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2022-09-09 23:54:31.469857+00

Brash

¶ 1. BRASH, J. Damien Markeith Divone Scott appeals his conviction for armed robbery with the threat of force as a party to a crime. Scott entered a guilty plea to this charge after the trial court denied his motion to suppress the evidence that was found during a vehicle search. The vehicle, in which Scott was a passenger, was stopped by West Allis police at a road block that was set up shortly after the armed robbery was committed. Scott argues that the police did not have reasonable suspicion to stop his vehicle, violating his Fourth Amendment protections against unreasonable searches and seizures, which renders the stop illegal. As a result, Scott asserts that the evidence obtained from the subsequent search of the vehicle should have been suppressed. ¶ 2. The trial court ruled that the circumstances of the stop qualified as a valid Terry1 investigative stop, as opposed to a "checkpoint" stop, which is not permitted in the absence of reasonable cause that a statutory or ordinance violation has been committed, pursuant to Wis. Stat. § 349.02(2)(a) (2015-16).2 The trial court therefore denied Scott's motion to suppress. ¶ 3. However, on appeal the State concedes that these circumstances did not constitute a Terry stop. Nevertheless, the State argues that these circumstances were sufficient to invoke an exception to the reasonable suspicion requirement of the Fourth Amendment for special needs of law enforcement. We agree and affirm. Background ¶ 4. In the early morning hours of September 29, 2015, an officer of the West Allis Police Department was "waved down" by a female outside of the 6500 Bar, located at 6500 West Greenfield Avenue in the City of West Allis. The female, L.B., stated that she had just been the victim of an armed robbery. L.B. explained that she was the co-owner of the 6500 Bar and had just closed it for the night. She had offered to give two people a ride home: A.W., a patron of the bar, and Cory Critton, who was later named as a co-defendant in this crime. ¶ 5. L.B. had in her possession at the time an animal print purse and a bank bag with the night's proceeds from the bar. She stated that as soon as she had gotten into her vehicle with A. W. and Critton, they were approached by a black male brandishing a handgun that was similar to a police service weapon. He was wearing a dark sweatshirt with a white design on the front, and had a bandana over his face. He ordered L.B. to give him both the bank bag as well as her purse. Additionally, Critton handed over two cell phones to the perpetrator. L.B. told Officer Jesse Fletcher that the perpetrator had then fled on foot, running east on Greenfield Avenue before turning into an alley between 64th and 65th Streets. ¶ 6. Officer Erin Luedtke of the West Allis Police Department responded to the armed robbery complaint as well. Officer Luedtke testified that standard police department protocol for this type of situation is for several officers to set up a perimeter around a crime scene to "contain the area" for purposes of searching for and identifying suspects. She explained that in her experience, perpetrators of crimes "tend to use vehicles to flee the scene." Thus, because the crime had taken place within the previous few minutes, she took up a position at the intersection of 65th Street and Madison Street, approximately one block away from the crime scene. She positioned her squad car across the southbound lane of 65th Street, effectively blocking the intersection of 65th Street and Madison Street, and activated the squad lights. ¶ 7. While at that location, Officer Luedtke encountered three vehicles. The first vehicle contained two Hispanic males who were dressed in blue jumpsuits, consistent with uniforms worn by workers from a nearby factory. The occupants immediately confirmed that they had just finished work at the factory, so Officer Luedtke allowed them to proceed around her squad car. ¶ 8. In the second car that Officer Luedtke confronted there were two black males, one of whom was driving and the other in the passenger seat. She noted that the passenger's sweatshirt was inside-out but had some sort of design on it, and that he was sweating and very nervous. By that time other officers had responded, and the passenger, later identified as Scott, was ordered to exit the vehicle. Scott appeared to search for a means of escape, and then began to physically resist the officers. He also attempted to grab Officer Luedtke's service pistol as well as an assault rifle that was strapped to another officer. The officers were eventually able to gain control of Scott, and he was taken into custody along with the driver, Damiso Lee.3 ¶ 9. After the arrests, the vehicle was searched; the police discovered two Glock pistols as well as a bank bag and an animal print purse. Furthermore, the police later retrieved messages from Critton's cell phone that was recovered from Scott, which indicated that Critton had set up the robbery with Scott. Critton, Lee, and Scott were all charged with armed robbery, with Scott incurring additional charges of disarming a police officer and resisting arrest. ¶ 10. Scott filed a motion to suppress the evidence found in the vehicle, asserting that Officer Luedtke's stop of his vehicle was illegal because she did not have reasonable suspicion for the stop. At the motion hearing held on February 4, 2016, the trial court determined that the foundational issue was to ascertain the nature of the stops that Officer Luedtke had performed on both Scott's vehicle as well as on the other vehicle with the factory workers: whether they were "checkpoint stops" or Terry stops. f 11. The court utilized a balancing test by applying the "totality of the circumstances" surrounding the stops in order to weigh "the government's interest in weeding out crime against the individual's right to personal security." The trial court opined that if the stops had been checkpoint stops they likely would not have passed constitutional muster. However, based on the totality of the circumstances, the court concluded that both stops were Terry stops. Furthermore, the court found that it was appropriate conduct by the police in that situation, and thus the stops were valid under Terry. Therefore, the trial court denied Scott's motion to suppress. ¶ 12. Shortly thereafter, on February 8, 2016, Scott entered a guilty plea to the charge of armed robbery, the charge of disarming a police officer was dismissed outright, and the charge of resisting arrest was dismissed but read in. Scott was then sentenced on March 28, 2016. This appeal follows. Discussion ¶ 13. Scott's motion to suppress alleged that his Fourth Amendment right against unreasonable searches and seizures was violated. Our review of a motion to suppress involves a two-step process: (1) we review the trial court's findings of fact and uphold them "unless they are clearly erroneous"; and (2) we then review de novo "whether those facts constitute reasonable suspicion." State v. Sumner, 2008 WI 94, ¶ 17, 312 Wis. 2d 292, 752 N.W.2d 783. ¶ 14. It is firmly established law in Wisconsin that "when police stop a vehicle, all of the occupants of that vehicle are seized," and thus the protections of the Fourth Amendment are triggered. State v. Harris, 206 Wis. 2d 243, 256-57, 557 N.W.2d 245 (1996); see also Whren v. U.S., 517 U.S. 806, 809-10 (1996). The " 'touchstone of the Fourth Amendment is reasonableness,' " which is "measured in objective terms by examining the totality of the circumstances." Ohio v. Robinette, 519 U.S. 33, 39 (1996) (citation omitted). In applying the reasonableness test, the United States Supreme Court has "consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry." Id. In determining the reasonableness of a search, the courts must weigh "the governmental interest which allegedly justifies" the search against "the invasion which the search. . . entails." Terry, 392 U.S. at 21. In making this determination, the courts look to " 'the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.1" Illinois v. Lidster, 540 U.S. 419, 427 (2004) (citation omitted). 1 15. Generally, a search or seizure will be deemed unreasonable "in the absence of individualized suspicion of wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). However, the United States Supreme Court has recognized that there are "limited circumstances in which the usual rule does not apply," such as when a "suspicionless searchQ" is "designed to serve 'special needs, beyond the normal need for law enforcement.' " Id. ¶ 16. As previously noted, although the trial court determined that the stop of Scott's vehicle was an investigative stop under Terry, on appeal the State concedes that the stop of Scott's vehicle cannot be justified as such. Instead, it argues that the stop was nevertheless reasonable under the "special needs exception" whereby police checkpoints have been deemed constitutional even in the absence of individualized suspicion. Wisconsin appellate courts, however, have not adopted or even discussed this exception as it relates to checkpoints. Therefore, we begin our analysis of this argument by reviewing relevant federal case law.4 ¶ 17. In explaining the special needs exception, the United States Supreme Court stated that there are "circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control." Edmond, 531 U.S. at 44. In fact, the Court noted examples such as "an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route" as situations in which the special needs exception could be properly invoked. Id. In other words, under circumstances where "special law enforcement concerns . . . justify highway stops without individualized suspicion," the application of the special needs exception may be appropriate. Lidster, 540 U.S. at 424. ¶ 18. A review of the Supreme Court's decisions relating to the special needs exception provides further clarification. In Edmond, for example, the Court found that a narcotics checkpoint instituted by the City of Indianapolis violated the Fourth Amendment because its "primary purpose" was to "uncover evidence of ordinary criminal wrongdoing." Id., 531 U.S. at 41-42. The Court distinguished this type of checkpoint from others it had previously upheld as constitutional, such as a sobriety checkpoint in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), and immigration checkpoints on highways close to the Mexican border in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), based on their primary purpose. Edmond, 531 U.S. at 37. The Court explained the distinction: "Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life." Id. at 42. ¶ 19. In contrast, in Lidster at issue was the constitutionality of a police checkpoint where the purpose of the stop was to seek information relating to a hit-and-run accident that had occurred in the same area the week before. Lidster, 540 U.S. at 427. The Court declared that this checkpoint stop should be distinguished from the checkpoint in Edmond because in Lidster the purpose of the checkpoint went beyond ordinary crime control; therefore, the "presumptive rule of unconstitutionality" for checkpoints applied in Edmond was not applicable in Lidster. Lidster, 540 U.S. at 426. Instead, the Court determined that it was appropriate to apply the reasonableness factors to the individual circumstances of that case to resolve the issue. Id. at 426-27. ¶ 20. In its analysis of the factors for determining reasonableness—the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty—the Court concluded that there was a grave public concern in finding a hit-and-run motorist who had caused a death which was advanced by this checkpoint. Id. at 427. Moreover, the Court found that "[m]ost importantly, the stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect." Id. It noted that this checkpoint was analogous to police questioning pedestrians during the investigation of a crime. Id. at 425-26. In sum, the Court upheld this checkpoint as constitutional, stating that "the fact that such stops normally lack individualized suspicion cannot by itself determine the constitutional outcome." Id. at 424. f 21. Still, neither of these cases exactly tracks the factual scenario here: a Fourth Amendment claim where individualized suspicion is developed toward a particular person after the initial checkpoint stop. However, a similar situation was addressed by the Court of Appeals for the Tenth Circuit in United States v. Paetsch, 782 F.3d 1162 (10th Cir. 2015), cert. denied, 136 S. Ct. 195 (2015). In Paetsch, the police in Aurora, Colorado, barricaded twenty cars on a street after learning that one of the cars contained a Global Positioning System (GPS) tracker that had been concealed with money stolen in a bank robbery minutes earlier. Id. at 1165. The tracker could locate the perpetrator to within a sixty-foot diameter. Id. at 1166. f 22. Based on information from the tracker, the police knew that the perpetrator had gotten into a vehicle that was stopped at a red light. Id. While waiting for the arrival of an officer with a homing beacon that would narrow the location of the tracker to a ten-foot diameter, police removed the occupants of all of the vehicles that were detained at the checkpoint, including Paetsch, who was eventually identified as the bank robber. Id. at 1167. After Paetsch was removed from his vehicle, police spotted a $2000 money band in his vehicle, which is used by banks to wrap stacks of money. Id. After some difficulties with the homing beacon, police received a strong signal from the tracker coming from Paetsch's vehicle. Id. In the ensuing search of Paetsch's vehicle, police recovered two handguns and over $22,000 in which the GPS tracker was embedded, along with other items linking Paetsch to the bank robbery. Id. f 23. Paetsch filed a motion to suppress, arguing that his Fourth Amendment rights were violated because the police did not have individualized suspicion at the time that they barricaded the street, and that intrusion on his Fourth Amendment rights outweighed the interests of the government. Id. at 1168. The district court denied the motion. Id. ¶ 24. The Tenth Circuit upheld that decision, concluding that the checkpoint stop utilized within the barricade was constitutional. Id. In making its determination, the court applied the special needs exception as it was applied by the Supreme Court in Lidster, because "the primary purpose of [the] group seizure went beyond ordinary crime control." Paetsch, 782 F.3d at 1169. The court then applied the reasonableness factors to the circumstances of the establishment of the barricade, and found that because the first two factors (the gravity of the public concern and the degree to which the seizure advanced the public interest) outweighed the third (the severity of the interference with individual liberty), the barricade did not violate Paetsch's Fourth Amendment rights. Id. at 1175. ¶ 25. Turning to the facts here, the reasoning behind the checkpoint established by Officer Luedtke moments after the armed robbery is very similar to the purpose of the barricade established by the police in Paetsch: although Officer Luedtke did not have the benefit of a GPS tracker, she knew from her experience that the perpetrator had likely accessed a nearby vehicle after fleeing the immediate scene on foot. As such, the primary purpose of the checkpoint here went beyond ordinary crime control, in that it was an "appropriately tailored roadblock" set up by the police in order to apprehend "a dangerous criminal" who was "likely to flee by way of a particular route." See Edmond, 531 U.S. at 44. Therefore, rather than applying the "presumptive rule of unconstitutionality" to this checkpoint, we find that these circumstances warrant an analysis as to whether the application of the special needs exception to the protections of the Fourth Amendment, as it has been applied in federal case law, is appropriate here. See Lidster, 540 U.S. at 426. f 26. Accordingly, we apply the reasonableness factors to the facts of this case. First, the gravity of the public concern is clear, in that an armed individual had just committed a robbery in the vicinity of where the roadblock was established. See Paetsch, 782 F.3d at 1170. The second factor, the degree to which the seizure advanced the public interest, is demonstrated by the effectiveness of the barricade: the perpetrator of the armed robbery—Scott—was apprehended in the second vehicle stopped at the roadblock, and taken into custody. See id. at 1171. f 27. Federal case law indicates that the final step of the analysis is to weigh the first two factors against the third factor: the severity of the interference with individual liberty. See id. at 1172. In this case, there were three vehicles affected by the roadblock. In the first vehicle, the occupants were determined to be factory workers on their way home, and they were waived through the roadblock in mere seconds. The second vehicle contained Scott, who was quickly identified as a suspect and taken into custody shortly after the vehicle was stopped. The third vehicle was allowed to leave the scene while the officers were taking Scott into custody. ¶ 28. Based on our assessment of the circumstances as set forth in the record, we find that the severity of the interference with the individual liberties of those who were detained at the roadblock was minimal. Therefore, we find that in this case the Fourth Amendment protections represented by the third factor do not outweigh the public interest aspects of the first two factors. f 29. As a result, we find that, under these circumstances, the checkpoint established immediately after the armed robbery was constitutional. Therefore, although we disagree with the trial court's analysis of the stop and the proper standard for determining its reasonableness under the Fourth Amendment, we nevertheless affirm its denial of Scott's motion to suppress. By the Court.—Judgment affirmed. Terry v. Ohio, 392 U.S. 1 (1968). All references to the Wisconsin Statutes are to the 2015—16 version unless otherwise noted. During the time that the officers were taking Scott into custody, the third vehicle was allowed to leave the scene. In fact, in this appeal Scott argues only that his federal Fourth Amendment right was violated; he does not present any arguments relating to the violation of any rights under the Wisconsin Constitution. Thus, we do not address his arguments from the basis of the Wisconsin Constitution.

2016-07-06 06:36:31.584055+00

Carpenter

For more than nine years prior to December 15, 1932, J.F. Huffman, one of the defendants in the trial court, a plaintiff in error here, had been assistant cashier of The Kunkle State Banking *Page 164 Company, of Kunkle, Ohio. The defendant, The American Surety Company, the other plaintiff in error here, was during all that time the surety on Huffman's bond to the bank for $10,000, securing it against dishonesty of Huffman as such employee. The premiums on the bond were paid by the bank to above date. Since the bank holiday in March, 1933, the bank has been closed, and soon after said holiday it was taken over for liquidation by the plaintiff below, the Superintendent of Banks. The superintendent brought this action alleging defalcations by Huffman in the bank's accounts in the sum of $1,511, for which, with interest, he asked judgment against Huffman and the surety company. The amended petition sets up the terms and conditions of the bond, and a copy of it; also the specific items by which it is claimed said sum of $1,511 was embezzled by Huffman. The separate answers of both defendants admit the formal relationships of the parties substantially as alleged, including the employment of Huffman as assistant cashier of the bank and the execution of the bond, but deny the other allegations of the amended petition as amended. As a separate defense the surety company averred that prior to August 15, 1931, Huffman had misappropriated $1,600 of the funds of the bank, and that on or about that time he settled that matter with the bank by restoring to it the $1,600, but that the bank did not give the surety company notice of such default, as required by one of the conditions of the bond, and that thereby the bond became void. The cause was tried to a jury, which returned a verdict against both defendants, and for the plaintiff for the full amount claimed, a total of $1,552.20. The surety company propounded five interrogatories to the jury relative to the claimed default prior to August 15, 1931, but the answers were, in effect, that the directors and officers of the bank did not know about *Page 165 that default or the settlement of it. The defendants do not now claim anything for this defense, except that some of the items in plaintiff's claim were in fact settled by the return of the $1,600 made in 1931. The evidence does not show the items covered by that settlement, hence the defense of payment is not sustained. The errors claimed by the defendants are: 1. Failure of the court to define the issues in the general charge, particularly as required by counsel for the surety company in asking that the issues as to Huffman and the surety company be differentiated. In stating the issues, the trial court did not make any distinction between the defendants. The issues as to the compliance by the bank with the conditions of the bond, as to notice to the company of losses discovered, and proofs of the same, were made applicable to Huffman. That was error. If Huffman did embezzle money of the bank it could be no defense to him that notice of the discovery of that fact was not given his surety. But who was prejudiced by this error? Had the verdict been for the defendants the plaintiff might have complained, but neither Huffman nor the surety company was injured, because the bar was placed too high as to Huffman. 2. Error in the charge of the court as to notice to the surety of the discovery of the default. The bond contains the following provisions: "Provided however, "(1) That loss be discovered during the continuance of this suretyship and within fifteen months immediately following the termination thereof, and that notice of such loss be delivered to the surety at its home office in the City of New York within tendays after such discovery." An amendment to the amended petition alleges the Bank discovered $1,180 of the claimed default December 10, 1932, and on December 12, 1932, notified the Toledo, Ohio, office of the surety company of such discovery, *Page 166 and "that the defendant The American Surety Company of New York acted on said notice and by its actions and conduct waived the requirements of said contract that such notice be delivered at the home office * * * in the City of New York." There was evidence that discovery of $1,180 of the claimed default was made December 10, 1932, and a letter written by the cashier of the bank to the Toledo, Ohio, office of the company informing it of such discovery. This letter was received December 12, 1932, and acknowledged by letter by the manager of that office under date of December 14, 1932, and directions were given with reference to preparing and filing formal proof of claim. Formal proof of this claim was received by the New York office January 12, 1933. On this original proof, which was in evidence, having been furnished by the company on demand of the plaintiff, appears an endorsement, "Entry of Claim, 12/23/32." The evidence is silent as to how and when information of such claim got to the home office of the company. July 10, 1933, an additional $50 claimed defalcation was discovered, and July 13, 1933, a further one of $281. As to each of these, timely notices were sent to the New York office, and no complaint is made as to these two notices. In the charge on the subject of notice, the court said: "The contract of suretyship contains a provision that the said bank, upon discovering any loss it has sustained by reason of the dishonesty of an employe, shall give notice within ten days after such discovery to the defendant American Surety Company at its home office in the City of New York. This provision is inserted in the contract for the benefit of the Surety Company, and its strict compliance on the part of the Bank may be waived by the defendant American Surety Company. If you find by a preponderance of the evidence that the bank, upon discovering loss suffered *Page 167 by it by reason of the dishonest acts of said J.F. Huffman, gave notice to the defendant surety company within ten days after such discovery, at its office in Toledo, Ohio, and further find that such notice was received and acted on by the person or persons in charge of such office, then, as a matter of law and I so charge you, the defendant American Surety Company, by its conduct has waived the requirement of the contract of suretyship that such notice be delivered to its home office in New York City." There was no evidence as to the authority of the person or persons in charge of such office (meaning the Toledo office of the company) to receive or act upon such notice. In the absence of such evidence, the instruction above quoted was erroneous and prejudicial in saying to the jury that if "such notice was received and acted on by the person or persons in charge of such office then as a matter of law" the company waived the requirement as to notice. By that instruction the jury was precluded from pursuing any investigation as to what happened in the way of completing notice to the home office of the company by those in the Toledo office, or by any other authorized action by the company on the notice as given. In positive terms the jury was told it only needed to look to what happened at the Toledo office. It was not told what "the person or persons in charge of such office" needed to do when they "acted on" such notice to constitute a waiver by the company of its right to have notice of loss given it at its New York Office. By this charge the jury might very well infer that when the Toledo manager acknowledged to the bank receipt of the notice he "acted on" it. In this respect that instruction was misleading to the jury in that it practically withdrew from the consideration of the jury the question whether the bank complied with that condition of the contract or the surety company *Page 168 waived such compliance. This was error. Taylor v. Schlichter,118 Ohio St. 131, 160 N.E. 610. It precluded the application of the liberal rule by which a fact issue may be made as to waiver of such conditions as laid down in Lind v. State Automobile MutualIns. Co., 128 Ohio St. 1, 190 N.E. 138. Counsel for defendant in error in their brief assert that the defendants did not question the "timeliness of the notice of loss." The burden of pleading and proving such notice or its waiver was on the plaintiff. Moody v. Ins. Co., 52 Ohio St. 12,38 N.E. 1011, 49 Am. St. Rep., 699, 26 L.R.A., 313. 3. Errors in the admission of evidence. Such errors were urged, but these, if there were any, were not important or prejudicial. 4. As to a large number of claims, it is asserted the verdict is against the weight of the evidence and not supported by the evidence. This claim is not well taken. For the error in the charge of the court noted above in Item 2, the judgment must be reversed and the cause remanded for a new trial. Judgment reversed and cause remanded. LLOYD and OVERMYER, JJ., concur. *Page 169

2016-07-06 06:36:31.995401+00

Grady

OPINION {¶ 1} Plaintiff, Sheila Kennerly, appeals from an order of thecourt of common pleas that granted a Civ.R. 12(C) motion forjudgment on the pleadings filed by Defendants, Montgomery CountyBoard of Commissioners, et al. ("Board"). {¶ 2} On July 13, 1999, Kennerly's son, Byron, was murdered byPeter Atakpu, following Atakpu's removal of an electronic homemonitoring restraint he wore pursuant to court order and hisescape from home detention. {¶ 3} Kennerly commenced the action underlying this appealagainst the Board and the manufacturer of the device on claimsfor relief for wrongful death and loss of consortium. *Page 273 {¶ 4} The manufacturer settled and was dismissed from theaction. The Board, following its responsive pleadings, filed aCiv.R 12(C) motion for judgment on the pleadings, arguing that itwas entitled to judgment on grounds of immunity. {¶ 5} The trial court granted the Board's motion. Kennerlyappeals. ASSIGNMENT OF ERROR {¶ 6} "The trial court erred by granting the commissioners'motion for judgment on the pleadings because no statutoryimmunity from liability exists when the negligence proximatelycausing the injury occurred on governmental property and,furthermore, because the public duty doctrine cannot provideimmunity to the commissioners as the doctrine has been supercededby the enactment of ohio revised code section 2744 et seq." {¶ 7} Political subdivisions of the State of Ohio are immunefrom civil liability for damages arising from injury, death, orloss to persons caused by any act or omission of the politicalsubdivision or its employees in connection with the performanceof a governmental or proprietary function. R.C. 2744.02(A)(1). {¶ 8} It is undisputed that the Board is a politicalsubdivision of the State. R.C. 2744.01(F). It is also undisputedthat utilization by the Board or its employees of the electronichome monitoring requirements to which Atakpu was subject, andwhich he violated or disabled, constitutes a governmentalfunction. R.C. 2744.01(C)(8). {¶ 9} A political subdivision may nevertheless be deprived ofthe blanket immunity that R.C. 2744.02(A)(2) provides if any ofthe express exceptions of R.C. 2744.02(B) apply to the claim orclaims for relief on which liability may result. Paragraph (4) ofthat section states: {¶ 10} "Except as otherwise provided in section 3746.24 of theRevised Code, political subdivisions are liable for injury,death, or loss to persons or property that is caused by thenegligence of the employees and that occurs within or on thegrounds of buildings that are used in connection with theperformance of a governmental function, including, but notlimited to, office buildings and courthouses, but not includingjails, places of juvenile detention, workhouses, or any otherdetention facility, as defined in section 2921.01 of the RevisedCode." (Emphasis supplied). {¶ 11} Detention facilities are defined by R.C. 2921.01(F) toinclude any public or private place used for confinement of aperson charged with or convicted of any crime. R.C. 2929.23provides for electronically-monitored house arrest and/ordetention of persons confined in those circumstances. Evenassuming that the location to which the detainee is confined istherefore a detention facility, such places are expresslyexcepted from the exemption from governmental liability for whichR.C. 2744.02(B)(4) provides. However, that issue was not the oneon which the trial *Page 274 court granted judgment in favor of the Boardon a finding that R.C. 2744.02(B)(2) has no application. {¶ 12} The other requirement imposed by R.C. 2744.02(B)(4)which the trial court found controlling of the Board's immunityor lack thereof is that the injury, death, or loss to persons orproperty claimed must be one that "occurs within or on thegrounds of buildings that are used in connection with theperformance of a governmental function." The record does notreflect where Kennerly's son was attacked and killed by Atakpu.However, at oral argument Kennerly stipulated that it was not inor on the grounds of a governmental building. Kennerly arguesthat the situs of the inquiry requirement no longer applies, perHubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451,2002-Ohio-4718. {¶ 13} In Hubbard, a young girl was sexually assaulted by aschool board employee on the premises of a school. Provision of asystem of public education is a governmental function. R.C.2744.01(C)(1)(c). School districts are political subdivisions.R.C. 2744.01(F). The defendant school board argued that it wasnevertheless immune per R.C. 2744.02(B)(4) because the injuriesinvolved in the girl's sexual assault were not the result ofphysical defects within or on the grounds of the building. Theschool board argued that the additional "premises liability"requirement was within the contemplation of the General Assemblyin several recent amendments it had enacted to R.C.2744.02(B)(4). {¶ 14} The Supreme Court rejected the school board'scontention. It noted that the amendments on which the boardrelied were parts of several "tort reform" efforts the Court hadheld unconstitutional in State ex rel. Ohio Academy of TrialLawyers v. Sheward (1999), 86 Ohio St.3d 451, and Stevens v.Ackerman, 91 Ohio St.3d 182, 2001-Ohio-249. The Court declinedto apply the limitations the General Assembly enacted, for thatreason, or to read them into the text of R.C. 2749.02(B)(4) as itexisted without them. The Court held: {¶ 15} "The exception to political-subdivision immunity inR.C. 2744.02(B)(4) applies to all cases where an injury resultingfrom the negligence of an employee of a political subdivisionoccurs within or on the grounds of buildings that are used inconnection with the performance of a governmental function. Theexception is not confined to injury resulting from physicaldefects or negligent use of grounds or buildings." {¶ 16} It may be that R.C. 2744.02(B)(4) makes more sense whenapplied as an exception to immunity with respect to claims forrelief for premises liability than as an exception to immunityfor all claims alleging negligence on the part of *Page 275 governmentalemployees. After all, if its scope is that broad, what differencedoes it make that the employee's negligence occurredoff-premises? However, we need not be occupied by that question.The issue for us is whether per R.C. 2744.02(B)(4) PlaintiffKennerly's claims for relief arising from her son's murdersurvive the Defendant Board's immunity claim. {¶ 17} We find nothing in Hubbard that rejects therequirement imposed by R.C. 2744.02(B)(4) that the injury, death,or loss from which the alleged liability arises must be aninjury, death, or loss "that occurs within or on the grounds ofbuildings that are used in connection with the performance of agovernmental function." R.C. 2744.02(B)(4). Hubbard merelystands for the proposition that the exception for which R.C.2744.02(B)(4) provides "is not confined to injury resulting fromphysical defects or negligent use of grounds or buildings."Id., at p. 455. {¶ 18} Kennerly relies on a sentence in the Hubbard opiniondirectly following the one just quoted. It states: "Since theinjuries claimed by the plaintiffs were caused by negligenceoccurring on the grounds of a building used in connection with agovernmental function, R.C. 2744.02(B)(4) applies and the boardis immune from liability." Standing alone, that passage might beread to indicate that the statutory exception to immunity turnson where the negligent act occurs. And, an argument may be madethat, here, the Defendant Board's negligent act or omission thatpermitted Atakpu's escape occurred in such a place becauseinstallation and supervision of his electronic home monitoringtook place there, at least in part. {¶ 19} We do not read Hubbard to hold that application ofR.C. 2744.02(B)(4) turns on where the negligent act occurred.Viewed as a premises liability provision, the negligent act oromission typically would occur on the premises or grounds of apublic building, but a reading of R.C. 2744.02(B)(4) supports aview that the negligent act or omission itself might not have tooccur in or on the grounds of a public building at all. Thenegligent act or omission need merely be the proximate cause ofthe injury, death, or loss complained of. Even so, and regardlessof where the negligent act takes place, neither Hubbard nor aplain-meaning construction of R.C. 2744.02(B)(4) permits itsapplication to an injury, death, or loss that occurs anywhereother than in or on the grounds of a building where agovernmental function from which the harm proximately resulted isperformed. {¶ 20} On this record, Kennerly's claims for relief arisingfrom her son's death cannot fit within the R.C. 2744.02(B)(4)exception because the death did not occur in or on the grounds ofa building where the governmental function took place from whichthe death allegedly arose. The trial court was correct when itdeclined to apply the R.C. 2744.02(B)(4) exception for thatreason. *Page 276 {¶ 21} Kennerly also cites several other appellate decisionsin which immunity was denied. However, each differs significantlyfrom the issue presented here on the facts and/or law on whichthe case was decided. We need not distinguish them further. {¶ 22} Finally, Kennerly argues that the common law PublicDuty Rule announced in Sawicki v. Village of Ottawa Hills(1988), 37 Ohio St.3d 222, supercedes any immunity that the Boardenjoys pursuant to R.C. 2744.02(A)(1). That rule, while it nolonger applies to claims against the state, "remains viable asapplied to actions brought against political subdivisionspursuant to R.C. 2744." Yates v. Mansfield Bd. of Edn.,102 Ohio St.3d 205, 212, Fn. 2, 2004-Ohio-2491. {¶ 23} Under the Public Duty Rule, a public official orpolitical subdivision may be liable for a breach of a duty if itis a "special duty" imposed by law. A duty is a special duty ifit involves: (1) an assumption of an affirmative duty by apolitical subdivision, (2) knowledge on the part of the politicalsubdivision or its agents that inaction could cause harm, (3) adirect contact between the political subdivision's agents and theplaintiff, and (4) the plaintiff's justifiable reliance on thepolitical subdivision's affirmative undertaking. Sawicki at p.232. {¶ 24} Here, the tragic death of Kennerly's son resulted froman act of violence committed by Atakpu. There was no directcontact between Kennerly or her son and the Board's agents fromwhich that arose. Neither had Kennerly's son specifically reliedon the Board's proper performance of its duties. No special dutyexisted, therefore, and the Public Duty Rule cannot apply. {¶ 25} The assignment of error is overruled. The judgment ofthe trial court will be affirmed. Judgment affirmed. Brogan, J. and Young, J., concur. *Page 277

2016-07-06 06:36:32.237273+00

Batcheldek

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, the state of Ohio ("the State"), appeals from the decision of the Summit County Court of Common Pleas. We reverse. On February 26, 1998, Mr. Robert L. Tipton, appellee, was indicted on ten counts. On August 11, 1998, Mr. Tipton was indicted on three more counts including one count of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32(A)(1), and one count of conspiracy to engage in a pattern of corrupt activity, in violation of R.C. 2923.32(A)(1) and 2923.01. The State voluntarily dismissed three counts from the February 26, 1998 indictment and the trial court dismissed four other counts. On September 21, 1998, Mr. Tipton filed a motion to dismiss two of the remaining counts, engaging in a pattern of corrupt activity and conspiracy to engage in a pattern of corrupt activity. The trial court conducted hearings on Mr. Tipton's motion to dismiss on October 19 and 22, 1998. In an order dated October 30, 1998, the trial court granted the motion to dismiss in part, dismissing the State's allegations that grand theft and perjury were predicate offences to the charges of engaging in a pattern of corrupt activity and conspiracy to engage in a pattern of corrupt activity. This appeal followed. The State asserts one assignment of error: THE TRIAL COURT ERRED WHEN IT DISMISSED AS BEYOND THE STATUTE OF LIMITATIONS PREDICATE ACTS COMPRISING ELEMENTS OF THE CHARGES OF ENGAGING IN A PATTERN OF CORRUPT ACTIVITY AND CONSPIRACY TO ENGAGE IN A PATTERN OF CORRUPT ACTIVITY. The State argues that the trial court erred by granting, in part, Mr. Tipton's motion to dismiss. The State asserts that it was improper for the trial court to look beyond the face of the indictment to determine whether a motion to dismiss was proper at the pre-trial stage. Moreover, the State argues that the trial court should not have examined evidence in ruling on Mr. Tipton's motion to dismiss. We agree. When a defendant in a criminal action files a motion to dismiss which goes beyond the face of the indictment, he is, essentially, moving for summary judgment. The Ohio Rules of Criminal Procedure, however, do not allow for "summary judgment" on an indictment prior to trial. State v. McNamee (1984), 17 Ohio App.3d 175, *Page 229 17 OBR 306, 478 N.E.2d 843; Akron v. Davis (July 31, 1991), Summit App. No. 14989, unreported, 1991 WL 149743. Since [the defendant's] claim went beyond the face of the indictment, he could present his challenge only as a motion for acquittal at the close of the state's case. Crim.R. 29(A). As a general rule, "premature declarations," such as that presented [in a pre-trial motion to dismiss], are strictly advisory and an improper exercise of judicial authority. Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 35, 257 N.E.2d 371, 372. State v. Varner (1991), 81 Ohio App.3d 85, 86. The trial court erred in granting Mr. Tipton's pre-trial motion to dismiss. The trial court went beyond the face of the indictment, looking to the quantum of evidence that the state may be able to present on the perjury offense at trial and looking to evidence adduced at hearings conducted on the motion to dismiss. Moreover, "[w]ere we to recognize the validity of such a procedure, trial courts would soon be flooded with pretrial motions to dismiss alleging factual predicates in criminal cases." Id. Hence, we conclude that the trial court erred by looking beyond the face of the indictment when it granted Mr. Tipton's motion to dismiss. Accordingly, the State's assignment of error is sustained. Therefore, the judgment of the Summit County Court of Common Pleas is reversed and the cause is remanded for further proceedings not inconsistent with this decision. 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 Summit, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). Costs taxed to Appellee. Exceptions. WILLIAM G. BATCHELDER FOR THE COURT CARR, P.J. WHITMORE, J. CONCUR

2016-07-06 06:36:32.419041+00

Hadley

This is an appeal by the plaintiff-appellant, state of Ohio ("appellant"), from the judgment of the Common Pleas Court of Seneca County dismissing three counts of endangering children, a misdemeanor of the first degree, in violation of R.C. 2919.22(A) and two counts of sexual battery, a felony of the third degree, in violation of R.C. 2907.03(A)(5) against defendant-appellee, Richard N. Heebsh ("appellee"). *Page 553 Appellee was originally indicted on three counts of endangering children and three counts of sexual battery on August 23, 1991 against Jil Musil, f.n.a. Jil Therriault ("Jil"), when she was fifteen, sixteen and seventeen years of age. The facts giving rise to count one, endangering children, and count two, sexual battery, alleged to have occurred during June 1981, up to and including October 27, 1981. The facts giving rise to count three, endangering children, and count four, sexual battery,1 are alleged to have occurred on October 28, 1981. The facts supporting count five, endangering children, and count six, sexual battery, are alleged to have occurred from October 29, 1981 up to and including December 3, 1982. Appellee then filed a motion to dismiss for absence of in loco parentis status and a motion to dismiss for failure to timely commence prosecution on the remaining five counts. The motions were consolidated for a hearing on December 30 and 31, 1991. After a hearing on the motion, the trial court dismissed the remaining five counts against appellee, stating that the statute of limitations had begun to run on October 28, 1981,2 and therefore the statute of limitations had expired. The trial court further held that appellee was not in loco parentis with Jil as a matter of law during the time specified in the indictment. Appellant now timely appeals the judgment of the trial court and asserts three assignments of error: ASSIGNMENT OF ERROR NO. I "The trial court erred in not properly applying the appropriate statute of limitations to each count of the indictment." R.C. 2901.13 sets forth the applicable statute of limitations for criminal prosecutions. R.C. 2901.13 states: "(A) Except as otherwise provided in this section, a prosecution shall be barred unless it is commenced within the following periods after an offense is committed: "(1) for a felony other than aggravated murder or murder, six years; "(2) for a misdemeanor other than a minor misdemeanor, two years; "(3) * * * "(B) * * * *Page 554 "(C) If the period of limitations provided in (A) of this section has expired, prosecution shall be commenced for an offense involving misconduct in office by a public servant as defined in 2921.01 of the Ohio Revised Code, at any time while the accused remains a public servant or in two years thereafter. "(D) * * * "(E) * * * "(F) The period of limitations shall not run during any time when the corpus delicti remains undiscovered. "(G) * * * "(H) * * *." Appellant asserts two arguments as to why the statute of limitations has not expired. First, appellant asserts that appellee is a public servant and section (C) of R.C. 2901.13 is applicable. Herein, appellee stipulated at the hearing that he was a public servant and that he voluntarily resigned from his position in March or April 1991 when Jil informed the superintendent of the sexual contact between appellee and herself from June 1981 to and including December 3, 1982. Appellant, therefore, asserts that the indictment was timely brought within two years after appellee resigned. Our first inquiry is whether appellee was a public servant. R.C. 2921.01(B) defines "public servant" to include an employee or agent of the state or any political subdivision. "Political subdivision" is defined in R.C. 3501.01(T) to include a school district. Herein, appellee at the time the offenses were committed was employed as an elementary school teacher at Lincoln and the high school tennis coach at Columbian by the Tiffin school district. Therefore, we conclude that appellee was a public servant. Our second inquiry is whether appellee's sexual contact with Jil constitutes misconduct in office by a public servant. "Misconduct," in its ordinary application, is defined as behavior not conforming to prevailing standards or laws. The American Heritage Dictionary (2 Ed. 1984) 802. Herein appellee admitted that he had sexual contact with Jil at Lincoln School maybe one hundred times when she was fifteen, sixteen, and seventeen years of age. Appellee also admitted that he had sexual contact with Jil after tennis matches before he drove her home. Appellee used his position as a school teacher and Jil's tennis coach to facilitate his sexual contact with Jil. Whereas appellee's sexual conduct with Jil is not behavior conforming to prevailing standards or laws, it constitutes misconduct in office by a public servant. R.C. 2901.13(C) allows for the prosecution of a public servant for misconduct in office after the statute of limitations has expired at any time while he remains a *Page 555 public servant or two years thereafter. Whereas appellee remained a public servant up until March 1991 and the indictment was timely brought on August 23, 1991, the trial court erred in dismissing the indictment. As the remaining five counts were timely brought under R.C.2901.13(C), we do not need to address appellant's argument under R.C. 2901.13(F). Therefore, appellant's first assignment of error is sustained. ASSIGNMENT OF ERROR NO. II "The trial court erred in dismissing all counts of the indictment as the legal sufficiency of the evidence in a criminal prosecution is not properly raised by pretrial motion." ASSIGNMENT OF ERROR NO. III "The trial court erred in: "A) finding as a matter of law that an in loco parentis relationship did not exist between the victim and the defendant when such an issue is a question for the trier of fact at trial; "and "B) dismissing all counts of the indictment by finding that an in loco parentis relationship did not exist as a matter of law and overlooking the other allegations as set forth in the several counts of the indictment." Appellant argues that the trial court's error, in determining that appellee was not in loco parentis with Jil, was in effect granting appellee summary judgment in a criminal case. Appellant also argues that the trial court's determination of whether appellee was in loco parentis with Jil was an element of the offense and a question for the trier of fact. Appellee's motion to dismiss for absence of in loco parentis status states: "Now comes the defendant[,] Richard Heebsh[,] by and through his attorney[,] Richard A. Kahler[,] and moves this court for an order dismissing the indictment against him in all five of its counts, there being three counts of endangering children, a violation of [Section] 2919.22(A) of the Ohio Revised Code, and two counts of sexual battery, a violation of [Section]2907.03(A)(5) of the Ohio Revised Code, for the reason as amatter of law defendant is not a person in custody or control of the alleged victim nor is he a person in loco parentis of the alleged child victim, and therefore cannot be guilty with such element of the alleged crimes missing." (Emphasis added.) *Page 556 Crim.R. 12(B) states: "Pretrial motions. Any defense, objection, or request which is capable of determination without a trial of the general issue may be raised before trial by motion. The following must be raised before trial: "(1) defenses and objections based on defects in the institution of the prosecution; "(2) defenses and objections based on defects in the indictment, information, or complaint * * *; "(3) motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained. Such motions shall be filed in the trial court only; "(4) requests for discovery under Rule 16; "(5) requests for severance of charges or defendants under Rule 14." Herein, it is apparent that appellee's motion does not fall within the ambit of Crim.R. 12(B) but is in fact a motion for summary judgment as the issue goes directly to an element of the offense. The sufficiency of the evidence in a criminal case is not properly raised by a pretrial motion and trial court should have overruled appellee's motion. The proper determination is whether the allegations contained in the indictment make out the offenses of endangering children and sexual battery. SeeState v. McNamee (1984), 17 Ohio App.3d 175, 176, 17 OBR 306, 307, 478 N.E.2d 843, 844; State v. Patterson (1989), 63 Ohio App.3d 91,94-95, 577 N.E.2d 1165, 1166-1167. Whether appellant proves beyond a reasonable doubt that appellee was in loco parentis with Jil is a question of fact to be determined by the trier of fact. Even assuming that the trier of fact determines that appellee was not in loco parentis with Jil, that does not mean that the trier of fact could not find, in the alternative, that at the time of the offenses appellee had custody or control over her as specified in the indictment. As the allegations contained in the indictment make out the offenses of endangering children and sexual battery, the trial court erred in holding that appellee was as a matter of law not in loco parentis with Jil. Therefore, appellant's second and third assignments of error are sustained and the judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion. Judgment reversedand cause remanded. EVANS and SHAW, JJ., concur. 1 A nolle prosequi was entered as to count four on October 21, 1991. 2 On October 28, 1981, appellee and Jil were discovered at a park in Sandusky, Ohio, by a park ranger. Appellee's pants were unbuckled and unzipped and Jil's breasts were exposed. Appellee was then cited for having a motor vehicle on a nature trial. Jil was sixteen at the time of this occurrence and appellee was thirty-nine years of age. *Page 557

2016-07-06 06:36:33.349315+00

Sullivan'

This cause is here on error from the Court of Common Pleas of Cuyahoga county. The action was one for personal injury, wherein a verdict for $4,000 was returned by the jury in favor of Lena Mueller, plaintiff below, half of which amount was remitted by consent of plaintiff but with the exception of counsel for the railway company, and thereupon motion for new trial was overruled and judgment entered. There are two grounds of error charged. One is that the verdict and judgment are clearly and manifestly against the weight of the evidence, and the other is that the verdict is excessive and appears to have been rendered under the influence of passion and prejudice. It appears from the record that the plaintiff below, Lena Mueller, was a passenger on an eastbound street car, operated by the defendant, the Cleveland Railway Company, on Quincy Avenue, Cleveland, Ohio, and that on or about February 7, 1926, when near East Sixty-fourth street and Scovill avenue, while plaintiff was seated in one of the seats of the car, a certain other passenger carrying a *Page 490 bundle of tools under his arm was thrown suddenly forward when the car started, at which time it is claimed there was an unusual jerk, as a result whereof it is alleged that the man with a bundle of tools fell against the plaintiff's side and abdomen, and upon her right foot and leg, causing her the injuries for which she recovered. The question as to whether the jerk of the car was sudden and unusual was a question of fact for the jury, and after a reading of the court's charge we are satisfied that this question, in all its phases, was submitted to the jury for determination of the fact, upon which point the jury found in favor of the plaintiff. After an examination of the record, we do not find any situation by which, as a reviewing court, we may deviate from the general rule that a reversal cannot be had if there is credible evidence to support the verdict and judgment, even though there may be a direct conflict in the testimony. In order to reverse, the reversal must rest upon a matter of law. It cannot be done simply because the reviewing court holds a different view. The jury is the tribunal to determine the facts, and it must not be interfered with, except as a matter of law when the judgment is clearly and manifestly against the weight of the evidence. We do not find, as above noted, such situation in the record as warrants us in disturbing the verdict of the jury upon this ground, abiding by the following rules: "A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly *Page 491 so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony." Breese v. State, 12 Ohio St. 146, 80 Am. Dec., 340. "Where a variety of facts are given in evidence, tending to prove notice to charge an indorser, the court should not set aside the verdict upon mere difference of opinion with the jury."Remington v. Harrington, 8 Ohio, 507. "When the evidence is conflicting, a verdict will not be reversed, because the evidence against the verdict is strong."Higgins v. Drucker, 22 C.C., 112, 12 C.D., 220. "Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury."Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St. 167,160 N.E. 683. The other assignment of error is that the verdict of $4,000 was excessive, and was occasioned by passion and prejudice. The injury alleged confined plaintiff to bed for about two weeks, and for a period of about seven weeks she suffered pain and inconvenience because of an injury which she received to one of her ankles, which caused it to swell to twice its size. There seems, however, to be no substantial evidence in the record that seven weeks was the limit. *Page 492 It is the unanimous judgment of this court that the size of the verdict substantially exceeds the amount reasonably warrantable from the facts of the case. The amount itself leaves an inference that the only explanation for its existence is passion or prejudice on the part of the jury. The amount of the verdict itself may determine this question when there is no other reasonable explanation for the size of the verdict. The fact that the court cut the verdict in two lends color to the inference of passion and prejudice. The apparent readiness with which theremittitur was accepted corroborates the accuracy of this inference. The passion or prejudice which creates, in whole or in part, a verdict, is not removed because of any remittitur. The tincture is still there, because it shows the state of mind of the jury, and thus bears upon the question whether there was a fair and impartial trial. Had the jury not been in a state of mind caused by passion or prejudice, it may well be that there would have been no verdict for plaintiff, although there appears to be some credible evidence, as is noted in this opinion, to sustain the verdict. Undoubtedly the verdict would not have been disturbed if the assignment of error was the weight of the evidence alone. The reason for the excessive verdict being passion or prejudice is an indication that the jury was not in a proper frame of mind to do exact justice between the parties. These views are sustained by the following excerpts from the case of Cleveland Worsted Mills Co. v. Coates, 26 C.C. (N.S.), 353, from pages 362 and 363 (30 C.D., 610): *Page 493 "If the verdict, not as pruned by the court, but as returned by the jury, is in amount so large as by its appearance to justify the conclusion of being reached through passion or prejudice, the imperative duty of the trial court is to set it aside. No substitute for this command can be found by dicker or bargain — no matter between whom — but strict obedience is by statute enjoined. The law of Ohio upon this point is clear, as we think." "But before the trial court should have proceeded to grant a new trial on this ground, the verdict must have appeared, the connection with the circumstances of the case and all of them, so large that its rendition by the jury could be accounted for upon no rational footing except that it was induced by passion and prejudice; it must have been apparent, from its amount — still in its relation to the whole case — that it was so induced and brought about. Finding that, the correlative duty of the court to order a new trial would be clear and unquestionable; because in that case the verdict would not be the verdict to which the litigants were entitled — the verdict of an impartial jury — but the verdict of a perverse jury, and hence in law no verdict. In that view it could not be the basis of a lawful judgment." The following paragraph in S.S. Kresge Co. v. Fader, 116 Ohio St. 718, at page 721, 158 N.E. 174, 175, we think is determinative of the law in Ohio: "In view of the conclusion we have reached, we shall pass without comment all of the evidence in the case pertaining to the extent of the injury, pausing only to say that, when a trial court reaches the conclusion that a verdict returned by a jury in a personal injury case is 33 1/3 per cent. greater than it *Page 494 should be, and to that extent higher than the court can sustain, the case is one calling for the closest scrutiny and consideration by the trial judge on the subject of passion and prejudice on the part of the jury." In the consideration of this case, we have in mind the docket entry of the court upon the question of remittitur. It does not state that it was because of passion or prejudice, or that it was not because of passion or prejudice, that the remittitur was made. Therefore, the remittitur was made independent of the claim of passion or prejudice, so far as the docket entry is concerned; but it appearing in the motion for new trial, under the third assignment of error, that the verdict is excessive, appearing to have been rendered under the influence of passion or prejudice, it follows, by inference at least, from the record, that the verdict was reduced to one-half the amount because of passion and prejudice. The docket entry reads: "June 6, 1927. To Court: The plaintiff having accepted a remittitur of $2,000.00, the motion for a new trial is overruled, to which the defendant excepts. It is therefore considered that the plaintiff recover of the defendant her said damages less the remittitur, and also her costs of this suit. Judgment is rendered against the defendant for the costs herein." Holding, as we do, that there are inferences from the record that the verdict is based on passion and prejudice, and therefore excessive, the judgment of the lower court is reversed, and the cause is remanded for further proceedings according to law. Judgment reversed and cause remanded. VICKERY and LEVINE, JJ., concur. *Page 495

2016-07-06 06:36:33.927109+00

Ross

The plaintiff was awarded participation in the state insurance fund by the Court of Common Pleas of Hamilton county, Ohio. The case was tried to the court without the intervention of a jury. The appeal is on questions of law from the judgment of the Court of Common Pleas. The court journalized its finding. A motion for judgment in favor of the defendant, notwithstanding the finding of the court in favor of plaintiff, was made and overruled. From the evidence, it appears that the claimant on the 21st day of February, 1930, suffered a severe injury to his jaw when the handle of a waste-paper bailer slipped and struck him in the face. He was confined to a hospital for sixteen days. At the trial, the plaintiff still complained of pain in his jaw, and stated that some of his teeth had been knocked out by the blow from the bailer handle, and the others extracted because of infection in his gums. Shortly after leaving the hospital, the plaintiff had occasion to visit a grocer. He complained of pain in his jaw and the grocer recommended the use of Jamaica ginger. The plaintiff purchased a small bottle of Jamaica ginger and drank the contents. Shortly thereafter, he became afflicted with a species of paralysis, commonly known as "jake legs," and the result is that he now walks with two canes. He applied for and was given compensation on a temporary total basis, to May 4, 1930, and on a temporary partial basis, to March 1, 1942. The procedural history of plaintiff's connection with the Industrial Commission is as follows: "March 20, 1939. An application to modify the award was filed and on February 14, 1940, said application was granted allowing claimant $9 per week on a temporary, partial basis to January 1, 1941. *Page 133 "March 20, 1940. An application to further consider the claim was filed and on said application on April 26, 1940, the commission ordered that the previous order of February 14, 1940, be modified and ordered the payment of $4 per week on a temporary, partial basis to January 25, 1941, and further finding that the disability resulting from `Jake' paralysis is not a result of the injury for which the claim was filed. "June 1, 1940. Plaintiff filed an application to modify and for a rehearing, basing said application upon the order of April 26, 1940. The application to modify was denied on November 1, 1940, and the application filed on June 1, 1940, for a rehearing was on November 20, 1940, dismissed because the claim had been considered since the order of April 26, 1940. "Nov. 27, 1940. Plaintiff filed an application for a rehearing and on December 16, 1940, the said application was dismissed for the reason that the order from which said application was filed is not appealable and does not deny jurisdiction of the claim. "July 21, 1941. Plaintiff filed an application to modify the award and on October 30, 1941, the commission dismissed the application for modification filed July 21, 1941, and set aside its order of June 1, 1940, wherein the commission dismissed the application for a rehearing and then granted plaintiff a rehearing and assigned the claim for the taking of testimony." The plaintiff offered his testimony on rehearing on February 5, 1942, at which time he testified that he was receiving compensation from the Industrial Commission and that his only desire was to secure more compensation. "Oct. 26, 1942. The commission denied claimant's right to participate in the fund after rehearing of this action for the reason that proof on file does not show *Page 134 that claimant's present disability is due to the injury of February 21, 1930." It is the contention of the commission that this procedure does not present a basis for jurisdiction in the Court of Common Pleas to review the conclusions of the Industrial Commission on rehearing, for the reason that it had no jurisdiction over the subject matter of the action. It is clear that the evidence presented on rehearing and before the Court of Common Pleas shows that at the present time the claimant is almost entirely incapacitated to do any kind of work. It is also clear that the commission refuses to recognize this present incapacity as due to the original injury received, when claimant was struck on the jaw by the handle of the bailer. The proceeding in the Court of Common Pleas is based upon the action of the commission upon claimant's application to modify a previous award filed July 21, 1941. As far as the record shows, the commission has refused to exercise jurisdiction, although it did grant a rehearing of its action upon the application to modify the award. The entry of the commission, made October 26, 1942, reads: "This day this claim comes on to be heard on the transcript of testimony and evidence on rehearing and report of the referee, and was considered by the commission. "On consideration thereof, the commission finds: "It is ordered that the claim be disallowed on rehearing, for the reason that proof on file does not show that claimant's present disability is due to his injury of February 22, 1930." The effect of this final order of the commission was to deny claimant further participation in the workman's *Page 135 compensation fund, for the reason that his present disability is not due to the original injury. If it is, he is entitled to participate. If it is not, he is not entitled to participate. A question similar to that here considered has been passed upon by this court. In Logsdon v. Industrial Commission, No. 869, Court of Appeals for Butler county, decided by this court on November 27, 1943, and certified to the Supreme Court (143 Ohio St. 508), at least two of the judges of this court, while disagreeing upon other matters, were unanimous in their conclusion upon the question of jurisdiction, as expressed in the first paragraph of the syllabus in the case of Furnis v. Industrial Commission,71 Ohio App. 146, 45 N.E.2d 782, as follows: "A finding by the Industrial Commission upon rehearing under Section 1465-90, General Code (111 Ohio Laws, 227), that a claim for compensation be disallowed for the reason that claimant's present disability is not the result of the injury constitutes, in law, a finding that the commission had no authority to inquire into the extent of disability or amount of compensation claimed, and was an appealable order." The Logsdon case was certified for conflict with the Furniscase because of the submission of the issue of permanent and total disability to the jury. To say that the commission exercises jurisdiction when it emphatically states it does not and can not, because the present condition of claimant is not due to the injury, is to ignore theeffect of the final order. The commission has denied jurisdiction, because of the positive finding that the claimant is not entitled to compensation for his present condition. If the commission had awarded claimant any compensation for his present condition, then the Court of Common Pleas could have had no jurisdiction of the subject matter of the appeal. *Page 136 Now is claimant's present condition due to the original injury? Here is what he says: "Q. You have a condition in your legs, haven't you, Mike? A. Yes. "Q. Can you state when that occurred? A. Yes, that occurred coming out of the hospital. See I coming to the grocery store; grocer man says, `What is the matter, Mike?' I told him `busting my mouth.' He says, `I got Jamaica ginger, you try — may be you swell out.' I am taking that bottle of Jamaica ginger and bring me home, put him little bit water and drink. The next day I come to the grocery store. He says, `You better or no?' `That Jamaica ginger no good for me at all' I told. He says, `Well if no good for you at all quit.' I says, `Okeh.' After the 27th of May I feel my feet bad. "Mr. Schott. Motion to strike answer. "The Court. Strike it all except `yes, that occurred coming out of the hospital.' "Mr. Karch. I except to that rule and proffer the answer. "Q. Were you suffering pain at that time when you took this Jamaica ginger? "Mr. Schott. Objection. "The Court. Sustained. "Q. Were you suffering pain? "Mr. Schott. Objection. "A. No, no suffering pain. "Q. I don't believe you understood the question. Were you suffering pain when you talked to the grocer man? "Mr. Schott. Objection. "The Court. Sustained. "Q. Did you think that that would help you when he told you to drink that? "Mr. Schott. Objection. *Page 137 "The Court. Sustained. "Mr. Karch. Exception and proffer. "A. Why sure. "Q. How much did you drink? "Mr. Schott. Objection. "The Court. Overruled. "Mr. Schott. Exception. "A. One bottle. "Q. How big a bottle was it? A. Like my finger, small bottle. "Q. Small bottle? A. (indicating). "Referee. Indicating a bottle the size of his first finger. "Q. Do you have any pain in those legs, Mike? A. No. "Q. Now, how do you get around, Mike? How do you walk? A. I walk all right. "Q. And you use any crutch or cane? A. No, I use `em cane. "Q. How many canes? A. Two." The court was in error in sustaining the objection to the evidence offered. However, as the judgment was in favor of the claimant, no prejudicial error intervened. We do know the circumstances under which the claimant took the ginger. They present an instance commonly known to all of us, the taking of friendly nonprofessional advice for various ailments. Use of it many times is good, sometimes, bad and injurious. No question of negligence is involved here. The problem is one of good faith and causation. It cannot be seriously suggested that the condition now endured by claimant was the result of a self-inflicted injury. The claimant voluntarily took the Jamaica ginger. Whether he was mistaken as to the manner in which it was to be used, or in the effect, is immaterial. He took it to *Page 138 relieve the pain in his jaw caused by the injury suffered when he was struck by the handle of the bailer. Suppose he had used morphine for the same purpose and died. Can it be logically claimed that any such final results did not have a causal origin in the original accident? Our conclusion is that the claimant's present total incapacity is due directly to the original injury; that he is entitled to an award of compensation; and that the judgment of the Court of Common Pleas should be affirmed. Judgment affirmed. HILDEBRANT, J., concurs. MATTHEWS, J., dissents.

2016-07-06 06:36:44.236321+00

Tyack

OPINION {¶ 1} On March 19, 1985, Brian K. Van Dusen and Donna A. Van Dusen were married. A little over four months later, Kelly S. Van Dusen was born. Another child, Joshua B. Van Dusen, had been born April 29, 1983. {¶ 2} In February of 1994, Brian filed for divorce. A divorce decree was journalized in January 1995, with an effective date of September 27, 1994. Brian was adjudicated to be the natural parent of Joshua and, as a result, the decree indicated that two children were born issue of the marriage. The decree also journalized a shared parenting plan for the children. {¶ 3} Brian and Donna continued to litigate after the divorce, usually over issues involving the allocation of parental rights and responsibilities. Brian was named the sole residential parent, but the children fled his home. Kelly told Brian at the time she fled that Brian was not her biological father. Donna later verified her daughter's claim. {¶ 4} As a result of Kelly's claim, genetic testing was performed. The testing indicated that Brian was not in fact Kelly's biological father. Brian then filed a motion asking that he be declared not to be Kelly's father under the terms of R.C. 3119.96 et seq. {¶ 5} Hearings were held before a magistrate and before a judge. The Attorney General of Ohio was given an opportunity to become involved because the constitutionality of R.C. 3119.95 et seq. was called into question. Ultimately, the trial court overruled Brian's motion. {¶ 6} Brian has now appealed, assigning two errors for our consideration: {¶ 7} "I. The trial court erred as a matter of law in finding R.C. § 3119.96 et seq. unconstitutional. {¶ 8} "II. The trial court erred as a matter of law in finding that the appellant's failure to raise the issue of parenity [sic] as to Kelly I. Van Dusen at the time of filing his amended complaint for divorce constituted res judiciata." {¶ 9} At issue in the first assignment of error is the impact of Article IV, Section 5(B) of the Ohio Constitution upon R.C. 3119.961 and R.C. 3119.97. Article IV, Section 5(B) reads: {¶ 10} "The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. Proposed rules shall be filed by the court, not later than the fifteenth day of January, with the clerk of each house of the *Page 496 general assembly during a regular session thereof, and amendments to any such proposed rules may be so filed not later than the first day of May in that session. Such rules shall take effect on the following first day of July, unless prior to such day the general assembly adopts a concurrent resolution of disapproval. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. * * *" {¶ 11} R.C. 3119.961 states: {¶ 12} "(A) Notwithstanding the provisions to the contrary in Civil Rule 60(B) and in accordance with this section, a person may file a motion for relief from a final judgment, court order, or administrative determination or order that determines that the person or a male minor referred to in division (B) of section 3109.19 of the Revised Code is the father of a child or from a child support order under which the person or male minor is the obligator. Except as otherwise provided in this section, the person shall file the motion in the division of the court of common pleas of the county in which the original judgment, court order, or child support order as made or issued or in the division of the court of common pleas of the county that has jurisdiction involving the administrative determination or order. If the determination of paternity is an acknowledgment of paternity that has become final under section2151.232 [2151.23.2], 3111.25, or 3111.821 [3111.82.1] of the Revised Code or former section 3111.211 [3111.21.1] or 5101.314 [5101.31.4] of the Revised Code, the person shall file the motion in the juvenile court or other court with jurisdiction of the county in which the person or the child who is the subject of the acknowledgment resides." {¶ 13} R.C. 3119.97 reads: {¶ 14} "Except as otherwise provided in sections 3119.961 [3119.96.1] to 3119.967 [3119.96.7] of the Revised Code, a party is entitled to obtain relief under section 3119.962 [3119.96.2] of the Revised Code regardless of whether the judgment, order, or determination from which relief is sought was issued prior to, on, or after October 27, 2000." {¶ 15} The legislature, when it enacted R.C. 3119.961 clearly was on notice that it was attempting to dictate to the courts of this state what to do with paternity judgments rendered months, years or even decades earlier. The legislature also was on notice that the statute it was enacting was in conflict with Civ.R. 60(B) and the body of case law surrounding that civil rule. In short, notwithstanding the doctrine of the separation of powers which has helped our state and federal governments to function for over 200 years, the legislature wished to tell the courts how to address matters normally reserved for the courts to determine. {¶ 16} Such a disregard for the traditional powers of the other branches of government is especially egregious in the context of parenting and parentage *Page 497 matters. The legislature has in effect ordered the courts to enter new judgments taking away the only father a child has ever known if a DNA test indicates that the father and child are not genetically linked. Such a legislative mandate overlooks how complex the parent-child relationship is. A person who has served as a parent for many years is still in many ways a parent to the child, no matter whose genes and chromosomes are involved. If this were not so, no adult could successfully adopt a child and raise the child to adulthood. {¶ 17} The courts are in the best position to look out for the best interests of a child. The best interests are not automatically served by severing a parent-child relationship just because the parent and child were mistaken about their joint genetic heritage. {¶ 18} In short, the legislature attempted to write a new Civ.R. 60(B) when it enacted R.C. 3119.961 and attempted to dictate the outcome of the litigation with R.C. 3119.67. The trial court correctly found the statutes unconstitutional. We affirm that finding. {¶ 19} The first assignment of error is overruled. {¶ 20} When the original divorce decree was journalized in 1995, Kelly Van Dusen was expressly found to be the child of Brian K. Van Dusen and Donna A. Van Dusen. Kelly's parentage was clearly a matter expressly decided by the trial court — to use the Latin phrase, res judicata. {¶ 21} Once a fact has been adjudicated, the way to change that adjudication is through the use of Civ.R. 60(B). Eight years have now passed since that adjudication occurred. Kelly is now 17 years old. For many purposes, Kelly is and will remain Brian Van Dusen's child, no matter what a court says in the future. {¶ 22} We do not wish to encourage domestic relations courts and juvenile courts to force the active litigation of the biological parentage in every divorce or parentage action. However, the parentage of a child is adjudicated at the time a divorce occurs. Once that adjudication has occurred, the principles of res judicata apply. In the context of this case, Kelly has been adjudicated to be Brian's child. {¶ 23} The second assignment of error is overruled. {¶ 24} Both assignments of error having been overruled, the judgment of the trial court is affirmed. Judgment affirmed. DESHLER and BROWN, JJ., concur. *Page 498

2016-07-06 06:36:45.685453+00

Bettman

Defendant-appellant Patrick D. Flahive was indicted by the grand jury in two indictments on six counts of misuse of credit cards. As a result of a plea bargain, in case number B-960894 Flahive pleaded guilty to one fourth-degree felony count, and in case number B-9609310 he pleaded guilty to two fifth-degree felony counts. The state agreed not to proceed on the remaining counts. The trial court imposed a prison term of one and one-half years in case number B-9608994, to run consecutively with the one-year concurrent prison terms imposed for each count under case number B-9609310. Flahive appeals from his convictions and sentences, although he raises only sentencing errors in this appeal.1 *Page 34 In his second assignment of error, which we consider first, Flahive challenges the court's imposition of a prison term for the offenses he committed.2 Under the new sentencing provisions now in effect, a trial court cannot impose a prison term for a fourth — or a fifth-degree felony unless the court finds that one of the eight factors set forth in R.C. 2929.13 (B) (1) (a) through (h) applies, that the prison term is consistent with the purposes and principles of sentencing in R.C. 2929.11, and that the offender is not amenable to an available community-control sanction. The critical issue Flahive raises on appeal is that his sentences are contrary to law because the record does not support the finding in favor of incarceration in his case.3 We disagree. The sentencing factor in R.C. 2929.13 (B) (1) (d) states: "The offender held a public office or position of trust and the offense related to that office or position; the offender's position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others." On its sentencing worksheet, the trial court checked the above factor as being applicable to Flahive.4 The abbreviated language of the worksheet describes this factor as "(D) public trust, office or position." We hold that the record supports the findings of the trial court in imposing a prison sentence in this case. In his position as a clerk both for Kroger's and for a Marriott hotel, Flahive took credit cards from customers as payment for goods and services, copied their credit-card numbers, and later personally used their numbers to make purchases from mail-order catalogues for his own use. The record demonstrates that in furtherance of his scheme he used the credit cards of forty-seven different individuals, unlawfully obtaining in excess of $25,000 worth of merchandise. We have no difficulty in finding that the final clause in R.C. 2929.13 (B) (1) (d) applies here, namely that the offender's position facilitated the offense. We simply cannot agree with the dissent that this provision applies only to those in "professional" positions like doctors, lawyers, accountants, and brokers *Page 35 nor do we agree with the statement in the dissent that under our analysis "every crime made possible by one's occupation, no matter how lowly, becomes an imprisonable offense." Quite simply, we think that a person, regardless of what his job is, who is entrusted with the credit-card imprints of others, and who only has the credit cards because of his position, uses his position to facilitate the offense. We find clearly and convincingly that Flahive received the credit-card numbers as a result of his position, and therefore that his position facilitated the offense. Because the record establishes that use of the sentencing factor in R.C. 2929.13 (B) (1) (d) was appropriate, Flahive's second assignment of error is overruled. In his first assignment of error, Flahive contends that the trial court was biased against him because of statements made at the sentencing hearing, particularly the statement that Flahive was "the pedophile of the credit card industry.5 In order to impose the maximum term of imprisonment, the court must find one of the factors in R.C. 2929.14 (C). The court found two factors, namely that Flahive had committed the worst form of the offense and that he possessed the greatest likelihood of recidivism. The court's remarks were made in the context of these required findings. While we agree with Flahive that the court's remarks were intemperate, its findings about likely recidivism were appropriate and supported by the record. Thus, we find no prejudicial error in the statements made. The first assignment of error is overruled. The judgment of the trial court is affirmed. Judgment affirmed. SUNDERMAN, P.J., concurs. GORMAN, J., dissents. 1 We have sua sponte removed this case from the accelerated calendar. 2 At the sentencing hearing, the trial court erroneously stated that Flahive had the right of appeal only of his sentence in case number B-96 09310, involving the fifth-degree felony counts. Flahive has appealed from his sentence in both cases. 3 Flahive also had the right to appeal the fact that he received the maximum sentence, but he did not raise this issue. R.C. 2953.08 (A). Thus, this appeal is limited to the fact of his incarceration, not its duration. 4 The trial court made written sentencing findings only in case number B-96093 10 for the fifth-degree felonies. However, neither party disputes the fact that the trial court made a finding supporting incarceration for the fourth-degree felony, and it is clear from the transcript that the court found the same factors in both cases. 5 The comment was made as the court was discussing with Flahive the fact that Flahive was still working in a setting that provided him access to customers' credit cards. The court stated: "We're at the mercy of people like you. The whole credit card industry is at your mercy. And you have gone from one place to another. Now you're in a third place. And as sure as God made little green apples, you're going to do it again. I know you will. You're the pedophile of the credit card industry. They're your babies."

2016-07-06 06:36:43.877629+00

DECISION ON OBJECTION'S TO MAGISTRATE'S DECISION. {¶ 1} Relator, Charles Adair, filed this original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order which denied his application for permanent total disability ("PTD") compensation, and ordering the commission to find that he is entitled to that compensation. {¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate of this court. On April 30, 2004, the magistrate issued a decision including findings of fact and conclusions of law and therein recommended that this court deny relator's request for mandamus. (Attached as Appendix A.) The magistrate found the commission's denial of PTD was supported by evidence in the record and was not an abuse of discretion. Relator timely filed objections to the magistrate's decision, which objections are now before the court. {¶ 3} Relator's objections are primarily focused on the vocational report of Joseph E. Havranek, Ed.D., CRC, ("Havranek"). Relator asserts that the magistrate misconstrued his argument that Havranek's report failed to comply with Stateex rel. Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 55 O.O. 472, 125 N.E.2d 1. Relator contests that Havranek's report was vague, insofar as it failed to provide specific information regarding the amount of time relator could sit, stand or walk without interruption. Further, relator argues that Havranek repudiated the findings in his report during his deposition testimony. We disagree, and find that the magistrate correctly assessed Havranek's report and subsequent testimony. Additionally, the magistrate correctly pointed out that the commission conducted its own vocational analysis and concluded that relator was capable of performing sustained remunerative employment. Regardless of Havranek's opinion of relator's physical capabilities, the commission, as the ultimate evaluator of non-medical vocational factors, was entitled to independently weigh the evidence and reach its own conclusion. State ex rel.Jackson v. Indus. Comm. (1997), 79 Ohio St.3d 266, 270,680 N.E.2d 1233. {¶ 4} Finally, relator points out that Dr. Carothers, relator's treating physician, prescribed the pain medication MS Contin and averred that this pain medication would effectively preclude sustained employment. Relator argues that the commission had a duty to consider the effects that MS Contin would have on relator's ability to maintain sustained remunerative employment and its failure to do so constitutes an abuse of discretion. The commission argues contra that this evidence relied upon by relator is without merit. The commission asserts that Dr. Carothers simply states the medication causes drowsiness. Further, the commission contests that Dr. Carothers does not mention if this medication has to be taken daily, nor does he state if the medication has to be taken at a certain time. We agree. Ultimately, the commission, not this court, is the exclusive evaluator of the weight and credibility of the evidence. State ex rel. LTV Steel Co. v. Indus. Comm. (2000),88 Ohio St.3d 284, 287, 725 N.E.2d 639. As the record contains some evidence to support the commission's findings, we must defer to its judgment. Id. {¶ 5} Upon review of the magistrate's decision, an independent review of the record and due consideration of relator's objections, we find the magistrate has properly determined the pertinent facts and applied the appropriate law. We, therefore, adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we deny the requested writ of mandamus. Objections overruled; writ of mandamus denied. Lazarus, P.J., and Petree, J., concur. APPENDIX A IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Charles Adair,: Relator, : v. : No. 03AP-1130 Reading Restaurants, Inc. and : (REGULAR CALENDAR) Industrial Commission of Ohio, : Respondents. : MAGISTRATE'S DECISION Rendered on April 30, 2004 Butkovich, Schimpf, Schimpf Ginocchio Co., L.P.A., Joseph A.Butkovich and Robert E. Hof, for relator. Jim Petro, Attorney General, and Dennis L. Hufstader, for respondent Industrial Commission of Ohio. IN MANDAMUS {¶ 6} Relator, Charles Adair, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied his application for permanent total disability ("PTD") compensation, and ordering the commission to find that he is entitled to that compensation. Findings of Fact: {¶ 7} 1. Relator sustained a work-related injury on August 1, 1980, and his claim has been allowed for: "lumbosacral strain; lumbar myositis; sacroiliac joint strain; lumbar herniated nucleus pulposus with nerve root compression." {¶ 8} 2. On April 16, 1999, relator filed an application for PTD compensation. At the time, relator was 58 years old; indicated that he could read, write, and perform basic math; his work history consisted of work as a cook and factory worker; and he had worked 15 years following his injury. {¶ 9} 3. Relator's application was supported by the February 8, 1999 report of his treating physician, Dr. Thomas A. Carothers, who opined that he was permanently and totally disabled from any type of sustained remunerative employment as a result of his allowed conditions. {¶ 10} 4. An independent medical examination was performed by Dr. Arnold R. Penix, who issued a report dated January 5, 1999. Dr. Penix opined that relator had reached maximum medical improvement ("MMI"), could not return to his former position of employment, and noted the following restrictions: At the present time the claimant can lift no more than 5 pounds. He is incapable of any bending, stooping or overhead reaching. He is unable to drive a commercial vehicle. His sitting tolerance is 30 minutes maximum with standing and walking of 15-20 minutes maximum. He does not qualify for the federal guidelines on sedentary work and on this basis, in my opinion, he is incapable of sustained remunerative employment. {¶ 11} 5. Relator was also examined by Dr. Kenneth R. Hanington, who issued a report dated July 16, 1999. Dr. Hanington opined that relator had reached MMI; assessed a 25 percent whole person impairment; opined that relator was unable to return to his former position of employment, but concluded that relator was capable of working at a sedentary level. Dr. Hanington completed an occupational activity assessment wherein he indicated that relator could sit for three to five hours; stand and walk each for zero to three hours; was unrestricted in his ability to lift, carry, push, pull, or otherwise move up to ten pounds; was precluded from climbing ladders and stairs; could occasionally use foot controls with his left lower extremity; was unrestricted in his ability to handle objects; was precluded from crouching, stooping, bending, and kneeling, and reaching at floor level; could occasionally reach overhead and at knee level; and was unrestricted in his ability to reach at waist level. {¶ 12} 6. A vocational evaluation was performed by Jennifer J. Stoeckel, Ph.D., and dated October 17, 1999. Dr. Stoeckel administered various tests to relator prior to opining that, in her opinion, he was permanently and totally disabled from all work activity both now and in the foreseeable future. Dr. Stoeckel opined that rehabilitation would be inappropriate given relator's age; that he was precluded from returning to his past employment; has no transferable work skills; and possesses only a marginal fourth grade education. {¶ 13} 7. On October 18, 1999, Joseph E. Havranek, Ed.D., CRC, prepared an employability assessment report. Based upon the reports of Drs. Carothers and Penix, there were no jobs which relator could perform. However, based upon the report of Dr. Hanington, Mr. Havranek opined that relator could perform the following jobs: surveillance system monitor; hand mounter; microfilm document preparer; information clerk; telephone solicitor; and food checker. Mr. Havranek concluded that, at age 58, relator would have moderate work adjustment issues, that his fourth grade education would present him with moderate to major work adjustment issues, and that he did not have any transferable skills. {¶ 14} 8. On November 16, 1999, relator filed a motion to depose Mr. Havranek. {¶ 15} 9. The motion was granted and Mr. Havranek's deposition was taken on March 9, 2000. The deposition was requested because of an alleged substantial disparity between the reports of Mr. Havranek and Dr. Stoeckel. Specifically, relator indicated that Mr. Havranek failed to take into consideration the vocational testing conducted by Dr. Stoeckel. {¶ 16} 10. When specifically asked whether any of the information that had been brought to his attention would cause him to change his opinion, Mr. Havranek indicated that his opinion remained the same. (Tr. at 17.) {¶ 17} 11. Relator's application was heard before a staff hearing officer ("SHO") on April 20, 2000, and resulted in an order denying the requested compensation. The SHO specifically relied upon the report of Dr. Hanington and concluded that relator was capable of performing sedentary employment within the limitations and capabilities set forth in Dr. Hanington's medical report and occupational activity assessment form. After noting the vocational evidence presented, the SHO conducted its own analysis of the nonmedical vocational factors and stated as follows: The Staff Hearing Officer finds that the claimant is 58 years old, has work experience as a cook and factory worker and a formal education of 4th grade. The claimant had participated in a rehabilitation program in 1984 where he was tested for employment potential. The Staff Hearing Officer reviewed the report contained in the claim file and the testing results which were reported therein. The claimant was tested for his educational abilities and was found to read at a 5th grade equivalent. The vocational evaluator opined that the claimant demonstrated the ability to add and subtract whole numbers and perform measurements to 1/2 inch specifications. The evaluator opined that the claimant appeared to learn best with demonstration techniques. The Staff Hearing Officer finds that the claimant has a similar profile today as assessed by Dr. Stoeckel and Dr. Havranek. The Staff Hearing Officer further finds that the claimant's age is not a factor which would prevent him from adapting to new work rules, processes, methods, procedures and tools involved in a new occupation. The Staff Hearing Officer further finds that the claimant's education is a limitation in that it would prevent him from performing occupations involving literacy. However, the claimant's education as reported by the testers is adequate in performing entry level, unskilled occupations. The Staff Hearing Officer further finds that the claimant's lack of transferable work skills does not prevent him from performing unskilled, entry-level work. The Staff Hearing Officer finds that the following employment options are within the claimant's ability considering his age, education and work experience and residual functional capacities due to the allowed orthopedic conditions in the claim: surveillance system monitor, hand mounter, microfilm document preparer, telephone solicitor and food checker. Accordingly, the Staff Hearing Officer finds that the claimant is able to engage in sustained remunerative employment. {¶ 18} 12. Thereafter, relator filed the instant mandamus action in this court. Conclusions of Law: {¶ 19} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. Stateex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record.State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. On the other hand, where the record contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewisv. Diamond Foundry Co. (1987), 29 Ohio St.3d 56. Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder.State ex rel. Teece v. Indus. Comm. (1981), 68 Ohio St.2d 165. {¶ 20} The relevant inquiry in a determination of permanent total disability is claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic v. Indus.Comm. (1994), 69 Ohio St.3d 693. Generally, in making this determination, the commission must consider not only medical impairments but, also, the claimant's age, education, work record and other relevant nonmedical factors. State ex rel. Stephensonv. Indus. Comm. (1987), 31 Ohio St.3d 167. Thus, a claimant's medical capacity to work is not dispositive if the claimant's nonmedical factors foreclose employability. State ex rel. Gay v.Mihm (1994), 68 Ohio St.3d 315. The commission must also specify in its order what evidence has been relied upon and briefly explain the reasoning for its decision. State ex rel. Noll v.Indus. Comm. (1991), 57 Ohio St.3d 203. {¶ 21} Relator raises two issues in this mandamus action: (1) the report of Mr. Havranek does not constitute some evidence upon which the commission could rely as that report was based entirely upon an assumption as to the physical restrictions noted by Dr. Hanington and was based only on possibilities and not probability; and (2) the commission abused its discretion by relying upon a report which was 15 years old, even though the Ohio Administrative Code requires that medical examinations relied upon must be performed within 15 months prior to the date of the filing of the application for PTD compensation. For the following reasons, this magistrate finds that relator has not demonstrated that the commission abused its discretion. {¶ 22} In his first argument, relator contends that Mr. Havranek's report does not constitute some evidence upon which the commission could rely because his report is based entirely on possibilities and not probabilities. Relator contends that it was improper for Mr. Havranek, a vocational expert, to rely upon Dr. Hanington's findings with regard to relator's physical restrictions. {¶ 23} Relator cites Fox v. Indus. Comm. (1955),162 Ohio St. 569, and State ex rel. Yellow Freight Sys., Inc. v. Indus.Comm. (1998), 81 Ohio St.3d 56, for the proposition that a physician's testimony relied upon by the commission to determine PTD compensation must be equivalent to an expression of probability and not mere possibility. In Fox, the court held as follows at paragraph one of the syllabus: {¶ 24} n order to establish a right to workmen's compensation for harm or disability claimed to have resulted from an accidental injury, it is necessary for the claimant to show by a pre-ponderance of the evidence, medical or otherwise, not only that his injury arose out of and in the course of his employment but that a direct or proximate causal relationship existed between his injury and his harm or disability. {¶ 25} Thereafter, in Yellow Freight, the Supreme Court of Ohio granted a writ of mandamus after finding that there was no evidence attributing the claimant's medical condition to his allowed condition and that the commission had abused its discretion by awarding the claimant temporary total disability compensation. The commission had argued that the causal connection could be inferred based on a reasonable probability that the claimant's injury had generated his medical condition. However, citing Fox, the court disagreed and indicated thatFox specifically requires direct medical testimony or other medical evidence to establish causation in proving a claimant's eligibility for workers' compensation. {¶ 26} In the present case, relator is arguing that, because Mr. Havranek's vocational report was based completely on Dr. Hanington's medical report regarding relator's physical restrictions, Mr. Havranek's vocational report cannot constitute some evidence upon which the commission could rely. For obvious reasons, relator's argument fails. {¶ 27} In the present case, relator's claim has been allowed for certain conditions. Relator filed his application for PTD compensation supported by the medical report of Dr. Carothers. Thereafter, both Drs. Penix and Hanington examined relator and issued medical reports of their own. Vocational reports were then prepared by Dr. Stoeckel and Mr. Havranek. Both vocational experts cited to the medical evidence in the record and based their opinions as to whether or not relator was capable of performing some sustained remunerative employment upon the medical assessments made by the doctors. There is no Fox problem where a vocational expert relies upon an otherwise valid and proper physician's report in rendering a vocational assessment. {¶ 28} Relator also contends that Mr. Havranek's report could not be relied upon because he repudiated that report in his deposition testimony. As such, based upon State ex rel. Zamorav. Indus. Comm. (1989), 45 Ohio St.3d 17, and the cases which followed, relator contends that Mr. Havranek's report did not constitute some evidence upon which the commission could rely. This magistrate disagrees. {¶ 29} During the deposition, counsel questioned Mr. Havranek regarding the fact that Dr. Hanington had indicated that relator was precluded from bending. Counsel inquired as to how Mr. Havranek defined "bending." Counsel asked Mr. Havranek to consider, hypothetically, that bending would be defined as follows: an employee is seated at their work station; then the employee stands up because the employee needs to have the ability to stand for 15 to 20 minutes as they cannot sit any longer; the employee, in counsel's opinion, would then have to bend forward to reach their work station. Counsel asked Mr. Havranek to consider the fact that relator would have been completely precluded from bending forward at the waist in the slightest. Based upon counsel's definition of the word "bending," Mr. Havranek indicated that relator probably could not perform work as a surveillance system monitor or an information clerk and that he might be prohibited from the hand mounter, microfilm document, telephone solicitor, and food checker jobs as well. Based upon this, relator contends that Mr. Havranek's vocational report has been repudiated. {¶ 30} While it is true that an equivocal or inconsistent report cannot be relied upon, see State ex rel. Paragon v.Indus. Comm. (1983), 5 Ohio St.3d 72, and that a report cannot be relied upon if it has later been repudiated, this magistrate finds that that has not happened in the present case. Relator has so restrictively defined the word "bending," that relator would be precluded from performing numerous everyday tasks which he told Dr. Stoeckel that he did perform. For instance, according to Dr. Stoeckel's report, relator is able to bathe and dress himself. According to counsel's definition of the word "bending," this task would be impossible. Furthermore, he is able to perform some light housework such as vacuuming and washing the dishes. Relator is still able to fish; however, not as often as he did before. All of the above activities require a limited amount of bending which is not what is intended in a medical report when an injured worker is precluded from "bending." Because there is no support in the case law for such a restrictive definition of the term "bending," this magistrate finds that relator is incorrect in arguing that Mr. Havranek repudiated his report with his deposition testimony. Furthermore, even if this court were to consider otherwise, the commission conducted its own vocational analysis and concluded that relator was capable of performing some remunerative employment. Even if Mr. Havranek was of the opinion that relator could not perform those jobs which he listed because he could not bend, the commission, as the ultimate evaluator of the nonmedical disability factors, was certainly entitled to reach a different result. See, e.g., State ex rel.Singleton v. Indus. Comm. (1994), 71 Ohio St.3d 117. As such, relator's first argument is not well-taken. {¶ 31} Relator also contends that the commission abused its discretion by relying upon a medical report which was submitted more than 15 months prior to the date of the filing of the application for PTD compensation in contravention of Ohio Adm. Code 4121-3-34(C)(1), which provides that each application for PTD compensation must be accompanied by medical evidence indicating that the medical examination upon which the report is based was performed within 15 months prior to the date of the filing of the application for PTD compensation. {¶ 32} In denying relator's application for PTD compensation, the SHO noted as follows: * * * The claimant had participated in a rehabilitation program in 1984 where he was tested for employment potential. The Staff Hearing Officer reviewed the report contained in the claim file and the testing results which were reported therein. The claimant was tested for his educational abilities and was found to read at a 5th grade equivalent. The vocational evaluator opined that the claimant demonstrated the ability to add and subtract whole numbers and perform measurements to 1/2 inch specifications. The evaluator opined that the claimant appeared to learn best with demonstration techniques. The Staff Hearing Officer finds that the claimant has a similar profile today as assessed by Dr. Stoeckel and Dr. Havranek. * * * {¶ 33} Relator's argument fails for two reasons. First, a vocational report does not constitute a medical examination and would not fall under the purview of Ohio Adm. Code4121-3-34(C)(1). Second, the SHO noted that she had reviewed the 1984 rehabilitation report and compared it with the vocational evidence submitted with relator's application and found that the assessments of the evaluators had remained the same. As such, the hearing officer noted that relator's abilities had not changed in the 15 years since the rehabilitation report issued in 1984. Nowhere in the commission's order does the SHO indicate that she has relied upon that 1984 report. Instead, it is merely noted as further evidence of relator's abilities. As such, relator's argument is not well-taken and is overruled. {¶ 34} Based on the foregoing, it is this magistrate's decision that relator has not demonstrated that the commission abused its discretion in denying his application for permanent and total disability compensation and this court should deny relator's request for a writ of mandamus. /s/ Stephanie Bisca Brooks STEPHANIE BISCA BROOKS MAGISTRATE

2016-07-06 06:36:44.032225+00

OPINION {¶ 1} Defendant-appellant, Ivan Hasley, appeals from a Mahoning County Common Pleas Court judgment denying his Crim.R. 29 motion and convicting him of two counts of felonious assault with firearm specifications, following a bench trial. {¶ 2} In the early morning hours of August 18, 2001, John Howley was driving north on Market Street with his friend, Matthew Bocian, as his passenger. Howley stopped his car at a red light at Indianola Avenue and glanced at the mini van stopped next to him. Howley noticed the driver of the van staring at him. He looked away and then looked back. The driver was still looking at him. The driver of the van said to Howley, "What the f * * * are you looking at?" Howley then rolled up his window as the light turned green. Howley took off down Market Street and the van came up quickly behind him. As it passed Howley's car, a bullet came through Howley's driver's side door. {¶ 3} The van then swerved into Howley's lane and turned right onto Dewey. Howley followed the van and instructed Bocian to write down its license plate number. After traveling only about a half a block on Dewey, the van stopped and the driver jumped out firing shots at Howley's car. The car was struck six more times. Bocian wrote down the license plate number. Howley made a U-turn and drove away. {¶ 4} Howley and Bocian drove back up Market Street where they had noticed a police cruiser. They reported the shooting to the police, along with the license plate number and a description of the driver. {¶ 5} The license plate number revealed that the van belonged to Ernestine Cochrane. Detective Ronald Rodway went to Mrs. Cochrane's home to investigate. There he learned that Mrs. Cochrane's husband, Purvis Cochrane, had loaned the van to appellant on the night in question. He also observed that Mr. Cochrane did not fit the description of the driver that Howley had given to police. {¶ 6} Detective Rodway then compiled a photo array for Howley to look at. Howley picked appellant's photograph out as the driver of the van who shot into his car. *Page 3 {¶ 7} A Mahoning County grand jury indicted appellant on two counts of felonious assault, second-degree felonies in violation of R.C.2903.11(A)(2)(D). Both counts also had firearm specifications attached to them. After numerous changes in counsel, appellant's case proceeded to a bench trial on January 17, 2006. The court found him guilty as charged. The court then sentenced appellant to three years on each felonious assault count, to be served concurrently, and three years on each firearm specification, which it merged together, to be served prior to the felonious assault sentences. {¶ 8} Appellant filed a timely notice of appeal on February 3, 2006. {¶ 9} Appellant raises two assignments of error, which share a common basis in law and fact. Therefore, we will address them together: They state: {¶ 10} "THE TRIAL COURT ERRED IN OVERRULING THE CRIMINAL RULE 29 DEFENSE MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE APPELLANT'S CONVICTION." {¶ 11} "APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 12} Appellant first argues that the court should have granted his Crim.R. 29 motion for acquittal because the state failed to present sufficient evidence identifying him as the shooter. {¶ 13} Next, appellant argues that his convictions are against the manifest weight of the evidence. Specifically he alleges that the witnesses were not able to positively identify him as the shooter. {¶ 14} An appellate court reviews a denial of a motion to acquit under Crim.R. 29 using the same standard that an appellate court uses to review a sufficiency of the evidence claim. State v. Rhodes, 7th Dist. No. 99-BA-62, 2002-Ohio-1572, at ¶ 9; State v. Carter (1995),72 Ohio St.3d 545, 553, 651 N.E.2d 965. {¶ 15} Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a *Page 4 matter of law to support the jury verdict. State v. Smith (1997),80 Ohio St.3d 89, 113, 684 N.E.2d 668. In essence, sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d 380, 386,678 N.E.2d 541. Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Smith, 80 Ohio St.3d at 113. {¶ 16} But when determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins,78 Ohio St.3d at 387. "Weight of the evidence concerns `the inclination of thegreater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.'" Id. (Emphasis sic.) In making its determination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial. Id. at 390. {¶ 17} Still, determinations of witness credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts.State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. {¶ 18} Appellant was convicted of two counts of felonious assault in violation of R.C. 2903.11(A)(2), which provides: {¶ 19} "(A) No person shall knowingly do either of the following: {¶ 20} "* * * {¶ 21} "(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance." {¶ 22} Appellant's arguments center around the notion that the witnesses' testimony did not positively identify him as the driver of the van and the shooter. The *Page 5 evidence demonstrated that Howley and Bocian were driving/riding in Howley's car at 2:00 a.m. on the morning of August 18, 2001, when, as they drove away from a red light on Market Street, a black man in a dark-colored mini van shot into Howley's car. (Tr. 15-19, 49-52). Howley and Bocian followed the van onto Dewey in order to record its license plate number and when they did, the driver of the van got out and fired six more shots into Howley's car. (Tr. 18-21, 52-55). The only issue was whether appellant was indeed the driver of the van and thus, the shooter. {¶ 23} Plaintiff-appellee, the State of Ohio, established that appellant was the shooter in two ways: (1) by Howley's identification of him; and (2) by testimony that appellant was driving the van on the night in question. {¶ 24} First, Rodway testified that he showed Howley a photo lineup containing six photographs. (Tr. 116). Initially, Howley pointed out two photographs, which he told Rodway both looked very similar to the person who had shot into his car. (Tr. 117). One of those photographs was of appellant, while the other was of a deceased man. (Tr. 117). Then, as the two were going to talk to the prosecutor, Howley asked Rodway if he could look at the photographs again. (Tr. 117). Howley then picked appellant out as the shooter. (Tr. 117). {¶ 25} Furthermore, Howley testified that while he was stopped at the red light on Market Street, he looked at appellant a couple of times and got a good look at him and that he also got a look at him when appellant got out of the van on Dewey. (Tr. 24). Howley then identified appellant in court as the driver of the van and the shooter. (Tr. 25). {¶ 26} Second, Cochrane testified about loaning his wife's van to appellant. He testified that he loaned appellant the van on August 17, 2001, around 9:00 or 10:00 p.m. (Tr. 65-66, 76). In exchange for use of the van, Cochrane stated that appellant gave him drugs. (Tr. 65). Cochrane stated that he was addicted to crack cocaine at the time and sometimes loaned out the van in exchange for drugs or money. (Tr. 65). He stated that he got his van back the next day. (Tr. 66). It was parked in a driveway across the street from appellant's parents' house. (Tr. 71). *Page 6 Cochrane's testimony then became somewhat unclear. He first stated that he loaned the van to someone else around 2:00 or 4:00 a.m. (Tr. 66, 77-78). However, he later clarified that he did not re-loan the van until 2:00 or 4:00 a.m. on August 19. (Tr. 74-76). Cochrane also testified that at the time, he was on drugs and his memory was not too clear. (Tr. 68-69, 88). But now, since he was sober, his head was clear. (Tr. 88). {¶ 27} On cross-examinations, Cochrane stated that during August 2001, he loaned the van out to two or three people on five or six occasions in exchange for crack. (Tr. 87-88). He also stated that the way he knew he lent the van to appellant on August 17, as opposed to some other day, was because that was the day the detective told him the incident occurred. (Tr. 88-89). He then stated that he did not know the date he lent appellant the van. (Tr. 90, 92). However, Cochrane later testified that now, since his head was clear, he could remember the correct date because he remembered going to the house across the street from appellant's parents' house and waiting for appellant to bring him his keys. (Tr. 97). When appellant did not show up, Cochrane tore his steering column apart to start the van. (Tr. 97). Cochrane stated that this made the date stick in his mind. (Tr. 97). {¶ 28} Additionally, appellant stipulated that the van belonged to Mrs. Cochrane and that her license plate number was "CPC 5097." (Tr. 104; Ex. 5, 6). And Bocian testified that a photo of Mrs. Cochrane's van depicted the van that was involved in the shooting. (Tr. 59; Ex. 5). Bocian also stated that the license plate number "CPC 5097" was the license plate number he gave to the police. (Tr. 59). {¶ 29} We should also note that appellant testified on his own behalf. He denied having anything to do with the shooting. (Tr. 137). He stated that he borrowed Mrs. Cochrane's van a couple of times. (Tr. 139-40). However, he did not remember if he borrowed it on August 17 or 18. (Tr. 140). {¶ 30} Given this evidence, the trial court properly denied appellant's Crim.R. 29 motion. Viewing the evidence in a light most favorable to the prosecution, as we are required to do, reveals that the court could have found the elements of felonious *Page 7 assault beyond a reasonable doubt. The evidence demonstrated that appellant attempted to cause physical harm to Howley and Bocian by means of a deadly weapon. Both Howley and Bocian described the shooting. Howley identified appellant as the shooter, both in a photo lineup and in court. Cochrane testified that he loaned appellant his wife's van on the night in question. Bocian identified Mrs. Cochrane's van and license plate as the van and license plate involved in the shooting. Clearly, this evidence satisfies all of the elements of felonious assault. {¶ 31} Furthermore, the court's finding of guilt was not against the manifest weight of the evidence. Although Howley initially thought both appellant's photo and that of another man resembled the shooter, after further consideration, he picked appellant's photo out as the shooter. Additionally, Howley identified appellant in court. And while Cochrane at times seemed unsure of the date he lent appellant his van, at other times he seemed sure that he lent it to appellant on August 17-18. Thus, his credibility was called into question. {¶ 32} Although an appellate court is permitted to independently weigh witnesses' credibility when determining whether a conviction is against the manifest weight of the evidence, we must give great deference to the fact finder's determination of credibility. State v. Wright, 10th Dist. No. 03AP-470, 2004-Ohio-677, at ¶ 11. The policy underlying this presumption is that the trier of fact is in the best position to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing credibility. Id. The trial court evidentially believed Cochrane's testimony that he lent appellant the van on August 17-18 and we will give deference to this determination. Considering this in conjunction with all of the other evidence, the trial court's verdict was not against the manifest weight of the evidence. {¶ 33} Accordingly, appellant's two assignments of error are without merit. *Page 8 {¶ 34} For the reasons stated above, the trial court's judgment is hereby affirmed. Vukovich, J., concurs. Waite, J., concurs. *Page 1

2016-07-05 20:49:54.637743+00

Rogers

Plaintiff as the beneficiary in an industrial life insurance policy issued by the defendant on the life of Victor Moore sued to recover the death benefit of $70. Premiums had been paid on the policy for more than seven years and the policy had *Page 51 lapsed six months prior to the insured's death. The policy had accumulated a reserve, and plaintiff, grounding her action on Act No. 193 of 1906, sued for the full amount of the policy, alleging that at the time the policy lapsed the insured had not exercised the privilege of applying the reserve to other values. The defendant admitted that if the policy when it lapsed was affected with extended insurance, the insured died within the extended period, but contended that Act No. 193 of 1906 was unconstitutional and that, if constitutional, the statute was not applicable to industrial life insurance; and, further, that, if it were applicable to such insurance, the plaintiff was only entitled to $16.10, the paid-up value of the policy, which was tendered to plaintiff. The First city court for the city of New Orleans in which the suit was filed, gave plaintiff a judgment for the amount sued for. The Court of Appeal held that Act No. 193 of 1906 was constitutional, but it reduced the judgment of the First city court to $16.10. The case comes before us on a writ of review issued at plaintiff's instance. We are not called upon in this proceeding to review that part of the decision of the Court of Appeal which holds that Act No. 193 of 1906 is constitutional. That question is not before us. The writ of review was issued at the instance of plaintiff only. The defendant did not apply for a writ of review or join in *Page 52 plaintiff's application for the writ. In reviewing a judgment of the Court of Appeal at the instance of one of the parties to the suit, this court will not amend the judgment to his prejudice and to the advantage of the party who has not complained. Ware v. Couvillion, 112 La. 43, 36 So. 220; Black v. Louisiana Cent. Lumber Co., 161 La. 889, 109 So. 538. The only questions before us for decision are the same ones we disposed of in the case of Succession of Watson v. Metropolitan Life Insurance Company, 183 La. 25, 162 So. 790, this day decided. For the reasons assigned by us in that case, the judgment of the Court of Appeal is annulled, and the judgment of the First city court is reinstated and made the final judgment of this court; all costs of suit are to be paid by the defendant insurance company. HIGGINS, J., recused. On Rehearing.

2016-07-06 06:36:44.335291+00

DECISION AND JOURNAL ENTRY {¶ 1} Defendant, Nolan Heflin, appeals from the judgment of the Summit County Court of Common Pleas which convicted him of robbery. We affirm. {¶ 2} On April 17, 2003, the Summit County Grand Jury indicted Defendant on one count of robbery, in violation of R.C. 2911.02(A)(2). Defendant pled not guilty and the matter proceeded to trial. The jury found Defendant guilty and he was sentenced to a four year term of imprisonment. It is from this decision that Defendant timely appeals asserting two assignments of error which have been consolidated for ease of review. ASSIGNMENT OF ERROR I "The verdict of guilty of robbery was against the manifest weight of the evidence; and the State failed to prove all elements of the offense beyond a reasonable doubt thereby violating the Due Process Clause of theFourteenth Amendment of the United States Constitution." ASSIGNMENT OF ERROR II "The verdict of guilty of robbery was against the manifest weight of the evidence; and the trial court erred by not granting [Defendant's] motions for acquittal, in that the verdict was not supported by substantial credible evidence." {¶ 3} In these assignments of error, Defendant challenges the adequacy of the evidence presented at trial. Specifically, Defendant avers that the State failed to present sufficient evidence to support the trial court's denial of his Crim.R. 29 motion for acquittal and that his conviction for robbery was against the manifest weight of the evidence presented at trial. Defendant's assignments of error lack merit. {¶ 4} As a preliminary matter, we note that sufficiency of the evidence produced by the State and the weight of the evidence adduced at trial are legally distinct issues. State v. Thompkins (1997),78 Ohio St.3d 380, 386. "While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion." State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at 3, citing Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). {¶ 5} When a defendant asserts that his conviction is against the manifest weight of the evidence, "an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."State v. Otten (1986), 33 Ohio App.3d 339, 340. This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id. {¶ 6} Defendant was found guilty of robbery, in violation of R.C.2911.02(A)(2), which prohibits the infliction of physical harm on another when committing a theft offense or in fleeing immediately after the commission of the offense. Defendant maintains that the State failed to prove the elements of robbery beyond a reasonable doubt. Specifically, Defendant argues that the State did not prove that he used force to inflict physical harm upon another when attempting to flee the scene of the theft. Defendant's assertions lack merit. {¶ 7} At trial, Morgan Black ("Black"), a security guard for Acme Co., offered her testimony regarding the incident. Black explained that on March 31, 2003, she was in the security office, monitoring the security cameras, at Acme Co. and had focused on Defendant. Defendant was observed concealing numerous packages of steak in his coat and leaving the store without paying for them. Black stated that she left the office, in pursuit of Defendant, when he had exited the first set of store doors. Black indicated that she was approximately two feet away from the doors when she caught up with him. Defendant's back was towards Black as he was walking away from the building into the parking lot. {¶ 8} Black testified that she then "intertwined [her] arms with his arms as [she] stated `[s]tore security.'" Black explained that she was hoping to position Defendant against the store wall in order to gain better control over him. Black's plan failed and Defendant broke free of her grasp and turned to face her. A brief struggle ensued. Black attempted to put her arms around Defendant's neck to control him but "in the process [Defendant] flipped [her] over his head onto the pavement." Black testified that Defendant did not actually lift her over his head, but was instead lifted through a "flip." As a result, Black momentarily lost consciousness and received a large bump on the crown of her head. Additionally, the steaks that were concealed inside Defendant's jacket fell to the ground. Black maintained that the confrontation lasted only seconds. {¶ 9} Three women, Brandi Dusenberry ("Dusenberry"), Tiffany Miller ("Miller"), and Jennifer Deem ("Deem"), witnessed the scuffle and testified as to what they had observed. The women were in the Acme parking lot, in Dusenberry's vehicle, on the night of March 31, 2003. Dusenberry recalled seeing a scuffle in the parking lot and "thought [that] it was two high school kids wrestling around[.]" She maintained that she was going to "holler at them to quit wrestling" but then realized it was more than just a minor scuffle. Dusenberry then saw Defendant "pick [Black] up and slam her down on the ground * * * like wrestling." Black landed head first onto the pavement. Moments later, she observed a second security guard exit the store. Dusenberry maintained that the actual confrontation between Defendant and Black lasted only seconds and was very fast. Dusenberry testified that she then called 9-1-1. While on the phone with the dispatcher, she heard a gunshot but did not know who had fired the gun. {¶ 10} Miller and Deem offered a similar version of the events. Miller stated that Defendant "flipped [Black] over on her head onto the cement." Deem indicated that Defendant "pulled [Black] over his shoulders and body slammed her * * * on the back of her head." Both women observed Black strike the ground with her head and asserted that Black was "flipped" and had not simply fallen. {¶ 11} Gerald Thompson ("Thompson") was also working security for Acme that same evening. He observed Black run out of the security office and follow Defendant out the door. Thompson indicated that this was the signal to follow Black. By the time Thompson had exited the building Black was already lying on the ground in a motionless state on her stomach; Thompson did not witness the altercation. He ran after the Defendant, who was then climbing into an SUV with two females. Thompson reached the vehicle and tried opening the doors, but they were locked. He then pulled out his firearm and ordered Defendant to exit the vehicle. Defendant opened the door and "took off running." Thompson recalled firing a warning shot overhead when "[Defendant] kept turning around at [him] like he might have a weapon[.]" {¶ 12} Defendant presented a different version of the evening's events. He explained that he had relapsed into drug use and began stealing a number of small items in order to support his drug habit. Defendant admitted in court that he stole steaks from Acme; he indicated that they were pressed beneath his arms under his jacket. However, Defendant maintained that he did not cause any physical harm to Black. He repeatedly stated that he walked out of the store "and then as soon as [he] got outside the store, somebody came and grabbed [him] from the back and [he] turned around. All the steaks fell on the ground. [He] ran and got in the car." Defendant asserted that there was no further confrontation with Black. He did not recall hearing Black say anything as she approached him; "[n]obody said it was security." Defendant explained that he thought he had gotten away with the steaks and was then being "mugged." Furthermore, he testified that he did not "flip" Black or pick her up, nor did he see her fall to the ground. {¶ 13} While Defendant was in the SUV, Thompson approached and told him to exit the vehicle. Defendant testified that he told the driver to leave but she would not comply. He then gathered his belongings, opened the door and said to Thompson, "`You going to shoot me for petty theft?' and took off running." Defendant asserted that Thompson shot at him when he began running. He indicated that he did not stop as he was merely told to exit the vehicle. Defendant contends that he did not interpret that statement as placing him under arrest. {¶ 14} Clearly, the jury, in weighing the evidence, the credibility of the witnesses, and the testimony elicited at trial, could have concluded that Defendant was guilty. Moreover, a determination as to what occurred is a question for the trier of fact, and it is not the function of the appellate court to substitute its judgment for that of the factfinder. See State v. Jenks (1991), 61 Ohio St.3d 259, 273. After careful review of the record, we are unable to conclude that the trier of fact lost its way and created a manifest miscarriage of justice when convicting Defendant of robbery. Consequently, Defendant's conviction was not against the manifest weight of the evidence. {¶ 15} This Court has previously observed that "[b]ecause sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency." (Emphasis omitted.) State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462, at 4. As we have already determined that Defendant's conviction was not against the manifest weight of the evidence, we necessarily conclude that there was sufficient evidence to support the verdict in this case. Accordingly, Defendant's assignments of error are overruled. {¶ 16} Defendant's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed. Baird, J. and Batchelder, J., concur.

2016-07-06 06:36:44.472375+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 Mark Sedaker appeals from the decision of the Summit County Court of Common Pleas designating him a sexual predator under R.C. Chapter 2950. We affirm. In April and May of 1997, Sedaker was indicted by the Summit County Grand Jury on seven counts of rape, in violation of R.C.2907.02(A). The charges stemmed from Sedaker raping his mentally-retarded sister. As a result of one of those occasions, Sedaker impregnated his sister. Sedaker initially pleaded not guilty to the charges. On October 15, 1997, Sedaker pleaded guilty to one count of rape, in exchange for which the remaining six counts were dismissed. On November 10, 1997, a hearing was held for the purposes of sentencing and sexual predator adjudication. The trial court sentenced Sedaker to nine years imprisonment and found him to be a sexual predator. Sedaker now appeals to this court. Sedaker asserts three assignments of error. We will address each in turn. I. In his first assignment of error, Sedaker argues that the sexual predator statute, R.C. Chapter 2950, is unconstitutional as violative of the constitutional proscriptions against retroactive or ex post facto laws. The Ohio Supreme Court has held that R.C. 2950.90(B)(1) does not violate the Retroactivity Clause of the Ohio Constitution or the Ex Post Facto Clause of the United States Constitution. State v. Cook (1998), 83 Ohio St.3d 404, paragraphs one and two of the syllabus. Accordingly, Sedaker's first assignment of error is overruled. II. In his second assignment of error, Sedaker argues that R.C. Chapter 2950 violates constitutional prohibitions against double jeopardy. This court has previously held that Ohio's sexual predator law does not violate double jeopardy. State v. Nuckols (Aug. 26, 1998), Wayne App. No. 97CA0076, unreported, at 17. Sedaker's second assignment of error is overruled. III. In his third assignment of error, Sedaker argues that R.C. Chapter 2950 is unconstitutionally vague. This court held to the contrary in State v. Jameson (Apr. 22, 1998), Lorain App. No. 97CA006704, unreported, at 11-12. Sedaker's third assignment of error is overruled. Sedaker's assignments of error are overruled. The judgment of the Summit 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 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). FOR THE COURT BAIRD, P. J. SLABY, J. CONCUR (Reece, J., retired Judge of the Ninth District Court of Appeals, sitting by assignment pursuant to Section 6 (C), Article IV, Constitution.)

2016-07-06 06:36:32.851243+00

OPINION Appellant, Jason Mills, appeals from the decision of the Ashtabula County Court of Common Pleas, Juvenile Division. On February 13, 2001, a complaint was filed alleging that on or about February 12, 2001, appellant was delinquent for: (1) one count of robbery, in violation of R.C. 2911.02(A)(3), a felony of the third degree, if committed by an adult; (2) one count of theft, in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree, if committed by an adult; and, (3) one count of safecracking, in violation of R.C. 2911.31(A), a felony of the fourth degree, if committed by an adult. On February 13, 2001, appellant was arraigned and appellant entered a plea of denial on all counts. A trial before a magistrate was held on March 6, 2001. At trial, the prosecution presented two witnesses, to wit: the investigating officer, Detective Sargent Steve Gerics, of the Conneaut Police Department and Kevin Jury ("Jury"), the store manager at the Save A Lot store on West Main Road, in Conneaut. Jury testified that, on the day in question, appellant, who was a former employee, entered the store, walked into office, and tried to reach the handle of the safe. Jury hid behind a bread rack and waited until he heard a clicking sound immediately followed by the creaking sound of the safe opening. Jury looked into the office and saw the safe door open slightly. As appellant exited the office, Jury pinned him against the wall with a bread rack and grabbed a bundle of money from appellant's right hand. Appellant pushed Jury twice and then ran out of the store. At the close of the prosecution's case in chief, appellant moved to dismiss the robbery charge, arguing that the state had failed to prove the element of force, and also moved to dismiss the safecracking count. Appellant's motion was denied. Appellant attested that he had gone into the office to use the "mike" to call Jury, so that he could pick up his W-2 form. Appellant admitted that he stole the $76.00 recovered by Jury; however, he contends that the money was on the counter, not in the safe. Appellant denied pushing Jury. At the close of appellant's case, appellant renewed his motion to dismiss the robbery and safecracking counts. Appellant's motion was overruled on both counts. Jury was called as a rebuttal witness and testified that no money was left on the counter. All money is counted, bundled with the initials of the person who counted it written on the label, and placed into the safe, which is left unlocked during the day. The magistrate's decision was filed on March 7, 2001. The following day, March 8, 2000, the court adopted the magistrate's decision. Appellant filed objections to the magistrate's decision on March 19, 2001. On April 6, 2001, appellant filed a notice of appeal. Upon remand from this court, the juvenile court overruled appellant's objections, on September 11, 2001. Appellant raises the following assignments of error for our review: "[1.] The trial court violated Jason Mill's [sic] right to due process under the Fifth and Fourteenth Amendments to the United States Constitution, Article 1, Section 16 of the Ohio Constitution, and Juv.R. 29(E)(4) when it adjudicated him delinquent of robbery absent proof of every element of the charge against him by sufficient, competent, and credible evidence. "[2.] The trial court erred by imposing a suspended commitment after the period of probation had ended. "[3.] The trial court violated Jason Mill's [sic] right to the equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Ohio Constitution by imposing Mills [sic] suspended commitment after his release from probation. "[4.] The trial court violated Jason Mill's [sic] right to notice and due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution when it did not follow the proper procedures for probation and revocation. "[5.] Jason Mill's [sic] right not to be twice punished for the same offense as guaranteed by the double jeopardy clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution was violated by the juvenile court's imposition of the suspended sentence after Mill's [sic] period of probation had ended. "[6.] The juvenile court erred when it sentenced Jason Mill's [sic] to the youth detention center in violation of R.C. 2151.355 and 2151.34." In appellant's first assignment of error, he challenges the sufficiency of the trial court's finding that he was delinquent by reason of robbery. Specifically, appellant contends that the state failed to prove the required element of force and that the force alleged did not coincide with the theft. At the outset, we note that the trial court's March 8, 2001 judgment entry erroneously states that appellant was found to be a delinquent by way of robbery in violation of R.C. 2911.01(A)(3), the aggravated robbery statute. Appellant was charged with robbery, in violation of R.C.2911.02(A)(3). Because of this clerical error, this case is remanded for the trial court to correct its judgment entry. When reviewing a record for sufficiency, "the relevant inquir is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. Pursuant to R.C. 2911.02(A)(3), the state was required to prove beyond a reasonable doubt that, in attempting or committing a theft offense, or in fleeing immediately after the attempt or offense, appellant used or threatened the immediate use of force against another. Force is defined as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing. R.C. 2901.01. Pushing constitutes an act of violence within the meaning of R.C. 2901.01(A). See e.g., State v. Calhoun (Nov. 14, 1991), 8th Dist. No. 59370, 1991 Ohio App. LEXIS 5504, at *5. Next, we will address appellant's assertion that the force did not coincide with the theft. Appellant cites State v. King (Aug. 27, 1981), 10th Dist. No. 80AP-968, 1981 Ohio App. LEXIS 10193, for the proposition that the force used in resisting the detention of a store owner, if used for the mere purpose of escape, does not constitute "purpose to deprive" as set forth in R.C. 2911.02. We do not agree. Instead, we adopt the reasoning of the Eighth District Court of Appeals, set forth in State v.Dunning (May 23, 2000), 8th Dist. No. 75869, 2000 Ohio App. LEXIS 1185, wherein the court held that "where a defendant struggles with store security guards outside a store immediately after a theft in an effort to escape apprehension, such conduct * * * is sufficient to establish the force element of robbery." Dunning, at *8. We support the premise that the use of force need not be in furtherance of the theft, as long as it occurs while the appellant is immediately fleeing from the attempt or the commission of the theft offense. An interpretation of R.C. 2911.02 requiring that the purpose of the force must be to deprive another of his property, is contrary to the "intent of the statute to avoid potential as well as actual harm to persons and is contrary to the committee Comment on R.C. 2911.02." State v. Trammell (July 27, 1994), 2nd Dist. No. 14092, 1994 Ohio App. LEXIS 3293 at *4;State v. Scott (Mar. 11, 1991), 4th Dist. No. CA 505, 1991 Ohio App. LEXIS 1208, at *17-18. R.C. 2911.02(A)(3) increases the penalty for robbery when the criminal act includes physical contact with the victim. The clear purpose of R.C.2911.02(A)(3) is to discourage physical contact during the perpetration of a burglary to reduce the risk of harm to innocent victims. This being the case, it does not make any difference if the physical contact occurs during the onset of the crime or at a point where the perpetrator, confronted in the act, seeks to complete or abort his criminal activity. The perpetrator, in undertaking the criminal conduct, creates the situation. Distinguishing stages in the crime would encourage physical violence upon detection and would increase the risk of physical harm to robbery victims. Such results would be contrary to the purpose of the statute. Review of the transcript reveals that Jury testified that as appellant left the office, he came out from behind the bread rack and pinned appellant against the wall. Jury took the money from appellant's hand, released the bread rack, and told appellant to stay right there. Appellant then pushed Jury twice, and ran. Appellant used force to escape apprehension during the preparation of the theft offense. Accordingly, we conclude that the record contains sufficient evidence, upon which a rational trier of facts could find all the elements of robbery, as set forth in R.C. 2911.02. Appellant's first assignment of error is without merit. In appellant's second assignment of error, he argues that the juvenile court erred in imposing a suspended commitment, after the probation period had ended. The record reveals that appellant's notice of appeal filed on April 6, 2000, included only the case number for the robbery, theft, and safecracking charges, 01 JA 110. The proper procedure for perfecting the appeal of the previously suspended commitment would have been for appellant to have filed notices of appeal for that case number, 99 JA 1255, within thirty days of the April 6, 2000 order imposing the commitment. See In re Dumas (Aug. 14, 1998), 1st Dist. No. C-970890, 1998 Ohio App. LEXIS 3711, at *4-5. Thus, the terms of the commitment, including the conditions, if any, placed upon the suspension of the commitment, are dehors the record. Accordingly, appellant's second assignment of error is without merit. Further, when a court suspends an order committing a child to the Department of Youth Services and places him on probation, the commitment order may be imposed if the juvenile violates the conditions of the order, even if the probation period has ended. See generally, In re Griffin (Sept. 27, 1996), 3rd Dist. No. 14-96-14, 1996 Ohio App. LEXIS 4299; In re Ravanna T. (Aug. 1, 1997), 6th Dist. No. L-96-371, 1997 Ohio App. LEXIS 3370; In re Proctor (Dec. 24, 1997), 9th Dist. No. 18257, 1997 Ohio App. LEXIS 5761; In re Bracewell (1998), 126 Ohio App.3d 133, 139. Appellant's second assignment of error is without merit. Based on our disposition of appellant's second assignment of error, appellant's third through fifth assignments of error are overruled. In appellant's sixth assignment of error, he argues that the juvenile court erred in sentencing appellant to serve ninety days in the youth detention center because it is to be used only as a predisposition facility. Appellant argues that "a final order of disposition of a child found to be a delinquent may not include, as punishment or otherwise, confinement or detention in a juvenile detention home." In re Bolden (1973), 37 Ohio App.2d 7. Appellant's reliance on Bolden is misplaced. In Bolden, the court held that "R.C. 2151.34 specifically prohibits commitment to any prison, jail or lockup and permits detainment of children in a juvenile detention home only until final disposition of their case. Thus, disposition may not include, as punishment or otherwise, confinement in a juvenile detention home, and such portions of the judgments of the trial court providing for such detention must be reversed and vacated." Bolden, at 16. However, R.C. 2151.34 has since undergone numerous amendments. The version of R.C. 2151.34 in effect at the time of sentencing did not contain any prohibition against confinement in a juvenile detention home. To the contrary, it provided: "A child who is alleged to be or adjudicated a delinquent child may be confined to a place of juvenile detention for a period not to exceed ninety days, during which time a social history may be prepared to include court record, family history, personal history, school and attendance records, and any other pertinent studies and material that will be of assistance to the juvenile court in its disposition of the charges against that juvenile offender." (Emphasis added.) Accordingly, the trial court did not err in remanding appellant to the Ashtabula County Youth Detention Center for ninety days, to run concurrent with a commitment to the Department of Youth Services. Further, we note that R.C. 2152.04, which went into effect on January 1, 2002, provides that a child who is adjudicated a delinquent child may be confined in a place of juvenile detention for a period not to exceed ninety days, during which time a social history may be prepared. Appellant's sixth assignment of error lacks merit. Based on the foregoing, appellant's assignments of error lack merit, and the judgment of the trial court is affirmed. However, this matter is remanded for the court to correct its judgment entry to reflect that appellant was found guilty by reason of robbery, a violation of R.C.2911.02(A)(3), not 2911.01(A)(3). WILLIAM M. O'NEILL, P.J., ROBERT A. NADER, J., concur.

2016-07-06 06:36:45.167339+00

JOURNAL ENTRY AND OPINION Appellant, Wayne Smith, is appealing the trial court's entry of judgment upon a jury verdict in favor of appellee, Revco Pharmacy. Mr. Smith also appeals the order granting Revco's motion in limine to exclude evidence of former employee Luther Perry's criminal record and the trial court's failure to enter a default judgment against Mr. Perry. For the following reasons, we affirm. The record presented to us on appeal reveals the following. On November 10, 1997, an armed robbery occurred at a Revco Drug Store located at 25991 Euclid Avenue in Euclid, Ohio. After the robbery, the police were notified and the employees questioned. Subsequently, the police apprehended Mr. Smith as a possible suspect based upon the description given to them by the employees. Mr. Smith was brought to the store for purposes of identification where the employees positively identified him. Mr. Smith was then arrested for the crime. On December 23, 1997, Mr. Smith was indicted by the Cuyahoga County Court of Common Pleas Grand Jury on four counts of aggravated robbery and four counts of kidnapping with a firearm specification. On February 27, 1998, Mr. Smith was found not guilty of the charges against him. On May 14, 1999, Mr. Smith filed a civil suit against Revco and one of its former employees, Mr. Perry, personally and as representative/employee of Revco, alleging conspiracy, malicious prosecution, negligent hiring, and defamation. As to the allegations of negligent hiring and negligent supervision, Mr. Smith alleged that the robbery was an inside job involving Mr. Perry and that Revco negligently hired and supervised Mr. Perry. Mr. Perry failed to file an answer to the complaint. On February 22, 2000, Revco filed a motion in limine to exclude any reference to Mr. Perry's criminal background or alleged involvement in the Revco robbery. On April 3, 2000, trial on the matter commenced. Before trial, the judge heard arguments in chambers concerning the motion in limine. The motion in limine was granted. The jury later returned a verdict for Revco on all counts. On April 12, 2000, Mr. Smith filed a motion for judgment notwithstanding the verdict and/or a motion for new trial alleging an error of law occurred at trial when the trial court failed to allow evidence of Mr. Perry's criminal background or alleged involvement in the Revco robbery. On April 24, 2000, this motion was overruled. Mr. Smith now appeals this decision raising three assignments of error. We will address Assignment of Error I and III together as they both address the issue of the admissibility of evidence. I. THAT THE VISITING JUDGE, JUDGE JOHN L. ANGELOTTA ERRED IN GRANTING DEFENDANT'S MOTION IN LIMINE FILED FEBRUARY 22, 2000 AND HEARD BY THE COURT AT TRIAL IN ORAL ARGUMENT ON MONDAY, APRIL 3, 2000 AND GRANTED BY THE TRIAL COURT WITHOUT ISSUANCE OF JUDGMENT ENTRY WAS IN ERROR. III. THAT THE TRIAL COURT ERRED IN FAILING TO GRANT THE PLAINTIFF'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND/OR IN THE ALTERNATIVE, PLAINTIFF'S MOTION FOR A NEW TRIAL. In both of these assignments of error, Mr. Smith challenges the trial court's evidentiary rulings on the admissibility of evidence of Mr. Perry's criminal background or alleged involvement in the robbery. Revco maintains that the trial court did not abuse its discretion in excluding such evidence and, regardless, Mr. Smith's failure to file a trial transcript precludes him from raising such as errors. A trial court's decision to exclude evidence is not grounds for reversal unless the record clearly demonstrates that the trial court abused its discretion and that the complaining party has suffered a material prejudice. Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164. An abuse of discretion connotes more than an error of law or judgment, it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Tracy v. Merrell-Dow Pharmaceuticals, Inc. (1991),58 Ohio St.3d 147, 152. A motion in limine is a preliminary ruling. Pena v. Northeast Ohio Emergency Affiliates, Inc. (1995), 108 Ohio App.3d 96, 108; Defiance v. Kretz (1991), 60 Ohio St.3d 1, 4. Thus, the trial court is free to change its ruling on the disputed evidence in its actual context at trial. Id. Accordingly, a proper objection must be raised at trial to preserve any claimed error. Collins v. Storer Communications, Inc. (1989),65 Ohio App.3d 443; State v. Grubb (1986), 28 Ohio St.3d 199. Specifically: [A] proponent who has been temporarily restricted from introducing evidence by virtue of a motion in limine, must seek the introduction of the evidence by proffer or otherwise at trial in order to enable the court to make a final determination as to its admissibilityand to preserve any objection on the record for purposes of appeal. Id. Here, Mr. Smith did not file the entire trial transcript. Instead, he filed a partial transcript that included only the motion in limine proceedings. Without a copy of the transcript of the trial proceedings, we have no way of identifying any attempt by Mr. Smith to proffer evidence of Mr. Perry's criminal records at trial. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. Without a proffer, Mr. Smith did not preserve any error for purposes of appeal. Id. The duty to provide the transcript of the proceedings or an allowable alternative to the transcript falls on Mr. Smith because he bears the burden of demonstrating the claimed errors by reference to matters in the record. Columbus v. Hodge (1987), 37 Ohio App.3d 68. Mr. Smith's failure to file the entire transcript forecloses our ability to determine whether prejudice resulted from the exclusion of the evidence concerning Mr. Perry's criminal background. Holley v. Higgins (1993), 86 Ohio App.3d 240; Austin v. Squire (1997), 118 Ohio App.3d 35; Knapp v. Edwards Laboratories (1980) 61 Ohio St.2d 197. Moreover, without a transcript, Mr. Smith is unable to demonstrate that the decision of the trial court was arbitrary, unreasonable, or capricious. It is the duty of Mr. Smith to properly perfect his appeal. Id. Having failed to do so, we must presume the validity of the trial court and affirm the judgment of the trial court. II. THAT THE TRIAL COURT ERRED IN FAILING TO GRANT THE PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT, LUTHER PERRY (PERSONALLY AND AS REPRESENTATIVE/EMPLOYEE REVCO DRUG STORES). In his second assignment of error, Mr. Smith argues that the trial court should have granted him default judgment against Mr. Perry since service was effected and Mr. Perry failed to answer. Revco maintains that Mr. Smith never established that service was effected on Mr. Perry; or, in the alternative, that even if service was effected against Mr. Perry, any finding of default judgment against him would not create vicarious liability on Revco. Civ.R. 55(A) allows for a plaintiff to file a motion for default judgment when the defendant has failed to plead or otherwise defend. Where a defendant fails to plead or otherwise defend, the defendant is subject to a default judgment. McDonald v. Berry (1992), 84 Ohio App.3d 6,9-10; Farmers Merchants State Savings Bank v. Raymond G. Barr Enterprises, Inc. (1982), 6 Ohio App.3d 43, 44. A trial court's ruling on a motion for default judgment will not be reversed absent an abuse of discretion. Davis v. Immediate Med. Serv., Inc. (1997), 80 Ohio St.3d 10; Miller v. Lint (1980), 62 Ohio St.2d 209; Huffer v. Cicero (1995),107 Ohio App.3d 65, 74. Here, Mr. Smith filed a complaint against Mr. Perry, personally and as representative/employee of Revco, on May 14, 1999. On May 25, 1999, the clerk of courts served Mr. Perry with a copy of Mr. Smith's complaint by certified mail. The certified mail receipt was returned to the clerk of courts on May 26, 1999 and signed by "other." On September 21, 1999, Mr. Smith moved for default judgment against Mr. Perry after he failed to file an answer. On October 4, 1999, the trial court set the matter for a default hearing and ordered Mr. Smith to provide the court with proof of service, an affidavit of damages, a proposed journal entry, and a copy of the letter sent to Mr. Perry by regular and certified mail notifying him of the default hearing. See Civ. J. Vol. 2386, P. 285. Mr. Smith failed to comply with this order. Subsequently, on December 27, 1999, the motion for default judgment was denied by the court. We find that the trial court did not abuse its discretion in denying Mr. Smith's motion for default judgment against Mr. Perry. Although Mr. Perry was properly served with a copy of the complaint, and failed to plead or otherwise defend against Mr. Smith's claims, Mr. Smith failed to comply with the court's order of October 4, 1999. Specifically, he did not provide the court with proof of service, an affidavit of damages, a proposed journal entry, or a copy of the letter sent to Mr. Perry by regular and certified mail notifying him of the default hearing. Indeed, the court docket indicates that postcards sent to Mr. Perry on January 11, 2000 and May 1, 2000 were returned by the United States Postal Service suggesting that service of the motion for default judgment was never effected. Accordingly, the trial court did not err in denying Mr. Smith's motion for default judgment against Mr. Perry and the second assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the 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. _____________________ JAMES J. SWEENEY, J.

2016-07-06 06:36:32.820069+00

McManamon

Victoria Studier, administrator of the estate of Virginia Moriana and personal representative of her next of kin, appeals judgment on the pleadings in favor of Benjamin Tancinco, M.D. ("the pathologist") and Southwest General Hospital ("the hospital"). Studier brought survival actions for medical malpractice and wrongful death against six medical defendants. After the entry of certain settlements, dismissals and amended complaints not the subject of this appeal, only claims for spoliation or destruction of evidence against the pathologist and hospital remained at issue. The trial court awarded judgment on the pleadings to these defendants, concluding that Ohio does not recognize such a cause of action. On appeal, Studier raises two assignments of error,1 which controvert the entry of judgment on the pleadings. The pathologist and hospital both cross-appeal,2 challenging the propriety of Studier's fourth amended complaint and the denial of the cross-appellants' motions for summary judgment. Upon review, we affirm the judgment of the trial court in part, reverse it in part and remand it for disposition of outstanding claims. *Page 514 Sixty-four-year-old Virginia Moriana died within weeks of elective hernia surgery at the hospital. She suffered perforations of the small bowel with contamination of the peritoneal cavity by food and fecal matter. The pathologist performed an autopsy at the behest of the family. His report omitted reference to the small bowel and indicated infection caused the death. Studier posits that the pathologist's omission of evidence vital to her medical claims destroyed her ability to obtain the amount of damages for which she prayed in her fourth amended complaint. The medical claims were arbitrated in 1989. The arbitrators awarded $1,291,000 in damages to Studier against the surgeon. The administratrix settled and dismissed the claims against the remaining medical defendants for $750,000. The panel declined to arbitrate the spoliation claim against the pathologist as it was not "* * * causally related to a compensable medical claim." The panel noted, however, that the pathologist "* * * deviated from acceptable medical practice in that he failed to report findings on autopsy which were material to the mechanisms which ultimately caused death." We must first, sua sponte, address an issue of jurisdiction. While the entry of judgment on the pleadings as to the spoliation claims in the third and fourth amended complaints contains the necessary language to make it a final appealable order pursuant to Civ.R. 54(B), we note other claims in the suit have not been fully resolved. The trial court entered a judgment dismissing, as settled, Studier's claims against three doctors. The entry, however, requires approval by the probate court. This approval has not been journalized in the record of this case. For lack of jurisdiction, we specifically decline to review the pathologist's second cross-assignment of error and the hospital's fourth cross-assignment of error challenging the denial of their motions for summary judgment which are interlocutory and not final orders pursuant to Civ.R. 54(B).Palmer v. Westmeyer (1988), 48 Ohio App.3d 296, 549 N.E.2d 1202. Thus we confine our examination to those issues contained in the order for judgment on the pleadings which we find to be a final appealable order. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 540 N.E.2d 266; Douthitt v. Garrison (1981), 3 Ohio App.3d 254, 3 OBR 286, 444 N.E.2d 1068. See, also, Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St.3d 124, 543 N.E.2d 1200. We will initially address the pathologist's first and the hospital's fifth cross-assignments of error, both of which controvert the propriety of the plaintiff's fourth amended complaint. The defendants complain that the court erroneously allowed the amended complaint only four days before trial was scheduled. *Page 515 Studier's 1987 third amended complaint put forth claims for medical malpractice, wrongful death, the intentional destruction of evidence and conspiracy to destroy evidence. She pled no specific amount of monetary damages. Two years later and just four days before the scheduled trial, the court allowed an unjournalized, oral motion by the plaintiff to amend the complaint. That fourth amended complaint differed from its predecessors in that it (1) added two new plaintiffs; (2) deleted the medical claims and relied solely on the spoliation of evidence claim; (3) enlarged the spoliation claim to include negligent, fraudulent and malicious destruction of evidence; and (4) added a prayer for $1,171,116.68 compensatory and $10,000,000 punitive damages. The court continued the trial upon motion of the hospital. Civ.R. 54(C) sets forth in relevant part that "* * * a demand for judgment which seeks a judgment for money shall limit the claimant to the sum claimed in the demand unless he amends his demand not later than seven days before the commencement of the trial." This mandate supersedes the more general Civ.R. 15(A) language which provides that a party may obtain leave to file an amended complaint "* * * when justice so requires." Williams v.Glen Manor Home for Jewish Aged, Inc. (1986), 27 Ohio App.3d 246, 27 OBR 289, 500 N.E.2d 929; Fulton v. Aszman (1982), 4 Ohio App.3d 64, 4 OBR 114, 446 N.E.2d 803. Civ.R. 54(C) is mandatory.Douthitt, supra. We find that the court impermissibly allowed Studier to amend her demand for money judgment four days before trial in violation of Civ.R. 54(C). Douthitt, supra. As a result, Studier is limited to the zero dollar sum claimed in her third amended complaint. Civ.R. 54(C); Digital Design Corp. v. North SupplyCo. (1989), 44 Ohio St.3d 36, 540 N.E.2d 1358; Bishop v. Grdina (1985), 20 Ohio St.3d 26, 20 OBR 213, 485 N.E.2d 704;Raimonde v. Van Vlerah (1975), 42 Ohio St.2d 21, 71 O.O.2d 12,325 N.E.2d 544; Mers v. Dispatch Printing Co. (1988), 39 Ohio App.3d 99, 529 N.E.2d 958. We also find the court erroneously allowed Studier's amendment as to the substance of her claims. Civ.R. 15(A) permits a party to amend her pleadings by leave of court. Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 12 OBR 246, 465 N.E.2d 1298; Meadors v. Zaring (1987),38 Ohio App.3d 97, 526 N.E.2d 107; Holsman Neon Elec. Sign Co. v.Kohn (1986), 34 Ohio App.3d 53, 516 N.E.2d 1284; Solowitch v.Bennett (1982), 8 Ohio App.3d 115, 8 OBR 169, 456 N.E.2d 562. The grant of leave is within the sound discretion of the trial court. Id. *Page 516 The motion seeking leave to file the amendment must be in writing, unless made during a hearing or trial. Civ.R. 7(B)(1). The rule has been construed to require the motion to contain a brief written statement of the reason supporting it.Maintenance Unlimited, Inc. v. Salemi (1984), 18 Ohio App.3d 29, 18 OBR 54, 480 N.E.2d 113; Rosenberg v. Gattarello (1976),49 Ohio App.2d 87, 3 O.O.3d 151, 359 N.E.2d 467. This the plaintiff failed to do. Further, there is no evidence in the record that Studier made her oral motion during a hearing. The court should grant leave only where to do so would not unduly prejudice the defendants and where, from plaintiff's timely and good faith motion for leave, it appears she has an actionable claim. Hambleton, supra; DiPaolo v. DeVictor (1988),51 Ohio App.3d 166, 555 N.E.2d 969; Holsman Neon Elec. SignCo., supra; Solowitch, supra. In this case, two years after asserting the spoliation of evidence claim and four days before trial, the plaintiff sought to amend her fatally defective complaint not only by correcting its omissions and oversights, but by adding new claims and new parties. As these efforts appear futile in sight of her untimely attempt to plead actual damages, the court improperly granted leave to file the fourth amended complaint. Meadors andSolowitch, supra. These assignments of error have merit. Studier's two assignments of error contend that the court erroneously granted defendants judgment on the pleadings on her claims for fraudulent, negligent and intentional spoliation of evidence. The court entered judgment on these claims, as set forth in Studier's third and fourth amended complaints, after determining that Ohio does not recognize such cause of action. Our discussion will necessarily address the hospital's first three cross-assignments of error which also posit that the spoliation claim is not cognizable in Ohio. We note the disposition of the pathologist's first and the hospital's fifth cross-assignments of error renders the fourth amended complaint void and so we confine our review to the third amended complaint. Pursuant to Civ.R. 12(C), the trial court may properly enter judgment on the pleadings, as a matter of law, where the plaintiff fails to allege a cognizable cause of action.Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 63 O.O.2d 262,297 N.E.2d 113; Janca v. First Fed. S. L. Assn. of Cleveland (1985), 21 Ohio App.3d 211, 21 OBR 225, 486 N.E.2d 1216. Civ.R. 8(A) requires that a claim for relief must include "a demand for judgment for the relief of which he deems himself entitled." Where *Page 517 actual damages are not pled, an actionable cause is not stated.Jemo v. Garman (1982), 70 Ohio St.2d 267, 24 O.O.3d 358,436 N.E.2d 1353. In her third amended complaint, Studier alleged that "* * * as a direct and proximate result of the intentional and deliberate destruction of evidence * * * plaintiffs have had and will have to incur additional costs in investigation and prosecution of their claim and have been deprived of crucial evidence in preparing their cause of action." Litigation expenses are not recoverable as compensatory damages because such necessary expenses are recoverable as costs pursuant to Civ.R. 54(D). Cf. Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177, 75 O.O.2d 224, 347 N.E.2d 527; Convention Ctr. Inn, Ltd. v.Dow Chemical Co. (1984), 19 Ohio Misc.2d 15, 19 OBR 422,484 N.E.2d 764. See, also, Bookatz v. Kupps (1987), 39 Ohio App.3d 36, 528 N.E.2d 961; Jones v. Pierson (1981), 2 Ohio App.3d 447, 2 OBR 542, 442 N.E.2d 791. Further, as previously noted, Studier recovered over $1,000,000 on the claims for which she seeks litigation costs. Studier also failed to assert "actual malice, fraud or insult" in her third amended complaint. Without such allegations, she did not state a claim entitling her to the punitive damages she requested. Helmick v. Republic-FranklinIns. Co. (1988), 39 Ohio St.3d 71, 529 N.E.2d 464; Hoskins v.Aetna Life Ins. Co. (1983), 6 Ohio St.3d 272, 6 OBR 337,452 N.E.2d 1315, paragraph two of the syllabus; Ali v. JeffersonIns. Co. (1982), 5 Ohio App.3d 105, 5 OBR 220, 449 N.E.2d 495;Convention Ctr. Inn, Ltd., supra. Finally, as we have already noted, Studier prayed for no specific dollar amount of damages. Civ.R. 54(C) thus limits her recovery potential to the zero dollar amount pled. Bishop,Raimonde, and Mers, supra. As Studier did not denominate actual damages, she failed, as a matter of law, to state an actionable cause. Thus, the court properly entered judgment on the pleadings for the defendants. The judgment entry of the trial court also stated that spoliation of evidence is not a cause of action recognized in Ohio. We decline to reach that issue as it is mooted by plaintiff's failure to delineate an actionable claim for relief. We will not reverse a judgment that is correct, irrespective of the reasoning used by the trial court. Joyce v. Gen. MotorsCorp. (1990), 49 Ohio St.3d 93, 96, 551 N.E.2d 172, 174;Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275,284, 29 O.O. 426, 430, 58 N.E.2d 658, 663; April v.Reflector-Herald (1988), 46 Ohio App.3d 95, 546 N.E.2d 466;Taylor v. Yale Town Mfg. Co. (1987), 36 Ohio App.3d 62,520 N.E.2d 1375. The plaintiff's two assignments of error are not well taken. The hospital's first, second and third cross-assignments of error are dismissed as moot. *Page 518 The judgment of the trial court is affirmed in part, reversed in part and remanded to strike the fourth amended complaint and for disposition of outstanding claims. Judgment accordingly. KRUPANSKY, C.J., and JOHN F. CORRIGAN, J., concur. APPENDIX I Plaintiffs-appellants' assignments of error: I "The trial court erred in granting judgment on the pleadings when the complaint stated a cause of action for fraudulent misrepresentation and negligence." II "The trial court erred in granting judgment on the pleading because intentional destruction of evidence or `spoilation' [sic] is a valid cause of action under Ohio law." APPENDIX II Assignments of error of Benjamin F. Tancinco, M.D.: I "The trial court committed prejudicial error when it granted Studier leave to file and serve a fourth amended complaint on September 14, 1989 with trial at that time scheduled to commence on September 18, 1989." II "The trial court erred in denying Tancinco's motion for summary judgment since the state of the evidence at that time made it clear that there were no issues as to any material fact and Tancinco was entitled to judgment as a matter of law." Assignments of error of Southwest General Hospital: I "The trial court erred in granting plaintiff's motion to amend complaint in its order of September 28, 1987 wherein the plaintiff was permitted to set forth Count III to allege an uncognizable cause of action for alleged intentional and deliberate destruction of evidence." *Page 519 II "The trial court erred in granting plaintiff's third motion to amend complaint in its order of November 27, 1987 which permitted plaintiff to revise Count III which alleged an uncognizable cause of action for intentional and deliberate destruction of evidence." III "The trial court erred in overruling defendant Southwest General Hospital's motion to dismiss Count III of plaintiff's amended complaint, for failure to state a claim upon which relief may be granted, in its order of January 15, 1988 where Count III does not allege a cause of action cognizable under Ohio law." IV "The trial court erred in overruling defendant Southwest General Hospital's motion for summary judgment in its order of April 6, 1988 where the defendant proved that there were no genuine issues of material fact and the defendant Southwest General Hospital was entitled to summary judgment in its favor as a matter of law on all counts in the third amended complaint." V "The trial court erred in granting plaintiff's ex parte oral motion to file fourth amended complaint in its order of September 14, 1989 where the plaintiff failed to file a written motion for leave to file a fourth amended complaint and where the fourth amended complaint added two new party plaintiffs, alleged new matters which failed to state a claim for relief and which prejudiced the defendant, Southwest General Hospital." 1 See Appendix I. 2 See Appendix II. *Page 520

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DECISION AND JUDGMENT ENTRY {¶ 1} This case is before the court sua sponte. It has come to the court's attention that the order from which this appeal is taken is not final and appealable and therefore this court does not have jurisdiction to hear this appeal. {¶ 2} The trial court in this personal injury case issued a ruling that Ohio law, not Michigan law, applies to this case. Defendants filed this appeal challenging that order. In their notice of appeal they state, "This is an interlocutory appeal pursuant to R.C. 2505.02(B)(1)." We disagree. {¶ 3} R.C. 2505.02 states, in pertinent part: {¶ 4} "(A) As used in this section: {¶ 5} "(1) `Substantial right' means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect. {¶ 6} "(2) `Special proceeding' means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity, {¶ 7} "(3) `Provisional remedy' means a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, or suppression of evidence. {¶ 8} "(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: {¶ 9} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; {¶ 10} "(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; {¶ 11} "(3) An order that vacates or sets aside a judgment or grants a new trial; {¶ 12} "(4) An order that grants or denies a provisional remedy and to which both of the following apply: {¶ 13} "(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. {¶ 14} "(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. {¶ 15} "(5) An order that determines that an action may or may not be maintained as a class action." {¶ 16} R.C. 2505.02(B)(1) does not apply to this order since the order does not determine the personal injury action and it does not prevent a judgment in either party's favor. Further, the order is not appealable under any other portion of the statute. Since this personal injury negligence case is not a "special proceeding," R.C. 2505.02(B)(2) does not apply, the order does not vacate or set aside a judgment or grant a new trial so subsection (B)(3) does not apply, and finally, the choice of law order is not a "provisional remedy" as that term is defined in R.C.2505.02(A)(3). Finally, this case is not a class action so subsection (B)(5) does not apply. {¶ 17} Accordingly, the judgment being appealed is not a final appealable order and this court does not have jurisdiction to hear this case. This case is ordered dismissed. 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 Lucas County. Appeal Dismissed. 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. Mark L. Pietrykowski, J., William J. Skow, J., and Dennis M. Parish, J., concur.

