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2016-07-06 06:41:38.277493+00

Kovachy

This is an appeal on questions of law from the Lakewood Municipal Court. Plaintiff, Mrs. Zella A. Mayer, appellee herein, brought an action in said court upon a written contract to purchase a vacant lot from the defendants, Mr. and Mrs. Irving Sumergrade, appellants herein. Upon trial had to the court without the intervention of a jury, a judgment in the amount of $396.38 and costs was entered in favor of the plaintiff and against the defendants. We are not favored with a bill of exceptions. The pleadings in the trial court consisted of the petition, a demurrer, an answer and a reply. The petition alleges these operative facts: That the defendants are husband and wife; that they executed an agreement with the plaintiff, a copy of which is attached to the petition, to *Page 238 sell her a parcel of vacant land, located in the city of Westlake; that at the time of such agreement the city had levied special assessments upon said parcel of land for the years 1952 to 1961, inclusive, in the annual sum of $91.76, and certified the same for collection to the county auditor; that said annual assessments are a lien upon the land; that, in the agreement entered into by the parties, plaintiff agreed to purchase the real estate for a cash consideration of $6,250; that, "said consideration was paid and that defendants conveyed said real property to the plaintiff (the present owner of said realty) by deed filed July 8, 1958, and recorded as Cuyahoga County Recorder's instrument No. 227372"; that in the agreement defendants "specifically warranted that there were no assessments upon said premises"; and that defendants, on demand, have failed and refused to pay plaintiff damages for such assessments still unpaid in the amount of $367.04, for which, together with interest from the 8th day of July, 1958, plaintiff asks judgment against said Irving Sumergrade and Viva G. Sumergrade. Defendants claim four specific assignments of error, each of which is merely an elaboration of the single claim that the trial court erred in overruling the demurrer to the petition since the petition fails to state a cause of action in averring a contract for the sale of land and the filing and recording of a deed conveying the real property to the plaintiff without averring facts which would remove the cause from the general rule that "a subsequent deed merges a pre-existing contract for the sale of the same property * * *." The following language pertinent to the consideration of this claim of the defendants appears in the agreement: "* * * Funds and documents to be placed in escrow at So. Side Fed. Sav. L. Westgate office within 60 days. Fee 1/2 each. Present owner to give good and sufficient deed and title to said property and furnish a title guarantee at owners expense in the amount of $6,250.00 REC for ZAM showing same to be free from all encumbrances except restrictions of record and zoning ordinances, if any, and taxes not yet billed. . . . . . . . . . . . . . . Seller specifically warrants there are no assessmentsnor easements on above property." (Emphasis denotes sentence written in by hand on the printed form used in drawing up this agreement.) *Page 239 The general rule with respect to the relation of a deed to a contract for the sale of real estate is stated as follows in 40 Ohio Jurisprudence, 1001, Section 90: "In the absence of fraud or mistake, and except where the contract for the sale of land creates rights collateral to or independent of the conveyance, the general rule is that acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima facie the completion of the contract; and all stipulations contained therein, with certain exceptions hereinafter noted, are merged in the deed, although omitted therefrom. In Ohio, when a deed is delivered and accepted without qualification, the general rule is that the contract is merged in the deed; no cause of action upon the prior agreement then exists. The rights of the parties must be determined by the deed so given in execution of the prior agreement, unless the elements of fraud or mistake are involved, or perhaps, unless the deed was accepted under protest and with a reservation of the right to insist upon a strict adherence to the terms set forth in the prior agreement. The office of the deed is to execute the contract on the part of the vendor." Does the provision, "seller specifically warrants there are no assessments nor easements on above property," come within any of the exceptions to the general rule? This is the basic question raised by the defendants in their appeal. The answer to this question depends upon the import of the language used. Is it a covenant that runs with the land, or is it a collateral and independent engagement by the vendors by which they assure the purchaser that "no assessments" appear against the parcel of land they are selling and to indemnify her should they be mistaken about the matter? It is our view that it is not a covenant that runs with the land because the language does not import a warranty upon which the sale of the property is contingent nor a stipulation which can only be satisfied and executed in the conveyance itself. It does not concern the title, occupancy, size, enjoyment, possession, or quantity of the parcel of land conveyed nor does it set down any condition or contingency upon which the sale of the property depends and which could only be satisfied by incorporation in the deed. Rather, the statement sets out a private stipulation under which the *Page 240 vendors specifically warrant that there are no assessments and, by clear implication, agree to save the purchaser harmless should there be such. It is an agreement, therefore, collateral to and independent of the main purpose of the transaction and obviously not intended to be merged in the deed. Moreover, its recitation in the deed would add nothing to nor detract anything from the same since the special assessments are certified to the auditor, are a lien on the land, and recorded. It is also patent that this specific warranty was a part of the consideration for the purchase price which was paid and under the circumstances calls for satisfaction apart from and in addition to the conveyance of the land by deed. It is stated in 84 A. L. R., 1009: "A very general exception to the foregoing rule [general ruleas to merger of contract in deed] relates to collateralstipulations incorporated in the contract but not in the deed.In this regard it is to be observed that a contract for a deedantedates the execution of the deed, and may, and often does,contain many provisions which the execution of the deed neitheradds to nor takes away from. A deed is a mere transfer of the title, a delivery so to speak of the subject matter of the contract. It is the act of but one of the parties, made pursuant to a previous contract either in parol or in writing. It is not to be supposed that the whole contract between the parties is incorporated in the deed made by the grantor in pursuance of, or as the consummation of, a contract for the sale of land. There are many things pertaining to the contract which it is manifest are never inserted in a deed." (Emphasis ours.) In Reid v. Sycks, 27 Ohio St. 285, the Supreme Court stated the following, at page 290: "The obligation to pay the purchase money was not merged by the deed, which was only in performance on the vendor's part. This deed is to be considered part of the transaction, in connection with, and not to the exclusion of, the title bond. "Both papers are parts of one transaction, and the rights of the parties must be determined by the terms of the whole contract. An executory agreement for the sale of lands is not satisfied and performed when the deed is made. The covenant to convey is performed by the conveyance; but covenants relating *Page 241 to other things than a mere conveyance are not thus performed or satisfied." And, at page 291, the court stated: "There is no presumption that a party, in giving or accepting a deed, intends to give up the covenants of which the deed is not a performance or satisfaction." In Saville v. Chalmers, 76 Iowa 325, 41 N.W. 30, the Supreme Court stated in a case quite analogous to the instant case the following in the syllabus: "A prior parol warranty as to the quality of land conveyed by an ordinary warranty deed is not merged in the deed, and for a breach of it the grantor is liable to the grantee in damages." Also, see Dawson v. McKinnon, 226 Iowa 756, 285 N.W. 258. The Supreme Court of New Jersey, in Janitscheck v. MelbroRealty Corp., 107 N. J. Law, 450, 154 A. 749, 84 A. L. R., 999, in a case similar to the one here under consideration, stated in the syllabus: "Clause in a contract for sale of real estate that `all street assessments for the improvement of Liberty avenue are to be paid by the seller,' held, under the circumstances disclosed by the evidence, an independent agreement to save vendee harmless from an assessment laid for an improvement inaugurated or in immediate contemplation, and not merged by delivery and acceptance of the deed." The great weight of authority supports this view. Allen,Admr., v. Lee, 1 Ind. 58, 48 Am. Dec., 352; Brennan v.Schellhamer, 13 N. Y. Supp., 558; Caveny v. Curtis, 257 Pa. 575,101 A. 853; Close v. Zell, 141 Pa. 390, 21 A. 770, 23 Am. St. Rep., 296; Culver v. Avery (N. Y. S. Ct.), 7 Wen., 380; Everett v. Gilliland, 47 N. M., 269, 141 P.2d 326; Fries v. Gannon,9 Ohio App. 387; Goodspeed v. Nichols, 231 Mich. 308,204 N.W. 122; Green v. Batson, 71 Wis. 54, 36 N.W. 849; Levin v.Cook, 186 Md. 535, 47 A.2d 505; Minor v. Edwards,12 Mo., 137; Monell v. Colden, 13 Johnson (N. Y.), 395; Newton v.Middleton, 3 N. J. Misc., 157, 127 A. 580; Siebros FinanceCorp. v. Kirman, 232 App. Div. 375, 249 N. Y. Supp., 497;Thompson v. Reising, 114 Ind. App. 456, 51 N.E.2d 488. *Page 242 It would seem from the above, therefore, that the specific warranty as to assessments was not merged in the deed and that when the purchaser discovered that special assessments for installation of water pipes existed and that such assessments were a lien upon the property she had purchased from the vendors, the specific warranty, given by the vendors and included in the contract of sale, was breached and a cause of action accrued in favor of the plaintiff against the defendants. We hold, accordingly, that a good cause of action is stated in the petition and that, therefore, the trial court was not in error in overruling the demurrer. The joint answer of the defendants alleges, inter alia, that the agent of the plaintiff got them "to include the warranty that there were no assessments" when he knew that there were and they did not; that the offer this agent brought from the plaintiff was changed from $6,000 to $6,250 by the agent; that the plaintiff chose the escrow agent; that plaintiff's attorney drew the deed; that the deed was executed by defendants before plaintiff's agent delivered it to plaintiff; that plaintiff accepted the deed without objection or reservation and filed and recorded it; that the deed in part provides "* * * that the same are free from all encumbrances whatsoever except zoning ordinances and restrictions of record, taxes, both general and special, for the year 1957 and thereafter, which the grantee agrees to assume and pay * * *"; and that the deed merged any pre-existing contract and fully discharged any liability of defendants under any such contract and under any warranties. The reply of the plaintiff admits that during negotiations the purchase price was increased from $6,000 to $6,250 and avers that the phrase, "sellers specifically warrant there are no assessments nor easements on the above property," was written in by hand prior to the execution of the contract by the defendants; plaintiff denies that she or her agent had any knowledge of any special assessments; avers that the specific warranty against special assessments was part of the consideration for the increase in price; denies that the sale was consummated with an escrow agent of her sole choosing or that the plaintiff's attorney drew the deed; avers that the escrow agent was agreed upon by her and the defendants and that defendants *Page 243 prepared, executed and delivered the deed to the escrow agent, which agent then filed the same for record; avers that she was without any knowledge of the terms of the deed until it was returned to her subsequent to its recording; and denies that she accepted the deed as a merger or a variation of the terms of said purchase agreement "as a waiver of the terms of said agreement specifically warranting against assessments." The pleadings in this case present all issues conceivably necessary to resolve the dispute between the parties in this action. Since there is no bill of exceptions, the evidence with respect to these issues is not before us. The presumption of law is that a judgment entered by a trial court properly resolved the issues in the pleadings according to the evidence and the law. Upon a careful consideration of the record before us, we determine that no error prejudicial to the substantial rights of the defendants is shown even should it be that the petition fails to state a good cause of action. In Yocum, Admr., v. Allen, 58 Ohio St. 280, 50 N.E. 909, the Supreme Court stated in the first paragraph of the syllabus: "Where, in a cause pending in the Court of Common Pleas a demurrer to a petition has been overruled, and upon issues made by answer and reply, the case has been tried to a jury and a verdict and judgment for plaintiff rendered, this court will not reverse the judgment, even though satisfied that the demurrer ought to have been sustained, provided it also appears, upon a consideration of the whole record, that the overruling of the demurrer was an error which was not prejudicial to the adverse party." Judgment affirmed. HURD, P. J., concurs.

2016-07-06 06:41:39.184362+00

Palmer

The defendant, Wendall Asa Snowden, appellant herein, was tried and convicted before a jury on separate offenses of safe-cracking — a violation of R. C. 2911.31 — and theft — a violation of R. C. 2913.02. On appeal, with the causes consolidated for purposes of this opinion, he assigns as error common to both trials the admission into evidence of testimony elicited during cross-examination of himself, tending to show the commission of certain criminal acts. The testimony was said by the state to be justified under R. C. 2945.59, which states: "In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to *Page 8 show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. I. These appeals pose in unavoidable form several complex questions, some of them general in nature relating to the interpretation and intent of the above statute, and others procedural in nature, relating to the manner in which the state attempted to apply the statute in the cases at hand. The former inquiry deserves a most careful treatment inasmuch as the statute under inquiry, R. C. 2945.59, concededly carries the potential for the most virulent kind of prejudice for an accused — that is, the possibility that he may be convicted not so much for what is proven concerning the crime sub judice, but for what he is shown to have committed on some other occasion. It is tempting to conclude that once a thief always a thief, but the law has clearly set its face against that too easy solution.State v. Hector (1969), 19 Ohio St. 2d 167, 174-5. It is proposed, therefore, first to review and restate the general principles announced by the Supreme Court to guide trial courts in the application of R. C. 2945.59 and, secondly, to apply these principles to the instant facts to determine whether prejudicial error intervened in the admission of evidence of other criminal acts committed by the defendant. Finally, a word is required concerning the trial procedure dictated by the rules circumscribing the use of R. C. 2945.59, and its application to the cases before us. II. An examination of the cases dealing with R. C. 2945.59, particularly two recent decisions of the Supreme Court of Ohio,State v. Curry (1975), 43 Ohio St. 2d 66 and State v. Burson (1974), 38 Ohio St. 2d 157, together with the earlier decision in State v. Hector, supra, justifies a general observation that the use of the so-called "same and *Page 9 similar acts" statute1 is to be severly limited to certain particularized circumstances, the existence of which is to be determined through the application of a specific (if to some extent unarticulated and therefore inferred) methodology. Our reading of these authorities leads us to conclude that the test established for the appropriateness of the statute consists of a two part process: first, an examination to determine therelevancy of the other act to the crime in question; next, if that threshhold issue is determined favorably for the state, an inquiry into the succeeding question of whether evidence of the other act is material to any issue placed in question by the conduct of the instant trial. The first of these two tests is directed toward the circumstances of the other act sought to be introduced and will generally be satisfied pursuant to the criteria hereafter set forth without specific reference to the particular defenses offered by the defendant as to the charged crime; the test of materiality, on the other hand, is dependent upon the issues placed in question by the particular defense offered by the accused. As to the first of these tests — that of relevancy — we note that in State v. Curry, supra at 68, Chief Justice O'Neill began his discussion of the case with the observation that: "[E]vidence which tends to show that an accused has committed another crime wholly independent of the offense for which he is on trial is generally inadmissible." The court then quoted the language of State v. Burson, supra, that: "`[E]vidence of other acts of a defendant is admissible only when it "tends to show" one of the matters enumerated in the statute and only when it is relevant to proof of the guilt of the defendant of the offense in question.'" (State v. Curry,supra at 69.) *Page 10 In Burson, the defendant was on trial for first degree murder, and the other act sought to be shown involved an assault four years earlier in a dispute over money, where the defendant administered a beating to the prosecuting witness. TheBurson court, in holding that the testimony of the beating victim was inadmissible under the statute, stated: "The other acts of the defendant must have such a temporal,modal and situational relationship with the acts constituting the crime charged that evidence of the other acts discloses purposeful action in the commission of the offense in question. The evidence is then admissible to the extent it may be relevant [material2] in showing the defendant acted in the absence of mistake or accident." (Emphasis added.) State v. Burson, supra at 159. This threshold test, which we have chosen to denominate a relevancy test as opposed to the more particularized inquiry into materiality, expresses no more than a common sense conclusion that an act too distant in time or too removed in method or type has no permissible probative value to the charged crime. An act of arson, for example, has nothing in common with an otherwise unconnected crime of embezzlement, except perhaps a malevolent spirit; neither would an act of embezzlement removed some 20 years from the embezzlement for which the defendant is undergoing trial, have anything in common with the present charge — nor, arguably, an act of embezzlement so dissimilar in execution from the charged embezzlement that it becomes, in effect, a different crime although proscribed under the same statute.3 This, we believe, is what the Burson court meant by its reference to a "temporal, modal, and situational relationship" between the other act and the charged crime. *Page 11 Obviously, it is not possible to predict all of the situations which will resolve the determination as to the relevancy of the other act. The question of temporal relationship, for instance, is clearly one of judgment under the particular facts of the case and is not susceptible to a rigid rule. This much may be ventured, however, with respect to the question of relevancy: it would be difficult for us to perceive the relevancy of the other act to the charged crime unless the former were either the same crime, or a lesser included offense within the charged crime, or an offense for which the charged crime is itself a lesser included offense. Thus, another act of aggravated murder may well be relevant (assuming the existence of the other criteria) to a charged crime of aggravated murder, or an act of murder relevant to a charge of aggravated murder, or an act of aggravated murder relevant to a charge of murder, but it is difficult and well nigh impossible to imagine the relevance of an act of embezzlement to a charge of murder. The second, and more particularized test of admissibility is that of materiality, the shoal upon which the state foundered in both Burson and Curry. Here, the attention shifts from the nature of the other act sought to be introduced, its "temporal, modal and situational" nexus with the charged crime, to the charged crime itself, and the inquiry now addresses itself to the circumstances shown to surround the charged crime and, in particular, to the nature of the defense to that charged crime. As we perceive it, R. C. 2945.59 sets out two categories of circumstance in which evidence of other acts may be material to the charged crime: first, where it is material to show the defendant's "motive or intent, the absence of mistake or accident on his part," and, second, where it is material to show the defendant's "scheme, plan, or system" in doing the act. As to the first of these tests of materiality, we note, preliminarily, our conclusion that the element of "intent" as envisioned by the statute is specific or "particular" intent (State v. Curry, supra at 71), rather than the generalized mensrea which is an element in all offenses, and that *Page 12 the phrase "the absence of mistake or accident on his part" is not a separate category but merely a converse of the existence of a specific intent. Thus, in Curry, the charged crime of statutory rape carried with it no requirement of specific intent, and no "other acts" testimony would have been admissible as proof of the accused's intent to commit statutory rape, or, stating its converse, to negative defenses of mistake or accident. To justify the admissibility of other acts on this basis, an issue of particular intent to commit the act would have to be found present in the trial, and this, obviously, was not possible. Again referring to Curry, while the crime ofattempted statutory rape has a particularized intent element (viz., intent to have intercourse), the other act sought to be introduced — indecent liberties — did not share that particular intent element and was therefore, said the court, inadmissible as nonprobative. It stated: "However, the prosecution's `other acts' testimony did not tend to prove the intent element of attempted statutory rape." (43 Ohio St.2d at 71.) We conclude that only where the defendant specifically places his particularized intent to commit the charged crime in issue, either by directly denying such intent or by asserting accident or mistake, is it material (and therefore admissible) to introduce otherwise relevent evidence of other acts of a similar nature as probative of the issue. Where this element is not a part of the crime (as in statutory rape), where it is not asserted as an issue at trial, or where the other act is not probative4 of the issue of particular intent, this ground for the admissibility of the evidence is unavailable. The second test comes into play when the defendant's "scheme, plan or system" in doing an act becomes material. This can occur during trial in either of two ways: either it is material because the other acts form part of the *Page 13 immediate background of the charged crime, forming part of the foundation thereof (e. g., the theft of a getaway car prior to and in aid of an armed robbery)5 or, more commonly, where the identity of the criminal is placed in issue. As stated by Chief Justice O'Neill in Curry: "Identity of the perpetrator of a crime is the second factual situation in which `scheme, plan or system' evidence is admissible. One recognized method of establishing that the accused committed the offense set forth in the indictment is to show that he has committed similar crimes within a period of time reasonably near to the offense on trial, and that a similar scheme, plan, or system was utilized to commit both the offense at issue and the other crimes." (43 Ohio St. 2d at 73.) Obviously, evidence of a common modus operandi between criminal acts is immaterial and inadmissible where the defendant concedes his identity as the actor in question, and defends on some other grounds. A defense of self-defense to a charge of murder, which concedes the question of identity, would thus make evidence of a common scheme, plan or system in an earlier act of homicide inadmissible, although it could well be material (and therefore admissible) as to the issue of particular intent. III. Applying these principles to the causes on appeal, the record reveals that in the trial of defendant for theft, the other acts evidence sought to be introduced concerned an act of safe-cracking. Although a trespassory element in the classic sense is common to both offenses, an inspection of the two statutes reveals marked disparities. Thus, one is guilty of theft where there is a knowing exertion of control over the property of another without authority to do so and with purpose to deprive the owner thereof. R. C. 2913.02. One is guilty of safecracking, however, by entering a safe with the purpose to commit an offense. R. C. 2911.31. While theft may be the usual offense a safecracker has in *Page 14 mind, it need not be; one may violate R. C. 2911. 31 with a purpose to spoliate or destroy the contents, or to affix a spring gun or booby trap, and so on. Here, there was no evidence introduced in the separate trial for theft that the act of safecracking had been with the purpose to commit an offense of theft, or that it had that effect. This being true, there was lacking that identity or substantial identity of elements between the other act and the instant offense which would satisfy the threshold inquiry of relevancy. It follows that the court prejudicially erred in admitting the testimony of the act of safecracking. In the separate trial for safecracking, where an other act of theft of a car battery was introduced, there was evidence adduced from which the jury could have concluded that the purpose of the safecracking was to commit the offense of theft — viz., to deprive the owner of the contents of a bag of money which had been secreted within the safe. Arguably, therefore, the other act of theft, a felony of the fourth degree, could have been a lesser included offense within the charged crime of safecracking, a felony of the third degree (State v. Nolton [1969], 19 Ohio St. 2d 133), thus satisfying the threshhold inquiry into relevancy. The problem here, however, is not one of elemental relevancy, but rather of materiality. The record reveals no affirmative defense offered by the defendant; rather, he admitted his presence at the scene of the safecracking and admitted having picked up the bag of money, but denied opening the safe or any purpose to commit an offense. Identity not having been made an issue nor, for that matter, any question of the other act forming part of the background of the safecracking, the other act evidence was immaterial to show scheme, plan, or design. Also, there was no evidence presented from which a question of accident or mistake could have been inferred to have made the evidence of the other act of theft material to an issue of intent.6 *Page 15 Again, we conclude that the court prejudicially erred in admitting testimony of other acts of theft in the trial of the safecracking offense. IV. Finally, we think it appropriate to comment on the method used by the state in attempting to adduce evidence of the other acts in question, since we conclude that it contains, at the least, an inherent potential for prejudice. It seems clear from our analysis of R. C. 2945.59 that it may fairly be characterized as a defensive, or perhaps more accurately as acounter offensive weapon in the arsenal of the prosecutor. With the exception of those cases where the other acts are so inextricably interwoven, temporally and circumstantially, with the charged crime that it would not be feasible to demonstrate the latter without evidence of the former, it is apparent that the admissibility of other acts evidence will depend upon the nature of the defense offered. Frequently and perhaps usually this will manifest itself only after the defendant has undertaken his defense, and is doubtless why nearly all of the cases involving this statute that we have had occasion to decide have involved the use of evidence of other acts as rebuttal evidence offered by the state after the defense rested. This seems to us its proper role, and that having the least possibility of prejudice, although we do not wish, nor is it necessary for the purposes of this appeal, to rule out its use by the state in chief, where the defense is alibi or affirmative in nature and *Page 16 clearly manifested (e. g., by discovery techniques) before any evidence is adduced. Here, no alibi or other affirmative defense was offered or suggested by the defendant in either case, and, properly, no attempt to anticipate any defense was made by the state by attempting to introduce evidence of other acts in chief. However, in the theft trial, following defendant's direct testimony, the prosecutor was permitted to inquire into the defendant's "past record," and the defendant was required to answer questions which showed that he had been "charged for * * * a theft offense," and, among other things, that he was "presently under indictment" for safecracking. In the safecracking trial, the issue was again raised on the cross-examination of the defendant with the question "[h]ave you ever committed the same or similar act for the offense for which you are indicted here today?" He was required to respond to that question and answered affirmatively, reciting "aiding to the theft of a car battery," and adding, under further questioning, a "breaking and entering" on September 11, 1974, and a 1973 vehicular "joy-riding" offense. The improper form of the questions called for the defendant to draw a legal conclusion as to what constitutes a "same or similar act," a question which courts have had difficulty answering with precision. In addition to obvious Fifth Amendment problems arising from forcing defendants to testify as to other criminal acts for which they have not been convicted, and other procedural problems arising from this procedure, the records here demonstrate clearly the inappositeness of this technique for adducing competent and admissible testimony of other acts under R. C. 2945.59. It is difficult to conceive how the twin questions of relevancy and materiality necessary to qualify this kind of evidence could ever be satisfied out of the mouth of the defendant without insoluble problems intervening.7 *Page 17 In view of the foregoing, we find the appellant's second assignment of error in case No. 602 and first assignment of error in case No. 603 to be well taken and grant the same. V. The first assignment of error in case No. 602 asserts, in substance, that the court erred in overruling a motion for a continuance where a purportedly critical defense witness had failed to appear in response to a subpoena. Inasmuch as the record at the time of the overruling of the motion contains no indication, or proffer, which might have shown or offered to show how the testimony of the witness was critical, we cannot hold that the trial court abused its discretion in ruling as it did. The assignment of error is without merit and overruled. Similarly, the third assignment of error in case No. 603 asserts that the court erred in permitting a witness to testify where that witness had not been disclosed to the defendant pursuant to his timely request for discovery. While the prosecution's duty to supplement discovery under Crim. R. 16(D) is plain, it cannot be said that the error complained of was prejudicial where the defendant did not claim surprise, and where, on oral argument, he in fact conceded that no surprise was worked upon him. This assignment of error is therefore without merit and overruled. VI. The second assignment of error in case No. C-603 calls into question the propriety of the court's taking judicial notice of an official record under Civ. R. 44, the latter made applicable to criminal proceedings by Crim. R. 27. The gravamen of defendant's argument turns upon the force of the requirement of Civ. R. 44(A)(1) that "a copy attested by the officer having the legal custody of the record, or by his deputy" be "accompaniedby a certificate that such officer has the custody." (Emphasis added.) It is uncontested that although a copy of an entry in the Clermont County Court of Common Pleas was indeed certified by a deputy of the clerk of that court, no such accompanyingcertificate of custody was furnished in the case on review. Since the original of the entry was not provided the court, it *Page 18 is obvious that the document in question could not have been a publication thereof, the state's argument to the contrary notwithstanding. The purport of the rule is plain. The rule was not followed in that a certification of custody was not provided, and the assignment of error is accordingly sustained. The judgment is reversed and both causes remanded for further proceedings consistent with this opinion. Judgment reversed. SHANNON, P. J., and KEEFE, J., concur. 1 Part of the problem raised by this appeal possibly stems from the erroneous and misleading characterization of R. C.2945.59 as a statute permitting an inquiry into the "same or similar" acts. That phrase appears nowhere in the section and its use should be discouraged. State v. Burson, supra at 158. 2 It may be conceded that although the distinction in the two tests here adumbrated is clearly discernible in Curry,Burson and Hector, the actual use of the terms "relevancy" and "materiality" tend to be used indiscriminately in those cases. 3 We recognize that this alternative basis supporting a determination of irrelevancy is closely akin to certain aspects of the inquiry into materiality, infra. 4 In light of Curry's interpretation of the statutory language (compare 43 Ohio St. 2d at 71 with R. C. 2945.59: "any acts of the defendant which tend to show"), we have chosen to categorize that which might otherwise appear to be a separate, third, element under the statute — namely, the probative, as a component of materiality. [EDITORS' NOTE: THE MARKER FOR FOOTNOTE 4 IS OMITTED FROM THE OFFICIAL COPY OF THIS DOCUMENT, THEREFORE THE MARKER IS NOT DISPLAYED IN THE ONLINE VERSION.] 5 This circumstance would constitute an obvious exception to the necessity under the relevancy test that the other act contain elements common to the charged crime. 6 If it is maintained, notwithstanding the absence of any question in the instant case as to mistake or accident, that the rather anomalous character of the defense to the charge of safecracking (consisting of what was in effect an assertion that he was an innocent bystander in the admitted events) nevertheless placed in issue the element of the intent to crack a safe with the purpose to commit the offense of theft; his forced admission of a prior act of "aiding to the theft of a car battery" bears at best an extremely tenuous connection with that issue, probably no more considerable than that between intent to commit statutory rape and intent to commit indecent liberties held improper in Curry, supra. Other forced admissions of acts of "breaking and entering" and "joy riding" were clearly irrelevant. In none of these instances, it should be repeated, was the "other act" shown to have resulted in a conviction where admissibility of testimony might have been predicated on the issue of credibility. This court's decision in State v.Linville, Nos. 586 587, Clermont County, unreported, decided May 24, 1976, at pages 4-5, is clearly distinguishable. 7 At the very least, if the subject is to be first broached on the defendant's cross-examination, an extensive voir dire out of the hearing of the jury to ascertain the nature of the other acts testimony sought, in order to determine its admissibility, would seem indicated. Cf. R. C. 2907.02(D), (E).

2016-07-06 06:41:39.395896+00

Bryant

On November 4, 1964, the mother, who has remarried and whose married name is now Peake, filed three suits on behalf of the three children in the Probate Court of Franklin County, seeking to add the name "Peake" to that of each child. The natural father, defendant, appellee herein, filed a motion in the divorce proceeding asking the Common Pleas Court to enjoin the children's natural mother, plaintiff, appellant herein, from further prosecuting the action in the Probate Court. The Common Pleas Court granted the order prayed for on the theory, as we understand it, that its continuing jurisdiction includes the power to make such an order. From that order, Mrs. Monteux (Peake) has appealed assigning the judgment of the Common Pleas Court as error. Proceedings to obtain a legal change of name are governed by Section 2717.01 of the Revised Code. This section formerly conferred jurisdiction over such proceedings on both the Court of Common Pleas and the Probate Court. It was amended effective September 24, 1963, in two important particulars (130 Ohio Laws 657, 1449). In the first place, all jurisdiction over such proceedings was taken away from the Court of Common Pleas, but jurisdiction formerly vested in the Probate Court was retained by the amendment. In the second place, a new paragraph was added at the end of Section 2717.01 of the Revised Code specifically requiring *Page 36 that in any application for a change of name involving a minor child the consent of both living legal parents of the minor shall be filed in the proceeding in Probate Court or a hearing shall be held in such court and any such parent not consenting shall be given notice of the hearing, thereby spelling out in detail the procedure in such cases involving minors and in our opinion removing all doubt as to the jurisdiction of the Probate Court in all such cases, except where children are wards of another court. In this case, the proceedings in the Common Pleas Court consisted of an uncontested action for divorce, the granting of a divorce decree to the mother, which approved and incorporated a separation agreement by which custody of the minor children was given to the mother, the father was ordered to pay for the support of the children, and other property questions were thereby settled. Under such circumstances, we do not believe that the minor children, without further proceedings or change of circumstances legally determined, were thereby wards of the Common Pleas Court or that under such circumstances the Common Pleas Court was authorized or empowered to grant an injunction against the mother restraining her from taking further steps in the proceeding in the Probate Court to obtain a change of name for the minor children. For the reasons above set forth, we are of the opinion that the three assignments of error of plaintiff, appellant herein, are well taken, must be sustained, the judgment of the court below reversed and the cause remanded with direction to dismiss the injunction heretofore granted enjoining plaintiff from prosecuting the change-of-name proceedings in the Probate Court. Judgment reversed. DUFFY and DUFFEY, JJ., concur. *Page 37

2016-07-06 06:41:39.483709+00

Shannon

This is an appeal on questions of law and fact from an order of the Court of Common Pleas. On October 18, 1954, the city of Lincoln Heights passed an ordinance forbidding the operation of vehicles exceeding twenty thousand pounds in weight on any street within the city limits. It appears that this ordinance was not enforced, however, until shortly before the filing of the petition in the case at bar. All plaintiffs, appellants herein, except Cincinnati Motor Transportation Association, are commercial enterprises *Page 86 having their places of business in Lockland, Ohio, a community adjacent to the city of Lincoln Heights. The controversy here centers about the use of Shepherd Lane, a street built in 1941 as part of the road system of Hamilton County, adequate to carry loads up to legal limit, dedicated, and lying wholly within the corporate limits of the city of Lincoln Heights. In 1962, Shepherd Lane was included in the planning by the Ohio Department of Highways for Interstate Route 75. Thereafter, plaintiffs' interstate truck terminals and the Frank Hamilton Warehouse were built in anticipation of the use of Shepherd Lane as access to I-75, and such use was enjoyed after the opening of the highway. By 1967, the increased truck traffic over Shepherd Lane caused the residents whose property abutted the street to complain, and city officials commenced enforcement of the 1954 ordinance. Plaintiffs then filed their petition praying that the enforcement of the ordinance be enjoined as it affects Shepherd Lane. A temporary restraining order enjoining the enforcement pending final hearing was issued. Before such hearing, the 1954 ordinance was repealed and a new ordinance passed and amended, which, as far as is pertinent here, excepts from its force and effect Interstate 75 and a few streets immediately adjacent thereto, prohibits an east-west truck route through Lincoln Hights either over Sheperd Lane or otherwise, but excepts such truck traffic as is traveling to or from a residence or place of business within the city of Lincoln Heights "where such vehicle or vehicles are registered or hired." In addition, the ordinance forbids vehicles weighing in excess of twenty thousand pounds, those capable of carrying loads in excess of that weight, vehicles exceeding certain lengths, and contains anti-noise provisions. Before trial below, it was stipulated that the exception of trucks registered or hired within the city was an unconstitutional provision. However, ultimately the court held that such provisions were separable from the ordinance and that it was otherwise constitutional (except for the anti-noise proviso, with which we are not concerned here directly). *Page 87 The sole issue before us is the constitutionality of the ordinance. The general rule to be applied in determining the question is set forth in Froelich v. Clveland, 99 Ohio St. 376, paragraph three of the syllabus of which reads: "The state and municipalities may make all reasonable, necessary and appropriate provisions to promote the health, morals, peace and welfare of the community. But neither the state nor a municipality may make any regulations which are unreasonable. The means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation." This test was applied by this court in Richter Concrete Corp. v. Reading, 103 Ohio App. 67, and by the Supreme Court in its decision of the same case reported in 166 Ohio St. 279. The ordinance with which we are concerned in the case at bar is so markedly similar to that involved in Richter, supra, that we hold the pronouncement of the Supreme Court set forth there to be dispositive of the issue here. "Where an ordinance prohibits the operation of trucks over a certain weight on all the streets of a municipality, excepting the only state highway therein, and further excepting operations for loading or unloading at a residence, place of business or industry in the municipality or traveling to or from a residence, place of business or industry where such trucks are registered or hired, such ordinance is discriminatory against nonresidents of such municipality, is an unreasonable classification, is violative of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and Section 2 of Article I of the Ohio Constitution and is invalid." We fail to see how the provision in the questioned ordinance, to wit; "Provided further that said public streets may be used by such vehicles for the purpose of loading or unloading in whole or part said vehicle or vehicles at a *Page 88 residence, place of business or industry within the boundaries of the city of Lincoln Heights, Ohio; provided further, that said public streets may be used by such vehicles for the purpose of traveling to or from a residence, place of business or industry within the city of Lincoln Heights, Ohio, where said vehicle or vehicles are registered or hired," is separable from the ordinance as a whole, after viewing such phase of the question in the light of State, ex rel. Squire, v. Cleveland, 150 Ohio St. 303 (particularly at page 336), and the opinion of Taft, J., in State, ex rel. English, v. Industrial Commission, 160 Ohio St. 215. Therefore, we conclude that a municipal ordinance which prohibits the operation through the municipality of any vehicle exceeding a certain weight, or capable of carrying loads in excess thereof, excepting vehicles registered or hired within the municipality is discriminatory against nonresidents of such municipality, is an unreasonable classification, is violative of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and Section 2 of Article I of the Ohio Constitution, and is invalid. Judgment accordingly. LONG, P. J., and HILDEBRANT, J., concur. *Page 89

2016-07-06 06:41:47.361375+00

Hoffman

{¶ 17} I concur in the majority's disposition and generally in its analysis of appellant's sole assignment of error. I begin by clarifying what I believe to be the procedural posture of this case, as it has an impact on my decision. {¶ 18} On September 7, 2006, defendant-appellee filed a motion to disclose the transcript of grand jury proceedings. The motion requested that a transcript of the grand jury proceedings and, more specifically, the testimony of the victim, be *Page 388 disclosed to the judge for an in camera inspection. Via judgment entry filed that same day, the trial court ordered appellant to provide the transcript of the grand jury proceedings to the court, noting therein the objection by the appellant to the request.1 {¶ 19} Following appellant's motion to reconsider, a hearing was conducted. Because of perceived inconsistencies between the Akron General Children's Hospital records and the bill of particulars filed by appellant on August 18, 2006, the trial court concluded that there are obviously inconsistencies between what the alleged victim said at the grand jury and what she said at Akron General Children's Hospital. Based thereon, the trial court concluded that a particularized need for disclosure existed. As a result of that conclusion, the trial court orally ordered that appellant produce the grand jury testimony and that defendant-appellee is entitled to it. {¶ 20} The majority finds that the trial court further speculated that because there were inconsistencies between the hospital records and the bill of particulars, there must also be inconsistencies between the grand jury testimony and other statements made by the child during the investigation (¶ 3).2 While I disagree with the majority's characterization of the trial court's conclusion as "further" speculation relating to its comparison of the hospital records and the bill of particulars, it is mere speculation at this point that the alleged victim's trial testimony will be inconsistent with her grand jury testimony or, for that matter, with her statement in the hospital records. If her trial testimony is, in fact, inconsistent with her statement in the hospital records, she may be impeached by those hospital records. {¶ 21} While particularized need is not generally demonstrated by pretrial allegations of potentially inconsistent testimony,3 I believe that if there is demonstrated a reasonable suspicion that inconsistencies may exist, then a pretrial in camera review by the trial court may be warranted. To that extent, I concur in the majority's conclusion that one more step is necessary before disclosure to appellee: i.e., an in camera inspection by the trial court. {¶ 22} The majority concludes that the trial court's relinquishment of the transcript to appellee is premature. While the trial court may have indicated *Page 389 orally at the reconsideration hearing that appellee is entitled to the grand jury testimony, the November 3, 2006 judgment entry merely denies reconsideration. {¶ 23} The effect of that denial leaves the September 7, 2006 judgment entry as the controlling order of the court. As noted previously, that entry does not order the transcript disclosed to appellee, but, rather, orders it disclosed to the court. It may well be that the trial court intends to do that which the majority finds it fails to acknowledge it must do. However, because of the uncertainty of the trial court's intended action based upon the possible discrepancy between the interpretation of its judgment entries and its oral pronouncements at hearing, I join in the majority's decision to reverse the trial court's judgment and remand the cause as the safest way to avoid premature disclosure. 1 To that extent, I believe that the majority has mischaracterized die trial court's entry. The trial court did not order appellant to provide the transcript to the appellee, nor was the order issued sua sponte. 2 The trial court actually concluded that obvious inconsistencies existed between the alleged victim's grand jury testimony and what she said at Akron General Children's Hospital. 3 State v. Burkhart (Apr. 15, 1991), Clermont App. No. CA 90-04-040, 1991 WL 57104.

