustified. We must overrule Appellant's complaints of error and we hereby affirm the judgment of the Belmont County Court of Common Pleas. Donofrio, J., concurs. DeGenaro, J., concurs in judgment only; see concurring in judgment only opinion.

2016-07-06 06:36:44.143238+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas denying appellants' motion for revision of court costs. For the reasons set forth below, this court affirms the judgment of the trial court. {¶ 2} Appellants, Country Estates of Wood County and Mary Ann Robon, set forth the following sole assignment of error: {¶ 3} "The trial court erred and/or abused its discretion in taxing appellants for the appellees' costs of service by publication on non-appearing defendants." {¶ 4} On February 7, 2002, appellees filed a complaint to quiet title to a parcel of land in Wood County, Ohio. On February 28, 2002, appellants filed a joint answer and counterclaim. On June 16, 2003, appellees filed for summary judgment. On September 5, 2003, appellees' motion for summary judgment was granted. On July 1, 2004, the initial granting of summary judgment to appellees was reversed by this court. On January 12, 2005, the matter proceeded to jury trial. The jury ruled in favor of appellees. {¶ 5} On February 17, 2005, appellants appealed the jury verdict. On January 13, 2006, this court affirmed the trial court jury verdict. On March 20, 2006, appellants filed a post-judgment motion for revision of costs, contesting that portion of the costs attributable to service by publication on non-appearing codefendants. Appellants' motion for revision of costs was denied. Appellants filed a timely notice of appeal. {¶ 6} The issue before this court on appeal is narrow and concise. Appellants dispute the propriety of the trial court's inclusion of the costs of service by publication on non-appearing codefendants against appellants. The amount in controversy is $1,251.30. This is the expense sustained by the clerk in perfecting service by publication in the Bowling Green Sentinel Tribune upon non-appearing codefendants. {¶ 7} In their assignment of error, appellants claim the trial court abused its discretion by imposing these costs upon appellants. Appellants succinctly summarized the dispute in captioning their brief, "We lost our land and now we have to pay for what?!!" {¶ 8} Appellants later concede that they too had similarly done service by publication against non-appearing defendants. The crux of appellants' claim that the trial court abused its discretion is their assertion that the trial court lacked authority to tax the disputed publication expenses against appellants. Appellants furnish no relevant legal authority in support of this position. {¶ 9} Civ.R. 54(D) establishes a trial court's authority to award costs to the prevailing party in contested litigation. Civ.R. 54(D) states, "Except when express provision therefore is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs." Civ.R. 54(D) clearly vests the trial court with the discretion to award costs to a prevailing party against an adverse party. Civ.R. 54(D) does not in any way curb or preclude the authority of the court to impose costs against the non prevailing party such as those in dispute. Similarly, there is no case law suggesting the imposition of such costs is improper. {¶ 10} This court consistently abides by the principle that it may not substitute its judgment for that of the trial court absent an abuse of discretion. State v. Baumgartner, 6th Dist. No. OT-02-029, 2004-Ohio-3908, at ¶ 44. It is axiomatic that an abuse of discretion finding demands more than a mere error of law or judgment. Such a finding requires the trial court's attitude be so arbitrary or unconscionable that it is grossly violative of fact or logic. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,219. {¶ 11} We have thoroughly reviewed the record in this case. We find no material, factual, or compelling evidence in the record establishing that the trial court's award of the costs of service by publication upon non-appearing defendants against appellants constituted an abuse of discretion. While it is clear that appellants are disgruntled at the notion of having to incur the costs, the trial court did not abuse its discretion. Appellants' assignment of error is found not well-taken. {¶ 12} On consideration whereof, the judgment of the Wood County Court of Common Pleas is affirmed. Appellants are 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 Wood 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. Pietrykowski, J., Parish, J., Glasser, J., Concur. Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

2016-07-06 06:36:33.029121+00

DECISION {¶ 1} Relator, Shawn F. Fleming ("relator"), an inmate of the London Correctional Institution commenced this original action requesting this court to issue a writ of prohibition against respondents, the Ohio Adult Parole Authority and the Ohio Adult Parole Board ("respondents"), enjoining respondents from placing relator on post-release control. {¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals, this court referred this matter to a magistrate, who issued a decision including findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate's decision recommends denial of relator's petition because he failed to comply with the mandatory filing requirements of R.C.2969.25(A). Specifically, relator failed to file an affidavit listing each civil action or appeal he has filed in the past five years. {¶ 3} Relator responded to the magistrate's decision by filing a motion for reconsideration to the magistrate's findings and response to respondents' motion to dismiss, which we interpret to be objections to the magistrate's decision. In his objections, relator urges the court to proceed to a judgment on the merits of his claim, rather than dismissing his petition on "mere technicalities." Relator also attached an affidavit stating that he has not commenced any civil action or appeals against government entities or state employees within the past five years or at any other time. {¶ 4} First, we question the accuracy of relator's affidavit as relator commenced an action seeking the same relief against these same respondents on October 23, 2003. See State of Ohio exrel. Fleming v. Ohio Adult Parole Auth. (Mar. 2, 2006), Franklin App. No. 03AP-1061. Second, R.C. 2969.25(A) requires an inmate to file the affidavit "[a]t the time that an inmate commences a civil action." The filing requirements of R.C. 2969.25 are mandatory, and failure to meet these requirements is grounds for dismissal. State ex rel. Washington v. Ohio Adult Parole Auth. (1999), 87 Ohio St.3d 258; State ex rel. Zanders v. Ohio ParoleBd. (1998), 82 Ohio St.3d 421; and State ex rel. Alford v.Winters (1997), 80 Ohio St.3d 285. {¶ 5} Finding no error of law or other defect on the face of the magistrate's decision, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law therein. In accordance with the magistrate's decision, relator's requested writ of prohibition is sua sponte dismissed. Action dismissed. Sadler and Travis, JJ., concur. APPENDIX A IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Shawn F. Fleming, : Relator, : v. : No. 03AP-1279 Ohio Adult Parole Authority : (REGULAR CALENDAR) Ohio Adult Parole Board, : Respondents. : MAGISTRATE'S DECISION Rendered on January 21, 2004 Shawn F. Fleming, pro se. Jim Petro, Attorney General, for respondents. IN PROHIBITION ON SUA SPONTE DISMISSAL {¶ 6} In this original action, relator, Shawn F. Fleming, an inmate of the London Correctional Institution, requests that a writ of prohibition issue against respondent Ohio Adult Parole Authority. Findings of Fact: {¶ 7} 1. On December 26, 2003, relator, Shawn F. Fleming, an inmate of the London Correctional Institution, filed this original action against respondent Ohio Adult Parole Authority. {¶ 8} 2. Relator has not filed an affidavit regarding prior actions as required by R.C. 2969.25(A). Conclusions of Law: {¶ 9} It is the magistrate's decision that this court sua sponte dismiss this action on grounds that relator has failed to comply with the mandatory requirements of R.C. 2969.25(A). {¶ 10} R.C. 2969.25(A) requires an inmate to file, at the time he commences a civil action against a government entity or employee, an affidavit listing each civil action or appeal that he has filed in the past five years, providing specific information regarding each action or appeal. Relator has failed to file an affidavit listing the civil actions or appeals that he has filed within the past five years. {¶ 11} Compliance with the provisions of R.C. 2969.25 is mandatory and failure to satisfy the statutory requirements is grounds for dismissal of the action. State ex rel. Washington v.Ohio Adult Parole Auth. (1999), 87 Ohio St.3d 258; State exrel. Zanders v. Ohio Parole Bd. (1998), 82 Ohio St.3d 421;State ex rel. Alford v. Winters (1997), 80 Ohio St.3d 285. {¶ 12} Relator's failure to comply with the mandatory requirements of R.C. 2969.25 is grounds for dismissal of the instant action. {¶ 13} Accordingly, it is the magistrate's decision that this court sua sponte dismiss this action.