2016-07-06 06:36:35.318497+00

OPINION Plaintiff, Knox Cardiology Associates, Inc., provided medical services to appellee, Raymond Davis. As a result, appellee owed plaintiff monies for services rendered. Appellee's wife, appellee, Gwen Davis, was employed by appellant, Staff Builders, Inc., and received health care benefits as a result of her employment. On December 18, 1998, plaintiff filed a complaint against appellees for monies due and owing. On March 5, 1999, appellees filed a third-party complaint against appellant and others claiming they should be jointly and severally liable for all monies that may be adjudged against them in favor of plaintiff. On May 25, 1999, appellees filed a motion for default judgment against appellant. By order and judgment entry filed May 28, 1999, the trial court granted said motion and awarded appellees $14,746.82 plus interest and costs as against appellant. On June 1, 1999, appellant filed a motion for leave to file motion to dismiss. The trial court denied this motion on same date. On April 21, 2000, the trial court dismissed the original complaint for want of prosecution. On May 26, 2000, appellant filed a motion for relief from judgment. A hearing was held on August 14, 2000. By judgment entry filed August 16, 2000, the trial court denied said motion. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I THE LOWER COURT ERRED IN GRANTING THIRD-PARTY PLAINTIFFS RAYMOND AND GWEN DAVIS' MOTION FOR DEFAULT JUDGMENT AGAINST STAFF BUILDERS, INC. II THE LOWER COURT ABUSED ITS DISCRETION IN DENYING STAFF BUILDERS, INC.'S RULE 60(B) MOTION FOR RELIEF FROM JUDGMENT. I Appellant claims the trial court erred in granting default judgment to appellees on their third-party complaint for contribution. We agree. Appellant argues a claim for contribution is dependent upon the success of the claim and the amount due under the original complaint and therefore a monetary award under default judgment was inappropriate. Further, the prayer for relief in the third-party complaint did not include a specific amount: Wherefore, Defendants and Third-Party Plaintiffs, Raymond W. Davis and Gwen N. Davis demands judgment against Third-Party Defendants, Staff Builders and United Health Care of Ohio, Inc. jointly and severally for all sums that may be adjudged against Defendants in favor of Plaintiff. See, Third-Party Complaint filed March 5, 1999. In their motion for default judgment filed May 25, 1999, appellees prayed for an amount of $14,746.82 plus interest and costs. No affidavit was attached to this motion attesting to the amount due and payable to the original plaintiff, as no amount had been awarded to plaintiff as of the date of the filing of said motion. Civ.R. 55 governs default judgment. Subsection (A) states in pertinent part: * * * If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties. This case involved unspecified damages. The record does not show any hearing or references on damages therefore, the trial court erred in granting monetary relief on default judgment. We further note the default judgment motion and subsequent entry captioned appellant as "Staff Builders" when in fact they were prayed for and granted against "Staff Builders, Inc." We find this to be inconsistent with the original third-party complaint wherein the party was designated as "Staff Builders" and not "Staff Builders, Inc." The default judgment was granted against a non-named party. Upon review, we find the trial court erred in granting the default judgment. Assignment of Error I is granted. II Appellant claims the trial court erred in denying its Civ.R. 60(B) motion for relief from judgment. We agree. In GTE Automatic Electric Inc. v. ARC Industries, Inc. (1976),47 Ohio St. 2d 146, paragraph two of the syllabus, the Supreme Court of Ohio held the following: To prevail on a motion brought 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. Appellant based its Civ.R. 60(B) motion on "mistake, inadvertence, surprise or excusable neglect" and "any other reason justifying relief from the judgment." Civ.R. 60(B)(1) and (5). The trial court dismissed the original complaint for want of prosecution on April 21, 2000. Thereafter, appellant filed its motion for relief from judgment on August 16, 2000. As stated supra, a claim for contribution is dependent upon the success of the claim and the amount due under the original complaint. There is no amount due under the original complaint as the original complaint was dismissed. Any amount owed by appellant for contribution is moot. Given the fact that the original complaint was dismissed, we find it was an abuse of the trial court's discretion not to grant relief from judgment. Assignment of Error II is granted. The judgment of the Mount Vernon Municipal Court of Knox County, Ohio is hereby vacated. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Mount Vernon Municipal Court of Knox County, Ohio is vacated. Costs to appellees. Farmer, J. Hoffman, P.J. and Boggins, J. concur.

2016-07-06 06:36:35.34473+00

O P I N I O N Defendant, Chadley Grube, appeals from the trial court's determination that he is a sexual predator. On February 27, 1992, Defendant was charged by bill of information with two counts of forcible rape in violation of R.C. 2907.02(A)(2). Defendant entered a guilty plea to both counts as charged, and was subsequently sentenced by the trial court to nine to twenty-five years of imprisonment on each count, the sentences to be served consecutively. On October 13, 2000, a sexual offender classification hearing was held. At the conclusion of that hearing the trial court designated Defendant a sexual predator. Defendant timely appealed to this court from the trial court's judgment. Defendant's appellate counsel filed an Anders brief, Anders v.California (1967), 386 U.S. 738, asserting that he could find nomeritorious issues for appellate review. We advised Defendant ofhis counsel's representations and afforded him ample time to filea pro se brief. None has been received. In his Anders brief, Defendant's appellate counsel identifies aspossible issues for appeal various constitutional challenges to Ohio'ssexual predator law, R.C. Chapter 2950. These claims include violationsof the ex post facto clause, double jeopardy, cruel and unusualpunishment, vagueness, equal protection, and due process violationsresulting from public notification. These and other constitutional claims have previously been consideredand rejected by the Ohio Supreme Court and this court.State v. Cook(1998), 83 Ohio St. 3d 404; State v. Williams (2000), 88 Ohio St. 3d 513;State v. Bruns (July 24, 1998), Montgomery App. No. 16807, unreported;State v. Lewis (October 2, 1998), Greene App. No. 97-CA-134, unreported;State v. White (November 5, 1999), Miami App. No. 98-CA-37, unreported. We necessarily reject them here on the basis of that authority. In addition to reviewing the potential issues raised by Defendant's appellate counsel, we have conducted an independent review of the record in this case. In order to adjudicate Defendant a sexual predator, the trial court was required to find by clear and convincing evidence (1) that Defendant has been convicted of or pled guilty to a sexually oriented offense and (2) that "he is likely to engage in the future in one or more sexually oriented offenses." R.C. 2950.01(E); R.C. 2950.09(B)(3). Defendant's convictions for rape constituted a sexually oriented offense. See R.C.2950.01 (D)(1). Accordingly, the only remaining issue is whether Defendant is likely to engage in the future in another sexually oriented offense. Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal. Cross v. Ledford (1954), 161 Ohio St. 469, 477; State v. Ingram (1992), 82 Ohio App. 3d 341. In determining whether an offender is a sexual predator, the trial court may consider the following factors: (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). At the hearing held in this matter the State introduced without objection from Defendant State's Exhibit 1. That exhibit includes the House Bill 180 screening instrument, the correctional institution's report on Defendant, the presentence investigation report, the psychological evaluation of Defendant performed in 1992 by Dr. Bergman, a 1989 drug/alcohol treatment report, and a psychological evaluation of Defendant performed in June 2000 by Dr. Dyer. Substantial evidence was presented by the State which permits a reasonable inference that Defendant poses a high risk for re-offending. For instance, the facts that his offenses involved multiple victims and Defendant's display of cruelty toward his victims, which included beating both victims and inserting a metal rod into the vaginal and anal cavity of one victim, portray a depravity that is likely to be repeated. Other factors probative of an increased risk for re-offending include Defendant's minimization of his culpability and involvement in these crimes, Defendant's history of prior convictions, the fact that Defendant has a diagnosed severe personality disorder, Defendant's involvement in drug abuse while in prison and his lack of treatment therefore, and Defendant's admission that he has committed numerous other uncharged rapes. Defendant, on the other hand, presented no evidence. Based upon the evidence in this record, a rational trier of fact could find by clear and convincing evidence that Defendant is likely to commit additional sex offenses in the future. Thus, the trial court's finding that Defendant is a sexual predator is supported by legally sufficient evidence. We see no prejudicial error in the proceedings of the trial court which deprived Defendant of a fair trial. The judgment of the trial court will be Affirmed. _________ GRADY, J. WOLFF, P.J. and BROGAN, J., concur.

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JOURNAL ENTRY AND OPINION *Page 3 {¶ 1} Defendant-appellant, Jerome Eperson ("defendant"), appeals from an eight-year sentence imposed after he pled guilty to a number of offenses in CR-497463 and CR-492264 in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm the decision of the trial court. {¶ 2} On January 17, 2008, defendant pled guilty to 58 counts of burglary, vandalism, receiving stolen property, theft, and engaging in a pattern of corrupt behavior in CR-497463. On the same day, defendant also pled guilty in CR-492264, a two-count indictment for burglary and theft. The charges stemmed from a series of break-ins in University Heights, Ohio over a three-month period from October 2007 to December 2007. {¶ 3} On January 28, 2008, the trial court sentenced defendant to a total term of 8 years in prison for all of the offenses. It is from this sentence that defendant now appeals and raises one assignment of error for our review. {¶ 4} "I. The trial court failed to make a finding that the appellant's sentence is consistent with similarly situated offenders." {¶ 5} In his sole assignment of error, defendant argues that the trial court failed to make a finding that his sentence was consistent with similarly situated offenders. {¶ 6} R.C. 2929.11(B) states that a felony sentence must be "consistent with sentences imposed for similar crimes committed by similar offenders." However, the goal of felony sentencing is to achieve "consistency" not "uniformity." See State v. *Page 4 Marshall, Cuyahoga App. No. 89551, 2008-Ohio-1632; State v.Kepatzki, Cuyahoga App. No. 81676, 2003-Ohio-1529; State v.Richards, Cuyahoga App. No. 83696, 2004-Ohio-4633; State v. Harris, Cuyahoga App. No. 83288, 2004-Ohio-2854; State v. Dawson, Cuyahoga App. No. 86417, 2006-Ohio-1083 (although an offense may be similar, distinguishing factors may justify dissimilar treatment); State v.Nelson, Lake App. No. 2008-L-072, 2008-Ohio-5535 (no requirement that codefendants receive equal sentences). {¶ 7} This Court has previously determined that in order to support a claim that a sentence is disproportionate to sentences imposed upon other offenders, a defendant must raise the issue before the trial court and present some evidence, however minimal, in order to provide a starting point for analysis and to preserve the issue for appeal. SeeState v. Marshall, supra at ¶ 20; State v. Woods, Cuyahoga App. No. 82789, 2004-Ohio-2700. {¶ 8} Here, the defendant failed to present any evidence to the trial court or this Court to indicate that his sentence is disproportionate to sentences given other offenders who have committed these same offenses. Indeed, defendant admits that at the time of this brief, none of the other codefendants had been sentenced by the trial court for their part in the offenses.1 Moreover, a review of the indictment shows that the defendant is not "similarly situated" to the other codefendants. While the defendant was indicted on 58 counts, the other five codefendants were named in *Page 5 less than 10 counts total. Specifically, Pereze Perry was named in only five counts, Shanna Love in nine counts, Lamar Jones in two counts, Mary Brown in five counts, and Robert Scott in two counts. Accordingly, even if defendant had properly preserved this issue for appeal, the record clearly indicates that his codefendants are not "similarly situated" for purposes of sentencing. {¶ 9} The sole assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover from 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, P.J., and MARY J. BOYLE, J., CONCUR 1 Defendant states in his brief that one codefendant is still awaiting trial, and four codefendants have applied for placement in the Cuyahoga County Pretrial Diversion Program. *Page 1

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DECISION AND JOURNAL ENTRY Appellants, Rosemary Collier and Alan Junke ("Appellants"), appeal from a judgment of the Medina County Court of Common Pleas that entered judgment on Appellants' claim in the amount of $5,000 and judgment for appellees, Matthew and Elizabeth Dorcik, on the Dorciks' counterclaim in the amount of $5,001. This Court affirms in part and reverses in part. Appellants are the owners of a parcel of property located at 985 West 130th Street in Hinkley, Ohio. The Dorciks own the adjoining parcel located at 995 West 130th Street. The Dorciks purchased their parcel during 1990 and constructed a new home. Prior to construction, they had the property surveyed. During 1992, the Dorciks made plans to build a barn on their property. Because a gas easement limited where they could locate their barn, they sought and obtained a variance from the local zoning requirement for their side-yard setback. The Dorciks relied on what they mistakenly believed were the stakes from the 1990 survey to determine the location of their property line. Appellants moved into their home after the Dorciks' barn was completely constructed. Appellants had their property surveyed in 1994. The survey revealed that an entire side of the Dorciks' barn, sixty feet in length, encroached on Appellants' property by as much as four feet at one corner. A concrete pad outside of the barn also encroached on Appellants' property. Another dispute developed between these neighbors over the flow of runoff water from their properties. Due to the Dorciks' construction projects, the natural terrain, and efforts by each party to divert the flow of water, water accumulated on each property. Appellants brought this action against the Dorciks, seeking injunctive relief to have the encroachment removed and to restore the natural flow of water on their property. They also sought damages for the Dorciks' interference with the use and enjoyment of their property. The Dorciks counterclaimed for damages stemming from Appellants' alleged obstruction of the flow of water from their property. Following a jury trial, the trial court entered a damage judgment for Appellants in the amount of $5,000, judgment for the Dorciks in the amount of $5,001, and ordered, among other things, that the Dorciks remove the concrete pad from Appellants' property. The trial court did not order the Dorciks to remove the encroaching portion of the barn. Appellants appeal and raise fourteen assignments of error that will be consolidated and rearranged for ease of discussion. Initially, this Court notes that, prior to building the barn, the Dorciks obtained a variance from the side-yard setback requirements of the local zoning ordinances. Although Appellants now raise questions about the manner in which the variance was obtained, this Court has no jurisdiction to address the propriety of the variance procedure in this appeal. Any challenge to the zoning variance should have been raised through an administrative appeal from the decision granting the variance. See Concord Twp. Trustees v. Hazelwood Builders, Inc. (May 16, 1997), Lake App. No. 96-L-075, unreported, 1997 Ohio App. LEXIS 2140, at *9. Consequently, this Court will not address those challenges. Appellants' first two assignments of error pertain to the jury's view of the property in question. They assert, among other things, that the jury should not have been permitted to view the property after heavy rains, that the trial court failed to adequately control the jury while at the site, and that the trial court should not have allowed the jury to view the site before any other evidence was presented. The record reveals that, at the beginning of the trial, the jury was taken to the property in question to view the site. There is nothing in the record, however, to indicate that Appellants raised any objection to the jury view. Generally, in civil cases, errors which arise during the course of the proceedings and are not brought to the attention of the trial court by objection, or otherwise, at the time they could be remedied, are waived and may not be reviewed on appeal. Lefort v. Century 21 — Maitland Realty Co. (1987), 32 Ohio St.3d 121, 123. Plain error is recognized in the civil context "only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process[.]" Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, syllabus. No record was made of what transpired during the jury view. Thus, it is impossible for Appellants to demonstrate any error, much less one that "seriously affect[ed] the basic fairness, integrity, or public reputation of the judicial process." Appellants have the responsibility of providing this Court with a record of the facts that are necessary to support their allegations of error. Volodkevich v. Volodkevich (1989),48 Ohio App.3d 313, 314. Without the portions of the record necessary for resolution of the assigned error, this Court has nothing to pass upon and has no choice but to presume the validity of the lower court's proceedings. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197,199. Because Appellants have failed to demonstrate any error on the record, their first and second assignments of error are overruled. Appellants' third assignment of error is that the trial court erred in failing to order the Dorciks to remove the barn from their property. Appellants challenge the trial court's factual findings on this issue as well as the legal conclusions drawn from those facts. This Court will address each challenge in turn. Appellants first contend that the trial court erroneously found that the Dorciks did not willfully cause the encroachment. Although Appellants concede that the Dorciks presented testimony to support such a conclusion, they contend that Mr. Dorcik's testimony was not credible. Specifically, they assert that a comparison of his trial testimony and his prior deposition testimony "clearly indicates" that his testimony was "conflicting, evasive, deceptive and false." Appellants point to no particular inconsistencies, however. This Court will not search the record for evidence to support these allegations. State v. Boyts (July 24, 1996), Summit App. Nos. 17453, 17490, unreported, at 6. It is the burden of the Appellant to demonstrate error on appeal. Pennant Molding,Inc. v. C J Trucking Co. (1983), 11 Ohio App.3d 248, 251. Moreover, even if there were inconsistencies in Mr. Dorcik's testimony, the trial judge apparently believed his testimony, which was within his province as trier of fact on the equitable claims. See State v. DeHass (1967),10 Ohio St.2d 230, paragraph one of the syllabus. Therefore, this Court will defer to the trial court's factual finding that the Dorciks did not intentionally build their barn over the property line. Had the trial court found the encroachment to have been intentional, it most likely would have ordered the Dorciks to remove the encroachment. See Miller v. W. Carrollton (1993), 91 Ohio App.3d 291, 298. In cases where the encroachment was not intentional, courts will balance the equities of the parties, weighing the relative conveniences and comparative injuries to each party that would result from granting or refusing to grant injunctive relief. See Id. at 296-298. Although a balancing test of sorts is applied, it must always be understood that the party causing the encroachment, even if he has done so unintentionally, has trampled upon the property rights of another. "The law holds a high regard for an individual's right to own property and treats harshly those who infringe upon that right." Fairman v. Vecchione (Mar. 30, 1984), Trumbull App. No. 3172, unreported, 1984 Ohio App. LEXIS 9664, *3. "`Ordinarily, even though it is extraordinary relief, a mandatory injunction will issue to compel removal of an encroaching structure.'"Miller, supra, at 298, citing Arnold v. Melani (1969), 449 P.2d 800, 806. Because an encroaching structure affects the landowner's possessory rights, potentially forever, it has been held that the encroacher has the burden of establishing that injunctive relief would be oppressive. Seeid. It should be the exceptional case in which an encroacher is permitted, under the auspices of equity, to force a sale of property on an innocent landowner. Such equitable purchases should be restricted to cases in which the encroaching party would suffer extreme damage and the resulting harm to the innocent landowner would be minimal. McGuire v.Kashen (Sept. 15, 1995), Lucas App. No. L-94-294, unreported, 1995 Ohio App. LEXIS 4007, *17 (Sherck, J., dissenting). This is not such a case. The evidence before the trial court demonstrated that the Dorciks built an entire sixty-foot wall of their barn on Appellants' property. Although the encroachment may have been unintentional, the Dorciks have essentially taken a portion of Appellants' property, without their consent. Absent injunctive relief, Appellants will forever lose the ability to use that portion of their property. On the other hand, there was little evidence that removing the encroachment would cause the Dorciks undue hardship. Although the trial court relied on the Dorciks' evidence that it would cost them $60,000 to rebuild the barn, apparently using entirely new materials, it was unreasonable to use that figure to gauge the potential hardship to the Dorciks. Certainly other options are available to remove the encroachment, such as moving the barn or even moving just the encroaching wall. This is not a ten-story building or even a two-story house; it is a barn. The potential hardship to the Dorciks does not outweigh the infringement on the property rights of Appellants. The trial court's conclusion that injunctive relief was not warranted in this case constituted an abuse of discretion. See Garonov. State (1988), 37 Ohio St.3d 171, 173. Appellants' third assignment of error is sustained insofar as it challenges the trial court failure to enjoin the encroachment. Appellants' seventh assignment of error, also challenging the balance of equities, has been rendered moot by this Court's disposition of Appellants' third assignment of error. Accordingly, this Court will not pass upon its merits. See App.R. 12(A)(1)(c). Appellants' fourth assignment of error is that their damage award was inadequate, that the trial court erred in failing to award punitive damages and attorney fees, and that the Dorciks should not have received any damages. As to Appellants' claim that their damage award was inadequate because it failed to compensate them for their future injury, this Court has already determined that the trial court should have granted injunctive relief to prevent the ongoing infringement on Appellants' property rights. Consequently, this portion of Appellants' assignment of error has been rendered moot and will not be addressed. See App.R. 12(A)(1)(b). Although Appellants further assign error to the trial court's failure to award them punitive damages or attorney fees, they fail to make any legal or factual argument on this issue. See App.R. 16(A)(7). This Court is not inclined to make their argument for them. Finally, Appellants contend that an award of damages to the Dorciks was against the manifest weight of the evidence because they failed to establish that Appellants caused the damage. 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 [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, quoting State v.Martin (1983), 20 Ohio App.3d 172, 175; see, also, State v. Otten (1986), 33 Ohio App.3d 339, 340. Appellants specifically contend that the evidence demonstrated that the Dorciks caused their own damage by building a mound that obstructed the water flow on their property. The evidence did indicate that the Dorciks built a mound that impeded the flow of water from their property and that the drainage inspector for the Medina County Highway Engineer recommended that they remove the mound to facilitate the flow of water from their property. The drainage inspector further testified, however, that the Dorciks had installed French drains, which would help to alleviate the problem. Moreover, the evidence was undisputed that, before the Dorciks built a mound on their property, Appellants had built a mound on their property. The drainage inspector opined that the mound built by Appellants was impeding the flow of water from the Dorciks property and recommended that Appellants remove the mound. The evidence further demonstrated that Appellants did not remove the mound, nor did they take any other steps to facilitate the natural flow of water from the Dorciks' property. Therefore, this Court cannot say that the jury lost its way in concluding that Appellants caused the water flow damage to the Dorciks' property. Appellants' fourth assignment of error is overruled. Appellants' ninth assignment of error is that the trial court erred in allowing the Dorciks' attorney to make improper comments during closing argument. Appellants contend that the comments included improper personal attacks and were not supported by the evidence. Again, this Court must note that Appellants raised no objection during the Dorciks' closing argument. They have failed to convince this Court that the conduct of the Dorciks' counsel rose to the level of plain error that affected the basic fairness or integrity of the judicial process. SeeGoldfuss v. Davidson, supra. Appellants' ninth assignment of error is overruled. Appellants' tenth assignment of error is that the trial court abused its discretion by failing to grant their motion for new trial because Mr. Dorcik's testimony was not credible. Because this Court found no merit to this same challenge raised through Appellants' third assignment of error, the trial court likewise did not abuse its discretion by denying Appellants' motion for a new trial on this ground. See Rohde v.Farmer (1970), 23 Ohio St.2d 82, paragraph one of the syllabus. Appellants' tenth assignment of error is overruled. Appellants' eleventh assignment of error is that the trial court erred by denying their motion for a new trial before they had filed the transcript of proceedings with the trial court. They contend that the trial court had a duty to review the trial transcript before it could rule upon their motion for a new trial. They cite no authority to even suggest that the trial court had such a duty, however. As the appellees correctly note, although the trial court did not have the benefit of a trial transcript, the trial judge who ruled on the new trial motion was the same judge who presided over the six-day trial. Two other appellate courts have held that a trial court committed no error by ruling on a motion for new trial without reviewing the trial transcript when it appeared that the trial court was able to determine the issues based on its memory of the proceedings. See Zell v. Else (Nov. 7, 1996), Franklin App. No. 96APE05-634, unreported, 1996 Ohio App. LEXIS 4871, at *10; Ward v. Angel (June 29, 1990), Montgomery App. No. 11902, unreported, 1990 Ohio App. LEXIS 2610, at *27. This Court is persuaded by that reasoning. There is no reason to believe that the trial judge in this case could not rule on the issues based on his memory of the proceedings. The eleventh assignment of error is overruled. Appellants' twelfth assignment of error is that the trial court erred in entering judgment on the jury verdict because one of the jury interrogatories had been improperly altered. At the outset, this Court notes that Appellants failed to preserve the issue through a timely objection. See Lefort v. Century 21 — Maitland Realty Co., supra. Moreover, although a handwritten alteration appears to have been made on one of the jury interrogatories, Appellants have failed to demonstrate that the alteration prejudiced them in any way. The interrogatory in question was interrogatory number four on Appellants' claim for damages stemming from the Dorciks' alleged diversion of the flow of water onto their property. In response to the first three interrogatories, the jury indicated that the Dorciks had altered the flow of water across Appellants' property, but that the alteration of the water was not unreasonable, nor had it caused any damage to Appellants' property.1 The fourth interrogatory asked the jury to indicate the amount of damages shown "[i]f the answer to interrogatory 1 was YES." The jury indicated that the amount of damages was zero, consistent with its answer to the prior interrogatory, which indicated that Appellants' property had not been damaged by the flow of water. Although a handwritten notation "3?" appears above the number one, indicating that the jury seemed to think that the wrong interrogatory number was referenced, it proceeded to answer the question anyway. Because the alteration had no impact on the jury's answers to the interrogatories or on the verdict, Appellants suffered no prejudice. The twelfth assignment of error is overruled. The thirteenth assignment of error is that the trial court erred in granting the Dorciks a directed verdict on two of Appellants' claims, one for the continuing trespass of a utility line and trench and one for intentional infliction of emotional distress caused by the Dorciks spraying oil and paint chips onto Appellants' property. Appellants' argument in support of this assigned error consists merely of the directed verdict standard and a broad statement that these claims "were supported by the evidence." Appellants do not articulate the legal requirements for establishing these types of claims, nor do they point to any relevant evidence that they presented. Appellants have the duty of articulating a legal argument and supporting it with evidence in the record, which they have failed to do. As this Court has already indicated, it will not search the record for evidence to support Appellants' assigned error, nor will it make their legal arguments for them. The thirteenth assignment of error is overruled. The fourteenth assignment of error is that the trial court erred in denying Appellants' motion for directed verdict on the Dorciks' counterclaim for damages. Specifically, they contend that the Dorciks' evidence was not credible, that their counterclaim required proof through expert testimony, and that their counterclaim should not have gone to the jury because the Dorciks made no jury demand. As to Appellants' claim that the Dorciks' evidence was not credible, once again, they point to nothing specific in the record. This Court will not search through the record for evidence to support these allegations. It was for the jury to determine who was telling the truth and it apparently chose to believe the Dorciks. See State v. DeHass,supra. Although Appellants claim that the Dorciks failed to present expert evidence to support their counterclaim, the Dorciks did support their claim with the testimony of Steven Trzcinski, the former drainage inspector for the Medina County Highway Engineer, who had observed the drainage problem on the two properties. Although he testified about his personal observations, he also offered his opinion about the natural flow of water on these two properties, the cause of the drainage problem, the effectiveness of efforts that had been made to correct the problem, and measures that still could be taken. Appellants raised no objection to his qualification to testify on these issues and, therefore, have waived any right to raise it now. See Lefort v. Century 21 — MaitlandRealty Co., supra. Although the Dorciks did not make a jury demand, Appellants did. In their complaint, Appellants made a jury demand that was not limited to the trial of specific issues. Civ.R. 38(A) and (B) provide that "[a]ny party may demand a trial by jury" and that the party may specify the issues to be tried by a jury, "otherwise he shall be deemed to have demanded a trial by jury for all the issues so triable." Because Appellants did not limit their jury demand to the trial of certain issues, the Dorciks' counterclaim was also properly tried by a jury. Appellants' fourteenth assignment of error is overruled. Assignments of error five, six, and eight raise challenges that Appellants raised through other assignments of error. This Court has already found some of those challenges to be without merit; the others have been rendered moot by the disposition of the third assignment of error. Consequently, Appellants' fifth, sixth, and eighth assignments of error need not be addressed. 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, 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 both parties equally. Exceptions. ___________________________ LYNN C. SLABY FOR THE COURT, BAIRD, P. J., CONCURS. 1 Appellants also concede on page 19 of their appellate brief that they presented no evidence of damages on the water issue.

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OPINION {¶ 1} Defendant-appellant, Cleveland R. Goodlow, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of aggravated murder in violation of R.C. 2903.01, and tampering with evidence in violation of R.C. 2921.12. Because the manifest weight of the evidence supports the trial court's judgment, and because any error in the trial court's evidentiary rulings was harmless, we affirm. {¶ 2} By indictment filed on April 23, 2004, defendant was charged with one count of aggravated murder and one count of tampering with evidence. Following several continuances, the charges were tried to a jury beginning on June 13, 2005. The jury found defendant guilty on both counts, and the trial court sentenced defendant accordingly. On appeal, defendant assigns two errors: First Assignment of Error THE OPINIONS OF THE STATE'S EXPERTS ON FINGERPRINT IDENTIFICATION AND DNA ANALYSIS SHOULD HAVE BEEN EXCLUDED AS NOT COMPLYING WITH EVID. R. 703. Second Assignment of Error THE VERDICTS OF GUILTY ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 3} Defendant's second assignment of error asserts the inconsistencies and bias evident in the testimony of the state's primary witness render the jury's verdict against the manifest weight of the evidence. Because defendant's second assignment of error necessarily involves the facts underlying his conviction, we first address it. {¶ 4} When presented with a manifest weight argument, we engage in a limited weighing of the evidence to determine whether the jury's verdict is supported by sufficient competent, credible evidence to permit reasonable minds to find guilt beyond a reasonable doubt. State v. Conley (Dec. 16, 1993), Franklin App. No. 93AP-387; State v. Thompkins (1997),78 Ohio St.3d 380, 387 (noting that "[w]hen a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony"). Determinations of credibility and weight of the testimony remain within the province of the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The jury thus may take note of the inconsistencies and resolve them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21, citing Statev. Antill (1964), 176 Ohio St. 61, 67. {¶ 5} While our review of the manifest weight of the evidence involves a limited weighing of the evidence, inconsistencies in the testimony generally do not render the verdict against the manifest weight of the evidence. Raver, at ¶ 21; State v.Thompson (1998), 127 Ohio App.3d 511, discretionary appeal not allowed, 83 Ohio St.3d 1451 (stating that "[a] review in court must, therefore, accord due deference to the credibility determinations made by the fact-finder"); State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v. Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 (noting that "[w]hile the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence"). {¶ 6} The trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner and demeanor, and to determine whether the witnesses' testimony is credible. State v. Williams, Franklin App. No. 02AP-35, 2002-Ohio-4503, at ¶ 58; State v. Clarke (Sept. 25, 2001), Franklin App. No. 01AP-194. Thus, jurors need not believe all of a witness' testimony, but may accept only portions of it as true.Raver, at ¶ 21; State v. Burke, Franklin App. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992),79 Ohio App.3d 667. Although an appellate court acts as a "thirteenth juror" when considering the manifest weight of the evidence, it also must give due deference to the fact finder's determination of the witnesses' credibility. State v. Covington, Franklin App. No. 02AP-245, 2002-Ohio-7037, at ¶ 28; State v. Hairston, Franklin App. No. 01AP-1393, 2002-Ohio-4491, at ¶ 74. {¶ 7} Within those parameters, we examine the state's evidence. According to that evidence, Pamela Carter, sister of Jeneice Smith, stated that Smith, the mother of eight children, was staying at an apartment on Oakland Park on December 22, 2003. Although the witness was uncertain, she understood Smith was staying with defendant. Carter met defendant a couple of years earlier when she went to visit her sister; defendant was visiting with what she assumed was defendant's wife. {¶ 8} About eight days before Christmas, Smith asked Carter for an outfit to wear for her grandfather's funeral. Smith, however, did not attend the funeral, and Carter found Smith's absence quite unusual. When Carter did not hear from Smith on Christmas day, the day of Smith's oldest daughter's birthday, Carter became concerned. She went by the apartment at 1946 Oakland Park on December 26, knocked, and received no answer. When a next-door neighbor would not assist, she went across the street to her mother's friend, Dee, who had called a week earlier because she was concerned about Smith. Dee helped Carter locate defendant at his girlfriend's house. {¶ 9} When Carter arrived, defendant's girlfriend got defendant out of bed. Carter asked defendant when he last saw Smith, but he could not give Carter a straight answer. According to Carter, defendant could not look her in the face, stated he had no key to the apartment and, in response to Carter's inquiry about when defendant last saw Smith, defendant said he did not know or did not remember. {¶ 10} Carter again called her mother, who directed her to the rental office. The representative from the rental office unlocked the door and stood back. Carter opened the door just a little to peek inside the apartment; she saw a chair tipped over and splattered with blood. When Carter went to open the door further, she hit something. She looked, saw it was Smith's foot, closed the door and began screaming. {¶ 11} On December 26, 2003, Michael Van Cleef, a firefighter and paramedic with the Clinton Township Fire Department, received a call to go to 1946 Oakland Park. On arriving, he attempted to open the unlocked door, but discovered Smith's body was pushing up against it. He found the victim's body partly uncovered; due to its condition, he could not say what part of the body was revealed. He found two detached fingers in the middle of the room and blood splattered throughout the apartment. {¶ 12} Gary Wilgus, a Special Agent with the Bureau of Criminal Identification and Investigation ("BCI"), also was called to the scene. He discussed the case with the lead detective, Dave Conley of the Franklin County Sheriff's Office, and checked for physical evidence outside the building that might be useful in a DNA analysis. He found no recent signs of forced entry. He then went inside and documented the scene, collecting cups, ashtrays, and miscellaneous items for testing, including cigarette butts from an ashtray in the living room area. He also took latent fingerprints from the back of the door, the ashtray, telephones, mirrors, toilet lids, and a black plate. According to Wilgus, he packed the items and submitted them. {¶ 13} Robin Roggenbeck, a forensic scientist with BCI working as a latent print examiner, testified she found defendant's left thumbprint on the black plate that was located on the carpet in front of the sofa. She further found defendant's middle fingerprint on a white ashtray found in the same area. Defendant's right index finger matched the print from the toilet lid, and his right thumb matched the print from the battery cover of the telephone. {¶ 14} Sarah Custis, a forensic scientist with BCI assigned to the Serology and DNA section, found that defendant's DNA could not be excluded as a contributor on the cigarette butts; she reached the same conclusion regarding the pen taken from the apartment. She admitted, however, that she obtained an incomplete profile for the pen and therefore concluded that one in five people could not be excluded as a contributor to the DNA found on the pen. By contrast, the frequency of occurrence of defendant's DNA found on the cigarette butts is 1 in 2,040,000,000,000,000, strongly suggesting defendant's DNA on the cigarette butts. According to Custis, she could not determine when the substance containing the DNA was put on the objects. {¶ 15} Dr. Patrick Fardal, former Chief Forensic Pathologist and Deputy Coroner in the Franklin County Coroner's office, testified the victim suffered multiple sharp wounds to various body parts, a fractured skull, and some severed fingers. Her 53 wounds were distributed with eight to the head, three to the left leg and thigh, four to the right leg and thigh, 15 to the back and side, two to the anterior trunk, seven to the right arm and hand, including an upper arm laceration to the bone, and 14 to the left arm and hand. Internally, her rib cage separated, causing her ribs to break. As a result, the left-side wounds entered the left chest cavity and caused injury to the vessels leading to the left lung and bronchus. According to Fardal, Smith died as a result of multiple sharp instrument wounds to her body, including one or more that entered into her left chest cavity and caused the noted injury. He testified, however, that her head wound also could have accounted for her death. {¶ 16} The state's most significant witness was Antonio Hill, also known as Tatoo or Tone. According to Hill, he had known defendant a couple of years; they were "tight," and in the past he stayed with defendant and the victim. (Tr. 202.) He took defendant to the victim's apartment for dinner before Christmas 2003, spoke to everyone, dropped defendant off, and then left. Hill went home where he played video games with his three-year-old daughter. Defendant later called him and said he was frustrated and about to kill Smith; he wanted Hill to give him a ride. Defendant again called Hill and said he did it. Hill did not believe defendant, so he met defendant at a gas station; from there, they went back to Smith's apartment. Hill opened the back door and found Smith's dead body. Hill and defendant got in the car and left. {¶ 17} After returning to Hill's house, defendant and Hill talked. When the prosecution at trial asked what defendant said about the events between him and the victim, Hill replied, "he really didn't say too much, you know what I'm saying. They were sitting there talking and talking, and he cut her up. * * * He said that he was sitting in the chair from the door. She was sitting on the couch, you know what I'm saying. He grabbed the sword, I mean, you know what I'm saying, swung — she went to put her hand up you know what I'm saying, hit her in the hand — went to speak — he hit in the mouth — went to run for the door, he hit her in the back. And he was, like, he just cut her down, last one across her throat." (Tr. 207-208.) {¶ 18} Hill testified that after defendant killed Smith, defendant went back every day to check the mail; he wanted to be sure neighbors saw him so that nothing would appear out of character. Hill subsequently was arrested, and during the time he was in custody, "started knowing whole bunch of stuff that only me and Cleve knew." (Tr. 211.) Hill knew he was the only one with a key to Smith's apartment and thought defendant was using that fact to blame Hill for the murder. Given those circumstances, Hill decided to testify against defendant, despite being close friends with him. {¶ 19} By contrast, defendant testified he had a romantic relationship with the victim for a few years, but it ended sometime after Thanksgiving 2003 due to many personal problems between them. After the breakup, he lived across the hall from her until Smith moved across the street. Although defendant had a key to her apartment, he gave it to some people who moved in with the victim. After installing a lock to the back door, he "ended up with the key." (Tr. 306.) He tried to return the back door key to Smith; she did not want it, so he gave it to Hill. {¶ 20} According to defendant, he was at the victim's apartment two times in December. The first time was shortly after he broke up with her, when they got into an altercation. He slapped her, rupturing her ear drum. He testified he felt so bad about the incident, he told his mother. Defendant stated that he apologized to the victim, as nothing like that had happened before the December incident. {¶ 21} The second visit was close to Christmas, toward the evening of the day. According to defendant, the victim called because she wanted to talk to him, and he wanted to talk to her to once again to apologize. When defendant arrived, Smith had a plate with a substance on it that defendant believed to be cocaine. According to defendant, "we just sat there and talked for a minute. She had just told me a few things. And, you know, we talked about why it wouldn't work. That was pretty much it." (Tr. 311.) Defendant testified he probably smoked a cigarette while he was there, as they always shared cigarettes. He further stated that he touched the plate she showed him, though he is not sure if he touched any glasses. He estimated he was at the apartment less than ten minutes. Defendant testified the presence of his fingerprints in the apartment would not be unusual. {¶ 22} When asked about the sword found in the victim's apartment, defendant testified the sword was his, but he gave it to Smith when she asked for it for protection after he moved out of the apartment. According to defendant, Hill asked for the sword several weeks after defendant gave it to Smith. Hill told defendant "something happened, and he needed to use it for something." (Tr. 315.) Although defendant testified that he told Hill to get the sword from Smith, defendant also testified he met with Smith to retrieve the sword. {¶ 23} When defendant met with Smith, defendant found the rope around the handle of the sword was unraveled. As defendant prepared to wrap the unraveled rope, Smith told him to put on some gloves: "So she said, do you know what he might be doing with that sword?" (Tr. 316.) After completing the task, defendant apparently gave the sword to Hill; defendant testified he next saw it when Hill brought it to him. Although defendant thought Hill was returning it, Hill instead asked defendant to dispose of it. Defendant threw it into the dumpster with the rest of the trash. {¶ 24} Hill and defendant were the only witnesses to testify to the events of the evening of Smith's death. Virtually all of the remaining evidence dealt with the scene of the crime and events following the victim's death. The jury thus was required to weigh the credibility of the testimony Hill and defendant rendered, determine which was more credible, and return a verdict accordingly. The jury apparently found Hill more persuasive, and so it rendered a verdict against defendant. Despite the jury's prerogative in assessing credibility of witnesses, defendant contends the judgment is against the manifest weight of the evidence because of serious discrepancies in Hill's impeached testimony. {¶ 25} Defendant's cross-examination of Hill presented an opportunity for the jury to discredit Hill's testimony. Specifically, defendant's questions elicited the nature of Hill's livelihood, and Hill was forced to admit that in December 2003 his only source of income was selling crack cocaine, from which he made approximately $500 per week. Hill also admitted that he, with Smith's knowledge, was selling drugs out of the victim's apartment and had sexual relations with Smith. When Hill testified, "I don't do drugs," defendant's cross-examination caused Hill to qualify his testimony by admitting that he snorted cocaine in December 2003 but does not presently. (Tr. 230.) {¶ 26} To discredit Hill's testimony about the night of the murder and defendant's involvement in the killing, defendant's questions caused Hill to acknowledge that defendant had no blood on his clothes or shoes when Hill picked him up at Smith's apartment. In the course of inquiry suggesting Hill's presence at the scene, defendant questioned Hill about his palm print found on the back door of Smith's apartment. Hill testified he never went in the back door, but pushed it open with his hand, and thus his palm print was on the door; other evidence, however, revealed that the print was on the inside of the door. {¶ 27} Perhaps most damaging to Hill's credibility were defendant's questions to Hill about a proffer letter the prosecution signed indicating that as long as Hill did not confess to the killing, Hill would be "in the clear." (Tr. 236.) Hill further admitted that before his custodial interrogation on January 31, 2004, when he first learned defendant was attempting to blame Hill for Smith's death, he did not mention Smith's death to law enforcement. {¶ 28} While defendant potentially discredited Hill's testimony through his cross-examination of Hill, the state produced evidence that discredited defendant's testimony: a conversation between defendant and Hill that occurred while Hill was wearing a wire. The tapes of that conversation, along with a transcript of the conversation, were presented during the trial. In the course of the conversation, defendant made a number of statements the jurors could construe as incriminating. For example, on the tape defendant stated: Goodlow: Because the way shit was it was suppose to be a crime of passion. Because of how she was dressed and they said she was relaxed and comfortable and she died you understand what I'm saying[.] (State's Exhibit K1, 3.) Discussing the murder weapon, defendant stated: Goodlow: You know why I ain't worried about it, cause even if they was to find that blade, you know why, what that rope is for? Hill: Uh uh Goodlow: At the end of that blade? Hill: Naw, what's it for? Goodlow: You can't pull a print off of that shit. Rope, for whatever reason, you cannot pull a fingerprint off of that shit, that's why they fingerprinted me[.] (State's Exhibit K2, 3.) {¶ 29} Still discussing the sword, defendant stated: Goodlow: That's what, let me tell you, the night that shit happened, it was trash, it was trash day that day, with that sword, I had the gloves on anyways and with that shit, that shit is oiled down, you cannot pull a print off of those ropes. Why you can't pull a print off of those ropes, those ropes, those swords is pretty much made for, was made for killing, why I use the rope is because you cannot pull a print off of it because of all the little lines in the shit[.] (State's Exhibit K2, 5.) {¶ 30} Later still, defendant stated: Goodlow: Every fucking night when I go to sleep, that whole night flashes through my head Hill: Uh huh Goodlow: Not crazy like, but the way it flashes through my head Hill: Is the way the shit went down? Goodlow: ____ I can literally picture, step by step and I just been making sure I didn't leave anything behind Hill: fucked up behind Goodlow: Cause I remember the one thing I didn't do, she offered me some shit off that plate, but I mean I was like, naw, I'm straight, I never touched it, she offered me a drink, ____ 40, naw I'm straight, so I know my hand, fingerprints Hill: _______ on the plates Goodlow: Mother fucking fingerprints weren't on no glasses, no nothing, never touched anything else ____ I know I didn't leave shit behind Hill: Yeah Goodlow: Just as fast as I was leaving, just as fast as I was out. (State's Exhibit K3, 2-3.) {¶ 31} Without question, defendant attempted to explain away the various statements. Although defendant acknowledged he said the night kept going through his mind, defendant indicated he meant that he kept thinking whether he touched anything that would wrongly incriminate him. Likewise, although his explanation of the rope on the handle to Hill implied that he wanted no one to trace his fingerprints to the murder weapon, defendant's testimony suggested that he was careful so as to not implicate himself in whatever nefarious conduct Hill intended to pursue with the sword. {¶ 32} Defendant correctly argues that various aspects of Hill's testimony left the jury with the task of determining the more credible witness. None of the factors defendant cites, however, requires that the jury believe defendant and disbelieve Hill. Confronted with evidence suggesting a reason for Hill to fabricate the story, as well as a tape-recorded conversation incriminating defendant, the jury was left to choose the evidence it believed. We cannot say it lost its way in finding defendant's explanations for his tape-recorded conversation with Hill to be less than credible. Given the evidence the jury was presented, the jury's verdict is not against the manifest weight of the evidence. Defendant's second assignment of error is overruled. {¶ 33} Defendant's first assignment of error asserts the trial court improperly allowed testimony regarding the results of tests conducted for fingerprints and DNA analysis, as the state failed to lay a proper foundation for the testimony. The state presented evidence that Wilgus gathered evidence from the scene and presented it to BCI. The state further presented evidence of the tests BCI ran on the evidence Wilgus presented. Defendant, however, contends that evidence falls short of establishing the necessary chain of custody. {¶ 34} Even if the state's evidence falls short of establishing the chain of custody, the record presents no prejudice to defendant. The testimony from the BCI forensic scientists established only that defendant was in the victim's apartment at some time. Defendant himself admitted that he was in the apartment and that finding his fingerprints or DNA evidence in the apartment would not be unusual. Because the BCI witnesses were unable to ascertain when defendant's DNA or fingerprints were placed in the apartment, defendant's admission that he was there renders nonprejudicial any error in the trial court's admitting the testimony of the BCI forensic scientists. Defendant's second assignment of error is overruled. {¶ 35} Having overruled both of defendant's assignments of error, we affirm the judgment of the trial court. Judgment affirmed. Klatt, P.J., and Sadler, J., concur.

2016-07-06 06:36:34.978531+00

OPINION {¶ 1} Plaintiff-appellant Gary Claar ("Claar"), administrator of the Estate of Austin Claar ("Austin"), brings this appeal from the judgment of the Court of Common Pleas of Union County granting a directed verdict to defendant-appellee Merry Munk ("Munk"). {¶ 2} On November 20, 2001, nine week old Austin was taken to his babysitter, Munk. Sometime during the day, Munk laid Austin down for his nap on a futon bed. Later, Munk checked on Austin and noticed that he was not breathing. She called 911 and started CPR. At 5:16, Austin was pronounced dead. An autopsy was performed and the cause of death was listed as Sudden Infant Death Syndrome ("SIDS"). {¶ 3} On October 28, 2003, Claar individually and as administrator of Austin's estate filed a wrongful death and negligence action against Munk. A jury trial was commenced on October 12, 2004. Claar presented the evidence of various witnesses. The only expert witness to connect Munk's actions to the death was Dr. Linda Norton ("Norton"). Norton testified that she believed Munk's laying Austin on a standard twin mattress to sleep rather than a crib mattress was the proximate cause of Austin's death. Tr. 214. However, she admitted that she did not know what was meant by the term "proximate cause." Tr. 255. The trial court conducted a voir dire of Norton outside the presence of the jury and determined that Norton's theories had not been subjected to peer review or testing and had not gained general acceptance. Thus, the trial court excluded her testimony. Finding that no other evidence of proximate cause was provided, the trial court granted Munk's motion for a directed verdict. Claar appeals this judgment and raises the following assignments of error. The trial court erred in excluding [Norton's] opinion testimony intoto. The trial court erred in granting a directed verdict after excluding[Norton's] opinion testimony in toto. Munk also raises assignments of error, but filed no notice of appeal. Thus, her assignments of error are really assignments in defense of judgment pursuant to App.R. 3. Munk's assignments of error in support of judgment are as follows. The trial court erred to prejudice of [Munk] by excluding evidence onthe issue of foreseeability of harm in this negligence case. The trial court erred to prejudice of [Munk] by admitting evidence onthe issue of loss-of-chance of survival outside a medical malpracticecase. The trial court erred to prejudice of [Munk] by excluding evidence ofother proposed mechanisms of SIDS related deaths except for the mechanismalleged by [Claar]. The trial court erred to prejudice of [Munk] by allowing [Claar's]expert witness to rely on facts in this particular case that were notperceived by the witness or admitted at trial. This court also notes that only a partial transcript was provided in this case. Claar chose only to provide this court with the testimony of Dr. Mary Applegate ("Applegate"), Dr. Patrick M. Fardal ("Fardal"), and Norton. {¶ 4} The first assignment of error claims that the trial court erred in excluding the testimony of Norton. The admission of expert testimony is governed by Evid.R. 702, which provides as follows. A witness may testify as an expert if all of the following apply: (A) The witness' testimony either relates to matters beyond theknowledge or experience possessed by lay persons or dispels amisconception common among lay persons. (B) The witness is qualified as an expert by specialized knowledge,skill, experience, training, or education regarding the subject matter ofthe testimony. (C) The witness' testimony is based on reliable scientific, technical,or other specialized information. Evid.R. 702. Opinion testimony of an expert is not admissible unless it has gained general acceptance in the scientific community. Miller v. BikeAthletic Co. (1998), 80 Ohio St.3d 607, 687 N.E.2d 735 (citing Daubertv. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786,125 L.Ed.2d 469). "In evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance." Id. at 611. The determination as to whether an expert's testimony is admissible lies within the sound discretion of the trial court. Bishop v. Ohio Bur. of Workers' Comp.,146 Ohio App.3d 772, 2001-Ohio-4274, 768 N.E.2d 684. {¶ 5} Here, the trial court excluded the testimony of Norton. The Court finds that the doctor's testimony — and there's been notestimony that, other than, I asked her this, if it's been subjected topeer review, and she said it was held by, the opinion was held by a lot ofdoctors — I think that was the expression she used, a lot — and I don'tthink that cuts it, and there's that, and also as to whether or not themethodology had gained general acceptance, and she started, or sheended, I guess, by saying, oh, it used to be that it was, all of thesuffocation, that that was the cause of SIDS, and then it had apparentlyevolved in several other possibilities or theories, and that it's — and Ithink the way she put it, it comes back to full circle. Well, the problemis whether or not full circle is, has regained acceptance, generalacceptance, and we didn't get any testimony with regard to that, so theCourt is going to exclude her testimony. Tr. 323. Specifically, the trial court found that Norton's testimony did not satisfy the factors set forth in Daubert for determining whether the scientific testimony is reliable. Norton, as a forensic pathologist, clearly possessed knowledge beyond the expertise of a lay person as required by Evid.R. 702(A). Norton also possessed specialized knowledge, experience, and education as required by Evid.R. 702(B). However, Evid.R. 702(C) requires that the testimony be based upon reliable scientific evidence. The trial court determined that Norton's testimony was not based upon reliable scientific evidence. {¶ 6} A review of the record indicates that Norton testified that she believed at least 80%, if not all, SIDS deaths were caused by suffocation. Tr. 207. This percentage is no more than an estimate and is not based upon any study. Tr. 286. She did not know whether the theory that SIDS deaths are the result of accidental suffocation was generally accepted. Id. at 288. She also testified that all other explanations were just theories being studied in order to get grants and that the only true cause was accidental suffocation. Id. at 289. Finally, she testified that she is basing her opinion on the fact that "prior to 1969, these deaths would have all been called suffocation deaths." Id. at 290-291. However, no testimony was presented that the theory in 1969 is still generally accepted. Norton's testimony is based upon a theory that has not been tested (i.e. that SIDS is really just suffocation, either accidental or deliberate), has no known potential rate of error (other than Norton's testimony that she believes she is correct), has not been subjected to peer review, and no testimony was given that this theory is still generally accepted. In contrast, Norton herself testified that there are several theories as to the cause of SIDS. However, she testified that she did not believe they were accurate.1 Given this evidence, the trial court did not abuse its discretion in excluding the testimony of Norton for being scientifically unreliable. The first assignment of error is overruled. {¶ 7} In the second assignment of error Claar claims that the trial court erred in granting a directed verdict. A motion for a directed verdict challenges the sufficiency of the evidence, not the manifest weight. Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116,671 N.E.2d 252. "When the party opposing the motion has failed to produce any evidence on one or more of the essential elements of a claim, a directed verdict is appropriate." Kimble Mixer Co. v. Hall, 5th Dist No. 2003 AP 01 0003, 2005-Ohio-794 at ¶ 26. {¶ 8} Claar's complaint alleges that Munk was negligent and that negligence caused the wrongful death of Austin. To prove a claim of negligence, one must prove four elements: 1) the defendant had a duty; 2) the defendant breached that duty; 3) the plaintiff was injured; and 4) the breach of the duty was the proximate cause of the injury. The record is clear that Austin and Claar were injured when Austin died. Thus, the element of injury was not in debate. The record also indicates that Munk was the caretaker for Austin, so she had a duty to provide care for him. Viewing the evidence in a light most favorable to Claar, a jury could reasonably conclude that Munk had breached that duty by placing the child on a twin mattress rather in the pack and play. However, there is no evidence that this breach was the proximate cause of Austin's death. Applegate testified that although placing the child on the twin bed rather than in the pack and play was a risk factor, there was no way to determine if Austin would have died anyway. According to her testimony, SIDS is impossible to predict and has occurred in children with no risk factors. At the same time, children with multiple risk factors may not die. Applegate further testified that since there was no way to tell exactly what was responsible for Austin's death, she listed the death as SIDS, a diagnosis of exclusion. She added that Claar requested she list the cause of death as positional asphyxiation as he believed Austin had suffocated, but she refused to change her conclusion as to the cause of death. She testified that she did not believe Austin had suffocated. Although Applegate believed that Munk's decision to lay Austin on the twin mattress was a risk factor, she did not testify that it was the proximate cause of his death.2 Without any evidence of proximate cause, an essential element of Claar's case has not been met. Thus, the trial court did not err in granting a directed verdict. The second assignment of error is overruled. {¶ 9} Having found no merit to Claar's assignments of error, the judgment will not be reversed. Thus, the assignments of error in support of judgment need not be addressed. {¶ 10} The judgment of the Court of Common Pleas of Union County is affirmed. Judgment affirmed. CUPP, P.J., and ROGERS, J., concur. 1 This court notes that there is an inherent problem with researching the cause of SIDS. SIDS, by definition, is a diagnosis of exclusion. Thus every time a cause of death is identified in a prior SIDS case, the cause of death is no longer SIDS. 2 In fact, Applegate testified that she did not know that Austin would have lived even if he had been lying in the pack and play. Applegate testified that SIDS is a silent killer that medical science cannot predict and cannot prevent as they do not know the cause.

2016-07-06 06:36:35.010349+00

OPINION Defendant-appellant, Ohio Casualty Group ("OCG"), appeals the decision of the Butler County Court of Common Pleas denying OCG's motion for summary judgment and granting the summary judgment motion of plaintiff-appellee, Patti Wagner. We reverse the decision of the trial court and grant summary judgment in favor of OCG. Wagner owns residential rental property located in Mariemont, Ohio. OCG provided property and liability coverage for the property under Policy No. BZW (96) 50 44 46 28. Wagner was named a defendant in a federal lawsuit brought by Housing Opportunities Made Equal (H.O.M.E.), Inc., which alleged Wagner and other defendants had engaged in racial discrimination when renting property to tenants. On January 7, 1997, OCG sent Wagner a letter informing her that, after reviewing her policy, OCG had no obligation to defend and indemnify her in the federal lawsuit. On May 11, 1998, Wagner filed a complaint for declaratory relief, seeking to have OCG defend and indemnify her in the federal lawsuit. On August 7, 1998, OCG moved for summary judgment. On September 11, 1998, Wagner filed a memorandum in opposition and also moved for summary judgment. On March 11, 1999, the trial court overruled OCG's motion for summary judgment and granted Wagner's motion for summary judgment. OCG filed a timely notice of appeal and presents one assignment of error for our review: THE TRIAL COURT ERRED IN DENYING OCG'S MOTION FOR SUMMARY JUDGMENT AND GRANTING WAGNER'S MOTION FOR SUMMARY JUDGMENT. Pursuant to Civ.R. 56(C), "the appositeness of rendering summary judgment hinges upon a 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 (1978), 54 Ohio St.2d 64, 66. This court reviews a trial court's decision to grant summary judgment de novo.Jones v. Shelley Co. (1995), 106 Ohio App.3d 440, 445. In Motorists Mut. v. Trainor (1973), 33 Ohio St.2d 41, paragraph two of the syllabus, the Supreme Court of Ohio held that "[t]he test of the duty of an insurance company, under a policy of liability insurance, to defend an action against an insured, is the scope of the allegations of the complaint in the action against the insured, and where the complaint brings the action within the coverage of the policy the insured is required to make a defense, regardless of the ultimate outcome of the action or its liability to the insured." In Willoughby Hills v. Cincinnati Ins.Co. (1984), 9 Ohio St.3d 177, 179, the court clarified that "the duty to defend need not arise solely from the allegations in the complaint but may arise at a point subsequent to the filing of the complaint." The court held that "where the insurer's duty to defend is not apparent from the pleadings in the case against the insured, but the allegations do state a claim which is potentially or arguably within the policy coverage, or there is some doubt as to whether a theory of recovery within the policy coverage had been pleaded, the insurer must accept the defense of the claim."Id. at 180. The insurance policy at issue states, in pertinent part, as follows: A. COVERAGES 1. Business Liability a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage", "personal injury" or "advertising injury" to which this insurance applies. We will have the right and duty to defend any "suit" seeking those damages. LIABILITY AND MEDICAL EXPENSES DEFINITIONS * * * 10. "Personal Injury" means injury, other than "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, by or on behalf of its owner, landlord or lessor; d. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or e. Oral or written publication of material that violates a person's right to privacy. This case hinges upon whether the allegations of racial discrimination in the federal lawsuit meet the definition of personal injury in Section F(10)(c) of the insurance contract. If an insurance contract has ambiguous terms, this ambiguity must be resolved in favor of the insured and against the insurer, which drafted the contract. Thompson v. Preferred Risk Mut. Ins.Co. (1987), 32 Ohio St.3d 340, 342. Appellant's position is that the phrase, "a person occupies" refers to a "personal injury" in which a tenant resides in a particular residential property. Appellant argues that the phrase "a person occupies" modifies the three forms of personal injury listed in Section F(10)(c), i.e., (1) "wrongful eviction from"; (2) "wrongful entry into"; and (3) "invasion of the right of private occupancy." Since the lawsuit concerns allegations of racial discrimination in attempting toobtain residential housing, OCG would not be obligated to defend and indemnify Wagner. Appellee claims that the phrase, "a person occupies" is ambiguous and should be interpreted against the insurer. Thompson at 340. Appellee insists that the phrase can be interpreted to distinguish residential from commercial property and to implicitly include the right to occupy property. The phrase "a person occupies" cannot be reasonably interpreted to distinguish residential from commercial property. Instead, the phrase clearly modifies the three types of personal injury listed in Section F(10)(c). All three of the "personal injuries" in Section F(10)(c) address situations concerning a current tenant, not a potential tenant. Moreover, the personal injury section of the contract separately spells out other "personal injuries." Logically, if all three acts listed in Section F(10)(c) were not intended to include the phrase "a person occupies," each act would have been separately outlined in the contract. We also cannot interpret "a person occupies" to include the right to occupy. This interpretation ignores the plain meaning of the word "occupies," which is to "reside in." Webster's Third New International Dictionary (1993) 1561. The verb is used in the present tense, referencing a person who is a tenant, not a potential tenant. Appellee argues that the complaint also alleges tortious conduct, which falls under Section F(10)(e) of the insurance policy. Section F(10)(e) provides coverage against "[o]ral or written publication of material that violates a person's right to privacy." Appellee references paragraph 119 of the complaint from the federal lawsuit as alleging a right of privacy claim. SeeKilliea v. Sears, Roebuck Co. (1985), 27 Ohio App.3d 163. Paragraph 119 states that "[o]n numerous occasions, Ms. Miller has made statements to others describing her practice of discriminating against African American [sic] in the rental of apartments and her intent to discriminate." In reviewing the entire complaint, paragraph 119 merely represents another example of evidence by which H.O.M.E., Inc., intended to prove the three counts of the complaint: violations of (1) the Fair Housing Act of 1968, Title 42, Sections 3601, etseq. U.S. Code, (2) Title 42, Sections 1981 and 1982,1 U.S. Code, which are federal civil rights statutes and (3) violations R.C.4112.02(H)(1-2),2 all of which concern, interalia, refusal to rent "housing accommodations" based on race. None of the three counts even remotely address the right of privacy tort. The complaint is not ambiguous in any way about the legal allegations H.O.M.E., Inc., intended to raise in federal court. Cf.Willoughby Hills, 9 Ohio St.3d at 179-80. Accordingly, we find OCG was not obligated to defend or indemnify Wagner. The assignment of error is well-taken and this court enters summary judgment in favor of OCG. Judgment reversed. YOUNG and WALSH, JJ., concur. 1 Title 42, Section 1981(a), U.S. Code states that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." Title 42, Section 1982, U.S. Code states that "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 2 R.C. 4112.02 states that "it shall be an unlawful discriminatory practice:" * * * (H) For any person to do any of the following: (1) Refuse to sell, transfer, assign, rent, lease, sublease, or finance housing accommodations, or otherwise deny or make unavailable housing accommodations because of race, color, religion, sex, familial status, ancestry, handicap, or natural origin; (2) Represent to any person that housing accommodations are not available for inspection, sale, or rental, when in fact they are available, because of race, color, religion, sex, familial status, ancestry, handicap, or natural origin[.]

2016-07-06 06:36:35.040859+00

JOURNAL ENTRY AND OPINION {¶ 1} In 1996, plaintiff Charles Payne, Jr., worked as a bus driver for the Greater Cleveland Regional Transit Authority ("RTA"). While acting in the course and scope of his employment, he suffered injuries after a third-party motorist struck the bus he was operating. Payne collected workers' compensation benefits from RTA, a self-insured employer. In 1997, Payne brought suit against the driver of the vehicle that struck his bus. Claiming to have paid Payne $23,774.53 in benefits, RTA intervened in Payne's action to assert its right to subrogation, on authority of former R.C. 4123.931. Payne challenged the constitutionality of R.C. 4123.931, and filed a motion to dismiss RTA's subrogation claim. Before any ruling on that issue, Payne settled with the tortfeasor for $40,000. As part of that settlement, Payne and RTA agreed that RTA would take one-third, or $13,119.71 (after deduction of certain expenses). {¶ 2} Prior to 2001, R.C. 4123.931 permitted employers to be subrogated to their employees for sums the employees received as damages resulting from work-related injuries caused by third parties in excess of the amount the employee recovered as workers' compensation benefits. However, in 2001, the Ohio Supreme Court found that R.C. 4123.931 was unconstitutional in that parts of the statute violated the Equal Protection Clause of Article 1, Section 2, of the Ohio Constitution because it created "disparate treatment" of claimants who settle their claims and claimants who litigate their claims. The court found this disparate treatment "is irrational and arbitrary." Holeton v. CrouseCartage Co. (2001), 92 Ohio St.3d 115, 132, 2001-Ohio-109. The question raised in this appeal is what effect the Holeton decision has on parties who settled a subrogation claim prior to the release of the Holeton decision. {¶ 3} The court did not err by granting summary judgment. It correctly cited to Clark v. Bureau of Workers' Compensation, Franklin App. No. 02AP-743, 2003-Ohio-2193, as authority for the proposition that a subsequent change in the law cannot be applied retrospectively in instances in which contractual rights have arisen or a party has acquired vested rights under the prior law. In Clark, the Bureau of Workers' Compensation asserted its rights to subrogation against monies collected by an employee who had collected benefits and then received a settlement from a third-party tortfeasor. The employee and the bureau agreed to settle the matter to end the subrogation litigation. Shortly after the settlement, the supreme court released Holeton, and the employee sought to recoup those monies paid to the bureau as subrogation. Distinguishing the general rule of retrospective application of unconstitutional legislation, the Clark court noted that the settlement between the bureau and the employee created vested contract rights in the bureau: {¶ 4} "Here, the BWC made an offer to compromise its subrogation claim through a contract in which the parties agreed to mutual concessions in order to avoid litigation with its attendant expenses and resultant burden upon the legal system. The stated purpose of the settlement agreement was to avoid litigation. The release stated, in pertinent part, that the settlement was `the compromise of a doubtful and disputed claim and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released and that said releasees deny liability therefore and intend merely to avoid litigation and buy their peace.' An offer to compromise by settlement is not the same as the assessment and payment of a tax, which admittedly does arise by statute and does not grow out of a contractual relationship. See Peerless Elec. Co. v. Bowers (1955),164 Ohio St. 209, 210, 129 N.E.2d 467 (`The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law. The one general exception to this rule is where contractual rights have arisen or vested rights have been acquired under the prior decision. The assessment and payment of a tax does not grow out of a contractual relationship, and there is no showing that any rights have become vested in the appellants under such prior decision'). Thus, we conclude that the payment of $155,000 to the BWC arose as a result of a settlement agreement designed to avoid further litigation of the issue of the BWC's subrogation claim. As an agency of the state of Ohio, the BWC is authorized to enter into contracts and it acquires certain rights as a result of entering into such contracts." Id. at ¶ 11. {¶ 5} Here, the parties agreed to terminate the subrogation litigation before the supreme court released Holeton. Once they settled the matter, contract rights vested with RTA. Consequently, Holeton cannot be applied retrospectively. The assigned error is overruled. Judgment affirmed. TIMOTHY E. McMONAGLE, J., and ANTHONY O. CALABRESE, JR., J., CONCUR.

2016-07-06 06:36:35.097984+00

OPINION {¶ 1} Plaintiff-appellant Jeffrey W. Aldrich appeals the decision of the Columbiana County Common Pleas Court, which granted summary judgment in favor of defendant-appellee Pacific Indemnity Company. The issue presented is whether the "other owned auto" exclusion in the parents' underinsured motorist (UIM) policy prohibits them from collecting UIM benefits for the wrongful death of their son, who was generally a covered individual but who was excluded from coverage in this instance because he was driving his car that was not listed in his parents' policy. We hold that under the plain language of the policy and the statute governing the "other owned auto" exclusion in this policy, the family is not precluded from coverage even though their deceased son is precluded. As such, the judgment of the trial court granting summary judgment in favor of the insurance company is reversed and this case is remanded for further proceedings. STATEMENT OF FACTS {¶ 2} In June 1999, eighteen-year-old Daniel Aldrich was driving his vehicle in Hardin County when he was struck by an underinsured motorist and killed. Multiple lawsuits arose from this accident. The case presently before this court deals with the suit filed in October 2000 against the decedent's father's own insurance company. In relevant part, the complaint sets forth a survival claim for the decedent's bodily injuries and a wrongful death claim for the damages suffered by the decedent's parents and siblings. The survival claim is not presently before this court as the parties agree that the decedent is barred from recovering due to the "other owned auto" exclusion in his parent's policy. {¶ 3} On March 27, 2002, Pacific Indemnity filed a motion for summary judgment on the parents' wrongful death claim, pointing out that the parents' policy contained an exclusion for vehicles owned by family members and not covered under the policy. Appellant filed a response and a cross-motion for summary judgment, arguing that the exclusion applied only to bodily injury and that the wrongful death claim revolved around the family's mental damages rather than bodily injury. {¶ 4} On September 8, 2002, the trial court granted summary judgment in favor of Pacific Indemnity. The court explained that the parents' policy excluded coverage for bodily injury or death suffered while the insured was operating a vehicle owned by a resident relative if the vehicle was not specifically identified in the policy. This "other owned auto" exclusion is permitted under R.C. 3937.18(J). The court then pointed out that the vehicle driven by the decedent was not identified in his parents' policy. In response to the family's argument that the policy excludes only bodily injury claims, the court reasoned that the decedent's death was the result of bodily injury and thus a wrongful death action, arising as a derivative claim from that bodily injury, is barred by the "other owned auto" exclusion. INSURANCE POLICIES {¶ 5} The parents were covered by a primary policy and an excess policy. The primary policy contained UM/UIM coverage of $500,000 per occurrence, and the excess policy contained $1,000,000 in UM/UIM coverage. The policies were originally issued in March 1998; the specific policies in effect at the time of the June 1999 accident were effective from March 19, 1999 through March 19, 2000. {¶ 6} The primary policy has a general coverage clause, which states: {¶ 7} "We will pay to a covered person damages for bodily injury that the person is legally entitled to receive from the owner or operator of an uninsured or underinsured motorized land vehicle. We cover these damages for bodily injury from a motor vehicle accident, unless stated otherwise or an exclusion applies. Exclusions to this coverage are described inExclusions." (Page P-1.) (Emphasis original). {¶ 8} The first of such exclusions to the UM/UIM coverage is as follows: {¶ 9} "Your other motor vehicles: We do not cover any person for bodily injury sustained while occupying, or when struck by, a vehicle or trailer owned by you or a family member that is not a covered vehicle." (Page P-2.) (Emphasis original). {¶ 10} The primary policy defines a covered person as: you (the person named in the coverage summary and a spouse who lives with that person) or a family member, any person in your covered vehicle, and any person who is legally entitled to recover damages due to covered bodily injury sustained by you or a family member or any person in your covered vehicle. Family member means a relative who lives with you or any other person under 25 in your care. A covered vehicle is described as: a vehicle named in the coverage summary, an after-acquired vehicle only for the first thirty days, a trailer you own, and a vehicle you do not own but are using temporarily as a substitute for a covered vehicle. (Page P-1). {¶ 11} It is not disputed that Daniel generally qualified as a covered person within the policy's definition of a family member. It is also not disputed that the car he owned and was driving at the time of the accident did not fit under the definition of a covered vehicle and thus the "other owned auto" exclusion applied to bar his survival claim. This leaves the issue of whether the wrongful death beneficiaries are barred from collecting under their policy merely because their son was precluded by the exclusion. ASSIGNMENT OF ERROR {¶ 12} Appellant's sole assignment of error provides: {¶ 13} "The trial court erred in ruling that the [policy] issued by pacific indemnity excluded the underinsured motorist claims of the decedent's parents and siblings." {¶ 14} Appellant sets forth three subassignments of error, which he characterizes as interrelated. We will set out his arguments separately infra. SUBASSIGNMENT OF ERROR NUMBER ONE {¶ 15} The first subassignment of error asks: {¶ 16} "Whether the decedent's parents and siblings are entitled to UM/UIM coverage under the [Policy] because the policy attempts to provide lesser coverage than which is mandated by law." {¶ 17} This argument focuses on the words "bodily injury" in the coverage clause on page P-1, quoted above. Appellant focuses here on the general requirements of R.C. 2937.18(A) rather than starting with an argument on the "other owned auto" exclusion outlined in R.C. 2937.18(J). Appellant cites Moore v. State AutoMut. Ins. Co. (2000), 88 Ohio St.3d 27 for the proposition that R.C. 3937.18(A)(1) does not permit insurers to limit UM/UIM so that the insured must suffer bodily injury in order to recover. {¶ 18} In Moore, the decedent was killed by an uninsured motorist. The decedent's mother was not involved in the accident and did not sustain bodily injury. She was a named insured on a policy with UM coverage, but her son was not a named insured, was not a resident of her household, and was not occupying a vehicle covered by the policy. The decedent's mother filed a UM claim, which was denied by her insurer. She then filed suit alleging that under R.C. 2125.02 (the wrongful death statute), she was presumed to have suffered damages as a result of the wrongful death of her son and thus she could collect under her UM policy. {¶ 19} The insurer claimed the following policy language precluded her claim: {¶ 20} "[We will pay] compensatory damages which an `insured' is legally entitled to recover from the owner or operator of an `uninsured motor vehicle' because of `bodily injury': 1. Sustained by an `insured'; and 2. Caused by an accident." {¶ 21} The Ohio Supreme Court started by explaining that for a limit on coverage to be valid, it must not be contrary to coverage mandated by R.C. 3937.18(A). Id. at 28-29. The Court noted that the policy language limited UM coverage to accidents where the insured sustained bodily injury and thus attempted to exclude cases where the insured only suffered mental anguish such as in a wrongful death action. Id. at 29. The Court found that R.C. 3937.18(A) was ambiguous regarding whether an insurer may impose such a limit. Id. at 31. {¶ 22} In interpreting legislative intent, the Court turned to R.C. 2125.02 (the wrongful death statute) and noted that parents of wrongful death victims are presumed to have suffered damages. Id. The Court explained that under the insurance company's argument, the parents of the wrongful death victim would go uncompensated. Id. This would thwart the underlying purpose of UM insurance, i.e. to protect persons who are entitled to recover damages from uninsured motorists, and would result in the UM statute conflicting with the wrongful death statute. Id. {¶ 23} Thus, the Court held that the version of R.C.3937.18(A) in effect at that time did not permit an insurer to limit UM coverage in such a way that an insured must personally suffer bodily injury, sickness, or disease in order to recover damages from the insurer. Id. at 32. The limitation in the policy was held to be an unenforceable and invalid attempt to provide lesser coverage than that mandated by law. Id. at 32-33. {¶ 24} First, we note that the version of R.C. 3937.18(A) which was interpreted in Moore is not relevantly different from the version in effect at the time the policy in our case was issued. See 1994 So. 20, effective October 20, 1994; 1997 H 261, effective September 3, 1997. Cf. 2000 So. 267, effective September 21, 2000 (where the legislature has since explicitly supersededMoore, but which is concededly inapplicable to this case). {¶ 25} Appellee claims that its coverage clause on Page P-1 does not limit coverage to cases where the insured suffers bodily injury as did the improper clause in Moore. The Moore policy states that bodily injury must be sustained by the insured. The policy before this court states that the covered person can collect damages for bodily injury that the covered person is legally entitled to receive. This clause does not actually state that the insured must be the one who suffered the bodily injury. Rather, it only requires the insured/covered person to be legally entitled to collect damages (including mental suffering) for what could be someone else's bodily injury. Thus, the premise ofMoore is not violated, and this subassignment of error is overruled. {¶ 26} Even if the coverage clause were to be invalidated under Moore, this subassignment of error would still lack merit. Appellant incorrectly argues that if one sentence in the general coverage clause attempts to limit coverage to bodily injury, the entire paragraph (including reference to the exclusion) is invalid. Moore merely requires that we read the general coverage language as including wrongful death damages.Moore does not require the striking of a separate sentence referring to exclusions. Regardless, the exclusions to UIM coverage are listed elsewhere, and thus, they would still be applicable even if the entire coverage paragraph on page P-1 was invalidated. Either way, the main issue, dealing with the effect of the "other owned auto" exclusion, remains. SUBASSIGNMENT OF ERROR NUMBER TWO {¶ 27} This brings us to appellant's second and third subassignments of error and the arguments therein dealing with the "other owned auto" exclusion. Appellant's second subassignment questions: {¶ 28} "Whether the decedent's parents and siblings are entitled to recover their statutory damages because Pacific Indemnity's `other owned auto' exclusion fails to clearly and unambiguously exclude coverage for the types of damages set forth in R.C. 2125.02, the wrongful death statute." {¶ 29} The legislature expressly permits UM/UIM policies to contain an "other owned auto" exclusion. Specifically, R.C.3937.18(J) provides that the policy may "preclude coverage for bodily injury or death suffered by an insured * * * [w]hile the insured is operating or occupying a motor vehicle owned by, furnished to, or available for the regular use of a named insured, a spouse, or a resident relative of a named insured, if the motor vehicle is not specifically identified in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy under which the uninsured and underinsured motorist coverages are provided * * *." {¶ 30} Accordingly, the policy herein contains an "other owned auto" exclusion worded as follows: "Your other motorvehicles: We do not cover any person for bodily injury sustained while occupying, or when struck by, a vehicle or trailer owned by you or a family member that is not a covered vehicle." (Page P-2) {¶ 31} From this, it becomes clear that we are not only interpreting the policy, but we are also called upon to interpret the statute. {¶ 32} Under this subassignment, appellant generally argues that because the policy's "other owned auto" exclusion only mentions bodily injury, it does not exclude coverage for a wrongful death claim, which seeks damages other than bodily injury such as mental anguish. Appellant also specifically notes that a different section of the policy defines personal injury as encompassing bodily injury and mental suffering. Thus, appellant concludes that the insurer would have used the words "personal injury" in the "other owned auto" exclusion if it meant to exclude more than just bodily injury. Appellant points out that where language of an insurance policy is reasonably susceptible to more than one meaning, it should be construed in favor of the insured. {¶ 33} The insurance company counters that the definition of "personal injury" is in a different and separate section of the policy unrelated to UM/UIM coverage. The insurer then notes the undisputed fact that the decedent, who suffered bodily injury, was excluded from coverage because his vehicle was not identified in the policy. The insurer concludes that since the decedent is excluded from coverage and since wrongful death is a derivative claim, the family is also excluded. {¶ 34} Resolution of this subassignment is facilitated by the contemporaneous discussion of appellant's third subassignment of error and the arguments therein. SUBASSIGNMENT OF ERROR NUMBER THREE {¶ 35} Appellant's third and final subassignment of error queries: {¶ 36} "Whether the decedent's parents and siblings are entitled to UM/UIM coverage under the [Policy] for the claims brought pursuant to Moore v. State Auto (2000),88 Ohio St.3d 27, regardless of whether the policy excludes the decedent's claim for bodily injury." {¶ 37} Appellant relies on the case of Gaines v. State FarmMut. Auto. Ins. Co., 10th Dist. No. 01AP-947, 2002-Ohio-2087. In that case, the decedent-husband was killed by an uninsured motorist while on his motorcycle, which was not listed as a covered vehicle on the policy issued to him and his wife. The policy had coverage language (similar to that in the case before us) stating that the insurer will pay damages for bodily injury an insured is legally entitled to collect. The policy also contained an "other owned auto" exclusion, precluding coverage for bodily injury to an insured while operating a car owned by the insured or a relative if it is not a listed vehicle. {¶ 38} The trial court found that the exclusion precluded the wife from recovering. The Tenth Appellate District, however, reversed. The court noted that the wife was not the one operating the vehicle, and the exclusion only applied to bar the husband from recovering for injuries sustained while using the "other owned auto." Id. at ¶ 33. The court also held that the "bodily injury" language in the main coverage clause was an insufficient basis to deny wife's claim due to Moore. Id. at ¶ 35. Thus, the court concluded that even if the husband was not entitled to coverage due to the "other owned auto" exclusion, the wife still had a viable cause of action in her own right for wrongful death. Id. at ¶ 32. {¶ 39} The Third Appellate District also decided a case on point. Adams v. Crider, 3d Dist. No. 10-02-18, 2004-Ohio-535. In that case, the husband owned a vehicle that was barred from coverage under the "other owned auto" exclusion in the family's insurance policy because it was not a listed vehicle. The wife was driving this vehicle containing her two sons when they were struck by an uninsured motorist. One son died. {¶ 40} The court found that those who suffered bodily injury (the wife and her sons) were barred from collecting for their injuries due to the "other owned auto" exclusion in their policy. Id. at ¶ 16. The court held, however, that the family members (including the wife and the injured son) could collect for the wrongful death of the deceased child notwithstanding the "other owned auto" exclusion. The court reasoned that R.C. 3937.18(J) only allows the insurer to exclude coverage for bodily injury or death suffered by an insured arising from the use of an "other owned auto." Id. at ¶ 20. "It does not allow exclusion of alldamages, such as damages for the wrongful death of another arising out of the use of an `other-owned auto.'" Id. Hence, the Third Appellate District reversed the summary judgment that had been entered in favor of the insurer on the wrongful death claims. Id. at ¶ 21. CONCLUSION {¶ 41} We do not find Gaines and Adams relevantly distinguishable from the case before us. Furthermore, we agree with the results in these cases. {¶ 42} R.C. 3937.18(J) allows preclusion of coverage for bodily injury or death suffered by the insured while the insured is occupying certain non-covered vehicles. The policy at issue precludes coverage for any person for bodily injury sustained while occupying certain non-covered vehicles. The policy cannot preclude more than the statute allows. See Moore, supra. Thus, resolution of this case requires interpretation of R.C.3937.18(J). {¶ 43} The language of the statute means that the insured who was occupying the non-covered family-owned vehicle is barred from collecting for his own bodily injury or death; it does not mean that other insureds, who are damaged in their own right by a wrongful death, are barred merely because the decedent was occupying a non-covered vehicle. Under the plain language of the statute, an "other owned auto" exclusion cannot prohibit a wrongful death beneficiary from collecting for their mental anguish. Thus, the wrongful death claims in this case are not excludable under R.C. 3937.18(J) and are thus not barred by the "other owned auto" exclusion in this policy. {¶ 44} For the foregoing reasons, the judgment of the trial court is hereby reversed and this case is remanded for further proceedings according to law and consistent with this Court's opinion. Donofrio, J., concurs. DeGenaro, J., concurs.

2016-07-06 06:36:35.380353+00

OPINION {¶ 1} This is an appeal by defendant-appellant, Timothy M. Glass, from a judgment of the Franklin County Court of Common Pleas, denying appellant's motion to withdraw a guilty plea. {¶ 2} On October 22, 2003, appellant was indicted on two counts of felonious assault, in violation of R.C. 2903.11. The charges arose out of an altercation between appellant and James Clark on July 29, 2003. The indictment alleged that appellant assaulted Clark with a wrench during the incident. {¶ 3} Appellant initially entered a not guilty plea. However, on June 8, 2004, he appeared before the trial court and withdrew that plea, entering instead a guilty plea to one count of aggravated assault as a "stipulated, agreed, lesser-included offense" of Count 1. At that time, the state requested that Count 2 of the indictment be dismissed. {¶ 4} At the plea hearing, the prosecution gave the following account of the events of July 29, 2003. On that date, appellant and Clark, both contractors, were working at a residence located at 6371 Windbrush Lane. The residence had some newly refinished hardwood floors, and Clark believed appellant had tracked paint onto the floors. When Clark approached appellant about the tracks, the two men got into a shoving match and exchanged obscenities. {¶ 5} Eventually, both men went outside to the driveway area where a fight ensued. During the altercation, appellant placed Clark in a choke hold, and Clark passed out, falling to the ground. Clark then withdrew from the fight, and went back into the house, but a further altercation took place in the garage, at which time appellant struck Clark in the face with a wrench. {¶ 6} At the close of the plea proceedings, the trial court found appellant's plea to be voluntary, and further found him guilty of aggravated assault, in violation of R.C. 2903.12. The court ordered a pre-sentence investigation ("PSI"), and set the sentencing hearing date. {¶ 7} Also during the June 8, 2004 proceedings, counsel for appellant, Anthony Mancuso, engaged in the following colloquy with the trial court: MR. MANCUSO: NORMALLY IN THESE CASES, WE RESERVE ALL COMMENTS ABOUT SENTENCING UNTIL THE SENTENCING. HOWEVER, THE COURT KNOWS WE'VE ENGAGED IN SOME PRELIMINARY DISCUSSIONS ABOUT THE POSSIBLE SENTENCE THAT THE COURT'S CONSIDERING, AND EVEN THOUGH WE UNDERSTAND IT'S NOT A PROMISE AND THE COURT DOES NOT NECESSARILY HAVE TO FOLLOW THAT AND ALL THE RULES THAT GO ALONG WITH THAT, I'VE EXPLAINED TO MR. GLASS THE COURT'S DISCUSSIONS IN CHAMBERS AND THAT THE COURT RIGHT NOW IS INCLINED TO IMPOSE TEN DAYS IN WORK RELEASE ON THIS CASE AND POTENTIALLY, DEPENDING ON THE PSI, ORDER ANGER MANAGEMENT COUNSELING AND A STAY-AWAY ORDER FROM MR. CLARK. AND DOES THE COURT CONFIRM THAT THAT'S ESSENTIALLY BEEN — THE COURT: WHAT I'VE WRITTEN ON THE INSIDE OF THE FOLDER IS COMMUNITY CONTROL LIKELY, TEN DAYS WORK RELEASE, ANGER MANAGEMENT, ONE TO TWO YEARS COMMUNITY CONTROL, EX-WIFE IS A PROBLEM, NO VIOLENCE OF ANY KIND, STAY AWAY FROM THE VICTIM. MR. MANCUSO: YOUR HONOR, FOR MR. GLASS'S PURPOSES, YOU WROTE EX-WIFE IS A PROBLEM. HE — THE COURT: YEAH, SHE'S A PROBLEM. YOU HAD INDICATED THAT SHE IS LIKELY TO CAUSE US GRIEF, SO THAT'S WHY I'VE WRITTEN SHE IS A PROBLEM. MR. MANCUSO: OKAY. SO, IN OTHER WORDS, THEN THE COURT WILL CONSIDER ANY ALLEGATION MADE BY HER IN DUE COURSE IF THERE'S AN ALLEGED VIOLATION OF COMMUNITY CONTROL, CORRECT? THE COURT: WELL, IT'LL HAVE TO RISE TO A LEVEL OF A CONVICTION BEFORE I GET EXCITED. * * * (Tr. June 8, 2004, at 10-12.) {¶ 8} On August 19, 2004, the trial court conducted the sentencing hearing. At the hearing, defense counsel described appellant as someone who, in his youth, "ran the streets, that was a troublemaker. I'll flat out say he was on the wrong path." (Tr. Aug. 19, 2004, at 6.) Counsel maintained, however, that appellant had turned his life around, and was currently a successful business owner. {¶ 9} Defense counsel also raised the issue of the contents of the PSI report, stating in part: YOUR HONOR, I READ THE PSI IN DETAIL, AND I KNOW THE COURT AND ALL THE PARTIES INVOLVED HAD AN OPPORTUNITY TO READ IT TOO. GRANTED, IT DID NOT READ WELL. HOWEVER, I THINK IT'S REAL IMPORTANT HERE — AND I KNOW TIM WANTS TO COMMENT ON IT — A LOT OF THE STUFF THAT DID NOT READ WELL OCCURRED PRIOR TO HIM CHANGING HIS LIFE AROUND. IT OCCURRED IN THE 1990'S. IT OCCURRED WHILE HE WAS MARRIED TO — IN A SITUATION THAT WAS NOT GOOD FOR HIM, THAT THE INCIDENTS THAT WERE RELATED IN THE PSI IN TERMS OF HIS RECORD WERE MANY INSTANCES THAT WERE, IN FACT, DISMISSED IN COURT AND PROBABLY WERE — ALL OF THEM, AS A MATTER OF FACT, EXCEPT ONE WERE MOTIVATED BY HIS EX-SPOUSE THAT HE IS DIVORCED FROM NOW. NOW, YOUR HONOR, I KNOW THE COURT HAS GIVEN US A TREMENDOUS AMOUNT OF CONSIDERATION IN DISCUSSING THIS MATTER PRIOR TO THE PLEA AND ALSO PRIOR TO THE SENTENCING TODAY. WHAT'S DIFFICULT FOR TIM AS A DEFENDANT HERE IS HE ENTERED THE — THIS PLEA TO AVOID THE CONSEQUENCES OF TRIAL, AND WE WERE KIND OF GIVEN A COMMITMENT AS TO MAYBE WHAT THE COURT MIGHT DO. THE COURT: YOU WERE GIVEN AN INDICATION OF WHAT THE COURT MIGHT DO. MR. MANCUSO: AN INDICATION OF WHAT THE COURT MIGHT DO. AFTER READING THE PSI AND AFTER READING A LOT OF THE PAST MATTERS THAT SHOWED UP IN THE PSI, THE COURT HAS INDICATED TO US IN PRESENTENCING DISCUSSIONS THAT THEY INTEND ON DOING A LITTLE MORE THAN WHAT WAS INDICATED AT THE PLEA HEARING. * * * (Tr. Aug. 19, 2004, at 7-8.) {¶ 10} Defense counsel then requested that appellant be provided the opportunity to speak, and the court granted that request. The court also heard several acquaintances of appellant speak on his behalf. {¶ 11} The victim, Clark, was also given the opportunity to speak at the sentencing hearing, and he related his version of the incident. According to Clark, he was knocked unconscious twice during the altercation, and he also fled the scene twice, retreating to the house, "and each time Mr. Glass was given the opportunity to leave the scene, which he chose not to, and did follow me into the home the second time and did attack me with a wrench when he had every opportunity to leave." (Tr. Aug. 19, 2004, at 19.) As a result of the altercation, Clark's injuries, which included a concussion and an orbital lobe fracture, prevented him from working for six weeks. He also related that his front teeth "were completely broken in half." (Tr. Aug. 19, 2004, at 19.) {¶ 12} At the close of the hearing, the trial court announced a sentence of two years of community control, including 60 days in work release. The trial court filed its judgment entry reflecting the above sentence on August 23, 2004. {¶ 13} On September 9, 2004, appellant, through new counsel, filed a motion to withdraw his guilty plea. In the accompanying memorandum in support, appellant argued that he entered the plea agreement with the understanding that his ex-wife, Bobbie Bradshaw, would have no involvement in the case. Appellant further argued that, prior to sentencing, his counsel assured him that Bradshaw did not play a role in the information obtained for the PSI. However, after appellant was sentenced, his counsel learned she had provided information to the probation officer who prepared the PSI. Appellant argued that his ex-wife played a very significant role in the preparation of the PSI, providing the trial court with information that it relied upon to "change its opinion about the agreed upon sentence." {¶ 14} Appellant further maintained that, had he known it was possible he would receive 60 days work release, or that his ex-wife would factor into the sentencing process, he would not have entered the guilty plea. Attached to the motion were the affidavits of appellant and his trial counsel. In his affidavit, attorney Mancuso averred in part that he steered his client away from withdrawing his guilty plea, just prior to sentencing, because "I thought that if the ex-wife did not play a role in the psi report as I was assured, we had a chance to get the Judge back to the ten days with work release." (Mancuso Affidavit, at ¶ 8.) Counsel further averred: "If I had known the ex-wife did play a role in the psi, I believe Mr. Glass would have moved to withdraw his plea and I would not have pushed him away from withdrawing his plea." (Mancuso Affidavit, at ¶ 8.) {¶ 15} On September 16, 2004, the trial court conducted a hearing on the motion. The court heard the testimony of appellant, as well as his trial counsel, Mancuso, and Philip Enright, a friend of appellant's. The state presented the testimony of Eileen Richesson, an employee of the Ohio Adult Parole Authority, who prepared the PSI. On September 22, 2004, the trial court filed a decision and entry denying appellant's motion to withdraw his guilty plea. {¶ 16} On appeal, appellant sets forth the following two assignments of error for review: FIRST ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN REFUSING TO ALLOW APPELLANT TO WITHDRAW HIS GUILTY PLEA AFTER THE TERMS AND CONDITIONS OF THE PLEA CHANGED. SAID ERROR DEPRIVED APPELLANT OF HIS RIGHTS TO DUE PROCESS OF LAW AND THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE OHIO AND UNITED STATES CONSTITUTIONS. SECOND ASSIGNMENT OF ERROR APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL DID NOT PERMIT HIS CLIENT TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING. SAID ERROR DEPRIVED APPELLANT OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE OHIO AND UNITED STATES CONSTITUTIONS. {¶ 17} Under his first assignment of error, appellant contends that the trial court erred in failing to allow him to withdraw his guilty plea after the terms and conditions of the plea changed. Appellant maintains that, while he was reluctant to accept the plea, he agreed to do so based upon an agreement that he would not receive more than ten days in jail. {¶ 18} Crim.R. 32.1 provides that a motion to withdraw a guilty plea "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." Ohio courts have noted that "[w]hat constitutes `manifest injustice' has been `variously defined, but it is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary cases.'" State v. Rittner, Fulton App. No. F-050-03, 2005-Ohio-6526, at ¶ 28, quoting Statev. Smith (1977), 49 Ohio St. 2d 261, 264. In general, "`manifest injustice relates to some fundamental flaw in the proceedings which result in a miscarriage of justice or is inconsistent with the demands of due process.'" State v. Wooden, Franklin App. No. 03AP-368, 2004-Ohio-588, at ¶ 10, quoting State v. Hall, Franklin App. No. 03AP-433, 2003-Ohio-6939. Further, whether a movant has demonstrated a manifest injustice is addressed to the sound discretion of the trial court, and the court's denial of a motion to withdraw a guilty plea will not be reversed absent an abuse of discretion. Rittner, at ¶ 28. {¶ 19} Regarding appellant's purported expectation of a ten-day work release, the trial court found there was "no agreement among the prosecutor, defense counsel, and the Court that the defendant would positively receive ten days in work release." The trial court thus found that any such expectation on the part of appellant did not rise to the level of manifest injustice. {¶ 20} Upon review, we agree with the trial court that the record in this case fails to support appellant's contention that the plea was based upon an unqualified agreement that he would receive no more than a ten-day sentence. In the present case, appellant signed a guilty plea form noting his understanding that the maximum prison term was 18 months, and he stated at the June 8, 2004 hearing that he understood the possible penalties, and that he was not promised anything to change his plea. The transcript of the plea proceedings, including his counsel's own representations, belies appellant's claim that the court guaranteed a particular sentence. Defense counsel acknowledged, at the time of the plea, that there had been only "preliminary discussions about the possible sentence," and that "we understand it's not a promise and the court does not necessarily have to follow that." (Tr. June 8, 2004, at 11.) Counsel further acknowledged, on the record, that he "explained to Mr. Glass the court's discussions in chambers and that the court right now is inclined to impose ten days in work release on this case." (Tr. June 8, 2004, at 11.) In response, the court emphasized that it had written in the folder merely the "likely" sentence. {¶ 21} At the subsequent sentencing hearing, defense counsel again raised the issue of what the court "might" do in terms of a sentence. (Tr. Aug. 19, 2004, at 8.) The court made clear at that time that appellant and counsel had only been given "an indication of what the court might do." (Tr. Aug. 19, 2004, at 8.) Defense counsel did not dispute the trial court's recollection of the earlier discussions. {¶ 22} Here, the record indicates that appellant understood the possible range of sentences, and that, while there had been discussions that the court was "inclined," prior to the sentencing hearing (and reviewing the PSI), to impose ten days of work release, the court never promised appellant that it would impose such a sentence. We also note that appellant was aware, at the time of the sentencing hearing, that the court was no longer inclined to impose ten days, but appellant nevertheless "failed to avail himself of the opportunity to disclose the source or circumstances of the alleged promise or to request the withdrawal of his pleas." State v. Evans (Aug. 16, 1995), Hamilton App. No. C-940775 (rejecting appellant's claim that guilty pleas were induced by unfulfilled promise where such claim arose, not at plea hearing, but at sentencing hearing after court had accepted pleas and imposed sentence). Under the circumstances of the present case, appellant's motion to withdraw his guilty plea, based upon the claim he received a greater sentence than he was promised, failed to demonstrate a manifest injustice. {¶ 23} Appellant also asserts that there existed an understanding with the court that his ex-wife, Bradshaw, would play no role in the PSI process. Appellant argues that his defense counsel was under the mistaken belief Bradshaw had no such involvement, but that counsel subsequently learned, after sentencing, that Bradshaw had submitted materials used for the PSI. Appellant contends, therefore, that the trial court should have allowed him to withdraw his plea because Bradshaw's input into the PSI influenced the court's decision to sentence him to more than ten days work release. {¶ 24} At the outset, we agree with the state that the record does not support appellant's assertion that there was an agreement with the court whereby Bradshaw would have no involvement in the preparation of the PSI. Rather, at the June 8, 2004 hearing, defense counsel did not raise the issue of Bradshaw's involvement in the PSI, but, instead, expressed concern about "any allegation made by her in due course if there's an alleged violation of community control." (Tr. June 8, 2004, at 11-12.) In its decision and entry denying the motion to withdraw, the trial court found that "nothing was ever mentioned about any input the ex-wife may or may not have on the information contained in the PSI." This court's review of the record supports the trial court's determination on this issue. {¶ 25} Even assuming, however, that the issue of the ex-wife's involvement in the PSI had been discussed, we would find no abuse of discretion by the trial court in denying the motion to withdraw. As previously noted, at the hearing on appellant's motion to withdraw his guilty plea, the trial court heard the testimony of Richesson, the author of the PSI. As part of her preparation for writing the PSI, Richesson conducted an interview with appellant. Richesson related that, during that interview, she believed appellant was not being totally honest in some of his responses. For instance, while appellant indicated to Richesson that he had a few traffic violations, when she reviewed his records there were at least 25 traffic-related items. Appellant further failed to reveal several different addresses in different counties. Also during the interview, appellant asked Richesson whether it would be necessary for her to contact his ex-wife. {¶ 26} Following the interview, Richesson contacted various agencies from several different counties to obtain information regarding appellant. Specifically, Richesson contacted the Roseville Police Department, the Muskingum County Sheriff's Department, the Muskingum County Prosecutor's Office, the Perry County Sheriff's Department, the Perry County Prosecutor's Office, the New Lexington Police Department, the Zanesville Police Department, the City of Zanesville's website, the City of New Lexington's website, the Muskingum County Probation Department, the Muskingum County Clerk's Office, the Perry County Clerk's Office, the Ohio Bureau of Motor Vehicles, the Franklin County Clerk's Office, the Grove City Police Department, the Worthington Police Department, and Muskingum County Children Services. {¶ 27} Richesson subsequently put together a report, and, while she eventually spoke with appellant's ex-wife, stated that the report was prepared prior to that time. Specifically, Richesson testified that she did not talk with Bradshaw until "after I had concluded my report" and turned it in for typing. (Tr. Sept. 16, 2004, at 129.) According to Richesson, she spoke with Bradshaw because of three charges involving a violation of a protective order; therefore, Richesson called to "verify that she was the victim and there was not an unknown victim or another charge which I was not aware." (Tr. Sept. 16, 2004, at 130.) {¶ 28} Bradshaw informed Richesson that she had copies of some of the reports, and Bradshaw subsequently came to the probation department and dropped them off, along with a journal. Richesson, however, did not use the journal in the PSI "because it had no bearing on his behavior in this offense." (Tr. Sept. 16, 2004, at 131.) Richesson testified that the copies Bradshaw provided were certified reports "that corresponded to the information I already had as my verification." (Tr. Sept. 16, 2004, at 132.) {¶ 29} During the hearing, Richesson was questioned about certain allegations in the PSI that appellant claimed came from information obtained from his ex-wife. On direct examination, Richesson testified that a report indicating that the offender solicited a prostitute was obtained from the prosecutor's office, while another report that the offender approached a vehicle with a club or stick was obtained from the Zanesville Police Department. On cross-examination, Richesson testified that information in the PSI indicating that appellant once attempted suicide while in jail came from appellant himself during their interview. Similarly, appellant told Richesson that he had not paid taxes for three years. According to Richesson, "nothing she [Bradshaw] gave me did I use just strictly because she provided it to me." (Tr. Sept. 16, 2004, at 136.) Rather, Richesson stated Bradshaw had no substantive input at all in the preparation of the PSI. {¶ 30} Based upon the testimony provided, including a consideration of the credibility of the PSI writer, the trial court found that "the PSI writer had only nominal contact with [appellant's] ex-wife," and that such contact "had no impact on either the PSI writer or the PSI." In so holding, the trial court found credible the PSI writer's statements about the ex-wife's role as it pertained to the preparation of the PSI. As the trier of fact, it was within the province of the trial court to weigh the evidence and judge the credibility of the witnesses.Rittner, at ¶ 74, citing State v. DeHass (1967),10 Ohio St. 2d 230, paragraph one of the syllabus. Upon review, we accord due deference to the trial court's determination on this issue, and we find no error by the court in holding that appellant's PSI "was totally unaffected by any actions of his ex-wife." {¶ 31} Based upon the foregoing, the trial court did not abuse its discretion in denying appellant's post-sentence motion to withdraw his guilty plea as appellant failed to establish a manifest injustice. Accordingly, appellant's first assignment of error is without merit and is overruled. {¶ 32} Under his second assignment of error, appellant asserts that his defense counsel was ineffective in failing to let him withdraw his guilty plea. Appellant argues that he expressed a desire to his counsel to withdraw his plea at the time of the sentencing hearing when he became aware the court was contemplating sentencing him to more than ten days in jail. Appellant also contends he wanted to withdraw his plea after his counsel discussed with him the contents of the PSI, leading appellant to believe his ex-wife was involved in the preparation of that report. Appellant maintains that his defense counsel, laboring under the misapprehension that appellant's ex-wife played no role in the PSI process, steered him from seeking to withdraw his plea. Appellant argues that defense counsel later acknowledged that, had he known the ex-wife was involved in the PSI, his advice to appellant would have been to seek to withdraw his plea at the time of the sentencing hearing. {¶ 33} In order to succeed on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient, and that such deficiency prejudiced his defense. State v. Curd, Lake App. No. 2003-L-030,2004-Ohio-7222, at ¶ 109. In the context of a guilty plea, however, "a defendant must also demonstrate that there is a reasonable probability that, but for his counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at ¶ 110. Further, "[t]o prove ineffective assistance on the basis of a failure to file a particular motion, a defendant must establish that the motion stood a reasonable probability of success." State v. Adkins, Athens App. No. 04CA34, 2005-Ohio-2577, at ¶ 14. {¶ 34} As noted, appellant contends he informed his counsel that he wanted to withdraw his plea after learning the trial court was contemplating sentencing him to more than ten days in jail. At the outset, we note that courts have held that, "where an adequate guilty plea hearing has been conducted, an erroneous prediction or assurance by defense counsel regarding the likely sentence does not constitute grounds for invalidating a guilty plea on grounds of ineffective assistance of counsel." Wiant v.United States (S.D.Ohio 2005), No. 2:04-CV-256. See, also,United States v. Martinez (C.A.7, 1999), 169 F.3d 1049, 1053 ("an attorney's `mere inaccurate prediction of a sentence' does not demonstrate the deficiency component of an ineffective assistance of counsel claim"). {¶ 35} Even assuming appellant could somehow demonstrate that his counsel's advice regarding his sentence constituted deficient performance, appellant cannot show prejudice. We have previously noted, in addressing the first assignment of error, that the record demonstrates appellant's plea was not based upon a promise of ten days work release. See City of Westlake v. Barringer (Dec. 24, 1998), Cuyahoga App. No. 73774 (a defendant cannot succeed on a motion to withdraw a guilty plea based on erroneous advice of counsel where appellant acknowledged at plea hearing that no promise was made in exchange for plea and court specifically explained the possibility of incarceration). {¶ 36} Further, a criminal defendant does not have an absolute right to withdraw a guilty plea prior to sentencing.State v. Yander, Franklin App. No. 05AP-38, 2005-Ohio-5538, at ¶ 16. Thus, "trial counsel is only ineffective for failing to act on a motion to withdraw a guilty plea where a substantial possibility exists that the defendant would be permitted to withdraw his guilty plea." State v. Mooty (Aug. 31, 2001), Greene App. No. 2000 CA 72. {¶ 37} Ohio courts have consistently held that a change of heart is deemed insufficient to justify withdrawing a guilty plea, especially where the change of heart is based upon the defendant learning what sentence a court is going to impose.State v. Davis (Jan. 5, 2001), Montgomery App. No. 18172. See, also, Mooty, supra (defendant's motion to withdraw his guilty plea "was based solely on an unexpected incarceration sentence, a mere change of heart," and as such was an insufficient rationale to withdraw a guilty plea); State v. Brooks, Franklin App. No. 02AP-44, 2002-Ohio-5794, at ¶ 51 ("[a] defendant's change of heart or mistaken belief about the guilty plea or expected sentence does not constitute a legitimate basis that requires the trial court to permit the defendant to withdraw the guilty plea"). In the present case, appellant cannot show that the trial court would have permitted him to withdraw his plea prior to sentencing based upon his belief that the court guaranteed him a ten-day sentence, and appellant therefore cannot satisfy the prejudice prong of his ineffective assistance claim. {¶ 38} Similarly, appellant cannot demonstrate that he was prejudiced by the failure of his counsel to seek withdrawal of the plea based upon the contention that his ex-wife's involvement in the PSI process affected the court's sentencing decision. Even assuming that trial counsel was mistaken about Bradshaw providing information to the PSI author, as already discussed, the record supports the trial court's finding that any information provided by Bradshaw did not impact the contents of the report, and, therefore, her actions did not influence the court's decision to impose a more severe sentence than was initially discussed. Thus, to the extent appellant contends his trial counsel should have agreed to seek a pre-sentence motion to withdraw the guilty plea because of Bradshaw's purported conduct, there is no reasonable probability that the trial court would have granted such motion. Accordingly, we reject appellant's claim of ineffective assistance of counsel. {¶ 39} Appellant's second assignment of error is without merit and is overruled. {¶ 40} Based upon the foregoing, appellant's two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. Klatt, P.J., and French, J., concur.

2022-09-09 23:54:31.566858+00

Lundsten

¶ 1. LUNDSTEN, P.J. Chapter 90 of the Wisconsin Statutes regulates partition fences on farming and grazing land as defined in the chapter. For ease of reading, we will frequently refer to farming and grazing land that is covered by Chapter 90 as "qualifying land." ¶ 2. Chapter 90 provides fencing specifications, requires adjoining landowners to share costs, and provides dispute-resolution procedures for these landowners. Chapter 90 makes clear that, when qualifying land is in a town, the town is responsible for administering and enforcing Chapter 90 in respect to the fencing. However, Chapter 90 is unclear as to whether cities and villages are responsible for administering and enforcing the chapter when adjoining lands are within their boundaries. ¶ 3. This lack of clarity in Chapter 90 gives rise to the dispute here between the City of Watertown and Stuart and Janet White. The Whites, who own fenced farming land in the City, argue that the City has the same duties to administer and enforce Chapter 90 that a town would have if the land were in a town. The City disagrees. ¶ 4. For the reasons explained below, we agree with the circuit court that Chapter 90 is ambiguous. We thus turn to the legislative history and, based on that history, agree with the circuit court and the Whites that, when qualifying land is in a city or village, that city or village must administer and enforce Chapter 90 the same as a town would if the land were in that town. Accordingly, we affirm the circuit court's order declaring that the City must assume Chapter 90 duties with respect to the Whites' land. Background f 5. The Whites' complaint for declaratory judgment includes the following allegations: • The Whites own land in the City that they use as a farm, including for livestock. • Chapter 90 requires the Whites to maintain a partition fence between their land and neighboring residential properties. • The cost and maintenance of the fence resulted in a dispute between the Whites and their neighbors. • The Whites have a right under Chapter 90 to have the appropriate local government entity resolve this dispute. • The Whites asked the City to assume Chapter 90 duties to resolve the dispute. • The City has refused to assume those duties. ¶ 6. The Whites asked the circuit court to declare the parties' respective rights. The Whites argued that, read most reasonably, Chapter 90 provides that the City must assume Chapter 90 duties for land located in the City. ¶ 7. The City sought dismissal of the Whites' complaint. The City contended that the Whites' complaint against the City "must be dismissed as a matter of law because the terms of Chapter 90 apply to towns, not to cities." ¶ 8. The circuit court concluded that Chapter 90 is ambiguous and, further, agreed with the Whites that Chapter 90 is most reasonably read as applying to cities the same as to towns. The City appeals. Discussion ¶ 9. The parties renew their dispute over the proper interpretation of Chapter 90. Statutory interpretation presents a question of law that appellate courts review de novo. Noffke v. Bakke, 2009 WI 10, ¶ 9, 315 Wis. 2d 350, 760 N.W.2d 156. ¶ 10. The general purpose of Chapter 90, to regulate partition fencing between property owners on agricultural lands, has not changed for more than 150 years: The design of that chapter of the statutes is to regulate and provide for the building and keeping in repair of division fences, and for the settlement of disputes in regard to the same. The fences contemplated by the statute are the ordinary fences of the country, built upon agricultural lands .... Brooks v. Allen, 1 Wis. 114, [*127], 116, [*129] (1853); Tomaszewski v. Giera, 2003 WI App 65, ¶ 11, 260 Wis. 2d 569, 659 N.W.2d 882 (stating that "under this statute, adjoining landowners and occupants of land used for farming or grazing are generally required to jointly maintain partition fences," and describing in general terms Chapter 90's dispute-resolution procedures). f 11. Chapter 90 provides detailed requirements for what constitutes a "legal and sufficient" partition fence. See Wis. Stat. § 90.02.1 In addition, Chapter 90 imposes other requirements on landowners covered by the chapter. See, e.g., Wis. Stat. § 90.06 (regarding fences built before boundary line is located). Finally, as noted, Chapter 90 provides cost-sharing and dispute-resolution procedures. See, e.g., Wis. Stat. §§ 90.07; 90.10; and 90.11. As we shall see, the governmental duties associated with these procedures are, for the most part, carried out by "fence viewers." ¶ 12. There is no dispute that, when qualifying land is in a town, that town is responsible for these Chapter 90 duties, that is, for administering and enforcing Chapter 90. At issue here is whether, when qualifying land is in a city or village, that city or village must discharge those Chapter 90 duties. We conclude that it must.2 A. Statutory Interpretation Principles f 13. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. "[Statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.' " Id., ¶ 45 (quoted source omitted). ¶ 14. "[Statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. Also, "[statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." Id. ¶ 15. As a corollary to this surplusage canon, courts avoid interpretations that require inserting words into statutes. See Heritage Farms, Inc. v. Market Ins. Co., 2009 WI 27, ¶ 14, 316 Wis. 2d 47, 762 N.W.2d 652 ("Because the legislature did not so limit the application of § 26.21(1) to railroad corporations, we will not insert those words into the statute to create such a result."); C. Coakley Relocation Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶ 24, 310 Wis. 2d 456, 750 N.W.2d 900 ("We will not insert the word 'correct' or 'lawful' into this plainly worded and easily understood statute."). ¶ 16. " 'If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.' " Kalal, 271 Wis. 2d 633, ¶ 46 (quoted source omitted). If, instead, statutory language is ambiguous, then courts examine legislative history to resolve the ambiguity. See id., |¶ 50-51. ¶ 17. The general test for ambiguity is whether a statute can be understood by reasonable persons in two or more senses. See id., ¶ 47. More specifically: [A] statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses. It is not enough that there is a disagreement about the statutory meaning; the test for ambiguity examines the language of the statute "to determine whether 'well-informed persons should have become confused,' that is, whether the statutory . .. language reasonably gives rise to different meanings." Id. (citations and quoted source omitted). ¶ 18. Pertinent here, ambiguity may arise when one or more otherwise clear statutory provisions interact to create ambiguity. See DOC v. Schwarz, 2005 WI 34, ¶ 14, 279 Wis. 2d 223, 693 N.W.2d 703 (" '[Ambiguity can be found ... by the words of the provision as they interact with and relate to other provisions in the statute and to other statutes.1 " (quoted source omitted)); Warehouse II, LLC v. DOT, 2006 WI 62, ¶ 17, 291 Wis. 2d 80, 715 N.W.2d 213 ("A statute that is plain on its face may also be made ambiguous by its interaction with other statutes."). B. Application of Statutory Interpretation Principles to Chapter 90 ¶ 19. In the sections that follow, we: (1) set forth pertinent provisions in Chapter 90; (2) summarize the parties' competing interpretations of Chapter 90 and explain why we agree with the circuit court that Chapter 90 in pertinent part is ambiguous; (3) examine Chapter 90's legislative history and conclude that, when qualifying land is in a city or village, that city or village must administer and enforce Chapter 90; and (4) address the City's arguments that are not already addressed by that point in our opinion. 1. Chapter 90 Provisions ¶ 20. As noted, most governmental duties under Chapter 90 are discharged by "fence viewers." See Wis. Stat. §§ 90.02(lm)(h); 90.05(l)(a)2.; 90.07(1) and (2); 90.09(l)-(4); 90.10; 90.11(l)(a)-(c); 90.12; and 90.14. The first section in Chapter 90 defines "fence viewers" as follows: Fence viewers. The supervisors in their respective towns, the alderpersons of cities in their respective aldermanic districts, and the trustees of villages in their respective villages shall be fence viewers. Wis. Stat. § 90.01; see also Wis. Stat. § 90.15 (stating that "fence viewer" fees "shall be set by the viewer's city, village or town"). ¶ 21. Most of Chapter 90's references to "fence viewers," however, refer expressly only to town fence viewers. The following provisions are representative: • Wis. Stat. § 90.07(2): "[A]pplication may be made to 2 or more fence viewers of the town where the lands lie or to 2 or more fence viewers of 2 towns, if the lands lie in 2 towns . . .." • Wis. Stat. § 90.10: "[T]he aggrieved party may complain to 2 or more fence viewers of the town . . . ." • Wis. Stat. § 90.14: "In all cases where the line upon which a partition fence is to be made or to be divided is the boundary line between towns or partly in one town and partly in another a fence viewer shall be taken from each town . . . (Emphasis added.) Similarly, additional provisions in Chapter 90 appear to contemplate administration and enforcement only by towns: • Wis. Stat. § 90.05(l)(a): "Every partition of a fence . . . between owners of adjoining lands, after being recorded in the town clerk's office ... ." • Wis. Stat. § 90.09(2): "The fence viewers shall file their determination in the office of the town clerk, who shall record the determination." (Emphasis added.) Chapter 90 contains no parallel provisions referring expressly to fence viewers "of the city" or "of the village," or to city or village clerks. 2. The Parties' Interpretations of Chapter 90 and the Ambiguity in Chapter 90 ¶ 22. Based on the many town-specific provisions in Chapter 90, the City argues that administration and enforcement duties under Chapter 90 plainly and unambiguously apply only to towns. The City argues: "The entirety of the statutory provisions concerning remedial and enforcement rights, powers and responsibilities discusses only towns." The City asserts that the general definition of "fence viewers" that includes city and village officials simply creates "an expansion of the pool from which towns could draw permissible 'fence viewers' to assist them in the application of their duties and responsibilities under the Chapter." ¶ 23. The Whites, in contrast, argue that Chapter 90 must be construed so that cities (and, in effect, villages) have the same duties as towns. Otherwise, according to the Whites, Chapter 90 would be rendered unenforceable in cities (and villages), a result that makes little sense. ¶ 24. We pause here to make some observations that clarify what we understand to be the parties' arguments, based on what the parties do and do not say in their briefing. f 25. First, as we understand it, the parties agree that towns lack authority to administer or enforce Chapter 90 on land located in cities and villages. The Whites assert: "[T]he Town [of Watertown] is not responsible because the City has the taxing authority (jurisdiction) over the Whites." The City asserts: "The City agrees that, as city residents, the Whites cannot seek town enforcement of Chapter 90." ¶ 26. Second, the parties appear to agree, albeit implicitly, that Chapter 90 applies to all qualifying land regardless of the land's location in a city, village, or town, while disagreeing on whether there is an enforcement mechanism for such land located in cities and villages. The parties' implicit agreement that there is qualifying land in cities and villages finds support in Wis. Stat. § 90.03, the section that generally determines which landowners and occupants must keep and maintain partition fences. Section 90.03 does not limit Chapter 90's application to land located in towns.3 ¶ 27. Accordingly, we understand the parties to advance the following interpretations of Chapter 90. Both parties interpret Chapter 90 as imposing obligations on owners of qualifying land in cities, villages, and towns. They part company, however, on whether the administration and enforcement mechanisms apply only to such land located in towns.4 f 28. Under our principles of statutory interpretation, either way of interpreting the statute has something to recommend that interpretation, but each is also problematic. ¶ 29. The City's interpretation makes sense of most of the provisions in Chapter 90, and requires the insertion of no additional language. However, the City fails to adequately address the language we quote above which states that "[t]he supervisors in their respective towns, the alderpersons of cities in their respective aldermanic districts, and the trustees of villages in their respective villages shall be fence viewers." See Wis. Stat. § 90.01. The City's position that this language simply expands the "pool from which towns could draw permissible 'fence viewers' to assist them" fails to come to grips with the "in their respective" aldermanic districts and villages language. In our view, this statutory language plainly states that city fence viewers are fence viewers only in their respective aldermanic districts and that village fence viewers are fence viewers only in their respective villages. More broadly, we read § 90.01 as indicating that all fence viewers act as fence viewers only in their respective jurisdictions. ¶ 30. The Whites' interpretation, in contrast to the City's, fully accounts for the definition of fence viewers in Wis. Stat. § 90.01. However, the Whites' interpretation effectively inserts the words "city" and "village" into the numerous Chapter 90 provisions that refer only to towns. ¶ 31. The inconsistency of the use of the terms "cities" and "villages" in Chapter 90 leads us to agree with the circuit court that the chapter is ambiguous. We discern no way to reconcile the language referring to cities and villages and other language omitting reference to those entities. Thus, in the words of Kalal, "well-informed persons should have become confused" as to whether Chapter 90 requires cities and villages to administer and enforce Chapter 90 the same as towns. See Kalal, 271 Wis. 2d 633, ¶ 47. 3. Resolving Chapter 90's Ambiguity Based on Legislative History ¶ 32. Having identified ambiguity in Chapter 90, we turn to the pertinent legislative history. As the parties both note, that legislative history dates back to the 1800s. We explain below why we conclude that the legislative history supports the circuit court's view that Chapter 90 covers not only towns but also cities and villages. ¶ 33. Prior to 1875, what is now Chapter 90 contained no references to cities or villages. "Fence viewers" were defined as town officials only, namely, "[t]he overseers of highways, in the several towns." See Wis. Rev. Stat. ch. 17, § 21 (1871). As remains true today, other provisions in the chapter also referred only to towns, namely, to fence viewers "of the town" and town clerks. See Wis. Rev. Stat. ch. 17, §§ 1-23 (1871). ¶ 34. In 1875, the legislature made a significant change, adding a new section to the fence viewing law. See 1875 Wis. Laws, ch. 285, § 1. In language that is now only partially present in the chapter, that section changed the definition offence viewers" to include city and village fence viewers, while also requiring those fence viewers, in their respective jurisdictions, to discharge the same duties as town fence viewers do in theirs. See id. Specifically, this new section provided: The provisions of this chapter and of the acts amen-datory thereto, shall extend to and include all out-lots occupied and used for agricultural purposes, and embraced in the plat of any incorporated city or village within this state, and the aldermen of the respective wards of such city, and the trustees of any such village, are hereby empowered, and it is hereby made their duty, to discharge the duties imposed upon fence-viewers of the several towns, as provided by this chapter, in their respective wards and villages. Id. (emphasis added). To repeat, this language plainly extended administration and enforcement duties under what is now Chapter 90 to cities and villages. ¶ 35. Further, this 1875 act just as plainly is the source of the current definition of "fence viewers" in Wis. Stat. § 90.01. But what happened to the rest of the 1875 act language? In particular, what happened to the language providing that city and village fence viewers must "discharge the duties imposed upon fence-viewers of the several towns, as provided by this chapter"? As we now explain, that language was omitted from the first published version of the statutes after the 1875 act, but we see no indication that this omission was intended to reverse course from the 1875 act's extension of the fence viewing law to cities and villages. ¶ 36. In 1875 and 1877, statutory revisers were appointed to collect and revise the laws for publication. See Wis. Rev. Stat. 1878, Prefatory, at iii.5 We will return to the revisers' work in a moment, but note now that the end result of that work was the 1878 Revised Statutes. In 1878, during a "special session," the legislature adopted the revisers' work by enacting, in one fell swoop, the 1878 Revised Statutes. See id.; 1878 Wis. Laws, ch. 2 (referencing the bill in a separate volume); see also 1878 Wis. Laws, ch. 3 (as to publication of the revised statutes). ¶ 37. As remains true today, the 1878 Revised Statutes contained the 1875 act language defining fence viewers to include city aldermen and village trustees in their respective jurisdictions. See Wis. Rev. Stat. ch. 55, § 1389 (1878). The rest of the 1875 act language, however, was omitted from the 1878 Revised Statutes. See Wis. Rev. Stat. ch. 55, §§ 1389-1403 (1878). That is, as most pertinent here, the 1878 Revised Statutes omitted the 1875 act language directing that city and village fence viewers have the "duty to discharge the duties imposed upon fence-viewers of the several towns, as provided by this chapter." ¶ 38. Thus, the 1878 Revised Statutes contained essentially the same ambiguity that Chapter 90 still contains today, nearly 140 years later. That is, the definition of fence viewers included city and village fence viewers, but other provisions in the chapter (then Chapter 55) referred only to towns. Thus, our focus remains on whether the omission of 1875 act language in the 1878 Revised Statutes was intended to significantly change the law. ¶ 39. We conclude that no such change was intended. That is, we see nothing to indicate that, only three years after extending the fence viewing law to include cities and villages, the legislature meant to reverse course and change the law back so that it again applied only to towns in 1878. On the contrary, a revisers' note indicates that the version of the fence viewing law published in the 1878 Revised Statutes was intended to carry the 1875 act forward, albeit with some clarification.6 ¶ 40. The pertinent revisers' note is not an easy read. It has some quirks, and we find parts of it ambiguous. On balance, however, we understand the note to show that the legislature's intent was to preserve the thrust of the 1875 act. We first quote the note, then discuss it further. ¶ 41. The note accompanies what was then Wis. Rev. Stat. ch. 55, § 1389 (1878) (now Wis. Stat. § 90.01), which first codified the 1875 act's redefinition of fence viewers to include city and village fence viewers. The note reads: § 1389 This [section] is composed from sec. 20, ch. 17, R.S. 1858 [the prior fence viewer definition referring only to towns], and ch. 285, 1875, and ch. 41, 1872.7 It has been an open question whether the provisions of this statute on fences extended to cities and villages. Brooks v. Allen, 1 Wis., 127 [1853], held it does not apply to ornamental fences around town lots; but the opinion says: "It is possible, indeed, that a division fence between town lots may fall within the purview of the statute; but to do so, it must be a fence of the kind and description contemplated by the statute." This is what the revisers understand the law to have contemplated, until the passage of ch. 285, 1875; and it is exactly what seems just. The owner of an inclosed lot in a city ought as much to contribute to a partition fence between himself and neighbor as the owner of an inclosed farm in a town. The one has no better right than the other to insist on inclosure, and deny the fair obligations of neighborhood. But he should be required to contribute nothing to gratify the mere taste of his neighbor. Hence the next section [describing a legal and sufficient fence for purposes of the chapter] serves to limit his duty to providing only a fair inclosure, such as a farmer is bound to do. Other arrangements must be dependent on mutual agreement. For this reason, and also because the language is indefinite and obscure, the words of ch. 285, 1875, which purported to extend but more probably limited the fence statute to "outlots occupied and used for agricultural purposes" are omitted. Revisers' Notes, Report and Explanatory Notes of the Revisers of the Statutes, Accompanying the Bill to Revise the General Laws of Wisconsin, Wis. Rev. Stat. ch. 55, § 1389 (1878), at 111 (footnote added; some emphasis in original; some emphasis added); see also Supplement to the Revised Statutes of Wisconsin, 1878, ch. 55, § 1389, at 301. ¶ 42. The very start of the note indicates that then-Wis. Rev. Stat. ch. 55, § 1389 (now-Wis. Stat. § 90.01) was meant to incorporate the 1875 act ("ch. 285, 1875"). Further, the note goes on to explain that fairness and logic dictate that fence owners in cities (and, we infer, villages) should be treated the same as fence owners in towns, provided that the fencing is of the type that the fence viewing law contemplates.8 Finally, the note indicates that the revisers omitted some of the 1875 act language—namely, the language stating that the fence viewing law "shall extend to and include all out-lots occupied and used for agricultural purposes"—because that language might have been mistakenly read as a limitation on the 1875 act's application to cities and villages when in fact the opposite was intended, that is, the 1875 act was intended to apply the fence viewing law the same to cities and villages as it had previously been applied to towns. ¶ 43. It is true that the note is silent as to why the revisers also omitted the more significant 1875 act language with which we are most concerned here— namely, the language providing that city and village fence viewers must "discharge the duties imposed upon fence-viewers of the several towns." But we think this omission must have been inadvertent, or in any event not intended to effect a change from the 1875 act. The revisers' emphasis on the fairness and logic of treating city fence owners the same as town fence owners shows an expectation that the fence viewing law would be enforced in cities (and, we again infer, villages) the same as in towns. More broadly, it makes no sense to think that the revisers would have effectively gutted the thrust of the 1875 act without making any express mention of why they did so in their note, particularly given their mention of far finer points. f 44. To repeat, the City's interpretation of the law acknowledges that Chapter 90 imposes fencing obligations on all owners of qualifying land, but apparently leaves the law unenforceable in cities or villages. We cannot square that interpretation with the revisers' note. Although briefly addressing the note in its reply brief, the City ignores pertinent language in the note. Nothing the City says about the note persuades us that our interpretation of the note is wrong. | 45. In sum, for all of these reasons we conclude that § 1389 of the 1878 Revised Statutes—created from the 1875 act, and containing essentially the same definition offence viewers that still exists today in Wis. Stat. § 90.01—was meant to carry forward the 1875 act's provisions requiring city and village fence viewers, in their respective jurisdictions, to discharge the same Chapter 90 duties as town fence viewers do in theirs. 4. Remaining City Arguments ¶ 46. The City makes assertions that we construe as raising the following argument: If Chapter 90 were truly meant to apply to cities and villages the same as to towns, the legislature would have amended the statutes by now to more clearly say so. We reject this argument because the City provides no reason to think that the legislature's attention has ever been directed to the ambiguity that we address and resolve today. See Green Bay Packaging, Inc. v. DILHR, 72 Wis. 2d 26, 36, 240 N.W.2d 422 (1976) (" [Legislative inaction . . . has been called 'a weak reed upon which to lean' and a 'poor beacon' to follow in construing a statute." (quoted source omitted)). ¶ 47. It may be that Chapter 90 disputes in cities and villages have rarely arisen and that, when they do, the affected cities or villages have assumed that Chapter 90 applies the same to them as to towns. We observe that the record contains a 1999 "UW Extension Local Government Center Fact Sheet" stating that "ch. 90 applies to land in cities and villages, as well as towns, where land is used for farming and grazing." This 1999 publication makes the unsurprising observation that "most agricultural land is in towns." ¶ 48. Finally, the City appears to make a minimally developed argument that the fence viewing law does not apply on the facts here at all. Relying on the revisers' note, and on the long-standing agricultural purpose of the fence viewing law, the City appears to argue that the law applies only when both adjoining properties are agricultural, a circumstance that is absent here; the Whites' complaint alleged that their neighboring properties are all "residential." ¶ 49. We disagree that the revisers' note, or the long-standing purpose of the fence viewing law, provides support for this City argument. Further, even if either did, Chapter 90 now expressly provides that only one of the adjoining properties must have the requisite agricultural use. As noted above, Wis. Stat. § 90.03 states: Partition fences; when required. The respective occupants of adjoining lands used and occupied for farming or grazing purposes, and the respective owners of adjoining lands when the lands of one of such owners is used and occupied for farming or grazing purposes, shall keep and maintain partition fences between their own and the adjoining premises in equal shares .... (Emphasis added.) Conclusion ¶ 50. For the reasons stated, we affirm the circuit court's order declaring that the City must assume Chapter 90 duties with respect to the Whites' land. By the Court.—Order affirmed. All references to Chapter 90 of the Wisconsin Statutes are to the 2015-16 version. The parties argue mostly in terms of cities, not cities and villages, but we do not understand the parties to be making a distinction between cities and villages for purposes of Chapter 90. We, too, do not make any distinction, and see no reason to make a distinction. Wisconsin Stat. § 90.03 does not refer to towns, cities, or villages. It provides, in part: Partition fences; when required. The respective occupants of adjoining lands used and occupied for farming or grazing purposes, and the respective owners of adjoining lands when the lands of one of such owners is used and occupied for farming or grazing purposes, shall keep and maintain partition fences between their own and the adjoining premises in equal shares so long as either party continues to so occupy the lands .... The City sometimes makes passing comments suggesting that the City questions Chapter 90's applicability to land in cities (and villages), but the City never makes a straightforward argument, let alone a developed one, that land in cities or villages is excluded from Chapter 90. "Prior to 1911, the statutes were published irregularly by a special act of the legislature, which usually designated a committee of attorneys to create a complete revision of the statutes." Wisconsin Legislative Reference Bureau, Wisconsin Briefs from the Legislative Reference Bureau, Brief 13-8, at 3 (Nov. 2014). The revisers drafted accompanying notes for many of the laws codified in the 1878 Revised Statutes. See generally Revisers' Notes, Report and Explanatory Notes of the Revisers of the Statutes, Accompanying the Bill to Revise the General Laws of Wisconsin (1878); Supplement to the Revised Statutes of Wisconsin, 1878, ch. 55, § 1389, at 301. "[C]h. 41, 1872" is inconsequential for purposes here. It changed only which town officials were to serve as town fence viewers. See 1872 Wis. Laws, ch. 41, §§ 1-2. One of the quirks of the note is that it fails to refer to villages. It appears that the only logical inference from then-Wis. Rev. Stat. ch. 55, § 1389 and the accompanying note, read as a whole, is that this failure was merely an oversight.