2016-09-28 23:44:23.343624+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=11&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa11%5cOpinion

Opinion filed December 3, 2015 In The Eleventh Court of Appeals ____________ No. 11-15-00282-CR ____________ ANDREW SLOAN ROBINSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 106th District Court Dawson County, Texas Trial Court Cause No. 14-7378 MEMORANDUM OPINION Appellant, Andrew Sloan Robinson, originally pleaded guilty to the second- degree felony offense of evading a motor fuel tax. The trial court assessed Appellant’s punishment in accordance with the terms of his plea agreement and placed him on community supervision. The State subsequently filed a motion to revoke Appellant’s community supervision, and the trial court revoked Appellant’s community supervision and assessed his punishment at confinement for a term of five years. We dismiss the appeal.  This court notified Appellant by a letter dated November 9, 2015, that we had received information from the trial court that Appellant waived his right of appeal in this cause. The trial court certified that Appellant waived his right of appeal. See TEX. R. APP. P. 25.2. The trial court’s certification was signed by Appellant, his attorney, and the judge of the trial court. We requested that Appellant respond and show grounds to continue the appeal. Appellant has filed a response in which he states that the appeal should be dismissed and that the notice of appeal was filed based upon a mistaken belief. Rule 25.2(d) provides that an appeal must be dismissed absent a certification that shows that the defendant has a right of appeal. TEX. R. APP. P. 25.2(d). The clerk’s record contains various waivers that coincide with the revocation of Appellant’s community supervision. These waivers were signed by Appellant and his attorney. Among the waivers was a “WAIVER OF APPEAL” in which Appellant affirmatively, “freely, voluntarily, and intelligently waive[d] and abandon[ed] [his] right of appeal in this case.” The documents in the clerk’s record support the trial court’s certification and show that Appellant waived his right of appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005). Accordingly, we must dismiss this appeal without further action. TEX. R. APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675 , 680 (Tex. Crim. App. 2006). Accordingly, this appeal is dismissed. PER CURIAM December 3, 2015 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J. 2

2016-09-28 23:44:35.197453+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=3279&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa06%5cOrder

ACCEPTED 04-15-00514-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/27/2015 4:09:14 PM KEITH HOTTLE CLERK NO. 04-15-00514-CV IN THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS SELECT BUILDING SYSTEMS, INC. AND TRI-BAR RANCH COMPANY, LTD. V. ROBERTSON ELECTRIC, INC. ___________________________________________________ NOTICE OF ENTRY OF APPEARANCE AND DESIGNATION OF LEAD APPELLATE COUNSEL ___________________________________________________ TO THE HONORABLE FOURTH COURT OF APPEALS: Samuel V. Houston, III, files this Notice of Entry of Appearance and Designation of Lead Counsel in this appeal on behalf of Appellant Tri-Bar Ranch Company, Ltd. John W. Slates and Colbie Brazell will continue as co- counsel in this appeal. For purposes of this appeal, Mr. Houston is designated lead attorney for Appellant Tri-Bar Ranch Company, Ltd. and requests that all mail and inquiries be directed to him at the address and number below. Respectfully submitted, /s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III State Bar No. 24041135 HOUSTON DUNN, PLLC 4040 Broadway, Suite 440 San Antonio, Texas 78209 Phone: (210) 775-0882 Fax: (210) 826-0075 sam@hdappeals.com JOHN W. SLATES State Bar No. 07246700 COLBIE BRAZELL State Bar No. 24066095 SLATES HARWELL, LLP 1700 Pacific Avenue, Suite 3800 Dallas, Texas 75201 Phone: (469) 317-1000 Fax: (469) 317-1100 jslates@slatesharwell.com cbrazell@slatesharwell.com ATTORNEYS FOR APPELLANT TRI-BAR RANCH COMPANY, LTD. 2  CERTIFICATE OF SERVICE I certify that a true and correct copy of foregoing motion was served on the 27th day of August 2015, by electronic mail and/or electronic service to: Tom C. Clark DEALEY, ZIMMERMANN, CLARK, MALOUF & BLEND, P.C. tclark@texlex.com Jimmie L. J. Brown, Jr. LAW OFFICE OF JIMMIE L. J. BROWN, JR. lawserv@sbcglobal.net Jonathan Cluck THE NUNLEY FIRM jcluck@nunleyfirm.com /s/ Samuel V. Houston, III Samuel V. Houston, III 3

2016-07-06 06:41:40.190575+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: INTRODUCTION {¶ 1} BFI Waste Systems of Ohio Inc. removed over 1800 tons of contaminated soil for renovation of the Lorain City Jail, but did not get paid for its work. BFI sued the project's general contractor, the project's subcontractor, and the sub-subcontractor that had hired it. BFI claimed it had a contract with the sub-subcontractor; the sub-subcontractor had breached that contract; and the general contractor, the subcontractor, and the sub-subcontractor were all unjustly enriched by its removal of the dirt. The trial court granted summary judgment to the *Page 2 general contractor and the subcontractor, and BFI obtained a judgment against the sub-subcontractor. This Court affirms the trial court's award of summary judgment to the general contractor and subcontractor, because BFI has not established that there are genuine issues of material fact in dispute regarding whether it is able to recover from the sub-subcontractor, and, therefore, it is not entitled to recover from the general contractor and the subcontractor. FACTS {¶ 2} The City of Lorain hired a general contractor to renovate its jail. Completion of the work required removal of up to 2200 tons of contaminated soil. The general contractor contracted with a subcontractor to perform the soil removal. In turn, the subcontractor solicited bids for the work. BFI was one of the companies that submitted a bid, but, because of credit issues, did not enter into a direct contract with the subcontractor. {¶ 3} The parties disagree over what company the subcontractor actually hired to remove the soil. BFI has claimed that the subcontractor accepted the bid of a sub-subcontractor that, in turn, hired it. BFI has also claimed that the sub-subcontractor received partial payment from the subcontractor for its work. The subcontractor, however, has claimed that it rejected the sub-subcontractor's bid and that the sub-subcontractor then authorized it to negotiate with a company affiliated with one of the sub-subcontractor's employees. The subcontractor has further claimed that it submitted a purchase order to that other company and that it *Page 3 paid that company's invoices for the soil removal. The subcontractor has admitted that it hired the sub-subcontractor to perform other work for it, but not the soil removal. {¶ 4} BFI sued the sub-subcontractor for breach of contract and sued the general contractor, the subcontractor, and the sub-subcontractor for unjust enrichment. The general contractor and subcontractor moved for summary judgment, and the trial court granted their motions. The trial court determined that BFI's claim against the general contractor failed because it paid the subcontractor for the soil removal and because the sub-subcontractor was available to satisfy BFI's claim. It determined that BFI's claim against the subcontractor failed because BFI could not satisfy the elements of unjust enrichment. BFI subsequently obtained a judgment against the sub-subcontractor for its damages, but it has appealed the trial court's award of summary judgment to the general contractor and subcontractor. SUMMARY JUDGMENT {¶ 5} BFI has assigned six errors, each addressed to whether the trial court incorrectly granted the general contractor and the subcontractor summary judgment on its unjust enrichment claims. In reviewing a trial court's ruling on a motion for summary judgment, this Court applies the same standard a trial court is required to apply in the first instance: whether there are any genuine issues of *Page 4 material fact and whether the moving party is entitled to judgment as a matter of law. Parenti v. Goodyear Tire Rubber Co.,66 Ohio App. 3d 826, 829 (1990). UNJUST ENRICHMENT {¶ 6} "The doctrine of unjust enrichment is that a person will not be allowed to profit or enrich himself inequitably at another's expense. . . . 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." Lampshader Inc. v. Crane Constr., 9th Dist. No. 94CA006010, 1995 WL 688794 at *2 (Nov. 22, 1995) (quoting FairfieldReady Mix v. Walnut Hills Assocs. Ltd., 60 Ohio App. 3d 1, 3 (1988)). To recover for unjust enrichment, a plaintiff must demonstrate: (1) that it conferred a benefit upon the defendant; (2) that the defendant knew of the benefit; and (3) that, under the circumstances, it would be unjust to allow the defendant to retain the benefit without payment.Hambleton v. R.G. Barry Corp., 12 Ohio St. 3d 179, 183 (1984) (citingHummel v. Hummel, 133 Ohio St. 520, 525 (1938)). {¶ 7} Before a subcontractor can pursue an unjust enrichment claim against a property owner, it must establish that the general contractor is "unavailable for judgment and unable to pursue the owner for the money that the subcontractor is seeking." Booher Carpet Sales Inc. v.Erickson, 2d Dist. No. 98-CA-0007, 1998 WL 677159 at *7 (Oct. 2, 1998). "[A]n unjust enrichment claim will not lie where the possibility exists that either the subcontractor could make a *Page 5 double recovery or the homeowner could pay twice for the same performance." Id. {¶ 8} BFI has argued that Booher only applies to unjust enrichment claims against property owners in home construction cases. It has asserted that the court in Booher was guided, in part, by a statutory provision on mechanic's liens, known as the "Home Owner's Amendment."Id. at *8 (noting that Section 1311.011(B) of the Ohio Revised Code protects a homeowner from having to pay both a general contractor-builder and a subcontractor for the same services). Because this case involves the construction of a government building and does not involve any claims against the property owner, BFI has argued that it must only satisfy the traditional three-part test to prove its unjust enrichment claims. {¶ 9} The same equitable principles that require the general contractor to be unavailable for judgment and unable to pursue a claim against the owner in homeowner cases are equally applicable to this case. Parties should not be able to recover, or be required to pay, twice for the same performance. BFI has not established that there are any material differences between cases in which a property owner hires a general contractor that hires a subcontractor, and those in which a general contractor hires a subcontractor that hires a sub-subcontractor. The trial court did not err by applying these principles to BFI's unjust enrichment claims. *Page 6 {¶ 10} BFI has argued that Booher does not apply to its claim against the subcontractor because the subcontractor, allegedly, paid the wrong company for the soil removal. BFI has further argued thatBooher does not apply to its claim against the general contractor because, although the general contractor knew BFI had removed the soil, it allowed the subcontractor to pay the wrong company for BFI's work. {¶ 11} At most, the general contractor's and subcontractor's actions could cause the sub-subcontractor to be unable to pursue those companies for the money BFI is seeking. This may provide justification for requiring the general contractor and subcontractor to pay again for the work. BFI, however, has still failed to raise a genuine issue of material fact regarding whether the sub-subcontractor is unavailable for judgment. Even if it is equitable, under the circumstances, to require the general contractor and subcontractor to pay again, BFI's unjust enrichment claims against the general contractor and subcontractor could lead to a double recovery for BFI. See Coyne v. Hodge Constr. Inc., 9th Dist. No. 03CA0061-M, 2004-Ohio-727, at ¶ 6 (concluding subcontractor could not recover against property owner because there was no question that the general contractor remained a party to the suit and had not filed for bankruptcy). The trial court did, in fact, enter judgment for BFI against the sub-subcontractor. Accordingly, the trial court did not err when it concluded that the general contractor and *Page 7 subcontractor were entitled to judgment on BFI's unjust enrichment claims as a matter of law. BFI's assignments of error are overruled. CONCLUSION {¶ 12} BFI may not recover from the project's general contractor and subcontractor for unjust enrichment because it failed to establish that the sub-subcontractor it signed a contract with is unavailable for judgment. BFI's assignments of error are overruled and the judgment of the Lorain 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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this *Page 8 judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to appellant. SLABY, P. J. MOORE, J. CONCUR *Page 1

2016-07-06 06:41:40.250386+00

JOURNAL ENTRY AND OPINION *Page 3 {¶ 1} This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. {¶ 2} The City of Cleveland appeals from the judgment of the Cleveland Municipal Court which imposed neither a fine nor costs following defendant Henry Curtis's conviction for driving an unsafe vehicle in violation of Cleveland Cod. Ord. 437.01. For the reasons set forth below, we affirm in part, reverse in part and remand for further proceedings as to court costs. {¶ 3} On March 2, 2007, defendant was cited for disregarding a stop sign. He then entered into a plea agreement with the city and entered a guilty plea to operating an unsafe vehicle. According to the city, defendant was to pay a fine of $150. {¶ 4} Thereafter, the trial court accepted the plea but did not impose the fine. Instead the court ordered defendant to perform community service and, noting that he is a pastor, his regular duties satisfied the community service requirements. The City of Cleveland now appeals, and assigns three errors for our review. {¶ 5} For its first assignment of error, the city asserts that the trial court erred in disregarding the plea it had worked out which required defendant to pay a fine of $150. For its second assignment of error, the city asserts that the court erred and violated the Establishment Clause when it noted that it would not fine defendant, a member of the clergy. *Page 4 {¶ 6} As to our standard of review, we note that the decision to accept or refuse a guilty plea in a criminal offense is within the sound discretion of the trial court, and such determination will not be reversed by an appellate court except upon a showing of a clear abuse of discretion. Akron v. Ragsdale (1978), 61 Ohio App.2d 107, 109, 399 N.E.2d 119. {¶ 7} As to the imposition of a fine in the first instance, we note that the trial court is vested with discretion as to whether to impose a fine. R.C. 2929.28; State v. Perz, Lucas App. No. L-06-1359,2007-Ohio-3962. Although some offenses result in mandatory fines, Cleveland Cod. Ord. 437.01 does not require the imposition of a fine. {¶ 8} The Establishment Clause requires government neutral as the state may not favor or endorse religion over nonreligion, one religion over others or adherents over nonadherents. See Lynch v. Donnelly (1984), 465 U.S. 668, 688, 79 L.Ed.2d 604, 104 S.Ct. 1355. (O'Connor, J., concurring). {¶ 9} In this matter, the record indicates that the fine was waived in favor of community service and the court then noted that defendant performs community services as a clergyman. Again, no fine was required, and the court has discretion as to financial sanctions under R.C.2929.28. We cannot say that the trial court abused its discretion and violated the Establishment Clause in this case. {¶ 10} These assignments of error are overruled. {¶ 11} For its third assignment of error, the city asserts that the trial court erred *Page 5 in refusing to require defendant to pay court costs. {¶ 12} R.C. 2947.23 provides: {¶ 13} "In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs * * * ." {¶ 14} Similarly, Cleveland Cod. Ord. 149.08 provides: {¶ 15} "In all cases when any person is found guilty of violating any ordinance of the City and fined, he shall be adjudged to pay all the costs imposed in the case." {¶ 16} In Cleveland v. Tighe, Cuyahoga App. Nos. 81767 and 81795, 2003-Ohio-1845, this court noted that the following costs are assessed in the Cleveland Municipal Court: {¶ 17} "The basic court cost fee is set at $65. Of the total, $20.00 is forwarded to the city's general revenue fund. The collection of this cost is mandatory under Title VII Section 149.08 of the Codified Ordinances of the City of Cleveland. With respect to the state costs, $9.00 is paid to the victims of crime fund under R.C. 2743.70, and $11.00 is paid to the general revenue fund under R.C. 2949.091. A $3.00 fee is collected for computerization under R.C. 1901.261(A)(1), and an additional $10.00 computerization fee is collected under R.C.1901.261(B)(1). Lastly, a special project fee of $12.00 is collected under 1901.26(B)(1). These costs are approved by the judges of the Cleveland Municipal Court." {¶ 18} In Tighe, the trial court stated that it was waiving costs because the *Page 6 prisoner had paid his attorney over $1,000 and the court wanted to "give him a break." This Court reversed and remanded and determined that the trial court erred by suspending all court costs without a finding of indigency. {¶ 19} The Tighe Court stated: {¶ 20} "In criminal cases, the Ohio Revised Code mandates that certain costs be assessed against a defendant who is convicted of or pleads guilty to an offense. R.C. 2947.23 states: `In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs * * *.' The use of the word `shall' in this statute denotes that compliance is mandatory. State v.Satta, Marion App. No. 9-01-38, 2002-Ohio-5049. Nevertheless, the legislature has indicated through other statutory provisions that these costs may be waived for indigent defendants. See R.C. 2949.14 (requiring the clerk of the court to certify a complete itemized bill of the costs made in the prosecution of a "nonindigent" person convicted of a felony); R.C. 2949.15 (requiring the clerk of the court to issue a writ of execution if a "nonindigent" person convicted of a felony fails to pay the costs of prosecution); see also State v. Clark, Pickaway App. No. 02CA12, 2002-Ohio-6684 (holding court costs may not be assessed against an indigent defendant in a felony case). {¶ 21} "Municipal courts are also required, pursuant to R.C. 2743.70 and R.C. 2949.091, to impose [certain additional] specific sums as costs against nonindigent individuals who are convicted of or plead guilty to any offense other than a traffic *Page 7 offense that is not a moving violation. R.C. 2949.091(A)(1) requires a court to impose `the sum of eleven dollars as costs in the case in addition to any other court costs' for the state's general revenue fund. R.C. 2743.70 requires a court to impose the sum of nine dollars if the offense is a misdemeanor for the state's reparations fund. Both of these statutes provide that the additional court cost may not be waived `unless the court determines that the offender is indigent and waives the payment of all court costs imposed upon the indigent offender.' R.C.2949.091; R.C. 2743.70 (emphasis added); see also, 1993 Atty.Gen.Ops. No. 93-009; 1991 Atty.Gen.Ops. No. 91-039; 1991 Atty.Gen.Ops. No. 91-022 (recognizing that the `additional costs' may not be waived absent a determination that an individual is indigent). {¶ 22} In this matter, there was no finding of indigency so as to justify nonpayment of those costs which are mandatory costs. {¶ 23} This assignment of error is well-taken. Affirmed in part, reversed in part and remanded for proceedings as to costs. It is ordered that appellee and appellant split the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. *Page 8 JAMES J. SWEENEY, P.J., and PATRICIA ANN BLACKMON, J., CONCUR. *Page 1

2016-07-06 06:41:40.298893+00

OPINION {¶ 1} Defendant-appellant Brandon Bowman appeals his sentence from the Delaware County Court of Common Pleas on two counts of theft. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶ 2} On July 11, 2003, the Delaware County Grand Jury indicted appellant on one count of attempted burglary in violation of R.C. 2923.02(A), and 2911.12, two counts of burglary in violation of R.C. 2911.12(A)(3) and two counts of theft in violation of R.C. 2913.02(A)(1). While one of the counts of theft was a felony of the fourth degree, the other was a felony of the fifth degree. At his arraignment on March 5, 2004, appellant entered a plea of not guilty to the charges contained in the indictment. {¶ 3} Subsequently, a jury trial commenced on October 5, 2004. As memorialized in a Judgment Entry filed on October 8, 2004, appellant was found guilty of one count of theft (the value of the property involved being more than $500.00 and less than $5,000.00), a felony of the fifth degree, and one count of theft (the value of the property being less than $500.00), a misdemeanor of the first degree. Appellant was found not guilty of the remaining counts. Pursuant to a Judgment Entry filed on March 4, 2005, appellant was sentenced to twelve months in prison, the maximum sentence for theft when it is a felony of the fifth degree. The trial court, in its entry, ordered appellant's sentence to be served consecutive to a sentence that appellant was serving on a case from Lorain County. {¶ 4} Appellant now raises the following assignments of error on appeal: {¶ 5} "I. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT BECAUSE THE FINDINGS SUPPORTING APPELLANT'S EXCEPTIONAL SENTENCE, THAT IS, CONSECUTIVE, MAXIMUM PRISON SENTENCE, WERE MADE BY THE COURT AND WERE NEITHER ADMITTED BY THE APPELLANT NOR FOUND BY A JURY; THEREFORE, THE SENTENCE VIOLATED HIS RIGHT TO TRIAL BY JURY AS GUARANTEED UNDER THE SIXTH AMENDMENT AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. {¶ 6} "II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY IMPOSING CONSECUTIVE PRISON SENTENCES UPON THE DEFENDANT-APPELLANT INSTEAD OF SENTENCING HIM TO COMMUNITY CONTROL SANCTIONS FOR A FELONY OF THE FIFTH A [SIC] DEGREE AND THEREBY DENIED APPELLANT EQUAL PROTECTION UNDER THE LAW." I, II {¶ 7} Appellant, in his two assignments of error, argues that the trial court erred in sentencing him to a consecutive, maximum prison sentence based on findings that were neither admitted by appellant nor found by a jury. Appellant contends that the trial court's imposition of a maximum, consecutive sentence violated appellant's Sixth Amendment right to trial by jury, as defined inApprendi v. New Jersey (2000), 530 U.S. 466, 490,120 S.Ct. 2348, 147 L.Ed.2d 435) and Blakely v. Washington (2004),542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. We agree. {¶ 8} In Blakely, supra. the United States Supreme Court held that if a defendant's sentence is increased beyond the maximum term authorized by a jury verdict or admission of the defendant, the facts to support that increase must either be heard by a jury under a beyond a reasonable doubt standard, or admitted by the defendant. See also Apprendi v. New Jersey (2000), 530 U.S. 466, 490, 120 S. Ct. 2348. {¶ 9} In State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470,2006-Ohio-856, which was decided on February 27, 2006, the Ohio Supreme Court recently held that R.C. 2929.14(E)(4), which governs the imposition of consecutive sentences, violatesBlakely, supra. The court noted that R.C. 2929.14(E)(4) and R.C. 2929.19(B)(2)(c) require a trial court imposing consecutive sentences to make statutorily enumerated findings and give reasons supporting such findings. With respect to R.C.2929.14(E), the Ohio Supreme Court held, in a relevant part, as follows: "because the total punishment increases through consecutive sentences only after judicial findings beyond those determined by a jury or stipulated to by a defendant, R.C.2929.14(E)(4) violates principles announced in Blakely." Id. at paragraph 67. On such basis, the court found R.C. 2929.14(E)(4) unconstitutional. {¶ 10} Furthermore, in Foster, the Ohio Supreme Court held that R.C. 2929.14(C), which governs maximum prison terms, does not comply with Blakely and is therefore, also unconstitutional. Revised Code 2929.14(C) states that "the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section." In holding such section unconstitutional, the Ohio Supreme Court, in Foster, held as follows: "We have consistently held that R.C. 2929.14(C) requires that specific findings be made before a maximum sentence is authorized. . . . As it stands, R.C. 2929.14(C) creates a presumption to be overcome only by judicial fact finding. It does not comply with Blakely." Id. at paragraph 64 (Citations omitted). {¶ 11} In Foster, the Ohio Supreme Court held that its decision was to be applied to all cases pending on direct review or not yet final. We further note that the Ohio Supreme Court, inFoster, held that the unconstitutional provisions could be severed and that, after severance, "[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id at paragraph seven of the syllabus. {¶ 12} In light of the Ohio Supreme Court's recent decision in Foster, this Court must vacate appellant's sentence and remand for resentencing. We note that the parties in this case have jointly requested that this matter be remanded for resentencing in light of Foster, supra. {¶ 13} Appellant's two assignments of error are, therefore, sustained. {¶ 14} Accordingly, appellant's sentence is vacated. The cause is remanded for resentencing. Edwards, J. Gwin, P.J. and Boggins, J. concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Delaware County Court of Common Pleas is vacated and this matter is remanded for re-sentencing. Costs assessed to appellee.

2016-07-06 06:41:40.323389+00

OPINION The defendant, William C. Sampson, was indicted for two counts of rape of a person under the age of thirteen in violation of R.C. 2907.02 and for two counts of gross sexual imposition of a person under the age of thirteen in violation of R.C. 2907.05. Subsequently, Sampson entered a plea of guilty to one count of rape of a person under the age of thirteen, and was sentenced to a term of imprisonment for a period of eight years. At the time of the alleged offenses, the victim was six years of age. Thereafter, a sexual offender classification hearing was conducted pursuant to R.C. 2950.09, and on January 19, 1999, the Common Pleas Court found the appellant, Sampson, to be a sexual predator. In the present appeal, the appellant has stated his only assignment of error as follows: THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE WHEN IT ENTERED A JUDGMENT THAT APPELLANT BE CLASSIFIED AS A SEXUAL PREDATOR PURSUANT TO R.C. 2950, WHERE SUCH JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In support of the alleged error, the appellant argues that the weight of the evidence "falls on the side of appellant being classified as a habitual sexual offender and not a sexual predator," but the question presented to this court, more precisely, is whether the record discloses sufficient clear and convincing evidence to support the finding of the trial court that Sampson is a sexual predator within the contemplation of R.C.2950.09. A "sexual predator" is "a person who has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." R.C. 2950.01(E). Here, the undisputed evidence presented at the hearing revealed that Sampson was convicted thirteen years earlier, when he was eighteen years of age, for having sexual relations with a developmentally retarded fourteen-year-old friend of his sister. Hence, the paramount issue for determination at the hearing was whether Sampson "is likely to engage in the future in one or more sexually oriented offenses." At the hearing, the Common Pleas Court was favored with the testimony of three witnesses, Mary Williams, a sex offender specialist from the Montgomery County Adult Probation Department, Susan Dyer, a court-appointed psychologist, and James Barna, a defense psychologist. All of these witnesses were well qualified by training and experience, and all expressed an awareness of the relevant factors which must be considered in making a determination as to whether or not a sex offender is a sexual predator. See R.C. 2950.09(B)(2). In the trial court, the witness, Williams, recommended that Sampson be designated as a sexual predator, and the witness, Dyer, while refusing to comment upon the ultimate issue, presented testimony to support a reasonable finding that the defendant is a sexual predator. On the other hand, the witness, Barna, concluded that the prior sexual battery conviction supported a finding that Sampson might be labeled a habitual sex offender, but that consideration of all of the factors set forth in R.C.2950.09(B)(2) precluded a finding that he is a sexual predator. Understandably, experts might have honest differences of opinion when merely predicting the future nature of human behavior, but the sorting process, in consideration of all of the evidence, is nonetheless an exclusive prerogative of the trial court. See State v. Thompkins (1997), 78 Ohio St.3d 380. See particularly, State v. Bradley (June 19, 1998), Montgomery App. No. 16662, unreported. As heretofore indicated, the State has the burden of proving by clear and convincing evidence that an individual is a sexual predator. State v. Condron (Mar. 27, 1998), Montgomery App. No. 16430, unreported, affirmed (1998), 84 Ohio St.3d 11, certiorari denied (1999) 119 S.Ct. 1505. However, even in applying this standard of proof, the exhibits and the testimony presented at the hearing reflect sufficient evidence to produce in the mind of the trier of the facts a firm belief and conviction that Mr. Sampson is likely to re-offend in the future. Hence, this court may not interfere with the finding of the Common Pleas Court. The judgment will be affirmed. BROGAN, J., and YOUNG, J., concur. (Hon. Joseph D. Kerns, Retired from the Court of Appeals, Second Appellate District, Sitting by Assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to: Johnna M. Shia. James C. Staton. Hon. Adele M. Riley.

2016-07-06 06:41:39.557077+00

DECISION ATT Network Systems ("ATT"), appellant, appeals a decision of the Franklin County Court of Common Pleas. The trial court sua sponte dismissed ATT's appeal of a decision by the Industrial Commission of Ohio ("commission") for lack of subject matter jurisdiction. On June 29, 1993, Roland Robinson ("Robinson"), appellee, sustained an injury while employed by ATT. Robinson filed a claim for workers' compensation, which was ultimately allowed for "disc herniation at L4-5 and L5-S1; post-laminectomy syndrome." On September 22, 1999, Robinson filed for an additional allowance for the condition of "aggravation of preexisting degenerative disc disease at L4-5, L5-S1" as a direct result of his industrial injury. A district hearing officer ("DHO") granted the motion allowing the condition. ATT pursued further appeals with the commission, but those appeals were denied. On March 3, 2000, ATT filed an appeal with the Franklin County Court of Common Pleas. Robinson filed a "petition\complaint" with the trial court on March 21, 2000, requesting the court allow him to continue to participate in the workers' compensation system. On June 14, 2001, the trial court sua sponte dismissed ATT's appeal for lack of subject matter jurisdiction, relying on R.C. 4123.512. ATT appeals the trial court's dismissal and asserts the following assignment of error: The trial court erred when it dismissed ATT's appeal filed pursuant to R.C. 4123.512 for lack of jurisdiction, finding that the issue of whether Plaintiff should be additionally allowed to participate in workers' compensation benefits for the condition of aggravation of pre-existing degenerative disc disease at L4-5 and L5-S1 was an extent of disability issue. ATT argues in its assignment of error the trial court should not have dismissed the appeal based upon lack of subject matter jurisdiction. The Administrator of the Bureau of Workers' Compensation submitted a brief agreeing with ATT's argument that the trial court erred when it dismissed ATT's appeal. Robinson and the commission submitted briefs supporting the administrator's argument.1 Appellate review of a trial court's decision to dismiss a case for lack of subject matter jurisdiction is de novo. Campbell v. Johnson (Dec. 30, 1999), Franklin App. No. 99AP-483, unreported, discretionary appeal not allowed (2000), 88 Ohio St. 3d 1503 . When considering a dismissal for lack of subject matter jurisdiction, the court is not limited to the allegations in the complaint, but may consider any pertinent matter in making its decision. Howard v. Covenant Apostolic Church, Inc. (1997),124 Ohio App. 3d 24, 27. R.C. 4123.512(A) states, in part, "[t]he claimant or the employer may appeal an order of the industrial commission * * * in any injury or occupational disease case, other than a decision as to the extent of disability to the court of common pleas of the county in which the injury was inflicted." Extent of disability involves a calculation of the benefits payable under workers' compensation for compensable losses or impairments of bodily functions. Zavatsky v. Stringer (1978),56 Ohio St. 2d 386, 403. Any decision regarding the amount of compensation a claimant is entitled to receive constitutes a decision as to the extent of disability. Szabo v. Cleveland Clinic Found. (1984), 19 Ohio App. 3d 70,72, following Zavatsky, supra. Also, an order extending compensation but not allowing additional conditions or injuries concerns the extent of disability. Hospitality Motor Inns v. Gillespie (1981), 66 Ohio St. 2d 206,207. Decisions involving extent of disability may be reviewed by a court only by a writ of mandamus action. Zavatsky, supra. A decision going to a claimant's right to participate or to continue to participate in the workers' compensation fund must be appealed to the common pleas court. State ex rel. Hinds v. Indus. Comm. (1999),84 Ohio St. 3d 424, 425. A decision by the commission determines a claimant's right to participate if it finalizes the allowance or disallowance of the claimant's claim. See Felty v. ATT Technologies, Inc. (1992), 65 Ohio St. 3d 234, 239. The essential decision to grant, deny, or terminate a claimant's participation or continued participation in the system is the only commission action appealable under R.C. 4123.512. Id. The trial court held that because Robinson's injuries arose from a single traumatic event and the additional allowance was for the same specific body part, the commission's decision to additionally allow for aggravation of degenerative disc disease was an "extent of disability" question and not a "right to participate" question. The trial court held that the initial allowance of Robinson's claim for disc herniation at L4-5 and L5-S1 constituted the "essential decision" to grant his participation in the workers' compensation fund. The court believed that Robinson's additional allowance claim was not a "right to participate" question because: (1) the motion was filed under the original workers' compensation claim number; (2) there was no intervening accident or injury between the initial allowance and the subsequent motion; and (3) the motion involved the same specific body part as did the initial disc herniation allowance. We will address each of these conclusions by the trial court. The trial court reasoned that because the additional allowance was filed under the same claim number as the initial injury, the claimant's right to participate in the workers' compensation fund had already been determined. However, even though a claim number is administratively assigned, this does not mean that the claim number consists of a single claim for compensation. Zavatsky, supra, at 402. Multiple claims can be filed under the same claim number. Id. Upon receipt of an initial application for benefits, the bureau assigns a claim number that corresponds with the year of injury, and this claim number must appear on all documents subsequently filed in the claim. Ohio Adm. Code4123-3-09(A)(2). Each claim for compensation requires a new determination of whether the injury was causally related to the industrial accident, therefore allowing the claimant the right to participate for that particular injury. Ohio Adm. Code 4123-3-08. The court found that there was no intervening accident or injury between the initial allowance and the subsequent motion. Injury, for workers' compensation purposes, includes an aggravation of a pre-existing condition and is a question of fact for a jury. In order to receive benefits for an injury resulting from an aggravation of a pre-existing condition, the claimant must prove the ultimate disability was "accelerated by a substantial period of time as a result of work." Swanton v. Stringer (1975), 42 Ohio St. 2d 356. There need not be a separate intervening accident because the aggravation of a pre-existing condition is considered an injury if the claimant meets his burden of proof. The court relied upon the fact that the motion for additional allowance involved the same specific part of Robinson's body as the initial allowance. An injured employee is required to give written notice of the specific part or parts of the body claimed to have been injured within two years after the injury, but is not required to include in such notice the specific nature of the physical condition or impairment resulting from such injury. Dent v. ATT Technologies, Inc. (1988), 38 Ohio St. 3d 187. When notice has been given of the specific body part injured, a claimant may apply for additional conditions to the affected area at any point during the life of the claim. Irwin v. Ohio Valley Hosp. Assoc. (Aug. 30, 1999), Jefferson App. No. 97 JE 9, unreported. Robinson was injured in 1993 and filed notice of his lower back injury with the bureau shortly thereafter. In September 1999, Robinson filed for an additional allowance for "aggravation of pre-existing degenerative disc disease at L4-5 and L5-S1." The motion was for the same specific body part, but the nature of the injury was different. The issue raised by Robinson was not concerning to what degree he is disabled due to his disc herniation of L4-5, L5-S1, but, instead, whether he should be allowed to participate in the fund for the condition of "aggravation of pre-existing degenerative disc disease of L4-5, L5-S1." Such a motion questions the right of the claimant to participate in the workers compensation fund for a particular condition and is, therefore, appealable to the common pleas court pursuant to R.C. 4123.512. Accordingly, we sustain ATT's assignment of error and find the trial court erred in its dismissal of ATT's appeal. The judgment of the Franklin County Court of Common Pleas is reversed, and this case is remanded to that court for further proceedings consistent with this decision. Judgment reversed and case remanded. LAZARUS and DESHLER, JJ., concur. 1 We note on October 2, 2001, we granted a motion by the commission to be joined as a party in this appeal. However, since the commission was not a party before the trial court, this motion was improperly granted. Therefore, we accept the commission's brief to be an amicus curiae brief.

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DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellant, Nicholas Abramovich, has appealed from the order of the Summit County Court of Common Pleas that denied his request to terminate child support for his child, Libby. This Court affirms. Appellant and appellee, Kathleen Smyers, were married on September 18, 1971. Three children were born of this marriage: Karen, born September 30, 1976; Libby, born April 29, 1980; and Gregory, born July 16, 1983. On June 4, 1990, the parties entered into a separation agreement. On July 17, 1990, the court entered a decree of dissolution and incorporated the separation agreement into the dissolution decree. On October 25, 1999, appellant moved for termination or modification of child support for Karen and Libby. On January 13, 2000, a hearing on the matter was held before a magistrate. At the hearing, the parties agreed that child support for Karen had been terminated when she turned twenty-one. With respect to appellant's motion to terminate child support for Libby, the magistrate found that Libby was not yet emancipated, and therefore, the motion should be denied. On February 2, 2000, appellant filed objections to the magistrate's decision. On February 11, 2000, appellee replied to appellant's objections. On May 17, 2000, after reviewing the magistrate's decision, appellant's objections, and appellee's response, the trial court denied appellant's motion to terminate child support for Libby. Appellant timely appealed and has raised one assignment of error for review. ASSIGNMENT OF ERROR THE TRIAL COURT ERRED TO THE PRJUDICE OF APPELLANT WHEN IT DENIED APPELLANT'S MOTION TO TERMINATE THE APPELLANT'S SUPPORT OBLIGATION FOR THE PARTIES' DAUGHTER LIBBY DUE TO HER REACHING THE AGE OF EIGHTEEN AND HER GRADUATION FROM HIGH SCHOOL. In his sole assignment of error, appellant has argued that the trial court erred in denying his motion to terminate child support for his daughter Libby. In support of his argument he has alleged that Libby had become emancipated when she turned eighteen and graduated from high school and therefore, pursuant to the separation agreement, child support should have been terminated. This Court disagrees. The separation agreement provides as follows for support of the children of the marriage: Both Husband and Wife hereby agree that Husband shall pay to the Wife a total of $1,552.00 per month, as monetary support payments for the minor children. Said monetary child support payments shall continue until each child respectively, either attains the age of 21 years, or when each child otherwise becomes emancipated[.] Appellant has argued that because Libby is eighteen and has graduated from high school she is emancipated, and child support should be terminated. This Court reviews the trial court's determination that Libby is not an emancipated adult under an abuse of discretion standard. Tovar v. Tovar (Nov. 10, 1993), Cuyahoga App. No. 63933, unreported. "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 party seeking termination of child support bears the burden of proving the emancipation of the child. Bagyi v. Miller (1965),3 Ohio App. 2d 371, 373. Emancipation is the freeing of a minor child from parental control. Price v. Price (1983), 12 Ohio App. 3d 42, paragraph one of the syllabus. The determination as to when a child is emancipated so as to relieve a parent from the obligation of support is dependent upon the individual facts and circumstances of each case. Id. "The term `emancipation' should not be considered as being synonymous with the term `majority.'" Pappas v. Pappas (Dec. 24, 1974), Franklin App. No. 74AP-375, unreported. "There are a number of ways in which the emancipation of a child may occur; (sic.) marriage, enlisting in the armed services, leaving home, becoming employed and self-subsisting, or any other manner indicative of the relinquishment of parental control and support." Tovar, supra, citing Omohundro v. Omohundro (1982),8 Ohio App. 3d 318. Several courts have held that when a child is enrolled in college or a military academy and the facts and circumstances surrounding that family situation indicate that there has not been a renunciation of the parent's right to care or custody of the child, the child is not emancipated. SeeHoward v. Howard (1992), 80 Ohio App. 3d 832; Price v. Price (1983),12 Ohio App. 3d 42; Tovar, supra. The facts in this case are strikingly similar to those presented in the aforementioned cases. Libby is a full-time college student. Appellant and appellee pay for nearly all of Libby's expenses including, but not limited to, tuition, room, and board. Libby lives on campus but returns to her mother's home during the summer and on breaks. She works part-time in a public service related area as a requirement to maintain her scholarship. There is no indication that appellee has renunciated her right to the care and custody of Libby; nor is there any evidence that would indicate that Libby has taken affirmative steps to release herself from parental control. Therefore, this Court cannot find that the trial court erred in finding that Libby was not emancipated and, accordingly, denying appellant's motion for termination of child support. Appellant's assignment of error is without merit and is hereby overruled. 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. ___________________________ DONNA J. CARR SLABY, J., CONCURS, BAIRD, P. J. CONCURS IN JUDGMENT ONLY.

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JOURNAL ENTRY and OPINION {¶ 1} Appellant Damon Clark appeals his conviction for aggravated murder and assigns the following errors for our review: {¶ 2} "I. The trial court erred when it denied appellant's request that the jury be instructed on the lesser included offenses of involuntary and voluntary manslaughter." {¶ 3} "II. There was insufficient evidence of prior calculation and design to support a finding of guilt for the offense of aggravated murder." {¶ 4} "III. The jury's verdict of guilty on the charge of aggravated murder was against the manifest weight of the evidence." {¶ 5} Having reviewed the record and pertinent law, we affirm Damon Clark's conviction. The apposite facts follow. {¶ 6} The Cuyahoga County Grand Jury indicted Clark on one count of aggravated murder with a three-year firearm specification. Clark's two brothers were indicted in the same case on the same charge. His brother Doug Clark was acquitted of the charge. In exchange for a guilty plea to aggravated assault, his brother Jimmie Clark agreed to testify on behalf of the State.1 {¶ 7} At trial, Jimmie Clark testified that prior to the shooting of the victim, someone stole his brother Doug's car speakers. Sometime afterwards, he and his brothers met at their grandmother's house and discussed the theft and concluded Rayneel Reeves had committed the theft. Reeves was a known car thief who had previously repaired the speakers. {¶ 8} During the discussion, Jerdel Griffin and Marlon Bell drove by in Griffin's car. They were friends of Reeves. Doug Clark and Griffin argued, and a fist fight ensued. Damon Clark and Bell pulled the men apart and Griffin left with Bell. {¶ 9} However, approximately twenty minutes later, Griffin returned on foot along with his brother Jermel, Reeves, Dwayne Wilder and Reeves' brother, Tommie Smith. Griffin and Doug Clark fought again and the scuffle continued down the street. Jimmie Clark and Reeves then began to argue. Jermel Griffin returned to the area where Jimmie Clark and Reeves were. Thereafter, Reeves attempted to coerce Griffin and Jimmie Clark to fight. However, Jimmie Clark contended he only "exchanged words" with Griffin. {¶ 10} While Jimmie Clark argued with Griffin, he saw Damon Clark, with a gun in his hand, chasing Reeves. He heard shots and observed Damon Clark aim a gun at Reeves. Reeves fell to the ground. Damon Clark continued running toward Reeves and shot him as Reeves lay on the ground. Reeves' brother Tommie Smith then began shooting at Damon and Jimmie Clark. Jimmie Clark admitted that Damon Clark and Reeves had "problems" in the past, but he did not know what it concerned. {¶ 11} Officer Dwayne Duke testified that at approximately 11:30 p.m. he received a radio broadcast that shots were fired in the area of East 136th Street and Beachwood Avenue. When he arrived, the victim had already been taken to the hospital and a few spectators were present. He retrieved several shell casings from the scene. The shell casings were from a .38 caliber handgun and a .45 caliber handgun. {¶ 12} Doug Wilder testified he was a friend of the Clark brothers and knew that Doug Clark owned a .45 caliber handgun. Wilder was also friends with Reeves and Smith. According to Wilder, on the evening of the shooting, he, Reeves, and Smith were working on a car in his backyard. They went to East 137th Street and Beachwood Avenue around 11:00 p.m. to watch Griffin fight Doug Clark. Wilder saw Griffin and Doug Clark sparring and moving towards East 136th Street. He eventually lost sight of them and walked away, believing the fight was over. As he did so, he heard five to six gunshots. He hid in nearby bushes until the shooting stopped. He then peered from the bushes and saw Reeves lying on the ground with Damon Clark standing next to him pointing a gun at Reeves' back. Thereafter, Wilder observed Damon Clark flee in a vehicle with his two brothers. {¶ 13} Marlon Bell testified he knew all parties involved. He observed the fight between Doug Clark and Griffin earlier in the evening. During that earlier fight, Doug pulled out a .45 caliber handgun and handed it to Damon Clark. Damon Clark then handed the gun to his brother Jimmie Clark. When Bell attempted to break up the fight between Doug Clark and Griffin, Jimmie Clark hit Bell on the head with the gun. Jimmie Clark then handed the gun to Damon Clark, who walked away. {¶ 14} Dr. Heather Raaf, of the coroner's office, testified Reeves suffered two gunshot wounds, one to the head and one through the back. Because of the lack of gunshot residue, Raaf opined the shooter was at least three feet away when the shots were fired. The bullets recovered from the victim's body were consistent with those belonging to a .45 caliber handgun. {¶ 15} Damon Clark turned himself in on November 8, 2002, when he learned police were looking for him. Damon Clark waived his Miranda rights and denied being at the murder scene. He told the police he was with his child's mother all night. All three Clark brothers were arrested in connection with the murder. {¶ 16} The jury found Damon Clark guilty of aggravated murder. The trial court sentenced him to the mandatory sentence of twenty years to life, with a consecutive three-year sentence for the firearm specification. Clark now appeals. {¶ 17} In his first assigned error, Damon Clark argues the trial court erred when it denied defense counsel's request for a jury instruction on involuntary and voluntary manslaughter. {¶ 18} In State v. Davis,2 the Ohio Supreme Court held: {¶ 19} "* * * merely because one offense can be a lesserincluded offense of another does not mean that a court mustalways instruct on both offenses where the greater offense ischarged. * * * The persuasiveness of the evidence regarding thelesser included offense is irrelevant. If under any reasonableview of the evidence it is possible for the trier of fact to findthe defendant not guilty of the greater offense and guilty of thelesser offense, the instruction on the lesser included offensemust be given. The evidence must be considered in the light mostfavorable to defendant." {¶ 20} Involuntary manslaughter is a lesser included offense of aggravated murder.3 The difference between the two offenses is that aggravated murder requires a purpose to kill, while involuntary manslaughter requires only that a killing occurred as a proximate result of committing or attempting to commit a felony.4 The evidence in the instant case indicated that Clark fired a gun directly at Reeves. Once Reeves fell to the ground, Clark shot him again in the back of the head. This evidence hardly supports an involuntary manslaughter charge. The trial court, therefore, did not err in refusing to give the instruction. {¶ 21} Damon Clark also argues the trial court erred by failing to instruct the jury on voluntary manslaughter. Voluntary manslaughter is considered an inferior degree of aggravated murder, since "`its elements are * * * contained within the indicted offense, except for one or more additional mitigating elements.'"5 Before giving an instruction on voluntary manslaughter in a murder case, the trial court must determine "whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant such an instruction."6 The initial inquiry requires an objective standard: "For provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control."7 If this objective standard is met, the inquiry shifts to a subjective standard, to determine whether the defendant in the particular case "actually was under the influence of sudden passion or in a sudden fit of rage."8 {¶ 22} Damon Clark argues that Reeves provoked him by acting as a back-up for Griffin during the fight between Griffin and Doug Clark. However, that is not sufficient provocation to warrant an instruction on voluntary manslaughter. Furthermore, it appears the provoking incident was Reeves' theft of Doug Clark's car speakers, which is also insufficient provocation to "arouse the passions of an ordinary person beyond the power of his or her control." Moreover, Damon Clark shot Reeves once, causing Reeves to fall to the ground; he then shot him again as Reeves lay on the ground, which demonstrates a purposeful killing. {¶ 23} Because the objective standard of provocation was not met, there is no need to determine if Damon Clark was "subjectively" sufficiently provoked to warrant a voluntary manslaughter instruction. Accordingly, Damon Clark's first assigned error is overruled. {¶ 24} In his second and third assigned errors, Damon Clark argues the evidence was insufficient to support his murder conviction; he also argues his conviction was against the manifest weight of the evidence. He argues that under both standards, the State failed to produce evidence of prior calculation. {¶ 25} Damon Clark was convicted of aggravated murder, in violation of R.C. 2903.01(A), which provides in pertinent part: "(A) No person shall purposely, and with prior calculation and design, cause the death of another[.]" {¶ 26} "Prior calculation and design" is not defined in the Ohio Revised Code, but it is considered to be more than just an instantaneous decision to kill.9 In State v.Taylor,10 the Ohio Supreme Court concluded that "it is not possible to formulate a bright-line test that emphatically distinguishes between the presence or absence of `prior calculation and design.'"11 In State v.Jenkins,12 the court set forth the following three factors that may be considered to determine if the murder was committed with prior calculation and design: (1) whether the accused and the victim knew each other, (2) whether there was thought or preparation in choosing the murder weapon or the murder site, and (3) whether the act was "drawn out" or "an almost instantaneous eruption of events." Prior calculation and design can be found even when the plan to kill was quickly conceived and executed.13 {¶ 27} In the instant case, the State presented evidence that the Clark brothers suspected Reeves stole Doug Clark's car speakers, and they met to discuss the matter. Therefore, there was evidence that the parties knew each other. Prior to the murder, an altercation regarding the stereo equipment erupted between Doug Clark and Griffin, Reeves' friend. A second altercation occurred between Griffin and Doug Clark later that night. At the end of the second altercation, Damon Clark, with a gun in his hand, pursued Reeves. The evidence indicated Damon Clark did not usually carry a gun and that the gun, in fact, belonged to Damon Clark's brother, Doug. Damon Clark's obtaining possession of the gun indicates some prior thought to do harm to Reeves. After shooting Reeves, Damon Clark approached him and shot him in the back of his head, which occurred seconds after the victim was shot the first time. These factors indicate Damon Clark had formulated a plan to kill Reeves. {¶ 28} Upon a review of all the facts and circumstances surrounding Reeves' death, we conclude the evidence in this case was sufficient for any rational trier of fact to conclude that Damon Clark engaged in more than a mere "instantaneous deliberation" with respect to Reeves' murder. {¶ 29} Damon Clark's conviction was also not against the manifest weight of the evidence. Although Damon Clark's brother, Jimmie, received a favorable plea in exchange for his testimony, and Wilder and Bell were Reeves' friends, the jury was fully apprised of this information. Any credibility issues regarding their testimony was for the jury to resolve.14 Accordingly, Damon Clark's second and third assigned errors are overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Celebrezze, Jr., J., and Cooney, J., concur. 1 For clarity, the Clark brothers' full names will be used in this opinion. 2 (1983), 6 Ohio St. 3d 91, 95. 3 State v. Thomas (1988), 40 Ohio St. 3d 213, paragraph one of the syllabus. 4 State v. Jenkins (1984), 15 Ohio St. 3d 164, 218. 5 State v. Benge, 75 Ohio St. 3d 136, 140, 1996-Ohio-227, quoting State v. Deem (1988), 40 Ohio St. 3d 205, paragraph two of the syllabus. 6 State v. Shane (1992), 63 Ohio St. 3d 630, paragraph one of the syllabus. 7 Id. at 635. 8 Id. 9 State v. Jones, 91 Ohio St. 3d 335, 348, 2001-Ohio-57. 10 (1997), 78 Ohio St. 3d 15, 18-20. 11 Id. at 20. 12 (1976), 48 Ohio App. 2d 99, 102. 13 State v. Coley, 93 Ohio St. 3d 253, 263, 2001-Ohio-1340, citing State v. Palmer, 80 Ohio St. 3d 543, 567-568,1997-Ohio-312; State v. Green, 90 Ohio St. 3d 352, 358,2000-Ohio-182. 14 State v. DeHass (1967), 10 Ohio St. 2d 230.