2016-07-06 06:36:33.200691+00

JOURNAL ENTRY and OPINION Willie Drake, defendant-appellant, appeals pro se from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CR-325208, in which the trial court denied defendant-appellant's petition for postconviction relief. Defendant-appellant assigns a single error for this court's review. Defendant-appellant's appeal is not well taken. On January 12, 1996, defendant-appellant was convicted by a jury of aggravated burglary, felonious assault, having a weapon while under disability, possession of criminal tools and aggravated robbery. This court affirmed defendant-appellant's convictions on direct appeal in State v. Drake (Jan. 30, 1997), Cuyahoga App. No. 70257, unreported. In its journal entry and opinion, this court set forth the following relevant facts: At trial, the state called Donald Norwood, the victim, who testified that appellant entered his home after Lionial Drake had gained entry under the pretense of using the phone. Norwood testified that appellant helped to handcuff him, hit him in the head with his gun, and burned him with a cigarette lighter in an attempt to make him disclose the location of any money or valuables in his home. The state presented three law enforcement officers. Special Agent Douglas Williams, a Federal Bureau of Investigation agent, testified that he helped Norwood obtain the indictment of appellant in 1995. Detective Arsie Taylor, a Cleveland Policeman, who investigated the case, and Detective Tommy Hall, a Cleveland Policeman, who, as a patrol officer, initially investigated the robbery. The state also called Sean Hudson and Willie Hudson, neighbors of the victim. They were the first to assist Norwood after the robbery. Willie Hudson testified that he saw the three assailants walking away from Norwood's home; that he was able to identify Lionial Drake; but that he did not see the other men well enough to identify them. The defense did not present any evidence. Id. at 1. On June 18, 1997, the Ohio Supreme Court denied defendant-appellant's leave to appeal and dismissed the appeal due to the lack of any substantial constitutional question for review. See State v. Drake (1999), 86 Ohio St.3d 1438,713 N.E.2d 1049. On October 2, 1996, defendant-appellant filed his first petition for postconviction relief pursuant to R.C. 2953.21. Defendant-appellant maintained that he was denied the constitutional right to effective assistance of counsel due to trial counsel's failure to pursue an alibi defense. The trial court dismissed defendant-appellant's petition for postconviction relief on October 31, 1996. On June 30, 1998, the trial court issued findings of fact and conclusions of law relating to defendant-appellant's first petition for postconviction relief. Subsequently, on July 16, 1998, defendant-appellant filed his second petition for postconviction relief pursuant to R.C.2953.21 in which he once again alleged that he was denied the right to effective assistance of counsel due to trial counsel's failure to pursue an alibi defense. On February 3, 1999, the trial court issued its second findings of fact and conclusions of law in which it determined that the purported failure to present an alibi defense did not constitute ineffective assistance of counsel since such a decision comes under the purview of trial strategy. See State v. Williams (1991), 74 Ohio App.3d 686,600 N.E.2d 298. On February 26, 1999, defendant-appellant filed a timely notice of appeal from the trial court's February 3, 1999, dismissal of his second petition for postconviction relief. Defendant-appellant's sole assignment of error states: I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS BY DEFENSE COUNSEL'S FAILURE TO INVESTIGATE, CALL WITNESSES, AND FILE AN (SIC) ALIBI. Defendant-appellant argues, through his sole assignment of error, that defense counsel's failure to fully investigate the case, failure to call witnesses and failure to file a notice of alibi as required by Crim.R. 12.1 constituted ineffective assistance of counsel. Specifically, defendant-appellant maintains that defense counsel's failing health at the time of trial prevented proper trial preparation and defense.1 It is defendant-appellant's position that, had defense counsel acted in a competent manner, the resulting investigation would have revealed that defendant-appellant was not at the scene of the underlying offenses but was in the state of Michigan with his wife and others on the day in question. Defendant-appellant's wife and sister would have allegedly testified as to the purported alibi if called as witnesses. R.C. 2953.21(A), which sets forth the procedures for filing petitions for postconviction relief, provides in pertinent part: (A) Any person convicted of a criminal offense *** 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 verified petition at any time in the court which imposed sentence, stating the grounds for relief 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. R.C. 2953.21(C) provides: (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 court, and the 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. The postconviction relief process permits criminal defendants who allege that their conviction is void or voidable on state or federal constitutional grounds to petition the trial court for an evidentiary hearing pursuant to R.C. 2953.21(A). State v. Isham (Aug. 23, 1995), Montgomery App. No. 92-CR-272912, unreported. The petitioner bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his claim and merit a hearing. State v. Hamilton (Dec. 29, 1993), Clark App. No. 3015, unreported, citing State v. Kopper (1983),5 Ohio St.3d 36. A petition for postconviction relief is subject to dismissal without a hearing when the record indicates that the petitioner failed to submit evidentiary documents containing sufficient operative facts. State v. Scott (1989), 63 Ohio App.3d 304; State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, syllabus. Broad conclusory allegations are insufficient to entitle the petitioner to an evidentiary hearing. State v. Pankey (1981), 68 Ohio St.2d 58, 59, 428 N.E.2d 413. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984),466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: "When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. 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, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness." State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 (1981)." Strickland, supra, at 691. To warrant reversal, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. *** Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141, 142. In the case sub judice, a review of the record from the trial court demonstrates that the trial court did not err by dismissing defendant-appellant's second petition for postconviction relief. Defendant-appellant maintains that defense counsel was ineffective by failing to present an alibi defense through the testimony of his wife and sister who apparently would have testified that defendant-appellant was out of the state at the time of the offenses. However, defendant-appellant has failed to demonstrate that, had the alibi defense been presented, the outcome of his trial would have been different or that he was prejudiced by defense counsel's performance. Initially, it should be noted that both affidavits upon which defendant-appellant relies; i.e., his wife and his sister, state only that defendant-appellant was living in Detroit, Michigan during the week in which the underlying offenses were committed. They do not specifically exonerate defendant-appellant. More importantly, defendant-appellant completely ignores the fact that the victim was well acquainted with defendant-appellant prior to the commission of the offenses and positively identified defendant-appellant as one of the perpetrators of the crimes. Given the overwhelming nature of the evidence against defendant-appellant and the somewhat self-serving nature of defendant-appellant's two affidavits, this court cannot now say that the result of defendant-appellant's trial would have been different had the alibi testimony been presented nor can this court say that defendant-appellant was prejudiced by defense counsel's performance. Clearly, defense counsel's decision regarding the presentation of a questionable alibi defense is a trial tactic that will not sustain a claim of ineffective assistance of counsel. State v. Payton (1997), 124 Ohio App.3d 552,706 N.E.2d 842; State v. Keith (Aug. 19, 1998), Crawford App. No. 3-98-05, unreported. In addition, defendant-appellant has completely failed to present any evidence that defense counsel's health played any part whatsoever in the counsel's conduct during trial. Under the totality of the circumstances presented, this court is unable to conclude that defendant-appellant was deprived effective assistance of trial counsel. State v. Roberts (Dec. 3, 1998), Cuyahoga App. No. 73641, unreported; State v. Sullivan (Oct. 15, 1998), Cuyahoga App. Nos. 72878, 72879, unreported. Accordingly, the trial court did not err by dismissing defendant-appellant's petition for postconviction relief. Defendant-appellant's sole assignment of error is not well taken. 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. __________________________ MICHAEL J. CORRIGAN, JUDGE TERRENCE O'DONNELL, P.J., and JOHN T. PATTON, J., CONCUR. 1 Apparently, defense counsel was suffering from cystic fibrosis during the lower court proceedings.