2016-07-06 06:36:34.186987+00

Lemert

The defendant below, Harry Deutsch, was indicted, tried and convicted of shooting to kill, together with another defendant, John Russo. The crime was committed June 18, 1931. The trial took place in September, 1931. The defendant Russo promptly prosecuted error to the Court of Appeals, but the defendant Deutsch did not do so. Some time thereafter the case of the defendant Russo came up for hearing in the Court of Appeals, and the Court of Appeals reversed the conviction of the defendant Russo and sent the case back to the court of common pleas for a new trial. After the trial *Page 224 of the Russo case, present plaintiff in error, Deutsch, obtained leave from the Court of Appeals to file a petition in error. A joint bill of exceptions was filed within the statutory time in the Court of Appeals. As to the right of the plaintiff in error to file a petition in error herein, and the right of the Court of Appeals to grant that right, we find the law to be that, unless otherwise provided, a petition in error may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment such petition in error may be filed only by leave of the court, or by leave of two of the judges thereof. A statutory limitation for filing a petition in error to reverse a judgment in a civil action has no application to a criminal action. Plaintiff in error contends that there is error in the record in this case, in this, to wit: First. Irregularity in the proceedings of the court and prosecuting attorney, and irregularity in the rulings of the court on the testimony, by reason of which defendant was prevented from having a fair trial. Second. That the verdict of the jury in the court below was not sustained by sufficient evidence and is contrary to law. Third. That said court erred in permitting the state to introduce testimony as to events which had transpired not in the presence of the defendant, which were highly prejudicial in their nature and prevented this defendant from having a fair trial. Fourth. Misconduct of the prosecuting attorney during the trial of said action, and in his final argument to the jury. As to the first and second grounds of error claimed herein, we are of the opinion, after a careful examination of the record before us, that neither of said grounds of error is well taken, and we find no error therein. *Page 225 On the third claimed ground of error, to wit, that the court, without the presence of the defendant, permitted the state to admit testimony as to events which had transpired, which were highly prejudicial in their nature and prevented this defendant from having a fair trial, we find in the direct examination of one Sol Turkin, which relates to conversations he had with attorneys in the Standard Bank Building and with certain officials of the Union Trust Company at their branch office located at the corner of East 140th street and Kinsman road, that this testimony referred to, which is too lengthy to incorporate in this opinion, had to do with a transaction that said Sol Turkin had with the law firm of Mills, Silverman Mitchell, relative to another transaction between these attorneys and Sol Turkin, the witness, about the cashing of a bond. None of this testimony by the witness before these attorneys and the manager of the Union Trust Company was given in the presence of either Harry Deutsch or John Russo, who were being tried in said case, and no evidence was introduced by the prosecutor at any time which in any manner connected any of these defendants with the transaction. All this testimony was vigorously objected to at all stages of the trial by counsel for Harry Deutsch and by counsel for John Russo. We also note in the bill of exceptions, in the testimony of James E. Mazach, a state's witness, who was assistant manager of the Union Trust Company, that he was permitted to testify to conversations held with the prosecuting witness, Sol Turkin, relative to an attempt which said Sol Turkin had made to cash a bond for the attorneys Mills, Silverman Mitchell, although neither one of the defendants, John Russo or Harry Deutsch, was present. This testimony was admitted over strenuous objection made by counsel for both of these defendants. *Page 226 We note from the record, also, that the prosecutor was permitted to examine the said Sol Turkin as to conversations he had with Turkin in his office, not in the presence of this defendant. All of this testimony was improper and should not have been permitted. The same was highly prejudicial to the rights of plaintiff in error. As to the fourth ground of error — claimed misconduct of the prosecuting attorney during the trial of said action and final argument to the jury — we desire, without quoting at great length the language of the prosecuting attorney in his closing argument, to use a part of the language or argument used by the prosecutor, as follows: "Where is the terrorism in this community except that which defies the law alone? The underworld gangs, racketeers. They are the terrorism to people of the communities. It is not the law-abiding citizens; it is not the conscientious members of the police department; it is not the judiciary or the prosecuting attorney, who becomes the arm of the Court. If I commit an error in this court — they talk about passion and prejudice and terrorism, and unconstitutional trial — they take a record of it. If I make an error, if the Court makes an error, if the jury makes an error, they have their remedy. This Court, if you make an error in your findings can reverse you, grant a motion for a new trial and give them a new trial. If this Court thinks you go right, but if I go wrong, they still have a right to take this case to the Court of Appeals, where this whole procedure is reviewed. Three members of the Court pass upon the errors. If that Court is wrong, they still have a right to go to the Supreme Court of Ohio and have their case reviewed. If they talk about constitutionality, and the Supreme Court does not give them redress, they can still go to the Supreme Court. Talk about rights." *Page 227 This language is followed by other language discussing terrorism, underworld, gangland, and so forth. While we recognize the rights of counsel in argument, and that counsel should be allowed considerable latitude in the argument of a case to the jury, yet there is a limit beyond which counsel cannot go, and that limit is well defined by the courts of Ohio. We believe the language used by the prosecutor in this closing argument was highly prejudicial to the rights of plaintiff in error; that it tended to and did influence and create a prejudice in the minds of the jury against the defendant. We are apprised of the fact, and have the record of the case before us, being case No. 12206 in the Court of Appeals of Cuyahoga county, Ohio, being the case of Russo v. State of Ohio, which was reviewed by the Court of Appeals of Cuyahoga county, wherein conviction was reversed and the cause remanded for a new trial, and one of the grounds on which said reversal was based was misconduct of the prosecuting attorney in closing argument, which is the same argument made by the prosecuting attorney herein quoted. We, therefore, find and hold that the third and fourth grounds of claimed errors are well taken, and therefore the finding and judgment of the court of common pleas will be and the same is hereby reversed, and the cause is remanded to the court of common pleas for a new trial according to law. Judgment reversed and cause remanded. GARVER, P.J., and SHERICK, J., concur. Judges of the Fifth Appellate District sitting by designation in the Eighth Appellate District. *Page 228

2016-07-06 06:36:45.204355+00

Sweeney

Plaintiff-appellant Zele Funeral Home, Inc. ("Zele") appeals from the trial court's orders of January 27, 1993, which dismissed Count Three of the complaint, and February 22, 1993, which dismissed defendant-appellee Helena C. Robinson ("Robinson"), guardian of the estates of Robert L. Buttry and Dawn M. Buttry, both minors. For the reasons adduced below, we affirm. A review of the record on appeal indicates that on June 26, 1990, Zele provided the funeral services for Donna M. Buttry in the amount of $4,395.10.1 These funeral services were the subject of an oral contract between Zele and defendant Gaines A. Buttry ("Gaines"), the decedent's husband. Following the funeral, Gaines left the Cleveland area, abandoning his two minor children, Robert L. Buttry and Dawn M. Buttry ("Buttry children"). Robinson, the sister of the decedent, assumed the care of the Buttry children and was appointed as the guardian of the children's estates on November 1, 1990. Subsequent to the appointment of Robinson as guardian, Robinson filed a claim for compensation on behalf of the Buttry children with the Ohio Victims of Crime Compensation Program. On August 17, 1992, the Court of Claims found that the Buttry children qualified as dependents of the decedent and awarded the estates of the Buttry children a total of $50,000. Of this total award, the estate of Robert L. Buttry was awarded an aggregate of $36,559.70 in dependent's economic loss and dependent's replacement services loss reparations, and the estate of Dawn M. Buttry was awarded an aggregate of $13,440.30 in dependent's replacement services loss reparations. The Court of Claims expressly found that Gaines Buttry had incurred funeral expenses in the amount of $4,395.10, but had failed to file a reparations application within the two-year statutory limitations period, thereby barring any claim for such expenses pursuant to R.C.2743.60(A). Zele filed the three-count complaint sub judice on December 1, 1992, naming Robinson (representing the estates of the two minor children) and Gaines as defendants. Counts One and Two sought the cost of the funeral services, plus interest in the amount of $1,033.15, from Gaines based upon an account and oral contract. Count Three alleged that the estates of the Buttry children were unjustly enriched as a result of the reparations awards by the Court of Claims *Page 590 and sought $2,500 (the maximum amount allotted to funeral expenses as a benefit from the Ohio Victims of Crime Program) as damages. On January 4, 1993, Robinson filed a motion to dismiss the complaint, Count Three specifically, pursuant to Civ.R. 12(B)(6). Zele filed a brief in opposition to dismissal on January 20, 1993. This motion to dismiss filed by Robinson was granted on January 22, 1993. Count Three was dismissed on January 27, 1993. On February 25, 1993, Zele voluntarily dismissed Gaines Buttry without prejudice, having failed to locate him for purposes of service. Also on February 25, 1993, Zele filed a notice of appeal from the ruling on the motion to dismiss and was assigned case No. 65136. This notice of appeal, No. 65136, was dismissed on March 2, 1993, for lack of a final order pursuant to R.C. 2505.02. On April 7, 1993, reconsideration was denied in case No. 65136 for failing to comply with R.C. 2505.02 and Civ.R. 54(B). On April 8, 1993, Zele filed a second notice of appeal from the dismissal orders and was assigned case No. 65349. This second notice of appeal was dismissed on April 28, 1993 for failure to comply with Civ.R. 54(B). The trial court modified the earlier dismissal entries on September 13, 1993, by adding the "no just reason for delay" certification pursuant to Civ.R. 54(B). This third appeal was filed on September 23, 1993. One assignment of error is presented for review. "The trial court erred by dismissing both count three and defendant Helena C. Robinson, guardian of the estates, from plaintiff-appellant's complaint pursuant to Civ.R. 12(B)(6)." R.C. 2743.66(D)(1), which deals with an award under the Victims of Crime Program, provides: "An award is not subject to execution, attachment, garnishment, or other process, except that, upon receipt of an award by a claimant: "(1) The part of the award that is for allowable expenseor funeral expense is not exempt from such action by a creditor to the extent that he provided products, services, or accommodations the costs of which are included in the award." (Emphasis added.) In Count Three of the complaint, Zele, in effect, sought to attach the property of the Buttry children to recover a portion of the debt owed by Gaines Buttry for funeral services. There are several problems with this argument. First, the award to the Buttry children was not for the costs of the funeral services, but for dependent's economic loss and replacement services loss. R.C. 2743.66(D)(1) requires that the costs of the funeral expense be included in the award in order for a creditor to attach those costs. Second, Zele is not a creditor *Page 591 with relation to the Buttry children. Rather, Zele is a creditor of Gaines Buttry, the man who engaged the services of Zele. Therefore, Zele cannot claim the benefit of R.C. 2743.66(D)(1), no matter that the claim is couched in terms of a claim of unjust enrichment. Further, Zele's claim of unjust enrichment must fail.2 Although Zele incurred a loss in not being paid for the funeral services, there was no gain on the part of the Buttry children nor was there any causal relationship between the loss and the alleged gain. The children were under no duty to pay for the services provided and were not required to submit a claim for reparation on something they had no duty to pay for during the pendency of their claim with the Court of Claims. Thus, causation is lacking. The children were not awarded any reparations for the funeral services; thus, they did not profit inequitably at Zele's expense. Further, Zele contracted with Gaines Buttry for payment of the services. It is Gaines Buttry who sustained the gain and caused the loss. It is Gaines Buttry from whom Zele must seek payment. It cannot now look to the minor children of the decedent, nonparties to the contract, for payment of the debt only because Gaines Buttry cannot be located and the children, incidental beneficiaries to the contract, have come into some well-deserved financial windfall almost three years after the services were provided. Accordingly, Zele failed to plead a claim of unjust enrichment for which relief may be granted. The assignment is overruled. Judgment affirmed. SPELLACY, P.J., and WEAVER, J., concur. 1 The decedent died on June 22, 1990, as a result of a shooting by an unknown assailant while she was riding in her car on June 21, 1990. 2 The following was stated in Fairfield Ready Mix v. WalnutHills Assoc., Ltd. (1988), 60 Ohio App.3d 1, 3, 572 N.E.2d 114,116, with regard to the equitable remedy of unjust enrichment, which remedy may be applied within the discretion of the trial court: "The doctrine of unjust enrichment is that a person will not be allowed to profit or enrich himself inequitably at another's expense. Freedline v. Cielensky (1961), 115 Ohio App. 138, 20 O.O.2d 238, 184 N.E.2d 433. As ordinarily defined, the concept of unjust enrichment includes not only loss on one side but gain on the other, with a tie of causation between them. 18 Ohio Jurisprudence 3d (1980) 271, Contracts, Section 343." *Page 592

2016-07-06 06:36:36.112781+00

Young

OPINION Defendant-appellant, John W. Stanzak, appeals a decision of the Butler County Court of Common Pleas, Domestic Relations Division, modifying his child support obligation on behalf of his minor children, Regina and Melissa. Appellant and plaintiff-appellee, Claudia Stanzak nka Jefferies, married on August 29, 1980. They divorced on November 15, 1990. At that time, appellee was designated the residential parent of their children. The divorce decree included an agreement from the parties' joint custody plan which provided for the payment of the children's parochial school tuition. Appellant was to pay two-thirds of the tuition, leaving appellee to pay the remaining one-third. On January 14, 1994, by agreement of the parties, the court designated appellant as residential parent. Appellee, who was unemployed at that time, was ordered to pay appellant $20 per week in child support. The court's entry made no mention of the prior agreement regarding payment of tuition. In November 1997, appellee filed a motion to terminate the joint custody plan, designate her as residential parent, and award her child support. Appellee also moved the court to modify the original order regarding payment of parochial school tuition to make appellant solely responsible for the tuition obligation that accrued while he was designated residential parent. Appellee alleged that appellant orally agreed to pay for the girls' entire tuition while he was their residential parent. At the July 23, 1998 hearing before the magistrate, appellant denied the existence of the oral agreement. Appellant testified that he made payments to St. Joseph's School and to Badin High School ("Badin"), but he did not pay the tuition in full. In fact, he claimed he was entitled to reimbursement from appellee for unpaid tuition in the amount of $2,003.66 for the school years 1993-94, 1994-95, and 1995-96. He also sought reimbursement for one-third of the tuition for each child for the 1996-97 school year.1 Although he requested reimbursement for the paid tuition, appellant testified that he wanted appellee to send the money directly to Badin to be applied to the balance due. Appellant also testified that appellee owes him an arrearage of $405.72 for child support incurred during the time he was designated residential parent. He introduced into evidence an affidavit from the Butler County Child Support Enforcement Agency ("BCCSEA") to support his testimony. He introduced another affidavit from *Page 179 BCCSEA stating that he had overpaid $224.64 in child support to appellee as of January 31, 1998. Appellant sought reimbursement from appellee for both the arrearage and overpayment. On July 31, 1998, the magistrate determined that appellant's child support obligation was $152 weekly, or $76 per week per child. The magistrate found that the parties never legally changed their original divorce decree as to the division of the parochial school tuition. Using appellant's calculations, the magistrate found that appellee was responsible for past tuition in the amount of $2,003.66. Appellee was also responsible for one-third of the tuition for the 1996-97 school year for both children. In total, the magistrate determined appellee was responsible for $3,956 in past and present tuition. The magistrate ordered appellant to pay $52 a week of his child support obligation directly to Badin until appellees' outstanding tuition obligation is satisfied. There-after, he was to pay the full amount of the child support directly to appellee. For the 1998-99 school year forward, appellant would continue to be responsible for two-thirds of the tuition and appellee would be responsible for one-third of the tuition. On August 13, 1998, appellant filed objections to the magistrate's decision. On November 18, 1998, the trial court affirmed the magistrate's decision and overruled appellant's objections. Appellant appeals, raising a single assignment of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY FAILING TO REQUIRE THAT THE APPELLEE RE-PAY [SIC] THE FULL AMOUNT OWED TO APPELLANT. In his assignment of error, appellant contends that the trial court abused its discretion "by failing to recognize monies owed" to appellant. Specifically, appellant contends that appellee owes $6,674.24 "directly to" him. Appellant arrived at this total by adding appellee's arrearage of $405.72, his alleged child support credit of $224.64, appellees' portion of past tuition in the sum of $2,003.88 and the sum of $4,040 he asserts is currently due to Badin. An appellate court will not disturb a trial court's decision concerning child support absent an abuse of discretion. Booth v.Booth (1989), 44 Ohio St. 3d 142, 144. "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. The abuse of discretion standard is based upon the principle that a trial court must have the discretion in domestic relations matters to do what is equitable given the facts and circumstances of each case. Booth, 44 Ohio St.3d at 144. *Page 180 Although it is not entirely clear, it appears appellant challenges the magistrate's determination that appellee is responsible for the parochial school tuition in the amount of $3,956. Using appellant's calculations, the magistrate agreed that appellee is responsible for past tuition in the amount of $2,003.66. The tuition for each child at Badin for 1996-97 is $2,930, for a total of $5,860. Appellee's total share of the 1996-97 tuition equals $1,953.33. Thus, appellee's total responsibility for the children's tuition obligation through the 1996-97 school year equals $3,956.99.2 For the 1998-99 school year forward, appellant would be responsible for two-thirds of the tuition, while appellee would be responsible for one-third. We find no error with respect to these calculations. Appellant further argues that the trial court abused its discretion by failing to recognize he was entitled to reimbursement or a "credit" for tuition he paid. Alternatively, appellant contends the magistrate erred by requiring him to pay $52 of his weekly child support obligation to Badin to offset appellee's tuition obligation. We disagree with both contentions. Although appellant testified that the balance owed to Badin was $4,040, the magistrate correctly determined from the exhibits offered by appellant that the parties owed a balance of approximately $4,600 to Badin prior to the 1997-98 school year. Appellee's obligation in the amount of $3,956 is less than the outstanding tuition bill, so the magistrate found she should pay this amount to Badin. To date, appellant has not fulfilled his own obligation to pay for two-thirds of the girls' total tuition. Thus, appellant is not entitled to any "credit" or "reimbursement" from appellee. Moreover, appellant provides no support for his assertion that the magistrate abused its discretion by ordering a portion of his child support obligation to be paid to Badin to ensure that the tuition is paid. Alternatively, appellant would pay appellee a larger sum in child support, part of which she would then be required to redirect to Badin. There is no appreciable difference between the two approaches. In fact, appellant testified at the hearing that he wanted to be sure appellee paid her portion of the tuition to Badin: I don't want it, I don't want the money. I want it to go to the school because my whole complaint in this whole thing since the beginning has been to give it to the school, don't give it to me, okay * * * [I]f the Court would order that that is given to the school and I not receive a dime or if any money is owed to me pay it to the school, I would be — I would be all for it. *Page 181 Therefore, we find no abuse of discretion with respect to the magistrate's determination of the parties' respective tuition obligations or the magistrate's decision to order appellant to direct a portion of his child support obligation directly to Badin. In fact, the magistrate's order comports with appellant's wishes as he expressed them at the hearing. The trial court did not abuse its discretion by adopting the magistrate's decision. Appellant also argues that the trial court abused its discretion by failing to consider the affidavits he produced from BCCSEA illustrating his overpayment of child support and appellee's arrearage. A trial court that enters a decree for child support has continuing jurisdiction over matters relating to child support.Henry v. Daughtery (Feb. 4, 1991), Clermont App. No. CA90-06-064, unreported, at 4. The trial court has full power to enforce its decree, to modify it as the parties' changing circumstances require, and to order the payment of support arrearages. Id.;Gilford v. Wurster (1983), 24 Ohio App. 3d 77, 78. "A court may order an ex-spouse's current support obligations to be set off against the other ex-spouse's arrearages." Krause v. Krause (1987), 35 Ohio App. 3d 18, paragraph one of the syllabus. The concept of an offset for arrearages is reasonable and should not be summarily dismissed when it is appropriate. Gallo v. Gallo (Dec. 21, 1990), Lake App. No. 90-L14-013, unreported. Further, a domestic relations court also has continuing jurisdiction to enforce a prior child support order by reducing an overpayment of child support to a judgment or granting a credit in favor of the obligor. Stimburys v. Stimburys (Jan. 21, 1993), Cuyahoga App. No. 63428, unreported; Pearson v. Pearson (Jan. 18, 1991), Erie App. No. E-90-12, unreported. Appellant introduced two affidavits from BCCSEA. One indicated that appellee owed $405.62 in arrearages; the other stated that appellant overpaid his prior child support obligation by $224.64. Appellee introduced no evidence to the contrary. Appellant is entitled to offset appellee's arrearage and his overpayment against his current child support obligation. The magistrate and trial court erred by failing to address appellant's affidavits of credit and arrearage. Pursuant to App.R. 12(B),3 we enter judgment in favor *Page 182 of appellant in the amount of $630.26, to be offset against appellant's child support obligation at a rate of $50 biweekly, or $100 a month until satisfied. Accordingly, appellant's assignment of error is sustained in part and overruled in part. Judgment affirmed in part and reversed in part. POWELL, P.J., and WALSH, J., concur. 1 The record indicates that tuition for each child for the 1996-97 school year at Badin was $2,930. 2 The magistrate's decision incorrectly states that appellee's share for each child is $953. However, the magistrate correctly determined that appellee's total tuition obligation equals $3,956. The ninety-nine cent error in the final total isde minimis. 3 App.R. 12(B) states in part: When the court of appeals determines that the trial court committed error prejudicial to the appellant and that the appellant is entitled to have judgment or final order rendered in his favor as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and render the judgment or final order that the trial court should have rendered, or remand the cause to the court with instructions to render such judgment or final order.

2016-07-06 06:36:36.044916+00

DECISION. The plaintiff-appellant, Kenwood Lincoln-Mercury, Inc. ("Kenwood"), and the defendant-appellee, DaimlerChrysler Corporation ("Chrysler"), were parties to a Sales and Service Agreement ("SSA") that, inter alia, required Kenwood to make warranty repairs to Chrysler vehicles, for which Chrysler would pay Kenwood. Under the terms of the SSA, Kenwood was required to follow Chrysler's policies and procedures when submitting its claims for these payments, and the payments were contingent upon and subject to an audit by Chrysler and, possibly, to a "charge-back" if the audit demonstrated irregularities in any claim. In the time period pertinent to the issues in the controversy subjudice, January 1, 1996, to October 31, 1997, Kenwood submitted and Chrysler paid Kenwood a total of $1,219,167 upon 7,238 warranty claims. Beginning in November 1997, Chrysler audited the claims submitted by Kenwood during those twenty-two months and, on March 10, 1998, charged back to Kenwood $32,951. Kenwood concedes that the SSA authorized Chrysler to conduct such an audit and to charge Kenwood for claims disallowed as a result of the inspection of Kenwood's books and records regarding warranty service or allied claims. Kenwood does not dispute that Chrysler's policy manual expressly provided that all payments made to a dealer for warranty claims were tentative and subject to an audit covering any length of time Chrysler deemed appropriate. Nevertheless, on July 23, 1999, Kenwood filed the action from which this appeal derives. In its first cause of action, Kenwood sought to recover double the amount of its actual damages ($32,951), court costs and attorney fees, upon the following allegation: By "charging back" plaintiff $32,951.00 in warranty claims which Chrysler had already approved and paid, Chrysler violated O.R.C. § 4517.59 which governs a franchisor's conduct toward its franchisees. Specifically, the subsections of § 4517.59 which Chrysler violated include, but are not limited to, O.R.C. § 4517.59(H), (I), and (J). The second cause of action asserted a claim for unjust enrichment, but was withdrawn by Kenwood in the trial court and is not a part of this appeal. A trial to the bench began on August 28, 2000. In his opening statement, counsel for Kenwood crystallized the issues to be determined in these words: There [are] two primary legal contentions that the plaintiff has in this action, Your Honor. First off, that Chrysler didn't have the right to conduct this audit after a 45[-]day period had elapsed and that is based on [R.C.] 4517.59, which is in front of you, and even if Chrysler did have that right, they still had to conduct their audit and the subsequent appeal proceedings in good faith, which they failed to do. The trial concluded on August 31. After both parties had rested their cases, Chrysler moved to dismiss all of Kenwood's claims. The court granted that motion with respect to Kenwood's claim based on R.C. 4517.59(I), holding that Chrysler had an unequivocal right under the SSA to conduct the audit, but denied the motion with respect to Kenwood's claim under R.C. 4517.59(A), which questioned Chrysler's good faith during the audit. On October 13, 2000, the court addressed a letter of opinion to counsel, setting forth the factual and legal conclusions at which it had arrived. The court initially restated its finding that, "beyond question," Chrysler had the right to audit Kenwood "with regard to warranty work." Ultimately, the court held that the audit had been conducted in good faith, based upon its conclusion that "no part of [R.C.] 4517.59 et seq. [had been] violated," and that the "plaintiff [had] simply failed to prove its case." Accordingly, on November 6, 2000, the court journalized its entry finding in Chrysler's favor on all claims in the complaint and dismissing the complaint with prejudice. Kenwood's first assignment of error, that the court erred in dismissing the claim under R.C. 4517.59(I), is advanced on this contention: [R.C.] 4517.59(I) does not permit an automobile manufacturer to "conditionally approve" warranty claims and then audit and charge-back its dealers for previously paid warranty claims if such charge-backs occur more than forty-five days after the claim was submitted to and approved by the manufacturer. In support of this contention, Kenwood quotes what, in its view, are the relevant parts of R.C. 4517.59: Notwithstanding the terms, provisions, or conditions of any agreement, franchise, or waiver, no franchisor shall: * * * (I) Fail to approve or disapprove any warranty or recall claim submitted by a franchisee within forty-five days after receipt from the franchisee. If a claim is not approved, the franchisor shall immediately so notify in writing the franchisee who submitted the claim and shall include in the notice the specific grounds upon which the disapproval is based. [Emphasis added by Kenwood.] We hold that the first assignment is not well taken. In reaching this conclusion, we rely, as the trial court did, upon Kenwood's concession that Chrysler had the contractual right to audit Kenwood's claims for warranty work. The wording of the pertinent parts of R.C. 4517.59(I) makes it clear the forty-five-day provision applies to the approval or disapproval of such a claim initially. The record before us demonstrates that Kenwood transmitted its claims electronically, utilizing a system maintained by Chrysler known as "DIAL," and that Chrysler responded in the same way, usually on the day after reception. The parties agreed in the SSA that an audit could be made, and such an audit was neither proscribed nor time-limited by R.C. 4517.59. Resultantly, it cannot be said that the court's holdings were not fully supported by both the facts and the law. Kenwood submits that, "if Chrysler [had] immediately notified Kenwood that there was a problem with any of the practices for which Kenwood was eventually charged-back * * * instead of conditionally approving [such] claims, Kenwood would have ceased such practices and * * * avoided * * * charge-backs." While this submission makes pragmatic sense, it is not tenable upon the facts and law applicable here. Thus, upon our determination that the trial court did not err in dismissing the cause of action predicated on R.C. 4517.59(I), we overrule the first assignment of error. The second assignment of error raises what we perceive to be the issue upon which this case actually pivots. It is as follows: The trial court erred in finding that Chrysler did not violate its duty of good faith to Kenwood. Kenwood identified good faith as a salient, perhaps the salient, issue in its opening statement. It now argues that, under R.C. 4517.59(A), a manufacturer (Chrysler) cannot place the burden of proof to verify warranty claims upon a dealer (Kenwood) or fail to follow its own policies and procedures in the course of auditing a dealer's documentation of a warranty claim. Chrysler acknowledges that R.C. 4517.59(A) mandates the exercise of good faith in these terms: Notwithstanding the terms, provisions, or conditions of any agreement, franchise, or waiver, no franchisor shall: (A) In acting or purporting to act under the terms, provisions, or conditions of a franchise or in terminating, canceling, or failing to renew a franchise, fail to act in good faith * * * . And both Kenwood and Chrysler rely upon the definition of "good faith" set forth in R.C. 4517.01(BB): "Good faith" means honesty in the conduct or transaction concerned and the observance of reasonable commercial standards of fair dealing in the trade as is defined in division (S) of section 1301.01 of the Revised Code, including, but not limited to, the duty to act in a fair and equitable manner so as to guarantee freedom from coercion, intimidation, or threats of coercion or intimidation * * * . Kenwood stresses that Chrysler's statutory duty was significant, because "franchise agreements between a manufacturer and a dealer are not the result of an equal bargaining process." Kenwood asserts that "Chrysler's warranty policies [were] so onerous as to be facially violative of Ohio law." Moreover, Kenwood argues, "the evidence, at trial * * * showed that Chrysler actually ignored its own policies." Indirectly, this assignment, as Kenwood argues it, raises, in part, what the Ohio Automobile Dealers Association sets forth plainly in itsamicus curiae brief. As a friend of this court, the association has presented as an "assignment of error" the assertion that the trial court erred in finding that Kenwood had failed to prove a violation of R.C.4517.59 et seq.1 The underpinning argument is that the SSA was "an adhesion contract" that had to be construed in Kenwood's favor, because R.C. 4517.59(I) did not grant Chrysler, as the manufacturer, an "unlimited right" to audit warranty claims. As this record stands, we cannot and do not rule on the question whether the SSA was a contract of adhesion, because that issue was never raised below. Our review must be confined completely by the state of the record. See App.R. 12(A)(1)(b); State v. Ishmail (1978), 54 Ohio St. 2d 402,377 N.E.2d 500, 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."). However "onerous" may have been the burdens placed upon Kenwood by the SSA, we find nothing in the record to refute the conclusion that the SSA was entered into freely by parties possessing equal business experience and equal bargaining power. The aspect of the second assignment that we do address is the question whether Chrysler acted in good faith when conducting its audit. Initially, we note that neither of Kenwood's assignments raises explicitly the question whether the court's findings on the issue of good faith were contrary to the manifest weight of the evidence. Ordinarily, the existence of good faith is a question of fact, but, in the end, the factual determinations must satisfy the statutory definition of the term provided in R.C. 4517.01(BB), which the parties agree is applicable. Kenwood admitted at trial that Chrysler was contractually entitled to conduct the audit, and the court found in the letter of opinion that "nothing in the Ohio Revised Code prohibits the type of audit performed in this case." Kenwood obligated itself under the SSA not to use parts not authorized by Chrysler in performing repairs under Chrysler's warranties. Chrysler's brand name for its parts was, and is, Mopar. And, without question, Kenwood maintained an inventory that included a variety of such parts. Kenwood's protests about Chrysler's conduct during the audit began with Chrysler's assumption that, at the beginning of the audit period, Kenwood had "zero parts in inventory." Consequently, Chrysler's method was, in Kenwood's words, to "proceed forward by counting the parts purchased by Kenwood and subtracting Kenwood's usages of Chrysler-approved parts." Chrysler responded to this protest by adducing evidence that Kenwood had failed to keep its inventory records; that some of the parts involved had not been manufactured prior to 1994; and that Kenwood had admitted that it had purchased and had used in its warranty repairs freon, cleaning agents, and lubricants obtained from sources other than Chrysler. In its letter of opinion, the trial court stated its resolution of Kenwood's lack-of-good-faith claim in these words: I * * * find that the provisions placing the burden of proof in an audit on the dealer is not unreasonable or in bad faith nor does it indicate a lack of good faith. The sound business reason for this is that the dealer, not the manufacturer, has the paperwork to justify the requested warranty reimbursement. The dealer has the customer contact. The dealer is the one who orders the parts and maintains an inventory. It is reasonable to audit a dealer to make sure dealers are properly performing under the terms of the agreement. With regard to warranty repairs and inventory maintenance, it is reasonable to place the burden of proof as the contract does on the dealer since it has the documents and it is the party seeking the financial reimbursement. The defendant's policies clearly state that if the dealer conducts a physical parts inventory, then that inventory should be retained. Here, the plaintiff performed such an inventory but then threw it away. When the defendant performed its audit, the records of inventory no longer existed. The plaintiff, unable to produce an inventory count and unwilling or unable to reconstruct the inventory based on existing records, left the defendant little choice but to adopt the inventory method it did. It was an imperfect solution that was caused by the plaintiff's actions. To hold otherwise would permit a dealer to frustrate any attempt by a manufacturer to conduct an audit. Placing the inventory at zero on 1-01-94 was not as inaccurate as initially portrayed since many of the parts for which chargebacks were made were not manufactured until after that date. I find that the defendant followed its own policies concerning the conduct of the audit. These policies were clearly communicated to the plaintiff well in advance of the audit. These policies g[a]ve the defendant considerable leeway in the conduct of the audit. There is within the record evidence that, when given credence, supports the trial court's factual determinations. By its own admission, Kenwood did not retain the "count sheets" and other inventory records that might have been vital to the reconstruction involved. Resultantly, the method adopted by Chrysler was, as the court observed, an "imperfect solution caused by the plaintiff [Kenwood]." It is indisputable that on the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. See State v. DeHass (1967), 10 Ohio St. 2d 230, 227 N.E.2d 212, paragraph one of the syllabus. Upon review, it is axiomatic that, in a civil case, judgments supported by some competent, credible evidence will not be reversed as being against the manifest weight of the evidence. See C.E. Morris Co.v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, 376 N.E.2d 578. In sum, the second assignment of error is without merit, and is overruled, because the trial court's findings were supported by substantial, probative evidence to which the court gave credence, and its conclusions were not contrary to law. Therefore, the judgment of the Hamilton County Court of Common Pleas is affirmed. Gorman, P.J., Winkler and Shannon, JJ. Raymond E. Shannon, retired, from the First Appellate District, sitting by assignment. Please Note: The court has placed of record its own entry in this case on the date of the release of this Decision. 1 Because it is not a party to this action, let alone an "aggrieved party," the association lacks standing to present an assignment of error to which this court must respond. See App.R. 12; Ohio ContractCarriers Assn., Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160,42 N.E.2d 758, syllabus ("Appeal lies only on behalf of a party aggrieved by the final order appealed from.").

2016-07-06 06:36:44.885329+00

This Court, sua sponte, dismisses the above-captioned appeal for failure to prosecute. See Judgment Entry.

2016-07-06 06:36:45.361608+00

OPINION Defendant-appellant Suresh Gupta appeals from a small claims judgment in the amount of $1,134.00, together with interest and costs, awarded against him and in favor of plaintiff-appellee Robert L. Moreland, doing business as BD Roofing Siding. The entire text of Gupta's brief is as follows: Appeal is based on the argument that plaintiff was not paid due to substandard work and for failure to modify amount due based on said substandard work. Work was never finished. 1. Plaintiff ordered too many roofing tiles and left them sitting on property. A credit is due for the unused roofing tiles. 2. Plaintiff based contract on installing 50 squares of roofing tiles but the job only required 40 squares. A credit is due for the difference between estimate and actual. 3. Plaintiff gave incorrect estimate of linear footage for gutter and down spout resulting in charges greater than the industry average of $2.00 per linear foot. A credit is due for the difference between estimate and actual. Substantial portion of house did not have gutter and down spout installed per contract. 4. Plaintiff improperly installed flat roof that now leaks. Plaintiff is blaming the carpenter when Plaintiff should have installed something to make water drain away from house instead of toward it. Repairs must be made or paid for by Plaintiff. Defendant attempted to have charges modified based upon the substandard work described above in 1 through 4. However, Plaintiff was unreasonable and would not alter charges, opting instead to file in small claims court. This small claim was referred to a magistrate. The record reflects that the claim was heard on November 14, 2000, that Moreland was present, that Gupta was not present, and that the amount of Moreland's damages were determined. By entry dated November 15, 2000, the magistrate entered a decision awarding Moreland $1,134.00, plus interest and costs. This decision was adopted as the judgment of the court in an entry filed November 16, 2000. The record does not reflect that Gupta ever filed any objections to the magistrate's decision, pursuant to Civ.R. 53(E)(3). Although Moreland's brief suggests that there may have been some dispute concerning whether Gupta was ever served with process, the record reflects that the summons and complaint was sent to Gupta at the address he is showing on his appellate brief, by certified mail, return receipt requested, and was returned unclaimed. The record further reflects that the summons and complaint was then served by ordinary mail after having been returned unclaimed. The record reflects, therefore, that service was made upon Gupta in accordance with Civ.R. 4.6(D). Because Gupta did not object to the magistrate's decision, he may not assign as error on appeal the trial court's adoption of any finding of fact or conclusion of law by the magistrate. Civ.R. 53(E)(3)(b). We have previously held that we may find plain error, notwithstanding an appellant's failure to have objected to a magistrate's decision that has been adopted as the judgment of the trial court. In this context, plain error is error "seriously affecting basic fairness, integrity, or public reputation of the judicial process." R.G. Real Estate Holding, Inc. v. A.J. Wagner (April 24, 1998), Montgomery App. No. 16737, unreported. We have reviewed the record, and we find no plain error. There is no transcript, so we do not know what evidence Moreland may have presented to support the award of damages. In the face of a silent record, we presume that evidence was presented to support the award. In his brief, Gupta appears to be making a factual argument that Moreland was not entitled to payment for work done, because it was substandard, and was not completed. In view of Gupta's failure to appear for trial, the magistrate did not err in finding for Moreland on the issue of liability. The judgment of the trial court is Affirmed. __________________ FAIN, J. BROGAN and GRADY, JJ., concur.

2016-07-06 06:36:36.20504+00

{¶ 1} Defendant-appellant, Jermaine Rosenburg, appeals the decision of the Cuyahoga County Court of Common Pleas that classified him as a sexual predator. While acknowledging many of the inconsistencies in the existing sexual predator classification process raised by Rosenburg, we nevertheless find no error in the proceedings below and affirm the trial court's classification. {¶ 2} Rosenburg was charged with one count of rape, one count of kidnapping with a sexual motivation specification, and two counts of sexual battery. He pled guilty to one count of sexual battery, a felony of the third degree, and the remaining counts were nolled. Rosenburg was sentenced to three years in prison and, after a House Bill 180 hearing, was classified as a sexual predator. {¶ 3} Rosenburg appeals, advancing one assignment of error for our review, which states the following: {¶ 4} "The trial court erred in concluding that there was clear and convincing evidence that defendant would commit a sexual offense in the future, and thus designating the defendant as a sexual predator." {¶ 5} Rosenburg argues most of the criteria set forth in R.C.2950.09(B) does not apply to him. Specifically, he complains that the victim was twenty-two years of age, that the victim and Rosenburg voluntarily used drugs and alcohol, and that there was no pattern of abuse. Rosenburg also points out that he has no prior *Page 4 sexual offenses. Finally, he argues that the court's finding of cruelty is inaccurate because it was based on the force used during the crime. {¶ 6} 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. Thus, at the sexual offender classification hearing, in order for the offender to be designated a sexual predator, the state must prove by clear and convincing evidence that the offender has been convicted of a sexually oriented offense and that the offender is likely to engage in the future in one or more sexually oriented offenses.State v. Eppinger, 91 Ohio St. 3d 158, 163, 2001-Ohio-247, citing R.C.2950.01(E) and 2950.09(B)(3). "Not only must it be probable (more likely than not) that such a future offense will occur, but such likelihood must be proven by the heightened standard of clear and convincing evidence." State v. Arthur (Aug. 16, 2001), Cuyahoga App. No. 77770. In order to satisfy this standard, "there must be something of substance from which one could draw a logical conclusion concerning the likelihood of recidivism to reach a firm belief or conviction that defendant is likely to commit a sexually oriented offense in the future." Id. at 10. {¶ 7} In determining whether a sex offender is a sexual predator, a judge shall consider all relevant factors to determine whether the individual is likely to engage in future sex offenses. See R.C.2950.09(B)(3). These factors include, but are not limited to, the offender's age and prior criminal record; the age of the victim; whether *Page 5 the sex offense involved multiple victims; whether the offender used drugs or alcohol to impair the victim of the sex offense; if the offender has previously been convicted of or pleaded guilty to any criminal offense, whether the offender completed a sentence for any conviction and, if a prior conviction was for a sex offense, whether the offender participated in any available program for sex offenders; whether the offender demonstrated a pattern of abuse or displayed cruelty toward the victim; any mental disease or disability of the offender and any other behavioral characteristics that contribute to the sex offender's conduct. R.C. 2950.09(B)(3)(a) through (j). {¶ 8} The trial court is to consider the statutory factors listed in R.C. 2950.09(B)(3), and should discuss on the record the particular evidence and factors upon which it relies in making its determination regarding the likelihood of recidivism. State v. Thompson,92 Ohio St. 3d 584, 588, 2001-Ohio-1288; see, also, State v. Othberg, Cuyahoga App. No. 83342, 2004-Ohio-6103, at ¶ 18. Nevertheless, the trial court is not required to `"tally up or list the statutory factors in any particular fashion.'" State v. Ford, Cuyahoga App. No. 83683, 2004-Ohio-3293, at ¶ 7, quoting State v. Clayton, Cuyahoga App. No. 81976, 2003-Ohio-3375. Moreover, R.C. 2950.09(B) does not require that each factor be met; it simply requires the trial court to consider those factors that are relevant. State v. Grimes (2001), 143 Ohio App. 3d 86, 89. *Page 6 {¶ 9} On appeal, this court examines the record to determine whether sufficient evidence exists to satisfy the requisite degree of proof.State v. Schiebel (1990), 55 Ohio St. 3d 71, 74. {¶ 10} In this case, the trial court addressed each of the statutory factors listed in R.C. 2950.09(B)(3) and whether it applied to Rosenburg. Specifically applicable to Rosenburg was that he had a lengthy juvenile and adult record, that he was mildly mentally retarded with an IQ of 58, that he and the victim had used marijuana and drank whiskey, that he displayed cruelty toward the victim, that he had used "PCP," that he had met the victim only that night, that he denied committing the sexual offense and showed no remorse, and finally, that the STATIC-99 indicated that he had a moderate-high risk of recidivism. {¶ 11} The record revealed that the victim invited Rosenburg into her home at 3:30 a.m. The victim and Rosenburg voluntarily consumed alcoholic beverages and smoked marijuana. At some point, the victim fell asleep on the couch. When she awoke, her pants and her panties were off and Rosenburg was on top of her, holding her down by her wrists and covering her mouth. The victim stated that she had scratches on her right wrist, neck, and right knee. Finally, the victim stated that the assault occurred in her living room, where her school-aged son was sleeping on the floor, and that he now has nightmares and is doing poorly in school. {¶ 12} We note that "[a] trial court may find an offender to be a sexual predator `even if only one or two statutory factors arepresent, so long as the totality of the *Page 7 relevant circumstances provides clear and convincing evidence that the offender is likely to commit a future sexually-oriented offense.'"State v. Randall (2001), 141 Ohio App. 3d 160, 166 (emphasis added), quoting State v. Clutter (Jan. 28, 2000), Washington App. No. 99CA19; see, also, State v. Bagnall, Lake App. No. 2005-L-029, 2006-Ohio-870, at ¶ 9; State v. Porter, Lake App. No. 2005-L-016, 2006-Ohio-3768. In this case, several statutory factors are present; furthermore, Rosenburg has continued to deny any wrongdoing and has shown no remorse for the crime. His attitude toward his own actions weighs in favor of a sexual predator status. See State v. Woodruff, Cuyahoga App. No. 85026, 2005-Ohio-4808;State v. Thomas (Aug. 23, 2001), Franklin App. No. 00AP-1242; State v.Kendrick, (Sept. 30, 1999), Franklin App. No. 98AP-1305; State v.Ayers, (Sept. 15, 1998), Franklin App. No. 97APA11-1556; see, also,State v. Condron (Mar. 27, 1998), Montgomery App. No. 16430; State v.Hill, (May 21, 1999), Montgomery App. No. 17246. {¶ 13} Rosenburg's counsel raises several compelling and well-reasoned arguments that center on the view that the current classification process results in the inconsistent classification of similar offenders. {¶ 14} We first note that Rosenburg correctly points out the inherent fallibility of the STATIC-99 test as a true predictor of future sexual conduct. This court has previously referenced this concern in State v.Ellison, Cuyahoga App. No. 78256, 2002-Ohio-4024, where we noted in part: *Page 8 "The utility of the STATIC-99 evaluation as a diagnostic tool for individual risk assessment is open to question. The evaluation merely performs an actuarial assessment of an offender's chances of reoffending. See State v. Colpetzer, Cuyahoga App. No. 79983, 2002 Ohio 967. While actuarial risk assessments are said to outperform clinical risk assessments, actuarial assessments do not, and cannot, purport to make a prediction of a particular offender's future conduct. In fact, the use of an actuarial assessment could arguably be at odds with Ohio's statutory scheme. R.C. 2950.01(E) and R.C. 2950.09(B) require a determination that the offender is likely to engage in the future in one or more sexually oriented offenses. This is an individualized determination for a particular offender. The STATIC-99 cannot purport to make an individualized assessment of future conduct any more than a life expectancy table can provide a accurate prediction of a particular individual's longevity." {¶ 15} Nevertheless, the Supreme Court of Ohio has recognized that the use of experts may assist the trial court in determining whether the offender is likely to engage in the future in one or more sexually oriented offenses. State v. Eppinger, 91 Ohio St.3d at 163. Ultimately, in these determinations, we believe that the best predictor of future conduct is past behavior. {¶ 16} Rosenburg also questions the trial court's finding of cruelty based on the use of force, which was an element of the crime. Indeed, Rosenburg raises a valid issue, as the use of force alone may not automatically signify cruelty, but the existence of force does not preclude a trial court from finding that cruelty occurred. The trial court did so in this instance. {¶ 17} Rosenburg also points out that his record does not include sexual offenses other than the conviction in the underlying case. Again, while Rosenburg *Page 9 argues the standard should be higher for a sexual predator classification, the statute does not require anything more. {¶ 18} Although Rosenburg makes a compelling case that the existing sexual predator classification process can potentially result in dissimilar treatment of similar offenders, this alone does not invalidate the trial court's determination that Rosenburg is likely to reoffend. {¶ 19} Significantly, the record reflects that Rosenburg now denies committing the sexual offense that he previously pled guilty to and shows no remorse for the crime. We recognize that an individual may plead guilty to an offense for a variety of reasons during the criminal process, but here, in the civil classification process, some of those considerations are removed. We have long recognized that a trial court may indeed consider, coupled with other factors, whether an offender has acknowledged and recognizes his past conduct as being wrong in determining whether to label an offender a sexual predator. This fact supports the trial court's predator determination. {¶ 20} Therefore, we find that there was sufficient evidence in the record to find that Rosenburg is a sexual predator. Accordingly, Rosenburg's sole assignment of error is overruled. {¶ 21} Although we overrule Rosenburg's assignment of error, we do acknowledge the potential danger of "overclassifying" all sexual offenders as *Page 10 predators. The risk that the pool of offenders so labeled will become so large as to dilute the identity of those who pose the greatest risk to the public is indeed real. 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. 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 JAMES J. SWEENEY, J., CONCUR *Page 1

2016-07-06 06:36:36.233371+00

OPINION {¶ 1} Glen Smith appeals from his conviction in the Fairborn Municipal Court of operating a motor vehicle while under the influence of alcohol. He had been convicted twice before in the previous six years. *Page 2 {¶ 2} Smith was charged on December 18, 2007, and he entered his guilty plea to the charge on April 21, 2008. The court sentenced Smith to a year in jail with 180 days suspended, three years license suspension, and forfeiture of his automobile. On April 30, 2008, Smith moved to withdraw his guilty plea because he claimed his lawyer promised that he would receive probation if he entered the guilty plea. {¶ 3} Smith testified at the motions hearing that he did not believe he was under the influence of alcohol when he was stopped by the Ohio State Trooper. Smith testified that he was recently retired from the United States Air Force because of a medical disability, to-wit, hypomanic bipolar disorder. He testified he hired a lawyer, David Grieshop, who advised him to enter a 31-day in-patient program at the Veterans Administration Facility and the judge would give him credit for completing the program and thus avoid any jail time. (Tr. 9.) Smith testified he learned from Grieshop on the day of sentencing that he would not receive credit for the Veterans Administration program but would in fact be incarcerated. Smith testified he told Grieshop he wanted to go to trial because he could not afford to be convicted and sent to jail because he would lose his job and his home. Smith testified Grieshop told him if he went to trial, "I would lose and I would get a year in jail." (Tr. 12.) On cross-examination, Smith said he recalled some of what the judge explained to him at the time of his plea but was mostly in shock because of what Grieshop revealed to him just prior to the plea. (Tr. 19.) {¶ 4} At the conclusion of Smith's testimony, the trial judge stated she would take the matter under advisement and review the transcript of the plea hearing. After reviewing it, the trial court found that Smith had failed to meet his burden of proving that it would be manifestly unjust to deny him an opportunity to withdraw his former guilty *Page 3 plea in this matter. The trial judge noted she had reviewed with Smith the rights he was waiving by entering his guilty plea and the consequences of his doing so. She noted that Smith told the court he was satisfied with the representation he had received from his counsel, and no one was forcing him to enter his plea. She noted he admitted he was wrong when he chose to drink and drive. She noted he admitted he knew before entering the guilty plea he would likely receive a six-month sentence. {¶ 5} In a single assignment of error, Smith argues that the trial court abused its discretion in denying his motion. He contends that he received the ineffective assistance of counsel when his counsel misadvised him of the sentence he would receive and therefore he could not enter a free and voluntary plea when informed that his counsel's advice was mistaken. {¶ 6} The State, for its part, argues that the record demonstrates that Smith knew what sentence would be imposed by the court when he entered his plea and no one forced him to change his plea to guilty. {¶ 7} Smith argues the trial court erred in overruling his motion to withdraw his guilty plea pursuant to Crim. R. 32.1. We have the authority to review a trial court's denial of a post-sentence motion to withdraw a guilty plea using an abuse of discretion standard. State v. Blatnik (1984), 17 Ohio App. 3d 201, 478 N.E.2d 1016, 1019. State v. Amison (1965), 2 Ohio App. 2d 390, 208 N.E.2d 769. "The term `abuse of discretion' connotes more than an error or law of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable."Blatnik, supra, at 1019 citing Blakemore v. Blakemore (1983),5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 {¶ 8} The burden rests with Defendant-Appellant to meet the requisite standard, *Page 4 manifest injustice, for withdrawal of a guilty plea subsequent to sentencing. State v. Smith (1977), 49 Ohio St. 2d 261, 361 N.E.2d 1342. To rise to the level of manifest injustice the Defendant must prove "a showing of extraordinary circumstances." State v. Hartzell (August 20, 1999), Montgomery App. No. 17499, citing State v. Smith, supra. This court has explained, "a `manifest injustice' comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her." Id. At 2. See also State v. Grigsby, Greene App. No. 02CA16, 2003-Ohio-2823, at ¶ 19. "A motion to withdraw a plea of guilty or no contest is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by the trial court." Grigsby at ¶ 19. Further, the Supreme Court has instructed that the post-sentence withdrawal of a guilty plea should only be permitted in extraordinary cases and the "standard rests upon practical considerations important to the proper administration of justice, and seeks to avoid the possibility of a defendant pleading guilty to test the weight of potential punishment."Smith, supra, at 264. {¶ 9} Smith cites a federal appellate case in support of his assignment. Julian v. Bartley (7th Cir. 2007),495 F.3d 487. In that case the Seventh Circuit held that Julian, who was misadvised by his counsel that he "couldn't get anything more than 30" if he pleaded guilty to robbery when the defendant faced 60 years based on his prior armed robbery conviction, was denied the effective assistance of counsel guaranteed him by the Sixth Amendment. The court noted that although a mistaken prediction by counsel is not sufficient to show deficient performance, in some cases it may be such a gross *Page 5 mischaracterization that it provides a "strong indication of constitutionally deficient performance," citing United States v.Martinez (7th Cir. 1999), 169 F.3d 1049. {¶ 10} We have reviewed the record of Smith's plea. The court carefully advised Smith of the consequences of his guilty plea. Smith was asked by the court if he was satisfied with his representation by Mr. Grieshop. He replied that he was. (Tr. 4.) He denied that anyone was forcing him to enter his plea. Smith apologized to the court for the offense. He explained that he had been sober for four years but had recently become depressed as a result of a bipolar disorder. He admitted he had made a bad choice by drinking the night of his arrest. He informed the court he had received help through the Veterans Administration. He expressed a willingness to go into the Greene Leaf Program in a secure facility but also expressed concern he would lose his job and his home. The court then imposed the 180-day sentence. {¶ 11} It is noteworthy that Mr. Grieshop did not testify. In any event, Smith knew before he entered his plea that his stay in the Veterans Administration program would not prevent the court from imposing a sentence up to a year in jail. He never informed the court of Grieshop's advice to him and he indicated he was satisfied with Grieshop's representation. The record discloses that Smith entered a knowing and voluntary plea to the charge. He has consequently failed to demonstrate that it was manifestly unjust for the court to have denied his motion to vacate his plea. The court did not abuse its discretion in denying his motion. The assignment of error is Overruled. {¶ 12} The judgment of the trial court is Affirmed. DONOVAN, P.J., and GRADY, J., concur. Copies mailed to: Betsy A. Deeds Jon Paul Rion Hon. Beth W. Root *Page 1

2016-07-06 06:36:36.270774+00

OPINION Defendant, Lawrence D. Kreuzer, appeals from orders of the court of common pleas, domestic relations division, denying Kreuzer's motion to modify his child support obligation and finding an arrearage in support owed by Kreuzer in the amount of $21,780.27. The two orders which the court entered were the product of proceedings which this court had mandated in our determination of a prior appeal. Kreuzer v. Kreuzer (Sept. 4, 1998), Greene App. No. 94-CA-141, unreported. Kreuzer was serving a term of incarceration when our decision was rendered. The trial court ordered a hearing on April 28, 1999 on the issues it was required by our mandate to determine. Kreuzer moved to continue the hearing until after August 20, 1999, when he would be released from incarceration. The court granted the motion, but it continued its hearing only until June 11, 1999. That hearing was subsequently continued until September 20, 1999. On September 10, 1999, Attorney Richard A. Nystrom filed his notice of appearance as Kreuzer's counsel and asked the court for a continuance to prepare his case. The motion was heard by the court and denied at the commencement of the September 20, 2000 proceeding. Attorney Nystrom represented Kreuzer in that proceeding. At its conclusion, he moved for leave to withdraw stating: "I have no ability to effectively communicate with Mr. Kreuzer." (T. 161). The court granted the motion. On October 13, 1999, the court denied Kreuzer's motion to modify his support obligation. The court also ordered a further hearing on November 18, 1999, to determine the amount of the support arrearage. That hearing was subsequently continued to March 28, 2000. Thereafter, on April 18, 2000, the court determined the amount of the arrearage to be $21,780.27, as of February 29, 2000. Kreuzer filed a timely notice of appeal from the orders denying his motion to modify his child support obligation and determining the arrearage. He presents nine assignments of error on appeal. FIRST ASSIGNMENT OF ERROR THE COURT ERRED BY ABUSING ITS DISCRETION IN NOT GRANTING A CONTINUANCE FOR THE NEW ATTORNEY SO THAT HE COULD PROPERLY PREPARE FOR THE HEARING. "The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion." State v. Unger (1981), 67 Ohio St. 2d 65, 67. "The term `abuse of discretion' connotes more than an error or 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. In evaluating a motion for a continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. State v. Unger, supra. Attorney Nystrom requested no particular period of time for a continuance. Indeed, his announced purpose in requesting one was as much to bring Kreuzer to an agreement to meet his support obligation as it was to investigate and prepare his client's case. Attorney Nystrom's desire to do that reflected his understanding of the difficulties Kreuzer presented as a client and litigant. Kreuzer's failure or refusal to meet his support obligation has been the subject of extensive litigation in the domestic relations court and in this court. Much of that has resulted from Kreuzer's intractable refusal to meet his financial obligations to his child, which continues yet. Rather than doing that, Kreuzer has relied on technicalities and manipulated the rules of procedure at every opportunity. Attorney Nystrom's desire for more time is understandable, and his request was reasonable. However, the matter had been awaiting a hearing on our mandate for almost a year when he filed his notice of appearance and moved for a continuance. The county prosecutor's office had several witnesses ready to testify when the motion came on for hearing. Attorney Nystrom was able to cross-examine those witnesses on Kreuzer's behalf, and did so effectively. We cannot find that Kreuzer was prejudiced by the denial of a continuance, and he has not told us how he was. Therefore, we cannot find that the trial court abused its discretion when it denied the request for a continuance. The first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR THE COURT ERRED IN GRANTING APPELLANT'S ATTORNEY MOTION TO WITHDRAW. Kreuzer complains that Attorney Nystrom's withdrawal left him "high and dry" because he had no further funds available to retain another attorney to represent him at the subsequent hearing to determine the support arrearage. An attorney has no obligation to continue to represent a client with whom he cannot effectively communicate. Indeed, the court might have abused its discretion had it required Attorney Nystrom to continue to represent Kreuzer, under the circumstances. The second assignment of error is overruled. THIRD ASSIGNMENT OF ERROR THE COURT ERRED IN NOT ALLOWING APPELLANT TO HAVE WITNESSES. On May 25, 1999, the clerk of courts returned Kreuzer's request to issue subpoenas, stating that Kreuzer would have to first tender a deposit for witness fees and mileage. The clerk also stated that, notwithstanding Kreuzer's poverty affidavit, both the trial court and this court had determined that he is not indigent. Kreuzer protested the clerk's refusal in the course of his testimony at the September 20, 1999 hearing. (T. 22). Notably, neither there nor in his appellate brief does Kreuzer identify the prospective witnesses. Kreuzer had filed a praecipe to subpoena the record keeper of the Pickaway Correctional Institution to bring the log of "legal mail" that Kreuzer received there during a particular period. The State, in its brief, identifies the two witnesses as individuals at the Montgomery County Pre-Release Center. The clerk of the court of common pleas is required to charge two dollars for each person to whom a subpoena is issued. R.C. 2303.20(D). The clerk may not issue a writ to the sheriff of another county to serve a person therein until the party requesting the subpoena has deposited sufficient funds to cover the sheriff's costs plus witness fees and mileage charges. R.C. 2303.16. In performing these duties, the clerk is "under the direction of his court." R.C. 2303.26. Pursuant to that power, the court may by local rule require the clerk to waive the required deposit upon proof that the person requesting the subpoena is indigent. It seems likely that the issue of what "legal mail" Kreuzer had received while an inmate concerned pending charges in contempt, which the court dismissed in its October 13, 1999 judgment denying Kreuzer's request to reduce his support obligation. If so, Kreuzer was not prejudiced by the clerk's refusal. If the evidence he sought might have concerned some other issue, Kreuzer has not told us that it did. Kreuzer argues that he is and was indigent, notwithstanding the prior findings of the trial court and this court, because the trial court had frozen his assets, except for $2,000 he could use to pay an attorney. After the clerk returned his subpoena requests, on May 25, 1999, Kreuzer could have asked the court to modify its order to permit him also to pay the deposit the clerk requested, but he didn't. Kreuzer's subsequent complaint about the matter at the September 20, 1999 hearing was untimely. The third assignment of error is overruled. FOURTH ASSIGNMENT OF ERROR THE COURT ERRED IN NOT GRANTING APPELLANT'S MOTION TO HAVE HIS CHILD SUPPORT LOWERED. The trial court retains jurisdiction to modify its prior child support orders during the minority of the child and any extensions of time for which the law provides. R.C. 3109.05; R.C. 3113.215(B)(1); R.C.3113.215(B)(4); Civ.R. 75(I). A two-step analysis is used to determine a request for modification. First, a change of circumstances must be found to exist. Cheek v. Cheek (1982), 2 Ohio App. 3d 86; R.C. 3113.215(B)(4). After a finding that some relevant circumstance has changed since the last support order, the court must then determine the appropriate amount of support. Cheek v. Cheek, supra. Kreuzer argues that two different circumstances had changed since 1987 which warrant a reduction of the support obligation the court had then imposed on him to a nominal amount. The first was his loss of employment and subsequent inability to find new employment. The second was his periodic incarcerations, which in the aggregate total five years and eight months since 1987, mostly for non-payment of child support. Voluntary unemployment or underemployment does not warrant a modification. Woloch v. Foster (1994), 98 Ohio App. 3d 806. Incarceration may or may not warrant a modification, depending on the circumstances involved. Peters v. Peters (1990), 69 Ohio App. 3d 275; Cole v. Cole (1990), 70 Ohio App. 3d 118. Whether modification is warranted in either event involves a fact-sensitive determination that is committed to the trial court's sound discretion. The trial court's decision in that regard may be reversed on appeal only for an abuse of discretion. Woloch v. Foster, supra. An abuse of discretion does not exist unless the record demonstrates that the court's attitude in making its decision was arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. The evidence presented at the hearing held on Kreuzer's motion to modify his child support demonstrates that Kreuzer lost his job as a computer programmer/analyst with DPL in August 1986. Kreuzer then collected unemployment benefits for six months. When his unemployment benefits ran out, Kreuzer filed a motion in March 1987 seeking a reduction of his child support obligation. Kreuzer argues that he was unemployed and unable to find work for over seven years, from September 1986 until December 1993, when he began working at Deneb. Kreuzer worked at Deneb for three years from December 1993 until late November 1996. Since November 1996, right up until the hearing held on September 20, 1999, Kreuzer has been continuously unemployed. The evidence demonstrates that in August 1991, Kreuzer filled out an application to lease an apartment. In that application Kreuzer reported that since 1986 he had earned six hundred dollars per week. Kreuzer now claims that the information about his income that he provided in that rental application was false. The evidence also demonstrates that in January 1997, Kreuzer cashed thirty thousand dollars in bonds he received as an inheritance from his father. Very little, if any, of that money was applied by Kreuzer toward his child support obligation and arrearage. Some of that money Kreuzer placed in a bank in the Bahamas. Some of it he used to pay cash for a car. Kreuzer was uncooperative and evasive at the hearing in answering questions about what happened to the rest of this money, whether it still exists, and how much money Kreuzer has in existing bank accounts. In concluding that Kreuzer's unemployment did not excuse his child support obligation, the trial court noted that although Kreuzer testified in conclusory fashion that he looked for but could not find any work, he presented no evidence regarding what specific efforts he made to find work. The trial court observed that "anybody can be unemployed." In the last thirteen years, Kreuzer has been employed only three years. Clearly, the trial court did not believe that the record demonstrates a good faith effort by Kreuzer to find employment, and that Kreuzer was able to obtain work sufficient to meet his fifty dollar per week child support obligation had he sought it. If anything, this record demonstrates Kreuzer's lack of regard for his duty to provide for the continuing needs of his child. Voluntary unemployment does not constitute a substantial change of circumstances which warrants modification of a child support order. Woloch v. Foster, supra. On this record the trial court did not abuse its discretion in refusing to modify its previous child support order due to Kreuzer's unemployment. Kreuzer argued that his incarceration represents a change in circumstances which warrants a reduction or suspension of his child support obligation. We note that during the thirteen years which elapsed between 1987 and the hearing in 1999, Kreuzer spent nearly six years incarcerated. Kreuzer has been sent to jail no less than seven separate times; once following a felony conviction for drug trafficking, and the remaining occasions for non-payment of child support. Incarceration which results from voluntary criminal acts does not constitute a change of circumstances which justifies modification of a child support order. Cole v. Cole (1990), 70 Ohio App. 3d 188; Mannasmith v. Mannasmith (July 26, 1998), Marion App. No. 9-90-44, unreported; Richardson v. Ballard (1996), 113 Ohio App. 3d 552. In Williams v. Williams (Sept. 24, 1992), Franklin App. No. 92AP-438, unreported, the court of appeals stated: A parent cannot, by intentional conduct or mere irresponsibility, seek relief from this duty of support. Defendant, who by his own wrongful conduct placed himself in a position that he is no longer available for gainful employment, is not entitled to relief from his obligation to support his child. Incarceration was a foreseeable result of his criminal conduct and is thus deemed a voluntary act in and of itself. The record portrays a disturbing pattern which has repeated itself over and over again. Except for three years from 1994 through 1996, in the past thirteen years when Kreuzer was not incarcerated, he nevertheless failed to obtain employment and failed to pay his child support, which resulted in the court sending Kreuzer to jail for non-payment of that support. Whenever Kreuzer was released from jail, he would remain unemployed and would not pay his child support, which resulted in his incarceration again. And so the cycle has gone. The only person who would benefit if child support in this case were lowered or suspended would be Kreuzer. The purpose of child support, however, is to protect the child and serve the child's best interest. Cole, supra. Children should not be made to suffer because of a parent's wrongdoing. Kreuzer's continued failure to obtain employment and meet his child support obligation ten out of the past thirteen years, which has resulted in his repeated incarceration, are voluntary acts which do not constitute a change of circumstances warranting a reduction or suspension of his child support. The trial court did not abuse its discretion in denying Kreuzer's motion to modify his child support. The fourth assignment of error is overruled. FIFTH ASSIGNMENT OF ERROR THE COURT ERRED IN APPLYING APPELLANT'S MONEY AND ASSETS TOWARDS BACK CHILD SUPPORT, WHERE NO VALID JUDGMENT EXISTED AGAINST APPELLANT AND NO JUDGMENT HAS BEEN MADE AGAINST APPELLANT. Kreuzer argues that the trial court erred when it applied his money and the proceeds from the sale of his personal property to reduce his child support arrearage, absent a valid judgment establishing that arrearage and ordering such action. A review of the record discloses that this claim is baseless. At the September 20, 1999 hearing, the administrator of the Greene County Child Support Enforcement Agency testified that Kreuzer's child support arrearage as of August 31, 1999, was $24,520.80. There was no contrary evidence, although Kreuzer claimed that this figure was inaccurate. The trial court ordered Kreuzer to pay, in addition to his ongoing fifty dollar per week support obligation, one hundred dollars per month toward the arrearage. That order was subsequently reduced to judgment by entry filed October 13, 1999. The trial court continued for two months a determination as to the exact amount of the arrearage in order to give Kreuzer time to inspect the agency's records. Kreuzer's assets had previously been frozen by the court's January 21, 1997 and February 5, 1998, restraining orders. Moreover, various items of Kreuzer's personal property had been seized by Xenia police during execution of a search warrant at Kreuzer's residence. In its October 13, 1999, judgment entry, the court ordered that these assets be sold and the proceeds applied toward the child support arrearage. Specifically mentioned were Kreuzer's 1995 Ford Escort automobile, money Kreuzer had in a Provident Bank account, an IBM personal computer, cash money in Kreuzer's wallet, and other cash and bonds in the possession of Xenia police. The fifth assignment of error is overruled. SIXTH ASSIGNMENT OF ERROR THE COURT ERRED IN APPLYING APPELLANT'S MONEY AND ASSETS TOWARDS BACK CHILD SUPPORT, WHEN APPELLANT HAD BEEN MAKING CHILD SUPPORT AND BACK CHILD SUPPORT PAYMENTS ON A REGULAR BASIS SINCE 1994 Kreuzer argues that it was unfair for the court to confiscate his assets, sell them, and apply the proceeds toward the child support arrearage when Kreuzer had made regular payments on that arrearage since 1994. He claims that these actions by the court discouraged him from paying his child support. Once again, this record reveals the frivolous nature of Kreuzer's claim. The evidence presented at the September 20, 1999, hearing demonstrates that the arrearage on Kreuzer's child support obligation as of December 29, 1987, was $3,500. Over the years that arrearage grew substantially because Kreuzer did not work and he failed to pay his child support. Although Kreuzer did make regular payments on the arrearage during the three years that he worked at Deneb, 1994 through 1996, after 1996 there once again were no payments made by Kreuzer until just recently before the hearing. The arrearage on Kreuzer's child support as of August 31, 1999, was $24,520.80. Given Kreuzer's lengthy past history of failing to work and failure to pay his child support, the trial court acted prudently in seizing Kreuzer's available assets, selling them, and applying the proceeds toward the child support arrearage. The sixth assignment of error is overruled. SEVENTH ASSIGNMENT OF ERROR THE COURT ERRED AND ABUSED ITS DISCRETION IN APPLYING APPELLANT'S MONEY AND ASSETS TOWARDS BACK CHILD SUPPORT, WHEN HE WAS FOUND NOT GUILTY ON THE CHARGES OF CONTEMPT OF COURT. On January 21, 1997, the court issued a restraining order prohibiting Kreuzer from disposing of any of his assets and property, including any inheritance he received from his father's estate. On December 2, 1997, and again on February 4, 1998, the State filed motions asking that Kreuzer be found in contempt of court for violating the court's January 21, 1997, restraining order. At a hearing held on March 28, 2000, the court dismissed the State's contempt motions, finding Kreuzer not guilty. At that same hearing, an employee of the Greene County Child Support Enforcement Agency testified that after applying the proceeds from the sale of Kreuzer's property to reduce the child support arrearage, the amount of that arrearage as of February 29, 2000, was $21,780.27. The court's dismissal of the State's contempt motions, as well as the court's determination as to the amount of the arrearage, were subsequently reduced to judgment by an entry filed April 18, 2000. The basis for the contempt motions was Kreuzer's alleged violation of the court's January 21, 1997, restraining order prohibiting him from disposing of assets, not his failure to pay back child support. Thus, the court's finding that Kreuzer was not guilty of contempt has no bearing on or relevance to the court's order that Kreuzer's assets and personal property be confiscated, sold, and the proceeds applied to reduce the child support arrearage. This latter action has nothing to do with whether Kreuzer violated the court's restraining order. The seventh assignment of error is overruled. EIGHTH ASSIGNMENT OF ERROR THE COURT ERRED IN NOT JOURNALIZING THE COURT'S VERBAL ORDER GRANTING APPELLANT A STAY ON HIS CHILD SUPPORT PAYMENTS, IN NOT ALLOWING TESTIMONY FOR HIS MOTION TO CONTINUE THE STAY AND IN NOT CONTINUING THE STAY ON CHILD SUPPORT PAYMENTS. This alleged error is predicated upon Kreuzer's claim that during the September 20, 1999 hearing, the court issued a verbal stay of Kreuzer's obligation to make child support payments. That claim is not supported by the record and is inconsistent with the court's actions at that hearing, which established Kreuzer's child support payments at $216.16 per month on the ongoing obligation, plus an additional $100 per month toward the arrearage. The court did verbally agree at the hearing to grant Kreuzer a two month continuance before determining the exact amount of the arrearage in order to allow Kreuzer to examine the records of the CSEA. More importantly, the judgment entry filed October 13, 1999, wherein the court reduced to journal entry its verbal orders from the September 20, 1999 hearing, contains no provision staying Kreuzer's obligation to make child support payments until after the next scheduled hearing in this matter. A court speaks only through its journal entries, not by its oral pronouncements. Schenley v. Kauth (1953), 160 Ohio St. 109; Andrews v. Board of Liquor Control (1955),164 Ohio St. 275. We also note that at the subsequent March 28, 2000 hearing, when Kreuzer raised this issue about the court's alleged oral stay of his child support payments, the court denied making any such order and pointed out that it had never signed any such entry. The record does not exemplify Kreuzer's claim. The eighth assignment of error is overruled. NINTH ASSIGNMENT OF ERROR THE COURT ERRED IN SETTING THE ARREARAGE AMOUNT AS OF FEBRUARY 29, 2000 INSTEAD OF AUGUST 31, 1999. Among other things, the purpose of the hearing held on September 20, 1999 was to address Kreuzer's motion for a reduction in his child support and to determine the amount of the arrearage on that child support obligation. At that hearing the court determined that the amount of the arrearage as of August 31, 1999, was $24,520.80. At Kreuzer's request, the court continued to a later date the issue regarding the amount of the arrearage in order to give Kreuzer time to obtain and examine the records of the Greene County Child Support Enforcement Agency. The court also ordered that in the meantime, some of Kreuzer's assets and property be sold and the proceeds applied to reduce that arrearage. These orders were reduced to judgment by a journal entry filed October 13, 1999. The purpose of the hearing held on March 28, 2000, was to establish the amount of the child support arrearage. From the evidence presented, the court determined that the child support arrearage as of February 29, 2000, was $21,780.27. This figure reflects a smaller amount of arrearage than the court had previously determined, because of the sale of Kreuzer's property and application of those proceeds to reduce the arrearage. Kreuzer has not provided this court with any reason, much less authority, for why the court allegedly committed error in basing its determination as to the amount of the child support arrearage upon the most current, up-to-date figures available. We see no error. The ninth assignment of error is overruled. The judgment of the trial court will be affirmed. WOLFF, P.J. and FAIN, J., concur.

2016-07-06 06:36:36.36177+00

OPINION Defendant-appellant Crystal Lake appeals her conviction and the sentence imposed by Ashland Municipal Court on August 27, 1998, for assault in violation of R.C. 2903.13. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE On or about July 9, 1998, appellant was charged with assault in violation of R.C. 2903.13 and criminal trespass in violation of R.C. 2911.21(A)(C). At her arraignment on July 21, 1998, appellant entered a plea of not guilty to the above charges. A bench trial before Judge Howard W. Glick was held on August 27, 1998. The following evidence was adduced at trial. On July 9, 1998, Jody Martin, the victim in this case, was working the second shift at her press at Atlas Bolt Screw. Martin testified that at approximately 6:30 P.M., Crystal Lake, a former employee of Atlas Bolt Screw who previously had been told by the plant foreman to stay off of the premises, approached Martin from behind. According to Martin, appellant then grabbed Martin's braid, punched her in the right eye three times, and threw her on the cement floor, causing Martin to dislocate her shoulder. After the assault, appellant called Martin a bitch and threatened to kill her. Previously, on April 23, 1998, before resigning from her position with Atlas, appellant had had a confrontation with Martin. Appellant testified that, on such date, Martin, while training her on the press, became upset with appellant and threw a die at her, striking appellant's leg. Debra Walsh, an Atlas employee, testified that on July 9, 1998, she saw appellant standing close to Martin, who was lying on the floor. Walsh, however, neither saw appellant strike Martin nor pull her hair. Walsh then proceeded to tell Ronald Fugitt, a department supervisor, that appellant was on the premises. Fugitt, testified that immediately after the assault Martin "was excited, agitated, [and] nervous" and that her whole facial area was red. Transcript of Proceedings at 32. Fugitt, however, never saw appellant on the premises on July 9, 1998. After appellee rested its case, appellant's live-in boyfriend, Ronald (also known as Tony) Kirk, was called to the stand. Kirk testified that on July 9, 1998, he traveled to Pittsburgh with appellant to see a Grateful Dead concert that began at 8:00 P.M. The two had arranged to meet Kirk's friends, Dave and Desiree, in Pittsburgh at a Red Roof Inn to obtain the concert tickets. Kirk further testified that at approximately 4:00 p.m. Barb Butler, a mutual friend, took him and appellant to rent a car for the purpose of driving to Pittsburgh. A rental receipt from Koontz Rent-A-Wreck in Mansfield was introduced into evidence showing that Kirk had signed for a car on July 9, 1998, and returned the car two days later. According to Kirk, the two had left the car rental agency shortly after 5:00 p.m. to travel to Pittsburgh. Kirk also testified about a receipt for a motel that he stated he and appellant had checked into on July 10, 1998, at approximately 1:00 A.M., after the concert. The receipt was introduced into evidence. However, at trial, two of the State's witnesses, Gilbert Goodwill and Debra Walsh, testified that Kirk was on the premises of Atlas Bolt Screw on the evening of July 9, 1998. Appellant's account of the events of July 9, 1998, paralleled Kirk's. After considering all of the evidence presented, including the two exhibits, the court, on August 27, 1998, found appellant guilty of assault but not guilty as to the trespassing charge. Thereafter, pursuant to a Judgment Order filed on August 27, 1998, appellant was sentenced to 30 days in jail and ordered to pay costs and restitution for Martin's medical care. The court then proceeded to suspend 20 days of appellant's sentence and place her on probation for one year. It is from her conviction and sentence that appellant prosecutes her appeal, raising the following assignment of error: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. I Appellant, in her sole assignment of error, argues that she was denied the effective assistance of counsel. Appellant specifically contends that trial counsel's failure to call witnesses to corroborate her testimony and establish her alibi was a serious flaw that prejudiced the outcome of the trial. A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 113 S. Ct. 838, 122 L. Ed 2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674; State v. Bradley (1989), 42 Ohio St. 3d 136. In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley, 42 Ohio St. 3d at 142. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any given case, a strong presumption exists that counsel's conduct fell within the wide range of reasonable, professional assistance. Id. In order to warrant a reversal, the appellant must additionally show he was prejudiced by counsel's ineffectiveness. This requires a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Bradley, supra at syllabus paragraph three. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. It is with this framework in mind that we address the instances of alleged ineffectiveness of counsel raised by appellant in the instant case. An attorney's failure to subpoena witnesses is within the realm of trial tactics and does not, absent a showing of prejudice, constitute ineffective assistance of counsel. State v. Hunt (1984), 20 Ohio App. 3d 310, citing State v. Hester (1976), 45 Ohio St. 2d 71. Appellant contends that her attorney's failure to subpoena witnesses was prejudicial since such testimony was material and "would have directly affected the outcome of the trial." Appellant specifically points to trial counsel's failure to call Barb Butler, who allegedly could place appellant at Koontz Rent-A-Wreck on July 9, 1998, Koontz Rent-A-Wreck employees, who allegedly would testify as to appellant being present and as to when appellant left and returned in the rented vehicle, and Desiree and Dave, who allegedly could testify as to appellant's presence in Pittsburgh. However, other than appellant's assertions, there is no evidence as to how such witnesses would have testified if subpoenaed. Assuming, arguendo, that appellant has met the first prong of the test set forth in Strickland, this court finds that appellant has not shown that there is a reasonable probability that, but for trial counsel's ineffectiveness, the result of the trial would have been different. Strickland, supra. The trial court, as trier of fact, considered the two exhibits presented by appellant as well as the testimony of Kirk and of the appellant herself. The trial court, therefore, had the opportunity to evaluate both Kirk's and appellant's credibility and that of the defense exhibits. Moreover, in addition to the victim's testimony placing appellant on the premises on July 9, 1998, two rebuttal witnesses called by the State, one who did not know appellant, indicated that both appellant and Kirk were observed on the premises of Atlas Bolt Screw on the night of the assault. While one of the witnesses was friends with the victim, such witness stated unequivocally that she would not lie for her. After considering all of the evidence, including the testimony and the exhibits, the trial court found that the State had fulfilled its burden of proof beyond a reasonable doubt and found appellant guilty of assault. In so holding, the trial court stated as follows: "The Court does believe that Tony Kirk checked in on the morning of the 10th, which places it after midnight on the night and that for whatever reason this document [the motel receipt] is unclear. Nevertheless, the Court also does believe that — I'm not really quite sure whether that even provides an alibi for Mr. Kirk for the following reasons: The Exhibit A indicates he checked out a vehicle on the day of the 9th at sometime before 6:00 p.m., and I say 6:00 p.m. instead of 5:00 p.m. because the invoice lists that the Rent-A-Wreck is open until 6:00 p.m. on weekdays. At sometime before 6 p.m., he checked out a vehicle. At sometime after midnight the same day, he checked into the Fairfield Suites in Pittsburgh. If Mr. Kirk had been accused of this crime, I'm not so sure whether this would actually provide an alibi because certainly the crime could be committed at — and I think there's no argument about when the crime was committed as — the only issue is to who committed it. The crime could have been committed in plenty of time to go and do whatever you needed to do in the Pittsburgh area. The Court will take judicial notice that the trip to Pittsburgh was roughly two and a half to three and a half hours, depending upon who's driving. The issue then comes to the identification of the assailant of Jody Martin. It's the Court's opinion that Jody was assaulted, that she did not trip as suggested by the Counsel. Jody Martin's testimony is that she directly identified her assailant, that the assailant was known to her, that words were exchanged. Ron Fugitt identified Miss Martin as being agitated and excited in her description of what had happened. Debra Walsh identified Miss, the defendant, Miss Lake, as having been on the premises, and I think it is somewhat significant that she testified that she was merely going to report that she had been on the premises, knowing, at least in her mind, that she was not supposed to be there. She admitted that she did not see the assault itself. I do not look at the dispute between these woman as being an ongoing dispute. There's been no testimony today that anything happened between April 23rd and July 9th between these women that would lead to the fabrication by Jody Martin of Crystal Lake as her assailant." Transcript of Proceedings at 117-119. The trial court clearly did not find either Kirk's or appellant's testimony credible. Based on the foregoing, even if trial counsel had called additional witnesses to support appellant's alibi, there is not a reasonable probability that the outcome of the trial would have been different. Appellant, therefore, was not prejudiced by any alleged ineffectiveness. Appellant's sole assignment of error is overruled. The judgment of the Ashland County Municipal Court is hereby affirmed. By Edwards, J. Wise, P. J. and Reader, V. J. Concur

2016-07-06 06:36:36.426067+00

Appellants Veronica Stull (f.k.a. Myers), Jonas Bailey, and Mary Baker appeal the decision of the Tuscarawas County Court of Common Pleas, Juvenile Division, following a grant of permanent custody to Appellee Tuscarawas County Job and Family Services. The relevant facts leading to this appeal are as follows. Stull and Bailey are the parents of Melina Bailey, a minor child who was taken into the temporary custody of Tuscarawas County Job and Family Services ("TCJFS") on January 3, 2000, following a domestic altercation between the parents. The following day, TCJFS filed a complaint in the trial court alleging that Melina and her half-brother Damian Myers were neglected and dependent. On February 2, 2000, Stull entered admissions to an amended complaint, stipulating that Melina and Damien were neglected and dependent. (Bailey had not at that point established paternity. He was later added as a party when paternity testing results showed him to be Melina's biological father.) TCJFS prepared and filed case plans for Stull and Bailey, including drug testing for both parents. Due in part to TCJFS's dissatisfaction with the progress of the drug treatment, the court suspended visitation in April 2000. Thereafter, on May 24, 2000, TCJFS filed a motion for permanent custody with the trial court. Meanwhile, Appellant Baker, maternal grandmother of Melina, filed to obtain party status and an order for temporary custody of Melina on January 19, 2000. However, TCJFS completed a home study on her residence and, in conjunction with a recommendation by the guardian ad litem, requested that the court not place Melina with Baker. The magistrate followed said recommendations, and Baker's objections to the magistrate's decision were denied by the trial court judge on May 19, 2000. Baker again sought party status and custody, which the magistrate denied on September 12, 2000. Baker filed an objection thereto, which the trial judge addressed as part of the permanent custody proceeding. On September 22, 2000, the trial judge heard evidence on the permanent custody motion. Pursuant to a judgment entry filed October 30, 2000, TCJFS was granted permanent custody of Melina. The court further overruled Baker's objection to the magistrate's decision denying her request to be made a party to the case. Appellant Stull, with Bailey joining, herein raises the following five Assignments of Error: I. A THOROUGH REVIEW OF THE RECORD IN THIS CASE REVEALS THE EVIDENCE DOES NOT JUSTIFY A GRANTING OF PERMANENT CUSTODY OF MELINA BAILEY AND DAMIEN MYERS TO THE TUSCARAWAS COUNTY JOBS AND FAMILY SERVICES. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR REPEATEDLY ADMITTED (SIC) EVIDENCE OF THE RESULTS OF DRUG SCREENS. III. THE TRIAL COURT ERRED BY CONCLUDING THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT IT WAS IN THE BEST INTEREST OF THE MINOR CHILDREN OF THE APPELLANTS TO BE PLACED IN THE CUSTODY OF THE TUSCARAWAS COUNTY DEPARTMENT OF HUMAN SERVICES AND FAILED TO CONSIDER THE FACTORS SET FORTH IN REVISED CODE 2151.414(B) AND (D). IV. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR PERMANENT CUSTODY AND ABUSED ITS DISCRETION IN SUSTAINING THE MOTION FOR PERMANENT CUSTODY OF THE TUSCARAWAS COUNTY DEPARTMENT OF HUMAN SERVICES IN THAT THE PROCEDURES OF OHIO REVISED CODE 2151.414(D) WERE NOT FOLLOWED. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING PERMANENT CUSTODY OF APPELLANT'S CHILDREN WHERE THERE WAS A SUITABLE RELATIVE WILLING AND CAPABLE OF ASSUMING CUSTODY OF APPELLANT'S CHILDREN. Appellant Baker separately raises the following three Assignments of Error: I. THE TRIAL COURT ABUSED IT'S (SIC) DISCRETION IN OVERRULING AND DENYING APPELLANT'S, MARY BAKER, MOTION TO BE A DESIGNATED PARTY. II. THE TRIAL COURT ERRED IN FAILING TO HAVE AN EVIDENTIARY HEARING ON APPELLANT'S MOTION FOR LEGAL CUSTODY. III. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE LAW. Appeal by Veronica Stull I and III In both her First and Third Assignments of Error, Stull essentially contends that the award of permanent custody in this matter is unsupported by the manifest weight of the evidence. We disagree. As an appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, unreported. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction (1978), 54 Ohio St. 2d 279, 281. It is based upon this standard that we review Appellant Stull's First and Third Assignments of Error. The relevant statute, R.C. 2151.414, provides in part: (B)(2) With respect to a motion made pursuant to division (D)(2) of section 2151.413 of the Revised Code, the court shall grant permanent custody of the child to the movant if the court determines in accordance with division (E) of this section that the child cannot be placed with one of the child's parents within a reasonable time or should not be placed with either parent and determines in accordance with division (D) of this section that permanent custody is in the child's best interest. A review of the record on appeal indicates the following case plan requirements in regard to Stull: (1) to obtain a drug and alcohol assessment and follow corresponding recommendations; (2) to obtain and pass random drug screens; (3) to participate in parental education; (4) to enroll in an intensive parenting program through Personal and Family Counseling Services; and (5) to engage in counseling for issues from her own childhood. Counsel for TCJFS questioned case manager Karl Hoop on the developments under the above case plan, essentially in a reverse order fashion. Hoop testified that he provided Stull with the option of pursuing the counseling referenced in component number five, above, at either Community Mental Healthcare or Personal and Family Counseling. However, Hoop received no documentation whatsoever that Stull had initiated said counseling. He further testified that although Stull had enrolled into an intensive parenting program, she failed to complete it, as well as the "TOTS" parenting program. Stull later admitted during her testimony that she failed to complete the aforesaid case plan components. Stull fared no better in regard to the drug concerns in the case plan. She testified, over objection, that of the six or seven drug screens attempted during the course of the TCJFS involvement, only one was determined to be "clean." In regard to the overall case plan, the transcript reveals Stull's general rationalization for her behavior was either a claimed lack of understanding of the requirements, or a denial of a necessity therefor. Turning to the case plan requirements for Appellant Bailey, Hoop testified that Bailey was made part of the plan on April 7, 2000. The case plan required him to: (1) complete an intensive parenting program; (2) obtain a psychological evaluation; (3) obtain a domestic violence assessment and any recommend counseling; (4) obtain a drug and alcohol assessment and follow corresponding recommendations; and (5) submit to random drug screens. The testimony of Karl Hoop again reveals no documentation that Bailey had completed the various portions of his case plan, despite Bailey's unsuccessful drug screen. Bailey sought to attribute these developments to his job schedule, as further revealed in the following exchange during questioning by the guardian ad litem: Q. Okay, do you ever recall taking a Monday off to go to a meeting with someone, either your attorney to discuss a Court case or a Court hearing? A. I may have, I'm not, I don't recall. Q. Okay, but you were able to take off some time from your job to meet certain appointments? A. Very rare, I mean I've almost, I have lost my job twice for taking off over ridiculous and uncalled for days and I've got it back and I can't just take days off anymore. I was told I will lose my job and I can't afford it. Tr. at 96. Upon review, the record, as a whole, provides ample competent and credible evidence upon which the trial court could base its decision pursuant to statute. The trial court's decision to grant permanent custody to TCJFS was not against the manifest weight of the evidence. Stull's First and Third Assignments of Error are overruled. II. In her Second Assignment of Error, Stull argues that the trial court violated her privileged communications with the medical providers conducting her drug screens. We disagree. In support of her position, Stull directs us to In re Wieland (2000), 89 Ohio St. 3d 535, which held at the syllabus: In the absence of a specific statutory waiver or exception, the testimonial privileges established under R.C. 2317.02(B)(1) (concerning communications between a physician and patient), R.C. 4732.19 (concerning communications between a licensed psychologist and client), and R.C. 2317.02(G) (concerning communications between a licensed counselor or licensed social worker and client) are applicable to communications made by a parent in the course of treatment ordered as part of a reunification plan in an action for dependency and neglect. An appeal from the interpretation and application of R.C. 2317.02(B) is recognized as reviewable as a matter involving an issue of law. See Ward v. Johnson's Indus. Caterers, Inc. (June 25, 1998), Franklin App. No. 97APE11-1531, unreported; Porter v. Litigation Management, Inc., (May 11, 2000), Cuyahoga App. No. 76159, unreported. "Because the privilege is entirely statutory and in derogation of the common law, it must be strictly construed against the party seeking to assert it." Wargo v. Buck (1997), 123 Ohio App. 3d 110, 120, citing Ohio State Med. Bd. v. Miller (1989), 44 Ohio St. 3d 136, 140. R.C. 2151.3514(B), effective March 18, 1999, reads as follows: If the juvenile court issues an order of temporary custody or protective supervision under division (A) of section2151.353 of the Revised Code with respect to a child adjudicated to be an abused, neglected, or dependent child and the alcohol or other drug addiction of a parent or other caregiver of the child was the basis for the adjudication of abuse, neglect, or dependency, the court shall issue an order requiring the parent or other caregiver to submit to an assessment and, if needed, treatment from an alcohol and drug addiction program certified by the department of alcohol and drug addiction services. The court may order the parent or other caregiver to submit to alcohol or other drug testing during, after, or both during and after, the treatment. The court shall send any order issued pursuant to this division to the public children services agency that serves the county in which the court is located for use as described in section 340.15 of the Revised Code. The facts of Wieland indicate that the Montgomery County Children Services Board filed its permanent custody motions regarding the three children involved in 1997 and 1998, and on January 29, 1999, the juvenile court ordered that certain substance abuse records should be disclosed as requested, despite the mother's objection that she had not waived the physician-patient privilege. Id. at 536. These events predated R.C.2151.3514(B), which is not discussed in Wieland. In the case sub judice, the drug screens were accomplished pursuant to the case plan, rather than a direct court order. However, in strictly construing the aforecited privilege-related statutes against Stull, we hold that R.C. 2151.3514(B) manifests an intent by the General Assembly to remove the privilege from a parent or caregiver's drug or alcohol testing results obtained under the aegis of a dependency, neglect, or abuse action pursuant to R.C.2151.353. Thus, the trial court did not violate Stull's privileges under R.C. 2317.02 under these facts. Stull's Second Assignment of Error is overruled. V and V In her Fourth Assignment of Error, appellant contends that the trial court failed to adhere to the requirements of R.C. 2151.414(D). We disagree. The statutory section at issue reads as follows: (D) In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall consider all relevant factors, including, but not limited to, the following: (1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; (2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; (3) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999; (4) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; (5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child. * * * Stull essentially argues that the court ignored R.C. 2151.414(D)(4) ("[t]he child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency") in its refusal to recognize paternal grandparents Donald and Vickie Bailey as a resource for permanent placement. As this argument closely resembles the basis of the Fifth Assignment of Error, we will simultaneously address both. Both TCJFS and the guardian ad litem urge us to adopt the holding of In re Perez (1999), 135 Ohio App. 3d 494,496, wherein the court held that a trial court erred in granting legal custody to an uncle and aunt when no motion for legal custody had been filed by them prior to the permanent custody hearing, referencing R.C.2151.353(A)(3). The language of that opinion aptly corresponds with the situation before the trial court below: [The agency] LCCS has argued that the trial court erred when it granted legal custody of the children to [uncle and aunt] in the absence of a prior motion for legal custody. LCCS has asserted that it would be unreasonable to expect a child placement agency seeking permanent custody to prepare its case against all potential relatives who might appear on the date of the hearing and request legal custody. It has concluded that notice is mandated by R.C.2151.353 for that reason. This court agrees. Id. at 496. We find Perez applicable herein, and upon review of the record and transcript, find the trial court properly considered the "best interest" factors pursuant to R.C. 2151.414(D), including pertinent home studies. Any alleged deficiency in said consideration is attributable not to the court or TCJFS, but to the lack of procedural formality and statutory compliance by the paternal grandparents. Stull's Fourth and Fifth Assignments of Error are overruled. Appeal by Mary Baker I. In her First Assignment of Error, Appellant Baker argues that the trial court erred in denying her motion to be named as a party to the action. We disagree. Juv.R. 2(X) states as follows: "Party" means a child who is the subject of a juvenile court proceeding, the child's spouse, if any, the child's parent or parents, or if the parent of a child is a child, the parent of that parent, in appropriate cases, the child's custodian, guardian, or guardian ad litem, the state, and any other person specifically designated by the court. When reviewing an order which denies a motion to intervene, the issue is whether the trial court abused its discretion. Peterman v. Village of Pataskala (1997), 122 Ohio App. 3d 758 . In order to find an abuse of discretion, we must determine whether the trial court' decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983),5 Ohio St. 3d 217. The record reveals that at the time the time the motion for party status was made, the trial court had already found Baker's home inappropriate for placement. Nonetheless, Baker cites the following language from Chief Justice Celebrezze's concurring opinion in In re Schmidt (1986), 25 Ohio St. 3d 331: Intervention by grandparents in a permanent custody proceeding is appropriate where the grandparents have a legal right to or a legally protectable interest in custody or visitation with their grandchild, where the grandparents have stood in loco parentis to their grandchild, or where the grandparents have exercised significant parental control over, or assumed parental duties for the benefit of, their grandchild. Where any of these circumstances are present, it is my view that a denial of the grandparents' motion to intervene would constitute an abuse of the juvenile court's discretion. Id. at 338. Although Baker posits that as maternal grandmother, she was "no stranger in this situation" (Appellant's Brief at 5), her arguments that her role in Melina's life rose to the level of in loco parentis are insufficient for holding that the trial court abused its discretion in this regard. Baker's First Assignment of Error is overruled. II. In her Second Assignment of Error, Baker alleges that the trial court erred in declining to hold an evidentiary hearing on her motion for legal custody. We disagree. In In re Poling (1992), 64 Ohio St. 3d 211, paragraph two of syllabus, the Ohio Supreme Court held that when a juvenile court exercises jurisdiction over custody matters pursuant to R.C. 2151.23, it must do so in accordance with R.C. 3109.04. Thus, pursuant to R.C. 3109.04(A), the trial court is to conduct a hearing as follows: [I]n any proceeding pertaining to the allocation of parental rights and responsibilities for the care of the child, upon hearing the testimony of either or both of the parents * * * the court shall allocate the parental rights and responsibilities for the care of the minor children * * *. In the matter sub judice, even though the above statute makes no mention of testimony by a grandparent who has not been named a party, the trial court gave Baker the opportunity at the dispositional hearing of March 29, 2000, to present evidence concerning the appropriateness of her home for placement of Melina. Nonetheless, pursuant to a magistrate's decision dated April 5, 2000 and a judgment entry dated May 19, 2000, the court determined that Baker's home was not appropriate for Melina. Appellant Baker cites no authority for her asserted right to essentially re-argue most or all of these same issues. Having reviewed the record, we find no merit in Baker's position. Baker's Second Assignment of Error is overruled. III. In her Third Assignment of Error, Baker challenges the trial court's decision as being against the manifest weight of the evidence. However, we decline to address the merits of this argument based on lack of appellate standing. In In re Stanley (Oct. 11, 2000), Summit App. Nos. 20128, 20131, 20132, unreported, the Ninth District Court of Appeals indicated the following in addressing a similar question: Unless a person is a party in the lower court case, the individual has no standing to appeal. See Whiteside, Ohio Appellate Practice (1996 Edition) 30, Section1.27. Because the grandparents were never made parties below, they have no standing to appeal. "Appeal lies only on behalf of a party aggrieved by the final order appealed from; appeals are not allowed for the purpose of settling abstract questions, but only to correct errors injuriously affecting the appellant." (Internal citations omitted.) In re Hiatt (1993), 86 Ohio App. 3d 716, 721. Id. at 3. Thus, although we have seen fit to speak regarding Baker's procedural-based First and Second Assignments of Error, we find the rationale of Stanley applicable herein. We therefore do not reach the merits of Baker's Third Assignment of Error. For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Tuscarawas County, Juvenile Division, is hereby affirmed. _____________ Wise, J. Gwin, P.J., and Hoffman, J., concur.

2016-07-06 06:36:36.541863+00

Opinion Jeffery Hopson, defendant-appellant, appeals from his conviction and sentence in the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-344107, bf two counts of aggravated murder in violation of R.C. 2903.01, one count of aggravated robbery in violation of R.C. 2911.01 and one count of attempted aggravated arson in violation of RC. 2909.11 and R.C.2923.02. Defendant-appellant assigns four errors for this courts review. Defendant-appellant's appeal is affirmed in part, reversed in part and remanded for re-sentencing. This appeal arises out of the murder of James Lewis, defendant-appellant's stepfather, on October 17, 1996. At the time of the offenses, defendant-appellant was living with his mother and Mr. Lewis. Defendant-appellant and Mr. Lewis admittedly did not like each other and argued often. Apparently, after one particularly heated exchange, defendant-appellant struck Mr. Lewis with a hammer repeatedly resulting in Mr. Lewis death. Defendant-appellant then set Mr. Lewis body on fire and fled the state. Defendant-appellant was arrested in Columbus, Indiana the next day. He was then extradited to Ohio. On October 21, 1996, the Cuyahoga County Grand Jury indicted defendant-appellant in a four-count indictment. The first and second counts of the indictment charged defendant-appellant with aggravated murder in violation of R.C. 2903.01. These counts were based upon the theories of prior calculation and design and felony murder for a single homicide. Each count included a death penalty specification pursuant to R.C. 2929.04(A)(7). The third count of the indictment charged defendant-appellant with aggravated robbery in violation of R.C. 2911.01. The fourth and final count of the indictment charged defendant-appellant with aggravated arson in violation of R.C. 2909.01. On November 14, 1996, defendant-appellant was arraigned, whereupon he entered a plea of not guilty to all four counts contained in the indictment. On April 14, 1997, defendant-appellant waived his constitutional right to a trial by jury and chose to try his case to a three-judge panel. Trial commenced that same day. The states case consisted of the testimony of eleven witnesses and related exhibits. The states first witness, Christin Rolf, Deputy County Coroner, testified that she is a licensed physician who has performed over 150 autopsies. Dr. Rolf performed the autopsy on Mr. Lewis after which she concluded that Mr. Lewis was dead prior to the fire which burned his entire body. Dr. Rolf determined that the cause of death was multiple skull fractures caused by a hard, blunt object. In her opinion, the damage done to Mr. Lewis head was consistent with damage done by a hammer. Dr. Rolf ruled the manner of death as a homicide. The second witness for the state was Mary Ann May, a member of the Trace Evidence Department of the Cuyahoga County Coroner's Office. Ms. May examined two hammers recovered from the scene of the homicide and subsequent fire, one with a clawed end and one with a charred wooden handle. The hammer with the charred handle had blood on it which was DNA tested and determined to be consistent with the blood of the victim, Mr. Lewis. One thin gray hair was also discovered on this hammer which was also consistent with that of Mr. Lewis. The second hammer contained no samples. Ms. May also found human blood on defendant-appellant's Nike sport shorts that was consistent with that of Mr. Lewis. The state's third witness, Paul Appleton, a firefighter and paramedic for the Cleveland Fire Department, testified that he answered a fire call at 12501 Wanda Avenue, Cleveland, Ohio on October 17, 1996. Appleton stated that, upon his arrival, he observed a working fire with heavy smoke. The fire originated and was contained within one bedroom of the house. After the fire had been extinguished, Mr. Lewis' body was discovered in the bedroom straddling a motorized cart. Mr. Lewis was handicapped due to a prior back condition. The state's fourth witness, Dan Kovacic of the Cleveland Fire Department's Fire Investigation Unit, testified that he was called to investigate the fire at 12501 Wanda Avenue. Upon arrival, he was directed to the point of origin of the fire in the bedroom where the victim's body had been discovered. Lieutenant Kovacic ruled out any accidental causes for the fire. He also noticed a strong odor of lighter fluid in the room which was indicative of a fire that had been intentionally set. Lieutenant Kovacic observed Mr. Lewis' body in the room. The victim's legs were partially propped up on a motorized cart. Almost all of the victim's clothing had been burned off his body by the accelerant which had actually been poured directly upon the victim's person. Kovacic also observed an open safe in an adjacent bathroom. The fire had not spread to the bathroom; consequently, the safe was undamaged. The state's fifth witness, Kathy Denisoff of the Cleveland Police Department's Forensic Laboratory, testified that she received three items for testing from the Cleveland Fire Department. Each item tested positive for fuel oil number one, a class four accelerant. Ms. Denisoff also received three items from the Cuyahoga County Coroner's Office for testing. Two of the three additional items tested positive for fuel oil number one. This accelerant is consistent with kerosene. The sixth witness for the state was Rodney Cowart who had been visiting his girlfriend's house on Wanda Avenue on the day of the fire. Mr. Cowart observed a man leaving the premises at 12501 Wanda Avenue in a red pick-up truck on the day of the fire. He identified the man as defendant-appellant. Moments after Mr. Cowart saw defendant-appellant leave the driveway, fire broke out at the home. Mr. Cowart then ran to his girlfriend's home and told her to call 911. Frieda Johnson, Mr. Lewis' sister, was the next witness for the state. Ms. Johnson testified that her brother, who had been deaf since the age of five, had been married to Margaret Hopson. Ms. Johnson stated that during his life, her brother had worked hard and saved a lot of money. Mr. Lewis kept some of his money in the bank, some in a money belt that he carried on his person and some in the safe in his home. This fact was apparently common knowledge among members of the family. The state's eighth witness was Jeffrey Null, a sales consultant for a local automobile dealership. Mr. Null sells cars and trucks. Mr. Null testified that after he learned of Mr. Lewis' death on the 10:00 p.m. news, he contacted the Cleveland police and informed the department that he had recently sold a red pick-up truck to Mr. Lewis. At the time of the sale, defendant-appellant was present, and acted as a translator for Mr. Lewis who was deaf. The ninth witness for the state was Detective Michael Beaman of the Cleveland Police Department's Homicide Unit. Detective Beaman testified that he responded to a homicide at 12501 Wanda Avenue on October 17. 1996. An inspection of the bedroom where the fire occurred revealed that the dresser drawers in the bedroom were thrown about the room. These drawers contained clothes, papers and coins which were scattered throughout the room. Detective Beaman spoke with the victim's wife who appeared to be very upset throughout their conversation. Mrs. Lewis indicated that approximately $1,800 was missing from the bedroom and TVs and VCRs that had been in the home could not be located. As a result of the investigation, defendant-appellant was identified as a possible suspect and a warrant for aggravated murder was obtained. After learning that defendant-appellant had recently resided in Columbus, Indiana, the Cleveland police notified the authorities of that municipality that defendant-appellant was wanted in connection with the murder of Mr. Lewis. Defendant-appellant was arrested in Columbus, Indiana the next day. The tenth witness for the state was Detective Fred Yentz of the Columbus, Indiana Police Department. Detective Yentz testified that he arrested defendant-appellant in Columbus, Indiana on October 18, 1996 after observing defendant-appellant drive by the scene of an accident in the red pick-up truck. After the detective informed defendant-appellant of his Miranda rights, defendant-appellant allegedly inquired as to the penalty for murder. The state's eleventh witness was Lieutenant Mark Gorbett, of the Bartholomew County Sheriff's Department. Lieutenant Gorbett testified that he spoke with defendant-appellant after defendant-appellant had been taken into custody. Lieutenant Gorbett advised defendant-appellant of his Miranda rights and defendant-appellant executed a waiver of those rights. Defendant-appellant then confessed his involvement in the murder of Mr. James Lewis. Specifically, defendant-appellant admitted that he and Mr. Lewis had an argument, after which defendant-appellant smoked three rocks of crack cocaine. He then went to the kitchen where he obtained a hammer out of a tool drawer. Defendant-appellant proceeded to attack Mr. Lewis two separate times, killing him during the second attack. Immediately after the attack, defendant-appellant proceeded to look through Mr. Lewis' bedroom for valuables and the keys to the red pick-up truck in which defendant-appellant eventually fled to Columbus, Indiana. Defendant-appellant allegedly told Lieutenant Gorbett that he also took some VCRs and TVs, which he later sold for money to purchase more crack cocaine. Defendant-appellant proceeded to pour kerosene all over Mr. Lewis' body and the bedroom. He then ignited the kerosene and left the house. Defendant-appellant's statement was recorded on audiotape and that tape was also transcribed. Both the audiotape and the corresponding transcript were introduced into evidence as states Exhibit 1 and 2, respectively. The state concluded its case with a continuation of the testimony of Detective Michael Beaman. Detective Beaman, along with his partner, transported defendant-appellant from Columbus, Indiana to Cleveland, Ohio. During the course of the trip, defendant-appellant allegedly inquired as to the possible sentence involved for murder. At this point, defendant-appellant was informed of his Miranda rights once again. Defendant-appellant allegedly claimed he was on crack at the time of the murder. Detective Beaman testified that the police were unable to find the TVs, VCRs or the missing $1,800. The state then rested its case. Defendant-appellant moved for acquittal pursuant to Crim.R. 29. The trial court denied defendant-appellant's motion. The defense case consisted solely of the testimony of defendant-appellant who stated that he had been in the Cleveland area approximately four months before the incident occurred. Defendant-appellant had left Columbus, Indiana due to ongoing problems with his girlfriend. On the day of the killing, defendant-appellant went downtown with his mother early in the morning to cash his paycheck and go to the federal building. After cashing his paycheck, defendant-appellant gave his mother one-half. Ordinarily, defendant-appellant gave Mr. Lewis one-half for room and board. Defendant-appellant and Mr. Lewis often fought verbally over defendant-appellant's sleeping habits, eating habits and the amount of rent defendant-appellant was paying. After defendant-appellant returned home on the day in question, an argument once again ensued between defendant-appellant and Mr. Lewis regarding room and board. Defendant-appellant maintained that Mr. Lewis made a number of threats toward defendant-appellant's mother during the argument. Defendant-appellant then prepared some noodles for Mr. Lewis. After further argument about the manner in which the noodles were prepared, defendant-appellant went downstairs to smoke some crack cocaine and Mr. Lewis drove his motorized cart into his bedroom. At this point, defendant-appellant testified that he became so upset that he went into the kitchen tool drawer and pulled out a hammer. Defendant-appellant proceeded into Mr. Lewis' bedroom and engaged in two separate attacks on Mr. Lewis. The second attack resulted in Mr. Lewis' death. Defendant-appellant then went through the room looking for valuables and the keys to the red pick-up truck in which he eventually fled to Indiana. Defendant-appellant testified further that, at this point, he became ashamed of what he had done. He then went to the garage, brought back kerosene and poured it directly on the body of Mr. Lewis and around the bedroom itself. Defendant-appellant ignited the kerosene and left the house with the items he had taken. Defendant-appellant maintained that he then sold the items on the eastside of Cleveland and purchased crack cocaine with the proceeds. After defendant-appellant's testimony, the defense renewed its Crim.R. 29 motion for judgment of acquittal. The trial court once again denied the motion. After closing arguments, the three-judge panel found defendant-appellant guilty of all counts, including an amended count four of attempted aggravated arson. The penalty phase of the proceedings commenced on June 5, 1998. The three-judge panel concluded that the aggravating circumstances did not outweigh the mitigating factors and defendant-appellant did not receive the death penalty. Defendant-appellant was sentenced to life in prison without parole on counts one and two of the indictment. On count three, defendant-appellant was sentenced to ten years. On the amended count four, defendant-appellant was sentenced to an eight year term of incarceration. All sentences were ordered to be served consecutively. Defendant-appellant now appeals from the judgment of the trial court. Defendant-appellant's first assignment of error states: I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE ELEMENT OF PRIOR CALCULATION AND DESIGN PURSUANT TO R.C. 2929.04(A)(7). Defendant-appellant argues, through his first assignment of error, that the evidence in this case is insufficient to prove that he killed Mr. Lewis with prior calculation and design. Specifically, defendant-appellant maintains that the attack on Mr. Lewis was not planned in any way, but was the result of a heated argument between two individuals who did not get along. It is defendant-appellant's position that he had not "designed" to kill Mr. Lewis prior to entering the bedroom and, therefore, count one of the indictment should be reduced from capital murder to murder pursuant to R.C. 2903.02. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed. State v. Jenks, supra, paragraph two of the syllabus. More recently, in State v. Thompkins (1977), 78 Ohio St.3d 380,386, the Ohio State Supreme Court stated the following with regard to the "sufficiency" as opposed to the "manifest weight" of the evidence: With respect to sufficiency of the evidence, "sufficiency is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." Black's Law Dictionary (6 Ed. 1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain the conviction). In essence, sufficient is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. A judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case.Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967),10 Ohio St.2d 230. The essential elements of the offense of aggravated murder pursuant to R.C. 2903.01 are that a person (1)purposefully, (2) with prior calculation and design, (3) causes the death of another. Defendant-appellant contends that the essential element of prior calculation and design was not proven beyond a reasonable doubt. While the statute does not define prior calculation and design, numerous courts have established the requisite proof necessary to prove prior calculation and design beyond a reasonable doubt. In State v. Cotton (1978), 56 Ohio St.2d 8,381 N.E.2d 190 at paragraph three of the syllabus, the Ohio Supreme Court held: "where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated design to kill, a finding by the trier of fact of prior calculation and design is justified." It is not required that a prolonged thought process be demonstrated. Statev. Johnson (Dec. 3, 1998), Cuyahoga App. No. 72541, unreported. Even when a defendant only has instants to design the death of the victim, it will be sufficient. State v. Bailey (1992),90 Ohio App.3d 58. 73, 627 N.E.2d 1078. In State v. Taylor (1997),78 Ohio St.3d 15, 18-20, 676 N.E.2d 82, the Ohio Supreme Court reviewed the meaning of the term prior calculation and design. The Court determined that, based upon a review of Ohio case law dealing with the issue, it is not possible to formulate a bright-line test that emphatically distinguishes between the presence or absence of prior calculation and design. Each case turns upon the particular facts and evidence presented at trial.State v. Johnson, supra. In State V. Jenkins (1976), 48 Ohio App.2d 102, the appellate court considered three factors in determining whether prior calculation and design exists: (1) Did the accused and the victim know each other and, if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or the murder site? (3) Was the act drawn out or "an almost instantaneous eruption of events?" See, also, State v.Taylor, supra, at 20, 676 N.E.2d 82. At trial, evidence was presented by the state to demonstrate that not only did defendant-appellant know the victim, but he resided in the victim's home for a number of months before the murder. On the day in question, defendant-appellant and Mr. Lewis argued but the argument ended, by defendant-appellant's own admission, when he went downstairs to smoke crack cocaine. After finishing the crack, defendant-appellant voluntarily returned to the kitchen, chose a weapon, the hammer, which would do considerable damage to Mr. Lewis' skull and entered Mr. Lewis' bedroom through a closed bedroom door and began the attack while Mr. Lewis was still sitting in his motorized cart and unable to defend himself. Consequently, upon review of the facts and circumstances surrounding the death of Mr. Lewis, it is apparent that the evidence presented reveals the presence of sufficient time and opportunity for defendant-appellant to have planned the murder and the circumstances surrounding the murder are sufficient to show a scheme designed to implement the ultimate decision to end the life of the victim. Therefore, the evidence presented by the state was sufficient to prove, beyond a reasonable doubt, the element of prior calculation and design as set forth in R.C.2903.01. For the foregoing reasons, defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: II. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF AGGRAVATED ROBBERY PURSUANT TO R.C. 2911.01. Defendant-appellant maintains that the state failed to prove that a theft offense occurred during the murder of Mr. Lewis. Specifically, defendant-appellant argues that the state failed to establish that any money was missing from the residence or that the TVs and VCRs referred to during the testimony of Lieutenant Gorbett and Detective Beaman were actually stolen. It is defendant-appellant's contention that, since the state failed to prove the existence of a theft offense beyond a reasonable doubt and theft is one of the essential elements of aggravated robbery, defendant-appellant could not, therefore, be convicted of aggravated robbery. R.C. 2911.01(A), Ohio's aggravated robbery statute, provides in pertinent part: No person, in attempting or attempting to committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt of offense, shall do any of the following: (1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it; * * * (3) Inflict or attempt to inflict serious physical harm on another. Theft is defined in R.C. 2913.01 as follows: No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent. As this court previously stated in its disposition of defendant-appellant's first assignment of error; An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, supra, at paragraph two of the syllabus; State v.Thompkins, supra; State v. Moody (July 15, 1998), Lorain App. No. 97CA006711, unreported. In the case sub judice, defendant-appellant maintains that the only evidence admitted at trial to prove the essential element of theft as part of the alleged aggravated robbery was the hearsay testimony of Detective Beaman who maintained that Mrs. Lewis had told him of missing money, TVs and VCRs. It is defendant-appellant's position that a hearsay statement alone cannot establish beyond a reasonable doubt that a theft offense occurred. However, a review of the record from the trial court fails to support defendant-appellant's assertion. Initially, it is apparent from Lieutenant Gorbett's testimony that, at the very least, defendant-appellant attempted to commit a theft offense. According to Lieutenant Gorbett's testimony, defendant-appellant admitted that after he struck Mr. Lewis in the head with the hammer for the first time, defendant-appellant searched through the bedroom for money and the keys to Mr. Lewis' pick-up truck. After defendant-appellant noticed that Mr. Lewis was still breathing, he struck him again repeatedly until Mr. Lewis died. Clearly, during this sequence of events, evidence was presented upon which any reasonable trier of fact could have found that an attempted theft occurred. In addition, viewing the evidence presented in a light most favorable to the prosecution, it is apparent from the testimony of Detective Beaman as well as the testimony of defendant-appellant himself that an actual theft did, in fact, occur. Detective Beaman testified that he spoke with Mrs. Lewis soon after the fire and she indicated that there should have been $1,800 in the bedroom and TVs and VCRs throughout the house. The money and the TVs and VCRs could not be found. Defendant-appellant himself admitted that he left the home with two VCR and a TV that did not belong to him. In addition, defendant-appellant fled Cleveland in Mr. Lewis' pickup truck. Clearly, the essential element of theft was sufficiently established by the state to enable the finder of fact to determine beyond a reasonable doubt that defendant-appellant did commit aggravated robbery as charged in count three of the indictment. For the foregoing reasons, defendant-appellant's second assignment of error is not well taken. Defendant-appellant's third assignment of error states: III. THE APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL DURING THE GUILT-INNOCENCE DETERMINATION PHASE OF TRIAL. Defendant-appellant argues, through his third assignment of error, that defense counsel's failure to object to the allegedly inadmissable hearsay testimony of Detective Beaman regarding the theft of money, TVs and VCRs from the house constituted a denial of effective assistance of counsel as guaranteed by the Sixth andFourteenth Amendments to the United States Constitution. It is defendant-appellant's position that, without the disputed testimony, the state could not have established the underlying theft as an essential element of aggravated robbery. 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 this instance, a review of the alleged statements of Mrs. Lewis regarding the stolen property demonstrates that the trial court properly admitted Mrs. Lewis' statements into evidence as an excited utterance exception to the hearsay rule. Evid.R. 803(2) provides: (2) Excited Utterance. A statement relating to a startling event or condition while the declarant was under the stress of excitement caused by a startling event or condition. To be admitted as an excited utterance exception, the statement at issue must be made while the declarant is still under the stress of the underlying event, and may not be the result of the declarant's reflective thought. State v. Taylor (1993), 66 Ohio St.3d 295,612 N.E.2d 316; State v. Johnson (Nov. 19, 1998), Richland App. No. 98-CA-42, unreported. The record reflects that Mrs. Lewis' statements were made while she was still under the stress of the murder of her husband and the fire at her home. Detective Beaman testified as follows: Q. During the time that you came out the second time, what was her demeanor, did it remain to be upset, and crying, tearful? A. Yes. Q. Would you describe her to continue to be in a hysterical state? A. Yes. (T. at 234) Therefore, since defendant-appellant has failed to show that any objection to the testimony of Detective Beaman would have been sustained, this court cannot now say that trial counsel was ineffective for failing to voice such an objection on the record. Accordingly, defendant-appellant has not demonstrated that the outcome of the trial would have been different had defense counsel objected to the statements of Mrs. Lewis. Defendant-appellant was not deprived of the constitutional right to effective assistance of counsel. Defendant-appellant's third assignment of error is not well taken. Defendant-appellant's fourth and final assignment of error states: IV. THE TRIAL COURT ERRED BY ORDERING TWO CONVICTIONS THAT ARE ALLIED OFFENSES PURSUANT TO R.C. 2941.25 TO BE SERVED CONCURRENTLY. In his final assignment of error, defendant-appellant maintains that the trial court erred in sentencing. Specifically, defendant-appellant maintains that he was convicted of two separate theories of aggravated murder; i.e., prior calculation and design and felony murder. At sentencing, the trial court found the convictions to be merged, but ordered the two sentences to be served consecutively. It is defendant-appellants position that the trial court should have ordered only one life sentence to be served on the merged aggravated murder offenses. A review of the record demonstrates that defendant-appellant's fourth assignment of error has merit. While the trial court properly merged the underlying aggravated murder convictions, it improperly sentenced defendant-appellant to two consecutive life sentences on the merged offense. See State v. Huertas (1990),51 Ohio St.3d 22, 28, State v. Hawkins (1993), 66 Ohio St.3d 339,346, State v. Pless (May 21, 1998), Cuyahoga App. No. 72281, unreported. Accordingly, this court finds that the case be remanded and the trial court impose a single life sentence for the aggravated murder offense. Defendant-appellant's fourth and final assignment of error is well taken. Judgment of the trial court is affirmed in part, reversed in part and remanded for re-sentencing consistent with this opinion. This cause is affirmed in part, reversed in part and remanded for re-sentencing for proceedings consistent with this opinion. Costs to be divided equally between plaintiff-appellee and defendant-appellant. 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. MICHAEL J. CORRIGAN, JUDGE. PATTON. P.J., and ROCCO. J., CONCUR.

2016-07-06 06:36:36.569721+00

JOURNAL ENTRY AND OPINION Defendant-appellant, Wallace Nichols, appeals his convictions in the Cuyahoga County Common Pleas Court of rape and kidnapping. For the reasons that follow, we affirm appellant's conviction but vacate his sentence and remand the cause to the trial court for re-sentencing in accordance with our opinion. On October 27, 1997, appellant was indicted in Case No. CR 356000 on one count of kidnapping, in violation of R.C. 2905.01, and one count of rape, in violation of R.C. 2907.02, regarding an alleged incident involving Gail Goldwin on August 8, 1997. On November 10, 1997, appellant was indicted in Case No. CR 356936 on one count of kidnapping, in violation of R.C. 2905.01, and one count of rape, in violation of R.C. 2907.02, regarding an alleged incident involving Tracie Malone on August 15, 1997. The matters were joined for trial, which began on March 11, 1998. Gail Goldwin testified for the state that she met and became friendly with appellant during the first week of August 1997 when he was painting her parent's home. Goldwin was eighteen years old and lived at home with her parents and siblings. Goldwin testified that on August 8, 1997, appellant telephoned her at home after she got off work and asked her if she wanted to visit his cousin with him. Goldwin agreed and appellant picked her up at her house around 5:00 p.m. They drove to the home of appellant's nephew, Mark Hodge, on the west side of Cleveland. After about an hour, they left to visit one of appellant's friends at an RTA station nearby. Appellant and Goldwin then dropped appellant's friend and his girlfriend off at a nearby store and returned to Hodge's house. Around 8:00 p.m., they left Hodge's house, drove around for awhile and then went to a restaurant for carry-out food. After eating in the car, they drove to appellant's niece's house on the east side of Cleveland. Goldwin testified that after they had visited with the niece for about forty-five minutes, she asked appellant to take her home. Appellant and Goldwin then drove to a park, where they walked around for approximately fifteen minutes. As they were walking back to the car, Goldwin told appellant to take her home. Rather than taking Goldwin home, however, appellant drove to an abandoned parking lot at 93rd and Quincy, near Goldwin's home. Appellant ordered Goldwin to get out of the car. When Goldwin refused to do so, appellant got out of the car, came around to the passenger side of the car, opened the door, grabbed Goldwin by her arm and pulled her out of the car. Goldwin testified that appellant then opened the back passenger side door and pushed her in the car. Appellant said, "Bitch, take your clothes off," and when Goldwin refused to do so, he hit Goldwin in the face three times. Goldwin testified that appellant then pulled at her belt. She pushed him away, but appellant pushed her down on her back in the back seat of the car. As appellant took his shirt and pants off, Goldwin tried to open the car door and get out. Appellant grabbed the door, however, and slammed it on Goldwin's head. Goldwin testified that she told appellant to stop, but he said, "No, I love you, that's why I'm doing this to you." Goldwin testified that appellant pushed her back down and when she struggled as he unzipped her jeans, he hit her again in the face. Appellant then pulled Goldwin's clothes down and had sexual intercourse with her. After he finished, he put his clothes on and ordered Goldwin to put her clothes back on. Around 11:30 p.m., appellant drove Goldwin home. Before he dropped her off, he warned her not to tell anyone what had happened. Goldwin testified that she ran into her house and told her mother what had happened. Sadie Goldwin, Gail's mother, testified that when Gail came in the house, her face was swollen and she was crying. As Gail was telling her mother what had happened, the telephone rang. When Sadie answered the phone, appellant, thinking Sadie was Gail, told her, "Gail, I didn't mean for it to go down like that." According to Gail, appellant kept calling her over the next two weeks but she refused to speak to him. The next morning, Sadie accompanied Gail to St. Luke's Hospital for an examination. Officer Robert Petchler, a City of Cleveland Police Officer, testified that he interviewed Gail at St. Luke's Hospital. According to Petchler, she appeared "scared and upset." Tracie Malone testified that in August 1997, she lived in the upstairs apartment of a two-story home. Her friend, Cinnamon Martinez, lived in the downstairs apartment. Malone did not have a telephone in her apartment so she used Martinez' phone. Malone testified that she met appellant one day as she was walking home from the grocery store. She gave appellant Martinez' telephone number and appellant called her a few times during the next week. They eventually arranged a double-date for August 15. Appellant was to bring his cousin with him to accompany Malone's friend and Martinez' sister, Clecia, on the double-date. Malone testified that appellant arrived at her house around 11:30 p.m. on August 15, 1997. Appellant's cousin was not with him. Nevertheless, Malone and Clecia accompanied appellant to a dance bar in The Flats. Malone testified that appellant did not want to dance, however, so she danced with another man that she met at the bar. Around 1:45 a.m., Malone told appellant she wanted to go home and they left the bar. Clecia, who had met an ex-boyfriend at the bar, did not accompany them. Instead of heading west towards Malone's house, however, appellant drove east, claiming that he knew a short-cut. Appellant drove to a large truck-parking area off Lakeside Avenue. According to Malone, appellant was upset and told her that she had "disrespected" him by dancing with another man at the bar. He started touching her legs, but she pushed his hand away. Malone testified that she kept telling appellant to take her home and that she did not want to have sex with him because she did not know him. Appellant got out of the car, came around to the passenger door, grabbed Malone's arms and pulled her out of the car. He then threw her in the back seat of the car. Malone testified that appellant sat on her, took her pants and underwear off and had sexual intercourse with her. When he was finished, he asked her if she wanted to go home. Malone testified that she put her clothes back on as she was standing outside of the car and then ran into the parking lot toward the parking garage. As she was running, she saw two trucks driving toward her. She ran to one of the trucks and pounded on its passenger door, but the truck driver would not let her in. Malone testified that the driver of the second truck let her in, drove her to the parking lot terminal and called an ambulance and the police. The police took Malone to St. Vincent's Hospital, where she was examined. Malone testified that appellant called "constantly" after the incident, telling her that "he don't know what came over him" and he was sorry. Malone, who knew appellant only as "News," testified that she did not see appellant again until several days later, when she saw him in the arraignment room of the Justice Center, where he was being arraigned on Case No. CR-356000. Malone pointed appellant out to the police and he was arrested. Cinnamon Martinez testified that she met appellant on August 15, 1997, when he picked up Malone and Clecia. Martinez testified that Malone called her at about 4:00 a.m. the next morning from the hospital and told her that appellant had raped her. Martinez testified that appellant called approximately seven times that day, each time wanting to speak with Malone. On one call, appellant told Martinez, "I'm sorry, Tracie made me mad, she disrespected me, she was dancing with another guy." On another call, Martinez heard Malone ask appellant, "why did you do this to me?" and then start sobbing. Martinez took the phone and heard appellant telling Malone that he was sorry and would make it up to her. According to Martinez, appellant called approximately twice a day in the week following the incident. Robert Carter testified that he was the security guard on duty at Triton Trucking on August 15, 1997. Carter testified that at about 2:15 a.m., as he was driving down the hill from the main terminal of the lot, followed by another truck, he observed appellant and Malone standing outside of a car at the bottom of the hill. Carter testified that when he stopped his truck and opened the gate, Malone came over to him. Carter testified that appellant then walked over to where they were standing and grabbed Malone's arm. After Carter told appellant to let go of Malone's arm, Malone walked over to the other truck and began beating on the passenger door, asking to get in. The driver refused to let her in, however. Carter testified that Malone then walked through the open gate of the parking lot and appellant walked after her. Carter observed appellant and Malone arguing, and heard Malone yell, "No. I'm not going with you. You raped me." After appellant left, Carter let Malone in his truck, took her back to the terminal and called 911. Stewart Cathell testified that on August 15, 1997, at approximately 2:00 a.m., he went to Triton Trucking to pick up an empty trailer. He met with Carter at the terminal and then followed him in his truck down the hill to the truck parking lot. As they neared the bottom of the hill, Cathell observed appellant and Malone standing near a car. Cathell testified that Malone then came running over to his truck, yelling that she wanted to get in. Cathell did not let Malone in his truck but yelled at her that he would call the police. Charles Neidbalson, a patrol officer with the City of Cleveland Police Department, testified that he was dispatched to Triton Trucking at approximately 3:25 a.m. on August 15, 1997. He met Malone there, whom he described as "pretty shaken." Officer Neidbalson and his partner interviewed Malone at the hospital. Five witnesses testified for the defense. Mark Hodge, appellant's nephew, testified that he helped appellant paint Gail Goldwin's house and that he saw appellant and Goldwin together on several occasions after that. Hodge also testified that he "did drugs" with Tracie Malone once. Brenda Nichols, appellant's sister, testified that appellant and Goldwin visited her home in late July or early August 1997. According to Nichols, appellant and Goldwin seemed to have a "friendly relationship." Lee Honey, Nichols' boyfriend, similarly testified that appellant and Goldwin visited the house in late July or early August 1997. According to Honey, they stayed only fifteen minutes and then left. Talia Allbright, appellant's niece, also testified that appellant and Goldwin visited the house two times. Allbright testified that Goldwin was laughing and having fun with appellant when she visited. Michael Hoster, Talia's boyfriend, testified that he knew nothing about the case. The trial court then instructed the jury and, prior to its deliberation, gave the jury a printed copy of the charge. On March 18, 1998, the jury returned a verdict of guilty on all charges. On the morning of April 17, 1998, prior to the sentencing hearing, the trial court conducted a hearing, pursuant to R.C.2950.09, to determine whether appellant is a sexual predator. The trial court found that the state failed to prove by clear and convincing evidence that appellant is a sexual predator. The trial court concluded, however, that pursuant to R.C. 2950.01 (B), appellant is a sexually oriented offender. The trial court then sentenced appellant to a term of eight years imprisonment on each of counts one and two in Case No. 356000 and eight years on each of counts one and two in Case No. 356946. The trial court ordered that the eight-year terms in each case be served concurrently, but ordered further that the sentence in Case No. 356946 be served consecutive to that imposed in Case No. 356000. Appellant timely appealed, assigning six assignments of error for our review. Appellant's first assignment of error states: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO PRESERVE THE WRITTEN JURY INSTRUCTIONS PRESENTED TO APPELLANT NICHOLS' JURY AS PART OF THE RECORD FOR APPELLATE REVIEW. In his first assignment of error, appellant contends that the trial court committed reversible error because it failed to comply with R.C. 2945.10 (G) when it submitted a copy of its jury instructions to the jury but did not preserve those instructions as part of the record. We do not agree. The defendant is, of course, entitled to examine written instructions that the jury will have in its deliberations. Statev. Phillips (1995), 74 Ohio St.3d 72, 92. In State v. Schiebel (1990), 55 Ohio St.3d 71, 85, the Ohio Supreme Court observed: A criminal defendant has a right to be aware of all communications with the jury, including any written jury instructions that are taken into the jury room for deliberations. Although those written instructions may only repeat earlier oral instructions, a defendant nevertheless must be allowed to inspect the written instructions to discover any omissions or discrepancies. Because variations between the oral and written instructions may result in prejudicial error, R.C. 2945.10 (G) provides, in relevant part: "Written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court and remain on file with the papers of the case. * * *" Compliance with this statutory requirement allows the reviewing court to determine whether reversible error occurred, although the failure to keep the written charge on file with the papers of the case may be harmless error. See Crim.R. 52 (A). Thus, in State v. Mills (Dec. 9, 1999), Cuyahoga App. No. 74700, this court held that the failure to include written instructions submitted to the jury in the record was harmless error where the state and defense counsel reviewed the court's proposed written instructions with the court in advance of the court's oral instructions and trial counsel did not identify any error in the written instructions or any deviation between the written instructions and the court's oral instructions and appellant did not assert that the written instructions submitted to the jury varied from those delivered orally by the court and recorded in the transcript of the proceedings. Likewise, in the case at hand, we cannot say that the absence of the court's written instructions from the record is reversible error. First, both the state and defense counsel reviewed the jury charge with the court in advance of the court's oral charge and indicated their satisfaction with the charge. Moreover, there is no indication that the oral charge and the written charge differed in any way. After the trial court had concluded its oral charge to the jury, both the prosecutor and defense counsel indicated that they were satisfied with the oral charge. The trial court responded: THE COURT: Good. The only alteration that I have to make — MR. McCARTHY: Gail Goldwin. THE COURT: That is on the verdict forms. I don't think it is a significant problem especially given the defense consistently referred to her as Goodwin. But note there was an error or omission with respect to the charge as to counts to be considered separately so I will type that up myself and insert that. I read it from OJI and copied that into it. With that correction of the printed charge, I will give it to the jury and they can begin their deliberations. MR. McCARTHY: Are you going to read it to them? THE COURT: I already read it. I didn't have it in the printed charge. Thus, before giving the jury its written instructions, the trial court corrected the written instructions to include an instruction that the charges set forth in the indictment constituted separate and distinct matters and were to be considered separately, as charged in the oral charge. The separate verdict forms returned by the jury after their deliberations indicate that the jury properly considered each count separately. Therefore, we hold that in this case, the trial court's failure to include the written instructions as part of the record is harmless error. We strongly emphasize, however, that the correct and best practice is for the trial court to always preserve the written jury instructions with the papers of the case, in full compliance with the requirements of R.C. 2945.10 (G). Appellant's first assignment of error is overruled. Appellant's second assignment of error states: II. THE APPELLANT WAS DENIED DUE PROCESS OF LAW UNDER BOTH THE OHIO AND UNITED STATES CONSTITUTIONS WHEN AN INCOMPLETE RECORD OF PROCEEDINGS WAS RECORDED IN THE TRIAL COURT. In his second assignment of error, appellant contends that the record of the trial proceedings is incomplete. Appellant avers that his Crim.R. 29 motion for acquittal at the close of the state's case, his objections to certain of the state's exhibits and the testimony of Detective Howard, one of the state's witnesses, are missing from the record before this court. Therefore, appellant contends, it is impossible for him to evaluate the legality of the proceedings contained therein, thereby denying him due process of law. We disagree. First, Detective Howard's testimony is not missing from the transcript. Rather, the record reflects that the court recessed for the day immediately after the state called Detective Howard to the stand. The next day, the state chose not to call Detective Howard to the stand and rested its case. With respect to the other alleged omissions from the record, we note that appellant took no steps to correct the record, as he could have pursuant to App.R. 9 (E), by submitting to the trial court any changes he believed would better preserve his arguments for review. Moreover, the failure to provide a complete transcript does not always deny a defendant an effective appeal. In State v. Depew (1988), 38 Ohio St.3d 275, for example, parts of the trial proceedings could not be transcribed because the tapes were inaudible. Noting that the defendant had maintained only that the missing information "could be vital" to his case, the Ohio Supreme Court held that the failure to provide the entire transcript was not prejudicial because there was no indication that the defendant was denied effective appellate review as a result of the omissions. Id. at 279. See, also, State v. Tyler (1990), 50 Ohio St.3d 24, 41; State v. Osborne (1976), 49 Ohio St.2d 135,142. Likewise, in this case, although appellant points out several instances in the record where portions of the trial proceedings are allegedly unrecorded, he has not demonstrated any prejudice by the alleged inadequacy of the record. Rather, he makes only the general assertion that the missing discussions could possibly be a source of information that might lead to issues being raised on appeal. Furthermore, this court has carefully reviewed the record before it and finds it adequate for review. Because there is no indication that appellant is denied effective appellate review as a result of the alleged omissions, we overrule appellant's second assignment of error. Appellant's third assignment of error states: III. THE TRIAL COURT VIOLATED THE APPELLANT'S DUE PROCESS AS PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, TO THE OHIO CONSTITUTION WHEN IT HELD THAT INQUIRY INTO ALLEGED PROSTITUTION FELL WITHIN THE AUSPICES OF OHIO'S RAPE SHIELD STATUTE. In his third assignment of error, appellant contends that the trial court erred in sustaining the state's objections to questions defense counsel asked of Tracie Malone and Mark Hodge. Appellant argues that the trial court erroneously sustained the state's objections on two occasions: (1) on recross, when defense counsel asked Tracie Malone, "Did you ever ask Wallace for money for this sexual encounter?"; and 2) on direct examination of Mark Hodge, when defense counsel asked Hodge about the first time he allegedly met Malone. Hodge testified that he and appellant stopped at Malone's house one day. Defense counsel then asked Hodge: Q. Did you expect to see Tracey at that time? A. Yes, I did. Q. Why didn't you see Tracey? A. Because she supposed to been upstairs kicking it. Q. What do you mean by kicking it? A. She supposed to been upstairs with somebody else or doing something at the time where there was no way that I could see her. Q. Did it come to your knowledge what Tracey was doing that was keeping her from keeping her appointment with you and your uncle Wallace? MR. WALSH: Objection. A. Yeah. THE COURT: Overruled. MR. WALSH: Objection. Can we approach the bench? THE COURT: Yes. The following discussion then occurred at sidebar: MR. WALSH: Objection under the Rape Shield Statute. MR. MAXTON: You're making an assumption. MR. WALSH: Counsel is trying to get out — MR. MAXTON: Turn a trick. MR. WALSH: — that she was having sex with somebody. Note our objection. That is where this is going. THE COURT: Uh-huh. MR. MAXTON: He's correct. THE COURT: If he is correct, then sustained. Appellant contends that the trial court erred in sustaining the state's objections because defense counsel's questions to Malone and Hodge are not prohibited by R.C. 2907.02 (D), Ohio's Rape Shield Statute. R.C. 2907.02 (D) provides, in pertinent part: Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender * * *. Thus, the rape shield statute essentially prohibits the introduction of any extrinsic evidence pertaining to the victim's sexual activity. The exceptions to this prohibition are evidence of the origin of semen, pregnancy, or disease, or of the victim's past sexual activity with the offender. In State v. Gardner (1979), 59 Ohio St.2d 14-18, the Ohio Supreme Court set forth the major reasons behind the enactment of the rape shield law: * * * First, by guarding the complainant's sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than the defendant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process. The evidence that defense counsel attempted to elicit from Mark Hodge — that Malone was having sex with another man, for money, upstairs in her apartment as Hodge and appellant waited downstairs — is undeniably inadmissible under the rape shield law. Accordingly, the trial court properly sustained the state's objection to this line of questioning. Counsel's question to Tracie Malone regarding whether she ever asked appellant for money for their sexual encounter is not barred, however, by the rape shield statute. Rather, the trial court properly sustained the state's objection because it was a new matter not raised in direct examination and therefore not a proper subject of recross. Appellant's third assignment of error is therefore overruled. Appellant's fourth assignment of error states: V. THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT TO CONSECUTIVE SENTENCES WHEN IT FAILED TO MAKE THE FINDINGS REQUIRED BY R.C. 2929.14 (E)(4). In his fourth assignment of error, appellant argues that the trial court erred in imposing consecutive sentences without following the statutory mandates for imposing consecutive sentences set forth in R.C. 2929.14 (E). R.C. 2929.14 (E)(4) 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 sentences, it must make a finding on the record that gives its reason for imposing consecutive sentences. 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). It is not enough, as the state argues, that before imposing the consecutive sentences, the trial court informed appellant that "these are very serious offenses. Your record does not help you. The impact upon the victims is severe. The impact upon society is severe." Rather, as is apparent from the statutory language of R.C. 2929.14 (E)(4) and 2929.19 (B)(2)(c), the trial court must make a record at the sentencing hearing that confirms that the trial court's decision-making process included all of the statutorily required sentencing considerations. SeeState v. Edmonson (1999), 86 Ohio St.3d 324. Appellant's fourth assignment of error is well-taken. The sentence imposed by the trial court is vacated and this cause is remanded to the trial court for re-sentencing in accordance with our opinion. Appellant's fifth assignment of error states: V. THE TRIAL COURT ERRED WHEN IT CLASSIFIED THE APPELLANT AS A "SEXUAL PREDATOR" BECAUSE THE LABEL IS UNREASONABLE OR ARBITRARY IN VIOLATION OF SECTION 1 AND 2 OF ARTICLE I OF THE OHIO CONSTITUTION. In his fifth assignment of error, appellant asks this court to follow the reasoning and holding of State v. Williams (Jan. 29, 1999), Lake App. No. 97-L-191, unreported. This court has repeatedly declined to adopt the reasoning of the Lake County decision. See State v. Wynn (Dec. 2, 1999), Cuyahoga App. No. 75281, unreported; State v. Casper (June 10, 1999), Cuyahoga App. Nos. 73061, 73062, 73064, unreported; State v. Sarli (June 3, 1999), Cuyahoga App. No. 74292, unreported; State v. Hart (Mar. 18, 1999), Cuyahoga App. No. 73375, unreported; State v. Souers (Mar. 11, 1999), Cuyahoga App. No. 72660, unreported; State v.Eppinger (Mar. 11, 1999), Cuyahoga App. No. 72686, unreported. Appellant's fifth assignment of error is therefore overruled. Appellant's sixth assignment of error states: VI. THE TRIAL COURT ERRED WHEN IT EXECUTED AN ORDER STATING THAT THE APPELLANT "PLEAD GUILTY" ON CR-356000 WHEN HE WAS FOUND GUILTY BY A JURY. In his sixth assignment of error, appellant argues that the trial court erred when it entered an order dated April 21, 1998 in CR-356000 stating that appellant "plead guilty" to kidnapping and rape as charged in the indictment and sentencing him to a prison term of eight years on each count. Appellant requests that we reverse and remand on the basis of this typographical error. Although appellant's assignment of error has merit, we will not reverse and remand a matter for correction of a clerical error. Rather, in light of our disposition of appellant's fourth assignment of error, the trial court is directed, upon remand, to issue a sentencing order in CR-356000 that comports with the proceedings in this matter and indicates that appellant was found guilty by a jury of kidnapping, in violation of R.C. 2905.01, and rape, in violation of R.C. 2907.02. It is ordered that appellant and appellee equally 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for re-sentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JUDGMENT: CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RE-SENTENCING. ___________________________ TIMOTHY E. McMONAGLE JUDGE DIANE KARPINSKI, P.J. and MICHAEL J. CORRIGAN. J., CONCUR.