2016-07-06 06:41:39.791112+00

OPINION *Page 2 {¶ 1} This is an appeal from the granting of a directed verdict issued by the Court of Common Pleas of Fairfield County as to an action predicated on an employer's intentional tort and resulting injuries. STATEMENT OF THE FACTS AND CASE {¶ 2} Appellant Dawn Deal was employed by Appellee C. J. Kraft Enterprises, Inc. on June 17, 2003. Her duties required her to seal cuts of beef in one pound packages, transport these by cart to the floor below her work station and retrieve an empty cart so that these work duties could continue. {¶ 3} A means to transport the filled cart was by way of an elevator or "lift" which Appellee had installed. Such lift was supported by a cable and operated by an electric push button. It did not have any safety means to brake in the event of malfunction. {¶ 4} A malfunction had occurred tens years earlier. {¶ 5} On June 19, 2003, Appellant utilized the lift as instructed. On her third trip, the lift dropped eight feet suddenly as the cable disengaged from its hook. {¶ 6} Appellant suffered an injured heel and broken right ankle. {¶ 7} After the presentation of Appellant's case to the jury, the trial court sustained Appellee's motion for directed verdict. {¶ 8} The Assignment of Error: ASSIGNMENT OF ERROR {¶ 9} "I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS/APPELLEES C. J. KRAFT ENTERPRISES' ET AL. MOTION FOR A DIRECTED VERDICT BY RULING THAT REASONABLE MINDS COULD COME TO *Page 3 BUT ONE CONCLUSION AND THAT CONCLUSION IS APPELLEES DID NOT COMMIT AN INTENTIONAL TORT THAT DIRECTLY AND PROXIMATELY CAUSED INJURY TO PLAINTIFFS/APPELLANTS DAWN DEAL ET AL. I. {¶ 10} Civil Rule 50(A)(4) and (E) provide: {¶ 11} "(A)(4) When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue." {¶ 12} "* * *" {¶ 13} "(E) Statement of basis of decision. When in a jury trial a court directs a verdict or grants judgment without or contrary to the verdict of the jury, the court shall state the basis for its decision in writing prior to or simultaneous with the entry of judgment. Such statement may be dictated into the record or included in the entry of judgment." {¶ 14} Additional case law on the standard applicable to a motion for directed verdict was referenced by the Ohio Supreme Court in Estate ofCowling v. Estate of Cowling (2006), 109 Ohio St. 3d 276: {¶ 15} "The law in Ohio regarding directed verdicts is well formulated. In addition to Civ.R. 50(A), it is well established that the court must neither consider the weight of the evidence nor the credibility of the witnesses in disposing of a directed verdict *Page 4 motion. * * * Thus, 'if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied. Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320 [27 O.O.2d 241, 199 N.E.2d 562] * * *.' Hawkins v. Ivy (1977), 50 Ohio St. 2d 114,115 [4 O.O.3d 243, 363 N.E.2d 367].' Strother v. Hutchinson (1981),67 Ohio St. 2d 282, 284-285, 21 O.O.3d 177, 423 N.E.2d 467." {¶ 16} In order to arrive at a conclusion relative to the trial court's ruling, we must conduct a de novo consideration of the evidence.Gliner v. Saint-Gobain Norton Industrial Ceramics Corporation (2000),89 Ohio St. 3d 414. {¶ 17} The concept that intentional tort by an employer did not apply to the protective barrier as to negligence provided by Ohio Constitution Article II, Section 35 and Revised Code § 4123.74 was iterated inBlankenship v. Cincinnati Milacron Chemicals, Inc. (1982),69 Ohio St. 2d 608 with Van Fossen v. Babock Wilcox Co. (1988), 36 Ohio St. 3d 100, being decided thereafter. {¶ 18} This was followed by Fyffe v. Jeno's, Inc. (1991),59 Ohio St. 3d 115. In clarifying Van Fossen, the Ohio Supreme Court specifically set forth the applicable standards in stating: {¶ 19} "5. Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser Keeton on Torts (5 Ed.1984), in order to establish 'intent' for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the *Page 5 employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. (Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E.2d 489, paragraph five of the syllabus, modified as set forth above and explained.) {¶ 20} "6. To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk-something short of substantial certainty-is not intent. (Blakenship v. Cincinnati Milacron Chemicals, Inc. (1982),69 Ohio St. 2d 608, 23 O.O.3d 504, 433 N.E.2d 572; and Jones v. VIP DevelopmentCo. (1984), 15 Ohio St. 3d 90, 15 OBR 246, 472 N.E.2d 1046, explained.)" {¶ 21} While it is disputed as to whether the lift in question was an elevator within the definition of R.C. § 4105.01 requiring certain safety standards and subject to State inspection, we need not draw a conclusion in this regard. If the lift was subject to such State laws, the lack of compliance might be concluded to constitute the violation of a *Page 6 safety statute resulting in negligence per se. However, such degree of negligence does not equate to an intentional tort. {¶ 22} "The Ohio Supreme Court has defined the law of negligence per se in Ohio as follows: {¶ 23} "'* * * Where a legislative enactment imposes upon any person a specific duty for the protection of others, and his neglect to perform that duty proximately results in injury to such another, he is negligent per se or as a matter of law. * * * Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.' See Eisenhuth v.Moneyhon (1954), 161 Ohio St. 367, 119 N.E.2d 440, paragraphs two and three of the syllabus." Alapi v. Colony Roofing, Inc. (June 24, 2004), Ohio App. 8 Dist., Cuyahoga County App. No. 83755. {¶ 24} An intentional tort has been defined as "an act committed with the intent to injure another, or committed with the belief that such injury was substantially certain to occur." Hannah v. Dayton Power Light, 82 Ohio St. 3d 482, 484, 1998-Ohio-408. {¶ 25} The facts in this case as to knowledge of Appellee of a substantial certainty of injury are predicated on the fact that approximately ten years earlier the cable broke causing a similar drop. (T. at 170). *Page 7 {¶ 26} However, the lift was used since such time 30-40 times per week. (Tr. at 120). {¶ 27} Appellee's argument that Appellant could have used the steps rather than the lift is somewhat misplaced as she was instructed on the use of the lift and had to return with an empty cart. It is appropriate only in reference to the third element of Fyffe v. Jeno's however. {¶ 28} Essentially, the deciding issue is that Appellant's evidence fails to meet the second prong of such case as to substantial certainty. Also, while all elevators can obviously injure occupants by a free fall, the history of this lift did not rise to knowledge of a dangerous instrument on the part of Appellee. (The first prong ofJeno's.) {¶ 29} Based on the foregoing, reasonable minds could only conclude that Appellant's evidence is insufficient to constitute an intentional tort. {¶ 30} We, therefore, conclude that the Assignment of Error is not well taken. {¶ 31} The judgment of the Fairfield County Court of Common Pleas is affirmed. Gwin, P.J. and Edwards, J. concur JUDGEMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Fairfield County Court of Common Pleas is affirmed. Costs assessed to appellants.

2016-07-06 06:41:40.353886+00

OPINION {¶ 1} Appellant, Richard P. Dabelko, appeals the October 25, 2001 judgment entry from the Niles Municipal Court overruling his motion to vacate judgment or withdraw his no contest plea. {¶ 2} On March 27, 2001, appellant filed a motion entitled "Defendant's Petition for Post-Conviction Relief; or, in the Alternative, Motion for Withdrawal of `No Contest' Plea." As grounds for the motion, appellant claims that there was a denial or infringement of his rights, which would render the judgment void or voidable under theFourteenth Amendment to the United States Constitution. This is in regard to a 1986 conviction for driving under the influence, which was entered upon the trial court's acceptance of appellant's no contest plea. In a judgment entry dated October 25, 2001, the trial court overruled appellant's motion to vacate the conviction. Specifically, the trial court stated that appellant's "Motion to Vacate Conviction and Plea is Overruled." Appellant timely filed the instant appeal and now advances a single assignment of error: {¶ 3} "[1.] The trial court erred in denying [a]ppellant's [p]etition for [p]ost-[c]onviction [r]elief; [o]r, [i]n the [a]lternative, [m]otion for [w]ithdrawal of `[n]o [c]ontest' plea." {¶ 4} Preliminarily, we note that the record on appeal contains an affidavit dated January 23, 2002, from the Niles Municipal Court Deputy Clerk, which states that she was employed with the court in such capacity in 1986, and that a "tape recording was most likely made of the 10/27/86 proceedings" but "[t]hat recording, together with other tape-recorded proceedings, was found to be inaudible and, some time ago, destroyed in the ordinary course of court business." This court granted appellant's motion to supplement the record with the foregoing affidavit on February 11, 2002. However, we instructed appellant to produce either an App.R. 9(C) or (D) statement to be used in lieu of the transcript of any oral proceeding and the record. Appellant filed a motion to supplement the record with an App.R. 9(D) statement indicating that the "10/27/86 criminal proceeding occurred essentially as reflected in the Niles Municipal Court Docket Sheet that [was] already * * * transmitted as a part of the record on this appeal." On March 22, 2002, this court granted appellant's motion. {¶ 5} Under his sole assignment of error, appellant argues that the "no contest" plea in the petty offense misdemeanor case was invalid as there was no record showing that the court informed appellant of the effect of his plea before accepting it. Appellant also claims that the temporal constraints contained in R.C. 2953.21(A)(2) may not bar relief from a judgment of conviction entered before the effective date of those constraints where the conviction is later used to enhance the punishment for another criminal conviction, which is unrelated. Finally, appellant alleges that under Crim.R. 32.1, the trial court should set aside a judgment of conviction entered on a constitutionally defective "no contest" plea and allow appellant to withdraw that plea to prevent a manifest injustice. {¶ 6} Pursuant to R.C. 2953.21(A)(2), a petition for post-conviction relief "shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal" if no appeal is taken. A court will not entertain an untimely petition for post-conviction relief unless the petitioner shows: "(1) the magnitude of the error is so great that but for the mistake, no reasonable trier of fact would have found him guilty, and (2) there is a very good excuse for the delay in filing the petition." State v. Beaver (1998),131 Ohio App.3d 458, 462. {¶ 7} "The statute [R.C. 2953.23(A)(1)] provides that only two excuses will be accepted: (1) where the petitioner was unavoidably prevented from discovering the facts that the petition is predicated upon, or (2) the United States Supreme Court has recognized a new federal or state right that applies retroactively to the petitioner and the petition asserts a claim based on that new right." Id. Additionally, the petitioner must show "that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted * * *." R.C. 2953.23(A)(2). {¶ 8} In the instant matter, appellant has not offered any excuse for his delay in filing a petition for post-conviction relief, and the record is devoid of any reason which prohibited him from filing his petition within the one hundred eighty days set forth in R.C. 2953.21(A)(2). Appellant argues that he entered a no contest plea without being informed about the effect of the plea. Even if these allegations were true, appellant was not "unavoidably prevented" from discovering the alleged facts. Appellant had knowledge of these facts since he entered his plea in 1986, and he could have raised the issue within the statutory one hundred eighty-day period. Additionally, a review of appellant's petition fails to show by clear and convincing evidence that but for constitutional error at trial, no reasonable factfinder would have found appellant guilty. We conclude that appellant's petition was untimely and, therefore, the trial court did not have jurisdiction over appellant's petition. {¶ 9} Furthermore, R.C. 2953.21 is a general provision, which governs assertions claiming the denial of constitutional rights, whereas Crim.R. 32.1 is a special provision that applies only to motions to withdraw a no contest plea. State v. Cale (Mar. 23, 2001), 11th Dist. No. 2000-L-034, 2001 WL 285794, at 3. Crim.R. 32.1 states that "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." While petitions filed under R.C.2953.21 are subject to an explicit time limitation, motions under Crim.R. 32.1 are not. {¶ 10} Accordingly, a defendant who attempts to withdraw a plea after the sentence has been imposed must demonstrate a manifest injustice. State v. Smith (1977), 49 Ohio St.2d 261, paragraph one of the syllabus. The burden of establishing the existence of a manifest injustice is upon the defendant seeking the vacation of the plea. Id. Although Crim.R. 32.1 does not provide a time limit after the imposition of sentence during which a motion to withdraw a plea must be made, it has been held that an undue delay between the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor adversely affecting the credibility of the movant and militating against the granting of the motion. Id. at paragraph three of the syllabus. To reverse the trial court's decision to deny appellant's motion to withdraw his plea, we must conclude that the trial court abused its discretion.State v. Caraballo (1985), 17 Ohio St.3d 66, 67. {¶ 11} In the case sub judice, the crux of appellant's motion is that his plea was not entered into knowingly or intelligently because there is no record showing that the trial court informed him of the effect of his plea. However, appellant was sentenced on October 27, 1986, and did not file his petition until March 27, 2001. It defies basic common sense to suggest that it took appellant over fourteen years to investigate and discover any injustice that may have occurred as a result of his no contest plea. Hence, it is our view that appellant has not demonstrated that the withdrawal of his no contest plea is necessary to correct a manifest injustice. Although the trial court did not articulate the foregoing as a basis for its decision, we cannot conclude that the trial court abused its discretion by denying appellant's petition or motion. {¶ 12} Appellant also argues that when he was sentenced in 1986, there were no time constraints in accordance with R.C. 2953.21. He further posits that under the constitutional ex post facto laws, the time constraints may not now be imposed to deny him relief from his driving under the influence conviction. However, we note that the version of R.C. 2953.21 at issue became effective on September 21, 1995. Prior to the amendment, the post-conviction relief statute allowed a petitioner to file a post-conviction relief petition at any time after his conviction.State v. Rogers (Feb. 17, 2000), 8th Dist. No. 76627, 2000 WL 193248. The legislature also included a section of uncodified law in the newer version of Section 3, Am.Sub.S.B. No. 4, which provides: {¶ 13} "A person who seeks postconviction relief pursuant to sections 2953.21 through 2953.23 of the Revised Code with respect to a case in which sentence was imposed prior to the effective date of this act * * * shall file a petition within the time required in division (A)(2) of section 2953.21 of the Revised Code, as amended by this act, or within one year from the effective date of this act, whichever is later." Id. {¶ 14} "The `obvious intent' of the General Assembly with the newer version of R.C. 2953.21(A)(2) is to place a time limitation on post-conviction actions." State v. Hayden (Dec. 6, 2001), 10th Dist. No. 01AP-728, 2001 WL 1548949, at 2, citing State v. Price (Sept. 29, 1998), 10th Dist. No. 98AP-80. Some districts in the state have held that the time limitation imposed by R.C. 2953.21 does not violate the ex post facto clause of the Constitution, and we adopt their view. See Hayden, supra, citing State v. Ayala (Nov. 10, 1998), 10th Dist. No. 98AP-349; State v. Risner (May 13, 1999), 3d Dist. No. 12-98-12, 1999 WL 378393, at 2. "The time limits imposed by R.C. 2953.21(A) do not change the quantum of punishment, or attach any new legal consequences to the events completed before its enactment." Ayala, supra, at 3. {¶ 15} In the present case, since appellant was convicted before the effective date of the statute, he was required to file his motion for post-conviction relief within one year after the effective date of the amended statute. However, he did not file his petition within the time parameters specified in the statute; thus, the trial court lacked jurisdiction to determine the issues raised in his petition unless one of the exceptions to the time requirement within R.C. 2953.23(A) applied. Since we have already determined that the exceptions do not apply, appellant's argument lacks merit. {¶ 16} For the foregoing reasons, appellant's lone assignment of error is not well-taken. The judgment of the Niles Municipal Court is affirmed. JUDITH A. CHRISTLEY, J., DIANE V. GRENDELL, J., concur.

2016-07-06 06:41:40.424885+00

OPINION Plaintiffs-appellants, Agnes McAllen, et al., appeal a decision of the Mahoning County Common Pleas Court dismissing their cause of action against defendant-appellee, Steven Welsh, for lack of personal jurisdiction. Appellants, Agnes McAllen, Ronald McAllen, Gloria McGuire, Daniel McGuire, Norman McGuire, and Victor McGuire, were allegedly involved in a motor vehicle accident with appellee in Pennsylvania on September 14, 1996. On September 3, 1998, appellants filed a complaint in the Mahoning County Court of Common Pleas against appellee alleging negligence and naming as additional party defendants American States Insurance Company, Golden Rule Insurance Company, Super Blue Plus, and Textile Processors Local #1. Golden Rule Insurance Company and Textile Processors Local #1 were subsequently dismissed from the lawsuit. On October 28, 1998, appellee, a Pennsylvania resident, filed a motion to quash service and to dismiss for lack of personal jurisdiction. On November 30, 1998, appellants responded with a motion in opposition and a counter-motion to stay. On March 1, 1999, the trial court sustained appellee's motion and dismissed him from the case based on lack of jurisdiction. Appellants appealed this decision on April 2, 1999. This court dismissed the appeal on the ground that the trial court's decision was not a final appealable order. Subsequently, on May 20, 1999, the trial court issued a similar entry with the additional finding that there was no just reason for delay, making the entry a final appealable order. This appeal followed. Appellants' first assignment of error states: "The trial court erred, in dismissing Plaintiff's action since Civ.R. 3(D) mandates that the trial court hear the action when the Defendant refuses to consent to the jurisdiction of another tribunal, waive venue, and agree that the date of commencement of the action in Ohio shall be the date of commencement for the application of the statute of limitations in the other tribunal." Appellants' response to appellee's motion to dismiss was premised entirely on Civ.R. 3(D). Appellants advance the same arguments on appeal. Civ.R. 3(D) states: "When a court, upon motion of any party or upon its own motion, determines: (1) that the county in which the action is brought is not a proper forum; (2) that there is no other proper forum for trial within this state; and (3) that there exists a proper forum for trial in another jurisdiction outside this state, the court shall stay the action upon condition that all defendants consent to the jurisdiction, waive venue, and agree that the date of commencement of the action in Ohio shall be the date of commencement for the application of the statute of limitations to the action in that forum in another jurisdiction which the court deems to be the proper forum. If all defendants agree to the conditions, the court shall not dismiss the action, but the action shall be stayed until the court receives notice by affidavit that plaintiff has recommenced the action in the out-of-state forum within sixty days after the effective date of the order staying the original action. If the plaintiff fails to recommence the action in the out-of-state forum within the sixty day period, the court shall dismiss the action without prejudice. If all defendants do not agree to or comply with the conditions, the court shall hear the action. "If the court determines that a proper forum does not exist in another jurisdiction, it shall hear the action." Appellants argue that, if a court determines that Ohio is not the proper forum and the defendant refuses to consent to the conditions of Civ.R. 3(D), the court must hear the case pursuant to rule. Appellants continually focus on the language in the rule which states that "the court shall hear the action." As appellee correctly notes, appellants reliance on Civ.R. 3(D) in support of personal jurisdiction over appellee is completely misplaced. Civ.R. 3 deals entirely with venue and not a court's jurisdiction over the parties. The question of personal jurisdiction, which goes to the court's power to exercise control over the parties, is a concept distinct from and typically decided in advance of venue, which is primarily a matter of choosing a convenient forum. See, generally, 4 Wright, Miller Cooper, Federal Practice Procedure (1987) 224, Section 1063; 15 Wright, Miller Cooper, Federal Practice Procedure (1986) 3, Section 3801. See, also, Lindahl v. Office of Personnel Management (1985), 470 U.S. 768,793, n. 301; Leroy v. Great Western United Corp. (1979), 443 U.S. 173,180. Furthermore, a complete reading of the rule upon which appellants rely undermines their position. Civ.R. 3(G) explicitly states, "The provisions of this rule relate to venue and are not jurisdictional." Accordingly, appellants' first assignment of error is without merit. Appellants' second assignment of error states: "The trial court erred in that it relied not on evidence properly before the court, but solely upon the allegations contained in the Defendant-Appellee's motion to dismiss." Appellants argue that the trial court relied solely on the allegations contained within appellee's motion to dismiss and ruled on the motion without evidence and without conducting an evidentiary hearing. Once a defendant challenges personal jurisdiction, the plaintiff has the burden of establishing that the trial court has jurisdiction. KeybankNatl. Assn. v. Tawill (1998), 128 Ohio App.3d 451, 455. See, also, Jurkov. Jobs Europe Agency (1975), 43 Ohio App.2d 79; Pharmed Corp. v.Biologics, Inc. (1994), 97 Ohio App.3d 477. When determining whether a state court has personal jurisdiction over a nonresident defendant the court is obligated to engage in a two-step analysis. First, the court must determine whether Ohio's long-arm statute, R.C. 2307.382, and the complementary civil rule, Civ.R. 4.3, confer personal jurisdiction, and, if so, whether granting jurisdiction under the statute and the rule would deprive the defendant of the right to due process of law pursuant to the Fourteenth Amendment to the United States Constitution. U.S. Sprint Communications Co. Ltd. Partnership v.Mr. K's Foods, Inc. (1994), 68 Ohio St.3d 181, 183-184; Goldstein v.Christiansen (1994), 70 Ohio St.3d 232, 235. R.C. 2307.382 provides in relevant part: "(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's: "(1) Transacting any business in this state; "(2) Contracting to supply services or goods in this state; "(3) Causing tortious injury by an act or omission in this state; "(4) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; "(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he might reasonably have expected such person to use, consume, or be affected by the goods in this state, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; "(6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state; "(7) Causing tortious injury to any person by a criminal act, any element of which takes place in this state, which he commits or in the commission of which he is guilty of complicity. "(8) Having an interest in, using, or possessing real property in this state; "(9) Contracting to insure any person, property, or risk located within this state at the time of contracting." Appellants' complaint sets forth a typical negligence claim alleging personal injuries. Based simply on the nature of appellants' cause of action, subsections (1), (2), (5), (6), (7), (8), and (9) do not apply. Furthermore, both the alleged negligent acts and/or omissions and alleged injuries occurred in Pennsylvania, therefore, subsections (3) and (4) do not apply. In sum, appellants failed to satisfy the first step in establishing the trial court's jurisdiction over appellee. Appellants relied solely on Civ.R. 3(D) in opposing appellee's motion. There were no facts alleged that the court had jurisdiction over appellee. In contrast, appellee's motion to dismiss illustrates and explains in detail how the facts alleged in appellants' own complaint neither satisfies Ohio's long-arm statute nor comports with the Due Process Clause of theFourteenth Amendment to the United States Constitution. Accordingly, appellants' second assignment of error is without merit. The judgment of the trial court is hereby affirmed. Cox, J., concurs Waite, J., concurs 1 "Venue provisions come into play only after jurisdiction has been established and concern `the place where judicial authority may be exercised'; rather than relating to the power of a court, venue `relates to the convenience of litigants and as such is subject to their disposition.' Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165,168, 60 S.Ct. 153, 154, 84 L.Ed. 167 (1939)."

2016-07-06 06:41:40.500811+00

{¶ 1} This timely appeal comes for consideration upon the record in the trial court and the parties' briefs. Claimant-Appellant, Opal Morris, appeals the decision of the Columbiana County Court of Common Pleas which found the decision of the Unemployment Compensation Review Commission denying Morris' unemployment compensation claim was not unlawful, unreasonable, or against the manifest weight of the evidence. The issue before us is whether the Commission erred when it determined that Morris quit her employment without just cause. Because we conclude the Commission's findings of fact were supported by competent, credible evidence and its ultimate conclusion is not unlawful, unreasonable, or against the manifest weight of the evidence, we affirm the trial court's decision. {¶ 2} Morris' claims are based upon two incidents that occurred during her employment with Sterling China Company. Sometime near the end of the summer in 1998, one of Morris' co-workers, Larry Galloway solicited another co-worker, Rene Siderich to beat up Morris. Siderich refused and told Morris' boyfriend who then told Morris. Morris did not know about the incident until the summer of 1999. Siderich did not inform management at Sterling about the solicitation until July 1999. {¶ 3} The second incident arose sometime in February 1999 before Morris heard about Galloway's actions. Morris called a co-worker who was a friend of hers, Jennifer Chers, and left a message on her answering machine. After Morris finished leaving the message she failed to disconnect the line and proceeded to have a conversation with her mother. During that conversation, Morris discussed various medical problems she was having and mentioned that maybe she should submit to an HIV test. According to Chers, she was unable to determine who was on the recording. She thought the tape was saying one of her friend's brothers was engaged to someone who had AIDS. Thus, the next day she brought the tape to work and played it for some co-workers so her friend could know about this and tell her brother. One of the people who heard the tape identified the voice on the tape as Morris' voice. {¶ 4} Morris was greatly embarrassed that Chers chose to play the tape at work in front of their co-workers. Three days after the tape was played, Morris told Chers she was going to sue for slander. After this Chers began to call Morris names such as "AIDS infested whore" and "fucking bitch". Morris also claimed Chers wrote "Opal's infested AIDS" in blood on a bathroom stall door and wrote "AIDS kills" in black magic marker on another bathroom stall. However, she never saw Chers write either of these things and is assuming Chers did so. All these events happened in 1999. {¶ 5} Morris complained to Sterling's management about Chers' behavior in 1999 and claims Sterling never investigated her complaints. However, at the same time she acknowledges the plant manager spoke to Chers about her behavior. Sterling claims the plant manager looked into the allegations and found them unsubstantiated. Sterling also claimed they never heard Morris was called an "AIDS infested whore" or heard about the bathroom graffiti. Sterling's human resources director, Michael Somerville, had also seen other graffiti on site saying things like "smoking kills" and "abortion is murder". Although Sterling found Morris' claims to be unsubstantiated, it attempted to keep Chers and Morris apart per Morris' request by scheduling them on different shifts or making sure they worked on different floors. Sterling also instructed its managers to be vigilant of any alleged harassment of Morris. {¶ 6} According to Morris, Sterling's efforts to resolve the situation were inadequate. She claims when she and Chers did work together at night, Chers would make an effort to see Morris so she could harass her. She thought it seemed like Sterling "stuck" the two of them together. At one point, Morris filed a complaint in the Columbiana County Court of Common Pleas seeking an anti-stalking restraining order against Chers. That court found both parties had been harassing each other and that Chers had been inconsiderate toward Morris, but that Chers had not been stalking Morris. The court admonished the parties "to stay as far away from each other as possible." Morris also contacted the Northeast Ohio Legal Services about her problems with Chers at work. That organization wrote to Sterling on behalf of Morris. {¶ 7} Morris claims the stress and nervous tension caused by Chers' harassment aggravated her irritable bowel syndrome. At one time in 2000, Morris' doctor advised she be placed on "light duty" at work because she was having up to twenty bowel movements per work day. Sterling did not have any positions which could accommodate someone needing fifteen to twenty restroom breaks during a shift and denied the request. {¶ 8} On August 24, 2000, Morris filed an application with Sugardale Foods seeking new employment, was hired three days later, and would start working on September 11, 2000. It was agreed that she would work the midnight shift for Sugardale so she could go to school during the day. {¶ 9} On August 30, 2000, Morris sought to give Sterling her two-weeks notice. Sterling explained to Morris that once she signed a voluntary termination form it had the option of terminating her employment prior to the end of the two week period. Morris saw no point in signing the form if Sterling could release her before the end of the two week period and tendered her immediate resignation. Morris began to work for Sugardale on September 11, 2000, as planned, but lost her job soon thereafter because her position was downsized. She had also enrolled in school the day before she quit her employment with Sterling. {¶ 10} After losing her job at Sugardale, Morris filed an application for determination of unemployment compensation benefit rights seeking benefits since her resignation from Sterling. The Ohio Department of Job and Family Services disallowed Morris' claim for benefits, finding Morris quit her employment without just cause. After availing herself of all administrative appeals, both in the Department of Job and Family Services and in the Commission, Morris appealed to the Columbiana County Court of Common Pleas and the parties briefed the matter. The trial court affirmed the Commission's decision which disallowed her claim for benefits, finding it was not unlawful, unreasonable, or against the manifest weight of the evidence. {¶ 11} We affirm the trial court's decision because we conclude the Commission's decision denying Morris unemployment compensation benefits was not unlawful, unreasonable, or against the manifest weight of the evidence. Morris can only receive unemployment compensation benefits if she quit her employment with Sterling for just cause and she bears the burden of establishing her claim to those benefits. After reviewing the evidence, a reasonable person could have concluded Morris did not quit her employment with Sterling for any justifiable reason. Quitting one job in order to begin employment at a new job or to attend school is not quitting employment for just cause. In addition, the apparent connection between the problems Morris experienced with her co-workers and her decision to quit her employment seems tenuous at best and the evidence supports the Commission's decision finding her claims about those problems were greatly exaggerated and, thus, an ordinary, intelligent person would not have quit their employment for that reason. {¶ 12} Morris' sole assignment of error asserts: {¶ 13} "The Common Pleas erred in affirming the Unemployment Compensation Review Commission's decision that Appellant quit her employment without just cause because the Unemployment Review Commission's decision is unlawful, unreasonable, and against the manifest weight of the evidence." {¶ 14} A claimant bears the burden of proving his or her entitlement to unemployment compensation benefits. Irvine v. Unemp.Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 17, 19 OBR 12,482 N.E.2d 587. Pursuant to R.C. 4141.282, which was the effective statute at the time the matter was appealed to the trial court, Coughlinv. Ohio Bur. Of Emp. Serv (Apr. 10, 2002), 9th Dist. No. 01CA007933, at 2, footnote 2, any interested party may appeal the final decision of the Commission awarding or denying unemployment compensation benefits to the Court of Common Pleas. The trial court may reverse the Commission only when it finds the decision to be "unlawful, unreasonable or against the manifest weight of the evidence." R.C. 4141.282(H). {¶ 15} On appeal, this court applies the same standard of review as the trial court and the Commission's decision may only be reversed if it is unlawful, unreasonable, or against the manifest weight of the evidence. Tzangas, Plakas Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, 653 N.E.2d 1207, paragraph one of the syllabus. "This standard of review is inherently limited. Neither the common pleas court nor the court of appeals is permitted to make factual findings or determine the credibility of witnesses." Wilson v. Matlack,Inc. (2000), 141 Ohio App.3d 95, 99, 750 N.E.2d 170, citing Irvine at 17. "[W]hile appellate courts are not permitted to make factual findings or to determine the credibility of witnesses, they do have the duty to determine whether the board's decision is supported by the evidence in the record." Tzangas at 696. Applying this standard of review on all levels does not affect the Commission's position as fact-finder because "the fact that reasonable minds might reach different conclusions is not a basis for reversal of the board's decision." Id. at 697. If the Commission's factual determinations are supported by competent, credible evidence, this court must accept those findings. DiGiannantoni v.Wedgewater Animal Hosp., Inc. (1996), 109 Ohio App.3d 300, 305,671 N.E.2d 1378. {¶ 16} In this case, the Commission denied Morris unemployment compensation benefits because it concluded she quit her employment without just cause. According to R.C. 4141.29(D)(2)(a), any person, with a few exceptions that do not apply to Morris, who quits work without just cause is ineligible for unemployment compensation benefits. Ford MotorCo. v. Ohio Bur. of Emp. Servs. (1991), 59 Ohio St.3d 188, 189,571 N.E.2d 727. "`[T]here is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.'" Irvine at 17, quoting Peyton v.Sun T.V. (1975), 44 Ohio App.2d 10, 12, 73 O.O.2d 8, 335 N.E.2d 751. When determining whether an employee quit work without just cause, courts must analyze the particular circumstances of the case in conjunction with the legislative purpose underlying the Unemployment Compensation Act. Id. {¶ 17} "Essentially, the Act's purpose is `to enable unfortunate employees, who become and remain involuntarily unemployed by adverse business and industrial conditions, to subsist on a reasonably decent level and is in keeping with the humanitarian and enlightened concepts of this modern day.' (Emphasis sic.) Leach v. Republic Steel Corp. (1964),176 Ohio St. 221, 223, 199 N.E.2d 3 [27 O.O.2d 122]; accord Nunamaker v.United States Steel Corp. (1965), 2 Ohio St.2d 55, 57, 206 N.E.2d 206 [31 O.O.2d 47]. Likewise, `[t]he act was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was temporarily without employment through no fault or agreement of his own.' Salzl v. Gibson Greeting Cards (1980),61 Ohio St.2d 35, 39, 399 N.E.2d 76 [15 O.O.3d 49]." Id. {¶ 18} Because of the purpose behind the Act, fault on behalf of the employee is an essential component of a just cause termination.Tzangas at paragraph two of the syllabus. {¶ 19} "Application of the objective standard for just cause outlined in Irvine, supra, suggests an initial determination of why the claimant actually quit his or her job. Only when the board or one of its hearing officers makes a determination regarding the actual reason why an employee quit, can it then be determined if an ordinarily intelligent person would have quit for that reason." (Emphasis sic.) DiGiannantoni at 305. {¶ 20} In this case, the Commission found Morris quit her employment with Sterling for four reasons: 1) a co-worker solicited another co-worker to harm her; 2) problems resulting from her relationship with Chers at work; 3) her desire to go work for another employer; and, 4) her desire to attend school. Generally, neither quitting work with one employer to accept work for another nor quitting work to attend school is considered to be quitting work for just cause as contemplated by R.C. 4141.29(D)(2)(a). See Radcliffe v. ArtromickIntern, Inc. (1987), 31 Ohio St.3d 40, 41, 31 OBR 148, 508 N.E.2d 953;Jones v. Unemp. Comp. Bd. of Review (1989), 61 Ohio App.3d 272,572 N.E.2d 744. Thus, the only reasons Morris may have quit for just cause relate to the problems she had with her co-workers. {¶ 21} The Commission found the solicitation incident wherein Galloway offered Siderich money to harm Morris "occurred approximately two years before claimant quit. It does not appear the employee who was asked to harm claimant acted on that request. Further, the employer investigated the situation when it was brought to its attention. That situation did not reasonably justify claimant's quitting." The facts show that the solicitation occurred soon after the summer in 1998, two years before Morris quit her employment with Sterling. Although Siderich refused to act upon the request to harm Morris, Morris did not find out about it until after the tape-playing incident. Accordingly, Morris mistakenly believed the two incidents were related. Although there must have been some reason why Galloway would have wanted harm to come to Morris, we cannot tell from the record what that reason was. Furthermore, the evidence shows Galloway never bothered making sure he or anyone else ever actually harmed Morris. Accordingly, the Commission's conclusion that the underlying problem between Galloway and Morris was solved and the incident would not be just cause for her to quit her employment with Sterling was supported by competent, credible evidence. {¶ 22} Morris' main argument that she quit for just cause relates to the problems resulting from her relationship with Chers. According to Morris, under the circumstances in this case any ordinary, intelligent person would be justified in quitting his or her employment. Clearly harassment in the work environment can be just cause for an employee to quit working for a particular employer. See DiGiannantoni, supra; Heinzev. Giles (1990), 69 Ohio App.3d 104, 590 N.E.2d 66; Krawczyszyn v. OhioBur. of Emp. Serv. (1989), 54 Ohio App.3d 35, 560 N.E.2d 807. However, employees who experience problems in their working conditions must make reasonable efforts to attempt to solve the problem before leaving their employment. DiGiannantoni at 307. {¶ 23} As a general rule, employees experiencing problems in their working conditions must notify the employer of the problem, request it be resolved, and give the employer an opportunity to solve the problem before a court will find just cause for quitting work. Id.; King v. StateFarm Mut. Auto Ins. Co. (1996), 112 Ohio App.3d 664, 669-670,679 N.E.2d 1158; see Irvine at 18. "An employee who resigns before providing her employer with a reasonable opportunity to correct offensive conduct in the workplace risks quitting her employment without just cause." Krawczyszyn at 37. {¶ 24} Courts do not always require that an employee must notify his or her employer if the circumstances justify the employee's choice not to notify the employer of the problem. DiGiannantoni at 308. For instance, if an employee notifies the employer of a problem and requests the employer remedy the situation, but the employer fails to remedy the situation, the employee may be relieved of her duty to further pursue internal remedies. Krawczyszyn at 37. Likewise, "an employee need not indefinitely subject herself to abusive conduct while waiting for her employer to respond." Id. However, although an employee may be justifiably outraged at a co-worker's conduct, that conduct may not provide a sufficient basis for the employee to terminate her employment and to receive unemployment compensation benefits if an ordinary, intelligent person would not have quit their employment for that reason.Jenkins v. State, Unemployment Compensation Review Com'n (Nov. 13, 2000), 4th Dist. No. 00CA11 at 4. A mere perception by an employee that she has been subject to harassment does not constitute just cause for quitting employment. Biles v. Ohio Bur. of Emp. Serv. (1995),107 Ohio App.3d 114, 122, 667 N.E.2d 1244. {¶ 25} In its decision, the Commission found as follows: {¶ 26} "Claimant has indicated she quit because she was being harassed by one co-worker * * *. The employer acted reasonably, when it became aware of the problem between claimant and the co-worker, in scheduling them to work different shifts or in different areas. In that that occurred, claimant's representation that she was harassed by the co-worker on a daily basis appears to be significantly exaggerated. Although it appears there were times the co-worker made derogatory comments to and about claimant, the evidence of record does not establish that situation was so bad as to reasonably justified [sic] claimant's quitting." {¶ 27} The key issue before this court is whether, under the circumstances of this case, any ordinary and intelligent person would have acted in the same manner as Morris. Morris claims she was subjected to Chers' harassment on a daily basis, even after she spoke to the management at Sterling. The evidence in the record supports the Commission's finding that Morris' claims are "significantly exaggerated." Somerville testified that management spoke to the principals involved in the harassment and alleged witnesses to the harassment and found Morris' allegations unsubstantiated. However, Sterling complied with Morris' request and attempted to schedule her and Chers on different shifts. It also instructed management staff members to keep an eye on Chers and Morris in an attempt to witness any harassment themselves, but those managers never saw anything. {¶ 28} Out of the thirty-five weeks Morris worked at Sterling during 2000, she and Chers only worked the same shift during eight of those weeks. During those times they always worked in different areas and floors. During five of those weeks, the two worked the first shift. During the other three weeks, the two worked the second shift. They never worked the third shift together during 2000, a time when no supervisor would have been on site to manage the work and their interactions. Thus, according to Sterling's evidence, once the company knew of the problem between Chers and Morris, Chers only had limited opportunity to harass Morris. Finally, Morris' own testimony is that the most abusive instances happened in 1999. It does not appear to be against the manifest weight of the evidence for the Commission to find that any harassment Morris did suffer during this time was not so bad as to reasonably justify her choice to quit working at Sterling. This is especially true when one takes into consideration the Commission's finding that Morris quit her job in order to work another job and to attend school. For all of these reasons, the Commission's finding that Chers' conduct toward Morris did not provide Morris with just cause to quit her employment with Sterling was supported by competent, credible evidence. {¶ 29} Because the Commission's findings of fact were all supported by competent, credible evidence, there is no basis upon which the Commission could have found Morris quit her employment with Sterling for just cause. Thus, it's ultimate decision that Morris was not entitled to unemployment compensation benefits was correct and the trial court's decision is affirmed. Donofrio, J., concurs. Waite, J., concurs.

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OPINION JUDGMENT ENTRY {¶ 1} Plaintiff John Schuette appeals a judgment of the Court of Common Pleas of Delaware County, Ohio, dismissing his complaint against defendant the Board of Trustees of Liberty Township and two township trustees, Kim Cellar and John Warner, both in their official capacities. The trial court found appellant had failed to state a claim upon which relief could be granted. Appellant assigns a single error to the trial court: {¶ 2} "The common pleas court erred by dismissing schuette's complaint because a quorum of a board of township trustees has no authority to convene prearranged sessions except as "meetings" conforming with the ohio's sunshine law, R.C. 121.22" {¶ 3} Appellees correctly point out courts may dismiss a complaint pursuant to Ohio Rule 12(B)(6) for failure to state a claim upon which relief may be granted if it appears beyond doubt the plaintiff can prove no set of facts entitling him to relief,York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143,573, N.E.2d 1063. In construing a complaint challenged by a motion to dismiss for failure to state a claim, the trial court must presume all factual allegations of the complaint are true and draw all reasonable inferences in favor of the non-moving party. {¶ 4} Our standard of reviewing judgments entered pursuant to Civ. R. 12(B)(6) is de novo, because it presents a question of law. When we review a matter de novo, we use the same standard of review the trial court applied. Thus, our review here is extremely limited, and we may look only to the complaint to determine whether the matter should be allowed to continue. InMitchell v. Lawson Milk Company (1988), 40 Ohio St.3d 190,532 N.E.2d 753, the Ohio Supreme Court noted a plaintiff is not required to prove his or her case at the pleadings stage, and as long as there is a set of facts consistent with the complaint which would allow the plaintiff to recover, the trial court should not grant a defendant's motion to dismiss. {¶ 5} Appellant's complaint in mandamus and for injunctive relief alleges appellant is a resident of Liberty Township, Delaware County, Ohio. Appellees are a public body as defined in R.C. 121.22, the Ohio "Open Meetings" Law. The two individually named trustees acting together constitute a majority quorum of the Board of Township Trustees. {¶ 6} The complaint alleges on August 21, 2002, and possibly on September 5, 2002, the Board of Trustees acting through appellees secretly met in a pre-arranged meeting, along with a hand picked exclusive group of selected township residents and business interests to discuss the public business of Liberty Township, in violation of the Ohio Open Meetings Law. Appellees called the secret meeting by way of a letter distributed to certain residents and business interests, and specifically stated the meeting was to discuss the potential merger of Liberty Township with the City, [sic] of Powell. Appellant attached a copy of the letter as exhibit "A". {¶ 7} The general public and press were excluded from the meetings. The Board did not provide public notice of the time, place and purpose of the meeting, as required by R.C. 121.22. The Board did not prepare, file, or maintain minutes of the meeting or make minutes available to the general public on request. Citizens of the township and a representative of the Olentangy Valley News Reporter specifically requested permission to attend the meetings, but were told they were not permitted to do so. {¶ 8} The meeting of August 21 was held on public property at public expense, at the Liberty Township firehouse. {¶ 9} Appellant's complaint alleges insofar as a merger between the township and the City of Powell could have drastic tax consequences for township residents, there is an immediate threat of irreparable harm if appellees continue to meet in secret. {¶ 10} In support of the complaint for mandamus, appellant's complaint alleges there is a clear legal duty to conduct public meetings in accord with the Ohio Open Meetings Law and appellees have violated these duties. The complaint alleges there is no adequate remedy at law except to apply for a preemptory writ of mandamus which would require the appellees to perform their legal duties in compliance with the Ohio Open Meetings Law. {¶ 11} In support of appellant's complaint for injunction, appellant alleges appellees have been put on notice that their conduct violates the open meeting laws, but continue to meet secretly with select individuals and business interest under the claim that a merger with the City of Powell is not township business. Unless enjoined from doing so, appellees will continue to meet secretly and use the outcome of the secret deliberations as a basis for perfunctory formal action at subsequent public trustee meetings. {¶ 12} The letter appellant attached to the complaint states: "Thank you for your past interest and comments regarding the potential merger of Liberty Township with the City of Powell. I would like to bring together interested individuals of this topic for a private, non-public meeting on Wednesday, August 21, at 7:00 p.m. at the Liberty Township Firehouse to learn more about the merger process, its benefits, and its liabilities. Please plan to share this information with any individuals who may have an opinion, but also understand that for the purposes of this meeting only those named below have received an invitation by virtue of their continued interest in this topic." {¶ 13} The letter goes on to detail what it refers to as "thought-provoking comments" about the topic: {¶ 14} * Providing township-wide police services {¶ 15} * Ending township property tax millage collection by expanding the income tax township-wide, BUT also providing a 100% roll-back of the income tax to township residents who already pay city income tax where they work, restoring residents' ability to achieve planning goals (by preventing annexation controversies where developers win by playing off township against city). {¶ 16} *Saving taxpayers' dollars by uniting road, park, building construction and zoning services to speed efficiency of governmental services, {¶ 17} *Saving taxpayers' dollars by restructuring governmental and representational administration, {¶ 18} *Cooperating in the comprehensive planning process as prescribed in the current CEDA agreement for Golf Village, and preventing annexation of township lands into the cities of Delaware and Columbus. {¶ 19} The letter also sets forth a draft agenda which could include: {¶ 20} A. Introductions and Interests (all) {¶ 21} B. Understanding of the Merger Process (Brousius and Curt Sybert) {¶ 22} C. Experience with Merger Attempts (Gary Best) {¶ 23} D. Benefits and Liabilities of a Potential Merger {¶ 24} E. Roundtable Discussion (all) {¶ 25} F. Next Meeting (s)? First Public Meeting? {¶ 26} Appellee Kim Cellar's name is listed as the person who sent the letter, and copies were sent to twelve persons, presumably, the invitees. {¶ 27} The intent of the Sunshine law is to require governmental bodies to deliberate public issues in public,Moraine v. Montgomery County Board of Commissioners (1981),67 Ohio St.2d 139, 423 N.E.2d 184. If the governmental body reaches its decision through non-public deliberations, the decision is invalid, Id. An individual may bring an action to protect the public's right to know, and this may well be considered a public benefit, see, State ex rel. Multimedia, Inc.v. Whalen (1990), 51 Ohio St.3d 99, 554 N.E.2d 1321. {¶ 28} R.C. 121.22 (A) directs the section shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law. The statute defines the term "Meeting" as a prearranged discussion of the public business of the public body by a majority of its members. The excepted meetings are listed as: Grand Juries; audit conferences conducted by the auditor of the state or independent certified public accountants with officials of a public office; the adult parole authority conducting a hearing solely for the purpose of interviewing inmates to determine parole or pardon; organized crime investigations; meetings of a child fatality review board; meetings of the state medical board, the board of nursing, the board of pharmacy, or the board of chiropractic when determining whether to suspend a license without a hearing; and meetings of the executive committee of the emergency response commission when determining whether to issue an enforcement order or request that a civil action, civil penalty action, or criminal action be brought. The statute also permits the public body to close a meeting during consideration of certain confidential information. However, the vote of the public body must be open to the public. {¶ 29} To invoke the provisions of the R.C. 121.22, a complaint must allege each of the elements of a meeting as defined by the statute: (1.) A pre-arranged (2.) Discussion (3.) Of the public business of the public body (4.) By a majority of its members. Appellant's complaint alleges (1.) A pre-arranged (2.) Meeting in a public place and at public expense (3.) To discuss the public business of Liberty Township (4.) By two of its trustees. Of these four elements, only the third is problematic: Does the meeting involve the public business of Liberty Township? {¶ 30} R.C. 121.22 exempts certain public bodies/public businesses from the statutory requirements. Appellees do not allege the meeting involved matters exempted by law from the Sunshine Act, and our review of the proposed agenda leads us to conclude none of the exemptions apply here. {¶ 31} Both appellant and appellees cite us to numerous appellate decisions regarding what does or does not constitute the public business of a public body, sufficient to trigger this statute. These cases present in a variety of procedural postures, but none involve Civ. R. 12. Instead, the cases address their individual merits and are fact-specific. Here, the case has not progressed beyond the complaint stage, and our focus is procedural. Nonetheless, the cases are useful in providing an overview of how courts construe the statute under a variety of fact patterns. {¶ 32} Several courts have held the term "meeting" does not include the members of a public body gathering information or facts if they act only as passive observers, see, e.g.,Steingass Mechanical Contracting, Inc. v. Warrensville HeightsBoard of Education, 151 Ohio App.3d 321, 203-Ohio-28,784 N.E.2d 118, where a closed meeting between the school board and its attorney did not violate the Sunshine Act because the board requested hypothetical and general legal advice, and the attorney did not counsel the board regarding specific actions. In DeVerev. Miami University Board of Trustees (June 10, 1996), Butler Appellate No. 86-05-065, the President of the University informed the trustees of what was on the agenda for the public meeting, and advised them the cost of one of the projects on the agenda would be $300,000, not $250,000 as originally estimated. {¶ 33} A question and answer session between a board member and a private individual is not a discussion for purposes of the Sunshine Act, but if members of the public body discuss public business amongst themselves as well, then the meeting is governed by the Sunshine Act, see Holeski v. Lawrence (1993),85 Ohio App.3d 824, 621 N.E.2d 802. For purposes of the Sunshine Act, a "discussion" is an exchange of words, comments, or ideas by the board, Id. {¶ 34} The Ohio Supreme Court has found it is not necessary for the board to reach a decision on any measure in order to prove a violation, see, e.g., State ex rel. Delph v. Barr (1989), 44 Ohio St.3d 77, 541 N.E.2d 52. The mere fact an issue of public concern is raised in closed session does not necessarily mean the action was deliberated, Greene CountyGuidance Center, Inc. v. Greene-Clinton Community Mental HealthBoard (1984), 19 Ohio App.3d 1, 482 N.E.2d 982. {¶ 35} The Ohio Supreme Court has encouraged us to construe the statute broadly and not elevate form over substance. Thus, it is not a defense that the public body did not initiate the meeting, see State ex rel. The Fairfield Leader v. Rickett (1990), 56 Ohio St.3d 97, 564 N.E.2d 486. In the same vein, a public body may not dodge the open meeting requirements by holding several identical back-to-back meetings attended by fewer than a majority of its members, if, taken together, the meetings are attended by the majority of the members, see State ex rel.Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540,1996-Ohio-372, 668 N.E.2d 903. {¶ 36} A complex set of circumstances was presented inSpringfield Local School District Board of Education v. OhioAssociation of Public Employees, Local 530 (October 18, 1995), Summit Appellate No. 17128. The Ninth District Court of Appeals determined, inter alia, discussions at closed meetings which contributed to a board's decision to adopt a resolution are improper. In this case, the Board deliberated a proposal to outsource bus services, and the Board of Education argued this discussion was so inextricably linked to the issue of bus drivers' and mechanics' job classifications to permit the Board to discuss this in Executive Session. The Court of Appeals rejected this argument, and found the Board could have separated the discussion of the outsourcing and privatization from its discussion of how ending the school board's bus services would affect school employees. {¶ 37} As stated supra, these cases involve situations where the courts received evidence about what occurred at the close-session meetings. Here, we are limited to the complaint, and there is as yet no evidence of what actually occurred at the contested meeting or meetings. {¶ 38} Turning now to the proposed agenda, we find it includes introductions and interests at the outset of the meeting, and a round-table discussion at the conclusion. The letter anticipates that "all" will participate in these portions of the meeting. {¶ 39} Contrary to appellee's assertion, appellant does allege the discussions and deliberations will result in formal action in subsequent public meetings. {¶ 40} We find, assuming all the allegations in the complaint to be true for purposes of deciding the motion, and construing the allegations and all reasonable inferences thereof, in favor of appellant, the non-moving party, there are facts consistent with the complaint upon which appellant could be awarded the relief requested. From the proposed agenda a reasonable inference could be drawn that the trustees may discuss and/or deliberate. The issues a potential merger raises are certainly matters of public interest. We conclude the trial court incorrectly dismissed the complaint for failure to state a claim. We note this does not mean appellant will succeed in prosecuting his claim, but only that the trial court should permit the matter to go forward. {¶ 41} The assignment of error is sustained. {¶ 42} For the foregoing reasons, the judgment of the Court of Common Pleas of Delaware County, Ohio, is reversed, and the cause is remanded to that court for further proceedings in accord with law and consistent with this opinion. Gwin, P.J., Hoffman, J., and Farmer, J., concur. For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Delaware County, Ohio, is reversed, and the cause is remanded to that court for further proceedings in accord with law and consistent with this opinion. Costs to appellees.