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OPINION {¶ 1} Appellant, Russell J. Biondo, after being released from prison, moved the Portage County Court of Common Pleas to terminate his post-release control sanctions based upon the court's failure to advise him, at sentencing, that he would be subject to such sanctions upon release from prison. After a brief hearing, the Portage County Court of Common Pleas concluded it lacked jurisdiction to terminate appellant's post-release control. Appellant now appeals the trial court's judgment and, for the reasons herein, we reverse. *Page 2 {¶ 2} On August 17, 2001, appellant was indicted on one count of illegal manufacture of drugs, in violation of R.C. 2925.04, a felony of the second degree; two counts of aggravated trafficking in drugs, in violation of R.C. 2925.03(C)(1)(a), a felony of the fourth degree; one count of possession of chemicals for the manufacture of drugs, in violation of R.C. 2925.041, a felony of the third degree; one count of aggravated possession of drugs, in violation of R.C. 2925.11(C)(1)(a), a felony of the fifth degree; and one count of possessing criminal tools, in violation of R.C. 2923.24(C), a felony of the fifth degree.1 {¶ 3} Appellant entered a plea of not guilty to all charges. However, on November 6, 2001, a plea hearing took place at which appellant withdrew his not guilty plea and pleaded guilty to the aggravated possession of methamphetamine charge. The trial court engaged appellant in a thorough Crim. R. 11 colloquy, and further advised him that, upon his release, he could be placed on post-release control. The trial court further explained the potential effects of violating these sanctions pursuant to R.C. 2943.032(E). Appellant acknowledged that he understood his rights and the effects of waiving the same. The trial court subsequently accepted appellant's plea of guilty and entered a nolle prosequi with regard to the remaining charges. {¶ 4} On January 22, 2002, the trial court held a sentencing hearing at which the court ordered appellant to serve a term of six years imprisonment at the Ohio Department of Rehabilitation; appellant was additionally fined $7,500.00. At no point during the sentencing hearing did the trial court advise appellant that he would be subject to post-release control sanctions upon his release from prison. On January 25, *Page 3 2002, the trial court journalized its sentence which was modified via a nunc pro tunc entry on January 28, 2002. Each judgment entry incorrectly reflected appellant was advised at the sentencing hearing that, upon his release from prison, he "may be supervised under post-release control" pursuant to R.C. 2967.28. {¶ 5} Approximately one year after his sentence, appellant filed a motion to pursue a delayed appeal, pursuant to App. R. 5(A), which this court granted. On appeal, appellant challenged the validity of the trial court's acceptance of his guilty plea. In State v. Biondo, 11th Dist. No. 2003-P-0015, 2004-Ohio-528 (Biondo I), this court affirmed appellant's conviction, holding the trial court substantially complied with the non-constitutional requirements of Crim. R. 11(C)(2)(b).Biondo I, at ¶ 12. On May 12, 2004, the Supreme Court of Ohio declined to hear appellant's appeal. State v. Biondo, 102 Ohio St.3d 1448,2004-Ohio-2263. {¶ 6} On November 29, 2004, appellant moved the trial court to vacate the court imposed fines and court costs. The trial court overruled the motion without a hearing. On appeal, this court affirmed the trial court's imposition of the mandatory fines and court costs. State v.Biondo (Dec. 19, 2005), 11th Dist. No. 2004-P-112. (Biondo II). {¶ 7} On December 7, 2007, appellant completed his prison term, was released, and placed on three years of post-release control under the supervision of the Adult Parole Authority. On February 1, 2008, appellant moved the trial court to terminate the post-release control portion of his sentence arguing its imposition violated notice requirements set forth in both statutory and case law. Following a hearing on the motion, the trial court denied appellant's motion ruling it "had no jurisdiction to terminate post release control." *Page 4 {¶ 8} Appellant now appeals pro se and asserts two assignments of error. For ease of discussion, we shall address both assigned errors together. {¶ 9} "[1.] [The] trial court erred by ruling that it did not have jurisdiction to terminate defendant's post release control when it had full knowledge that post release control was not part of the sentence ordered by the trial court nor had even mentioned the possibility to the defendant at his sentencing hearing. {¶ 10} "[2.] [The] trial court erred by not notifying defendant at [the] sentencing hearing that he will be supervised under post release control upon his release from prison by the Ohio Adult Parole Authority and that if he violated the terms of post release control he could receive up to one half [sic] of his original prison sentence." {¶ 11} Appellant asserts, generally, that the trial court's imposition of post-release control sanctions was void to the extent it failed to advise him of such sanctions at the sentencing hearing. Although the trial court retained jurisdiction to correct this error while he was still incarcerated, it failed to do so. Thus, appellant maintains the trial court had jurisdiction over and was obligated to terminate the post-release control sanctions imposed by the Adult Parole Authority after his December 7, 2007 release from prison. {¶ 12} R.C. 2929.19(B)(3), the statutory subsection expressly prescribing what a trial court must do at a sentencing hearing, provides, in relevant part: {¶ 13} "(3) * * * if the sentencing court determines at the sentencinghearing, that a prison term is necessary or required, the courtshall do all of the following: {¶ 14} "* * * *Page 5 {¶ 15} "(c) Notify the offender that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the first degree or second degree * * *." (Emphasis added.) {¶ 16} Notwithstanding this statutory mandate, the state argues that the Supreme Court's holding in Woods v. Telb, 89 Ohio St.3d 504,2000-Ohio-171, merely requires the court to inform a defendant of post-release control at either the plea hearing or the sentencing hearing. It asserts that if the court informed the defendant of post-release control at either the plea hearing or the sentencing hearing and properly journalized the notification in its sentencing entry, it has fulfilled its notification requirement. The language upon which the state relies reads: {¶ 17} "we hold that pursuant to R.C. 2967.28(B) and (C), a trial court must inform the offender at sentencing or at the time of a plea hearing that post-release control is part of the offender's sentence. Because the record clearly indicates that the petitioner was advised of discretionary post-release control both in his signed plea form and in his sentencing entry, we find no violation of the separation of powers in this case." Woods, supra, at 513. {¶ 18} In Woods, the Supreme Court was addressing the case of a defendant who had pleaded guilty and was advised at that time of post-release control. However, the issue in Woods was the constitutionality of post-release control. That case did not address the mandates of R.C. 2929.19(B)(3), which specifically requires notification of post-release control to be addressed at the time of sentencing. Because the General Assembly enacted a statute requiring notification at the sentencing hearing, we believe the state's reliance uponWoods is inapposite. In fact, several years subsequent to its *Page 6 holding in Woods, the Supreme Court released its holding in State v.Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, which addressed, inter alia, the specific issue of whether a trial court must notify an offender of post-release control at the time of the sentencing hearing {¶ 19} In Jordan, similar to the case sub judice, the trial court failed to notify the defendant of post-release control requirements at the time of sentencing, but incorporated that notice into its sentencing entry. The court concluded this procedure was invalid, holding: {¶ 20} "When sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control and is further required to incorporate that notice into its journal entry imposing sentence." Id at paragraph one of the syllabus. {¶ 21} Pursuant to R.C. 2929.19(B)(3)(c), the court observed, the trial court has "a statutory duty to provide notice of postrelease control at the sentencing hearing" and "any sentence imposed without such notification is contrary to law." Jordan, supra, at 27. The court held that such circumstances require the sentence to be vacated and the matter remanded for resentencing. Id. at paragraph two of the syllabus. {¶ 22} Jordan was decided after Woods. Moreover, Woods addressed only the constitutionality of post-release control while Jordan directly ruled upon the necessary steps for compliance for notification regarding post-release control during the sentencing process. Although theWoods court did comment on the procedural issue of notification, it did so without touching upon the mandates of R.C. 2929.19(B)(3)(c).2 *Page 7 The Supreme Court in Woods was not asked to resolve the procedural questions with which it was confronted in Jordan. Thus, it is reasonable to conclude any discussion or perceived holding relating to the procedural nuances of the notification process for post-release control in Woods was superseded by the precise holding in Jordan. See State v.Harris, 160 Ohio App.3d 851, 2005-Ohio-2503, at ¶ 16 (holding the ruling in Jordan superseded the position taken in Woods regarding the notification procedure.) Accordingly, we hold the law set forth inJordan is controlling on the issue before this court. See, also,Harris, supra; State v. Cloud, 7th Dist. No. 01 CO 64, 2005-Ohio-1331, at ¶ 10-33; State v. Weems, 9th Dist. No. 22192, 2005-Ohio-1000, ¶ 7-8;State v. Parrett, 12th Dist. No. CA2004-09-016, 