2016-07-06 06:36:36.710119+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant Ahmed Palmer appeals from the Wayne County Court of Common Pleas, which denied his motion to suppress evidence. We affirm. I. {¶ 2} While on routine patrol just before 1:00 a.m., police officer Quinn McConnell saw a car make an illegal left-hand turn and initiated a traffic stop. Mr. Palmer was in the front passenger seat. Patrolman McConnell asked the driver for consent to search the car, but the driver refused. Meanwhile, Patrolman Matthew Fisher had arrived with his canine unit, and began a canine sniff of the car. Upon circling the car, the dog alerted to the passenger door. The officers then searched the car and discovered cocaine, crack cocaine, ecstasy and marihuana. Mr. Palmer was arrested and charged with multiple counts of possession in violation of R.C. 2925.11. The driver of the car was given a verbal warning. According to the testimony and police log reports, the canine unit arrived at the scene approximately two minutes after the stop and the dog alerted approximately two minutes after that — allowing only a few minutes to elapse between the initiation of the stop and the discovery of the drugs. {¶ 3} Mr. Palmer moved to suppress the evidence, and the trial court denied the motion. Mr. Palmer pled no contest under a plea agreement involving several other charges and an agreed sentence. The court accepted his plea and found him guilty. Afterwards, Mr. Palmer timely appealed the denial of the motion to suppress, asserting one assignment of error. II. Assignment of Error "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS." {¶ 4} Mr. Palmer asserts that the trial court erred by admitting the seized evidence, in that the search violated his Fourth Amendment rights. We disagree. {¶ 5} A motion to suppress evidence under the Fourth Amendment involves mixed questions of law and fact. Ornelas v. United States (1996), 517 U.S. 690, 696-97, 134 L.Ed.2d 911; State v. Booth,151 Ohio App.3d 635, 2003-Ohio-829, at ¶ 12. Therefore, this Court grants deference to the trial court's findings of fact, but conducts a de novo review of whether the trial court applied the appropriate legal standard to those facts. Id. In this case, the facts are generally undisputed: a traffic violation occurred, the officer initiated a justifiable traffic stop, and the entire encounter lasted no more than a few minutes. {¶ 6} However, Mr. Palmer contends that Patrolman McConnell initiated the stop merely as a pretext to investigate Mr. Palmer and needlessly prolonged the detention until the canine unit could arrive, thereby undertaking an unjustified search for illegal drugs. Mr. Palmer citesState v. Robinette (1997), 80 Ohio St.3d 234, for the proposition that a police officer, upon making a routine traffic stop, may not call for a canine unit unless that officer has a reasonable and articulable basis for calling the canine unit. However, this interpretation of Robinette is unsupportable. Robinette considered whether the police officer was "objectively justified, under the circumstances, in detaining [Mr.] Robinette after administering the verbal warning?" Id. at 240. Robinette does not address whether or upon what circumstances a police canine unit may be called to the scene. {¶ 7} In the present case, it is undisputed that the officer initiated a justifiable traffic stop, and that the entire course of events lasted no more than a few minutes. That is, the canine officer arrived on the scene approximately two minutes after the stop and the canine alerted approximately two minutes after his arrival — while Patrolman McConnell was reviewing the driver's license and registration. Issuance of a verbal warning similarly requires a few minutes, and in the present case, the canine alerted before completion of the verbal warning. These circumstances are not forbidden by the Fourth Amendment. See State v.Ray, 9th Dist. No. 03CA0062-M, 2004-Ohio-3412, at ¶¶ 12-16 (analyzing a similar detention and traffic sniff). See, also, Illinois v. Caballes (2005), 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (upholding the propriety of canine sniffs during traffic stops). {¶ 8} We find that the police took no action to improperly detain Mr. Palmer or prolong the encounter, and that this canine sniff was not prohibited by the Fourth Amendment. Therefore, the trial court did not err in denying the motion to suppress. Mr. Palmer's assignment of error is overruled. III. {¶ 9} Mr. Palmer's assignment of error is overruled. The judgment of the Wayne County Court of Common Pleas is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30. Costs taxed to Appellant. Exceptions. Slaby, P.J. Carr, J. concur

2016-07-06 06:36:36.764377+00

OPINION {¶ 1} Defendants Steven and Connie Limbacher appeal a judgment of the Court of Common Pleas of Tuscarawas County, Ohio, which awarded plaintiff Paradise Homes, Inc. $16,500.00 for breach of contract, and offset this with an award to defendants in the amount of $7,283.80. Appellants assign three errors to the trial court: {¶ 2} "I. The trial court's findings of fact and the opposing parties' judicial admissions of record prove the trial court committed reversible error as a matter of law in holding that paradise had proven a breach of contract by the limbachers. {¶ 3} "II. The trial court erred as a matter of law in granting a judgment to paradise on quantum meruit since the court itself found there was [sic] written contracts governing the parties' dealings. {¶ 4} "III. The trial court erred as a matter of law in failing to find that paradise and mr. holmes had violated the ohio consumer sales practice act." {¶ 5} The matter was tried to the court. The court made various findings of fact and conclusions of law. The court found the Limbachers entered into a purchase agreement with Paradise Homes, Inc. to purchase a modular home for $59,000.00, and for construction in conjunction with the modular home for additional amount of $30,850.00. Later, Limbachers requested additional work done, which increased the construction total to $32,750.00. The Limbachers entered into a construction note with National City Bank, and borrowed $111,950.00. The lot upon which the modular home would be placed cost $30,000.00. {¶ 6} Paradise Homes, Inc. then began construction work at the lot site. Paradise's agent testified as the work progressed, it ran into certain complications which required additional costs. The additional costs were not passed on to the Limbachers. {¶ 7} The trial court found Steven Limbacher was highly involved in the construction project, and had staked out the lot. He drove by the property every day to and from work to check on the project, and on a nearly daily basis, video-taped and photographed Paradise's progress. Steven Limbacher kept a written journal regarding the project, and a tape recorder in his car so he could record what was going on at the project. He drew multiple drawings of the home on a computer program to show how he thought it should sit on the property. {¶ 8} Paradise Homes, Inc. or its sub-contractor, graded and excavated the home site, laid the foundation and basement, rough graded the lot and erected the house and garage. As the work progressed, National City Bank made partial payments. {¶ 9} The court found Jim Civiello, drilled the well on the property. The court found Civiello was not paid by Paradise Homes, and National City Bank paid him directly. The court found the payment should be subtracted from the Limbachers' total costs. {¶ 10} The Limbachers purchased a water treatment system, and sought $4,000 damages. The court found the evidence did not support the necessity of the additional expense. {¶ 11} The Limbachers' basement experienced problems with standing water because of inadequate drainage systems installed by Paradise Homes. Trico Construction corrected the problem at the Limbachers' expense. {¶ 12} In March of 2001, the Limbachers executed a pre-occupancy inspection report after a walk-through. They listed three items to repair or replace in the dining room and one repair to the exterior siding. On or around the same time, the Limbachers signed a "master key authorization". This document acknowledges the Limbachers had not paid in full and agreed not to take the possession of the home until Paradise Homes was paid in full. The authorization expressly states that Limbachers agreed not to hold any funds due to Paradise for any service-related issues. After executing the preoccupancy inspection report and the master key authorization, the Limbachers tendered a payment by personal check. The payments made to this date did not constitute payment in full. {¶ 13} On July 27, 2001, Paradise Homes changed the locks on the home and attempted to repair the septic system, which had not received health department approval. Steven Limbacher was on the property the same day. When Paradise Homes entered the property with the replacement tanks for the septic system, Limbacher called the sheriff to have Paradise Homes' personnel escorted off the property. Before the sheriff removed Paradise Homes, it dug out the old tank to replace it, but cracked it in the process. Paradise Homes did not complete the septic and mound system, and Trico Construction did so at a cost of $3,200.00. {¶ 14} The court found the total contract price for the home and construction was $91,750.00, of which the Limbachers paid $72,250.00. The court credited them with the payment made directly to Civiello Drilling in the amount of $3,000.00. {¶ 15} The trial court found both Paradise Homes, Inc., and the Limbachers breached the contract. The court found Paradise Homes, Inc. did not meet its burden as to its claim of negligent misrepresentation and conversion. The court found both Paradise Homes, Inc., and the Limbachers failed to meet their burdens on each's claim of trespassing against the other. The court also found the Limbachers had not met their burden on their claim of violation of the Consumer Sales Practices Act. I {¶ 16} The Limbachers first assert the trial court erred as a matter of law in finding they breached their contract with Paradise Homes, Inc. They assert the court's findings of fact and Paradise's judicial admissions are inconsistent with the court's conclusions of law and decision. {¶ 17} The Limbachers urge Paradise stopped work on the Limbacher home on May 14, 2001, walking off the job and declining to continue work on the septic and mound system. The trial court did not make a finding of fact to this effect, but found Paradise attempted to do more work on the septic and mound system on July 27, 2001, but was prevented from doing so by the Limbachers. The Limbachers urge the party who is first to breach a contract is not entitled to collect damages from the nonbreaching party, who is excused from performing because of the breach. {¶ 18} The trial court made no finding as to which party first breached the contract between them. Although the Limbachers couched their assignment of error, in terms of error as a matter of law, they contest the trial court's findings of fact as inaccurate and incomplete. However, the Limbachers provided this court with only a partial transcript of proceedings. Where the record does not contain portions of a transcript necessary to resolve the assigned errors, the reviewing court has nothing to pass upon and must presume the validity of the lower court's proceedings, see Knapp v. Edwards Laboratories, (1980),61 Ohio St. 2d 197. {¶ 19} When possible, courts should construe provisions of a bi-lateral contract as mutually dependent and concurrent, rather than one promise as a condition precedent to the other, and courts should apply the Doctrine of Substantial Performance under these conditions, see e.g.,Kaufman v. Byers, Geauga Appellate No. 2003-G-2525, 2004-Ohio-6346. Under the Doctrine of Substantial Performance, substantial performance only is required of the each party, and exact or literal performance is not necessary, Id., citations deleted. {¶ 20} The trial court's findings show the total contract price for the home and construction was $91,750.00. The extent of the breach of Paradise Homes, Inc. was $7283.80. It appears to this court Paradise Homes substantially complied with the terms of the contract, such that it was entitled to bring an action against the Limbachers for breach of contract. Likewise, the Limbachers failed to pay the entire amount due, owing some $16,500.00 of the total purchase price. Thus, the Limbachers can be considered to have substantially performed, such that they could bring an action against Paradise Homes, Inc. for its breach. {¶ 21} We find the trial court did not error in awarding a judgment to Paradise Homes, Inc. on the breach of contract claim. Accordingly, the first assignment of error is overruled. II {¶ 22} In their second assignment of error, the Limbachers urged the trial court erred as a matter of law because it awarded Paradise Homes, Inc. damages on both a contract theory of recovery, and also on quantum meruit. As Limbachers correctly state, in general the two are alternative theories of recovery. However, the trial court did not grant separate damages for each. Because we find the court was correct in awarding damages on breach of contract, we find no prejudice including the term quantum meruit in its decision. {¶ 23} The second assignment of error is overruled. III {¶ 24} In their third assignment of error, the Limbachers urged the trial court erred as a matter of law in finding they had not met their burden of proving Paradise had violated the Ohio Consumer Sales Practices Act. The Limbachers point to two areas in which they assert Paradise violated the act: First, with regard to the defective septic system, and secondly, in failing to pay Civiello Drilling for the well. {¶ 25} R.C. 1345 embodies the Consumer's Sales Practices Act. The Act is intended to be remedial and should be construed liberally in favor of consumers, Einhorn v. Ford Motor Company (1990), 48 Ohio St. 3d 27,548 N.E. 2d 933. {¶ 26} R.C. 1345.01 defines what constitutes a consumer transaction to which the act applies. It appears the parties all agree the act applies to this transaction. {¶ 27} R.C. 1345.02 prohibits unfair or deceptive acts or practices. Subsection B contains a list of practices which are unfair or deceptive, and authorizes the attorney general to adopt substantive rules that define acts or practices which violate the act. These rules are codified in the Ohio Administrative Code. However, Ohio courts have also defined a variety of specific acts and practices which are unfair or deceptive, see, e.g., Frey v. Vin Devers, Inc.(1992), 80 Ohio App. 3d 1,608 N.E. 2d 796; Fletcher v. Don Foss of Cleveland, Inc. (1993),90 Ohio App. 3d 82, 628 N.E. 2d 60. Thus, the act does not provide an all-inclusive list of what constitutes an unconscionable act or practice, but R.C. 1345.03 sets forth the factors a court should use to determine if an act is unconscionable. Those factors include: {¶ 28} (1) Whether the supplier has knowingly taken advantage of the inability of the consumer reasonably to protect his interests because of his physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of an agreement; {¶ 29} (2) Whether the supplier knew at the time the consumer transaction was entered into that the price was substantially in excess of the price at which similar property or services were readily obtainable in similar consumer transactions by like consumers; {¶ 30} (3) Whether the supplier knew at the time the consumer transaction was entered into of the inability of the consumer to receive a substantial benefit from the subject of the consumer transaction; {¶ 31} (4) Whether the supplier knew at the time the consumer transaction was entered into that there was no reasonable probability of payment of the obligation in full by the consumer; {¶ 32} (5) Whether the supplier required the consumer to enter into a consumer transaction on terms the supplier knew were substantially one-sided in favor of the supplier; {¶ 33} (6) Whether the supplier knowingly made a misleading statement of opinion on which the consumer was likely to rely to his detriment; {¶ 34} (7) Whether the supplier has, without justification, refused to make a refund in cash or by check for a returned item that was purchased with cash or by check, unless the supplier had conspicuously posted in the establishment at the time of the sale a sign stating the supplier's refund policy. {¶ 35} Regarding the work on the septic system, not every instance of substandard work is a violation of the act, if there is nothing deceptive or misleading about it, see, e.g., Yates v. Mason Masters, Inc., Lake Appellate No. 2002-L-001, 2002-Ohio-6697. The trial court made no findings which would demonstrate Paradise engaged in any unfair or deceptive acts in its installation of the septic system. The court found Paradise attempted to perform further work on the septic system in order to bring it up to code, but Limbachers had Paradise's workers escorted from the property. Additionally, the court found the Limbachers had not proven Paradise was trespassing at that time. This court can only conclude the trial court was correct in finding the Limbachers had not demonstrated Paradise Homes, Inc. violated the act with regard to the septic system. {¶ 36} With regard to the failure to pay Civiello Drilling for the well, the Limbachers cite us to State ex rel. Celebrezze v. AmericanCustom Homes, Inc. (July 17, 1984), Cuyahoga County Common Pleas No. 993829, wherein the court found failure to pay a subcontractor, resulting in the filing of a lien against the property, is a violation of the Consumer Sales Practices Act. We do not agree with this holding. {¶ 37} We find that failure to pay a subcontractor is not a per se violation of the act. The trial court's finding was only that the Limbachers, not Paradise Homes, Inc., paid Civiello Drilling. The court did not find Civiello presented the bill to Paradise, and did not find Paradise refused to pay the bill, or refused to give the Limbachers credit for paying it directly. The trial court's fact findings, standing alone, do not demonstrate a deceptive or unconscionable act. {¶ 38} We conclude the trial court correctly found the Limbachers had not met their burden of proof as to their claims under the Consumer Sales Practices Act. {¶ 39} The third assignment of error is overruled. {¶ 40} For the foregoing reasons, the judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is affirmed. By Gwin, J., Hoffman, J., and Boggins, P.J., concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is affirmed. Costs to appellants.

2016-07-06 06:36:37.103423+00

OPINION {¶ 1} Appellant James Johnson appeals his conviction and sentence for domestic violence in the Stark County Court of Common Pleas. {¶ 2} The Appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶ 3} The relevant facts leading to this appeal are as follows: {¶ 4} In July, 2002, Appellant lived with his mother and stepfather. He had been living with them for about one year. (T. at 10). {¶ 5} On July 7, 2002, a family cookout took place at Appellant's mother's residence during which drinking and fighting occurred. (T. at 11-12). {¶ 6} At approximately 4:20 a.m. on July 8, 2002, police dispatch received a 911 call placed by Appellant's nine year old daughter who told police "Dad was beating up on Grandma." (T. at 73). {¶ 7} Upon arriving at the residence, police found Appellant's mother, Mary Blomgren, sitting at the kitchen table and crying. (T. at 51-52, 66-67). The officers observed multiple bruises on Blomgren's body. Upon inquiry, Blomgren told the officers that she was in the bathroom when Appellant opened the bathroom door and threw pots and pan at her. Appellant then followed Blomgren downstairs, grabbed her by the hair and threw her to the floor. (T. at 18). {¶ 8} The victim completed a written statement and signed and completed a domestic violence form. The officers also took photographs of the victim's injuries and called the paramedics. {¶ 9} Appellant was then arrested. {¶ 10} The Stark County Grand Jury subsequently indicted appellant on one count of domestic violence in violation of R.C. § 2919.25(A), a felony of the fifth degree. {¶ 11} Subsequent to a waiver of a trial by jury, the case proceeded to a bench trial on September 23, 2002. Appellant was found guilty of one count of domestic violence. {¶ 12} On October 28, 2002, the trial court sentenced appellant to two years of community control sanctions. Appellant was ordered to follow all rules and conditions of his probation, successfully complete an anger management course and was further order to have no contact with the victim unless such was approved by his probation officer and treatment provider. {¶ 13} Appellant timely appealed and herein raises the following sole Assignment of Error: ASSIGNMENT OF ERROR {¶ 14} "I. Appellant's Conviction For Domestic Violence, A Felony Of The Fifth Degree, Was Against The Manifest Weight Of The Evidence." I. {¶ 15} In his sole Assignment of Error, appellant contends that his conviction was against the manifest weight of the evidence. We disagree. {¶ 16} On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine, "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State v. Thompkins (1997),78 Ohio St.3d 380. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. {¶ 17} In support of his position, appellant states that the victim recanted her story at trial and testified that she was the aggressor and that Appellant did not assault her. (T. at 13-17, 30-35). {¶ 18} Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. {¶ 19} Upon review of the transcript in this matter, we find that the trial court had before it the following: a tape of the 911 call from Appellant's nine year old daughter stating that her dad was assaulting her Grandmother; the victim's written statements from the night she stated she was assaulted by Appellant; photographs of the victim's injuries and testimony of the police officers concerning the events of July 7-8, 2002. {¶ 20} Based on the above, we find that the trier of fact did lose its way in convicting appellant. {¶ 21} Appellant's sole assignment of error is overruled. {¶ 22} For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed. Gwin, P.J., and Wise, J., concur.

2016-07-06 06:36:37.242823+00

OPINION {¶ 1} This is an appeal from a summary judgment for an insurer on a claim for uninsured/underinsured ("UM/UIM") motorist coverage. {¶ 2} Plaintiff-Appellant, Mary Ann Minton, is the surviving spouse and executor of the Estate of Jeffrey Minton, who died as a result of injuries he suffered in an automobile collision that occurred on March 14, 1991. Plaintiff settled with the driver of the other vehicle involved in the collision, the tortfeasor, for the limits of the tortfeasor's liability coverage in 1991. {¶ 3} Jeffrey Minton was employed by Ferguson Construction Company, Inc. ("Ferguson Construction") as a sales representative on the date the accident occurred. Minton was driving his personal automobile to Ferguson Construction's offices to meet with representatives of a vendor that sold products to Ferguson Construction. Minton's supervisor directed him to attend the meeting. {¶ 4} Ferguson Construction was insured under a policy of automobile liability insurance issued by Defendant-Appellee Fidelity and Guaranty Insurance Underwriters, Inc. ("Fidelity") when Minton was killed. The policy provided UM/UIM coverage. {¶ 5} In 2001, following the decision in Scott-Ponzer, Inc. v.Liberty Mutual Fire Ins. Co. (1999), 85 Ohio St.3d 660, Plaintiff notified Fidelity of her claim for UM/UIM coverage arising from her husband's death under the policy Fidelity had issued to Ferguson Construction. Fidelity rejected the claim. Plaintiff then commenced the underlying action for coverage. {¶ 6} After the holding in Scott-Ponzer was modified byWestfield Insurance Company v. Galatis, 100 Ohio St.3d 216,2003-Ohio-5489, the coverage issue in the action became whether, per Galatis, Minton was acting within the course and scope of his employment when he was killed. Fidelity's policy contained no provision that would deny coverage in that event. {¶ 7} Fidelity moved for summary judgment on the coverage issue. Plaintiff opposed the motion. The trial court found that, on the record before it, reasonable minds could only conclude that Minton was not acting within the course and scope of his employment when he was killed, and it granted summary judgment for Fidelity. Plaintiff filed a timely notice of appeal. {¶ 8} ASSIGNMENT OF ERROR {¶ 9} "The trial court erred in granting judgment as a matter of law to defendant fidelity and guaranty insurance underwriters, inc. and also in thereby implicitly denying plaintiff mary ann minton's motion for summary judgment." {¶ 10} Summary judgment may only be granted if: (1) No genuine issue of material fact remains to be litigated; (2) The moving party is entitled to judgment as a matter of law; and (3) Reasonable minds can come but to one conclusion, and that conclusion is adverse to the party against whom the motion of summary judgment is made. Civ.R. 56; Harless v. Willis DayWarehousing Co. (1978), 54 Ohio St.2d 64, 66. All evidence must be construed against the moving party. Ferrando v. Auto-OwnersMut. Ins. Co. (2002), 98 Ohio St.3d 186, 191, 2002-Ohio-7217. We have held that even if the underlying facts are not in dispute, summary judgment may be inappropriate if reasonable inferences from those facts may lead to different conclusions. Hampton v.Trimble (1995), 101 Ohio App.3d 282. {¶ 11} Two issues are raised on appeal. First, Plaintiff argues that a genuine issue of material fact exists as to whether Minton was acting in the course and scope of his employment at the time of the accident. She points to evidence in the record that he was an outside salesman, but that he was traveling to Ferguson's office that morning to attend a meeting with a vendor, as he had been directed to do by his employer. Fidelity contends that Minton was merely commuting to work, and that his job duties didn't begin until he actually arrived at the office. {¶ 12} UIM coverage allows an injured person to recover from his or her insurance provider, or his or her employer's insurance provider, for amounts in excess of the tortfeasor's policy limits. While the history of UM/UIM coverage obtained through an employer's insurance policy has been long and arduous, the Ohio Supreme Court resolved many of the questions presented inWestfield Ins. Co. v. Galatis (2003), 100 Ohio St.3d 216,2003-Ohio-5849. The Court held that, unless coverage for injuries off the job is expressly provided by the policy, an employee may be entitled to UM/UIM coverage under a policy issued to his employer only if the employee is injured while acting in the "course and scope" of his employment. Id. at 222. {¶ 13} The general rule is that an employee is operating in the course and scope of employment when he is performing an obligation of that employment. Industrial Comm. v. Davidson (1928), 118 Ohio St. 160. For an employee who reports to a fixed location each working day, the general rule, known as the "coming and going rule," is that an employee's commute from home to or from his place of employment is not within the course and scope of his employment. MTD Products, Inc. v. Robatin (1991),61 Ohio St.3d 66, 68. The trial court based its grant of summary judgment on finding that the coming and going rule barred recovery. {¶ 14} The coming and going rule does not apply when the employee does not necessarily report to a fixed location each day but travels on behalf of his employer to other locations to perform some or all of his duties. For that purpose, employment can be defined in relation to the employee's work location as fixed situs, semi-fixed situs, and non-fixed situs. See Fletcherv. Northwest Mechanical Contractors, Inc. (1991),75 Ohio App.3d 466,472 — 473. That determination depends on the nature of the employment itself. Id. In determining whether an employee is a fixedsitus employee, and therefore within the coming and going rule, the focus is on whether the employee commences his substantial employment duties only after arriving at a specific location designated by his employer. Rackman v. Cubby DrillingInc. (1998), 81 Ohio St.3d 117, paragraph one of the syllabus, 1998-Ohio-455. {¶ 15} Application of Rackman is highly fact-dependant. Several courts have distinguished commutes for fixed situs employees from semi-fixed situs employees. {¶ 16} The Cuyahoga Court of Appeals found that an employee's deviation from a direct route to his employer's office in order to pick up co-workers, hold a breakfast meeting to discuss the day's activities, and then drop those co-workers off at various work assignments was not within the course and scope of his employment when the facts indicated that the diversion was for the accommodation of friends and offered only incidental benefits to the employer. Skapura v. Cleveland Electric Illuminating Co. (1951), 89 Ohio App. 403. {¶ 17} In contrast, the Hamilton County Court of Appeals held that members of a film crew, who typically worked out of a fixed office and were injured in an auto accident in a company van on the return trip from a work site, were acting within the scope and course of their employment because the travel was necessary to perform their duties as directed by their employer.Midwestern Indemnity Co. v. Video Features, Inc. (November 2, 1994), Hamilton App. No. C-930401. {¶ 18} We addressed a similar question in a workers compensation context in Hampton v. Trimble (Feb. 22, 1995), Montgomery App. No. 14544. Hampton was employed as a home health care nurse who commuted directly to and from her home to her patients' homes. She slipped on ice in her driveway and broke her ankle after returning home from visiting patients, but prior to calling another patient as she had promised. We reversed the trial court's grant of summary judgment and held that it was a genuine issue of fact whether her employment terminated when she parked her car, or whether it continued due to her remaining obligation to call a patient. {¶ 19} The trial court found Minton was not acting within the course and scope of his employment, and therefore barred Minton's claim under the coming and going rule. Plaintiff argues that reasonable inferences from the facts on the record could lead to a different conclusion. Hampton, supra. There is testimony from Minton's supervisor that he typically reported to Ferguson Construction's office every morning and spent approximately 90% of his time there. There is also testimony that, as a salesman, Minton had broad discretion over when he needed to be in the office, and that Minton was only coming to Furgeson's offices the morning of his accident to meet not with a sales prospect but with representatives of a vendor. It is undisputed that Minton's employer had directed him to meet with them at the employer's office on that occasion. {¶ 20} Minton was a semi-fixed situs employee who had general discretion to decide where he would meet his employer's customer. On the day he was killed, and when he was killed, Minton was not traveling to a location he'd chosen, but was traveling from his home to the employer's offices. Therefore, and notwithstanding the fact that Minton might have planned to meet a customer elsewhere, under different circumstances, in this instance he didn't. Further, his employer's direction to be at the office deprived Minton of the discretion he might otherwise have enjoyed and acted upon. {¶ 21} Plaintiff argues that the very fact that Minton was following his employer's direction to meet the customer at the employer's offices demonstrates that Minton was acting within the course and scope of his employment when he was killed. However, the purpose of his travel to get there was no different from the travel of any fixed-site employee going to work. Minton's job duties didn't commence in that circumstance before he reached the offices of Ferguson Construction. {¶ 22} The trial court did not err when it granted summary judgment for Fidelity. That finding renders Plaintiff'sFerrando contention moot. The assignment of error is therefore overruled, and the judgment of the trial court will be affirmed. Brogan, J. and Wolff, J., concur.

2016-07-06 06:36:37.341423+00

OPINION {¶ 1} Appellant Matt I. Marcum challenges his conviction on one count of felonious assault. The charge arose after Appellant attacked his wife and fired a number of gunshots at her both inside their trailer and while she was driving away. Appellant argues that evidence retrieved from his trailer should have been suppressed because the police violated the knock-and-announce rule when executing their arrest warrant. The U.S. Supreme Court recently ruled that evidence obtained in violation of the knock-and-announce rule is not required to be suppressed. Furthermore, exigent circumstances existed to excuse the officers from following the knock-and-announce rule. Appellant also argues that statements he made over the telephone to the police should have been suppressed because the statements were not properly authenticated at trial. The record reveals that Appellant identified himself during the phone call and that it was otherwise properly authenticated. Finally, Appellant argues that the trial court should have sustained his motion for a jury instruction on the inferior degree offense of aggravated assault. The record reflects that there is no reasonable interpretation of the evidence to support the conclusion that Appellant acted in a sudden rage or heat of passion provoked by the victim, which is part of the definition of aggravated assault, and that the trial court was correct in denying Appellant's motion. Appellant's three assignments of error are without merit, and the judgment of the Columbiana County Court of Common Pleas is affirmed. FACTS AND PROCEDURAL HISTORY {¶ 2} On September 14, 2003, Amy Marcum, Appellant's wife, drove to the Leetonia Police Department and reported that Appellant had attacked her at their home and fired shots at her and her three-year-old son while they were fleeing in the family van. She had visible injuries, and the police identified bullet holes in the van. The Leetonia police immediately requested assistance from Chief Shelby Blakeman of Washingtonville, from the Columbiana County Sheriff's Department, and from the Columbiana County Prosecutor's Office. {¶ 3} Amy Marcum apprised the police that Appellant was intoxicated, was taking nitroglycerin for a heart condition, and was complaining of chest pains when she left. Mrs. Marcum gave Chief Blakeman her home phone number, and he called the number to determine if Appellant needed medical care. Chief Blakeman identified himself and asked to speak to Matt Marcum, to which Appellant responded: "This is Matt." (2/24/04 Tr., p. 11.) Appellant then proceeded to tell Chief Blakeman that he knew he was going to jail for shooting at Mrs. Marcum, and that he fired shots from the house. (2/24/04 Tr., p. 12.) He also stated, "[i]f someone came back to the house tonight, somebody was gonna die." (2/24/04 Tr., p. 12.) {¶ 4} An arrest warrant was issued, and the regional Special Response Team ("SRT") went to Appellant's residence to execute the warrant. The SRT believed Appellant to be armed and dangerous. Upon arriving at the residence, the members of the SRT took up positions around the house. The SRT was prepared to use a battering ram to enter the house. Deputy Willie Coleman shouted "Sheriff's Office," waited five to ten seconds for a response, and then hit the front door with the battering ram when there was no response. The officers also threw an explosive 3device, known as a "flash bang" grenade or percussion grenade, through one of the windows in the home. (2/19/04 Tr., p. 16.) The officers found Appellant asleep in his bed with a handgun lying next to him. They arrested Appellant and confiscated the gun as evidence. {¶ 5} On October 31, 2003, the Columbiana County Grand Jury issued a two-count indictment against Appellant. Count one was for felonious assault, a second degree felony pursuant to R.C. § 2903.11(A)(1). The second count was for arson, involving a separate incident that occurred on June 21, 2003. On December 22, 2003, the two counts were severed for purposes of trial. Appellant pleaded not guilty to the charges and obtained private counsel. {¶ 6} On February 3, 2004, Appellant filed a motion to suppress any oral statements he made to the police, including any statements he made to Chief Blakeman. A hearing was later held on this motion. {¶ 7} Also on February 3, 2004, Appellant filed a motion to suppress the evidence that was seized during his arrest, including the 9mm handgun found on his bed. A hearing was also held on this motion. {¶ 8} On March 5, 2004, the trial court filed a journal entry overruling the motion to suppress the handgun, and partially overruling the motion to suppress statements made to the police. {¶ 9} The case went to jury trial on October 4, 2004. At the close of the evidence, Appellant made an oral motion that the jury be instructed on the inferior degree offense of aggravated assault. The motion was overruled. The jury returned a guilty verdict on October 6, 2004, on one count of felonious assault. A sentencing hearing was held November 18, 2004, and the trial court imposed a six-year prison term. ASSIGNMENT OF ERROR NO. 1 {¶ 10} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS AND PERMITTED INTO EVIDENCE ITEMS SEIZED FROM THE PERSONAL RESIDENCE IN VIOLATION OF THEFOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AS WELL AS THE FOURTH AMENDMENT OF THE OHIO CONSTITUTION." {¶ 11} On February 3, 2004, Appellant filed a motion to suppress all physical evidence seized from his home after the police executed their arrest warrant by knocking down his front door and throwing a percussion grenade through the living room window. Appellant argues that the police action violated the statutory "knockand-announce" rule found in R.C. § 2935.12(A): {¶ 12} "(A) When making an arrest or executing an arrest warrant or summons in lieu of an arrest warrant, or when executing a search warrant, the peace officer, law enforcement officer, or other authorized individual making the arrest or executing the warrant or summons may break down an outer or inner door or window of a dwelling house or other building, if, after notice of his intention to make the arrest or to execute the warrant or summons, he is refused admittance, but the law enforcement officer or other authorized individual executing a search warrant shall not enter a house or building not described in the warrant." {¶ 13} Appellant argues that the statutory rule codifies rulings of the United States Supreme Court, such as Wilson v. Arkansas (1995),514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976, and Miller v.United States (1958), 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332. These cases established that "reasonableness," under the Fourth Amendment protection against unreasonable searches and seizures, requires police officers to knock on the door and announce their presence before forcibly entering a residence. Once an officer has properly knocked and announced his presence, he may enter the premises upon refusal to admit. State v.Dixon (2001), 141 Ohio App.3d 654, 660, 752 N.E.2d 1005. Officers may also enter the premises once a reasonable period of time has elapsed. Id. {¶ 14} The trial court ruled that the police violated the knock-and-announce rule by breaking the door down after only five to ten seconds, and by failing to announce that they were there to execute an arrest warrant. (Oct. 7, 2004 Opinion, p. 2.) The trial court found, though, that exigent circumstances excused the officers' actions. The trial court found that Appellant was known to have earlier fired shots inside the house and that the officers' safety was at stake, constituting exigent circumstances. The trial court concluded that Appellant's constitutional rights had not been violated and that no evidence should be suppressed. {¶ 15} The United States Supreme Court has very recently held that the suppression of evidence is not an applicable remedy for a violation of the constitutional knock-and-announce rule. Hudson v. Michigan (2006),547 U.S. ___, 126 S.Ct. 2159, 165 L.Ed.2d 56. In Hudson, the police obtained a warrant to search for drugs and weapons. When the police arrived at the house, they waited only three to five seconds before opening the door. The defendant moved to have all inculpatory evidence deriving from the search warrant suppressed due to the allegedFourth Amendment violation. The Michigan trial court granted the motion, and this decision was overruled in the Michigan Court of Appeals. The Michigan Supreme Court declined to accept the case for review. The case was accepted by the United States Supreme Court, which concluded that the, "interests protected by the knock-and-announce requirement * * * do not include the shielding of potential evidence from the government's eyes." Id. Hudson reasoned that the knock-and-announce rule was meant to protect against injury due to the sudden appearance of police inside a home, or to protect against the invasion of privacy and dignity that can be destroyed by a sudden entrance. Hudson further held that, "the knock-and-announce rule has never protected * * * one's interest in preventing the government from seeing or taking evidence described in a warrant." Id. The Hudson Court specifically held that, "the exclusionary rule is inapplicable," to violations of the knock-and-announce rule. Id. Based on Hudson, no evidence should have been suppressed due to a violation of the knock-and-announce rule. {¶ 16} Even if Hudson does not apply to the instant appeal, the parties agree that a police officer is excused from following the "knock and announce" rule when exigent circumstances exist. See State v.Furry (1971), 31 Ohio App.2d 107, 113, 286 N.E.2d 301; Hall v.Shipley (C.A.6, 1991), 932 F.2d 1147, 1151. The validity of exigent circumstances is decided on a case-by case basis. State v. DeFiore (1979), 64 Ohio App.2d 115, 119, 411 N.E.2d 837. {¶ 17} It is well-settled that, "where officers hold a reasonable belief that they are in danger of bodily harm or that suspects are trying to escape or destroy evidence, compliance with the knock-and-announce principle is excused." Gaston v. Toledo (1995),106 Ohio App.3d 66, 75, 665 N.E.2d 264. It is clear from the record that the police came to Appellant's home to arrest him for a violent crime involving a firearm. The officers were aware that shots had already been fired. (2/19/04 Tr., p. 11.) They were aware that Appellant had fired a shot in the home and had fired multiple shots at an occupied motor vehicle. They were aware that he was still armed. (2/19/04 Tr., p. 11.) Their reasonable belief of danger was not a ruse or pretext. They took a number of precautions in executing the arrest warrant, including the use of body armor. They came prepared to use a battering ram and explosive devices to gain entry into the home. After forcibly entering the home, they found Appellant lying in bed with a handgun at his side, and there was an odor of alcohol on him. Officers removed the handgun and then arrested him. Their reasonable belief of danger was shown to be justified by the existence of the gun and the evidence of multiple gunshots subsequently recovered from the crime scene. {¶ 18} From the overwhelming evidence admitted at the suppression hearing, it was clear that the police had a reasonable belief of danger when executing the arrest warrant. This provided exigent circumstances to excuse the requirements of the knock-and-announce rule. For all the aforementioned reasons, Appellant's first assignment of error is overruled. ASSIGNMENT OF ERROR NO. 2 {¶ 19} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT PERMITTED INTO EVIDENCE ORAL STATEMENTS ALLEGEDLY MADE BY THE APPELLANT." {¶ 20} Appellant argues that certain statements he made during a telephone call with Chief Blakeman should have been suppressed because the state never authenticated that Appellant was actually the person speaking on the phone. The phone call was obviously an important piece of the evidence, because during the call, Appellant admitted that he tried to shoot Mrs. Marcum. Appellant has not raised any Fourth orFifth Amendment issues on appeal regarding the phone call that would require the suppression of evidence, and it appears that the question on appeal is actually whether the trial court abused its discretion by not excluding the telephone call pursuant to the authentication requirements of Evid. R. 901. Authentication deals with reliability and relevance of evidence, rather than with the possible violation of constitutional rights that might require the suppression of evidence to preserve those rights. State v. Brown, 151 Ohio App.3d 36, 2002-Ohio-5207,783 N.E.2d 539, ¶ 36. {¶ 21} "Ordinarily, a trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake County (1991), 58 Ohio St.3d 269, 271,569 N.E.2d 1056. {¶ 22} Evid. R. 901(A) states: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." {¶ 23} Evid. R. 901(B) provides a number of examples of valid authentication, "[b]y way of illustration only, and not by way of limitation * * *." Evid. R. 901(B)(6) provides an example of how to authenticate a telephone conversation: {¶ 24} "(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (a) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (b) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone." {¶ 25} The staff notes to Evid. R. 901 clarify how a telephone call may be authenticated: {¶ 26} "Thus if the testifying witness testifies that he dialed a number listed under the name of a particular person, and the person answering the phone identified himself as the person listed in the directory, then the testifying witness may testify as to the contents of the call; that is, `self-identification' (of the person called) is sufficient authentication." (Staff notes to Evid. R. 901(B)(6)). {¶ 27} In the instant case, Mrs. Marcum provided Chief Blakeman with her home phone number, which was also Appellant's home phone number. Chief Blakeman dialed the number, identified himself, and asked to speak with Matt Marcum, who then identified himself: {¶ 28} "Q. [Prosecutor Gamble] Okay. Can you describe to us then what took place when you dialed the Marcum number? {¶ 29} "A. [Chief Blakeman] Mr. Marcum answered the phone, sounded very intoxicated, and he explained to me, you know, I asked him if, you know, he was okay, if he was experiencing any chest pains, do you need medical attention, are you all right? And he just said that he had been drinking, obviously. {¶ 30} "Q. Did he — did you identify yourself? {¶ 31} "A. Yes, I did. {¶ 32} "Q. Okay, and do you recall how you identified yourself? {¶ 33} "A. I told him that I was Chief Blakeman from Washingtonville Police Department, that I was assisting Leetonia. {¶ 34} "Q. All right. And did you ask to speak to Matt Marcum, or did you ask him to identify himself? {¶ 35} "A. I asked for Matt Marcum, and he said, `This is Matt.' {¶ 36} "Q. All right. I'm sorry to interrupt you. {¶ 37} "A. Yeah. And uh, at that point he says, `I — He said, `I know why you're calling, I'm going to go to jail.' You know, he says, `I missed, I'd have shot the bitch.' And this is basically the gist of it." (2/24/04 Tr., pp. 11-12.) {¶ 38} This evidence, if believed by the trial court, was sufficient to authenticate that Matt Marcum was the person speaking on the phone. One of the residents of the home (Mrs. Marcum) provided the phone number, and another resident of the home (Appellant) answered the phone and identified himself. This is at least as reliable a method of authenticating a phone call as that provided in the illustration in Evid. R. 901, which involves a person looking up the number in a phone directory and having the person who answers the phone identify himself or herself. Therefore, the trial court did not abuse its discretion in accepting that the phone call was properly authenticated, and Appellant's second assignment of error is overruled. ASSIGNMENT OF ERROR NO. 3 {¶ 39} "THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT WHEN IT FAILED TO GRANT APPELLANT'S REQUEST FOR A CHARGE OF THE LESSER INCLUDED OFFENSE OF AGGRAVATED ASSAULT." {¶ 40} Appellant argues that the trial court should have given a jury instruction on the lesser included offense of aggravated assault. It should first be clarified that aggravated assault is not a lesser included offense of felonious assault, but is an inferior degree offense, meaning that, "its elements are identical to those of felonious assault, except for the additional mitigating element of serious provocation." State v. Deem (1988), 40 Ohio St.3d 205, 210-211,533 N.E.2d 294. The elements of felonious assault and aggravated assault are essentially identical, except for the additional mitigating circumstance in aggravated assault that the defendant was, "under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is sufficient to incite the person into using deadly force * * *." R.C. § 2903.12(A). {¶ 41} Appellant contends that a jury instruction should be given for an inferior degree offense, "if under any reasonable view of the evidence, and when all of the evidence is construed in a light most favorable to the defendant, a reasonable jury could find that the defendant had established by a preponderance of the evidence the existence of one or both of the mitigating circumstances." State v.Rhodes (1992), 63 Ohio St.3d 613, 617-618, 590 N.E.2d 261. {¶ 42} Appellant preserved this issue for review by requesting an instruction on the inferior degree offense, which was denied. (Tr., pp. 599-601.) {¶ 43} When reviewing a trial court's jury instructions, the proper standard of review for an appellate court is whether the trial court's refusal to give a requested jury instruction constituted an abuse of discretion under the facts and circumstances of the case. State v.Wolons (1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443. 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.State v. Clark (1994), 71 Ohio St.3d 466, 470, 644 N.E.2d 331. {¶ 44} When a defendant requests an instruction on an inferior degree offense, the burden is on the defendant to persuade the factfinder of the mitigating elements of the offense. See State v. Hill (1996),108 Ohio App.3d 279, 284, 670 N.E.2d 555; State v. Rhodes (1992),63 Ohio St.3d 613, 590 N.E.2d 261, syllabus. It is axiomatic that the burden is also on Appellant to establish reversible error on appeal. {¶ 45} Appellant took the stand in his own defense. He testified that he thought someone was stealing his van, so he took his gun and ran outside. (Tr., p. 551.) He testified that the van was coming toward him, and he fired some shots in self-defense, or possibly as warning shots. (Tr., p. 583.) Special Agent Ed Carlini also noted that the bullet hole in the hood of the van likely indicated that Appellant was either walking toward the van, or that the van was moving toward him, when the shots were fired. (Tr., p. 425.) This is the evidence Appellant relies on in support of his claim that the trial court should have given an instruction on aggravated assault. {¶ 46} Appellant's argument is unpersuasive. Appellant never testified that he was afraid, that he was provoked, that he was in a rage, or anything similar to these emotions. Appellant did claim that he shot in self-defense, but a self-defense theory is usually contradictory to proof of sudden passion or rage. State v. Baker (1996),111 Ohio App.3d 313, 324, 676 N.E.2d 143. Self-defense requires proof that the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force. See State v. Robbins (1979), 58 Ohio St.2d 74,388 N.E.2d 755, paragraph two of the syllabus. These elements have nothing to do with whether a person is in a sudden fit of passion or sudden rage. {¶ 47} Appellant also testified that the shots he fired were meant to be warning shots. (Tr., p. 573.) Firing a warning shot implies rational and objective thought, not passion and rage. This testimony is also inconsistent with the elements of aggravated assault. {¶ 48} Even if one could construe that Appellant had a moment of fear in seeing the van coming toward him, fear alone is not a basis for establishing the mitigating circumstances of aggravated assault.State v. Mack (1998), 82 Ohio St.3d 198, 201, 694 N.E.2d 1328. It should be repeated that Appellant never testified that he was afraid during any of the events involved in the shots being fired at the van. {¶ 49} Even if we could surmise that the alleged theft of the van was the provocation for firing the shots, it is clear that theft of personal property is not the type of provocation that satisfies the provocation element in aggravated assault. State v. Clark, 8th Dist. No. 83474,2004-Ohio-5964 (the theft of defendant's car by the victim was not the type of provocation warranting a jury instruction on an inferior degree offense). {¶ 50} Appellant also testified that he got into a slight argument with his wife over some money prior to the shooting. (Tr., p. 545.) A single argument, or even a history of arguments, with another person is not sufficient provocation to satisfy the requirements of aggravated assault. State v. Serrano, 164 Ohio App.3d 103, 2005Ohio-5606,841 N.E.2d 368, ¶ 23. {¶ 51} Appellant's testimony completely contradicts any theory of sudden passion or sudden rage sufficient to provoke deadly force. Appellant spoke about a minor argument with his wife, "nothing to amount to much." (Tr., p. 547.) According to Appellant, it was Amy Marcum who brought the gun into the living room, and the shot in the living room supposedly occurred as they were wrestling over the gun. (Tr., p. 549.) There is no indication of any passion or rage on Appellant's part involved in the incident. Concerning the two shots into the van, Appellant again provided no testimony of anger, rage, or sudden passion. In fact, he very clearly established that, during the time period of the crime, he was calm, was not provoked by anything his wife said or did, was clear-headed, and did not intend to hurt anyone when he shot at the van. His account of the events is that he either fired warning shots or fired in self-defense, neither of which is consistent with sudden rage or sudden passion brought on by serious provocation. Appellant points to nothing in the record that could remotely establish a sudden passion or rage brought on by sufficient provocation, and therefore, this assignment of error is overruled. {¶ 52} In conclusion, the record fully supports the trial court's decision on both the evidentiary and jury instruction questions. The U.S. Supreme Court has held that suppression of evidence is not appropriate as a remedy to violations of the knock-and-announce rule.Hudson, supra. Furthermore, the police had exigent circumstances for violating the knock-and-announce rule. The phone call in which Appellant admitted shooting at his wife was properly authenticated. Finally, there was no proof of provocation and passion or rage that would have warranted a jury instruction on aggravated assault. All three assignments of error are overruled, and the judgment of trial court is hereby affirmed in full. Donofrio, P.J., concurs. Vukovich, J., concurs.

2016-07-06 06:36:37.990627+00

OPINION Defendant-appellant Kenny L. Wheeler appeals from an order of the common pleas court denying his Crim.R. 32.1 motion to vacate his guilty pleas. He contends that he was entitled to withdraw his pleas because the trial court failed to comply with Crim.R. 11 when taking the pleas and because the pleas were not made knowingly, voluntarily or intelligently, in view of his incompetency. We conclude that the trial court did not abuse its discretion. First, the issues raised by Wheeler are not properly raised in this appeal. Second, the record shows that the trial court did comply with Crim.R. 11. Finally, the record does not support the claim that Wheeler was incompetent at the time he entered the pleas. Accordingly, the judgment of the trial court is Affirmed. I Wheeler was indicted in 1993 on one count of Aggravated Murder and twelve counts of Felonious Assault, all with gun specifications. He entered a plea of not guilty by reason of insanity. However, two separate mental health professionals submitted reports indicating that Wheeler was sane, competent to stand trial, and competent to waive his rights. Pursuant to plea negotiations, Wheeler subsequently pled guilty to Aggravated Murder and one count of Felonious Assault, without any gun specifications. He was sentenced accordingly. In January, 2001, Wheeler filed a motion, pro se, to withdraw his guilty pleas. The court denied the motion. Wheeler filed a pro se notice of appeal. Appellate counsel was appointed to pursue the appeal. II We begin by noting that Wheeler's arguments are based upon the claim that the trial court should have granted his motion to withdraw his pleas because it failed to comply with the sentencing procedures of Crim.R. 11(C), and because of matters that are outside of the record before us. A motion to withdraw a guilty plea should be granted only to correct a manifest injustice if made after sentencing. Crim.R. 32.1; State v. Xie (1992), 62 Ohio St.3d 521, 526. This court has previously discussed the "manifest injustice" standard and its relation to Crim.R. 11 and to matters outside of the record in State v. Hartzell (Aug. 20, 1999), Montgomery App. No. 17499, unreported, wherein we stated: The manifest injustice standard demands a showing of extraordinary circumstances. Further, the defendant has the burden to prove the existence of manifest injustice. The term injustice is defined as "the withholding or denial of justice. In law, the term is almost invariably applied to the act, fault, or omission of a court, as distinguished from that of an individual." A "manifest injustice" comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her. Crim.R. 32.1 derives from the court's inherent power to vacate its own prior orders when justice so requires. In that regard, it is comparable to Civ.R. 60(B), which contemplates equitable relief from a final order subject to certain defects. In this context, it is noteworthy that Civ.R. 60(B) relief is not a substitute for appellate review of prejudicial error. We believe that the same bar reasonably applies to Crim.R. 32.1. Failure to comply with the requirements of Crim.R. 11(C) when taking a plea is a defect that may be the subject of a merit appeal which supports reversal of a defendant's conviction when prejudice results. Even when a timely appeal is not taken, a delayed appeal is available pursuant to App.R. 5(A), upon a proper showing. Therefore, a court's failure to comply with the requirements of Crim.R 11(C) is not an extraordinary circumstance demonstrating a form of manifest injustice required for Crim.R. 32.1 relief. Matters outside the record that allegedly corrupted the defendant's choice to enter a plea of guilty or no contest so as to render the plea less than knowing and voluntary are proper grounds for an R.C. 2953.21 petition for post-conviction relief. In 1996 the General Assembly limited the number of such petitions to but one, which must be filed within 180 days after the time for appeal has expired, absent certain narrow showings that R.C. 2953.23(A) requires. Since then, grounds formerly presented in support of petitions for post-conviction relief are now more frequently employed to support Crim.R. 32.1 motions, which are not subject to similar limitations. Nevertheless, the availability of R.C. 2953.21 relief on those same grounds removes them from the form of extraordinary circumstance demonstrating a manifest injustice which is required for Crim.R. 32.1 relief. Id., citations omitted. In this case, Wheeler's first argument focuses on the trial court's failure to have complied with Crim.R. 11(C), which can be determined from the record, and was therefore properly the subject of a direct appeal from the sentencing. Because this issue either was raised and was resolved adversely to Wheeler in a direct appeal, or could have been, he is barred by res judicata from raising it now. III Wheeler's First and Second Assignments of Error state as follows: THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN DENYING APPELLANT, KENNY L. WHEELER'S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE THE COURT DID NOT COMPLY WITH THE REQUIREMENTS OF CRIM.R. 11(C)(2) PRIOR TO ACCEPTING THE APPELLANT'S PLEAS OF GUILTY. THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN DENYING APPELLANT, KENNY L. WHEELER'S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE THE COURT DID NOT COMPLY WITH THE REQUIREMENTS OF CRIM.R. 11(C)(2)(a) PRIOR TO ACCEPTING THE APPELLANT'S PLEA OF GUILTY. In these Assignments of Error, Wheeler argues that the trial court failed to follow the requirements of Crim.R. 11(C)(2) during the plea colloquy, and that it therefore abused its discretion by denying his motion to withdraw the pleas. As stated above, our holding in Hartzell negates these claimed errors. However, even absent Hartzell, we would find these Assignments of Error lacking in merit. "Ohio Crim.R. 11(C) was adopted to facilitate a more accurate determination of the voluntariness of a defendant's plea by ensuring an adequate record for review." State v. Nero (1990), 56 Ohio St.3d 106. Crim.R. 11(C) reads in pertinent part: (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. Strict compliance with the provisions of Crim.R. 11(C) is not required; "substantial compliance" with the rule is sufficient. State v. Stewart (1977), 51 Ohio St.2d 86. Wheeler's argument is based upon the fact that the trial court permitted him to enter his guilty plea prior to addressing all of the matters set forth in Crim.R. 11(C). Wheeler claims that his pleas and waiver of rights were not made knowingly or intelligently because of the trial court's actions. We note that the trial court personally addressed Wheeler at length. The court ascertained that Wheeler was eighteen years old at the time of his plea, that he had difficulty reading, and that he was attempting to obtain his GED. The court informed Wheeler of all of his rights and of the effects of pleading guilty. The court also affirmed that Wheeler knew the penalties for the crimes and that he was not eligible for probation. The court confirmed that Wheeler agreed with the State's recitation of the facts, and that he understood the nature of the offenses. The trial court also determined that Wheeler was entering the plea voluntarily. The trial court did ask Wheeler whether he intended to plead guilty prior to discussing the elements of Crim.R. 11(C). However, after complying with the rule, the court then again asked Wheeler whether he intended to proceed with the guilty pleas. Wheeler indicated that he did. From our review of the transcript of the plea hearing we conclude that the trial court complied with the requirements of Crim.R. 11(C). Accordingly, the First and Second Assignments of Error are overruled. IV Wheeler's Third and Fourth Assignments of Error are as follows: THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN DENYING APPELLANT, KENNY L. WHEELER'S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE THE APPELLANT WAS NOT COMPETENT TO KNOWINGLY AND INTELLIGENTLY ENTER A GUILTY PLEA. THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN DENYING APPELLANT, KENNY L. WHEELER'S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE THE APPELLANT WAS UNABLE TO KNOWINGLY AND INTELLIGENTLY ENTER A GUILTY PLEA DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL. Wheeler contends that he was not competent to enter a guilty plea. In support, he argues that he was under the influence of drugs at the time, and had a history of mental illness. He also claims that his trial counsel was ineffective for permitting him to plead under those circumstances. As previously indicated, prior to the entry of his guilty pleas, two mental health providers certified that Wheeler was competent, and that he was not mentally ill. Therefore, the claim that he was not competent due to mental illness is without merit. Furthermore, there is no evidence in the record to support a claim that Wheeler was under the influence of drugs at the time of the pleas or to indicate that his trial counsel was aware that he was under the influence of drugs. Therefore, any support for this argument must necessarily depend on evidence outside the record. However, Wheeler failed to provide any evidence, even his own affidavit, to support his claim that he was under the influence of drugs at the time of the pleas. Wheeler's Third and Fourth Assignments of Error are overruled. V All of Wheeler's assignments of error having been overruled, the judgment of the trial court is Affirmed. GRADY and YOUNG, J. J., concur.

2016-07-06 06:36:37.467118+00

This cause was heard upon the record in the trial court and the following disposition is made: DECISION AND JOURNAL ENTRY {¶ 1} Appellant-Cross-Appellee, Gaetono Cicchini aka Guy Cicchini, appeals and Appellee-Cross-Appellant, Mary Ann Galmish, cross-appeals from an order of the Stark County Court of Common Pleas that indicated that it had already denied Cichinni's request to decrease a 1997 award of attorney fees and that denied Galmish's request to increase that same award. Because the order appealed from is not final and appealable, the appeal and cross-appeal are dismissed. {¶ 2} By judgment entries filed in October 1997, the Stark County Court of Common Pleas entered judgment on a jury verdict in favor of Galmish on her action against Cicchini and awarded her over one million dollars in compensatory and punitive damages and attorney fees equal to one-third of the total damage award. Cicchini appealed those judgments, which were reversed by this court. See Galmish v. Cicchini (June 2, 1999), 5th Dist. Nos. 97CA00326 and 97CA00403. On appeal to the Supreme Court of Ohio, however, this court's judgment was reversed and the trial court's judgment, including the award of attorney fees, was reinstated. See Galmish v. Cicchini (2000), 90 Ohio St.3d 22, 36. The Supreme Court directly addressed Cicchini's challenge to the award of attorney fees and found it to be without merit. See id. at 35-36. Having resolved all issues in the case, the Supreme Court reinstated the trial court's judgment "in its entirety" and upheld the trial court's judgments "on the issues of prejudgment interest and attorney fees[.]" Id. at 36. No issues were remanded to this court or the trial court. {¶ 3} After issuing its decision, the Supreme Court ordered the trial court to carry its original judgment into execution. Garnishment proceedings commenced. Galmish's former attorney was permitted to intervene on the issue of payment he was allegedly due for legal services rendered. By judgment entry filed October 20, 1997, the trial court had approved a one-third contingency fee based on an oral reduction by Galmish's current counsel of the fifty percent contingency fee that Galmish had agreed to by contract. Galmish's former counsel contended that her current counsel had no authority to agree to a reduction of his portion of the contingency fee. On January 11, 2001, the trial court reinstated a fifty percent contingency fee, but indicated that its decision only affected the fees that were due from Galmish to her counsel and did not affect the amount of fees to be paid by Cicchini. Galmish did not appeal that order. At about the same time, Cicchini moved the trial court to correct an alleged clerical error in the calculation of attorney fees in the trial court's October 29, 1997 judgment entry. On January 19, 2001, the trial court held a hearing on the issue of the alleged error in the calculation of attorney fees. At the hearing, the parties disputed whether there had been a clerical error and, if so, what the correct calculation was. At the hearing, Galmish also orally raised the issue of increasing the attorney fees owed by Cicchini, given that she was now required to pay her counsel fifty percent of the damages recovered rather than one-third. Galmish filed a one-half-page motion to that effect on January 22, 2001. At the January 19 hearing, the trial court had instructed the parties to submit an agreed entry on the alleged clerical error or, if an agreement could not be reached, each party was to submit his or her own calculations. No agreed entry was ever submitted. On January 29, 2001, Cicchini submitted his calculations. On February 6, 2001, because the trial court had not received calculations from both parties, it denied Cicchini's request to correct the judgment. No appeal was taken from that order. Instead, that same day, Cicchini moved the trial court to reconsider its decision. On February 20, 2001, the trial court denied Cicchini's motion for reconsideration. Cicchini subsequently filed additional materials with the trial court on the alleged clerical error. On July 16, 2001, among other things, the trial court denied Galmish's request to increase the attorney fee award to fifty percent of the total damages awarded by the jury. In that same order, the court also indicated that it had previously denied Cicchini's motion for reconsideration on the alleged clerical error. From that July 16, 2001 order, Cicchini appeals and Galmish cross-appeals, assigning a total of three errors for review. Before reaching the merits of this appeal and cross-appeal, we must determine whether this court has jurisdiction to review the order appealed by the parties. Section 3(B)(2), Article IV of the Ohio Constitution limits this court's appellate jurisdiction to the review of final judgments of lower courts. For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ.(1989), 44 Ohio St.3d 86, 88. R.C. 2505.02(B)(1) provides that an order"that affects a substantial right in an action that in effect determinesthe action and prevents a judgment" is final and appealable. The trialcourt's July 16, 2001 order, as it pertains to these parties, did notaffect any substantial right. During January 2001, both parties sought modification of the trialcourt's 1997 award of attorney fees to Galmish. At that point, more thanthree years after the trial court's original attorney fee award, CivilRule 60 provided "the exclusive procedure to be followed and the groundswhich must be present in order to vacate a judgment." (Emphasis sic.)McCue v. Buckeye Union Ins. Co. (1979), 61 Ohio App.2d 101, 104. Even ifCicchini's motion requesting the correction of an alleged clerical errorwas arguably cognizable under Civ.R. 60(A), the trial court denied thatmotion on February 6, 2001.1 That was a final order and anychallenge to the merits of that determination should have been filedwithin thirty days. See App.R. 4(A). Cicchini filed no appeal from theFebruary 6 order but instead moved the trial court to reconsider itsdecision. Although interlocutory trial court orders are subject toreconsideration, final orders are not. Pitts v. Ohio Dept. of Transp.(1981), 67 Ohio St.2d 378, 379. A motion for reconsideration of a finaltrial court judgment is a nullity. Id. The Supreme Court has repeatedlyheld that a motion for reconsideration is a nullity "because Civ.R.60(B), in pertinent part, states that: `* * * the procedure for obtainingany relief from a judgment shall be by motion as prescribed in theserules.' * * * Hence, since a motion for reconsideration is not recognizedand, in any event, does not meet any of the prongs of R.C. 2505.02, adenial of such a motion does not present a final appealable order. Thesame would be true for a bare `motion to vacate.'" Lorain Edn. Assn v.Lorain City School Dist. Bd. of Edn. (1989), 46 Ohio St.3d 12, 17(Douglas, J., concurring). Because Cicchini essentially appeals from thesecond denial of his motion for reconsideration, it is not a finalappealable order and his appeal is dismissed for lack of jurisdiction. Galmish appeals from that same order, assigning error to the aspect ofthe order that denied her "motion for post-judgment modification." Inher motion, Galmish asked the trial court to adjust the attorney feesthat it had awarded in its 1997 order. As noted above, the exclusivemeans by which Galmish could challenge that order was Civ.R. 60. In herone-half-page motion, however, Galmish failed to set forth any groundsfor relief under Civ.R. 60(B). As noted in Lorain Edn. Assn,46 Ohio St.3d at 17, the denial of a bare "motion to vacate" does not constitutea final appealable order. Moreover, because Galmish did not caption hermotion as one for relief from judgment, nor did she even mention Civ.R.60, this court is not inclined to construe the motion as one properlycognizable under Civ.R. 60. See Stein v. Wyandotte Wine Cellars, Inc.(1993), 88 Ohio App.3d 477, 479. As there is no provision in the civilrules for Galmish's "motion for post-judgment modification," the trialcourt's ruling on it was not a final appealable order. See Nerren v.Nerren (Apr. 9, 1997), 9th Dist. No. 96CA0047, at 4. Consequently,Galmish's cross-appeal is dismissed for lack of jurisdiction. As neither party has appealed from a final appealable order, the appealand cross-appeal are dismissed for lack of jurisdiction. Appeal and Cross-Appeal dismissed. 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 the parties equally. Exceptions. SLABY, BAIRD, J. BATCHELDER, J., CONCUR. (Slaby, P.J., Presiding Judge of the Ninth District Court of Appeals, sitting by assignment of The Ohio Supreme Court.) (Baird, J., Judge of the Ninth District Court of Appeals, sitting by assignment of The Ohio Supreme Court.) (Batchelder, J., Judge of the Ninth District Court of Appeals, sitting by assignment of The Ohio Supreme Court.) 1 Although Cicchini contends that the trial court never ruled on his motion, that contention is not supported by the record.

2016-07-06 06:36:37.490834+00

DECISION AND JOURNAL ENTRY Defendant Charles McDougal appeals his convictions in the Lorain County Court of Common Pleas on twelve counts of gross sexual imposition. We affirm. On February 4, 1998, the Lorain County Grand Jury indicted Defendant on twelve counts of gross sexual imposition, in violation of former R.C. 2907.05(A)(3).1 Defendant pleaded not guilty to the charges. A jury trial was held on June 15 and 16, 1999. The State's main witness was Julie Neal, Defendant's niece, who was twenty-two years old at the time of trial. She testified that beginning when she was four years old, Defendant would frequently place his hands inside of her clothing and touch her vaginal area and her chest and that Defendant would compel her to touch him. She testified that this occurred approximately one hundred times until she was nine years old. Neal stated that Defendant touched her every year from 1981 to 1986, inclusive. She testified that she did not report Defendant's acts until many years later. The State also presented the testimony of three other witnesses. Two other women (one of whom was Julie Neal's sister) testified that Defendant had sexually abused them when they were younger. These women stated that they also waited for several years before disclosing Defendant's acts. The State's final witness was a social worker who testified as to child victims who delay reporting sexual abuse. Defendant presented no testimony or witnesses. After deliberating, the jury found Defendant guilty on all twelve counts. The trial court sentenced him accordingly to an aggregate prison term of twelve years, to be run concurrently with another prison term that Defendant was already serving. Defendant timely appealed. Assignment of Error THE JUDGMENT OF CONVICTION OF TWELVE COUNTS OF GROSS SEXUAL IMPOSITION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW AND THE TRIAL COURT ERRED WHEN IT OVERRULED [DEFENDANT'S] MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29. In his sole assignment of error, Defendant argues that the trial court should have granted his motion for acquittal under Crim.R. 29.2 He contends that there was insufficient evidence of when the offenses took place. We disagree. Crim.R. 29(A) provides that a trial court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record demonstrates that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Wolfe (1988), 51 Ohio App.3d 215, 216, citing State v. Bridgeman (1978),55 Ohio St.2d 261, syllabus. In making this determination, all evidence must be construed in a light most favorable to the State.Wolfe, 51 Ohio App.3d at 216. Former R.C. 2907.05(A)(3) stated: "No person shall have sexual contact with another, not the spouse of the offender[,] * * * when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of such person." Sexual contact includes the touching of the breast of a female or the pubic region or genitals of another "for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). "The precise date and time of the offense are not essential elements of that crime. Thus, a certain degree of inexactitude in averring the date of the offense is not per se impermissible or fatal to the prosecution." (Citations omitted; emphasis sic.)State v. Mundy (1994), 99 Ohio App.3d 275, 296. In the case at bar, the State was not required to prove the exact date of each offense, only that the offense occurred within the period of time found in the indictment. The State presented testimony of Julie Neal, who stated that Defendant touched her and compelled her to touch him approximately one hundred times between 1981 and 1986, inclusive. Neal also stated that the touching occurred in each one of those years. Viewing the evidence in a light most favorable to the State, we find that a reasonable trier of fact could conclude that Defendant committed the twelve acts of gross sexual imposition of which he was convicted in the time periods alleged in the indictment. Therefore, the trial court did not err by overruling Defendant's motion for acquittal. Defendant's assignment of error is overruled. The judgment of the Lorain County Court of Common Pleas is affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, 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. __________________________ LYNN C. SLABY BAIRD, P.J., CARR, J., CONCURS. 1 The indictment referenced the version of the statute in effect at the time of the incidents involved in this case. This provision is now R.C. 2907.05(A)(4). 2 Defendant has confused the standard for sufficiency under Crim.R. 29 and the standard for manifest weight. These are distinct concepts, as this court previously stated in State v.McLemore (Apr. 19, 2000), Lorain App. No. 99CA007356, unreported, at 2-3. Because the arguments are limited to whether there was sufficient evidence, we will only discuss those issues.

2016-07-06 06:36:36.080305+00

Leach

This is an appeal from a judgment of the Common Pleas Court of Franklin County upholding the suspension of appellant's liquor permit by the Ohio Liquor Control Commission. Here it was charged that appellant's agent, Janice Johnson, did furnish in and upon the permit premises intoxicating liquor to Ruth Ann Azman, a minor then under 21 years of age, in violation of Section 4301.69, Revised Code. With exceptions not applicable herein, this statute provides that "No person shall sell intoxicating liquor to a person under the age of twenty-one years * * *." The testimony adduced at the hearing before the Commission conclusively proved the truth of the charge. Actually there was no testimony introduced even attempting to disprove it. The barmaid herself, testifying by way of deposition, did not deny any of the facts testified to by others but, instead, merely stated that she did "have occasion to serve a couple which were subsequently arrested." In essence the principal defense herein was predicated on her testimony that, after having been charged in the Cleveland Municipal Court with a violation of Section4301.69, Revised Code, she was found not guilty of such charge and the case in that court dismissed. In the appeal to this court three assignments of error are asserted. The second and third assignments of error will be considered first since, in our opinion, they are totally without merit and require little discussion. *Page 257 The second assignment of error asserts that the Liquor Control Commission "lacked jurisdiction" in that appellant "did not have fifteen (15) days notice of a hearing before the Liquor Control Commission." The regulation of the Liquor Control Commission, No. LCcl-65, provides that the Director of Liquor Control, in hearings before the Commission wherein the Director cites a permit holder to show cause why his permit should not be revoked, suspended or canceled "shall, at least fifteen (15) days prior to the date of such hearing, send notice of such hearing," etc. While the notice sent herein was received less than fifteen days prior to the date set for the hearing, there was no proof in the record indicating that such had not beensent in compliance with the requirements of the rule. In any event, at the hearing before the Commission, when the possibility of starting "out afresh and anew by giving you fifteen (15) days notice" was advanced, counsel for the permit holder stated "On behalf of the permit holder I waive the 15 days notice." The assertions of this same counsel that the 15-day requirement is "jurisdictional" and thus that he cannot waive such requirement are without merit. Even if there were a failure to comply with the requirements of the rule, such, at best, would only involve the question of jurisdiction over the person, which can be waived. Fogt v.Ohio State Racing Comm. (1965), 3 Ohio App. 2d 423. "The requirement of such notice generally is not jurisdictional, and may be waived by the permittee or licensee; and a permittee or licensee who appears in answer to a citation or notice and proceeds with the hearing on its merits without objection cannot afterward be heard to object to the irregularity of the hearing, or to the sufficiency of the citation or notice, or to the form of the charges against him." 48 Corpus Juris Secundum 291. The third assignment of error is the claim that the commission "lacked jurisdiction in that it failed to inform appellant * * * of the specific charges for which he was brought before the Liquor Control Commission." This assignment of error is overruled. The charge was specifically *Page 258 stated, and, as noted before, evidence was presented which proved such charge. Under this assignment of error one of the arguments advanced by counsel for the appellant seems to be that since Section4301.69, Revised Code, provides for a criminal penalty upon conviction for violation, only in a criminal action can it be determined that there was actually a "violation." This argument is intertwined with the argument advanced under the first assignment of error, and thus will be considered in our later discussion as to the scope of the meaning of the opening paragraph of Section 4301.25, Revised Code. The first assignment of error asserts that since defendant's agent had been found not guilty in the criminal action, in the Municipal Court of Cleveland, of violating Section 4301.69, such determination was "res judicata" as to such issue and thus "estopped" the Liquor Commission from finding a violation. Were it not for certain language in the opinion in BroadwayEnterprises v. Liquor Control Comm. (1968), 17 Ohio App. 2d 35, we would conclude that these assertions of counsel for appellant should routinely be rejected. However, in examining and re-examining the opinion in Broadway, we conclude that the assertions of counsel for appellant logically would follow from certain statements there contained. For reasons hereinafter set out, we conclude that such statements in Broadway were not essential for the decision therein and thus were dicta, and in any event do not constitute a proper interpretation of Section4301.25, Revised Code. Section 4301.25, Revised Code, provides: "The board of liquor control may suspend or revoke any permit issued pursuant to Chapters 4301 and 4303 of the Revised Code for the violation of any of the applicable restrictions of such chapters or of any lawful rule or regulation of the board or other sufficient cause, and for the following causes: "(A) For conviction of the holder or his agent or employee for violating a section of Chapters 4301 and 4303 of the Revised Code or for a felony; *Page 259 "(B) For making any false material statement in an application for a permit; "(C) For assigning, transferring, or pledging a permit contrary to the rules and regulations of the board; "(D) For selling or promising to sell beer or intoxicating liquors to a wholesale or retail dealer who is not the holder of a proper permit at the time of the sale or promise; "(E) For failure of the holder of a permit to pay an excise tax together with any penalties imposed by the law relating thereto and for violation of any rule or regulation of the department of taxation in pursuance thereof." Broadway involved a charge that the agent of the permit holder allowed malt liquor to be consumed in and about the permit premises by a minor then and there under 21 years of age, "in violation of Section 4301.25 of the Ohio Revised Code." In that case it was pointed out (page 38) that while Section 4301.69, Revised Code, "makes it illegal to sell or furnish to a minor, that statute does not make it illegal, with or withoutscienter, to allow a minor to consume." Reference was then made to the fact that the consumption statutes are Sections 4301.631 and 4301.632, Revised Code, "both of which apply to the minor alone." Upon this basis Broadway concluded that any act of an agent of the permit holder in permitting the minor to consume malt liquor would not constitute a "violation of any of the applicable restrictions of such chapters" within the meaning of Section 4301.25, Revised Code. The opinion then went on to conclude that no violation of any "lawful rule or regulation of the board" had been shown. Under the provisions of Regulation 52 as interpreted in Rahal v.Liquor Control Comm. (1965), 1 Ohio App. 2d 263, the term "permit holder" of such regulation did not "include an agent or employee." But see Fortner v. Thomas, No. 8714, decided by this court December 26, 1968, upholding and interpreting the amendment of Regulation 52 which added the words "his agent, or employee." Then, directing attention to the language "other sufficient cause" and to the enumerated causes under paragraphs *Page 260 (A) through (E) of Section 4301.25, Revised Code, Broadway concluded that none of this language was applicable to a case where an agent of a permit holder permitted a minor toconsume such beverage. In essence, therefore, in Broadway it was held that none of the language of Section 4301.25, Revised Code, would apply. In other words it was held that there was no proof of (1) any "violation of any of the applicable restrictions of such chapters," nor (2) any violation of "any lawful rule or regulation of the board," nor (3) any violation of "other sufficient cause" nor (4) any violation of any of the "causes" lettered (A) through (E). With this holding we are in agreement. The opinion, however, goes further and states: "The opening paragraph of Section 4301.25, Revised Code, refers to causes for suspending or revoking a liquor permit, and implicitly appears limited to acts of the permit holder. The General Assembly then explicitly imposed strict liability upon the permit holder for acts of its agent or employee by specific provision in paragraph (A) of the statute. However, the paragraph contains three limitations: (1) There must be a conviction; (2) it must be of an agent or employee as opposed to a patron or other person; and (3) the conviction must be for violating a liquor statute or for a felony. The Legislature having imposed those limitations in paragraph (A), any ambivalence in the preceding provision of the opening paragraph cannot be interpreted so as to abrogate their effect. Appellee appears to be attempting to escape the statutory limitations of paragraph (A) by interpreting a `catch-all' phrase so broadly as to render the specific provision meaningless." The statement that the opening paragraph of Section 4301.25, Revised Code, "implicitly appears limited to acts of the permit holder" apparently was intended to have reference to cases where the permit holder acted personally, or perhaps through managerial personnel, but not where such action was done by other agents or employees. Based upon this language, counsel for appellant, in *Page 261 oral argument, asserts that no action can ever be taken to revoke or suspend the license of a permit holder, based on acts of an agent or employee, unless there has first been a conviction of such agent or employee under the provisions of paragraph (A) of Section 4301.25, Revised Code. We reject such contention, and to the extent that Broadway, and any of its language, might be construed as so holding, it is distinguished and modified. The same is true as to some of the language of Fortner, supra, which might also be so construed. Paragraph (A) does not merely refer to convictions of an agent or employee but refers to "conviction of the holder or his agent or employee." To limit the language of the opening paragraph of Section 4301.25, Revised Code, so far as agents and employees be concerned, to cases involving convictions within the purview of paragraph (A) logically would compel the same limitation as to the permit holder himself, since, as noted before, this same paragraph also refers to "conviction of the holder." In Broadway, since Section 4301.69, Revised Code, did not make it illegal to allow a minor to consume, no "violation of any of the applicable restrictions of such chapters" was shown. Here the charge was not allowing a minor to consume, but instead the charge was furnishing intoxicating liquor to such minor. This, as contrasted to consumption, is specifically forbidden by Section 4301.69, and thus the proof of such violation constitutes proof of the violation of an applicable restriction within Chapter 4301, Revised Code. The fact that the General Assembly has in effect provided a short form method of proof under paragraph (A), which requires proof only of conviction, without any proof of the facts underlying such conviction, does not mean that the Liquor Control Commission is precluded from taking evidence and determining the facts, merely because the charge before the Commission could have been the basis of a criminal charge in court. Nor is the fact that a court found the accused therein not guilty any bar, either by way of estoppel or on any principle of res judicata, to a determination *Page 262 of this issue by the authorized fact finder, the Liquor Control Commission. Section 4301.04 (B), Revised Code. Even though a statute may permit the revocation or suspension of a license on "conviction" of an offense, the licensing authority may act on other evidence than a judgment of conviction where such licensing authority is authorized to revoke or suspend upon proof of the "violation" of such laws.Whitmore v. McCarroll (1939), 198 Ark. 211, 128 S.W.2d 244;Paoli v. Mason (1945), 325 Ill. App. 197, 59 N.E.2d 499;Nechi v. Daley (1963), 40 Ill. App. 2d 326, 188 N.E.2d 243;Michael v. Town of Logan (1955), 247 Io. 574, 73 N.W.2d 714;Di Traglia v. Daneker (1955), 83 Rawle I. 227, 115 A.2d 345;Hallene v. Smith (1964), 98 Rawle I. 360, 201 A.2d 921. Such action may be taken by the licensing authority even though there has been an acquittal of a criminal charge for the same "violation" as is made the basis of the suspension or revocation. Caserta v. Mills (1927), 28 F.2d 637;Commonwealth v. McMenamin (1936), 122 Pa. Super. 91, 184 A. 679;Dadiskos v. Liquor Control Comm. (1963), 150 Conn. 422,190 A.2d 490; Balog v. Liquor Control Comm. (1963), 150 Conn. 473,191 A.2d 20; Crooms v. Ketchum (Mo., 1964), 379 S.W.2d 580;Jow Sin Quan v. Washington State Liquor Control Bd. (1966),69 Wash. 2d 373, 418 P.2d 424. The question whether an act of an agent or employee constitutes the "violation" of either a restriction contained in Chapters 4301 and 4303 or the "violation" of any lawful rule or regulation of the Commission (formerly the board) necessarily must be determined by an examination of the particular statute or particular rule or regulation in question. In Broadway no "violation" was found since the act there in question, permitting consumption, was prohibited only as to acts of the minor, which statutory prohibition had no application to the employee of the permit holder, except possibly on the concept of aider and abettor, which would have requiredscienter which was not shown. *Page 263 In Rahal it was held that the particular regulation under consideration, No. 52, by its terms did not include an agent or employee. Had it included an agent or employee within its terms, a violation of such a regulation would have constituted "the violation of any * * * lawful rule or regulation of the board" within the purview of Section 4301.25, Revised Code. In Rahal the court noted that some of the prohibitions contained in Section 4301.22, Revised Code, were "unqualified bans" (and thus applicable to acts of the agent or employee), while some applied "only to the act of a permit holder." The language of Section 4301.69, Revised Code, providing that "no person" shall sell such intoxicating liquor to a person under the age of 21 obviously is not restricted in its application to the permit holder. We cannot and do not conclude that the General Assembly ever intended to impose responsibility upon a permit holder for the acts of his agent or employee only through the procedure of conviction. In fact, the argument has been made, but rejected, that the procedure of revocation or suspension upon conviction of an agent would deny the permit holder due process since he would not even be a party to the criminal case. P P Taverns,Inc., v. State (1967), 11 Ohio App. 2d 11. We conclude, therefore, that proof of a violation by an employee of a permit holder of the provisions of Section 4301.69, Revised Code, by furnishing intoxicating liquor to a person under the age of 21, does constitute a "violation of any of the applicable restrictions" of Chapters 4301 and 4303, Revised Code, within the meaning of Section 4301.25, Revised Code, and that, upon such proof at a hearing before the Liquor Control Commission, the Commission is authorized to suspend the permit of such premises. Judgment affirmed. TROOP and STRAUSBAUGH, JJ., concur. *Page 264

2016-07-06 06:36:36.307174+00

Abood

This is an appeal from a decision of the Lucas County Court of Common Pleas which granted defendant-appellee Century Surety's motion for summary judgment and entered declaratory judgment in its favor against plaintiffs-appellants and denied plaintiffs-appellants' cross-motion for summary judgment. Appellants have appealed, setting forth three assignments of error: "I. The trial court erred, in failing to hold, that in the absence of an alienation clause, the transfer of a business from individual owners to a corporate owner, without the insurer's approval, does not preclude coverage where said individuals did not divest their entire interest in the property. The trial court further erred in holding that the designation of insured in the declarations of the policy was the sole determining factor of who had an insurable interest in the property. "II. The trial court erred in finding that the policy provisions upon which defendant-insurer based its refusal to afford coverage was not ambiguous or uncertain. "III. The trial court erred in granting summary judgment for defendant-appellee insurer as genuine issues of material of [sic] fact existed mandating a full hearing on the merits." The undisputed facts giving rise to this appeal are as follows. On October 4, 1986, appellee issued liability insurance policy No. L110-9420 to appellants, John and Dena Georgakopoulos, d.b.a. the Den Lounge. The policy was for the period of October 4, 1986 to October 4, 1987. On May 20, 1987, the Den Lounge incorporated under the name 128 Main Street, Inc. John and Dena Georgakopoulos were fifty percent joint shareholders and John G. Stratidakis and Kostas Stratidakis were each twenty-five percent shareholders in the corporation. On September 1, 1987, a suit was filed by plaintiffs David and Jackie Revilla in the Lucas County Court of Common Pleas, case No. 87-2713, against John Stratidakis individually and as an agent of the Den Lounge. The complaint alleged that on July 13, 1987, at the Den Lounge, David Revilla had been attacked, assaulted and beaten by three unknown patrons and that the owner had negligently failed to remove these individuals from the premises. The complaint also alleged that John Stratidakis had participated in the assault. On September 29, 1987, John Stratidakis filed a motion to dismiss pursuant to Civ.R. 12(B)(6), arguing that the Den Lounge was a corporation *Page 620 and, therefore, an individual shareholder could not be liable for the tort of the corporation. On November 30, 1987, the trial court dismissed the complaint. On December 4, 1987, the plaintiffs filed a motion for reconsideration and to amend the complaint naming the corporation as a defendant. Both motions were granted and the case was then voluntarily dismissed pursuant to Civ.R. 41. On May 25, 1988, David and Jackie Revilla refiled suit naming as defendants John G. Stratidakis, individually and as agent of the Den Lounge, John and Dena Georgakopoulos, individually and as agents of 128 Main Street, Inc., and 128 Main Street, Inc. Upon receipt of the original suit appellants had notified appellee of the claim against them. Appellee, through its manager, John Wilcox, denied that the policy afforded coverage for the claims set forth in the lawsuit and on September 19, 1988, appellants filed a complaint for declaratory judgment seeking a determination of their rights and liabilities under the insurance policy issued by appellee. Appellee answered and on January 6, 1989, filed a motion for summary judgment asserting that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law. In support of its motion for summary judgment, appellee argued essentially that the policy designated as insureds John and Dena Georgakopoulos, d.b.a. the Den Lounge, as individuals and that the policy provided for coverage to individuals only with respect to the conduct of a sole proprietorship. At the time of the occurrence giving rise to the Revillas' lawsuit, however, the Den Lounge was no longer owned and operated by a sole proprietorship but rather by a corporation and, therefore, none of the appellants, including John and Dena Georgakopoulos, was insured pursuant to the terms of the policy. On January 23, 1989, appellants filed their own motion for summary judgment and memorandum in opposition to appellee's motion for summary judgment. In support of their motion for summary judgment, appellants argued that, absent an alienation clause in the insurance policy, the transfer of the business from individual to corporate ownership without the insurance company's approval did not preclude coverage where the individual was not divested entirely of his ownership in the business. Appellants also argued that the insurance policy provided no exclusions of coverage as to corporations but only to situations involving partnerships or joint ventures, that the exclusionary language used in the policy was ambiguous and that the policy must, therefore, be construed in favor of the insured and the court should enter judgment construing those provisions so as to include appellants within the scope of coverage. In opposition to appellee's motion for summary judgment, appellants argued that notice of incorporation was given by telephone *Page 621 to appellee on or about May 27, 1987, through Evelyn Lavoy, an employee of the underwriting agent of the disputed policy, and, therefore, a genuine issue of fact was raised that warranted submission of the issue of coverage to a jury. On March 20, 1989, the trial court filed its opinion and judgment entry which granted appellee's motion for summary judgment and denied appellants' motion for summary judgment. In its decision the trial court found that the insurance policy was not ambiguous or uncertain and that the policy clearly provided that notice to an insurance agent would not effect a change in the policy unless the change in terms was signed by a duly authorized representative. The court stated that there was no evidence before it that this requirement had been met. The trial court also found that appellants' assertion that a change of ownership does not void the policy when the insureds retain a significant interest in the property was not applicable to the facts of this case. The trial court held, therefore, that: "* * * [T]he insurance coverage provided by Century Surety was to John and Dena Georgakopoulos d/b/a The Den Lounge and extended only to the conduct of a sole proprietorship. As the business was incorporated before the Revilla incident, operation of the Den Lounge is not within the policy coverage and thus, plaintiffs are not insured under the policy. Therefore, defendant Century Surety is entitled to judgment as a matter of law." On March 27, 1989, appellants filed a motion for reconsideration, which the trial court denied. On April 13, 1989, appellants filed their notice of appeal from the judgment entry of March 20, 1989. This court will consider appellants' first and second assignments of error together. In support of their first assignment of error, appellants argue that the record demonstrates that John and Dena Georgakopoulos did not part with or alienate their entire interest in the insured property but retained fifty percent ownership of the stock in the corporation and, therefore, in the absence of a alienation clause in the insurance policy, it remained in full force and effect and all four appellants should be treated as insureds. Appellants argue further that the trial court in denying coverage did not construe the insurance policy in its entirety but instead relied only upon the declarations of the policy as a sole determining factor. In support of their second assignment of error, appellants argue that the only exclusionary language in the policy excluded coverage for damage *Page 622 arising out of the conduct of a partnership or joint venture and did not mention corporations. Appellants contend that the language used in the exclusion is ambiguous and does not set forth with specificity exactly what appellee asserts is excluded and, therefore, pursuant to Ohio law, the contract of insurance should be liberally construed in appellants' favor. Finally, appellants argue that in determining the plain meaning of the insurance contract, the court should read the contract as a whole and not as isolated parts, and that when reviewing the entire policy in this case it is clear that a policy holder could reasonably conclude that he could transfer his interest in the insured properties, and that as long as he did not operate his business as a partnership or joint venture he would remain insured. The arguments set forth in these two assignments of error attempt to raise questions as to the construction and interpretation of the insurance policy issued by appellee. "The interpretation and construction of insurance documents is a matter of law to be determined by the court using rules of construction and interpretation applicable to contracts generally." (Citations omitted.) Value City, Inc. v. IntegrityIns. Co. (1986), 30 Ohio App. 3d 274, 276, 30 OBR 472, 474,508 N.E.2d 184, 186. In Burris v. Grange Mut. Cos. (1989), 46 Ohio St. 3d 84, 89,545 N.E.2d 83, 88, the Supreme Court of Ohio in discussing the interpretation of insurance policies stated: "The fundamental goal in insurance policy interpretation is to ascertain the intent of the parties from a reading of the contract in its entirety, and to settle upon a reasonable interpretation of any disputed terms in a manner calculated to give the agreement its intended effect. `The meaning of a contract is to be gathered from a consideration of all its parts, and no provision is to be wholly disregarded as inconsistent with other provisions unless no other reasonable construction is possible.'" (Citations omitted.) The Burris court went on to state that the terms of an insurance policy must be given their plain and ordinary meaning and only where the policy is ambiguous and susceptible to more than one meaning must the policy be liberally construed in favor of those seeking coverage. Id. Therefore, where the language of an insurance policy is clear and unambiguous, it is unnecessary and impermissible for a court to resort to construction of that language. Tomlinson v. Skolnik (1989), 44 Ohio St. 3d 11, 12,540 N.E.2d 716, 717; see, also, Karabin v. State Auto. Mut. Ins.Co. (1989), 10 Ohio St. 3d 163, 167, 10 OBR 497, 502,462 N.E.2d 403, 407. *Page 623 The policy issued by appellee, in its definitions section, defines an "insured" as: "* * * any person or organization qualifying as an insured in the `Persons Insured' provision of the applicable insurance coverage. The insurance afforded applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the company's liability." The declarations page of the policy issued by appellee provides: "II. PERSONS INSURED "Each of the following is an insured under this insurance to the extent set forth below. "(a) if the named insured is designated in the declarations as an individual, the person so designated but only with respect to the conduct of a business of which he is the sole proprietor, and the spouse of the named insured with respect to the conduct of such a business; "(b) if the named insured is designated in the declarations as a partnership or joint venture, the partnership or joint venture so designated and any partner or member thereof but only with respect to his liability as such; "(c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such; "(d) any person (other than an employee of the namedinsured) or organization while acting as real estate manager for the named insured." (Emphasis sic.) The exclusionary language contained on the declarations page, cited by appellants as being ambiguous, states: "This insurance does not apply to bodily injury or property damage arising out of the conduct of any partnership or joint venture of which the Insured is a partner or member and which is not designated in this policy as a named insured." (Emphasissic.) The policy further provides in the section designated as conditions: "12. Declarations. By acceptance of this policy, the namedinsured agrees that the statements in the declarations are his agreements and representations. That this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between *Page 624 himself and the company or any of its agents relating to this insurance." (Emphasis sic.) When reviewing the above provisions in the context of the entire policy and the law as set forth above, this court finds that the provisions of the policy are clear and unambiguous and that the only logical interpretation of these provisions is that appellants, John and Dena Georgakopoulos, were covered under the terms of the policy only as individuals and only while they were conducting business at the Den Lounge as a sole proprietorship. As to appellants' arguments concerning the lack of an alienation clause in the policy, we agree with the trial court that these arguments are without merit and that the cases cited in support of these arguments by appellants are distinguishable and not applicable to the facts herein. Accordingly, appellants' first and second assignments of error are found not well taken. In support of their third assignment of error, appellants assert that genuine issues of material fact exist thereby precluding summary judgment for appellee. Specifically, appellants argue that affidavits submitted by them to the trial court indicate that notice was given by telephone to appellee on May 27, 1987, through Evelyn Lavoy, an employee of the underwriting agent of the policy, that the Georgakopolouses had incorporated their business and that Lavoy indicated that said incorporation would be noted and coverage provided. Appellants submit that the trial court failed to give proper consideration to these affidavits and disregarded the issues of fact raised thereby. As to this issue, the trial court stated in its decision that: "Although plaintiffs contend that they informed an employee of Century Surety's underwriting agent of the change in ownership and that the employee indicated that all the plaintiffs would be listed as insured, the agreement expressly states that notice to an agent shall not affect a change in the policy unless the change in terms is signed by a duly authorized representative. See Condition 8. There is no evidence that any Century Surety representative signed an endorsement noting the change in ownership." Civ.R. 56(E) provides in pertinent part: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations as denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Appellants submit that the affidavits raised a genuine issue of fact as to whether or not the oral notice given to an employee of appellee was sufficient *Page 625 to effect a change in coverage to reflect the incorporation and the additional insureds. Condition 8 of the insurance policy provides: "Changes. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver of a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy, signed by a duly authorized representative of the company." This section of the insurance policy clearly and unambiguously provides that any modification of coverage of the policy can only be effected by written endorsement issued by a authorized representative of appellee. Although appellants did present evidence as to oral notification of the change in their status, there was no evidence presented by appellants of any written endorsement issued modifying the original policy provisions. Accordingly, we find that the evidence submitted by appellants to the trial court in opposition to appellee's motion for summary judgment was not sufficient to demonstrate that a genuine issue of material fact remained as to coverage and that the trial court, therefore, did not err in granting appellee summary judgment. Accordingly, appellants' third assignment of error is found not well taken. On consideration whereof this court finds that substantial justice has been done the parties complaining and the judgment of the Lucas County Court of Common Pleas is affirmed. Costs assessed to appellants. Judgment affirmed. HANDWORK, P.J., concurs. Prior to his death, Judge JOHN J. CONNORS, JR. participated in the decisionmaking process of this case. *Page 626

2016-07-06 06:36:36.468037+00

Patton

Christopher Stegawski, M.D. appeals the judgment of the Cuyahoga County Court of Common Pleas granting summary judgment to defendants-appellees Cleveland Anesthesia Group, Inc., Gary S. Freeman, M.D., Gerald Goldberg, M.D. and Joyce C. Hardaway, M.D. Appellant also challenges various discovery orders entered by the court and the manner in which the court regulated discovery. The facts giving rise to this appeal are as follows. On July 2, 1984, appellant Christopher Stegawski, M.D. filed a complaint against Cleveland Anesthesia Group, Inc. (hereafter "CAG"), Gary S. Freeman, M.D. (hereafter "Freeman"), Gerald Goldberg, M.D. (hereafter "Goldberg"), Joyce C. Hardaway, M.D. (hereafter "Hardaway") and the Mt. Sinai Medical Center of Cleveland (hereafter "Mt. Sinai").1 Appellant alleged, interalia, that the defendants fraudulently induced him *Page 79 to accept employment with CAG to provide anesthesia services at Mt. Sinai. In his complaint, appellant alleged that Freeman, acting individually, as president of CAG and as director of the Department of Anesthesiology of Mt. Sinai, represented to appellant that if he accepted employment with CAG and obtained board certification in anesthesiology, appellant would be made a shareholder-partner in CAG. Mt. Sinai filed a motion to dismiss or, in the alternative, for summary judgment on September 4, 1984. Mt. Sinai's motion was granted in late April or early May 1985, and it was dismissed from the action. On or about March 13, 1985, appellant served his first request for production of documents to CAG, Mt. Sinai, Freeman, Goldberg and Hardaway. Appellant additionally sent his first set of interrogatories to Freeman, Goldberg, Hardaway and CAG on that same date. The appellees filed a motion for a protective order from appellant's discovery request, as did Mt. Sinai. The appellees contended that appellant's request was voluminous and that the information which appellant was seeking was privileged, irrelevant and generally objectionable. Appellees requested that they, at the minimum, have more time to study and review appellant's interrogatories. Appellees' motion for a protective order was held in abeyance by the court pending further order of the court. On June 25, 1985, appellant filed a notice duces tecum to take the deposition of Mt. Sinai's records custodian on July 2, 1985 and a notice to take the deposition of Barry M. Spero, the president of Mt. Sinai at the time, on July 3, 1985. On June 27, 1985, Mt. Sinai filed a motion to quash the subpoenas served upon Spero and Mt. Sinai's records custodian and also moved for a protective order. Mt. Sinai claimed that discovery from Mt. Sinai and Spero was irrelevant as Mt. Sinai had been removed from the case and the remaining claims involved CAG and its shareholders. Mt. Sinai also argued that appellant'sduces tecum request to the custodian of records of Mt. Sinai was burdensome and oppressive. On July 2, 1985, appellees also moved for a protective order regarding appellant's attempted discovery of information from Mt. Sinai. The appellees claimed that the information sought was irrelevant and not reasonably calculated to lead to admissible evidence. On July 3, 1985, the court granted Mt. Sinai's motion to quash and ordered that no documents needed to be produced by Mt. Sinai. On September 9, 1985, appellant filed a notice to take the depositions of Dr. Bechara Hatoum, Dr. Lina Bigornia, Dr. David Goldstein, Dr. Douglas Mayers, Dr. Znbeida Charania, Dr. Luke Cheriyian, Dr. Morris Mandel, Dr. Scott Boydman and Ms. Dorothy Timms. Appellees responded to these notices and the subpoenas that were issued by filing a motion to quash certain of these subpoenas. The appellees maintained that all of these individuals except Dr. Cheriyian were employees of CAG although Timms was primarily an employee of Mt. Sinai. The appellees further argued that none of the proposed deponents had any involvement in the interviewing and hiring of the appellant. The appellees sought a protective order because of the lack of reasonable notice to the appellees, appellant's questionable motives in deposing these individuals, and the lack of obtainable, relevant information. On October 25, 1985, the court quashed the subpoenas of Timms and the remaining non-party witnesses for their scheduled dates. Appellant was barred from taking the deposition of Timms. Although appellant was permitted *Page 80 to take the depositions of the other non-party witnesses, the court limited the scope of inquiry at those depositions to background information and questions as to representations made to such witnesses regarding prospective employment with CAG by any agent of CAG. Also, on October 25, 1985, appellant filed a motion to compel discovery. Appellant wanted the court to order appellees (1) to produce documents requested by appellant; (2) to answer interrogatories propounded by appellant; and (3) to answer questions asked by appellant during their depositions. With leave of court, appellees filed a motion for summary judgment on March 4, 1986. Appellant opposed this motion, contesting that genuine issues of material fact existed. The appellees, with leave of court, filed a reply brief and a supplemental memorandum in support of their motion for summary judgment. On June 27, 1986, the court granted appellees' motion for summary judgment. The appellant filed a timely notice of appeal from this judgment. The instant case arises from the circumstances surrounding appellant's employment with CAG. CAG is a small group of anesthesiologists who render medical care primarily to the patients of Mt. Sinai. At all times pertinent to this action, Dr. Freeman was a shareholder in, and president of, CAG; Dr. Goldberg was a shareholder in, and secretary of, CAG; and Dr. Hardaway was a shareholder in, and treasurer of, CAG. In the late summer, early fall of 1981, appellant placed an advertisement in a professional journal in an effort to secure employment as an anesthesiologist. At the time, he was working at St. Vincent Charity Hospital. Dr. Freeman, the president of CAG and a shareholder in the corporation, responded to appellant's advertisement, and an interview with appellant was arranged for August 1981. At the August 1981 interview, appellant spoke with both Goldberg and Freeman, although the majority of the two-hour interview was spent with Freeman. According to the appellant, Freeman represented to him during the course of this interview that once the appellant was board certified in anesthesiology, appellant would become a shareholder in CAG. Whether this statement was made is the center of the instant dispute. Freeman maintains that when the appellant inquired about shareholder status, he gave him the standard reply which he gave to other prospective candidates. He would tell the interviewees that board certification was a prerequisite to becoming a shareholder, but it was not sufficient in and of itself. Freeman also testified in his deposition that it was impossible to make a determination about a person's value to the corporation on the basis of an initial meeting; the members of the corporation would need to see how the new employee worked and got along with the surgeons. Thus, according to Freeman, shareholder status would be discussed later. Freeman stated that he could not recall his exact words to appellant. Freeman testified that appellant was never considered for, or promised, shareholder status. At this interview, Freeman offered appellant a position of employment with CAG to provide anesthesiology services to Mr. Sinai. Freeman and the appellant got into a discussion about appellant's starting salary. Freeman offered appellant a salary of $85,000 in addition to other benefits; appellant requested $100,000. The interview concluded with appellant not accepting the $85,000 figure. In early November 1981, appellant contacted Freeman by telephone. This *Page 81 was the first contact appellant had had with Freeman since the August 1981 interview and negotiations. During the phone conversation (that lasted ten to fifteen minutes), appellant was informed that the position he originally was seeking had been filled. Freeman made a new offer of employment to appellant and told him that CAG could not afford an initial salary of $85,000. Appellant accepted a salary of $72,500 because he understood that it was Freeman's "time to set the amount." No mention of shareholder status was made during that phone conversation. In December 1981, appellant received a copy of an employment agreement between himself and CAG for a one-year term commencing December 14, 1981 with automatic renewal for a one-year period unless written notice was given to the other within a specified time. This employment contract was "intended to constitute a memorialization of [appellant's] professional relationship and * * * employment agreement with Cleveland Anesthesia Group, Inc." Appellant was surprised when he got the December 1981 written contract because he did not recall talking about it earlier and was surprised to discover that the employment agreement did not make any reference to his having the opportunity to become a shareholder once he became a board certified anesthesiologist. Prior to signing the December 1981 agreement, appellant met with Freeman and inquired about why everything that had been talked about previously was not contained in the agreement. According to appellant, Freeman assured him that all the representations he had made before were still intact and that the contract was merely for the corporation's records. The December 1981 agreement was verbally renewed for another year. In April 1983, appellant became board certified. In July 1983, appellant was given a new employment contract for a period commencing July 1, 1983 and ending June 30, 1984. Appellant averred in his affidavit that he was required to sign this agreement immediately, without notice that he was going to have a new employment agreement and without notice of its terms. The letter agreement embodying this July 1, 1983 through June 30, 1984 employment period was dated July 1, 1983 and signed by appellant on July 8, 1983. In approximately October or November 1983, appellant approached Freeman about revising his employment contract. After about a month to a month and one half of negotiating about how CAG could make the employment agreement more desirable to appellant, appellant mentioned Freeman's alleged promise that the appellant would become a shareholder once he was board certified. Since the appellant had obtained this certification, appellant maintained that he was entitled to become a shareholder. This discussion in early December 1983 was the first mention appellant had made to Freeman since he had been hired about being a shareholder. On or about December 17, 1983, appellant was presented a new employment agreement. Appellant refused to sign this agreement because it made no mention of shareholder status. The negotiations continued. The appellant maintained that he would never agree to a new contract unless he became a shareholder. Subsequently, appellant was provided with another employment agreement in January 1984, which was CAG's final offer of employment. If appellant did not sign this final offer, appellant's employment with CAG would expire on June 30, 1984 and appellant would be terminated effective July 1, 1984. As this final offer did not contain any provision *Page 82 for appellant to become a shareholder, appellant declined the offer. Appellant fulfilled his July 1983 employment agreement with CAG and was terminated as notified on June 30, 1984. Subsequently, this lawsuit was initiated by appellant, which resulted in all the defendants being granted summary judgment. Appellant only appeals from the summary judgment entered on behalf of CAG, Dr. Freeman, Dr. Goldberg and Dr. Hardaway and assigns three errors for our review: "I. The trial court committed prejudicial error by granting summary judgment in favor of appellees. "II. The trial court committed prejudicial error by granting summary judgment and denying appellant his right to a trial by jury. "III. The trial court committed prejudicial error in the manner in which it regulated discovery." I Appellant's first two assignments of error are interrelated and, therefore, will be addressed together. Appellant argues that the court erred in granting summary judgment on behalf of the appellees. This contention does not have merit. A court reviewing the granting of a summary judgment must follow the standard set forth in Civ. R. 56(C), which specifically provides that before summary judgment may be granted it must be determined that: "* * * (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317,327, 4 Ohio Op. 3d 466, 472, 364 N.E.2d 267, 274. "* * * It is axiomatic that summary judgment shall be rendered only when the movant has shown that there is no genuine issue as to any material fact. Civ. R. 56(C). Further, upon appeal from summary judgment, the reviewing court should look at the record in the light most favorable to the party opposing the motion. * * *" Campbell v. Hospitality Motor Inns, Inc. (1986), 24 Ohio St. 3d 54,58, 24 OBR 135, 138, 493 N.E.2d 239, 242. The Ohio Supreme Court stated in Norris v. Ohio Std. Oil Co. (1982),70 Ohio St. 2d 1, 2-3, 24 Ohio Op. 3d 1, 2, 433 N.E.2d 615, 616: "`Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and constructing evidence against the moving party, and granted onlywhen it appears from the evidentiary material that reasonableminds can reach only an adverse conclusion as to the partyopposing the motion. * * *' * * *" (Emphasis added; citations omitted.) Attached to appellees' motion for summary judgment were (1) excerpts from appellant's deposition; (2) excerpts from Dr. Freeman's deposition; (3) a copy of appellant's initial employment agreement which commenced December 14, 1981; (4) a copy of appellant's second written employment agreement embodied in a letter to appellant dated July 1, 1983; and (5) a letter to Dr. Freeman from the appellant dated February 29, 1984, in which appellant requested a written response from Dr. Freeman regarding his decision to terminate appellant's employment. Appellant initially objects to the evidentiary nature of these exhibits and contends that the court erred by granting the motion for summary *Page 83 judgment based upon these documents. Civ. R. 56(C) sets forth the type of documents which may be used to support a motion for summary judgment. The rule provides in part: "* * * The adverse party prior to the day of hearing may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. * * *" Failure to move to strike or otherwise object to documentary evidence submitted by a party in support of, or in opposition to, a motion for summary judgment waives any error in considering that evidence under Civ. R. 56(C). See Brown v. Ohio Cas. Ins.Co. (1978), 63 Ohio App. 2d 87, 17 Ohio Op. 3d 267, 409 N.E.2d 253;Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App. 3d 256,258, 8 OBR 347, 349, 456 N.E.2d 1262, 1265, at fn. 7. Although the record indicates that the documentary evidence submitted by the appellees was not authenticated by independent proof in the record and that the photostatic copies of portions of the deposition transcripts did not bear the certification of the officer before whom the depositions were taken, the appellant failed to move to strike this evidence and failed to otherwise object.2 Accordingly, the court in its discretion could review this documentary evidence, and appellant has waived any error committed by the court in considering appellees' exhibits. Appellant further argues that assuming arguendo that appellees' evidence is properly reviewable by this court, the evidence presented by him demonstrates a genuine issue of material fact and, therefore, summary judgment was improvidently granted to appellees. Appellant maintains that he was fraudulently induced into entering into an employment agreement with CAG. The elements required to establish a cause of action for fraudulent inducement are set forth in Sanfillipo v. Rarden (1985), 24 Ohio App. 3d 164,166, 24 OBR 253, 255, 493 N.E.2d 991, 994: "* * * (1) a false representation concerning a fact material to the transaction; (2) knowledge of the falsity of the statement or utter disregard for its truth; (3) intent to induce reliance on the misrepresentation; (4) reliance under circumstances manifesting a right to rely; and (5) injury resulting from the reliance. * * *" Cf. Friedland v. Lipman (1980), 68 Ohio App. 2d 255, 22 Ohio Op. 3d 422, 429 N.E.2d 456 (describing the elements of fraud). In Friedland, supra, this court discussed the burden a defendant must sustain on a motion for summary judgment in a fraud action and stated: "A trial court may grant summary judgment to a defendant upon a claim of common law fraud only where, after construing the evidence before it most strongly in the plaintiff's favor, it determines that reasonable minds could come to but one conclusion that there exists no genuine issue as to at least one of the material factual elements *Page 84 of a common law fraud and, as a result, the defendant is entitled to judgment as a matter of law." Id. at paragraph two of the syllabus. Appellant maintains that the issue before the trial court involved only one of the elements necessary to establish a cause of action for fraudulent inducement; that is, the existence of a false representation concerning a fact material to the transaction. Appellant maintains that Dr. Freeman represented to him that the only prerequisite for him to be a shareholder was that he become a board-certified anesthesiologist. Appellees argue that Freeman never told appellant that once he became board certified he would be a shareholder in CAG. Appellees further claim that the parol evidence rule bars appellant's allegations. Ordinarily, the parol evidence rule does exclude evidence of prior or contemporaneous statements contradicting or varying the terms of a written contract or other document which apparently expresses the complete agreement of the parties. Charles A.Burton, Inc. v. Durkee (1952), 158 Ohio St. 313, 49 Ohio Op. 174,109 N.E.2d 265. However, a party may proffer the introduction of contemporaneous oral representations when fraud is alleged.Walters v. First Natl. Bank of Newark (1982), 69 Ohio St. 2d 677,681, 23 Ohio Op. 3d 547, 549, 433 N.E.2d 608, 611; Finomore v.Epstein (1984), 18 Ohio App. 3d 88, 89, 18 OBR 403, 405,481 N.E.2d 1193, 1195. This exception includes when a fraudulent misrepresentation is made to induce a party to enter a contract.Walters, supra; see, also, AmeriTrust Co. v. Murray (1984),20 Ohio App. 3d 333, 20 OBR 436, 486 N.E.2d 180; BancOhio Natl.Bank v. Coleman (Nov. 29, 1984), Cuyahoga App. No. 48108, unreported. In the instant case, appellant makes just such an allegation. Furthermore, the representation at issue would add to the contract, not vary or contradict the existing terms.3 Notwithstanding the admissibility of parol evidence in the instant case, the record still reveals that no genuine issue of material fact exists regarding the alleged representation. Even if the representation were made, as the appellant contends in the August 1981 interview, the appellant declined the initial offer of employment and did not accept the salary of $85,000 which had been offered to him. When the appellant and Dr. Freeman did reach an employment agreement in November 1981, there was no further discussion about shareholder status. The appellant accepted the salary of $72,500 offered to him because he recognized that it was Dr. Freeman's "turn" to establish the amount of his salary. In December 1981, appellant received a copy of the employment agreement between himself and CAG for a term beginning December 14, 1981. Appellant reviewed the agreement and saw that the agreement did not state that once appellant became a board-certified anesthesiologist, he could become a shareholder in CAG. Prior to signing the December 1981 employment agreement, the appellant questioned Dr. Freeman as to why everything they had talked about previously was not contained in the agreement. Dr. Freeman reportedly assured the appellant that all representations he had made previously were still valid. Despite this assurance, there is nothing in the record to indicate that the issue of shareholder status was one of the specific representations made to the appellant when appellant accepted the November 1981 offer. The August 1981 offer, once rejected, was terminated, and any representations *Page 85 made at that point were also terminated and of no effect. Furthermore, appellant acknowledges that no promises of shareholder status were made in the November 1981 employment discussions. Appellant went ahead and signed the December 1981 employment agreement with CAG that made no reference whatsoever to shareholder status. It was verbally renewed for another year. Appellant did not mention the alleged August 1981 promise. In April 1983, the appellant became board certified. Subsequently, appellant was presented with another written employment agreement in July 1983 which made no mention of appellant's becoming a shareholder. The appellant signed the agreement although appellant contends he signed it under duress. There is nothing in the record to indicate that any action taken by CAG or its agents, if taken at all, was of a coercive nature. Furthermore, the letter agreement embodying the July 1, 1983 through June 30, 1984 employment period was dated July 1, 1983 and signed by appellant on July 8, 1983. Dr. Freeman testified that he gave the appellant this July 1983 agreement close to the first of July or a day or two later. The record further indicates that the appellant approached Dr. Freeman about revising his employment agreement in October or November 1983. Approximately a month to a month and one half of negotiations passed before the appellant first mentioned Dr. Freeman's alleged August 1981 promise that the appellant would become a shareholder once he was board certified. Thus, over two years had passed before the appellant mentioned this representation which, if made at all, was terminated by appellant's non-acceptance of the August 1981 offer. Construing the evidence in a light most favorable to the appellant, the non-movant, reasonable minds could only conclude that the representation regarding shareholder status, if made at all, was terminated by the August 1981 rejection and was not subsequently renewed. Since there was no genuine issue of material fact, the appellees, as movants, were entitled to judgment as a matter of law. Appellant's first two assignments of error are not well-taken. II For his third assignment of error, appellant contends that the court committed prejudicial error in the manner in which it regulated discovery. Appellant specifically claims that the court, by its orders and failure to intervene (1) denied appellant access to documents and witnesses, (2) unjustifiably restrained the scope of examination of some deponents, and (3) allowed appellees to conceal information. Appellant argues that the court prematurely granted summary judgment because the appellant did not have the opportunity to completely develop his case. Ohio policy favors the fullest opportunity to complete discovery. Rossman v. Rossman (1975), 47 Ohio App. 2d 103, 110, 1 Ohio Op. 3d 206, 210, 352 N.E.2d 149, 153. However, the trial court has discretion in controlling the discovery process. State, exrel. Daggett, v. Gessaman (1973), 34 Ohio St. 2d 55, 63 Ohio Op. 2d 88, 295 N.E.2d 659. See, also, Treinish v. Legalsystem, Inc. (Feb. 21, 1985), Cuyahoga App. No. 48566, unreported, at 4 ("A trial judge has broad discretion with regard to regulating the time and place of discovery."). In exercising its discretion in a discovery matter, the court balances the relevancy of the discovery request, the requesting party's need for the discovery, and the hardship upon the party from whom the discovery was requested. Heat Control, Inc. v. Hester *Page 86 Industries, Inc. (C.A. Fed. 1986), 785 F.2d 1017, 1022, 1024. "* * * An appellate court will reverse the decision of a trial court that extinguishes a party's right to discovery if the trial court's decision is improvident and affects the discovering party's substantial rights. * * *" (Footnote omitted.) Rossman,supra, at 110, 1 Ohio Op. 3d at 210, 352 N.E.2d at 153-154; Smith v.Klein (1985), 23 Ohio App. 3d 146, 151, 23 OBR 387, 393,492 N.E.2d 852, 858. Appellant first contends that his substantial rights were effected when the court erroneously granted Mt. Sinai's motion for a protective order and quashed the subpoenas of Mt. Sinai's custodian and president, Barry Spero. This contention is without merit. There is no evidence in the record for us to conclude that the court abused its discretion in entering this order while Mt. Sinai was dismissed from the case. The court could have reasonably concluded that the object of appellant's discovery requests to Spero and Mt. Sinai was irrelevant and not likely to lead to admissible evidence, and the request could have been reasonably found by the court to have been burdensome and harassing. Appellant next claims that the court erred by limiting the scope of appellant's examination of several non-party witnesses to only background information matters and questions as to representations made to such witnesses by any agent of CAG regarding prospective employment with CAG. Appellant claims that he was effectively foreclosed by this order from discovering any admissions made by Dr. Freeman or other agents of CAG regarding representations made to appellant and other first generation American physician employees of CAG. The court did not abuse its discretion by limiting the scope of the depositions of these witnesses. The crux of appellant's case focuses on an alleged representation made by Dr. Freeman to appellant during the interview phase. Appellant, by this order, was able to question these non-party witnesses about representations that might have been made to them during their interview processes. Second, appellant was able to depose Dr. Freeman, the man allegedly responsible for making the promise of shareholder status to appellant if appellant became board certified. Finally, appellant challenges appellees' response to appellant's first request for production of documents. The record indicates that the appellant addressed these alleged incomplete, ineffectual and edited responses in a motion to compel discovery filed with the court on October 25, 1985. The court did not rule on appellant's motion to compel prior to its decision to grant appellees' motion for summary judgment. The appellant claims that this was erroneous because he was not able to complete his discovery. Appellant's argument is again meritless. The date that appellant filed his motion to compel was the date of the court-imposed discovery deadline, which had been extended at appellant's request. Furthermore, Civ. R. 56(F) provides appellant with a remedy. Civ. R. 56(F) authorizes the trial court to delay decision on a summary judgment motion while the non-moving party gathers necessary rebuttal data: "Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just." See, also, Gates Mills Investment Co. v. Pepper *Page 87 Pike (1978), 59 Ohio App. 2d 155, 13 Ohio Op. 3d 191,392 N.E.2d 1316; Whiteleather v. Yosowitz (1983), 10 Ohio App. 3d 272, 10 OBR 386, 461 N.E.2d 1331. The record before us contains no affidavits filed by appellant asserting that he could not present facts essential to justify his opposition, nor does the record contain any request for a continuance to permit completion of discovery or to allow for a ruling on appellant's motion to compel. Absent compliance with the provisions of Civ. R. 56(F), the error was not preserved for appeal, United Telephone Co. of Ohio v. Telephone Answering Service of Lima, Inc. (Nov. 22, 1982), Allen App. No. 1-81-13, unreported. Accordingly, appellant's third assignment of error is not well-taken. The judgment of the trial court is affirmed. Judgment affirmed. NAHRA, P.J., and PRYATEL, J., concur. 1 CAG, Freeman, Goldberg and Hardaway are collectively referred to as "appellees." Mt. Sinai is not a party to this appeal. 2 Appellant claims that he did object to appellees' use of the deposition transcripts. The record indicates that appellant's objections pertained to allegations that appellees "neglected to cite relevant portions of pertinent depositions" and did not address the authenticity or certification of the documents. 3 Appellees admit that the employment agreements do not contain an integration clause.

2016-07-06 06:36:36.504381+00

Hildebrandt

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 135 Theodore Bracewell appeals from the juvenile court's denial of his Civ.R. 60(B) motion for relief from judgment. We find defendant's assignment of error to be without merit, and we therefore affirm the judgment of the lower court. Bracewell was charged in juvenile court with carrying a concealed weapon, a felony of the third degree if committed by an adult. Bracewell admitted the charge, and the juvenile court adjudicated him a delinquent child. The court ordered him permanently committed to the Department of Youth Services ("DYS"), but suspended the commitment, put Bracewell on official probation, and ordered that he be placed with his mother. On August 27, 1996, the juvenile court entered an order releasing Bracewell from official probation and submitting *Page 136 him "to the lawful care, custody and control of parent, guardian, custodian and teachers." Bracewell appeared in juvenile court several times after the original adjudication of delinquency for, among other charges, violations of conditions of probation imposed upon him in delinquency proceedings other than the one concerning the firearm charge. On November 7, 1996, the court found that Bracewell had violated another condition of house arrest and revoked the suspension of the order of permanent commitment to the DYS. Bracewell was ordered committed to DYS for an indefinite term of at least six months but not to exceed his twenty-first birthday. On January 3, 1997, counsel for Bracewell filed a motion for relief from judgment pursuant to Civ.R. 60(B), alleging that the juvenile court had no jurisdiction to commit Bracewell to DYS. The juvenile court denied the motion, and Bracewell appealed. On appeal, Bracewell argues that because he was released from official probation for the felony charge in August 1996, the juvenile court was thereafter without jurisdiction to take further action, including commitment, based on that delinquency adjudication. This court will not reverse the lower court's denial of Bracewell's Civ.R. 60(B) motion unless Bracewell demonstrates that the court abused its discretion. For the following reasons, we hold that the trial court did not abuse its discretion in denying the motion. A. JURISDICTION OF THE JUVENILE COURT A juvenile court has jurisdiction "concerning any child who on or about the date specified in the complaint is alleged to be" a delinquent child.1 This jurisdiction is continuing and may be invoked at any time by motion before the juvenile court.2 If the child is ultimately adjudicated delinquent, the court has wide latitude in the order of disposition that it may make.3 Because the purpose of maintaining a juvenile court is different from that of the criminal justice system for adults, a juvenile court is given discretion to make any disposition "that the court finds proper."4 The proceedings are considered not criminal but *Page 137 civil in nature, and the dispositions ordered by the court are considered not punitive but rehabilitative.5 In In re Young Children,6 a consolidation of three cases, the Ohio Supreme Court considered whether a juvenile court had jurisdiction to enter custody orders after the so-called sunset date had passed for making such orders. In that case, different public services agencies had filed for and received temporary custody of young children. R.C. 2151.353 (F) states that temporary custody orders expire one year from the time the complaint was first filed or the date the child was placed in shelter care, whichever is earlier. If, however, the children's services agency files a motion more than thirty days prior to the expiration of the order, the court is then allowed to modify or continue the temporary order. In Young, none of the agencies filed a motion with the court prior to the sunset date. Thus, when the one-year sunset date passed, the custody orders expired by operation of statute. The juvenile court nevertheless considered and granted motions belatedly filed by the agencies to continue their custody. In determining the propriety of the judges' actions, the court stated: "Temporary custody is terminated upon the passing of the sunset date, when no motion is filed pursuant to R.C. 2151.415 (A). However, the issue before us, what happens to the court'sjurisdiction, is not clear. * * * "R.C. 2151.353(E)(1) provides in pertinent part that `the court shall retain jurisdiction over any child for whom the court issues an order of disposition pursuant to division (A) of this section * * * until the child attains the age or eighteen * * * or the child is adopted.' It seems abundantly clear that thisprovision was intended to ensure that a child's welfare wouldalways be subject to court review. That is, given that a child,by virtue of being before the court pursuant to R.C.Chapter 2151, was at some risk of harm, the General Assembly provided forthe child's safety and welfare by ensuring that juvenile courtwould retain jurisdiction over the child through the age ofmajority. R.C. Chapter 2151 places no limitation on this general jurisdiction."7 (Emphasis added.) The court therefore held that expiration of the custody orders did not divest the juvenile court of jurisdiction to extend, modify or take other action in those *Page 138 cases.8 Because juvenile court proceedings are not criminal but civil in nature,9 and are designed to provide for the care, protection, and mental and physical development of children who engage in what otherwise would be criminal behavior,10 the reasoning of the court in Young, involving neglected or dependent children, is equally applicable here.11 In In re Ravanna T.,12 the juvenile court ordered a juvenile to be committed to DYS for a minimum of one year and continuing until the child reached twenty-one. The court then suspended the commitment "on condition of no violation of court order, probation or any law." The juvenile's probation was officially terminated in November 1995. In February 1996, the juvenile was charged with violation of a local safe-school ordinance. The juvenile court rescinded the stay of the commitment and ordered that the juvenile be committed to DYS. The juvenile appealed that dispositional order, arguing that once he was released from probation, the court had no authority to reimpose the suspended commitment order. The court held: "[D]espite appellant's successful completion of his probation period, the stay continued until age twenty-one and could be revoked if appellant violated any other laws. Upon review of the record in this case, we cannot say that the trial court abused its discretion in rescinding its prior dispositional stay when appellant was again adjudicated delinquent in violation of its original order."13 The court's decision was influenced by the lower court's order conditioning the suspension of the commitment order not only on completion of probation, but on the juvenile's continued compliance with the law. Here, the trial judge stated at the first dispositional hearing that the order of commitment was stayed, and that the juvenile would not have to appear before the court again unless he got himself into some "more difficulty" or violated his probation. Thus, while the order was not as specific as the court's in Ravanna, the court here also conditioned the stay *Page 139 on continued compliance with the law. We find no abuse of discretion in the juvenile court's denial of Bracewell's Civ.R. 60(B) motion for relief from judgment. B. DISSOLVING THE STAY ON THE COMMITMENT ORDER DOES NOT IMPOSE DOUBLE PUNISHMENT Moreover, probation is not a "sentence" or punishment (nor is any other dispositional order of a juvenile court), but is merely a legal status allowing the juvenile to remain with his family while under the supervision of the court.14 Here, Bracewell was permitted to remain with his parents under the supervision of the department of probation. Thus, the release from probation returned custody and supervisory responsibility to Bracewell's family, but did not otherwise affect the court's continuing jurisdiction over Bracewell to make appropriate dispositional orders. Reinstating the commitment order was not a double punishment, but was undertaken for the protection and rehabilitation of the child, whose parents were unable to ensure his compliance with the law. Of course, the jurisdiction of the juvenile court relating to a child is not without end. R.C. 2151.38 states: "(A) When a child is committed to the legal custody of the department of youth services, the jurisdiction of the juvenile court with respect to the child so committed shall cease and terminate at the time of commitment * * *. [A]ll other dispositional orders made by the court shall be temporary and shall continue for a period that is designated by the court in its order, until terminated or modified by the court or until the child attains twenty-one years of age." Also, if the juvenile is bound over to the court of common pleas for criminal prosecution as an adult, the juvenile court loses jurisdiction.15 C. CONTINUING JURISDICTION DOES NOT INVALIDATE PROBATION OR RELEASE FROM PROBATION The conclusion that termination of probation does not deprive the court of jurisdiction does not render the release from probation a nullity. Although the court in this case did not apparently16 set many terms of the probation, the court *Page 140 would have had the authority to require Bracewell to undergo counseling as the court did in State v. Sapp,17 cited by Bracewell, or to require any other condition for probation.18 Probation also carries with it the duty to report to a probation officer and provide whatever information the probation officer requests.19 Thus, a release from probation releases the child from the supervision of a probation officer and from any other condition of probation that was placed on him. Bracewell cites several cases holding that a trial court's jurisdiction over an adult offender and its authority to impose a sentence terminate when the period of probation ends. There is, however, no such provision for termination of the juvenile court's jurisdiction either in the statutes, in the rules of procedure for juvenile court, or in the case law. Rather, the jurisdiction of the juvenile court is contemplated to be continuing. Bracewell's reliance upon Sapp, supra, is also misplaced. First, it is not clear whether in Sapp the appellate court and the lower court were applying rules applicable to juveniles or those of the adult criminal-justice system. The appellate court reefer to the trial court's imposition of "a sentence of sixty days' incarceration," whereas the juvenile system does not impose "sentences" and clearly prohibits traditional incarceration of a child subject to the court's jurisdiction.20 The issue in Sapp was whether the lower court had jurisdiction to extend a condition (counseling) of the offender's probation after the initial period of probation had passed. The court held that it did not, a questionable holding after the Ohio Supreme Court's decision in In re Young Children, supra, decided afterSapp. We do not believe that the Sapp case provides any rational support for Bracewell's proposed error here. The juvenile court in this case had jurisdiction to revoke the suspension of permanent commitment even though Bracewell had been released from official probation. We find no authority for terminating or limiting the ability of the *Page 141 juvenile court to take such action,21 and consequently we overrule Bracewell's assignment of error. The judgment of the trial court is affirmed. Judgment affirmed. SHANNON, J., concurs. PAINTER, J., dissents. RAYMOND E. SHANNON, J., retired, of the First Appellate District, sitting by assignment. 1 R.C. 2151.23 (A)(1). 2 Juv.R.35. 3 See R.C. 2151.355 (A). 4 R.C. 2151.355 (A)(12); In re Caldwell, 76 Ohio St.3d 156,160, 666 N.E.2d 1367, 1370. 5 See Cope v. Campbell (1964), 175 Ohio St. 475, 26 O.O.2d 88, 196 N.E.2d 457, paragraph one of the syllabus, overruled on other grounds in In re Agler (July 9, 1969), 19 Ohio St.2d 70, 48 O.O.2d 85, 249 N.E.2d 808; In re Young Children (1996), 76 Ohio St.3d 632,669 N.E.2d 1140; In re Bolden (1973), 37 Ohio App.2d 7, 66 O.O.2d 26, 306 N.E.2d 166. 6 (1996), 76 Ohio St.3d 632, 669 N.E.2d 1140. 7 Id., 76 Ohio St.3d at 637, 669 N.E.2d at 1144. 8 Id. See, also, Linger v. Weiss (1979), 57 Ohio St.2d 97, 11 O.O.3d 281, 386 N.E.2d 1354 (although the time mandated in the juvenile rules for acting on a dependency matter had passed, the court still had continuing jurisdiction to make dispositional orders). 9 See In re Bolden, supra, 37 Ohio App.2d at 16, 66 O.O.2d at 31, 306 N.E.2d at 172. 10 See R.C. 2151.01. 11 See, generally, In re Ravanna T. (Aug. 1, 1997), Lucas App. No. L-96-371, unreported, 1997 WL 438233. 12 (Aug. 1, 1997), Lucas App. No. L-96-371, unreported, 1997 WL 438233. 13 Id. at 3. 14 R.C. 2151.011 (B)(14). 15 R.C. 2151.23 (H). 16 The record before us does not indicate what the terms of probation were. The statute requires the court to provide the juvenile with a written statement of all probation conditions. There is no allegation here that the court failed to comply with that directive. 17 State v. Sapp (June 11, 1993), Wood App. No. 92DWD904, unreported, 1993 WL 195856. 18 See, e.g., In re Griffin (Sept. 27, 1990), Union App. No. 14-96-14, unreported, 1996 WL 547921 (conditions of probation included tour of London correctional facility, twenty hours of community service, a five-page essay, and attendance at Tai Chi classes). 19 See R.C. 2151.14 (A) (duties of probation department). 20 See R.C. 2151.355 (A)(12). 21 No challenge to the constitutionality of the juvenile court procedures was presented to us, so we have no cause to consider that question.

2016-07-06 06:36:36.797559+00

Washburn

This cause is before this court on appeal on questions of law. The appellant is Harry D. Jones, who was indicted and tried for, convicted of, and sentenced for, the crime of malicious destruction of property. He will be hereinafter referred to as the defendant. Before the jurors were examined, the defendant interposed a challenge to the array, which was overruled, and such action of the court is assigned as one of the errors complained of. After the introduction of the testimony on behalf of the state and the introduction by the defendant of the evidence of five witnesses, the defendant made a motion to declare a mistrial, which, after quite an extended hearing in the absence of the jury, was denied, and that ruling is assigned as error. It is also claimed that there was misconduct on the part of the trial judge, occurring in the presence of the jury, for which a new trial should be granted, and also that there were various other errors of law occurring at the trial by reason of which the defendant did not have a fair trial. As to the challenge to the array, the record discloses that there were on hand at the court house 48 jurors, who had been summoned for jury duty in all respects *Page 338 in accordance with the laws of Ohio governing the selection of jurors for service in court, and that the only claimed irregularity was that the jury bailiff, or, as she is designated by statute (Section 1541, General Code), chief court constable, in response to the order of the trial judge for 16 jurors to be sent to his court, selected that number from among the jurors on hand and sent them to the court room where the trial of the defendant was to be conducted. The record also discloses that in making the selection the constable followed a more or less flexible plan, designed to equalize the work among the jurors, and that the procedure followed in this case was the usual procedure followed in all other cases over a period of years. The constable who had charge of the jurors and who made said selection, was appointed by the judges comprising the Common Pleas Court, and operated under their supervision and direction, in accordance with the provisions of said statute. There is no evidence that the said constable was in any wise interested in this case or that the established procedure was in any manner varied. No statute of the state and no rule of the court was violated, and whether the established procedure should or should not be changed, is a question for determination by the common pleas judges or the Legislature; but under the record in this case, we hold that there was no error in overruling the challenge to the array. As to the claimed error of the court in failing to declare a mistrial on the motion of the defendant made after the state had introduced its evidence and the defendant had introduced the evidence of several of his witnesses, it should be noted that the motion was not to excuse one juror and to substitute therefor the alternate, under the statute providing for such substitution under some circumstances; it was simply and purely a motion to declare a mistrial, and that was insisted upon throughout the hearing of the motion. *Page 339 It was the claim of counsel for the defendant that they had discovered during the trial, and after they had introduced a part of the evidence on behalf of the defendant, that one of the jurors, in answer to questions on the voir dire, had concealed certain facts about which she had been interrogated, and had falsely answered an interrogatory as to another fact. The claimed concealment was in reference to the fact that the juror's oldest son was serving a sentence in the jail of the county and was not living at home with her. When said juror was being examined on voir dire, the assistant prosecutor asked the following questions and the juror gave the following answers: "Q. Mrs. Howald, do you have a family? Any children? A. Yes, I have three boys. "Q. Three boys. And their ages, please? A. Twenty-one, eighteen and eight. "Q. And is your oldest boy employed? A. No, he isn't. "Q. Any of your children? A. No. "Q. That is, the youngest boy? They stay at home, do they? A. Yes." It was shown at the hearing on the motion that a few weeks before the trial the juror was in the Court of Common Pleas when her oldest son pleaded guilty to violation of the criminal statutes and was sentenced to the jail of the county, and it is claimed that her answer constituted a concealment of the fact that her oldest boy was in jail at the time she was being examined. We cannot agree with such interpretation of the juror's said answers. The record justifies the conclusion that at the time said questions were asked no one had in mind the incident as to the juror's oldest son, and the questions cannot be fairly said to refer to it. Moreover, that fact does not appear to be material. *Page 340 As to the claimed misstatement of fact, the record discloses that, at said voir dire examination, the assistant prosecutor, after asking the juror whether the attorneys for the defendant had ever represented her or any member of her family in any matter, asked her the following questions and she made the following answers: "Q. The state of Ohio in this case is represented by the prosecutor, Mr. Russell, Alva Russell, myself, Robert Azar, assistant prosecutor, and Mr. Glenn Peters. A. I don't know any of you. "Q. Do you know any of us? A. No, I don't. "Q. We also have in our office, the prosecutor's office, two other assistants, William Spencer and George Farr. Do you know either one of those men? A. No." It is claimed that her answer that she did not know Mr. Farr, an assistant prosecutor who was taking no part in the Jones trial, was untrue, and to prove that, evidence was introduced showing that, at the hearing in the Common Pleas Court, when her son pleaded guilty in her presence, the state was represented by said Farr. No other evidence to show that she did know Mr. Farr was introduced. The evidence introduced consisted of a stenographic report of all that transpired in court when the juror's son pleaded guilty and was sentenced. The stenographer entered upon the transcript that Farr was present representing the state and that he asked questions of witnesses and answered questions of the court, but there is no showing that the juror ever saw that transcript. All that is shown is that she was present in court and probably heard what was said, and it does not appear from the transcript that Farr's name was mentioned by anyone so as to acquaint the juror with the fact that anyone by the name of Farr was present; and when she was questioned on voir dire if she knew Farr and she answered "No," Farr was *Page 341 not in the court room, and it does not appear that at any time during the trial of the defendant in this case Farr was in court when said juror was present. We hold that such evidence does not show that the juror knew Farr and made a misstatement when she answered that she did not. But whether or not she did know him is of little importance unless there was a showing that by his conduct at the hearing he conferred a favor upon the juror. It was claimed that such favor was conferred. The only evidence offered was said transcript. A consideration of the transcript shows that he did not do that. On the contrary, it shows that he introduced evidence which was strongly in opposition to the desire of the juror that her son be shown leniency by the court, and in no manner recommended leniency; and further that, if, under the circumstances of the case, the sentence was less severe than it should have been, it was solely the act of the trial judge. On the record, we are of the opinion that the trial judge did not err in determining that, on the showing made, there was no concealment or misstatement of material facts by the juror that deprived the defendant of a substantial right in connection with the selection of jurors. However, it is claimed by the defendant that the evidence introduced at the hearing was such as to make it the duty of the trial judge to suspend the trial of the case and make a further investigation by calling the juror before the court and interrogating her in reference to the truthfulness of her said answers on voir dire examination. We hold, upon the showing made, that the trial judge was not in error in deciding that such was not his duty. Thereupon, one of counsel for the defendant insisted *Page 342 that the juror be brought into court and he be permitted to interrogate her. The court, evidently having in mind the statute hereinbefore referred to, giving the right to the court under certain circumstances to excuse a juror and substitute therefor the alternate, finally decided to bring the juror into court. The motion to declare a mistrial was not made in the presence of the jury and was not referred to in the presence of any of the jurors during the hearing of the motion, the jury being in charge of the court constable in the jury room, which is separate and apart from the court room and the chambers of the court. The trial judge, pursuant to his decision to accede to the insistent demands of counsel for the defendant, instructed the constable to bring said juror into open court; and that was done without explanation of any kind to the juror as to why it was done. But as soon as the juror was seated, the prosecuting attorney, without saying anything that would inform the juror of what it was proposed to do or why she had been called in, moved the court for a recess to enable him to present some law to the court indicating that the proposed procedure was illegal; and the juror was immediately returned to the jury room. The court thereafter reconvened without the jury, and argument was had upon the question as to whether or not the court had power to substitute the alternate for a juror except under the specific circumstances mentioned in the statute. The trial judge finally concluded that, regardless of the question of power of the court, the showing made did not warrant further inquiry during the trial into the conduct of the juror (and no further inquiry was sought on the motion for a new trial), and announced that the matter was closed and that the trial should proceed. *Page 343 The defendant saved exceptions to such ruling, as he had to various other rulings made during the hearing on the motion. Thereafter, the jury was brought into court, and the defendant was ordered to proceed with the introduction of his evidence, and counsel for defendant rested defendant's case without a further introduction of evidence; the defendant did not testify and of course was not cross-examined. The state having no further evidence to introduce, the cause was argued to the jury by attorneys representing the state and an attorney representing the defendant, and was submitted to the jury under the instructions of the court. A verdict of guilty was returned, upon which judgment was entered, and a motion for a new trial was filed, which was overruled. On the motion for a new trial, no evidence whatsoever was introduced concerning any of the matters hereinbefore referred to. No error as to the charge of the court was argued, and no claim was made that, on the evidence that the jury had before it, the verdict was against the weight of the evidence. It is, however, insisted that the defendant did not have a fair trial. It is apparent from our rulings on the various claimed errors which have been argued and ruled upon as hereinbefore set forth, that we are of the opinion that upon this record the defendant did have a fair trial and was properly convicted. Judgment affirmed. DOYLE, P.J., and STEVENS, J., concur. *Page 344

2016-07-06 06:36:36.880651+00

Mahoney

On April 1, 1969, defendant Worden's Motorcycle Shop, of Akron (an appellee) sold a 1968 Honda motorcycle to defendant Peter Vidican (an appellee) for the sum of $418.50. The money for the purchase was supplied by the plaintiff (appellant), William P. Gay, a minor 18 years of age. Possession of the Honda was given by Worden's to Vidican and by Vidican to Gay. Gay attached a license plate that he owned, which was registered to another cycle, to the Honda. The title was never transferred from Worden's to Vidican until August 19, 1969. On August 15, 1969, while operating the Honda, Gay sustained personal injuries as a direct result of a collision with an uninsured motorist. It was stipulated between these parties that the plaintiff, Gay, was legally entitled to recover damages from the uninsured motorist. On the day of the collision, Gay owned a motor vehicle on which he had uninsured motorist and medical payments coverage with defendant Grange Mutual Casualty Company (an appellee). Gay lived with and was a member of the household of his father, who had similar insurance coverage with Grange Mutual Casualty Company. Defendants Duane and Juanita Worden have a "General Liability-Automobile Policy," with an endorsement providing uninsured motorist coverage through defendant Universal Underwriters Insurance Company. Under part II of that endorsement, coverage was extended to the named insured *Page 235 and any other person occupying an "insured highway vehicle." An "insured highway vehicle" is described in the endorsement as any highway vehicle to which is attached a dealer's license plates issued to the named insured. Thereafter, Gay filed suit against Vidican, Worden's, Grange and Universal. The trial court granted Gay a judgment on both of his claims against Grange, but denied him a judgment as to Universal on either the "med-pay" claim or uninsured motorist claim. Grange paid the judgments, and the plaintiff, Gay, brings this appeal and assigns the following errors: "The judgment of the court, to-wit: "[1] `that as to the defendant Universal Underwriters Insurance Company, the terms of the casualty insurance policy said defendant wrote for the defendant Worden's Motorcycle Shop does not, by its terms, inure to the benefit of the plaintiff as to uninsured motorist coverage,' is contrary to law; and "[2] `that as to the defendant Universal Underwriters Insurance Company, the terms of the casualty insurance policy said defendant wrote for the defendant Worden's Motorcycle Shop does not, by its terms, inure to the benefit of the plaintiff as to medical payment coverage,' is contrary to law." The plaintiff argues, as to the first assignment of error, that the restrictive provision in the uninsured motorists endorsement is void as against public policy because it conflicts with and lessens the coverages afforded by R. C. 3937.18. He further contends that coverage should follow the vehicle, and that every vehicle afforded coverage under the liability provisions should be afforded uninsured motorists protection. He further asserts that the insured, Worden's, was never given an opportunity to reject this lesser coverage, as provided by statute. We cannot agree with this reasoning. We are dealing here with a garage liability policy, not with a regular automobile liability policy. The plaintiff simply does not fall within the definition of "persons insured" under Part II of the uninsured motorists endorsement. Even the plaintiff *Page 236 admits that he is not an insured under the garage liability portion of the policies. The pertinent parts of R. C. 3937.18 provide: "(A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 4509.20 of the Revised Code, under provisions approved by the superintendent of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further that, unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer." We hold that R. C. 3937.18 is for the "protection of persons insured thereunder," not vehicles. The named insureds, Duane and Juanita Worden, who bought and paid for the policy, are insured, as required by R. C. 3937.18. We further hold that defining "insured highway vehicles," as those "to which are attached dealer's license plates issued to the named insured" is not in conflict with the provisions of R. C. 3937.18. The plaintiff urges the court to find that his use of the Honda was a use incident to the scope of the garage operations. Here again, the policy definitions clearly exclude the facts of this case from being a use within the "automobile hazard" as defined in Part I of the garage policy, and "persons insured," as set forth in Part V (3): "V Persons Insured *Page 237 "Each of the following is an insured under this insurance to the extent set forth below: * * * "(3) with respect to the automobile hazard: * * * "None of the following is an insured: * * * "(iii) any person or organization other than the named insured with respect to any automobile (a) owned by such person or organization or by a member (other than the named insured) of the same household, or (b) possession of which has been transferred to another by the named insured pursuant to an agreement of sale * * *." (Emphasis ours.) The second assignment of error deals with the claim for "medical payments" coverage. Here again, we must concur with the judgment of the trial court. The reasoning of the plaintiff is rather circuitous and the policy simply cannot be stretched that far. The use of the Honda by the plaintiff was not a use covered under the garage liability policy. A further look at the face sheet of the policy does not show that the Wordens contracted for coverages I or J by paying premiums. Even if they had, the plaintiff simply does not come within any of the definitions of the person insured, as being one for whom bodily injury liability insurance is afforded with respect to such use. The plaintiff's use was not the Wordens' use. The case of Brewer v.DeCant (1958), 167 Ohio St. 411, is not applicable here, as the plaintiff's use is specifically excluded under the provisions of Part V(3) (iii) of the policy set forth above. We have reviewed the claimed errors and find none prejudicial to any substantial right of the plaintiff. Judgment affirmed. BRENNEMAN, P. J., and DOYLE, J., concur. DOYLE, J., retired, assigned to active duty under authority of Article IV, Section 6(C), Constitution. *Page 238

2016-07-06 06:36:37.207834+00

Bowman

On December 21, 1989, appellant, Donald H. McGee, Ph.D., entered a guilty plea to one count of Medicaid fraud, a felony of the fourth degree. Based on R.C. 4732.17(A), which authorizes appellee, the Ohio State Board of Psychology ("board"), to take action against the license of any psychologist who has been convicted of a felony in any state or federal court, the board mailed appellant a notice of opportunity for hearing, indicating its intention to determine whether to issue a reprimand or suspend or revoke his license to practice psychology based on his being sentenced on a guilty plea to one count of Medicaid fraud. Appellant requested a hearing on the matter and one was initially scheduled for February 8, 1991; however, it was continued because the board did not have a quorum. The hearing was rescheduled for May 17, 1991, at which time appellant stipulated to the fact that he had been convicted of a felony. Evidence was then presented at the hearing on the issue of mitigation, with appellant testifying on his own behalf. Part of the evidence admitted at the hearing included state's Exhibit No. 6, appellant's entry of guilty plea. At its meeting on June 28, 1991, the board decided to delay a final decision on appellant's case until a complete, official transcript was available for review. At the September 20, 1991 meeting, the board reviewed the complete transcript of the hearing and the exhibits and determined that appellant's license should be revoked. Thereafter, on October 1, 1991, an adjudication order was issued stating that the board did not find that appellant provided adequate or persuasive reasons for his failure to comply with his provider agreement or the rules of the state for Medicaid reimbursement that would mitigate any sanctions levied against him. Consequently, the board revoked appellant's license. Appellant appealed the decision of the board to the Franklin County Court of Common Pleas. On June 18, 1992, the trial court entered its decision affirming the order of the board, finding that it was supported by reliable, probative and substantial evidence and was in accordance with law. Appellant then appealed to this court and filed a motion to supplement the record with a copy of a negotiated plea agreement which appellant allegedly entered into prior to his plea of guilty to one count of Medicaid fraud. The motion to supplement the record was denied. The board also filed a motion to strike extraneous matter from the files and this court determined that the *Page 304 motion would be addressed with the appeal on the merits. This court now overrules the board's motion to strike, as this appeal will be determined based only on the record before this court. See State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405,377 N.E.2d 500; and App.R. 9(A). Appellant asserts the following assignments of error: "First Assignment of Error "The board of psychology's order is contrary to law where the evidence establishes that Dr. McGee, in good faith, followed previous legal court decisions and agreements of all parties concerned. Said revocation is, therefore, not supported by reliable, probative, and substantial evidence. "Second Assignment of Error "Prejudicial error occurs when the board of psychology fails to certify a complete record of proceedings to the trial court. "Third Assignment of Error "The board of psychology's action is contrary to law where the evidence demonstrates no justification for the severe action of revocation, where a lesser disciplinary action is appropriate." In an administrative appeal under R.C. 119.12, the trial court reviews the agency's order to determine whether it is supported by reliable, probative and substantial evidence and is in accordance with law. When performing this review, the common pleas court may consider the credibility of competing witnesses as well as the weight and probative character of the evidence.Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 58 O.O. 51, 131 N.E.2d 390, paragraph one of the syllabus. To a limited extent, this standard of review permits the common pleas court to substitute its judgment for that of the administrative agency. Nevertheless, "the Court of Common Pleas must give due deference to the administrative resolution of evidentiary conflicts." Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108,111, 17 O.O.3d 65, 67, 407 N.E.2d 1265, 1267. The court also stated that an agency's factual findings should not be disturbed by the common pleas court absent legally significant reasons for doing so. On further appeal to this court, the standard of review is more limited. Unlike the common pleas court, the court of appeals does not determine the weight of the evidence.Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd.of Edn. (1992), 63 Ohio St.3d 705, 707, 590 N.E.2d 1240, 1241. In reviewing the common pleas court's determination that the agency's order is or is not supported by reliable, probative and substantial evidence, the appellate court's role is, in part, limited to determining whether the common pleas court abused its discretion. Hartzog v. Ohio State Univ. *Page 305 (1985), 27 Ohio App.3d 214, 216, 27 OBR 254, 256, 500 N.E.2d 362,364; Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159,161, 11 OBR 242, 243, 463 N.E.2d 1280, 1282. This deferential standard of review is necessarily limited to issues (such as the weight of the evidence and credibility of witnesses) as to which the common pleas court has some limited discretion to exercise. On questions of law, the common pleas court does not exercise discretion and the court of appeal's review is plenary. Univ. Hosp., Univ. of Cincinnati College ofMedicine v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339,587 N.E.2d 835, paragraph one of the syllabus; In re Raymundo (1990), 67 Ohio App.3d 262, 265, 586 N.E.2d 1149, 1151. Based on these guidelines, this court will address appellant's assignments of error. Appellant's first two assignments of error are related and will be considered together. Initially, appellant asserts that the board failed to certify a complete record of the proceedings to the trial court. Appellant asserts that the record is incomplete because the record was certified without the minutes of the board's September 20, 1991 meeting, which showed the final disposition taken by the board in appellant's case. Appellant also asserts that the record is incomplete because a negotiated plea agreement, which allegedly formed the basis for his plea of guilty to Medicaid fraud, was not made a part of the record in the board's hearing and was never certified to the trial court, as is required. Appellant's assertion that he is entitled to judgment in his favor because the record was incomplete, since the board failed to include the minutes of the September 20, 1991 meeting when it certified the record to the trial court, is without merit. Pursuant to R.C. 119.12, the board is to prepare and certify to the court a complete record of the proceedings in the case within thirty days after receipt of a notice of appeal. In this case, appellant filed his notice of record request on October 22, 1991. On October 31, 1991, the board certified "a true and complete record of the proceedings * * * with the exception of the Minutes of the Board's September 20, 1991, meeting, which will be forthcoming upon approval at the meeting of December 13-14, 1991." The approved minutes of the September 20, 1991 meeting were filed with the court for inclusion in the record on December 18, 1991. No motion for extension of time to certify the record was filed by the board. When the board failed to file a complete record of proceedings in a timely manner, appellant could have filed a motion for judgment in his favor, see Geroc v. Ohio VeterinaryMed. Bd. (1987), 37 Ohio App.3d 192, 525 N.E.2d 501; however, he did not do so. In addition, appellant has failed to show that *Page 306 the board's omission of the minutes when the record was initially certified by the board prejudiced him. See Alban v. Ohio RealEstate Comm. (1981), 2 Ohio App.3d 430, 2 OBR 524,442 N.E.2d 771; Genoa Banking Co. v. Mills (1983), 9 Ohio App.3d 237, 9 OBR 410, 459 N.E.2d 584. In Lorms v. State (1976), 48 Ohio St.2d 153, 2 O.O.3d 336, 357 N.E.2d 1067, the court held, at the syllabus: "An agency's omission of items from the certified record of an appealed administrative proceeding does not require a finding for the appellant, pursuant to R.C. 119.12, when the omissions in no way prejudice him in the presentation of his appeal." In this case, when the board sent the certified record to the trial court, it included in its letter of certification that the September 20, 1991 board minutes had not yet been fully transcribed or approved by the board. Once the minutes were transcribed and properly approved, the minutes were filed with the lower court and became a part of the record. The trial court did not render its decision until the complete record was before it and, thus, since all pertinent information was before the trial court when it made its decision on the merits, appellant was not prejudiced by the failure of the board to timely certify the entire record to the trial court. Appellant next argues that, because of the terms of the negotiated plea agreement, the board had no legal authority or contractual right to pursue the charges against appellant. Appellant also argues that, because the plea agreement was not part of the record certified to the trial court, the record was incomplete. Appellant correctly points out that the negotiated plea agreement was not made a part of the record in the hearing before the board; however, other than appellant's argument, the record fails to reflect that the negotiated plea agreement was even offered into evidence by any party. The inference in the record is that it was not. During the hearing, appellant testified that he was aware that there were significant negotiations that occurred regarding his guilty plea. The plea was briefly mentioned again during this exchange by counsel: "Q. And the court that convicted you did not find theSerednesky decision exculpated you, did it? "Mr. Weiner: Object. That was, No. 1, I object on Evidence Rule 410 where negotiations with regard to settlement of the case are not admissible in a hearing. No. 2, there is no evidence before this board other than the pleadings in the case that there was ever that issue raised, and it would have to be — the board would have to make a quantum leap as to why or why not *Page 307 the issue was not tried, so I would object to her question based on those grounds. "Ms. Anderson: I will rephrase my question. However, Ibelieve Mr. Weiner did start to get into the issue of the factthat there had been plea negotiations. I will rephrase the question." (Emphasis added.) Later, in closing arguments, appellant's counsel stated that "[w]e did, in fact, enter a plea because technically Dr. McGee was in violation of the law, and he did not want to fight that." Other than the aforementioned vague references, the contents of the negotiated plea agreement was not addressed, either directly or by implication, in the hearing by either party and a copy of the negotiated plea agreement was not offered or admitted into evidence in the hearing before the board.1 Appellant, however, asserts that the plea agreement which would prevent the board from taking action against him has been omitted from the record. R.C. 4732.17(A) gives the board jurisdiction over appellant's license and it may deny, suspend or revoke the license based on any of the grounds enumerated in the statute. In the absence of evidence to the contrary, it must be presumed the board has jurisdiction to conduct a hearing and take such action as provided by statute with regards to appellant's license as is supported by the evidence. In this case, there was no evidence before the board or in the record which precluded it from investigating appellant and taking action against him pursuant to R.C. 4732.17(A). If appellant believed that the plea agreement provided something to the contrary, it was his obligation to raise the issue of the board's lack of jurisdiction by filing a motion to dismiss the hearing or raising the issue as part of his defense during the hearing. Appellant did neither. Appellant was represented by counsel at the hearing before the board who stipulated all of the exhibits, including the plea of guilty. In opening and closing statements, appellant's counsel framed the issue presented to be mitigation. The board's lack of jurisdiction to proceed with the hearing based on the contents of the alleged plea agreement was never raised. Appellant also failed to raise the issue in the trial court, either through a motion for judgment in his favor based on a failure to certify a complete record or a motion to admit additional evidence based on the absence of the *Page 308 plea agreement from the certified record.2 The brief submitted by appellant in the trial court again only addresses the issue of mitigation. Since there is nothing in the record to demonstrate the plea agreement was ever admitted into evidence before the board, it could not have been omitted when the record was certified to the common pleas court. Further, there is nothing in the record to show the board lacked jurisdiction to proceed with a disciplinary hearing against appellant. Appellant also asserts that the trial court erred in its decision because it misinterpreted the case of Serednesky v.Ohio Dept. of Pub. Welfare (Nov. 27, 1979), Franklin App. 78AP-826, unreported. Throughout these entire proceedings, appellant has asserted that he relied on Serednesky as justification for his billing Medicaid for interns' treatment of various patients. Appellant asserts that Serednesky allows for Medicaid reimbursement for interns who work under the care of a doctor and, since appellant supervised his interns, he felt that his billing was justified. This court finds that the trial court correctly interpretedSerednesky. In Serednesky, at 3-4, the court stated: "The issue presented by this appeal is whether the federal law authorizing state participation in the Medicaid program requires or permits a state to limit reimbursement for psychological services to only those services rendered by the psychologist, himself; and, if such limitation is permitted by federal law, whether Ohio Administrative Rule 5101:3-8-02 was adopted pursuant to the Ohio Medicaid Plan or legislative enactment. It is important to emphasize that, while the questionof the desirability either to the patient or the state ofprohibiting reimbursement for the services of psychologistinterns is an important question of public policy, this appealdoes not raise that question. The issue before us is whether the departments had the authority to adopt the rule in question." (Emphasis added.) In Serednesky, the court concluded that the term "scope of their practice" should be interpreted to include not only the care a psychologist is permitted to render, but also the manner in which it is rendered. The court then determined that interns are included in a psychologist's scope of practice for the purposes of the Medicaid law. However, the court also held that federal legislation and federal case law indicates that reasonable standards for determining the extent of medical assistance under the Medicaid program must be specifically incorporated in the state plan or otherwise sanctioned by a lawful delegation of legislative rule-making authority to the state agency. *Page 309 Pursuant to Serednesky, the state has the discretion to determine whether or not to reimburse for intern services. The state of Ohio has chosen not to reimburse providers for intern services and has indicated such in the Medicaid Provider Handbook. The trial court correctly determined that the court, in Serednesky, never reached the issue of whether or not psychologists could bill Medicaid for services provided by interns whom they employ. As such, the trial court did not err in its interpretation of the Serednesky case. Based on the foregoing, appellant's first two assignments of error are not well taken. In his third assignment of error, appellant asserts that the board's action in revoking appellant's license was contrary to law because the evidence fails to demonstrate any justification for the severe action the board took when a lesser disciplinary action was appropriate. Appellant asserts that, in its brief before the trial court, the Assistant Attorney General stated that there had been seven psychological board hearings involving felony convictions since the practice of psychology became a licensed profession in the state. This informed the trial court that there had been seven board hearings involving felony convictions, all of which had resulted in the revocation of the individual's license. Appellant asserts that this information prejudiced appellant, since there was no way that the trial court could objectively look at the other seven board hearings. R.C. 4732.17 gives the board the authority to take disciplinary action against its licensees for any one of a number of reasons. The board is specifically allowed to reprimand, suspend or revoke the license of any psychologist. The choice of an appropriate sanction rests within the discretion of the board. The board acted within its statutory authority to determine the appropriate sanction and neither the trial court nor this court can substitute its judgment for that of the board. SeeHenry's Cafe, Inc. v. Bd. of Liquor Control (1959), 170 Ohio St. 233, 10 O.O.2d 177, 163 N.E.2d 678. There is no evidence to show that the information about the seven other felony convictions had any effect on the board's reaching its decision or in the trial court's affirmance of the board's decision. It should be noted that appellant admitted he knowingly and intentionally billed Medicaid for interns' treatment of various patients and his only justification for doing so was that Serednesky permitted him to ignore the Medicaid provider agreement. Thus, appellant's own attitude in ignoring the requirements of the provider agreement supports the penalty the board imposed. Appellant's third assignment of error is not well taken. *Page 310 Appellant's three assignments of error and the board's motion to strike are overruled, and the judgment of the trial court is affirmed. Motion to strike overruledand judgment affirmed. WHITESIDE and TYACK, JJ., concur. 1 During oral argument, appellant conceded that a review of the record in the criminal case fails to disclose the plea agreement was ever accepted by the court and that it is not part of the record in that case. 2 We express no opinion as to whether a motion in the trial court to admit the plea agreement as newly discovered evidence would have been proper in this case. *Page 311

2016-07-06 06:36:37.275509+00

Ross

This case was at first presented as an appeal on questions of law and fact, but it appearing to be an appeal from a final judgment in a proceeding brought under the provisions of Section 11631, General Code, and Section 11634, General Code, the court reduces such appeal to an appeal on questions of law. Although the original action was in chancery, the ancillary *Page 277 statutory proceeding to vacate upon other than equitable grounds is not a chancery proceeding. The final decree of the trial court in the original action was vacated upon motion of the plaintiff. The ground upon which the court vacated the decree does not appear in the entry of vacation, but the court found that the "plaintiff has a valid cause of action and that said motion is well taken." In the plaintiff's motion, it is stated: "Plaintiff, Clarence Baker, by his attorneys * * * moved to vacate the judgment heretofore rendered in this cause on the ground that there was irregularity in obtaining the judgment." That is the only ground for vacation alleged in the motion. From the bill of exceptions it appears that counsel for the defendants approached one of counsel for plaintiff with a request that he endorse the final entry, finding in favor of the defendants. Counsel for plaintiff, so approached, stated: "That he was not familiar with the case and that Casper Casper were the chief counsel and would have to sign the entry as well as himself; that at the time counsel for defendants stated to Mr. Sullivan, that he would not present the entry to the court until he first presented same to Mr. Casper; that counsel for defendants endeavored to present the entry to Mr. Casper on one occasion, but, upon failing to find him in the office, proceeded to have the court approve the entry and without having first presented it to Mr. Casper. That because of this, Mr. Casper did not learn of the judgment entry until after time for filing a motion for new trial had expired, and that later when he learned about the entry, he obtained the promise of counsel for defendants that he would waive any objection to filing a motion for a new trial," which motion was filed by plaintiff, and *Page 278 later defendants filed a motion to strike such motion for new trial from the files. The effect of the conditions imposed by the counsel signing the entry was to produce the same result as if the entry had not been signed, when those conditions were violated. The rules of the Court of Common Pleas of Butler county provide: Rule IX. "All entries shall be approved and signed by the court before being filed with the clerk. All counsel shall have the opportunity to present objections thereto before such approval." Rule X. "Counsel for the party in whose favor an order, decree or judgment is rendered, shall on or before eight days thereafter, prepare the proper journal entry and submit the same to counsel for the opposite party, who shall approve or reject the same within three days after its receipt by him. Counsel to whom such entry is so submitted may if he so desires, request of the court an oral hearing on the entry. If counsel in whose favor an order, decree, or judgment is rendered fails to furnish a copy of the entry to the court, the court may put on its own entry, and if this entry is not objected to, then the entry so prepared by the court shall be final and be filed with the clerk of courts." Such "undisputed" facts show "irregularity" in obtaining the original final decree in favor of the defendants, and the court committed no error in vacating such judgment under the provisions of Section 11631, General Code, and Section 11634, General Code. The judgment of the Court of Common Pleas of Butler county is affirmed. Judgment affirmed. HILDEBRANDT, P.J., MATTHEWS and ROSS, JJ., concur in the syllabus, opinion and judgment. *Page 279

2016-07-06 06:36:37.639248+00

Nahra

I would read the words "for any other reason" in the context in which they appear in paragraph 25 of the lease to require good faith and commercial reasonableness. Restrictions against the assignment of leases are restraints against the alienation of property interests. Fairbanks v. PowerOil Co. (1945), 81 Ohio App. 116, 122 [36 O.O. 418]. As such, they are strictly construed against the lessor. Funk v. Funk (1981), 102 Idaho 521, 524, 633 P.2d 586; see Fairbanks, supra, at 122. This basic principle is exemplified by the trend of recent cases which have held that a lessor must act reasonably in withholding consent under a lease provision requiring the lessor's consent to the lessee's assignment. Accord L HInvestments v. Belvey Corp. (W.D.N.C. 1978), 444 F. Supp. 1321;Homa-Goff Interiors, Inc. v. Cowden (Ala. 1977), 350 So.2d 1035;Cohen v. Ratinoff (1983), 147 Cal.App.3d 321,195 Cal.Rptr. 84; Fernandez v. Vazquez (Fla.App. 1981), 397 So.2d 1171; Funk v. Funk, supra; Logan v. 3750 N. Lake Shore Drive, Inc. (1974),17 Ill. App.3d 584, 308 N.E.2d 278; Boss Barbara, Inc. v.Newbill (1982), 97 N.M. 239, 638 P.2d 1084. The underlying rationale for requiring a lessor to act reasonably "is that a lease, being a contract, should be governed by general contract principles of good faith and commercial reasonableness." Boss Barbara, supra, at 241; Fernandez, supra, at 1173-1174. The Second District Court of Appeals of California, quoting from McWilliams v. Holton (1967), 248 Cal.App.2d 447,451, 56 Cal.Rptr. 574, has stated that: "`In every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract; which means that in every contract there exists an implied covenant of good faith and fair dealing' (Universal SalesCorp. v. California etc. Mfg. Co., 20 Cal.2d 751, 771 [128 P.2d 665].) `This covenant not only imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, but also the duty to do everything that the contract presupposes that he will do to accomplish its purpose. [Citations.]' (Harm v.Frasher, 181 Cal.App.2d 405, 417 [5 Cal.Rptr. 367].)" Cohen v.Ratinoff, supra, at 329, 195 Cal.Rptr. at 88-89. In effect, if the lessor is permitted to arbitrarily refuse consent to an assignment, the right of the lessee to assign would be virtually nullified. Further, the jurisdictions which would have rejected the old traditional rule have emphasized that the days of caveat emptor no longer exist even as to commercial leases. See, e.g.,Schweiso v. Williams (1984), 150 Cal.App.3d 883,198 Cal.Rptr. 238, 240. The need for permitting the reasonable alienation of commercial building space has become paramount in our increasingly urban society. Id.; Homa-Goff Interiors, supra, at 1037. For all of the above reasons, I would imply a standard of reasonableness to *Page 77 the words "for any other reason" and hold that appellee-lessor may refuse consent only where it has a good faith reasonable objection to the lessee's assignment, i.e., one related to the assignment itself and not, as here, to the wish of the lessor to lease the property to another. Examples of good faith reasonable objections would be the inability to fulfill the terms of the lease, financial irresponsibility or instability, the unsuitability of the premises for the intended use, or the intended unlawful or undesirable use of the premises. Cohen,supra, at 330, 195 Cal.Rptr. at 89. However, denying consent solely on the basis of personal taste, convenience, sensibility, or to charge a higher rent will not meet the tests of good faith and commercial reasonableness. Fernandez, supra, at 1174. Whim or caprice constitute arbitrary reasons and will not be upheld.Funk, supra, at 524. In other words, consent is not to be withheld unless the prospective assignee is unacceptable, using the same standards that were applied in accepting the original tenant. Boss Barbara, supra, at 241. This case differs from Shaker Bldg. Co. v. Fed. Lime StoneCo. (March 2, 1972), Cuyahoga App. No. 31451, unreported, in one critical respect. In Shaker Bldg., the lease contained a specific prohibition against assignments as follows: "The Lessee shall not, without the prior written consent of the Lessor, (a) assign or convey this lease or any interest under it, (b) allow any transfer here of or any lien upon the Lessee's interest by operation of law, (c) sublet the premises or any part thereof, or (d) permit the use or occupancy of the premises or any part thereof by anyone other than the Lessee." No such language or anything similar appears in the lease before us. In fact, paragraph 25 of the lease herein gives rights to the tenant rather than to the landlord. Had the parties intended to give the landlord an arbitrary, unfettered right to refuse consent to an assignment of the lease, they could have expressed it clearly. I would not read the language used in a way that works a forfeiture. I would reverse and enter judgment for appellants.