2016-07-06 06:41:40.620454+00

JOURNAL ENTRY and OPINION {¶ 1} In this appeal assigned to the accelerated calendar, plaintiff-appellant Matthew DeVenne challenges the trial court's decision to deny his pre-sentence motion to withdraw his guilty plea to a charge of breaking and entering. {¶ 2} The purpose of an accelerated appeal is to allow this court to render a brief and conclusory opinion. Crawford v. Eastland Shopping MallAssn. (1983), 11 Ohio App.3d 158. {¶ 3} Appellant argues the trial court abused its discretion in denying his motion. Since the facts of this case support appellant's argument, his assignment of error is sustained. {¶ 4} Appellant in this case was indicted on two fifth-degree felony charges; the charges resulted from his clandestine re-appropriation of his vehicle from a dealership lot without paying for repairs made to the vehicle. Apparently, efforts between the police department and the dealership to resolve the matter by less drastic means than criminal prosecution of appellant remained unsuccessful. {¶ 5} Appellant ultimately obtained a plea agreement by which the state dismissed the second fifth-degree felony charge in exchange for appellant's guilty plea to a count of breaking and entering. {¶ 6} At the commencement of the plea hearing, retained defense counsel acknowledged he discussed with appellant the potential negative effect a felony conviction would have on appellant's ability to work at his mother's child care and fitness center. Counsel requested the trial court to consider permitting the case to be dismissed in order that appellant could be placed in the "diversion program." The trial court denied the request. The plea hearing proceeded; the court thereafter accepted appellant's guilty plea. {¶ 7} A day prior to sentencing, with new counsel representing him, appellant filed a motion to withdraw his plea. The trial court conducted a hearing on the motion before denying it and sentencing appellant to a community control sanction. {¶ 8} In his sole assignment of error, appellant argues the trial court's denial of his motion should be reversed. He essentially contends that the record reflects the court failed to give "full and fair consideration" to his motion, as required by State v. Peterseim (1980),68 Ohio App.2d 211. A review of the record supports appellant's argument. {¶ 9} Although a defendant does not have an absolute right to withdraw his plea prior to sentencing; nevertheless, such a motion "should be freely and liberally granted." State v. Xie (1992), 62 Ohio St.3d 521, 527. The trial court's comments when confronted with appellant's motion demonstrate it failed to adhere to the foregoing rule of law and thus abused its discretion in denying appellant's motion. State v. Alls (Dec. 24, 1984), Trumbull App. No. 3313. {¶ 10} Appellant indicated at the outset of the hearing that he had not fully appreciated that a felony conviction would adversely affect his ability to hold a license to work in his chosen field. Rather than discussing appellant's reason, or questioning the prosecutor's decision to pursue serious criminal charges against appellant in a matter which was, at its core, civil in nature, the court questioned defense counsel as to whether he "ha[d] any law that says that that's a proper reason for withdrawing a plea." {¶ 11} The court approached the hearing having already made a decision to deny appellant's motion. This is demonstrated by the court's offense at appellant's decision to employ new defense counsel to present the motion; the court asserted the tactic was "a question of buying justice." The court put the issue in the following terms: "The facts are that [appellant is] guilty. But now [he] brought in a new attorney, and now after all this time we're going to allow a vacate of plea and dismissal of the case. I don't think so." With this mind set, the trial court was predisposed to treat appellant's motion as simply a means to refuse responsibility for the "crime." Thus, during testimony given by appellant's mother, the court's questions to the witness displayed an adversarial quality. {¶ 12} Based upon the record, the trial court did not "carefully weigh" the basis of appellant's motion and therefore abused its discretion in denying it. Cf., State v. Peterseim, supra. {¶ 13} Consequently, appellant's assignment of error is sustained. {¶ 14} Appellant's guilty plea is vacated. Accordingly, appellant's conviction and sentence also are vacated. {¶ 15} This case is remanded for further proceedings. This cause is vacated and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, ordered 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Sweeney, P.J. and McMonagle, J. Concur.

2016-07-06 06:41:41.246857+00

OPINION Appellant Jason Lallo is appealing the decision of the Stark County Court of Common Pleas, Juvenile Division, that denied his motion to suppress and found him guilty of allowing underage persons to possess or consume beer. The following facts give rise to this appeal. On June 5, 1997, at approximately 7:30 p.m., Jeffrey Paul Green telephoned the Jackson Township Police Department and reported that a number of juveniles were at the appellant's residence consuming acid, marijuana and beer. Following the telephone call, Detective Kneffler, Detective Snyder and Lieutenant Wilson went to appellant's residence. Upon arriving at the residence, the officers parked their vehicles and observed appellant's residence for approximately twenty minutes. Detective Kneffler testified, during this time period, he observed beer bottles on the front porch of the residence and through a window, he could see juveniles sitting inside the residence with beer bottles beside them. Tr. Suppression Hrng. at 34. However, he did not observe any juveniles drinking alcohol or taking drugs. Based upon their observations and the telephone call, the officers decided to "knock and talk". Upon approaching the residence, Lieutenant Wilson went to the porch, opened the closed door to the porch and entered the porch, without knocking and without consent from the residents. After the officers entered the porch, some juveniles entered the porch area. The officers stopped the juveniles and talked to them. The officers smelled marijuana and alcohol on their breath. Detective Wilson testified that he did not smell marijuana or alcohol while they were observing the juveniles outside the residence because the door to the porch was closed. Id. at 51. After talking to the juveniles on the porch, the officers walked through an open door between the porch and the residence and entered the living room. Upon entering the residence, the officers called out for appellant who was in the basement. The officers entered the basement and discovered beer bottles and smelled marijuana. The officers arrested appellant charging him with contributing to the delinquency of minors for permitting juveniles to consume marijuana and beer at his residence. Appellant filed a motion to suppress based upon the search conducted by the Jackson Township Police Department, on August 25, 1997. The trial court overruled appellant's motion on October 21, 1997. The state amended the charge of contributing to the delinquency of a minor to allowing underage persons to possess or consume beer. Appellant entered a plea of no contest. The trial court found appellant guilty and sentenced him accordingly. Appellant timely filed a notice of appeal and sets forth the following assignment of error for our consideration: I. THE FAILURE OF THE TRIAL COURT TO GRANT THE MOTION OF THE ACCUSED TO SUPPRESS AT TRIAL EVIDENCE OBTAINED BY OFFICERS OF THE JACKSON TOWNSHIP POLICE DEPARTMENT VIOLATES THE RIGHTS OF THE ACCUSED AS GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. I Appellant contends, in his sole assignment of error, the trial court should have granted his motion to suppress based upon an illegal search conducted by the Jackson Township Police Department. We agree. In his appeal, appellant challenges the trial court's findings of fact. In reviewing a challenge of this nature, we must determine whether said findings of fact are against the manifest weight of the evidence. See State v. Fanning (1982),1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 486; State v.Guysinger (1993), 86 Ohio App.3d 592. There is no dispute in this case that prior to the officers entering appellant's residence, they did not have in their possession a search warrant nor did they receive consent from the occupants of the residence. Further, the officers did not knock on the porch door or the door between the porch and the living room prior to entering. Therefore, in order for the officers to legally enter appellant's residence, one of the following judicially recognized exceptions must apply: 1. A search incident to a lawful arrest; 2. Consent thereby signifying a waiver of their constitutional rights; 3. The stop and frisk doctrine; 4. Hot pursuit; 5. Probable cause to search and the presence of exigent circumstances; or 6. The plain view doctrine. State v. Akron Airport Post 8975 (1985), 19 Ohio St.3d 49, 51. In its judgment entry, the trial court relied upon exceptions five and six in finding the officers were justified in expanding their search of the residence based on their knowledge that there were juveniles present in the residence who were drinking beer and smoking marijuana. Judgment Entry, Oct. 21, 1997, at 5-6. The trial court also determined that appellant had no reasonable expectation of privacy on the porch and therefore, the officers did not illegally enter appellant's residence. Judgment Entry, Oct. 21, 1997, at 4. We find this case turns on the issue of whether appellant had a reasonable expectation of privacy as it pertains to the area of his porch. In Stone v. Stow (1992), 64 Ohio St.3d 156, 163-164, the Ohio Supreme Court explained that "[i]n order for a party to succeed in challenging a search on Fourth Amendment grounds: (1) that party must have a subjective expectation of privacy in the object of the search, and (2) society must be prepared to recognize that expectation as reasonable." In the case sub judice, the trial court found appellant did not have a reasonable expectation of privacy as it pertained to the front porch of his house because "* * * [a] reasonable person could assume that the porch formed an entryway up to the front door and it would be reasonable for a person to enter or cross through that entryway to knock on the front door * * *." Judgment Entry, Oct. 21, 1997, at 4. We disagree with the trial court's review of the evidence. We find appellant did have a reasonable expectation of privacy as it pertained to the porch of his residence. We believe the manner in which this porch was designed and constructed supports our conclusion. The trial court made the following findings of fact regarding the porch: The porch is approximately 10 feet by 20 feet. It is enclosed by windows and a screen door having two (2) glass panels (herein after "screen door"). The screen door was unlocked on the date in question. The windows have no curtains although two (2) have blinds. There is a wooden door between the porch and the house, but no wooden door behind the screen door (it had been removed because it was in disrepair). The doorbell on the exterior of the porch was and is not working. There is a mixture of patio and indoor furniture on the porch. There is electricity but no heat. From the picture (defendant's exhibit 1) the porch looks like a storage area. The dog's dishes are there. The indoor furniture is jammed together, in an unusual position for use, in the corner of the porch with a box sitting on the chair. A pair of boat oars are leaning up against the window. Judgment Entry, Oct. 21, 1997, at 2. Due to the nature of the structure, we find the expectation of privacy pertaining to the porch was reasonable. The porch was entirely enclosed, with windows and a door. It has double hung pane windows with screens. Tr. Suppression Hrng. at 67. The porch is wired for electricity and has lamps and a telephone. Id. at 78. The porch also contains in-door furniture. Id. at 67. Appellant's father testified that he considers the porch a part of the residence and he does not lock the door that goes into the living room because he locks the porch door. Id. The fact that various items may be stored in this area, such as dog dishes, boxes and boat oars, does not alter the nature of the structure. The porch is enclosed, attached to the house and has a front door. Appellant clearly had an expectation of privacy as it pertains to the porch. We also find the exceptions to the warrant requirement, cited by the trial court in its judgment entry, do not apply in the casesub judice. The officers merely acted upon a telephone call they received. Upon arriving at the residence, they did not observe any illegal activity nor were there any exigent circumstances present that required them to conduct a search without a search warrant. Further, the officers only observed the juveniles sitting inside the residence, with beer bottles beside them. Id. at 34. The officers did not testify that they observed any of the juveniles drinking beer or taking illegal drugs. The officers only observed illegal activity after they entered the porch of the residence.Id. at 40, 44, 55. Appellant's sole assignment of error is sustained. For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby reversed and remanded for proceedings consistent with this opinion. By: Wise, J., Gwin, P. J., and Hoffman, J., concur. For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.

2016-07-06 06:41:41.276659+00

JOURNAL ENTRY AND OPINION {¶ 1} On March 28, 2003 the applicant, David Spencer, Jr.("Spencer"), pursuant to App.R. 26(B), applied to reopen this court's judgment in State of Ohio v. David Spencer, Jr. (June 17, 1996), Cuyahoga App. No. 69490, which affirmed his convictions and sentences for two counts of child rape, four counts of felonious sexual penetration, and two counts of gross sexual imposition. Spencer claims that his appellate counsel should have argued that his trial counsel was ineffective, inter alia, for not investigating thoroughly and for not calling supportive witnesses, including expert witnesses. On April 25, 2003, the State of Ohio filed its brief in opposition. For the following reasons, this court denies the application. {¶ 2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective assistance of appellate counsel to be filed within ninety days from journalization of the decision unless the applicant shows good cause for filing at a later time. The March 28, 2003 application was filed approximately seven years after this court's decision. Thus, it is untimely on its face. {¶ 3} In an effort to show good cause, Spencer blames his various attorneys for not properly pursuing the matter. However, this court has repeatedly ruled that misplaced reliance on one's lawyers does not provide good cause for untimely filing an App.R. 26(B) application. InState v. Lamar (Oct. 15, 1985), Cuyahoga App. No. 49551, reopening disallowed (Nov. 15, 1995), Motion No. 63398, this court held that lack of communication with appellate counsel did not show good cause. Similarly in State v. White (Jan. 31, 1991), Cuyahoga App. No. 57944, reopening disallowed (Oct. 19, 1994), Motion No. 49174, and State v.Allen (Nov. 3, 1994), Cuyahoga App. No. 65806, reopening disallowed (July 8, 1996), Motion No. 67054, this court rejected reliance on counsel as showing good cause. In State v. Rios (1991), 75 Ohio App.3d 288,599 N.E.2d 374, reopening disallowed (Sept. 18, 1995), Motion No. 66129, Rios maintained that the untimely filing of his application for reopening was primarily caused by the ineffective assistance of appellate counsel; again, this court rejected that excuse. Cf. State v. Moss (May 13, 1993), Cuyahoga App. Nos. 62318 and 62322, reopening disallowed (Jan. 16, 1997), Motion No. 75838; State v. McClain (Aug. 3, 1995), Cuyahoga App. No. 67785, reopening disallowed (Apr. 15, 1997), Motion No. 76811; and State v. Russell (May 9, 1996), Cuyahoga App. No. 69311, reopening disallowed (June 16, 1997), Motion No. 82351. {¶ 4} Spencer asserts that he was prevented from filing a timely App.R. 26(B) application because the trial court delayed in ruling on his postconviction relief petition. However, this argument is baseless. The pendency of a postconviction relief petition is completely unrelated to the filing of an App.R. 26(B) application and does not toll the time for filing. {¶ 5} Furthermore, appellate review is strictly limited to the record which is completed at the end of the trial. The Warder, Bushnell Glessner Co. v. Jacobs (1898), 58 Ohio St. 77, 50 N.E. 97; Carranv. Soline Co. (1928), 7 Ohio Law Abs. 5 and Republic Steel Corp. v.Sontag (1935), 21 Ohio Law Abs. 358. Thus, arguing that the application to reopen could not be resolved until the record was supplemented through the postconviction relief petition is not persuasive. {¶ 6} Moreover, these excuses do not explain the lapse of approximately seven years. In State v. Davis (1999), 86 Ohio St.3d 212,214, 714 N.E.2d 384, the Supreme Court of Ohio addressed a similar long lapse of time in filing the App.R. 26(B) application and ruled: "Even if we were to find good cause of earlier failures to file, any such good cause `has long since evaporated. Good cause can excuse the lack of a filing only while it exists, not for an indefinite period.' State v. Fox (1998), 83 Ohio St.3d 514, 516, 700 N.E.2d 1253, 1254." This deficiency alone provides sufficient grounds for denying the application. {¶ 7} Nevertheless, Spencer does not establish a genuine issue that his appellate counsel was ineffective. In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, cert. denied (1990),497 U.S. 1011, 110 S.Ct. 3258. {¶ 8} In Strickland the United States Supreme Court ruled that judicial scrutiny of an attorney's work must be highly deferential. The Court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland,104 S.Ct. at 2065. {¶ 9} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate's prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The Court noted: "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes (1983), 463 U.S. 745,77 L.Ed.2d 987, 103 S.Ct. 3308, 3313. Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the Court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every "colorable" issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638. {¶ 10} Moreover, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court need not determine whether counsel's performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies. {¶ 11} In the present case Spencer does not establish prejudice. He raises as his subject assignment of error that his trial counsel was ineffective. Trial counsel should have investigated more, e.g., interviewing the doctors who examined some of the children and found no physical evidence of sexual abuse.1 He should have called them as witnesses.2 Trial counsel should have investigated and found fault with the social worker's interview techniques and use of anatomically correct dolls. He should have consulted with an independent expert and/or used an independent expert as a witness to counter the state's evidence. He should have obtained the report to which the doctor referred in her testimony. {¶ 12} However, Spencer does not show what the results of this additional investigation would have been. He does not show that the other doctors or the independent expert would have cast a serious doubt on the physical evidence of sexual abuse, e.g., there was an independent, innocent explanation for the physical evidence of sexual abuse. He does not show that the interview techniques were flawed or that the report had information from which trial counsel could have successfully cross-examined the doctor. This court is left to speculate whether such evidence existed and what it may or may not have shown. Such speculation does not establish prejudice. {¶ 13} Spencer primarily relies upon three federal cases: Pavelv. Hollins (C.A. 2, 2001), 261 F.3d 210; Lindstadt v. Keane (C.A. 2, 2001), 239 F.3d 191; and Hart v. Gomez (C.A. 9, 1999), 174 F.3d 1067. In these case the federal circuit courts granted writs of habeas corpus to vacate the convictions for child sexual abuse on the grounds that trial counsel was ineffective for not investigating enough, for not calling supporting witnesses, and for not using an independent expert witness. However, in these cases the petitioners placed before the courts what the evidence and the testimony of the witnesses would have been. Additionally, each of the three cases had the background of an acrimonious divorce which is not present in the case sub judice. Thus, these cases are distinguishable and not persuasive. {¶ 14} Moreover, this court rejects the notion that a conviction for child sexual abuse must be vacated on the grounds of ineffective assistance of trial counsel, if there is a bare claim of other witnesses or if no defense expert testimony is used. The applicant must show such evidence existed, what it would have been, and how it would undermine the confidence in the verdict. Accusations and speculations are not sufficient. {¶ 15} Accordingly, this court denies the application to reopen. ANNE L. KILBANE, P.J., AND JAMES J. SWEENEY, J. CONCUR. 1 The grand jury indicted Spencer for sexually abusing eight neighborhood children. The evidence at trial indicated that although doctors examined the children, only two showed physical signs of sexual abuse. 2 During the trial the mothers of those children testified that they had their children examined and that the doctors did not find physical evidence of sexual abuse.

2022-09-09 23:54:33.324591+00

Affirmed

2016-07-06 06:41:46.103349+00

DECISION AND JOURNAL ENTRY Appellant Allstate Insurance Company (Allstate) appeals from denial of its Summary judgment motion and the grant of Summary judgment declaring Plaintiff Appellee Michael Williams (Williams) to be an insured under its policy. We reverse. On May 24, 1997 at 2 a.m. Williams while on duty as a Norton police officer, stopped to investigate a car that had pulled off the roadway onto the paved berm of Interstate 76 (I-76). Williams activated his blue and red lights and pulled his cruiser in behind the stopped vehicle. Williams got out of his cruiser and approached the stopped car. Upon Williams approaching the vehicle, Stafford handed him her license and told him she was lost and had missed her exit. As Williams was standing by Stafford's vehicle, Williams looked back and saw headlights coming towards him. He screamed, heard a crash, and jumped onto the hood or used his hands to vault across the hood of Stafford's vehicle to avoid Bache's car from striking him. He landed on the hood with his chest and the front part of his body and then rolled off the hood onto the ground. Unfortunately, Bache's vehicle struck William's right ankle area while he was on the hood or rolling off of it. As a result of this accident Williams filed suit against Bache and Stafford. Allstate and Grange Mutual Casualty Insurance Company (Grange) were named as Defendants, also. Allstate was named as a defendant because as Stafford's insurer, it also provided Uninsured Motorist/Underinsured Motorist (UM/UIM) coverage that could potentially cover William's injuries. Allstate filed a motion to dismiss. This motion was converted to a motion for Summary judgment. Williams and Grange filed motions in opposition. The trial court denied Allstate's motion. Grange and Williams then filed a motion for partial Summary judgment that was granted wherein the trial court declared that Williams was entitled to UM/UIM coverage under the Allstate policy. A jury trial was subsequently held solely on damages and Williams was awarded $40,000. Allstate appeals the trial court's rulings and has assigned three errors on appeal. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN DECIDING PLAINTIFF/APPELLEE, MICHAEL WILLIAMS, WAS OCCUPYING THE STAFFORD VEHICLE AS A MATTER OF LAW, THEREAFTER GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF/APPELLEE AND DENYING SUMMARY JUDGMENT OF DEFENDANT/APPELLANT, ALLSTATE. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF WHEN THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER THE PLAINTIFF WAS ENTITLED TO AVAIL HIMSELF ON THE UNINSURED/UNDERINSURED MOTORIST PROVISION IN THE POLICY OF INSURANCE PURCHASED BY LISA STAFFORD. "In reviewing a trial court's entry of summary judgment, an appellate court applies the same standard used by the trial court." McConville v. Jackson Comfort Sys., Inc. (1994), 95 Ohio App.3d 297, 301. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Based on the pleadings, evidence, and stipulations offered, when viewed in a light most favorable to the nonmoving party, reasonable minds must only be able to reach a conclusion that is adverse to the nonmoving party. Id. It is the moving party's initial burden to identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, limiting Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. Once this initial burden is met, the nonmoving party may not rest on its pleadings, but must set forth specific facts showing a genuine issue of material fact. Dresher, 75 Ohio St.3d at 293; Civ.R. 56(E). This Court reviews summary judgment de novo. Pursuant to Civ.R. 56(C), summary judgment is proper if: [N]o genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; and it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the moving party. State ex. rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589. Doubts must be resolved in favor of the nonmoving party. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 686. A party moving for summary judgment bears an initial burden of pointing to "some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims." Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. (Emphasis sic.) When a moving party has met this initial burden, the nonmoving party "may not rest on the mere allegations of her pleading, but her response * * * must set forth specific facts showing the existence of a genuine triable issue." State ex rel. Burnes v. Athens Cty. Clerk of Courts (1998), 83 Ohio St.3d 523, 524. Allstate claims the trial court erred in denying its motion for summary judgment and in granting partial summary judgment in favor of Grange. This Court agrees. The pertinent provisions of the Allstate Auto Insurance Policy provides as follows: AMENDMENT OF POLICY PROVISIONS — OHIO Part 3 Uninsured Motorist Insurance Coverage SS Section 1 Uninsured Motorists Insurance for Bodily Injury General Statement of Coverage If a Premium is shown on the Policy Declarations for Uninsured Motorists Insurance, we will pay those damages which an insured person or an additional insured person: is legally entitled to recover from the owner or operator of an uninsured auto, or because of bodily injury sustained by an Insured person or an additional Insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance, or use of an uninsured auto. An Uninsured Auto is: 5. an underinsured motor vehicle which has liability protection in effect and applicable at the time of the accident in an amount equal to or greater than the financial responsibility laws of Ohio, but less than the limits of liability for Uninsured Motorists Insurance shown on the Policy Declarations. Section 3 Additional Provisions Additional Definitions for Part 3 2. "Additional Insured Person(s)" means: a. any other person occupying, but not operating, an Insured auto. b. any other person who is legally entitled to recover because ofbodily injury to a person occupying, but not operating, an insured auto. General Policy Part 2 Automobile Medical Payments Coverage CC Additional Definitions for Part 2 "Insured Person(s)" means: b. Any other person who sustains bodily injury while in, on, getting into or out of, or getting on or off of: Your insured auto while being used as a vehicle by you, a resident relative, or any other person with your permission. The Ohio Supreme Court has held that "occupying" should be liberally construed to permit recovery for injuries sustained while an insured was performing tasks intrinsically related to the operation of the vehicle. See Kish v. Central Natl. Ins. Group (1981), 67 Ohio St.2d 41, 51-52, citing Robson v. Lightning Rod Mutl. Ins. Co. (1978), 59 Ohio App.2d 261 and Madden v. Farm Bur. Mut. Auto Ins. Co. (1948), 82 Ohio App. 111. The court has also opined that the analysis should take into account the immediate relationship the claimant has with the vehicle, within a reasonable geographic area. See Joins v. Bonner (1986), 28 Ohio St.3d 398, 401. In the case at bar, however, Williams was not performing a task intrinsically related to the operation of Stafford's car. See, e.g., State Farm Mutual Auto Insurance co. v. Counts (1990), Ohio App., Lexis 4945 (9th District, claimant held "occupying" when injured was underneath vehicle working on it); Halterman v. Motorists Mut. Ins. Co. (1981), 3 [*12} Ohio App. 3d 1 (claimant held "occupying" vehicle when injured siphoning gasoline into the insured vehicle); Robson v. Lightning Rod Mut. Ins. Co. (1978), 59 Ohio App.2d 261 (claimant held "occupying" vehicle when injured loading a stereo into the trunk of the insured vehicle); Madden v. Farm Bureau Mut. Auto. Ins. Co. (1948), 82 Ohio App. 111 (claimant held "occupying" vehicle when injured placing a tire in the truck of the insured vehicle). Although Williams was standing beside Stafford's car, it is clear from the record that Williams was neither inside the vehicle nor attempting to operate, load or repair it. Thus, even a liberal construction of "occupying" cannot bring the instant facts within the ambit of the term. This Court, therefore, concludes that Williams was not "occupying" Stafford's car as meant under the policy. The trial court's determination was not in error. Allstate's assignments of error I and II are sustained. Judgment reversed. 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 Appellees. Exceptions. ___________________________ WILLIAM G. BATCHELDER BATCHELDER, P.J. SLABY, J. CONCUR CARR, J. DISSENTS, SAYING: I respectfully dissent as I feel Williams was "occupying" the car under either the Kish and/or Joins tests. First, Williams, in his official capacity, was assisting a lost motorist to get to a place of safety, and second, he was either on her car or immediately beside her car when struck by the other vehicle. I would affirm.

2016-07-06 06:41:41.496929+00

JOURNAL ENTRY AND OPINION {¶ 1} The appellant, State of Ohio ("State"), appeals the decision of the trial court granting appellee, Charles Alexander's ("Alexander") motion to suppress evidence seized in the search of a residence. For the following reasons, we reverse the decision of the trial court and remand the case for further proceedings. {¶ 2} Sometime prior to November 6, 2003, Detective Cynthia McKissick of the Cuyahoga County Sheriff's Department received information that a black male in his early twenties, who drove a blue Chevrolet Monte Carlo with "mag" wheels, was selling drugs from the premises and a van parked in the driveway at 6926 Morgan Avenue in Cleveland, Ohio. The residence was leased to an individual identified as Clarence Ewing. {¶ 3} Detective McKissick has a bachelor of arts degree in criminal justice from Edinboro University and was a detective for three years with the sheriff's narcotics unit. She was familiar with packaging and sale of illegal narcotics and had participated in hundreds of arrests for violations of state drug laws. {¶ 4} After receiving this information, the sheriff's department conducted surveillance at the residence and observed numerous persons enter the residence, stay a short time and then depart. In the experience of Detective McKissick, this conduct was consistent with the premises being used to traffic drugs. {¶ 5} Detective McKissick then contacted a confidential informant ("CI"), who was given a sum of marked U.S. currency and taken to the Morgan Avenue location to make an "undercover" buy. The CI was equipped with a digital recorder and transmitter. After entering the residence and staying a short time, the CI emerged with a black male matching the description of the individual purportedly involved in the sale of drugs. They went to the van located in the driveway at 6926 Morgan Avenue. The CI then exchanged $20 for one "rock," which later tested positive for cocaine. {¶ 6} Detective McKissick then obtained a search warrant for the residence in question and executed a search on November 6, 2003. A search warrant return was filed on November 12, 2003 indicating the suspect male, Alexander, was arrested on the premises. Alexander had $583 in cash and a cell phone on his person. Police also recovered three crack pipes from a front bedroom, a piece of suspected crack cocaine from that same bedroom, a digital scale from another bedroom, and a large rock of cocaine from the Chevrolet van parked in the driveway, along with another digital scale and "crumbs" of suspected cocaine from the same vehicle. Two other males were also present in the residence at the time of the search and were arrested and charged along with Alexander in common pleas court. Alexander filed a motion to suppress the items seized in the search on March 29, 2004, and the trial court held a hearing on September 22, 2004. The trial court granted Alexander's motion, indicating that the affidavit was "facially deficient." The court indicated the warrant only authorized a search of the "premises" at 6926 Morgan and that no vehicles or "out-buildings" on the property were mentioned. Further, the court found that there was no evidence to support a search of the premises at 6926 Morgan Avenue, since no drug transaction had taken place inside the residence. Last, the court also indicated that the warrant and affidavit did not expressly state that the driveway where the van was located was on the property of 6926 Morgan Avenue. {¶ 7} The State appeals and raises six assignments of error for our review. Since the assignments are interrelated, we will discuss them together. The assignments of error read as follows: {¶ 8} "I. The court erred in concluding that the affidavit for the search warrant does not suggest that the driveway was on the premises of 6926 Morgan." {¶ 9} "II. The court erred in concluding that vehicles and out-buildings on the property were not mentioned in the warrant and that the warrant did not authorize [the] search of vehicles found on the premises." {¶ 10} "III. The trial court erred in concluding that the law enforcement officers lacked probable cause to search the structure at 6926 Morgan Street." {¶ 11} "IV. The trial court erred in concluding that the affidavit and warrant are so facially deficient that the evidence must be suppressed." {¶ 12} "V. The court erred in failing to accord deference to the warrant issued by another court of common pleas." {¶ 13} "VI. The trial court erred in failing to find that the law enforcement officers acted in good faith reliance on the search warrant." {¶ 14} The six assignments of error raised by the State essentially raise two separate and controlling issues: first, whether the affidavit contained sufficient information to establish probable cause to authorize the search; and second, whether the affidavit and warrant were sufficiently clear in defining the areas to be searched. As such, we will discuss the assignments of error together as they are interrelated with these primary issues. {¶ 15} The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." {¶ 16} Section 14, Article I of the Ohio Constitution is nearly identical in its language, and its protections are coextensive with its federal counterpart. State v. Robinette (1997), 80 Ohio St.3d 234, 238; State v. Kinney,83 Ohio St.3d 85, 1998-Ohio-425. {¶ 17} The Supreme Court of Ohio in State v. George (1989),45 Ohio St.3d 325, outlined the standards to be applied for both the issuing magistrate and the reviewing courts with respect to search warrants: {¶ 18} "1. In determining the sufficiency of probable cause inan affidavit submitted in support of a search warrant, `[t]hetask of the issuing magistrate is simply to make a practical,common-sense decision whether, given all the circumstances setforth in the affidavit before him, including the "veracity" and"basis of knowledge" of persons supplying hearsay information,there is a fair probability that contraband or evidence of acrime will be found in a particular place.' (Illinois v.Gates [1983], 462 U.S. 213, 238-239, followed.) {¶ 19} "2. In reviewing the sufficiency of probable cause inan affidavit submitted in support of a search warrant issued by amagistrate, neither a trial court nor an appellate court shouldsubstitute its judgment for that of the magistrate by conductinga de novo determination as to whether the affidavit containssufficient probable cause upon which that court would issue thesearch warrant. Rather, the duty of a reviewing court is simplyto ensure that the magistrate had a substantial basis forconcluding that probable cause existed. In conducting anyafter-the-fact scrutiny of an affidavit submitted in support of asearch warrant, trial and appellate courts should accord greatdeference to the magistrate's determination of probable cause,and doubtful or marginal cases in this area should be resolved infavor of upholding the warrant. (Illinois v. Gates [1983],462 U.S. 213, followed.)" {¶ 20} State v. George, 45 Ohio St.3d 325, paragraphs one and two of the syllabus. {¶ 21} The Supreme Court of Ohio has previously defined the term probable cause. "[T]he term probable cause, according to its usual acceptation, means less than evidence which would justify condemnation * * *. It imports a seizure made under circumstances which warrant suspicion. * * * [T]he quanta * * * of proof appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision. * * * [I]t is clear that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." George,45 Ohio St.3d at 329, quoting Illinois v. Gates (1983), 462 U.S. 213, 235 (internal citations and quotations omitted). {¶ 22} Here, the affidavit described the suspect as a black male in his early twenties who drove a distinctive auto with "mag" wheels. The affidavit indicated that the information received by police revealed drugs were sold both from the residence and from a van parked in the driveway. The affidavit further claimed that numerous individuals were observed entering the residence through the front door, staying a short time and then leaving. This was described as being conduct consistent with drug trafficking. The affidavit also revealed that within five hours of observing this conduct, police contacted a confidential informant, who made a controlled purchase of one rock of cocaine for $20 from the described male at the 6926 Morgan location. The transaction was recorded by means of a digital recording and monitoring device fitted to the CI. The CI was seen entering the residence and staying a short time and then leaving to accompany the suspect to a van parked in the driveway. The CI informed the police that the suspect retrieved a rock of cocaine from the van parked in the driveway of the residence, which was given to the CI for $20. {¶ 23} In a case with substantially similar facts, we previously upheld a finding of probable cause by the issuing magistrate to search a residence. "Citizen complaints, law enforcement surveillance and a controlled buy set-up at the home would indicate to an issuing magistrate that there was a fair probability that drugs would be found on the premises. It should also be noted that the information contained in the affidavits was not stale; surveillance and the controlled buy took place just prior to the issuance of the search warrant." State v.Richard, Cuyahoga App. No. 78813, 2002-Ohio-9. {¶ 24} Relying on the Richard decision and by according due deference to the magistrate's finding of probable cause, we find that there was a sufficient basis to believe that drugs would be found at the home. {¶ 25} The affidavit fully described the residence and area to be searched. It contained facts referencing conduct associated with the house, the driveway, and the van. It outlined Detective McKissick's training, education and experience. In light of the facts outlined in the affidavit, there were sufficient facts present to establish probable cause for the search. {¶ 26} We now turn our attention to the question of whether the affidavit and warrant were sufficiently clear in describing the areas in question to justify a search of both the residence and the van. {¶ 27} The warrant gave a complete description of the external residence, including the type, color, style, address numbers and relative size. It also specifically described where on the street it was located in relation to the cross street in the city of Cleveland. The warrant expressly found probable cause for a search of "* * * the premises above described, its cartilage [sic], common and storage areas, vehicles above described and the persons present therein, * * *." {¶ 28} The trial court's determination that the affidavit does not suggest the driveway was on the same property of 6926 Morgan was simply an error. The affidavit clearly identifies the relationship between the van in the driveway and the residence, in paragraph eight where it states: "Affiant observed the CI follow this male to the van parked in the driveway." {¶ 29} Here, a plain reading of the warrant and accompanying affidavit demonstrates that the issuing magistrate had a sufficient basis, as required under the George test, to support issuance of the warrant. The trial court should have afforded deference to the magistrate's decision to issue the warrant in light of the facts presented. {¶ 30} Thus, we find merit to the issues raised in each of the six assignments of error and reverse the decision of the trial court to suppress the evidence in the case. The matter is remanded for further proceedings in the trial court. {¶ 31} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee costs herein. 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Kilbane, J., and McMonagle, J., Concur.

2016-07-06 06:41:41.550019+00

OPINION {¶ 1} Defendant-appellant Kim Shreve appeals his convictions in Ashland Municipal Court Case Nos. 2005-CR-B-654AB, 2005-CR-B-910AB, and 2005-CR-B-1108. Plaintiff-appellee is the City of Ashland. STATEMENT OF LAW AND FACTS {¶ 2} On May 21, 2005, appellant was arrested and charged with one count of resisting arrest in violation of R.C.2921.33(A), a misdemeanor of the second degree, and one count of disorderly conduct in violation of R.C. 2917.11(B)(1), a minor misdemeanor. Although appellee was initially represented by counsel, his counsel withdrew on or about June 30, 2005, due to a conflict of interest. See, Ashland Municipal Court Case No. 2005-CR-B-654AB. {¶ 3} On July 11, 2005, appellant was arrested and charged with one count of criminal trespass in violation of R.C.2911.21(A)(1), a misdemeanor of the fourth degree, and disorderly conduct in violation of R.C. 2917.11(B)(2), a minor misdemeanor. See, Ashland Municipal Court Case No. 2005-CR-B-910AB. {¶ 4} On August 14, 2005, appellant was arrested and charged with one count of criminal trespass in violation of R.C.2911.21(A)(3), a misdemeanor of the fourth degree. See, Ashland Municipal Court Case No. 2005-CR-B-1108. {¶ 5} A bench trial on all charges was conducted on August 23, 2005, during which appellant was unrepresented by counsel. The court advised appellant of the trial procedure at the onset of the trial as follows: {¶ 6} "The procedure for trial, Mr. Shreve, is that the State will get to go first because they have the burden of proof to prove guilt beyond a reasonable doubt. After each witness testifies, you will have the right to ask questions by way of cross examination. After the state has rested, if you wish to call any witnesses you may. If you wish to testify yourself, you may. You're not required to do anything except be here. If you do testify, it has to be your own choice. And you can't be compelled to testify against your will. If you have any questions on procedure, I can help you a little bit." {¶ 7} Appellant was not advised of his right to counsel, or of the perils of self representation. He was not asked if he was prepared to proceed. He asked no questions of the State's witnesses and called no witnesses in his defense. He was found guilty on all counts. {¶ 8} In Case No. 2005-CR-B-654AB appellant was sentenced to serve ninety (90) days in the Ashland County Jail for resisting arrest, to be served consecutively to the sentences in Case Nos. 2005-CR-B-910AB and 2005-CR-B-1108, and to pay court costs. He was also sentenced to perform forty (40) hours of community service, to be served consecutively to the community service imposed in Case No. 2005-CR-B-910 AB, and pay a $50.00 fine for disorderly conduct. {¶ 9} In Case No. 2005-CR-B-910AB appellant was sentenced to serve thirty (30) days in the Ashland County Jail for criminal trespass, to be served consecutively to the sentences in Case Nos. 2005-CR-B-654AB and 2005-CR-B-1108, and to pay court costs. He was also sentenced to perform forty (40) hours of community service, to be served consecutively to the community service imposed in Case No. 2005-CR-B-654AB, and pay a fine of $50.00 for disorderly conduct. {¶ 10} In Case No. 2005-CR-B-1108 appellant was sentenced to serve thirty (30) days in the Ashland County Jail, to be served consecutively to the sentences in Case Nos. 2005-CR-B-654AB and 2005-CR-B-910AB, and to pay court costs. {¶ 11} On September 22, 2005, appellant filed a motion for appointment of as counsel [sic] and an affidavit of indigency, and on September 23, 2005 the trial court appointed appellant counsel for purposes of appeal. {¶ 12} Appellant asserts the following assignment of error: {¶ 13} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING THE APPELLANT HIS RIGHT TO COUNSEL. THIS ERROR IS REFLECTED IN THE TRANSCRIPT." {¶ 14} Appellant argues that the trial court denied his right to counsel. We agree. {¶ 15} The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution guarantee criminal defendants the absolute right to counsel. See, State v.Bettah, Licking App. No. 05CA50, 2006-Ohio-1916, at ¶ 35, citingState v. Tymcio (1975), 42 Ohio St.2d 39, 43, 325 N.E.2d 556, and Argersinger v. Hamlin (1972), 407 U.S. 25, 37,92 S.Ct. 2006, 32 L.Ed.2d 530. A criminal defendant may waive this right to counsel either expressly or impliedly based upon the circumstances of the case. Bettah at ¶ 39, citing State v.Weiss (1993), 92 Ohio App.3d 681, 684, 637 N.E.2d 47. Further, a criminal defendant may defend himself if he elects to do so voluntarily, knowingly, and intelligently. Id., citing State v.Gibson (1976), 45 Ohio St.2d 366, 377, 345 N.E.2d 399. {¶ 16} In order for a criminal defendant to effectively waive his right to counsel, the trial court must make sufficient inquiry into whether or not the defendant fully understood the legal ramifications of such a waiver. The trial court's inquiry must confirm that the defendant's waiver was made with an awareness of the nature of the charges against him, the statutory offenses included in said charges, the range of allowable punishments, possible defenses to the charges and mitigating factors, and any other facts essential to broad understanding of the entire matter. Bettah at ¶ 40. {¶ 17} In the case at hand, the appellant was originally represented by counsel, who withdrew on or about June 30, 2005. There is no evidence in the record before us that, after the withdrawal, the appellant was ever advised of his right to counsel, appointed or otherwise, such that he was able to make a voluntary, knowing and intelligent decision to proceed without the benefit of counsel. {¶ 18} The law in Ohio is well settled that a defendant charged with a minor misdemeanor, in which no jail time can be imposed, is not entitled to appointed counsel. See, Bettah at ¶ 36. Thus, appellant did not have the right to court-appointed counsel for the minor misdemeanor charges on which he was tried. However, the right to counsel is guaranteed in all criminal matters, regardless of the category into which the charged offense(s) fall, and appellant therefore had the right to counsel on all charges with which he was faced. The record herein does not reflect that the appellant was ever advised of his right to counsel, or that he effectively waived his right to counsel.1 Accordingly, the appellant's assignment of error is sustained, and this matter is reversed and remanded to the trial court. By: Edwards, J. Wise, P.J. and Gwin, J. concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Ashland County Municipal Court is reversed and remanded to the trial court. Costs assessed to appellee. 1 Appellee argues that the record as transmitted by the appellant does not reflect that appellant was advised of his right to counsel, but that the record as transmitted is incomplete without a transcript of the pretrials and other proceedings, which do so reflect. While the appellant does, generally, bear the burden of showing error by references to the record, if the appellee considers the record to be inadequate insofar as it does not contain a "transcript of other parts of the proceedings necessary" to thoroughly consider the issues on appeal, then it becomes the appellee's duty to supplement the record with that information. See, App. R. 9(B). Thus, if the appellee felt the record, if supplemented, would evidence the fact that the appellant was fully advised of his right to counsel, it should have supplemented the record accordingly.