2005-Ohio-557, at ¶ 18. {¶ 23} As we hold Jordan is the controlling authority regarding notification during the sentencing process, it is necessary, given the issue before this court, to touch upon several recent cases in which the Supreme Court has clarified certain nuances surrounding Jordan. {¶ 24} First, in Hernandez v. Kelly, 108 Ohio St.3d 395,2006-Ohio-126, the defendant was sentenced to seven years in prison. No post-release control notice was provided at the sentencing hearing or in the judgment entry. The defendant was ultimately released from prison under post-release control which he subsequently violated and was returned to prison for 180 days. The defendant sought habeas relief challenging the Adult Probation Authority's power to originally place him on post-release control. Pursuant to its holding in Jordan, the Supreme Court held that unless a trial *Page 8 court includes notification of postrelease control at the sentencing hearing and in the journal entry, the Adult Parole Authority lacks authority to impose post-release control. Id. at 397. Because the defendant had served his seven year term of incarceration, the Court determined he was entitled to be released from prison and from further post-release control. Id. at 401.3 {¶ 25} Next, in State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,2006-Ohio-5795, a criminal defendant filed a writ of prohibition to prevent a trial judge from re-sentencing him to correct a prior sentencing entry which had omitted a written statement regarding post-release control. The Supreme Court recognized that a trial court generally lacks authority to reconsider its own valid final judgment in a criminal case; however, the Court emphasized that a trial court nevertheless retains continuing jurisdiction to correct a void sentence. As the trial court failed to properly comply with the statutorily mandated notification requirements relating to post release control, the sentence was void. Id. at 356. Because the defendant was still serving his sentence, the Court held, pursuant to Jordan, the proper remedy was to resentence the defendant. Id. at 357. {¶ 26} Most recently, in State v. Simpkins, 117 Ohio St.3d 420,2008-Ohio-1197, the state moved to resentence the defendant, pursuant toJordan, supra, prior to his release from prison to provide the proper post-release control notification that was lacking from his original sentencing procedure. In doing so, the trial court provided the *Page 9 defendant with appropriate post-release control notification. The defendant challenged this procedure alleging the state was barred by res judicata from resentencing him as he had a cognizable interest in the finality of his sentence. {¶ 27} The Supreme Court determined, even though the defendant had completed a "substantial majority" of his sentence, the state was not barred by res judicata from resentencing him. The court observed that because the sentence did not conform to statutory mandates requiring the imposition of post-release control, it was void and must be vacated. Id. at 425. The effect of vacating the sentence placed the parties "in the same position as they were had there been no sentence." Id. Without a valid former adjudication (or, where no statutory authority exists to support a sentence), res judicata did not act to bar the trial court from resentencing the defendant to the extent he was still incarcerated for that conviction. Id. 426-427. {¶ 28} The following conclusions can be drawn from the authority discussed above. First, a court must advise a defendant that post-release control sanctions will be a part of his or her sentence at the sentencing hearing and journalize a similar notification in its judgment entry on sentence. Jordan, supra. The failure to do so renders a defendant's sentence void. Cruzado, supra; Simpkins, supra. To the extent a defendant is still incarcerated, the state may move the trial court to resentence the defendant because the trial court retains continuing jurisdiction over a criminal matter for purposes of correcting a void judgment. Jordan, supra; Hernandez, supra;Cruzado, supra; Simpkins, supra. However, where a defendant has served his term of incarceration on the underlying sentence, the parole authority lacks the authority to impose post-release control upon a defendant and there can be no remand for *Page 10 resentencing. Hernandez, supra; Cruzado, supra. Under such circumstances, the defendant who has served his prison term is entitled to release from post-release control. Id. {¶ 29} Here, the trial court did not comply with R.C. 2929.19(B)(3)(c), which requires it to notify appellant of post-release control at the sentencing hearing. As it failed to follow a statutory mandate, the sentence was rendered void. At no point during his term of incarceration was the matter remanded to the trial court to correct this error. Appellant served his term of imprisonment set forth in the journalized sentencing entry after which, the record suggests, the Adult Parole Authority attempted to impose post-release control. Pursuant toJordan and its progeny, the parole authority lacked the power to act as it did. Any attempt to place appellant on post-release control is based upon authority of a judgment entry which is a legal nullity. Appellant is therefore entitled to release of any post-release control as it relates to the sentencing judgment entered on January 28, 2002. {¶ 30} One final point deserves brief attention. Appellant failed to raise this issue before this court on direct appeal even though it was apparent at the time appellant prosecuted his appeal. Generally, "`errors in sentencing that are reflected in the record are waived, and res judicata applies, when a defendant fails to raise them in a direct appeal.'" State v. Vasquez, 11th Dist. No. 2006-A-0073, 2007-Ohio-2433, at ¶ 27, quoting State v. Roop, 2d Dist. No. 2003-CA-23, 2004-Oho-1025. It is well-established that res judicata will apply to a voidable sentence and may operate to prevent review of a collateral attack based on a claim that could have been raised on direct appeal from a voidable sentence. Simpkins, supra at 426, citing State v. Perry (1967), *Page 11 10 Ohio St.2d 179. However, the part of appellant's sentence imposing post-release control is void and the imposition of post-release control did not become a valid aspect of his sentence simply because he did not directly appeal the sentence or because he completed his prison term.Vasquez, supra, at ¶ 30. As it relates to void sentences, the doctrine of res judicata is inapplicable. Simpkins, supra, at 425. Where, as here, no statutory authority exists to support a judgment, res judicata will not preclude the correction of the error. Simpkins, supra, at, 426; see, also, State v. Barnes, 11th Dist. No. 2006-P-0089, 2007-Ohio-3362, at ¶ 50. {¶ 31} Finally, with respect to jurisdiction, the Supreme Court of Ohio has repeatedly held that a trial court's jurisdiction over a criminal case is limited after it renders judgment, but it retains continuing jurisdiction to correct a void sentence and is authorized to do so. Simpkins, supra, at 425; Cruzado, supra, at 356; Jordan, supra, at 27. In fact, the Court in Simpkins underscored, a trial court "has an obligation to do so when its error is apparent." Id. Accordingly, as the trial court's judgment on sentence was void, its conclusion that it did not have jurisdiction to terminate appellant's post-release control sanctions is incorrect. The Adult Parole Authority imposed the three year term of post-release control under the color of the authority of the trial court's January 28, 2002 judgment entry on sentence. As this sentence was void, the trial court retained limited continuing jurisdiction to correct any errors. Under the circumstances, the only way of correcting the error was through the termination of appellant's void post-release control. {¶ 32} Appellant's first and second assignments of error have merit. *Page 12 {¶ 33} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is reversed. The three years of post-release control imposed by the Adult Parole Authority pursuant to appellant's 2002 Portage County conviction following his guilty plea for aggravated possession of methamphetamine is invalid and hereby terminated. DIANE V. GRENDELL, P.J., COLLEEN MARY O'TOOLE, J., concur. 1 On October 19, 2001, an amended indictment was issued, charging appellant with another count of aggravated possession of methamphetamine, in violation of R.C. 2925.11(C)(1)(a), a felony of the second degree. 2 It is worth pointing out that R.C. 2943.032(E) additionally requires a court to inform a defendant of post-release control at the plea hearing. Courts have held that a trial court's failure to inform a defendant at the time he or she enters a plea that post-release control as an aspect of his sentence requires the plea to be vacated because it was not entered knowingly or intelligently. State v. Pendleton, 8th Dist. No. 84514, 2005-Ohio-3126, at ¶ 13; see, also, State v.Perdue, 2d Dist. No. 20234, 2004-Ohio-6788, at ¶ 17. Thus, not only must a court notify a defendant at the sentencing hearing and in its journal entry on sentence, but also, where applicable, prior to accepting his or her plea. 3 We recognize that Hernandez has been technically superseded by the General Assembly's enactment of R.C. 2929.191, which permits a sentencing court to correct a sentence issued before the statute's effective date, that failed to notify the offender he would be supervised under post-release control when he is released from prison at a hearing. See R.C. 2929.191(A)(1) and (C). The R.C. 2929.191 hearing must occur "at any time before the offender is released from imprisonment under that term. * * *." R.C. 2929.191(A)(1). Hence, the analysis in Hernandez concluding a defendant who has been released from imprisonment without sufficient notification of post-release control may not be subject to such sanctions is still ostensibly valid. *Page 1