2016-07-06 06:36:37.553293+00

OPINION Plaintiff-Appellant, Steven Purdon, appeals a judgment of the Brown County Court of Common Pleas adopting an administrative hearing decision which increased his monthly child support obligation. We affirm the decision of the trial court. Defendant-appellee, Cynthia Purdon ("Mother"), and appellant were divorced in 1984. Mother was designated the residential parent of the parties' minor child and appellant was ordered to pay child support of $20 per week. On May 14, 1997, the Brown County Child Support Enforcement Agency initiated an administrative child support modification proceeding. An administrative hearing was held on June 17, 1997. At the time of the hearing, appellant had not yet completed his 1997 tax return. However, appellant testified that he is self-employed in the construction industry, and that his business, Steven Purdon Construction, had a gross income of $235,106 in 1996. Appellant reported a personal gross income of $32,928 for the same year. However, after deducting business expenses, appellant's income was reduced to $7,369. Appellant further testified that he alone sets all bid amounts for his company, and that the ultimate authority to determine profit rests with himself. The hearing officer issued a decision on June 20, 1997. Based on the discrepancy between appellant's low earnings compared with the large gross income of appellant's business, the hearing officer found that appellant's guideline support obligation as indicated by the child support worksheet was unjust, inappropriate, and not in the best interest of the child. The hearing officer concluded that it was appropriate to include an upward deviation of $3,725.61 on line twenty-six of the child support worksheet. Appellant appealed this decision to the trial court. At an August 10, 1999 hearing before the trial court, Mother's counsel requested that appellant provide verification of his claimed business expenses for 1996. Appellant was unable to produce the records at the hearing. However, counsel for both parties agreed that the hearing would go forward that day; thereafter, appellant was to promptly deliver the records to Mother's counsel. After five months had passed, the trial court directed appellant to provide his business expense records to Mother's counsel no later than the week of January 20, 1999. Appellant failed to provide complete records to either the trial court or Mother's counsel. By judgment entry filed February 9, 1999, the trial court adopted the administrative hearing decision as its final order. The trial court found that appellant had failed to adequately support his claim for necessary business expenses and that an upward deviation in appellant's guideline child support obligation was in the best interest of the child. Appellant appeals, raising the following assignment of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN DENYING HIS APPEAL OF THE ADMINISTRATIVE HEARING OFFICER'S MODIFICATION OF HIS CHILD SUPPORT OBLIGATION. In his sole assignment of error, appellant first argues that the trial court abused its discretion in deviating from the child support guidelines without complying with R.C. 3113.21.5(B)(1)(a) and (b). A trial court is vested with broad discretion in calculating child support awards; its determination shall not be reversed absent an abuse of discretion. Dunbar v. Dunbar (1994), 68 Ohio St.3d 369,371. More than a mistake 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. Under R.C. 3113.21.5(B)(1), there is a rebuttable presumption that the support obligation derived from the child support schedule and worksheet is correct. The trial court is required to order child support payments in accordance with the child support worksheet unless that amount would be "unjust or inappropriate and would not be in the best interest of the child." R.C. 3113.21.5(B)(1)(a). If the trial court concludes that the guideline support amount is not in the child's best interest, it is required to make specific findings of fact to support that determination. R.C. 3113.21.5(B)(1)(b); Marker v. Grimm(1992),65 Ohio St.3d 139, 142. When reviewing the deviation contained in the administrative hearing decision, the trial court stated that "[appellant's] claimed cost of goods sold and the expenses have not been sufficiently established as being reasonable and necessary." Considering the fact that "many sub-contractors * * * were being paid more than [appellant] himself generated," the trial court concluded that "the annual gross income figure of $32,928 * * * is reasonable and is supported by the testimony." The administrative hearing decision adopted by the trial court also contains findings of fact regarding appellant's income and expenses. The decision concludes with the specific finding that "to base [appellant's] 1996 income figure on $7,359.00 * * * when [appellant] had sales of $235,106.00 in 1996 and had the sole and absolute power to determine the profit derived from his clients would be unjust and not in the best interests of the child herein." Upon review of the record in this case, we find sufficient evidence to support the trial court's child support order and conclude that the trial court correctly followed the statutory scheme for a deviation from the guideline support amount. Second, appellant contends that the trial court erred by imputing income to him without adhering to the requirements of R.C. 3113.21.5(A)(5). Specifically, appellant states that the trial court is required to make a finding of voluntary underemployment before imputing potential income to an individual for the purpose of calculating child support. The child support worksheet attached to the trial court's decision attributes a gross income of $32,298 to appellant. This is the actual gross income that appellant reported on his 1996 federal tax return. Upon review of the trial court's decision, it is clear that the additional child support included on line twenty-six of the child support worksheet represents an upward deviation attributable to the claimed business expenses which appellant failed to support with evidence. As the trial court did not impute income to appellant, there is no error in the court's failure to make a finding of voluntary underemployment. Therefore, we find that the trial court did not abuse its discretion in calculating appellant's child support obligation. Appellant's sole assignment of error is overruled. Judgment affirmed. YOUNG, P.J., and VALEN, J., concur.

2016-07-06 06:36:37.579017+00

DECISION AND JUDGMENT ENTRY {¶ 1} Kimberly Jo Zearley appeals the trial court's entry of summary judgment to Mortgage Electronic Registration Systems, Inc. ("MERS"). She contends that: (1) the court erred by granting the summary judgment motion four days prior to the non-oral hearing when she had not yet responded to the motion, and (2) the court erred by entering summary judgment because there is a factual dispute as to when the mortgage and deeds were executed and as to whether she and her husband had an interest in the property at the time the mortgage was executed. MERS contends that the trial court properly granted the summary judgment because Mrs. Zearley failed to file a response to the motion within seven days of service as required by Loc.R. 8(C). It also contends that the court properly entered summary judgment because the evidence proved that MERS held a valid mortgage, which had not been paid, on the property. {¶ 2} We conclude that Loc.R. 8(C) is invalid and unenforceable to the extent it conflicts with Civ.R. 56, which allows parties at least fourteen days to respond to a motion for summary judgment. Since Loc.R. 8(C) is invalid, Civ.R. 56, which allows a party opposing a motion for summary judgment to file a response prior to the hearing, governs. Therefore, the court erred in ruling on the motion before Mrs. Zearley's time to respond had elapsed. We reverse and remand this matter to the trial court. {¶ 3} MERS filed a complaint in foreclosure and for money judgment against Robert L. Zearley, Jr. and Kimberly Jo Zearley alleging that they failed to make the mortgage payments on their home. After the Zearleys failed to respond to the complaint, the court granted a default judgment in MERS's favor and issued a decree in foreclosure. Mrs. Zearley filed a motion to vacate the judgment, which was resolved through an agreed order vacating the judgment as to Mrs. Zearley only.1 {¶ 4} On May 13, 2004, MERS filed a motion for summary judgment seeking a judgment in its favor against Mrs. Zearley and a decree in foreclosure. Four days later, the court's bailiff issued a court notice informing the parties "that a non oralsummary judgement [sic] has been scheduled for June 11, 2004, at 9:00 a.m. * * *. Counsel and parties do not need toappear." (Emphasis in original.) On June 7, 2004, three days before the scheduled hearing, the trial court issued its entry granting summary judgment and a decree in foreclosure. {¶ 5} Mrs. Zearley filed a timely notice of appeal, assigning the following errors: "A. The trial court erred when it granted Plaintiff's motion for summary judgment prior to the scheduled hearing date. B. The trial court denied the Appellant due process when it granted Plaintiff's motion for summary judgment prior to the scheduled hearing date in violation of her Federal and State Constitution [sic] rights. C. The trial court erred when it granted Plaintiff's motion for summary judgment." {¶ 6} In her first assignment of error, Mrs. Zearley asserts that the trial court erred in granting the motion for summary judgment prior to the scheduled hearing date. She contends that she believed, based on the court's statements to her counsel during a hearing in another case, that she could file her memorandum in opposition to MERS's summary judgment motion up to the date of the non-oral hearing. Therefore, the court should not have ruled on the motion before the hearing date when she had not yet responded. {¶ 7} MERS contends that Hocking County Loc.R. 8(C) governs. Loc.R. 8(C) provides that: "Each party opposing the motion shall serve and file within seven (7) days [after the motion is served and filed] a brief written statement of the reasons in opposition to the motion and a list of citations of the authorities on which he relies. If the motion requires the consideration of facts not appearing of record, he shall also serve and file copies of all affidavits, depositions, photographs or documentary evidence which he desires to submit in opposition to the motion." MERS contends that, since Mrs. Zearley failed to respond to the motion for summary judgment within seven days, i.e. by May 28, 2004, the court properly ruled on the motion on June 7, 2004, even though the date of the scheduled non-oral hearing had not yet arrived. {¶ 8} Interpretation of court rules presents us with a legal question which we independently analyze without deference to the trial court's decision. Cowen v. Lucas (June 30, 1997), Scioto App. No. 96CA2456, citing Mosley v. Stevenson (Apr. 30, 1993), Scioto App. No. 92CA2079. Courts in Ohio are permitted to enact local rules as long as those rules are not inconsistent with any rules governing practice and procedure promulgated by the Ohio Supreme Court. Civ.R. 83; State ex rel. Henneke v. Davis (1986), 25 Ohio St.3d 23, 494 N.E.2d 1133. Any local rule governing motion practice is therefore enforceable only to the extent that it is consistent with the Civil Rules. Vance v.Roedersheimer, 64 Ohio St.3d 552, 554, 1992-Ohio-24,597 N.E.2d 153, 155. {¶ 9} Civ.R. 56 requires that a party file a motion for summary judgment at least fourteen (14) days before the scheduled hearing. If no hearing date exists when the motion is filed, the court must establish a hearing date and give proper notice. The party opposing the summary judgment motion may serve and file opposing evidence prior to the day of the hearing. Civ.R. 56(C). Ordinarily, the parties appear at the hearing and make oral arguments in support of their positions and answer the court's questions. O'Brien v. Citicorp Mortgage, Inc. (Feb. 24, 1994), Franklin App. No. 93AP-1074. However, in an attempt toward more expeditious administration of justice, Civ.R. 56 has been construed as permitting non-oral hearings, meaning that they are in written form rather than oral. Id. {¶ 10} In Hooten v. Safe Auto Ins. Co., 100 Ohio St.3d 8,2003-Ohio-4829, 795 N.E.2d 648, syallabus, the Ohio Supreme Court held that a trial court need not notify the parties of the date of consideration of a summary judgment motion or the deadlines for submitting briefs and Civ.R. 56 materials, i.e. the date of the non-oral hearing, if a local court rule provides sufficient notice of the hearing date or submission deadlines. {¶ 11} Here, the trial court set a non-oral hearing date approximately thirty days after the summary judgment motion was filed, but the local rules allowed Mrs. Zealey only seven days to respond to the motion. Therefore, we must determine whether Mrs. Zearley was required to respond to the summary judgment motion within seven days of its filing, as required by Loc.R. 8(C), or whether Mrs. Zearley could respond prior to the date of the scheduled hearing, as provided in Civ.R. 56(C). {¶ 12} As we already noted, local rules are unenforceable if they conflict with the Civil Rules of Procedure. By providing that a summary judgment motion must be served at least fourteen days before the time fixed for the hearing and allowing the party opposing the motion to respond up until the hearing date, the Supreme Court has set a minimum time limit for responding to summary judgment motions by which courts must abide. Higgins v.McDonnell (1995), 105 Ohio App.3d 199, 202, 663 N.E.2d 970, 972. Although courts may allow litigants additional time in which to respond to a summary judgment motion, they may not shorten the time set by the Supreme Court without conflicting with Civ.R. 56. Id. (holding that allowing an adverse party thirty days in which to file a brief in opposition to a summary judgment motion is permissible, although a local rule shortening the time period in which to respond would be invalid). Therefore, we conclude that Loc.R. 8(C) is invalid and unenforceable to the extent it applies to memorandum and evidence in opposition to motions for summary judgment. See Fairchild v. Fairchild (Nov. 8, 1994), Franklin App. No. 94APE04-597 (holding that a local rule of court which is inconsistent with the Ohio Rules of Civil Procedure is invalid and unenforceable). {¶ 13} Having determined that Loc.R. 8(C) is invalid, we conclude that Mrs. Zearley had until "prior to the day of the hearing" to file her memorandum and evidence in opposition to the motion for summary judgment. The court erred in ruling on the motion four days before the scheduled non-oral hearing when Mrs. Zearley had not yet responded. Mrs. Zearley's first assignment of error is sustained.2 {¶ 14} Having sustained Mrs. Zearley's first assignment of error, we conclude that her second and third assignments of error are moot. We reverse and remand this matter to the trial court for further action consistent with this opinion, i.e. to allow Mrs. Zearley to respond to MERS's summary judgment motion. Judgment reversed and cause remanded. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED AND 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 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. Kline, P.J. Abele, J.: Concur in Judgment and Opinion. 1 Apparently, the parties are divorcing and Mr. Zearley has moved outof-state. 2 We place no weight on counsel's contention that he relied on the trial court's statements in another case in calculating when Mrs. Zearley's response to the summary judgment motion was due. It is counsel's responsibility to be familiar with the local rules of the courts in which counsel practices.

2016-07-06 06:36:37.663963+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal by the State of Ohio from an Adams County judgment entry order releasing to the defendant, Ernest Crawford, money seized in the amount of $570.00. Both counsel agree that the judgment entry incorrectly stated matters therein. Because the judgment entry did not reflect the truth of the matter, we sustain the State's first assignment of error. {¶ 2} In May 2004, defendant was subjected to a traffic stop. Defendant was found to be in possession of beer or intoxicating liquor and was arrested for underage consumption. Also, found in the car were items indicating an illegal substance and drug paraphernalia. A search incident to arrest was conducted and at that time $570.00 was seized. {¶ 3} On June 30, 2004, defendant filed a motion for release of the $570.00 and submitted a proposed entry which stated that both counsel had agreed to the release. Counsel for the defendant argued that the money was not being used as evidence and should be released. The following day, without a hearing on the matter, the court approved the judgment2 entry which read: "By agreement of the State of Ohio and Defendant through counsel and with the approval of this Court IT IS HEREBY ORDERED THAT the Adams County Sheriff's Office or other authorized person release to the Defendant his money in the amount of $570.00." {¶ 4} On July, 7, 2004, the State filed a motion to vacate the release order arguing that since the money was lawfully seized and an investigation was pending, they were permitted to keep the evidence until the time it was no longer needed.3 The State contended that as a result of an impending investigation, the Sheriff's office had intended to send the money to BCI I for drug residue testing.4 {¶ 5} The State appeals assigning the following assignments of error: {¶ 6} I. "The trial court erred by ordering the release of appellee's $570.00 when the state did not agree to the release." {¶ 7} II. "The trial court erred by ordering the release of appellee's $570.00 when the trial court did not have subject matter jurisdiction." {¶ 8} The State contends the court erred when it ordered the release of the $570.00 under the mistaken belief that the State had agreed to the motion, when in fact, it had not. Counsel for Appellee concedes that in his brief that the State had not approved the proposed entry. The court subsequently signed the proposed entry without a hearing presumably because there appeared to be an agreement on this issue. {¶ 9} The record in the case reveals that the entry was incorrect due to its statement regarding an agreement between the State and counsel for the defendant. The court speaks through its journal entry. Worcester v.Donnellon (1990), 49 Ohio St.3d 117, 118, 551 N.E.2d 183. Accordingly, it is essential that the court's journal reflect the truth. See Hollisterv. Judges of Dist. Court (1857), 8 Ohio St. 201, 70 Am.Dec. 100. Moreover, in those circumstances where it can be shown that the journal does not reflect the truth, that court must be prompt in requiring their correction. Worcester, 49 Ohio St.3d at 119, citing State ex rel. Warnerv. Baer (1921), 103 Ohio St. 585, 588, 134 N.E. 786. {¶ 10} Because the judgment entry approved by the court does not accurately reflect the truth, this court must sustain the State's first assignment of error. In light of our disposition of the State's first assignment of error, the second assignment of error is now moot. Accordingly, we must reverse the trial court's judgment and remand this cause for further proceedings consistent with this opinion. Judgment Reversed 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 Adams County 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. Exceptions. Abele, P.J.: Concurs in Judgment Only. Kline, J.: Concurs in Judgment and Opinion. 2 After reviewing the record, we conclude the court was misinformed when it was presented with the purported entry indicating an agreement between counsel had been reached when none was approved by the State. 3 R.C. 2945.67(A) allows the State to appeal orders granting a motion for the return of seized property. 4 The trial court did not rule on the State's motion to vacate.

2016-07-06 06:36:37.701511+00

DECISION AND JUDGMENT ENTRY This is an appeal from a November 28, 2000 judgment of the Lucas County Court of Common Pleas in which the court accepted jury verdicts finding Derek Marshall guilty of burglary, felonious assault and aggravated burglary and from a December 4, 2000 judgment of the same court ordering Marshall to serve prison terms for his crimes. The appellate counsel appointed to represent Marshall on appeal has followed the procedures outlined in Anders v. California (1967), 386 U.S. 738 to request permission to withdraw from representation. Because our own review of the record reveals at least two arguable issues for appeal, we grant current appointed counsel's request to withdraw and appoint new counsel to brief the issues we identify and any other issues new counsel may discern. In Anders v. California, id., the United States Supreme Court stated: "[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Id. at 744. Marshall's counsel has complied with the first three requirements outlined by the United States Supreme Court in Anders. Marshall has not filed a supplemental brief to raise any issues other than those mentioned by his appointed appellate counsel. Accordingly, this court must now proceed to the fourth step and conduct a full examination of the proceedings to determine whether this case is wholly frivolous. Marshall's counsel has not set forth any potential assignments of error. Instead, he has presented an argument in which he identifies two issues which he says are potential issues for appeal but which he has concluded are not meritorious. The first potential issue he addresses is the Sixth Amendment right of an accused to confront witnesses. In this case, Marshall was not in the courtroom during his trial. Instead, he was seated in an anteroom where he could see the witnesses who appeared against him. Marshall's appointed counsel concludes that this circumstance was not prejudicial because Marshall "was able to see those witnesses against him and it was his own conduct which caused him to be kept there, as evidenced by the bench discussion held outside the hearing to [sic] the jury, (Jury Trial Transcript pgs. 90-91) and the Court's comments. (Sentencing Transcript pgs. 34). Further, Defendant-Appellant did not object to being held in the Court's ante room." The second issue identified by appointed appellate counsel is the trial court's denial of Marshall's request for new trial counsel. Marshall asked the trial court to appoint him new trial counsel at a hearing held on November 16, 2000. He informed the judge that he did not believe his trial counsel believed in his innocence and that she would therefore not provide him effective representation at trial. The trial judge denied Marshall's request for a new attorney. Marshall's appointed appellate counsel also dismisses this issue as a viable argument on appeal because he contends that trial counsel has no obligation to believe in a client's innocence. He says an examination of the record shows that Marshall's trial counsel did provide adequate representation. Our complete review of the record reveals the following pertinent information. At a hearing prior to his trial Marshall addressed the court and said: "Excuse me, Judge. I'd like to say something. Since I feel that this lawyer is not in the best of my interest and I feel that justice cannot be served for me and the best of my interest, I would like to have a new attorney." The court then asked Marshall if he could afford an attorney, and Marshall answered no. The following exchanges then took place: "THE COURT: Ms. Jennings, do you think the relationship between you and Mr. Marshall has been broken down to the point you could not represent him in this case? "MS. JENNINGS: I don't believe so, Your Honor. I explained to him yesterday when I talked to him at the jail when I was explaining the plea agreement to him, I told him as his attorney I had a duty to convey any offers that were made by the prosecutor's office to him, that it was his choice to make, that he had a right to a trial, and if he wanted to go to trial we would proceed to trial. "THE COURT: Mr. Marshall, I don't change — "MR. MARSHALL: I asked her — I told her, I said if you feel that you cannot represent me to the best of your ability, really fight for me, if you feel that for the people who accuse me of something that you believe what they say and not believe what I say, not really fight for me, I say you cannot defend me. I said I rather for — to have another attorney. Ever since I been speaking to this attorney, this attorney be talking about, you know, things on they behalf, coming at me questioning me like I'm the guilty party, but I never had nobody come to me and talk to me like, you know, like they believe me. You see what I'm saying? Like they have more emotions and feeling for the other person, not for me. You see what I'm saying? That's why I'm asking for another attorney who will believe and who will fight. I had one who believed in me when I first — the sympathy, they fought for me and I was acquitted, even when things were severe. You see what I'm saying? "THE COURT: Mr. Marshall, I don't know any of the facts in this case. All I know is what's in front of me. These are pretty serious charges, aggravated burglary, felonious assault and burglary. I've done many, many cases with Ms. Jennings. She does a very fine job in Court. Sometimes what an attorney advises you, it may be inconsistent with what you think is in your best interest. She indicated what the plea offer was, that you have declined, which is fine, and that's why we have juries and that's why we have attorneys, and I'm sure she'll attempt to contact these witnesses that you gave her the names of, and we'll have a trial in a like — "MR. MARSHALL: I'd like to have a new attorney. "MS. JENNINGS: The Court knows that I also have a duty to explain the evidence to my client that is presented to me through the prosecutor's office in discovery, and perhaps Mr. Marshall was misinterpreting my discussion of that evidence as my being for the victim in this case. I've explained to him that it's his right to have a trial and I will do everything and give him the best defense that I know how to do. "THE COURT: The oral request for a removal of counsel will be denied. The matter will be continued — Mr. Marshall, if you can afford — "MR. MARSHALL: Ain't no sense in me coming to Court. I ask for justice. I ask — "THE COURT: Hey, Mr. Marshall, I would indicate to you — "MR. MARSHALL: This is my life. I don't hear nothing. This is my life. "THE COURT: Cuff him and take him out of the room. You'll be in this courtroom in the back of the — "MR. MARSHALL: Ten years, man. I going back to do no more time like that. "THE COURT: Mr. Marshall, all I can assure you, you will not be in the courtroom during this trial. Thank you very much for your comments. "WHEREUPON, THE SHERIFF'S DEPUTIES ESCORTED MR. MARSHALL OUT OF THE COURTROOM AND THE PROCEEDINGS CONCLUDED." The record shows that the next proceeding was the trial. Initially, the trial court granted a motion to suppress filed by Marshall's trial attorney after the state told the court it would not contest the motion. Next, the trial court began conducting voir dire. As part of its preliminary remarks to the potential jurors, the trial court said: "THE COURT: The defendant in this case is Mr. Derek Marshall. He is not physically in the courtroom. He is in a little anteroom in the back of the courtroom on the other side of the one-way mirror where he can see and hear everything that's taking place in the courtroom. Nothing is to be inferred by you from the fact that Mr. Marshall is not physically in the courtroom. It could be a number of different reasons for that. We are going to proceed with the trial. There may be a couple of times where we may have to turn the lights on in that room so that a witness may be able to visually see the defendant, but he will not be in a courtroom during the trial itself." The court and counsel then asked questions of prospective jurors. Neither the prosecutor nor Marshall's attorney presented any challenge to a potential juror for cause. When asked for peremptory challenges, the state passed, and Marshall's trial counsel asked for a moment to ask her client. At a bench discussion held outside the hearing of the jury, she said: "I'd like to indicate for the record that I went into the room to ask Derek Marshall whether or not he had any objections to any jurors and if there was anyone that he wanted me to excuse, and he did not answer my question, and so I took that to mean he was satisfied with the jurors as they were." She did not present any peremptory challenges. Counsel presented opening statements and the state called two witnesses. The first witness was the victim who testified that she had been attacked in her own apartment, followed to a neighbor's house and beaten there also. At the close of her testimony, the victim was asked if she could identify the person who beat her. Marshall's attorney asked to approach the bench and the following discussion was held: "MS. JENNINGS: The last time I saw Derek he was handcuffed in the chair. I would ask that if at all possible that not happened [sic] during the identification. "THE COURT: Is he just sitting in the chair? "OFFICER ZABOROWSKI: He's sitting with his hands behind his back, with his hands behind. I'll take a chance, because he's going to go off. "THE COURT: I went back to the room, and they were having an awful time getting him in the chair. It was like three different Court security officers. He's caused so many problems this morning, I'm not going to take a chance. I think through the window they will only be able to see his face. They won't be able to see the handcuffs. "OFFICER ZABOROWSKI: It will appear his hands are behind his back, though. "THE COURT: Turn the lights on. "OFFICER ZABOROWSKI: We'll do that." The witness was then allowed to walk to the back of the courtroom and to identify Marshall as her assailant after she looked at him through the window. The second witness called by the state was the woman who let the victim into her home. The state then rested its case. Marshall's trial counsel made a motion for acquittal pursuant to Crim.R. 29(A) which the trial court denied. Marshall's trial counsel said she had no witnesses to call and that the defense rested. Marshall's trial counsel renewed her Crim.R. 29(A) motion, which the trial court again denied. Counsel then made closing arguments. The trial court gave the jury instructions, and the jury retired for deliberations. After the jury retired, Marshall's trial counsel made the following statement on the record: "I know this is out of sequence. I want to state for the record. When we took one of the breaks, I went back in the anteroom and talked to Derek Marshall and asked him if there was anything else he wanted me to present, and he did not answer me. I also discussed with him or I asked him if he wanted to testify. He did not answer me. I told him that I thought that he should not testify. He didn't respond, and that was the end of the conversation." The jury ended its deliberations and returned guilty verdicts to each of the three charges against Marshall. The trial court accepted the verdicts, ordered them entered on the record and continued the case for sentencing. At the sentencing hearing, the trial judge made the following statements: "I would further indicate for the record that on two prior occasions the Court has had some problems with Mr. Marshall as far as his conduct in the courtroom, including the fact that on Tuesday, which is the first time in ten years that I've been a Judge that I had to put someone in the obstreperous defendant's room for purposes of the trial. I don't take that lightly, because I think it's a constitutional right of the defendant to be present for the purpose of the trial and to face the jurors. "In this particular case, because of Mr. Marshall's conduct, it required the Court to exclude him physically from the courtroom even though he was able to see and hear the proceedings that were going on. "I would also indicate for the record that after I removed Mr. Marshall from the courtroom, that I made an attempt to go to the obstreperous defendant's room to advise Mr. Marshall that I would let him back into the courtroom if he got himself under control. He was kicking and fighting so hard with the Court security officers at the time I felt my comments would fall on deaf ears." The trial judge then heard argument from Marshall's trial attorney regarding sentencing. When asked if he would like to make any remarks, Marshall replied in part: "Yes. I had asked you for an attorney, one who would be for me, one who would have a case for me, prepare it. You denied that, and I feel that you was unfair towards me, so therefore, I feel that it wasn't no justice could be served. That's why I didn't participate in it. And I would ask a moment before you had your officers of the Court, you know, come get me, I was going to ask you to remove yourself so I could have a Judge who will grant me — make sure I had a fair hearing, make sure justice was carried out for me." The trial judge then addressed Marshall. First, he said that the evidence from the trial as well as Marshall's behavior showed Marshall had a hard time controlling his temper. Next, he said he gave Marshall every opportunity to remain in the courtroom so he could assist his attorney. He said: "I know that you were displeased with the fact that I wouldn't remove Ms. Jennings as your attorney, but I did not hear any indication that she was unprepared or unwilling to proceed in the representation of you in the course of the trial. * * *" "* * * "THE COURT: And you probably didn't help yourself out any by not cooperating. We had clothes available for you so the jurors would see you other than in jail clothes. I appointed an attorney for you who I've had a lot of cases with and she does a very good job on those cases. I know you were displeased with her conduct, but as a Judge I was not displeased with her representation of you." The trial judge then ordered Marshall to serve six years for his aggravated burglary conviction, four years for his felonious assault conviction, (the sentences to run concurrently) and one year for his burglary conviction (to be served consecutively with the first two sentences). Based upon the above information and our own review of applicable law, we find there is an arguable issue regarding whether the trial court abused its discretion in this case when it removed Marshall from the courtroom for his trial prior to trial without first permitting Marshall to be present at trial with a warning that if he engaged in disruptive behavior, he would be removed from the courtroom. See, e.g., State v.Chambers (July 13, 2000), Franklin App. No. 99AP-1308, unreported; Statev. Lane (Mar. 19, 1998), Belmont App. No. 94 B 34, unreported; State v.Smith (Dec. 23, 1997), Franklin App. No. 97APA05-660, unreported; andState v. Green (Nov. 19, 1992), Cuyahoga App. No. 61432, unreported. Cf. State v. Burrage (Jan. 26, 1995), Cuyahoga App. Nos. 66520 and 66521, unreported. See, also, Sixth Amendment to the United States Constitution; Article I, Section 10, Ohio Constitution; Crim.R. 43. We further find that there is an arguable issue for appeal regarding whether there was such a complete breakdown of communication between Marshall and his appointed counsel that the trial court erred by not granting Marshall's request for new counsel. See, e.g., State v. Murphy (2001), 91 Ohio St.3d 516, 523-524; State v. Pruitt (1984),18 Ohio App.3d 50; State v. Harrison (Jan. 17, 2001), Summit App. No. 20080, unreported; State v. Cox (Oct. 18, 1999), Clermont App. No. CA99-02-016, unreported; State v. Smith (Dec. 23, 1997), Franklin App. No. 97APA05-660, unreported; State v. Davis (June 4, 1997), Ross App. NO 96CA2181, unreported; and State v. Burrage (Jan. 26, 1995), Cuyahoga App. Nos. 66520 and 66521, unreported. Accordingly, we find that this case is not wholly frivolous. Since an Anders brief is not a substitute for an appellate brief argued on the merits, McCoy v. Court of Appeals of Wisconsin, District 1 (1988), 486 U.S. 429, 439, and since we have found that arguable issues do exist for appeal, we must proceed to the next step and "appoint counsel to pursue the appeal and direct that counsel to prepare an advocates's brief * * *" before we can proceed to decide the merits.Id. at 444, see, also, Penson v. Ohio (1988), 488 U.S. 75, 85. Accordingly, we grant the motion to withdraw filed by Ernest E. Bollinger and appoint Jane Randall, 608 Madison Avenue, Suite 1400, Toledo, Ohio, 43604, to prepare an appellate brief for Marshall, discussing the arguable issues already identified by this court in this decision and any further arguable issues which may be found in the record. Marshall's brief is to be filed within forty-five days from the date of this decision. The state's reply brief is to be filed within twenty days after service of Marshall's brief. PETER M. HANDWORK, J. MELVIN L. RESNICK, J. and Mark L. Pietrykowski, P.J., CONCUR.

2016-07-06 06:36:37.837532+00

JOURNAL ENTRY AND OPINION Appellant, M.B., appeals from the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, committing her minor twin children to the permanent custody of appellee, Cuyahoga County Department of Children and Family Services (CCDCFS). For the reasons that follow, we affirm. On July 27, 2000, shortly after their birth, the twins were removed from appellant's custody by CCDCFS. On July 28, 2000, CCDCFS filed a complaint alleging the children were dependent and requesting a disposition of permanent custody to CCDCFS. On July 31, 2000, the children were committed to the pre-dispositional temporary custody of CCDCFS. On December 20, 2000, appellant admitted to an amended complaint and the children were adjudicated dependent. On June 19, 2001, the case proceeded to trial regarding disposition. Arlene Zemba, a CCDCFS social worker, testified at trial that CCDCFS received a referral when the children were born regarding appellant's inability to provide appropriate care for them. Upon investigation, CCDCFS learned that appellant had two older children who had previously been removed from her care and committed to the permanent custody of CCDCFS. The oldest, J.B., was committed to the permanent custody of CCDCFS in November, 1994, and the second child, T.D., was committed to the permanent custody of CCDCFS in October 1995. Based upon appellant's history, the children were removed from appellant's custody five days after their births and placed in the custody of CCDCFS. Zemba testified further that CCDCFS developed a case plan for appellant to enable the children to be returned to her custody. Appellant's case plan objectives included learning proper parenting skills, obtaining and maintaining stable housing, obtaining a psychological evaluation and addressing her emotional and mental health issues through individual counseling services. Zemba testified that to facilitate completion of appellant's case plan objectives, she referred appellant to the Beechbrook Parent Education Program. According to Zemba, appellant took six months to complete the four-month program because her attendance was inconsistent. Terry Davis, supervisor of the Parent Education Program, testified that although appellant attended the number of sessions required to complete the program, her end-of-course rating in most categories was "fair," "needed work" or "poor" and, therefore, appellant did not successfully complete the program. During appellant's end-of-course interview, Sonia Wilson, appellant's teacher at Beechbrook, discussed the problems with appellant and suggested that she participate in several other parenting programs. Zemba testified that she, too, told appellant that she should enroll in further parenting classes. Appellant told Zemba that she did not care to attend additional classes, however, and never enrolled in any other classes. Zemba testified that the second objective of appellant's case plan — stable housing — was included in the plan because appellant was living in an efficiency apartment with two other people when the children were removed from her custody. In addition, appellant had a history of failing to maintain stable housing. Her failure to do so, in fact, was one of the factors that led to the termination of her parental rights regarding her older children. Zemba testified that to assist appellant in meeting this objective, she referred her to the May Dugan Social Services Center. Zemba testified that appellant met with a representative from May Dugan only one time, however, and did not follow up on any of its referrals. Zemba testified that she also referred appellant to May Dugan to obtain individual counseling to address her emotional and mental health issues. Zemba testified that appellant never utilized the counseling services that May Dugan offered, however, and at the time of the permanent custody hearing, was not receiving any individualized counseling services. Zemba testified that in the eleven months following the removal of the children from her care, appellant had lived in at least five different places. When the children were removed from her custody, appellant lived in a one-bedroom apartment with two other adults. She lived there for approximately one and a-half months and then moved to a motel. After a short stay in the motel, she returned to the one-bedroom apartment for a short period of time, then moved in with her boyfriend's mother for approximately one and a-half months and, finally, moved to a two-bedroom apartment. Zemba testified that appellant did not keep her apprised of where she was living and that she did not know where appellant was living at the time of the custody hearing. According to Zemba, appellant had not met her case plan objective of obtaining and maintaining stable housing. Zemba testified further that she made arrangements for appellant to visit her children while they were in the custody of CCDCFS. According to Zemba, the visits were to occur at the Westside Community House on a bi-weekly basis. The visits were subsequently moved to the Metzenbaum Center for Children, however, after appellant threatened to bring a gun to the visits and forcibly take her children away. Zemba testified that appellant missed five visits and was at least a half-hour late for two other visits. In addition, appellant repeatedly brought people who had no relationship to the children to the visits. Zemba told appellant in December 2000, that such individuals were not allowed to attend the visits and should not attend. She also told appellant that if other individuals accompanied her to the visits, the visits would be canceled due to safety concerns. Nevertheless, appellant continued to bring guests to the visits. Accordingly, Zemba had to cancel three of the scheduled visits. Dr. Thomas Anuszkiewicz testified that in February 2001, he completed a mental status examination of appellant. He also conducted a personality test, obtained a written self-report from appellant and reviewed background information provided by CCDCFS regarding appellant's case. In light of his examination of appellant and review of the other materials, Dr. Anuszkiewicz concluded that appellant lacked an understanding of how to raise children, had poor judgment in terms of independent living skills and did not have appropriate insight into the seriousness of her problems. In addition, according to Dr. Anuszkiewicz, the personality test results indicated that appellant was insecure, lacked self-esteem, was deficient in social skills, thought in a bizarre and fragmented manner, utilized poor judgment and had a tendency to respond to stress and pressure by withdrawing into fantasy. Dr. Anuszkiewicz further determined that appellant suffered from a dependent personality disorder, which made it difficult for her to make everyday decisions and required others to assume responsibility for her. According to Dr. Anuszkiewicz, appellant would require two to three years of counseling before significant progress could be made regarding her emotional and mental health issues. Dr. Anuszkiewicz testified that appellant was not able to adequately care for her children at that time and that it would take at least two, and perhaps three, years before she was able to care for them at even the bare minimum level. Sue Frankowski, an early intervention specialist with the Cuyahoga County Board of Mental Retardation and Developmental Disabilities, testified that the children were born one month premature and A.S. suffered from developmental disabilities, including sensory processing issues, stiffness in her extremities and delays in her cognitive functioning. As a result, A.S. required special therapy and handling techniques. Frankowski testified that it was essential that A.S. continue in therapy until she reached three years of age. Frankowski testified that A.S.'s foster mother had initiated special services for her through the Cuyahoga County Board of Mental Retardation and Developmental Disabilities. As a result, A.S. was enrolled in physical and occupational therapy and Frankowski was assigned to assist the foster mother and appellant in learning how to recognize her needs and help her. Frankowski testified that she met with appellant on three occasions. According to Frankowski, although appellant initially seemed responsive and cooperative, she got the impression that appellant was not interested in her services because on at least one occasion, appellant just turned away and began talking to someone else while Frankowski was talking to her about A.S. Frankowski gave appellant her telephone number and told her that she could call anytime, but appellant never did so. The foster mother testified that the children had been living with her and her husband since they were ten days old. She also testified that she had learned how to deal with A.S.'s special needs and that she and her husband would be willing to adopt the children. D.S., the biological father of the children, testified that he and appellant never married and that he consented to permanent custody of CCDCFS so that the current foster parents could adopt the child. He testified further that even if the court did not grant permanent custody of the children to CCDCFS, he would not consent to appellant having custody of the children because appellant "gets easily frustrated" and "might just want to give up" when the twins got difficult. D.S. testified that he once heard appellant threaten to use a gun to get her children back and that appellant had also once threatened suicide. Appellant testified that after living in a foster home for several years she was adopted at the age of eleven. Appellant testified that she graduated from high school, although she had a diagnosed learning disability and was in special education classes throughout school. Appellant testified that she "signed the rights over" for her first two children because she "had no money, no place to go, no car and no way to take care of them." Appellant testified that she missed five parenting classes because she was in the hospital due to seizures caused by high blood pressure. According to appellant, she was not aware that she had not successfully completed the parenting class and that additional classes were recommended for her. Appellant testified further that she went to May Dugan but did not receive any assistance there with finding housing. At the time of the hearing, she claimed she had been living in a two-bedroom apartment for approximately six months but, upon cross-examination, admitted that she had been living there for only three months. She also admitted that she was living there with two men, one whom she identified as Everett Wood, a former boyfriend and the man she referred to as her "stepfather," and Joseph Corson, whom appellant had married the day before the custody hearing and who she admitted had never met the children. Appellant testified that since June 3, 2000, she had been working nights as a security guard making $8 per hour, but she planned to work the day shift if she received custody of the children. She testified that she would put the children in a daycare center down the street from her home. Appellant testified that she did not own a gun and denied ever telling anyone that she would use a gun to get her children back. Finally, appellant testified that she did not believe she needed counseling services. On June 22, 2001, the trial court entered an order committing the children to the permanent custody of CCDCFS. Appellant timely appealed, raising one assignment of error for our review. Appellant's assignment of error states: THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY SINCE (1) NONE OF THE CIRCUMSTANCES SET FORTH IN R.C. 2151.414(E) WERE PROVEN BY CLEAR AND CONVINCING EVIDENCE AND (2) THE JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The termination of parental rights in a natural child, when the child is neither abandoned nor orphaned, is governed by R.C. 2151.414(B), which provides that a court may grant permanent custody of a child to the agency if the court determines, by clear and convincing evidence,1 that 1) it is in the best interest of the child to grant permanent custody of the child to the agency; and 2) the child cannot be placed with either of his parents within a reasonable period of time or the child should not be placed with his parents. R.C. 2151.414(E) sets forth guidelines for determining whether a child cannot be placed with either of his parents within a reasonable period of time or should not be placed with his parents: In determining * * * whether a child cannot be placed with either of his parents within a reasonable period of time or should not be placed with his parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence * * * that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either of his parents within a reasonable time or should not be placed with either parent. The statute then lists various factors for the court to consider, including: (1) Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. Once the trial court finds from all relevant evidence that one of the factors exists and the child cannot or should not be placed with either of his parents, it then must consider whether permanent custody is in the best interest of the child. In re William S. (1996), 75 Ohio St.3d 95,99. In determining whether permanent custody is in the best interest of a child, R.C. 2151.414(D) requires the juvenile court judge to consider all relevant factors, including, but not limited to: (1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; (3) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies * * * for twelve or more months or a consecutive twenty-two month period * * *; (4) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; (5) Whether any of the factors in division (E)(7) to (11) of [R.C. 2151.414(E) apply in relation to the parents and child. It is axiomatic that both the best interest determination and the determination that the child cannot be placed with either parent focus on the child, not the parent. In re Awkal (1994), 95 Ohio App.3d 309, 315. As this court stated in In re Awkal, supra: R.C. 2151.414(D) is written broadly and requires the juvenile court judge to consider all factors that are relevant to the best interest of the child. The purpose of a far-reaching inquiry is to allow the judge to make a fully informed decision on an issue as important as whether to terminate parental rights, privileges and responsibilities. The discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. Moreover, the knowledge the juvenile court gains at the adjudicatory hearing through viewing the witnesses and observing their demeanor, gestures and voice inflections and using the observations in weighing the credibility of the proffered testimony cannot be conveyed to a reviewing court by a printed record. * * * Hence, this reviewing court will not overturn a permanent custody order unless the trial court has acted in a manner that is arbitrary, unreasonable or capricious. Id. at 316. (Citations omitted.) Appellant asserts that the trial court erred in granting permanent custody of her children to CCDCFS because "none" of the factors set forth in R.C. 2151.414(E) was proven by clear and convincing evidence and the judgment was against the manifest weight of the evidence. We disagree. In its order granting permanent custody to CCDCFS, the trial court found that the children could not or should not be placed with appellant because: following the placement of the children outside of the home and notwithstanding reasonable case planning and diligent efforts by the CCDCFS to assist the parents to remedy the problems that initially caused the children to be placed outside the home, the parents failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside the home. The record supports the trial court's finding. The children were removed from appellant's care at the time of their birth because of appellant's emotional instability, her unstable and inappropriate housing and her lack of parenting skills. Shortly after their removal, CCDCFS developed a case plan for appellant to address these issues and enable the children to be returned to her custody. The case plan required her to learn proper parenting skills, maintain stable housing, obtain a psychological evaluation and address her emotional and mental health issues through individual counseling. Despite the efforts of CCDCFS, however, at the time of the permanent custody hearing, she had not successfully completed any of these objectives. Contrary to appellant's argument, CCDCFS did, in fact, make diligent efforts to assist her in resolving her problems. Her social worker, Arlene Zemba, referred her to the May Dugan Social Services Center to obtain assistance with housing and individual counseling. The record indicates that she attended only one meeting at May Dugan, however, and then failed to return or take advantage of any of its referral services. The record also reflects that appellant failed to obtain and maintain stable housing. During the eleven months following removal of the children from her care, appellant lived in at least five different locations, none of which were stable or appropriate. Furthermore, appellant failed to keep her social worker apprised of where she was living and, consequently, at the time of the permanent custody hearing, the social worker was unaware of where appellant was living. Although appellant testified that she was living in a two-bedroom apartment, she admitted that she had been living there for only three months, and further, that she lived there with two men, one a former boyfriend whom she referred to as her "stepfather," and the other a man she had married only the day before the custody hearing and who had never met the children. Appellant's intention was to have the children reside in the home with her and the men. This evidence was sufficient to demonstrate that appellant had failed to resolve her issues with unstable housing. The record also demonstrates that appellant had not addressed her emotional and mental health issues. Dr. Anuszciewicz concluded that appellant suffered from a dependent personality disorder which made her unable to adequately care for her children without extensive, long-term individualized counseling. Although Zemba referred appellant to the May Dugan Social Services Center to obtain individualized counseling, however, she did not follow up on any of the services May Dugan offered. Significantly, she testified that she believed she did not need any counseling. Accordingly, the record reflects that appellant neither acknowledged her mental health issues nor attempted to address them in any way in order to regain custody of her children. The record also reflects that appellant did not learn proper parenting skills — another objective of her case plan. Although she finally completed the sixteen-week parenting class after six months, her end-of-course ratings indicated that her parenting skills still needed improvement. Although both her instructor at the parenting classes and her social worker suggested that she take more parenting classes, appellant did not do so. In short, the evidence adduced at the permanent custody hearing clearly and convincingly established that appellant had continuously and repeatedly failed to substantially remedy the conditions that led to the removal of her children from her custody. Accordingly, the trial court did not abuse its discretion in finding that the children could not or should not be placed with appellant. Moreover, although appellant does not contest the trial court's finding with respect to the best interest of children, we note that the trial court also did not err in finding that awarding permanent custody of the children to CCDCFS was in their best interest. The record reflects that the children had been in their current foster home for nearly one year and the foster parents, who wanted to adopt both children, had learned how to care for A.S. and her special needs. Moreover, the guardian adlitem recommended that permanent custody be granted to CCDCFS. Accordingly, the trial court did not abuse its discretion in finding that permanent custody was in the children's best interest. Appellant's assignment of error is overruled. 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, Juvenile Court Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN, J. and ANNE L. KILBANE, J., CONCUR. 1 "Clear and convincing evidence" is defined as "[t]hat measure or degree of proof which is more than a mere `preponderance of evidence' but not to the extent of such certainty as is required `beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Lansdowne v. Beacon Journal Publishing Co. (1987),32 Ohio St.3d 176, 180-181.

2016-07-06 06:36:37.938642+00

{¶ 42} I concur with the majority in all but the resolution of the second assignment of error. I would find that double jeopardy barred Crosswhite's retrial on fifth degree felonies for counts 8, 11, 32, 87, 90, 96, 99, 111, 114 and 118 because the court had found him guilty in the first trial of committing only first degree misdemeanors on those same counts. {¶ 43} In Bullington v. Missouri (1981), 451 U.S. 430, 437, the United States Supreme Court stated, "[i]t is well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted of the crime charged." (Citations omitted.) This principle applies "whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge." Price v. Georgia (1970),398 U.S. 323, 329. In United States v. DiFrancesco (1980), 449 U.S. 117,146, the supreme court stated: {¶ 44} "A verdict of acquittal represents the factfinder's conclusion that the evidence does not warrant a finding of guilty. United States v.Martin Linen Supply Co., 430 U.S. 564, 572 (1977). A guilty verdict of second-degree murder where the *Page 17 charge to the jury permitted it to find the defendant guilty of first-degree murder represents the factfinder's implicit finding that the facts do not warrant a first-degree murder conviction. Thus, a retrial on first-degree murder is constitutionally impermissible." {¶ 45} Crosswhite pleaded no contest to counts 8, 11, 32, 87, 90, 96, 99, 111, 114 and 118 of the indictment. According to Crim.R. 11(B)(2), a no contest plea is "not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment * * *." In other words, a no contest plea is not a self-executing judgment of conviction. The court must make a finding of guilt, and is required to do so if the indictment, information, or complaint contains sufficient allegations to state a felony offense. State ex rel. Stern v.Mascio (1996), 75 Ohio St.3d 422, 425. {¶ 46} Although the subject counts were originally charged in the indictment as fifth degree felonies, the court's judgment of conviction shows that it considered the "proffered evidence" and found Crosswhite guilty of a first degree misdemeanor. The court's decision to find Crosswhite guilty of the lesser first degree misdemeanor offense was tantamount to a finding that there was insufficient evidence to support the higher fifth degree felony. This was an evidentiary resolution of the higher, fifth degree felony offenses to which jeopardy attached, regardless of whether the plea itself was later rendered infirm. As the United States Supreme Court stated in Martin Linen, supra, the courts need to "determine whether the ruling of the judge, *Page 18 whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged."Linen, 430 U.S. 571-572. I would find that the state was barred from retrying Crosswhite on the fifth degree felony count. I therefore respectfully dissent from the disposition of the second assignment of error. *Page 1

2016-07-06 06:36:37.961422+00

OPINION {¶ 1} Plaintiff-Appellant, Robert M. Williams, was discharged from his employment as a police officer by the Village of Yellow Springs ("Village") on January 2, 2003. Williams commenced an action against the Village in the court of common pleas on claims for unlawful discharge, a violation of his civil rights, and that the Village had violated its own charter by denying him a right of post-termination appeal its charter guaranteed. {¶ 2} After responsive pleadings were filed, the Village filed a Civ.R. 12(C) motion for judgment on the pleadings. The trial court granted the motion as to all claims except Williams' claim that the Village had violated its charter. On that matter, the court remanded the case for the post-termination appeal which Williams had been denied. {¶ 3} Williams filed a timely notice of appeal. While the record does not reflect the fact, counsel for both sides advised this court at oral argument that the post-termination appeal proceeding ordered by the trial court had been held, with Williams' full participation, and that the result was an affirmance of his termination. {¶ 4} First Assignment of Error {¶ 5} "The trial court erred by dismissing the plaintiff's claims for due process violation." {¶ 6} Second Assignment of Error {¶ 7} "The trial court erred in ordering remand for a further hearing as remedy for failing to give the required post-termination hearing." {¶ 8} Third Assignment of Error {¶ 9} "Trial court erred in holding that plaintiff has no appellate rights under R.C. 737.19." {¶ 10} While these assignments of error present different issues of law, each turns on whether Williams is now entitled to a post-termination appeal he was denied. {¶ 11} The general rule is "that a party who has taken advantage of a judgment or decree may not afterwards question its validity." City of Columbus v. Mosko Realty Company (Franklin App., 1958), 79 Ohio Law Abstract 83, at 84. Williams received the benefit of the judgment from which this appeal is taken when he had a post-termination hearing held in accordance with the mandate of that judgment. {¶ 12} Where the order complained of on appeal is "separable and not necessarily affected by that part of the order of which [the appellant] received benefits," an exception to the general rule is made. Nelson v. Nelson (Franklin App., 1933), 14 Ohio Law Abstract 510, at 512. In the case before us, the trial court's order denying the remedy of reinstatement Williams sought cannot be severed from its order remanding the matter for the post-termination appeal, because to reverse the order and order reinstatement would be inconsistent with the remand the trial court ordered and which was held. {¶ 13} Where the appellant's acceptance of the benefits of the judgment from which the appeal is taken is the product of "extreme financial duress," and the appellant has attempted, unsuccessfully, to obtain relief from the judgment during the pendency of the appeal, an exception to the general rule is made.Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245. In the case before us, we have not been made aware of any effort that Williams may have made, unsuccessfully, to stay the post-termination hearing in the Village Council during the pendency of his appeal to this court. Consequently, the "duress" exception to the general rule cannot be invoked. {¶ 14} The assignments of error are overruled. The judgment of the trial court will be affirmed. Fain, P.J. and Brogan, J., concur.

2018-06-22 16:01:19.63944+00

http://media.ca11.uscourts.gov/opinions/unpub/files/201617791.pdf

Case: 16-17791 Date Filed: 06/22/2018 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-17791 Non-Argument Calendar ________________________ D.C. Docket No. 5:16-cr-00007-LGW-RSB-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANK PRUITT, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Georgia ________________________ (June 22, 2018) Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges. PER CURIAM:  Case: 16-17791 Date Filed: 06/22/2018 Page: 2 of 2 Franklin David McCrea, appointed counsel for Frank Pruitt in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Pruitt’s conviction and sentence are AFFIRMED. 2

2016-07-06 06:36:38.166253+00

OPINION {¶ 1} In this accelerated calendar case, appellant, Anthony W. McCleery individually and as a representative of his minor children Selena and Allyssa McCleery, appeals from the decision of the Lake County Court of Common Pleas. (For clarity, we will only refer to appellant in the singular.) That decision granted appellee, Dr. Michael Leach, summary judgment on appellant's claims for psychological malpractice and negligence. The trial court did not find that there was absolute immunity as claimed by appellee, but nevertheless found that there was no duty and no proximate cause. For the reasons that follow, the judgment of the trial court is affirmed with some deviation from the trial court's analysis. Specifically, we find that summary judgment should have been granted both on the basis of absolute liability and no proximate cause. {¶ 2} By way of background, in 1998 appellant filed a complaint for divorce from his wife, Susan McCleery ("Mrs. McCleery"). By order of the magistrate, on February 26, 1999, appellee was specifically directed to conduct a psychological examination and evaluation of appellant, Mrs. McCleery and the minor children "to assist the Court in determining [the] allocation of parental rights [and] responsibilities[.]" {¶ 3} Ultimately, the parties reached agreement on a shared parenting agreement which was approved by the court. Then, on October 21, 1999, the trial court issued a judgment entry of divorce wherein the trial court formally adopted the shared parenting agreement which named Mrs. McCleery as the primary residential parent. {¶ 4} Almost a year later, on December 4, 2000, the trial court modified the shared parenting plan by transferring primary residential parenting responsibilities to appellant. Appellant and appellee seem to agree that this custody modification was precipitated by Mrs. McCleery's unsuccessful suicide attempt during the year. {¶ 5} Subsequently, on April 16, 2001, appellant filed a pro se complaint on behalf of himself and his minor children alleging that appellee had committed psychological malpractice and negligence as he "did not conduct the psychological evaluation in a proper and adequate manner." According to appellant, "[appellee's] negligent prosecution of his evaluation caused [appellant] loss of consortium with his minor children, loss of attorney fees to zealously prosecute the case to gain back custody of his minor children, loss of child support payments, loss of payments for the evaluations to [appellee], and payments for psychological counseling of the minor children."1 {¶ 6} Appellee subsequently moved for summary judgment on July 2, 2001, arguing that as a court-appointed psychologist, he was entitled to absolute immunity for his involvement in the divorce proceeding. In the alternative, appellee maintained that any testimony, recommendations, or reports he supplied to the trial court in the divorce proceeding was subject to testimonial immunity. Appellee further submitted that the damages allegedly suffered by appellant were not proximately caused by appellee's actions because appellant voluntarily entered into the shared parenting agreement. {¶ 7} In support of his motion for summary judgment, appellee attached the following documents: (1) a copy of the February 26, 1999 magistrate's order directing appellant and Mrs. McCleary and the minor children to meet with appellee for the purpose of a psychological evaluation; (2) a copy of the docket sheet maintained in the divorce proceeding; a correspondence dated March 30, 1999 from appellant to Mrs. McCleery referring to appellee as "the court ordered psychological evaluator," including the proposed shared parenting draft prepared by appellant; (3) a judgment entry of divorce dated October 21, 1999, wherein the trial court adopted a slightly modified version of the shared parenting agreement naming Mrs. McCleery as the primary residential parent; and (4) a judgment entry dated December 4, 2000, which transferred the primary caregiving responsibilities to appellant. {¶ 8} On July 11, 2001, nine days subsequent to the filing of the motion for summary judgment, appellant filed an emergency motion to compel discovery. In it, he requested the trial court to order appellee "to provide copies of his entire file relating to the underlying case involving Susan McCleery and [appellant]." Attached to the motion to compel was, inter alia, a signed release from Mrs. McCleery dated May and November 2000. That release authorized appellee to release her psychological records to the law firm of Dworken Bernstein, who apparently had represented appellant during the earlier divorce proceedings. {¶ 9} Thereafter, on July 16, 2001, appellant filed a motion for leave seeking a thirty-day extension to respond to the summary judgment exercise. In order to respond to appellee's motion for summary judgment, appellant maintained that "[he] must engage in discovery to present to the Court the relevant facts." Appellant seemed to suggest that the manner in which appellee conducted the psychological examination and subsequently formed his conclusions were relevant to the case. From this, appellant concluded that only when these facts were discovered and presented to appellant's expert, Dr. Donald Weinstein ("Dr. Weinstein"), could he prepare a response to appellee's motion for summary judgment. {¶ 10} Also on July 16, 2001, appellee filed a brief in opposition to appellant's emergency motion to compel discovery. While appellant attached a release signed by Mrs. McCleery to his motion to compel discovery, appellee maintained that this release was signed during the pendency of the divorce proceeding and was not executed for purposes of the instant lawsuit. Furthermore, appellee pointed out that the document authorized the release of records to the law firm of Dworken Bernstein, not appellant or his expert, Dr. Weinstein. From this, appellee concluded that appellant did not have a valid authorization from Mrs. McCleery for the release of her psychological records. {¶ 11} In turn, on July 23, 2001, appellant filed a reply to appellee's brief in opposition to his emergency motion to compel discovery. According to appellant, Mrs. McCleery signed a document authorizing appellee to release her psychological reports to appellant's agent, Dworken Bernstein. {¶ 12} On August 20, 2001, the trial court issued a judgment entry denying appellant's motion to compel discovery. According to the trial court, the release signed by Mrs. McCleery was not executed for purposes of the instant lawsuit and did not authorize the release of Mrs. McCleery's psychological records to appellant or Dr. Weinstein. Rather, it permitted such information to be released to the law firm of Dworken Bernstein, which was not involved in the instant litigation. Curiously, the trial court granted appellant until August 20, 2001, the date of the entry, to respond to appellee's motion for summary judgment.2 {¶ 13} On September 20, 2001, appellant, undaunted, filed a second motion for leave seeking a thirty-day extension to respond to the summary judgment motion. Although the trial court denied appellant's motion to compel discovery, appellant continued to claim that appellee had failed to produce the requested psychological records. Appellant further argued that during his deposition testimony, appellee refused to answer certain questions. {¶ 14} After denying appellant's request for an extension of time, the trial court issued a judgment entry on September 27, 2001, granting appellee's motion for summary judgment. Although the trial court held that, per Willitzer v. McCloud (1983), 6 Ohio St.3d 447, appellee was not entitled to immunity, the court went on to conclude that appellant had failed to establish a prima facie case of malpractice or negligence against appellee. Specifically, the trial court determined there was no evidence that appellee owed a duty to appellant, or that appellant's damages were proximately caused by appellee's malpractice or negligence. {¶ 15} After the trial court issued this final appealable order, appellant filed a notice of filing documents under seal on October 25, 2001, with the trial court. A day later, on October 26, 2001, appellant filed his notice of appeal with this court. In a judgment entry dated November 8, 2001, the trial court ordered the Clerk of Courts to return to appellant the documents listed in his notice of filing documents under seal. {¶ 16} It is from the trial court's September 27, 2001 entry granting summary judgment in favor of appellee that appellant appeals, submitting ten assignments of error for our consideration: {¶ 17} "1. The trial court erred in not properly ruling on the emergency motion to compel discovery due to ORC2317.02(a)(I) and ORC2151.01[.] {¶ 18} "2. The trial court erred in not compelling the defendant-appellee to release the records of Susan McCleery and of plaintiff-appellants to either Dr. Weinstein, plaintiff-appellees [sic] expert witness in this case and in the underlying divorce case, or to Gary Okin of Dworken and Bernstein, the attorney who represented plaintiff-appellants in the underlying divorce case[.] {¶ 19} "3. The trial court violated the plaintiff-appellants' constitutional right to a remedy and abused its discretion by dismissing this case without allowing sufficient time to prepare a response to summary judgment after refusing to compel discovery on defendant-appellee[.] {¶ 20} "4. The trial court abused its discretion by not issuing a court order compelling the defendant-appellee to answer questions in a deposition relating to the defendant's recommendations made for the children, plaintiff-appellants, Allyssa McCleery and Selena McCleery[.] {¶ 21} "5. The trial court abused its discretion by not issuing a stipulation or protective order pursuant to Civ.R. 26(C) that would compel the defendant to release the records of plaintiff-appellants and Susan McCleery and that would compel plaintiff-appellants file confidential records under seal, thus protecting all parties[.] {¶ 22} "6. The trial court abused its discretion in not granting an extension of time to file a response to summary judgment after partially adjudicating the emergency motion to compel discovery[.] {¶ 23} "7. The trial court erred in its judgment entry filed on Sept. 27, 2001 by determining that the defendant-appellant has no duty to plaintiff-appellants[.] {¶ 24} "8. The trial court erred when it determined that the defendant-appellee had not proximately caused damages[.] {¶ 25} "9. The trial court erred in its Sept. 27, 2001 judgment entry filed by failing to give notice of possible dismissal. {¶ 26} "10. The trial court erred in its judgment entry of Nov. 8, 2001 by not permitting the documents submitted under seal to be filed as an offer of proof under Evid. R. 103(A)[.]"3 {¶ 27} The thrust of appellee's motion for summary judgment was that there was either absolute immunity, testimonial immunity or that there was no proximate cause. Appellee argues that the first through sixth assignments of error dealt with some aspect of discovery regarding the existence of malpractice in the psychological evaluations conducted by appellee. Thus, appellee contends that appellant's discovery requests were irrelevant in addressing the issues raised in appellee's motion for summary judgment. {¶ 28} Specifically, if appellee were protected by absolute immunity, then appellee was not liable, regardless of any malpractice. And, similarly, if appellant did not rely on any act of appellee, then there was no proximate cause and no liability. We agree. Thus, for these reasons alone, any error in the denial of these requests was harmless and we affirm the judgment of the trial court as to assignments one through six. {¶ 29} Now we turn to the critical issues presented in this appeal. Assignments of error seven and eight challenge the trial court's grant of summary judgment in favor of appellee. {¶ 30} Appellate review of a summary judgment exercise is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Hence, we determine that summary judgment also should have been granted on the basis of absolute immunity, as well as on the lack of any proximate cause. {¶ 31} Immunity is an affirmative defense. BCL Ent. v. Ohio Dept.of Liquor Control, 77 Ohio St.3d 467, at 471. Here, it means that even if a duty otherwise exists and is breached, and there is proximate cause which results in damages, there is no liability. Nationwide Mut. Ins.Co. v. Kanter Corp. (1995), 102 Ohio App.3d 773, at 776. Thus, the issue of whether there is absolute immunity is a totally separate issue from whether there is proximate cause. {¶ 32} According to appellant's appellate arguments, appellee owed him a duty and subsequently breached that duty, citing Elling v. Graves (1994), 94 Ohio App.3d 382, and Willitzer. Appellant infers that he would have never entered into the shared parenting plan designating Mrs. McCleery as the primary custodian of the children were it not for appellee's inaccurate recommendation that she was mentally stable. {¶ 33} Appellee counters by submitting that as a court-appointed psychologist, he was entitled to absolute immunity, or minimally, testimonial immunity, for his actions in the underlying divorce proceeding. In the alternative, he argued there was no proximate cause. {¶ 34} As to the absolute immunity defense, Ohio courts have had little opportunity to address this particular issue. As a result, we initially had some concern that the facts of this particular case were distinguishable from the traditional situation where the trial court actually relied on the report in making its own adjudication. Further, the majority of these Ohio cases involved guardian ad litems and not psychologists or similar experts. Kurzawa v. Mueller (C.A.6, 1984),732 F.2d 1456; Penn v. McMonagle (1990) 60 Ohio App.3d 149; Dolan v.Kronenberg (July 22, 1999), 8th Dist. No. 76054, 1999 WL 528202, at 3. {¶ 35} Sister state and federal jurisdictions have uniformly held that court-appointed psychologists ordered to conduct psychological evaluations of the parties in a divorce/custody proceeding perform a function that is integral to the judicial process and are entitled to absolute immunity. See, also, Moses v. Parwatikar (C.A.8, 1987),813 F.2d 891; Hathcock v. Barnes (Okla.App. 2001), 25 P.3d 295, 297;Diehl v. Danuloff (Mich.App. 2000), 242 Mich. App. 120, 129-134; Stonev. Glass (KY.App. 2000), 35 S.W.3d 827, 830; Parker v. Dodgion (Utah 1998), 971 P.2d 496, 498-499; Duff v. Lewis (Nev. 1998), 114 Nev. 564,569-571; Delcourt v. Silverman (Tex.App. 1996), 919 S.W.2d 777, 782-783;Lythgoe v. Guinn (Alaska 1994), 884 P.2d 1085, 1087-1090. {¶ 36} "[A] court-appointed psychologist performing a custodial evaluation acts as a fact-finder for the court, and is an integral part of the judicial process[.]" Stone at 830. "Fact-finding is an integral part of the judicial process and a function naturally associated with judges and juries both of whom are granted immunity from suit." Parker at 498. {¶ 37} Appellant relies heavily on a single instance where the Supreme Court of Ohio did have the occasion to comment on the availability of immunity for a physician involved in an administrative proceeding: {¶ 38} "An independent physician examining workers' compensation claimants at the request of the Industrial Commission of Ohio, for the purpose of reporting their medical conditions, is not absolutely immune from a civil suit based on his examinations, notwithstanding that his report and testimony at an adjudicatory proceeding are privileged under the doctrine of witness immunity." (Emphasis added.) Willitzer, at syllabus. {¶ 39} In attempting to reconcile Wilitzer with what appears to be the clear public policy of numerous other states in regards to witness immunity, we find ourselves in agreement with the logic of Penn at 149: {¶ 40} "*** Willitzer stands for the proposition that physicians who are not appointed by a court are to be granted no more than qualified immunity for work conducted outside the court. We adhere to that finding and believe that to achieve the truthseeking goal inherent in all judicial proceedings, the rule of Willitzer, should it survive, must belimited to the particular facts of that case as prescribed by S.Ct.R.Rep.Op. 1(B)." (Emphasis added.) Elling, 388, fn. 1, citing Penn at 152. {¶ 41} It is clear to us that the underlying principles set out in the Ohio guardian ad litem cases and the four-square cases from our sister jurisdictions, are sufficiently compelling to apply them to the instant case. It is irrelevant that appellee's potential liability is not predicated upon his testimony at an adjudicatory proceeding. There is no valid distinction between the evaluation report produced by the court's expert by the court's order and testimony which would have been elicited in reference to that report. Both were essential "to assist the Court in determining [the] allocation of parental rights [and] responsibilities[.]" Appellee was at all times functioning as an arm of the court. {¶ 42} There are several reasons to support the foregoing conclusion. "If these court-appointed psychologists are subject to suit, they will be less willing to serve the court and if court-appointed psychologists are subject to suit, their opinion may be shaded in favor of the party most likely to sue them rather than a disinterested and objective opinion that a court seeks in making such an appointment." Hathcock at 297. See, also, Parker at 499; Diehl at 132; Duff at 570. {¶ 43} Accordingly, the rationale employed by these other jurisdictions compels a conclusion that appellee is entitled to absolute immunity. Appellee was appointed to fulfill a quasi-judicial responsibility under the magistrate's direction in the divorce proceeding. Specifically, appellee was ordered to conduct a psychological examination and evaluation of appellant, Mrs. McCleery and the minor children "to assist the Court in determining [the] allocation of parental rights [and] responsibilities[.]" {¶ 44} By issuing such a directive, appellee was acting as an arm of the court and only carrying out a duty imposed upon him by the court order, regardless of whether the duty was to produce an evaluation or to testify. In other words, appellee "performed a function integral to the judicial process. As arms of the court, [appellee is] entitled to the absolute immunity given to judges and other judicial officials." Seibelv. Kemble (1981), 631 P.2d 173, 179. {¶ 45} And as previously mentioned, the extension of absolute immunity to a court-appointed psychologist is consistent with the position taken by several Ohio courts in affording guardian ad litems with absolute immunity. Kurzawa; Penn and Dolan, supra. As noted by the Supreme Court of Hawaii: {¶ 46} "We believe that the better position is to provide court-appointed psychiatrists absolute immunity from suit. In adopting this position we do not condone negligence by persons in the performance of their duties or their failure to abide by a court order. The grant of absolute immunity is not intended to permit the doctors to hide behind the judicial shield. Rather, our position is necessary to maintain the orderly administration of the judicial process. {¶ 47} "Judicial immunity is based on the overriding public policy that `judges should be at liberty to exercise their functions with independence and without fear of consequences.' *** {¶ 48} "Other reasons advanced for judicial immunity are: (1) the need to save time which would be spent defending suits; (2) avoid deterring competent persons from taking office; (3) the need for finality in the resolution of disputes; (4) existence of adequate alternative remedies; and (5) the unfairness of requiring an opinion and the exercise of judgment to which is given special deference and then subjecting that person to liability based on the opinion of another. *** {¶ 49} "The reasons underlying judicial immunity, especially the freedom and independence to act without apprehension of possible adverse consequences, apply equally to court-appointed officials." Seibel at 177-178.4 {¶ 50} For these reasons, we hold that appellee, who was a court-appointed psychologist and served as such during the divorce proceeding to aid the court in allocating parental rights and responsibilities, is entitled to absolute immunity.5 {¶ 51} Even if this court were to hold that appellee was not entitled to absolute immunity, we would still affirm the trial court's determination that summary judgment was appropriate as to the issues of duty and proximate cause. {¶ 52} We begin our analysis by setting forth the elements of professional negligence as it relates to psychologists. "In order to establish liability, appellant must demonstrate, by a preponderance of evidence, the existence of a duty owed by the psychologist, as defined by the standard of care in the psychological community, breach of that duty, and resultant injury proximately caused by that psychologist's act or omission." Pisani v. Pisani (Dec. 11, 1997), 8th Dist. No. 72136, 1997 WL 767452, at 3. {¶ 53} Assuming for the sake of argument that appellee, as a court-appointed psychologist, did not have absolute immunity and owed appellant a duty of care, appellant's claims for negligence and malpractice still do not survive summary judgment. Appellant's appellate theory for recovery is that he would not have entered into the shared parenting agreement naming Mrs. McCleery the primary residential parent of the children if it were not for appellee's alleged inaccurate assessment that she was mentally stable. {¶ 54} Even if appellee had made recommendations during the divorce proceeding as to the shared parenting plan arrangement, there is no evidence in the record to indicate that appellant, in fact, relied on appellee's recommendations to enter into the shared parenting plan. {¶ 55} In his motion for summary judgment, appellee maintained that the damages suffered by appellant were not proximately caused by his actions because appellant voluntarily entered into the shared parenting plan. To that end, appellee attached appellant's draft proposal for a shared parenting agreement. It was dated prior to any evaluation byappellee. This draft proposed that Mrs. McCleery be designated as the primary residential parent. With several modifications, this was the plan that was adopted by the court. {¶ 56} Appellant could have rebutted appellee's argument by supplying his own affidavit to explain how he entered into the shared parenting plan in reliance on appellee's recommendation that Mrs. McCleery was mentally stable. He did not. There was no rebuttal to this evidence that appellant did not rely on the evaluation in formulating his decision to propose Mrs. McCleery as the primary residential parent in the agreement. {¶ 57} Appellant did not need to conduct discovery to prepare such an affidavit as these assertions dealt with matters that were within his personal knowledge. Although in his appellate briefing, appellant implies reliance, in the record there is no evidence of that reliance. Without reliance to establish proximate cause, appellant's claims for negligence and malpractice cannot be established. {¶ 58} Thus, the trial court's finding of no proximate cause was correct. And, per our previous discussion, we also make a de novo determination that absolute immunity is an applicable affirmative defense that would also support the motion for summary judgment. Accordingly, the seventh and eighth assignments of error are without merit. {¶ 59} In the ninth assignment of error, appellant contends that the trial court failed to give him notice of the possible dismissal of his case. As to this point, we note that in its September 27, 2001 judgment entry, the trial court erroneously dismissed the instant action. Such a dismissal was superfluous. Baryak v. Kirkland (2000),137 Ohio App.3d 704, 706, fn. 1. Rather, the trial court should have entered judgment in favor of appellee. To that end, we modify the judgment of the court by entering judgment in favor of the appellee and denying all claims of the appellant[s] for the reasons state in this opinion. {¶ 60} It is axiomatic that Civ.R. 56 contemplates that a trial court may enter judgment in favor of the moving party during a summary judgment exercise. Baryak at 706, fn. 1. Thus, notice of such an occurrence is not required, even in instances where the non-moving party is proceeding pro se. Accordingly, the ninth assignment of error is meritless, except as noted. {¶ 61} In the tenth and final assignment of error, appellant takes issue with the trial court's November 8, 2001 judgment entry ordering the Clerk of Courts to return to appellant documents listed in his notice of filing documents under seal. According to appellant, the trial court abused its discretion in not permitting the documents to be filed since the filing of these documents "[were] required for justice to prevail." {¶ 62} Given that appellant filed a notice of appeal from the September 27, 2001 entry granting summary judgment in favor of appellee, this court is without jurisdiction to consider the trial court's November 8, 2001 ruling. Nonetheless, we perceive no error in the trial court ordering the Clerk of Courts to return to appellant the documents listed in his notice of filing documents under seal in light of the fact that the trial court had already rendered a decision in the matter. Appellant's tenth assignment of error is, therefore, not well-taken. {¶ 63} Accordingly, appellant's ten assignments of error are without merit, and the judgment of the trial court is modified and affirmed as modified based on the reasons set forth in the opinion. WILLIAM M. O'NEILL, P.J., concurs. 1 R.C. 2305.01.1, which required a plaintiff bringing an action for malpractice to file a certificate of merit, has been repealed. 2 The record fails to indicate if a hearing was held on August 2, 2001, to consider appellant's motion to compel, and if this hearing was recorded. Likewise, it is unclear from the record whether appellant was otherwise given notice of the August 20, 2001 extension prior to the filing of the August 20, 2001 judgment entry as was suggested at oral argument. 3 As an aside, we note that in his appellate brief, appellant makes reference to appellee's deposition testimony, as well as other documents, that were never filed with or considered by the trial court during the proceedings below. An appellate court, however, may not determine an appeal based on matters outside the record. App.R. 9(A); App.R. 12(A)(1)(b). Given that these documents were not before the trial court, we will not consider them on appeal. 4 In Willitzer, Justice Brown cited to Seibel in his dissenting opinion. 5 Since the entitlement of absolute immunity encompasses those immunities granted through testimonial immunity, we will forego any determination as to whether testimonial immunity is applicable in the instant case.

2016-07-06 06:36:37.931212+00

JOURNAL ENTRY AND OPINION {¶ 1} Appellant-defendant, Donald Crosswhite, appeals the decision of the lower court. Having reviewed the arguments of the parties and the pertinent law, we hereby affirm the lower court. I. {¶ 2} This case involves charges stemming from a previous theft ring. According to the case, the Cuyahoga County Grand Jury indicted Crosswhite in two separate cases. In the first case, on September 12, 2004, the Grand Jury indicted Crosswhite on one count of engaging in a pattern of corrupt activity, 16 counts of tampering with governmental records, ten counts of unauthorized access to a computer, three counts of possession of criminal tools, two counts of securing records by deception, two counts of theft, two counts of identity theft, and 59 counts of forgery. In the second case, on November 18, 2004, the Grand Jury indicted Crosswhite on one count of identity theft, four counts of forgery, four counts of uttering, and one count of theft. {¶ 3} At his arraignment, Crosswhite pled not guilty. After several pretrials were held, the matter proceeded to trial, with Crosswhite waiving his right to a jury. On March 3, 2005, after three days of trial, and after the state had examined its fifth witness, Crosswhite pled no contest to the indictments. On March 25, 2005, the trial court sentenced Crosswhite to a prison term of eight years in Case No. CR-454733 and 18 months in Case No. CR-458947, apparently with concurrent service. *Page 4 {¶ 4} Both cases were remanded for clarification, at which time the court also nolled count 89 (forgery) in Case No. CR-454733. The cases were appealed to this court. This court reversed and remanded, and rendered the guilty plea invalid due to the trial court's failure to provide postrelease control notification before accepting appellant's no contest pleas. State v. Crosswhite, Cuyahoga App. Nos. 86345 and 86346,2006-Ohio-1081. {¶ 5} After remand, appellant again proceeded to trial on Case No. CR-454733. Appellant alleges that the parties, including appellant's own attorney, erroneously proceeded as if he was once again facing trial on all 95 counts. However, appellee argues that appellant was, indeed, actually facing all 95 counts again, because the guilty plea had been rendered invalid. Appellant further argues that the unauthorized use counts, which had been found by the court to be first degree misdemeanors, were now being treated by all parties as fifth degree felonies. {¶ 6} During the second trial of Case No. CR-454733, appellant once again entered no contest pleas. Appellant stated that he was under the impression that the charges pending in Case No. CR-458947 should never have been brought against him because they were allegedly nolled as part of the plea agreement in Case No. CR-438480. {¶ 7} Appellant asserts that no one explained to him that the pretrial nolle in Case No. CR-438480 had been without prejudice. In addition, appellant alleges that *Page 5 everyone failed to notice that he would enter pleas not only to those previously nolled charges, but also to those nolled after jeopardy attached in the first trial in Case No. CR-454733. However, appellee argues that the guilty plea in the first trial was ruled invalid and, therefore, the nolled counts in the first trial were no longer nolled and appellant could be charged again for the same counts. {¶ 8} Appellant also argues that he was promised a four-year sentence in exchange for his plea. He then entered no contest pleas to all 95 counts of the indictment. Appellant asserts that the previously nolled counts should not have been brought in the second trial. The trial court then sentenced him to consecutive terms of four years in Case No. CR-454733 and one year in Case No. CR-458947. Appellant argues that this sentence was illegal because the court imposed only concurrent service in the original sentencing hearing. However, the original sentencing hearing was ruled invalid. Appellant now appeals. II. {¶ 9} Appellant's first assignment of error provides the following: "Appellant was subjected to double jeopardy in violation of the Fifth and Fourteenth Amendments when he was advised to and permitted to enter no contest pleas to eight felony charges previously dismissed by the state after jeopardy had attached." {¶ 10} Appellant's second assignment of error provides the following: "Appellant was subjected to double jeopardy in violation of the Fifth and Fourteenth Amendments when the trial court accepted pleas to ten fifth-degree felony charges *Page 6 of unauthorized use that had been adjudicated misdemeanors at the earlier, mid-trial plea hearing." {¶ 11} Appellant's third assignment of error provides the following: "Appellant was entitled by Criminal Rule 11 and the Fifth, Sixth and Fourteenth Amendments to receive the four-year sentence agreed upon by the court during pre-plea negotiations." {¶ 12} Appellant's fourth assignment of error provides the following: "Appellant was denied his right under the Sixth and Fourteenth Amendments to the effective assistance of counsel when defense counsel failed to protect his rights before trial during the plea and sentencing hearings." {¶ 13} Appellant's fifth assignment of error provides the following: "Appellant's sentence is invalid and an abuse of discretion because the court imposed consecutive service after remand but there was no legitimate justification for the change." III. {¶ 14} Due to the substantial interrelation between appellant's first, second, and fifth assignments of error, we shall address them together below. Appellant argues in his first two assignments of error that he was subjected to double jeopardy when he was advised to enter no contest pleas and when the court accepted pleas to felony charges that had been adjudicated misdemeanors earlier. Appellant further *Page 7 argues in his fifth assignment of error that his sentence was invalid and an abuse of discretion because the court imposed consecutive service after remand. {¶ 15} The Double Jeopardy Clause provides that no person shall be placed in jeopardy twice for the same offense. The double jeopardy protections afforded by the federal and state constitutions guard citizens against cumulative punishments for the "same offense."State v. Jackson, Cuyahoga App. No. 86506, 2006-Ohio-3165. {¶ 16} The well-established rule that once a valid sentence has been executed, a trial court has no authority to modify the sentence except as the general assembly provides is inapplicable where the trial court failed to impose postrelease control in the sentencing entry. When a court fails to perform its statutory duty of advising of postrelease control and including it as part of its sentence, the original sentenceis void because postrelease control was not properly imposed. Moreover, in such cases, the sentencing court on remand is not modifying the sentence but is correcting a statutorily incorrect sentence. State v.Ramey, Franklin App. No. 06AP-245, 2006-Ohio-6429. {¶ 17} A trial court, in correcting a statutorily incorrect sentence,does not violate a defendant's constitutional guarantee against doublejeopardy. An invalid sentence may be corrected although the defendant began to serve the invalid sentence. State v. Ramey, Franklin App. No. 06AP-245, 2006-Ohio-6429. *Page 8 {¶ 18} Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.State v. Beasley (1984), 14 Ohio St.3d 74. {¶ 19} Appellant argues in his first and second assignments of error that the resentencing subjected him to double jeopardy in violation of the Fifth and Fourteenth Amendments. In Beasley, the court expressly held that the trial court, in correcting a statutorily incorrect sentence, does not violate a defendant's constitutional guarantee against double jeopardy. Id. at 76. Beasley held that an invalid sentence may be corrected although the defendant began to serve the invalid sentence. State v. Bush (Nov. 30, 1999), Franklin App. No. 99AP-4, citing State v. Jones (Mar. 18, 1999), Franklin App. No. 98AP-639. {¶ 20} Further, following a review of federal authorities addressing double jeopardy implications in resentencing, the court in State v.McColloch (1991), 78 Ohio App.3d 42, 603 N.E.2d 1106, concluded that a defendant's commencing to serve his sentence does not negate the holding in Beasley. McColloch at 44. The court held that "an invalid sentence for which there is no statutory authority is * * * a circumstance under which there can be no expectation of finality" to trigger the protections of the Double Jeopardy Clause. Id. at 46. {¶ 21} The trial court in this case was statutorily required to impose a mandatory period of postrelease control. Here, appellant was previously sentenced at the trial court and then appealed to this court in State v. Crosswhite I. In the *Page 9 results of that appeal, this court found that the trial court had failed to adequately inform appellant that he would be subject to a mandatory five-year period of postrelease control. The trial court's failure to adequately notify appellant of his postrelease control rendered his sentence void. {¶ 22} Because jeopardy did not attach to the void sentence, the trial court did not violate defendant's constitutional guarantee against double jeopardy in later correcting the sentence. {¶ 23} Appellant argues in his fifth assignment of error that his sentence was an invalid abuse of discretion. "[A] presentence motion to withdraw a guilty plea should be freely and liberally granted. Nevertheless, it must be recognized that a defendant does not have an absolute right to withdraw a plea prior to sentencing." State v.Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715. We review presentence motions to withdraw guilty pleas for an abuse of discretion. Id. {¶ 24} Ordinarily, the trial judge has discretion whether to impose consecutive or concurrent sentences. State v. McCool (1988),46 Ohio App.3d 1, 3; State v. Johnson (1978), 57 Ohio App.2d 263, 269. {¶ 25} Although it is not required in this case, the evidence demonstrates that the trial court provided substantial rationale as to why it imposed consecutive service. The trial court stated that the two cases are separate and distinct events. "THE COURT: * * * Because these are separate and distinct events, in Case Number 458947, it is to be served *Page 10 consecutive to Case Number 454733. Credit for time served. Mr. Butler." {¶ 26} The lower court had the discretion to decide whether to impose consecutive or concurrent sentences in this case, especially when the previous sentence was void in the first place. Moreover, the trial court in this case provided additional rationale in the record as to why it chose to sentence appellant with consecutive service. {¶ 27} Accordingly, we find no abuse of discretion on the part of the trial court. {¶ 28} Appellant's first, second, and fifth assignments of error are overruled. IV. {¶ 29} Appellant argues in his third assignment of error that he was entitled to receive the four-year sentence agreed upon by the court during pre-plea negotiations. {¶ 30} Crim.R. 11(C) requires a trial court to determine that a defendant understands "the maximum penalty involved." However, a rote recitation of the postrelease control notification is not required. When articulating the nonconstitutional notifications of Rule 11(C)(2)(a), such as the maximum penalty involved, the trial court need only "substantially comply" with the rule. The "substantial compliance" standard applies to nonconstitutional rights. State v. McCollins, Cuyahoga App. No. 87182, 2006-Ohio-4886. *Page 11 {¶ 31} Appellant argues that the court violated his rights to due process and a fair sentencing hearing. However, in the case at bar, the trial court never agreed to impose the sentence appellant alleges. The trial court stated the following: "Your lawyer did talk to me about that. I did indicate to him that I would consider that. But other than that, has anyone made any threats, or any promise in order to induce you, or make you enter this plea?"1 The record demonstrates that the lower court judge only stated that he would consider the issue, not agree. Moreover, the record demonstrates that appellant heard and understood everything that was said. "THE COURT: All right. Mr. Crosswhite, I still have to ask you some questions. So please answer my questions out loud. Have you heard everything that your lawyer, the Court, and the State of Ohio has had to say so far? THE DEFENDANT: Yes, I have, your Honor. THE COURT: Do you understand what we are all talking about? THE DEFENDANT: Yes, I do."2 {¶ 32} The record further demonstrates that the court considered the dialogue that the defense attorney mentioned to merely be conversation between the attorneys and not some binding promise on the court's part. *Page 12 "THE COURT: All right. The four years was something that was talked about between you and the State of Ohio, but before trial, correct? MR. BUTLER: That's correct. THE COURT: Okay. MR. GUTIERREZ: Well, judge, it was actually five years judge that I was talking about. That's the offer that was on the plea. THE COURT: There [were] various conversations back and [forth]. I was not part of the conversations. All right. Mr. Crosswhite, do you have anything further to say in your own behalf other than what's contained in your original presentence report, or what was contained in any of the transcripts? THE DEFENDANT: No, your Honor."3 (Emphasis added.) {¶ 33} Appellant argues that he was certain that he was getting a sentence of four years total if he entered into a plea when he did. Appellant cites page 222 of the transcript to support this claim. However, a review of the transcript shows appellant's attorney merely stated that it was his understanding that the court was only going to consider the four years in Case No. CR-454733. "MR. BUTLER: Judge, I guess his hesitancy is that I have informed him that the Court would consider a four-year sentence as it relates to this matter. THE COURT: Under 454733? MR. BUTLER: Right."4 (Emphasis added.) *Page 13 {¶ 34} In addition, we find appellant's arguments that Santobello v. New York (1971), 404 U.S. 257,262, applies to be misplaced. Santobello involves a promise or an agreement by a prosecutor, while the case at bar involves the court. Moreover, a review of the record demonstrates that there was no promise or agreement in this case. The court merely said that it would consider the sentence. It was unreasonable for appellant to rely on this statement. We find appellant's argument to be without merit. {¶ 35} Appellant's third assignment of error is overruled. V. {¶ 36} Appellant argues in his fourth assignment of error that his counsel was ineffective. The Ohio Supreme Court held in State v.Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, at syllabus, in a petition for postconviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. See State v. Calhoun (1999),86 Ohio St.3d 279, 283, 714 N.E.2d 905, 910. {¶ 37} In Calhoun, the Ohio Supreme Court followed the test set forth by the United States Supreme Court for evaluating the allegation of ineffective assistance of counsel. *Page 14 "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington (1984), 466 U.S. 668, 687. In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is `whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.' State v. Hester (1976), 45 Ohio St.2d 71, 74 Ohio Op.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. When making that determination, 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 Ohio Op.3d 495, 498, 358 N.E.2d 623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154." Calhoun, supra, at 289. {¶ 38} "Ineffective-assistance claims are evaluated in a two-step process. First, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.' Strickland v. Washington (1984),466 U.S. 668, 688, 104 S.Ct. 2052, 2064,80 L.Ed.2d 674, 693. Second, `the 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 694,104 S.Ct. at 2068, 80 L.Ed.2d at 698." State v.Keenan, 81 Ohio St.3d 152, 1998-Ohio-459. *Page 15 {¶ 39} It is the defendant's burden to prove the ineffectiveness of his counsel, as in Ohio properly licensed attorneys are presumed to be competent. State v. Jackson, supra, at 111; State v. Calhoun, supra, at 289. {¶ 40} In applying the two-step process, we find that appellant has failed to establish that the assistance of his retained counsel fell below an objective standard of reasonableness and there is a reasonable probability that, but for his retained counsel's unprofessional errors, the result of the proceeding would have been different. Appellant argues in his brief that the trial court made promises of a reduced sentence of four years. However, a thorough review of the transcript and evidentiary materials demonstrates that the court only viewed the dialogue as discussions between the state and the defendant and not as any promises, as appellant alleges. {¶ 41} Accordingly, appellant's fourth assignment is overruled. It is ordered that appellee recover from appellant the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. 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. *Page 16 1 Tr. 223-24. 2 Tr. 222. 3 Tr. 244. 4 Tr. 223. ANN DYKE, J., CONCURS IN JUDGMENT ONLY; MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION

2018-10-22 08:32:28.030455+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=37409&Index=%5c%5coca%2dpsql12%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa08%5cOpinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § JESUS SALGADO NANEZ, No. 08-18-00071-CV § Appellant, Appeal from § v. 394th District Court § PALOMA NANEZ, of Brewster County, Texas § Appellee. (TC # 2016-06-B0886) § MEMORANDUM OPINION Jesus Salgado Nanez has filed a motion to dismiss his appeal. See TEX.R.APP.P. 42.1(a)(1). We grant the motion and dismiss the appeal. Costs of the appeal are taxed against Appellant. TEX.R.APP.P. 42.1(d). October 17, 2018 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Palafox, JJ.

2013-10-30 07:25:48.76776+00

646 So. 2d 461 (1994) Michael J. DUPRE v. INSURANCE COMPANY OF NORTH AMERICA, McDermott Incorporated, et al. No. 93-CA-2125. Court of Appeal of Louisiana, Fourth Circuit. November 17, 1994. Writ Granted March 10, 1995. *463 William S. Watkins, St. Martin, Lirette, Shea & Watkins, Houma, for plaintiff/appellee. Kenneth H. Laborde and Gina S. Montgomery, Pulaski, Gieger & Laborde, New Orleans, for defendants-appellants. W. Richard House, Jr., House, Golden, Kingsmill & Riess, New Orleans, for defendant/appellant, McDermott Inc. Before SCHOTT, C.J., and WARD and LANDRIEU, JJ. SCHOTT, Chief Judge. Plaintiff, an employee of McDermott Incorporated, was injured aboard a barge owned by McDermott. He was sitting on a small aluminum boat near the barge's helicopter pad when a helicopter owned by International Helicopter Transport, Inc. (IHT) landed on the pad and stirred up enough wind to upset the small boat injuring plaintiff. After a bench trial the court rendered judgment in favor of plaintiff for $734,005.00 and allocated 25% of the fault to McDermott and 75% to IHT. In a separate judgment the court also cast IHT for 75% of the maintenance and cure payments made by McDermott to plaintiff. IHT and McDermott have appealed challenging both the allocation of fault and quantum. McDermott answered IHT's appeal of maintenance and cure. In addition to these issues, IHT also contends that the trial court erred in allowing plaintiff to waive the jury he originally requested. On June 19, 1988, plaintiff and several other McDermott employees were on the barge awaiting a work assignment. They were near the office which was located beneath a helicopter pad. The pad was about forty feet above the deck where the men were waiting. Earlier in the day some other personnel had placed a small aluminum boat on the deck and turned it upside down after removing the motor from the boat. As the waiting employees gathered near this boat which was now upright, plaintiff sat on it. At this time an IHT helicopter transporting personnel to the barge was attempting to land on the helicopter pad. At first it was prevented from doing so because of a crane located near the pad. Since the helicopter had no means of communicating with the barge, it returned to a base on shore where someone from the helicopter contacted the *464 barge by telephone. The helicopter returned to the barge and, after circling around for a few minutes, landed on the pad. As it landed, the wind generated by the helicopter's rotating blades upset the small boat on which plaintiff was sitting with the result that he was injured. In extensive oral reasons for judgment, the trial court found that McDermott was at fault for failing to secure the boat and IHT was at fault because the helicopter landed with a tail wind. The court exonerated the plaintiff because he was free to be in the area where he was waiting for his work assignment. Before considering the arguments by McDermott and IHT that these findings are clearly wrong, we first consider a procedural argument by IHT with respect to the court's permitting plaintiff to waive the jury and opt for a bench trial. Plaintiff filed suit on May 9, 1989, and demanded a trial by jury. The case was scheduled for trial on November 9, 1992, but was continued. On December 1, plaintiff filed a supplemental petition in which he designated his suit as an admiralty and general maritime law claim pursuant to LSA-C.C.P. art. 1732(6). Pursuant to plaintiff's motion, the trial court on December 16 struck his jury demand. IHT moved to set aside the orders permitting the filing of the supplemental petition and striking the jury demand. After a contradictory hearing the court denied these motions. IHT assigns error in the trial court's ruling allowing plaintiff to supplement his petition to designate his claim as an admiralty claim pursuant to art. 1732(6) and granting his motion to strike the jury. IHT argues that it was entitled to a contradictory hearing on the motion to file the supplemental and amending petition and it was prejudiced because the trial judge pre-judged the case on the basis of statements made by counsel at pretrial conferences when everyone was anticipating a jury trial. The plaintiff alone has control over whether his admiralty case is to be tried to a judge or jury; he need not make this designation at the inception of the case, but he may supplement his petition in order to choose a bench trial over the jury. C.C.P. art. 1732(6); Parker v. Rowan Companies, Inc., 599 So. 2d 296, 299, 300 (La.1992). With respect to the filing of the supplemental and amending petition in which plaintiff designated his suit as a maritime or admiralty claim so as to waive the jury, there was no requirement for a contradictory hearing before the amendment was filed. C.C.P. art. 1151 requires only leave of court for an amendment. As to IHT's claim of prejudice by the judge because of the free discussion of the issues by the parties at the time they were anticipating a jury trial, the record does not support this contention because there is no transcript of these discussions. Furthermore, the other parties dispute IHT's impressions of these discussions. In any event, since plaintiff had an absolute right to designate his claim pursuant to art. 1732(6), he could not be deprived of that right because of some perceived prejudice on the part of the judge. Once plaintiff opted for a bench trial, IHT's remedy regarding the allegedly biased judge was to move to recuse her before she tried the case. The case was not tried until five months after it was designated for a bench trial. Consequently, IHT had adequate time to adjust its trial strategy for a bench trial and to take any action it deemed appropriate including recusation of the judge. Having concluded that this procedural assignment of error by IHT is without merit, we turn to the court's allocation of fault which is disputed by IHT as well as McDermott. The trial court's finding of fault on the part of McDermott is not clearly wrong. The record established that McDermott had a duty to secure the little boat; it breached this duty, and this breach was a cause in fact of the accident. Everyone knows that a helicopter, when landing or taking off, generates a great deal of wind on the ground so that loose objects are blown about. This was McDermott's barge, its helicopter pad, its little boat, unsecured and next to the pad, and its employees standing around. Bill Hunter, the barge superintendent, testified that the boat should not have been left unsecured on an open deck when it was not in use. Floyd Cook, an engineer employed by McDermott, had used the boat with some *465 other employees the day of the accident. When they finished with it, they removed the motor and turned the boat upside on the deck. He stated that he told the barge foreman to move the boat and the foreman said he would move it as soon as he could. When the accident happened later on, the boat was in the same place, but was upright with plaintiff sitting on it. The burden of proof on the plaintiff to establish fault against his employer in an action based on general maritime law and the Jones Act is very light. Landry v. Two R. Drilling Co., 511 F.2d 138 (5th Cir.1975). We find no error in the trial court's conclusion that plaintiff carried this burden as against McDermott. With regard to IHT, the record readily demonstrates that the trial court's allocation of any fault to IHT was clearly wrong. In extensive oral reasons for judgment, the trial judge reduced the finding of IHT's fault to the failure of the helicopter pilot to land against the wind or across the wind instead of landing with the wind. There was much testimony that more wind on the ground, "rotar wash", is generated when the helicopter lands with the wind. While the record is not at all clear on this point, the trial court found that the pilot did land with the wind and we may accept this finding for purposes of this discussion. McDermott produced as a witness Jesse Stonecipher, an aircraft accident investigator, who opined that the accident was due to the helicopter pilot's failure to see the small boat and the men on the deck. He further opined that the pilot's failure to avoid directing the rotor wash of the helicopter toward the boat constituted negligence. He stated that the pilot should have avoided a downwind approach and that the pilot should have seen that the boat on the deck was unsecured. This accident did not happen because there were men on the deck below the helicopter pad. It happened because there was a loose boat on the deck. It is absurd to expect a helicopter pilot landing on a pad forty feet above the deck of a barge to see that a small boat on the deck is unsecured. The pilot's attention must be focused upon making a safe landing, not upon determining whether small objects on the deck are secured. As to Stonecipher's assertion that the pilot was negligent for failing to see people on the deck, this presupposes a duty not established in this record that a helicopter pilot may not land on a pad when people are on the deck below the pad. In any event, the trial judge's conclusion of fault on the part of the pilot was based on his downwind approach to the pad. While the record shows that more wind would be generated on the ground in a downwind approach than otherwise, it does not contain any evidence that an approach against or across the wind would have prevented the boat from being upset. In other words, the record does not offer any support whatsoever for the trial court's conclusion that the pilot's failure to make the proper directional approach was a cause of the accident. In the final analysis, McDermott was in full charge of this operation. Its personnel, including plaintiff, were well aware that helicopters would be landing on the pad and that objects should be secured on the deck so as not to be blown around by the wind from the helicopters. The only breach of duty attributed to the pilot by the trial judge was landing in the wrong direction. If this was a dereliction at all, there is no evidence that this was the cause of the accident. Consequently, the judgment insofar as it allocates fault to IHT is to be reversed. The remaining issue on liability is McDermott's claim of comparative negligence on the part of plaintiff. The trial court gave the following reasons for finding no negligence on the part of plaintiff: With regard to Mr. Michael Dupre in terms of assessing his negligence, he was waiting around near the office of the derrick barge, which was located immediately under the helipad, there was nothing to suggest any negligence on his part since he was told to stand by. The supervisor for the welders was in the office, which is located immediately under the helipad. There was no requirement that the welders be in any particular area, although the boom shop for welders was located immediately under the crane These employees, *466 namely welders, were not restricted to certain areas of the barge and for that reason the Court can find no negligence on the part of Mr. Dupre. These reasons do not address the duty plaintiff had to take care of himself. They establish that he was not under any duty to be where he was, in the position he was in, when the accident happened. On the contrary, they readily demonstrate that he voluntarily placed himself in a hazardous situation which led to the accident. Consequently, the trial court's conclusion of no negligence on the part of plaintiff for the reason given is manifestly erroneous. The record clearly demonstrates comparative fault on plaintiff's part. He had been doing this type of work and had experience with helicopters' landing nearby for seven and one-half years. He was sitting on this loose boat with his legs dangling over the side as the helicopter approached to land. Although he testified that he thought the boat was stable and presented no danger to him, the fact is that the wind from the helicopter turned the boat up or over while he sat there. The only conclusion that can be drawn from these circumstances is that he should have known he had placed himself in a dangerous position; he had a duty to take care of himself, and he breached this duty. We have concluded that fifty percent of the fault for the accident is attributable to plaintiff. McDermott next contends that the quantum of damages is excessive. The trial court awarded the following amounts to plaintiff: Past physical and mental pain and suffering, disability and impairment. $150,000.00 Future physical and mental pain and suffering, disability and impairment 150,000.00 Past medical and pharmaceutical expenses 58,922.00 Future medical and pharmaceutical expenses 15,000.00 Past wage loss 75,199.00 Future wage loss 284,884.00 ____________ TOTAL $734,005.00 In reasons for judgment the trial judge found that plaintiff sustained injuries to his back and neck with the principal injury to his cervical spine which eventually resulted in a three level cervical fusion performed by Dr. Stewart Phillips. The court based the award for lost wages on the testimony of Dr. George Rice, an economist, and the premise that plaintiff is absolutely unemployable because of physical limitations resulting from the accident. McDermott argues abuse of discretion by the trial court in the amount of the awards. More particularly, it contends that plaintiff failed to prove causal connection between the accident and his back problems or his neck surgery, failed to establish the necessity for the surgery, and failed to prove he was totally disabled. Thus, the challenge to the award is not that it is excessive per se, but that the factual basis for the award is not supported by the evidence. Therefore, in the exercise of appellate review, it becomes our duty to consider all of the medical and lay evidence on these questions and determine whether the findings of the trial court are clearly wrong. Ambrose v. New Orleans Police Amb. Serv., 639 So. 2d 216, 220 (La.1994); Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978). Della Dupre, plaintiff's wife of eleven and one-half years, testified that before the accident her husband was actively involved in the parenting of their daughter and participated with her in household duties as well as recreational activities such as fishing and hunting, but after the accident he complained of nerve and back pain, withdrew from all activities with her, often cried and became a loner. She accompanied him to see Dr. Donald Judice and on the very first visit on July 19, 1988, plaintiff told him he was suffering with back pain, as well as neck pain, with the neck being the worse pain of the two. By the time of the trial in May 1993, he could not walk very well because of his back, but "his neck [was] doing great." Plaintiff testified that when the helicopter came over him as he sat in the little boat he was thrown against a handrail. His head hit the handrail and then he felt the boat hit him in the back of the head. He was taken below deck and then to a hospital by helicopter where he remained for two to three hours. He was treated by Dr. Michael Heck for a *467 short time until he began seeing Dr. Judice. On the first visit he complained about his back and neck, but Dr. Judice decided to treat the neck only. He was treated by Dr. Judice until April 1989. Asked to describe the various problems he had from the accident, plaintiff said he gets bad headaches and shoulder pain, back and right hip pain causing him to limp, and numbness in his legs. These conditions have persisted from the time of the accident. Since the neck surgery, he no longer has headaches and has only some stiffness in the neck in the morning. He broke his hand in September 1988 when he lost his temper and punched the wall. On two other occasions he also injured himself. He reported his back pain to Dr. William Kinnard in October 1988 as well as to Dr. Judice. He was suffering with neck pain constantly from June 1988 and told Dr. Phillips about it on every visit. Dr. Michael J. Heck reported as follows: On June 20, 1988, the day after the accident, plaintiff was seen in his office. He was wearing a soft cervical collar and was complaining of neck pain radiating into the left arm. Heck diagnosed a cervical strain with radicular complaints which he treated conservatively. The following week Dr. Heck recommended an MRI because of continuing radicular complaints. Dr. Daniel H. Johnson ran the MRI on July 2 and conveyed these impressions to Dr. Heck: 1. Abnormal bilateral posterolateral projection of disc material at the C3-4 disc space may represent fairly symmetrical bilateral herniation. 2. Lesser bilateral posterolateral disc bulging at C5-6. 3. Equivocal left posterolateral projection of disc material at the C6-7 space. Upon receiving this report, Dr. Heck recommended that plaintiff be evaluated by Dr. Judice, a neurosurgeon. Dr. Judice examined plaintiff for the first time on July 19, 1988. He complained of neck pain, but had no complaint of back pain. Judice examined him and reviewed the MRI done for Dr. Heck. Because this was abnormal, he ordered a myelogram and a CAT scan which were performed on August 9. These revealed a small bone spur between C3 and C4, but no disc herniations or nerve compression. The bone spur was not caused by the accident of June 19, but was of long standing. Because plaintiff continued to complain of so much neck pain, he ordered a nerve conduction study which was performed on August 26 and which was negative for nerve root injury. Judice recommended physical therapy and referred him to Dr. William H. Kinnard, an orthopedist, because plaintiff was complaining of shoulder pain. Judice saw plaintiff on September 26 and October 20, 1988 and concluded that plaintiff had a cervical injury which had resolved conservatively with no herniated disc or nerve root injury. In the meantime he had referred plaintiff to another neurosurgeon, Dr. Michael Carey, for a second opinion because of plaintiff's continuing complaints, and Dr. Carey reached the same conclusion as he did. On October 20, 1988, plaintiff complained of low back pain for the very first time. Dr. Judice had an MRI done on his lumbar spine on November 2 which revealed bulges at L3-4 and L4-5, but no nerve root compression. These were not caused by the accident, but were from natural degeneration. He continued to treat plaintiff conservatively until April 4, 1989, when he discharged him because he felt that there was nothing more he could do for him. Asked about the merits of a discogram as a diagnostic tool, he stated it was not a valid test; he did not accept its results, and he did not believe surgery was necessary for the plaintiff regardless of the results of the discogram done in 1991. Dr. Kinnard examined plaintiff on September 1, 1988, on referral from Dr. Judice. He was primarily interested in the shoulder complaints, but he found tenderness at C3 without spasm. He examined the X-rays and myelogram ordered by Dr. Judice which showed evidence of an osteophyte or spur at C3-4 which he thought was a degenerative condition. On September 8, 1988, he reviewed the MRI done for Dr. Heck which showed evidence of disc herniation at C3-4 and possible disc protrusions at C5-6 and C6-7. On October 13, plaintiff returned wearing a neck brace. This was the first time he complained of low back pain even *468 though plaintiff told him the back pain had been present since the accident. At this visit plaintiff also gave Dr. Kinnard a copy of an emergency room record dated September 28 showing that he had fractured his finger that day when he fell at home on his hand. Because he had not mentioned his back pain until October 13, Dr. Kinnard could not relate it to the July accident. He continued to treat plaintiff until December 1988 for the shoulder problem which he diagnosed as tendonitis. Dr. Carey, a neurosurgeon, examined plaintiff on October 6, 1988, at the request of Dr. Judice. He complained of pain in the neck and shoulders and numbness in his little finger of the left hand. He found nothing objectively wrong. He reviewed the MRI, CAT scan and myelogram and found no need for treatment for the C3-4 disc other than a collar and an orthopedic pillow. He returned on November 3 with the same complaints, but added a complaint of back pain. An examination of the neck, back, and shoulder left Carey with the impression that plaintiff had neck and shoulder pain with no neurologic basis for the pain. Because of the absence of nerve root findings, he did not consider plaintiff a candidate for surgery to the neck. He could not relate anything in his findings in October and November 1988 to the eventual surgery performed by Dr. Phillips in December 1991. Dr. Phillips, an orthopedist, first saw plaintiff on March 14, 1989, on referral by his attorney. He was complaining of neck and back pain. The cervical examination was normal and plaintiff never complained about his neck again until July 1991, even though he was seen by Dr. Phillips on numerous occasions for treatment of his back complaints. As to the back, Dr. Phillips' initial lumbar examination on March 14, 1989 disclosed muscle spasm and loss of motion. Phillips' impression was a bad disc and he ordered an MRI, a discogram, and a facet joint block. He was never able to determine where in the back the pain was coming from so he treated plaintiff's back condition conservatively through 1989 and 1990. He noted that plaintiff was developing psychological problems during this time and was aware that plaintiff was seeing Dr. Robert Ancira, a psychiatrist. By July 12, 1990, Phillips thought plaintiff was ready for rehabilitation, but when plaintiff returned on July 20 he was complaining of so much pain and was suffering with hyperventilation that Phillips ruled out the rehabilitation. Dr. Phillips continued to treat plaintiff for his back complaints during the first few months of 1991. He was not aware of an incident in 1991 in which plaintiff hurt himself while using a sledge hammer and did not think he was capable of such work. In May 1991, he ordered a myelogram and CAT scan for the lumbar spine and found it was still normal. In July 1991, plaintiff complained of neck pain for the first time since March 1989. This prompted Phillips to order another myelogram and CAT scan which showed a bulging disc at C3-4. In October he decided to have a discogram done on the cervical spine. This was done in November and showed that the discs at C3-4 and C4-5 were abnormal and producing pain. He consulted with Dr. Ancira, a psychiatrist, about performing surgery on plaintiff, and, on December 20, 1991, he performed a three level anterior cervical fusion on plaintiff. Plaintiff apparently made a satisfactory recovery from this neck surgery, but he was still under Phillips' treatment for his back at the time of the trial on May 13, 1993. He thought there was a causal relationship between the accident and plaintiff's back and neck problems. Dr. Ancira testified that plaintiff was referred to him beginning February 20, 1989 by his attorney because of a lack of objective explanation for the pain he was having. He continued to treat plaintiff and predicted that he would need psychiatric medication and therapy indefinitely. He classified plaintiff's condition as a conversion disorder which is characterized by physical symptoms that are not related to a physical cause. He noted that following the surgery on his neck plaintiff experienced a tremendous amount of relief from his cervical pain and headaches, and this had a favorable effect on his psychological well-being. Dr. Carl Culicchia, another neurosurgeon, saw plaintiff on referral by McDermott on May 4, 1989. After reviewing the file of x-rays, *469 myelogram, MRI and CAT scans, and conducting his own examination, he concluded there was a minimal structural abnormality at C3-4, a slightly bulging disc, which was unrelated to the June 19 accident because it was of a degenerative nature. There was no evidence of a neurological injury, a ruptured disc or changes in the nerve roots and spinal cord. His complaints were subjective. Surgery was not necessary and there was no need for medical or neurosurgical treatment. He thought discography was not reliable, was controversial, and was not used by most neurosurgeons. Because of the lapse of time between the accident and the surgery, he saw no causal relationship between them. Dr. Christopher Cenac, another orthopedist, saw plaintiff on referral by McDermott on July 5, 1989. On the basis of his review of the entire file of tests and his own examination, he found no objective evidence of any structural abnormality as a result of injury in plaintiff's lumbar or cervical spine. He thought there was no need for further tests and no evidence to support a need for surgery. He could not relate the surgical procedure to the accident. Dr. Richard Morvant, an orthopedist, testified that he treated plaintiff on October 7, 1988, for a fractured finger he sustained when he tripped and fell in late September. This visit was a follow-up to emergency room treatment he had right after the fall. Dr. Sherry Oyler, a chiropractor, first saw plaintiff in June 1984 with complaints of pain in his right leg and groin. He told Oyler he had neck pain about six months previously. In July 1984, he told Oyler his neck was pulling and his shoulder hurting after swinging a sledge hammer. In January 1987, he came to Oyler complaining of neck pain after falling off a catwalk, and in August and October 1984 he had complained of neck pain. In the Arceneaux case, the court specifically repudiated the practice of locating support in the record for the trial court's conclusions and ignoring the balance of the record. As reiterated in Ambrose "a proper review, therefore, cannot be completed by reading so much of a record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record established that the finding is not clearly wrong." Ambrose at 220. Dr. Phillips provided the following significant testimony: Q. Since your initial treatment of Mr. Dupre, based on what diagnostic tests did you use to reach the conclusion that he needed the surgery? A. The diagnostic test includes a physical examination, which showed muscle spasm in his neck and loss of motion, and the history of neck and arm pain. And then the MRI which showed a protruding disc, and then the discogram which showed that protruding disc was a pain generator with an irritating source where if you pressurized it you'd reproduce the pain. On the basis of that I was going to go ahead with the surgery. Q. And did your surgical result confirm or dispute your diagnosis before that? A. It confirmed it. Q. In your opinion, within a reasonable degree of medical certainty, did the injury which Mr. Dupre reported to you he suffered on board the Derrick Barge 16 in June of 1988 create the condition in his cervical spine for which you operated? A. Yes, given history that Mr. Dupre gave me I think that he did indeed injure his neck at the time of the derrick barge accident, and that was the triggering thing that caused the discomfort in his neck. Q. Same question as to the lumbar spine, within a reasonable degree of medical certainty based on the history and your testing and treatment, did that incident also cause the symptoms and problems for which you are treating him in this lumbar spine? A. Yes. This testimony certainly supports the conclusions that surgery was necessary and the condition which made it necessary was caused by the accident. It also supports the conclusion that the back problem was caused by the accident. If we were to employ the technique condemned in Arceneaux and Ambrose, we *470 could simply affirm the judgment based upon the extracts quoted above from two pages of transcript and ignore the 800 or so other pages. But our task is not that simple. In Ambrose, 639 So.2d at 220, the court quoting Arceneaux, had this to say: A proper review, therefore, cannot be "completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record established that the finding is not clearly wrong." (Emphasis supplied) We have complied with the Supreme Court's directions by meticulously reviewing the testimony of numerous physicians as well as the entire transcript of Phillips' testimony. Having done so, we cannot make the determination that the finding of the trial court is "not clearly wrong." In other words, we have concluded that the finding of causation by the accident of the neck condition and ultimate surgery was clearly wrong. Our explanation for this conclusion follows. Long before the accident on June 19, 1988, plaintiff had neck problems. He complained to his chiropractor, Dr. Oyler, about his neck as early as June 1984, continued to have these complaints throughout that year, and was back again in January 1987 with neck complaints. The MRI taken shortly after the accident showed an abnormal disc at C3. While this was thought to be a herniation by Dr. Johnson who ran the MRI and Dr. Kinnard the orthopedist, Dr. Judice who was plaintiff's treating physician for eight months and a neurosurgeon thought it was a bone spur that took years to form; it was not a herniation, and there was no nerve root compression. This interpretation was shared by two other neurosurgeons, Drs. Carey and Calicchia, and an orthopedist, Dr. Cenac. But Dr. Judice did not ignore plaintiff's continuing complaints by any means. He had a myelogram and CAT scan done which told him again there was a bone spur of long standing at C3-4, but no other disc herniations. As plaintiff continued to complain, Dr. Judice "still wondered if it was possible that he had a nerve root injury." (Tr. pages 424-425). He ordered an EMG and nerve conduction studies. This disclosed no cervical nerve root injury. On September 26, he reached the conclusion on the basis of all these tests that plaintiff had suffered a muscular skeletal injury which had resolved conservatively. In a final effort to find a good reason for plaintiff's continuing complaints, he referred plaintiff to Dr. Carey for a second opinion which was entirely consistent with his own. The next time plaintiff came to Dr. Judice was on October 20, 1988, the visit during which he made his very first complaint of low back pain now four months after the accident. Over the next few months, Dr. Judice's attention shifted to plaintiff's back complaints, and in January plaintiff was complaining more of shoulder pain for which he was referred to Dr. Kinnard for treatment. When Dr. Judice saw plaintiff on February 14, 1989, he was in active physical therapy and Judice told him he would soon discharge plaintiff. On his last appointment with Judice on April 4, 1989, plaintiff was complaining of pain in his neck, back, left leg and left arm, but Judice could find "no evidence of objective injury." (Tr. p. 432). At this point in time plaintiff had begun to see Dr. Stuart Phillips whom he had gone to on March 14, 1989. Phillips described this as an examination for "a 4th or 5th opinion because.... no one has been able to make a specific diagnosis." (Tr. p. 138). Phillips said his cervical examination was "basically normal", but the lumbar examination was abnormal. The most astounding aspect of the testimony of Dr. Phillips is his finding of a normal cervical spine at this time and no further complaints by plaintiff of neck pain until July 1991 which was twenty-eight months later. On direct examination Dr. Phillips stated that in January 1991 plaintiff was complaining of shoulder pain, arm pain and neck pain, but he stated on cross examination that there was no entry in his record of the January 15, 1991 visit of neck complaints. When pressed about the absence of any reference to the neck during this twenty-eight month period, he explained, "There were generalized complaints, but nothing that I specifically noted *471 about the neck." No matter what spin is put on this testimony, the only fair interpretation is that Dr. Judice was right when he discharged plaintiff; the aggravation of plaintiff's old pre-accident neck condition had been cured and the neck was no longer a problem until it suddenly returned in July 1991, now over three years after the accident and after being dormant for at least twenty-eight months. It would strain the credulity of any reasonable fact finder to find causation for plaintiff's sudden return of a neck problem by the accident of so long ago. Except for the isolated opinion of Dr. Phillips quoted above on causation, there is no explanation by him or any one else how this could be. Asked whether the neck condition in July 1991 could have been caused by something other than the June 1988 accident Dr. Phillips said, "Anything is possible." Asked about the significance of plaintiff's trips to the chiropractor for his neck in 1987, he simply denied any knowledge of what the chiropractor found. Further pressed, Dr. Phillips stated that plaintiff had a history of intermittent headaches and several occasions of neck pain during this long period of time, even though his records did not reflect this. (Tr. p. 181). When plaintiff again began complaining about his neck, Dr. Phillips focused his attention on this problem. None of the many tests he ran confirmed the need for surgery until the discogram was done. Phillips' attitude about the discogram and the surgery was pragmatic. The surgery confirmed the disc so the discogram worked; plaintiff was free of pain after the surgery, so it worked. Notwithstanding Phillips' opinion, based upon the testimony of the neurosurgeons the evidence is clear that a discogram is a controversial and questionable procedure because it relies upon the subjective reaction of a patient to pressure applied to the spine in order to determine whether pain is produced. Furthermore, even in retrospect, neither of the neurosurgeons nor Dr. Cenac thought the surgery was necessary for the condition they saw in plaintiff's neck all the way until July 1989, and not one physician in the case other than Dr. Phillips would causally relate the neck condition and surgery in late 1991 to the accident. One final point on this issue is significant. Plaintiff testified that he told Dr. Phillips his neck was hurting throughout the period he was seeing him and could not explain why it wasn't recorded. He likewise insisted that he told Drs. Judice and Kinnard about his back pain on his first visits with them, but could not explain why they didn't record it. Based upon the foregoing, we have concluded that the finding of the trial court that plaintiff's surgery was the result of the accident is clearly wrong and this error led to an abuse of the trial court's discretion in the award of damages. Although a portion of the award may have been attributable to back pain and other injuries, it is clear from the trial judge's reasons that the award of general damages was primarily for the neck. Consequently, a substantial reduction of the $300,000 general damages award is warranted. Having dealt with plaintiff's neck problems, we must now consider his back problems. McDermott raised the issue of the award of $284,884 in future lost income which the trial court based upon the testimony of Dr. Rice. This testimony is likewise manifestly erroneous because there is no evidence in record to support it. Dr. Rice is an economist, not a physician. He hypothesized that plaintiff was totally disabled and unemployable, and he generated the future lost income figure taken by the trial judge on the supposition that plaintiff would never be able to earn a penny. The medical testimony does not support this. Dr. Phillips did not quantify plaintiff's disability and did not characterize plaintiff's back problems as totally disabling. Once plaintiff started with his neck problem in July 1991, the back was virtually forgotten. In the meantime, none of the other physicians testified that he was disabled. Plaintiff produced a vocational rehabilitation specialist, Glen Hebert, who ruled out any type of intellectual work or paperwork because plaintiff is a functional illiterate, but he thought plaintiff could perform some light to medium physical work. He stated that the skills plaintiff has require physical work which he *472 cannot do based upon the depositions and reports about plaintiff. Of course, this calls into question the entire testimony of this witness because the record does not show just what medical or disability problems he attributed to the back or neck or both. In any event, this witness based his opinion of plaintiff's unemployability on the premise that he didn't think anybody would hire him. However, he did not actually look for employment for plaintiff. On the other hand, another vocational rehabilitation counselor, Larry Stokes, had a different view. When he saw plaintiff in March 1992, Dr. Phillips indicated some physical restrictions including no lifting over 50 pounds at one time or 25 pounds repetitively, no looking up and back, no working with arms overhead, no bending or stooping repetitively. Stokes performed a labor market survey and found that jobs were available to someone like plaintiff and these come open from time to time. In these jobs such as security guard, pizza delivery person, or video rental clerk, he can earn a minimum of $5 per hour. Stokes saw plaintiff in March 1992 and had the benefit of Dr. Phillips' opinion allowing some work. Plaintiff's witness, Glen Hebert, saw plaintiff in October 1991 when he was at the height of his neck problem. In fact this visit was sandwiched between cervical facet blocks and discography done at Phillips' request on September 25 and October 23, 1991. All of the plaintiff's witnesses, including himself, his wife, and Dr. Phillips, said he was much better off after the surgery in December. Consequently, Stokes' opinion is far more helpful and reliable than Hebert's. Returning to the opinion of Dr. Rice which the trial judge accepted, it is seriously flawed for these reasons: 1) It presupposes that all of plaintiff's problems, including the neck, were caused by the accident; 2) It rests on no medical testimony, but on that of Glen Hebert whose opinion was also fatally flawed; 3) It presupposes that plaintiff cannot earn anything for the rest of his life. Rice testified that plaintiff's loss of future earnings, if he can earn $5 per hour, would be $100,061 instead of $284,884. The conclusion that he cannot earn $5 per hour is manifestly erroneous. The last question which must be addressed is whether plaintiff is entitled to compensation for his back problem. From the trial court's reasons we do not believe a significant amount was included for the back. We know from the record that plaintiff did not complain to Dr. Judice, his treating physician, about his back until four months after the accident. Dr. Morvant testified that plaintiff told him that he fell down at home shortly before he made this complaint. Dr. Judice was asked how likely is it for a person to experience both neck and back pains from the same accident and he responded that after a very active practice in neurosurgery for thirteen years he's seen it only twice, so the likelihood is very slight. (Tr. p. 429). Returning to the general damage award, plaintiff is entitled to damages for pain and suffering resulting from the aggravation of a pre-existing degenerative condition in his cervical spine which for the most part had resolved in March 1989, a total of nine months. Since the trial judge included some amount in her award for back pain, we would include something for the minimal amount of back pain that can be attributed to this accident. We would also include in the award some damages for psychological injury based upon the testimony of Dr. Ancira. We conclude that an award of $75,000 would adequately compensate plaintiff for the general damages resulting from the accident. As to lost wages, the trial court's awards are based upon findings that plaintiff is totally and permanently disabled and the accident caused this disability. For the reasons stated herein, these findings are clearly wrong. Considering that he did sustain some injuries which initially prevented him from being employed and which may detract from future employment potential and that he is left with a psychological problem, we reduce the awards for past and future wage losses to $25,000. We do not award any amount for medical expenses since McDermott as plaintiff's employer paid the past expenses and is obliged to continue to provide him with medical care required by this accident. *473 Accordingly, that portion of the judgment in plaintiff's favor and against International Helicopter Transport, Inc. is reversed and set aside and plaintiff's suit against this defendant is dismissed; that part of the judgment in plaintiff's favor and against McDermott Incorporated is amended to allocate fifty percent of the fault each to plaintiff and McDermott; the judgment on the main demand is otherwise affirmed, but is amended to be in favor of plaintiff and against McDermott for a total of $50,000 plus interest and costs. All cross claims are dismissed. REVERSED IN PART, AMENDED IN PART, RENDERED.