2016-07-06 06:41:41.728862+00

DECISION Appellant, Larry Swoope, appeals from the judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of appellees, Hyatt Hotels ("Hyatt") and Tidy Building Services ("Tidy"). On May 22, 1997, Swoope attended a conference at a Hyatt hotel in Columbus. The hotel had retained Tidy to clean and maintain its lobby. Swoope slipped and fell in the hotel lobby. In November 1997, Swoope had surgery to repair ligaments, which he allegedly damaged in the May 1997 fall. Swoope contends that appellees' negligence caused his injuries. Swoope admitted, however, that he does not know why he fell. He testified that he did not recall the floor being wet, nor did he notice any defect in the floor. The only other evidence offered by Swoope was the testimony of Yuncha Pae, part owner of Tidy. Pae testified that she saw Swoope immediately before he fell, when she shouted at him not to run in the lobby. Pae stated that she saw Swoope fall and that she immediately checked the floor and determined that it was dry. She testified that she did not know what caused Swoope to fall. The trial court concluded that Hyatt and Tidy were entitled to judgment because Swoope failed to provide evidence regarding the cause of his fall. On appeal, Swoope asserts the following assignment of error: The ruling of the trial court granting Defendant's [sic] motion for summary judgment pursuant to Rule 56(C) of the Ohio Rules of Civil Procedure is contrary to law when there were genuine issues of material fact. Appellate court review of a summary judgment motion is de novo. Heltonv. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162. Pursuant to Civ.R. 56(C), summary judgment may be granted when the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.Relations Bd. (1997), 78 Ohio St.3d 181, 183. The moving party bears the initial burden of informing the trial court of the basis for the motion and identifying the portions of the record that establish the absence of a genuine issue of fact on a material element of the non-moving party's claim. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293. After the moving party satisfies this initial burden, the non-moving party bears a reciprocal burden to respond by affidavit, or as otherwise provided in Civ.R. 56, and must set forth specific facts showing the existence of a genuine issue for trial. Civ.R. 56(E). If the non-moving party fails to so respond, summary judgment, if appropriate, shall be entered against him. Civ.R. 56(E). For the reasons that follow, we affirm the judgment of the trial court. "To establish negligence in a slip and fall case, it is incumbent upon the plaintiff to identify or explain the reason for the fall." Stamperv. Middletown Hosp. Assn. (1989), 65 Ohio App.3d 65, 67-68. "Where the plaintiff, either personally or by outside witnesses, cannot identify what caused the fall, a finding of negligence on the part of the defendant is precluded." Id. at 68. Negligence cannot be established by the mere fact that a person slipped and fell. Shepherd v. Mount Carmel Health (Dec. 2, 1999), Franklin App. No. 99AP-197, unreported. In the instant action, Swoope provided no evidence whatsoever about what caused his fall. Swoope admitted in his deposition that he did not know what caused him to fall. Q: You had indicated you don't recall the floor being wet, and you are not really sure why you fell. A. No. Q. Do you recall seeing any defects in the floor? A. No. Q. And by that as an example would be a crack of the floor or A. No. Q. a part being higher. A. No. Q. So you have no idea why you fell? A. No. [Depo. at 43.] Pae likewise testified that she did not know what caused Swoope's fall. Furthermore, Pae testified that, although a Tidy employee had mopped in the lobby, she checked the area where Swoope fell and observed that it was dry. In an effort to create an issue of fact, Swoope contends that "the deposition of Yuncha Pae establishes that she was so concerned about the possibility of the floor being wet that she attempted to warn Mr. Swoope." The record, however, does not support Swoope's assertion. Pae testified that she shouted at Swoope because he was running in the lobby, not because she was concerned about the floor. Swoope's interpretation of Pae's testimony is insufficient to create an issue of fact and overcome appellees' motion for summary judgment. See McGuire v. Lovell (1998),128 Ohio App.3d 473, 487. Swoope has provided no evidence whatsoever about the cause of his fall and, accordingly, his claims must fail as a matter of law. Accordingly, appellant's assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. ___________________ BOWMAN, P.J. DESHLER and LAZARUS, JJ., concur.

2016-07-06 06:41:41.796824+00

DECISION AND JUDGMENT ENTRY This matter is before the court on appeal from the Lucas County Court of Appeals wherein appellant, James D. Jackson, was convicted of aggravated vehicular assault. The facts giving rise to this appeal are as follows. On December 21, 1999, two Toledo Police Officers were told that a pedestrian had been struck by a car on the Martin Luther King Bridge in Toledo, Ohio. The officers, Ashley Nichols and Dan Spradlin, arrived on the scene and found a woman lying on the sidewalk surrounded by a group of people. Officer Nichols called for an ambulance, parked his cruiser and turned on his overhead lights. Officer Spradlin got out of the cruiser and went to assist the woman. Officer Nichols got out of the cruiser and opened the trunk to get a blanket for the woman. While he was retrieving the blanket, a pickup truck collided with the rear of the cruiser pinning officer Nichols' leg between the two bumpers. As a result, Officer Nichols suffered a broken ankle. On January 10, 2000, the driver of the pickup truck, appellant James D. Jackson, was indicted on one count of aggravated vehicular assault, a violation of R.C. 2903.08 and a felony of the fourth degree. The indictment included a specification that appellant was under the influence of alcohol at the time of the offense. Appellant was found guilty by a jury on August 30, 2000. He was sentenced to twelve months in prison. Appellant now appeals setting forth the following assignments of error: "I. THE TRIAL JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING HEARSAY TESTIMONY OFFERED BY EXPERT WITNESS OVER DEFENDANT-APPELLANT OBJECTION. "II. THE TRIAL JUDGE COMMITTED PREJUDICIAL ERROR BY ALLOWING TESTIMONY AND OPINIONS OF EXPERT WITNESS WHICH RELIED ON FACTS NOT PERCEIVED BY HIM OR ADMITTED IN EVIDENCE AT THE TRIAL. "III. THE VERDICT THAT DEFENDANT-APPELLANT WAS OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. "IV. THE VERDICT THAT DEFENDANT-APPELLANT'S CONDUCT WAS RECKLESS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." In his first assignment of error, appellant contends that the court erred in admitting the hearsay testimony of one of the state's witnesses, Toledo Police Officer George Roush. Before Roush testified, the state cross-examined Eric Lewandowski as a hostile witness. Lewandowski owned the pickup truck that struck officer Nichols. He testified that he saw appellant before the accident. The prosecutor then asked: "you told officer Roush, did you not, that you believed that Mr. Jackson was in no condition to drive that night?" Lewandowski testified that he had no memory of the conversation. Officer Roush testified that he was an accident reconstructionist for the Toledo Police Department. On December 21, 1999, Roush was called to the Martin Luther King Bridge in Toledo to investigate the accident involving Officer Nichols. Roush discovered that appellant was not the owner of the pickup truck that struck Officer Nichols. Roush testified that the actual owner of the pickup, Eric Lewandowski, contacted Officer Roush after the accident in an effort to retrieve his truck from police custody. According to Roush, Lewandowski told him that prior to the accident, he had been at a bar with appellant. Roush testified that Lewandowski told him that on December 21, 1999, he was worried that appellant was too intoxicated to drive. Defense counsel objected to the testimony on the basis of hearsay. The court overruled the objection. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). "Hearsay is not admissible except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio." Evid.R. 802. Evid.R. 804(B)(3) recognizes a hearsay exception for declarations against interest. In order for a statement to qualify as an exception under this rule, the statement must be (1) based on firsthand knowledge, (2) against the declarant's pecuniary or proprietary interests of the declarant or would subject him to criminal or civil liability or render invalid a claim by him against another, and (3) the declarant is unavailable under Evid.R. 804(A). Evid.R. 804(A)(3) provides, in pertinent part, that "unavailability as a witness' includes situations in which the declarant * * * testifies to a lack of memory of the subject matter of the declarant's statement." Lewandowski's statements, which he testified he could not remember, could conceivably subject him to civil liability under the theory of negligent entrustment. Accordingly, Roush's testimony was admissible as a hearsay exception pursuant to 804(B)(3). Moreover, if the evidence in favor of conviction, absent the hearsay, is so overwhelming, the admission of those statements is harmless beyond a reasonable doubt. State v. Kidder (1987), 32 Ohio St.3d 279, 284. Officer Spradlin testified that he approached the pickup truck immediately after it struck his partner. Spradlin testified that appellant spontaneously announced "[I]'ve been drinking. I'm drunk." Spradlin testified that later at the police station, appellant stated that he had drank four rum and cokes and four peppermint schnapps. Officer Douglas Hipp testified that he stood watch over appellant at the accident scene as Officer Spradlin tended to his partner. Hipp testified that appellant stated he was drunk. Hipp observed that appellant's coordination was impaired and his motor skills were depressed. Lucas County Sheriff's Deputy Gary Condon testified that he encountered appellant at the Lucas County Jail in the early morning hours of December 22, 1999. Condon testified that appellant appeared drunk and smelled of alcohol. Toledo Police Officer Brenda Sarahman testified that she transported appellant to the jail after the accident. While sitting in the car, Sarahman testified that a sobbing appellant spontaneously announced "[I] did a boo-boo. I drank and drove. I know I shouldn't have." At the police station, Officer Sarahman testified that she heard appellant say that he had been at a bar since 5:30 p.m. and that "they" shouldn't have let him drive. A witness to the accident, Melissa Moore, testified that when appellant exited the pickup truck, he appeared unsteady on his feet. She further testified "[M]y first thought was that he was drinking or something, some kind of influence." Given the amount of eyewitness testimony regarding appellant's sobriety the night of the accident, it cannot be said that appellant was prejudiced by the admission of Officer Roush's testimony as to whether or not it amounted to inadmissible hearsay. Appellant's first assignment of error is found not-well taken. In his second assignment of error, appellant contends the court erred in admitting Officer Roush's testimony regarding his reconstruction of the accident. Specifically, appellant contends that Roush was not properly qualified as an expert in accident reconstruction. We need not review Roush's qualifications as an accident reconstructionist. Even without Roush's testimony, there was overwhelming evidence of appellant's guilt presented at trial. As discussed above, numerous witnesses testified that appellant was the driver of the pickup truck who struck Officer Nichols. Moreover, the owner of the pickup truck, Eric Lewandowski, testified that appellant was driving the pickup when he struck Officer Nichols on December 21, 1999. Any error in the admission of Roush's testimony was harmless. Appellant's second assignment of error is found not well-taken. In his third assignment of error, appellant contends his conviction was based on insufficient evidence and was against the manifest weight of the evidence. In his fourth assignment of error, appellant specifically argues that the element of "reckless" was not proved. Weight of the evidence indicates that the greater amount of evidence supports one side of an issue more than the other. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, quoting Black's Law Dictionary (6 Ed. 1990) 1594. The Ohio Supreme Court has defined the standard we must use to review whether the manifest weight of the evidence sustains a conviction: "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the fact finder's resolution of the conflicting testimony." Id. at 387, citing Tibbs v. Florida (1982), 457 U.S. 31, 42. To determine whether this is an exceptional case where the evidence weighs heavily against conviction, an appellate court must review the record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. Id., quoting State v. Martin (1983),20 Ohio App.3d 172, 175. Only if we conclude that the jury clearly lost its way in resolving conflicts in evidence and created a manifest miscarriage of justice will we reverse the conviction and order a new trial. Id. The concept of manifest weight of the evidence is distinguished from sufficiency of the evidence. State v. Jenks, 61 Ohio St.3d 259 . Sufficiency of the evidence is the legal standard to test whether the evidence introduced at trial is legally sufficient or adequate as a matter of law to support a verdict. State v. Thompkins,78 Ohio St.3d at 386. "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 proved beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact.Jenks, at 273. If the court determines that the evidence is insufficient as a matter of law, a judgment of acquittal may be entered for the defendant. See Thompkins, supra, at 386. Even though supported by sufficient evidence, a conviction may still be reversed as being against the manifest weight of the evidence.Thompkins, Id. In so doing, the court of appeals sits as a "thirteenth juror", and after reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Id., citation omitted. Determinations of witness credibility are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Appellant was convicted of aggravated vehicular assault. The elements of that offense are as follows: "[N]o person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall recklessly cause serious physical harm to another person." R.C. 2901.22(C) defines "reckless" as follows: "A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist." The evidence presented at trial shows that appellant, while operating a motor vehicle, caused serious physical harm to a police officer. Moreover, there was sufficient evidence for the jury to conclude that appellant's consumption of alcohol created a situation which was likely to result in an incident such as that which occurred. This court has thoroughly reviewed the record of proceedings in the trial court, and upon consideration thereof, finds that there was no evidence that the jury lost its way or created a manifest miscarriage of justice. Appellant's third and fourth assignments of error are found not well-taken. On consideration whereof, the court finds that appellant was not prejudiced nor prevented from having a fair trial, and the judgment of the Lucas County Court of Common Pleas is affirmed. It is ordered that appellant pay the court costs of this appeal. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Peter M. Handwork, J., Melvin L. Resnick, J., and Richard W. Knepper, J., CONCUR.

2016-07-06 06:41:41.820409+00

This is an appeal from the Vinton County Court of Common Pleas, Probate Division. Gay F. Johnson brought this action against Ernest Ray Johnson individually and as Executor of the Estate of Delilah Johnson. Gay Johnson's action contended that Delilah lacked testamentary capacity when she executed a will dated January 22, 1997. It was also contended that Ernest Johnson fraudulently induced Delilah to execute various documents in April and May of 1996, such as the revocation of a trust, transfers of property, etc. After a jury trial, the trial court entered judgment on the verdicts in favor of Gay on both claims. Ernest Johnson takes this appeal setting forth two Assignments of Error. First Assignment of Error: "The trial court lacked subject matter jurisdiction as to the fraud claim set forth in plaintiff's second cause of action, and therefore erred by not dismissing the fraud claim." Second Assignment of Error: "The Trial Court erred by overruling defendants' Motion Bifurcate the trial of the first cause of action (a will contest) and the second cause of action (a fraud claim)." Delilah Johnson was the mother of two sons, Gay Johnson, the appellee, and Ernest Johnson, the appellant. In 1991, Delilah Johnson executed an inter vivos trust pertaining to her real property and some of her personal property. On April 6, 1996, the appellant, Ernest Johnson, presented documents to Delilah Johnson. The purpose of these documents was to transfer all her property out of the trust to Delilah Johnson, to grant a power of attorney to the appellant and to revoke the trust itself. In May of 1996, Ernest Johnson, presented his mother with additional documents for her signature transferring all Delilah Johnson's real estate and over one hundred thousand dollars in bonds to Ernest Johnson. On January 22, 1997, Delilah Johnson executed a document purporting to be her Last Will and Testament and naming Ernest as Executor. Delilah Johnson died on May 25, 1997. On June 26, 1997, the alleged will was presented and admitted to probate. Shortly thereafter, on May 29, 1998, appellee filed his complaint. The complaint set forth basically two main causes of action. The first claim contested the validity of the January 22, 1997 will on the grounds of undue influence and lack of testamentary capacity. The second claim alleged that Ernest Johnson had fraudulently induced Delilah Johnson to execute the 1996 documents and sought to have these inter vivos transfers set aside. Ernest Johnson, the appellant, filed a Motion to Bifurcate and to have separate trials on the will contest claim and on the inter vivos transfer claims. The motion to bifurcate was denied and both claims were tried jointly. A trial to a jury resulted in verdicts in favor of the appellee, i.e. that the document of January 22, 1997 was not the Last Will and Testament of Delilah Johnson, and that she had been fraudulently induced to execute the 1996 documents. The inter vivos transfers were canceled and the real estate was ordered reconveyed into the name of the Delilah Johnson Family Trust and personal property was ordered transferred to the name of the Delilah Johnson Family Trust. Our decision on the first Assignment of Error will determine to some extent the decision on the second Assignment of Error because if the court lacked jurisdiction then clearly both issues should not have been tried together. Ohio R.C. Section 2101.24 provides, in relevant part, that: "(A)(1) Except as otherwise provided by law, the probate court has exclusive jurisdiction: (a) to take the proof of wills . . . (k) to construe wills . . . (m) to direct and control the conduct of fiduciaries and settle their accounts . . . (p) to hear and determine actions to contest the validity of wills. "(B)(1)[t]he probate court has concurrent jurisdiction with, and the same powers at law and in equity as, the general division of the court of common pleas to issue writs and orders, and to hear and determine actions as follows: . . . (b) any action that involves an inter vivos trust . .. "(C) The probate court has plenary power at law and in equity to dispose fully of any matter that is properly before the court, unless the power is expressly otherwise limited or denied by a section of the Revised Code." The theory of appellant's first assignment of error is that the trial court lacked subject matter jurisdiction as to the fraud claim, but that claim confuses the distinction between the tort of fraud and other claims based on fraudulent conduct. Clearly the Probate Court would have no jurisdiction to hear a tort fraud claim and Gay Johnson would probably not have standing to raise a claim for a fraud perpetrated on another person, but Probate Court does have the power to deal with fraudulent conduct as it relates to estates. In Dumas v. Estate of Dumas (1994), 68 Ohio St.3d 405, the Ohio Supreme Court quoting Schucker v. Metcalf (1986), 22 Ohio St.3d 33, held, "that pursuant to R.C. 2101.24, the probate division has no jurisdiction over claims for money damages arising from allegations of fraud." ' In Dumas, the court found that, "Even though . . . she seeks an order . . . which order, if granted, may affect the . . . estate . . . her primary aim is still the recovery of monetary damages for the alleged fraud." In this case, however, the claim was not for monetary damages but rather for the return of substantial assets to the estate, and the Probate Court does have jurisdiction to recover assets wrongfully withheld from an estate even if they are withheld as a result of fraud. A case directly on point with this case is Spitzer v. Jackson (1994), 96 Ohio App.3d 313. There, Defendant Jackson, who had her aunt's power of attorney, was unable to account for some $170,000 in assets at the time of death. The Montgomery County Probate Court found she had fraudulently diverted the funds to her own use. On appeal, the sole assignment of error was that the Probate Court lacked jurisdiction. The Second District Court of Appeals held that a cause of action for damages for fraud is not within the jurisdiction of the Probate Court. But the court went on to find that, at p. 316 "Accordingly, the trial court was entitled to find, as it did that these assets, or the proceeds thereof, remained the property of the decedent at her death and were recoverable by the estate. Citation omitted. The case before us is a case of return of wrongfully withheld assets, not a damages for fraud case". The issue in this case is quite similar to Spitzer. The question is not whether Ernest Johnson is liable in fraud for damages but whether the documents and conveyances were fraudulently induced so as to render them invalid and to cause the property to remain as estate assets. We find the Vinton County Probate Court had jurisdiction to decide that question. Assignment of Error one is not well taken and is overruled. Our decision in Assignment of Error One essentially determines our decision in Assignment of Error Two. Appellant claims that the trial court erred by overruling defendants' Motion to Bifurcate because the first cause of action was a will contest and the second cause of action was a fraud claim. We have held that it was not. Under Ohio Rule of Civil Procedure 42 (B) the trial court has discretionary power to order separate trials, when, "after a hearing, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy may order a separate trial of any claim . . .". The trial court's decision to not grant the appellant's Motion to Bifurcate is discretionary and will not be disturbed unless there has been abuse of discretion, a party must show that the trial court's decision was arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As noted by the trial court in its decision on the motion, both issues would rely on virtually the same witnesses, the same depositions, and the same facts. The court also noted that both parties would benefit from one presentation of the evidence and neither party would be prejudiced by it. We note that appellant has not asserted how he might have been prejudiced by one trial in this case. The trial court's decision was not arbitrary, unreasonable or unconscionable and the appellant has shown no abuse of discretion. Therefore, the appellant's second assignment of error is not well taken and is overruled. The trial court's decision is affirmed. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellee recover of Appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Vinton County Court of Common Pleas, Probate Division, to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this Entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, P.J. and Abele, J.: Concur in Judgment and Opinion. For the Court BY: ___________________________ Lawrence Grey, Judge* NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes afinal judgment entry and the time period for further appealcommences from the date of filing with the clerk. * Lawrence Grey is a retired judge from the Fourth District Court of Appeals, sitting by assignment.

2016-07-06 06:41:41.885781+00

OPINION *Page 2 {¶ 1} Appellant, Janet Gratzmiller, appeals from a Jefferson County Common Pleas Court judgment ordering her to pay half of her son's college expenses. {¶ 2} Appellant and appellee, Dennis Gratzmiller, were married on May 1, 1982. They share two children, Gregory (d.o.b. 11/26/86) and Jeffery (d.o.b. 7/17/88). The parties' marriage was dissolved on September 26, 1995. Attached to their petition for dissolution was the parties' separation agreement. The separation agreement was incorporated into the trial court's decree of dissolution. Per the terms of the agreement, appellant was named as the residential parent of both children. However in 2003, the parties agreed that appellee would be Gregory's residential parent. The separation agreement also provided that the parties would share the cost of the children's college educations at a state university. {¶ 3} On July 11, 2006, appellee filed a motion requesting that the court order appellant to pay one half of Gregory's college expenses at Bethany College in West Virginia, or in the alternative, to pay an amount equal to the expenses that Gregory would have incurred at a state university. Appellee asserted that the parties' separation agreement required appellant to make such payments. {¶ 4} The court held a hearing on appellee's motion where it heard testimony from both parties. It then sustained appellee's motion and ordered appellant to pay one half of Gregory's college expenses incurred for room, board, tuition, books, and fees. The court ordered that appellant is to pay an amount equal to one half of that which an Ohio state college would charge, less the amount of any grants or financial aid Gregory receives, which he is not obligated to repay. However, the court stated, if the total costs for room, board, tuition, books, and fees at Bethany College are less than the similar charges at the lowest-priced Ohio state college, then appellant is to pay one half of the costs at Bethany. The court further stated that this ruling would also apply to the expenses Jeffery would incur when he enrolled in college. {¶ 5} Appellant filed a timely notice of appeal on October 24, 2006. {¶ 6} Appellant raises two assignments of error, the first of which states: {¶ 7} "THE TRIAL COURT ERRED WHEN IT MODIFIED THE *Page 3 SEPARATION AGREEMENT INSTEAD OF INTERPRETING IT. A SEPARATION AGREEMENT IS A CONTRACT AND ITS INTERPRETATION IS A MATTER OF LAW. THUS, IT IS SUBJECT TO THE SAME RULES OF CONSTRUCTION AS OTHER CONTRACTS. THE PRIMARY PRINCIPLE, WHICH COURTS MUST FOLLOW IS THAT THE CONTRACT MUST BE INTERPRETED SO AS TO CARRY OUT THE INTENT OF THE PARTIES. PURSUANT TO THIS RULE, IT HAS BEEN HELD THAT WHEN A TERM IN AN AGREEMENT IS UNAMBIGUOUS, THEN THE WORDS MUST BE GIVEN THEIR PLAIN, ORDINARY AND COMMON MEANING; HOWEVER, WHEN THE TERM IS NOT CLEAR, PAROLE (sic) EVIDENCE IS ADMISSIBLE TO EXPLAIN THE MEANING OF THE WORDS." {¶ 8} The parties' separation agreement includes the following provision: {¶ 9} "17.) That the Husband and Wife shall each be responsible for the payment of one-half (1/2) of the post-high school expenses for the education of the parties' minor children. Said expenses shall be limited to payment for room, board, tuition, books and fees and shall be for a period not to exceed four (4) years during which time, said minor children shall be enrolled as full-time students at a state institution." (Emphasis added.) {¶ 10} Appellant argues that per the unambiguous terms of the separation agreement, she is only required to pay for half of Gregory's college expenses if he enrolls in a state university. Bethany College is a private university. Appellant contends that the trial court was without authority to alter the terms of the separation agreement and require her to pay for college expenses at a private university. Appellant argues that when she and appellee entered into the separation agreement, they intended to limit their financial responsibility for their children's college education to payment for one half of expenses at a state institution. Appellant argues that the trial court impermissibly altered the terms of the parties' agreement by requiring her to contribute towards Gregory's expenses at a private school. {¶ 11} On review of a trial court's determination in domestic relations cases, appellate courts generally apply the abuse of discretion standard. Booth v. Booth *Page 4 (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. However, because judicial interpretation of contract language is a question of law, appellate courts apply a de novo standard when reviewing the language of a separation agreement. Plymale v. Wolford, 4th Dist. No. 05CA5,2005-Ohio-5224, at ¶ 7. {¶ 12} A separation agreement is a contract and is subject to the same rules of construction as other contracts. Polish v. Polish, 7th Dist. No. 99-CA-101, 2001-Ohio-3235. When a clause or term in a separation agreement is ambiguous, it is the trial court's responsibility to interpret it. In re Marriage of Seders (1987), 42 Ohio App.3d 155, 156,536 N.E.2d 1190. The trial court has broad discretion to clarify ambiguous language and may consider the intent of the parties and the equities involved. Musci v. Musci, 9th Dist. No. 23088, 2006-Ohio-5882, at ¶ 42. But when the terms of a separation agreement are clear and unambiguous, the words used must be given their plain and ordinary meaning and a court must give effect to the agreement's expressed terms.Wittstein v. Wittstein, 12th Dist. No. CA2006-03-013, 2006-Ohio-6707, at ¶ 8. "The intent of the parties to a contract is presumed to reside in the language they chose to employ in the agreement." Kelly v. MedicalLife Ins. Co. (1987), 31 Ohio St.3d 130, 509 N.E.2d 411, at paragraph one of the syllabus. {¶ 13} Appellant relies in part on the Eleventh District case ofForstner v. Forstner (1990), 68 Ohio App.3d 367, 588 N.E.2d 285. InForstner, the parties had entered into a separation agreement, which provided in part: {¶ 14} "`11. Defendant * * * shall pay the cost for a full four year college education for each of the minor children should they qualify for and desire to attend college. Defendant shall be obligated to provide such education for a period not to extend past the 30th birthday of each child.' (Emphasis added.)" Id. at 367. {¶ 15} The mother filed a motion for an order requiring the father to show cause as to why he should not be held in contempt for failing to pay all of the expenses the parties' oldest child had incurred attending college. {¶ 16} The court held a hearing on the motion where it was testified to that the parties' son had unilaterally decided to attend Cornell University and that the father *Page 5 disagreed with this choice, instead believing that the son should attend a public university. The evidence also demonstrated that the cost for attending Cornell for one year was approximately $19,000. The evidence further showed that during the son's first year at Cornell, the father gave him $10,000, although he was financially able to have given the son $19,000. The referee concluded, and the trial court agreed, that the provision in the separation agreement was silent concerning whether there was a limit upon the father's obligation to pay for college. The referee then recommended that the trial court apply a "reasonable standard" and only require the father to pay $10,000. The trial court agreed. {¶ 17} The mother appealed arguing that the term "college education" was not ambiguous, and therefore it was unnecessary for the trial court to interpret the provision to only require the father to pay a reasonable amount. The appellate court agreed. It found that the phrase "college education" was unambiguous. Id. at 372. However, it stated that the trial court was not required to define the term in a vacuum. Id. The court stated that the term's interpretation was also dependent upon its context, the surrounding separation agreement, and divorce decree. Id. {¶ 18} The court stated that because the matter was a contempt proceeding, the parties presented evidence as to ability to pay in order to make a comparison with the social and economic circumstances demonstrated in the original decree and separation agreement. Id. It noted that ability to pay was a non-issue because it was admitted that the father was a multimillionaire who could afford to pay the entire cost. Id. Additionally, it found that the social and financial circumstances existing at the time of the decree and evident in the decree indicated that attendance at a private college was well within the parties' contemplation at the time of the divorce. Id. Thus, the court stated that the burden was upon the father to specify any limitation in the interpretation of the phrase "college education." Id. The court then concluded: {¶ 19} "In the absence of any such express or implied limitation, we determine, as a matter of law, that the term `college education' is unambiguous as it *Page 6 is used in this particular divorce decree and separation agreement; and, as such, it should be read and interpreted in its broadest sense, subject only to the ability to pay. {¶ 20} "We find that, in effect, the referee and later the judge, modified rather than interpreted this particular child support provision. There was no jurisdiction to do so in a contempt action." Id. at 373. {¶ 21} The Eighth District also concluded that when parties to a separation agreement include language that one party is to pay for the child's college expenses, unless there is language limiting the type of college the party is required to pay for, that party must pay for the college expenses at either a public or private university. See Rand v.Rand (June 28, 1984), 8th Dist. No. 47712 ("In the instant case, the appellant specifically agreed to pay for his son's college education. No mention is made in the separation agreement as to whether that education must be at a public or private institution. In the absence of any language limiting the appellant's obligation to pay for his son's college education, we conclude that the appellant is required to pay for Jonathon's education at The University of Pennsylvania."), affirmed inRand v. Rand (1985), 18 Ohio St.3d 356, 481 N.E.2d 609. {¶ 22} And the Twelfth District has found that when a separation agreement includes a clause requiring a party to pay for a child's college expenses, the child is not limited to attending a school in Ohio absent such limiting language in the separation agreement. Leser v.Johnson (June 10, 1991), 12th Dist. No.CA90-06-038. {¶ 23} The Twelfth District has also held that separation agreements must be read literally and the court cannot add additional terms into the contract. Key v. Key (July 3, 2000), 12th Dist. No. CA99-08-020. InKey, the relevant clause in the separation agreement stated: "Husband shall provide the first two (2) years of Shannon's expenses incurred for attending a college or university; said expenses shall include — tuition, room and board, books, and institution charged fees. The child shall be enrolled as a full time student to receive the above funds and shall complete *Page 7 said two years within three years from the date of her high school graduation." The trial court ordered the father to reimburse payments made for textbooks charged while the daughter was enrolled as a part-time student. The appellate court reversed holding that according to the plain language of the separation agreement, the father was only responsible for his daughter's books when she was enrolled as a full-time student. Id. {¶ 24} In the case sub judice, the clause in the separation agreement dealing with the children's college expenses is unambiguous. Unlike the separation agreements in Forstner, Rand, and Leser, in this case the agreement clearly includes language stating the "children shall be enrolled as full-time students at a state institution." (Emphasis added.) Thus, the court should have simply applied the terms' ordinary meaning. The separation agreement plainly contemplated that the children would attend a state university. The trial court was not free to disregard this language. By doing so, the court altered the terms of the separation agreement. Accordingly, appellant's first assignment of error has merit. {¶ 25} Given the merit of appellant's first assignment of error, her second assignment of error is rendered moot. It states: {¶ 26} "THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT TO PAY `AN AMOUNT EQUAL TO ONE-HALF (1/2) THAT AMOUNT WHICH AN INSTITUTION OF THE STATE OF OHIO WOULD CHARGE, LESS THE AMOUNT OF ANY GRANT(S) OR OTHER FINANCIAL AID RECEIVED BY GREGORY E. GRATZMILLER WHICH HE IS NOT OBLIGATED TO REPAY OR, IN THE ALTERNATIVE, ORDERING APPELLANT TO PAY ONE-HALF (1/2) OF THE COST AT BETHANY COLLEGE IF THE TOTAL COST FOR ROOM, BOARD, TUITION, BOOKS AND FEES AT BETHANY COLLEGE ARE LESS THAN SIMILAR CHARGES AT THE LOWEST-PRICED STATE INSTITUTION IN OHIO." *Page 8 {¶ 27} Based on the merit of appellant's first assignment of error, the trial court's judgment is hereby reversed and hereby vacated. Waite, J., concurs. DeGenaro, P.J., concurs. *Page 1

2016-07-06 06:41:41.917791+00

OPINION Appellant, Clermont County Department of Human Services, Division of Child Support Enforcement, appeals a decision of the Clermont County Court of Common Pleas, Division of Domestic Relations. The domestic relations court dismissed a motion filed by appellant seeking an order directing appellee, Nancy McKinney, to pay child support. We affirm. Appellee and Gary McKinney were divorced by decree filed on February 28, 1986. Appellee was granted custody of the parties' four children: Cara, born on March 30, 1971, Deana, born on April 17, 1973, Nathan, born on December 4, 1977, and Eva, born on February 14, 1980. Gary McKinney was ordered to pay child support amounting to $20 per week plus poundage. On April 23, 1992, Gary McKinney filed a motion for modification of parental rights and responsibilities. Subsequently, appellee and Gary McKinney entered into a shared parenting agreement which was approved by the court on May 12, 1992. The agreement involved parental rights concerning Nathan. The agreement states: No child support order shall issue to either party as same would be inappropriate to the minor child and the parents, and would not be in the best interest of the minor child. [Appellee] is presently the physical custodian of a minor child [Eva] of the parties' not subject to this plan and each party shall be responsible for the support of the minor child residing with them. The report of the referee, dated on May 12, 1992, states: Parties agreed to shared plan. Terminate def-father's duty of support for Eva Dawn McKinney effective 3/15/1992. Terminate def-father's duty of support for Nathan effective 3/15/1992. Beginning on April 20, 1994, Gary McKinney began receiving Aid for Dependent Children ("ADC") benefits for Nathan. Appellant made a motion to intervene and establish child support for Nathan on August 18, 1994. Appellant claimed that appellee owed child support because Gary McKinney was receiving ADC benefits for Nathan. A referee held that appellant had no standing to request the establishment of child support and dismissed appellant's motion on November 21, 1994. Appellant filed a motion to intervene and establish child support for Nathan and Eva on December 1, 1994. Appellant claimed that Gary McKinney was receiving ADC benefits for Nathan and Eva, and that appellee should be ordered to pay child support. Appellant also asked the court to designate Gary McKinney as residential parent of Nathan. Appellee argued that appellant had no standing to intervene. A referee's report filed on January 20, 1995 reads as follows: Motion is to intervene filed 12/1/94. Motion also asked that child support be established. [Gary McKinney] is on ADC. His right of child support assigned to the state. [Appellee] has custody of one child. Based on parties shared parenting plan, [Gary McKinney] designated as residential parent of other child. Current order is zero. Based on the attached worksheet, recommend child support of $332.00 monthly; $153.23 per pay period, $76.62 a week effective 2/3/95 through plus poundage by wage assignment. Appellee filed objections to the report of the referee on February 2, 1995. The domestic relations court issued a decision on the objections on April 7, 1995. The court sustained appellee's objection to appellant's motion to intervene, and held that appellant was not a party in the action. The court stated that the motion concerned Nathan only and made the following ruling: [t]he grounds set forth by [appellant] for intervention are Section 3113.215 of the Revised Code (Calculation of amount of child support obligation), the fact that [Gary McKinney] is receiving ADC and that [Gary McKinney] has assigned his rights to any support to [the Clermont County Department of Human Services]. These grounds do not convince the Court that [appellant] has a right to intervene or should be allowed to intervene by leave of Court. [Appellant] has failed to prove grounds for intervention by right or by leave of Court under Civil Rule 24. Additionally, [appellant] has failed to meet the procedural requirements of Civil Rule 24(C) wherefore [appellee's] first objection is sustained and motion to intervene is dismissed. On May 3, 1996, appellant filed a motion to order appellee to pay child support for Eva. Appellant argued that Gary McKinney began receiving public assistance for Eva effective April 1, 1996, and that Eva was residing with Gary McKinney. Appellant argued that even though appellee was considered the residential parent, because Eva was living with Gary McKinney, who was receiving ADC benefits, the court should compel appellee to pay child support. Appellee filed a motion to dismiss appellant's motion to establish child support on August 23, 1996 arguing that appellant had failed to file a motion to intervene under Civ.R. 24. Appellee also argued that the motion should be dismissed because of res judicata, claiming that the issue of intervention had already been decided by the court. Appellant argued that it did not have to file a motion to intervene because Gary McKinney had assigned his rights to appellant through accepting ADC and R.C.5107.07(A). Appellant also argued that res judicata did not apply because the motion was for a prospective award of child support. A magistrate denied appellee's motion to dismiss on September 23, 1996. The magistrate denied the motion to establish child support for Eva on November 15, 1996, holding that "[appellant] has given the Court no good reason to order child support in this case. * * * [T]he Court is not willing to grant [appellant's] Motion to Establish Support for the reason that Gary McKinney is not the residential parent." Appellant objected to the magistrate's decision on November 26, 1996. The trial court overruled appellant's objection on December 20, 1996. The court held that the assignment of Gary McKinney's rights pursuant to R.C. 5107.07(A) was made to the Clermont County Department of Human Services, and not to appellant.1 The court also found that appellant had failed to establish that Gary McKinney, as the nonresidential parent, has a right to child support from appellee. The trial court found that Gary McKinney "has had in excess of one year to file a motion to modify the residential parent designation." Appellant presents one assignment of error, and argues that the trial court erred in refusing to order appellee to pay child support for Eva. Appellant argues that (1) it has standing to seek an order for appellee to pay child support, and (2) a financially able parent who has legal custody of a child should be ordered to contribute to the support of the child when the child is residing with the other parent who is receiving public assistance on the child's behalf. We will address the second argument, wherein appellant essentially contends that the trial court should have created a child support order directing appellee to pay child support based solely on the fact that Gary McKinney is receiving ADC benefits. We do not agree. The purpose of the child support system in Ohio is to protect the child and his or her best interests. Richardson v. Ballard (Aug. 19, 1996), Butler App. No. CA95-02-032, unreported, at 4. The Ohio Legislature has given courts many responsibilities involving the interests of children. In domestic relations matters, courts are empowered to allocate parental rights and responsibilities in proceedings pertaining to the minor children of a marriage. R.C. 3109.04(A). When determining whether there should be a modification of a prior order allocating the parental rights and responsibilities for the care of children, the court must consider the best interest of the children. R.C.3109.04(B)(1). We unequivocally emphasize at this time that an order of child support, and the allocation of the amount of child support, is fully within the jurisdiction of the court, and is not a determination to be made by appellant. We find no statutory or case law that permits appellant to request that the court create a new child support order simply for the reason that "because someone is being paid ADC, someone else should have to pay child support." If Gary McKinney desires to be paid child support and/or change his parental rights and responsibilities, he must comply with the requirements of R.C. 3109.04(E). We do recognize that recipients of ADC benefits assign to a department of human services the right to child support to which they may be entitled as a condition for receiving benefits pursuant to R.C. 5107.07(A). But a department of human services (and therefore appellant as a division of a department of human services) only has authority to commence an action on behalf of the state to obtain support actually paid by a department of human services. Lamier v. Lamier (1995), 105 Ohio App.3d 797,801. We also recognize that appellant may bring an action to obtain a judgment for unpaid child support. R.C. 3113.210. However, in the present case appellant is not seeking to accomplish either of the above legitimate actions. Accordingly, we overrule appellant's assignment of error.2 The domestic relations court properly concluded that appellant failed to establish that Gary McKinney, as a nonresidential parent, has a "right" to support from appellee simply because he received ADC. Judgment affirmed. KOEHLER and WALSH, JJ., concur. 1 Appellant is a division of the Clermont County Department of Human Services. 2 Although we do not reach the issue, we question whether appellant has standing to file a complaint to establish child support outside the provisions of R.C. 3111.20. See Starr v. Starr (1996), 109 Ohio App.3d 116, 120.