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JOURNAL ENTRY AND OPINION. {¶ 1} Defendants-appellants, James C. McQueen and Erie Shores Bus Lines (collectively "appellant" unless other stated), appeal the decision of the Cleveland Municipal Court that found in favor of plaintiff-appellee, CCI Properties ("CCI"), on its claim for unpaid rent. For the reasons that follow, we affirm in part, reverse in part, and remand. {¶ 2} The record reveals that CCI owns commercial property on East 116th Street in Cleveland, Ohio, which was occupied by James McQueen and Erie Shores Bus Line for several years under some type of oral agreement wherein appellant was to pay CCI $727 per month. It appears from the record that the parties made several unsuccessful attempts at negotiating a written land installment contract for the purchase of this property.1 {¶ 3} In December 2001, CCI instituted an action in forcible entry and detainer under R.C. Chapter 1923 seeking restitution of the premises and unpaid rent. Appellant filed a motion to dismiss the complaint, arguing that the municipal court lacked subject-matter jurisdiction because CCI failed to comply with R.C. Chapter 5313 where appellant had partially performed the land installment contract by paying more than 20% of the purchase price and had been in possession of the premises for more than five years. CCI, in opposition, maintained, inter alia, that the parties had never reached any agreement to enter into a land installment contract and, even if such an agreement existed, R.C. Chapter 5313 applies only to residential, not commercial, property. {¶ 4} The matter proceeded to a hearing before a magistrate on CCI's claim for forcible entry and detainer. The magistrate found that there was no agreement among the parties to enter into a land installment contract, either oral or written, and that, in any event, R.C. Chapter 5313 is inapplicable to commercial property. Restitution of the premises was recommended. The municipal court adopted the magistrate's decision and entered judgment in accordance with this decision. Appellant eventually vacated the premises on May 27, 2002. {¶ 5} CCI, with leave of court, thereafter amended its complaint to include a claim seeking reimbursement for damage to the property allegedly done by appellant. Appellant answered the complaint and asserted a counterclaim for unjust enrichment, claiming that several improvements were made to the property for which appellant sought reimbursement. CCI moved to dismiss the counterclaim pursuant to Civ.R. 12(B)(6), arguing that it was barred by the doctrines of res judicata and unclean hands. {¶ 6} Dismissing CCI's res judicata argument, the court stated: {¶ 7} "The Court finds no merit in [CCI's] argument that [appellant's] counterclaim is barred pursuant to the doctrine of res judicata. The counterclaim does not depend on the existence of a land contract. It is an equitable claim for unjust enrichment precisely because it is not a claim at law based on a contract. The Court's prior determination that no land contract existed thus has no effect on the claim." {¶ 8} Similarly dismissing CCI's unclean hands argument, the court found this doctrine inapplicable as a bar to appellant's counterclaim. {¶ 9} The municipal court, nonetheless, granted CCI's motion. Relying on Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, andNational City Bank v. Fleming (1981), 2 Ohio App.3d 50, the court found that appellant failed to allege facts sufficient to demonstrate that CCI "committed fraud, misrepresentation or [acted] in bad faith" so as to support a claim for unjust enrichment. {¶ 10} "[Appellant's] allegations fall short of establishing fraud, misrepresentation or bad faith. [Appellant] makes no allegations that the parties' failure to reach agreement on the terms of a land contract was due to [CCI's] bad faith. * * * The court's findings are in accord. The parties were negotiating but never executed an agreement. [Appellant] was therefore [CCI's] tenant. * * *" {¶ 11} Thereafter, the issue of damages proceeded to a hearing before a magistrate. Finding that CCI presented insufficient evidence to support its claim for property damage, the magistrate, nonetheless, found in favor of CCI, and against both appellants jointly and severally, in the amount of $6,449.19 for unpaid rent from September 2001 through May 27, 2002. The municipal court adopted the magistrate's decision and judgment was entered accordingly. The record does not reflect that appellant filed any objections to the magistrate's decision as adopted by the municipal court.Appellant is now before this court and assigns two errors for our review. Dismissal of Appellant's Counterclaim {¶ 12} In his first assignment of error, appellant contends that the trial court erred in granting CCI's motion to dismiss his counterclaim for unjust enrichment. {¶ 13} When reviewing a judgment granting a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, an appellate court must independently review the complaint to determine if dismissal is appropriate. McGlone v. Grimshaw (1993),86 Ohio App.3d 279, 285. The reviewing court need not defer to the trial court's ruling on such a motion. Id. Dismissal is appropriate only where it appears beyond a doubt that the complainant can prove no set of facts sufficient to support the asserted claim that would entitle the complainant to relief. Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1996), 76 Ohio St.3d 521, 524, citing O'Brien v. Univ. Community TenantsUnion, Inc. (1975), 42 Ohio St.2d 242, 245; see, also, York v. Ohio StateHighway Patrol (1991), 60 Ohio St.3d 143, 144. In construing the complaint in response to a Civ.R. 12(B)(6) motion, a court must presume all factual allegations contained in the complaint to be true and make all reasonable inferences in favor of the non-moving party. Mitchell v.Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. A claim for unjust enrichment arises out of a contract in law, or quasi-contract. Hummel v.Hummel (1938), 133 Ohio St. 520, 525. Such a contract is not a true contract, but is an "`obligation that is created by the law without regard to expressions of assent by either words or acts,' * * * and is imposed to prevent a party from retaining money or benefits which in justice and equity belong to another." (Citations omitted). Legros v.Tarr (1989), 44 Ohio St.3d 1, 7-8. {¶ 14} Under this type of contract, civil liability "arises out of the obligation cast by law upon a person in receipt of benefits which he [or she] is not justly entitled to retain" without compensating the individual who conferred the benefits. Hummel, 133 Ohio St. at 525. In order to recover on a claim of unjust enrichment, the party asserting the claim must demonstrate that (1) a benefit was conferred upon the recipient; (2) that the recipient had knowledge of that benefit; and (3) circumstances render it unjust or inequitable to permit the recipient to retain the benefit without compensating the party who conferred the benefit. Hambleton v. R.G. Barry Corp., 12 Ohio St.3d at 183. In establishing the third element under Hambleton, appellate courts have required that the complainant demonstrate that "the conferral of [the] benefit was the product of fraud, misrepresentation, or bad faith by the party accepting and retaining such benefit * * *." National City Bank v.Fleming, 2 Ohio App.3d at 58. In other words, there must be a causal relationship between the complainant's loss and the recipient's benefit.Laurent v. Flood Data Serv., Inc. (2001), 146 Ohio App.3d 392, 399. {¶ 15} It is in this regard that the municipal court found appellant's counterclaim lacking. In particular, the court stated that appellant made no allegation that the failure to reach agreement on the terms of the land contract was due to CCI's bad faith. Although it may be true that there is no allegation of bad faith, appellant's counterclaim certainly can be construed as alleging that CCI misrepresented that it would enter into such a contract. Paragraph three of the counterclaim states: {¶ 16} "During the time [appellant] was making improvements to the land [appellant] repeatedly requested of [CCI] that he sign the land installment contract that had been proposed; [CCI] promised a signed land installment contract, but never delivered one to [appellant]." {¶ 17} Accepting this allegation as true as we must in reviewing a motion to dismiss under Civ.R. 12(B)(6), we find that appellant has sufficiently alleged the third element of a claim for unjust enrichment under Hambleton and National City so as to defeat CCI's motion to dismiss. Appellant appended an unexecuted draft of a land contract between the parties. It would be reasonable to infer that appellant had requested CCI to sign the agreement as alleged and that it failed to do so despite promises to the contrary. Consequently, appellant has sufficiently alleged a causal relationship between appellant's loss and CCI's benefit. {¶ 18} Appellant's first assignment of error is well taken and is sustained. {¶ 19} Personal Liability of Appellant James C. McQueen {¶ 20} In his second assignment of error, appellant contends that the municipal court erred in finding appellant McQueen personally liable for unpaid rent when it was the corporation known as Erie Shores Bus Line, Inc. that had the agreement with CCI. {¶ 21} CCI filed both its amended complaint against (1) James C. McQueen, individually and doing business as Erie Shores Bus Line; and (2) Erie Shores Bus Line. The complaint does not identify Erie Shores Bus Line as a corporation and, indeed, specifically identifies James C. McQueen in his individual capacity and as doing business as Erie Shore Bus Line. Paragraph two of the amended complaint states: {¶ 22} "Defendant, James C. McQueen, individually and doing business as Erie Shores Bus Line ("McQueen") and Erie Shores Bus Line ("Erie") currently occupy the Premises pursuant to a month to month tenancy." {¶ 23} Appellant answered the complaint by admitting that "Erie Shores Bus Line, Inc., an Ohio corporation, occupied the premises," but otherwise denied the allegations contained in that paragraph. Appellant did not assert any affirmative defenses in this responsive pleading nor did he seek to amend the responsive pleading to include any such defense. Indeed, the record is devoid of any attempt on appellant's part to raise this issue at the trial court level and, instead, raises it for the first time on appeal. This he cannot do. {¶ 24} It is well-established that a reviewing court cannot consider an issue raised for the first time on appeal. State ex rel.Gutierrez v. Trumbull County Bd. of Elections (1992), 65 Ohio St.3d 175,177. Moreover, it was incumbent upon appellant to raise any defense to the claim against him in his individual capacity by way of responsive pleading or amendment thereto. See, generally, Jim's Steak House v.Cleveland (1998), 81 Ohio St.3d 18. Consequently, appellant has waived this issue for review by this court. Id. {¶ 25} Even if appellant raised this issue by way of affirmative defense, he failed to object to the findings of fact and conclusions of law rendered by the magistrate and adopted by the municipal court that addressed this issue. The magistrate referred to appellant in his individual capacity in its findings of fact as having paid for the use of the property and thereafter referenced the "parties' agreement for the rental of the property." In its conclusions of law, the magistrate concluded that both appellants were "jointly and severally liable" to CCI. {¶ 26} Civ.R. 53(E)(3)(b) prohibits a party from "assigning as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule." Appellant filed no such objections and, therefore, has not preserved this issue for review by this court. State ex rel. Booher v.Honda of Am. Mfg. (2000), 88 Ohio St.3d 52, 53. {¶ 27} Appellant's second assignment of error is, therefore, not well taken and is overruled. {¶ 28} The judgment of the municipal court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. It is ordered that appellee and appellants equally share 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 Cleveland Municipal 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. MICHAEL J. CORRIGAN, P.J., and SEAN C. GALLAGHER, J., concur. 1 The record contains at least four unexecuted agreements for the sale of this property. Two of the documents reference Erie Shores Bus Lines, Inc. as the buyer while the other two reference James McQueen, individually, among others.