2016-07-06 06:36:38.061003+00

JOURNAL ENTRY and OPINION Plaintiff-appellant Timothy D. Golden appeals from the decision of the trial court denying his motion for attorney fees. For the reasons below, we affirm. On June 21, 1999, defendant-appellee the Bay Village Police Department confiscated fourteen handguns, shotguns, and rifles from Golden's home pursuant to a temporary protection order issued in connection with an allegation of domestic violence. On September 29, 1999, the domestic violence charge against Golden was dismissed; accordingly, the temporary protection order was dissolved. On October 6, 1999, Golden went to the Bay Village police and demanded the return of his weapons. He was advised that he would need to obtain a directive from the chief of police for release of the weapons. Thus, on January 31, 2000, he wrote a letter to the chief requesting such a directive. On February 24, 2000, the chief advised him that he would need a court order for the release of the weapons and advised him to file a replevin action. Golden did not take any further action. Then on May 22, 2000, the police department notified him that his weapons would be destroyed unless he secured a replevin order. Golden commenced the replevin action on July 21, 2000. On October 19, 2000, a pretrial hearing was held and the police department agreed to an order returning the firearms to Golden. On October 19, 2000, a journal entry was signed by the magistrate which granted the replevin and ordered the parties to submit briefs on the issue of attorney fees. On November 17, 2000, the trial court denied Golden's request for attorney fees. Golden appeals, raising the following assignment of error: I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT TIMOTHY GOLDEN'S REQUEST FOR AN AWARD OF ATTORNEY FEES SINCE DEFENDANT ACTED IN BAD FAITH IN FAILING TO RETURN PLAINTIFF-APPELLANT TIMOTHY GOLDEN'S PROPERTY TO HIM FOLLOWING THE DISMISSAL OF HIS UNDERLYING CRIMINAL CHARGES. Golden argues that he is entitled to attorney fees because the police department required him to obtain a court order prior to releasing his weapons. The Supreme Court of Ohio has held that as a general rule, a prevailing party may not recover attorney fees as costs of litigation in the absence of statutory authority unless the opposing party has acted in bad faith, vexatiously, wantonly, obdurately or for oppressive reasons. Gahanna v.Eastgate Properties, Inc. (1988), 36 Ohio St.3d 65, 66, 521 N.E.2d 814. Here, Golden recovered his property by pursuing a replevin action against the police department. Although the replevin statute, R.C. 2737.14, does provide an award of damages if proximately caused by the detention of the property by another, "[a]rguably, [it] does not authorize the recovery of attorney fees, as it does not explicitly mention such a recovery." See Russell v. Smith (1992), 81 Ohio App.3d 784, 787 (finding in favor of attorney fees on other grounds, the Russell court did not decide whether R.C. 2737.14 specifically provides for the recovery of attorney fees.) Thus, we review a trial court's decision regarding the grant or denial of a motion for attorney fees under an abuse of discretion standard. SeeSmith v. Padgett (1987), 32 Ohio St.3d 344, 349, 513 N.E.2d 737. An abuse of discretion implies an attitude on the part of the trial court that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. In the instant matter, the trial court did not err in denying Golden's request for attorney fees in his replevin action. Pursuant to the temporary protection order, the police were not permitted to return Golden's property "until further court order." Thus, Golden was on notice that a court order was necessary to recover his property from the police. Accordingly, at all times, the onus was on Golden to seek the necessary court order for the release of his property. The fact that the temporary protection order was dissolved is of no consequence. The police department confiscated the weapons pursuant to court order; thus, it was reasonable for the police not to return the property unless instructed to do so by the court. When the temporary protection order was dissolved, Golden or his counsel could have immediately requested that the court release the confiscated weapons. Golden's failure to make such a request to the trial court in the domestic violence case does not amount to bad faith on the part of the police which would warrant the award of attorney fees. Furthermore, the police department acted reasonably when it recommended that Golden pursue a replevin action to obtain his property. Because the criminal case had been dismissed months earlier, pursuing a replevin action was a reasonable alternative to recover the property. The record does not support a finding that the police department was acting in bad faith when it failed to return Golden's property without a court order instructing it to do so. Accordingly, we find that the court did not abuse its discretion in denying Golden's request for attorney fees because such fees were inappropriate in the case at bar. Thus, we affirm. 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 Rocky River 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. DIANE KARPINSKI, A.J. and ANNE L. KILBANE, J. CONCUR

2016-07-06 06:36:38.117092+00

OPINION Appellant/Cross-Appellee, Delores M. Karnofel ("Karnofel"), appeals a decision of the Niles Municipal Court granting her judgment in the amount of $250 plus costs for an "ill-fitted" haircut she received from appellee/cross-appellant, Ron Watson ("Watson"), on March 1, 1999. Watson has also filed a cross-appeal. The following facts, as set forth in the parties' App.R. 9(C) statement, and approved by the trial court, are relevant for a determination of this appeal. Karnofel went to the beauty salon located within the Kaufmann's department store inside the Eastwood Mall in Niles, Ohio, on March 1, 1999, to have her hair cut. Karnofel was a walk-in customer and was referred to stylist Watson. Watson trimmed Karnofel's hair, then gave her the opportunity to examine it. She instructed him to cut more hair. Watson complied with her request, then gave her another opportunity to look at her hair. She did not complain at that juncture. Karnofel then sat under the hair dryer and, according to Watson, she "messed" with her hair while under the hair dryer resulting in a much fuller appearance. Once her hair was dry, Karnofel was dissatisfied with her appearance and complained about her hair cut. As a result, she was not required to pay the $14 fee normally charged for a haircut. Karnofel later called the salon to complain to the shop manager. On March 5, 1999, Karnofel filed a small claims complaint in Niles Municipal Court against Watson alleging an "ill-fitted" haircut. She sought a judgment in the amount of $3,000. A hearing was held by the trial court on April 12, 1999. On April 13, 1999, the trial court entered judgment in favor of Karnofel in the amount of $250 plus costs. Karnofel timely filed a notice of appeal and Watson timely filed a notice of cross-appeal. Karnofel, acting pro se in this matter, has filed her own appellate brief but has failed to articulate any assigned errors in violation of App.R. 16(A)(3) and Loc.R. 12(B) of the Eleventh District Court of Appeals. Watson has set forth a single assignment of error: "The court erred by awarding extra-contractual damages in a case where Plaintiff alleged she received a poor haircut at Defendant's hair salon but did not allege or produce evidence of a tort or an injury that would constitute damages for purposes of tort or contract law." While Karnofel has failed to identify any particular assignment of error, in her argument, it is clear that her contention is that the trial court's award of damages in the amount of $250 was insufficient to cover her loss. In essence, Karnofel has set forth a manifest weight challenge. After reviewing the App.R. 9(C) statement, which is all we have to examine in deciding this appeal, it is clear that we cannot increase Karnofel's award. There is nothing in that statement that addresses the issue of monetary damages. The trial court judge listened to the witnesses, determined their credibility, and weighed the evidence. Those tasks are for the trier of fact, not the appellate court. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23. Based upon the state of the record before us, we cannot conclude that the trial court's award of damages was unreasonable, arbitrary, or unconscionable. Hence, Karnofel's sole assignment of error is without merit. In Watson's cross-appeal, he has raised a single assignment of error. He contends that Karnofel was entitled to nothing since she did not allege or produce evidence of a tort or breach of a contract. We agree that this case would not be proper under any tort theory. However, we can conclude that Karnofel was entitled to recover damages under a contract analysis. There was a breach of a contract, and damages naturally flowed therefrom. Watson argues that there was no damage "in a legal sense" because Karnofel was not required to pay for the haircut. Additionally, Watson contends that there was no evidence of expense that Karnofel incurred either for substitute performance or to remedy the alleged bad haircut. That is not exactly correct. It is apparent that Karnofel testified that she purchased some type of health food supplement in order to increase the growth rate of her hair. Karnofel bargained for a satisfactory haircut. She believed she did not receive what she bargained for. In fact, she claimed that she was, at least temporarily, made to look worse than if she had not received any haircut. It is apparent that the trial court, after hearing the witnesses and seeing the evidence, agreed with Karnofel. While we do not condone the practice of suing one's hair stylist for a bad haircut, for who knows what that will lead to next, we cannot conclude that the trial court abused its discretion in entering judgment in favor of Karnofel, and awarding her $250. We also emphasize that this is a small claims action where the procedural rules are somewhat relaxed compared to a normal civil action. Parties are given a greater degree of latitude consistent with the purpose behind small claims actions. Watson's assignment of error is without merit. The judgment of the trial court is hereby affirmed. _________________________________ JUDGE WILLIAM M. O'NEILL DISSENTING OPINION

2022-07-29 03:08:02.685988+00

PER CURIAM. Appeal dismissed.

2016-07-06 06:36:37.633075+00

Pryatel

Plaintiff, F L Center Company (hereinafter "F L"), brought this action for restitution of leased premises against defendants, Cunningham Drug Stores, Inc. (hereinafter "Cunningham") and Gray Drug Fair, Inc. (hereinafter "Gray Drug"). Upon the stipulated facts and the briefs of the parties, the trial court found for F L holding that the consent of F L was necessary for any assignment to take place. We affirm. The following facts have been stipulated and are pertinent to this appeal. On July 8, 1966, H. Goodman, Inc. (a predecessor in interest to F L) entered into a lease agreement with SuperX Drugs, Inc.1 (a predecessor in interest to Cunningham) for premises *Page 73 located at 6280 Pearl Road in Parma Heights. The original term was for ten years with renewals (by option of the lessee SuperX) from October 1, 1976 to September 30, 1980, from October 1, 1980 to September 30, 1983, and from October 1, 1983 to September 30, 1986. SuperX took possession in 1966 and operated a retail drug store on the premises. On October 31, 1968, H. Goodman, Inc., as landlord, assigned its interest in the premises to Albert J. Goodman. Thereafter, on March 13, 1972, SuperX, with the consent of Goodman, assigned its interest in the premises to Cunningham, which also operated a retail drug store. Goodman as lessor assigned his entire interest in the premises to F L on August 30, 1973. On March 19, 1976, Cunningham exercised its option to renew the lease until September 30, 1980. In 1980, Cunningham again exercised its option and renewed the lease until September 30, 1983. On April 21, 1982, Cunningham, after notifying F L of the proposed assignment and the nature of the business to be conducted, assigned its interest in these premises to Gray Drug.2 F L did not consent to this assignment. Gray Drug moved into the premises and has operated a retail drug store there since late April 1982. Prior to April 21, 1982, F L had been approached by Fisher Foods, Inc., another tenant in these premises, regarding the possibility of expansion into the parking lot. After April 21, 1982, Fisher Foods and F L discussed the possibility of expanding into the area of the building leased by Cunningham. On June 29, 1982, F L served notice on Gray Drug to vacate the premises. This same notice was given to Cunningham on July 1, 1982. Gray Drug and Cunningham did not vacate the premises and the instant action was commenced. The trial court held in favor of F L, and defendants Gray Drug and Cunningham appeal. Assignments of Error I and II "I. The trial court's interpretation of paragraphs 25 and 25A of the lease agreement violates the principles of law that restraints against alienation of property must be (A) clearly expressed, (B) may not be implied, and (C) are strictly construed against the landlord. "II. The trial court's interpretation of paragraphs 25 and 25A violates fundamental principles of contract construction since the express terms thereof do not require the prior consent of the landlord to an assignment by the tenant where the proposed assignee's business does not conflict with exclusive rights of other tenants." The first and second assignments of error are interrelated and will be treated together. Appellants, Gray Drug and Cunningham, base their first contention on the trial court's interpretation of paragraphs 25 and 25A of the lease: "25. If at any time Tenant shall desire to sublet or assign the demised premises, it shall notify Landlord of the name of the proposed subtenant or assignee and of the general nature of the business which such subtenant or assignee proposes to conduct. If the business which such subtenant or assignee proposes to conduct would conflict with exclusive rights granted in leases to other tenants, Landlord may, within ten (10) days of receipt of such notice, refuse to approve such sublease or assignment. If Landlord fails to approve such subtenant or assignee within ten (10) days after receipt of such notice, or if Landlord refuses to approve such subtenant or assignee for any other reason than that *Page 74 permitted above, Tenant may terminate the Lease. Landlord shall, at any time Tenant may request, supply to Tenant copies from leases to other tenants of all clauses granting exclusive rights to conduct various businesses in the Shopping Center. "25A. In clarification of paragraph 25, it is understood that should Tenant propose to sublet or assign the demised premises for use which would conflict with exclusive rights granted in leases to other tenants and if Landlord should refuse to approve such sublease or assignment, Tenant shall not have the right to cancel this Lease. Notwithstanding any subletting or assignment, the Tenant shall remain liable under the terms of this Lease." Appellants contend that these provisions do not require the consent of F L to an assignment unless the proposed assignee engages in a business which is in competition with one of the other tenants. In support of this contention, appellants argue that the word "such," as used in paragraph 25, refers only to a subtenant or assignee whose business would conflict with that of another tenant. We believe this interpretation to be strained and unacceptable. Paragraph 25 allows the tenant (Cunningham) to terminate the lease if the lessor (F L) refuses or fails to approve a sublease or assignment when the sublessee or the assignee is in competition with another business at those premises or for anyother reason. The critical language in paragraph 25 is as follows: "* * * [I]f Landlord fails to approve such subtenant or assignee within ten (10) days after receipt of such notice,3or if Landlord refuses to approve such subtenant or assignee forany other reason than that permitted above,4 Tenant mayterminate the Lease. * * *" (Emphasis added.) Moreover, paragraph 25 when read together with paragraph 25A, does not limit the necessity of obtaining the lessor's prior consent to a situation where a proposed assignee's business conflicts with the exclusive rights of another tenant. Rather, it gives to Cunningham the right to terminate the lease only after consent is refused (or is not given) to an assignment which does not conflict with the business of another tenant. In other words, the provisions of paragraph 25 permitting the lessee to terminate the lease if the proposed subtenant or assignee is not approved, when modified by paragraph 25A, restrict the lessee's right to cancel to situations where the business of the proposed subtenant or assignee would not conflict with that of another tenant. Appellants' assertion that the word "such," as used in this paragraph, refers to only those proposed subtenants or assignees whose business would conflict with that of another tenant is also without merit as is evidenced by the first sentence of paragraph 25: "If at any time Tenant shall desire to sublet or assign the demised premises, it shall notify Landlord of the name of the proposed subtenant or assignee and of the general nature of the business which such subtenant or assignee proposes to conduct." (Emphasis added.) The repeated use of the word "such" refers back to any proposed subtenant or assignee regardless of the business it intends to conduct. From the language of paragraph 25 it is clear that F L retained the right to prevent an assignment for any reason if it so desired. *Page 75 Accordingly, appellants' first and second assignments of error are overruled. Assignment of Error No. III "III. The trial court lacked jurisdiction to order restitution of the premises since the lease agreement does not provide for forfeiture of the lease upon the assignment thereof without the landlord's consent." Although cited as an assignment of error, appellants have neglected to separately argue this point anywhere in their brief.5 Accordingly, pursuant to App. R. 12(A)6 we shall disregard it. Assignment of Error No. IV "IV. The trial court erred by holding that the landlord could unreasonably refuse to consent to a proposed assignment by the tenant." Appellants rely upon Shaker Bldg. Co. v. Fed. Lime Stone Co. (1971), 28 Ohio Misc. 246 [57 O.O.2d 486], for the proposition that a lessor may not unreasonably withhold his consent to an assignment where the only requirement in the lease is the lessor's consent. Appellants also cite additional authorities from other jurisdictions holding that a lease is a contract and the parties are held to a standard of commercial reasonableness, notwithstanding the absence of the word "reasonable" from the lease agreement. See, e.g., Fernandez v. Vazquez (Fla.App. 1981), 397 So.2d 1171. A panel of this court, however, reversed the lower court's holding in Shaker Bldg. Co., supra. Shaker Bldg. Co. v. Fed. Lime Stone Co. (March 2, 1972), Cuyahoga App. No. 31451, unreported. This court held that the provision in that lease was unambiguous and that the lessor had complete control over whether or not he would consent to an assignment, unencumbered by any stipulation to arbitrariness. Id. at 2, citing Annotation (1953), 31 A.L.R. 2d 831. Additionally, the majority of authority in this country supports the view that where the consent of the lessor to an assignment is required, that consent may be withheld for any reason absent express language in the lease that it may not be unreasonably withheld. B R Oil Company, Inc. v. Ray's MobileHomes, Inc. (1980), 139 Vt. 122, 422 A.2d 1267; Herlou CardShop, Inc. v. Prudential Ins. Co. of America (1979),73 App.Div.2d 562, 422 N.Y.S.2d 708; see, also, Annotation (1983), 21 A.L.R. 4th 188. In passing, we note that paragraph 14 requires the lessor's consent to major structural changes requested by lessee and that such consent may not be unreasonably withheld. Thus, the parties were aware of and could have placed (but did not) this same restriction on subletting and assignments. In the instant case, the lessor has no encumbrance in its decision whether to allow an assignment. Nor was F L unreasonable in its desire to regain this space in order to allow another tenant, Fisher Foods, to expand. To permit Cunningham, without prior consent of *Page 76 lessor, to assign its leasehold interest to any other party it chooses whose business did not conflict with that of the other tenants would make F L a virtual prisoner of the lessee, Cunningham. In the absence of any encumbrance upon its consent F L acted within its rights under the lease. Accordingly, appellants' fourth assignment of error is overruled. The judgment of the trial court is affirmed. Judgment affirmed. JACKSON, P.J., concurs. NAHRA, J., dissents. 1 SuperX' obligation was guaranteed by the Kroger Company of which SuperX is a wholly owned subsidiary. 2 The record indicates that Cunningham only notified F L of this assignment. Apparently Cunningham did not seek F L's consent, since they argue here that consent was not necessary. 3 Notice of a proposed assignee whose business would conflict with the exclusive rights granted to another tenant. 4 Notice of a proposed assignee whose business would not conflict with that of another tenant. 5 We note that paragraph 9 of the lease allows the lessor to reenter the premises where the lessee has breached the lease. 6 App. R. 12(A) reads: "Determination. In every appeal from a trial court of record to a court of appeals, not dismissed, the court of appeals shall review and affirm, modify, or reverse the judgment or final order of the trial court from which the appeal is taken. The appeal shall be determined on its merits on the assignments of error set forth in the briefs required by Rule 16, on the record on appeal as provided by Rule 9, and, unless waived, on the oral arguments of the parties, or their counsel, as provided by Rule 21. Errors not specifically pointed out in the record and separately argued by brief may be disregarded. All errors assigned and briefed shall be passed upon by the court in writing stating the reasons for the court's decision as to each such error."

2016-07-06 06:36:37.778463+00

Shaw

Plaintiff Kenneth Wilson appeals the June 15, 2000 order of the Marion County Court of Common Pleas, which granted summary judgment on a claim of wrongful retaliatory discharge to plaintiffs former employer, defendant Semco, Inc. Plaintiff was employed by defendant from 1990 until December 1997, when he was fired. During that period, plaintiff was injured in the course of his *Page 490 employment on several occasions. Plaintiff had in fact filed ten separate claims for workers' compensation benefits, and at the time of his termination was apparently pursuing a claim known as No. 97-322052. On February 11, 1998, plaintiff sent defendant a letter declaring his intention to sue under R.C. 4123.90, and on June 15, 1998, plaintiff filed suit and asserted that he had been wrongfully discharged by defendant "on or about December 29, 1997 * * * because he was pursuing his rights under the Workers' Compensation Act of Ohio." Wilson v. Semco, Inc., Marion C.P. No. 98CV0263, Complaint at Exhibit A, *1-*2, and id. at ¶ 5. In both his letter of intent and his June 15, 1998 complaint, plaintiff mentioned only one workers' compensation claim, No. 97-322052. See id. at Exhibit A, *1-*2, and id. at ¶ 3. However, during his deposition in the case, plaintiff stated that he had stopped pursuing claim No. 97-322052 but was still pursuing other claims that he had filed. Deposition of Plaintiff Kenneth Wilson, at 67-68. On March 31, 1999, plaintiff dismissed his complaint without prejudice pursuant to Civ.R. 41(A)(1). On January 10, 2000, plaintiff refiled the complaint pursuant to R.C. 2305.19, the savings statute. See Wilson v. Semco, Inc., Marion C.P. No. 00CV0008. However, in his new complaint plaintiff mentioned nine workers' compensation claims that were not included among the allegations in his letter of intent or his first complaint. Compare Wilson v. Semco, Inc., Marion C.P. No. 00CV0008, Complaint at ¶ 3 (listing ten workers' compensation claim numbers), with Wilson v. Semco Inc., Marion C.P. No. 98CV0263, Complaint at ¶ 3 (listing one claim number). Notwithstanding this change, plaintiffs new complaint once again asserted that that he had been wrongfully discharged by defendant "on or about December 29, 1997 * * * because he was pursuing his rights under the Workers' Compensation Act of Ohio." Wilson v. Semco, Inc., Marion C.P. No. 00CV0008, Complaint at ¶ 5. On April 21, 2000, defendant filed a motion for summary judgment, arguing that "the Plaintiff has actually pled nine new causes of action[,] since his first case involved a claim under one injury, while this case involves [claims regarding] ten separate incidents." Defendant's Motion for Summary Judgment, at *5. Defendant correctly observed that plaintiff had not mentioned the nine "new claims" in his letter of intent to sue or in his previous complaint, and argued that based on those omissions it had not received the written notice required by R.C. 4123.90 of the "new claims." Defendant also argued that plaintiff was estopped from arguing that the letter and the first complaint provided the required notice, because plaintiff had previously admitted in deposition that he had stopped pursuing the only claim mentioned in the letter and the first complaint. On June 15, 2000, the trial court granted summary judgment to the defendant: *Page 491 "[The d]efendant has essentially interposed a procedural barrier to the filing of this lawsuit and the Plaintiff has responded with his arguments regarding the merits of the case. The Defendant has correctly pointed out that it was not given timely notice of the plaintiffs pursuit of nine of these workers' compensation claims. Plaintiff is, therefore, statutorily barred from bringing any claim related to those injuries and to those workers' compensation claims. As to claim # 97-322052, the Plaintiff has admitted in deposition that he was not pursuing this claim and, therefore, this claim must also fail." Journal Entry at *2-*3. Plaintiff now appeals, and asserts a single assignment of error with the trial court's judgment: "The trial court erred in granting summary judgment pursuant to Ohio Civil Procedure Rule 56 when there are clearly genuine issues of as to material facts; therefore, the plaintiff is entitled to present his case to the trier of fact." Appellate courts conduct a de novo review of the record in order to determine whether a trial court has properly granted summary judgment pursuant to Civ.R. 56. See Grafton v. Ohio Edison Co. (1996),77 Ohio St.3d 102, 105, 671 N.E.2d 241, 245. When reviewing the grant of a motion for summary judgment, appellate courts review the judgment independently and do not give deference to the trial court. See Schuch v. Rogers (1996), 113 Ohio App.3d 718, 720, 681 N.E.2d 1388, 1389. Accordingly, the appellate standard for summary judgment is the same as that of the trial court. See Midwest Specialties, Inc. v. Firestone Tire Rubber Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411, 413-414. In Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 686-687,653 N.E.2d 1196, 1202, the Ohio Supreme Court enunciated the standard for summary judgment: "[Summary judgment is proper] when, looking at the evidence as a whole, (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party." Furthermore, in Dresher v. Burt (1996), 75 Ohio St.3d 280, 293,662 N.E.2d 264, 273-274, the Ohio Supreme Court held that parties seeking summary judgment must directly point to evidence in the record that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party satisfies that burden, the party opposing summary judgment must "set forth specific facts showing that there is a genuine issue for trial," and summary judgment is proper if the party opposing judgment fails to set forth such facts. Id., citing Civ.R. 56(E). *Page 492 In this case, defendant's sole argument in support of summary judgment is that the plaintiff was procedurally barred under R.C. 4123.90 from bringing this action. The statute provides: "No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers' compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. Any such employee may file an action in the common pleas court of the county of such employment in which the relief which may be granted shall be limited to reinstatement with back pay, if the action is based upon discharge, or an award for wages lost if based upon demotion, reassignment, or punitive action taken, offset by earnings subsequent to discharge, demotion, reassignment, or punitive action taken, and payments received pursuant to section 4123.56 and Chapter 4141, of the Revised Code plus reasonable attorney fees. The action shall be forever barred unless filed within one hundred eighty days immediately following the discharge, demotion, reassignment, or punitive action taken, and no action may be instituted or maintained unless the employer has received written notice of a claimed violation of this paragraph within the ninety days immediately following the discharge, demotion, reassignments, or punitive action taken." (Emphasis added.) "A complaint filed by an employee against an employer states a claim for relief for retaliatory discharge when it alleges that the employee was injured on the job, filed a claim for workers' compensation, and was discharged by that employer in contravention of R.C. 4123.90." Wilson v. Riverside Hosp. (1985), 18 Ohio St.3d 8, 18 OBR 6, 479 N.E.2d 275, syllabus. Under R.C. 4123.90, an employee must have either filed a claim or initiated or pursued proceedings for workers' compensation benefits prior to being discharged for his employer to be liable under the statute. See Bryant v. Dayton Casket Co. (1982), 69 Ohio St.2d 367, 23 O.O.3d 341, 433 N.E.2d 142, syllabus. Here, it is undisputed that plaintiff had filed ten different workers' compensation claims prior to instituting this action. It is similarly undisputed that both complaints filed by the plaintiff state a proper cause of action for retaliatory discharge in violation of R.C. 4123.90. It is also undisputed that plaintiff provided "written notice" to the defendant of the alleged wrongful termination within ninety days after it occurred. See Wilson v. Semco, Inc., Marion C.P. No. 00CV0008, Complaint at Exhibit A, *1-*2. However, defendant correctly observes that both the "written notice" and plaintiffs first complaint mention only one workers' compensation claim, No. 97-322052, and that plaintiff subsequently admitted that he had stopped pursuing that claim. Compare id. at *1 at id. at Exhibit A, *1-*2, with Deposition of Plaintiff Kenneth Wilson, at 67-68. *Page 493 Defendant urges us to hold that the statute's requirement of "written notice" required the plaintiff to specifically identify all the workers' compensation claims that may have factored into his termination, and contends that because plaintiff did not identify all of those claims in his first complaint, he is barred from pursuing them in this action. Defendant would have us conclude, based on the statute's notice requirement, that plaintiffs first complaint asserted only that plaintiff was wrongfully terminated for pursuing the single claim named in the complaint. According to defendant's reading of the statute, a wrongfully terminated employee is required to identify each and every claim that may have played a role in motivating the dismissal. Failure to specify any one of such claims would result in the entire wrongful termination claim being procedurally barred and failing as a matter of law. By the same token, multiple workers' compensation claims underlying an improper dismissal would necessarily entail multiple causes of action. We do not believe defendant's interpretation of the workers' compensation statutes (which are to be read "liberally construed in favor of employees," R.C. 4123.95) is a reasonable one. The argument rests on a faulty (and unstated) premise: that the statute's requirement of "written notice of a claimed violation of this paragraph" is meant to refer to written notice of a specific workers' compensation claim. By contrast, we believe the statute's notice provision plainly refers to an action "based upon discharge * * * demotion, reassignment, or punitive action taken * * *." R.C. 4123.90. The section therefore requires only that a terminated employee provide an employer with the facts necessary to apprise the employer of the nature of the cause of action (wrongful termination in violation of R.C. 4123.90) and the general factual allegations that are the basis of the cause of action. Cf. Wilson v. Riverside Hosp. at syllabus. Here, both the plaintiffs "written notice" and his first complaint notified the defendant that he was asserting a claim under R.C. 4123.90 for wrongful termination, based upon the allegation that he had been terminated for pursuing his rights under the workers' compensation laws. Under our system of notice pleading, this claim is identical to the one he filed in his second complaint. Cf. Children's Hosp. v. Ohio Dept. of Public Welfare (1982), 69 Ohio St.2d 523, 525, 23 O.O.3d 452, 453,433 N.E.2d 187, 189 ("[Two] actions are not substantially the same * * * when the parties in the original action and those in the new action are different."). It was therefore proper for the defendant to utilize the savings statute to refile his wrongful termination action. Cf. id. at 525, 23 O.O.3d at 453, 433 N.E.2d at 189; R.C. 2305.19. Based on the foregoing, we conclude that the trial court's decision to grant judgment to the defendant was erroneous. Cf. Dresher,75 Ohio St.3d at 293, 662 N.E.2d at 373-274, citing Civ.R. 56(C). Plaintiff's sole assignment of error is *Page 494 accordingly sustained, and this cause is reversed and remanded to the Marion County Court of Common Pleas for further proceedings consistent with this opinion. Judgment reversed and cause remanded. HADLEY, P.J., and WALTERS, J., concur.

2016-07-06 06:36:37.812876+00

Markus

The defendant-village appeals from a declaratory judgment that the plaintiff-landowner may build a residence on a plot consisting of two adjoining parcels. In so ruling, the trial court held that the village's zoning ordinances unconstitutionally restricted the minimum area and width for this residential property. The landowner failed to present sufficient evidence to support that conclusion, so we reverse and dismiss the action. The trial evidence consisted of (a) brief testimony by the plaintiff-landowner, (b) the village's zoning map and zoning ordinances, and (c) minutes from village administrative bodies which considered the plaintiff-landowner's request for a variance. The trial judge personally viewed the landowner's property, but his observations are not evidence. Cf. Lacy v.Uganda Investment Corp. (1964), 7 Ohio App.2d 237 [29 O.O.2d 177]; State v. Jones (Apr. 12, 1979), Cuyahoga App. No. 37862, unreported. No expert witnesses testified, and neither party offered any direct evidence to show the village's purposes in adopting the challenged ordinances. In 1977, the owner of four contiguous lots in the defendant-village agreed to sell two of those lots to the plaintiff-landowner for $8,000. The plaintiff-landowner paid the balance of the purchase price and received the seller's deed in January 1978. He recorded that deed in June 1978. The landowner's two rectangular lots each has a frontage of 48.4 feet and a depth of 225 feet, for a total frontage of 96.8 feet and a total area of one-half acre (21,780 square feet). Since 1959, the village's zoning ordinances have required lots to have a width of 145 feet and a three-quarter-acre area (32,670 square feet) for single-family dwellings. Woodmere Village Ordinances Sections 151.15(c) and 151.15(d). The seller's residual property also lacks sufficient width or area to satisfy these ordinances. The village denied the plaintiff-landowner's application for a permit to construct a house there. He then applied to the village Planning and Zoning Commission for a variance. The commission denied his request. The landowner appealed that decision to the village council, which rejected his appeal. He then commenced this action, seeking a declaration that the ordinances unconstitutionally restricted his use of his land. *Page 67 I The village's first assignment of error asserts that "[t]he trial court erred in refusing to allow a jury trial as timely demanded." R.C. 2721.10 provides: "When a * * * [declaratory judgment action] involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending." A jury trial is necessary only when the case requires the resolution of factual issues which are triable to a jury in comparable civil actions. Erie Ins. Group v. Fisher (1984),15 Ohio St.3d 380, 381-382 (following Travelers Indemn. Co. v.Cochrane [1951], 155 Ohio St. 305 [44 O.O. 302]). R.C. 2311.04 defines the right to a jury trial in other civil cases: "Issues of law must be tried by the court, unless referred as provided in the Rules of Civil Procedure. Issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or unless all parties consent to a reference under the Rules of Civil Procedure. "All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by a jury, or referred." The present action seeks neither money nor specific real or personal property. It challenges the validity of municipal ordinances, so it resembles a non-jury equity proceeding to rescind allegedly invalid agreements. Cross v. Ledford (1954),161 Ohio St. 469 [53 O.O. 361] (no jury for rescission case); cf.Huntington Natl. Bank v. Heritage Investment Group (1983),12 Ohio App.3d 113 (no jury for foreclosure case); Pyromatics,Inc. v. Petruziello (1983), 7 Ohio App.3d 131 (no jury for injunction case). The landowner originally requested money damages for an asserted civil rights claim, but the landowner apparently withdrew that claim before trial. Therefore, we need not decide whether that claim would have required a jury trial. Cf. Burton v. Middletown (1982), 4 Ohio App.3d 114, 118 (trial court correctly dismissed demand for a jury trial where the only issues requiring a jury had been dismissed). We overrule the village's first assigned error. II In its second and third assignments of error, the village contends (a) the court erred by denying its motion for a directed verdict, and (b) "[t]he judgment of the trial court is against the manifest weight of the evidence." The village council presumably decided that the challenged legislation is within its general police powers and is rationally related to the public health, safety and welfare. The courts presume that such legislative action is neither unreasonable nor arbitrary. Curtiss v. Cleveland (1959), 170 Ohio St. 127 [10 O.O. 2d 85], paragraph two of the syllabus. Thus, zoning legislation is presumptively valid. See Pepper Pike v. Landskroner (1977),53 Ohio App.2d 63, 70 [7 O.O.3d 44]: "A person wishing to attack an ordinance as unconstitutional has the burden of proof and may not rely on mere allegations or conclusions of law that the ordinance is not based on health, safety, morals or general welfare, but must introduce competent and relevant evidence to support his position. * * *" In this case, the landowner failed to present any evidence that the village's application of the challenged ordinances to his property was unconstitutional. He offered no evidence to deny that they are rationally related to the public health, safety, and welfare. The landowner argues without any supporting evidence that the width requirement is *Page 68 intended to allow space for a filter bed, a well, and a septic tank. He testified that he could use water and sewer pipes under the adjacent roadway, so he would not need those individual facilities. Assuming that he correctly identified the purpose for the disputed ordinances, he failed to show that he would have access to those nearby water and sewer lines. Those lines are private, with restricted accessibility. He also failed to show that his use of those lines would adequately protect the public health. The village council might have determined that the specified lot width was necessary on a street with sewers to prevent an overload on the sewage system. In the absence of any contrary evidence, the ordinance is presumed valid. The trial court found that some other dwellings had frontages shorter than 145 feet. However, there is no evidence in the record to support that finding. If they do exist, the record does not disclose whether they are non-conforming uses which predate the challenged ordinances. Furthermore, we cannot assume that the ordinances' sole purpose was to provide space for a filter bed, septic tanks and wells. The landowner offers no explanation for the minimum area requirement which he would violate by building a residence there. Other permissible objectives for these ordinances could include (1) control of population density, State, ex rel. Grant, v.Kiefaber (1960), 114 Ohio App. 279 [19 O.O.2d 207], paragraph five of the syllabus; (2) ease of access for firefighting equipment, cf. State, ex rel. Jack, v. Russell (1954), 162 Ohio St. 281,287 [55 O.O. 167]; and (3) economic considerations related to increased aesthetic values. See, e.g., Pritz v.Messer (1925), 112 Ohio St. 628, 638. The landowner did not address these or any other possible purposes, much less prove that they would be unreasonable here. Thus, he failed to meet his burden by clearly showing the unconstitutionality of the ordinance. Contrary to the landowner's assertions, the ordinances do not operate as a "taking" of his property. Reasonable restrictions on the use of property are not confiscatory governmental action. See, e.g., Pritz v. Messer, supra, at paragraph one of the syllabus. Zoning regulations that effectively make a landowner's property valueless without any corresponding public benefit can constitute unconstitutional takings. See, e.g., Brockman v. Morr (1960), 112 Ohio App. 445 [16 O.O. 2d 341]; Cleveland BuildersSupply Co. v. Garfield Hts. (1956), 102 Ohio App. 69 [2 O.O.2d 65]; Eutopia Realty, Inc. v. Cleveland Hts. (C.P. 1938), 27 Ohio Law Abs. 420. In this case, the landowner testified that he had "no use" for the property if he could not obtain a variance to build a residence. However, his property is useful to satisfy the neighboring seller's duty to comply with the same zoning ordinances. In effect, his neighbor has impermissibly divided the total property so that neither part complies with valid regulations. The courts will not assist that apparently deliberate attempt to circumvent the village's lawful authority. The landowner mistakenly relies on Negin v. Bd. of Bldg. Zoning App. (1982), 69 Ohio St.2d 492 [23 O.O.3d 423]. InNegin, the court found that a zoning ordinance effectively required the landowner to purchase additional land or to sell his lot to an adjacent landowner. It found that this requirement rendered that lot "useless for any practical purpose." Id. at 497. However, in Negin, the property "was platted and held in single and separate ownership prior to the enactment of the ordinance." Id. "As such, a non-conforming use as to minimum area and frontage requirements * * * [was] established," even though the owner *Page 69 had not yet built on the land. Id. at 496. Here, the zoning ordinances existed prior to any consideration by the landowner's neighbor that he might sell this parcel. They existed long before this landowner acquired any interest in the property. Accordingly, the village's second and third assigned errors have merit. We reverse and enter final judgment in the village's favor by dismissing the landowner's action. Judgment reversed. PRYATEL and CORRIGAN, JJ., concur.

2016-07-06 06:36:37.87155+00

Potter

The defendant was indicted for first degree murder. Before a panel composed of three judges, he withdrew his former plea of not guilty, and not guilty by reason of insanity, and entered a plea to homicide generally. The court, after the introduction of evidence and deliberation to determine the degree of the crime, made the following finding, to wit: "A majority of the court finds the defendant guilty of murder in the first degree and a majority of the court recommends mercy." This appeal is from the overruling of defendant's motion for a new trial. *Page 159 The first four assignments of error relate to the overruling of defendant's motion to suppress statements made by the defendant after he was taken into custody. Assignment of error No. 4 pertains to the admission of the State's Exhibits 1 through 19, and 21 through 26, as this evidence is derivative of the incriminating statements. Defendant's written plea to homicide referred to R. C.2945.06. To the extent relevant, that statute is as follows: "If the accused pleads guilty of murder in the first degree, a court composed of three judges shall examine the witnesses, determine the degree of crime, and pronounce sentence accordingly." R. C. 2945.74 is more applicable to the plea entered (SeeGallagher v. Maxwell, 175 Ohio St. 440), and is, in pertinent part, as follows: "If the offense charged is murder and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime, and pronounce sentence accordingly." R. C. 2945.74 and 2945.06 are in pari materia. See 27 Ohio Jurisprudence 2d 616, Homicide, Section 72, where it is stated that R. C. 2945.06 repeals or at least modifies R. C. 2945.74 to the extent that where there is a judicial confession or a plea of guilty of murder in the first degree, a trial court consisting of one judge has no jurisdiction to determine the degree of the crime. As to the effect of the plea, see 27 Ohio Jurisprudence 2d 614, Homicide, Section 71. It has been said that a plea of guilty in a prosecution for murder conclusively establishes every essential fact in the case against the defendant except the question as to the degree of the crime. This places the duty on the court to do that which, but for the plea of guilty, the jury would be called upon to do after finding the accused guilty of homicide. A plea of guilty to homicide generally has been held to be synonymous to a plea of guilty of murder. The state is not required to present proof of the corpus delicti. Rainsberger v. State, 76 Nev. 158,350 P.2d 995. In a criminal case it is generally held that a defendant *Page 160 who withdraws his plea of not guilty and pleads guilty waives any error committed in the impaneling of the jury or in the course of the trial prior to such change of plea. (See 3 Ohio Jurisprudence 2d 627, Appellate Review, Section 676.) The headnote to Crockett v. Haskins, 12 Ohio Misc. 237, is as follows: "A defendant who enters a voluntary plea of guilty while represented by competent counsel waives all nonjurisdictional defects in prior stages of the proceedings." In that case, however, no evidentiary hearing was required. To the extent that an open-court confession, i. e., a plea to homicide generally, supersedes an in-custody confession, the alleged failure to comply with Miranda criteria (as laid down inMiranda v. Arizona, 396 U.S. 868) is waived and is not prejudicial. As to the validity of the plea when a prior confession is challenged, see Caldwell v. Haskins, 176 Ohio St. 261. But since the determination of the degree of the crime requires competent, material, and relevant evidence, we must examine the evidence and determine if the defendant's constitutional rights were safeguarded. See, on the subject of the duty of the court to hear evidence when there is a plea to an offense including several degrees, People v. Kerr, 37 Cal.2d 11, 229 P.2d 777; Rainsberger v. State, supra; 40 American Jurisprudence 2d 727, Homicide, Section 471; 34 A. L. R. 2d 919. We have, therefore, examined the record pertaining to the suppression of the defendant's in-custody confession. We conclude that although the defendant was an 18 year old youth with a low I. Q., all of the Miranda warnings were properly given. The fact that the defendant may not have recognized all of the legal consequences of his act does not invalidate his waiver. As was held in State v. Green, 51 Haw.,457 P.2d 505, if all unwise waivers were held void, there never would be an effective waiver. Likewise, the short interval between the initial questioning of defendant and the resumption of the interrogation was not prejudicial. (See United States v.Osterburg (9 Cir.), 423 F.2d 704.) We conclude that the first four assignments of error *Page 161 are not well taken or are not prejudicial. The fifth assignment of error is as follows: "The trial court erred in entering judgment against the manifest weight of the evidence and contrary to law in that the evidence showed that the defendant was not guilty of the degree of crime for which he was convicted but guilty of a lesser degree." The record is void of any evidence of deliberation and premeditation except the act of the defendant strangling the child. As abhorrent as this act was, we agree with the holding in State v. Cosby, 100 Ohio App. 459. Three paragraphs of the syllabus of that case read as follows: "1. To sustain a conviction of murder in the first degree, proof is necessary showing that there was deliberate and premeditated malice in the mind and heart of the accused at the time of the killing. "2. A presumption of such malice may not be inferred from evidence of an intentional killing without more. "3. The deliberation and premeditation necessary to support a conviction of murder in the first degree must be cool and deliberate and not formed upon a sudden impulse, but in the exercise of clear reason." See, also, the opinion, at page 463, that: "There must be facts shown from which deliberation and premeditation may be inferred and such inference must be more reasonable than any other. The jury cannot be allowed to guess on this important element." Cf. State v. Esherick, 19 Ohio App.2d 40. The case of State v. Schaffer, 113 Ohio App. 125, relied on by the state, concerns a much different fact situation. Assignment of error No. 5 is well taken. Assignment of error No. 6, that only two of the panel of the three judges concurred and that all judges had to concur, is contrary to R. C. 2945.06 and State v. Robbins, 176 Ohio St. 362, and is not well taken. The assignments of error Nos. 7 and 8 were not briefed or argued and are, therefore, disregarded. On the evidence, the defendant is found guilty of murder in the second degree. The finding and judgment of the *Page 162 lower court is modified and final judgment is entered finding the defendant guilty of murder in the second degree. The cause is remanded to the lower court for sentencing of defendant accordingly (see R. C. 2945.79 (D) and 2953.07). Judgment modified. BROWN and SMITH, JJ., concur. SMITH, J. (Retired. Assigned to active duty under authority of Section 6 (C), Article IV, Constitution.)

2016-07-06 06:36:38.025828+00

Troop

The city of Whitehall charged Anne L. St. Germain, defendant, appellant herein, with unlawfully operating a motor vehicle upon East Main Street, within its corporate limits, while under the influence of intoxicating liquors, on May 7, 1962, in violation of its ordinance. Trial was had upon the charge in the Columbus Municipal Court. A jury returned a verdict of guilty. The trial court overruled the motion of the defendant for a new trial and imposed sentence upon the defendant, from which judgment this appeal is taken. Defendant presents four assignments of error. Two of them engage our attention and two are regarded as perfunctory. The two considered urge that the verdict and judgment are contrary to law and against the weight of the evidence, and that the court erred in admitting evidence offered by plaintiff, to which objection was entered. In brief and in oral argument, counsel for defendant contends that the prosecution failed to establish evidence, by way of objective symptoms, of the condition of the defendant, sufficient to permit the admission of evidence in the nature of a chemical test. An attack upon the validity of the test is also advanced. It is claimed that the urine sample, basic to the chemical test, was taken two and three-fourths hours after the arrest of the defendant, and that the source of the container used to take the sample is not clearly ascertained. The record contains testimony concerning objective symptoms. Summarized, they are that defendant had a strong odor of alcohol about her person, her face was red, her speech slurred *Page 359 and mumbling, her clothes disorderly or wrinkled, she appeared sleepy, her eyes were bloodshot, glassy, and watery, she was swaying while standing, walking, or turning, and her mental state was stupefied. Koppelman offers some support with his testimony. In addition, the record contains evidence as to defendant's driving just preceding the accident in which she was involved. Defendant's admission as to the consumption of alcoholic beverages provides additional basis for the admission of the chemical tests into evidence. Counsel for defendant makes much point of the omission to use objective tests of co-ordination by the police officers. Objective symptoms are the requirement, not objective tests. Objective tests might be presented for the jury to weigh along with the other evidence and they might well offer some proof of ability to co-ordinate, or the lack of ability, but being under the influence of alcohol involves much more than loss of co-ordination. It is said that being under the influence adversely affects actions, reactions, conduct, movement, clearness of intellect and mental processes, and the restriction of vision, direct and peripheral. Objective symptoms relate to these conditions of the individual charged. The rule is well stated in paragraph three of the syllabus ofState v. Neff (1957), 104 Ohio App. 289, as follows: "In a criminal action, evidence by arresting officers that defendant's eyes were glassy and bloodshot, that his breath smelled strongly of some intoxicant, that his speech was slurred, that his eyes did not seem to focus, that his walk was unsteady and uncertain, that he admitted having had `a couple of beers,' and that he stated he was not ill, is sufficient to support a finding of the trial court that defendant was `under the influence' of intoxicating liquor." Admission of the evidence of the chemical test was proper. The court's instruction to the jury as to the limits and purpose of expert testimony was correct. The jury was directed to weigh that evidence along with all the other evidence before it, and certainly the exhaustive cross-examination of the chemist was designed to nullify its effect upon the jury. To have failed to accomplish that purpose is a risk that counsel always takes when employing that method. Testimony of Shupe clearly indicates that a lapse of *Page 360 time following arrest in the taking of a sample of body fluid works in the favor of and not to the prejudice of an accused. In the instant case a delay of two hours and forty-five minutes after arrest, while perhaps not "at or near" the time of the incident, worked no prejudice to the defendant. In the case of State v. Myers (1959), 82 Ohio Law Abs., 216, this court established a principle concerning a test of the validity of procedures in securing samples of body fluids for use in chemical tests. It is set out in headnote one, as follows: "Where the state wishes to introduce into evidence the results of a blood test given defendant it is incumbent upon it to show that the specimen is defendant's and that there has been no substitution or tampering, but such burden is not so absolute as to require the state to negate all possibility of tampering." In the instant case, the city has met the prescribed burden. This is an appeal on questions of law. In the Neff case,supra, in paragraph two of the syllabus, we find language as follows: "In an appeal on questions of law, where the trial court's findings of fact are supported by substantial evidence of sufficient probative value, the Court of Appeals cannot, as a matter of law, find the facts otherwise than as found by the trier of the facts." Our examination of the record indicates that the "trier of the facts," the jury, had before it evidence of sufficient probative value to find as it did, and further, it reveals no error prejudicial to the defendant, on the part of the trial court. The judgment of the trial court is affirmed. Judgment affirmed. DUFFY, P. J., and BRYANT, J., concur. *Page 361

2016-07-06 06:36:38.210394+00

Fain

Petitioner Susan A. Harvey ("Harvey") is seeking a writ of habeas corpus ordering the release of her two children, Amanda Jayne and Luke Peter Bentley, from the custody of respondent, Scott A. Bentley ("Bentley"), father of the children. Scott Bentley and Susan Harvey were married in Banbury, England, in 1983. Amanda Jayne Bentley was born in 1984. Bentley was a member of the United States Air Force stationed in England until approximately April 1985, at which time he was transferred to Wright Patterson Air Force Base, in Ohio. Bentley and Harvey, along with their daughter and Harvey's daughter from a previous marriage, traveled to Wright Patterson Air Force Base. In July 1985, Harvey left Bentley and returned with her two daughters to Banbury, England. In September 1985, Bentley filed a divorce complaint in the Montgomery County Common Pleas Court, Domestic Relations Division, and requested custody of Amanda Bentley. An English solicitor acting on behalf of Harvey notified the Montgomery County court of Harvey's intention not to attend the *Page 377 hearing on Bentley's divorce complaint, and informed the court of possible divorce proceedings in England. During the pendency of Bentley's divorce complaint, Harvey filed a divorce complaint in England. Bentley obtained a judgment and final decree of divorce from Harvey on March 4, 1986. He was awarded custody of the parties' minor children, Amanda and Luke, who was born on December 20, 1985, in England. Harvey was granted a divorce and awarded custody of the minor children on June 5, 1986, following a decree issued on April 9, 1986. Harvey now claims that she never received a copy of the judgment and final decree of divorce from the Montgomery County court, nor was she aware that Bentley had obtained custody of their two minor children until March 1991. Bentley disputes this claim. Harvey remarried and moved to Florida from England. On March 14, 1991, the Circuit Court of the Fourteenth Judicial Circuit of Florida for Bay County granted Bentley's petition for a writ of habeas corpus, based upon the Montgomery County court's custody decree. The court ordered the immediate removal of the two children from Harvey's custody. Harvey is now before this court seeking a writ of habeas corpus ordering the release of Amanda and Luke Bentley from Scott Bentley's custody. Harvey presented her case at a hearing before this court. At the close of Harvey's case, Bentley moved to dismiss the petition for a writ of habeas corpus. Harvey contends that the Montgomery County court did not have jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act to make an initial determination of the custody of the parties' minor children and, therefore, the Montgomery County judgment as to the custody of the children is void. Harvey requests that this court determine the best interests of the Bentley children and enforce the English custody order pursuant to principles of comity. Bentley contends that the Montgomery County court had jurisdiction to make the initial custody determination of the Bentley children pursuant to the Uniform Child Custody Jurisdiction Act. Bentley further contends that this court should not grant habeas corpus relief because an adequate remedy at law is available to Harvey. "A writ of habeas corpus is an extraordinary remedy and will not ordinarily be granted when there is another adequate remedy at law." Linger v. Weiss (1979), 57 Ohio St. 2d 97, 101, 11 O.O.3d 281, 283, 386 N.E.2d 1354, 1356, citing In re Piazza (1966), 7 Ohio St. 2d 102, 36 O.O.2d 84, 218 N.E.2d 459; In reHunt (1976), 46 Ohio St. 2d 378, 75 O.O.2d 450, 348 N.E.2d 727. "[I]n order for there to be an adequate remedy at law, a remedy must be complete, beneficial, and speedy." Marich v. Knox Cty.Dept. of Human Serv. (1989), 45 Ohio St. 3d 163, 165,543 N.E.2d 776, 779. In Marich, the Ohio *Page 378 Supreme Court determined that undue influence by a representative of the department of human services invalidated a permanent surrender agreement with a natural parent, who was a minor, single, and unrepresented by counsel. In affirming the appellate court judgment granting a writ of habeas corpus to the parent, the Supreme Court concluded that custody of the child remained with the parent. The facts of Marich gave rise to a narrow issue which could be decided expeditiously. Furthermore, R.C.3107.16(B) provides that a decree of adoption may not be challenged after the expiration of one year, with limited exceptions. As a result, the element of time was crucial. Unlike Marich, the facts in the case before us give rise to the broad issue of determining the best interests of two children. An appellate court is not the best forum for determining the best interests of children with respect to custody.1 For this reason, appellate courts ordinarily accord to domestic relations courts, which specialize in child custody determinations, great deference with respect to such determinations. Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 47 Ohio Op. 481, 483, 106 N.E.2d 772, 774. Harvey acknowledges in her brief that she may pursue a motion for relief from the judgment in the domestic relations court pursuant to Civ.R. 60(B). Another possible remedy is to seek to modify the Ohio decree based upon changed circumstances. In reliance upon Marich, supra, Harvey contends that a child should be placed in a permanent home environment at the earliest possible moment and that the remedies available to her are not practical, convenient, or effective. However, the UCCJA is available to Harvey as a tool to help ease such practical difficulties and to provide Harvey with an effective and complete statutory remedy. Because other remedies at law are available to Harvey, we conclude that the use of the extraordinary writ of habeas corpus is not proper in this case. In determining that habeas corpus relief is not the proper remedy, we are governed by our conclusion that the custody decree issued in Ohio is not jurisdictionally void. Had we concluded that the Ohio decree is jurisdictionally *Page 379 void, then we might well have decided to grant habeas corpus relief, since we could do so simply on the basis of Harvey's English decree, without having to determine the best interests of the children. We conclude, however, that the Ohio custody decree is not jurisdictionally void, for the reasons that follow. The Uniform Child Custody Jurisdiction Act ("UCCJA"), codified in Ohio at R.C. 3109.21 through 3109.37, was adopted for the purposes of protecting the best interests of children in custody disputes by avoiding jurisdictional competition and conflict between Ohio courts and courts of other states and assuring that the state with the optimum access to relevant facts makes the custody determination. In re Wonderly (1981),67 Ohio St. 2d 178, 180, 21 O.O.3d 111, 112, 423 N.E.2d 420, 422. An Ohio court's assumption of jurisdiction in a child custody dispute is governed by R.C. 3109.22(A)(1) through (4), which provide: "(A) No court of this state that has jurisdiction to make a parenting determination relative to a child shall exercise that jurisdiction unless one of the following applies: "(1) This state is the home state of the child at the time of commencement of the proceeding, or this state had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a parent who claims a right to be the residential parent and legal custodian of a child or by any other person claiming his custody or is absent from this state for other reasons, and a parent or person acting as parent continues to live in this state; "(2) It is in the best interest of the child that a court of this state assumes jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; "(3) The child is physically present in this state and either has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; "(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with division (A)(1), (2), or (3) of this section, or a court in another state had declined to exercise jurisdiction on the ground that this state is the more appropriate forum to make a parenting determination relative to the child, and it is in the best interest of the child that this court assume jurisdiction." *Page 380 The statute specifically provides that no Ohio court thathas jurisdiction to make a parenting determination relative to a child shall exercise that jurisdiction unless one of the four enumerated criteria applies. An Ohio court of common pleas has the power and duty pursuant to R.C. 3105.21(A) in divorce actions to provide for the disposition, care, and maintenance of the children of the marriage. In doing so, the court must consider the best interests of the children in accordance with R.C. 3109.04. Therefore, we conclude that the Ohio court, which concededly had jurisdiction of Bentley's divorce action, had the power, or jurisdiction, to provide for the custody of the children of the marriage. Of course, one limitation upon the exercise of the court's subject matter jurisdiction is that the court must have personal jurisdiction over the person whose rights are being adjudicated. In the context of a child custody determination, as in other contexts, this requires minimum contacts with the state before jurisdiction over the person may be exercised. Pasqualone v.Pasqualone (1980), 63 Ohio St. 2d 96, 102-104, 17 O.O.3d 58, 62-63, 406 N.E.2d 1121, 1126-1127. We are satisfied that Harvey's having resided in Ohio with her husband and child for three months in 1985, shortly before Bentley filed the Ohio divorce action, provided sufficient contacts with Ohio to support personal jurisdiction over Harvey. Even though the Ohio court had jurisdiction to provide for the custody of the children, it might have erred in deciding to exercise that jurisdiction if it did not properly follow R.C.3109.22(A). In our view, any error in following the precepts of R.C. 3109.22(A) in deciding whether to exercise jurisdiction with respect to child custody is merely reversible error; it would not fall so far outside the proper scope of the trial court's jurisdiction as to render its judgment void. From the statutory language used, which (i) recognizes that the trial court has jurisdiction, and (ii) provides for discretion in the trial court's determination whether to exercise that jurisdiction, based on the facts of the particular case, we conclude that the General Assembly intended for custody orders made under circumstances in which the trial court should not have exercised its jurisdiction to be voidable, but not void. Accordingly, we reject Harvey's contention that the Ohio custody decree is jurisdictionally void and, therefore, not entitled to recognition in opposition to the subsequent, and contrary, English custody decree. Prior to making a parenting determination, the court must give the contestants reasonable notice of the proceeding and an opportunity to be heard. Notice to persons outside Ohio must be given in accordance with the Rules of Civil Procedure governing service of process, in a manner governed by law, or as directed by the court. R.C. 3109.23(B). Pursuant to R.C. 3105.21(A), the *Page 381 trial court must make a parenting determination in regard to all children of the marriage. In the case before us, Bentley's complaint against Harvey requested custody of Amanda. At the time the divorce complaint was filed, Luke had not been born. During the hearing, the complaint was amended to request custody of Luke Bentley. The trial court granted custody of all the minor children of the marriage to Bentley after finding that the "defendant has been duly served with summons as required by law, which service is hereby approved and confirmed by the Court." Harvey received notice of the claim for custody of Amanda. She responded to the complaint through an English solicitor who notified the Montgomery County court that she would not attend that court's scheduled hearing. Harvey was informed of the pending proceeding and chose not to participate or contact an Ohio attorney for advice as to the potential consequences of refusing to participate in the matter. Although the original complaint referred only to Amanda's custody, Harvey was on constructive notice that Ohio law required the trial court to provide for the disposition of all of the children of her marriage to Bentley. Harvey was sufficiently on notice of the seriousness of the proceedings against her — an action for divorce — that she cannot now predicate her claim for relief based upon her ignorance of the potential legal consequences of those proceedings. It was her duty to seek the advice of Ohio counsel concerning the possible consequences of the Ohio proceedings, and she should not be permitted to make a collateral attack on the judgment resulting from those proceedings as a result of her failure to seek the advice of Ohio counsel. The presumption that litigants know the law may not be realistic, but it is essential if judgments are to retain any efficacy. For all of the foregoing reasons, we conclude that the judgment of the Ohio court awarding custody of both minor children to Bentley is not void; at most, it might be voidable, but it is not void. Accordingly, the writ of habeas corpus sought by Harvey is hereby DENIED. Relief denied. BROGAN and GRADY, JJ., concur. 1 Although we conclude that this court, in a habeas corpus proceeding, is not the best forum for determining the best interests of these children, that is a potentially fact-sensitive conclusion. We can think of at least two situations where an appellate court, in habeas corpus proceedings, might find it necessary to determine the best interests of the children. The first example would be where the children are in the possession of someone with no colorable right to their custody — a kidnapper, for example — but there are two or more rival claimants for their custody, each of whom has a colorable claim. The second example would be where there is evidence that children are in imminent physical danger from either the person having their possession or the person seeking their custody. In the case before us, although Harvey has presented evidence tending to disparage Bentley's abilities as a custodial parent, her evidence falls short of persuading us that the children are in any imminent physical danger. *Page 382

2016-07-06 06:36:38.244322+00

JOURNAL ENTRY AND OPINION {¶ 1} David Gavel appeals a decision of the common pleas court granting summary judgment in favor of Performance Auto Wash (Performance). On appeal, he assigns the following as error for our review: {¶ 2} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT GRANTED THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE REMAINED GENUINE ISSUES OF MATERIAL FACT REGARDING WHETHER THE APPELLEE HAD CONSTRUCTIVE NOTICE OF THE MISSING GRATE AND THE HOLE IN WHICH THE PLAINTIFF/APPELLANT FELL. {¶ 3} Having reviewed the arguments of the parties and the pertinent law, we conclude no genuine issue of material fact exists and the trial court properly granted summary judgment in favor of Performance. {¶ 4} On March 14, 1997, Gavel brought his car to a self-serve car wash owned by Performance located at 7220 Brookpark Rd., Cleveland, Ohio. No employees were present at any of the 10 to 12 washing areas. Gavel testified he exited his vehicle, backed up to close the door, stepped into a hole, and fell to the ground. He further testified a grate that should have been covering the hole was missing. {¶ 5} In August 2000, Gavel initiated a lawsuit against Performance and John and Jane Doe, seeking damages for personal injuries and lost wages. Subsequently, in March 2001, Performance moved for summary judgment, claiming no genuine issues of material fact existed and summary judgment should be granted in their favor as a matter of law. The trial court agreed and Gavel now appeals.1 {¶ 6} On appeal, Gavel argues there is sufficient evidence to establish Performance had constructive notice of the missing grate; therefore, genuine issues of material fact remain to be litigated. {¶ 7} We review the trial court's granting of summary judgment de novo in accordance with the standards set forth in Ohio Civ.R. 56(C).2 {¶ 8} Civ.R. 56(C) states in pertinent part: {¶ 9} * * * 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. {¶ 10} Further, the court in Dresher v. Burt3 stated: {¶ 11} * * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on the essential element(s) of the non-moving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. * * * If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden * * * to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. {¶ 12} An owner or occupier of land generally owes a duty to business invitees to exercise ordinary care to maintain the premises in a reasonably safe condition.4 To recover from a premises owner in an action for personal injury due to the owner's negligence, a plaintiff must show that the owner was responsible for the hazard complained of, that he had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly, or that such danger existed for a sufficient length of time to reasonably justify the inference that the failure to warn against it or remove it was attributable to want of ordinary care.5 {¶ 13} In Youngerman v. Meijer,6 the court noted where a store, through its officers or employees, was the creator of a hazardous condition, it is not necessary that the plaintiff produce evidence of notice. However, when the store was not the source of the hazardous condition, the plaintiff must produce evidence that the store had actual or constructive notice of the condition.7 Constructive notice can be proven by direct or circumstantial evidence.8 Circumstantial evidence is the proof of certain facts and circumstances from which one may infer other facts which, according to common experience, reasonably follow. {¶ 14} Performance filed for summary judgment claiming Gavel failed to produce any evidence that it had notice of the missing drain grate or that its absence was the result of the act of a Performance employee. Additionally, Gavel failed to offer any evidence from which a jury could reasonably infer that the condition existed long enough for Performance to have discovered and corrected the problem. In support, Performance directs our attention to Gavel's deposition, in which he testified he had no knowledge as to how long the drain grate had been missing prior to his accident. {¶ 15} Applying Dresher, we conclude Performance met its initial burden. The burden then shifts to Gavel to prove that there was a genuine factual dispute as to whether Performance created the condition or had notice of it. Despite Gavel's argument that Performance should have had constructive notice of the missing drain grate, he failed to offer evidence of the size or placement of the drain grate, or how long the grate had been missing. {¶ 16} The length of time sufficient for constructive notice has not been precisely defined.9 That question is necessarily dependent upon the circumstances of the individual case, such as, the degree of peril created by the condition, the ease with which it could be guarded against or remedied, and the location of the hazard. Nonetheless, proof of constructive notice requires a degree of certainty.10 Ohio courts will not indulge in speculation and juries may not be allowed to base their decisions purely upon conjecture.11 {¶ 17} In Fogle v. Shaffer,12 the Ohio Supreme Court considered whether one who steps in a hole that could have been easily seen if one had looked, in other words open and obvious, could recover for his or her injuries. The court decided that one could not unless it appeared that reasonable minds could conclude that the plaintiff had reasons to anticipate that there would be no potential danger in stepping, and found that the plaintiff in that case was not entitled to such a conclusion. {¶ 18} Gavel argues Performance breached its duty of care when Performance failed to have an employee on the premises. We disagree. The issue in this case is appropriately resolved by the law of constructive notice; and since Gavel has not shown that Performance should have known of the hazard, the trial court properly granted summary judgment. Accordingly, we affirm the decision of the court. 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. 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 ANN DYKE, J., CONCUR. 1 Gavel dismissed his claims against John and Jane Doe at the time he filed his notice of appeal. 2 N. Coast Cable L.P. v. Hanneman (1994), 98 Ohio App. 3d 434,440, 648 N.E.2d 875. 3 75 Ohio St. 3d 280, 1996-Ohio-107. 4 Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St. 3d 203,480 N.E.2d 474; Boles v. Montgomery Ward Co. (1950), 153 Ohio St. 381,92 N.E.2d 9, at paragraph one of the syllabus. 5 Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584,49 N.E.2d 925. See, also, Anaple v. Standard Oil Co. (1955),162 Ohio St. 537, 124 N.E.2d 128. 6 1996 Ohio App. LEXIS 4046 (Sept. 20, 1996), Montgomery App. No. 15732. 7 Presley v. Norwood (1973), 36 Ohio St. 2d 29, 31, 303 N.E.2d 81. 8 Detrick v. Columbia Sussex Corp., Inc. (1993), 90 Ohio App. 3d 475,478, 629 N.E.2d 1081. 9 Catanzano v. Kroger Co. 1995 Ohio App. LEXIS 22 (Jan. 11, 1995), Hamilton App. No. C-930761. 10 Parras v. Standard Oil Co. (1953), 160 Ohio St. 315,116 N.E.2d 300. 11 Id.; Allen v. American Building Services, Inc., 1993 Ohio App. LEXIS 5362 (Nov. 19, 1993), Montgomery App. No. 13975. 12 (1958), 167 Ohio St. 353, 148 N.E.2d 687.

2016-07-06 06:36:38.270942+00

This matter is before the court on appeal from the Erie County Court of Common Pleas, Juvenile Division, which adjudicated appellant a delinquent for the charge of rape and committed him to the custody of the Department of Youth Services for a minimum term of one year and a maximum not to exceed the age of twenty-one. Appellant asserts the following assignments of error: "I. IT IS CONTRARY TO LAW AND AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO FAIL TO CONSIDER THE FELONY SENTENCING GUIDELINES UNDER O.R.C. 2929.11 AND 2929.12, OR FAIL TO MAKE A RECORD OF SUCH CONSIDERATION. II. IT IS CONTRARY TO LAW AND AN ABUSE OF DISCRETION FOR THE TRIAL COURT, AFTER CONSIDERING THE FELONY SENTENCING GUIDELINES, TO ORDER APPELLANT INTO THE CUSTODY OF THE OHIO DEPARTMENT OF YOUTH SERVICES WHEN APPELLANT HAS SUCCESSFULLY COMPLETED A RESIDENTIAL TREATMENT PROGRAM AND PROBATION, AND THE OFFENSE PRE-DATES SAID TREATMENT PROGRAM AND PROBATION." In his first assignment of error, appellant contends the court erred in not considering the felony sentencing guidelines found in R.C. 2929.11 and 2929.12. In his second assignment of error, appellant contends that the court's commitment is contrary to the felony sentencing guidelines. Appellant's argument is based on the erroneous assumption that he was convicted of a criminal act. It is well settled that: "[D]elinquency has not been declared a crime in Ohio and the Ohio Juvenile Act is neither criminal nor penal in its nature, but is an administrative police regulation of a corrective character. Proceedings instituted in a Juvenile Court are not criminal in nature nor are they conducted with the objective of convicting a minor of a crime and punishing him, therefor; they are informal hearings through a medium of the Juvenile Court to determine whether the child needs intervention of the state as guardian and protector of his person." In Re L. (1963), 92 Ohio Law. Abs. 475. As R.C. 2929.11 and R.C. 2929.12 only apply to felony criminal convictions, they are not applicable to this case. Accordingly, appellant's first and second assignments of error are found not well-taken. On consideration whereof, the court finds that substantial justice has been done the party complaining, and the judgment of the Erie County Court of Common Pleas, Juvenile Division, is affirmed. Costs assessed to appellant. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App. R. 27. See, also, 6th Dist.Loc.App.R. 4 Peter M. Handwork, P.J. Melvin L. Resnick, J. James R. Sherck, J. CONCUR.

2016-07-06 06:36:38.123471+00

I must respectfully dissent from the judgment and opinion of the majority for the following reasons. At the outset, I want to note my agreement with the majority's conclusion that this case involves a breach of contract as opposed to a tort action. I, however, part company with the majority on the issue of appellant's entitlement to $250 in damages for the alleged bad haircut she received at the hands of appellee. First, in the context of a breach of contract action, the award of money damages is designed to place an aggrieved party in the same position that he or she would have been had the contract not been breached. Buckley v. Ollila (Mar. 3, 2000), Trumbull App. No. 98-T-0177, unreported, at 7-8, 2000 Ohio App. LEXIS 787, citing Schulke Radio Productions, Ltd. v. Midwestern BroadcastingCo. (1983), 6 Ohio St.3d 436, 439. In other words, damages are to be compensatory in nature and not punitive. Buckley at 8, citingLake Ridge Academy v. Carney (1993), 66 Ohio St.3d 376, 381. A party is not entitled to be placed in a better position than if the contract had not been breached. Brads v. First Baptist Churchof Germantown (1993), 89 Ohio App.3d 328. It is incumbent upon the plaintiff in a breach of contract action to bear the burden of proving the nature and extent of his or her damages in order to be entitled to compensation.Akro-Plastics v. Drake Industries (1996), 115 Ohio App.3d 221,226. An injured party cannot recover damages for breach of contract in excess of the amount that is established by the evidence with reasonable certainty. Cordy v. D G Pools, Inc. (Dec. 26, 1997), Trumbull App. No. 97-T-0079, unreported, at 5, 1997 Ohio App. LEXIS 5849. Reasonable certainty is defined as "that degree of certainty of which the nature of the case admits."Edwards v. Floyd (Mar. 26, 1999), Trumbull App. No. 98-T-0027, unreported, at 6, 1999 Ohio App. LEXIS 1231, quoting Bemmes v.Public Emp. Retirement Bd. (1995), 102 Ohio App.3d 782, 789. In the instant matter, I believe that the damages awarded by the trial court were not based on a reasonable certainty, but instead, were speculative at best. While the record before the court is sparse, it is undisputed that appellant was not required to pay for the haircut. Moreover, there is no evidence in the record showing that appellant incurred expenses for substitute performance. As for appellant's purchase of the health food supplement to increase the growth of her hair, nothing before us indicates that it cost $250. I do not dispute the fact that appellant was upset with the haircut she received, and that it caused her some emotional distress. In fact, I believe that at least part of the trial court's award was based on appellant's anxiety over her appearance after the haircut. While I sympathize with appellant's position, the law is very clear in this regard. Because the purpose of damages in a breach of contract action is to compensate a person for the benefit of the bargain which was lost, there is no recovery for emotional distress resulting from that breach.Strawser v. Wright (1992), 80 Ohio App.3d 751, 755. Therefore, at a minimum, the trial court's award should be reduced to the nominal amount of one dollar. Otherwise, appellant would be placed in better position than she would have enjoyed had appellee cut her hair to appellant's satisfaction. As noted by the majority, this is a small claims action where procedural rules are sometimes relaxed to accommodate lay people. Even so, there must still be some evidence in the record, hearsay or otherwise, to support and explain the award. Here, the trial court apparently chose an arbitrary figure which it deemed proper under the circumstances. For the above reasons, I disagree with the trial court's assessment and respectfully dissent. I would reverse and enter judgment for one dollar nominal damage, as appellant presented no evidence as to any other amount. _____________________________________ PRESIDING JUDGE JUDITH A. CHRISTLEY