2016-07-06 06:41:42.131671+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, the State of Ohio, appeals the judgment of the Lorain County Court of Common Pleas granting Appellee, Jack Hetrick's, motion to suppress. This Court affirms. I. {¶ 2} This appeal arises out of joint motions to suppress filed by Appellee, Jack Hetrick ("Hetrick"), and his co-defendant, Ralph Metz ("Metz"). The following is a summary of the facts surrounding the arrests which gave rise to the motions to suppress. Two North Ridgeville Police Officers testified to these facts at the hearing on the motions to suppress. *Page 2 {¶ 3} On January 3, 2007, the North Ridgeville Police Department received a phone call from a young woman who, in reliance on information provided to her by her younger sister, stated that she believed that drugs may have been used inside a trailer in Pine Ridge Trailer Park. The police dispatcher communicated the tip to Officer Vince Abt and Lieutenant Mike Freeman. The officers neither attempted to verify this tip by speaking with the caller or her sister nor attempted to obtain a search warrant. {¶ 4} In the early evening hours of January 3, 2007, Lt. Freeman and Officer Abt drove to the Pine Ridge Trailer Park to investigate the tip. The officers parked a few trailers away from the trailer at issue. As the officers walked toward the trailer, they noticed Hetrick sitting outside smoking a cigarette. Lt. Freeman testified that he did not notify Hetrick about the nature of the complaint or even that the police had received a call concerning activity at the residence. Officer Abt testified that he and Lt. Freeman advised Hetrick that they were there to investigate a complaint. Lt. Freeman testified that the officers informed Hetrick that they wanted "to step inside and discuss a matter" with him.1 Hetrick said "`sure'" and opened the door for the officers and the officers followed him inside. {¶ 5} Lt. Freeman testified that the officers decided to speak to Hetrick inside the trailer rather than outside the trailer because he was concerned that he *Page 3 might embarrass Hetrick in front of his neighbors who lived within eight feet or so of Hetrick's trailer. In contrast, Officer Abt testified that he wanted to go inside to speak with Hetrick because "[i]t was January 3rd and it was very cold." {¶ 6} When the officers entered the trailer, they encountered Metz, who quickly walked from the living room towards the kitchen. The officers immediately detained Metz, preventing him from entering the kitchen. Metz was ordered to sit down. Lt. Freeman then asked Hetrick and Metz if anyone else was present in the trailer. One of the men responded that Dawn Musat, aka Wagner ("Musat"), was in the bathroom, a few steps from where the officers were standing. Lt. Freeman then approached the bathroom door, which was closed. Lt. Freeman knocked on the door. Lt. Freeman testified that he did not identify himself as a police officer when he knocked on the door. Musat opened the door and exited the bathroom. Lt. Freeman looked inside the bathroom and noticed a white powder on or near the sink, Chore Boy and a folding pocket knife. Because he believed the powder to be crack cocaine, he escorted Musat to the living room and placed her on the floor. All three individuals were then arrested. {¶ 7} Lt. Freeman testified that he did not see anything in plain view when he first entered the trailer. The officers testified that they also recovered a glass smoking pipe, a metal push rod and an Altoids tin containing a white substance. The officers later confirmed that the substance in the Altoids tin was crack cocaine. *Page 4 {¶ 8} Lt. Freeman testified that Hetrick was "very cooperative" during their interaction and that he did not do anything to make Lt. Freeman fear for his safety. Lt. Freeman stated that he was not aware of any prior complaints of drug use at this trailer and that there had been no prior arrests at this trailer. {¶ 9} On March 1, 2007, Hetrick was indicted on one count of possession of a controlled substance, in violation of R.C. 2925.11(A), a felony of the fifth degree, and one count of possession of drug paraphernalia, in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree. Hetrick and Metz filed joint motions to suppress on May 21, 2007. Hetrick argued that the motions to suppress should be granted for two reasons. First, police officials had no search warrant or any exigent circumstances necessary to enter the residence without a valid search warrant. Second, any statements Hetrick made were involuntary or the product of coercion or duress by the investigating officer. {¶ 10} On July 2, 2007, the trial court held a hearing on the motions to suppress. At the end of the hearing, the trial court ordered both parties to submit findings of fact and conclusions of law. On August 10, 2007, the trial court granted Hetrick's motion to suppress. The State has appealed the trial court's ruling, raising one assignment of error for our review. II. ASSIGNMENT OF ERROR *Page 5 "THE TRIAL COURT ERRED IN GRANTING THE MOTION TO SUPPRESS." {¶ 11} In its sole assignment of error, the State contends that the trial court erred in granting Hetrick's motion to suppress. We disagree. {¶ 12} An appellate court's review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. State v.Long (1998), 127 Ohio App.3d 328, 332. The trial court acts as the trier of fact during a suppression hearing, and is therefore best equipped to evaluate the credibility of witnesses and resolve questions of fact.State v. Hopfer (1996), 112 Ohio App.3d 521, 548, quoting State v.Venham (1994), 96 Ohio App.3d 649, 653. Accordingly, this Court accepts the trial court's findings of fact so long as they are supported by competent, credible evidence. State v. Guysinger (1993),86 Ohio App.3d 592, 594. "The trial court's legal conclusions, however, are afforded no deference, but are reviewed de novo." State v. Russell (1998),127 Ohio App.3d 414, 416. {¶ 13} In its decision granting Hetrick's motion to suppress, the trial court explained that while officers were given consent to enter Hetrick's trailer, the officers exceeded the scope of this consent because "consent to enter and talk or answer some questions is not the same as a general consent to search the entire house." The trial court found that in this case, consent was given only to enter the home and ask questions. According to the trial court, this consent did not transform into a right to roam around the premises checking on the occupants or *Page 6 conducting a search. The trial court held that the officers violated theFourth Amendment right against unreasonable searches and seizures. {¶ 14} After a review of the record, we find that the trial court's factual determinations are supported by competent, credible evidence. The transcript of the suppression hearing supports the trial court's findings of fact. The trial court found that consent to enter was given. The record reflects that both officers testified that they asked Hetrick if they could enter the trailer to talk with him. Hetrick agreed. The trial court further found that there was no testimony that Hetrick consented to any type of search of the premises. The record also supports this finding as neither officer testified that he obtained consent to search the premises. Lastly, the trial court determined that there was no testimony at the hearing that the officers' entrance into the trailer was necessary to protect or preserve life or avoid serious injury and that, therefore, there were no exceptions to the warrant requirement. The testimony at the hearing also supports this finding. Lt. Freeman testified that he did not see any objects in Metz' hands and that neither Hetrick nor Metz made any furtive movements that would indicate any unlawful activity. Accordingly, we turn to the trial court's legal conclusions to conduct a de novo review. SeeRussell, 127 Ohio App.3d at 416. {¶ 15} The State contends that the trial court erred when it determined that the Fourth Amendment applied to this matter and suppressed evidence on the basis of a Fourth Amendment violation. It asserts that the Fourth Amendment was *Page 7 inapplicable to the analysis of the reasonableness of the search because the contact between Hetrick and "law enforcement constituted nothing more than a consensual encounter even though it occurred in [Hetrick's] residence." {¶ 16} Hetrick is correct in asserting that the State has waived this argument. A review of the trial court record, including the findings of fact and conclusions of law submitted by the State, reflects that the State failed to raise this argument in the trial court. See Sherlock v.Myers, 9th Dist. No. 22071, 2004-Ohio-5178, at fn. 4 (explaining that a party who fails to raise an issue at the trial court level is deemed to have waived the issue at the appellate level), citing State v. Awan (1986), 22 Ohio St.3d 120, 123. Accordingly, the State has waived this argument for appeal. {¶ 17} The State next asserts that even if the interaction between the officers and Hetrick is not deemed a consensual encounter, the trial court still erred in granting the motion to suppress. The State contends that the officers did not exceed the scope of their consent when searching Hetrick's trailer because Hetrick did not limit his consent. The State points out that officers do not need a warrant, probable cause or even a reasonable, articulable suspicion to conduct a search when a suspect voluntarily consents to the search. {¶ 18} The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. See Maryland v. Buie (1990),494 U.S. 325, 331. Section 14, *Page 8 Article I of the Ohio Constitution has nearly identical language to theFourth Amendment and similarly prohibits unreasonable searches and seizures. State v. Kinney (1998), 83 Ohio St.3d 85, 87. {¶ 19} For a search or seizure to be reasonable under theFourth Amendment, it must be based upon probable cause and executed pursuant to a warrant, unless an exception to the warrant requirement applies.Katz v. United States (1967), 389 U.S. 347, 357; State v. Brown (1992),63 Ohio St.3d 349, 350 (overruled on other grounds). Probable cause has been defined as "a reasonable ground for belief of guilt." (Quotations and citations omitted.) State v. Moore (2000), 90 Ohio St.3d 47, 49. "Probable cause must be based upon objective facts that would justify the issuance of a warrant by a magistrate." Id., citing State v.Welch (1985), 18 Ohio St.3d 88, 92. {¶ 20} "In the absence of a warrant or consent, the entrance of a police officer into a private home is presumptively unreasonable." (Quotations and citations omitted.) Akron v. Price (1999),134 Ohio App.3d 464, 467. If the State failed to obtain a search warrant, it bears the burden of demonstrating that the warrantless search falls within one of the established exceptions. State v. Kessler (1978),53 Ohio St.2d 204, 207, citing State v. Call (1965), 8 Ohio App.2d 277,288. If the search or seizure is deemed unreasonable, the evidence seized must be suppressed. Mapp v. Ohio (1961), 367 U.S. 643, 657. *Page 9 {¶ 21} The Ohio Supreme Court has explicitly recognized seven exceptions to the warrant requirement for a reasonable search. Those exceptions are: "(a) [a] search incident to a lawful arrest; (b) consent signifying waiver of constitutional rights; (c) the stop-and-frisk doctrine; (d) hot pursuit; (e) probable cause to search, and the presence of exigent circumstances; * * * (f) the plain view doctrine[;] or (g) an administrative search[.]" (Quotations and citations omitted.) Price, 134 Ohio App.3d at 467. {¶ 22} The officers entered Hetrick's home without a warrant. It is not represented or argued that the entrance was for the purpose of making an arrest, but it is unquestioned that the officers did not have probable cause for making an arrest at the time of entering Hetrick's residence. See Lakewood v. Smith (1965), 1 Ohio St.2d 128. The entrance was justified only by Hetrick's consent to the officers to enter into the trailer to talk with him about an issue. While the officers provided conflicting reasons for wanting to enter Hetrick's home to talk with him, they both clearly stated that they asked for his permission to enter his home solely to speak with him. {¶ 23} Under Ohio law, "the state must show by `clear and positive' evidence that the consent was `freely and voluntarily' given based on the totality of the circumstances." State v. Cooper, 9th Dist. No. 21494, 2003-Ohio-5161, at ¶ 12, quoting State v. Posey (1988),40 Ohio St.3d 420, 427. "Clear and positive" evidence is equivalent to clear and convincing evidence. Cooper, supra, at ¶ 12, citing State v.Danby (1983), 11 Ohio App.3d 38, 41. Consent to enter premises does not also extend to consent to search the premises. Lakewood, *Page 10 1 Ohio St.2d at 131; Gahanna v. Duty (Nov. 12, 1999), 10th Dist. No. 98AP-1528, at *2. The Ohio Supreme Court has held that "[a] person who admits a police officer to his premises in compliance with the officer's request for an interview does not thereby waive his constitutional immunity from unreasonable searches, nor does he thereby consent to a search of the premises." Lakewood, 1 Ohio St.2d at paragraph one of the syllabus. {¶ 24} The scope of the consent Hetrick provided the officers was established by the officers' statements to Hetrick that they sought his permission to enter his home to ask him some questions. The officers exceeded the consent given by Hetrick when Lt. Freeman walked to the bathroom to check on the occupant and thereafter conducted a search. Id. The State has failed to establish by clear and positive evidence that Hetrick gave consent for the officers to search the premises.Cooper, supra, at ¶ 12, quoting Posey, 40 Ohio St.3d at 427. {¶ 25} The State has not established or even asserted on appeal that the search was valid under another exception to the warrant requirement. Hetrick concedes that, if the officers had observed evidence of contraband in plain view upon entering the premises by consent, that evidence would be admissible under the plain view exception to warrantless search and seizure. However, there is no dispute that the officers saw no contraband in plain view. Further, there is no evidence of exigent circumstances that would necessitate the officers' warrantless search of the premises and seizure of contraband. *Page 11 {¶ 26} Accordingly, we find that the officers' failure to obtain a warrant to search Hetrick's premises and failure to adhere to the limitations of the consent provided by Hetrick invalidated their search and seizure. Accordingly, we find that the trial court properly granted Hetrick's motion to suppress the evidence obtained from Hetrick's trailer. {¶ 27} The State's sole assignment of error is overruled. III. {¶ 28} The State's sole assignment of error is overruled. The judgment of the Lorain 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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). *Page 12 The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. WHITMORE, J. CONCURS 1 At some point during the officers' conversation with Hetrick outside the trailer, the officers confirmed that Hetrick resided at the trailer.

2016-07-06 06:41:42.86796+00

{¶ 49} While I concur with Part II of the majority opinion regarding the default judgment, I respectfully dissent with Part III, regarding the dismissal judgment, because the complaint sets forth facts, which if proven true, entitle Smith to recovery. For a trial court to dismiss a case pursuant to Civ.R. 12(B)(6), "it must appear beyond doubt from thecomplaint that the plaintiff can prove no set of facts entitling him to recovery." (Emphasis added.) O'Brien, supra at paragraph two of the syllabus. When faced with a Civ.R. 12(B)(6) motion, the trial court must presume that all factual allegations in the complaint are true and consider all reasonable inferences in favor of the nonmoving party. Id. at 245. {¶ 50} The trial court found that the statute of limitations had already expired at the time Smith filed the complaint and dismissed the case. Appellees provided two bases for this finding: (1) the statute of limitations began to run when Smith had knowledge of the wrongdoer's identity and (2) the complaint contains language proving that Smith had knowledge of the conversion in 1991 or 1992. The first basis is simply an illogical argument. If Smith was not aware of the conversion of his personal property, it simply does not matter that he knew the names of the wrongdoers prior to his discovery of the conversion. Without knowledge of the conversion, Smith did not have knowledge of a cause of action and, therefore, could not file suit. Moreover, the Ohio Supreme Court has ruled that, pursuant to R.C. 2305.09(B), the statute of limitations tolls until the plaintiff has either actual or constructive knowledge of thewrongdoing. Hambleton, supra, at 181. If Smith proves that he had neither actual nor constructive knowledge until 2000, his suit is timely. Whether and when Smith had actual or constructive knowledge of the conversion is a question of fact, the existence of which makes dismissal under Civ.R 12(B)(6) improper. {¶ 51} With respect to the second basis, Smith's complaint does contain language that can be interpreted to contradict his claim that he filed within the statute of limitations period. However, the complaint also explicitly states: "over 8 years later plaintiff was transferred back to the Southern Ohio Correctional Facility (S.O.C.F) * * *. Plaintiff came into contact with ASBELL's natural brother PATRICK SKAGGS * * *. Patrick Skaggs then informed plaintiff that Asbell and Myrtle Skaggs (his mother) had recently visited him * * * and that they informed him that Defendants had liquidated, sold off, destroyed, and gave away all of plaintiff's said property. Plaintiff only became aware of this as of June 2000." Attached to the complaint is an affidavit signed by Patrick Skaggs attesting to the same. {¶ 52} The complaint expressly states that Smith only became aware of the conversion in June 2000. Only one sentence in the complaint even tends to contradict these averments, thus making the trial court's judgment erroneous. The complaint contains two express averments that Smith was not aware of the conversion until June 2000 and one signed affidavit from a witness attesting to the same. {¶ 53} The trial court was obligated to construe all reasonable inferences in favor of Smith. The reasonable inference from the one sentence tending to contradict the statute of limitations claim is that it was the result of poor drafting and Smith intended it to merely claim that Asbell converted his property despite his instructions to her. Given the entire tenor of the complaint, along with the explicit averments regarding the statute of limitations, it is unreasonable to infer that one sentence negates Smith's express averments to the contrary. {¶ 54} Moreover, Robin and Phillip's motion included evidence outside the complaint. The trial court was obligated to either convert the motion into a motion for summary judgment or deny it for containing such evidence. Because the trial court failed to do either, its judgment is erroneous and should be reversed. I do not find this error harmless because it is impossible to determine from the trial court's judgment entry what evidence and information it used to arrive at its opinion and the evidence attached to the motion was extraordinarily pertinent to whether the statute of limitations had expired. In fact, without the outside evidence, the trial court could not reasonably conclude that the statute had tolled. {¶ 55} For the foregoing reasons, I respectfully dissent. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that costs herein be taxed to the appellant. The Court finds that there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this Entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, P.J.: Concurs in Judgment and Opinion. Harsha, J.: Concurs in Judgment Only. Kline, J.: Dissents with Dissenting Opinion.

2016-07-06 06:41:42.929161+00

JOURNAL ENTRY AND OPINION *Page 3 {¶ 1} Defendant-appellant, Richard Plachko, was convicted after a jury trial of one count of burglary, in violation of R.C. 2911.12(A)(1). Plachko contends that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Finding no merit to his appeal, we affirm. I. Trial Testimony {¶ 2} At trial, Robert Krupka testified that he looked out the window of his home at approximately 2:00 a.m. on September 12, 2008 and saw a red car slowly circling the cul-de-sac of his street. He observed a male park the car in front of his house, exit the vehicle, and enter the open garage of his neighbor, Dean Taylor, who lived across the street. Once inside the garage, the male flicked on a lighter and began rummaging around in the garage, looking through the shelves and into a car parked in the garage. {¶ 3} Krupka called the Olmsted Falls police and told them what he had observed. He continued watching the male who, after about five minutes, walked back to his car, got in it, and drove away. {¶ 4} Olmsted Falls police sergeant Floyd Takacs was dispatched to the scene immediately after Krupka's call. As he turned onto the cul-de-sac, he saw the red car turning the corner, so he stopped it. Plachko was driving the car and *Page 4 no one else was in the car with him. Takacs testified that he searched Plachko after he arrested him but did not find any cigarettes on Plachko's person. {¶ 5} Olmsted Falls police officer Daniel Daughtery, who also responded to the scene, interviewed Krupka, who identified Plachko at the scene as the male he had observed in Taylor's garage. Krupka also identified Plachko in court as the male he had seen that morning in Taylor's garage. {¶ 6} Dean Taylor testified that he was awakened at approximately 2:30 a.m. that morning by the police, who were knocking on his door. When he went into his garage, he noticed that the tools, snowboards, and boots on the garage shelves had been disturbed. Some of the bicycles in the garage were tipped over, as if someone had leaned into them or bumped them. His wife's car door was also ajar. Nothing was missing from the garage, however. According to Taylor, it appeared that someone had entered his garage, "messed around with a lot of stuff and left." {¶ 7} Taylor testified that his garage is attached to the house. That night, he had gone to bed around midnight and forgotten to shut the garage door. Taylor testified that he had never seen Plachko before and had not given him permission to enter his garage. Taylor testified further that he, his wife, and children were sleeping while Plachko was in their garage. {¶ 8} The trial court subsequently denied Plachko's Crim. R. 29 motion for acquittal. The jury found him guilty of burglary, and the trial court sentenced *Page 5 him to 12 months of community control sanctions. Plachko now challenges the sufficiency and manifest weight of the evidence to support his conviction. II. Sufficiency and Manifest Weight of the Evidence {¶ 9} An appellate court's function in reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. {¶ 10} While the test for sufficiency requires a determination of whether the prosecution has met its burden of production at trial, a manifest weight challenge questions whether the prosecution has met its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 390,1997-Ohio-52. When considering a manifest weight claim, a reviewing court must examine the entire record, weigh the evidence, and consider the credibility of witnesses. State v. Thomas (1982), 70 Ohio St.2d 79,80. The court may reverse the judgment of conviction if it appears that the factfinder "`clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" Thompkins at 387, quoting State v. Martin (1983),20 Ohio App.3d 172, *Page 6 175. A judgment should be reversed as against the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." Thompkins at 387. A finding that a conviction was supported by the manifest weight of the evidence necessarily includes a finding of sufficiency. Id. at 388. {¶ 11} The offense of burglary, as charged in this case, required proof that Plachko, by force, stealth, or deception, and with the intent to commit any criminal offense, trespassed in (i.e., entered without privilege to do so) an occupied structure or a separately secured or separately occupied portion of an occupied structure when another person (who was not Plachko's accomplice) was present. R.C. 2911.12(A)(1). Plachko's conviction was supported by the manifest weight of the evidence on each element. {¶ 12} An attached garage is a separately secured or separately occupied portion of an occupied structure for purposes of the burglary statute. See, e.g., State v. Biddlecom (Apr. 6, 2000), 8th Dist. No. 76087; State v. Wells (Jan. 19, 1994), 2nd Dist. No. 92-CA-122; 7 State v. Ward (1993),85 Ohio App.3d 537, 540. Plachko entered the open garage under the cover of darkness, which this court has determined to be a sufficient circumstance to demonstrate the element of stealth. Biddlecom, supra, and cases cited therein. Moreover, the evidence demonstrated that Plachko was trespassing, as he did not have permission to enter Taylor's garage, despite the fact that it was open. *Page 7 {¶ 13} Plachko contends, however, that even if the other elements of burglary were proven, the State failed to prove that he had any purpose to commit a criminal offense in Taylor's garage. He contends that although his actions might have been bizarre, they were "consistent with having some strange sense of curiosity as to what was inside the garage" and did not demonstrate that he intended to commit a theft offense inside the garage. {¶ 14} Intent cannot normally, if ever, be demonstrated by direct testimony. State v. Huffman (1936), 131 Ohio St. 27, paragraph four of the syllabus. Because intent exists in a person's mind, it must be determined from the surrounding facts and circumstances. Id., State v.Smith, 8th Dist. No. 84292, ¶ 20, 2004-Ohio-6111. {¶ 15} In the absence of evidence giving rise to a different inference, there is a reasonable inference that one who forcibly enters a dwelling does so with the intent to commit a theft offense. State v.Miller, 8th Dist. No. 79975, 2002-Ohio-1416, citingState v. Flowers (1984), 16 Ohio App.3d 313, 315. Likewise, in this case, we find it reasonable to infer that Plachko's stealth entry into the garage and subsequent actions indicated his intent to commit a theft offense while inside the garage. The evidence demonstrated that he entered the garage under cover of darkness, searched through the garage shelves and the car for at least five minutes, and illuminated his search with only a lighter. We note no evidence of any contrary inference. Further, a jury is not required to accept a *Page 8 competing inference of innocence if it may infer guilt beyond a reasonable doubt from the same circumstances. Jenks, supra. {¶ 16} After reviewing the record, weighing the evidence, and considering the credibility of the witnesses, we find that Plachko's conviction was supported by the manifest weight of the evidence. His first and second assignments of error are therefore overruled. 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. 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. COLLEEN CONWAY COONEY, A.J., and SEAN C. GALLAGHER, J., CONCUR *Page 1

2016-07-06 06:41:43.712213+00

OPINION {¶ 1} Defendant-appellant, Rodney Harris, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of criminal nonsupport, a violation of R.C. 2919.21. {¶ 2} On December 5, 2003, a Franklin County Grand Jury indicted appellant on two counts of criminal non-support of his dependant daughter. Both counts of the indictment specified that appellant failed to provide support for a total accumulated period of 26 weeks out of 104 consecutive weeks, elevating the charges from first-degree misdemeanors to felonies of the fifth degree. R.C. 2919.21(G)(1). Count 1 of the indictment concerned the two-year period from November 17, 1999 to November 17, 2001, while count two spanned the next two-year period from November 18, 2001 to November 18, 2003. {¶ 3} The case was scheduled for trial on November 4, 2005. Appellant waived his right to a jury trial and agreed to have the case submitted to the court. Prior to opening statements, the prosecution dismissed Count 1 of the indictment, choosing to proceed on count two. Accordingly, arguments and evidence submitted at trial involved only the two-year period ranging from November 18, 2001 to November 18, 2003. Following the bench trial, the court found appellant guilty of non-support and sentenced him to three years of community control. The judgment entry was filed on November 7, 2005. {¶ 4} Appellant appeals, raising a single assignment of error: Appellant's conviction for nonsupport of dependents was contrary to the manifest weight of the evidence because Appellant had established the affirmative defense of inability to pay. Thus, appellant challenges the court's judgment as against the manifest weight of the evidence. {¶ 5} When reviewing appellant's manifest weight argument, this court sits as a "thirteenth juror" to determine whether the greater amount of credible evidence supports the outcome in the trial court below. State v. Thompkins (1997),78 Ohio St.3d 380, 387. We must review the testimony presented in the trial court, evaluate and weigh the evidence, consider the credibility of the witnesses, and resolve any evidentiary conflict. Id. Ultimately, we must determine whether the fact-finder "lost its way and created such a manifest miscarriage of justice that the conviction must be reversed[.]" Id. {¶ 6} Appellant was indicted for nonsupport, in violation of R.C. 2919.21(B). Pursuant to R.C. 2929.21(B): No person shall abandon, or fail to provide support as established by a court order to, another person whom, by court order or decree, the person is legally obligated to support. As mentioned above, appellant was charged with a fifth-degree felony for failure to provide support for an accumulated period of 26 weeks out of a consecutive 104 weeks, or two years. R.C.2919.21(G)(1). {¶ 7} Appellant does not dispute that he made only a single $1,000 payment during the period of the indictment. Instead, he submits that the manifest weight of the evidence demonstrates that he established an affirmative defense to the offense. Pursuant to R.C. 2919.21(D): It is an affirmative defense to * * * a charge of failure to provide support established by a court order under division (B) of this section that the accused was unable to provide * * * the established support but did provide the support that was within the accused's ability and means. In asserting this affirmative defense, appellant bears the burden of proving by a preponderance of the evidence that: (1) he was unable to provide the court-ordered support; and (2) he did provide such support as was within his ability and means. Statev. Brown (1982), 5 Ohio App.3d 220, 222. Both elements must be met in order to successfully assert the affirmative defense of inability to pay. {¶ 8} Appellant's ex-wife, Shonia Stokes, appeared as the prosecution's only witness. Ms. Stokes stated that she and appellant had one child together during their marriage. The couple's daughter was born on July 18, 1990. About four years later, Ms. Stokes and appellant were divorced. As part of the judgment entry granting the divorce, the Franklin County Court of Common Pleas, Division of Domestic Relations, ordered appellant to pay Ms. Stokes approximately $350 per month in child support through the Franklin County Child Support Enforcement Agency ("FCCSEA"). {¶ 9} Ms. Stokes testified that she received regular child support payments from appellant for some time directly after the divorce. However, she stated that during the period of the indictment — November 18, 2001 to November 18, 2003 — appellant was not consistent in making the child support payments. At the end of Ms. Stokes' testimony, the state entered several documents into evidence, including a record of appellant's payments from FCCSEA. {¶ 10} Appellant then took the stand on his own behalf. He testified that he graduated from high school in 1983. After graduating, he enlisted in the Navy, where he was trained in the telecommunications field. After six years in the Navy, he re-entered civilian life and obtained further telecommunications training through a vocational program. Appellant stated that telecommunications is the only career for which he is trained. {¶ 11} At the time of the divorce, appellant worked servicing and installing voice and date equipment for a telecommunications company in Columbus. However, sometime in the mid-to-late '90s, appellant was laid-off in a downsizing. After some searching, appellant found jobs with other telecommunications companies, eventually obtaining a job with Radio Shack. Appellant held his job as a project manager with Radio Shack for three to four years. In 2001, appellant was again laid-off when his group was phased out during a merger. {¶ 12} After he lost his job with Radio Shack, appellant attempted to find more work in the telecommunications field. Unable to find a job, appellant received unemployment compensation. During this time period, appellant was going through a second divorce and was moving around quite a bit. He testified that he "was basically homeless at the time." However, he also testified that he lived with his father during this time. {¶ 13} Appellant testified that he continued his job search by signing up with the "Job and Welfare Department," which he visited weekly to inquire about job opportunities in his field. He also submitted applications with federal, state and county offices, Coca-Cola, the airport, post office and telecommunications companies around Columbus. Appellant stated that he searched for jobs on the internet during the day and knocked on doors. {¶ 14} As time went on, appellant indicated that he broadened his job search to positions outside of telecommunications. However, he did not pursue jobs in the fast food, lawn care, or retail industries. Appellant stated that he had no background or training in those industries and did not believe he would be hired. Moreover, appellant did not think he could satisfy his support obligations working for a fast food restaurant. Appellant's only employment during this time was through temporary assignments such as a short stint with a security company. Despite his inability to get a job, appellant testified that he was a healthy, able-bodied man, uninhibited from physical labor or hard work. {¶ 15} In early 2002, appellant's father passed away. Appellant received approximately $17,514 as a beneficiary of his father's IRA.1 In December 2002, appellant made a $1,000 child support payment to FCCSEA. This was the only payment appellant made during the period of the indictment. Although appellant could have sought a modification of his child support obligation at any time during this period, he did not do so until May 2004. Soon thereafter, appellant moved to Georgia to seek employment. {¶ 16} Given the above testimony, we cannot say that the trial court lost its way in convicting appellant. The prosecution presented evidence that appellant recklessly failed to provide support, as ordered within the valid divorce decree, for at least 26 weeks of a consecutive period of 104 weeks. Appellant's recklessness can be inferred from the fact that he knew he was obligated to support his daughter but knowingly failed to do so.State v. Collins (2000), 89 Ohio St.3d 524, 530. {¶ 17} In rebuttal, appellant attempted to establish the affirmative defense of inability to pay. Appellant asserts that he demonstrated this inability in that he was unemployed and "basically" homeless during the period of the indictment. However, there is undisputed evidence that appellant came into approximately $15,000 when his father died. At that time, he made a single $1,000 payment towards a total accumulated obligation of $14,390. Appellant testified that he could not afford to pay more and still support himself. Yet, appellant also testified that he lived with his father, or in his father's house, during this time, and his mother and sisters would bring him food and made sure he did not go hungry. {¶ 18} Despite his reportedly dire circumstances, he was able to live with the support of his family, yet failed to share that support with his own child. Moreover, while it is understandable that appellant would seek employment within his field of expertise, the fact that he failed to pursue jobs in other industries because they would not be financially beneficial contradicts any claim that he lacked the means to support his daughter. As the Supreme Court of Ohio stated in Brown: "Lack of means alone cannot excuse lack of effort[.]" Id. at 222. {¶ 19} After reviewing the testimony presented during trial, we find that the evidence supports the trial court's conclusion that appellant failed to establish the affirmative defense of inability to pay by a preponderance of the evidence. We overrule appellant's assignment of error. {¶ 20} Having overruled the single assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. Klatt, P.J., and French, J., concur. 1 After taxes, appellant received an approximate total of $15,000.

2016-08-08 08:50:41.844189+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=12192&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa06%5cOpinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-16-00115-CR WILLIAM WALLACE FREY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 336th District Court Fannin County, Texas Trial Court No. 23030 Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss  MEMORANDUM OPINION In late 2011, we affirmed the revocation of William Wallace Frey’s community supervision after concluding that Frey’s appeal was frivolous.1 Since that time, Frey has filed numerous applications for the writ of habeas corpus in state and federal courts. On April 25, 2016, Frey filed a document titled “Motion to Object to the Court’s Order to Deny Applicant’s Writ.” Then, on June 20, 2016, Frey filed a document titled “Notice of Appeal.” It is impossible to determine from the face of the document titled “Notice of Appeal” precisely what action of the trial court Frey seeks to have reviewed on appeal. To the extent that Frey seeks to again appeal his adjudication for aggravated assault with a deadly weapon, we are without jurisdiction to consider it. See TEX. R. APP. P. 19.1 (appellate court cannot vacate or modify judgment after plenary power has expired); Minnfee v. Proyor, No. 01-12-00943-CV, 2013 WL 709254 , at *1 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (mem. op., not designated for publication) (“Appellant is not entitled to a second appeal from the trial court’s judgment dismissing the case.”). Moreover, on the record before us, it does not appear that the trial court has entered an appealable order or judgment since May 20, 2011, when it adjudicated Frey’s guilt on the underlying charge. With a very few limited exceptions inapplicable to the facts here, the Texas 1 Frey’s underlying charge was aggravated assault with a deadly weapon, for which the 336th Judicial District Court of Fannin County had deferred adjudication and placed Frey on ten years’ deferred adjudication community supervision. On the State’s motion, the trial court had revoked Frey’s community supervision, adjudicated him guilty of aggravated assault with a deadly weapon, and on May 20, 2011, sentenced Frey to twenty years’ imprisonment. The appeal of that action of the trial court was what we had determined was frivolous. Frey v. State, No. 06-11-00123- CR, 2011 WL 6774175 (Tex. App.—Texarkana Dec. 21, 2011, no pet.) (mem. op., not designated for publication). 2 Legislature has authorized appeals by criminal defendants only from written judgments of conviction. See Gutierrez v. State, 307 S.W.3d 318 , 321 (Tex. Crim. App. 2010); Ex Parte Shumake, 953 S.W.2d 842 , 844 (Tex. App.—Austin 1997, no pet.). In the absence of an appealable judgment or order, we are without jurisdiction to hear this appeal. By letter dated July 1, 2016, we notified Frey of this potential defect in our jurisdiction and afforded him the opportunity to explain how we might have jurisdiction in this matter. Frey filed a response in which he generally outlines what he believes to have been a series of mistakes made during the course of his adjudication hearing and in the ensuing judgment, all of which must have been raised and determined in his 2011 appeal. The response failed, however, to articulate how these perceived mistakes confer jurisdiction on this Court over the instant appeal. Because we are without jurisdiction over this attempted appeal, we dismiss this appeal for want of jurisdiction. Josh R. Morriss, III Chief Justice Date Submitted: August 4, 2016 Date Decided: August 5, 2016 Do Not Publish 3

2016-07-06 06:41:43.579186+00

This is an appeal from a Ross County Common Pleas Court judgment of conviction and sentence. The trial court found Mark T. Buck, defendant below and appellant herein, guilty of trafficking in drugs in violation of R.C. 2925.03 and of possession of drugs in violation of R.C. 2925.11 Appellant raises the following assignment of error for review: "THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS." Our review of the record reveals the following facts pertinent to the instant appeal. On August 31, 1996, appellant was arrested for trafficking in drugs in violation of R.C.2925.03(A). A complaint subsequently was filed in the Chillicothe Municipal Court charging appellant with two counts of trafficking in drugs in violation of R.C. 2925.03(A). The court released appellant on his own recognizance and ordered appellant to post $10,000 bail. On October 4, 1996, the state entered a nolle prosequi pursuant to Crim.R. 48(A), and the court dismissed without prejudice both charges contained in the complaint. On March 27, 1997, the Ross County Grand Jury indicted appellant. The indictment charged appellant with one count of trafficking in drugs in violation of R.C. 2925.03 and with one count of drug possession in violation of R.C. 2925.11. On July 2, 1997, appellant was arrested and served with the indictment. On August 15, 1997, appellant filed a motion to dismiss the indictment. Appellant's motion asserted that he suffered a violation of his statutory speedy trial rights. Appellant argued that more than two hundred seventy days had elapsed since his August 31, 1996 arrest and that, consequently, R.C.2945.71 et seq. required the trial court to dismiss the indictment. Appellant noted that: (1) on August 31, 1996, he had been arrested and charged with two counts of trafficking in drugs; (2) the municipal court dismissed the charges; (3) the state subsequently indicted appellant for one count of trafficking in drugs and one count of possession of drugs; and (4) the state premised the March 27, 1997 indictment upon the same conduct for which appellant had been arrested on August 31, 1996. Appellant contended that the statutory speedy trial period was not tolled following the municipal court's October 4, 1996 dismissal of the charges because the court failed to explicitly state that appellant was released from his bail obligations. Appellant further argued that the statutory speedy trial period for the new and additional drug possession charge contained in the indictment had expired. On November 24, 1997, the trial court denied appellant's motion to dismiss. While the trial court recognized that the municipal court never filed an entry explicitly releasing appellant from his bail obligations, the trial court rejected appellant's argument that the municipal court's failure to file an entry specifically discharging appellant from bail resulted in the continued running of the statutory speedy trial time. The court stated: " [Appellant] had posted a surety bond and had been released on his own recognizance. [Appellant] was free of any physical restraint on his person traditionally associated with arrest and pending charges. [Appellant] was not subject to any incarceration on the trafficking charges after their dismissal. In conclusion, the Court finds that [appellant]'s speedy trial rights as to Count 1 (trafficking in drugs) runs from the date of his initial arrest on August 31, 1996 until the dismissal of charges on October 4, 1996. The time to be brought to trial is then tolled until July 2, 1997, the date [appellant] was arrested on the indictment. The time for which to bring [appellant] to trial on Count 1 shall then run from July 2, 1997 to August 15, 1997, the date [appellant] filed his motion to dismiss. Upon the filing of this entry, the time to try [appellant] shall commence running." The trial court also rejected appellant's argument that the drug possession charge was not tolled during the time between the October 4, 1996 dismissal and his July 2, 1997 arrest and arraignment. On March 20, 1998, appellant entered no contest pleas to the charges in the indictment. Appellant filed a timely notice of appeal. In his sole assignment of error, appellant contends that the trial court erred by overruling his motion to dismiss. Appellant asserts that the trial court deprived him of his statutory right to a speedy trial. In particular, appellant argues that the trial court erroneously concluded that the speedy trial period for the drug trafficking charge was tolled from the October 4, 1996 dismissal until July 2, 1997, the date appellant was arrested and served with the indictment. Appellant asserts that the municipal court's failure to explicitly discharge appellant from his bail obligations effectively resulted in appellant remaining under a "stigma associated with a criminal proceeding. See State v. Broughton (1991), 62 Ohio St.3d 253, 257, 581 N.E.2d 541, 545. Appellant also argues that the trial court erroneously concluded that the time within which to bring appellant to trial on the drug possession charge was subject to the same tolling period as the trafficking charge. The state asserts that the trial court correctly determined that appellant suffered no violation of his statutory speedy trial rights. The state contends that the trial court properly concluded that the statutory speedy trial time for both the drug trafficking charge and the drug possession charge was tolled between October 4, 1996 (the date the municipal court dismissed the charges) and July 2, 1997 (the date of appellant's arrest). Initially, we note that a trial court's decision regarding a motion to dismiss based upon a violation of the speedy trial provisions presents a mixed question of law and fact for our review. If competent, credible evidence supports the trial court's findings of fact, we will defer to the trier of facts. We will, however, independently review whether the trial court properly applied the law to the facts of the case. See,e.g., State v. Pilgrim (Jan. 28, 1998), Pickaway App. Nos. 97 CA 2 97 CA 4, unreported; State v. Woltz (Nov. 4, 1994), Ross App. No. 93CA1980, unreported. The speedy trial provisions, R.C. 2945.71-.73, seek to enforce an accused's constitutional right to a speedy and public trial. State v. Pachay (1980), 64 Ohio St.2d 218,416 N.E.2d 589, syllabus. In City of Brecksville v. Cook (1996),75 Ohio St.3d 53, 55, 661 N.E.2d 706, 707, the court discussed an accused's right to a speedy trial as follows: "Ohio's speedy trial statute was implemented to incorporate the constitutional protection of the right to a speedy trial provided for in the Sixth Amendment to the United States Constitution and in Section 10, Article I, of the Ohio Constitution. State v. Broughton (1991), 62 Ohio St.3d 253, 256, 581 N.E.2d 541, 544; see Columbus v. Bonner (1981), 2 Ohio App.3d 34, 36, 2 Ohio B. Rep. 37, 39, 440 N.E.2d 606, 608. The constitutional guarantee of a speedy trial was originally considered necessary to prevent oppressive pretrial incarceration, to minimize the anxiety of the accused, and to limit the possibility that the defense will be impaired. State ex rel. Jones v. Cuyahoga Cty. Ct. of Common Pleas (1978), 55 Ohio St.2d 130, 131, 9 Ohio App.3d 108, 109, 378 N.E.2d 471, 472. Section 10, Article I of the Ohio Constitution guarantees to the party accused in any court a speedy public trial by an impartial jury.' 'Throughout the long history of litigation involving application of the speedy trial statutes, this court has repeatedly announced that the trial courts are to strictly enforce the legislative mandates evident in these statutes. This court's announced position of strict enforcement has been grounded in the conclusion that the speedy trial statutes implement the constitutional guarantee of a public speedy trial.' (Citations omitted.) State v. Pachay (1980), 64 Ohio St.2d 218, 221, 416 N.E.2d 589, 591. We are acutely conscious of the magnitude of the rights we interpret today. We have also previously explained, however, that the prescribed times for trial set forth in R.C. 2945.71 are not absolute in all circumstances, but a certain measure of flexibility was intended by the General Assembly by the enactment of R.C. 2945.72, wherein discretionary authority is granted to extend the trial date beyond the R.C. 2945.71 time prescriptions." In seeking to enforce an accused's constitutional right to a speedy trial, R.C. 2945.71(C)(2) requires the state to try a person charged with a felony within two hundred seventy days after his arrest. For purposes of computing the two hundred seventy day period, R.C. 2945.71 (E) provides that each day an accused spends in jail awaiting trial on the pending charge counts as three days. The date of arrest is not counted in calculating the number of speedy trial days that have elapsed.State v. Lautenslaqer (1996), 112 Ohio App.3d 108, 109-110,677 N.E.2d 1263; State v. McCornell (1993), 91 Ohio App.3d 141,145, 631 N.E.2d 1110, 1112; State v. Steiner (1991), 71 Ohio App.3d 249,250-251, 593 N.E.2d 368, 369. Once an accused demonstrates that more than two hundred seventy days have elapsed between his initial arrest and the date of his trial, the accused establishes a prima facie case for dismissal. State v. Butcher (1986), 27 Ohio St.3d 28,30-31, 500 N.E.2d 1368, 1369-1370; State v. Baker (1993),92 Ohio App.3d 516, 525, 636 N.E.2d 363, 369; State v. Howard (1992), 79 Ohio App.3d 705, 707, 607 N.E.2d 1121; State v.Geraldo (1983), 13 Ohio App.3d 27, 28, 468 N.E.2d 328. The burden then shifts to the state to produce evidence demonstrating that the accused was not entitled to be brought to trial within the two hundred seventy day period. Baker,92 Ohio App. 3d at 526, 636 N.E.2d. at 369; Howard, supra; State v.Bowman (1987), 41 Ohio App.3d 318, 319, 535 N.E.2d 730. In the case at bar, while appellant established that more than two hundred seventy days elapsed following his August 31, 1996 arrest,1 we believe that the state met its burden of demonstrating that no speedy trial violation occurred. We believe that the trial court properly concluded that the statutory speedy trial time for both the trafficking charge and the possession charge was tolled between the October 4, 1996 dismissal and the July 2, 1997 arrest. In Broughton, 62 Ohio St.3d at 258, 581 N.E.2d at 545, the Ohio Supreme Court stated that "the speedy trial statute shall run against the state only during the time in which an indictment or charge of felony is pending." See, also, State v.DePue (1994), 96 Ohio App.3d 513, 517, 645 N.E.2d 745, 747. Thus, the Broughton court held: "For purposes of computing how much time has run against the state under R.C. 2945.71 et seq., the time period between the dismissal without prejudice of an original indictment and the filing of a subsequent indictment, premised upon the same facts as the original indictment, shall not be counted unless the defendant is held in jail or released on bail pursuant to Crim.R. 12 (I)." Id., 62 Ohio St.3d 253, 581 N.E.2d 541, paragraph one of the syllabus (Emphasis added.); see, also, State v. Bonarrigo (1980), 62 Ohio St.2d 7, 402 N.E.2d 530; State v. Stephens (1977), 52 Ohio App.2d 361, 370 N.E.2d 759. Thus, as theStephens court stated: "Where the defendant is released without bail upon dismissal of the original indictment, the [defendant] is not entitled to have time between the dismissal and the reindictment included pursuant to R.C. 2945.71, because during such period no charge is pending. However, if upon dismissal, the defendant is held in jail or on bail pursuant to Crim.R. 12(I), such time in jail or on bail will be included in the computation of time under R.C. 2945.71." Id., 52 Ohio App.2d 361, 370 N.E.2d at 759, paragraph two of the syllabus; see, also, Bonarrigo, 62 Ohio St.2d at 11,402 N.E.2d at 534 ("* * * [W]here a prosecutor obtains a felony indictment, based upon the same conduct as was a previouslynolled, lesser-included misdemeanor charge, the time within which the accused shall be brought to trial pursuant to R.C.2945.71 et seq. consists of whatever residue remains from the 270-day period set forth in R.C. 2945.71(C) after deducting the speedy trial time expended prior to the nolle Prosequi." In Bonarrigo, 62 Ohio St.2d at 10, 402 N.E.2d at 534, the Ohio Supreme Court discussed additional situations that toll the statutory speedy trial period: "In State v. Spratz (1979), 58 Ohio St.2d 61, 62 n. 2, we expressly noted that the entry of a nolle prosequi on a felony charge tolled the running of statutory speedy trial time until such time as the accused was re-indicted. Similarly, in Westlake v. Cougill (1978), 56 Ohio St.2d 230, we excluded from the computation of speedy trial time a period between a nolle prosequi of misdemeanor charges and the service of summons of a second filing of misdemeanor charges arising out of the same conduct. In both cases, credit was given the accused for the period of time the charges based on the same conduct were pending prior to entry of the nolle prosequi." The Bonarrigo court explained the rationale for tolling the statutory speedy trial period after a dismissal of criminal charges as follows: " '* * * After the Government's dismissal of the complaint against him appellant * * * was no longer under any of the restraints associated with arrest and the pendency of criminal charges against him. He was free to come and go as he pleased. He was not subject to public obloquy, disruption of his employment or more stress than any citizen who might be under investigation but not charged with a crime. Unless and until a formal criminal charge was filed against him, neither he nor the public generally could have any legitimate interest in the prompt processing of a nonexistent case against him.' " Bonarrigo, 62 Ohio St.2d at 11, 402 N.E.2d at 535 n. 5 (quotingUnited States v. Hillegas (C.A.2, 1978), 578 F.2d 453, 458). Thus, the foregoing principles demonstrate that when a trial court dismisses charges, when the defendant is not held in jail, and when the defendant is not released on bail pursuant to Crim.R. 12(I), the dismissal stops the running of the statutory speedy trial period. In the case sub judice, it is undisputed that on October 4, 1996, the municipal court dismissed, without prejudice, the initial charges. Furthermore, the parties agree that appellant was not held in jail following the October 4, 1996 dismissal. It also is undisputed that the state subsequently filed an indictment based upon the same facts as contained in the original complaint. Thus, the crux of the issue in the case at bar is whether the municipal court's failure to issue an entry which explicitly released appellant from his bail obligations resulted in appellant's bail being continued pursuant to Crim.R. 12(I). We do not believe that a court's failure to explicitly state in a dismissal entry, entered pursuant to Crim.R. 48(A), that a criminal defendant is released from bail necessarily results in the defendant's bail being continued pursuant to Crim.R. 12(I). In State v. Tornstrom (Nov. 19, 1998), Cuyahoga App. No. 72898, unreported, the court was presented with a similar issue. In Tornstrom, the defendant's indictment was dismissed. The trial court's entry dismissing the charges simply stated: "Upon state's motion, case dismissed without prejudice. Defendant discharged. State has notified the defendant that upon re-indictment, case will proceed rapidly due to speedy trial constraints." After the state subsequently reindicted the defendant, the defendant moved to dismiss the indictment based upon a violation of his statutory speedy trial rights. The defendant asserted that after the trial court dismissed the charges, he was released on bail, and, thus, that the dismissal did not toll the running of the speedy trial statute. The court of appeals disagreed with appellant's argument that he was released on bail. The court noted that the trial court's entry simply dismissed the case and discharged the defendant. The court found no evidence in the record to suggest that the trial court continued the defendant's bail following the dismissal. As in Tornstrom, in the case at bar we likewise find no evidence in the record from which we can conclude that the trial court continued appellant's bail following the October 4, 1996 dismissal. Crim.R. 12(I) allows a court to continue a defendant's bail when the trial court dismisses criminal charges. The rule provides: (I) Effect of determination. If the court grants a motion to dismiss based on a defect in the institution of the prosecution or in the indictment, information, or complaint, it may also order that the defendant be held in custody or that the defendant's bail be continued for a specified time not exceeding fourteen days, pending the filing of a new indictment, information, or complaint. * * * * (Emphasis added.) In the present case, neither party has seriously argued that the trial court ordered that appellant's bail would be continued pursuant to Crim.R. 12(I) upon dismissal. LikeTornstrom, no evidence exists in the record to suggest that the municipal court continued appellant's bail pursuant to Crim.R. 12(I). Rather, upon reviewing the files in the case sub judice, we believe that the municipal court intended for appellant's bail obligations to terminate upon the dismissal of the case. We note that appellant's recognizance form states that appellant shall comply with the terms of his bond "until such case is finally disposed of." The October 4, 1996 dismissal disposed of the case. Thus, we believe that the record demonstrates that once criminal charges were no longer pending against appellant, appellant's bail obligations were extinguished.2 Moreover, we note that "R.C. 2945.71(C) dictates that the speedy trial period runs only while the charge is pending."State v. Grover (Sept. 25, 1998), Ashtabula App. No. 97-A-0021, unreported, and that "the preeminent purpose of bail is to 'insure that the defendant appears at all stages of the criminal proceedings,' see Crim.R. 46(A) and State ex rel.Jones v. Hendon (1993), 66 Ohio St.3d 115, 118, 609 N.E.2d 541, 543-544." State ex re. Pirman v. Money (1994), 69 Ohio St.3d 591,595, 635 N.E.2d 26, 30; see, also, Black's Law Dictionary (6 Ed. 1990) 140 (stating that "[t]he purpose of bail is to ensure the return of the accused at subsequent proceedings"). As we previously stated, after the October 4, 1996 dismissal no criminal charges were pending against appellant. The municipal court did not grant a motion to dismiss based on a defect in the complaint and did not order that appellant's bail be continued for a fourteen day period pending the filing of a new complaint. Rather, the municipal court's dismissal entry dismissed the underlying case in its entirety. Accordingly, no rationale existed for continuing to impose bail upon appellant. Thus, we agree with the trial court's conclusion that the municipal court's dismissal of the original complaint tolled the running of the statutory speedy trial period for the drug trafficking charge. In his assignment of error, appellant also argues that the trial court erred by concluding that the drug possession charge was subject to the same tolling period as the drug trafficking charge. We disagree with appellant. The Ohio Supreme Court has held: " '* * * When new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge.' " State v. Adams (1989), 43 Ohio St.3d 67, 68, 538 N.E.2d 1025,1027 (quoting State v. Clay (1983), 9 Ohio App.3d 216, 218,459 N.E.2d 609, 610); see, also, State v. Baker (1997), 78 Ohio St.3d 108,110, 676 N.E.2d 883, 885. Employing the foregoing principle leads this court to conclude that the new and additional drug trafficking charge premised upon the same facts contained in the original complaint is subject to the same statutory limitations period as the original drug trafficking charge. See State v. Jarvis (Dec. 12, 1998), Portage App. No. 97-P-0101, unreported; Statev. Cosby (May 7, 1993), Clark App. No. 2979, unreported. Thus, because the dismissal of the original drug trafficking charges tolled the statutory speedy trial provisions, the dismissal also tolled the new and additional drug possession charge arising from the same facts. Therefore, pursuant to R.C. 2945.71 et seq., we calculate the speedy trial period as follows: (1) between August 31, 1996 (the date of appellant's initial arrest) and October 4, 1996, 34 days are charged to the state;3 (2) between October 4, 1996 and July 2, 1997, the speedy trial clock is tolled; (3) between July 2, 1997 and August 15, 1997 (the date appellant filed his motion to dismiss, see R.C. 2945.72(E)), 44 days are charged to the state; (3) between November 24, 1997 (the date the trial court rendered its decision on appellant's motion to dismiss) and March 20, 1998 (the date appellant entered his pleas of no content), 117 days had expired on the statutory speedy trial clock. A total of 195 days elapsed pursuant to the speedy trial statute. Thus, we find no violation of appellant's statutory right to speedy trial. Accordingly, based upon the foregoing reasons, we overrule appellant's sole assignment of error. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, P.J.: Concurs in Judgment Opinion Grey, J.: Dissents* For the Court BY: _______________________ Peter B. Abele Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. 1 Between appellant's August 31, 1996 arrest and his July 2, 1997 arrest pursuant to the subsequent indictment, three hundred five days elapsed. 2 Furthermore, we note that R.C. 2937.40(C) provides that bail of any type "shall be discharged and released to the accused, and property pledged by an accused for a recognizance shall be discharged, upon the appearance of the accused in accordance with the terms of the recognizance or deposit and the entry of judgment by the court * * *." 3 It is unclear from the record whether appellant spent time in jail pursuant to his initial arrest. Thus, we have not used the triple-count provision in our calculation. We note that employing the triple-count provision would not affect our descision that appellant has suffered no violation of his statutory speedy trial rights. * Lawrence Grey, retired, sitting by assignment of the Ohio Supreme Court in the Fourth District.