2016-07-06 06:36:33.299867+00

Defendant-appellant, Tiffnie Keller, appeals the decision of the Fayette County Court of Common Pleas to extend her sentence from an aggregate of seven years to eight years after her original sentence had already commenced. Appellant raises two assignments of error which we find to be meritorious, and we reverse. On May 22, 1997, after a jury trial, appellant was found guilty of one count of perjury in case number 960181. In its judgment entry of conviction filed July 10, 1997, the trial court sentenced appellant as follows: "[f]or the offense of Perjury * * *, the defendant, Tiffnie A. Keller, is hereby sentenced to a definite term of confinement of one year in a state penal or reformatory institution under the control of the Department of Rehabilitation and Correction." Appellant had not yet begun serving her sentence for perjury when, after a jury trial on July 29, 1997, appellant was found guilty of seven felony theft charges which were consolidated in cases 960090 and 960091. By judgment entry of conviction filed August 19, 1997, the trial court sentenced appellant on the theft convictions as follows: "[f]or each of the seven felony offenses the defendant is sentenced to a definite term of confinement of one year in a state penal or reformatory institution under the control of the Department of Rehabilitation and Correction. It is ordered that these sentences be served consecutively." On the face of this judgment entry, there was no reference to appellant's perjury conviction in case 960181. Appellant's incarceration began in September of 1997 at the Ohio Reformatory for Women. Since the sentencing entries did not specify that the theft sentences were to run consecutively to the perjury sentence, the Ohio Department of Rehabilitation and Corrections (ODRC) calculated appellant's aggregate sentence as seven years. Appellant's offenses were committed prior to July 1, 1996. Thus, appellant was eligible for a one-third reduction in her sentence under sentencing law prior to Senate Bill 2, and since appellant's potential sentence was less than five years, she was accepted into a boot camp program. After successfully completing boot camp, appellant was released on parole in April 1998. She spent sixty days in a half-way house in Columbus, and was subsequently released and began a job in Columbus. We note that appellant did not violate any condition of her parole. On June 3, 1998, the trial court, on its own motion, filed a journal entry in cases 960090 and 960091 in which the court stated, "On review of this matter, it is ordered that the sentences imposed in these cases be served consecutively with the sentence the defendant received for Perjury in case number 960181." As a result of the court's action, appellant's sentence was effectively increased from seven years to eight years. Accordingly, the ODRC notified appellant's parole officer, and appellant was returned to prison. Appellant filed this appeal raising the following two assignments of error: Assignment of Error No. 1: THE TRIAL COURT'S ENTRY WHICH RESENTENCED APPELLANT TO CONSECUTIVE TERMS OF IMPRISONMENT VIOLATED HER RIGHT TO BE FREE FROM DOUBLE JEOPARDY UNDER THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO. Assignment of Error No. 2: THE TRIAL COURT'S ENTRY WHICH RESENTENCED APPELLANT WAS NULL AND VOID BECAUSE THE TRIAL COURT LACKED THE AUTHORITY TO RESENTENCE APPELLANT AFTER SHE COMMENCED TO SERVE HER SENTENCE. Under her first assignment of error, appellant argues that the trial court's action in its June 3, 1998 entry essentially resentenced her to a longer prison term which subjected her to multiple punishments for the same offense and violated her right to be free from double jeopardy. We agree. In State v. Draper (1991), 60 Ohio St.3d 81, the Ohio Supreme Court addressed a situation in which the defendant had begun serving his sentence and was then released on shock probation. The defendant's probation was revoked when he violated several conditions of his probation. When the defendant appeared before the court after the revocation, the trial court altered his original sentence extending his imprisonment. We note that factually the case at bar is different thanDraper in that appellant was released on parole, rather than shock probation, and appellant committed no parole violation. Regardless, we find that much of the reasoning in Draper is applicable to this case where the Supreme Court stated that "one who had been granted probation * * * not only has an expectation of finality in the original sentence, but has already undertaken to serve it. Under such circumstances, the imposition of a new and more severe sentence would constitute multiple punishments for the same offense." Draper at 83, citing State v. Thomas (1980), 61 Ohio St.2d 254. Similarly, this court has previously stated that it is permissible for the trial court to amend a sentence and impose a more severe punishment at any time before the execution of an initial sentence. State v. Ballard (1991), 77 Ohio App.3d 595, 597, citing Columbus v. Messer (1982), 7 Ohio App.3d 266. "However, once the execution of a sentence commences, an 'increase [in] the penalty [would] subject the defendant to double punishment for the same offense.' " Ballard at 597, quoting United States v. Benz (1931), 282 U.S. 304. Execution of a prison sentence commences "when the defendant is delivered from the temporary detention facility of the judicial branch to the penal institution of the executive branch." Ballard at 597, quoting Messer at 268. In this case, there is no doubt that appellant's sentence had commenced. In fact, by the time the court filed its entry on June 3, 1998, appellant had successfully completed boot camp, had completed her time in the half-way house, had been released on parole, and had begun a new job. We find that appellant's legitimate expectation of finality was frustrated by the trial court's action in this case. Appellant's first assignment of error is sustained. Under her second assignment of error, appellant argues that the trial court lacked authority to modify her sentence. R.C.2929.41, which addresses multiple sentences, states in part: (A) Except as provided in division (B) of this section, a sentence of imprisonment shall be served concurrently with any other sentence of imprisonment imposed by a court of this state, another state, or the United States. * * *. (B) A sentence of imprisonment shall be served consecutively to any other sentence of imprisonment, in the following cases: (1) When the trial court specifies that it is to be served consecutively. This court has previously stated that "the imposition of consecutive sentences could only by accomplished if the trial court specified that the sentences were to run consecutively."Hamilton v. Adkins (1983), 10 Ohio App.3d 217, 218. (Emphasissic.) If the court does not specify as required by R.C.2929.41(B)(1) and no other exception applies as outlined in R.C. 2929.41(B)(2)-(5), then R.C. 2929.41(A) requires that multiple sentences run concurrently. Id. The state argues that the trial court did indeed specify that the sentences were to be consecutive when it stated, in the last sentence of the August 19, 1997 entry, "It is ordered that these sentences be served consecutively." The state argues that, even though there is no express reference to case 960181, the August 19, 1997 entry should be read as stating that the seven-year theft sentence was to be served consecutively with the one-year perjury sentence. When considering the overall context of the entry, we do not find this to be a plausible reading. Rather, we find that the August 19, 1997 entry unambiguously indicates that the seven one-year theft sentences are to be served consecutively to each other. We also note that even if there were an ambiguity in the entry as the state suggests, "[w]here there is ambiguity in the language as to whether the sentences are to be served concurrently or consecutively, a defendant is entitled to have the language construed in his favor." Adkins at 218. After careful review, we find that the trial court did not specify that the theft sentence was to be served consecutively to the perjury sentence. Thus, R.C. 2929.41-(A) requires that appellant's sentences run concurrently. We cannot find, nor has the state provided us with any authority which granted the trial court power to increase appellant's sentence after it had been executed. SeeBallard, 77 Ohio App.3d at 597-98. "[O]nce a valid sentence has been executed, a trial court no longer has the power to modify the sentence except as provided by the legislature." Id. at 599. The state argues that the trial court's action falls within Crim.R. 36 which states: "Clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time." The state proposes that we should accept the June 3, 1998 entry as a nunc pro tunc entry correcting a clerical mistake by the court in its previous entries. We reject this proposition for two reasons. First, there is no indication that the trial court intended this entry to be nuncpro tunc. This court has previously stated that if an entry is to be considered nunc pro tunc, it should clearly be stated as such. In the Matter of The Estate of Frank R. Nibert (Apr. 27, 1987), Madison App. No. CA86-05-012, unreported, at 10. Second, we find that the court's action in this case does not constitute the mere correction of a "clerical mistake" or an "oversight" as contemplated under Crim.R. 36. A clerical mistake has been defined as follows: The term "clerical mistake" does not mean that it must be made by a clerk. The phrase merely describes the type of error identified with mistakes in transcription, alteration or omission of any papers and documents which are traditionally or customarily handled or controlled by clerks but which papers or documents may be handled by others. It is a type of mistake or omission mechanical in nature which is apparent on the record and which does not involve a legal decision or judgment by an attorney. Dentsply International, Inc. v. Kostas (1985), 26 Ohio App.3d 116,118. The power to file an entry nunc pro tunc is restricted to placing on the record a judicial action which has already been taken but was omitted due to some mechanical mistake. See In reJennifer Pickett (Sept. 27, 1993), Butler App. Nos. CA92-10-196, CA92-10-197, CA92-10-198, CA92-10-199, CA92-10-200, at 6. In this case, the trial court's action amounted to more than the mere correction of a mechanical mistake or omission, and it was beyond the scope of the court's power under Crim.R. 36. Accordingly, we find that the trial court was without authority to resentence appellant after her sentence had been executed. See Ballard, 77 Ohio App.3d at 598;State v. Mader (1994), 97 Ohio App.3d 202, 203. Appellant's second assignment of error is sustained. The judgment of the trial court altering appellant's sentence by its entry filed June 3, 1998 is reversed, and this cause is remanded for further proceedings according to law and not inconsistent with this opinion. YOUNG, P.J., and POWELL, J., concur.