2016-07-06 06:36:38.576623+00

OPINION {¶ 1} George Skatzes was found guilty by a jury in the Montgomery County Court of Common Pleas of three counts of aggravated murder and three counts of kidnapping. The jury recommended the death penalty on two of the counts of aggravated murder, and the trial court agreed with this recommendation. The trial court sentenced Skatzes as follows: two death sentences, to be merged for the purpose of execution; a sentence of life imprisonment on the third count of aggravated murder, with no opportunity for parole for thirty years; and fifteen to twenty-five years on each of the three counts of kidnapping, to run consecutively with the other sentences imposed and with the sentence that Skatzes was serving at the time these offenses were committed. Skatzes appeals from his convictions. {¶ 2} The offenses in question arose from an eleven day prison riot in the L-block at the Southern Ohio Correctional Facility at Lucasville ("Lucasville") in April 1993. The L-block at Lucasville consisted of a large central corridor with four cell blocks extending from each side and a gymnasium at one end. Each of the eight cell blocks contained 80 cells, 40 on the lower level and 40 on the upper level accessed by a catwalk. Each cell block also contained restrooms, showers, and unit offices at the end near the central corridor and a locked stairwell at the rear. A recreation yard was accessible through a door in the gymnasium. The eight cell blocks were labeled L-1 through L-8, and the cells within each cell block were numbered 1 through 80. Thus, L-6-60 indicated cell 60 in cell block 6. {¶ 3} The state's evidence established the following. The riot was planned by the prison's primary gangs: the Aryan Brotherhood, a white supremacist group, the Muslims, who were mostly black, and the Black Gangster Disciples, who focused on making money rather than on any philosophical viewpoint. It was unusual for these groups to work together. The Muslims were upset on religious grounds by mandatory tuberculosis testing scheduled to begin on Monday, April 12, 1993, and the Aryan Brotherhood was upset by racial integration in inmate housing. {¶ 4} On April 11, 1993, Easter Sunday, the riot began in L-block at approximately 3:00 p.m. as inmates from one or two cell blocks were returning from the recreation yard. The prison was short-staffed that day because of the holiday. The inmates overpowered the corrections officers in the gymnasium and in the central corridor, beat them, and took their keys. Within a relatively short period of time, the various cell blocks and individual cells throughout L-block were unlocked, and the inmates were released into the common areas. The corrections officers who had been staffing the cell blocks fled to the locked restrooms and stairwells for safety pursuant to prison policy, but inmates broke through metal doors and cinder block walls using weight bars and furniture and took them hostage. The corrections officers were beaten, some seriously, then were gathered in designated areas and changed into inmate clothing. Meanwhile, the gangs positioned inmate guards at the door to the recreation yard to prohibit inmates from leaving L-block. Over four hundred inmates remained inside L-block for the duration of the riot. {¶ 5} The initial hours of the riot were characterized by chaos, random destruction of prison property, and violence against inmates who were believed to be "snitches" or against whom others had personal vendettas. However, the leaders of the three gangs worked together and organization began to emerge. The most seriously injured corrections officers were released onto the recreation yard, and the bodies of several murdered inmates, including Earl Elder, were deposited there as well. Gang members armed themselves with a wide variety of makeshift weapons, established internal rules, designated security officers, and began telephone negotiations with authorities. Each gang occupied a designated area, and each held some of the hostages. Authorities cut off power and water to L-block. {¶ 6} Skatzes and Jason Robb were the leaders of the Aryan Brotherhood during the riot. Skatzes was one of the primary negotiators with the authorities during the early days of the riot and identified himself to the authorities. Along with the other inmate negotiators, Skatzes presented a list of demands compiled by gang members and other inmates. The demands related to prison conditions generally, such as the tuberculosis testing and the racial integration, and to conditions as they existed during the course of the riot, such as the need for food drops and the inmates' desire that water and power be restored to L-block. Officials began audio taping these telephone negotiations on April 13. They also installed microphones in tunnels that ran underneath L-block, which were able to record some of the inmates' conversations, including some of the meetings of the gang leaders ("the tunnel tapes"). {¶ 7} As days passed, there was some unhappiness and restlessness among the gang leaders about the lack of progress in the negotiations. These feelings were exacerbated by an April 14 television broadcast by Tess Unwin, a spokesperson for the Department of Rehabilitation and Corrections, which seemed to disparage the inmates' threat to kill a hostage. During telephone negotiations on the morning of April 15, Skatzes repeated the gangs' demand that water and power be restored to L-block, and he specified that, if the state did not comply by 10:30 a.m., "it's a guaranteed murder." The state did not comply, and at 11:10 a.m., the body of Corrections Officer Robert Vallandingham was placed on the recreation yard by four inmates. {¶ 8} Later that day, the gang leaders agreed to release a hostage in exchange for making a radio broadcast regarding their demands. Skatzes made the radio broadcast on behalf of the inmates that night, and Corrections Officer Darrold Clark was released. Because many inmates and gang members were disappointed with Skatzes' presentation of their demands in the radio broadcast, his role in the negotiations diminished after this point. {¶ 9} After several more days of negotiation and after consulting with an attorney, the gang leaders agreed to a surrender on April 21, 1993. The surrender occurred over several hours as small groups of inmates were processed by the authorities. The gang leaders were the last inmates to surrender, and the remaining hostages were released. Some murders and attempted murders occurred during the surrender, including the murder of inmate David Sommers, whose body was found when the authorities reentered L-block. As part of their agreement with the authorities, over one hundred gang members were transferred out of Lucasville immediately upon their surrender. {¶ 10} When the authorities entered L-block to conduct their investigation, they found vast destruction of prison property. For example, almost all of the windows, toilets, and sinks had been smashed, pipes had been exposed, and fires had been set. Because of the vast destruction, the number of inmates involved, and the elapsed time, the authorities were unable to uncover physical evidence linking crimes to particular inmates. Thus, they built cases based largely upon the testimony of other inmates. In all, fifty inmates were charged with felonies, and many more were disciplined administratively following the riot. {¶ 11} Skatzes was indicted for the aggravated murders of Elder, Vallandingham, and Sommers and for kidnapping Elder, Vallandingham, and Clark.1 The evidence in support of each of these counts will be discussed infra. Each count of aggravated murder included four specifications of aggravating circumstances: that Skatzes was a prisoner at the time of the offense, that the offense was part of a course of conduct by Skatzes involving the purposeful killing of or attempt to kill two or more persons, that the offense was committed while committing kidnapping, and that he had previously been convicted of an offense involving the purposeful killing of another. Each count of kidnapping contained a specification that Skatzes had previously been convicted of an offense that was substantially equivalent to an aggravated felony of the first degree, namely aggravated murder. {¶ 12} The case was transferred from Scioto County to Montgomery County, and Skatzes was tried to a jury in October, November, and December 1995. Skatzes elected to have the existence of his prior conviction determined by the trial court, rather than the jury, as permitted by R.C. 2929.022(A). The jury found Skatzes guilty of each count of aggravated murder and found that each of the three specifications submitted to it existed. Additionally, the trial court found that the fourth specification existed, i.e., that Skatzes had previously been convicted of an offense involving the purposeful killing of another. The jury also found Skatzes guilty of each count of kidnapping. {¶ 13} Additional evidence was presented at the sentencing phase of the trial. Regarding the murders of Elder and Sommers, the jury concluded that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and sentenced Skatzes to death. The trial court agreed with this recommendation. With respect to Vallandingham's murder, the jury found that the aggravating circumstances did not outweigh the mitigating factors beyond a reasonable doubt and imposed a sentence of life imprisonment with parole eligibility after serving thirty full years. Skatzes was sentenced as described supra. {¶ 14} Skatzes filed a notice of appeal on April 15, 1996. The appeal has been protracted because of irregularities in the record which will be discussed infra. Skatzes raises sixty-two assignments of error in his original brief and nine additional assignments of error in his supplemental briefs. The American Civil Liberties Union of Ohio Foundation has also filed a brief of amicus curiae raising four assignments of error. {¶ 15} In his twenty-first through twenty-fourth assignments of error, Skatzes asserts that the state's evidence was insufficient to support his convictions and that the trial court erred in denying his Crim.R. 29(A) motions for acquittal. Because our discussion of these assignments will provide additional information about the facts of this case, we will begin with them. We will briefly address our standard of review for these claims before discussing the assignments of error individually. {¶ 16} Crim.R. 29(A) states that the trial court shall enter a judgment of acquittal on one or more offenses charged in the indictment if the evidence is insufficient to sustain a conviction of such offense or offenses. "`[S]ufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins, 78 Ohio St.3d 380,386, 1997-Ohio-52, citing Black's Law Dictionary (6th Ed. 1990) 1433. When reviewing the sufficiency of evidence, the relevant inquiry is whether any rational finder of fact, viewing the evidence in a light most favorable to the state, could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Dennis,79 Ohio St.3d 421, 430, 1997-Ohio-372, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789. A guilty verdict will not be disturbed on appeal unless "reasonable minds could not reach the conclusion reached by the trier-of-fact." Id. {¶ 17} With this standard in mind, we turn to Skatzes' twenty-first, twenty-second, twenty-third, and twenty-fourth assignments of error. {¶ 18} "21. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S OHIO CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL ON THE ELDER KILLING AND KIDNAPPING." {¶ 19} Skatzes claims that the evidence failed to establish that he was "intentionally involved" in the kidnapping or murder of inmate Earl Elder. {¶ 20} The state's evidence established that, at the outset of the riot, Corrections Officer Jeffrey Ratcliff and inmate Elder, who was out of his cell, had fled to the locked rear stairwell of L-2 for safety. Once the inmates had been released from their cells, a group of them bludgeoned the cinder block walls and the door of the stairwell with a weight bar and were eventually able to extract Officer Ratcliff and Elder. Both men were beaten when they emerged. There was some disagreement among the inmate witnesses about whether Skatzes had participated in removing Elder from the stairwell and in beating him. Inmate Miles Hogan testified, however, that Skatzes had been talking to someone through the small window in the L-2 stairway door while others, including the other leaders of the Aryan Brotherhood and the Muslims, had been "punch[ing] holes in the wall" with the weight bar. Hogan testified that the inmates had acted "like a pack of wild dogs" toward the men who had been inside the stairwell and that he was sure Skatzes had been in this group. Aryan Brotherhood lieutenant Rodger Snodgrass and another inmate, Tim Williams, testified that Elder had been locked in L-6-60 after he had been beaten because he was a snitch. {¶ 21} Snodgrass further testified that, on the first night of the riot, Skatzes had approached him and had said that they needed to go to L-6. They were joined by a Muslim named Lucky Roper. Skatzes walked Snodgrass to L-6-60 and told Snodgrass to "take care of your business, son." Snodgrass interpreted this statement to mean that he was to kill the man in the cell. Snodgrass was unaware of the man's identity at that point. The cell door was unlocked for Snodgrass, and he could tell that the man inside was already "kind of messed up" from being "assaulted * * * [or] stabbed * * * beforehand * * * [and] was kind of groggy." Snodgrass told Elder to make his peace with God and then stabbed him with a shank resembling an ice pick. Snodgrass stabbed Elder several times in the neck, chest, and side, first while Elder was standing and then while he was on the floor. Elder was still moaning when Snodgrass left the cell. Skatzes and Roper had been by the cell door during the attack and, when it was over, Skatzes had put his arm around Snodgrass and had said "you did a good job, brother, I am proud of you." Snodgrass explained that he had acted on Skatzes' orders because he believed that he would have been killed if he had disobeyed an order from the Aryan Brotherhood. Aryan bylaws were introduced in support of this claim. Roper later told Snodgrass that Elder was not dead and, when Snodgrass conferred with Skatzes about this report, Skatzes told Snodgrass that he would "take care of it." {¶ 22} Inmate Williams corroborated much of Snodgrass's testimony. Williams had been invited into L-6 for safety by one of his Muslim friends and was watching late night television in the back of the block on the first night of the riot. He testified that Skatzes, Roper, and Snodgrass had entered L-6 and had walked down the cell block to cell L-6-60. Williams had not previously been aware of the man in that cell, who was "unrecognizable" because his "face was puffy, black and bruised and distorted." According to Williams, the men unlocked the cell, Snodgrass asked the man inside whether he had made peace with his God, and then Snodgrass repeatedly stabbed him. Williams testified that, when Snodgrass had finished stabbing the man, he and Skatzes had walked up the cell block together and Skatzes had placed his arm around Snodgrass's shoulder in a congratulatory gesture "[t]he way that a father would put his arm around his son if he did a good job at something." Skatzes had appeared to be happy with Snodgrass, not angry or upset. Roper went into the cell and inflicted additional wounds after Skatzes and Snodgrass had left. Williams later saw the body being carried out of L-6. {¶ 23} Viewing this evidence in a light most favorable to the state, reasonable minds could have concluded that Skatzes had been "intentionally involved" in Elder's kidnapping and murder. The trial court did not err in denying Skatzes' Crim.R. 29(A) motion for acquittal on the charges relating to Elder. {¶ 24} The twenty-first assignment of error is overruled. {¶ 25} "22. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S OHIO CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL ON THE VALLANDINGHAM KILLING AND KIDNAPPING." {¶ 26} Skatzes claims that the state offered no evidence to prove that he had kidnapped or killed Corrections Officer Robert Vallandingham and that his motion for acquittal should have been granted. {¶ 27} Numerous witnesses testified that Skatzes had been a high ranking member of the Aryan Brotherhood at Lucasville and had been part of the prisoners' negotiation team. Several inmates testified that they had heard Skatzes talk about killing a guard in order to be taken seriously if demands for the restoration of power were not met. Further, Black Gangster Disciple leader Anthony Lavelle testified that Skatzes had been present at a meeting of gang leaders during which the killing of a guard had been discussed. Snodgrass also testified that Skatzes had been one of the voting members of the Aryan Brotherhood delegation at gang meetings and that Skatzes had not opposed killing a guard. Lavelle stated that both he and Skatzes had agreed with the plan to kill a guard if demands were not met and that, in fact, Skatzes had been designated as the Aryan Brotherhood participant in the killing. {¶ 28} Sergeant Howard Hudson of the State Highway Patrol testified that, on the morning of April 15, while negotiating on behalf of the inmates, Skatzes had issued an ultimatum that a guard would be killed if the state did not accede to the inmates' demand that power and water be restored to L-block. Vallandingham's body was brought out onto the recreation yard later that morning, and coroners determined that he had died in the hours immediately preceding the removal of his body. Moreover, inmate Kenneth Hazlett testified that he had seen Skatzes and other gang leaders going into L-6 on the morning of Vallandingham's murder and that they had come back out forty-five minutes to one hour later carrying a body. Inmates David Lomache and Robert Brookover testified that Skatzes had been one of the gang members who had escorted Vallandingham's body through the halls of L-block. Viewing this testimony in a light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that Skatzes was an active participant in the murder of Vallandingham, and was thus guilty of aggravated murder. {¶ 29} There was also sufficient evidence from which a jury could have concluded that Skatzes was an active participant in the kidnapping of Vallandingham and was thus guilty of kidnapping. There was testimony from several witnesses that, due to his leadership role in the riot, Skatzes had exercised control over the movement and treatment of the hostage corrections officers. In particular, inmate Hazlett recalled that Skatzes had moved Vallandingham between cell blocks in the early days of the riot. The fact that Skatzes may not have participated in extracting Vallandingham from the locked bathroom to which he had fled at the outset of the riot does not absolve Skatzes of responsibility for restraining Vallandingham of his liberty during the course of the riot by virtue of his leadership role in the Aryan Brotherhood. Again, a rational trier of fact could have concluded that Skatzes had kidnapped Vallandingham. {¶ 30} The trial court did not err in overruling Skatzes' motion for a judgment of acquittal on the counts related to Vallandingham. The twenty-second assignment of error is overruled. {¶ 31} "23. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S OHIO CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL ON THE SOMMER'S [SIC] KILLING." {¶ 32} Skatzes claims that there was insufficient evidence that he murdered inmate David Sommers to send the matter to the jury. {¶ 33} Various inmates testified that, during the riot, Sommers had controlled the phones in L-2, where the bulk of the negotiations had taken place, and that he had also made bombs. Although L-2 was occupied by the Aryan Brotherhood during the riot, Sommers was not a member of the Aryan Brotherhood, and there was some concern among the Aryans that both Sommers and Brookover were "snitches" who could not be trusted to keep quiet. Brookover testified that, on the day of the surrender, he had been given a lightening bolt tattoo against his will by the Aryan Brotherhood and had been told that he was going to have to kill someone. The apparent purpose of this task was to keep Brookover quiet about what had happened during the riot. Brookover testified that, while the surrender had been underway, inmates Dewey Bocook, Skatzes, and Snodgrass had led him from L-2 into L-7, and then Robb had led Sommers into L-7. Brookover tackled Sommers, stabbed him, and choked him with an extension cord while Skatzes kicked Sommers and repeatedly hit him in the head with a baseball bat as "hard as [he] could hit." Brookover claimed that he had done these things because he had "wanted to live more than anything in the world" and had believed that he would be killed if he did not participate. Brookover stated that the group had surrendered about twenty minutes later after burning some of their clothes. {¶ 34} Snodgrass corroborated much of Brookover's testimony. He stated that it had been the unspoken understanding among the Aryan Brothers that, if Brookover had not participated in a killing to show that he was not a snitch or a coward, he would have been killed. He testified that an armed group, including Brookover, had "dressed out" in an extra set of clothes that could be disposed of if they got bloody and had gone from L-2 to L-7 while the surrender was underway. Skatzes had been part of this group and had been armed with a baseball bat, but Snodgrass was unsure whether Skatzes had "dressed out." Snodgrass understood that they were going to kill some inmates who had plotted against the Aryan leadership during the riot, but, when the Muslims refused to release these men, Bocook demanded Sommers instead. According to Snodgrass, Robb led Sommers into L-7, and Skatzes administered "hard swings, straight down swings" with a baseball bat to Sommers' head. Snodgrass saw Brookover strangling Sommers with a cord and others in the group stabbing Sommers and also hitting him with a baseball bat. {¶ 35} The coroner testified that Sommers' skull had been "shattered" and that the head wounds had been the fatal blows. {¶ 36} From this evidence, a rational trier of fact could have concluded beyond a reasonable doubt that Skatzes had murdered Sommers. The trial court did not err in overruling his motion for acquittal. The twenty-third assignment of error is overruled. {¶ 37} "24. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S OHIO CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL ON THE CLARK KIDNAPPING." {¶ 38} Skatzes claims that the state's evidence was insufficient to support his conviction for Clark's kidnapping. {¶ 39} There is no question that Clark and the other corrections officers were held against their will by the leaders of the riot, and there was overwhelming evidence that Skatzes was one of the Aryan leaders during the riot. Moreover, as discussed supra, several witnesses testified that Skatzes had exercised control over the movement of the hostage corrections officers and how they were treated. For example, Clark himself stated that Skatzes had checked up on the hostages and that, when Clark had asked Skatzes to get him moved out of the Muslim block, Skatzes had moved him to the Aryan block. This evidence was sufficient to sustain Skatzes' conviction for Clark's kidnapping, and the trial court did not err in overruling Skatzes' motion for a judgment of acquittal. {¶ 40} The twenty-fourth assignment of error is overruled. {¶ 41} We will address Skatzes' remaining assignments of error in the order in which they are presented. {¶ 42} "1. THE INDICTMENT WAS INSUFFICIENT TO CHARGE KIDNAPPING, AGGRAVATED MURDER DURING THE COURSE OF A KIDNAPPING, OR THE DEATH SPECIFICATION THAT THE MURDER OCCURRED DURING THE COURSE OF A KIDNAPPING." {¶ 43} Skatzes argues that the indictments were defective because they did not fully inform him of the facts and elements of the charges he faced. {¶ 44} The offense of kidnapping is set forth at R.C. 2905.01(A) as follows: {¶ 45} "No person, by force, threat, or deception, * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: {¶ 46} "(1) To hold for ransom, or as a shield or hostage; {¶ 47} "(2) To facilitate the commission of any felony or flight thereafter; {¶ 48} "(3) To terrorize, or to inflict serious physical harm on the victim or another; {¶ 49} "(4) To engage in sexual activity * * * with the victim against the victim's will; {¶ 50} "(5) To hinder, impede, or obstruct a function of government, or to force any action or concession on the part of governmental authority." {¶ 51} Skatzes claims that the purpose for which the alleged kidnappings were committed was not sufficiently identified in the indictment because the indictment listed four of the five purposes set forth in the statute, R.C. 2905.01(A)(1-3) and (5), "in the disjunctive." Skatzes further argues that, regarding the offense set forth at R.C.2905.01(A)(2), the indictment was defective because it did not identify the underlying felony that he was alleged to have committed. {¶ 52} As a preliminary matter, we note that Skatzes did not object to the form of the indictment in the trial court. Crim.R. 12(B)(2) requires that objections to the indictment be raised before trial and, thus, Skatzes has waived all but plain error. Crim.R. 12(G); State v.Frazier, 73 Ohio St.3d 323, 332, 1995-Ohio-235; State v. Loines (1984),20 Ohio App.3d 69, 71. Plain error exists when the outcome would clearly have been different if the error had not occurred and should only be recognized with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Hill,92 Ohio St.3d 191, 203, 2001-Ohio-141; State v. Stallings,89 Ohio St.3d 280, 285, 2000-Ohio-164, citing State v. Long (1978),53 Ohio St.2d 91, paragraph three of the syllabus; State v. Jells (1990), 53 Ohio St.3d 22, 24, certiorari denied (1991), 498 U.S. 1111,111 S.Ct. 1020. Thus, we review the indictment for plain error. {¶ 53} "Courts cannot grant new trials based upon imperfection or inaccuracy in an indictment if the charge is sufficient to fairly and reasonably inform the defendant of the essential elements of the crime."State v. Landrum (1990), 53 Ohio St.3d 107, 119, certiorari denied (1991), 498 U.S. 1127, 111 S.Ct. 1092; Crim.R. 33(E)(1). Crim.R. 7(B) provides that an indictment shall contain a statement of the offense in the words of the applicable statute or in other words sufficient to give the defendant notice of all the elements of the offense with which he is charged. {¶ 54} The indictments on kidnapping in Skatzes' case tracked the language of R.C. 2905.01(A) and thus properly charged the offense. SeeState v. Murphy (1992), 65 Ohio St.3d 554, 583; Landrum,53 Ohio St.3d at 119; State v. Grimsley (1998), 131 Ohio App.3d 44, 46-47; Crim.R. 7(B). We are unpersuaded by Skatzes' argument that the indictment was vague in that it specified multiple purposes for the kidnappings "in the disjunctive," leaving him uncertain about which purposes the state intended to allege. In our view, it was apparent that the state intended to show that Skatzes had engaged in kidnapping for all of the stated purposes, rather than for just one of them, notwithstanding its use of the word "or" in listing the elements. The alleged purposes were not mutually exclusive. {¶ 55} Skatzes' argument that the indictment was defective because it did not specify the underlying felony regarding R.C. 2905.01(A)(2) is also without merit. The supreme court has held that an indictment is sufficient if it tracks the wording of the applicable statutes, especially when a bill of particulars may be used to obtain additional information. Murphy, 65 Ohio St.3d at 583. See, also, Frazier,73 Ohio St.3d at 332; State v. Reed (May 31, 1991), Lake App. No. 89-L-14-130.State v. Childs, 88 Ohio St.3d 194, 2000-Ohio-298, on which Skatzes relies in his brief, involved the failure to allege an overt act committed in furtherance of an alleged conspiracy. Although the supreme court held that this failure was a fatal defect in the indictment in that case, Skatzes' case is clearly distinguishable from Childs, and we are unaware of any case in which the supreme court has held that the failure to identify an underlying felony is a fatal defect in an indictment. Moreover, we note that Skatzes did avail himself of the opportunity to acquire additional information through a bill of particulars, and the bill of particulars identified aggravated riot as the felony underlying the R.C. 2905.01(A)(2) kidnapping charge. Thus, Skatzes was not unaware of the nature of the charges against him. {¶ 56} The first assignment of error is overruled. {¶ 57} "2. EVEN IF AN INDICTMENT FOR KIDNAPPING UNDER [R.C.]2905.01(A)(2), AGGRAVATED MURDER DURING A KIDNAPPING UNDER [R.C.]2903.01(B), OR A DEATH SPECIFICATION OF KIDNAPPING UNDER [R.C.]2929.04(A)(7) CAN UNDER SOME CIRCUMSTANCES BE SUFFICIENT WITHOUT IDENTIFYING THE ELEMENT OF PURPOSE OR THE FELONY AT ISSUE UNDER SUBPARAGRAPH (2) OF THE KIDNAPPING STATUTE, IT WAS NOT SUFFICIENT IN THIS CASE WHERE THE FELONY WAS AGGRAVATED RIOT." {¶ 58} Some of the counts of kidnapping with which Skatzes was charged alleged a purpose of facilitating the commission of another felony. See R.C. 2905.01(A)(2). Skatzes claims that he "did not learn that the felony underlying the kidnapping charges was aggravated riot until the closing argument." He also contends that, because of the complexity of the aggravated riot statute, R.C. 2917.02, and the state's failure to specify aggravated riot as the underlying felony in the indictment, neither he nor the grand jurors "contemplated this complicated intermingling of statutes and charges." {¶ 59} As we discussed under the first assignment of error, Skatzes did not object to the alleged defects in the indictment prior to trial and, as such, has waived all but plain error. See Crim.R. 12(B)(2) and (G); Frazier, 73 Ohio St.3d at 332. We also discussed the fact that underlying felonies are not required to be set forth in the indictment. See Murphy, 65 Ohio St.3d at 583; Frazier, 73 Ohio St.3d at 331-332;Reed, Lake App. No. 89-L-14-130. More importantly, the record wholly undercuts Skatzes' assertion that he did not realize that the underlying felony was aggravated riot until closing arguments. The bill of particulars revealed that aggravated riot was the underlying felony, and the state made reference to this fact in its opening statement. Because we find no plain error, and because Skatzes' assertions about discovering the nature of the underlying felony at closing argument are refuted by the record, we reject his argument that he had no knowledge of the underlying felony of aggravated riot. Further, insofar as there were other purposes set forth in the indictment for which Skatzes was charged with kidnapping, we cannot say that his conviction of kidnapping was dependent upon his having committed an underlying felony of aggravated riot. {¶ 60} Likewise, we are unpersuaded by Skatzes' assertion that the indictment does not indicate any understanding on the part of the grand jurors of the "complicated intermingling of statutes and charges" involved in this case. We do not find the aggravated riot statute or the interplay between the aggravated murder, kidnapping, and aggravated riot statutes to be particularly complicated, and we will not presume that the grand jurors did not understand the nature of the offenses presented or of the statutory scheme. {¶ 61} The second assignment of error is overruled. {¶ 62} "3. THE JURY WAS NEVER ADEQUATELY INSTRUCTED ON THE ELEMENTS OF KIDNAPPING AS AN INDEPENDENT CRIME, AN ASPECT OF AGGRAVATED MURDER UNDER OHIO REV. CODE § 2903.01(B), OR AS A DEATH SPECIFICATION." {¶ 63} Skatzes contends that the trial court failed to adequately instruct the jury on the offenses of kidnapping and aggravated riot. The aggravated riot instruction was related to the kidnapping charge because Skatzes was charged with kidnapping Vallandingham for various purposes, one of which was removing Vallandingham by force, threat or deception for the purpose of "facilitating the commission of any felony, to wit: aggravated riot * * *." Skatzes was not charged with the offense of aggravated riot itself. {¶ 64} With respect to kidnapping, Skatzes claims that the trial court's instructions failed to require the jury to agree upon his purpose in committing the kidnapping. With respect to aggravated riot, Skatzes claims that the instructions did not convey the need for the jury to unanimously find that Skatzes had engaged in disorderly conduct. He also asserts that the instructions did not require the jury to agree upon whether the riot was committed pursuant to R.C. 2917.02(A)(1) or R.C.2917.02(A)(3). Skatzes' argument ignores the fact that the jury was later instructed at least twice that, before it could find the defendant guilty of an offense for which alternate ways of committing the offense had been provided, it must be unanimous in its verdict on any one alternative. We will infer that Skatzes found this instruction to be inadequate. We note that he did not object to the instructions at issue. {¶ 65} "[A] party may not assign as error the giving or the failure to give any instructions unless [he] objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." Crim.R. 30(A); Stallings,89 Ohio St.3d at 292. By failing to object, a defendant waives all but plain error. Stallings, 89 Ohio St.3d at 292; State v. Underwood (1983),3 Ohio St.3d 12, 13. Plain error has been defined as "error prejudicial to a defendant * * * which involves a matter of great public interest having substantial adverse impact on the integrity of and the public's confidence in judicial proceedings." (Internal quotation marks omitted.)State v. Endicott (1994), 99 Ohio App.3d 688, 694 As discussed supra, "the plain error rule should be applied with utmost caution and should be invoked only to prevent a clear miscarriage of justice." Underwood,3 Ohio St.3d at 14. {¶ 66} In essence, Skatzes argues that his right to a unanimous verdict encompassed a right to a unanimous theory of culpable conduct supporting that verdict. The United States Supreme Court has rejected this argument. In Schad v. Arizona (1991), 501 U.S. 624, 629-630,111 S.Ct. 2491, 2495, the defendant was convicted of first-degree murder after the prosecution advanced theories of premeditated murder and felony murder. No instruction was given to the jurors requiring them to unanimously find the defendant guilty of first-degree murder based on one of these proposed theories. Id. at 630-631, 111 S.Ct. at 2496. The Supreme Court found that different mental states of moral and practical equivalence, as in the case of premeditated and felony murder, may serve as alternative means to satisfy the mens rea element for the single offense of murder without infringing upon the constitutional rights of the defendant. Id. at 643, 111 S.Ct. at 2503. The Court stated: {¶ 67} "We have never suggested that in returning general verdicts in [cases proposing multiple theories] the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, `different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.'" (Citations omitted.) Id. at 631-632, 111 S.Ct. at 2497. {¶ 68} At least one Ohio court has found that, like the offenses in Schad, the five purposes listed in Ohio's kidnapping statute "reflect notions of equivalent blameworthiness or culpability" that justify treating them as alternative means to satisfy the mental element of a single offense. State v. Avery (1998), 126 Ohio App.3d 36, 48, citingSchad, 501 U.S. at 643-644, 111 S.Ct. at 2503-2504. The court observed that, "[g]iven the long history of the definition of kidnapping and the widespread use of the definition, it is unlikely that the [defendant] could demonstrate that he could not determine the inherent elements of the crime, or that the state has defined as a single crime multiple offenses that are inherently separate." Id. at 48. The court concluded that the purpose upon which the jury had based a kidnapping conviction did not affect the integrity of the jury's unanimous verdict because the jury's options "did not fall beyond the constitutional bounds of fundamental fairness and rationality." Id., citing Schad,501 U.S. at 645, 111 S.Ct. at 2504. See, also, State v. Evans (Aug. 18, 1993), Hamilton App. Nos. C-910443, C-910515, (concluding that the trial court did not err when it failed to instruct the jury on the need for unanimity on the alternate means of committing theft). {¶ 69} For the reasons discussed in Schad and Avery, we share the view that the jurors were not required to unanimously agree upon any one purpose for Vallandingham's kidnapping. Thus, the trial court did not err in failing to give such an instruction. {¶ 70} The trial court's instructions on aggravated riot and disorderly conduct were as follows: {¶ 71} "Aggravated riot is a felony and is defined as follows: No person being an inmate of a detention facility shall participate with four or more others in a course of disorderly conduct with the purpose to commit or facilitate the commission of a felony and/or when the offender, or any participant to the knowledge of the offender, has on or about his person or under his control, uses, or intends to use a deadly weapon. {¶ 72} "Disorderly conduct is defined as follows: No person shall recklessly cause inconvenience, annoyance, or alarm to another by engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior." {¶ 73} Skatzes does not elaborate on his argument that the jury did not understand the unanimity with which it had to conclude that disorderly conduct and aggravated riot had been committed. For the reasons discussed supra we are unpersuaded that unanimity was required on either of the two definitions of aggravated riot on which the jury was charged. Moreover, it appears to us that the jury was properly instructed that disorderly conduct was an element of the offense of aggravated riot. It was not plain error for the trial court to instruct the jury as it did on these issues. {¶ 74} The third assignment of error is overruled. {¶ 75} "4. THE JURY WAS NEVER ADEQUATELY INSTRUCTED ON CONSPIRACY AND COMPLICITY." {¶ 76} Skatzes claims that the trial court's instruction to the jury on complicity was flawed in two ways. {¶ 77} Skatzes contends that the charge was unclear as to the culpable mental state required in that the court stated: "Before you can find the defendant guilty, you must find beyond a reasonable doubt that * * *, acting with the required culpable mental state for the particular offense, [he] * * * conspired with another to commit the offenses." The offenses at issue were aggravated murder and kidnapping. This language tracked the language of the complicity statute, R.C. 2923.03(A), and we are confident that the jurors would have understood this instruction to mean that they should apply the culpable mental state for the offense that they found to be the object of the conspiracy. {¶ 78} Skatzes also argues that the trial court defined conspiracy improperly in stating: "You may not find * * * that the defendant conspired with others to commit an offense unless you find beyond a reasonable doubt that a substantial overt act in furtherance of such conspiracy is proved to have been done by him or by a person with whom he conspires, and that such an act wasn't performed subsequent to the defendant's entrance into the conspiracy." (Emphasis added). The court reporter has certified that this was the oral instruction given by the court. If so, the court appears to have stated the opposite of what it intended because an overt act was required subsequent to the defendant's entrance into the conspiracy. R.C. 2923.01(B). We cannot know with absolute certainty whether the trial judge misspoke or whether there was an error in the transcription of this passage. Skatzes did not object to the instruction given from the bench. We will assume, for the sake of argument, that the trial court delivered an incorrect instruction on this matter from the bench. Nonetheless, we are confident that Skatzes was not prejudiced by this misstatement. The jury was provided with written copies of the instructions, and, pursuant to our order of April 25, 2002, these written instructions are part of the record in this case. The written instructions correctly stated the law, and the trial court encouraged the jury to rely upon the written instructions. Moreover, as it was read to the jury, the conspiracy instruction was illogical; it would make no sense to find Skatzes culpable only if overt actions hadpreceded his involvement in the conspiracy. As such, we do not believe that the jury would have relied upon the incorrect oral instruction without further clarification from the court. {¶ 79} Because we find no plain error, the fourth assignment of error is overruled. {¶ 80} "5. THE STATE'S SHIFTING THEORY OF THE CASE AND EVIDENCE MADE IT IMPOSSIBLE TO DEFEND AND DENIED GEORGE SKATZES NOTICE OF THE CHARGES AGAINST HIM." {¶ 81} Under this assignment of error, Skatzes reiterates his claims that "the indictment failed to contain sufficient information to inform him of what acts the State thought sufficient to prove" the charges against him. He claims that the state's theory of the case was "being made up as the case went along" and that he was prejudiced thereby. As we discussed under the first two assignments, we are satisfied that the indictment adequately informed Skatzes of the charges against him. Moreover, our review of the record does not support Skatzes' claim that the state was making its case up as it went along; the state appears to us to have been quite focused on the charges it intended to prove from the outset. Skatzes' assertion that some of the charges against him did not become clear until the jury instructions were given lacks credibility. {¶ 82} The fifth assignment of error is overruled. {¶ 83} In the sixth, seventh, and eighth assignments of error, Skatzes challenges the admission of statements allegedly made by his co-conspirators. We note, however, that Skatzes did not raise these issues at trial, and thus he has waived all but plain error. See Statev. Lindsey, 87 Ohio St.3d 479, 482, 2000-Ohio-465; State v. Lundgren,73 Ohio St.3d 474, 480, 1995-Ohio-227. {¶ 84} "6. THE TRIAL COURT ERRONEOUSLY ALLOWED INMATE SNITCHES TO TESTIFY TO CONSPIRACY STATEMENTS PURSUANT TO EVIDENCE RULE 801(D)(2)(e) WHEN NO PRIMA FACIE SHOWING OF A CONSPIRACY WAS MADE." {¶ 85} Skatzes contends that the state did not make a prima facie showing of a conspiracy by independent proof so as to allow the introduction of statements made by his co-conspirators pursuant to Evid.R. 801(D)(2)(e). He also seems to contend that the state was required to expressly state that it was offering testimony pursuant to Evid.R. 801(D)(2)(e) and that the court was required to expressly determine whether a prima facie case had been made before the statements could be admitted. {¶ 86} Evid.R. 801(D)(2)(e) provides, in pertinent part, that a statement is not hearsay if it is offered against the defendant by a co-conspirator and the statement was made by the co-conspirator during the course and in furtherance of the conspiracy, upon independent proof of the conspiracy. In other words, in order for the out-of-court declaration of a co-conspirator to be admissible, the state must prove: 1) the existence of the conspiracy; 2) that the declaration was made during the course of the conspiracy; 3) that the declaration was made in furtherance of the conspiracy; 4) the declarant's participation in the conspiracy; and 5) the defendant's participation in the conspiracy.State v. Adkins, 136 Ohio App.3d 765, 773, 2000-Ohio-1656, citing Statev. Daniels (1993), 92 Ohio App.3d 473, 482. The proponent of the statement of the co-conspirator must make a prima facie showing of the existence of a conspiracy by independent proof before the statement is admitted. State v. Smith, 87 Ohio St.3d 424, 434, 2000-Ohio-450; Statev. Carter, 72 Ohio St.3d 545, 1995-Ohio-104, paragraph three of the syllabus. However, nothing in Evid.R. 801(D)(2)(e) requires that explicit findings be made on the record regarding the existence of a conspiracy. State v. Robb, 88 Ohio St.3d 59, 70, 2000-Ohio-275. {¶ 87} Skatzes' argument that there was no prima facie evidence of a conspiracy is incredible. At the beginning of the state's case, Steven Macko, who had been imprisoned at Lucasville for eleven years prior to the riot, testified about the three gangs operating in L-block, the relative strengths of the gangs, their cooperation during the riot, and the identities of the gang leaders. Furthermore, Sgt. Hudson testified that it had been apparent from the negotiations that the three gangs were working together to compile their demands and to obtain concessions from the authorities while using the hostage corrections officers as bargaining chips. Clark, one of the hostages, testified about the cooperation among the gangs inside the prison regarding the handling of the hostages. Each of these witnesses identified Skatzes as a leader of the Aryan Brotherhood and as a central figure in the riot and the negotiations. Thus, there was ample evidence of a conspiracy to permit the introduction of evidence pursuant to Evid.R. 801(D)(2)(e). SeeRobb, 88 Ohio St.3d at 70 (holding that similar testimony by Macko and Sgt. Hudson in that case had established a conspiracy by gang members). {¶ 88} Skatzes has cited no authority in support of his suggestion that the state was required to make a formal motion to introduce evidence pursuant to Evid.R. 801(D)(2)(e), and we are aware of none. Moreover, the supreme court has held that a trial court is not required to make explicit findings regarding the existence of a conspiracy. Id. As such, Skatzes' procedural arguments are also without merit. {¶ 89} The sixth assignment of error is overruled. {¶ 90} "7. THE TRIAL COURT ERRONEOUSLY ALLOWED INMATE SNITCHES TO TESTIFY AS CO-CONSPIRATORS PURSUANT TO EVID.R. 801(D)(2)(e) WHEN NO CONSPIRACY WAS CHARGED." {¶ 91} Skatzes asserts that co-conspirator statements may be introduced pursuant to Evid.R. 801(D)(2)(e) only if the alleged conspiracy has been charged in the indictment of the party against whom the statement is offered. Because he was not charged with conspiracy, he reasons, the statements should not have been allowed. {¶ 92} The plain language of Evid.R. 801(D)(2)(e) does not require that a defendant be charged with the alleged conspiracy before the introduction of his co-conspirators' statements. Moreover, the supreme court has held that the state may prove a conspiracy in order to introduce out-of-court statements by conspirators in accordance with Evid.R. 801(D)(2)(e) even though the substantive offense of conspiracy has not been charged. Robb, 88 Ohio St.3d at 68. See, also, Lindsey,87 Ohio St.3d at 480-482; State v. Milo (1982), 6 Ohio App.3d 19, certiorari denied (1983) 461 U.S. 957, 103 S.Ct. 2429. {¶ 93} We also point out that Skatzes' suggestion that the alleged conspiracy must be proven beyond a reasonable doubt is groundless and is refuted by even those cases upon which he seems to rely. As pointed out in Carbo v. United States (C.A.9, 1963), 314 F.2d 718, 736, and quoted in Skatzes' brief, such a requirement would obviate the purpose of Evid.R. 801(D)(2)(e) because, "if by independent evidence the defendant's position as a co-conspirator is to be established * * * beyond a reasonable doubt, there is no occasion ever to resort to the declarations at all." {¶ 94} Finally, we note that, insofar as all of the co-conspirator statements specifically objected to in Skatzes' brief related to the actions of other inmates, Skatzes has failed to show that he was prejudiced. {¶ 95} The seventh assignment of error is overruled. {¶ 96} "8. IN ORDER FOR CO-CONSPIRATOR STATEMENTS TO BE ADMITTED PURSUANT TO EVIDENCE RULE 801(D)(2)(e) THE CONSPIRACY MUST BE A CRIME." {¶ 97} Under this assignment, Skatzes contends that Evid.R. 801(D)(2)(e) did not permit the introduction of statements of co-conspirators because the conspiracy that they were alleged to have committed-conspiracy to commit aggravated riot-is not recognized as a crime under Ohio law. Skatzes correctly observes that, pursuant to R.C.2923.01, conspiracy to commit aggravated riot is not recognized as a crime in Ohio. Based on this observation, he concludes that the alleged co-conspirators' statements were not statements against interest, whereby they obtained their only "indicia of reliability," and therefore were not admissible against him. The state, on the other hand, contends that the word "conspiracy," as used in Evid.R. 801(D)(2)(e), does not have the same meaning as the crime of conspiracy as defined in R.C. 2923.01. Unfortunately, neither party has cited any authority in support of its position. {¶ 98} Both the Supreme Court of Ohio and the Tenth Appellate District permitted the admission of co-conspirators' statements pursuant to Evid.R. 801(D)(2)(e) in the case against Jason Robb, one of Skatzes' co-conspirators. Robb, 88 Ohio St.3d at 68; State v. Robb (Apr. 30, 1998), Franklin App. No. 95APA08-1003. Obviously, the nature of the conspiracy in that case was identical to the conspiracy here. Furthermore, the co-conspirators' statements were admissible pursuant to Evid.R. 801(D)(2)(e) because the state presented ample prima facie evidence of a conspiracy to commit kidnapping and murder in addition to its evidence of conspiracy to commit aggravated riot. Conspiracy to commit kidnapping and murder are clearly recognized under Ohio law, R.C.2923.01, and the prima facie evidence of these conspiracies justified the admission of co-conspirator statements pursuant to Evid.R. 801(D)(2)(e) independent of any evidence of aggravated riot. Thus, the prosecutor's error, if any, in referring to an underlying conspiracy to commit aggravated riot was harmless. {¶ 99} The eighth assignment of error is overruled. {¶ 100} "9. THE PROBATIVE VALUE OF CO-CONSPIRATOR STATEMENTS OFFERED AGAINST DEFENDANT UNDER OHIO EVID.R. 801(D)(2)(e) WAS SUBSTANTIALLY OUTWEIGHED BY THE RISKS OF PREJUDICE AND CONFUSION." {¶ 101} Skatzes contends that, even if co-conspirator statements were properly admitted against him pursuant to Evid.R. 801(D)(2)(e), "the statements used in this case should have been excluded because the risk of prejudice and confusion far outweighed any remote probative value they may have had." {¶ 102} The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. Robb,88 Ohio St.3d at 68, citing State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus; State v. Edmonds (2000), 139 Ohio App.3d 298, 300. These decisions will not be disturbed on appeal absent an abuse of discretion.Edmonds, 139 Ohio App.3d at 300, citing State v. Graham (1979),58 Ohio St.2d 350, 352. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary, or unconscionable. State v. Weaver (1988),38 Ohio St.3d 160, 161, citing Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. {¶ 103} Skatzes argues that the state, defense counsel, and the court "engaged in a full scale abandonment of responsibility" regarding the prejudicial effect of the inmate snitches' testimony against him. The testimony of other inmates was relevant, however, in that it helped to prove a conspiracy, namely that prison gang leaders, including Skatzes, had conspired over eleven days to seize and control L-block, to settle old scores, to take hostages and even to murder one, all in an attempt to force concessions from prison authorities. See Robb,88 Ohio St.3d at 68. The probative value was not "remote," as Skatzes contends. This testimony was undoubtedly prejudicial, but we are unpersuaded that it was unfairly prejudicial. "Evid.R. 403 speaks in terms of unfair prejudice. Logically, all evidence presented by a prosecutor is prejudicial, but not all evidence unfairly prejudices a defendant. It is only the latter that Evid.R. 403 prohibits." State v. Wright (1990),48 Ohio St.3d 5, 8. Although much of the testimony of the other inmates was unfavorable to Skatzes, it was not unfairly prejudicial, and the trial court did not err in admitting it pursuant to Evid.R. 403(A) because it was relevant to the crimes with which Skatzes was charged. {¶ 104} The ninth assignment of error is overruled. {¶ 105} "10. EVIDENCE OF OTHER ACTS WAS ERRONEOUSLY ADMITTED AT TRIAL." {¶ 106} Skatzes claims that the state offered evidence of others acts that he had committed in violation of Evid.R. 404(B) and R.C. 2945.59 and that the "huge volume of other acts evidence in effect became a non-statutory aggravating factor" in his case. {¶ 107} Most of the evidence cited by Skatzes involved acts he committed during the course of the riot for which he was not charged, such as the destruction of property, disciplining inmates by violent means, and his involvement in the Aryan Brotherhood. The state contends that this evidence was properly offered to show Skatzes' leadership role in the Aryan Brotherhood and in the riot. We agree. For example, Skatzes' physical confrontation with an inmate who was stealing food from the hostage corrections officers showed his leadership role and demonstrated that the gangs had set up a code of conduct by which members were bound during the riot. This and other evidence related to Skatzes' involvement in the Aryan Brotherhood during the riot was offered not as a comment on Skatzes' character but as evidence of Skatzes' leadership role, which bore directly upon the power he wielded during the riot and upon the crimes with which he was charged. This is precisely the type of evidence permitted by R.C. 2945.59. {¶ 108} Some of the other evidence cited by Skatzes involved events outside the scope of the riot, and the admission of this evidence was more problematic. For example, the state offered testimony that Skatzes had participated in a hunger strike and in clogging toilets at the Mansfield Correctional Institution after the riot as part of an Aryan Brotherhood protest. The state claims that this evidence was admissible because it also showed Skatzes' membership and leadership in the Aryan Brotherhood. Insofar as abundant evidence of Skatzes' involvement with the Aryan Brotherhood existed from the riot itself, we agree with Skatzes that evidence of his participation in Aryan Brotherhood activities at Mansfield after the riot could have been excluded pursuant to Evid.R. 404(B). We note, however, that these events were close in time to the riot and that the trial court had broad discretion in this regard. We also note that Skatzes did not object to the testimony in question. Moreover, in light of the ample evidence of Skatzes' involvement in violent acts during the riot, we do not believe that evidence that he had clogged a toilet or had engaged in a hunger strike would have prejudiced him in the eyes of the jury. {¶ 109} The tenth assignment of error is overruled. {¶ 110} "11. THE TRIAL COURT ERRED IN ADMITTING BAD ACTS OF OTHERS ATTRIBUTED TO THE ACCUSED THROUGH A CONSPIRACY THEORY BASED ON AN UNCHARGED CRIME AND UNCHARGED CONSPIRACY IN VIOLATION OF OHIO EVID.R. 403 404." {¶ 111} Under this assignment of error, Skatzes objects to the admission of testimony "about the bad acts of others that did not involve George Skatzes * * * [including] accounts of the early violence in the takeover, beatings of guards and inmates, threats, references to weapons, and other bad acts." Skatzes claims that this evidence should have been excluded pursuant to Evid.R. 403 and 404(B). {¶ 112} The crimes of which Skatzes was accused occurred within the context of an eleven day riot involving hundreds of inmates and, in particular, scores of gang members who worked in concert to achieve concessions from authorities. The state was entitled to present evidence about the context of the alleged crimes to make the actions of the participants more understandable to the jurors. Skatzes did not commit the crimes in a vacuum, and the state was not required to proceed as if he had. Thus, the trial court had wide latitude to permit the presentation of evidence about how the riot started and unfolded, the rules and procedures established by the gangs during the course of the riot, how infractions were dealt with, and the ways in which the relationships between the gangs and gang members affected how events unfolded. All of this information was relevant to the biases of the various witnesses and to the reasons that they behaved the way they did. Although Skatzes claims that this evidence "inflame[d] the passions and sympathies of the jurors," he has made no specific argument in this respect, and we are unpersuaded that the testimony had this effect. Because the prison culture and gang loyalty demonstrated by much of this testimony would not have been within the knowledge or experience of the average juror, the trial court could have reasonably concluded that its probative value outweighed the danger of unfair prejudice or confusion of issues and that this evidence was admissible pursuant to Evid.R. 403. {¶ 113} Moreover, Evid.R. 404(B) was inapplicable to the evidence about which Skatzes complains under this assignment of error because the "other acts" at issue were not acts committed by Skatzes. Evid.R. 404(B) prohibits evidence of other acts offered "to prove the character of a person in order to show that he acted in conformity therewith." Skatzes' argument implies that the acts of one person could be offered to prove the character of another person. We find this argument to be illogical, and we are confident that the other acts to which Evid.R. 404(B) refers must be the acts of the person whose character is at issue. Insofar as Skatzes' character was at issue, we fail to see how evidence of the bad acts of others would have been prohibited by Evid.R. 404(B). {¶ 114} The eleventh assignment of error is overruled. {¶ 115} "12. THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S OBJECTION TO RO[D]GER SNODGRASS TESTIFYING ABOUT AN UNVERIFIED AGREEMENT CONCERNING THE TREATMENT OF WHITE INMATES DURING THE TAKEOVER." {¶ 116} Skatzes claims that the trial court erred in allowing Snodgrass to testify that the Aryan Brotherhood had reached an agreement with the Muslims regarding the treatment of white inmates during the riot because Snodgrass did not identify with sufficient certainty from whom he had heard about the alleged agreement. {¶ 117} Snodgrass testified that he had murdered Earl Elder under Skatzes' orders and that a Muslim named Lucky Roper had appeared to confer with Skatzes prior to the murder and had watched the murder along with Skatzes. When the state asked Snodgrass why he and Skatzes had been involved in this murder with a Muslim, Snodgrass replied that, according to Robb, the Aryan Brotherhood had made a pact with the Muslims. Snodgrass stated that Skatzes had explained the pact to him as follows: "[N]o more white guys were going to be killed in that riot, without sanctions from the AB, * * * that if they [white guys] were to be killed, they were goin' to be killed by their own kind or at least given that opportunity." Snodgrass then wavered, however, about whether the information attributed to Skatzes about the terms of the pact had, in fact, come from Skatzes. He allowed for the possibility that Robb or another person in the Aryan Brotherhood leadership had supplied him with this information. Skatzes claims that this testimony was inadmissible pursuant to Evid.R. 404(B) and Evid.R. 802 and that it was "no more than gossip" and speculation. These arguments are without merit. Evid.R. 404(B) had no bearing on the trial court's decision because the testimony did not evince any prior crime, wrong, or act. Moreover, Snodgrass did not speculate that a pact had been reached by the Muslim and Aryan Brotherhood leadership; according to his testimony, Snodgrass had been told of such a pact but could not remember with certainty who had told him about it. {¶ 118} More importantly, however, the testimony was admissible pursuant to Evid.R. 801(D)(2). Evid.R. 801(D)(2)(a) permits the use of a party's own statement against him and, accordingly, allowed the testimony at issue if the statement was made by Skatzes. If the statement was not made by Skatzes but was made instead by Robb or another Aryan Brotherhood leader, the possibility of which Snodgrass conceded, then it was admissible pursuant to Evid.R. 801(D)(2)(e), which permits a statement made by a co-conspirator of a party during the course and in furtherance of the conspiracy. {¶ 119} The twelfth assignment of error is overruled. {¶ 120} "13. THE JURY WAS NEVER ADEQUATELY INSTRUCTED ON THE USE OF OTHER ACTS EVIDENCE." {¶ 121} Skatzes asserts that the trial court's instructions on other acts evidence left the jurors "unable to tell which evidence was other acts and thus how to use it in their deliberations." Skatzes also points out that the testimony of "inmate snitches" regarding other acts was "highly suspect." {¶ 122} Skatzes appears to suggest that the trial court should have enumerated for the jury the other acts about which evidence was presented and the evidence in support of those acts. Skatzes has cited no authority requiring a trial court to instruct a jury at such length, and we are aware of none. It was the jury's responsibility to review the evidence. Moreover, based on the instructions given, we are confident that the jurors understood the concept of other acts evidence, i.e., acts other than those for which Skatzes was indicted, and what legitimate purposes it served. {¶ 123} We also reject Skatzes' claim that, because of extensive testimony from "inmate snitches" in this case, the jurors should not have been allowed to draw the usual inferences from the acts of accomplices about motive, purpose, or knowledge. The jury was fully instructed that accomplices "may have special motives in testifying" and that their testimony should be carefully examined, used with great caution, and viewed with grave suspicion. Nothing further was required. {¶ 124} The thirteenth assignment of error is overruled. {¶ 125} "14. THE STATE IMPROPERLY VOUCHED FOR THE CREDIBILITY OF ITS WITNESSES AND EVIDENCE." {¶ 126} Skatzes claims that the state improperly vouched for the credibility of its witnesses and its evidence in four respects. We will address each of these arguments in turn. We point out, however, that most of the comments addressed in Skatzes' argument were not objected to at trial, and thus Skatzes has waived all but plain error. See Lundgren,73 Ohio St.3d at 484, citing State v. Williams (1977), 51 Ohio St.2d 112, death penalty vacated on other grounds (1978), 438 U.S. 911,98 S.Ct. 3137. {¶ 127} First, Skatzes contends that, in its opening statement, the state interfered with his right to a fair trial by discussing the challenges in gathering evidence in this case, including the length of the riot, the number of inmates involved, and the lack of integrity of the crime scenes, and by mentioning that the state had been unable to identify the perpetrator or perpetrators with respect to many offenses. In explaining these facts, the prosecutor referred to investigative procedures and to agreements that were struck with some inmates to piece together what had happened during the riot. Skatzes claims that these comments "created the impression that not only was the state vouching for the credibility of its witnesses but also for George Skatzes' guilt." We are unpersuaded by this argument. We do not think that the inference Skatzes suggests was implicit in the prosecutor's comments. The state was entitled to present evidence regarding its methods of investigation following the riot and to comment upon that evidence in its opening statement. Moreover, it is common practice for prosecutors to elicit or disclose information about plea agreements "to blunt or foreclose unfavorable cross-examination revealing that [witnesses] agreed to testify in exchange for favorable treatment by the prosecutor." Statev. Cornwell, 86 Ohio St.3d 560, 571, 1999-Ohio-125. Such disclosure is not prejudicial to the defendant, and may even be beneficial to him. Id. {¶ 128} Second, Skatzes argues that the state unfairly vouched for the credibility of its inmate witnesses through the testimony of Sgt. Hudson, who had assisted in the investigation of the riot. Sgt. Hudson testified that a computer database had been used to cross-reference the information provided by different inmates and the information provided by a particular inmate on different occasions. He also testified about the need to make deals with some of the inmates in exchange for their testimony and about the special protection that was afforded to cooperating inmates. An objection was sustained regarding a comment by Sgt. Hudson that the deals with the inmates were necessary to "get the truth." In our view, considering that there were over four hundred potential suspects and witnesses to the crimes that occurred during the course of the riot, the state was certainly entitled to present evidence regarding how the investigation was conducted and how the evidence was collected and organized. Sgt. Hudson's testimony on this issue did not improperly vouch for the conclusions reached by investigators. Moreover, nothing that Sgt. Hudson said could be reasonably interpreted to "impl[y] that all of the information fed into the computer system support[ed Skatzes'] prosecution," as the defense suggests. {¶ 129} Third, Skatzes claims that the state improperly "stamp[ed] * * * the imprimatur of the prosecutor's office" on the testimony of inmate David Lomache by making it clear to the jury that Lomache had worked with the prosecutor in deciphering one of the tunnel tapes. This argument is without merit. The prosecutor revealed that he had worked with Lomache to decipher the tape, and Lomache testified that the prosecutor had not coached him about what he might hear on the tape. This evidence of cooperation did not amount to vouching for the witness's credibility. {¶ 130} Fourth, Skatzes contends that the prosecutor vouched for the credibility of inmate witnesses Brookover and Lavelle "by indicating that their plea bargains were guarantees of truthfulness." Brookover and Lavelle each testified on direct examination that their plea agreements required them to testify truthfully and that, if they did not do so, the agreements could be withdrawn. The supreme court addressed this argument in Cornwell, 85 Ohio St.3d at 570-571, and concluded that such questions by a prosecutor are not improper and do not prejudicially affect a defendant's substantial rights. The court further observed that "a `truthful testimony' clause in the plea agreement can be a two-edged sword. Defense counsel can effectively argue to the jury that such a clause gives the witness incentive not to tell the truth but to please the prosecutor." Id. at 570. {¶ 131} Skatzes' arguments that the state vouched for the credibility of its witnesses are without merit. {¶ 132} The fourteenth assignment of error is overruled. {¶ 133} "15. THE CRIME SCENE PHOTOS WERE INADMISSIBLE UNDER OHIO EVID.R. 403." {¶ 134} Skatzes contends that the 275 crime scene photographs that were admitted into evidence had no probative value and were prejudicial and inflammatory. Thus, he claims that these photographs should have been excluded pursuant to Evid.R. 403. {¶ 135} Evid.R. 403(A) provides that relevant evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. The admission of photographs is left to the sound discretion of the trial court. Robb, 88 Ohio St.3d at 71. {¶ 136} The photographs at issue were introduced during the testimony of Sgt. Hudson, who was a member of the negotiating team during the riot and was one of the investigators following the riot. The photographs depicted the condition of L-block when investigators first accessed it after the riot. The pictures were probative of the inmates' activities during the riot: security measures that they had taken, such as blockades at entrances and bed sheets tied flat beneath vents to prevent authorities from dropping tear gas, remnants of fires, the positioning of mattresses throughout the hallways and gymnasium, and the like. The pictures also showed the holes that had been battered through concrete block walls and metal doors to get guards and inmates out of the locked stairwells and bathrooms at the beginning of the riot and the instruments used to create these holes. A few pictures depicted the bodies that were found in L-block when the authorities reentered; others showed blood-soaked areas where acts of violence had obviously occurred at some point during the riot. Some photographs showed graffiti and banners crafted by the inmates evincing gang activity and their demands during the riot; others showed a huge array of homemade weapons. Additionally, almost all of the pictures in some way revealed the vast random destruction of the block, which included pipes torn from the walls, shattered consoles, toilets, and sinks, drywall knocked from the ceilings, broken windows, metal bars removed from inside windows, and huge amounts of garbage. {¶ 137} Skatzes did not object to the admission of these photographs at trial; in fact, his attorney expressly stated that he did not have any objection. Thus, we review the trial court's decision for plain error. Lundgren, 73 Ohio St.3d at 484; Underwood,3 Ohio St.3d at 13. {¶ 138} The photographs were used to present background information regarding what had happened in L-block during the riot. They established the existence of gang activity and the presence of weapons, and they provided information about normal prison operations and the manner in which the corrections officers had been captured. In addition, with the use of these photographs, Sgt. Hudson testified regarding where hostages had been held, where the various gangs had stayed during the riot, and where negotiations had taken place. The condition of L-block was also probative of the extent to which the inmates had controlled the area and the challenges negotiators had faced in dealing with them, such as inmates' fears that prison officials would release tear gas into the unit. As Skatzes admits, none of the pictures tied him to the offenses he was alleged to have committed. In our view, the photographs were probative and were not "highly inflammatory," especially in light of the fact that they did not directly implicate Skatzes in any crime. It was not plain error for the trial court to admit these photographs. See State v. Wickline (1990), 50 Ohio St.3d 114,119-120. {¶ 139} The fifteenth assignment of error is overruled. {¶ 140} "16. THE TRIAL COURT ERRED WHEN IT DENIED GEORGE SKATZES' MOTION TO SEVER THE CHARGES AND TRIALS AGAINST HIM." {¶ 141} Skatzes contends that the trial court erred in overruling his motion to sever the counts in the indictment and to try the offenses separately. He claims that the evidence as to each offense was weak and that his convictions resulted from "prejudicial spillover from one crime to the next." {¶ 142} Crim.R. 8(A) provides: {¶ 143} "Two or more offenses may be charged in the same indictment * * * if the offenses charged * * * are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct." {¶ 144} Crim.R. 14 provides for relief from joinder where either party is prejudiced thereby. State v. Lott (1990), 51 Ohio St.3d 160,163. {¶ 145} "[J]oinder and the avoidance of multiple trials [are] favored for many reasons, among which are conserving time and expense, diminishing the inconvenience to witnesses and minimizing the possibility of incongruous results in successive trials before different juries."State v. Torres (1981), 66 Ohio St.2d 340, 343, citing State v. Thomas (1980), 61 Ohio St.2d 223, 225. The defendant claiming error in the trial court's refusal to sever multiple charges has the burden of affirmatively showing that his rights were prejudiced. Id. For an appellate court to reverse a trial court's ruling denying severance, the defendant must demonstrate that the trial court abused its discretion. Id.; Lott, 51 Ohio St.3d at 163. {¶ 146} When a defendant argues that the combination of separate offenses prejudiced him by its cumulative effect on the jury, the prosecutor can negate such claims by showing that either: 1) the evidence of each of the joined offenses would have been admissible at separate trials; or 2) the evidence of each crime joined at trial is simple and direct such that it can be readily separated. Torres,66 Ohio St.2d at 344; Lott, 51 Ohio St.3d at 163. See, also, State v. Mills (1992),62 Ohio St.3d 357, 362. If evidence of each of the joined offenses would have been admissible at separate trials, severance is not required because prejudice due to the cumulation of evidence or the inference of criminal disposition is largely absent. State v. Benner (1988),40 Ohio St.3d 301, 306, certiorari denied (1990), 494 U.S. 1090,110 S.Ct. 1834, citing State v. Hamblin (1988), 37 Ohio St.3d 153, 159. {¶ 147} The offenses for which Skatzes was indicted were part of a common scheme or plan or were part of a course of criminal conduct. As such, they were properly joined pursuant to Crim.R. 8(A), and Skatzes bore the burden of showing that he was prejudiced by the joinder. Skatzes asserts that he was prejudiced because the evidence relating to the various crimes with which he was charged would not have been admissible if the charges had been tried separately. He does not, however, cite any authority or present any argument in support of this assertion. In our view, the trial court could have reasonably concluded that the evidence of other acts that occurred during the course of the riot would have been admissible to prove motive or plan if the offenses had been tried separately. See Evid.R. 404(B). As such, the trial court could have reasonably concluded that Skatzes was not prejudiced by the joinder. {¶ 148} The trial court could also have reasonably concluded that the evidence was sufficiently straightforward that the jury was capable of separating it as to each offense. Although the evidence in the case was voluminous, Skatzes makes no specific argument in support of his claim that it was so "complex" as to prevent the jury from understanding the evidence relevant to each charge, and we are unpersuaded that the jury was unable to separate the evidence regarding each offense. {¶ 149} Finally, amicus urges that the evidence against Skatzes was so weak that the jury could only have found him guilty by viewing the evidence cumulatively and that, if the charges had been tried separately, "the Court might well have been obligated to grant * * * [a] motion pursuant to Crim.R. 29(A) to dismiss" in each case. In support of this position, amicus urges that the testimony of Skatzes' "prisoner `complicitors,'" upon which the convictions were partially based, was unreliable. In response to this argument, we simply point out that whether the testimony of other prisoners was reliable or credible goes to the weight of the evidence, not its sufficiency. See Thompkins,78 Ohio St.3d at 386-387. Thus, the reliability of the testimony was an issue for the jury and would not have been grounds for granting a motion made pursuant to Crim.R. 29(A). {¶ 150} The sixteenth assignment of error is overruled. {¶ 151} "17. THE TRIAL COURT ERRED WHEN IT FAILED TO REQUIRE FAIR AND EVENHANDED VOIR DIRE PROCEDURES." {¶ 152} Skatzes claims that the state was given much wider latitude than the defense in conducting voir dire. The record and the examples cited by Skatzes do not support this contention. The trial court prohibited the defense from questioning potential jurors regarding specific mitigating factors about which no evidence had yet been offered, such as how they would view evidence that an inmate had protected other inmates from harm during the riot. The supreme court has held that a trial court acts within its discretion in refusing to allow such specific questioning about mitigation evidence. See State v. Wilson,74 Ohio St.3d 381, 386-387, 1996-Ohio-103; Lundgren,73 Ohio St.3d at 481. The state's questions concerned the jurors' understanding of the concept of mitigation and were based on hypotheticals unrelated to the facts of this case. The trial court did not abuse its discretion in treating these lines of questioning differently. {¶ 153} Further, Skatzes contends that the trial court erred in not excusing prospective juror Cynthia Hicks after she questioned whether any mitigation evidence could be compelling enough to cause her to impose a life sentence, rather than a death sentence, upon someone who had committed three murders. Viewing the voir dire of Hicks as a whole, it is clear that she was willing to consider any evidence that the court instructed her to consider in mitigation but that she believed it "would have to be awful strong evidence" to convince her to impose a sentence of life upon someone who, according to the defense's hypothetical, had committed three deliberate murders. The trial court did not err in refusing to excuse Hicks for cause. {¶ 154} The seventeenth assignment of error is overruled. {¶ 155} "18. THE TRIAL COURT ERRED WHEN IT OVERRULED THE OBJECTION TO RO[D]GER SNODGRASS TESTIFYING ABOUT DAVID SNOW ON THE BASIS OF HEARSAY STATEMENTS ABOUT INMATE BROOKOVER." {¶ 156} Snodgrass testified that, after he had been transferred to the Mansfield Correctional Institute at the end of the riot, he had received a letter from David Snow, an Aryan Brotherhood member in the general population, in which Snow had stated that Brookover was "a maggot * * * [and] a snitch" who had "brought down the A.B. somehow in a murder case in Arizona." Snodgrass apparently celled next to Brookover at that time, and many inmates believed that Brookover was working with the authorities. Skatzes argues that Snow's letter to Snodgrass was irrelevant and that his objection to this testimony should have been sustained. While we agree that the testimony was irrelevant, we fail to see how Skatzes could have been prejudiced by it. As such, the trial court's error was harmless. {¶ 157} The eighteenth assignment of error is overruled. {¶ 158} "19. THE TRIAL COURT ERRED WHEN IT OVERRULED THE OBJECTION TO THE TESTIMONY OF KENNETH HAZLETT THAT AN INMATE TOLD HIM THAT THE INMATE HAD BEEN FORCED TO CARRY SEVERAL BODIES." {¶ 159} Skatzes objects to testimony by inmate Kenneth Hazlett that another inmate, Bobby Bass, had told Hazlett that he had been forced to carry bodies during the riot, including the body of Vallandingham. The state contends that this testimony was admissible pursuant to Evid.R. 801(D)(2)(e) or that, in the alternative, it was harmless error. {¶ 160} Evid.R. 801(D)(2)(e) provides that statements of co-conspirators are not hearsay under certain circumstances. The state asserts that Bass was a "forced" co-conspirator and that his statement was therefore admissible under this rule. While Bass may have been forced to carry bodies, we do not accept the state's argument that he was thereby a co-conspirator. We do agree with the state's position, however, that any error in the admission of this statement was harmless. Bass's statement did not implicate Skatzes, and there was no dispute that bodies had been moved around within L-block and placed out on the recreation yard. We are unpersuaded that Skatzes was prejudiced by this testimony. {¶ 161} The nineteenth assignment of error is overruled. {¶ 162} "20. GEORGE SKATZES WAS DENIED AN IMPARTIAL JUDGE." {¶ 163} Skatzes contends that numerous factors in the trial judge's handling of the case demonstrated that he was partial, including: 1) his failure to treat the case independently; 2) his disparate rulings on the parties' objections; 3) his failure to reprimand the prosecutor for comments made to Skatzes; 4) his failure to order a competency evaluation; and 5) his failure to control and preserve the record of the proceedings. We will briefly discuss each of these issues; however, we note that most of these issues are touched upon in other assignments of error as well. {¶ 164} First, Skatzes asserts that "[t]he court made evidentiary rulings not on the basis of the law or even the judge's own good instincts, but rather on the basis of what was done in the Robb case." In doing so, Skatzes claims that the judge assumed the role of the prosecutor. The fact of the matter is that there were many similarities between Jason Robb's case and Skatzes' case: both men were alleged to have been leaders of the Aryan Brotherhood at Lucasville during the riot, many of the same witnesses were called at each trial, and some of the same attorneys and the same judge were involved. Because of the similarities between the two cases, some of the legal and evidentiary issues overlapped. When similar issues arose, the prosecutors and the judge sometimes acknowledged this fact by referring to the judge's rulings in the Robb case. In our view, these references do not evince any bias. See, also, our discussion of the thirtieth assignment of error, infra. {¶ 165} Second, Skatzes contends that the court did not act evenhandedly in ruling on the parties' objections. Our review of the record does not reveal any disparate treatment in this regard. Even if it is true, as Skatzes implies, that more defense objections were overruled than state objections, the numbers themselves would not demonstrate prejudice. The trial court must base its decisions upon the perceived merit of the objections raised without regard to whether the parties are receiving equivalent shares of favorable rulings. {¶ 166} Third, Skatzes claims that the trial judge showed bias in failing to reprimand the prosecutor for an exchange in which the prosecutor indicated that, if the defense intended to comb through the disciplinary records of each of the state's inmate witnesses, the state would do the same with the defense witnesses, including Skatzes. The state encouraged the judge to rule that either both parties must be allowed to engage in this type of cross-examination or that neither party should be allowed to question inmate witnesses about their prison disciplinary records. There was nothing improper about this exchange, and thus there was no reason to reprimand the prosecutor. {¶ 167} Fourth, Skatzes faults the court for not ordering a competency evaluation, sua sponte, based on his own characterization of himself as "paranoid," his inability to remember events during the riot, and his contradiction of the testimony of other defense witnesses that he had been unarmed during the riot. None of these issues was directly relevant to Skatzes' ability to understand the nature and objective of the proceedings against him and to assist in his defense. See R.C.2945.37(A); State v. Carter, 89 Ohio St.3d 593, 603, 2000-Ohio-172. These factors were insufficient to warrant ordering a competency evaluation, and the trial court did not show bias in failing to do so. See, also, our discussion of the fortieth assignment of error, infra. {¶ 168} Fifth, Skatzes contends that the record problems in this case show partiality on the part of the trial judge. We will discuss these record problems in greater detail under the sixtieth assignment of error. With respect to a showing of bias, we simply note that offering exhibits into the record was not the responsibility of the trial judge and that the judge does not appear to have played any role in the disappearance of exhibits from the record. {¶ 169} The twentieth assignment of error is overruled. {¶ 170} "25.THE PROSECUTION'S REFERENCES TO MR. SKATZES' PRIOR CONVICTION DURING GUILT AND MITIGATION CROSS-EXAMINATION AND CLOSING ARGUMENT WERE PREJUDICIAL TO THE DEFENDANT." {¶ 171} Skatzes claims that the prosecutor improperly commented upon his prior murder conviction in the guilt and sentencing phases of his trial. {¶ 172} Each of the aggravated murder counts upon which Skatzes was indicted included a specification pursuant to R.C. 2929.04(A)(5) that he had previously been convicted of an offense involving the purposeful killing of or attempt to kill another. This was an aggravating circumstance that was required to be proven beyond a reasonable doubt at the guilt phase of the trial. See R.C. 2929.03(B); State v. Davis (1988), 38 Ohio St.3d 361, 364, certiorari denied (1992), 506 U.S. 858,113 S.Ct. 172. The legislature, however, has provided a mechanism whereby this potentially prejudicial information can be precluded from consideration by the jury. R.C. 2929.022(A) provides: "If an indictment or count in an indictment charging a defendant with aggravated murder contains a specification of the aggravating circumstance of a prior conviction listed in [R.C. 2929.04(A)(5)], the defendant may elect to have the panel of three judges, if he waives trial by jury, or the trial judge, if he is tried by a jury, determine the existence of that aggravating circumstance at the sentencing hearing * * *." In other words, "when an R.C. 2929.022(A) election is made, evidence concerning a prior purposeful killing, not otherwise admissible, may not be introduced at the guilt phase to prove an aggravating circumstance." Davis,38 Ohio St.3d at 364-365. The statute does not, however, "provide a defendant with a blanket statutory right to preclude * * * the introduction of all evidence pertaining to prior purposeful killings which is otherwise admissible." Id. {¶ 173} Skatzes points out that the prosecutor made one reference to his prior conviction during cross-examination while exploring Skatzes' feelings about "snitches" and one reference to it during closing argument in the sentencing phase of the trial. He claims that these references were "highly inflammatory and prejudicial." We are unpersuaded that the prosecutor's comments were improper. {¶ 174} During the guilt phase of the trial, the prosecutor questioned Skatzes about his definition of a "snitch" and his feelings about snitches. The prosecutor also inquired as to whether Skatzes' "partner," meaning his partner in crime, had testified against him with respect to his prior "homicide conviction." Skatzes admitted that his partner had been "the only witness against [him]." The state's theory in this case was that Sommers and Elder had been killed because they were snitches. As such, Skatzes' feelings about snitches and, specifically, the fact that he had previously been convicted of an offense based on the testimony of someone with whom he had committed a crime was relevant to his motive. Evidence of other crimes is admissible to show proof of motive pursuant to Evid.R. 404(B), and R.C. 2929.022(A) does not preclude the introduction of evidence for that purpose. See Davis,38 Ohio St.3d at 364. {¶ 175} During his closing argument in the sentencing phase of the trial, the prosecutor referred to the fact that Skatzes had previously been convicted of aggravated murder as an aggravating circumstance in the case and instructed the jury to determine how much weight to assign to that factor. Skatzes claims that this comment resulted in unfair prejudice and appears to believe that the prosecutor should not have been permitted to comment on his prior conviction in any way. We disagree. {¶ 176} The prosecutor's comments were brief and, in our opinion, were not particularly inflammatory. Thus, for us to find that this was error, we would have to agree with Skatzes' position that, where a defendant has elected to have the prior purposeful killing specification determined by the court rather than by the jury pursuant to R.C.2929.022(A), the evidence of the prior conviction and the court'sdetermination regarding the specification must be kept from the jury at both the guilt and sentencing phases of the trial. The law does not support this interpretation. {¶ 177} R.C. 2929.022(B) states, "If the panel of judges or the trial judge determines that the specification of the aggravating circumstance of a prior conviction listed in [R.C. 2929.04(A)(5)] is proven beyond a reasonable doubt * * *, the panel of judges or the trial judge and trial jury shall impose sentence on the offender pursuant to [R.C. 2929.03(D) and R.C. 2929.04]." Where a capital case is tried to a jury, R.C. 2929.03(D) and R.C. 2929.04 clearly require the jury to weigh all of the aggravating circumstances and mitigating factors in determining the proper sentence. Nothing in either of these sections suggests that the jury should be shielded from one of the aggravating circumstances that has been proven beyond a reasonable doubt. Indeed, in some cases, this might be the only aggravating circumstance. To suggest that the jury should not be told of one of the aggravating circumstances at the sentencing phase of a capital trial is to suggest that the jury should not participate in the sentencing decision at all where the defendant has made an election pursuant to R.C. 2929.022(A) because, in such a situation, the jury could not meaningfully weigh the aggravating circumstances against the mitigating factors. We are wholly unpersuaded that the legislature intended such a result. Furthermore, the supreme court has discussed R.C. 2929.022(A) in terms of precluding the admission of evidence of a prior conviction at the guilt phase of a capital trial, and not as an absolute ban on such evidence. See State v. Cowans,87 Ohio St.3d 68, 78, 1999-Ohio-250; Davis, 38 Ohio St.3d at 364. Thus, the prosecutor was entitled to comment on Skatzes' prior conviction during the sentencing proceedings. {¶ 178} The twenty-fifth assignment of error is overruled. {¶ 179} "26. THE TRIAL COURT ERRED WHEN IT GRANTED THE GOVERNMENT'S MOTION TO LIMIT THE DEFENDANT'S ATTEMPT TO IMPEACH ROBERT BROOKOVER ON THE BASIS OF SPECIFIC BAD ACTS." {¶ 180} Skatzes claims that he should have been allowed to cross-examine Brookover more extensively about the truthfulness of his testimony that he had committed only two murders. Skatzes relies on Evid.R. 608(B) in support of his argument. {¶ 181} "The Ohio Rules of Evidence clearly delineate the methods by which a party may impeach a witness. Credibility may be attacked by evidence that the witness has been convicted of a crime (Evid.R. 609), or by evidence of the witness's character for untruthfulness (Evid.R. 608)."State v. Rodriguez (1986), 31 Ohio App.3d 174, 176. Other than the Evid.R. 609 exception for certain criminal convictions, a witness's credibility may not be impeached by extrinsic proof of special instances of his conduct; such conduct may be inquired into only by the intrinsic means of cross-examination within the guidelines set forth in Evid.R. 608(B). State v. Kamel (1984), 12 Ohio St.3d 306, paragraph two of the syllabus; State v. Jurek (1989), 55 Ohio App.3d 70, 73-74. Criminal activities not resulting in conviction cannot ordinarily form the basis for an attack upon a witness's credibility. See Rodriguez,31 Ohio App.3d at 176; Kamel, 12 Ohio St.3d at 310-311. {¶ 182} Brookover stated on cross-examination that he had killed two people in his life: one in Arizona and one at Lucasville. The defense questioned Brookover at some length about the murder of another individual in Greene County. Brookover had allegedly been a prime suspect in that case until the investigation was halted because authorities learned that he was serving a life sentence in Arizona. The trial court sustained an objection to this questioning, concluding that it was "far afield" and not relevant. {¶ 183} Skatzes claims that he was entitled to pursue this line of questioning because he did not seek to introduce extrinsic evidence of the alleged crime; he sought only to question Brookover about it. In our view, however, the trial court acted within its discretion in sustaining the state's objection. See Evid.R. 608(B). Defense counsel asked Brookover whether he had committed any additional murders, and Brookover stated that he had not. Because the defense clearly was not permitted to introduce extrinsic evidence that Brookover had been involved in an additional murder, it is unclear what legitimate purpose would have been served by allowing the defense to repeat the question in numerous forms, as it apparently sought to do. Moreover, regarding questions about prior criminal convictions offered for impeachment under Evid.R. 609, the supreme court has held that the trial court has broad discretion to limit any questioning of a witness beyond the name of the crime, the time and place of the conviction, and the punishment imposed. Robb,88 Ohio St.3d at 71, citing State v. Amburgey (1987), 33 Ohio St.3d 115, syllabus. If the trial court may limit the evidence regarding prior convictions in this way, it surely must be permitted to similarly narrow the scope of questions about previous crimes of which the witness has not been convicted. {¶ 184} In his supplemental brief, Skatzes also argues that he has been prejudiced by the fact that documents relating to the time Brookover served in an Arizona prison have been lost, and thus this court cannot review the trial court's decision that Skatzes was not entitled to use those documents at trial. The information in question was sealed at a December 8, 1994 hearing in the trial court but is not part of the record on appeal. Skatzes claims that, if he had been allowed to use the Arizona documents at trial, he would have been able to show that Brookover's testimony about Skatzes was not truthful by showing that his testimony about his own past conduct had been "less than honest." As stated supra, however, Evid.R. 608 would have precluded the introduction of general information bearing on Brookover's character. This seems to be the type of information contemplated in Skatzes' argument, which sought to show "Brookover's past involvement in murderous and violent conduct." Moreover, the record demonstrates that Brookover's prior convictions, as well as his criminal activities in Arizona prisons, such as drug usage and drug trafficking, were the subject of extensive cross-examination. {¶ 185} We note that, in his argument to the trial court at the December 8, 1994 hearing, Skatzes discussed other potential uses of Brookover's records at trial, particularly the possibility that the records could show Brookover's bias against members of the Aryan Brotherhood due to his conflicts with them in Arizona prisons. Skatzes did not address this argument in his brief or in his supplemental brief. At trial, however, Brookover testified at length about his fear of the Aryan Brotherhood and the fact that he had been viewed as a snitch in the Arizona prisons. Indeed, Brookover testified that his transfer to Ohio had been based upon concern for his safety if he remained in the Arizona prison system. Thus, we are confident that Skatzes was not precluded from attempting to show Brookover's bias. {¶ 186} The twenty-sixth assignment of error is overruled. {¶ 187} "27. THE TRIAL COURT ERRED IN PERMITTING TESTIMONY FROM SGT. HUDSON ABOUT THE STOCKHOLM SYNDROME." {¶ 188} Skatzes claims that the trial court erroneously permitted Sgt. Hudson of the State Highway Patrol to testify as an expert regarding Stockholm Syndrome. {¶ 189} Sgt. Hudson was a member of the State Highway Patrol's negotiation team and had received training in hostage negotiations from the highway patrol and the Federal Bureau of Investigation prior to the riot. Upon questioning by the prosecutor, he stated that he was familiar with Stockholm Syndrome and that the negotiators had taken it into account during their negotiations with the inmates. Sgt. Hudson defined Stockholm Syndrome as follows: {¶ 190} "Stockholm Syndrome occurs many times in hostage negotiations, where the hostage taker and the hostage himself or herself form a very strong bond with each other. * * * It's been found that, first of all, when people are in any type of crisis situation together, they get closer, there's a bond that is formed. In the hostage situation, the hostage taker is seen by the hostage as somebody who has life or death power over them. When they are allowed to live through the situation, they obviously are very thankful for this, but they see this as being due to the hostage taker making that decision to let them live and, of course, they are very grateful and this strengthens the bond. {¶ 191} "Also, during a hostage situation, it is very common that the hostage[s] themselves become very upset with the authorities on the outside who[m] the hostage taker is dealing with. Obviously, as I mentioned, they are in a life or death situation, minute by minute. * * * This is obviously the most important thing that they are dealing with, and they can't understand or they don't understand in many instances why the authorities won't do whatever the hostage taker is asking in order to let them live. {¶ 192} "* * * [T]hey see the power of the decision-making authority as being in that hostage taker's hands and are often turned against authorities during this time and take the side of the hostage taker throughout this incident." {¶ 193} Sgt. Hudson further testified that the negotiators took Stockholm Syndrome into account at several points during the negotiations when the hostage corrections officers made statements on the phone or in the prison yard to the effect that the state should give in to the inmates' demands. Sgt. Hudson did not testify that any person had, in fact, suffered from the syndrome. {¶ 194} Evid.R. 702 provides that a witness may testify as an expert if his testimony relates to matters beyond the knowledge or experience of lay persons and he is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony. Skatzes argues that the state did not attempt to qualify Sgt. Hudson as an expert on Stockholm Syndrome, but he sets forth no specific argument as to how Sgt. Hudson's testimony failed to satisfy the requirements of Evid.R. 702. It is clear from the record that Sgt. Hudson had specialized knowledge and training on hostage negotiations and on Stockholm Syndrome in particular and that a lay person would not possess knowledge of these matters. {¶ 195} Moreover, Sgt. Hudson's testimony was not hearsay because it did not convey a statement made by another nor was it offered to prove that the hostage corrections officers suffered from Stockholm Syndrome. Rather, it was offered to explain the state's actions in its negotiations with the inmates. Testimony offered to explain the investigative activities of witnesses, and not to prove the truth of the matters asserted, is admissible. Thomas, 61 Ohio St.2d at 232; State v.Williams (1996), 115 Ohio App.3d 24, 44; State v. Parson (1990),67 Ohio App.3d 201, 207. {¶ 196} Skatzes' twenty-seventh assignment of error is overruled. {¶ 197} Because the twenty-eighth and twenty-ninth assignments of error are related, we will address them together. {¶ 198} "28. THE TRIAL COURT ERRED WHEN IT OVERRULED THE DEFENSE OBJECTION TO ANTHONY LAVELLE INTERPRETING THE CONTENTS OF TUNNEL TAPE 61." {¶ 199} "29. THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S OBJECTION TO ANTHONY LAVELLE'S SPECULATION ABOUT THE DEFENDANT'S STATE OF MIND." {¶ 200} Skatzes claims that the trial court should not have permitted Anthony Lavelle to testify about the conversations recorded on tunnel tapes 61 and 67 because he was speculating about what the participants meant and because his "testimony should have been limited to what he personally knew." Skatzes does not challenge the admissibility of the tapes themselves. Tunnel tape 61 recorded an April 15 meeting where a vote was taken amongst the gang leaders to kill a guard. Tunnel tape 67 contained a conversation about negotiations and Skatzes' commitment to the inmates' demands. {¶ 201} Skatzes' argument about Lavelle's alleged lack of personal knowledge about the contents of the tapes ignores the fact that Lavelle was present at the recorded conversations. Thus, Lavelle possessed firsthand knowledge of what had been said and was competent to testify regarding inaudible portions of the tape or the meaning he attributed to statements made by other participants. Skatzes had the opportunity to cross-examine Lavelle about these interpretations. Lavelle's opinions about the tapes were also admissible pursuant to Evid.R. 701. {¶ 202} Moreover, the supreme court reviewed the propriety of the state's use of tunnel tape 61 in the case of Skatzes' co-conspirator, Jason Robb, and it observed, "* * * Lavelle, who was present at the meeting, authenticated the tape and interpreted its contents, and other evidence also established the tapes' authenticity. Defendant had full opportunity to cross-examine Lavelle as to what was said or meant on the tapes. The trial court did not abuse its discretion in admitting taped conversations of gang-leader meetings despite the background noises, and disjointed and multiple conversations. * * *" Robb,88 Ohio St.3d at 72. Although Robb's argument challenged the admissibility of the tape itself and Skatzes' argument challenges Lavelle's testimony about the tape, it is our view that the supreme court tacitly approved the use of tunnel tape 61 and Lavelle's testimony about it in Robb. {¶ 203} With respect to tunnel tape 67, Skatzes also argues that Lavelle testified about his own state of mind, which was "not relevant to anything that the government had to prove." The statement at issue did not actually relate to Lavelle's state of mind as much as it revealed how Lavelle had interpreted statements made by Skatzes. This interpretation was relevant, and it was admissible pursuant to Evid.R. 701. Moreover, Skatzes has made no argument as to how this comment about Lavelle's "state of mind," if it can be characterized as such, prejudiced him in any way. {¶ 204} The twenty-eighth and twenty-ninth assignments of error are overruled. {¶ 205} "30. PROSECUTOR MISCONDUCT DENIED GEORGE SKATZES A FAIR TRIAL." {¶ 206} Skatzes claims that he was prejudiced by the prosecutor's statements at trial regarding: 1) similarities between Skatzes' case and the Robb case; 2) Easter and prayer in the context of the riot; 3) his prior conviction; 4) uncharged killings and other bad acts during the course of the riot; 5) Skatzes' unsworn statement during the sentencing phase; 6) irrelevant and prejudicial evidence; 7) vouching for the credibility of state's witnesses; and 8) mimicking Skatzes' manner of speech. {¶ 207} In order for prosecutorial misconduct to warrant reversal, it must appear from the record that the prosecutor's remarks were improper, and that, if improper, the remarks prejudiced the defendant's substantial rights. State v. Smith (1984), 14 Ohio St.3d 13,14, citing United States v. Dorr (C.A.5, 1981), 636 F.2d 117. Prosecutorial misconduct can form the basis for reversal of a conviction only in rare instances where the prosecutor's pattern of misconduct deprived the defendant of a fair trial. State v. Keenan (1993),66 Ohio St.3d 402, 405. The touchstone of due process analysis in cases of alleged prosecutorial misconduct "is the fairness of the trial, not the culpability of the prosecutor." Landrum, 53 Ohio St.3d at 112, citing Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947. {¶ 208} The propriety of evidence regarding uncharged crimes and other bad acts, the state's alleged vouching for the credibility of its witnesses, and the state's comments about Skatzes' prior conviction are discussed under other assignments of error. Naturally, because we found no error pertaining to these issues, we must also conclude that the prosecutor did not engage in misconduct. {¶ 209} Skatzes claims that the prosecutor engaged in misconduct by referring to the Robb case in some of its arguments and thereby failing to treat his case independently. Skatzes contends that the prosecutor used the Robb case "as a talisman to encourage favorable judicial rulings." The reality of the matter was, however, that the same parties had raised some of the same issues before the same judge in Robb's case because of the many similarities between the two cases. The prosecutor was not required to pretend that the previous discussions and the judge's previous rulings on some nearly identical issues had never occurred. Moreover, we fail to see how Skatzes was prejudiced by these references. Also, the prosecutor's discussion in closing argument of the fact that many people were involved in crimes during the riot, some of whom reached plea agreements with the state and some of whom did not, did not demonstrate that the state's "goal was to tack any hide to the wall rather than seek a just result," as Skatzes claims. {¶ 210} Skatzes also contends that the prosecutor's references to the fact that the riot started on Easter Sunday were "designed to create bias in those who would be offended by the conduct occurring on a religious holiday." This argument is speculative at best. The prosecutor discussed the holiday in his presentation of the case because it helped many witnesses to pinpoint the time frame of the riot and it explained why the prison had been understaffed when the riot began. These comments were not unfair to Skatzes. Further, the prosecutor's comment in closing argument that Skatzes' "prayer that the truth would come out" had been answered was not inappropriate religious commentary. {¶ 211} The prosecutor elicited testimony that one of the inmate witnesses had come forward because Skatzes' actions in taking over the prison had caused the inmate's mother great concern for his safety. This testimony may have been of little relevance, but we are confident that it made little, if any, impact on the jury so as to prejudice Skatzes. The prosecutor's comment during closing argument that Skatzes was a "cold-blooded killer" was within the wide latitude afforded to a prosecutor in summation. See State v. Stephens (1970), 24 Ohio St.2d 76,82. Moreover, the prosecutor's use of the phrase "I reckon" a couple of times in closing argument, mimicking Skatzes' testimony, was not prejudicial. {¶ 212} Finally, Skatzes contends that the prosecutor improperly commented upon his unsworn statement in the penalty phase of the trial. R.C. 2929.03(D)(1) grants the defendant in a capital case the right to make an unsworn statement at the penalty phase of his trial. The supreme court has held that, "[t]o permit the prosecutor to extensively comment on the fact that the defendant's statement is unsworn affectsFifth Amendment rights and negates the defendant's statutory prerogative."State v. DePew (1988), 38 Ohio St.3d 275, 285, certiorari denied (1989),489 U.S. 1042, 109 S.Ct. 1099. The prosecutor is permitted to comment that the defendant's statement was not made under oath or affirmation, but such comment must be limited to reminding the jury that, in contrast to the testimony of all other witnesses, the defendant's statement was not made under oath. Id., at paragraph two of the syllabus. Skatzes claims, without elaboration, that the state engaged in the practice "condemned" in DePew. {¶ 213} Our review of the record reveals that the prosecutor did remind the jurors that Skatzes' statement during the penalty phase had been unsworn, that he had not been subject to cross-examination, and that the testimony of other witnesses during the mitigation phase of the trial had sounded "completely different" after cross-examination than it had after direct examination. The prosecutor also commented that Skatzes was "a master manipulator" and that he had manipulated the jurors with his unsworn statement. The prosecutor's comments herein did exceed the proper scope of comment set forth in DePew. However, we find that the remarks were not prejudicial to Skatzes in light of the significant weight of the aggravating circumstances relative to the factors offered in mitigation, as discussed infra. {¶ 214} In sum, prosecutorial misconduct did not deprive Skatzes of a fair trial. {¶ 215} The thirtieth assignment of error is overruled. {¶ 216} "31. THE TRIAL COURT ERRED WHEN IT PERMITTED TESTIMONY ABOUT AN UNCHARGED PLOT TO KILL SEVERAL INMATES AT THE END OF THE TAKEOVER IN VIOLATION OF OHIO EVID.R. 404(B)." {¶ 217} Skatzes argues that, pursuant to Evid.R. 404(B), the trial court should have excluded Snodgrass's testimony about a plot to kill several inmates at the end of the riot. {¶ 218} The following testimony was at issue. Snodgrass testified that, toward the end of the riot, he and other members of the Aryan Brotherhood had become aware that some inmates had been "going around trying to solicit, to get guys together * * * to kill George Skatzes, take over the block that the Aryan Brotherhood had, take over the hostage negotiations, and try to bring an end to the riot, and get the demands that they wanted met, basically in a coup" because of dissatisfaction with how things had been being handled. The Aryans consulted with the Muslims about the situation, and those involved in planning the coup were locked in a cell in the Muslim block. The Aryans wanted the individuals transferred to the Aryan Brotherhood block so that they "could take them out." As the surrender began, several members of the Aryan Brotherhood, including Snodgrass and Skatzes, "dressed out," meaning that they donned an extra layer of clothing that could be disposed of if they got bloody, in anticipation of the Muslims turning over those who had discussed a coup. The group waited in L-7 while Robb attempted to secure the release to the Aryan Brotherhood of those who had discussed the coup. Robb was unsuccessful, however, and reported to the group that the Muslims would not release the men because they had converted to Islam. The group then requested that Sommers be brought in because he was believed to be a snitch. Sommers was brought to L-7 a short time later and was beaten and stabbed to death. {¶ 219} Skatzes argues that Snodgrass's testimony about the plan to kill those who had plotted against the Aryan Brotherhood leaders was impermissible other acts evidence. In our view, this testimony was not improper other acts evidence because it provided the context in which Sommers was killed. Skatzes, Snodgrass, and others were lying in wait and literally dressed to kill in L-7 when they discovered that their intended targets were not available and focused their attention on Sommers instead. The trial court could have reasonably concluded that the plot to kill other inmates was not separate from the murder of Sommers, but part of the same series of events. Thus, Evid.R. 404(B) did not require that this evidence be excluded. {¶ 220} The thirty-first assignment of error is overruled. {¶ 221} "32. THE TRIAL COURT ERRED WHEN IT ADMITTED EXHIBITS 289 AND 290." {¶ 222} Exhibits 289 and 290 were poster-sized chronologies prepared by the state of the eleven days of the riot and the first day after the riot had ended which included such information as when bodies were placed on the recreation yard, when demands were made, when food was supplied, and when water and electricity were turned off. The chronologies also included notations about the telephone negotiations with the inmates and the tunnel tapes. Skatzes did not object to the introduction of these exhibits to assist in the presentation of evidence at trial, but he did object to the admission of the exhibits "as evidence for the jury to contemplate." He also disputed some of the "facts" set forth in the chronology, such as the identity of voices on the tunnel tapes. {¶ 223} After considering the parties' arguments, the trial judge overruled Skatzes' objection to the exhibits, stating, "in a normal case, in a normal brief case, where the jury has an opportunity to remember the facts, it would not be suitable in my opinion to use such a board * * *. However, I think that discretion of the Court would allow the Court, in a very long, very complicated case, * * * to allow the jury to use that for the purposes for which it is intended, which is merely a reminder of what the actual testimony and evidence was on that particular subject. Under those conditions, I think it would be allowable. I will so allow it." {¶ 224} The admission of exhibits such as these into evidence is within the broad discretion of the trial court. State v. Barker (1978),53 Ohio St.2d 135, 146. See, also, State v. Reiner, 89 Ohio St.3d 342,356, 2000-Ohio-190; State v. Williams, 74 Ohio St.3d 569, 576,1996-Ohio-91. Absent an abuse of discretion, the admission of such exhibits is not reversible error. Yeager v. Riverside Methodist Hosp. (1985), 24 Ohio App.3d 54, 56. An abuse of discretion requires more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Clark,71 Ohio St.3d 466, 470, 1994-Ohio-43. {¶ 225} It appears from the record that the trial court carefully considered the parties' arguments and made a reasonable determination that the helpfulness of the exhibits outweighed any prejudice to Skatzes. Moreover, we think it was clear to the jury that some of the information contained on the posters, such as the alleged identities of the inmate negotiators, had been a source of some confusion during the riot and was open to debate. The court did not abuse its discretion in admitting the posters. {¶ 226} The thirty-second assignment of error is overruled. {¶ 227} "33. THE TRIAL COURT ERRED WHEN IT ADMITTED EXHIBIT 334, A DOCUMENT PURPORTING TO BE THE BYLAWS OF THE ARYAN BROTHERHOOD." {¶ 228} Skatzes contends that the trial court erred in admitting Exhibit 334, the document purported to be the bylaws of the Aryan Brotherhood, because the state had not laid a proper foundation for the document and it was hearsay. Skatzes also claims that the government shifted the burden of proof to Skatzes to show that he had no knowledge of the bylaws, whereas the state should have had the burden to show that Skatzes did have knowledge of the document at the time of the riot. {¶ 229} Snodgrass testified that he had become a captain in the Aryan Brotherhood after the Lucasville riot and had obtained Exhibit 334 from Dewey Bocook, another ranking member of the Aryan Brotherhood. He further testified that all of the Aryan Brothers had to be aware of the bylaws and to agree to abide by them as "part of taking an oath to the Brotherhood." The bylaws provided, in pertinent part: {¶ 230} "10. Whatever the committee says, is, in fact, the law. {¶ 231} "11. Brothers will always be there for other Brothers. If a Brother is proven to have left a Brother in the middle of a conflict or potentially violent conflict, he will be deemed a traitor and dealt with accordingly. {¶ 232} "12. When there is a `Call to Arms,' all Brothers must answer the call promptly and accordingly. Failure to do so is a traitorous act!" {¶ 233} Snodgrass testified that these bylaws were in effect at the time of the riot. He also testified that being "deemed a traitor" and being "dealt with accordingly" meant that "you would be killed." {¶ 234} Snodgrass properly identified the bylaws pursuant to Evid.R. 901(B)(1) because his testimony was sufficient to support a finding that the document was what he claimed it to be. Although Skatzes complains that Snodgrass did not testify that he had been present when the bylaws were passed, nothing in the language of the rule suggests that he had to be present when the bylaws were passed in order to identify or authenticate them. Moreover, Snodgrass did testify that all Aryan Brotherhood members had to learn about and accept the bylaws as part of becoming a member. This testimony supported the inference that Skatzes had known about the bylaws at the time of the riot. It did not unfairly "shift the burden" to Skatzes, as he claims. {¶ 235} Skatzes also argues that the bylaws were inadmissible hearsay. The state responds that the bylaws were admissible pursuant to Evid.R. 801(D)(2)(e), an exception to the hearsay rule that allows into evidence a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. We see a more fundamental problem with Skatzes' argument, however. We are unpersuaded that the document qualified as hearsay at all because it represented the views of an organization, not a "person" as set forth in Evid.R. 801(B). Although Snodgrass testified that Bocook and Tramp Johnson had possessed the document before he had obtained it, his testimony did not indicate that either of these men was a "declarant" in the sense that he had established the rules set forth therein. {¶ 236} The thirty-third assignment of error is overruled. {¶ 237} "34. THE TRIAL COURT ERRED BY GIVING AN UNCONSTITUTIONAL REASONABLE DOUBT INSTRUCTION." {¶ 238} Skatzes claims that Ohio's statutory definition of reasonable doubt, set forth at R.C. 2901.05(D), sets a lower standard for conviction than that which is required by the Due Process Clause of theFourteenth Amendment to the United States Constitution. He asserts that the statutory definition is akin to a clear and convincing standard and has been widely criticized by the Supreme Court, federal circuit courts, and some Ohio courts. {¶ 239} The Supreme Court of Ohio has addressed this argument and has concluded that the statutory definition of reasonable doubt is constitutionally sufficient. State v. Nabozny (1978), 54 Ohio St.2d 195,202-203, vacated on other grounds (1978) 439 U.S. 811, 99 S.Ct. 70. It reasoned: {¶ 240} "The General Assembly has attempted, in R.C. 2901.05 and the definition of `reasonable doubt' therein, to provide not only a degree of consistency as to the meaning of the term throughout the courts of this state, but also to have a definition comprehensible to all the members of the jury and not merely those trained in the subtle nuance of legalese. Considering the inherent difficulty in defining this abstract concept of reasonable doubt, the similarity of the definition under consideration with that in Holland [v. United States (1954), 348 U.S. 121,75 S.Ct. 127], and the beneficial aspects of the legislative mandated definition, we find that the General Assembly has pronounced a rational definition of `reasonable doubt' which, when taken as a whole, correctly conveyed the concept of `reasonable doubt' to the jury." Id. {¶ 241} It is well settled that "an appellate court is conclusively bound by the decisions of the Supreme Court of Ohio." Statev. Crago (1994), 93 Ohio App.3d 621, 640, quoting Thompson v. Moore (1943), 72 Ohio App. 539, 541. See, also, Thacker v. Board of Trusteesof Ohio State Univ. (1971), 31 Ohio App.2d 17, 21, affirmed (1973),35 Ohio St.2d 49. As such, we find this argument to be without merit. {¶ 242} The thirty-fourth assignment of error is overruled. {¶ 243} "35. THE TRIAL COURT FAILED TO GIVE ADEQUATE JURY INSTRUCTIONS AT THE GUILT/INNOCENCE PHASE OF TRIAL." {¶ 244} Skatzes alleges numerous unrelated problems with the jury instructions at the guilt phase of his trial and contends that each of the alleged errors warrants reversal of his conviction. He also argues that the cumulative effect of the errors warrants reversal. None of the alleged errors in the trial court's instructions were raised at trial. {¶ 245} "[A] party may not assign as error the giving or the failure to give any instructions unless [he] objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." Crim.R. 30(A); Stallings,89 Ohio St.3d at 292. By failing to object, a defendant waives all but plain error. Stallings, 89 Ohio St.3d at 292; Underwood, 3 Ohio St.3d at 13. Plain error has been defined as "obvious error prejudicial to a defendant * * * which involves a matter of great public interest having substantial adverse impact on the integrity of and the public's confidence in judicial proceedings." (Internal quotation marks omitted.) Endicott,99 Ohio App.3d at 694. "[T]he plain error rule should be applied with utmost caution and should be invoked only to prevent a clear miscarriage of justice." Underwood, 3 Ohio St.3d at 14. {¶ 246} Under this assignment of error, Skatzes reiterates an argument advanced under the third assignment of error that the jury was required to unanimously agree upon the purpose for which he had committed the Vallandingham kidnapping and that the trial court had erred in failing to so instruct the jury. We rely on our earlier discussion in rejecting this argument. To the extent that Skatzes contends that the instructions regarding the Clark and Elder kidnappings suffered from the same infirmity, we likewise reject these arguments. {¶ 247} Skatzes also claims that the trial court erred in failing to identify the felony underlying the Clark and Elder kidnappings. (The court had identified aggravated riot as the underlying felony in the Vallandingham kidnapping.) In our view, the trial court was not required to identify the underlying felony. See 4 Ohio Jury Instructions (2001) 148, Section 505.01(A)(2) (applicable to offenses committed before July 1, 1996). In fact, with respect to Vallandingham and Elder, the evidence would have supported the conclusion that the kidnappings had facilitated the felony of murder as well as aggravated riot. As such, the trial court's instruction regarding Vallandingham's kidnapping was more narrow than it need have been. The court did not err in failing to identify an underlying felony with respect to the kidnappings of Clark and Elder. {¶ 248} Skatzes claims that the jury instructions regarding complicity contained a "misleading" definition of what it means to solicit another to commit an offense "because it diminish[ed] the character of the request required." The trial court defined "solicit" as that term is defined in the Ohio Jury Instructions: "to seek, to ask, to influence, to invite, to tempt, to lead on, to bring pressure to bear." 4 Ohio Jury Instructions (2001) 573, Section 523.03(6) (applicable to offenses committed before July 1, 1996). It is unclear to us in what respect Skatzes finds this definition to be "vague" and "unreliable." In our opinion, the definition was not misleading, vague, or unreliable, and it certainly did not rise to the level of plain error. {¶ 249} Skatzes also challenges the trial court's definition of acting "purposefully." The court's definition complied with 4 Ohio Jury Instructions (2001) 57-58, Section 409.01(4), which provides in pertinent part that, "To do an act purposely is to do it intentionally and not accidentally." Skatzes argues that he was prejudiced by this juxtaposition of "intentionally" and "accidentally" because it "left the jurors to presume that anything more than accident fit the definition of purposely." We disagree. The preceding line of the instructions was that "[a] person acts purposely when it is his specific intention to cause a certain result," and the instructions subsequently equated purpose and intent. It would be speculative for us to presume that the jury misinterpreted these instructions in the manner that Skatzes suggests, and, in any event, these instructions do not amount to plain error. {¶ 250} Skatzes also faults the trial court for its instruction on aggravated riot. This argument relates to Skatzes' conviction for kidnapping Vallandingham. One of several bases upon which Skatzes was indicted for kidnapping was that the kidnapping had facilitated the commission of another felony, specifically aggravated riot. See R.C.2905.01(A)(2). Although the trial court identified aggravated riot as the underlying felony in its instructions to the jury on kidnapping, Skatzes speculates that the jurors may have based their decisions on different underlying felonies or that the jurors may not have known what constituted a felony. This argument is entirely speculative and thus without merit. {¶ 251} Next, Skatzes objects to the jury instructions regarding prior calculation and design during the guilt phase of the trial. The following instruction was given to the jury: {¶ 252} "A person acts with prior calculation and design when, by engaging in a distinct process of reasoning, he forms the purpose to kill and plans the method he intends to use to cause death. The circumstances surrounding a homicide must show a scheme designed to carry out the calculated decision or cause the death. {¶ 253} "No definite period of time must elapse and no particular amount of consideration must be given, but acting upon the spur of the moment or after momentary consideration of the purpose to cause a death is not sufficient." {¶ 254} Skatzes objects to the fact that the following language from 4 Ohio Jury Instructions (2001), 116-117, Section 503.01(3) was not included in the instruction: {¶ 255} "`Prior calculation and design' means that the purpose to cause the death was reached by a definite process of reasoning in advance of the homicide, which process of reasoning must have included a mental plan involving studied consideration of the method and the means with which to cause the death. {¶ 256} "To be prior calculation, there must have been sufficient time and opportunity for the planning of an act of homicide, and the circumstances surrounding the homicide must show a scheme designed to carry out the calculated decision to cause the death." {¶ 257} The trial court's instruction encompassed the "definite process of reasoning" portion of Section 503.01(3) to which Skatzes claims he was entitled. The second paragraph of the instruction to which Skatzes claims he was entitled adds little to the preceding paragraph, and we fail to see how Skatzes could have been prejudiced by the trial court's failure to give that instruction. The state's theory of the case was that Skatzes and the other gang leaders had contemplated killing a corrections officer and had threatened to do so from the outset of the riot. Vallandingham was killed five days into the riot. If the jury believed the state's version of events, there could have been little doubt that Skatzes and the other gang leaders had had sufficient time and opportunity to satisfy the prior calculation element of the killing. Skatzes' defense was that he had not voted to kill Vallandingham and that he had not known about the murder until after it had happened. If the jury had believed this version of events, the issue of how much time had elapsed between making the decision and acting upon it would not have been relevant. Thus, we are unpersuaded that Skatzes was prejudiced by the trial court's failure to give this instruction. {¶ 258} Skatzes challenges the trial court's definition of "cause" on the ground that the second sentence is inapplicable to an aggravated murder case. The court instructed: "Cause is an act which is [sic] in the natural and continuous sequence directly produces the death and without which it would not have occurred. Cause occurs when the death is the natural and foreseeable result of the act." Skatzes cites no authority for his claim that this instruction was inapplicable to aggravated murder, and we are aware of none. This instruction was not plain error. {¶ 259} {¶ 260} Next, Skatzes contends that the instruction regarding the felony murder specification to the Vallandingham murder was flawed because the victim of the underlying felony of kidnapping was not identified. The trial court was not required to identify the victim of the kidnapping, but, read in context, we think it was clear that the victim of the kidnapping was also Vallandingham. The trial court did not err in giving this instruction. {¶ 261} Skatzes contends that the trial court's definition of a principal offender as "one who has hands-on involvement in a homicide" did not adequately define the degree of participation required for principal offender status. This instruction related to the aggravated murder of David Sommers. Skatzes claims that, under this definition, one who provided a weapon, escorted the victim, or carried a body could have been found to be a principal offender. {¶ 262} The term "principal offender" as used in R.C. 2929.04(A)(7) is not defined in the Revised Code or in Ohio Jury Instructions. The supreme court has held that the term "principal offender" means "the actual killer," State v. Penix (1987), 32 Ohio St.3d 369, 371, or "one who personally performs every act constituting the offense" of aggravated murder, State v. Getsy, 84 Ohio St.3d 180, 197, 1998-Ohio-533, certiorari denied (1999), 527 U.S. 1042, 119 S.Ct. 2407. See, also, Stallings,89 Ohio St.3d at 292 (approving instruction that "principal offender means the one who directly caused the death"). We agree with Skatzes that the trial court's "hands-on involvement" instruction did not require the same level of involvement as these other definitions and that this language should have been stronger. This instruction was not plain error, however, because it was not outcome determinative. The state presented evidence that Skatzes had beaten Sommers with a baseball bat and that Sommers had died of injuries inflicted by such a weapon. Skatzes claimed that he had not been present at Sommers' murder and that he had not learned of the killing until after he had been transferred to Mansfield. There was no evidence to suggest that Skatzes, if he was present at the time of the murder, was anything but the actual killer, such as an escort or a mere provider of a weapon. Based on the evidence presented, the jury could only have concluded that Skatzes had had hands-on involvement in Sommers' murder if it had believed the state's version of events, i.e., that Skatzes had been an active participant in the murder. As such, the error in the instruction was harmless, and we find no plain error. SeeState v. Chinn, 85 Ohio St.3d 548, 559-560, 1999-Ohio-288, certiorari denied (2000), 528 U.S. 1120, 120 S.Ct. 944 (finding that trial court's failure to define "principal offender" was not plain error under the facts presented). {¶ 263} Skatzes argues that the trial court's instructions to the jury regarding the verdict forms did not adequately convey to the jury that it "must be unanimous `as to any alternative'" presented in the instructions. We disagree. Throughout its instructions to the jury, the trial court referred to the unanimity required for its many different decisions. Then, after discussing at some length three of the forty-two verdict forms that it found to be representative of the whole, the trial court stated: "Some of the offenses provide alternate ways of committing the offense. Before you can find the defendant guilty of an offense providing alternatives, you must be unanimous in your verdict as to any alternative." The court later repeated this instruction using slightly different language. In our view, the jury was adequately instructed on this topic. See, also, our discussion of the third assignment of error, supra. {¶ 264} Because we have found that there was no plain error in the specific instructions to which Skatzes objects, we likewise find that there was no cumulative error. {¶ 265} The thirty-fifth assignment of error is overruled. {¶ 266} "36. THE TRIAL COURT FAILED TO ACCURATELY INSTRUCT THE JURY IN RESPONSE TO ITS QUESTION ABOUT THE ROLE ONE MUST PLAY TO BE CONSIDERED A PRINCIPAL OFFENDER UNDER OHIO REV. CODE § 2929.04(A)(7)." {¶ 267} Skatzes contends that the trial court erred in instructing the jury that, for purposes of the death specification under R.C.2929.04(A)(7), Skatzes was required to have been "a principal offender" in Sommers' murder rather than "the principal offender." This issue arose in response to a question from the jury about a discrepancy between the jury instructions and the verdict forms. {¶ 268} The supreme court has held that "principal offender" does not mean "the sole offender." State v. Stojetz, 84 Ohio St.3d 452, 458,1999-Ohio-464, certiorari denied (1999), 528 U.S. 999, 120 S.Ct. 455;State v. Keene, 81 Ohio St.3d 646, 655, 1998-Ohio-342, certiorari denied (1998), 525 U.S. 936, 119 S.Ct. 350. "As there can be more than one actual killer, there can be more than one principal offender." Stojetz,84 Ohio St.3d at 458-459. Thus, the trial court's instruction that the jury was to determine whether Skatzes had been "a principal offender" was accurate. {¶ 269} The thirty-sixth assignment of error is overruled. {¶ 270} "37. THE TRIAL COURT FAILED TO GIVE ADEQUATE JURY INSTRUCTIONS AT THE MITIGATION PHASE OF TRIAL." {¶ 271} Under this assignment of error, Skatzes challenges the jury instructions given during the penalty phase of his trial on nine different bases. {¶ 272} First, Skatzes contends that the trial court's instruction "seriously undermined the jury's sense of responsibility for determining the appropriate sentence" by referring to the jury's sentencing verdict as a "recommendation." The supreme court addressed this argument inRobb, 88 Ohio St.3d at 84, wherein it concluded that the trial court's use of the word "recommendation" had "accurately stated the law and did not constitute error" especially where, as here, the jury was further instructed that the use of the term "recommendation" should not "diminish [its] sense of responsibility in this matter." {¶ 273} Second, Skatzes argues that the trial court "failed to instruct the jurors to count specifications arising from the same conduct or course of conduct only once." He also argues that "duplicative death specifications [should have been] merged for sentencing." Skatzes' argument in this respect is unclear, but, based on the pages he cites in the transcript, we interpret his argument to be that the trial court should have merged the specifications related to Skatzes' prior conviction for aggravated murder and his commission of the present offenses while he was a prisoner in a detention facility because "the prior purposeful killing * * * [was] the very reason Mr. Skatzes was in prison." In reviewing death penalty cases, however, the supreme court has not merged these specifications in the manner that Skatzes suggests, and he cites no authority for doing so. See State v. Carter,64 Ohio St.3d 218, 228, 1992-Ohio-127, certiorari denied (1993),507 U.S. 938, 113 S.Ct. 1330; State v. Bradley (1989), 42 Ohio St.3d 136,149, certiorari denied (1990) 497 U.S. 1011, 110 S.Ct. 3258. {¶ 274} Third, Skatzes contends that the trial court "put a gratuitous thumb on the scale of justice" by allowing the jury to make sentencing recommendations on two counts of aggravated murder for each victim instead of merging the counts before they were submitted to the jury. The cases cited by Skatzes do not support this position. The general rule is that a defendant may be charged with multiple counts based on the same conduct but may be convicted of only one and that the trial court effects the merger at sentencing. R.C. 2941.25(A); State v.Osborne (1976), 49 Ohio St.2d 135, 144, vacated on other grounds (1978)438 U.S. 911, 98 S.Ct. 3136. A "conviction" includes both the guilt determination and the penalty imposition. See, generally, State v.Henderson (1979), 58 Ohio St.2d 171, 177-179. Skatzes' right not to be convicted of more than one offense based upon the same conduct was not violated because, in imposing sentence, the trial court merged the counts in question. Skatzes has cited no authority for the proposition that the jury should not have been allowed to make a sentencing recommendation on each of the aggravated murder offenses. {¶ 275} Fourth, Skatzes complains that the trial court combined or "double counted" the aggravating circumstances in part of its instructions. For example, Skatzes was found guilty of two counts of aggravated murder regarding Vallandingham, and the trial court discussed the four identical specifications with respect to each count together. We reject Skatzes' claim that the manner in which the trial court instructed the jury led the jurors "to weigh eight specifications for each aggravated murder victim." Viewed in context, the record does not support such a conclusion, especially in light of the trial court's express instruction that "[t]he penalty for each individual count must be assessed separately. Only the aggravating circumstances relating to a given count may be considered in assessing the penalty for that count." {¶ 276} Fifth, Skatzes argues that the trial court erred in failing to tell the jurors that they did not have to unanimously agree on a mitigating factor in order for it to be considered. There is nothing in the record to suggest that the jurors would have acted under such a misapprehension, and such an instruction was not required. The trial court properly instructed the jurors that they had to unanimously find that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt in order to impose the death penalty. {¶ 277} Sixth, Skatzes objects to the trial court's definition of "principal offender." We addressed this issue under the thirty-fifth assignment of error. {¶ 278} Seventh, Skatzes contends that the trial court erred in instructing the jury not to be influenced by "sympathy or prejudice" because "[s]ympathy flowing directly from the mitigation is properly considered." The jury was fully instructed about the proper consideration to be given to mitigation evidence. The court's instruction that the jury should reach a decision "without bias, sympathy, or prejudice so that the State of Ohio and the defendant [would] feel their case was fairly and impartially tried" was not error. {¶ 279} Eighth, Skatzes claims that the trial court should have enumerated all of the mitigating factors about which he had presented evidence rather than enumerating some of the mitigating factors set forth in R.C. 2929.04(B), followed by a general instruction that the jury could consider any other factors that were relevant to whether Skatzes should be sentenced to death. While the trial court might have tailored the instructions more to the evidence, such an approach was not required.Landrum, 53 Ohio St.3d at 122. {¶ 280} Finally, Skatzes objects to the definition of "reasonable doubt" used by the trial court. We addressed this argument under the thirty-fourth assignment of error, and it requires no further discussion here. {¶ 281} The thirty-seventh assignment of error is overruled. {¶ 282} Skatzes raises numerous assignments of error in which he claims that he was denied the effective assistance of counsel at trial. We will evaluate these contentions in light of the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052 and adopted by the Supreme Court of Ohio in Bradley, 42 Ohio St.3d 136. {¶ 283} Trial counsel is entitled to a strong presumption that his conduct falls within the wide range of reasonable assistance.Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-2065. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel's conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. at 687, 104 S.Ct. at 2064. Deficient performance means that claimed errors were so serious that the defense attorney was not functioning as the "counsel" that theSixth Amendment guarantees. State v. Cook (1992), 65 Ohio St.3d 516, 524, certiorari denied (1994), 510 U.S. 1040, 114 S.Ct. 681. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel's perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel. Id. at 524-525. {¶ 284} We now turn to Skatzes' arguments in assignments of error thirty-eight, thirty nine, and forty-two through fifty-three, all of which are based on the alleged ineffectiveness of Skatzes' trial counsel. {¶ 285} "38. DEFENDANT'S TRIAL COUNSEL[']S CONDUCT FELL BELOW THE ACCEPTABLE STANDARD WHEN THEY AGREED THAT SGT. HUDSON COULD TESTIFY AS A SUMMARY WITNESS." {¶ 286} It is undisputed that the prosecution and the defense reached an agreement prior to trial that Sgt. Hudson would testify as a "summary witness" regarding the negotiations during the riot and the subsequent investigation. Skatzes claims that he was prejudiced by this agreement because Sgt. Hudson's testimony may have touched on matters about which he had no firsthand knowledge. Skatzes claims that defense counsel waived his "right to confront" Sgt. Hudson "and received little in return." {¶ 287} We disagree with Skatzes' assessment that his attorneys acted ineffectively in allowing Sgt. Hudson to testify as a summary witness. It appears that the primary purpose of the agreement regarding this testimony was to present the jury with the background of the case as expeditiously as possible. The defense could have reasonably concluded that Skatzes had nothing to gain by having this evidence presented by several witnesses rather than by one. Moreover, defense counsel had ample opportunity to cross-examine Sgt. Hudson. {¶ 288} Our review of the record also suggests that Sgt. Hudson did, in fact, have firsthand information regarding most of the matters about which he testified and that much of his testimony was corroborated by pictures, audiotapes of the negotiations, and videotapes of the events that occurred on the recreation yard. Further, Sgt. Hudson's testimony did not directly implicate Skatzes in any of the crimes for which he was indicted. Rather, it established only that he had been one of the primary negotiators, a fact that was not disputed. Trial counsel's conduct regarding Sgt. Hudson's testimony did not fall below an objective standard of reasonableness and, in any event, Skatzes has not demonstrated that he was prejudiced by the manner in which this testimony was presented. {¶ 289} The thirty-eighth assignment of error is overruled. {¶ 290} "39. THE TRIAL COURT VIOLATED APPELLANT'S FUNDAMENTAL RIGHT TO THE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§ 10 AND 16 OF THE OHIO CONSTITUTION WHEN IT FAILED TO MAKE SUFFICIENT INQUIRY INTO THE REASONS FOR APPELLANT'S REQUEST FOR SUBSTITUTE COUNSEL AND TO DETERMINE WHETHER THEY WERE ARBITRARY OR LEGITIMATE." {¶ 291} Skatzes claims that the trial court violated his fundamental rights when it failed to adequately inquire into his request for substitute counsel and his dissatisfaction with his attorneys. This argument is without merit because the record does not reflect that Skatzes asked for different attorneys. Rather, Skatzes expressed some frustration about his ability to communicate freely with his attorneys while in prison and about his access to the tunnel tapes, which he wanted to review in their entirety. Skatzes told the trial court that his attorneys treated him with "a high degree of respect" and denied that he was requesting that they be removed from his case. In fact, Skatzes expressed confidence that he and his attorneys could "iron it out," referring to his expectations regarding communication and access to discovery materials. The only direct reference to a request for new attorneys came from the prosecutors, who stated that it was their "understanding kind of through a grapevine that * * * Skatzes had [some dissatisfaction] with his lawyers and that there was going to be a request that new lawyers be appointed." In this context, and given Skatzes' assurances to the trial court that he was not requesting that his attorneys be removed, the trial court certainly did not err in failing to pursue this matter further. {¶ 292} The thirty-ninth assignment of error is overruled. {¶ 293} "42. DEFENDANT'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN THEY FAILED TO DEVELOP THE DEFENSE OF DURESS." {¶ 294} Skatzes claims that he was denied the effective assistance of counsel by his attorneys' failure to raise a defense of duress in the guilt and sentencing phases of his trial. Skatzes asserts that duress was a viable defense to conspiracy, kidnapping, and murder under the facts of this case and that evidence that he had acted under duress might have led the jury to impose a lesser sentence. {¶ 295} Duress consists of any conduct that overpowers a person's will and coerces his performance of an act that he otherwise would not have performed. State v. Grinnell, 112 Ohio App.3d 124, 144-145. "One of the essential features of the defense of duress is the sense of immediate, imminent death or serious bodily injury if the actor does not commit the act as instructed." Id. at 145, citing State v. Cross (1979), 58 Ohio St.2d 482. {¶ 296} Trial counsel did not act ineffectively in failing to offer a defense of duress because the facts presented at trial, including Skatzes' own testimony, did not support such a defense. Skatzes claimed to have had no involvement in the deaths of Elder, Vallandingham, and Sommers. As the state points out, one must admit involvement in a crime in order to mount a defense based on duress. Skatzes admitted to holding Clark as a hostage but did not give any indication at trial that he had felt that he would be harmed or killed if he had not done so. Even as to activities bearing on the alleged conspiracy with which Skatzes was not charged, Skatzes' testimony did not support a defense of duress. For example, Skatzes testified that he had voluntarily become involved in the telephone negotiations, "speaking for the inmate body" rather than for the Aryan Brotherhood, because he could see that negotiations were not going well when conducted by another inmate and because of the "mutual respect" between him and the authorities. He claimed to have acted with similar benevolence when participating in further negotiations because he did not want to see any corrections officers killed. Throughout his testimony, Skatzes portrayed himself as one who participated out of a desire to help resolve disputed issues and to ensure the safety of the hostages and inmates; he did not claim to have been given responsibilities against his will. {¶ 297} Skatzes claims that his attorneys were also ineffective in failing to raise duress as a mitigating factor in the sentencing phase of the trial. R.C. 2929.04(B)(2) provides that, in determining the sentence for a capital offense, the jury may consider whether it is unlikely that the offense would have been committed but for the fact that the defendant was under duress, coercion, or strong provocation. Skatzes asserts that his attorneys should have offered this type of evidence in the form of expert testimony from a psychologist or other mental health professional about "the impact of the circumstances of the takeover" on a person of Skatzes' "fragile mental condition." In response to this argument, we reiterate that Skatzes' version of events provided scant support, if any, for the claim that he had acted under duress, and that his denial of involvement in any of the crimes actually conflicted with a claim of duress. {¶ 298} The forty-second assignment of error is overruled. {¶ 299} "43. THE DEFENDANT'S TRIAL COUNSEL[`]S CONDUCT FELL BELOW THE ACCEPTABLE STANDARD WHEN THEY FAILED TO OBJECT TO THE STATE'S REPEATED REFERENCES TO THE ARYAN BROTHERHOOD AND ITS BELIEFS." {¶ 300} Skatzes claims that his membership in the Aryan Brotherhood "had no relevance to [his] guilt or to the aggravating circumstances or mitigating factors" because he was white and his alleged victims were white. He contends that his attorneys were ineffective in failing to object to evidence regarding his involvement in the Aryan Brotherhood. Skatzes relies upon Dawson v. Delaware (1992), 503 U.S. 159,112 S.Ct. 1093, in support of this argument. {¶ 301} Skatzes' claim that his membership in the Aryan Brotherhood had no relevance to this case is wholly unfounded. The gangs operating in L-block, their leadership structures, the tensions among the gangs, and their unusual cooperation during the riot were intimately tied to the events that unfolded at Lucasville in April 1993. According to the state's theory of the case, Skatzes would not have been in a position to negotiate with authorities or to direct the actions of other inmates had it not been for his leadership role in the Aryan Brotherhood. Thus, this evidence was entirely appropriate and counsel were not ineffective in failing to object to it. Dawson v. Delaware is distinguishable because, in that case, the defendant's involvement in the Aryan Brotherhood was completely unrelated to the crime he had committed. {¶ 302} Amicus also urges that Skatzes was convicted in this case because the jury and judge were unduly and unfairly influenced by his association with the Aryan Brotherhood and that Skatzes "cannot constitutionally be found guilty, much less sentenced to death, based upon the abstract beliefs of any group to which he belonged." We disagree with the assertion that Skatzes was convicted based on his beliefs rather than his actions. Again, Skatzes' involvement in the Aryan Brotherhood was closely tied to his involvement in the riot, and evidence regarding this association was appropriate. {¶ 303} The forty-third assignment of error is overruled. {¶ 304} "44. DEFENDANTS' TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO OBJECT TO PROSECUTOR COMMENTS AND TESTIMONY OF SGT. HUDSON VOUCHING FOR THE STATE'S WITNESSES AND EVIDENCE." {¶ 305} Under his fourteenth assignment of error, Skatzes argued that the state and Sgt. Hudson had improperly vouched for the credibility of the state's inmate witnesses. We rejected this argument, supra. Because we have concluded that the statements of the prosecutors and of Sgt. Hudson were not improper, we also conclude that defense counsel were not ineffective in failing to object to these statements. {¶ 306} The forty-fourth assignment of error is overruled. {¶ 307} "45. DEFENDANT'S TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO PROTECT GEORGE SKATZES' RIGHT TO AN IMPARTIAL AND PROPERLY GUIDED JURY BY FAILING TO OBJECT TO MATTERS RAISED DURING VOIR DIRE AND IMPROPER INSTRUCTIONS AT THE GUILT AND PENALTY PHASES OF TRIAL; PROSECUTOR MISCONDUCT; AND IMPROPER CONDUCT OF COURT." {¶ 308} Skatzes raises six issues under this assignment of error. First, he argues that the court's questions to potential jurors about whether they could impose the death penalty should, instead, have been focused on whether the potential jurors could refuse to join the other jurors in imposing a death sentence if the facts warranted a life sentence. He also claims that the trial court's questioning of potential jurors about their abilities to sign a verdict imposing a death sentence "created the impression that the court's greatest concern was that they be able to hand down a death verdict."2 He claims that counsel were ineffective in failing to object. We disagree. {¶ 309} Skatzes cites no authority in support of his position that the trial court was required to question the potential jurors about their fortitude for not imposing the death penalty in the manner that he suggests. See Stojetz, 84 Ohio St.3d at 452, syllabus (holding that there is no requirement for the trial court to "life qualify" prospective jurors in a capital murder case, sua sponte). Moreover, we think that the trial judge's opening question to the jurors about whether they could, "in a proper case, where the facts warrant it, and the law permits it, [sign] a verdict form which might recommend" the imposition of the death penalty was a fair attempt to ascertain those who were capable of sitting on the jury. Trial counsel were then given an opportunity to delve into this issue more fully. Trial counsel did not act ineffectively in failing to object to the trial court's questions. {¶ 310} Second, Skatzes contends that his trial attorneys acted ineffectively because they did not object to the prosecutor's explanation of the "capital legal process" to each juror during voir dire. He claims that these explanations gave "the government an unfair advantage with the jurors when it [came] time for final argument." Skatzes does not claim that the prosecutor mischaracterized the legal process, and the record reveals that the prosecutor's explanations were very balanced and accurate. In our view, there is no support for Skatzes' claim that he was somehow prejudiced by these explanations, and thus trial counsel were not ineffective in failing to object to them. {¶ 311} Third, Skatzes argues that trial counsel were ineffective in failing to exercise a peremptory challenge to excuse prospective juror Steven Brooks. We reject this argument because the record reveals that Brooks was excused for cause before the defense had an opportunity to exercise a peremptory challenge. {¶ 312} Fourth, Skatzes claims that trial counsel should have objected to a hypothetical used by the prosecution to demonstrate the concept of mitigation. In the hypothetical, each prospective juror was asked to imagine two men who had each committed multiple murders in the course of an armed robbery of a convenience store; one man had committed the crimes because he needed money to feed a drug habit, and the other man had done so because his family was being held hostage and the kidnappers had threatened that his family would be killed if he did not do it. The prosecutor then asked the prospective jurors whether they could see that one of the men in the hypothetical might have very little mitigation and the other might have a lot of mitigation. Skatzes claims that this hypothetical "falsely characterize[d] mitigation as an aspect of motive or an excuse for criminal conduct." R.C. 2929.04(B), however, compels a jury to consider the nature and circumstances of the offense in mitigation. In the prosecutor's hypothetical, the reasons for the murders would certainly be circumstances surrounding the offenses which the jury would be required to consider. Skatzes' argument that the hypothetical falsely characterized mitigation evidence is without merit. {¶ 313} Fifth, Skatzes contends that the prosecutor improperly instructed the jury that it must find a mitigating factor unanimously and that defense counsel were ineffective in failing to object to this instruction. In fact, the prosecutor did no such thing. Skatzes refers to a portion of the voir dire examination in which a prospective juror asked whether the jurors had to be unanimous in determining that the aggravating circumstances outweighed the mitigating factors. The prosecutor answered affirmatively. The prosecutor did not imply that each mitigating factor had to be agreed upon unanimously to be considered in mitigation, as Skatzes implies. Moreover, the jurors were fully informed that the judge would instruct them on the law to be applied to the case. {¶ 314} In his sixth and final argument, Skatzes points out that trial counsel made numerous efforts to assure proper jury instructions but argues that, to the extent that we find these efforts to have been inadequate, trial counsel acted ineffectively. We do not find trial counsel's efforts to have been inadequate. {¶ 315} The forty-fifth assignment of error is overruled. {¶ 316} "46. DEFENSE COUNSEL[`]S CONDUCT FELL BELOW THE ACCEPTABLE STANDARD OF PRACTICE WHEN THEY FAILED TO CHALLENGE THE ADEQUACY OF THE INDICTMENT." {¶ 317} Skatzes claims that his attorneys were ineffective because they did not challenge the indictment based on its failure to inform them of the charges against him. {¶ 318} We addressed the adequacy of the indictment under the first and second assignments of error and concluded that the information contained in the indictment was sufficient to apprise Skatzes of the charges against him. As such, counsel did not act ineffectively in failing to challenge the indictment. {¶ 319} The forty-sixth assignment of error is overruled. {¶ 320} "47. DEFENSE COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO OBJECT TO REPEATED INSTANCES OF IRRELEVANT OR SPECULATIVE TESTIMONY." {¶ 321} Under this assignment of error, Skatzes contends that his attorneys were ineffective in failing to object to a list of forty-nine snippets of testimony from various witnesses on the ground that the testimony was irrelevant. The evidence cited includes various portions of the testimony of Sgt. Hudson and Anthony Lavelle, references to assaults and murders with which Skatzes was not charged, testimony about the tunnel tapes and about statements made by other inmates, and some of the state's exhibits. With respect to the vast majority of this evidence, Skatzes has challenged its relevance and propriety under other assignments of error wherein we have held that the evidence was properly admitted or that the error, if any, was harmless. Moreover, none of the alleged errors was serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-2065. Thus, Skatzes was not denied the effective assistance of counsel based on this list of claimed derelictions. {¶ 322} The forty-seventh assignment of error is overruled. {¶ 323} "48. DEFENSE COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO OBJECT TO THE SHOWING OF THE TELEVISION COMMENTARY DURING STATE'S EXHIBIT 5." {¶ 324} Skatzes argues that state's exhibit five was irrelevant and that trial counsel were ineffective in failing to object to its admission. Exhibit five was a videotape of television news coverage during the riot that depicts a statement made by Department of Rehabilitation and Corrections spokesperson Tess Unwin on April 14, 1993. {¶ 325} The videotape in question was clearly relevant to the state's case. The day before Vallandingham was killed, Unwin stated at a press conference that the inmates' threat that a hostage would be killed if their demands were not met in three and one-half hours was "a standard threat; it's nothing new. * * * They've been threatening things like this from the beginning." The state's evidence showed that the inmates had been aware of Unwin's statement through their televisions and radios and that gang leaders had taken the statement as a signal that their threats were not being taken seriously. Vallandingham was killed the next day. Because the videotape was relevant, trial counsel were not ineffective in failing to object to it. {¶ 326} The forty-eighth assignment of error is overruled. {¶ 327} "49. DEFENDANT'S TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO OBJECT TO TESTIMONY THAT WAS IRRELEVANT TO THE CHARGES AGAINST HIM OR SHOULD HAVE BEEN REJECTED UNDER OHIO EVID.R. 403(A), AND THUS VIOLATED THE DEFENDANT'S RIGHT TO COUNSEL AS GUARANTEED BY THE OHIO CONSTITUTION, ART. I, § 10, AND THE UNITED STATES CONSTITUTION, AMEND. VI AND XIV." {¶ 328} Skatzes raises four separate issues under this assignment of error and claims that each issue demonstrates that he was denied his right to the effective assistance of counsel. {¶ 329} First, Skatzes claims that testimony that inmate Brookover sold marijuana at Lucasville prior to the riot "had no relation to the charges" against him and was prejudicial to him. Insofar as Brookover testified on behalf of the state and Skatzes was not implicated in any drug dealing, we fail to see how Skatzes could have been prejudiced by this testimony. If anything, Brookover's drug dealing might have made him a less credible witness. Trial counsel acted reasonably in not objecting to this testimony. {¶ 330} Second, Skatzes claims that counsel should have objected to "the sheer number of photographs" introduced by the state, most of which were not tied to any crime committed by Skatzes. Skatzes' objection encompasses approximately 275 pictures of L-block at the end of the riot and over 400 pictures of the inmates who were in L-block at the time of the surrender. {¶ 331} The supreme court has held that "the mere fact that there are numerous photos will not be considered reversible error unless the defendant is prejudiced thereby. Absent gruesomeness or shock value, it is difficult to imagine how the sheer number of photographs admitted can result in prejudice requiring reversal." DePew, 38 Ohio St.3d at 281. Other than the number of photographs, Skatzes has made no specific argument as to how these photographs prejudiced him. The supreme court held in Robb that evidence relating to "the setting of the case," i.e. the riot, was relevant and admissible. Robb, 88 Ohio St.3d at 68. Thus, the photographs of L-block depicting gang-related graffiti, areas where negotiations took place, measures taken by inmates to guard against a raid by the authorities, areas where hostages were captured and held, and random destruction were admissible. The photographs of each inmate in L-block during the riot were also relevant and admissible. These pictures were the means by which the state's witnesses identified participants in the riot, whether gang leaders, gang members, or inmate bystanders. Because many inmates were known to others only by their nicknames, these pictures helped to assure proper identification of those involved in the riot. These pictures could not have been prejudicial to Skatzes. Thus, trial counsel were not ineffective in failing to object to these photographs. {¶ 332} Third, Skatzes argues that the state improperly attempted to impeach Corrections Officer Jeffrey Ratcliff when he testified on Skatzes' behalf. Skatzes claims that the state explored a variety of objectionable issues, "including accounts of inmate conduct not attributable to [Skatzes], use of a statement the witness did not recall, and implications that the witness suffered from the Stockholm Syndrome." Skatzes' argument about the impropriety of this cross-examination is nebulous. Our review of the cross-examination leaves us unpersuaded that it was improper or that Skatzes was prejudiced thereby. {¶ 333} Fourth, Skatzes contends that his attorneys were ineffective in failing to object to victim impact evidence offered during the guilt phase of his trial. The evidence characterized by Skatzes as victim impact evidence includes references to Corrections Officer Vallandingham's reputation and to Corrections Officer Clark's disabled daughter, accounts of non-gang members' hunger, thirst, and fear, and the "endearing" description of inmate Pop Svette, who was murdered, as a cantankerous, comical old man with a walker. Skatzes claims that these references were intended to elicit sympathy and bias and that counsel were ineffective in failing to object. We disagree that this was victim impact evidence prohibited during the guilt phase of a capital trial. See Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597. This evidence was not offered to show the victim's suffering, the family's grief, or the loss to the community caused by the crimes, as is typically the case with victim impact evidence. Rather, it was part of the context for the riot. For example, inmates liked some corrections officers better than others, and they had opinions about which one should have been killed. Family responsibilities affected how the hostage corrections officers dealt with and felt about their confinement, and Clark seemed, by all accounts, to have been on the verge of a nervous breakdown during his confinement. Indeed, this is why he was the one released in exchange for the radio broadcast. The effect of the riot on non-gang members and the personal characteristics of some of the victims were not offered for their emotional impact but as evidence of the gangs' control and of the unpopularity of some of those who were murdered. The trial court was not required to confine this type of evidence to the sentencing phase of the trial, and trial counsel did not act ineffectively in failing to object to it. {¶ 334} The forty-ninth assignment of error is overruled. {¶ 335} "50. DEFENDANT'S TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO OBJECT TO EVIDENCE OF THE BAD ACTS OF OTHERS." {¶ 336} Skatzes claims that evidence of the bad acts of others during the course of the riot was irrelevant and therefore inadmissible pursuant to Evid.R. 402 and that his attorneys were ineffective in repeatedly failing to object to this type of evidence. {¶ 337} As we have discussed several times in this opinion, much of the evidence to which Skatzes objects was properly admissible because it was relevant to the roles of the various gangs in the riot, to Skatzes' leadership role, and to the manner in which the gangs wielded their power. The supreme court observed in Robb that the trial court had acted within its discretion in admitting evidence of crimes with which the defendant had not been charged or otherwise linked because this "evidence helped prove a conspiracy, namely that prison gang leaders, including defendant, conspired over eleven days to seize and control L-complex, settle old scores, take hostages and even murder one, all in an attempt to force concessions from prison authorities." Robb,88 Ohio St.3d at 680. The supreme court also noted that several of the witnesses whose testimony was at issue, including Snodgrass and Lavelle, had provided the "independent proof of the conspiracy" required under Evid.R. 801(D)(2)(e). Id. Because this evidence was admissible, counsel were not ineffective in failing to object to it. Moreover, insofar as Skatzes was not implicated in the crimes at issue, we are unpersuaded that he suffered any prejudice as a result of this evidence. {¶ 338} The fiftieth assignment of error is overruled. {¶ 339} "51. DEFENDANT'S TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO OBJECT TO HEARSAY TESTIMONY BY VARIOUS WITNESSES." {¶ 340} Under this assignment of error, Skatzes cites numerous portions of testimony to which he claims his attorneys should have objected on the basis that it was hearsay. He claims that the admission of this evidence constituted plain error in each specific instance and that the cumulative effect of these failures also rose to the level of plain error. {¶ 341} Several of the excerpts cited by Skatzes involved the testimony of Sgt. Hudson. We have already discussed the fact that, by agreement of the parties, Sgt. Hudson testified as a summary witness regarding the course of the riot and of the state's subsequent investigation, and we concluded that trial counsel were not ineffective in agreeing to this type of testimony. Thus, we reject Skatzes' argument that counsel were ineffective in allowing Sgt. Hudson to testify about matters regarding which he lacked firsthand knowledge. {¶ 342} Skatzes also claims that counsel should have objected to testimony from several witnesses involving the conduct of other inmates during the course of the riot. For example, Skatzes objects to testimony about the killing or confinement of inmates with whom riot leaders had a problem, to accounts of the attack on inmate Johnny Fryman during the first hours of the riot, and to a poem about the Aryan Brotherhood found in the cell of Aryan leader Freddie Snyder. Further, Skatzes claims that the opinions of other Aryan Brotherhood members about dissatisfaction with Jason Robb's leadership during the riot and about what should be done to the suspected snitch Brookover were improper. Skatzes repeatedly claims that these actions or opinions were "never tied [to him] in anyway * * * and yet [they were] used by the State to imply that [he] was somehow involved." He also claims that some of this evidence, especially evidence relating to violence in the early hours of the riot, "helped to create a false impression of violence early in the case, which necessarily colored the way in which evidence was viewed as it was introduced throughout the proceedings." {¶ 343} The admissibility of relevant evidence was within the trial court's discretion. Id. Some of the evidence to which Skatzes objects was probative of how the riot unfolded and of the code of conduct within the gangs in general and during the riot in particular. Moreover, Skatzes' admission that none of the testimony at issue tied him to the incidents in question belies his claims that it was plain error to allow this testimony and that counsel were ineffective for failing to object to it. Indeed, given the lack of evidence tying Skatzes to some of the incidents in question, Skatzes' attorneys, in the exercise of their professional judgment, may have concluded that the references were harmless and that an objection would have drawn undue attention to the testimony. Further, we are wholly unpersuaded that the outcome of Skatzes' trial would have been different but for the snippets of evidence cited under this assignment. We are confident that the jury was able to distinguish between evidence that put the riot in context and evidence that pertained to crimes of which Skatzes was accused. {¶ 344} The fifty-first assignment of error is overruled. {¶ 345} "52. THE DEFENDANT'S COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO OBJECT TO THE INTRODUCTION OF IRRELEVANT, INFLAMMATORY AUDIOTAPES AND VIDEOTAPES." {¶ 346} Skatzes asserts that the audiotapes of the telephone negotiations with the inmates, the videotapes of events on the recreation yard during the riot, the videotape of a television broadcast by a Department of Corrections spokesperson, and the tunnel tapes should not have been admitted because they were irrelevant, inflammatory, and unreliable. He also claims that the tunnel tapes were obtained in violation of the former R.C. 2933.51 et seq., which prohibited intercepting wire or oral communications. He claims that his attorneys were ineffective in failing to object to the tapes for these reasons. {¶ 347} Skatzes' contention that the tapes in question were irrelevant is without merit. We are also unpersuaded that these tapes were inflammatory, and Skatzes makes no specific argument in this regard. {¶ 348} Skatzes does argue that the "audio tapes" had unexplained gaps in recording and were unreliable. It is unclear from his brief whether he refers to the telephone conversations or the tunnel tapes in making this claim. However, during Sgt. Hudson's testimony, he explained at some length that, at the time these tapes were made, the negotiators sought only to use the tapes in the negotiations and did not think in terms of using the tapes as evidence following the riot. He further testified that the recording of the negotiations did not always coincide with the beginning and end of the conversations with the inmates. In other words, he stated that some of the tapes included conversations amongst the negotiators when the inmates were not on the phone or included only part of a conversation with an inmate because the tape recording did not start at the very beginning of the phone call. Sgt. Hudson was able to identify these portions of the telephone negotiations and to fill in some of the missing portions from his recollection. Sgt. Hudson also attested to the fact that the recordings of the telephone negotiations were accurate reproductions of those conversations. The negotiation tapes were not inherently unreliable, and the defense was free to delve into any irregularities in the tapes on cross-examination. {¶ 349} Likewise, although the tunnel tapes may have been somewhat difficult to decipher, especially with respect to the identities of the speakers, Skatzes was free to highlight such shortcomings on cross-examination. Skatzes' arguments regarding this evidence go to its weight, not its admissibility. The tunnel tapes were admissible, and trial counsel did not act ineffectively in failing to object. {¶ 350} Skatzes also contends that the tunnel tapes were obtained in violation of the former R.C. 2933.51 et seq. and that counsel should have objected to them on that ground. The supreme court considered this argument in the case of Skatzes' co-conspirator, Jason Robb. It held: {¶ 351} "[W]e cannot reasonably interpret the former R.C. 2933.51et seq. as granting a statutory right to privacy in communications between rioting inmates. The General Assembly could not have envisioned creating such a right in a state prison under siege. Granting privacy rights in these circumstances makes no sense in view of the state's interest in operating a prison and, in this case, restoring order, saving the lives of hostages and nonrioting prisoners, and protecting state property. `[A] statute should not be interpreted to yield an absurd result.'" (Citations omitted.) Robb, 88 Ohio St.3d at 66. {¶ 352} The supreme court also observed that the former R.C.2933.52(B)(1) provided that Ohio restrictions on electronic interceptions do not apply to interceptions made in accordance with federal law, as was the case at Lucasville. Id. Thus, Skatzes was not denied the effective assistance of counsel based on his attorneys' failure to advance an argument that lacked merit. {¶ 353} The fifty-second assignment of error is overruled. {¶ 354} "53. THE DEFENDANT'S TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO PREPARE MR. SKATZES TO TESTIFY IN [SIC] HIS OWN BEHALF." {¶ 355} Skatzes claims that his counsel acted ineffectively in failing to prepare him to testify at trial. In support of this argument, he cites an instance where he did not answer a question directly on direct examination, claiming that the testimony "showed a clear failure to prepare." He claims that his testimony "was not helpful to his defense" and that he "had obviously not been told or understood the simple concept of answering only the question asked * * *." {¶ 356} Skatzes' testimony painted a very different picture of his involvement in the riot than the state had presented in its case-in-chief. According to Skatzes, he had become involved in negotiations and other leadership roles by happenstance and for altruistic reasons. In our view, counsel did not act ineffectively in offering this version of events through Skatzes' testimony, notwithstanding the fact that, by his own admission, Skatzes had trouble keeping his answers brief. Moreover, it does not appear from the record that Skatzes' sometimes rambling answers prejudiced him by, for example, leading him to reveal activities that he ought not to have revealed. The fact that the jury did not believe Skatzes' testimony is not a basis for us to conclude, in hindsight, that the attorneys acted ineffectively in presenting it. {¶ 357} The fifty-third assignment of error is overruled. {¶ 358} "40. GEORGE SKATZES WAS INCOMPETENT TO STAND TRIAL." {¶ 359} Skatzes claims that he was incompetent to stand trial. He points to the following as evidence of his incompetence: 1) his admission at trial that he had had a weapon during the riot when other evidence suggested that he had not had a weapon; 2) his use of the colloquial phrase "I reckon" during his testimony, which allegedly subjected him to "ridicule" by the prosecutor; 3) his weight loss; 4) testimony by other inmates that they had referred to Skatzes as "Crazy George" and considered him to have been "paranoid" about his safety during the riot; and 5) Skatzes' statements that he had been suffering from stress and confusion at the time of the riot. The defense did not raise the issue of Skatzes' competency in the trial court. {¶ 360} "Fundamental principles of due process require that a criminal defendant who is legally incompetent shall not be subjected to trial." (Citations omitted.) State v. Berry, 72 Ohio St.3d 354, 359,1995-Ohio-310. A defendant is competent to stand trial if he is capable of understanding the nature and objective of the proceedings against him and of assisting in his defense. R.C. 2945.37(G); Carter,89 Ohio St.3d at 603. Absent evidence to the contrary, a defendant is presumed to be competent. R.C. 2945.37(G). {¶ 361} None of the issues raised by Skatzes suggests that he did not understand the nature and objective of the proceedings against him or that he was unable to assist in his defense. Skatzes' testimony that he had possessed a weapon during the riot, which was presumably truthful, had no bearing on the issues relevant to competency. See Berry,72 Ohio St.3d at 362 (finding that defendant's willingness to speak with police did not reflect poorly on his competence to stand trial). Moreover, his alleged paranoia, stress, and confusion during the riot were probably understandable under the circumstances and, in any event, do not appear to have impaired his ability to assist in his defense. See State v.Hessler, 90 Ohio St.3d 108, 125, 2000-Ohio-30 (holding that mental illness cannot necessarily be equated with the legal definition of incompetence); State v. Bock (1986), 28 Ohio St.3d 108, 110 (noting that a defendant "may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel"). Moreover, Skatzes' fellow inmates' assessments of his mental state were entitled to very little weight, if any, on the issue of his competency. {¶ 362} In sum, none of the issues raised by Skatzes under this assignment of error raise a genuine issue as to his ability to understand the nature of the charges against him or to participate in his defense. {¶ 363} The fortieth assignment of error is overruled. {¶ 364} "41. THE TRIAL COURT FAILED TO OBSERVE GEORGE SKATZES' RIGHT TO BE PRESENT DURING THE SENTENCING FOR THE KIDNAPPING OF EARL ELDER." {¶ 365} The record in this case reveals that the jury found Skatzes guilty of the kidnapping of Earl Elder, as set forth in the eighth count in the indictment, but that the trial court failed to pronounce its sentence on this particular offense during the sentencing hearing at which Skatzes was present. The trial court subsequently filed a Judgment Entry of Sentence, which provided that Skatzes was to serve "not less than 15 nor more than 25 years" on this count. Skatzes contends that the trial court's failure to pronounce this sentence in his presence violated his constitutional rights. {¶ 366} Crim.R. 43(A) provides that the defendant shall be present "at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence" unless he is voluntarily absent or has engaged in disruptive conduct in the courtroom. Because neither of these exceptions applied, Skatzes undoubtedly had a right to be present when his sentence was pronounced. See State v. Sutherlin (1996), 111 Ohio App.3d 287, 293;State v. Bell (1990), 70 Ohio App.3d 765, 773. This right is fundamental, and Skatzes would be entitled to resentencing, in his presence, on the kidnapping of Earl Elder. However, at oral argument, the state conceded this error and asserted that, rather than conducting further proceedings, it would prefer that this count simply be dismissed. Accordingly, Skatzes' conviction for the kidnapping of Earl Elder will be vacated. {¶ 367} The forty-first assignment of error is sustained. {¶ 368} "54. THE TRIAL COURT ERRED WHEN IT ALLOWED STEVEN MACKO TO TESTIFY THAT HAVING A LIGHTENING BOLT TATTOO MEANT THAT THE PERSON HAD KILLED A BLACK PERSON." {¶ 369} Steven Macko, an L-block inmate at the time of the riot who was unaffiliated with any gang, testified that the symbols of the Aryan Brotherhood were lightening bolts and the letters A and N for Aryan Nation and that these symbols were sometimes placed inside a shield. Macko testified that "most guys that was involved in the Aryan Brotherhood had lightening bolts or had a shield [tattooed] on their chest." He further testified that, based on his many years in prison, his understanding was that a member of the Aryan Brotherhood got a lightening bolt tattoo as a symbol that he had killed a black person. Skatzes claims that this testimony was highly prejudicial and of little probative value. {¶ 370} We are unpersuaded that Macko's testimony about the tattoos was unduly prejudicial to Skatzes. In addition to the statements set forth above, Macko testified that he did not know whether Skatzes had had a lightening bolt tattoo and that he did not believe that every member of the Aryan Brotherhood with a lightening bolt tattoo had actually killed a black man. In fact, Macko stated, "I don't believe none of them did," indicating that it was symbolism tied to "the real Aryan Brotherhood." He further testified that one particular corrections officer had had lightening bolt tattoos and had demonstrated racial preferences. In sum, Macko's testimony about the lightening bolt tattoos did not directly implicate Skatzes and thus was not unduly prejudicial. {¶ 371} The fifty-fourth assignment of error is overruled. {¶ 372} "55. THE TRIAL COURT FAILED TO CONDUCT AN APPROPRIATE SENTENCING REVIEW AS IS REFLECTED BY THE COURT'S SENTENCING OPINION." {¶ 373} Skatzes claims that the trial court did not conduct an adequate independent review of aggravating circumstances and mitigating factors before imposing the death sentence recommended by the jury. {¶ 374} Pursuant to R.C. 2929.03(F), the trial court was required to "state in a separate opinion its specific findings as to the existence of any of the mitigating factors set forth in [R.C. 2929.04(B)], the existence of any other mitigating factors, the aggravated circumstances the offender was found guilty of committing, and the reasons why the aggravated circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors." {¶ 375} Following the jury's recommendation of death sentences on two of the aggravated murder counts against Skatzes, the trial court filed two entries discussing the sentences: an Opinion dated January 30, 1996, and a Judgment Entry of Sentence dated March 18, 1996. In these entries, the trial court identified the following mitigation evidence that had been offered by Skatzes: his peaceful reputation in prison, his help in settling the riot, and hostage Corrections Officer Ratcliff's testimony that Skatzes had undoubtedly saved his life by moving him away from the Muslims. The court noted that Skatzes had not introduced any evidence about his background or family and that he had made a "rambling unsworn statement" denying all guilt. {¶ 376} In imposing the death sentences recommended by the jury, the trial court stated that it had reviewed the evidence, especially the evidence offered in mitigation, to determine whether the jury's verdicts and recommendations were justified and were made without emotion, passion, or bias. The court then made the following observations: {¶ 377} "It is to be noted that the defendant could have always avoided the consequences of the riot by leaving L Block and moving out to the yard or the surrounding area away from the riot. Also, the Court wants to point out that the defendant's participation in the riot was not mitigating when he announced that if the prisoners' demands were not met, they were going to `send a body out.' {¶ 378} "The Court finds that the jury did carefully consider the case, along with the mitigation offered in the Second Phase, and deliberated very thoroughly before making its decision, and therefore, the Court adopts the recommendations of the jury." {¶ 379} It is clear from the trial court's entries that it found the mitigation evidence to be entitled to very little weight, if any. However, the trial court did not address the aggravating circumstances that Skatzes had been found guilty of committing or articulate reasons why the aggravating circumstances outweighed the mitigating factors. In these respects, the trial court's sentencing entries failed to comply with R.C. 2929.03(F). Because some of the aggravated circumstances were essentially undisputed, such as Skatzes' status as an inmate at the time of the offense and his prior aggravated murder conviction, and because the trial court thought that the mitigation evidence was entitled to so little weight, it is not difficult to imagine how it reached the conclusion that it did. Nonetheless, we recognize that the trial court's failure to comply with R.C. 2929.03(F) disrupts the review procedures enacted by the General Assembly by depriving Skatzes, this court, and subsequent reviewing courts of the trial court's perceptions. See Statev. Maurer (1984), 15 Ohio St.3d 239, 247, certiorari denied (1985),472 U.S. 1012, 105 S.Ct. 2714. {¶ 380} We are unconvinced, however, that Skatzes' constitutional rights have been impinged by the trial court's omission. R.C. 2929.05 requires this court and the supreme court to independently weigh all the facts and other evidence in order to determine whether the sentence of death imposed by the trial court is appropriate. "As a necessary corollary to that requirement, the courts of appeals and the Supreme Court must articulate the reasons why the aggravating circumstances outweigh the mitigating factors." Id. at 246-247. We will engage in such a review infra. As such, we cannot conclude that Skatzes was prejudiced by the failure of the trial court to enunciate its reasoning. Indeed, "the purpose of an independent review at each stage of the appellate process was designed, at least in part, to correct such omissions." Id. at 247. {¶ 381} The fifty-fifth assignment of error is overruled. {¶ 382} "56. THE STATE FAILED TO MEET ITS DISCOVERY OBLIGATIONS." {¶ 383} Skatzes claims that the state failed to produce the following evidence, as it was required to do: "[a]ll statements and evidence inconsistent with the State's theory of guilt" that resulted from the State Highway Patrol's 1,395 interviews in connection with the case; all of the tunnel tapes and negotiation tapes; the plea agreements of those whose statements were admitted pursuant to Evid.R. 801(D)(2)(e); all scientific evidence regarding Vallandingham's time of death; transcripts of grand jury proceedings; and unspecified videotapes. {¶ 384} The record refutes Skatzes' claim that he was not provided with the hundreds of tunnel tapes created during the riot. At a pretrial hearing on October 5, 1995, his attorney stated, "[W]e are in possession of all six hundred odd tunnel tapes[.]" The attorney also acknowledged receipt of copies of the negotiation tapes some ten months prior to the hearing. Thus, Skatzes' argument regarding the tunnel tapes and negotiation tapes is without merit. {¶ 385} The language of Crim.R. 16(B) refutes some of Skatzes' other claims. He contends that he was entitled to statements resulting from the hundreds of highway patrol interviews with inmates, hostages, and others following the riot. Crim.R. 16(B)(2) states: "[Except as otherwise provided], [t]his rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the prosecuting attorney or his agents in connection with the investigation or prosecution of the case, or of the statements made by witnesses or prospective witnesses to state agents." The highway patrol's 1,395 interviews following the riot constituted statements made by witnesses or prospective witnesses to state agents and were not discoverable unless they were favorable to Skatzes. See Crim.R. 16(B)(1)(f). Skatzes concludes that, because the State Highway Patrol set up a computer program to help it sort through the information it obtained from these interviews, it must have discarded information that it had deemed to be "false," which would have been exculpatory. In our view, this conclusion does not necessarily follow, and we will not presume that the state withheld exculpatory evidence. Likewise, pursuant to Crim.R. 16(B)(3) and Crim.R. 6(E), the grand jury proceedings were not subject to disclosure except by court order, and no such order existed in this case. See, also, our discussion of assignment of error fifty-eight, infra. {¶ 386} Skatzes has cited no basis for his claim that the state was compelled to produce the plea agreements of inmates whose statements were admitted pursuant to Evid.R. 801(D)(2)(e), and we are aware of none. The case cited by Skatzes, Giglio v. United States, is clearly distinguishable because it dealt with the government's failure to disclose an alleged promise of leniency made to its key witness in return for his testimony. Giglio v. United States (1972), 405 U.S. 150, 154,92 S.Ct. 763, 766. Co-conspirators pursuant to Evid.R. 801(D)(2)(e) are not "witnesses" as that term is normally defined or as it is used in Crim.R. 16. {¶ 387} Finally, Skatzes claims that he did not receive all scientific evidence regarding the time of Vallandingham's death, some of which would have shown that Vallandingham died "long before" the meeting took place at which Skatzes allegedly voted to kill a hostage. The records in dispute are those of the Scioto County Coroner, who examined Vallandingham's body when it was removed from the recreation yard, including vitreous fluids in the eye which help to determine the time of death. The state points out that there is nothing in the record to support Skatzes' claim that he did not receive these materials and that, in any event, there is no evidence to suggest that Vallandingham's death was "long before" the meeting at which gang leaders decided to kill a hostage. Given Skatzes' failure to object to this evidence at trial on the grounds that it had not been produced in discovery, we are reluctant to conclude that it had not been produced. {¶ 388} Moreover, the transcript reveals that Franklin County Coroner Patrick Fardal, who conducted Vallandingham's autopsy on April 16, 1993, testified about the Scioto County Coroner's preliminary findings regarding the time of Vallandingham's death. The defense raised no objection on the ground that it had been previously unaware of the Scioto County Coroner's findings. Moreover, Fardal testified that he had relied upon his own testing of vitreous fluid as well as that conducted by the Scioto County Coroner the previous day in concluding that Vallandingham had died at about 7:00 a.m., plus or minus one hour, on April 15, 1993. This testimony supported a defense theory that Vallandingham had been murdered before the meeting at which Skatzes allegedly voted to kill him. Fardal further testified that nothing in his findings was inconsistent with Vallandingham having been killed at 10:30 a.m., as was the state's theory. Skatzes had a full opportunity to cross-examine the Franklin County Coroner about these findings. Thus, even if we were to presume that the state did not produce records from the Scioto County Coroner, it does not appear that Skatzes was prejudiced by this failure. {¶ 389} Skatzes does not elucidate what videotapes he claims should have been turned over but were not, so we will not address this argument. {¶ 390} The fifty-sixth assignment of error is overruled. {¶ 391} "57. OHIO'S DEATH PENALTY LAW[S] * * * ARE UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED TO GEORGE SKATZES * * *." {¶ 392} Skatzes asserts that Ohio's death penalty scheme is unconstitutional for a number of reasons. Many of these arguments have already been addressed by the Supreme Court of Ohio in other cases, and by the United States Supreme Court as well. It is well settled that courts of appeals must accept and enforce the law as promulgated by the supreme court and may not change, modify, or ignore that law.Consolidated Rail Corp. v. Forest Cartage Co., Inc. (1990),68 Ohio App.3d 333, 341; Thacker, 31 Ohio App.2d at 21. As such, we will give cursory review to constitutional issues on which the supreme court has already spoken. {¶ 393} Skatzes contends that Ohio's death penalty laws are arbitrary and discriminatory because prosecutors have "uncontrolled indictment discretion." He also argues that the death penalty is imposed in a racially discriminatory manner and that it is constitutionally flawed because it does not represent the least restrictive means to reach the state's ends of deterrence and retribution. {¶ 394} The supreme court has rejected the argument that the death penalty is arbitrary because it is applied by prosecutors in an arbitrary and capricious manner. State v. Jenkins (1984), 15 Ohio St.3d 164,169-170, certiorari denied (1985), 472 U.S. 1032, 105 S.Ct. 3514. See, also, Gregg v. Georgia (1976), 428 U.S. 153, 199-200, 96 S.Ct. 2909,2937-2938. "`Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts.'" Jenkins,15 Ohio St.3d at 169, quoting Gregg, 428 U.S. at 225, 96 S.Ct. at 2949 (White, J., concurring). To conclude otherwise would represent "an indictment of our entire criminal justice system which must be constitutionally rejected." Id. at 170. {¶ 395} Skatzes' argument that the death penalty is unconstitutional because "Ohio law fails to assure against race discrimination playing a role in capital sentencing" has also been rejected. The United States Supreme Court and the Supreme Court of Ohio have refused to accept statistics purporting to show a racial disparity in the imposition of the death penalty as grounds for finding the death penalty to be unconstitutional. These courts have held, instead, that a defendant "must show that racial considerations affected the sentencing process in his case" for equal protection to be implicated. (Emphasis sic.) State v. Steffen (1987), 31 Ohio St.3d 111, 124, certiorari denied (1988), 485 U.S. 916, 108 S.Ct. 1089. See, also, McClesky v. Kemp (1987), 481 U.S. 279, 297, 107 S.Ct. 1756, 1769-70. Skatzes, who is white, has made no such showing. Skatzes' argument that the state is required to use the least restrictive means to achieve a compelling interest has also been rejected by the supreme court's recognition that "the death penalty, as a sanction or punishment, is proper in extreme cases." Jenkins, 15 Ohio St.3d at 168. See, also, Gregg,428 U.S. at 187, 96 S.Ct. at 2932. {¶ 396} Skatzes further argues that Ohio's death penalty laws are unconstitutional because the trial court can impose the death penalty if the aggravating circumstances are only "marginally greater" than the mitigating factors, referring to the preponderance of the evidence standard, and because the laws do not provide adequate guidelines for sentencing. He claims that these shortcomings lead to arbitrary sentencing. The supreme court has considered this argument in other cases and has concluded that Ohio's laws are "`suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action' in imposing the [death] sentence." State v. Williams (1986),23 Ohio St.3d 16, 24, citing Jenkins, 15 Ohio St.3d at 168. See, also,Zant v. Stephens (1983), 462 U.S. 862, 874, 103 S.Ct. 2733, 2741; Gregg,428 U.S. at 189, 96 S.Ct. at 2932. {¶ 397} Further, Skatzes contends that, by requiring proof of aggravating circumstances at the guilt phase as well as at the sentencing phase of the trial, Ohio's statutory scheme "effectively prohibits a sufficiently individualized determination in sentencing." The supreme court has held, however, that the consideration of aggravating circumstances at the guilt stage of a capital trial is not unconstitutional. Jenkins, 15 Ohio St.3d at 174. {¶ 398} Skatzes claims that Ohio's death penalty laws burden the right to a trial by jury because Crim.R. 11(C)(3) permits a judge to dismiss specifications "in the interests of justice" upon a guilty or no contest plea, and there is no parallel provision for those who go to trial. We reject this argument because Crim.R. 11(C)(3) was not at issue in this case. See Mills, 62 Ohio St.3d at 372; State v. Zuern (1987),32 Ohio St.3d 56, 64, certiorari denied (1988), 484 U.S. 1047,108 S.Ct. 786. Moreover, the supreme court has held that the discretion given to the judge in Crim.R. 11(C)(3) "is neither violative of [a] defendant's constitutional right to equal protection of the laws nor does it coerce the defendant to waive his constitutional right to a jury trial." Statev. Buell (1986), 22 Ohio St.3d 124, 138, certiorari denied (2001),479 U.S. 870, 107 S.Ct. 240, quoting Nabozny, 54 Ohio St.2d at 195, paragraph one of the syllabus. We further note that, notwithstanding the discretion given to the judge pursuant to Crim.R. 11(C)(3), the defendant may still be sentenced to death upon pleading guilty or no contest. Id. at 138. {¶ 399} According to Skatzes, the mandatory submission to the trier of fact of any presentence investigation report or mental evaluation requested by the defendant, as required by R.C. 2929.03(D)(1), is unconstitutional because it "prevents the defendant from effectively presenting his case in mitigation." This argument was rejected in Statev. Esparza (1988), 39 Ohio St.3d 8, 10, certiorari denied (1989),490 U.S. 1012, 109 S.Ct. 1657, and Buell, 22 Ohio St.3d at 138. Pursuant to R.C. 2929.03(D)(1), "the defendant decides whether to expose himself to the risk of potentially incriminating presentence investigations, including mental examinations. There is no constitutional infirmity in providing the defendant with such an option." Buell,22 Ohio St.3d at 138. {¶ 400} Under Ohio law, a murder may be classified as an aggravated murder if the death was caused while committing or attempting to commit, or while fleeing or attempting to flee after committing or attempting to commit, certain enumerated felonies such as kidnapping and rape. R.C. 2903.01(B). The law also provides that some of these same criteria may justify the imposition of the death penalty if the offender was the principal offender in the aggravated murder or committed the aggravated murder with prior calculation or design. R.C. 2929.04(A)(7). Skatzes argues that, because of this statutory scheme, those who commit a murder during a course of a felony enumerated in the aggravated murder statute at R.C. 2903.01(B) are "automatically eligible for the death penalty," which unfairly singles out one class of murderers for harsher punishment than others. The supreme court has rejected this argument. It has held that the provisions of R.C. 2903.01(B) and R.C. 2929.04(A)(7) are not duplicative and that this statutory scheme is not constitutionally infirm. Benner, 40 Ohio St.3d at 306-307. {¶ 401} R.C. 2929.03(D)(1) provides that "the nature and circumstances of the aggravating circumstances the offender was found guilty of committing" shall be considered in the imposition of the sentence of death. R.C. 2929.04(B) provides that "the nature and circumstances of the offense" shall be weighed against the aggravating circumstances in mitigation, along with other enumerated mitigating factors, if applicable. The mitigating factors specifically enumerated in R.C. 2929.04(B) include whether the offender acted under duress, coercion, or strong provocation, the youth of the offender, and the offender's lack of a significant criminal history. Skatzes claims that R.C. 2929.03(D)(1) and R.C. 2929.04(B) cannot be reconciled and result in vague capital sentencing criteria because "they incorporat[e] the nature and circumstances of an offense into the aggravating circumstances" when those factors should only be considered in mitigation. The supreme court thoroughly addressed and rejected this argument in State v. Wogenstahl,75 Ohio St.3d 344, 352-356, 1996-Ohio-219, certiorari denied (1996),519 U.S. 895, 117 S.Ct. 240, and State v. Gumm, 73 Ohio St.3d 413,416-423, 1995-Ohio-24. See, also, State v. McNeill, 83 Ohio St.3d 438,453, 1998-Ohio-293, citing Tuilaepa v. California (1994), 512 U.S. 967,973-980, 114 S.Ct. 2630, 2635-2639 and Gumm, 73 Ohio St.3d at 416-423. {¶ 402} Skatzes contends that Ohio law "prohibits adequate appellate review" of the proportionality and appropriateness of death sentences because insufficient data is collected about cases in which guilty pleas are entered to lesser offenses, charges are reduced at trial, or life sentences are imposed. He also argues that the appropriateness review conducted by Ohio's appellate courts is "very cursory" and does not rationally distinguish between those who are truly deserving of the death penalty and those who are not. The supreme court rejected these arguments in Steffen, 31 Ohio St.3d at 122-124, andJenkins, 15 Ohio St.3d at 176-177. {¶ 403} Skatzes argues that death by electrocution is cruel and unusual and "offends contemporary standards of decency." The United States Supreme Court and the Supreme Court of Ohio have held that execution by electrocution does not violate the United States or Ohio Constitutions. In re Kemmler (1890), 136 U.S. 436, 443-444,10 S.Ct. 930, 932; State v. Coleman (1989), 45 Ohio St.3d 298, 308, certiorari denied (1990), 493 U.S. 1051, 110 S.Ct. 855. Moreover, any person sentenced to death in Ohio may now elect to be executed by lethal injection instead of by electrocution. R.C. 2949.22(B)(1). Skatzes has not argued that the use of lethal injection is cruel and unusual, and neither the United States Supreme Court nor the Supreme Court of Ohio has so held. See Bryan v. Moore (1999), 528 U.S. 960, 120 S.Ct. 394, dismissed (2000), 528 U.S. 1133, 120 S.Ct. 1003; Carter,89 Ohio St.3d at 608. {¶ 404} Finally, in his supplemental brief, Skatzes argues that Ohio's capital sentencing provisions are unconstitutional pursuant to the United States Supreme Court's recent decision in Ring v. Arizona (2002), ___ U.S. ___, 122 S.Ct. 2428. Ring addressed Arizona's capital sentencing statutes, which provided that a "death sentence may not legally be imposed * * * unless at least one aggravating factor is found to exist beyond a reasonable doubt." Under Arizona law, after a jury verdict finding a defendant guilty of a capital crime, a sentencing judge, sitting without a jury, determined whether an aggravating circumstance necessary for the imposition of the death penalty existed. The Supreme Court held that this system of imposing a capital sentence violated the Sixth Amendment right to trial by jury. {¶ 405} "If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact * * * must be found by a jury beyond a reasonable doubt. A defendant may not be `expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.'" (Emphasis sic.) Ring, 122 S.Ct. at 2439-2440, citing Apprendi v. NewJersey (2000), 530 U.S. 466, 483, 120 S.Ct. 2348. {¶ 406} Skatzes contends that Ohio's death penalty scheme runs afoul of Ring because the jury is "invited to lay the decision making responsibility on the judge's shoulders by returning a death `recommendation.'" In our view, however, Ohio's statutes clearly do not present the problem addressed in Ring. In Ohio, the jury does determine, based on all of the evidence, whether an aggravating circumstance has been proven beyond a reasonable doubt. This is precisely what Ring required. Although the judge has the discretion not to impose the death sentence sanctioned by the jury and the jury's determination is styled as a "recommendation," the jury nonetheless fulfills its role as the finder of all facts crucial to the imposition of the death penalty. Thus, Ohio's death penalty laws are not unconstitutional pursuant to Ring. {¶ 407} In addition to his constitutional arguments, Skatzes contends that Ohio's death penalty scheme violates international law by which the United States and all of the states are bound pursuant to international charters, treaties, and conventions. He asserts that, "[w]here state law conflicts with international law, it is the state law that must yield." See Zschernig v. Miller (1968), 389 U.S. 429, 440,88 S.Ct. 664, 670-71; Clark v. Allen (1947), 331 U.S. 503, 508,67 S.Ct. 1431, 1434-1435. The specific agreements to which Skatzes refers are the charters of the Organization of American States and the United Nations, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He also refers to "customary international law" as established by the Universal Declaration of Human Rights and numerous other declarations and conventions. Skatzes contends that these treaties prohibit violations of equal protection and due process, the arbitrary deprivation of life, the imposition of the death penalty for other than the most serious offenses, racially discriminatory practices, and cruel, inhuman, or degrading treatment or punishment. Because we have already concluded that Ohio's death penalty statutes do not violate equal protection or due process, are not imposed in an arbitrary or racially discriminatory manner, and do not constitute cruel and unusual punishment, we reject Skatzes' argument that Ohio's laws are inconsistent with international law. Skatzes has not advanced any argument that these issues, as defined under international law, differ in any significant way from the constitutional arguments we have already addressed, e.g., that equal protection and arbitrariness would be evaluated differently under international law than they are under the United States or Ohio Constitutions. Because we are unpersuaded that Ohio's laws violate any of the international agreements to which the United States is a signatory, we find it to be inconsequential whether the United States Senate incorporated any conditions or reservations in its adoption of the agreements or whether it had the authority to do so. See State v. Ashworth, 85 Ohio St.3d 56, 70, 1999-Ohio-204; Stojetz,84 Ohio St.3d at 468; State v. Phillips, 74 Ohio St.3d 72, 103-104,1995-Ohio-171. See, also, State v. Keene (Sept. 20, 1996), Montgomery App. No. 14375, affirmed (1998), 81 Ohio St.3d 646. {¶ 408} Finally, Skatzes asserts that the state "argued conspiracy * * *, bootstrapped that into complicity * * * and used complicity to gain a conviction" on the capital offense of aggravated murder. Skatzes contends that, because conspiracy requires no specific intent to kill, this type of "bootstrapping" is unconstitutional in capital cases. We disagree. The conspiracy statute ties the culpability requirement to the underlying offense, herein aggravated murder. Moreover, we have thoroughly addressed the state's use of conspiracy and complicity theories under other assignments of error. See our discussion of assignments of error four through eight, supra. {¶ 409} The fifty-seventh assignment of error is overruled. {¶ 410} "58. THE GOVERNMENT FAILED TO RECORD THE GRAND JURY PROCEEDINGS." {¶ 411} Skatzes contends that the grand jury proceedings were not recorded and that the lack of a record deprived him of the opportunity to show a particularized need for access to that testimony. {¶ 412} "Grand jury proceedings are secret, and an accused is not entitled to inspect grand jury transcripts either before or during trial unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy." State v. Greer (1981), 66 Ohio St.2d 139, 148, citing State v. Lasky (1970), 21 Ohio St.2d 187, 191. The trial court must determine, within the exercise of its discretion, whether the particularized need for the production of grand jury proceedings has been shown. Id. at 148. {¶ 413} Skatzes filed a Motion for Disclosure of Exculpatory and Impeaching Information in which he requested, inter alia, that the state identify "each occasion on which any witness has testified before any court, grand jury or other tribunal or body" regarding Skatzes or the facts of this case. At a hearing on December 8, 1994, the defense elaborated that it was looking for inconsistencies in the testimony of any witness from one occasion to another. The state responded that no live witnesses had appeared before the grand jury, that a number of videotaped depositions had been played, and that defense counsel were being provided with summaries and transcripts of those statements. Defense counsel then indicated that the prosecutor's representation that inmates had not appeared in person to testify before the grand jury disposed of his motion, and the court indicated that the issue was moot. {¶ 414} Skatzes' argument that he was denied his rights to due process and a fair trial because he was not given the record of grand jury proceedings is flawed in several respects. First, although Skatzes claims that the grand jury proceedings were not recorded as required by Statev. Grewell (1989), 45 Ohio St.3d 4, 9, the record does not support this claim. The prosecutor's statement at the December 8, 1994 hearing that no inmate witnesses had testified in person did not establish that the grand jury proceedings had not been recorded, and there is no other evidence to support this claim. Second, Skatzes was required to show a particularized need for the transcript of the grand jury proceedingsbefore he was entitled to the disclosure of those records. Skatzes seems to have this argument backward, claiming that the alleged lack of a record precluded him from making such a showing. Third, defense counsel conceded at the hearing that the state's response to his motion "dispose[d] of" it. Because of this concession, the trial court did not reach the issue of whether Skatzes had shown a particularized need for the record of the grand jury proceedings. In essence, then, Skatzes obviated the alleged error of which he now complains and any argument that he was entitled to the records from the grand jury. {¶ 415} The fifty-eighth assignment of error is overruled. {¶ 416} The fifty-ninth and sixtieth assignments of error relate to Skatzes' position that the record in this case is not complete and that he therefore is being denied his right to effective appellate review. Before we address his specific arguments, we will briefly discuss the requirements for an appellate record in a capital case. {¶ 417} The supreme court has held that a capital defendant is entitled to a "complete, full, and unabridged transcript of all proceedings against him so that he may prosecute an effective appeal."State ex rel. Spirko v. Court of Appeals (1986), 27 Ohio St.3d 13, 18. It has never held, however, that a capital defendant is entitled to a perfect record. State v. Palmer, 80 Ohio St.3d 543, 553, 1997-Ohio-312, certiorari denied (1998), 525 U.S. 837, 119 S.Ct. 96. In fact, it has expressly stated that "[t]he requirement of a complete, full, and unabridged transcript in capital trials does not mean that the trial record must be perfect for purposes of appellate review." Id. {¶ 418} In Palmer, certain bench and chamber conferences had not been recorded and no transcript had been made of the jury view of the crime scene. Id. Palmer claimed that his convictions and death sentence should be vacated and a new trial ordered based upon these failures in the record. Id. The supreme court held that: {¶ 419} "[R]eversal of convictions and sentences on grounds of some unrecorded bench and chambers conferences, off-the-record discussions, or other unrecorded proceedings will not occur in situations where the defendant has failed to demonstrate that (1) a request was made at trial that the conferences be recorded or that objections were made to the failures to record, (2) an effort was made on appeal to comply with App.R. 9 and to reconstruct what occurred or to establish its importance, and (3) material prejudice resulted from the failure to record the proceedings at issue." (Citations omitted.) Id. at 554. {¶ 420} The court held that, although Palmer had attempted to comply with App.R. 9 to correct the record and to reconstruct the unrecorded conferences, he had failed to demonstrate that he had requested that the matters at issue be recorded and, most importantly, had failed to demonstrate material prejudice resulting from the unrecorded matters to which he took exception on appeal. Id. In so holding, the supreme court stated that prejudice would not be presumed from the mere existence of unrecorded proceedings in capital cases and that general averments of prejudice do not act as a substitute for an actual showing of prejudice. Id. at 554-555. {¶ 421} We turn to Skatzes' next two assignments with this standard in mind. {¶ 422} "59. THE TRIAL COURT ERRED WHEN IT FAILED TO KEEP CONTROL OF THE CHARTS USED BY THE GOVERNMENT ATTORNEYS TO TALK WITH THE JURY ABOUT THE PROCESS FOR THE TRIAL." {¶ 423} Skatzes contends that the trial court should have "kept control" of the charts used by the prosecutor during voir dire to explain the "capital legal process" to the jurors. The whereabouts of the charts is no longer known. Skatzes does not make any specific argument with respect to the content of the charts; he simply asserts that he was entitled to a full record of the proceedings and that effective appellate review is impossible without these exhibits. {¶ 424} Although Palmer involved proceedings that had not been transcribed and Skatzes complains under this assignment of error about exhibits that were presented during voir dire but not admitted into evidence, we find the issues to be analogous. Thus, we will consider whether Skatzes requested that the exhibits in question be made part of the record or objected to the trial court's refusal to make them part of the record, whether he attempted to reconstruct the content of the exhibits or to establish their importance pursuant to App.R. 9, and whether he has shown material prejudice as a result of the fact that the charts were not made a part of the record. See id. at 554. {¶ 425} Skatzes' attorneys did not attempt to make the charts in question part of the record in the trial court. In Palmer, the supreme court expressed confidence that, if the off-the-record conferences had involved objections and requests considered crucial by the defense, "no doubt * * * those same objections and requests would have been raised onthe record * * *." (Emphasis sic.) Id. at 556. We share this view here. Skatzes was represented by highly competent counsel, and we are confident that counsel would have objected to the charts if their contents had warranted it. As we discussed under the forty-fifth assignment of error, it appears from the record that the prosecutor's explanation of the legal process was very balanced and accurate. Skatzes' attorneys also have not attempted to recreate the content of the charts pursuant to App.R. 9(C). By failing to identify any infirmity in the charts by the means available under App.R. 9, Skatzes has failed to make the required showing of prejudice. Rather, he has made only a general averment of prejudice on the basis that "these charts were the first things that * * * each juror saw." This showing is clearly insufficient pursuant to Palmer. See id. at 555. {¶ 426} The fifty-ninth assignment of error is overruled. {¶ 427} "60. THE TRIAL COURT AND THIS COURT ERRED BY FAILING TO CONTROL THE PROCEEDINGS AND PRESERVE AND PROVIDE AN ACCURATE RECORD OF THE PROCEEDINGS FOR REVIEW." {¶ 428} Under this assignment of error, Skatzes contends that he has been denied a complete and accurate record on appeal by the manner in which we have resolved a variety of record problems in this case. Some of these issues have been addressed at length in our earlier decisions in this case, and we will address them only briefly here. {¶ 429} First, Skatzes points out that the pleadings, transcripts, and one of the indictments from Scioto County were missing at one point but have now been found. Skatzes also points out that the transcript was incomplete and had not been certified in its entirety at an earlier point in these proceedings. Insofar as Skatzes acknowledges that these issues have been resolved, the purpose of Skatzes' discussion of these issues is unclear. {¶ 430} Second, Skatzes complains about two unmarked audiotapes which "disappeared from the record" and a folder of unmarked documents related to the mitigation phase of the trial. With respect to the tapes, we indicated in our March 4, 1999 Decision and Final Judgment Entry that our review of the record revealed no unmarked tapes, that there was no indication in the record that the tapes had existed, and that counsel had offered no suggestion as to the substance of these tapes. State v. Skatzes (Mar. 4, 1999), Montgomery App. No. 15848, (Decision and Final Judgment Entry). Skatzes' argument that the record is incomplete without the alleged tapes is without merit. With respect to the mitigation materials, we noted in our Decision and Final Judgment Entry that there was no dispute among the parties that these unmarked materials were documents submitted at the sentencing hearing and that the court had reviewed the materials but had not considered them in arriving at its decision. Id. Because no dispute existed, we ordered the parties to submit a stipulation pursuant to App.R. 9(E) that the folder contained the packet of information referred to at the sentencing hearing. Id. Skatzes' attorneys apparently refused to sign the stipulation prepared by the prosecutors, and efforts to involve the trial judge in the process were fruitless. Accordingly, we ordered the mitigation documents included in the record on November 9, 1999. State v. Skatzes (Nov. 9, 1999), Montgomery App. No. 15848, (Journal Entry). Skatzes has offered no basis for us to change our earlier decision, which worked to his advantage. {¶ 431} Third, Skatzes objects to our decision to accept a duplicate of Exhibit 311, which was missing from the record. Exhibit 311 was a videotaped copy of a news broadcast. Skatzes points out that the content of the videotape should have been transcribed as it was played for the jury, but was not, and that as a result "identification" of the duplicate tape has not been possible. He contends that there is "no justification" for the state's failure to have properly recorded and preserved this evidence. {¶ 432} It is apparent from the record that Exhibit 311 was a news broadcast of a statement made by inmate Stanley Cummings on the recreation yard on April 16, after which Corrections Officer Tony Demons was released. Skatzes was not involved in this exchange. We have concluded that "the contents of Exhibit 311 are * * * readily identifiable" from the record and ordered the parties to supplement the record in accordance with App.R. 9(E). State v. Skatzes (Mar. 4, 1999), Montgomery App. No. 15848, (Decision and Final Judgment Entry). Because there is little doubt about the content of the tape and Skatzes has not suggested how he was prejudiced by the duplicate, we find no error in this decision. {¶ 433} Fourth, Skatzes objects to our decision to allow substitute copies of Exhibits 1 through 5, 308, 314, 318, 319, and 321, which were diagrams of the prison at Lucasville, videotapes of Tess Unwin's press conference, and videotapes of various activities that occurred on the recreation yard during the course of the riot such as food drops and the surrender process. In particular, Skatzes objects to the fact that the substitute exhibits were authenticated by Sgt. Hudson, who testified at many trials and, according to Skatzes, may not have had specific recollections as to Skatzes' case. We conducted a hearing on this issue on July 12, 2000 and concluded that, as attested by Sgt. Hudson, the copies were "true and accurate copies of the exhibits used in the underlying trial." State v. Skatzes (Aug. 31, 2000), Montgomery App. No. 15848, (Decision and Entry). In so holding, we noted that Skatzes had "not challenged the accuracy of the proffered duplicate exhibits or made any persuasive argument regarding how [he] would be prejudiced by their admission." Id. Skatzes has given us no reason to reconsider this decision herein. {¶ 434} Fifth, Skatzes challenges our acceptance into the record of a photocopy of Exhibit 335, a photograph of three inmates-Rodger Snodgrass, Jason Robb, and Ronald Barber-each of whom had tattoos associated with white supremacist groups on his exposed arms. Skatzes claims that the copy does not "fully demonstrate the prejudice engendered by [the] photo." He further argues that the photograph was irrelevant, that it inflamed the passions and prejudices of the jury, and that it created "the implication of guilt by association" in violation of Skatzes' First Amendment rights. In our Decision and Final Judgment Entry of March 4, 1999, we allowed the substitution of a copy because Skatzes had not shown why the copy was inferior to the original. Statev. Skatzes (Mar. 4, 1999), Montgomery App. No. 15848, (Decision and Final Judgment Entry). Because Skatzes still has not made such a showing, we stand by our earlier decision. Skatzes' arguments that the photograph was prejudicial and irrelevant relate to the admission of the original exhibit and are not properly raised in opposition to the substitution of a photocopy. {¶ 435} Sixth, Skatzes objects to three pages of the transcript that were not certified by any court reporter. The certification at issue was filed on August 23, 1999 pursuant to a previous order of this court. {¶ 436} Seventh, Skatzes objects to the fact that two exhibits introduced during the testimony of the coroner who conducted the autopsy of David Sommers are missing from the record. Skatzes makes no specific argument with respect to these exhibits, but he obviously objects to the fact that they are missing. Each of the exhibits is described in the record as a "sketch * * * magnified * * * on a piece of cardboard." Exhibit 344 was a drawing of Sommers' body indicating the location of his wounds and Exhibit 345 was "a picture looking on the top of the head," also reflecting his injuries. The parties have been unable to locate these exhibits or copies of the exhibits. Thus, we must consider whether we can effectively review the record in the absence of these exhibits and whether Skatzes has been unduly prejudiced by their disappearance. {¶ 437} The content of Exhibits 344 and 345 is fairly clear from the record: they were sketches made by the coroner of the wounds to Sommers' head, neck, and torso. Although Skatzes made no argument with respect to the prejudicial effect of these exhibits in his brief, he suggests in other filings with the court that he must be able to determine whether the exhibits were "gory, misleading, or otherwise prejudicial to [his] case." {¶ 438} It is not plausible to us that the sketches in question could have been fairly characterized as "gory." Gory is defined as "bloodcurdling, sensational," Webster's Ninth New Collegiate Dictionary (1990) 528, and we see no reasonable likelihood that sketches of a body with markings for the locations of injuries could be considered gory. See DePew, 38 Ohio St.3d at 281 (the term "gruesome" in the context of photographic evidence should, in most cases, be limited to depictions of actual bodies or body parts). This is especially true where, as here, the sketches can be juxtaposed with photographic exhibits of Sommers' bloodied body with his brain exposed, to which Skatzes did not object. Moreover, we have no reason to believe that the exhibits were misleading, as there was no dispute as to the cause of Sommers' death. We further note that defense counsel did not object to the admission of these exhibits at trial and that Skatzes has not prepared a statement of the evidence pursuant to App.R. 9(C). Having thoroughly considered this matter, we are confident that Skatzes can receive a thorough and fair hearing on appeal despite the unfortunate loss of Exhibits 344 and 345. {¶ 439} Skatzes cites numerous cases for the proposition that the alleged incompleteness and inaccuracy of the record in this case compel granting a new trial. In our view, however, none of these cases requires such a result. {¶ 440} In State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 199, a capital case upon which Skatzes relies extensively, mitigation evidence offered at trial was missing from the record when the case arrived at the supreme court. Ultimately, the exhibits in question were forwarded to the supreme court by the prosecutor or the clerk, and the record was complete. Id. at 200. It was unclear to the supreme court, however, whether the court of appeals had had the complete record when it had conducted its independent review of the death sentence. Id. As such, the supreme court deferred conducting its own independent review of the sentence and remanded the matter to the court of appeals for it to consider all of the mitigating evidence or to clarify that it had already done so. Id. D'Ambrosio highlights the importance of a complete record, but it provides no guidance regarding the record issues presented in Skatzes' case, namely the propriety of substituting copies of exhibits for the originals when the originals cannot be found and the inability to locate seemingly insignificant exhibits from the guilt phase of trial. {¶ 441} Skatzes also relies on several cases in which the record problems were much more significant than those presented here. For example, in Hammond v. Alabama (Ala.Crim.App. 1995), 665 So.2d 970, 972, six potential jurors had been questioned in chambers after indicating possible problems with serving on the jury in open court, such as objections to sitting in judgment of another on religious grounds, having read or talked with others about the case, and the like. Before excusing five of these potential jurors for cause, in chambers discussions were had with them that were not recorded. Id. The appellate court noted that it could speculate about the nature of the questioning that had occurred in chambers and recognized that the potential jurors may have been properly excluded but acknowledged that it could not be sure without a transcript of those proceedings. Id. The court concluded: {¶ 442} "The exclusion for cause of a juror who is not irrevocably committed to vote against the death penalty regardless of the facts and circumstances is, in a capital prosecution, reversible constitutional error and cannot be subject to harmless error review. {¶ 443} "* * *. {¶ 444} "After a careful review of the record before us, we conclude that the missing portion of the voir dire examination and the proceeding relating to challenges for cause constitutes a substantial and significant portion of the record * * * adversely affect[ing] a substantial right of the appellant." (Citations omitted.) Id. at 972-973. {¶ 445} Accordingly, the court ordered a new trial. Id. at 973. It did not, however, adopt a blanket rule that missing portions of a record entitle a defendant to a new trial, which is the position that Skatzes urges us to adopt. In fact, Hammond's reasoning is firmly rooted in the constitutional issues surrounding jury selection. Moreover, whereas Hammond concluded that the defendant's substantial rights had been adversely affected by the missing portion of the record, we have reached the opposite conclusion with respect to the missing items in Skatzes' case. {¶ 446} In State v. Sanders (N.C. 1984), 321 S.E.2d 836, 837, the defendant challenged the adequacy and accuracy of the trial court's jury instructions on appeal. Due to erroneous transcription by the court reporter, "portions of the jury instructions before [the appellate court] contain[ed] a strikingly large number of incomplete sentences, unintelligible phrases[,] and words so misspelled as to cast doubt upon their meaning." Id. Even correcting grammatical errors and possible lapses in language by the trial judge, the appellate court was "unable to make any reasonable sense of the challenged instructions" and was unable to improve upon the record. Id. Thus, the court ordered a new trial. Id. Skatzes is not presented with record problems of this magnitude. {¶ 447} In Perez v. Texas (Tex.Crim.App. 1992), 824 S.W.2d 565, a new trial was ordered where the court reporter had lost tapes and records of the whole trial except for voir dire. In In re Stephen B.(Cal. 1979), 598 P.2d 480, 481, the court reporter's notes regarding one day of a two-day jurisdictional hearing in juvenile court had been inadvertently destroyed. After an appellate court affirmed the trial court's judgment based on the partial record, the supreme court reversed and ordered a new hearing. Id. at 485. These problems are not analogous to the missing and substituted exhibits in Skatzes' case. {¶ 448} In sum, the cases cited by Skatzes do not support his conclusion that a new trial was warranted by the irregularities in the record. In fact, one of the cases upon which he relies actually supports our view. In Stephens v. Zant (C.A.5, 1980), 631 F.2d 397, reversed on other grounds, (1983) 462 U.S. 862, 103 S.Ct. 2733, the court was confronted with a capital case in which neither the voir dire nor the closing arguments had been transcribed. The petitioner contended that a death sentence could not constitutionally be affirmed on appeal when the transcript before the reviewing court did not contain the proceedings of the entire trial. Id. at 402. Like Skatzes, the petitioner did not specifically allege that anything erroneous, inflammatory, or prejudicial had occurred during the unrecorded portion of the trial. The court concluded that the record was adequate so long as the reviewing court could make the determinations required of it under Gregg,428 U.S. at 153, 96 S.Ct. at 2909, i.e., that the sentence was not imposed under the influence of passion or prejudice, that the evidence supported the jury's finding of a statutory aggravating circumstance, and that the sentence was proportionate to other sentences imposed in similar cases. The court also found it significant that the proceedings at issue had taken place in open court, that counsel had had a full opportunity to comment on and challenge those proceedings, that trial counsel had not objected to the injection of anything prejudicial, and that the petitioner had not alleged or offered any evidence that he was actually prejudiced by anything that was not on the record. Stephens, 631 F.2d at 403. In Skatzes' case, these same factors support the conclusion that the record is adequate, along with the fact that duplicates of many of the missing exhibits were produced for our review. {¶ 449} Finally, Skatzes advances some general arguments about the incompleteness of the record and the unconscionability of the state "seek[ing] the death penalty and then diminish[ing] the quality of the record for review." We share Skatzes' consternation about the careless manner in which exhibits were removed from the record of this case for use at other trials resulting from the riot, and we are baffled that none of the prosecutors involved in the cases saw a problem with the handling of exhibits in this manner. We do not agree, however, that Skatzes has thereby been deprived of his right to due process and to thorough appellate review. We are confident that, with the exception of the coroner's sketches, we have been able to supplement the record with true and accurate copies of the exhibits admitted at trial such that we can thoroughly review the evidence offered against Skatzes. Thus, the record is not incomplete except with respect to the coroner's sketches, and Skatzes has not advanced a credible argument as to how he was prejudiced by those sketches. Moreover, we recognize that, having been sentenced to death, Skatzes has an interest-aside from the completeness of the record-in protracting our consideration of this appeal while the parties continue to search for the original exhibits. In our view, ample time and effort have been devoted to locating original exhibits and to verifying copies of exhibits that could not be found. After five years, there was no reasonable likelihood that, given additional time, the parties would have been able to uncover the missing exhibits. {¶ 450} The sixtieth assignment of error is overruled. {¶ 451} "61. THE TRIAL COURT ERRED IN ALLOWING THE GOVERNMENT TO ARGUE NON-STATUTORY AGGRAVATING FACTORS." {¶ 452} The supreme court has made it clear that, in the penalty phase of a capital trial, the only aggravating circumstances that may be considered are those circumstances specifically enumerated in R.C.2929.04(A) that were charged in the indictment and found by the jury to have been proven beyond a reasonable doubt. Wogenstahl,75 Ohio St.3d at 356. The "nature and circumstances of the offense," on the other hand, may weigh against the imposition of the death penalty. Id.; R.C.2929.04(B). The aggravating circumstances and the nature and circumstances of the offense are "two very different concepts," and the supreme court has held that "it is wholly improper for the state to argue or suggest that the nature and circumstances of the offense are `aggravating circumstances.'" (Emphasis sic.) Wogenstahl,75 Ohio St.3d at 352, 355. {¶ 453} Skatzes argues that, during closing arguments in the sentencing phase of the trial, the prosecutor used non-statutory factors such as his role in the riot, which was a circumstance of the offense but not an aggravating circumstance pursuant to R.C. 2929.04(A), to argue in favor of the death sentence. The record reveals, however, that the prosecutor's argument was proper. The prosecutor's closing argument made the distinction between aggravating circumstances and mitigating factors very clear. He referred to Skatzes' leadership role in the riot and in the Aryan Brotherhood to refute any argument that the statutory mitigating factors were entitled to much weight. These mitigating factors included whether Skatzes had been a participant but not the principal offender in the offenses and whether he had been under duress or had been coerced. R.C. 2929.04(B)(2), (6). The state pointed to the evidence that Skatzes had been one of the leaders during the riot in support of its argument that these mitigating factors were not entitled to much weight, if any, in Skatzes' sentencing. The prosecutor did not argue that Skatzes' leadership role was an aggravating circumstance justifying imposition of the death penalty. {¶ 454} The sixty-first assignment of error is overruled. {¶ 455} "62. DEATH QUALIFICATION OF THE JURY VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS AS GUARANTEED BY THE UNITED STATES CONSTITUTION, AMENDS. V, VIII, AND XIV, AND THE OHIO CONSTITUTION, ART. I, § 2 16." {¶ 456} Skatzes claims that he was prejudiced by the fact that the jurors were questioned about their abilities to impose a death sentence before his guilt had been determined. He claims that this procedure made the jury more likely to convict in the guilt phase of the trial. {¶ 457} The supreme court has held that death-qualifying a jury does not deny a capital defendant a trial by an impartial jury. Statev. Jones, 91 Ohio St.3d 335, 338, 2001-Ohio-57; State v. Dunlap,73 Ohio St.3d 308, 315, 1995-Ohio-243, certiorari denied (1996),516 U.S. 1096, 116 S.Ct. 822. See, also, Wainwright v. Witt (1985),469 U.S. 412, 433, 105 S.Ct. 844, 857. It is well settled that, in striving to achieve an impartial jury-one that will fairly judge the facts and apply the law as instructed-the trial court is justified in excluding those jurors who would never impose the death penalty.Jenkins, 15 Ohio St.3d at 188. {¶ 458} The sixty-second assignment of error is overruled. {¶ 459} The remaining assignments of error are raised in Skatzes' supplemental briefs. {¶ 460} "63. DEFENSE COUNSEL[S]' CONDUCT FELL BELOW THE ACCEPTABLE STANDARD OF PRACTICE WHEN THEY FAILED TO PROPERLY VOIR DIRE THE JURORS ON THE DEATH PENALTY AND FAILED TO MAKE EFFECTIVE USE OF JUROR QUESTIONNAIRES." {¶ 461} Skatzes claims that trial counsel acted ineffectively insofar as the jury questionnaire did not include "questions designed to elicit information that would reveal juror bias" toward the Aryan Brotherhood or those associated with it. Skatzes also lists the names of a number of jurors who allegedly "indicated an inclination towards [sic] use of the death penalty" in those questionnaires. {¶ 462} A debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel. Cook,65 Ohio St.3d at 524-525. Although trial counsel could have put a question about the Aryan Brotherhood on the jury questionnaire, that certainly was not the only means by which counsel could have adequately evaluated the jurors' views. Indeed, the prospective jurors were questioned during voir dire about their familiarity with the Aryan Brotherhood and whether they would be able to judge Skatzes based on the evidence presented rather than on the views of that organization. Counsel's approach was a reasonable one, and Skatzes has not shown that he was prejudiced by it. {¶ 463} Skatzes also claims that some jurors who expressed "an inclination towards [sic] use of the death penalty" on their questionnaires were not adequately questioned during voir dire. The record does not support this claim. The jurors were questioned extensively about their understanding of the process by which the death penalty may be imposed in Ohio and about their abilities to participate in that process as jurors. We are unpersuaded that Skatzes' attorneys failed to make effective use of the jury questionnaires in this regard. {¶ 464} The sixty-third assignment of error is overruled. {¶ 465} "64. THE TRIAL COURT ERRED IN SENDING CONFLICTING INSTRUCTIONS TO THE JURY. {¶ 466} "65. THE TRIAL COUNSEL PROVIDED SUBSTANDARD REPRESENTATION IN PERMITTING THE JUDGE TO SEND CONFLICTING INSTRUCTIONS TO THE JURY." {¶ 467} Under his sixty-fourth and sixty-fifth assignments of error, Skatzes challenges the jury instruction regarding conspiracy and claims that his attorneys were ineffective in failing to object to this instruction. To the extent that this argument challenges the instruction itself, it revisits an argument already raised and addressed under the fourth assignment of error. We rely on that discussion here. {¶ 468} To the extent that this argument challenges counsel's effectiveness in failing to object to the instruction given from the bench, it exceeds the scope of supplemental briefing allowed by our April 25, 2002 order. The alleged ineffectiveness was apparent from the trial transcript, which was filed more than six years ago. Our decision to supplement the record with the written jury instructions did not worsen the effect of the alleged ineffectiveness. Moreover, we are unpersuaded that the result of the trial would probably have been different but for the alleged error or that the error was so serious that the defense attorneys failed to function as the "counsel" that the Sixth Amendment guarantees. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Cook,65 Ohio St.3d at 524. {¶ 469} The sixty-fourth and sixty-fifth assignments of error are overruled. {¶ 470} "66. THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY ON A PERSON SUFFERING FROM A SEVERE MENTAL ILLNESS. {¶ 471} "67. THE TRIAL COUNSEL PROVIDED SUBSTANDARD REPRESENTATION IN PERMITTING THE JUDGE TO IMPOSE THE DEATH SENTENCE ON A PERSON SUFFERING FROM A SEVERE MENTAL ILLNESS." {¶ 472} Skatzes argues that it is unconstitutional to impose the death penalty on a person suffering from a severe mental illness and that his counsel were ineffective in failing to raise this argument in the trial court. This issue is not one on which we permitted supplemental briefing. However, because Skatzes relies in part on a United States Supreme Court decision that was issued after the filing of his original brief, we will address the issue. {¶ 473} Skatzes cites Atkins v. Virginia (2002), ___ U.S. ___,122 S.Ct. 2242, which held that execution of the mentally retarded is unconstitutional. Skatzes does not claim to be mentally retarded, but he does claim to be mentally ill, and he urges this court to extend Atkins to prohibit the execution of the severely mentally ill. {¶ 474} Even if we were willing to consider the legal issue presented, we would not do so in this case because we disagree with Skatzes' assertion that "the record establishes that [he] may suffer from a serious mental illness." Skatzes relies on his own characterization of himself as "paranoid," his inability to recall certain events during the riot, his weight loss, and contradictions between his testimony and that of other inmates about whether he had possessed a weapon during the riot in support of his claim that he is severely mentally ill. He presented no medical evidence bearing on his mental health. This evidence clearly does not create a genuine issue as to whether Skatzes had a mental illness that warranted consideration as part of his sentencing. As such, we need not consider whether the holding in Atkins should be extended to the mentally ill. {¶ 475} The sixty-sixth and sixty-seventh assignments of error are overruled. {¶ 476} "68. THE TRIAL COURT ERRED IN USURPING THE JURY FUNCTION OF FINDING THAT THE AGGRAVATED CIRCUMSTANCES WERE PROVED BEYOND A REASONABLE DOUBT, DETERMINING WHAT MITIGATION WAS PRESENT, AND IN WEIGHING THE AGGRAVATED CIRCUMSTANCES AGAINST THE MITIGATING FACTORS. {¶ 477} "69. THE TRIAL COUNSEL PROVIDED SUBSTANDARD REPRESENTATION IN PERMITTING THE JUDGE TO USURP THE JURY FUNCTION OF DETERMINING THAT THE AGGRAVATED CIRCUMSTANCES OUTWEIGHED THE MITIGATING FACTORS." {¶ 478} Skatzes' final two assignments of error challenge the role of the trial judge in imposing the death penalty and reiterate the argument made under his fifty-seventh assignment of error that Ohio's sentencing procedures are inconsistent with the United States Supreme Court's recent decision in Ring v. Arizona (2002), ___ U.S. ___,122 S.Ct. 2428. As we stated, supra, Ohio's sentencing scheme clearly does not present the problem addressed in Ring. We rely on our prior discussion in disposing of these assignments of error. {¶ 479} The sixty-eighth and sixty-ninth assignments of error are overruled. {¶ 480} "70. DEFENSE COUNSEL WERE INEFFECTIVE WHEN THEY AGREED TO PERMIT ALTERNATE JURORS IN THE JURY ROOM DURING PENALTY PHASE DELIBERATIONS." {¶ 481} "71. THE TRIAL COURT ERRED WHEN HE [SIC] PERMITTED ALTERNATE JURORS IN THE JURY ROOM DURING PENALTY PHASE DELIBERATIONS." {¶ 482} Skatzes claims that the trial court erred in allowing the alternate jurors into the jury room during the penalty phase deliberations and that trial counsel acted ineffectively in failing to object to this procedure. The record demonstrates that, in fact, trial counsel expressly agreed to this procedure. Skatzes relies on the recent supreme court ruling in State v. Gross, 97 Ohio St.3d 121, 2002-Ohio 5524, in support of his argument. {¶ 483} In Gross, the supreme court held that allowing alternate jurors to sit in on penalty phase deliberations over the defendant's objection constitutes reversible error unless the state can show that the error was harmless or the trial court has cured the error. Skatzes' case is unlike Gross in that he did not object to the presence of the alternate jurors. Moreover, in Gross, there was specific evidence of disruption of the deliberative process by an alternate juror, and Skatzes concedes that there is no such evidence in this case. Because there is no such evidence here, we find that the error was harmless and that trial counsel were not ineffective in failing to object. See State v. Neal (Dec. 6, 2002), Champaign App. No. 2000-CA-16 and 2000-CA-18,2002-Ohio-6786. {¶ 484} The seventieth and seventy-first assignments of error are overruled. {¶ 485} We will proceed with our independent review of the aggravating circumstances and mitigating factors about which the parties presented evidence at trial. Pursuant to R.C. 2929.05, we must conduct an independent review of the record and consider the offense and the offender "to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate." Furthermore, we must determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. R.C. 2929.05(A). {¶ 486} Initially, we express our belief beyond a reasonable doubt that the evidence supports the aggravated circumstances that Skatzes was found guilty of committing. It is not disputed that Skatzes was a prisoner in a detention facility when Elder and Sommers were murdered and that he had previously been convicted of an offense involving the purposeful killing of another. See R.C. 2929.04(A)(4) and (5). We also agree with the jury and with the trial judge that Skatzes actively participated in the killing of Elder and Sommers as part of a course of conduct involving the purposeful killing of two or more persons. See R.C. 2929.04(A)(5). Furthermore, the evidence amply supports the findings that Skatzes purposely caused the death of Elder, with prior calculation and design, in the course of or immediately after committing kidnapping, and that Skatzes purposely caused the death of Sommers in the course of or immediately after committing kidnapping and was a principal offender in those offenses. See R.C. 2929.04(A)(7). Each of these factors is entitled to significant weight. {¶ 487} For each aggravated murder count for which the death sentence was imposed, we are now required to determine whether the aggravating circumstances accompanying that count outweigh the mitigating factors. Specifically, the aggravating circumstances must be weighed against the nature and circumstances of the offense, the history, character, and background of the offender, and the additional factors set forth in R.C. 2929.04(B), which include the following: {¶ 488} "(1) Whether the victim of the offense induced or facilitated it; {¶ 489} "(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; {¶ 490} "(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; {¶ 491} "(4) The youth of the offender; {¶ 492} "(5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; {¶ 493} "(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; {¶ 494} "(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death." {¶ 495} In our view, the factors enumerated at R.C.2929.04(B)(1)-(6) are entitled to no weight in mitigation in this case. Skatzes was not pressured or provoked into committing the crimes, he did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the law, he was not young, and he had a significant criminal history. The degree of Skatzes' participation in each of the murders is not entitled to any weight in mitigation. Thus, we will consider whether there are any other factors that are entitled to weight when compared with the aggravating circumstances. {¶ 496} Skatzes offered the testimonies of several Lucasville inmates and of Corrections Officer Ratcliff at the sentencing phase of the trial. The inmates, several of whom were black, testified that they had never experienced racism from Skatzes and that Skatzes had treated them with respect. They also testified that Skatzes had been helpful and likeable in prison and had served as a peacemaker among inmates. The inmates described Skatzes as a role model for younger inmates on staying out of trouble and attested that he could make a valuable contribution to the prison community in the future. The inmates also testified that Skatzes had helped some injured corrections officers to get out of L-block in the first hours of the riot. Officer Ratcliff stated that Skatzes had been a role model for younger inmates and had protected him and Officer Clark during the riot. {¶ 497} Skatzes also offered his own unsworn statement at the sentencing hearing. See R.C. 2929.03(D)(1). In his statement, Skatzes spoke at length about the injustice of the prison system and of the riot investigation, as a result of which lying snitches who had admitted to killing people received light sentences in exchange for testifying against him. He also spoke of the hard conditions in prison, of his efforts to do the "right things" and to help other prisoners, and of his own refusal to snitch on anyone. He maintained his innocence throughout, and, although he expressed some remorse that the riot had happened and that people had been injured and killed, he expressed no personal remorse and took no responsibility. {¶ 498} In our view, this mitigation evidence was entitled to very little weight. Any capacity that Skatzes may have had to serve as a good role model was severely undercut by his use of his leadership capabilities to promote destruction and violence during the riot. By the same token, his past conduct in prison, including his role in the riot and an extended period in administrative control, refutes the suggestion that Skatzes would be a valuable contributor to the prison community. Moreover, we are inclined to attribute Skatzes' willingness to help seriously injured corrections officers out of L-block in the early hours of the riot to self-interest rather than to benevolence, because Skatzes clearly recognized that the deaths of any corrections officers would escalate the authorities' response to the riot. Skatzes' lack of remorse and refusal to accept any responsibility for the riot obviously are not entitled to any weight in mitigation. {¶ 499} In sum, we find that the aggravating circumstances are entitled to significant weight and that the mitigating factors are entitled to very little weight. With respect to the aggravated murder of Earl Elder, we find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. Likewise, with respect to the aggravated murder of David Sommers, we find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. {¶ 500} We must also consider whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. R.C. 2929.05(A). The Supreme Court of Ohio has held that "[t]he proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed." Steffen, 31 Ohio St.3d at 111, paragraph one of the syllabus. {¶ 501} This court has affirmed death sentences in cases involving the killing or two or more victims in one course of conduct. Keene, Montgomery App. No. 14375, affirmed (1998), 81 Ohio St.3d 646; State v.Kinley (June 24, 1993), Clark App. No. 2826, affirmed (1995),72 Ohio St.3d 491; State v. Moreland (Sept. 16, 1988), Montgomery App. No. 9907, affirmed (1990), 50 Ohio St.3d 58; State v. Hooks (Oct. 22, 1986), Montgomery App. No. 9275, affirmed (1988), 39 Ohio St.3d 67. We have also affirmed death sentences in cases involving felony murder aggravating circumstances. State v. Myers (Feb. 12, 1999), Greene App. No. 96-CA-38; State v. Bays (Jan. 30, 1998), Greene App. No. 95-CA-118, affirmed (1999), 87 Ohio St.3d 15; Keene, supra; State v. Brewer (Aug. 26, 1988), Greene App. No. 87-CA-67, affirmed (1990), 48 Ohio St.3d 50;Hooks, supra. This court has not considered any aggravated murder cases in which the aggravating circumstances included the defendant's status as a prisoner at the time of the offense or the defendant's prior conviction for a purposeful killing. However, other courts in this state have affirmed death sentences in such cases. See State v. Sanders (May 1, 1998), Hamilton App. No. C-960253, affirmed (2001), 92 Ohio St.3d 245;Robb, Franklin App. No. 95APA08-1003, affirmed (2000), 88 Ohio St.3d 59;State v. Bradley (Sept. 22, 1987), Scioto App. No. 1583, affirmed (1989), 42 Ohio St.3d 136; State v. Zuern (June 11, 1986), Hamilton App. No. C-840803, affirmed (1987), 32 Ohio St.3d 56. Based upon our review of the cases supra and our consideration of the facts in this case, we conclude that Skatzes' sentence was not excessive or disproportionate. {¶ 502} As discussed under the forty-first assignment of error, Skatzes' conviction for the kidnapping of Earl Elder will be vacated, at the state's request, due to the fact that the sentence imposed was not announced in open court. In all other respects, the judgment of the trial court will be affirmed. BROGAN, J. and GRADY, J., concur. 1 There were two separate indictments that were merged at trial. 2 Although Skatzes claims that the trial court posed this question "after each juror had been passed for cause and after extensive questioning by * * * both the government and Skatzes' counsel," the record does not bear this out. It appears that the judge's standard course was to call a potential juror, to briefly explain the purpose of voir dire, and then to ask this single question-and sometimes follow-up questions-before turning the questioning over to trial counsel.