2016-07-06 06:41:43.617645+00

OPINION {¶ 1} Defendant-appellant, Kent E. Poling ("defendant"), pro se, both on appeal and in the trial court, appeals from a judgment of the Franklin County Municipal Court, which after a bench trial, entered judgment in favor of plaintiff-appellee, Discover Bank ("plaintiff"). For the following reasons, we affirm. {¶ 2} Plaintiff initiated this action on December 9, 2003, against defendant for damages in the amount of $10,528.65 resulting from defendant's alleged failure to pay on a Discover Bank credit card account ("the credit card" or "the account") for which plaintiff was the creditor and issuer of the credit card. Defendant answered on January 23, 2004. He denied the allegations set forth in plaintiff's complaint, and asserted 16 "affirmative" defenses. {¶ 3} A bench trial commenced on September 23, 2004. The trial court heard testimony from Mr. Phillip Reed, an employee of Discover Financial Services. Plaintiff also offered documentary evidence to demonstrate the existence of a legally binding agreement, defendant's breach of that agreement, and plaintiff's damages. Defendant represented himself at trial, and objected to plaintiff's proffer of evidence on the basis that Mr. Reed's testimony, which served to authenticate plaintiff's exhibits, was not based on personal knowledge. {¶ 4} Defendant testified that he had "no recollection" of having applied for or having used the credit card. (Tr. 56.) Defendant admitted that the address where the billing statements were sent was his business address, but denied having ever received a billing statement. (Tr. 54.) He also testified that he "did not recall" having a Heartland Bank checking account. (Tr. 54-62.) Defendant stated that he "did not believe" that it was his signature, but rather, that of a "good forger," which appeared on five Heartland Bank checks sent to plaintiff for payment on the disputed account. (Tr. 54-62.) Those checks that were drawn on a checking account in defendant's name, which included the credit card account number on the memo line, and which were sent with a portion of the monthly billing statement. (Tr. 54-62.) Defendant also had "no recollection" of having been issued other credit cards, including a National City Bank credit card (Tr. 67-68), which this court notes, sua sponte, was the issue of an appeal filed by defendant in National CityBank v. Poling, Franklin App. No. 04AP-711, 2005-Ohio-585, and was pending during defendant's trial in the instant matter. In response to being asked whether he had sustained any kind of head injury or illness that might have impaired his memory, defendant stated that he did not recall. (Tr. 68-69.) Nor did he recall his mother's maiden name. (Tr. 69.) {¶ 5} On September 29, 2004, the trial court issued its findings of fact and conclusions of law, and entered judgment in favor of plaintiff in the amount of $10,528.55 plus interest at the rate of 24.99% from September 30, 2003. The trial court found plaintiff's documentary evidence admissible under Evid.R. 803(6), and discounted "all of Defendant's testimony as unbelievable." (Judgment Entry at 4.) {¶ 6} Defendant appeals, assigning the following assignments of error: 1. The trial court did not have subject matter jurisdiction to address the merits of a claim pursued by other than the real party in interest with standing to sue, therefore the judgment must be vacated. 2. The trial court erred in granting final judgment for plaintiff based on hearsay evidence. 3. The trial court erred in granting final judgment for plaintiff because the evidence is insufficient to support judgment in plaintiff['s] favor. {¶ 7} In his first assignment of error, defendant alleges that the trial court did not have subject-matter jurisdiction because plaintiff was not the real party in interest, and, therefore, plaintiff lacked standing in the instant matter. Defendant takes issue with the fact that Mr. Reed testified on plaintiff's behalf because he is employed by Discover Financial Services, and according to defendant, there is no evidence that plaintiff authorized Discover Financial Services' involvement. We find defendant's argument is without merit. {¶ 8} As an initial matter, plaintiff correctly notes that the first time defendant raised the issue of standing was on appeal. A review of defendant's 16 "affirmative" defenses discloses that none relate to standing. As such, defendant has waived that issue and is precluded from raising it on appeal. Gangale v. State, Franklin App. No. 01AP-1406, 2002-Ohio-2936, at ¶ 13 ("The failure to raise an issue at the trial level waives it on appeal."), citing State v. Williams (1977),51 Ohio St.2d 112; State v. Comen (1990), 50 Ohio St.3d 206, 211. {¶ 9} Even if defendant had timely raised the standing issue, it has no merit. Mr. Reed testified that he was employed by Discover Financial Services, plaintiff's servicing agent. As plaintiff's agent, Mr. Reed was its corporate representative, and therefore, competent to testify on plaintiff's behalf. (Tr. 9.) Moreover, neither plaintiff's standing nor the court's subject-matter jurisdiction is in any way affected by Mr. Reed's agency status. Based on the facts of this case, there is no legally sound theory to support defendant's argument. Accordingly, defendant's first assignment of error is overruled. {¶ 10} In his second assignment of error, defendant contends that hearsay testimony was improperly admitted over his objection. Specifically, defendant argues that because Mr. Reed's testimony was not based on personal knowledge, then his testimony and the documents he authenticated are inadmissible. We disagree. {¶ 11} The admission of a business record into evidence pursuant to Evid.R. 803(6) is a decision within the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion can be shown. WUPW TV-36 v. Direct Results Marketing, Inc. (1990),70 Ohio App.3d 710, 714. "The trial court abuses its discretion when it admits business records when an inadequate foundation was laid to establish their admissibility pursuant to Evid.R. 803(6)." State v.Myers (2003), 153 Ohio App.3d 547, 559-560. {¶ 12} To lay an adequate foundation, "`the testifying witness must possess a working knowledge of the specific record-keeping system that produced the document.'" H-3 Constr., Inc. v. Cogley Constr. (Sept. 14, 1999), Franklin App. No. 98AP-1499, quoting Hinte v. Echo, Inc. (1998),130 Ohio App.3d 678, 684, quoting State v. Davis (1991),62 Ohio St.3d 326, 342. Evid.R. 806(3) requires that the witness be either the custodian of the records or some "other qualified person." Although the rule does not require the witness whose testimony establishes the foundation to have personal knowledge of the exact circumstances of preparation and production of the document, the witness must "`demonstrate that he or she is sufficiently familiar with the operation of the business and with the circumstances of the preparation, maintenance, and retrieval of the record in order to reasonably testify on the basis of this knowledge that the record is what it purports to be, and was made in the ordinary course of business.'" H-3 Constr.,Inc., supra, quoting, Hinte, supra, quoting Keeva J. Kekst Architects,Inc. v. George Dev. Group (May 15, 1997), Cuyahoga App. No. 70835, citingWUPW TV-36, supra. {¶ 13} In this case, Mr. Reed testified that he has been employed by Discover Financial Services, plaintiff's servicing agent, for the past five years. (Tr. 9.) He is the team leader of the attorney placement department, which handles delinquent accounts referred for collection. (Tr. 9.) Mr. Reed testified that plaintiff's exhibit 1 was a true and accurate copy of defendant's application for a Discover Platinum Card, which was kept in the ordinary course of business. (Tr. 10, 33.) According to Mr. Reed, it is plaintiff's business practice to send the Cardmember Agreement along with the application, and he stated that plaintiff's exhibit 2 is a true and accurate copy of the agreement defendant would have received with the application. (Tr. 11, 33.) Mr. Reed testified that the 30 some odd monthly billing statements, which plaintiff offered as exhibit 3, were generated in the ordinary course of business. (Tr. 14-17, 32-40.) He also stated that monthly billing statements were mailed to defendant for over 30 months at his business address located in Gahanna, Ohio. (Tr. 14, 16-17, 32-40.) Plaintiff's exhibit 4 consists of copies of five return portions of billing statements and copies of defendant's accompanying payment, which were in the form of checks drawn on Heartland Bank account number 1805062, and had defendant's name, his business name, and corporate address printed on the checks. (Tr. 18-25.) Mr. Reed testified that the documents in exhibit 4 were kept in the ordinary course of business. (Tr. 18-25.) He also detailed how the image of the return portion of the billing statement and copies of the accompanying checks are stored and can be reduced to paper records upon request. Mr. Reed explained that once the request is received by the micrographics department, that department images the requested documents, and then forwards the same to the party making the request by regular mail or facsimile. (Tr. 36.) Mr. Reed testified that procedure was utilized in this case. {¶ 14} Based on the foregoing, we find Mr. Reed's testimony to be sufficient to authenticate the exhibits offered into evidence by plaintiff. Mr. Reed demonstrated sufficient familiarity with plaintiff's business operation and practices under which the foregoing were generated, prepared, imaged, maintained, and retrieved. He testified that he was familiar with defendant's account and the records relating thereto. As such, Mr. Reed's "knowledge was sufficient to base [his] testimony that the [business] records at issue were what they purported to be and were made in the ordinary course of business." Myers, supra, at 560; see, also, Nationwide Mut. Fire Ins. Co. v. Chaffin (June 11, 1996), Franklin App. No. 95AP-1636. Therefore, defendant's second assignment of error is not well taken. {¶ 15} Defendant argues in his third assignment of error that there was insufficient evidence to support a judgment in favor of plaintiff because plaintiff did not produce a signed contract or agreement, and therefore, plaintiff failed to prove the elements of a contract. We disagree. {¶ 16} The standard for reviewing the sufficiency of the evidence in a civil case is similar to the standard for determining whether to sustain a motion for judgment notwithstanding the verdict. Hartford Cas. Ins.Co. v. Easley (1993), 90 Ohio App.3d 525, 530. Employing that standard, this court must determine if defendant is entitled to judgment as a matter of law, when the evidence is construed most strongly in favor of plaintiff. Howard v. Himmelrick, Franklin App. No. 03AP-1034, 2004-Ohio-3309, at ¶ 4, citing Hartford Cas. Ins. Co., supra; Collinsv. The Ohio State University College of Dentistry (June 27, 1996), Franklin App. No. 96API02-192. "In other words, is the verdict one which could reasonably be reached from the evidence?" Collier v. Stubbins, Franklin App. No. 03AP-553, 2004-Ohio-2819, at ¶ 17, quoting HartfordCas. Ins. Co., at 530. {¶ 17} "To prove a breach of contract claim, a plaintiff must show `the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.'" Nilavar v. Osborn (2000), 137 Ohio App.3d 469, 483, quoting Doner v. Snapp (1994),98 Ohio App.3d 597, 600. Although not raised by either party on appeal, or argued below, in Bank One, Columbus, N.A. v. Palmer (1989),63 Ohio App.3d 491, 493, we stated that "credit card agreements are contracts whereby the issuance and use of a credit card creates a legally binding agreement." See, also, State Savings Bank v. Watts (Mar. 4, 1997), Franklin App. No. 96AP-809; Bank One of Columbus v. Might (June 15, 1982), Franklin App. No. 82AP-86. Following our decision in BankOne, the Fifth District Court of Appeals in Asset Acceptance LLC v.Davis, Fairfield App. No. 2004-CA-00054, 2004-Ohio-6967, held that a creditor need not produce a signed credit card application to prove the existence of a legally binding agreement because the credit card agreement created one. {¶ 18} In the present case, Mr. Reed authenticated the copy of defendant's credit card application, and testified that in response thereto, plaintiff issued the credit card to defendant. (Tr. 10-11.) The monthly billing statements, in plaintiff's exhibit 3, demonstrate defendant's use of the credit card for purchases and balance transfers. And by its use, defendant became bound by the terms and conditions set forth in the Cardmember Agreement, which provides in pertinent part, "[t]he use of your Account or a Card by you or an Authorized Use, or your failure to cancel your Account within 30 days after receiving a Card, means you accept this Agreement * * *." (Plaintiff's Exhibit 2, at 2). Thus, the Cardmember Agreement is a "legally binding agreement" between the parties. Bank One, Columbus, N.A. v. Palmer, supra, at 493; AssetAcceptance LLC, supra, at ¶ 48. One condition set forth in the Cardmember Agreement is that each month, defendant "must pay at least, the Minimum Payment due." (Plaintiff's Exhibit 2, at 4.) In 2003, defendant repeatedly failed to make the minimum monthly payment due on the account, and, therefore, was in default. (Plaintiff's Exhibit 3.) By defaulting on the account, defendant breached the Cardmember Agreement. (Plaintiff's Exhibit 2, at 9.) As a result of defendant's breach, plaintiff was damaged in the amount of $10,528.65. (Tr. 18.) The evidence, construed most strongly in plaintiff's favor, was sufficient for the trial court to find that a contract existed between the parties, that defendant breached that contract, and plaintiff was damaged as a result thereof. Therefore, defendant's third assignment of error is overruled. {¶ 19} For the foregoing reasons, defendant's three assignments of error are overruled, and the judgment of the Franklin County Municipal Court is affirmed. Judgment affirmed. Klatt and French, JJ., concur.

2016-07-06 06:41:47.467551+00

OPINION This appeal stems from the state's appeal of the Montgomery County Common Pleas Court's grant of defendant, Lisa Edwards' pre-trial suppression motion. Edwards' indictment for drug abuse is stayed pending the outcome of this appeal pursuant to Crim.R. 12(J). On January 18, 1999, Officers Shirley Rockwell and Madeline Christopher of the Dayton Police Department were on routine patrol in the city's Fifth District when they observed the defendant walking down the middle of the Edgewood Avenue in a staggering motion. (Tr. 5). Rockwell testified that Officer Christopher stopped the cruiser, and she rolled down the passenger window and asked the defendant if she had any identification on her. Ms. Edwards stated she did not. At this point, Officer Rockwell testified she exited the cruiser and asked Ms. Edwards if she realized she was walking in the middle of the street. Rockwell testified the defendant told her she was walking in the middle of the street because there was ice on the sidewalk. Rockwell stated there was ice on the street but not on the sidewalk. (Tr. 6). Rockwell then testified as follows: So at this time I stated — I said, "I'm going to pat you down, put you in my cruiser, find out who you are." And she put her hands out, and I started — she had a bulky coat on, so I started patting down her arms, and when I got to her left hand, she had a crack pipe right in her hand. Q. Was the crack pipe obviously in plain view? A. It was sticking right out of her coat sleeve. (Tr. 6). Officer Rockwell stated that she believed Edwards was jaywalking because the sidewalk on Edgewood was clear of ice that would require a person to walk in the street. She stated she was going to place Edwards in the back of the cruiser to find out who she was. She stated she patted Edwards down for her safety to make sure she did not enter the cruiser with a weapon on her. (Tr. 7). She then testified as follows: Q. Alrighty [sic]. Now, when she indicated she didn't have any identification, what did you do at that point? Then you patted her down and placed her in the cruiser? A. After I found the crack pipe. That was an arrestable offense at that time. Q. And did you then continue to check any information as to — Did she give you a name? Did she tell you who she was or where she lived? A. She did. Q. Did you — A. Prior to when I found the crack pipe, I had — also at this time I felt in her coat pocket. I found a pack of Newport cigarettes. It was open, and I took those out and handed them to Officer Christopher, and — along with the crack pipe — and then she was placed in the back seat of the cruiser. Q. Officer, did you yourself do any field tests for the substance found or for the crack pipe itself? A. At that time we called another crew for a certified reagent for testing, and the crew, Darrell Herron, arrived to the scene; and he tested the crack pipe, which testified positive. Q. And after the results of the crack pipe were known to you, what did you do at that point? A. At this time she was placed under arrest. Q. For? A. For the crack pipe. Q. For possession of paraphernalia? A. Right, and the positive field test. Q. Alrighty [sic]. Can you tell the Court what happened at that point? A. Well, I had placed the crack pipe inside the pack of cigarettes that was in the front seat at this time. I placed the crack pipe inside the cigarette pack, and she was taken down to the jail and booked in; and then when I went to go put the crack pipe in the property room, checked the cigarette pack, and in the bottom of the cigarette pack were two clear vials of suspected crack cocaine; and those were tagged and placed in the property room, and a lab. Analysis submitted. Q. Were the two gel capsules that you found at that time field-tested? A. No, I'm not certified. Q. Okay, but they were submitted to the Miami Valley Regional Crime Laboratory for analysis? A. That's correct. Q. Do you know what the results of that test showed? A. It showed positive for crack cocaine. Q. All right. Officer, did you at any point in time mirandize the defendant? A. No, I did not. (Emphasis ours). On cross-examination, Officer Rockwell conceded that the information given her by the defendant did check out on the police computer in the vehicle. Officer Christopher testified and corroborated the testimony of Officer Rockwell. She testified she witnessed Officer Rockwell conduct the pat-down of the defendant. Christopher testified as follows: Q. And at the time of the pat-down nothing was found on or removed from the defendant other than the crack pipe. Is that accurate? A. Crack pipe, and a package of cigarettes, and cigarette lighter. Q. Those were removed from the defendant? A. They were inside her coat pocket, yes. Q. You took them out of her coat pocket and did something with them? A. They were removed from the coat pocket and placed in the cruiser. Q. Is there some reason why you did that? I mean these weren't weapons, obviously. A. No, they were not, but I have found on several occasions there's been contraband placed in cigarette packages or inside the cigarettes themselves. Q. Okay, but you in fact did not inspect the cigarette package to see if there was contraband in it, did you? A. No, not at that time. Q. You indicated that you had some conversation with the defendant when she asked about what was gonna be happening to her. Did you have any other conversation with her? A. That's all that I recall. Q. Did you run the defendant's information on the KDT? A. Yes. Q. And that all came back accurate? A. Yes. Q. You said another crew responded to the scene. Can you remember who that was? A. Sure, it was Officer Herron from the Third District. Q. And he — Is it a he? A. Yes, it is. Q. And he tested the crack pipe? A. That's correct. Q. And it was at that point the decision was made to arrest the defendant? A. That's correct. In granting the defendant's suppression motion the trial court determined that the frisk of the defendant was not justified by a reasonable suspicion that she was armed and dangerous. The trial court also noted that the "frisk" was not justified as a search incident to arrest. The court stated the following: However, there are a limited number of circumstances where a suspect may be frisked without a showing of reasonable suspicion that he is armed or dangerous by the officer performing the frisk or the presence of a valid arrest. One such rare exception is set out by the Ohio Supreme Court in State v. Evans. In Evans, a driver of a motor vehicle lawfully stopped for a burned-out headlight was ordered out of his vehicle after he failed to produce a driver's license or identification. Under Ohio law, the Defendant could be arrested for failing to produce a driver's license if he could not produce a satisfactory form of identification. The Defendant was detained for the purpose of verifying his driver's license and the car owner's identity, and was frisked before being placed in the back of a police cruiser. A large roll of money and a small pack of cocaine were found in the Defendant's pocket and seized. In upholding the validity of the frisk and the seized evidence, the Ohio Supreme Court stated that "a driver of a motor vehicle may be subjected to a brief pat-down search for weapons where the detaining officer has a lawful reason to detain the driver in the patrol car." Id. at 410. The lawful reason for in-car detainment in Evans was verifying the existence of the Defendants driver's license and ownership of the vehicle he was driving. The question presented by the current case is whether the rule set out in Evans is applicable to a situation where a pedestrian stopped for a non-arrestable offense such as jaywalking is frisked for the purpose of being placed in the police cruiser after failing to produce any identification. This Court holds that the Evans "lawful reason" principle does not justify the frisk of the Defendant in this case. Evans clearly involved an arrestable offense. However, absent very narrow exceptions set forth in O.R.C. 2935.26(A) jaywalking is not an arrestable offense. State v. Jones 1999 WL76817, 1. Furthermore, the Second District Court of Appeals for Ohio has held that, absent a valid exception, an arrest for jaywalking constitutes an unreasonable seizure under the Constitutions of both the United States and Ohio, and any subsequent evidence obtained after the unlawful arrest is subject to the exclusionary rule and is inadmissible. Id. The Defendant was not arrested for jaywalking in this case. Furthermore, the Second District Court of Appeals for Ohio has held that, absent a valid exception, an arrest for jaywalking constitutes an unreasonable seizure under the Constitutions of both the United States and Ohio, and any subsequent evidence obtained after the unlawful arrest is subject to the exclusionary rule and is inadmissible. Id. The Defendant was not arrested for jaywalking in this case. Furthermore, under the circumstances, the Defendant could not have been arrested for jaywalking. O.R.C. 2935.26(A)(2) allows an arrest for jaywalking if the offender cannot or will not produce sufficient evidence of her identity which checked out when run through the police cruiser's on-board computer. The other circumstances which justify an arrest for a minor misdemeanor, such as having failed to previously appear in court when cited or the offender being a danger to themselves, are not present here. The State therefore cannot rely on the fact that the Defendant was subject to arrest in justifying the frisk and cruiser-detention in this case. Furthermore, the State has failed to supply any other justification for placing the Defendant in the back of a police cruiser and frisking her prior to doing so after the Defendant was stopped for a non-arrestable offense. The testifying officers did not articulate any legitimate reason why it was necessary to place the Defendant in the cruiser while her information was verified. Indeed, this Court feels that allowing such pat-down and detention tactics when a non-arrestable offense is involved clearly subverts the protection against unreasonable searches and seizures embodied in the United States and Ohio Constitutions. If the officers in this case were on foot or on bicycles instead of a cruiser, it is hardly imaginable that a pat-down of the Defendant under these circumstances would be permissible before the Defendant's information was verified via police radio. Detention would also be impossible. It is highly unlikely that the bicycle-mounted officers would have radioed for a cruiser to supply a detention area while the jaywalker's information was verified. In short, this court can find no "lawful reason" why the Defendant could be lawfully patted down and detained in a police cruiser after being stopped for a non-arrestable jaywalking offense when she clearly provided satisfactory evidence of her identity. Therefore, this Court finds that the frisk of the Defendant was unlawful and any evidence obtained as a result of the search must be suppressed as "the fruits of the poisonous tree." Wong Sun v. United States (1962). 371 U.S. 471. The State contends the trial court erred in suppressing the crack cocaine because the frisk of the defendant was justified and the evidence was found after a lawful arrest of the defendant. We agree. Although neither police officer articulated the weather conditions as a reason for placing the defendant in the police cruiser while her identity was verified, we cannot say such action was objectively unreasonable in light of the weather conditions prevailing at the time the defendant was stopped. In State v.Evans (1993), 67 Ohio St.3d 405, the Ohio Supreme Court held that the driver of a motor vehicle may be subjected to a brief pat-down search for weapons where the detaining officer has a lawful reason to detain the driver in a patrol car. Other courts have relied on Mimms in holding constitutional a police officer's additional order that the driver be seated in the patrol car. See State v. Mertz (N.D. 1985), 362 N.W.2d 410, 413, where the Supreme Court of North Dakota held that this "additional increment of intrusion" into a driver's personal liberty "does not outweigh public-policy concerns for the safety of police officers and in North Dakota, with its varying weather conditions, concerns for the protection of both the officer and driver." See also, United States v. Manbeck (C.A.4, 1984), 744 F.2d 360, 377-378. 67 Ohio St.3d at 408. The need to place the defendant in the patrol car while her identification was being checked justified the frisk of her person. During the frisk Officer Rockwell observed in plain view the crack pipe. At that point Officer Rockwell had probable cause to arrest Ms. Edwards for possession of drug paraphernalia, a misdemeanor of the fourth degree. See, R.C. 2925.14(C)(1). The fact that the officers did not arrest the defendant until Officer Herron arrived on the scene with his field kit and verified the presence of cocaine in the pipe is unimportant. InFlorida v. Royer (1983), 460 U.S. 491, where an officer testified at the suppression hearing that there was not probable cause, the Supreme Court concluded that "the fact that the officers did not believe there was probable cause and proceeded on a consensual or Terry-stop rationale would not foreclose the State from justifying Royer's custody by proving probable cause." Id. at 507. Since the defendant could have been immediately arrested for the drug paraphernalia offense it was certainly reasonable to detain her to determine whether the crack pipe actually contained crack. It is clear that Ms. Edwards was not going anywhere until the police officers verified whether the pipe contained crack. The fact that the cigarette pack was seized by the police officer before the defendant was arrested is also of no moment. The cigarette pack would have been inevitably seized and searched along with the defendant's other personal effects at the jail as part of routine booking procedures Indeed, both officers testified such an inventory search at the jail revealed the presence of the cocaine in the cigarette pack. Following a lawful arrest, it is reasonable for police to search the personal effects of the arrestee as a part of routine booking procedures. State v. Miley (Nov. 9, 1989), Cuyahoga App. No. 56168, unreported, citing Illinois v. Lafayette (1983),462 U.S. 642; and State v. Caponi (1984), 12 Ohio St.3d 302, cert. denied (1984), 469 U.S. 1209. Where a routine inventory search would inevitably lead to the discovery of certain evidence, the trial court should not suppress that evidence notwithstanding police error or misconduct. Miley, supra. The "inevitable discovery" exception to the exclusionary rule permits the state to introduce evidence that would have been discovered by lawful means, without reference to police error or misconduct. Nix v. Williams (1984), 467 U.S. 431; State v.Perkins (1985), 18 Ohio St.3d 193. The appellant's assignment of error is sustained; the judgment of the trial court is Reversed and Remanded for further proceedings. GRADY, P.J,. and FAIN J., concur. Copies mailed to: R. Lynn Nothstine Arvin S. Miller Hon. David Sunderland

2016-07-06 06:41:47.551655+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Defendant Derrick A. Bradford has appealed from an order of the Lorain County Common Pleas Court that denied his petition for postconviction relief. He has argued that: (1) his trial counsel was ineffective for failing to challenge, at a suppression hearing, the propriety of the traffic stop during which incriminating evidence was found; (2) his trial counsel was ineffective for failing to protect his right to a speedy trial; (3) his waiver of his right to a jury trial was not in compliance with Section 2945.05 of the Ohio Revised Code; and (4) the trial court incorrectly denied his petition without an evidentiary hearing. This Court affirms the judgment of the trial court in part because: (1) defendant has failed to show that he was prejudiced by the failure of his trial counsel to challenge the propriety of the traffic stop; (2) he did not preserve his challenge of the alleged violation of his right to a speedy trial; and (3) the alleged failure of his jury trial waiver to comply with Section 2945.05 of the Ohio Revised Code was barred by resjudicata. This Court reverses the judgment of the trial court in part, however, because defendant was entitled to an evidentiary hearing on one of his claims. I. On March 26, 1993, defendant was a passenger in an automobile that was stopped for speeding. The officer involved, noticing that the driver appeared to be concealing something in his waistband, conducted a patdown of the driver, felt what he thought was a weapon, and found a plastic bag containing chunks of cocaine. The officer searched the vehicle for contraband, discovered two kilograms of cocaine, and was told by the driver that it belonged to defendant. Defendant was indicted on two counts of aggravated drug trafficking, violations of Section2925.03(A)(9) of the Ohio Revised Code, and one count of possession of criminal tools, a violation of Section 2923.24(A) of the Ohio Revised Code. He moved for suppression of the evidence obtained during the vehicle search, arguing that the search was unconstitutional. Following a hearing, the trial court denied his motion. One count of aggravated drug trafficking was dismissed and, after a trial to the court, defendant was convicted of the remaining two counts against him. He appealed to this Court, which affirmed his convictions. See State v. Bradford (July 27, 1994), Lorain App. No. 93CA005759, unreported. On September 4, 1996, defendant filed a petition for postconviction relief, alleging ineffective assistance of trial counsel and requesting an evidentiary hearing. On May 20, 1997, the trial court denied his petition without a hearing. Defendant timely appealed to this Court. II. A. Defendant's first assignment of error is that his trial counsel was ineffective for failing to challenge, at a suppression hearing, the propriety of the traffic stop during which incriminating evidence was found.1 An attorney's performance is ineffective only if it falls below an objective standard of reasonable representation and results in prejudice to the defendant. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. To show prejudice, 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." Id. at paragraph three of the syllabus. According to defendant, the officer lacked probable cause to stop the vehicle that was eventually searched because the officer was using a traffic stop as a pretext for a "drug investigation." Defendant has based his assertion that the stop was pretextual on the fact that the officer "never produced a radar unit visual establishing that the vehicle was in fact traveling at a speed of 64 in a posted 55 mile per hour zone," and that the officer "never issued a speeding citation." At the hearing, the officer testified that he stopped the vehicle because he "clocked" it with radar equipment as traveling 64 miles per hour in a 55-mile-per-hour zone. Given this testimony, defendant has not shown a reasonable probability that the court would have found that the officer was not justified in stopping the vehicle. Although this Court is not aware of any cases prior to defendant's suppression hearing in which it had explicitly addressed the issue of what constitutes an invalid pretextual traffic stop, it did announce a rule shortly thereafter in two 1994 opinions, in which it held that a stop is not invalid if an officer has specific and articulable reasons to believe the driver is violating any law. See State v. Shook (June 15, 1994), Lorain App. No. 93CA005716, unreported, 1994 Ohio App. LEXIS 2631, at *5, and State v. Hunt (Dec. 7, 1994), Lorain App. No. 94CA005795, unreported, 1994 Ohio App. LEXIS 5548, at *4-5. This Court has not deviated from that position. See, e.g., State v. Calhoun (May 3, 1995), Lorain App. No. 94CA005824, unreported, at 4-6; State v. Carlson (1995),102 Ohio App.3d 585, 593; State v. Yelling (Jan. 17, 1996), Summit App. No. 17328, unreported, at 4-6; and State v. Orr (Apr. 3, 1996), Summit App. No. 17367, unreported, at 3-5.2 Defendant, therefore, has not demonstrated a reasonable probability that, had his attorney challenged the propriety of the stop, the result of his trial would have been different. Even if the trial court had granted his motion to suppress, it is reasonably probable that it would have been appealed to this Court and overturned. Defendant's first assignment of error is overruled. B. Defendant's second assignment of error is that his trial counsel was ineffective for failing to protect his right to a speedy trial. Pursuant to Section 2945.71(C)(2) of the Ohio Revised Code, "[a] person against whom a charge of a felony is pending shall be brought to trial within two hundred seventy days after his arrest." Section 2945.71(E) of the Ohio Revised Code provides that each day of incarceration on the pending charge is to be counted as three days for purposes of computing the time for a speedy trial. Defendant was incarcerated during the entire time between his arrest and his trial. Defendant, therefore, was required to have been brought to trial within 90 actual days after his arrest. In his petition, defendant argued that he was brought to trial 215 actual days after he was arrested, which violated his right to a speedy trial because that period was longer than 90 actual days (one-third of 270 counted days). The trial court concluded that defendant was tried the equivalent of 261 counted days (87 actual days) after arrest, and gave a detailed explanation of how it took into account delays and extensions of time that tolled the time for a speedy trial. On appeal, defendant has argued that this calculation was correct except for one eight-day period, which the trial court did not count toward the time but which he has counted because his attorney filed a motion to continue the trial for eight days without obtaining his signature, which motion was granted. Accordingly, defendant has asserted, that continuance did not toll the time for speedy trial. Because he was incarcerated, the eight days counted as 24 days, which explains the 24-day difference between the trial court's calculation of the number of days before he was brought to trial (261 days) and defendant's calculation (285 days). Defendant, in his petition to the trial court, did not expressly argue that the eight-day period in question was not chargeable to him because his attorney sought the continuance without obtaining his signature or consent. Instead, he addressed the issue as follows: Appellant never signed a continuance nor did he request an extension of time. Since Ohio law tends to hold criminal defendants accountable for continuances taken by their attorneys even if it was done without the defendant's consent. Therefore, when computing the days the defendant will not credit the days taken by his attorney. However, it should be noted that as of 1991 the mcourt has stated that continuances are invalid unless they have the defendant's signature. (OHIO RULES OF COURT RULE 79.) [Adopted effective July 1, 1991.] This indicated that he was not contesting that delays requested by his attorney were chargeable to him. On appeal, however, he has argued that the eight-day continuance should not have been charged to him because his signature was not obtained as required by "Ohio Rules of Court Rule 79.01."3 Because defendant did not make this argument to the trial court, and even explicitly declined to pursue such an argument there, he may not pursue it on appeal. See State v. Bandell (Apr. 9, 1997), Lorain App. No. 96CA006524, unreported, at 3, citing Lippy v. Soc. Natl. Bank (1993), 88 Ohio App.3d 33, 40. Defendant, therefore, has not shown that his attorney's performance was deficient. His second assignment of error is overruled. C. Defendant's third assignment of error is that his waiver of his right to a jury trial was not in compliance with Section2945.05 of the Ohio Revised Code. That section sets out specific procedural requirements for waiving a jury trial in a criminal case. Defendant has argued that, because his waiver was not made in open court and because the signed waiver form did not show that he understood that a single judge would decide his case, as mandated by the statute, the trial court was without jurisdiction to try him. Unlike the first two assignments of error, this one does not allege ineffective assistance of counsel and, therefore, could have been raised on direct appeal from defendant's convictions.4 As such, it is barred by the doctrine of resjudicata and is not properly raised here. See State v. Reynolds (1997), 79 Ohio St.3d 158, 161, citing State v. Perry (1967),10 Ohio St.2d 175, paragraph nine of the syllabus. In addition, the Ohio Supreme Court has held that "failure to comply with [Section2945.05 of the Ohio Revised Code] may be remedied only in a direct appeal from a criminal conviction." See State v. Pless (1996),74 Ohio St.3d 333, paragraph two of the syllabus. Defendant's third assignment of error is overruled. D. Defendant's fourth assignment of error is that the trial court incorrectly denied his petition without an evidentiary hearing. Pursuant to Section 2953.21(E) of the Ohio Revised Code, a trial court shall conduct a hearing on a petition for postconviction relief "[u]nless the petition and the files and records of the case show the petitioner is not entitled to relief." To obtain a hearing, a defendant bears the initial burden of submitting evidentiary documents containing sufficient operative facts that, if proven, would demonstrate entitlement to relief. See State v. Jackson (1980), 64 Ohio St.2d 107, 111. Defendant has argued that he did submit such documents, citing the attachment of parts of the trial and hearing transcripts, a copy of the motion for continuance filed by his trial counsel, and a verification page that made his petition "an affidavit for purposes of evidentiary documentation." No transcript pages, however, were attached to defendant's petition. Regardless of that, submission of evidentiary documents is not sufficient to warrant a hearing unless the operative facts in those documents demonstrate the alleged constitutional violations. With the exception of one of his claims, defendant's petition, files, and record showed that he was not entitled to relief. First, those documents showed no prejudice from defendant's attorney's alleged failure to challenge the propriety of the traffic stop. Second, his argument to the trial court regarding the speedy trial issue was, essentially, that 215 days was more than 90 days, which failed to demonstrate ineffective assistance of counsel. The trial court responded with a detailed account of which delays tolled the time for trial and rendered the total days before trial the equivalent of 261 out of a possible 270 days allowed. Third, as pointed out above, any arguments regarding noncompliance with Section 2945.05 of the Ohio Revised Code were not remediable in postconviction relief proceedings, and any ineffectiveness of his attorney in the filing of his brief on direct appeal was also not properly raised in a postconviction relief proceeding. Defendant's argument concerning his attorney's allegedly allowing him to sign the waiver form without explaining the right he was waiving, however, was supported with documents containing sufficient operative facts which, if proven, would entitle him to relief. Defendant alleged the following in his petition/affidavit: In the case before the court, on October 5, 1993 the defendant was scheduled for jury trial, upon arriving in the court room it was empty the defendant's counsel [proceeded] to the back room and came out with a form in which the defendant signed and counsel returned the form to the back room and the defendant was returned to the county jail. The defendant is contending that the trial court record is devoid of any evidence that he had been advised of his right to trial by jury aside from a jury trial waiver form which the defendant had signed. * * * Counsel was ineffective when he allowed the defendant to sign the waiver form without informing the defendant to the right in which he was signing away * * *. * * * The defendant is contending that counsel was ineffective when he failed to inform the defendant of the right in which he was signing away, and there is no evidence in the record that the defendant had in fact been informed by trial counsel nor the trial judge. Thus making the signed waiver of jury trial invalid. The form, which was a combined continuance order and waiver of jury trial, read as follows: "By agreement of the parties, trial reset for 10-19-93 at 9:00 a.m. Defendant hereby waives his right to a trial by jury and requests that this matter be tried to the court." It was signed by the prosecutor, defense counsel, defendant, and the judge, and was filed October 6, 1993. An attorney's performance is ineffective only if it falls below an objective standard of reasonableness and results in prejudice to the defendant. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. To support a claim of ineffective assistance of counsel, a defendant must show that his attorney's performance was so deficient that he was deprived of a fair trial. State v. Brooks (1996), 75 Ohio St.3d 148, 157. An attorney's performance is deficient when he violates an essential duty to his client. State v. Bradley, supra, at 141. Defendant had a constitutional right to a trial by jury, guaranteed by theSixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. If his attorney did, in fact, present him with a jury waiver form and ask him to sign it, never having explained the significance of the waiver, his performance was deficient and prejudicial to the defendant, absent anything in the record to establish that the defendant understood the meaning of the waiver. Nothing in the record indicated that defendant was informed of, or questioned about, the significance of the waiver. The waiver statement itself, as defendant pointed out, did not expressly indicate that a single judge would decide his case, and this Court cannot conclude that the words "tried to the court" are commonly understood by laypersons to mean "decided by one judge." The State's response to the petition pointed to nothing in the record that demonstrated that defendant understood, or ever represented that he understood, the meaning of his waiver of a jury trial. Finally, the trial transcript contains no discussion whatsoever of the issue of a jury trial or the waiver thereof. The record is silent. It cannot be concluded, therefore, that, despite any alleged failure of his attorney to explain the waiver to him, there was no resulting prejudice. Defendant's detailed account of his attorney's failure to explain the consequences of the waiver, based on facts within his knowledge, sworn to by him and unrebutted by anything in the record, was sufficient to warrant an evidentiary hearing on his petition. See, e.g., State v. Smoot (July 18, 1997), Clark App. No. 96-CA-107, unreported, 1997 Ohio App. LEXIS 3426, at *8-11;State v. Archer (Nov. 3, 1997), Muskingum App. No. CT97-0007, unreported, 1997 Ohio App. LEXIS 5351, at *8; State v. Hoskins (Jan. 30, 1998), Clark App. No. 97 CA 39, unreported, 1998 Ohio App. LEXIS 228, at *6-11; and State v. Akers (Feb. 2, 1998), Lawrence App. No. 97 CA 22, unreported, 1998 Ohio App. LEXIS 555, at *11-14. This matter, therefore, is remanded for an evidentiary hearing on the issue of his attorney's alleged failure to adequately explain the consequences of defendant's waiver of his right to a trial by jury. Defendant's fourth assignment of error is sustained in part and overruled in part. III. Defendant's first three assignments of error are overruled, and his fourth assignment of error is sustained in part and overruled in part. The judgment of the trial court is affirmed in part and reversed in part, and this cause is remanded for further proceedings consistent with this opinion. Judgment affirmed in part, reversed in part,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 County of Lorain Common Pleas Court to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to both parties equally. Exceptions. _________________________________ CLAIR E. DICKINSON FOR THE COURT SLABY, P. J. CONCURS 1 In addition, defendant has asserted that his trial counsel's ineffectiveness also consisted of his waiver of opening argument at the suppression hearing, his participation in the introduction of false, fraudulent, or perjured testimony by the officer, and his failure to object to direct examination questions and to cross-examine the officer at the suppression hearing. They are all related to his basic argument, however, which is that the impropriety of the traffic stop should have prevented his convictions, and this Court's disposition of that argument also disposes of these related assertions. In addition, he has provided so little support for these assertions that they cannot be addressed separately. 2 This issue was subsequently settled for all of Ohio in 1996. The Ohio Supreme Court held that, "[w]here a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the Fourth Amendment to the United States Constitution * * *." Dayton v. Erickson (1996), 76 Ohio St.3d 3, syllabus. Neither does it violate the prohibition against unreasonable searches and seizures found in Section 14, Article I of the Ohio Constitution. Id. at 11. 3 This Court is not aware of any set of rules by that title. Based on his reproduction of the text of that rule in his brief, however, it appears that he has cited a rule from the Local Rules of the Franklin County Common Pleas Court, General Division. That rule is numbered 79.01, it was effective July 1, 1991, and its text is the same as that in defendant's brief. Furthermore, it can be found in an annual publication of various sets of Ohio court rules, entitled OhioRules of Court. Assuming, without concluding, that this rule would have required his signature for a valid, chargeable continuance in Franklin County, it did not apply to proceedings in the Lorain County Common Pleas Court. 4 Although defendant, in his petition to the trial court, also argued that his attorney was ineffective at trial by allowing him to sign the waiver form without adequately explaining the right he was waiving, and ineffective on appeal for not arguing that his waiver was invalid, defendant has not made any arguments concerning ineffectiveness of counsel to this Court under this assignment of error. At any rate, claims of ineffective appellate counsel are not cognizable in postconviction relief proceedings. See State v. Murnahan (1992), 63 Ohio St.3d 60, paragraph one of the syllabus.