2016-07-06 06:36:33.730933+00

OPINION {¶ 1} Appellant, Ruth Ann Holzhauser, M.D., appeals from a judgment of the Franklin County Court of Common Pleas affirming the order of the appellee, State Medical Board of Ohio ("board"), permanently revoking her medical license. For the following reasons, we affirm that judgment. {¶ 2} Appellant has been a licensed physician in Ohio since the early 1980's. Since that time, she taught at The Ohio State University and worked for the Ohio Department of Health, the Ohio Department of Mental Retardation and Developmental *Page 2 Disabilities, and the Ohio Department of Youth Services. In 1998, she took a job as the Medical Director of Maryhaven, a treatment facility for chemically-dependent individuals. {¶ 3} In the fall of 2003, appellant decided to leave her position with Maryhaven. She saw a classified ad in a local newspaper for Medsnationwide.com, a company that prescribes medications over the internet. Intrigued, she contacted the company's CEO, Mrs. O'Shea, to learn more about the company. Mrs. O'Shea told appellant about the company and assured her that prescribing medications over the internet was legal. She also put appellant in contact with an attorney for the National Center for Telemedicine Law, who assured appellant that the services performed by physicians working for Medsnationwide.com were legal. Appellant did not consult with any other attorney, nor did she contact anyone with the board to determine whether prescribing medications over the internet was permissible in Ohio. {¶ 4} Appellant started working for Medsnationwide.com on September 30, 2003. Patients seeking medications from Medsnationwide.com filled out questionnaires that provided information about their general health, medical history, and current medications. They also were required to provide medical records for the past two years. The records had to support what the patient claimed was his or her "chief complaint." Patients were also required to provide a photo I.D. All of this information was given to appellant, who would normally review it the day before her telephone consultation with the patients. Appellant would then consult with each patient, over the phone, typically for 20 to 30 minutes. She never met with any of the patients in person. If she felt that the patient warranted a prescription, appellant would electronically sign a prescription, which then *Page 3 went to another legal entity that sent the prescription to the dispensing pharmacy. She also filled out a hard copy of the prescription form that was also sent to the pharmacy. {¶ 5} In seven months with Medsnationwide.com, appellant wrote almost 900 prescriptions for more than 600 people. She testified that she prescribed medication to 90 percent of the people with whom she consulted. The vast majority of the prescriptions she wrote were for Hydrocodone, a Schedule 3 controlled substance. Appellant stopped working for Medsnationwide.com on April 21, 2004, the day she received a phone call from a board investigator who informed her that the work she had been performing for Medsnationwide.com violated of the board's rules. {¶ 6} As a result of her actions while employed with Medsnationwide.com, the board notified appellant in a letter dated October 13, 2004 that it intended to determine whether her medical license should be sanctioned. Specifically, the board alleged that appellant prescribed controlled substances to patients without personally examining them in violation of R.C. 4731.22(B)(20) and Ohio Adm. Code 4731-11-09(A).1 Appellant requested a hearing concerning her license. {¶ 7} At the hearing, appellant admitted she prescribed controlled substances to patients without personally examining them. She claimed, however, that she did not intentionally violate the rules because she was told by people associated with Medsnationwide.com that there was nothing improper about her conduct. Appellant also testified that this was the first time in her medical career that she had been in trouble with the board, and that she had aided the board in its investigation of her conduct. *Page 4 {¶ 8} The hearing examiner concluded that appellant's conduct violated Ohio Adm. Code 4731-11-09(A) and, therefore, also violated R.C.4731.22(B)(20). The hearing examiner recommended that the board permanently revoke appellant's medical license. Appellant objected to the hearing examiner's recommendation, claiming that the mitigating factors in her case weighed in favor of a less severe sanction. The board disagreed and ordered the permanent revocation of appellant's medical license. Appellant appealed that order to the Franklin County Court of Common Pleas, which affirmed the board's order of revocation. {¶ 9} Appellant appeals and assigns the following errors: Assignment of Error 1: The Court of Common Pleas abused its discretion in upholding the Medical Board's Order to permanently revoke Dr. Holzhauser's license based on the fact that the Medical Board charged Dr. Holzhauser with violating an administrative rule (O.A.C. 4731-11-09) that conflicts with R.C. 4731.296. Assignment of Error 2: The Court of Common Pleas erred in upholding the Medical Board's order to revoke Dr. Holzhauser's license by relying on testimony from its only witness who testified by telephone, when the Medical Board has no statutory authority for the testimony of a witness by telephone. Assignment of Error 3: The Court of Common Pleas erred by upholding the Medical Board's order to revoke Dr. Holzhauser's license by holding Dr. Holzhauser to a different standard of care from other physicians based on the fact that she was the former director of a drug and alcohol treatment center. {¶ 10} In an administrative appeal pursuant to R.C. 119.12, the trial court reviews an order to determine whether it is supported by reliable, probative, and substantial *Page 5 evidence and is in accordance with law. Huffman v. Hair Surgeon,Inc. (1985), 19 Ohio St.3d 83, 87. On appeal to this court, the standard of review is more limited. Unlike the court of common pleas, a court of appeals does not determine the weight of the evidence. Rossford ExemptedVillage School Dist. Bd. of Edn. v. State Bd. of Edn. (1992),63 Ohio St.3d 705, 707. In reviewing the court of common pleas' determination as to whether the commission's order was supported by reliable, probative, and substantial evidence, this court's role is limited to determining whether the court of common pleas abused its discretion. Roy v. OhioState Med. Bd. (1992), 80 Ohio App.3d 675, 680. 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. However, on the question of whether the commission's order was in accordance with law, this court's review is plenary. Univ. Hosp., Univ. of Cincinnati Collegeof Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St .3d 339, 343. {¶ 11} In appellant's first assignment of error, she contends the board could not revoke her license because the administrative rule she allegedly violated conflicts with R.C. 4731.296. An administrative rule that conflicts with a valid, existing statute is invalid. State ex rel.Navistar Inter. Transp. Corp. v. Indus. Comm., Franklin App. No. 04AP-638, 2005-Ohio-3284, at ¶ 13, citing Kelly v. Accountancy Bd. ofOhio (1993), 88 Ohio App.3d 453, 458. {¶ 12} Ohio Adm. Code 4731-11-09(A) ("the rule") prohibits a physician (except in certain situations not applicable here) from prescribing, dispensing, or otherwise providing any controlled substance to a person the physician has never personally physically *Page 6 examined and diagnosed. Appellant claims the rule conflicts with R.C.4731.296 ("the statute"), which allows physicians to practice telemedicine, that is, the practice of medicine through any communication, be it oral, written, or electronic, by a physician located outside of this state. Appellant argues that these provisions conflict because the statute permits physicians outside of Ohio to prescribe controlled substances to Ohio residents without a personal examination and diagnoses, something the rule prohibits. We disagree. {¶ 13} The rule does not conflict with the statute, because the statute does not allow a physician outside of this state to prescribe controlled substances to an Ohio patient the physician has not personally examined and diagnosed. In fact, it prohibits it. Specifically, R.C. 4731.296(D) provides that a physician with a telemedicine certificate may be disciplined for any violation of R.C.4731.22, which includes a violation of the board's rules. See R.C.4731.22(B)(20). Therefore, telemedicine certificate holders must comply with the board's rules, including the rule violated herein, which prohibits physicians from prescribing medications to a patient they have not personally examined and diagnosed. Thus, the two provisions do not conflict.2 {¶ 14} Because Ohio Adm. Code 4731-11-09(A) does not conflict with R.C.4731.296, appellant's first assignment of error is overruled. {¶ 15} By her second assignment of error, appellant contends the board erred by allowing a witness to testify by telephone. Appellant claims the board lacked the authority to allow such testimony. We disagree. *Page 7 {¶ 16} Robert Neeley, the former husband of a woman who obtained prescriptions over the internet from appellant, testified about his ex-wife's addiction to both alcohol and hydrocodone. He testified that she had achieved a level of sobriety, but that she relapsed in December 2003, when she received a large amount of hydrocodone over the internet from appellant and Medsnationwide.com. Over appellant's objection, Mr. Neeley testified by telephone, because he lives in Alabama. He was the only witness to testify at the hearing other than appellant. {¶ 17} Generally speaking, a hearing officer has broad discretion in conducting administrative hearings. Althof v. Ohio State Bd. ofPsychology, Franklin App. No. 05AP-1169, 2007-Ohio-1010, at ¶ 61. The hearing examiner did not abuse that discretion in this case. Although there is no rule that specifically permits the board to take telephone testimony, Ohio Adm. Code 4731-13-03(C) requires a hearing examiner to "conduct hearing in such a manner as to prevent unnecessary delay, maintain order and ensure the development of a clear and adequate record." The language of the rule is broad enough to allow a hearing examiner to take telephone testimony when such testimony prevents delay and is helpful to the development of an adequate record. In this case, Mr. Neeley is a resident of Alabama and apparently could not attend the administrative hearing in Ohio. Thus, telephone testimony was an acceptable method of obtaining his testimony to ensure the development of an adequate record under the circumstances of this case. We also note that appellant was allowed to fully cross-examine Mr. Neeley. {¶ 18} Appellant also claims that she was prejudiced by the admission of Mr. Neeley's testimony. We disagree. His testimony described his life with his ex-wife, her addiction to drugs and alcohol, the effect of her addiction on their marriage, and how she *Page 8 acquired controlled substances over the internet. Appellant's only substantive objection3 to the testimony was a hearsay objection. The board overruled appellant's objection. {¶ 19} As a general rule, administrative agencies are not bound by the strict rules of evidence applied in courts. Haley v. Ohio State DentalBd. (1982), 7 Ohio App.3d 1, 6; Felice's Main Street, Inc. v. OhioLiquor Control Comm., Franklin App. No. 01AP-1405, 2002-Ohio-5962. The hearsay rule is relaxed in administrative proceedings. Id; Adanich v.Ohio Optical Dispensers Bd. (Oct. 8, 1991), Franklin App. No. 91AP-300. Thus, hearsay is permitted in administrative hearings, but the "`discretion to consider hearsay evidence cannot be exercised in an arbitrary manner.'" Fox v. Parma Community Gen. Hosp.,160 Ohio App.3d 409, 2005-Ohio-1665, at ¶ 59, quoting Menon v. Stouder Mem. Hosp. (Feb. 21, 1997), Miami App. No. 96-CA-27. Statements that would elsewhere be excluded as hearsay will be admissible in an administrative proceeding where they are not inherently unreliable, and may constitute reliable, probative, and substantial evidence. Doersam v. Gahanna (Sept. 30, 1997), Franklin App. No. 96APF12-1766; In re Petition for Annexation of162.631 Acres (1988), 52 Ohio App.3d 8. {¶ 20} The trial court did not abuse its discretion when it failed to find that the board erred by admitting Mr. Neeley's hearsay testimony. There is nothing in this record to indicate that his testimony was inherently unreliable. Mr. Neeley is an Assistant United States Attorney and he testified about his life and his experiences dealing with his ex-wife. Also, appellant never disputed that Mr. Neeley's ex-wife obtained the prescriptions from her while she worked forMedsnationide.com. Mr. *Page 9 Neeley's ex-wife was identified as patient #423 in the records of the prescriptions appellant wrote for Medsnationwide.com. Appellant stipulated that she personally authorized each of the prescriptions in those records. Thus, appellant admitted that she wrote a prescription for controlled substances for Mr. Neeley's ex-wife. The substance of Mr. Neeley's testimony was already in evidence. Therefore, the trial court did not abuse its discretion when it determined that Mr. Neeley's testimony was admissible before the board because it was not inherently unreliable. {¶ 21} Appellant also claims that Mr. Neeley's testimony was prejudicial because it was not indicative of appellant's "average patient" at Medsnationwide.com and was used to make it appear that the vast majority of her patients were drug addicts. Even assuming this to be true, appellant did not raise this issue in front of the board. Errors which are not brought to the attention of the administrative agency by objection or otherwise are waived and may not be raised on appeal. Staschak v. State Med. Bd. of Ohio, Franklin App. No. 03AP-799,2004-Ohio-4650, at ¶ 33; Morgan v. Bd. of Edn. of Girard City SchoolDist. (1993), 90 Ohio App.3d 627, 631. {¶ 22} For all of these reasons, appellant's second assignment of error is overruled. {¶ 23} Appellant contends in her third assignment of error that the board held her to a higher standard of care because of her former position with Maryhaven, a drug and alcohol treatment and rehabilitation center. She claims that the board sanctioned her because she was the former director of Maryhaven and, therefore, should have known *Page 10 better than to prescribe addictive, controlled substances without personally examining the patient. She also argues that the board failed to consider her mitigation evidence. We disagree. {¶ 24} The board did not hold appellant to a higher standard by taking into account her former employment. Instead, the board considered her former employment as an aggravating factor that weighed against evidence in favor of a lesser sanction. This was entirely proper, as her history of treating patients with drug and alcohol addictions makes her conduct in prescribing potentially addictive, controlled substances to patients she did not personally examine difficult to justify. Further, there is no evidence that the board failed to consider her evidence in mitigation. Merely because the board imposed a severe sanction does not lead to the conclusion that the board failed to consider her mitigation evidence. See Belcher v. Ohio State Racing Comm., Franklin App. No. 02AP-998, 2003-Ohio-2187, at ¶ 21; Auchi v. Liquor Control Comm., Franklin App. No. 06AP-493, 2006-Ohio-6003, at ¶ 13. Moreover, each board member acknowledged at the beginning of the hearing on appellant's case that they had received and considered the record of the case, including her objections, which adequately set forth her mitigation evidence in support of a lesser sanction.4 {¶ 25} In the hearing before the board, appellant did not dispute that her conduct violated the board's rules. Instead, she argued to the board for a moderate sanction based on her past history and willingness to assist the board in its investigation. In essence, her argument in this assignment of error boils down to her claim that the board's *Page 11 sanction was too harsh. Even if this court were to view her mitigating factors more favorably and disagree with the board's choice of sanction, we have no power to modify the board's lawfully imposed sanction.Reed. Appellant's third assignment of error is overruled. {¶ 26} Lastly, we grant the board's motion to strike additional evidence appellant seeks to introduce on appeal. The evidence, consisting of documents relating to the practice of telemedicine, was not presented to the board for its review and is not newly discovered evidence under R.C. 119.12. {¶ 27} Appellant's three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Motion to strike granted; judgment affirmed. BRYANT, J., concurs. TYACK, J., dissents. 1 The board also alleged that appellant inappropriately utilized controlled substances for purposes of weight loss treatment in violation of R.C. 4731.22(B)(20) and Ohio Adm. Code 4731-11-04(B) and (C). In a stipulation entered into by the parties, appellant admitted to these allegations. These allegations are not at issue in this appeal. 2 Because in-state and out-of-state physicians are all subject to the same requirements, we find appellant's constitutional claims unavailing. 3 Appellant made a foundational objection to Mr. Neeley's testimony about his wife's addiction. The board sustained her objection and requested counsel to lay a foundation for that testimony. Counsel then proceeded to lay a foundation for this testimony. 4 We note that the board was not even required to consider such evidence. Reed v. State Med. Bd. of Ohio, 162 Ohio App.3d 429,2005-Ohio-4071, at ¶ 39.