2016-07-06 06:36:38.625695+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff-appellant Patricia Easterwood, Administrator of the Estate of Jean Roziewicz, Deceased ("plaintiff") appeals the decision of the Cuyahoga County Court of Common Pleas that granted summary judgment in favor of defendant-appellee Brent L. English. For the reasons that follow, we affirm. {¶ 2} According to the record, the decedent fell from a hospital bed on November 17, 1997. The decedent sought legal representation from defendant in connection with the November 17, 1997 incident. Defendant did not file a claim. In 1999, plaintiff retained Attorney Clifford L. DeCamp to pursue the decedent's claim, which was filed in November, 1999. By correspondence dated February 1, 2000, DeCamp advised plaintiff that the defendant medical center intended to assert the statute of limitations defense. DeCamp included an Ohio Supreme Court case that supported the medical center's position.1 He felt the decision controlled and recommended that plaintiff settle the case "quickly." On March 6, 2000, plaintiff settled the decedent's claim. {¶ 3} Plaintiff filed this legal malpractice action on February 28, 2001. Defendant moved for summary judgment asserting that plaintiff failed to timely file her claim. The court granted defendant's motion on January 31, 2003. {¶ 4} Plaintiff asserts the following error for our review: {¶ 5} "I. The trial court erred to the prejudice of plaintiff-appellant by granting defendant-appellee's motion for summary judgment." {¶ 6} We employ a de novo review in determining whether summary judgment was warranted.2 Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,105, 1996-Ohio-336; Zemcik v. La Pine Truck Sales Equip. (1998),124 Ohio App.3d 581, 585. {¶ 7} "The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996),75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274." Zivich v. MentorSoccer Club, 82 Ohio St.3d 367, 370, 1998-Ohio-389. Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E); Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385. {¶ 8} There is no dispute that defendant failed to commence suit within the statute of limitations applicable to the decedent's underlying claim. What the parties do dispute is whether plaintiff timely commenced this legal malpractice action. {¶ 9} Generally, R.C. 2305.11(A) provides that "[a]n action for * * * malpractice other than an action upon a medical, dental, optometric, or chiropractic claim, or an action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrued * * *." However, the Ohio Supreme Court has held that: "[u]nder R.C. 2305.11(A), an action for legal malpractice accrues and the statute of limitations begins to run when there is a cognizable event whereby the client discovers or should have discovered that his injury was related to his attorney's act or non-act and the client is put on notice of a need to pursue his possible remedies against the attorney or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later. * * *" (Citations omitted). Zimmie v. Calfee, Halter Griswold (1989), 43 Ohio St.3d 54, syllabus. {¶ 10} Plaintiff claims the "cognizable event" was the date she settled the decedent's claims in the underlying action, March 6, 2000. Conversely, defendant believes that the date of DeCamp's correspondence, February 1, 2000, triggered the statutory period of limitations. {¶ 11} "A `cognizable event' is an event sufficient to alert a reasonable person that in the course of legal representation his attorney committed an improper act." Case v. Landskroner Phillips Co.,L.P.A. (May 3, 2001), Cuyahoga App. No. 78147 (finding letter from counsel was "cognizable event" suggesting legal malpractice triggered statute of limitations). In Case, this Court noted that "[i]n determining the cognizable event, `the focus should be on what the client was aware of and not an extrinsic judicial determination.'" Id., quoting Vagianosv. Halpern (Dec. 14, 2000), Cuyahoga App. No. 76408 [other citations omitted]. {¶ 12} Plaintiff considers the February 1, 2000 letter akin to the "mere assertion of a defense" and, therefore, it should not qualify as the "cognizable event" for statute of limitations purposes. Plaintiff relies on Vagianos, supra. {¶ 13} The defendant in Vagianos identified the date of filing an answer which asserted the affirmative defense of res judicata as the "cogizable event."3 The defendant maintained that the mere assertion of the res judicata defense should have alerted the plaintiff of the defendant attorney's alleged malpractice in failing to pursue discovery in the prior action. This Court held that "the mere assertion of a defense does not establish that the defense has any merit, much less that counsel's substandard representation is responsible for the availability of the defense." Id. {¶ 14} In this case, we find that the February 1, 2002 letter from counsel alerted plaintiff of the alleged malpractice and was the "cognizable event" for determining the statute of limitations on this legal malpractice claim. The facts in this record are entirely distinguishable from those presented in Vagianos. Counsel's February 1, 2000 letter not only advised plaintiff of the conduct which forms the basis of this lawsuit, but also recommended that she enter an expeditious settlement. Plaintiff was further advised of the likelihood that the decedent's claims would be time-barred and of the controlling law on this point. This is far more than simply advising plaintiff that the opposing party has asserted a defense. {¶ 15} Lastly, plaintiff maintains that the February 1, 2000 letter should not qualify as the "cognizable event" because, she argues, that it only "suggests malpractice may have occurred but it is not conclusive." We fail to see how her ultimate decision to settle the claim would make the "suggested malpractice" any more conclusive than it was on February 1, 2000. Instead, it is reasonable to surmise that plaintiff was following the advice of the letter when she settled the claim; particularly because the record does not suggest that plaintiff would have settled the claim at that time for any other reason. In other words, reasonable minds could only conclude that plaintiff was or should have been aware of defendant's malpractice at the time she received the February 1, 2000 letter. Plaintiff failed to file this action within a year from that date and, therefore, the statute of limitations bars the legal malpractice claim as a matter of law. Zimmie, supra; Case, supra. {¶ 16} The assigned error is overruled. {¶ 17} The judgment is affirmed. Judgment affirmed. Frank D. Celebrezze, Jr., P.J., and Diane Karpinski, J., concur. It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. 1 While DeCamp expressed his disagreement with the Ohio Supreme Court decision, he advised that it "appear[ed] to be the current law that would apply to this situation." 2 Summary judgment is appropriate where: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor.Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. 3 Vagianos involved three lawsuits: (1) an action to enforce a cognovit judgment; (2) an action to enforce stock options; and (3) a legal malpractice claim. The plaintiffs' asserted that the attorney who represented them in the first action committed malpractice by failing to conduct discovery that would have precluded the court from granting the defendant relief from judgment. The defendant in the malpractice action claimed that the mere assertion of the affirmative defense of res judicata by the defendant in the second action should have placed the plaintiffs on notice of the legal malpractice. However, the plaintiffs did not discover any damage as a result of the malpractice until they conducted discovery in the second lawsuit.

2016-07-06 06:36:38.656776+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant Rico Escortt ("Escortt") appeals various judgments of the Cuyahoga County Common Pleas Court and asserts that his trial counsel rendered ineffective assistance of counsel. For the reasons adduced below, we affirm. The following facts give rise to this appeal. {¶ 2} Troy Harris ("victim") went to a bar near midnight. The victim was accompanied by his roommate, Marvin Clemons ("Clemons"), and they met Ann Fini, one of the victim's work colleagues. When they entered the bar, Escortt was already present. Escortt and Clemons began conversing about a sale of a car that had taken place several months earlier between Clemons and one of Escortt's friends. Clemons had not yet received the title to the car. Escortt was obnoxious and nasty during the conversation. Escortt turned to the victim and asked him what he thought about the car title dispute. The victim voiced his displeasure about the situation and indicated that if a person had done that to him he would "do him." Escortt grabbed the victim by the shirt and said, "Don't ever say that to me in front of my face again." The victim asked Escortt to let go of his shirt. Escortt refused. The victim asked Escortt two more times to release his grip. Escortt then punched the victim in the face, knocking his glasses off. {¶ 3} A struggle between Escortt and the victim resulted in both of them falling to the floor. Escortt told the victim, "I got you now," and "now I'm [fixing] to fuck you up." Escortt then bit into the victim's cheek, "pulled on it," and "pulled out a chunk." Witnesses heard the victim say, "He bit me in the face." After leaving the bar, Escortt immediately approached the victim. He reached into his coat pocket as if he had a gun and said, "What's up now?" He followed the victim to his car and threw a brick at the victim, striking him in the shoulder area. {¶ 4} The victim was later treated at the hospital and received seven stitches to close the wound on his cheek. Escortt advances four assignments of error for our review. {¶ 5} "No. 1: The trial court erred and the appellant was denied due process when the trial court failed to instruct the jury on all the issues raised by the evidence." {¶ 6} Although this assignment of error is not clearly worded, Escortt is arguing that he was entitled to have a self-defense instruction issued to the jury prior to their deliberation. {¶ 7} He concedes that his trial counsel did not raise this issue with the trial court; thus we are only permitted to review this claimed error under the plain error standard. State v. Hartman (2001),93 Ohio St.3d 274. To constitute plain error, it must appear in the record that error occurred, and that but for the error, the outcome of the trial clearly would have been otherwise. State v. Long (1978),53 Ohio St.2d 91. {¶ 8} Although the state presented evidence that Escortt initiated the fight with the victim, it is specifically the biting of the victim during the fight and resulting laceration that supports the one-count indictment for felonious assault. Escortt did argue and present testimony that it was, in fact, the victim who started the fight by "nicking" Escortt's chin with a punch. But, even Escortt's own testimony is that he merely grappled with the victim, fell to the ground, and then had his teeth "involuntarily" pushed into the victim's cheek. He also argued that the resulting injury was not properly classified as serious physical harm. It is against this backdrop that Escortt argues he was entitled to a self-defense instruction. {¶ 9} "In order to prevail on the issue of self-defense, the accused must show that he was not at fault in starting the affray, and that he had a bona fide belief that he faced imminent danger of death or great bodily harm and that his only means of escape was the use of suchforce, and that he violated no duty to retreat or avoid the danger. If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense." State v. Jackson, (1986), 22 Ohio St.3d 281. (Emphasis added.) {¶ 10} Throughout the trial, Escortt insisted that the bite injury was an unintentional one. During opening statement, Escortt laid out his defense theory claiming the injury to the victim resulted from an unintentional act: {¶ 11} "As [Escortt] was on the top, [the victim was] on the bottom, and the cousin kicks [Escortt] in the head twice, in the back of the head. [The victim's] teeth — when you see the picture, you will see where the bite marks were. It wasn't a bite. {¶ 12} "It wasn't an intentional act. It was an act caused by a third party. {¶ 13} "The prosecutor says that he was bitten. Well, Mr. Harris wasn't bitten. It was the result of the kick to the back of the head, and his jaw went in. {¶ 14} "It wasn't even an intentional crime. It was — it was someone * * * stepping on Mr. Escortt's head * * *." {¶ 15} During his cross-examination of the state's medical expert who treated the victim's bite wound, Escortt questioned the expert if it was possible the victim's injury could have resulted from his teeth being forced into the victim's cheek by a kick. {¶ 16} Finally, Escortt testified that once they hit the floor, his hands were pinned underneath the victim's body. In that position, Escortt testified that "when I said I was fitting to F him up, that's when the foot came on the back of my neck." {¶ 17} Logically, since Escortt was charged with felonious assault for the biting injury caused to the victim, the evidence supporting his self-defense claim must include a reason that justified the bite. Escortt not only failed to provide such evidence, but denies such evidence exists because he contends he did not bite the victim for self-defense or for any other purpose — it was unintentional. {¶ 18} In Ohio, self-defense is an affirmative defense that requires Escortt to "admit the facts claimed by the prosecution" as an initial step toward establishing a justification for what would otherwise be criminal conduct. State v. Martin (1986), 21 Ohio St.3d 91. {¶ 19} "When reviewing a claim by a defendant that evidence supports a claim for self-defense * * * [the] defendant claiming self-defense does not seek to negate an element of the offense charged but rather seeks to relieve himself from culpability." In Re: D.P., MinorChild, Cuyahoga App. No. 82151, 2003-Ohio-5821. The record is clear, however, that Escortt's chosen defense is seeking to negate an element of the offense charged. He is attempting to negate both that he intentionally injured the victim and that the victim's injury constituted "serious physical harm" as required under the statute. He argued at trial and argues in his brief that he did not bite the victim, but had his teeth involuntarily pushed against the victim's cheek after Escortt was kicked in the head. In light of the applicable authority, this defense does not qualify as self-defense and, therefore, it did not entitle him to a self-defense instruction. This assignment of error is overruled. {¶ 20} "No. 2: Appellant was denied effective assistance when counsel failed to request an instruction on self-defense." {¶ 21} Prior to declaring Escortt's counsel's assistance ineffective, we must find that counsel's performance was so deficient and his errors so serious that Escortt was deprived of his right to a fair trial, reiterated in the Sixth Amendment to the United States Constitution. Strickland v. Washington (1984), 466 U.S. 668. In light of our analysis of the first assignment of error, we cannot say it was deficient for Escortt's trial counsel to omit a request for a self-defense instruction as Escortt's defense made that request inapplicable. This assignment of error is overruled. {¶ 22} "No. 3: The verdict finding appellant guilty of felonious assault was not supported by evidence sufficient to justify a finding of guilt beyond a reasonable doubt." {¶ 23} The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: "Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Ohio Supreme Court held that "[a]n appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." {¶ 24} Escortt argues that there is insufficient evidence to establish that he intentionally bit the victim. We disagree. {¶ 25} Escortt was charged with a violation of R.C. 2903.11, felonious assault, which reads in pertinent part: "(A) No person shall knowingly do either of the following: (1) Cause serious physical harm to another or * * * (2) Cause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance." {¶ 26} The victim testified that Escortt bit him, pulled on his cheek with his teeth, and then ripped it. Clemons testified (and a second witness corroborated) that he did not push, shove or kick Escortt thereby contradicting Escortt's claim that Clemons' kick pushed his teeth into the victim's cheek. The state also presented the testimony of the victim's treating physician who found the victim's injury consistent with a human bite. He also offered that he had never, in his 22-year career in emergency medicine, seen such an injury caused by someone being pushed into another person as Escortt claimed. After viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime against Escortt were proven beyond a reasonable doubt. This assignment of error is overruled. {¶ 27} "No. 4: The guilty verdict was against the manifest weight of the evidence and is contrary to law." {¶ 28} State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: "There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the [fact finder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. {¶ 29} In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: "1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary." Id. {¶ 30} The pertinent evidence of this matter was previously reviewed above. The jury is not required to accept Escortt's argument that he was shoved or involuntarily forced into a collision with the victim, resulting in his teeth hitting the victim's cheek. The state's eyewitnesses all gave consistent accounts of what happened. The victim's serious, permanent injury and stitches were in contradiction to Escortt's claim of unintentional bumping of his teeth against the victim's cheek. The jury was entitled to believe some, all, or none of each witness's testimony. Their verdict indicates they believed the state's witnesses and disbelieved Escortt's claims of accidentally injuring the victim. {¶ 31} Based upon that review and considering the entire record, we cannot say the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. This assignment of error is overruled. 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 Cuyahoga County 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. James J. Sweeney, P.J., and Timothy E. McMonagle, J., concur.

2016-07-06 06:36:39.168966+00

ORIGINAL ACTION JOURNAL ENTRY AND OPINION {¶ 1} On September 12, 2003, the relator, John Barber, Jr., commenced this mandamus action against the respondent, Sheriff Gerald T. McFaul, to compel the sheriff under R.C. 2937.34 to notify the Cuyahoga County Court of Common Pleas to hold an examining court to determine whether Mr. Barber is unlawfully detained. On October 8, 2003, the Sheriff, through the Cuyahoga County Prosecutor, filed a motion to dismiss. Mr. Barber never filed a response. For the following reason, this court grants the motion to dismiss. {¶ 2} R.C. 2937.34 provides in pertinent part: "When a person is committed to jail, charged with an offense for which he has not been indicted, and claims to be unlawfully detained, the sheriff on demand of the accused or his counsel shall forthwith notify the court of common pleas, and the prosecuting attorney, to attend an examining court, the time of which shall be fixed by the judge. The judge shall hear said cause or complaint, examine witnesses, and make such order as the justice of the case requires, and for such purpose the court may admit to bail, release without bond, or recommit to jail in accordance with the commitment." {¶ 3} Crim.R. 7(A) provides that when a court has advised a defendant of the nature of the charge against him and his right to indictment, the defendant may waive that right in writing and in open court. When the indictment is waived, the offense may be prosecuted by information, unless an indictment is filed within fourteen days after the waiver. If an information or indictment is not filed within fourteen days after the date of waiver, the defendant shall be discharged and the complaint dismissed. Crim.R. 7(A) further provides that the rule shall not prevent subsequent prosecution by information or indictment for the same offense. {¶ 4} Mr. Barber avers that he waived indictment in open court and consented to indictment by information." The prosecutor had 14 days to indict me. Therefore I should [have] been discharged and complaint dismissed according to the law — Criminal Rule 7." (Paragraph 3 of the Complaint.) Mr. Barber then submits that because he is being unlawfully held, R.C. 2937.34 requires the respondent Sheriff to notify the common pleas court to hold a hearing on his confinement and discharge him. {¶ 5} The motion to dismiss argues that the Sheriff is the wrong respondent because the sheriff does not have the authority to discharge a prisoner and that the matter is moot. The Grand Jury on September 26, 2003, indicted Mr. Barber on one count of trafficking in crack cocaine and one count of possession of crack cocaine. {¶ 6} The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief and (3) there must be no adequate remedy at law. State ex rel. Ney v.Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Additionally, in mandamus a relator must plead specific facts in order to withstand a motion to dismiss. State ex rel. Iacovone v. Kaminiski,81 Ohio St.3d 189,1998-Ohio-304, 690 N.E.2d 4; State ex rel. Clark v.Lile, 80 Ohio St.3d 220, 1997-Ohio-124, 685 N.E.2d 535; State ex rel.Dehler v. Sutula, 74 Ohio St.3d 33, 1995-Ohio-268, 656 N.E.2d 332; Stateex rel. Fain v. Summit Cty. Adult Probation Dept., 71 Ohio St.3d 658,1995-Ohio-149, 646 N.E.2d 1113; State ex rel. Hickman v. Capots (1989),45 Ohio St.3d 324, 544 N.E.2d 639; and State ex rel. Strothers v. Murphy (1999), 132 Ohio App.3d 645, 725 N.E.2d 1185. Moreover, mandamus is an extraordinary remedy which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel.Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel.Shafer v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581, 113 N.E.2d 14;State ex rel. Connole v. Cleveland Bd. of Edn. (1993), 87 Ohio App.3d 43,621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308. {¶ 7} In the present case, Mr. Barber's failure to plead with sufficient specificity warrants dismissal. He has failed to aver whether an information was issued against him, thus precluding the need for an indictment under R.C. 2937.34, or whether there was some other reason to hold him, such as a parole violation, nor did he specify the dates at issue so as to provide a firm basis for determining the merits of his claim. Without such information, inter alia, this court cannot resolve its doubts as to whether the mandamus should issue, and mandamus should not issue in doubtful cases. {¶ 8} Additionally, the relator failed to support his complaint with an affidavit "specifying the details of the claim" as required by Local Rule 45(B)(1)(a). State ex rel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. No. 70077 and State ex rel. Smith v. McMonagle (July 17, 1996), Cuyahoga App. No. 70899. As indicated above, this case highlights the need for an affidavit specifying the details of the claim so that this court might have sufficient foundation for resolving the matter. {¶ 9} This court further concludes that the subsequent indictments moot the application for mandamus. Crim.R. 7(A) provides that even if a prisoner may be entitled to discharge for failure to prosecute, such a discharge does not prevent subsequent prosecution by indictment. The September 26, 2003 indictments provide cause for the sheriff to detain Mr. Barber now, and any previous duty to notify the court to hold an examining court is now nullified. Howell v. Keiter (1957),104 Ohio App. 28, 146 N.E.2d 452. {¶ 10} The relator has also failed to comply with R.C. 2969.25, which requires an affidavit that describes each civil action or appeal filed by the relator within the previous five years in any state or federal court. The relator's failure to comply with R.C. 2969.25 warrants dismissal of the complaint for a writ of mandamus. State ex rel. Zandersv. Ohio Parole Board, 82 Ohio St.3d 421, 1998-Ohio-218, 696 N.E.2d 594 and State ex rel. Alford v. Winters, 80 Ohio St.3d 285, 1997-Ohio-117,685 N.E.2d 1242. {¶ 11} Accordingly, the court grants the motion to dismiss and dismisses the application for a writ of mandamus. Costs assessed against relator. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). Ann Dyke, P.J., and Frank D. Celebrezze, Jr., J., concur.

2016-07-06 06:36:38.324823+00

OPINION Appellant, Stacy J. Noble, appeals from the October 5, 1999 judgment entry of the Trumbull County Court of Common Pleas, Domestic Relations Division. Appellant and appellee, Kevin S. Vaupel were married on November 22, 1992. Addisen Elizabeth Vaupel ("Addisen"), the sole issue of that marriage, was born on June 1, 1994. A decree of dissolution of the marriage was entered on April 1, 1997. In that decree, appellant was named as the residential parent of Addisen. Pursuant to the parties' separation agreement, appellee was to pay $519.22 per month in child support. On February 19, 1999, having been informed by appellant that she intended to relocate, with Addisen, to Peoria, Arizona, appellee filed a motion for change of custody and a motion for restraining order. On April 8, 1999, appellant filed notice of intent to relocate with the court. Subsequent to an August 20, 1999 hearing, a judgment entry was entered on September 14, 1999, prohibiting appellant from relocating to Arizona with Addisen, and denying appellee's motion for a change of custody. In denying appellee's motion for a change of custody, the court stated "[m]other should be the residential parent of Addison [sic] unless she moves to Arizona." In an October 5, 1999 judgment entry, the court overruled appellant's objections to the September 14, 1999 judgment entry. Appellant has filed a timely appeal from the October 5, 1999 judgment entry, and makes the following assignment of error: "The trial court erred when it prohibited [appellant] from relocating to Arizona with her minor child." Appellant argues that pursuant to R.C. 3109.051(G)(1), when a residential parent files a notice of intent to relocate, the court cannot prevent the relocation of the child absent a prior agreement to the contrary. We agree. R.C. 3109.051(G)(1) states that: "If the residential parent intends to move to a residence other than the residence specified in the visitation order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. * * * Upon receipt of the notice, the court * * * may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the visitation schedule for the child." The rule in Ohio is that R.C. 3109.051(G)(1) does not give the trial court the authority to prevent the residential parent from relocating with the child. Moore v. Moore (Mar. 27, 1998), Portage App. No. 97-P-0008, unreported, at 3, 1998 WL 156983; Spain v. Spain (June 21, 1995), Logan App. No. 8-94-30, unreported, at 2, 1995 WL 380067. In the instant case, appellant was the residential parent, and there was no prior agreement preventing her from relocating with Addisen. Appellant's only obligation was to file a notice of intent to relocate with the court pursuant to R.C. 3109.051(G)(1). Based on appellant's filing of that notice, the trial court could schedule a hearing to address visitation issues, but it could not deny appellant the right to relocate. This court will reverse a trial court's decision regarding the allocation of parental rights and responsibilities for the care of a child only in the event that the trial abused its discretion. Moore,supra, unreported, at 4. With regard to the case at hand, we conclude that the trial court abused its discretion by prohibiting appellant from relocating to Arizona. Since the judgment entry in question also addressed custody issues outside the scope of this opinion, we remand this matter for further proceedings consistent with this opinion. In doing so, we would note that in Masters v. Masters (1994), 69 Ohio St. 3d 83, 86, the Supreme Court of Ohio held that the "filing of a motion to remove [a] 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 former R.C.3109.04." With respect to the case at hand, this court would likely view with disfavor any judgment entry that came before us on appeal that failed to take into consideration the foregoing holding in Masters. Appellant's assignment of error is well-taken, and the judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division, is reversed and remanded for further proceedings to implement a visitation schedule consistent with this opinion. _____________________________________ JUDGE DONALD R. FORD O'NEILL, P.J., CHRISTLEY, J., concur.

2016-07-06 06:36:38.452474+00

OPINION {¶ 1} Plaintiff-appellant Karen Vanderpool appeals the January 8, 2008 Judgment Entry of the Delaware County Court of Common Pleas denying her motion for relief from judgment in favor of Defendant-appellee Kroger Company. STATEMENT OF THE FACTS AND CASE {¶ 2} On June 5, 2006, Appellant filed an application for benefits with the Bureau of Workers' Compensation alleging she sustained an injury at work on May 24, 2006. On June 17, 2006, a District Hearing Officer for the Industrial Commission allowed the claim for "left wrist sprain/strain; DeQuervain's tendonitis of the left hand." Appellee appealed the decision to a Staff Hearing Officer on June 19, 2006. On September 11, 2006, the Staff Hearing Officer affirmed the District Hearing Officer's decision allowing the claim. On September 29, 2006, Appellee filed an appeal with the Industrial Commission. On October 3, 2006, the appeal was refused. {¶ 3} On October 26, 2006, Appellee filed a notice of appeal in the Delaware County Court of Common Pleas. On December 26, 2006, Appellant filed her complaint with the trial court. On January 19, 2007, Appellee filed an answer and served Appellant with its first set of interrogatories and request for production of documents. {¶ 4} On February 10, 2007, Appellant timely answered, signed, and had notarized, her responses to Appellee's interrogatories and request for production of documents. Appellant's attorney misplaced the responses, and the discovery was not provided to Appellee. {¶ 5} On March 27, 2007, Appellee filed a motion to compel discovery. On April 19, 2007, the trial court granted the motion, ordering Appellant to respond to the *Page 3 propounded discovery by May 2, 2007. On May 21, 2007, Appellee filed a motion for sanctions. Via Judgment Entry of June 15, 2007, the trial court granted the motion, dismissing the cause of action. {¶ 6} On October 2, 2007, Appellant filed a motion for relief from judgment, pursuant to Civil Rule 60(B). Via Judgment Entry of January 8, 2008, the trial court denied the motion for relief from judgment. {¶ 7} Appellant now appeals, assigning as error: {¶ 8} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF/APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT." {¶ 9} Ohio Civil Rule 60(B) reads: {¶ 10} "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 neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; 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. *Page 4 {¶ 11} "The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules." {¶ 12} In GTE Automatic Electric Company v. ARC Industries (1976),47 Ohio St. 2d 146, 351 N.E.2d 113, the Supreme Court held to prevail on a motion brought pursuant to Civ. R. 60(B), the movant must demonstrate: (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); and (3) the motion is made within a reasonable time, and where the grounds for 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. {¶ 13} The concept of excusable neglect must be construed in keeping with the proposition that Civ. R. 60(B) is a remedial rule to be liberally construed, constituting an attempt to strike a proper balance between the conflicting principles that litigation must be brought to an end and justice should be done. Moore v. Emanuel Family TrainingCenter (1985), 18 Ohio St. 3d 64, 68, 479 N.E.2d 879. {¶ 14} Upon review of the record, Appellant's counsel submitted an affidavit stating Appellant's discovery responses were misplaced due to an assistant's extensive absence from work, and the assistant is no longer employed with the office. The responses to the discovery indicate Appellant timely completed the same, and they were notarized on February 10, 2007. {¶ 15} Under the unique facts and circumstances of this case, we find the ultimate sanction of dismissal unwarranted in this instance. We are reluctant to find an abuse of discretion, particularly where, as here, Appellee made repeated attempts to obtain the discovery responses prior to involvement of the court. However, Appellant *Page 5 did herself timely respond to the discovery, and Appellant's counsel offered an explanation for neglect on his part. Though we recognize the neglect of a party's counsel is normally attributed to the party, we find a less severe sanction would be appropriate under these circumstances. Outright dismissal is an overly harsh penalty. {¶ 16} Accordingly, the January 8, 2008 Judgment Entry of the Delaware County Court of Common Pleas is reversed, and the matter remanded to the trial court for further proceedings in accordance with the law and this opinion. Hoffman, P.J., Gwin, J., concurs separately, Wise, J. dissents. *Page 6

2016-07-06 06:36:45.240514+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Fulton County Common Pleas Court, which granted a motion to dismiss filed by appellee, the Village of Swanton, Ohio ("Village"), and denied a petition for a writ of mandamus filed by appellant, Merritte Ward. For the reasons set forth below, this court affirms the judgment of the trial court. {¶ 2} The following undisputed facts are relevant to the issues raised on appeal. Appellant was an employee of the Village. He was employed by both the Swanton Police Department, as a sergeant, and by the Swanton Fire Department, as an EMT. *Page 2 {¶ 3} On February 9, 2004, appellant was suspended from the Swanton Police Department by the Chief of Police, Chief Napa. Pursuant to R.C.737.19, Swanton Mayor, Tandy Grubbs, investigated the cause of the suspension and determined that appellant should be removed from the Swanton Police Department. On February 12, 2004, Mayor Grubbs provided appellant with written notice of his termination from all employment with the Village. Appellant was given five days to appeal his termination to the Village Council. {¶ 4} On administrative appeal, the Village Council upheld the mayor's decision to terminate appellant. Subsequently, appellant appealed the decision of the Village Council to the Fulton County Court of Common Pleas. The trial court upheld the decisions of the mayor and the Village Council. On September 24, 2004, appellant appealed to this court. No briefs were submitted or oral arguments heard. The case was dismissed. {¶ 5} On April 6, 2006, appellant petitioned the trial court for a writ of mandamus to compel the Village to reinstate him to his EMT position. On May 31, 2006, the trial court heard the mandamus oral arguments. {¶ 6} Appellant argued that he had a clear legal right to relief and that the Village of Swanton had a clear legal duty to reinstate him to his EMT position. Appellant's argument was premised on the assertion that R.C. 737.12 is applicable to the Village and thereby applies to his case. R.C. 737.12 provides in pertinent part: "The chief of police and the chief of the fire department have the exclusive right to suspend any of the *Page 3 deputies, officers, or employees in their respective departments and under their management and control, for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given them by the proper authority, or for any other reasonable and just cause." {¶ 7} Appellant further argued that the mayor and Village Council were without the authority to terminate him from his EMT position. Appellant asserted that pursuant to R.C. 737.12 that only the Chief of Swanton's Fire Department could recommend his EMT termination. {¶ 8} The record shows that Swanton's Fire Chief, Chief Guy, testified that he did not recommend appellant's termination. The trial court found this point moot through its determination that R.C. 737.12 applies only to Cities and not to Villages. It denied appellant's petition for a writ of mandamus. On July 18, 2006, appellant filed a timely notice of appeal. {¶ 9} On appeal, appellant sets forth the following two assignments of error: {¶ 10} "1. The trial court committed plain error in not issuing the writ of mandamus requested by the appellant. {¶ 11} "2. The trial court committed plain error in finding thatR.C. 737.12 did not apply to the Village of Swanton and the improper termination of the appellant." {¶ 12} We have thoroughly reviewed the record of evidence in this matter. Analyzing the assignments in the order presented by the appellant would be counterintuitive. Our judgment on appellant's second assignment of error is determinative *Page 4 to the veracity of appellant's first assignment. Accordingly, we will address both assignments together. We must determine whether the common pleas court erred in holding that appellant failed to demonstrate that he is entitled to a writ of mandamus. {¶ 13} Appellant asserts that the trial court committed plain error in denying his request for a mandamus. The plain error doctrine originated as a criminal law concept and concerns plain errors or defects affecting substantial rights which may be noticed although not brought to the attention of the court. Schade v. Carnegie Body Co. (1982),70 Ohio St. 2d 207, 209. {¶ 14} In civil cases, applying the doctrine of plain error is not favored. It is well established that, "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." Id. Goldfuss v. Davidson (1997), 79 Ohio St. 3d 116, 121. {¶ 15} There is no factual evidence in the record demonstrating that the case at bar represents this kind of exceptional case. We have consistently held that the appropriate standard of review of a denial of a writ of mandamus is abuse of discretion. Truman v. Village of ClayCenter, 160 Ohio App.3d 78, 83; 2005-Ohio-1385, 16; State ex rel.Hrelec v. City of Campbell (2001), 146 Ohio App.3d 112, 117, citingState ex rel. Ney v. Niehaus (1987), 33 Ohio St. 3d 118, 515. "This standard requires more than a *Page 5 determination by the reviewing court that there was an error of judgment, rather, that the trial court acted unreasonably, arbitrarily, or unconscionably." Id. Calderon v. Sharkey (1982), 70 Ohio St.2d 218,219; State ex rel. Songwood Way v. Zimmerman (July 27, 1983), 9th Dist. No. 11002. {¶ 16} In order for issuance of a writ of mandamus to be warranted, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that the relator has no plain and adequate remedy at law. State ex. rel. Howard v. Ferreri (1994), 70 Ohio St. 3d 587,589; State ex rel. Westchester Estates, Inc. v. Bacon (1980),61 Ohio St.2d 42, 44. The relator has the burden of establishing this right.State ex rel. Fant v. Sykes (1986), 28 Ohio St. 3d 90, 91; State ex rel.Szekely v. Indus. Comm. (1968), 15 Ohio St. 2d 237, 239. {¶ 17} Appellant asserts that he has a clear legal right to the relief prayed for and that the Village has a clear legal duty to reinstate him to his EMT position. The crux of appellant's argument is that the Mayor of the Village of Swanton was without the authority to terminate him. This argument is predicated on the assertion that R.C. 737.12 applies to the Village. Appellant asserts that the trial court erroneously relied on State ex rel Giovanello v. Lowellville (1942) in holding that R.C.737.12 is applicable only to cities and not to villages,139 Ohio St. 219. In support of his argument, appellant relies on State ex rel. Moyerv. Baldwin (1908), 77 Ohio St. 532; Sullivan v. Civil Service Comm. ofthe City of Euclid (1956), 102 Ohio App. 269. *Page 6 {¶ 18} Appellant relies on authority that is materially distinguishable and inapplicable to this case. Specifically, in the cases cited by appellant, the court interprets and applies Ohio law that is applicable to cities and city police and fire department employees. Swanton is a village and not a city. These cases are not controlling. {¶ 19} The trial court held that R.C. 737.12 was inapplicable to the Village of Swanton, finding the Ohio Supreme Court case, State ex rel.Giovanello v. Lowellville (1942) 139 Ohio St. 219, controlling and still good law,. In Giovanello, the Court held that the civil service provisions of Ohio's Constitution are applicable to the state, counties and cities, but not to villages, reasoning that "since villages are not mentioned in the provision, the maxim expression unius est exclusioalterius applies," and villages are excluded from the operation of the constitutional provision". Id. {¶ 20} We concur with the trial court. Giovanello remains valid law and is controlling, See Butler v. Village of Wakeman (July 7, 1989), 6th Dist. No. H-88-39, citing Mers v. Dispatch Printing Co. (1985),19 Ohio St. 3d 100. In Karrick v. Bd. of Edn. (1962) 174 Ohio St. 73, 77, in reliance on the Giovanello case, the Supreme Court of Ohio reiterated its position and held that civil service amendments do not extend to villages. R.C. 737.12 is a civil service statute, as described by the Constitution of Ohio. It applies to state, city, and county employees but not to villages. {¶ 21} Appellant's case is rooted in the assertion that his EMT employment with Swanton falls within the parameters of R.C. 737.12. As such, his EMT termination would *Page 7 be compromised, generating the basis for a mandamus. R.C. 737.12 does not apply. Appellant's assignments of error are not well-taken. {¶ 22} The burden was on the appellant to demonstrate that he had a clear legal right to the relief sought. We find no basis upon which appellant has established such right. The Village had no clear legal duty to reinstate appellant. One must satisfy all elements of mandamus for a writ to issue. Appellant has not satisfied this burden. This court cannot find an abuse of discretion. The judgment of the trial court, denying the petition for a writ of mandamus, is affirmed. {¶ 23} 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 this appeal is awarded to Fulton 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 06:36:39.138822+00

JOURNAL ENTRY and OPINION {¶ 1} Appellant, Jamillah Hunter ("Hunter"), appeals her conviction of gross sexual imposition, her 15-month prison sentence, and her classification as a sexually oriented offender. For the following reasons, we affirm Hunter's conviction and classification as a sexually oriented offender, but we remand Hunter's sentence to the trial court to advise Hunter appropriately of all terms of post-release control. {¶ 2} Hunter was indicted on two counts of rape and one count of gross sexual imposition in connection with allegations of rape made by Andrea Luck ("Luck"), one of Hunter's roommates at the Northeast Prerelease Center, where the two women were serving time for violations of their probation. Hunter and Luck also shared their room with two other roommates, Andre McKinney ("McKinney") and Laura Bollington ("Bollington"). {¶ 3} Luck testified that she had finished her job as a porter on New Year's Eve in 2002 and returned to her room to go to bed. Just like every night, she had taken her prescribed medication. She changed into her sports bra and white robe and climbed into her bed, which was the bottom bunk of the bed she shared with Bollington. Luck's medication caused her to be very sleepy, to the point where she could not fight off sleep. Luck woke up the next morning and noticed that her robe was untied. She went to tie her robe and noticed red marks on the tie of her robe. She then noticed red writing on her breasts, sports bra, and stomach, and in her vaginal area, the word "snitch" was plainly written. Luck also testified that she had an "after-sex feel" and took a shower to scrub off the marks. Out of fear that she would be docked days if she complained, Luck did not tell anyone immediately about the red writings. After she learned from others what happened, she informed the correction officers that there was trouble in her room and an investigation began. {¶ 4} McKinney testified that she was present in her room on New Year's Eve when Luck went to bed. McKinney stated that it was common knowledge that Luck was on medication that made her sleep soundly. After Luck went to bed, Bollington and Hunter were goofing off, playing truth or dare, and pulled the sheet off of Luck to expose her body. Bollington and Hunter laughed and made fun of Luck because she was only wearing a sports bra and she was naked from the waist down. Other inmates came into the room to look at Luck. When it was time for the correction officer to make his rounds and count the inmates, Hunter covered Luck back up with the sheet. However, once the count was finished, McKinney testified that Hunter took the sheet off of Luck again, asked Bollington for her red marker, and began writing on Luck's breasts, stomach, and pelvic area with the red marker. McKinney also testified that Hunter placed the red marker and her fingers into Luck's vagina. When first questioned about the incident, McKinney was not forthcoming with what she observed — in fact, she denied what happened. However, McKinney later gave written statements to the police, which were consistent with her testimony at trial. {¶ 5} The state also presented the testimony of Tonia Athens ("Athens"), an inmate residing in an adjacent room to Luck, Hunter, Bollington, and McKinney. Athens testified that on New Year's Eve, she heard Hunter, Bollington, and another inmate known as "Thompson," play truth or dare. Hunter smacked Luck while she was sleeping and stated that Luck was not awake. Hunter then asked Bollington for a red magic marker and Hunter walked into Athens' room with the marker. Athens remained in her room, but heard Hunter talk about how Luck shaved her private parts and heard others tell Hunter she was sick. Athens also overheard Hunter say that she was going to leave Luck exposed for the correction officer to see, but found out that the others covered Luck back up with her sheet. Another inmate, Elaine Presser ("Presser"), testified that she went into Luck's room right before the round count, saw Luck, and thought Luck looked flush on the face and belly. {¶ 6} The correction officer that made the rounds on New Year's Eve testified that he did not notice anything out of the ordinary nor were any of the inmates missing. He stated that the inmates are not allowed to visit others' rooms after 9:00 p.m., but admitted that many violate the rule. With respect to the investigation that was conducted, Trooper Thomas Esenwein ("Esenwein") interviewed Luck, as well as Luck's roommates and fellow inmates and received many written statements. Because Luck threw away her sports bra once she was released from Northeast Prerelease Center and scrubbed her body of the red markings, Esenwein testified that there was no physical evidence. {¶ 7} The jury found Hunter not guilty of the two counts of rape, but guilty of gross sexual imposition. The trial court then sentenced Hunter to 15 months in prison, to run consecutive to any prison term she was currently serving, and classified Hunter as a sexually oriented offender. Hunter now appeals. I. {¶ 8} For her first assignment of error, Hunter contends that the trial court erred when it denied her Crim.R. 29 motion for judgment of acquittal as to the charge of gross sexual imposition. However, Hunter's contention is without merit. {¶ 9} Crim.R. 29(A) provides in full: {¶ 10} "(A) Motion for judgment of acquittal. 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. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case." {¶ 11} When reviewing the record for sufficiency, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991),61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus;Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S. Ct. 2781,61 L. Ed. 2d 560. {¶ 12} Here, the crime for which Hunter was found guilty, gross sexual imposition, is provided in pertinent part pursuant to R.C. 2907.05, as follows: {¶ 13} "(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: {¶ 14} "* * * {¶ 15} "(3) The offender knows that the judgment or control of the other person or of one of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person's consent for the purpose of any kind of medical or dental examination, treatment, or surgery." {¶ 16} Sexual contact has been defined as: {¶ 17} "* * * any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C.2907.01(B). {¶ 18} Here, there was evidence that Hunter touched Luck's breasts, genitals, and pubic region when she wrote on Luck with the red magic marker. Although Hunter argues that there was no evidence that Hunter touched Luck for the purpose of "sexually arousing or gratifying" either her or Luck, "sexual contact" does not require proof of actual arousal or gratification. State v.Edwards, Cuyahoga App. No. 81351, 2003-Ohio-998, ¶ 24, citingState v. Maybury (Aug. 11, 1994), Cuyahoga App. No. 65831. Instead, the trier of fact is permitted to infer from the evidence presented at trial "whether the purpose of the defendant was sexual arousal or gratification by his contact with those areas of the body described in R.C. 2907.01." State v. Cobb (1991), 81 Ohio App. 3d 179, 185, 610 N.E.2d 1009. The trier of fact may consider "the type, nature and circumstances of the contact, along with the personality of the defendant" and infer from those facts "what the defendant's motivation was in making the physical contact with the victim." Id. {¶ 19} As testified by McKinney, Hunter wrote on Luck's breasts and pubic region and then used the red magic marker and her fingers to penetrate Luck's vagina. Because there was no evidence that Hunter was writing on Luck's breasts and pubic region or was touching the victim's vagina by accident or for any legitimate purpose, and viewing the evidence in the light most favorable to the state, a rational jury could conclude that Hunter committed the essential elements of gross sexual imposition. Thus, the trial court did not err when it denied Hunter's Crim.R. 29 motion for acquittal and Hunter's first assignment of error is overruled. II. {¶ 20} Hunter argues in her second assignment of error that the trial court erred when it imposed a 15-month prison sentence to run consecutive to any time she was currently serving. Upon review of the record, Hunter's argument is without merit. {¶ 21} R.C. 2929.14(E)(4) provides in full: {¶ 22} "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: {¶ 23} "(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. {¶ 24} "(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct. {¶ 25} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." {¶ 26} Here, Hunter committed the offense of gross sexual imposition while she was serving time for violation of her probation. See R.C. 2929.14(E)(4)(a). The trial court also found that Hunter's previous convictions of felonious assault, aggravated arson, grand theft, and receiving stolen property, coupled with her inability to benefit from probation and long periods of incarceration, demonstrated the need for a consecutive sentence to protect the public from future crime. See R.C.2929.14(E)(4)(c). The trial court also found that Hunter was not amenable to community control sanctions, as Luck suffered serious emotional harm, Hunter lacked remorse, and Hunter had a significant criminal history. See R.C. 2929.13(B)(1) and (2). Because the trial court complied with the statutory requirements for imposing a consecutive sentence, Hunter's second assignment or error is overruled. III. {¶ 27} For her third assignment of error, Hunter argues that the trial court failed to advise her of post-release control at sentencing and, as a result, the term of post-release control provided in the journal entry must be vacated. Although we find Hunter's argument that the trial court failed to appropriately advise her of post-release control at the time of sentencing to be well-taken, we simply remand this matter to the trial court for re-sentencing for the purposes of advising Hunter of postrelease control. {¶ 28} In Woods v. Telb, 89 Ohio St. 3d 504, 2000-Ohio-171,733 N.E.2d 1103, the second paragraph of the syllabus states, "pursuant to R.C. 2967.28(B) and (C), a trial court must inform the defendant at sentencing or at the time of a plea hearing that post-release control is part of the defendant's sentence." R.C.2929.19(B)(3)(e) provides that if a period of post-release control is imposed following the offender's release from prison, the court must, at the sentencing hearing, notify the offender of the consequences of a violation of that post-release control. Absent from the record here is the trial court's advisement to Hunter about post-release control at the time of sentencing, although it did mention post-release control in its sentencing journal entry. Under Woods, this was erroneous. {¶ 29} Although it remains to be determined what the disposition of the post-release control is in light of the error, the weight of authority within this district "is that errors in the imposition of post-release controls be remanded for resentencing." State v. Fisher, Cuyahoga App. No. 83098, 2004-Ohio-3123, ¶ 37; State v. Jordan, Cuyahoga App. No. 80675, 2002-Ohio-4587, ¶ 15; cf. State v. Finger, Cuyahoga App. No. 80691, 2003-Ohio-402, discretionary appeal allowed99 Ohio St. 3d 1470, 2003-Ohio-3801, 791 N.E.2d 985 (holding that the post-release control term is vacated). Because post-release control is governed by statute under R.C. 2967.28(B) and (C), the imposition of that part of a sentence that did not comply with the statutory requirements would be void. Thus, we order that this matter be remanded for the sole purpose of having the court orally inform Hunter of the post-release control imposed. IV. {¶ 30} Finally, Hunter asserts in her fourth assignment of error that the trial court erred when it classified Hunter as a sexually oriented offender because, as Hunter argues, there was insufficient evidence to find her guilty of gross sexual imposition. However, this court, in affirming Hunter's conviction for gross sexual imposition, finds Hunter's argument to be without merit. {¶ 31} Gross sexual imposition is included in the definition of a "sexually oriented offense" under R.C. 2950.01(D)(1)(a). A sexually oriented offender is one who has committed a sexually oriented offense. Because Hunter was found guilty of gross sexual imposition, a sexually oriented offense, she was properly classified as a sexually oriented offender. Thus, the trial court did not err and Hunter's fourth assignment of error is overruled. Judgment affirmed and remanded for resentencing. 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. Gallagher, J., and Rocco, J., concur.

2016-07-06 06:36:39.745181+00

DECISION AND JOURNAL ENTRY Defendant Russell L. Dossie has appealed from the judgment of the Summit County Common Pleas Court that found guilty of tampering with evidence and having a weapon while under disability. This Court affirms. I. On July 4, 1999, the Russell family was driving home after a Fourth of July fireworks show, which had just concluded in downtown Akron, Ohio. The traffic was congested and slow-moving. At approximately 10:30 p.m., Defendant, a taxi-driver, was driving his cab north on Tallmadge Avenue. At some point, he drove in front of the Russell's van, effectively cutting-off their driving path. Enraged by this, Mr. Russell, the victim in this case, began to curse at Defendant, shaking his arms and fists. After coming to a complete stop, still deep in heavy traffic, Defendant, stepped out of his cab to inquire as to Mr. Russell's complaints. He quickly returned to his cab when Mr. Russell continued his tirade. In response to Defendant's rebuff, Mr. Russell emerged from the family van and proceeded to Defendant's cab. The two men argued through Defendant's closed driver's side window, until Defendant turned away in an effort to ignore Mr. Russell. Suddenly, Mr. Russell thrust his fist through the glass, shattering the window into the cab and onto Defendant's face and arms. Defendant responded by grabbing a gun, which he kept inside the cab, and shooting Mr. Russell. Defendant then fled the scene, proceeding to a nearby gas station where he tossed the gun into a dumpster and radioed for help. Thereafter, Defendant was indicted and charged with the following: (1) one count of voluntary manslaughter with a firearm specification, in violation of R.C. 2903.03(A) and 2941.145; (2) one count of tampering with evidence with a firearm specification, in violation of R.C.2921.12(A)(1) and 2941.145; and, (3) one count of having a weapon while under disability with a firearm specification, in violation of R.C.2923.13(A)(2) and 2941.145. The State later added one count of murder, in violation of R.C. 2903.02(B), one count of felonious assault, in violation of R.C. 2903.11(A)(2) and one count of carrying a concealed weapon, in violation of R.C. 2923.12. On November 8, 1999, the matter proceeded to a jury trial. Prior to impaneling the jury, the trial court dismissed the firearm specification on the having a weapon while under disability count. At the close of the State's case and again at the close of his case, Defendant moved for an acquittal of all counts, pursuant to Crim.R. 29. The trial court denied both motions, except the firearm specification on the tampering with evidence count. On November 18, 1999, the jury returned its verdict, finding Defendant guilty of tampering with evidence and having a weapon under disability. The jury found Defendant not guilty on each remaining count. On December 17, 1999, the trial court sentenced Defendant to a definite term of three years in prison for the tampering with evidence charge and to a definite term of one year in prison for the having a weapon under disability charge. Finally, the trial court ordered that the sentences be served concurrently for a total of three years incarceration. Defendant timely appealed, asserting two assignments of error. II. First Assignment of Error The trial court erred err (sic) or abuse (sic) its discretion by finding [Defendant] guilty of tampering with evidence when such a finding was not supported by the evidence. In his first assignment of error, Defendant has challenged the sufficiency of the evidence relating to his conviction for tampering with evidence. Defendant has argued, contrary to his testimony at trial, that he placed the gun in the dumpster not with the intent to destroy or conceal it, rather to protect his son. The State has responded, claiming that Defendant has waived this challenge by failing to renew his Crim.R. 29 motion after the jury returned its verdict. This Court has long held that if a defendant fails to renew his motion for acquittal, that individual waives his or her right to rely upon the ruling on such motion, and that the defendant has not preserved the issue for appeal. State v. Turner (Aug. 23, 2000), Summit App. No. 19751, unreported, at 3, quoting State v. Pinnick (1937), 23 Ohio Law. Abs. 560, 560 and State v. Childress (June 29, 1988), Lorain App. No. 4320, unreported, at 3. In the instant case, the record indicates that Defendant, after twice moving for a Crim.R. 29 acquittal, to wit: once after the presentation of the State's case and once after the close of his case, failed to renew that motion after the jury returned its verdict, pursuant to Crim.R. 29(C). Accordingly, Defendant cannot challenge the sufficiency of the evidence underlying his conviction on appeal. See State v. Hunter (July 23, 1993), Montgomery App. No. 13614, unreported, 1993 Ohio App. LEXIS 3655, at *7. Defendant's first assignment of error is overruled. Second Assignment of Error The court erred or abused its' (sic) discretion by finding [Defendant] guilty of having a weapon under disability while finding him innocent by reason of self defense for the underlying alledged (sic) crime. In his second assignment of error, Defendant has contested his conviction for having a weapon while under disability, claiming that because taxi-drivers are often robbed and even killed, his occupation is dangerous and that the weapon in question was kept for self-defense. Essentially, Defendant has argued that, even as a felon, he knowingly carried the weapon in the cab for protection and should therefore be insulated from criminal culpability. In support of this self-defense argument, Defendant has made two separate points. First, Defendant has invoked the self-defense exception conceived by the Eighth District Court of Appeals in State v. Hardy (1978), 60 Ohio App. 2d 325. Second, he has argued that because he was found not guilty of the underlying offenses, he cannot be convicted for having a weapon while under disability. This Court will address each issue in turn. This Court would begin by observing that the self-defense exception to R.C. 2923.13 found in Hardy has never been explicitly recognized in this district. See State v. Conwell (Apr. 12, 2000), Summit App. No. 19482, unreported, at 8, fn. 2, citing State v. White (Apr. 5, 1989), Summit App. No. 13850, unreported. Moreover, this Court believes that Hardy is inapplicable to this case. In Hardy, the court held that the statute prohibiting the possession of a weapon while under disability "do[es] not restrict the right of an individual under disability from acting in self-defense, when he did not knowingly acquire, have, carry or use afirearm previously." (Emphasis added.) Id. at 330. Defendant's own testimony at trial clearly showed that he purchased the gun in advance of the tragic events that occurred on July 4, 1999. See, also, Conwell,supra, at 8. As such, his first argument is without merit. Turning to Defendant's second assertion, this Court would observe that "[a] conviction under R.C. 2923.13 for having a weapon while under disability is not precluded when there is an acquittal on, or dismissal of, the indictment which had formed the basis for the charge of having a weapon while under disability." State v. Taniguchi (1995),74 Ohio St. 3d 154, syllabus. In other words, Defendant's conviction for having a weapon while under disability is not precluded simply because he was acquitted on the underlying charges. By his own trial testimony, Defendant conceded that he was a convicted felon, yet knowingly carried the gun. His second argument must also fail. Therefore, Defendant's second assignment of error is overruled. III. Defendant's first and second assignments of error are overruled. The judgment of the trial court is affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the 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 Appellant. Exceptions. ___________________________ BETH WHITMORE FOR THE COURT, BAIRD, P. J., CARR, J., CONCUR.

2016-07-06 06:36:39.77244+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. These consolidated appeals, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, are not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1). Defendant-appellant Mathew Gray appeals from the judgment of the Hamilton County Court of Common Pleas convicting him, following a jury trial, of the aggravated murder of his brother, Daniel, in violation of R.C. 2903.01, the kidnapping of Daniel's girlfriend, in violation of R.C. 2905.01, and the accompanying firearm specifications. On July 30, 2001, the trial court sentenced Gray to serve life in prison, with parole eligibility after twenty years, for killing his brother with a handgun. The ten-year sentence for kidnapping and the prison terms for the firearm specifications were to be consecutive to the life term. The evidence adduced by the state at trial showed that Gray, a resident of Columbus, Ohio, had a long-standing dispute with his brother. As part of his duties as the court-appointed guardian of their elderly father, Daniel had sold the father's real property. Gray had stored a construction crane on his adjoining parcel of land. The crane disappeared, and Gray suspected Daniel of stealing it. On October 6, 2000, Gray entered his brother's house and accosted Daniel. Daniel told Gray to leave. Instead, Gray shot Daniel once in the thigh. Daniel fled down a hallway. Gray pursued him and fired again, striking Daniel's heart. Daniel's girlfriend tried to hide under the bed. Gray found her and, placing the gun barrel against her head, forced her to the front of the house. Twice, Gray left the kidnapping victim to discharge additional shots into his brother's lifeless body. When Gray left the second time, the girlfriend fled to summon police from a neighbor's house. Gray left Daniel's house and drove toward Columbus. Ultimately, Gray returned to Cincinnati and turned himself in to the police. He told the police that he had accidentally shot his brother and directed the police to the location of the murder weapon. In the sole assignment of error raised by his appointed counsel, Gray claims that his trial counsel's failure to request a jury instruction on the lesser offense of voluntary manslaughter, in violation of R.C. 2903.03, deprived him of the effective assistance of counsel guaranteed by the federal and Ohio constitutions. To prevail on a claim for ineffective assistance of counsel, an appellant must first show that counsel's performance was deficient, and, second, that the deficient performance was so prejudicial that he was denied a reliable and fundamentally fair proceeding. See Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S. Ct. 838; see, also, Strickland v. Washington (1984), 466 U.S. 668,104 S. Ct. 2052, and State v. Bradley (1989), 42 Ohio St. 3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus. On appeal, Gray alleges that "the jury could not choose an appropriate lesser offense" because of his trial counsel's failure to request a voluntary-manslaughter instruction. We note that, after conferring with Gray, his trial counsel objected to the trial court's instruction providing the jury with the option of a guilty verdict on the lesser-included offense of murder. Trial counsel's "failure" to request a voluntary-manslaughter instruction was a tactical decision and can hardly be characterized as deficient. Moreover, the evidence adduced at trial would not have supported an instruction based upon serious provocation by the victim that was reasonably sufficient to have incited Gray into the use of deadly force. See State v. Lawrence (1989), 44 Ohio St. 3d 24, 26,541 N.E.2d 451. Trial counsel's performance did not deny Gray a fundamentally fair and reliable proceeding. See Lockhart v. Fretwell,506 U.S. at 369-370, 113 S. Ct. 838. The assignment of error is overruled. Gray raises five assignments of error pro se. His first assignment of error, in which he asserts that the trial court erred in failing to warn him before removing him from the courtroom for unruly conduct, is overruled. During the testimony of the kidnapping victim, Gray erupted and yelled, "Why are you lying? You [sic] lying. You know it. * * * She knows she's lying. * * * She's lying, your Honor." The trial court's immediate removal of Gray from the courtroom for the remainder of the victim's testimony was well within its sound discretion to avoid disruptive conduct by the defendant. See Crim.R. 43(B); see, also,Illinois v. Allen (1970), 397 U.S. 337, 90 S. Ct. 1057. In two assignments of error, Gray claims that the trial court erred in admitting hearsay evidence and in admitting misleading evidence. The second and fourth pro se assignments are overruled, as Gray has not identified where in the course of the trial the claimed errors occurred, nor has he failed to raise a timely object to the admission of the evidence and to state the specific ground of the objection, thus denying the trial court the opportunity to effectively identify and correct the alleged errors. See Evid.R. 103; see, also, Loc.R. 6(C)(3)(a) of the Hamilton County Court of Appeals. Gray's third assignment of error, in which he claims that the trial court erred in permitting the prosecutor to mention Gray's potential sentence, is overruled. The unobjected-to comments by the prosecutor that Gray was not eligible for the death penalty were not error, and certainly not plain error. See Crim.R. 52(B); see, also, State v. Bey,85 Ohio St. 3d 487, 1999-Ohio-283, 709 N.E.2d 484. In his fifth pro se assignment of error, Gray claims that the trial court erred in allowing the trial to progress with a sleeping juror. The record does not demonstrate the error alleged by Gray. His assignment refers to matters outside of the record, which this court cannot consider, as well as to matters to which he did not timely object, thereby waiving any error. See State v. Ishmail (1978), 54 Ohio St. 2d 402,377 N.E.2d 500. The assignment of error is overruled. Finding merit in none of these assignments of error, we affirm the judgment entered by the trial court on the jury's verdicts. Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. Hildebrandt, P.J., Gorman and Sundermann, JJ.

2016-07-06 06:36:39.88477+00

OPINION Appellant, Michael Visnich ("appellant"), appeals from the trial court's determination that he was in contempt for violating a court order. Appellant also appeals from the trial court's sentence that he serve a six-month term of imprisonment. On April 13, 2000, appellant appeared before the trial court for hearing on two motions for contempt filed by the guardian ad litem in a continuing, long-standing dispute concerning appellant's two children. The parties entered into stipulations whereby appellant was found to be in contempt of orders of the court. The two motions for contempt were found to be well taken. Appellant was sentenced to six-months incarceration for his acts of contempt but could purge his contempt if he complied with the conditions set forth in the trial court's judgment entry journalized April 25, 2000. Those conditions primarily consisted of appellant agreeing to cease harassing and intimidating parties and from performing record searches, for both private and public records, of parties in the case. The documents included records about other court proceedings concerning counsel, agencies, and third parties involved in the case. The parties included all attorneys and all agency workers of SomePlace Safe. On May 12, 2000, SomePlace Safe filed a motion for contempt with the court. In the motion, SomePlace Safe stated appellant violated the April 25, 2000 court order by requesting court records of Denise Perline, a former employee of SomePlace Safe. A copy of a letter sent by appellant to the Clerk of Courts for Trumbull County, Domestic Division, was attached to the motion. In the letter, appellant asked for copies of a motion to terminate restraining order and a judgement entry from a domestic hearing in Perline's domestic relations case. The matter came for hearing on May 22, 2000. At the hearing, appellant challenged the standing of SomePlace Safe to file the motion. The trial court granted the oral motion of the attorney for the guardian ad litem to be substituted as the movant. The legal advocate for SomePlace Safe testified Perline was employed by SomePlace Safe during the pendency of this case. Perline had attended hearings where appellant was present. The attorney for the guardian ad litem was the attorney of record in the Perline matter. On the stand, appellant admitted he wrote the letter requesting the documents at issue. Appellant testified he thought the April order only prohibited him from harassing or annoying anyone involved in the case. Appellant averred he was unaware he was not permitted to seek any public records of parties in the case. Appellant admitted signing the agreement in April. The trial court found appellant in contempt for violating the April 25, 2000 judgment entry. The trial court reinstated appellant's suspended sentence for six-months of incarceration. Appellant assigns the following errors for review: "[1.] The appellant's conviction was not supported by sufficient evidence. "[2.] The appellant's conviction for contempt was against the manifest weight of the evidence. "[3.] The trial court erred by illegally sentencing appellant to a term not included in the statutory guidelines. "[4.] The trial court erred by resentencing appellant. "[5.] The trial court erred by hearing appellee's motion for contempt without providing notice to appellant." In his first assignment of error, appellant challenges the sufficiency of the evidence supporting his contempt conviction. Appellant argues he did not know Denise Perline was employed by SomePlace Safe. Appellant asserts he lacked the requisite criminal intent because he was unaware he was violating the court order at the time he submitted his request for records. Appellant submits he believed the court order only prevented him from annoying or harassing parties and individuals involved in the case. A judge of the juvenile division of a court of common pleas has the inherent power to enforce its orders by contempt proceedings. State exrel. Edwards v. Murray (1976), 48 Ohio St. 2d 303, 305. This power exists independently from an express constitutional provision or legislative enactment. Therefore, a court has both inherent and statutory authority to punish a party for contempt. Burke v. Burke (May 14, 1999), Geauga App. No. 98-G-2163, unreported, 1999 Ohio App. LEXIS 2197. A person may be punished for contempt if he or she disobeys or resists a lawful order or judgment of a court. R.C. 2705.02(A). The requisite standard of proof for criminal contempt proceedings is beyond a reasonable doubt. Brown v. Executive 200, Inc. (1980),64 Ohio St. 2d 250, 252. In cases of criminal contempt, it also must be shown that the contemnor intended to defy the court. Midland SteelProds. Co. v. U.A.W. Local 486 (1991), 61 Ohio St. 3d 121, 127; In re Cox (Dec. 23, 1999), Geauga App. Nos. 98-G-2183 and 98-G-2184, unreported, 1999 Ohio App. LEXIS 6266. This need not be malicious intent. A person is presumed to intend the natural, reasonable, and probable consequences of his or her voluntary acts. Intent can be determined from the surrounding facts and circumstances. State v. Carter (1995),72 Ohio St. 3d 545, 554. On review for sufficiency, an appellate court is to examine the evidence admitted at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991), 61 Ohio St. 3d 259. The April 15, 2000 court order at issue stated: "[a.] Michael Visnich shall cease, refrain, and desist from any and all conduct, now and in the future, to harass, threaten, intimidate, restrain, investigate, follow, telephone, subpoena, e-mail, or perform any acts of contact, harassment, or investigation, either individually, through paid professionals, through uncompensated individuals or professionals, through friends, acquaintances, third parties, or internet computer programs or services, directed towards the parties set out in number paragraph "d", below; "[b.] Michael Visnich shall cease, refrain, and desist from any and all conduct, now and in the future, to perform record searches, whether public, or private records, dealing with all matters relating to the parties set out in paragraph "d", below, including but not limited to records concerning employment, taxes, deeds, medical records, telephone records, credit reports, police reports, automobile titles or other vehicle related information, bank accounts, court records, or agency records, or any other records concerning other court proceedings involving counsel, agencies, or third parties, involved in this case as set out in number paragraph "d", below; "[c.] Michael Visnich shall immediately turn over any and all records in his physical possession which have been obtained through the use of the subpoenas issued in this matter, including, but not limited to responses obtained by the use of the forty-six (46) subpoenas which this Court has quashed by its prior Order, turning over such records to the Guardian-Ad-Litem, within seven (7) days of the effective date of this Order; "[d.] The parties referenced above shall include all of the following: "* * *All attorneys * * *agency workers, supervisors, social workers, secretarial staff, volunteers, and affiliated personnel, both past and present, at all agencies involved upon this case, including * * * SomePlace Safe." Evidence admitted at the hearing established Denise Perline was employed by SomePlace Safe during the pendency of the Visnich matter. She attended hearings at which appellant also was present. There was evidence before the court that appellant knew, or should have known, that Denise Perline was employed by SomePlace Safe. By the plain reading of the court order, appellant was forbidden from requesting Perline's court records. The order also forbade appellant from requesting records of any court proceedings involving the counsel appearing in this case. Because the attorney for the guardian ad litem also was counsel of record in the Perline case, appellant's request for the document violated the court order even without any consideration of whether appellant knew Perline was employed by SomePlace Safe. Appellant could not recall how he became aware of the document in the Perline case. He also was vague on his understanding of the court order at issue. Appellant admitted he probably stated that he understood the stipulations at the hearing held when the court order was issued in April. He also remembered signing the agreement in court. The surrounding facts and circumstances of this case demonstrate appellant intended to violate the court order. His past behavior of filing numerous subpoenas and requests for various records and documents show a pattern of harassing behavior that the court attempted to thwart with the order at issue. Appellant not only requested a document from a former employee from SomePlace Safe, the document also was prepared and filed by one of the attorneys in this case. The plain language of the court order prohibits appellant from engaging in this conduct. There is sufficient evidence before this court to uphold appellant's conviction for contempt. Appellant's first assignment of error is overruled. In his second assignment of error, appellant contends his conviction was against the manifest weight of the evidence. Appellant basically reiterates the same arguments advanced in his first assignment of error concerning his intent. When considering if a conviction was against the manifest weight of the evidence, a reviewing court examines the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. State v. Thompkins (1997), 78 Ohio St. 3d 380. There was evidence appellant and Perline were present at the same hearings. Appellant was evasive on the stand regarding how he came to learn of the document in the Perline case and regarding his understanding of the court order. There was no manifest miscarriage of justice in the instant case. Appellant's second assignment of error is overruled. Appellant's third and fourth assignments of error will be addressed together for purposes of review and disposition. In his third assignment of error, appellant submits the trial court's sentence of six months was illegal. Appellant argues R.C. 2705.05 only provides for a sentence of not more than ninety days for a person found in contempt three or more times. Appellant maintains that the six-month sentence he received violates this statute. Appellant's fourth assignment of error argues that a September 6, 2000 judgment entry by the trial court, clarifying that appellant's sentence was the result of two separate offenses, for which a ninety-day sentence was imposed for each, was error because appellant was not present for the re-sentencing. Appellant is correct in stating that R.C. 2705.05(A)(3) provides for a definite term of imprisonment of no more than ninety days for a third or subsequent contempt offense. A trial court can impose separate sentences for each act of contempt. See State ex rel. Charmaine H. v. Paul D.M. (July 27, 2001), Erie App. Nos. E-00-067, E-00-065, E-00-066, unreported, 2001 Ohio App. LEXIS 3321. The trial court's judgment entry of May 23, 2000 reinstated the sentence imposed in its order of April 25, 2000. The April 25, 2000 judgment entry sentenced appellant to six months for his acts of contempt based upon two separate motions filed by the guardian ad litem. The judgment entry does not provide for separate sentences for each of the two contempt motions but states appellant is sentenced to a term of six months. Crim.R. 32(B) imposes a mandatory duty upon a trial court to set forth the sentence for each and every charge. See State v. Collins (Oct. 18, 2001), Cuyahoga App. No. 79064, unreported, 2001 Ohio App. LEXIS 4666. The April 25, 2000 judgment entry does not include a separate sentence for each finding of contempt. Therefore, the judgment entry does not comport with the dictates of Crim.R. 32(B). The trial court sought to correct this deficiency by issuing a nunc protunc judgment entry, clarifying that appellant received consecutive three-month sentences for each finding of contempt. Appellant was not brought into open court for the clarification of his sentence. A court retains jurisdiction to correct a void sentence and may use anunc pro tunc entry to do so. State v. Calvillo (1991),76 Ohio App. 3d 714. Crim.R. 43 provides that such a correction or modification must occur in open court in the presence of the defendant.Columbus v. Rowland (1981), 2 Ohio App. 3d 144; State v. Beeman (May 19, 1989), Lake App. No. 13-063, unreported, 1989 Ohio App. LEXIS 1850. Even if a correction of the initial sentence is largely ministerial, the defendant has the right to be present. State v. Skaggs (Oct. 26, 2000), Cuyahoga App. No. 56714, unreported, 2000 Ohio App. LEXIS 4947. A re-sentencing by a trial court which does not comply with Crim.R. 43 is void. State v. Heath (Sept. 30, 1997), Lucas App. No. L-97-1099, unreported, 1997 Ohio App. LEXIS 4392. The trial court retained the jurisdiction to correct or clarify the sentence imposed for the two findings of contempt. However, the trial court could not correct the sentence outside of the presence of the defendant. Therefore, the sentence of the trial court is vacated. The case is remanded for re-sentencing. Appellant's third and fourth assignments of error are well-taken. In his fifth assignment of error, appellant contends he did not receive adequate notice of the hearing because the trial court granted the oral motion of the attorney for the guardian ad litem to replace Someplace Safe as the movant in the contempt motion. Appellant argues that his attorney was prepared to challenge the contempt motion on Someplace Safe's lack of standing. Because he had no notice the guardian ad litem would be substituted at the hearing, appellant asserts his attorney did not have a chance to prepare an adequate defense to the motion. For contempt under R.C. 2705.02, a written charge shall be filed with the clerk of courts, an entry of the charge is to be made upon the journal, and the accused is to be given an opportunity to be heard. R.C. 2705.03. See also In re Guardianship of Jadwisiak (1992),64 Ohio St. 3d 176. Notice apprising the defendant of the nature of the charge against him sufficient for the preparation of a defense complies with the requirements of R.C. 2705.03. Cincinnati v. Cincinnati Dist.Council 51 (1973), 35 Ohio St. 2d 197, at paragraph two of the syllabus. A party charged with indirect contempt must have adequate notice, adequate time to prepare a defense, and an opportunity to be heard.Culberson v. Culberson (1978), 60 Ohio App. 2d 304, 306. Appellant never raised the notice issue below. Even in criminal contempt proceedings, a contemnor must assert his constitutional rights, including those of due process, at the trial level or waive any assertion of error upon appeal. Cominsky v. Malner (Dec. 29, 2000), Lake App. No. 99-L-101, unreported, 2000 Ohio App. LEXIS 6204. Appellant has waived the question of adequate notice on appeal because he did not raise the matter with the trial court. Even if appellant had preserved his right to appeal this issue, he would not prevail. Appellant does not state how his defense would have differed had the guardian ad litem been substituted as the complaining party at an earlier point in the proceedings. Therefore, appellant has not demonstrated prejudice. See Cincinnati, supra; Turner v. Turner (May 18, 1999), Franklin App. No. 98AP-999, unreported, 1999 Ohio App. LEXIS 2329. Also, the notice itself adequately apprised appellant of the charge against him. The substitution of parties did not result in prejudice because the trial court itself has the power to determine whether a person is in contempt and appellant had adequate notice of the charges. Appellant's fifth assignment of error lacks merit. The judgment of the Trumbull County Court of Common Pleas, Juvenile Division, is affirmed in part, reversed in part, and remanded for re-sentencing. JUDGE DIANE V. GRENDELL, FORD, P.J., NADER, J., concur.

2016-07-06 06:36:38.488504+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1). Subsequent to the trial court's denial of his motion to suppress, defendant-appellant Daniel Reliford pleaded no contest to trafficking in cocaine in violation of R.C. 2925.03(A)(2) and possession of cocaine in violation of R.C. 2925.11(A), both second-degree felonies. Reliford was sentenced as of record. In a single assignment of error, Reliford challenges the denial of his motion to suppress evidence seized from his girlfriend's apartment, where he had been residing. First, Reliford maintains that statements concerning his identity in the affidavit for a search warrant were made with reckless disregard for their truth so as to require the suppression of the evidence that was discovered during the search.1 Reliford alleges that the police officers' detainment of Virgil Walker, a man they suspected was Reliford, prior to executing the search warrant demonstrated that the officers could not identify Reliford as the person who had sold crack cocaine to a confidential informant. This argument is without merit. The affidavit for the warrant identified Daniel Reliford by a control number and described him as a black male residing at 1318 Broadway, Cincinnati, Ohio. The affiant, Officer David Johnston, testified at the suppression hearing and stated in the affidavit that he had observed Reliford sell crack cocaine to a confidential informant and then reenter the apartment building at 1318 Broadway. Further, the detainment of Walker was insufficient to support an attack on the veracity of Officer Johnston's statements, because the record is silent as to whether Officer Johnston participated in detaining Walker. Even if Johnston had participated in detaining Walker, the record reveals that the officers' mistake was reasonable under the circumstances. Walker was seen entering Reliford's apartment building with a dog that was known to belong to Reliford. Walker testified that he had recently purchased the dog from Reliford. Based on these circumstances, the court properly found that the search warrant was valid. Second, Reliford asserts that the police officers executing the search warrant violated the "knock and announce rule."2 Both Reliford and his girlfriend, Lakisha Springs, testified at the suppression hearing that they did hear a knock at the door, but that there was no announcement that police officers were at the door with a search warrant. Officer Johnston and Officer Jeffrey Ray both testified that they did knock and say "police officer, search warrant" in loud voices. Clearly, there was conflicting testimony. At a suppression hearing, the evaluation of the evidence and the credibility of the witnesses are issues for the trier of fact.3 Here, the trial court stated that it found the officer's testimony more credible. Based on that exercise of discretion, the court properly found that the officers knocked and announced their presence in the execution of the search warrant. Finally, Reliford argues that even if the officers did announce their presence, they also violated the knock- and-announce rule by waiting an insufficient amount of time for a response before forcibly entering Springs's apartment. The record supports a finding that the officers waited between five and ten seconds for a response before breaking down the door with a battering ram. Whether police officers have paused long enough before entering a residence depends upon the circumstances of each case.4 Here, the officers were expecting to find illegal drugs that could easily be disposed of or destroyed prior to the officers' search of the residence. Further, both officers testified at the suppression hearing that they had heard voices and movement coming from within the apartment after they had knocked and announced their presence. Based upon these exigent circumstances, the court properly held that waiting five to ten seconds before forcibly entering the apartment was reasonable.5 Accordingly, the single assignment of error is overruled and the judgment of the trial court is affirmed. Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. Hildebrandt, P.J. Sundermann and Winkler, JJ. 1 See Franks v. Delaware (1978), 438 U.S. 154, 98 S. Ct. 2674. 2 See R.C. 2935.12; see Wilson v. Arkansas (1995), 514 U.S. 927,115 S. Ct. 1914 (holding that the Fourth Amendment incorporates the common-law rule of "knocking and announcing" before entering a private residence to execute a search warrant). 3 See State v. Mills (1992), 62 Ohio St. 3d 357, 366, 582 N.E.2d 972, citing State v. Fanning (1982), 1 Ohio St. 3d 19, 20, 437 N.E.2d 583. 4 State v. Dixon, 141 Ohio App. 3d 654, 2001-Ohio-2120,752 N.E.2d 1005. 5 See State v. Allen, , 2nd Dist. App. No. 18788; 2002-Ohio-263;State v. DeFiore (1979), 64 Ohio App. 2d 115, 411 N.E.2d 837.

2016-07-06 06:36:38.735067+00

OPINION {¶ 1} Appellant Helen Saffell ("mother") appeals the June 5, 2006 Judgment Entry entered by the Tuscarawas County Court of Common Pleas, Juvenile Division, which terminated her parental rights with respect to her two minor children, and granted permanent custody of the children to appellee Tuscarawas County Job and Family Services ("TCDJFS"). Appellee, TCDJFS, has not filed a brief in this matter. Therefore, we may accept appellant's statement of facts and issues as correct and reverse the judgment if that action reasonably appears to be supported by appellant's brief. App.R. 18(C). State v. Caynor (2001),142 Ohio St. 3d 424, 426, 2001-Ohio-3298, 755 N.E.2d 984, 986; Statev. Myers (1997), 119 Ohio App. 3d 642, 645, 695 N.E.2d 1226,1228. {¶ 2} STATEMENT OF THE CASE AND FACTS {¶ 3} Appellant Helen Saffell is the mother of Christopher Daulton (DOB 06-159-0) and Shawn Daulton (DOB 02-27-92). The father of these children is Daniel Daulton. {¶ 4} The family resided in the State of Kentucky with several children in addition to Christopher and Shawn. The family was involved with Child Services while in that State between 1990 and 1995. Apparently, appellant moved on several occasions without notifying the appropriate agency. At one point appellant moved to Indiana and then back to Kentucky, apparently in an attempt to avoid Children's Services. {¶ 5} Reports of physical abuse first surfaced in 2004. Attempts to work with appellant by Children's Services were unsuccessful. In August, 2004 the children were removed from appellant's home after she refused to work with the agency in resolving the ongoing problems. In addition appellant's daughter ran away to her father's home in Kentucky. {¶ 6} On December 14, 2004 all parents stipulated that the children were dependent. Christopher and Shawn were placed in the custody of their father in January, 2005. Shawn was returned to TCDJFS custody in May, 2005. Christopher was returned to TCDJFS custody in September, 2005. {¶ 7} On November 29, 2005 the TCDJFS filed a motion for permanent custody. The case came before the trial court for an evidentiary hearing on May 23, 2006. On June 5, 2006 the trial court filed its Judgment Entry and written Findings of Facts and Conclusions of Law granting permanent custody to the TCDJFS. {¶ 8} The trial court found "Helen Saffell has a long history with children's services agencies in both Ohio and Kentucky. Her three oldest children continue to allege that they were repeatedly abused physically by their mother, although Ms. Saffell has always denied such allegations. Her home conditions have been poor and the children have demonstrated a variety of academic and behavior problems in school, which Ms. Saffell has been unable to rectify. {¶ 9} "Her oldest son, Christopher, refuses to visit with his mother and has requested that this motion be granted so he may be adopted into another household. Christopher would also like an opportunity to continue a relationship with his siblings who are placed elsewhere. {¶ 10} "Shawn suffers from intellectual deficiencies and has obtained an IQ score in the low 40s. His day-to-day living skills have vastly improved since his placement in foster care. {¶ 11} "On the surface, Helen has technically completed most of her case plan in that she has met and worked with professionals to whom she was directed. In Court, her appearance was neat and much more appropriate than many parties. She appears capable of maintaining an average job and household if she actually wished to meet these responsibilities". Judgment Entry, filed June 5, 2006. {¶ 12} Appellant testified that her sons are very close to each other and their other siblings. (T. at 27). They are also bonded to extended family members. (T. at 28). Specifically they are bonded to their maternal grandmother, and saw her approximately every other day prior to their removal. (T. at 28). Christopher has only attended four visits with Appellant in eight months. (T. at 22). Christopher was supposed to be visiting weekly, but only attended about once a month. (T. at 22). Christopher was not told that he had to attend visits, only that he needed to attend. (T. at 87). {¶ 13} Guardian Ad Litem, Attorney Karen Dummermuth stated that Christopher and Shawn are full brothers and are very close. (T. at 34). Due to Shawn's limitations, the siblings often act as a caretaker to Shawn. (T. at 34-35). Attorney Dummermuth stated that Christopher indicated he wanted to continue to have a relationship with his siblings and his maternal grandmother. (T. at 39). Attorney Dummermuth stated that it is very important for these boys to be placed together. (T. at 40). Christopher told his counselor that he wants contact with his siblings and when he is of age he intends to have regular contact with his family in Kentucky. (T. at 52). Attorney Dummermuth stated that Christopher has a very close relationship with his siblings and seems to gain a lot of his identity by this relationship. (T. at 43). Also, Christopher has stated that he would like to be adopted. (T. at 50). Attorney Dummermuth recommended the boys be placed into Planned Permanent Living Arrangement. (T. at 43). {¶ 14} Christopher has stated that he wants to be adopted. (T. at 38). However, he would like to maintain contact with his family at the same time. (T. at 39). Further, Christopher has been assured that should his current foster parents adopt they will allow appropriate contact with his siblings and extended family members. (T. at 39-40). {¶ 15} Shawn has developmental delays and his IQ is estimated to be forty. (T. at 16). Attorney Dummermuth stated that Shawn has an extremely low IQ and can be easily manipulated. (T. at 41). {¶ 16} These boys were placed in the custody of the TCDJFS in December 2004. (T at 55). They were then placed with their father in January, 2005. (T. at 56). Shawn was returned to the custody of TCDJFS on May 11, 2005. (T. at 56). The caseworker testified that Shawn was returned to their custody because Father was unable to control Shawn's behavior and Shawn has supposedly hit Father's paramour in the ear and possibly busted her eardrum. (T. at 56). Christopher was returned to TCDJFS custody in September, 2005. (T. at 6). Christopher was returned because Father also had trouble controlling him. (T. at 56). Christopher was smoking marijuana and not following house rules. (T. at 57). Christopher admitted to the caseworker that he was smoking marijuana and also had a positive drug test. (T. at 86). {¶ 17} At the foster home where the boys are currently placed there are five other children. (T. at 86). Shawn had recently been moved to the foster home where Christopher is placed. (T. at 86). According to the Guardian, Christopher has had difficulty at school with fighting and has been close to suspension. (T. at 40). The boys had only been placed together for a few weeks at the time of trial. (T. at 35). The Guardian was concerned about how Shawn would react to the new home. (T. at 40). She stated that this home was very relaxed, and Shawn had done very well in his last foster home which was very structured. (T. at 40). The caseworker testified that the boys were not initially placed into the same foster home because the family was concerned about finding additional services for Shawn's special needs. (T. at 80). {¶ 18} Appellant completed her psychological evaluation in early 2005. (T. at 58). Appellant was not active in counseling from July 2005 to January 2006. (T. at 9). Appellant had restarted counseling at the time of trial. (T. at 8). {¶ 19} Appellant testified that she had maintained the same residence for approximately eight months at the time of trial. (T. at 6). She resides alone. (T. at 6). Appellant has maintained employment at Hercules Plating for the past year. (T at 7). Appellant has visited consistently with her children and theses visits have often included siblings and extended family. (T. at 22, 23). Christopher has only attended four visits with Appellant in eight months. (T. at 22). Christopher was supposed to be visiting weekly, but only attended about once a month. (T. at 22). {¶ 20} In its Findings of Facts and Conclusions of Law the trial court found that appellant "denies any physical abuse of her children and alleges that they have lied about this because they are angry at her. She went on to indicate that she is not responsible for their anger and it has been caused by their father. [Appellant] demonstrates almost no insight into her own responsibility for the removal of her children on any occasion . . . When asked to indicate the problems that resulted in their removal of her children, she indicated that she had trouble keeping the house clean and she had difficulty communicating with her children. . . . [appellant] completely fails to acknowledge the severe emotional difficulties that she has imposed upon these children and shows no signs of now being able to handle or correct these problems." Judgment Entry, filed June 5, 2006. {¶ 21} It is from that judgment entry, appellant-mother appeals, raising the following assignments of error: {¶ 22} "I. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY, INSTEAD OF PLANNED PERMANENT LIVING ARRANGEMENT, WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. (Appendix at A-4). {¶ 23} "II. THE JUDGMENT OF THE TRIAL COURT THAT THE CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. (Appendix at A-3). {¶ 24} "III. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT THE TUSCARAWAS COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES PUT FORTH GOOD FAITH AND DILIGENT EFFORTS TO REHABILITATE THE FAMILY SITUATION (Appendix at A-3)." I. {¶ 25} In her first assignment of error appellant argues that the court should have considered a planned permanent living arrangement instead of permanent custody. We disagree. {¶ 26} "R.C. 2151.353(A) (5) is unambiguous and does not authorize the trial court to consider a planned permanent living arrangement unless the children services agency has filed a motion requesting such a disposition. Accordingly, we hold that after a public children services agency or private child placing agency is granted temporary custody of a child and files a motion for permanent custody, a juvenile court does not have the authority to place the child in a planned permanent living arrangement when the agency does not request this disposition".In re A.B., 110 Ohio St. 3d 230, 2006-Ohio-4359 at ¶ 37. {¶ 27} In the case at bar, TCJFS did not request a planned permanent living arrangement. Accordingly the juvenile court did not have the authority to place the child in a planned permanent living arrangement. {¶ 28} Appellant's first assignment of error is overruled. II. {¶ 29} Herein, mother asserts the trial court erred in finding that the children could not or should not be placed with appellant within a reasonable time was against the manifest weight and sufficiency of the evidence. Appellant does not contest the trial court's decision that permanent custody was in the best interests of the children. {¶ 30} As an appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment.Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA-5758. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction (1978),54 Ohio St. 2d 279. {¶ 31} R.C. 2151.414 sets forth the guidelines a trial court must follow when deciding a motion for permanent custody. R.C.2151.414(A)(1) mandates the trial court must schedule a hearing, and provide notice, upon filing of a motion for permanent custody of a child by a public children services agency or private child placing agency that has temporary custody of the child or has placed the child in long-term foster care. {¶ 32} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to grant permanent custody of the child to the public or private agency if the court determines, by clear and convincing evidence, it is in the best interest of the child to grant permanent custody to the agency, and that any of the following apply: (a) the child is not abandoned or orphaned, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents; (b) the child is abandoned and the parents cannot be located; (c) the child is orphaned and there are no relatives of the child who are able to take permanent custody; or (d) the child has been in the temporary custody of one or more public children services agencies or private child placement agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999. {¶ 33} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial court must apply when ruling on a motion for permanent custody. In practice, the trial court will usually determine whether one of the four circumstances delineated in R.C. 2151.414(B) (1) (a) through (d) is present before proceeding to a determination regarding the best interest of the child. {¶ 34} If the child is not abandoned or orphaned, then the focus turns to whether the child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all relevant evidence before making this determination. The trial court is required to enter such a finding if it determines, by clear and convincing evidence, that one or more of the factors enumerated in R.C. 2151.414(E) (1) through (16) exist with respect to each of the child's parents. {¶ 35} R.C. 2151.414(E) sets forth factors a trial court is to consider in determining whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. Specifically, Section (E) provides, in pertinent part, as follows: {¶ 36} "(E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 * * * of the Revised Code whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 * * * of the Revised Code that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent: {¶ 37} "(1) Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties." "* * * {¶ 38} "(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child" {¶ 39} While evidence was adduced that mother has made progress toward the completion of her case plan services, evidence was also presented that she has failed to alleviate the conditions which led to the placement of the children with the agency. {¶ 40} The trial court determined Christopher and Shawn could not or should not be placed with mother at this time or within a reasonable period of time. The trial court specifically found the Agency established by clear and convincing evidence following the removal of the minor children from mother's home, mother failed continuously and repeatedly to substantially remedy the conditions which led to the removal. The trial court found an inability and/or unwillingness on mother's part to acknowledge the severe emotional difficulties that she has imposed upon the children and shows no signs of now being able to handle or correct these problems. {¶ 41} The evidence adduced at the hearing established that appellant-mother failed to attend counseling for a six month period during 2005-2006. (T. at 8-9). Appellant-mother minimized her own responsibility for the emotional problems of the children. In spite of the fact that the children have been in appellant-mother's custody substantially longer than they were in the custody of their father, appellant-mother believes that the father is primarily and almost exclusively responsible for the children's behavior and their removal from her home. (T. at 11-12; 14; 18; 20; 24; 25). The family has an extensive history with Children Services Agencies in Ohio, Indiana and Kentucky. (Id. at 12-13). Appellant-mother claimed that she was completely unaware prior to the date of the hearing that the children had alleged that she was abusive toward them. (Id. at 14). Beth Bertini appellant-mother's case manager testified that she had spoken with appellant-mother six to eight times about the children's reports of physical abuse. (T. at 67). Appellant-mother characterizes her problems with the children as resulting from her lack of self-esteem and poor communication skills. (Id. at 17; 18; 121; 126; 128-29). Although she claims she is dealing with issues of abuse and neglect, appellant-mother's counselor's reports contained in the trial court's file indicate that she has not addressed those issues. (Id. at 18; 26). {¶ 42} Testimony at the hearing clearly established that Christopher does not want any contact with his mother and would prefer permanent custody to be granted. (T. at 38-39; 65-66; 76). {¶ 43} Upon a review of the evidence in light of the above statutory factors, we find the record contains clear and convincing evidence to support the trial court's determination. Accordingly, the trial court did not err when it determined the children could not be placed with appellant within a reasonable time or should not be placed with appellant. {¶ 44} Appellant's second assignment of error is overruled. III. {¶ 45} In her third assignment of error appellant urges the trial court erred in finding that the Tuscarawas County Department of Job and Family Services met its reasonable efforts burden. Specifically, appellant maintains that the Agency was required to add family counseling to the case plan and that Christopher was not told that he had to attend visits with appellant-mother. {¶ 46} Pursuant to R.C. 2151.419, the agency which removed the child from the home must have made reasonable efforts to prevent the removal of the child from the child's home, eliminate the continued removal of the child from the home, or make it possible for the child to return home safely. The statute assigns the burden of proof to the agency to demonstrate it has made reasonable efforts. {¶ 47} Appellee devised a comprehensive reunification plan to assist appellant in remedying the problems which caused the children to be removed. The case plan addressed various issues including housing, counseling, and assistance with parenting and life skills. The court found the agency had made all reasonable diligent efforts and had worked with the family for an extensive period of time with no significant improvement. {¶ 48} When a trial court is considering whether the agency made reasonable efforts to prevent the removal, the issue is not whether the agency could have done more, but whether it did enough to satisfy the reasonableness standard under the statute.In re Brewer (Feb. 12, 1996), Belmont App. No. 94-B-28,1996 WL 65939, at 3; In re Davidson-Rush, 5th Dist. No. 2006 CA 00121,2006-Ohio-4873 at ¶ 50. "In determining whether reasonable efforts were made, the child's health and safety shall be paramount." R.C. 2151.419(A) (1). {¶ 49} We have reviewed the record, and we find it is replete with evidence, that while the mother has made improvement and worked to complete the majority of her case plan, the parties made no progress to alleviate the core concerns in spite of the agency's reasonable efforts to reunify the family. {¶ 50} The third assignment of error is overruled. {¶ 51} The Judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division is affirmed. By Gwin, P.J., Hoffman, J., and Farmer, J., concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the Judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division is affirmed. Costs to appellant.

2016-07-06 06:36:38.762173+00

OPINION AND JUDGMENT ENTRY This case is before the court on appeal from the Lucas County Court of Common Pleas' judgment of conviction and imposition of sentence of appellant, Darrell Stewart, following pleas of no contest to two counts of assault on a police officer, a violation of R.C. 2903.13(A) and (C)(3). Appellant sets forth the following assignments of error: "First Assignment of Error "THE TRIAL COURT ERRED IN ACCEPTING WITHOUT INQUIRY DEFENDANT-APPELLANT'S PLEA OF `NO CONTEST' WHEN THE RECORD AFFIRMATIVELY DEMONSTRATES THAT HE TOLD THE COURT HE WAS THREATENED OR PROMISED SOMETHING IN RETURN FOR HIS PLEA." "Second Assignment of Error "A CRIMINAL DEFENSE ATTORNEY FAILS TO PROVIDE CONSTITUTIONALLY EFFECTIVE ASSISTANCE TO HIS CLIENT WHEN HE DOES NOT OBJECT TO A `NO CONTEST' PLEA ENTERED AFTER THE CLIENT WAS THREATENED OR PROMISED SOMETHING IN RETURN FOR THE PLEA." Under his first assignment of error, appellant maintains that his no contest plea should not have been accepted because he informed the court that he had been threatened or promised something in return for his plea. During the plea colloquy, the trial court first asked appellant: "THE COURT: Has anyone promised you anything, threatened you in any way in order to get you to enter these pleas? "THE DEFENDANT: No, sir. The trial court then explained the nature of a no contest plea and that appellant was waiving the presumption of innocence, the right to a jury trial, the right to present and cross-examine witnesses, and the right to remain silent at trial. The court then reiterated that appellant was withdrawing his plea of not guilty to each count and entering pleas of no contest; appellant responded affirmatively. The following colloquy took place: "THE COURT: Has anyone threatened or promised you anything in order to get you to enter these pleas? "THE DEFENDANT: Yes, sir. "THE COURT: In so pleading you waive and give up each of the rights we have gone over? "THE DEFENDANT: Yes, sir. "THE COURT: Okay, Mr. Stewart, did you review this written plea of no contest with your lawyer before you signed it? "THE DEFENDANT: Yes, sir. "THE COURT: And you understood what was contained in that? "THE DEFENDANT: Yes, sir. "THE COURT: You signed this of your own free will without threats or promises? "THE DEFENDANT: Yes, sir." Crim.R. 11(C) (2) governs the acceptance of a no contest plea in felony cases and provides in relevant part: "In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such a plea without first addressing the defendant personally and: "(a) Determining that he is making the plea voluntarily, with the understanding of the nature of the charge and the maximum penalty involved, and, if applicable, that he is not eligible for probation." The purpose of Crim.R. 11(C) is to aid in the determination of the voluntariness of a defendant's plea. State v. Nero (1990),56 Ohio St. 3d 106, 107. Literal compliance with the rule is preferred; however, vacation of a plea is not required where the reviewing court determines there has been substantial compliance. Id. at 108, citing State v. Stewart (1977), 51 Ohio St. 2d 86, 92-93. "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." Id. This court has carefully reviewed the transcript of the plea proceedings herein. The record reflects that the trial court explained all the constitutional rights appellant was entitled to as required by Crim.R. 11. Appellant read and signed a no contest plea form. While appellant did respond affirmatively when asked whether he was induced to enter into the plea by threats or promises, he was asked the question both prior to and again after the positive response and each time responded that the pleas were not the result of threats or promises. Further, the entire colloquy between the trial court and appellant, absent the isolated response, demonstrates that appellant wished to enter the pleas. Thus, we find that under the totality of the circumstances appellant understood the nature of the pleas and entered them knowingly and voluntarily. Accordingly, appellant's first assignment of error is not well-taken. Appellant's second assignment of error claims that appellant's trial counsel was ineffective because counsel also failed to seek an elaboration of appellant's response to the question regarding threats or promises. Because we find that appellant entered the pleas knowingly and voluntarily, we find that appellant's second assignment of error is not well-taken. On consideration whereof, we find that appellant was not prejudiced or prevented from having a fair proceeding, and the judgment of the Lucas County Court of Common Pleas is affirmed. It is ordered that appellant pay court costs of this appeal. 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. _______________________________ Melvin L. Resnick, J. JUDGE _______________________________ Richard W. Knepper, J. JUDGE _______________________________ Mark L. Pietrykowski, J. JUDGE CONCUR.

2016-07-06 06:36:38.822173+00

OPINION Defendant-Appellant, David Ihle, brings this appeal from a decision of the Court of Common Pleas of Auglaize County adjudicating him to be a sexual predator within the meaning of R.C. 2950. Finding no merit to Appellant's arguments herein, we affirm the trial court decision. In May 1994, the Auglaize County Grand Jury returned a multi-count indictment for events occurring between Appellant and a minor child for the period of December 1989 to February 1994. The indictment contained two counts of rape; two counts of felonious sexual penetration and five counts of gross sexual imposition. Appellant initially pled not guilty to all nine counts and the matter was set for a jury trial. However, on July 28, 1994, a negotiated plea agreement was filed wherein Appellant withdrew his prior plea and agreed to plead guilty to an amended charge of rape and an amended charge of felonious sexual penetration. In exchange for Appellant's plea, the State of Ohio agreed to nolle prosequi the remaining counts. The court entered judgment on the same day accepting the agreement and Appellant's guilty plea. Sentencing was continued to allow for the preparation of a presentence investigation report, a psychological evaluation and a victim impact statement. The court then entered judgment on September 29, 1994 sentencing Appellant to serve consecutive prison terms of ten to twenty years on both felony convictions. Thereafter, the Department of Rehabilitation and Corrections recommended that the court adjudicate Appellant as a sexual predator. The court set the matter for a hearing and, upon Appellant's request, ordered another psychological evaluation in order to address the specific issue of whether Appellant should be considered a sexual predator under Ohio law. Following a December 17, 1999 hearing, the court found Appellant to be a sexual predator. This appeal followed. Assignment of Error I The trial court erred, in violation of the ex post facto clause of the United States Constitution, in finding Defendant-Appellant to be a sexual predator. We find Appellant's first assignment of error to be without merit on the authority of State v. Cook (1998), 83 Ohio St. 3d 404, wherein the Supreme Court of Ohio held that the registration and notification provisions of R.C. Chapter 2950, as applied to conduct occurring prior to the effective date of the law, do not violate the Ex Post Facto Clause of the United States Constitution. In addressing this precise issue, this court has repeatedly adhered to Supreme Court precedent. See, e.g. State v. Fontes (Nov. 11, 1998), Union App. No. 14-97-45, unreported; State v. Cady (Nov. 5, 1998), Crawford App. No. 3-98-14, unreported; State v. Leppla (April 13, 2000), Auglaize App. No. 2-99-48, unreported. Accordingly, Appellant's first assignment of error is overruled. Assignment of Error II The trial court erred, in violation of the cruel and unusual punishment clauses of the Eighth Amendment to the United States Constitution and Section 9, Article 1 of the Ohio Constitution, in finding Defendant-Appellant to be a sexual predator. The Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution proscribe the infliction of cruel and unusual punishment. In Cook, the Ohio Supreme Court ruled that the registration and notification provisions of R.C. 2950 could not be considered punishment. Cook, 83 Ohio St.3d at 423. Rather, these provisions were found to be remedial in nature, designed to ensure public safety. Id. In the absence of any type of punishment, it is clear then that the constitutional provisions relied upon by Appellant herein are not implicated. See State v. Harter (Mar. 15, 2000), Auglaize App. No. 2-99-46, unreported; State v. Leppla (April 13, 2000), Auglaize App. No. 2-99-48, unreported. Thus, Appellant's second assignment of error is not well-taken. Assignment of Error III The trial court erred, in violation of the double jeopardy clauses of the Fifth and Fourteenth amendments to the United States Constitution and Section 10, Article 1 of the Ohio Constitution, in finding Defendant-Appellant to be a sexual predator. As we have already stated, the Cook court found that Ohio's sexual predator act cannot be characterized as punitive in nature. Cook, 83 Ohio St.3d at 423. The double jeopardy clauses contained in both the United States and Ohio constitutions prohibit multiple punishments for the same offense. Consequently, since Appellant has not been punished by the sexual predator adjudication, he has not been subjected to double jeopardy. See Harter, supra. Therefore, Appellant's third assignment of error is overruled. Assignment of Error IV R.C. Chapter 2950, as amended by H.B. 180, provides no guidance as to how the factors in R.C. 2950.09(B)(2) are to be considered and weighed, rendering the law vague, in violation of the due process clauses of the Fourteenth Amendment to the United States Constitution and Section 16, Article 1 of the Ohio Constitution. Although Appellant implores us to strike Ohio's sexual predator law as unconstitutionally vague, we must point out that this court has repeatedly held otherwise. See State v. Avery (1998), 126 Ohio App. 3d 36; State v. James (Dec. 8, 1999), Hardin App. No. 6-99-5, unreported; State v. Norman (Feb. 1, 2000), Auglaize App. No. 2-99-37, unreported; State v. Harter (Mar. 15, 2000), Auglaize App. No. 2-99-46, unreported. Thus, on the authority previously issued by this court, Appellant's fourth assignment of error is overruled. Assignment of Error V The trial court erred, in violation of Section 1, Article 1 of the Ohio Constitution, in finding Defendant-Appellant to be a sexual predator, because Ohio's sexual predator law is an invalid exercise of the police power and deprives individuals of their inalienable and natural-law rights. In this assignment of error, Appellant urges this court to adopt the reasoning set forth by the Eleventh District Court of Appeals in State v. Williams (Jan. 29, 1999), Lake App. No. 97-L-191, unreported, discretionary appeal allowed (1999), 86 Ohio St. 3d 1406, wherein the court held that R.C. Chapter 2950 is an invalid use of the state's police power due to the unduly oppressive nature of the registration and notification provisions contained in the law. This court has consistently rejected the Williams reasoning by finding that Ohio's sexual predator law is constitutional in this respect. See, e.g., State v. Marker (Sept. 1, 1999), Seneca App. No. 13-99-05, unreported; State v. Joyce (Sept. 2, 1999), Allen App. No. 1-99-31, unreported; State v. Fisher (Sept. 2, 1999), Allen App. No. 1-99-23, unreported; State v. Kinkle (Oct. 28, 1999), Allen App. No. 1-99-55, unreported. Appellant's fifth assignment of error is overruled. Assignment of Error VI The evidence adduced at trial by the State of Ohio failed to prove, by clear and convincing evidence, that the Defendant-Appellant is likely to engage in the future in one or more sexually oriented offenses, thus, rendering the court's decision against the manifest weight of the evidence. 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." R.C. 2950.09(B)(2) sets forth several factors that a court should consider when deciding an offender's sexual predator status. These factors are as follows: (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 * * *; (d) Whether the sexually oriented offense * * * 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 * * * 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. After reviewing these factors, along with all testimony and evidence presented at the hearing, the trial court "shall determine by clear and convincing evidence whether the offender is a sexual predator." R.C. 2950.09(C)(2). It is well established that clear and convincing evidence is: [T]hat measure or degree of proof which is more than a mere `preponderance of the evidence', but not to the extent of such certainty as is required `beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. State v. Schiebel (1990), 55 Ohio St. 3d 71, 74, citing Cross v. Ledford (1954), 161 Ohio St. 469. In reviewing a decision purportedly founded upon this degree of proof, this court must examine the record to determine whether sufficient evidence exists to satisfy the clear and convincing standard. Schiebel, 55 Ohio St.3d at 74. In the instant matter, Appellant does not dispute that he has pled guilty to committing sexually oriented offenses. In contrast, Appellant asserts that the evidence does not establish, by clear and convincing evidence, that he is likely to commit future sexually oriented offenses. We are not convinced. The facts of this case revolve around Appellant's conduct with a then four-year-old child named Amanda. After local law enforcement and children's services agencies began to investigate Appellant's behavior, Appellant admitted to masturbating on the child many times; rubbing her vaginal area with his fingers and his genitals; and engaging in cunnilingus on more than one occasion. In a 1994 psychological report, Appellant appeared to have no remorse, stating that he loved Amanda and, in his opinion, never hurt her. A victim impact statement, however, indicates that the child has been severely traumatized by the abuse, evidenced by the fact that she rarely speaks above a whisper. The 1994 report also indicates that Appellant, then twenty-four-years-old, displays perverted sexual behavior and that he has "extremely distorted sexual values and attitudes" and "pedophilic interests." In addition to his conduct with the child victim in this case, Appellant also admitted to the psychological examiner that he cannot get enough sex and that because of these feelings, he has engaged in deviant acts such as incest and bestiality with several different types of animals, including dogs, chickens and cows. At one point, Appellant stated that he would not want to have children because he would most likely abuse them in the same manner as Amanda. At the conclusion of the report, the examiner recommended that Appellant participate in several years of sex offender treatment. Notwithstanding this directive, Appellant testified at the hearing that he has not undergone counseling or treatment specific to sexual disorders. In fact, without presenting any evidence to rebut the information contained in the record, Appellant vehemently denied that he ever touched the young victim and stated that he only admitted to it because the detectives and his lawyer forced him to. In the face of the foregoing, we conclude that clear and convincing evidence exists to support the trial court's finding that Appellant will likely engage in future sexually oriented offenses. Appellant's sixth assignment of error is therefore overruled. Having found no error prejudicial to the Appellant herein, in the particulars assigned and argued, the judgment of the trial court is hereby affirmed. Judgment affirmed. ______________________________ WALTERS, PRESIDING JUDGE HADLEY, P.J., and SHAW, J., concur.

2016-07-06 06:36:38.923374+00

OPINION Defendant-appellant [hereinafter appellant] Roy R. Enyart, Jr. appeals his conviction and sentence by the Fairfield County Court of Common Pleas on one count of involuntary manslaughter, in violation of R.C. 2903.04. The appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE At approximately 2:00 A.M., on December 28, 1997, appellant was involved in an automobile accident in which appellant was the driver of a 1994 Ford Explorer. In addition to appellant, the vehicle was occupied by Julie Roberts, Robert Vance, John Bryant and Kendra Prince. Appellant was driving on Diley Road, in Fairfield County. Appellant was speeding and/or street racing. In so doing, appellant drove on the left side of the road (the passing lane) and while attempting to return to the right lane, lost control of his vehicle and drove off the roadway. This caused the vehicle to become airborne. The Ford Explorer rolled an undetermined number of times and resulted in the death of Julie Roberts. A second vehicle operated by Eric Roberts was in close proximity to appellant's vehicle immediately prior to the accident and may have had some involvement with the accident. However, the record contains no evidence as to how Eric Roberts' vehicle may have been involved. Appellant was life flighted from the scene. Upon arriving at the hospital, blood was obtained from appellant for medical purposes. Tests conducted by the hospital showed a blood alcohol level of .181. However, because the hospital had a policy of discarding blood spcimens seven days after the specimen was obtained, appellant's blood specimen was discarded, pursuant to that policy, within seven days. As a result of the accident, appellant sustained serious head and back injuries, resulting in complete paralysis from the waist down. The 1994 Ford Explorer was totaled, disposed of and no longer available for inspection as of February 5, 1998, (approximately 39 days after the accident). Testimony showed that this was not the first accident in which the 1994 Ford Explorer had been involved. In September, 1997, the Explorer was involved in a minor accident which resulted in breakage of the left front axle and tire damage. The vehicle was repaired using "State Farm Insurance Co. Quality Recycled Parts." Appellant believed that the vehicle did not drive the same after the repairs. Sergeant Darnell Robson of the Pickerington Police Department investigated the accident. Sergeant Robson testified that his investigation showed that the accident was caused by appellant's speeding, driving left of center, possibly drag racing with another vehicle and the appellant's consumption of alcohol. Sergeant Robson testified that part of the road where the accident happened had been repaved after the accident, sometime in the summer of 1998. Subsequently, on October 29, 1998, appellant was subjected to questioning during a deposition in a civil wrongful death suit which was filed against him as a result of Ms. Roberts' death. Appellant claimed that prior to any questioning, he was not advised that anything he said during the deposition could be used against him at a criminal trial. Appellant was indicted on February 26, 1999, approximately 14 months after the accident. The indictment charged appellant with one count of involuntary manslaughter, a felony of the third degree, in violation of R.C. 2903.04 and one count of aggravated vehicular homicide, a felony of the third degree, in violation of R.C.2903.06. Both counts in the indictment alleged that appellant was under the influence of alcohol at the time of the offense. At the arraignment, appellant pled not guilty to both charges. On April 22, 1999, appellant filed a Motion to Dismiss the Indictment, claiming that the State, through an unreasonable pre-indictment delay, had violated appellant's rights to due process of law under Section 16, Article I, of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. An oral hearing was held on appellant's Motion to Dismiss on June 18, 1999. On July 27, 1999, the trial court overruled appellant's Motion to Dismiss. Thereafter, on March 13, 2000, appellant entered a plea of no contest to an amended charge of involuntary manslaughter, without the DUI specification. The remaining charges were dismissed by the trial court upon a motion of the State. A sentencing hearing was held on April 17, 2000. Appellant was sentenced to three years actual incarceration, fined $1,000.00, assessed the costs of the case, and was ordered to pay restitution for hospital bills, funeral bills and loss of jewelry to the family of the deceased victim. The trial court suspended the execution of sentence pending appeal. Appellant appeals from his conviction and sentence and herein, raising the following assignments of error: I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO DISMISS HIS INDICTMENT BASED ON THE STATE'S VIOLATION OF DEFENDANT'S RIGHT OF DUE PROCESS OF LAW UNDER SECTION 16, ARTICLE I, OF THE OHIO CONSTITUTION, AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. II. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT. I In appellant's first assignment of error, appellant argues that his due process rights, pursuant to Article I, Section 16 of the Ohio Constitution and the Fifth and Fourteenth Amendments of the United States Constitution, were violated by a fourteen month pre-indictment, pre-accusation delay. We disagree. Initially, we note that statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide "`the primary guarantee, against bringing overly stale criminal charges.'" United States v. Marion (1971),404 U.S. 307, 322, 92 S. Ct. 455, 464, 30 L. Ed. 2d 468 (quoting United States v. Ewell (1966), 383 U.S. 116, 122, 86 S. Ct. 773, 777,15 L. Ed. 2d 627). However, the "statute of limitations does not fully define a defendant's rights with respect to events occurring prior to indictment." Marion, 404 U.S. at 324. The Due Process Clause has a limited role to play in protecting against oppressive pre-indictment delay. U.S. v. Lovasco (1977), 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752. In U.S. v. Lovasco, supra, the United States Supreme Court set forth a two-part test to determine if a pre-indictment delay constituted a due process violation. Under the Lovasco analysis, a defendant has the burden of establishing that the delay resulted in actual prejudice to the defendant. Once the defendant has established actual prejudice, the burden shifts to the State to justify the delay. State v. Whitting (1998), 84 Ohio St. 3d 215. When reviewing a trial court's decision regarding a motion to dismiss an indictment based upon a pre-indictment delay, a reviewing court must accord due deference to the trial court's findings of fact, but may freely review the trial court's application of the law to the facts. State v. Cochenour (March 8, 1999), Ross App. No. 98CA2440, unreported (citing State v. Metz (Apr. 21, 1998), Washington App. No. 96CA48, unreported). It is under this standard of review that we consider appellant's assignment of error. To succeed, the defendant must establish actual prejudice, i.e., prejudice may not be presumed from the passing of time. See Metz, supra, (citing United States v. Crouch (C.A.5, 1996), 84 F.3d 1497, 1514-15). A general assertion that a defendant cannot remember the events of the alleged crime has been held to be insufficient to demonstrate actual prejudice. Metz, supra; State v. Glasper (Feb. 2, 1997), Montgomery App. No. 15740, unreported. As the court noted in State v. Flickinger (Jan. 19, 1999), Athens App. No. 98CA09, unreported: [T]he federal courts of appeal appear to agree that a defendant must provide concrete proof that he will suffer actual prejudice at trial as a result of the government's delay in indicting the defendant. See, e.g., Crouch, 84 F.3d at 1515 (stating that vague assertions of faded memories are insufficient to establish actual prejudice; the defendant must state which witness is unable to fully recount the details of the crime and how the witness's lapsed memory will prejudice the defense); United States v. Beszborn (C.A.5, 1994), 21 F.3d 62,67, certiorari denied sub nom; Westmoreland v. United States, 513 U.S. 934,115 S. Ct. 330, 130 L. Ed. 2d 288 (stating that vague assertions of faded memories are insufficient to establish actual prejudice); United States v. Stierwalt (C.A.8, 1994), 16 F.3d 282, 285 (stating that assertions of faded memories are insufficient to establish actual prejudice when the defendant fails to specify how witness's lapsed memory will harm his defense); United States v. Harrison (S.D.N.Y. 1991), 764 F. Supp. 29, 32 (stating that assertion of faded memories is insufficient to establish actual prejudice); United States v. Greer (D.Vt. 1997), 956 F. Supp. 525,528 (stating that a defendant must present concrete proof of actual prejudice and not mere speculation of actual prejudice). The defendant must also show that the actual prejudice was caused by the delay. Appellant contends that he met his burden to show that actual prejudice was caused by the State's fourteen month delay in indictment. In his Merit Brief, appellant argues that he suffered actual prejudice in the following ways: A. Unavailability of vehicles: Appellant argues that he was prevented from performing inspections or testing of the motor vehicles involved in the accident to determine the actual cause of the accident. Appellant presented no evidence as how the other vehicle may have been involved. Likewise, appellant failed to present any evidence to support his conjecture that a mechanical problem may have caused the accident. While evidence and stipulations entered at the hearing demonstrated that another vehicle "may have been involved" and that appellant's car had been repaired prior to the accident, appellant presented no concrete evidence that these factors were materially involved in the accident. B. Diley Road Appellant alleges that he was prejudiced because the portion of Diley Road on which the accident occurred was re-paved after the accident. Due to these modifications, appellant asserts that he was prevented from hiring an expert to conduct an accident reconstruction. Sergeant Darrell Robson, of the Pikerington Police Department confirmed that the surface of southbound lane of the road was re-paved sometime in the summer of 1998. However, Sergeant Robson testified that the general conditions of the road were the same at the time of the hearing as at the time of the accident. Other than the re-paving, no changes were made to the road dimensions. Further, appellant presented no evidence as to how the surface of the road may have had an impact on the events which lead to the accident. We find appellant's arguments to be speculative and to lack proof of actual prejudice. C. Blood/Serum Tests Appellant alleges that he suffered prejudice because he was prevented from performing independent testing of his blood/serum which was obtained by the hospital on the date of the accident. By stipulation, the State agreed that appellant's blood/serum specimen was disposed of seven days after it was drawn, pursuant to hospital policy. First, appellant has made no showing that an independent test would have resulted in a significantly different outcome. Further, we cannot find that the inability to perform an independent test was caused by the State's delay in bringing the indictment. It would be unreasonable to require the State to bring an indictment in less than seven days after such an accident. Therefore, we find no showing of actual prejudice, caused by the State's unreasonable delay in bringing an indictment. D. Civil Deposition Appellant argues that he was prevented from exercising his right to remain silent at any subsequent criminal trial when he testified at a civil deposition regarding the accident without first being made aware of his Fifth Amendment right to remain silent. First we note that, at the hearing on his Motion to Dismiss, appellant testified that he has no memory of what happened from after 3:00 P.M. the afternoon before the accident until after the accident. Second, there is no evidence in the record as to what appellant testified to at the deposition. Since appellant testified that he has no memory of the events leading up to the accident and appellant failed to present the transcript or even a summary of any prejudicial testimony he may have given at the deposition, this court finds no showing of actual prejudice. E. Faded Memories Appellant contends that he was denied the ability to present an effective defense due to the inability of witnesses to remember specific details of the accident and the events leading up to the accident. Appellant claims that "the passage of time has affected [the witnesses] ability to recall specific details of the automobile accident and [appellant's] alcohol consumption". Appellant's Merit Brief. However, appellant cites this court to no specific testimony of any witness which supports his argument. However, we find we need not address each witness' testimony individually. At the hearing, appellant failed to present any evidence as to what these witnesses could have testified to had the delay not occurred. As noted previously, a general assertion that a party cannot remember the events of the alleged crime has been held to be insufficient to demonstrate actual prejudice. Metz, supra; State v. Glasper (Feb. 2, 1997), Montgomery App. No. 15740, unreported. Assertions of faded memories are insufficient to establish actual prejudice if the defendant fails to specify how the witness' lapsed memory will harm his defense. United States v. Stierwalt (C.A.8, 1994), 16 F.3d 282, 285. Therefore, we find appellant has failed to show actual prejudice. F. Unavailability of Witness Appellant asserts that he is unable to present an alternative theory of the accident at trial because of the delay in indictment. Appellant claims that in order to present such a theory, he requires the testimony of a "key witness," Eric Roberts. Appellant argues that the testimony showed that Roberts moved to Chicago, Illinois, in the early part of June, 1999, and is not subject to subpoena power. For the following reasons, we find that appellant's argument fails. Again we note that appellant has failed to present any evidence as to what this witness could have testified to in aid of the defense. Further, as noted by the trial court, Roberts is subject to subpoena power, pursuant to R.C. 2939.25 through 2939.29. Lastly, we note that there is no evidence that Roberts is unwilling to return upon being subpoenaed or that he will not be able to be found to be served. Robert's father testified that he knew of no reason why his son would not return to testify and that he could provide his son's address and phone number. Again, appellant has failed to show actual prejudice. In conclusion, we find that appellant has failed to show actual prejudice which was caused by the State's pre-indictment delay. Therefore, the burden was not shifted to the State to require the State to show that the pre-indictment delay was reasonable. Therefore, this court shall not address the second prong of the Lovasco analysis, i.e. the reasonableness of the delay. Appellant also argues that the trial court erred when it stated in its Judgment Entry that "[f]or the Defendant to be successful, the Defendant must establish actual prejudice was done to the Defendant by an act of the State." (Emphasis added.) First, we note that in the introductory portion of the Judgment Entry, the trial court accurately states the law as established in Marion, supra, Lovasco, supra and Whiting, supra, to wit: "[t]he Defendant has a burden of producing evidence demonstrating that the pre-indictment delay [inaction by State] has caused actual prejudice to his defense." Second, we find, based upon our analysis above, that even if we assume arguendo that the trial court erroneously or inartfully re-stated the law in its analysis, the trial court correctly found that appellant failed to demonstrate that the State's delay in indictment caused actual prejudice to appellant's defense. We find any such error is harmless. Appellant's first assignment of error is overruled. II In the second assignment of error, appellant argues that the trial court's sentence of three years incarceration and restitution was an abuse of discretion and contrary to law. Defendant was convicted of one count of involuntary manslaughter, a felony of the third degree. Appellant was sentenced to three years of actual incarceration and ordered to pay restitution to the victim's family for the hospital bills, funeral bills and loss of jewelry. A. Incarceration For third degree felony convictions, R.C. 2929.13(C) provides that there is no presumption in favor of or against the imposition of a prison sentence. In determining a sentence for a third degree felony, the trial court is to comply with the purposes and principles of sentencing as stated in R.C. 2929.11 and consider the seriousness and recidivism factors delineated in R.C. 2929.12. Once a trial court determines that a term of incarceration is necessary, the court may impose a sentence of 1, 2, 3, 4 or 5 years of actual incarceration. However, when a trial court imposes a prison sentence upon an offender who has not served a prison term previously, the trial court is to 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 crimes by the offender or others." R.C. 2929.14(B). Revised Code 2953.08 directs this court to modify or vacate a sentence if we clearly and convincingly, find, inter alia, that the record does not support the sentence or if it is contrary to law. The statute directs us to review the record, including pre-sentence reports, the trial record, the record of the sentencing hearing, and any written findings the trial court may have made. It is pursuant to this standard of review that we consider appellant's assignment of error. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and to punish the offender. R.C. 2929.11. The following factors are to be considered in determining the seriousness and likelihood of recidivism: (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: (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. (2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense. (3) The offender held a public office or position of trust in the community, and the offense related to that office or position. (4) The offender's occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice. (5) The offender's professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others. (6) The offender's relationship with the victim facilitated the offense. (7) The offender committed the offense for hire or as a part of an organized criminal activity. (8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion. (9) If the offense is a violation of section 2919.25 or a violation of section 2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family or household member at the time of the violation, the offender committed the offense in the vicinity of one or more children who are not victims of the offense, and the offender or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of one or more of those children. (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: (1) The victim induced or facilitated the offense. (2) In committing the offense, the offender acted under strong provocation. (3) In committing the offense, the offender did not cause or expect to cause physical harm to any person or property. (4) There are substantial grounds to mitigate the offender's conduct, although the grounds are not enough to constitute a defense. (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: (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. (2) The offender previously was adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code, or the offender has a history of criminal convictions. (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, or the offender has not responded favorably to sanctions previously imposed for criminal convictions. (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. (5) The offender shows no genuine remorse for the offense. (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: (1) Prior to committing the offense, the offender had not been adjudicated a delinquent child. (2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense. (3) Prior to committing the offense, the offender had led a law-abiding life for a significant number of years. (4) The offense was committed under circumstances not likely to recur. (5) The offender shows genuine remorse for the offense. R.C. 2929.12 Specifically, appellant claims that the trial court failed to properly weigh the factors presented in R.C. 2929.12(B), (C), (D) (E). Appellant argues that the trial court conceded that appellant was highly unlikely to commit this crime in the future, that appellant did not expect to cause physical harm to anyone, that there are substantial grounds to mitigate appellant's conduct, that appellant has no prior record and that appellant is extremely remorseful. Appellant submits that he has been punished enough. The trial court's Judgment Entry stated the following, in relevant part: The Court has considered the record, oral statements, any victim impact statements, and presentence report prepared, as well as the principles and purposes of sentencing under Ohio Revised Code [Sec.]2929.11, and has balanced the seriousness and recidivism factors of Ohio Revised Code [Sec.] 2929.12. . . . For the reasons stated on the record, and after consideration of the factors under Revised Code [Sec.]2929.12, the Court also finds that prison is consistent with the purposes of Revised Code [Sec.] 2929.11 and the Defendant is not amenable to an available community control sanction. Specifically, the Court finds: 1. The parents and family of Julie Roberts have suffered serious psychological and economic harm as a result of the offense. [Sec.]2929.12(B)92). 2. The victim, Julie Roberts, died, thereby suffering serious physical harm. [Sec.] 2929.12(B)(2). 3. The Defendant's professional reputation is likely to influence the future conduct of others. [Sec.] 2929.12(B)(5). 4. The Defendant's friendship with Julie Roberts facilitated the offense as she probably trusted him based on prior behavior. [Sec.] 2929.12(B)(6). It is further submitted that none of the factors under [Sec.]2929.12(C) apply to characteristics [sic] this offense as less serious. The trial court provided additional insight into its consideration of the factors of R.C. 2929.12 during the sentencing hearing: The overriding guideline under the sentencing code is — the overriding purpose is to punish offenders and protect the public from future crime. And there's a list of factors that you go through, which has been outlined by counsel. And under 2929.12(B), there's what we call more serious factors. And in this particular case, obviously, the serious factor in this case was that the victim, Julie Roberts, died. Obviously, she suffered serious physical harm, and that this act caused serious psychological damage to the members of her family. There's just no question about that. So the Court would make that finding of a more serious factor. The Court doesn't find that there's any recidivism likely in this case because the Defendant has no previous criminal record and it's not likely that this offense would be committed again. . . . Felonies of the third degree, which we have there, are in the middle, in which the law does not provide for a presumption one way or the other. So the Court has to look at these other factors in this case. . . . So the point the Court is making is, the Court feels the sole and proximate cause of this accident was somewhat speed, but primarily the intoxication of the Defendant, which caused him to lose his ability to operate the car and, therefore, wrecked the car and causing the death of Julie Roberts in this particular case. . . . [I]t's true that probably the Court cannot impose any more severe punishment on the Defendant than he's already received in one way, because he's a paraplegic for life. And certainly, in some ways, that's worse than any jail term. . . . I think the Defendant's main argument here in favor of probation is basically he's kind of saying, "Well, there was a real serious result here resulting in a death, and yes, he was drinking and all that, but Judge, you shouldn't impose any additional punishment because he's been punished because he's in a wheelchair." . . . The problem with that argument, as Mr. Marx points out correctly, is that that injury was caused by the Defendant's act and that punishment was a result of that in the sense of physical injury, but that is not any punishment inflicted by the State or by the law. He suffered that by the act and there's no punishment by the law for that. The bottom line here is, . . . we have a severe result here. We have the death of a human being, the most severe thing you can do. And it was the result of the Defendant's act of driving having consumed too much alcohol resulting in her death. And there has to be a punishment for that under the law. There's other punishments, of course, moral and religious and so forth, but under the law. Transcript of Proceedings 46 — 53. It is apparent that the trial court considered the factors enumerated in R.C. 2929.12. The trial court reviewed the factors and the arguments of counsel and concluded that a term of incarceration was appropriate. While appellant may not agree with the trial court's conclusion, this court finds that the trial court considered the factors of R.C. 2929.12 and that the sentence of three years incarceration is not clearly and convincingly contrary to law. Further, appellant argues that the trial court failed to consider the statutory guidance of R.C. 2929.13(A), which states that a sentence "shall not impose an unnecessary burden on state or local government resources". Appellant submits that because he is paralyzed from the waist down for the remainder of his life, thereby requiring extraordinary medical care, the trial court erred in sentencing appellant to actual incarceration. Appellant cites this court to no precedent in support of his argument. While we understand that appellant's confinement to a wheelchair may increase the cost of incarceration, we cannot find that appellant's sentence of three years actual incarceration for one count of involuntary manslaughter pursuant to the circumstances of the offense, constitutes an unnecessary burden upon government, pursuant to R.C. 2929.13(A). Appellant further submits that the trial court failed to make the requisite findings, pursuant to R.C. 2929.14(B), in order to sentence a first offender to more than the minimum sentence. To impose such a sentence, R.C. 2929.14(B) requires: [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. The record reflects that the trial court made the requisite findings. At the sentence hearing, the trial court found: And on that basis, the Court would find that the minimal sentence, even though this is a first time offense, of the shortest term would demean the seriousness of the offense and not adequately protect the public due to the circumstances resulting in the death of an individual. Since the trial court made the required finding, we find appellant's arguments meritless. B. Restitution Lastly, appellant argues that the trial court's order that appellant must pay restitution for the victim's hospital bills, funeral bills, and loss of jewelry to the family of the victim was contrary to law. Appellant argues that the record does not contain sufficient evidence "from which the trial court could ascertain the amount of restitution to a reasonable degree of certainty and failed to establish the amount of the restitution at the time it was ordered." We disagree. A trial court is authorized to order restitution by an offender to a victim or any survivor of the victim, in amount based upon the victim's economic loss. R.C. 2929.18(A)(1). The trial court is to determine the amount of restitution at the sentencing hearing. Id. At the sentencing hearing, the trial court made the following Order: So the Court . . . would order restitution in the amount for the hospital bills that weren't reimbursed and the funeral bills and the loss of [jewelry] that were listed in a previous sheet administered to the Court." TR 52-53. The record contains a victim impact report, completed by the victim's parents which identified the hospital bills, funeral bills and lost jewelry as identified by the trial court. The victim impact report identified the cost of the items and included receipts for the hospital bills listed and the funeral expenses. The preferred practice would be to set forth a specific sum of restitution to be paid. However, we find that the trial court's reference to the list of items and the fact that the documentation is in the record for our review to be sufficient to meet the requirements of R.C. 2929.18(A)(1). Cf. State v. Riggs (June 13, 1991), Meigs App. No. 454, unreported. Appellant's second assignment of error is overruled. The Judgment of the Fairfield County Court of Common Pleas is affirmed. _____________ Edwards, P.J. Farmer, J. and Wise, J. concurs.

2016-07-06 06:36:38.966171+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION Defendant-Appellant, James Webb appeals from an order finding him in contempt by the Common Pleas Court of Marion County for violation of the trial court's orders by failing to pay spousal support, by transferring real estate, and by cashing a tax refund check. Procedurally, the parties were married in 1960 and Carolyn Webb, Plaintiff-Appellee, filed for divorce on May 4, 1994. On May 5, 1994, an ex parte order was filed that restrained the parties from selling, disposing, removing or encumbering any of the parties' property. On May 27, 1994, a temporary order of spousal support ordered James to pay Carolyn $1,831 per month. Final divorce hearings were held and the trial court adopted the April 12, 1995 report and recommendations of the referee. A judgment entry was filed on April 18, 1995 which granted the divorce of the parties and distributed the parties' assets and liabilities. No spousal support was ordered. The trial court, however, allowed Carolyn to file objections to the referee's report and recommendations on August 2, 1995.1 On September 15, 1995, the trial court issued interim orders finding that the final judgment of April 18, 1995 had been automatically stayed and reinstating the temporary orders of May 27, 1994 which had ordered James to pay Carolyn spousal support in the amount of $1,831 per month among various other duties. On January 16, 1996, the trial court ruled on the objections and adopted the April 18, 1995 decree of divorce with one modification pertaining to real estate. No spousal support was awarded in the decree. Carolyn appealed the trial court's decision and asked for a stay of the decree of divorce. The stay was denied. We reversed and remanded the matter to the trial court with specific instructions for the trial court to revise the property distribution of the parties and consider the issue of spousal support. See Webb v. Webb (June 28, 1996), Marion App. No. 9-96-6, unreported. While on remand, on September 5, 1996, Carolyn filed a motion for the reinstatement of the May 27, 1994 temporary orders. On January 16, 1997, the magistrate stated that the temporary orders filed on May 27, 1994 had continuously remained in effect from May 27, 1994. The magistrate did modify the amount of spousal support to $1,592 per month effective January 15, 1997. James requested the trial court to set aside this order, but the trial court denied his motion. Carolyn then filed a motion for contempt against James. On June 11, 1998, the trial court found James in contempt for violation of the court's temporary orders to pay spousal support. James was sentenced to three days in the Marion County Jail with the option that he may purge the contempt by paying $100 per week, plus the current spousal support order, until the arrearage is completely liquidated. James was also ordered to pay $500 to Carolyn for attorney fees and court costs. In addition, James was found in contempt for transferring real estate and for cashing a tax refund check, but no sanctions were ordered. James now sets forth four assignments of error. ASSIGNMENT OF ERROR NO. I The trial court abused its discretion in finding the Defendant-Appellant in contempt of Court for failing to pay spousal support after the lower court reinstated its temporary orders, modified as to the monthly award of spousal support, retroactively without first considering the factors set out by Ohio Revised Code Section 3105.18. [sic] Under this assignment of error, James argues that the trial court erred in finding him in contempt when it determined that the temporary spousal support order existed continuously from May 27, 1994. As we find merit in James's argument, we sustain this assignment of error. Civil contempt is defined as "that which exists in failing to do something ordered by the court in a civil action for the benefit of the opposing party." Marden v. Marden (1996),108 Ohio App. 3d 568, 570, citing Beach v.Beach (1955), 99 Ohio App. 428, 431. We review a contempt finding under an abuse of discretion standard. Dozer v. Dozer (1993), 88 Ohio App. 3d 296, 302. An appellate court must consider the propriety of the underlying order when it considers the order of contempt. In re Appeal ofSmith v. Chester Twp. Bd. of Trustees (1979), 60 Ohio St. 2d 13, paragraph one of the syllabus. First, we find that the temporary order of spousal support did not merge into the April 18, 1995 divorce decree. The trial court adopted the April 12, 1995 report and recommendations of the referee prior to the fourteen days given to parties to file objections. Civ.R. 53(E)(3)(a). Thus, even after the trial court entered a divorce decree on April 18, 1995, the parties could have still filed objections to that decree and the trial court could have modified the divorce decree. As such, we find that the April 18, 1995 divorce decree was not a final divorce decree in this case. An order adjudicating fewer than all the claims or parties shall not terminate the action as to any of the claims or parties.Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St. 3d 124. A final decree is one which determines the whole case and reserves nothing for future determination. R.C. 2505.02; Stackhouse v.Stackhouse (Nov. 8, 1996), Montgomery App. No. 15710, unreported. In this case, the parties could have, and Carolyn did, file objections to the referee's report and recommendation. The trial court did modify the April 18, 1995 divorce decree on January 16, 1996 when it entered its judgment on the objections filed by Carolyn. We find that the temporary orders did not merge into the April 18, 1995 divorce decree as it was not final. In addition, the April 18, 1995 execution on the divorce decree was automatically stayed on the filing of objections pursuant to Civ.R. 53(E)(4)(6). Accordingly, the May 27, 1994 temporary orders remained in effect and did not merge into the April 18, 1995 divorce decree until the decree was final on January 16, 1996. As such, prior to the final decree of divorce, James was obligated to pay temporary spousal support from May 27, 1994 to January 16, 1996. As we stated in the previous appeal in this matter, temporary orders merge into the final divorce decree. Colom v. Colom (1979), 58 Ohio St. 2d 245. The right to enforce such orders does not extend beyond the decree unless the orders have been reduced to a separate judgment or placed in the final decree. Id. However, in her appeal, we sustained Carolyn's objection that the trial court should have considered the arrearages due to her prior to the final divorce decree. Webb, supra. As such, we find that on remand, the trial court could properly consider the amount due in temporary spousal support from May 27, 1994, when the temporary spousal support was ordered, until January 16, 1996, when the final divorce decree was journalized. Second, we find that Carolyn properly requested temporary spousal support following our remand. While on our previous remand, Carolyn filed a motion for the reinstatement of the temporary spousal support orders. On January 16, 1997, the magistrate found that the temporary orders filed on May 27, 1994 had continuously remained in effect since the date on which they were filed. The magistrate modified the amount of spousal support to $1,592 per month effective January 15, 1997. James objected to the this order, but the trial court denied his objections. As we previously stated, we agree with James that it is well-established that temporary orders merge into the final decree of divorce pursuant to Colom, supra. We also find Armstrong v.Marathon Oil Co. (1987), 32 Ohio St. 3d 397 to be of guidance in this matter. It is basic law that an "action of the Court of Appeals in reversing the cause and remanding the case to the Court of Common Pleas for further proceedings has the effect of reinstating the cause to the Court of Common Pleas in statu quo ante. The cause is reinstated on the docket of the court below in precisely the same condition that obtained before the action that resulted in the appeal and reversal." (Emphasis added.) 5 Ohio Jurisprudence 3d (1978) 426, Appellate Review, Section 717. Furthermore, this court has specifically held that upon remand from an appellate court the lower court is required to proceed from the point at which the error occurred. State ex rel. Stevenson v. Murray (1982), 69 Ohio St. 2d 112, 113. Armstrong, 32 Ohio St.3d at 418. See, also, White v. White (May 15, 1992), Trumbell App. No. 91-T-4526, unreported. In Webb v. Webb (June 28, 1996), Marion App. No. 9-96-6, unreported, we remanded this matter with specific instructions for the trial court to consider the property distribution of the parties and consider the issue of spousal support. Following the logic in Armstrong, we find that the matter was placed on the docket for the trial court to review the parties' assets and liabilities upon remand. The final divorce decree still existed subject to property modification by the trial court. As the final divorce decree continued to exist following our remand, we find that the temporary order for James to pay Carolyn spousal support had merged into that final divorce decree. Colom, supra. The trial court could not have reinstated the previous temporary spousal support after the divorce of the parties as it was without authority to make such an order. Rahm v. Rahm (1974),39 Ohio App. 2d 74, 80. Accordingly, James did not become liable to Carolyn for spousal support following our remand until Carolyn requested a new order of temporary spousal support. Carolyn could request temporary spousal support following our remand based upon our order for the trial court to consider spousal support. SeeNolan v. Nolan (1984), 11 Ohio St. 3d 1, 3 (holding that a trial court is compelled to follow the mandates of reviewing courts).Cicchini v. Cicchini (Apr. 29, 1991), Stark App. No. CA-8243, unreported, as cited by James, is distinguishable from the case before us. In Cicchini, the Fifth Appellate District held the following: "We find no authority for an order compelling one divorced person to support another temporarily after a divorce and during the pendency of a remand for further proceedings as to economic issues." From the brief opinion in Cicchini, we are unable to determine whether the court of appeals had ordered the trial court to consider the issue of spousal support upon remand. Accordingly, we find James's reliance on Cicchini unpersuasive. A trial court has broad discretion to fashion an order of temporary spousal support, and R.C. 3105.18(C)(1) provides a court should order reasonable and appropriate temporary spousal support during the pendency of any divorce. It is the purpose of such orders to provide an economically disadvantaged spouse a means of maintaining herself or himself during the pendency of the action. See R.C. 3105.18(B). Moreover, Civ.R. 75(M) allows the trial court or magistrate to grant temporary spousal support during the pendency of the action for divorce. Carolyn did request temporary spousal support on September 5, 1996 and her request was granted on January 16, 1997. At the earliest, the trial court could have retroactively awarded spousal support to the date that Carolyn requested the spousal support. See LeBlanc v. LeBlanc (July 17, 1998), Greene App. No. 97 CA 85, unreported. Thus, the trial court could have properly found James liable for spousal support from September 5, 1996 at the earliest following our remand. After reviewing the record, we cannot find that the trial court abused its discretion in ordering temporary spousal support after our remand given the purpose of temporary spousal support. See Cherry v. Cherry (1981), 66 Ohio St. 2d 348. The trial court apparently calculated James's spousal support obligation continuously from May 27, 1994. We find that this was error. As an accurate arrearage is calculable and must be performed by the trial court, we find that the trial court abused its discretion by miscalculating the amount owed by James. As the order of contempt was based in part by the amount of arrearages owed by James, we must find that the trial court abused its discretion in finding James in contempt. Accordingly, we sustain James's first assignment of error. We remand this matter for the trial court to calculate the amount of arrearages owed by James and then to determine if he was in contempt of the trial court's orders to pay temporary spousal support. ASSIGNMENT OF ERROR NO. II The trial court abused its discretion in establishing an arrearage inconsistent with the evidence of the amount due, and finding the Defendant-Appellant in contempt of Court for failing to pay spousal support when the Defendant-Appellant demonstrated an inability to pay, and the weight of the evidence did not support a finding of contempt. As we reversed the trial court's order of contempt for the failure of James to pay spousal support, we find this assignment of error moot. ASSIGNMENT OF ERROR NO. III The trial court abused its discretion in finding Defendant-Appellant in contempt of Court for transferring a non-marital parcel of real estate and for cashing and applying income tax refund money to the second mortgage on the marital residence. James contends that the trial court erred and abused its discretion in finding him in contempt when there did not exist any order restraining the parties from transferring, selling, utilizing, destroying or disposing of assets. On May 5, 1994, the trial court filed an ex parte order that restrained the parties from selling, disposing, removing or encumbering any of the parties' property. As stated, the temporary orders merged into the January 16, 1996 final divorce decree. Colom, supra. Thus, the trial court should not have found James in contempt for violating the ex parte order as it did not exist after the final divorce decree when he transferred real estate on October 17, 1996 and cashed a tax refund check on August 30, 1996. Accordingly, we sustain James's third assignment of error and reverse the orders of contempt against James. ASSIGNMENT OF ERROR NO. IV The trial court abused its discretion by ordering the Defendant-Appellant to pay Plaintiff-Appellee's attorney fees when the same was against the manifest weight of the evidence. As we reversed the orders of contempt, we reverse the award of attorney fees. To this extent, we find James's fourth assignment of error to have merit. Upon remand, after calculating James's spousal support obligation, the trial court will have to then consider the issues of contempt and attorney fees. Accordingly, the judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion. Judgment reversed and remanded. SHAW, P.J., and BRYANT, J., concur. 1 The delay was due to Carolyn's difficulties in obtaining a copy of the transcript.