2016-07-06 06:36:33.772856+00

JOURNAL ENTRY AND OPINION This matter concerns a contract between the parties for construction of a home. Plaintiff-appellant/cross-appellee Paul Cosic, d.b.a. All Brick Homes, Inc. (Cosic) appeals from the trial court's decision which rendered judgment in favor of defendants-appellees/cross-appellants Dr. Kuldeep Singh, et al. (Singh) on certain of their counterclaims and against Cosic on his claims. Singh cross-appeals from the trial court's judgment that denied their claim for future interest and in finding that certain addenda extended the time for completing the construction of the home. Cosic argues that the trial court erred in adopting the magistrate's decision and that Cosic was denied his constitutional right of redress. For the reasons that follow, we affirm. In this case, the parties filed numerous claims and counterclaims. Trial was conducted before a magistrate who issued a decision. Although both parties filed certain objections to that decision with the trial court, neither party filed the transcript with the court. The trial court overruled the objections and adopted the magistrate's decision that rendered judgment against Cosic on his claims for breach of contract, mechanic's lien, assault and battery, rendered judgment in favor of the Singhs on their counterclaims for breach of contract, release of the mechanic's lien, conversion, and on the personal guarantee, and denied Singhs' counterclaims for negligence, slander of title, violation of the consumer sales practices act, tortious interference with business relationships, and fraud. One preliminary matter that we must determine is whether we can review the transcript presented to us on appeal in addressing the assignments and cross-assignments of error. As previously stated, there is no indication that any party filed this transcript, or any portion thereof, with the trial court. As a result, it is well-settled that: When a party objecting to a referee's report has failed to provide the trial court with the evidence and documents by which the court could make a finding independent of the report, appellate review of the court's findings is limited to whether the trial court abused its discretion in adopting the referee's report, and the appellate court is precluded from considering the transcript of the hearing submitted with the appellate record. [Citations omitted]. In other words, an appeal under these circumstances can be reviewed by the appellate court to determine whether the trial court's application of the law to its factual findings constituted an abuse of discretion. [Citation omitted]. State ex rel. Duncan v. Chippewa Twn. Trustees (1995), Ohio St.3d 728, 730; see, also, Brown v. Brown (Sept. 20, 2001), Cuyahoga App. No. 78551 (confining review of magistrate's decision to an abuse of discretion standard). Based upon this precedent, we can only review the magistrate's decision, as adopted by the trial court, under an abuse of discretion standard. Secondly, Singhs argue that our review is further limited to addressing only those assignments of error that relate to issues raised in the trial court. They rely upon the authority of Haddad v. English (2001),145 Ohio App.3d 598 to support the proposition that claims not raised in the trial court may not be raised on appeal. In response, Cosic relies upon Miller v. Miller (Aug. 17, 2000), Cuyahoga App. No. 75622 in asserting that an error may be raised for the first time on appeal under the plain error doctrine. Having reviewed the applicable law, we find that Cosic is limited to raising only those errors which he preserved through the objections to the magistrate's decision. Rule 53(E)(3)(b) of the Ohio Rules of Civil Procedure provides, in pertinent part, that: [a] party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule. The appellate court may review an error not objected to in the lower court under a plain error standard. See Goldfuss v. Davidson (1997),79 Ohio St.3d 116, 121 and Miller, supra. However, [i]n applying the doctrine of plain error in a civil case, reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings. Goldfuss, 79 Ohio St.3d at 121. Plain error exists when but for the error the outcome of the trial would have been different. State v. Moreland (1990), 50 Ohio St.3d 58,62, 552 N.E.2d 894. We do not find plain error in any of the assignments of error that were not preserved in Cosic's objections to1 the magistrate's decision. This is especially true since we cannot consider the transcript. Cosic raised the following objections to the magistrate's decision in the trial court: (1) the damages awarded to the Singhs for the security system, the vacuum system, the closets, the wiring, and the replacement of the bath; (2) damages/credits not awarded to Cosic for funds he disbursed from the construction loan for the plumbing fixtures, the extras afforded for the kitchen appliances, and for the upgrade to granite; (3) the magistrate's denial of Cosic's claim for assault and battery; and (4) the failure to award Cosic damages for supervision of work not covered. (R. 95). Cosic asserts twelve assignments of error and Signh assigns two errors for our review. In this appeal, the following assignments of error were not preserved by Cosic's objections to the magistrate's decision: Assignments of Error B2, D, F, H, I, K and L. Accordingly, we are left to review the following assignments of error under an abuse of discretion standard: A. The trial court erred in calculating the damages by failing to consider the allowances in the contract for each item for which damages were presented. B. The trial court erred in granting damages for a vacuum system, retaining wall, and window seats as the vacuum system, retaining wall and window seats were not in the contract. C. The trial court erred in granting damages for concrete in the bathtub as the concrete was left by the granite contractor who was not associated with Cosic and All Brick Homes. E. The trial court erred in failing to adjust the defendants' damages by the amounts paid for extras from the construction loan proceeds. G. The trial court erred as its finding that no contact was made by the defendant was against the manifest weight of the evidence. Abuse of Discretion Standard 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. Rock v. Cabral (1993), 67 Ohio St.3d 108, 112; Martin v. Martin (1985), 18 Ohio St.3d 292, 294-295; Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 219. When applying an abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161; Kunkle v. Kunkle (1990),51 Ohio St.3d 64, 67; Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131. In this case, we find that the trial court's application of the law to its factual findings did not amount to an abuse of discretion. Assignment of Error A Cosic argues that the trial court erred in awarding damages to the Singhs for the closets and the security system. The magistrate's decision, as adopted by the court, includes the following findings: the Singhs paid the full contract price * * *, plus additional sums to complete the work which was contemplated by the contract * * * to the extent that the choices of the Singhs exceeded allowances under the contract, said sums have been fully paid by the Singhs. (R. 97, Vol. 645 Pg. 165). Thereafter, the court found that the Singhs have spent or will be required to spend in the future the following sums to repair or complete the work contemplated by the contract: * * * $2,681.38 — paid to complete the security system * * * $2,000.00 — to complete the closets. Based on the foregoing, the trial court did not abuse its discretion in applying the law to its factual findings in awarding these damages. This assignment of error is overruled. ASSIGNMENT OF ERROR B The same factual findings apply to the court's award of $1,362.50 to the Singhs to complete the in-home vacuum system as raised in Cosic's objections and under Assignment of Error B in this appeal. For the same reasons set forth above, the trial court did not abuse its discretion in applying the law to its factual findings concerning the damages awarded for the vacuum system. This assignment of error is overruled. Assignment of Error C Cosic challenges the trial court's decision to award the Singhs $1,800.00 to replace the bathtub ruined by concrete. Cosic bases this challenge upon evidence from the transcript that allegedly would establish that one of the subcontractors hired by the Singhs caused the defect. As set forth previously, we cannot consider the transcript since there is no evidence of it being filed with the trial court as required by law. Ibid. The court found that the plaintiff breached the contract by failing to perform and that the Singhs have spent or will be required to spend in the future this sum to replace the bathtub. Accordingly, these findings support this award and do not merit reversal under the abuse of discretion standard. This assignment of error is overruled. Assignment of Error E Cosic alleges that the trial court erred in failing to award him amounts that he allegedly paid to third parties out of the construction loan. Again, we are confined to reviewing the facts as found by the court and applied to the law. Since the court found that the full payment has been made by the Singhs under the contract and that no amount remains due the contractor, we cannot conclude that the trial court abused its discretion in denying credits to Cosic for the plumbing, kitchen appliances, and granite installation. This assignment of error is overruled. Assignment of Error G While this assignment merely contests the court's finding that no contact was made, we will infer that Cosic implicitly contends that the court erred in denying his claim for battery. The court found that no contact was made during the argument. (R. 97, Vol. 645, Pg. 165). The court applied this finding to the law as follows: `a person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results.' Love v. City of Port Clinton, et al., 37 Ohio St.3d 98, at 99 (1998). (R. 97 Vol. 645, Pg. 165). Again, since we cannot consider the transcript, we cannot conclude that the trial court erred under the abuse of discretion standard by finding that no contact was made and denying Cosic's claim for battery. This assignment of error is overruled. ASSIGNMENT OF ERROR J J. The appellant was denied his right to redress in the courts as guaranteed by Ohio Constitution Article I, § 16. Cosic contends that his trial counsel's involvement in an automobile accident after trial and before the court rendered a decision denied him of his right to redress because, he argues, that this accident prevented his counsel from providing adequate representation in objecting to the magistrate's decision. Cosic asserts that we may address this constitutional issue relying upon the authority of Atkinson v. Grumman Ohio Corp. (1988),37 Ohio St.3d 80, which held that a constitutional issue may be raised for the first time on appeal. We find Atkinson distinguishable from this case. Atkinson addressed the issue of due process when a party did not receive notice of a final appealable order. Unlike the circumstances in Atkinson, the resolution of the constitutional issue asserted here turns upon facts related to counsel's performance uninfluenced and wholly independent of court procedural matters. Thus, in resolving the constitutional issue raised by Cosic would require consideration of evidence outside of the record. This we cannot do. State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus ([a] reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter.) We further recognize that the constitutional issue raised here also forms the basis of a motion for relief from judgment that Cosic reportedly filed with the trial court during the pendency of this appeal pursuant to Civ.R. 60(B). That motion is not the subject of this appeal. Accordingly, this assignment of error is not properly before this Court at this time and is therefore overruled. Singh Cross-Appeal The Singhs asserted two assignments of error in their cross-appeal. However, during oral argument they waived these issues should Cosic's assigned errors be overruled. We note that this is consistent with the position taken by the Singhs in their objections to the magistrate's decision. Based upon the disposition of Cosic's assigned errors, we do not reach the issues of the cross-appeal. Judgment affirmed. It is ordered that appellees/cross-appellants recover of appellant/cross-appellee their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the 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. MICHAEL J. CORRIGAN, P.J., and ANNE L. KILBANE, J., CONCUR. 1 This excludes consideration of the constitutional issue raised in Assignment of Error J which we address separately in this opinion. 2 With the exception of the vacuum system.

2016-07-06 06:36:34.149183+00

OPINION In an accelerated appeal of a slip and fall case, appellants, Janet and Benjamin Millard, appeal the decision of the Butler County Court of Common Pleas to grant summary judgment in favor of appellees, The Sisters of Mercy of Hamilton ("Mercy") and Hart Sealing, Inc. ("Hart"). We affirm the decision of the trial court. On October 19, 1993, Janet Millard ("Janet") fell on a U-shaped driveway located outside of Mercy Hospital and was injured. When Janet arrived at Mercy Hospital, it was not raining. However, when Janet was leaving Mercy Hospital, it was raining and she fell on the U-shaped driveway. Janet injured her ankle as a result of the fall. Millard filed a complaint against Mercy and Hart which was eventually voluntarily dismissed without prejudice pursuant to Civ.R. 41(A). The complaint, in essence, alleged Hart negligently applied sealer to the driveway and that Mercy failed to inspect the premises and/or warn those entering and exiting the hospital of the potential danger of the slipperiness of the driveway. The complaint was refiled and Hart and Mercy denied any liability in their respective answers. Hart and Mercy proceeded to move for summary judgment pursuant to Civ.R. 56. The trial court granted summary judgment in favor of Hart and Mercy. From this decision, appellants filed a timely notice of appeal and present one assignment of error for our review: The trial court erred by granting Defendant-appellees' Motions for Summary Judgment. Pursuant to Civ.R. 56(C), "the appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (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 DayWarehousing Co. (1978), 54 Ohio St.2d 64, 66. This court reviews a trial court's decision to grant summary judgment de novo. Jonesv. Shelley Co. (1995), 106 Ohio App.3d 440, 445. In their assignment of error, appellants argue that the trial court erred by granting appellees' motion for summary judgment. The trial court granted summary judgment to appellees based on two findings: (1) appellants' expert was not timely produced through discovery and this failure unfairly prejudiced appellees, and (2) in any event, the expert's testimony was "based on impermissible speculation and conjecture." Since we conclude that the record, including the expert testimony of H. Richard Hicks, is insufficient to create an issue of material fact in order for appellants to survive appellees' motion for summary judgment, we decline to address the discovery issue. H. Richard Hicks, a professional engineer, provided his expert opinion on the cause of appellant's fall through a report dated August 26, 1998. Hicks inspected the parking lot on December 2, 1997, more than four years after the accident. According to his report, "[s]lips are the result of insufficient resistance to movement between the pedestrians shoe and the walking surface." A slip resistance (SR) below 0.5 is considered unsafe. Hicks tested the SR at five locations, the fifth location being the area where appellant fell. The result at the fifth location was an SR of 0.65, within the safe range. However, Hicks concluded the SR when appellant slipped and fell would have been lower for three reasons: (1) the slope of the area where she fell reduced the effective SR; (2) there would have been a lower SR during wet conditions; and (3) since the parking lot had been recently sealed when appellant fell in 1993, the extra sealer would have created a lower SR. Hicks concluded that the lower SR was due to the surface sealer utilized by Hart Sealing, Inc. Specifically, Hicks found as follows: It is likely that the slipperiness of the surface sealer was due to one of the following: A. No sand put in the mix. B. Not enough sand put in the mix. C. Gradation of sand used was not of the necessary coarseness to provide the necessary slip resistance. D. Mix not properly agitated up until applied to the surface causing sand to settle out and not be applied to the surface. E. Mix applied too thick. Hicks could not identify which of these possible causes was responsible for the surface sealer which created an unsafe SR at the time of appellant's accident. Hicks is speculating about five theoretically possible causes for an unsafe SR at the time of the accident. In Stinson v.England (1994), 69 Ohio St.3d 451, paragraph one of the syllabus, the Supreme Court of Ohio held that "[t]he admissibility of expert testimony that an event is the proximate cause is contingent upon the expression of an opinion by the expert with respect to the causative event in terms of probability." The court held that "[a]n event is probable if there is greater than fifty percent likelihood that it produced the occurrence at issue." Id. Hicks' report that any one of five possible causes are likely to explain the slipperiness of the driveway does not meet the mandate ofStinson. Moreover, upon reviewing Hicks' entire affidavit, his conclusions are largely theoretical. Hicks is speculating about possible reasons that the surface sealer was inadequate in 1993. The only concrete test showed a SR of 0.65 at the location of the accident. Hicks fails to explain in sufficient detail to what extent wet conditions or more recent surface sealing would affect an SR, instead substituting conclusive statements. Of course, appellants are entitled to all reasonable inferences from the facts to be taken in their favor. However, Hicks' report is too far removed from the time and conditions of the accident. In short, we agree with the trial court that Hicks' report amounts to speculation and conjecture. Thus, construing the facts and inferences therefrom in appellants' favor, they have failed to establish a prima facie case of negligence. Accordingly, the assignment of error is overruled. Judgment affirmed. YOUNG and VALEN, JJ., concur.