2016-07-06 06:41:48.419149+00

JOURNAL ENTRY and OPINION Defendant-appellant Terry Barker appeals from the trial court's order of sentence upon him following appellant's convictions for abduction and possession of criminal tools. Appellant contends the trial court failed adequately to justify its decision to impose maximum terms of incarceration and to require the terms to be served consecutively. Having reviewed the record in light of appellant's contentions, this court disagrees. Appellant's sentence, therefore, is affirmed. Appellant's convictions result from an incident that occurred in the early morning hours of August 14, 2000. The victim, a twenty-year-old female college student, was returning to her Parma home after a visit to her boyfriend's residence in Euclid, Ohio. She utilized the local interstates, driving first on I-90, then south on I-71 to Ohio Route 176. She exited onto Brookpark Road, turned west, then, at the intersection of Broadview Road, turned south. As she traveled the nearly-deserted roadway, she noticed often in her vicinity a "red pickup truck"1 made by "Nissan" with a "white truck cap" and out-of-state license plates. The ubiquitousness of the vehicle near her at that hour heightened her awareness. The victim turned right onto Russell Avenue and parked on the street in front of her parents' house. As she did so, she saw the red truck pass her vehicle on the driver's side. She exited her vehicle, collecting from the seat a hairbrush she had meant to take with her into the house. She had just closed her vehicle's door when the red truck "pulled up next to [her] car." The truck now was facing Broadview Road; therefore, the driver must have turned his vehicle around in a nearby driveway. As the victim stood next to her vehicle, the driver of the truck, later identified as appellant, "opened up his door and started asking directions about how to get back to [I-]480, and with some quick movement he actually got out of his truck." Although nervous, the victim began to gesture in answer to appellant's query. Appellant suddenly "grabbed [her] arms and * * * threw [her] in his truck." When he touched her, the victim began to scream. The victim hit her head on the truck's door frame and landed on her back on the truck's front bench seat. Appellant scrambled to climb behind the wheel; however, the victim began to kick at him. Her foot connected solidly enough with appellant's chest to drive him backwards. The victim took advantage of this damage to appellant's equilibrium to "slid[e her] way back out" of his truck. As appellant struggled to push her back inside, the victim recalled the hairbrush she held. She struck at his head, causing appellant to "let [her] go." At that point, the victim managed to run toward her home; she observed appellant reenter his truck and speed away. She saw appellant's truck turn southbound onto Broadview, traveling away from the freeway. Since the victim's screams had awakened her mother, who immediately dialed 9-1-1, the Parma police officers soon were both arriving at the victim's home and, provided with the victim's descriptions, looking for the vehicle and her assailant.2 Approximately ten minutes after the incident had been reported, appellant and his truck were located in a Parma service station at the intersection of State and Pleasant Valley Roads. Upon the positive identification of him, appellant was arrested. An inventory of appellant's truck revealed several items in the front seat area, including a roll of duct tape, a utility knife, and an unused condom. Appellant subsequently was indicted on two counts, viz., abduction, R.C. 2905.02(A)(1), and possession of criminal tools, "to wit: a 1996 Nissan," R.C. 2923.24. Appellant's case proceeded to a jury trial. After hearing all the evidence, the jury found appellant guilty of both charges. The trial court referred appellant to the probation department for a presentence investigation and report before proceeding to sentence appellant. Appellant ultimately was sentenced to consecutive terms of incarceration of five years for the abduction conviction and one year for the conviction for possession of criminal tools. On appeal, appellant challenges only his sentence, presenting the following two assignments of error: I. THE TRIAL COURT ERRED BY IMPOSING THE MAXIMUM PRISON TERM FOR APPELLANT'S CONVICTION OF ABDUCTION AND POSSESSION OF CRIMINAL TOOLS BECAUSE THE RECORD DOES NOT SUPPORT THE SENTENCE AND THE SENTENCE IS CONTRARY TO LAW. II. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE PRISON SENTENCES FOR APPELLANT'S CONVICTION OF ABDUCTION AND POSSESSION (SIC) OF CRIMINAL TOOLS BECAUSE THE RECORD DOES NOT SUPPORT THE (SIC) SENTENCE. Appellant argues the trial court's imposition upon him for his convictions of both the maximum terms of incarceration and consecutive terms of incarceration is unwarranted in the record. Appellant further contends the trial court failed to comply with statutory requirements in imposing sentence. This court remains unpersuaded. In addressing whether a trial court properly may impose a maximum term of incarceration, this court recently stated as follows: R.C. 2929.14(C) specifies when a court may impose a maximum prison term: * * * The court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with (D)(2) of this section. [Emphasis deleted.] Thus, to impose the maximum sentence, there must be a finding on the record that the offender committed one of the worst forms of the offense or posed the greatest likelihood of recidivism. State v. Futrell (Nov. 10, 1999), Cuyahoga App. Nos. 75033, 75034, 75035, unreported. While the court need not use the exact language of the statute, it must be clear from the record that the trial court made the required findings. Id., State v. Assad (June 11, 1998), Cuyahoga App. No. 72648, unreported. State v. Hollander (July 5, 2001), Cuyahoga App. No. 78334, unreported. The trial court herein made the following relevant comments at appellant's sentencing hearing: Now because Mr. Barker has apparently served a prison term, he is not entitled to the presumption under 2929.14(B) that he receive the shortest prison term here. Even if it were found that he had previously served a prison term, I still would not be willing to give him the shortest prison term because I think it would under the facts of this case demean the seriousness of his conduct and it would not adequately protect the public from future crime by him. Now I'm referring when I make those findings on the very predatory nature, his conduct here at one o'clock in the morning driving around looking for a victim, finding a victim, using a friendly, innocent inquiry to an otherwise unsuspecting person in a residential neighborhood and then grabbing out for that person, using physical force throwing her into his enclosed compartment of his vehicle with, of course, these items — duct tape and razor blades and things that could so obviously be used to carry this from an abduction to a physical attack. The conduct here has a lot of things from the evidence, a very brazen quality to it. There are a lot of things to suggest this may well have been predatory (sic) to a serious sexual assault. I found the evidence very chilling and it's very predatory. The defendant's contention today for the first time that he did this while he was under the influence of LSD makes it even more frightening since LSD and other similar drugs deprive people of the ability to restrain and moderate their behavior and exercise self-control. * * *. [T]he fact that he's willing to attack a complete stranger in this bold and brazen way and then of course load himself up with mind-altering drugs totally supports the Court's conclusion that the shortest prison term does not adequately protect the public from his future crime. Now, in order for this Court under 2929.14(C) to impose the maximum prison term for either of these two offenses, one finding the Court would have to make would be that this offender committed the "worst form of the offense" but that's not the only finding provided in the statute that supports a maximum sentence.The other one is that the Court can impose the longest prison term upon offenders "who pose the greatest likelihood of committing future crimes." That's the finding I can make today based on all of the factors that I mentioned. (Emphasis added.) From the trial court's comments, it is clear it imposed the maximum terms on the basis not only that appellant committed the "worst form" of the offenses but that appellant's escalating criminal behavior, as evidenced by the presentence report, posed a high threat of recidivism. Since the trial court made the required findings, appellant's first assignment of error lacks merit and is overruled. State v. Edmonson (1999), 86 Ohio St. 3d 324 at 326-327; State v. Berry (June 14, 2001), Cuyahoga App. No. 78187, unreported; State v. Maynard (Mar. 16, 2000), Cuyahoga App. No. 75722, unreported; cf., State v. Maynard (July 12, 2001), Cuyahoga App. No. 78167, unreported; State v. Rowland (May 11, 2001), Hamilton App. No. C-000592, unreported. Similarly, although appellant, in his second assignment of error, argues the trial court's imposition of consecutive terms was improper, the record does not support his argument. Pursuant to R.C.2929.14(E)(4), the trial court may order consecutive sentences if it finds such service "is necessary to protect the public * * * and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct * * *." The court further must consider three other factors and, if any one of those factors applies, consecutive sentences are warranted. In this case, the trial court made both of the requisite findings as follows: The other consideration the Court has to look at, of course, is if it's going to impose one or more maximum prison sentences based on that finding, should they be served concurrently or consecutively, and there of course the guidance to the Court is under 2929.14(E)(4), * * *. I'm * * * drawn under the facts of this case to Subdivision B which is that the harm caused by the multiple offenses was so great or unusual no single prison term for any of the offenses committed as a part of a single course of conduct adequately reflects the seriousness. There I'm going back to these two offenses, the possession of these criminal tools kept ready at his hand there in the front seat of his vehicle and then of course the brazen and bold abduction and physical attack grabbing control of this young woman who was conveniently located as being someone close to his physical size that he could fairly overpower, so based on all of that and not based on the emotionality of this case even though there is plenty of that to go around but just going through the logical factors, * * * the fact that in listening to the evidence of what happened here I found it exceedingly serious and predatory on Mr. Barker's behalf, so it's the Court's conclusion that he should get a prison term, not a community sentence. He's not entitled to the shortest prison term. The appropriate findings do support maximum sentences and also that there is likewise support for consecutive sentences here. I've already said that I think consecutive sentences or, excuse me, it's necessary to protect the public from future crime by this individual and that of course supports a consecutive sentence. I think it's necessary to punish Mr. Barker and that supports a consecutive sentence. I don't think consecutive sentences here are disproportionate to the seriousness of his conduct taken as a whole or to the danger that he poses to the public, * * * (Emphasis added.) Based upon the trial court's compliance with statutory requirements and a review of the record, this court thus cannot clearly and convincingly find the trial court's order of sentence was improper. R.C.2953.08(G)(1)(b); State v. Maynard (Mar. 16, 2000), Cuyahoga App. No. 78167, unreported; State v. Hollander, supra; State v. Berry, supra; State v. Daniels (Apr. 26, 2001), Cuyahoga App. No. 77998, unreported; cf., State v. Givner (July 5, 2001), Cuyahoga App. No. 78625, unreported. For that reason, appellant's second assignment of error also is overruled. Appellant's convictions and sentences are affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN, J. and TERRENCE O'DONNELL, J. CONCUR 1 Quotes indicate testimony given by a witness at appellant's trial. 2 The record reflects appellant was "not much taller" than the victim and slight of build.

2016-07-06 06:41:41.6229+00

Hadley

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 530 Plaintiff-appellant, L H Leasing Company ("L H"), appeals from the judgment of the Common Pleas Court of Allen County awarding a verdict in favor of defendant-appellee, James Dutton ("Dutton"). James Gibson ("Gibson") financed his farming operation for 1987 by obtaining a farm line of credit through Mr. Ruff, an employee of Lakeview Bank. The farm line of credit enabled Gibson to purchase seed, fuel, fertilizer, chemicals, and crop insurance. It also enabled Gibson to rent additional land for farming and to lease the necessary farm equipment to operate his farm. Gibson then went to L H to lease the needed farm equipment. L H leased Gibson approximately $800,000 of farm equipment based on letters of guarantee Ruff gave to Roy Harvey ("Harvey"), the vice president and seventy-five-percent owner of L H. The lease payments were to be paid at the end of 1987. In 1987, Gibson farmed, in addition to his own land, around three hundred acres of land he rented from Dutton for $100 per acre. Gibson agreed to pay Dutton his rent after he sold his crops. However, before Gibson sold his crops and paid his creditors, Ruff embezzled the funds from Gibson's farm line of credit. When Gibson sold his crops and deposited the grain checks in his account, Lakeview Bank expropriated the money to reimburse itself. Therefore, Gibson could not pay his creditors including Dutton and L H. Dutton contacted Gibson several times for his rent money. Consequently, Gibson agreed to transfer part of the land he owned, free and clear, to satisfy the rent he owed to Dutton. In 1988, Gibson wanted to continue his farming operation but could not get the necessary financing due to the embezzlement of his 1987 farm line of credit by Ruff. Gibson then spoke with Dutton about financing his farming operation for 1988. Dutton agreed to finance Gibson's farming operation for 1988 with the conditions that Dutton would get crop liens on all acreage and would control how the money was spent. *Page 531 With Dutton agreeing to finance his farming operation, Gibson then spoke with Harvey regarding the use of the equipment he had leased from L H. Harvey agreed to let Gibson retain the equipment for 1988 on the condition that Gibson would give Harvey, not L H, a mortgage on his property for $130,000. Gibson agreed and a mortgage was filed naming Harvey as the mortgagee. Since Gibson could not obtain credit for seed, fertilizer, fuel or crop insurance because he had not paid the bills for 1987 due to the bank's action, Dutton and Harvey met on several occasions to discuss how to help Gibson keep his farming operation going for 1988. Therefore, Dutton and Harvey agreed that they would co-sign for the purchase of fertilizer and chemicals that Gibson needed for the farming operation. Gibson could not purchase crop insurance as he had not paid the premiums for 1987. Dutton and Harvey, individually, bought the crop insurance. Dutton purchased crop insurance on all the acres in Allen County, and Harvey, not L H, purchased crop insurance on the acres located in Auglaize County. During their discussions regarding Gibson's farming operation, both Dutton and Harvey agreed that any profit made would go to Gibson, alone. There was never a discussion between them as to what would happen if the farming operation lost money. During the planting season, Harvey paid the fuel expenses with the agreement that he would be reimbursed by Dutton when the wheat crop was sold. Harvey would also be reimbursed for the cost of the crop insurance when the wheat was sold. Consequently, Dutton paid Harvey $4,750 when the wheat was sold on July 2, 1988, which was the amount Harvey paid for the fuel and crop insurance. For some unknown reason, Harvey also paid other bills for Gibson without Dutton's knowledge. Gibson himself repaid Harvey for these bills by giving Harvey surplus corn seed and a motorcycle to sell without ever asking Dutton to pay these bills from his farm account. Due to a severe lack of rainfall, the yield per acre was not as projected and lower than normal. Since the farming operation lost money, Dutton could not pay all the creditors. Therefore, the lease payments due to L H for the equipment were not paid from the farm account. Dutton, however, did pay himself $85,000 land rent for six hundred forty acres and a fee for financing Gibson's farming operation. Dutton did not make any payments towards the lease agreement, as he thought Gibson and Harvey had a separate agreement regarding payment to L H. Because Gibson did not have the money to pay L H for the lease payments on the equipment, L H then repossessed equipment for nonpayment under the lease agreement. *Page 532 In October 1989, Gibson filed for bankruptcy and was subsequently released of his obligations. However, Harvey did obtain a consent judgment from Gibson for the amount of the lease payments for 1988 after Gibson had filed for bankruptcy. As Harvey was unable to collect the lease payments from Gibson, he tried to collect part of the amount due and owing from Dutton. Upon Dutton's refusal, L H filed a lawsuit against Dutton in the Common Pleas Court of Allen County on August 28, 1990, claiming that L H and Dutton had entered into an oral joint venture to maintain Gibson's farming operation and in the alternative that Dutton was unjustly enriched by Gibson's use of L H's equipment on his land. After a bench trial, the trial court awarded judgment in favor of Dutton. L H timely appeals from the trial court's judgment, asserting the following two assignments of error. ASSIGNMENT OF ERROR NO. I "The trial court erred in failing to find the existence of an implied or expressed oral joint venture based on the facts of the case." L H asserts that the facts adduced at trial were sufficient to establish a joint venture agreement between Dutton and L H to assist Gibson in his farming operation for the year 1988. A joint venture is an association of persons with intent, whether express or implied, to engage in and carry out a single business venture for joint profit, for which they combine their efforts, property, money, skill and knowledge without creating a partnership. Ford v. McCue (1955), 163 Ohio St. 498, 56 O.O. 410, 127 N.E.2d 209. A joint venture need not be established by showing an express agreement, but may be implied or inferred, in whole or in part, from the acts and conduct of the parties.Bennett v. Sinclair Refining Co. (1944), 144 Ohio St. 139, 151,57 N.E.2d 776, 782. Where the existence of the relationship of joint venture is at issue, there needs to be substantial evidence that the parties intended to join their efforts to further an enterprise for their joint profit and the question is one of fact for the trier of fact. Id. Ford v. McCue sets forth four requirements necessary for finding that a joint venture existed between the parties. The first requirement is a joint contract. A joint contract can be express or implied by the parties. The second requirement is an intention to associate themselves as joint venturers. *Page 533 The parties must have actually intended to become joint venturers. The third requirement is a community of interest and joint control. This gives the joint venturers the right to direct or the authority to control the purpose of the joint venture. The fourth requirement is an agreement for the division of the profit and loss. Between the joint venturers there must be a sharing of the profits and the losses jointly, not severally. L H asserts that the trial court misapplied the law when it failed to find an existence of a joint venture between Dutton and Harvey because of the definition of "profits" applied by the court. Ford v. McCue states the chief characteristic of a joint venture is a profit jointly sought and the profit must be joint and not several. Ford v. McCue, supra, 163 Ohio St. at 503, 56 O.O. at 412, 127 N.E.2d at 213. Dutton and Harvey both testified that any profit would belong to Gibson only. Neither Dutton nor Harvey would receive any profit from Gibson's farming operation. Dutton and Harvey both testified that they wanted to help Gibson maintain his farming operation for one more year. Dutton or Harvey never intended to make a profit from Gibson's farming operation for 1988. Their only concern was that Gibson maintain his farm. Dutton and Harvey did not discuss any financial arrangements regarding Gibson's farming operation. Harvey asserts that although any profit would go to Gibson, the loss should be divided between Dutton and Harvey. This argument is without merit. Ford v. McCue states that the losses from a joint venture are to be shared equally or in the same manner the profits are shared between the joint venturers. Whereas there was agreement that Harvey and Dutton would not share in any profit, they would not share the loss. Harvey argues that the trial court did not apply the correct definition of "profits" to a joint venture. "Profit" is defined as the gain realized from business or investment over and above expenditures. Black's Law Dictionary (6 Ed. 1990) 1211. Whereas Gibson's farm lost money in 1988, there was no profit above the expenditures. Since the sharing of profits and losses is an essential element in finding that a joint venture existed, whether expressed or implied, and the uncontroverted testimony by Dutton and Harvey was that they intended that any profit would belong to Gibson, the trial court did not err in holding that Dutton's and L H's actions were not legally sufficient to create a joint venture; the definition of "profit" applied by the trial court was not in error. Therefore, L H's first assignment of error is overruled. *Page 534 ASSIGNMENT OF ERROR NO. II "The trial court erred in failing to find unjust enrichment flowing to the defendant from the plaintiff as a result of the use of the farm equipment." L H argues that Dutton was unjustly enriched by Gibson's use of L H's equipment on Dutton's land and, therefore, Dutton owes L H the reasonable value of the use of the equipment. In Hummel v. Hummel (1938), 133 Ohio St. 520, 525, 11 O.O. 221, 223, 14 N.E.2d 923, 925, the court stated that liability in quasi-contract arises out of an obligation cast by law upon a person in receipt of benefits which he is not justly entitled to keep. In Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 12 OBR 246, 465 N.E.2d 1298, the court adopted the criteria as set forth by the appellate court as to recovery under a theory of quasi-contract. The three criteria for recovery under the theory of quasi-contract are: "`(1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment * * *.'" Id. at 183, 12 OBR at 250, 465 N.E.2d at 1302. Applying the above criteria to the facts, it is apparent that the third criterion has not been satisfied. Gibson did the fall plowing on Dutton's land after harvesting his crops. The plowing done to Dutton's land by Gibson was to settle a debt Gibson owed to Dutton. Therefore, Dutton did not retain a benefit without compensation. Whereas L H has failed to establish that Gibson's use of the equipment on Dutton's land meets the criterion above, L H's second assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. SHAW and THOMAS F. BRYANT, JJ., concur. *Page 535

2016-07-06 06:41:42.080029+00

Young

Angel G. Lewis is appealing the decision of the Common Pleas Court of Greene County, Ohio, to dismiss her appeal, pursuant to R.C. 2506.01, from a decision of the City of Fairborn Personnel Advisory Board. The board had held, without a hearing, that it did not have jurisdiction over Lewis's appeal to it from her *Page 603 termination as community service coordinator for the Fairborn Municipal Court because she was an "unclassified" employee. The trial court dismissed Lewis's appeal on the ground that she could prove no set of facts in support of her claim. Civ.R. 12(B)(6). It is undisputed that Lewis was terminated from her position as community service coordinator in the Fairborn Municipal Court when a new municipal judge took office. The Fairborn City Charter provides that "the unclassified service shall include * * * court clerks, bailiffs, and such officers and employees of the municipal court as it is found it impracticable [sic] to determine their fitness by competitive examination in accordance with the provisions of the Personnel Rules and Regulations." (Emphasis supplied.) Section 4.02(c)(I.)(c). Unlike a companion case,1 where the employee was a deputy clerk of courts and so directly named in the charter, Lewis is not holding a position already determined by the voters of Fairborn to be in the unclassified service (such as a clerk of courts), but rather holds a position in the employ of the Fairborn Municipal Court which has yet to be determined by the proper authorities to be either classified or unclassified. It is undisputed that the board acted without a hearing to refuse Lewis's appeal from her termination. The minutes of the January 16, 1996 meeting on the subject in question state: "The next item discussed was the submitted appeals of five municipal court employees who lost their jobs when the new judge was elected. These employees had requested that the PAB hear their appeal on their terminations. A letter of opinion was given to them by Rose Trout from Gerald Schlafman, City Solicitor, stating that municipal court employees were unclassified employees according to our City Charter and were thus not entitled to an appeal to the PAB. The PAB agreed with the opinion of the city Solicitor and the five grievances were denied an appeal hearing." The city attorney had advised the board by memorandum dated January 9, 1996, that all five of these were "employees at will" since they "were hired by the court without testing and may be fired by the court without cause." Lewis was never given the opportunity to appear before the board and to be heard in person or through her attorney. She filed an appeal pursuant to R.C. Chapter 2506 to the court of common pleas, which, after receiving briefs from both parties, dismissed her appeal, without a hearing, on the grounds that she could prove no set of facts in support of her claim. *Page 604 R.C. 2506.03 specifically provides that if the appellant was not permitted to appear at the administrative level and be heard in person or by her attorney and allowed to present arguments, offer and examine witnesses or present evidence, and do all such other things as are customarily allowed in a hearing at law, the court "shall hear the appeal upon the transcript and such additional evidence as may be introduced by the party." R.C.2506.03. It is obvious that the board had no evidence before it in making its decision. A letter from the city attorney is not evidence. And since the board did not hold a hearing of any kind, appellant Lewis is obviously entitled to a hearing pursuant to the provisions of R.C. 2506.03 before the court of common pleas on her appeal from the unsupported (except by advice of counsel) and conclusionary decision of the board. Appellant Lewis's claimed error is that the trial court erred in granting appellant's motion to dismiss without an evidentiary hearing, and we sustain this assignment. The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. We point out that we make no judgment on the merits of the issue, that is, whether Lewis is a member of the classified or the unclassified civil service in the city of Fairborn. Judgment reversedand cause remanded. WOLFF and GRADY, JJ., concur. 1 Hart v. Fairborn (1996), 116 Ohio App.3d 604,688 N.E.2d 1084, decided this same date.

2016-07-06 06:41:42.20309+00

Wiseman

Appeals have been taken on questions of law from a judgment of the Common Peas Court of Clark County. The two appeals are in companion cases, and one opinion will suffice. The defendants were indicted for a violation of Section2907.21, Revised Code (larceny by trick), and, to the indictments, filed similar pleas in abatement. The court, for the purpose of disposing of the pleas, treated the matter as if demurrers had been filed. The court overruled the pleas. In the action against Tressie Roberts and John T. Roberts a motion to dismiss was filed, which was grounded on the claimed application of the "three-term" rule in Section 2945.72, Revised Code. The motion to dismiss was overruled. From the orders overruling the pleas in abatement and overruling the motion to dismiss, these appeals were taken. The overruling of a plea in abatement is not a final order from which an appeal may be prosecuted. Bogard v. State, 9 Ohio Law Abs., 436; Whitlock v. State, 21 Ohio Law Abs., 393 (appeal dismissed by Supreme Court, State v. Whitelock, *Page 31 131 Ohio St. 332, 2 N.E.2d 777); State v. James, 33 Ohio Law Abs., 256 (appeal to Court of Appeals dismissed); 2 Ohio Jurisprudence (2d), 624, Section 50. Section 2953.02, Revised Code, which provides for a review of "judgment or final order" in a criminal case, and Section2953.04, Revised Code, which prescribes the procedure to be followed in a review of a judgment or order in a criminal case, contemplate such final orders only as are defined in Section2505.02, Revised Code. State v. Feeser, 27 Ohio Law Abs., 306;State v. Miller, 96 Ohio App. 216, 121 N.E.2d 660 (appeal dismissed by Supreme Court, 161 Ohio St. 467,119 N.E.2d 618). Section 2505.02, Revised Code (Section 12223-2, General Code), in part provides: "An order affecting a substantial right in an action which in effect determines the action and prevents a judgment * * * is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial." In determining whether the orders appealed from are appealable orders, two criteria are involved: (1) The order must affect a substantial right, and (2) it must determine the action and prevent a judgment in favor of the party seeking review. A "substantial right" is a "legal right" within the meaning of this section. The rulings of the trial court on the pleas in abatement did not determine the action or prevent a judgment. The same principle of law is applicable to the appeal in No. 546 with respect to the right of appeal from an order overruling the motion to dismiss. In Hall v. Kroger Grocery Baking Co.,64 Ohio App. 561, 29 N.E.2d 57, in a civil action, this court held that: "An order of a trial court overruling a motion to dismiss a petition does not determine the action or prevent final judgment and is not a reviewable final order." See 2 Ohio Jurisprudence (2d), 631, Section 56. Inasmuch as Section 2505.02, Revised Code, is applicable to appeals in criminal cases, as well as civil cases, the same test would be applied as in civil matters. The appeals not being taken from an appealable order, it *Page 32 will be unnecessary to pass on the questions raised by the pleas in abatement and the motion to dismiss. This court sua sponte dismisses the appeals. Appeals dismissed. HORNBECK, P. J., and CRAWFORD, J., concur.

2016-07-06 06:41:46.009566+00

Smart

This is an appeal from the New Philadelphia Municipal Court judgment entered in favor of defendant-appellee, Hospital Care Corporation ("HCC"), against plaintiff-appellant, Margaret A. Goshorn ("appellant"), dismissing the complaint with prejudice. Appellant assigns two errors: Assignment of Error No. I "The trial court erred in ruling the plaintiff-appellant's congenital mitral valve condition, that first became manifest after the effective date of her insurance contract, was a pre-existing condition excluded under the contract." Assignment of Error No. II "The trial court erred in not ruling the contract was so worded as to mislead or deceive the plaintiff-appellant and members of the general public concerning coverage." Appellant had purchased a hospital care contract from HCC effective May 1, 1983. This was a Blue Cross contract, similar to health insurance, but subject to different regulations.1 Appellant was admitted to Huron Road Hospital on May 17, 1983, and discharged on May 18, 1983. She was diagnosed and treated for a prolapse of the posterior leaflet of the mitral valve, which was shown to be a congenital condition. Appellant had no previous knowledge of this condition, and the symptoms first became manifest at the time of this hospitalization.2 *Page 48 HCC denied coverage of medical expenses for this condition claiming that because appellant's congenital condition existed from birth, it was excluded from coverage by the pre-existing condition provision of the contract. I The provision under which HCC denied coverage appears under the heading "Situations in which no benefits will be provided" and reads: "Pre-existing conditions — A pre-existing condition (including maternity) which exists on the effective date of this coverage. We will not pay the expenses for a pre-existing condition which are incurred during the first 12 months of this coverage." Appellant contends that in order to give reasonable effect to this provision, a condition must be considered to exist when it first becomes manifest by symptoms, that is, when the sufferer knows or becomes aware of the condition. HCC urges that to do so would be to disregard the clear meaning and introduce unintended terms into the provision. This conflict can be resolved by looking to the purpose of insurance contracts, and of this type of exclusion provision. The HCC contract is similar to insurance in that it serves to pool the funds (premiums) and distribute risk among the subscribers. By a system of shared risk, an individual subscriber is protected from the expense of unanticipated loss (illness or injury), i.e., protected from the unknown. Implicit in this system is the understanding that the pool (HCC) should be able to insulate itself from known expenses. This is accomplished by means of exclusionary provisions. The purpose of the contract provision, from the perspective of the subscriber, is to provide notice that certain expenses will not be covered. This notice fails if the provision is construed so as to exclude an unknown condition, i.e., one which has not manifested symptoms. Where a policy of insurance prepared by an insurer provides generally for certain coverage, exclusions from such coverage must be expressly provided for or must arise by necessary implication from the words used in the policy. Butche v. OhioCas. Ins. Co. (1962), 174 Ohio St. 144, 21 O.O. 2d 418,187 N.E.2d 20. By the foregoing reasoning, a congenital condition without manifest symptoms would not be excluded by necessary implication from the words of the provision. To hold that the words of the HCC contract could exclude coverage for a treatment of a condition that appellant did not know of and could not possibly have foreseen would be to stretch the meaning of that language to defeat the fundamental purpose of the contract. We hold that the pre-existing condition exclusion in the HCC contract did not apply to appellant's congenital condition. The mitral valve prolapse existed as an anatomical peculiarity from birth, but did not exist as a medical condition until appellant's hospital admission, May 17, 1983. The first assignment of error is sustained. II The second assignment of error presents the question whether the pre-existing condition provision of the hospital care contract was drafted with purpose to mislead or deceive a subscriber, in violation of R.C. 3901.19 through 3901.21. We find that this question was not specifically ruled upon by the trial court and, therefore, is not properly before this court for review. *Page 49 The second assignment of error is overruled. Having sustained the first assignment of error, we reverse the judgment of the trial court and remand to that court for further proceedings consistent with this opinion. Judgment reversed and cause remanded. PUTMAN, P.J., and HOFFMAN, J., concur. 1 HCC is organized as a hospital care association, pursuant to former R.C. 1739.01 et seq. R.C. 1739.02 specifically exempted hospital care associations from certain insurance laws, including R.C. 3923.04(B)(2) which requires standard language that would have resolved this issue in favor of appellant. The statutes establishing hospital care associations were repealed effective October 1, 1987 (see 142 Ohio Laws, Part I, 330, 398-399) to the effect that all such contracts are now subject to the insurance regulations. 2 Although appellant had been examined and treated for chest pains by a heart specialist shortly before the effective date of the policy, April 21, 1983, the trial court found the examination and treatment were directed to a complaint other than that which served as the basis for her hospitalization. This finding was supported by the evidence of record, and her prior treatment will not be included in our consideration.

2016-07-06 06:41:46.279487+00

DECISION. {¶ 1} Defendant-appellant Steven Mitchell appeals his convictions for trafficking in cocaine and possession of cocaine. After a bench trial, the trial court found Mitchell guilty and sentenced him to three years of community control. We affirm. I. Crack in the Garbage {¶ 2} The state presented the testimony of two Cincinnati police officers. Officer Jason Bolte testified that at about 4:00 a.m., on August 12, 2004, he and his partner, Officer James Davis, were observing the northeast corner of East Clifton and Antique. The corner was in a high-drug area. Bolte watched as Mitchell stood on the corner for about 15 minutes. Mitchell then waved at a taxicab as it drove by, and the taxicab pulled to the curb. Bolte watched as Mitchell walked over to a metal garbage can and pulled out a small object. Mitchell then walked over to the cab. {¶ 3} Bolte testified that the person sitting in the back of the cab reached out and exchanged something with Mitchell. Bolte observed as Mitchell placed an object in his left jacket pocket, walked back to the garbage can, and placed the object back in the can. Officer Davis testified to the same events. {¶ 4} Bolte and Davis called for another police officer to stop Mitchell and handcuff him. Officer Davis testified that he then went to the garbage can and found a baggie of what was later identified as crack cocaine. {¶ 5} Officer Bolte read Mitchell his Miranda rights and searched him. Bolte found $44 in Mitchell's left jacket pocket. Upon questioning, Mitchell stated that he had just walked out of his house and was heading to a nearby track to go jogging. He denied that he was involved in a drug transaction. {¶ 6} Officer Bolte further testified that Rothenberg Elementary School was directly across the street from where the drug transaction took place. {¶ 7} Mitchell testified in his own defense. Mitchell testified that, on the night in question, he was at the Argosy Casino from 7:00 p.m. until 3:00 a.m. After leaving the casino, he drove straight home, which took about 30 minutes. {¶ 8} Mitchell testified that he then changed his clothes and headed out to go jogging at the elementary school. Mitchell testified that his residence was about a three-minute walk from the elementary school. According to Mitchell, he walked to the elementary school and ran for about an hour. After jogging, he began walking home, but the police stopped and arrested him. Mitchell denied ever being involved in a drug deal. II. Sufficiency and Manifest Weight {¶ 9} On appeal, Mitchell argues that his convictions were not supported by sufficient evidence, and that they were against the manifest weight of the evidence. {¶ 10} In criminal cases, the legal concepts of sufficiency of the evidence and weight of the evidence are distinct.1 A challenge to the sufficiency of the evidence attacks the adequacy of the evidence presented. Whether the evidence is legally sufficient to sustain a conviction is a question of law.2 The relevant inquiry in a claim of insufficiency is whether any rational factfinder, viewing the evidence in a light most favorable to the state, could have found the essential elements of the crime proved beyond a reasonable doubt.3 {¶ 11} A challenge to the weight of the evidence attacks the credibility of the evidence presented.4 When evaluating a claim that a conviction was contrary to the manifest weight of the evidence, we 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.5 The discretionary power to reverse should be invoked only in exceptional cases "where the evidence weighs heavily against the conviction."6 {¶ 12} Mitchell was convicted of trafficking in cocaine and possession of cocaine. The statute for trafficking states, "No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person."7 The statute for possession states, "No person shall knowingly obtain, possess, or use a controlled substance."8 {¶ 13} The state presented the testimony of two police officers who watched as Mitchell stood on a street corner at 4:00 a.m. for at least five minutes before waving down a passing taxicab. Both officers testified that Mitchell walked to a nearby garbage can, took out an object, walked over to the taxicab, and then exchanged something with the passenger in the cab. Both officers observed that Mitchell then put something in his left jacket pocket and returned the item to the garbage can. Mitchell was found to have $44 in his jacket pocket, and the garbage can had a baggie of crack cocaine in it. {¶ 14} We conclude that a rational factfinder, viewing the evidence in a light most favorable to the state, could have found beyond a reasonable doubt that Mitchell had trafficked in cocaine and had possessed cocaine. Though Mitchell offered a different version of the facts, we also conclude that the trier of fact did not lose its way, and that Mitchell's convictions were not against the manifest weight of the evidence. {¶ 15} Therefore, we overrule Mitchell's assignment of error and affirm the trial court's judgment. Judgment affirmed. Hildebrandt, P.J., and Gorman, J., concur. 1 See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. 2 Id. 3 See State v. Jenks (1991), 61 Ohio St.3d 259,574 N.E.2d 492, paragraph two of the syllabus. 4 See State v. Thompkins, supra, at 387. 5 See id.; State v. Martin (1983), 20 Ohio App.3d 172, 175,485 N.E.2d 717. 6 See State v. Martin, supra. 7 R.C. 2925.03(A)(2). 8 R.C. 2925.11(A).

2016-11-02 19:17:57.615988+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=14923&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa09%5cOpinion

In The Court of Appeals Ninth District of Texas at Beaumont ___________________ NO. 09-15-00160-CR ___________________ BEATRIZ NOYOLA-NAVARRO, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________________________________ On Appeal from the County Court at Law No. 5 Montgomery County, Texas Trial Cause No. 13-286349 __________________________________________________________________ MEMORANDUM OPINION Beatriz Noyola-Navarro appeals her conviction for driving while intoxicated, a class B misdemeanor. Tex. Penal Code Ann. § 49.04(a), (b) (West Supp. 2016).1 Before trial, Noyola-Navarro filed a motion to suppress evidence, claiming that no probable cause existed to warrant the police stopping her car, which resulted in her arrest for driving while intoxicated. The trial court denied 1 We cite the current version of the Texas Penal Code, as any amendments to the provisions at issue do not affect the outcome of this appeal. 1 Noyola-Navarro’s motion to suppress. Based on her plea agreement with the State, the trial court, immediately after ruling on the motion to suppress, proceeded to hear Noyola-Navarro’s plea. In accordance with Noyola-Navarro’s plea-bargain agreement with the State, she pled guilty to driving while intoxicated, and the court sentenced her to three days in the Montgomery County Jail, imposed a $1,000 fine, and ordered that Noyola-Navarro pay court costs. Subsequently, the trial court certified that Noyola-Navarro’s case was a plea-bargain case and gave Noyola- Navarro the right to appeal only as to matters “raised by written motion filed and rule[d] on before trial and not withdrawn or waived[.]” See Tex. Code Crim. Proc. Ann. art. 44.02 (West 2006); Tex. R. App. P. 25.2(a)(2). The clerk’s record includes a copy of the trial court’s certification regarding Noyola-Navarro’s right to appeal. On appeal, Noyola-Navarro presents two issues challenging the voluntariness of her plea and the sufficiency of the evidence to support her conviction. However, in her appeal, Noyola-Navarro does not raise any issues that argue the trial court should have granted her motion to suppress. Significantly, the trial court’s certification regarding Noyola-Navarro’s right to appeal did not allow Noyola-Navarro to raise issues beyond the scope of the matters the trial court certified for appeal, and the two issues that Noyola-Navarro argues in her brief are 2 wholly unrelated to her motion to suppress, which was the only pretrial motion that she filed. Section 44.02 of the Texas Code of Criminal Procedure authorizes trial courts to restrict a defendant’s right to appeal to those matters raised in pretrial motions on which the defendant secures a ruling. See Tex. Code Crim. Proc. Ann. art. 44.02. Because the trial court did not authorize Noyola-Navarro to appeal the matters she challenges in the two issues she raises in her brief and she did not secure a ruling prior to trial on them, the two issues on which she seeks our review were not properly preserved for review. See Goyzueta v. State, 266 S.W.3d 126 , 136 (Tex. App.―Fort Worth 2008, no pet.).We overrule issues one and two, and we affirm the trial court’s judgment. AFFIRMED. ______________________________ HOLLIS HORTON Justice Submitted on February 1, 2016 Opinion Delivered November 2, 2016 Do Not Publish Before Kreger, Horton, and Johnson, JJ. 3

2016-07-06 06:41:44.382126+00

McCormac

On July 6, 1984, Hamilton-Surgical Care, Inc. filed an application for a Certificate of Need ("CON") to build an ambulatory surgery facility to be known as Cincinnati Ambulatory Surgery Center ("CASC") with the State Health Planning and Development Agency ("SHPDA"), now known as the Ohio Department of Health ("ODH"). On September 21, 1984, SHPDA declared the application complete. The application stated that the project site was to be located at 3234 Jefferson Avenue, Cincinnati, Ohio 45220. Written notification to the public and affected persons was provided on October 5, 1984. Once an application is complete, SHPDA reviews it to determine whether to approve or disapprove the application. Ohio Adm. Code *Page 3 3701-12-09. Ohio Adm. Code 3701-12-30 provides SHPDA with the criteria to be utilized when reviewing CON applications for ambulatory surgical facilities. On December 12, 1985, the applicant notified SHPDA that it had selected a new site that would be located in the 45230 zip code area. On February 7, 1986, SHPDA granted the CON to CASC upon the condition that CASC provide SHPDA with an exact site location within sixty days. On April 1, 1986, CASC provided the exact site: "`Our Anderson Township facility will be located on a parcel of land located between Nimitzview Drive and Five Mile Road, containing approximately one acre. Said premises is located south of the office development known as Admiral's Walk.'" (Letter from Joseph J. Frank of Surgical Care Affiliates to Louis Pomerantz, Chief of the Office of Resources Development of ODH, March 31, 1986.) This location is approximately one mile from Our Lady of Mercy Hospital ("OLMH"). On April 8, 1986, Pomerantz, Chief of the Office of Resources Development of ODH, wrote a letter to CASC stating that CASC had complied with the condition of approval. On April 10, 1986, OLMH requested SHPDA to reconsider its decision to grant the CON. SHPDA dismissed the request on the grounds that it had rendered its final decision on February 7, 1986, and that reconsideration requests needed to be made within thirty days pursuant to former Ohio Adm. Code 3701-12-15(A), now Ohio Adm. Code 3701-12-15(B). On May 8, 1986, OLMH appealed SHPDA's dismissal to the Certificate of Need Review Board ("CONRB") and requested an adjudication hearing. A CONRB hearing examiner found that the CON should not have been granted until an exact site was provided; that CONRB did have jurisdiction to hear the case; and that the hearing was qualified de novo. The hearing examiner considered all relevant evidence up to the time of the hearing. The hearing examiner found an excess of need in the pertinent health service area. On October 5, 1987, the board found that Ohio Adm. Code 3701-12-30(A) prohibits SHPDA from approving applications for new ambulatory surgery facilities unless a need exists. CONRB adopted the findings of fact and conclusions of law of the hearing examiner and reversed SHPDA's decision to grant the CON to CASC. CASC appealed CONRB's decision to the Court of Common Pleas of Franklin County, asserting that CONRB did not have jurisdiction to consider the appeal of OLMH because OLMH had not requested an adjudication hearing in time. OLMH intervened in this proceeding and joined CONRB as an appellee. *Page 4 Based upon its reading of Ohio Adm. Code 3702-2-03(B), the court determined that the February 7, 1986 decision of SHPDA was an appealable decision and that the thirty-day time period for requesting an adjudication hearing began running at that time. Because OLMH did not request an adjudication hearing within thirty days of February 7, the court reversed the decision of CONRB, holding that it lacked subject matter jurisdiction. Appellant, OLMH, asserts the following two assignments of error: "I. The decision of ODH was final on April 8, 1986. That decision was appealable to the board. "II. If the conditional approval is determined to be the final order, then thereafter the change in the site of the project rendered the Certificate of Need invalid." Appellant reasons that an application for an ambulatory surgical center cannot be properly ruled complete without a specific site location, and that there can be no valid final approval of a CON until it is complete. No statute or administrative rule defines how specific a site location must be before a CON application may be deemed complete and subsequently approved. This court has held that the definition of "site" and its application to a particular case are left to the discretion of CONRB, the trier of fact. In reAkron Ambulatory Surgical Ctr. (Apr. 11, 1985), Franklin App. No. 84AP-581, unreported, 1985 WL 10240. In Akron, the disputed application provided a site location of "Market Street in Fairlawn, Ohio." The CONRB hearing examiner determined that this statement of site was insufficient for approval. The examiner based his decision on pertinent statutes and regulations. Former R.C. 3702.55(C) was one of the statutes; it provided that a CON became inoperative if the site of the proposed facility were changed from that identified in the approved application. The examiner reasoned that, unless the site were specifically identified in the application, this statute would be, in our characterization, nothing more than a paper tiger. Former R.C. 3702.55 is not the only regulation which supports the examiner's determination in Akron. Ohio Adm. Code3701-12-30(B) contains language which indicates that a site location must be more specific than an area code: "(B) Availability/accessibility. "* * * "(3) Each applicant shall include with the application a map delineating at least the following: "(a) The `proposed primary service area,' which shall be the area within thirty minutes travel time of the proposed ASF, and the `proposed secondary *Page 5 service area,' which shall be the area within sixty minutes travel time of the proposed ASF, both to be shown by zip codes; "* * * "(5) Each applicant shall document that the proposed location will meet local zoning requirements." In order for these two provisions to have substance, the location needs to be a more specifically defined area: the thirty-minute travel time requirement would be difficult to apply to two zip code areas; zoning requirements are not uniform throughout a zip code area. Ohio Adm. Code 3701-12-07 lends additional support to the position that a site location which only identifies the zip code area is insufficient. Subsection (C) sets forth the notice of intent requirements for a construction project: "* * * The notice of intent shall contain the following information: "(1) Name of sponsoring organization; "(2) Name of [proposed] facility; "(3) Location of project (address, city, county); "* * *" The legislature's indication that the letter of intent of a proposed project should identify the address, city, and county of the proposed project leads to the conclusion that the legislature would expect an equally detailed location in the application for a CON. The letter of intent precedes the application in the procedure for acquiring a CON. Logically, the location at the later stage should be as detailed, if not more detailed, than the location at the earlier stage. Appellees, ODH/SHPDA and CASC, have disputed OLMH's argument that the April 4, 1986 letter acknowledging receipt of the specific site designation was the final decision, arguing that the February 7, 1986 letter was a valid final appealable decision. Both appellees contend that the conditional approval did not prevent the February 7 letter from being a proper final decision, even if the order were erroneous because of the failure to define specifically the site. Appellee, ODH/SHPDA, attached to its brief other SHPDA final decisions which contained conditions and were proper final decisions. However, the attached decisions do not require or support a finding that the conditional approval in the present case was a proper final decision. None of the examples of conditional CON grants involve conditions concerning site location. Rather, they involve the reclassification of beds and the number of beds in a facility. ODH also quoted SHPDA's decision which denied OLMH's request for reconsideration. The quote included the observation that "in some instances, a condition cannot be met until a facility/program is operational." *Page 6 While that statement is true, it is inapplicable to this situation. The location of a project is not the subject of a condition that cannot be met until after completion. In fact, the site location must be ascertained before the project can be started. Appellees also assert that the April 8 letter cannot be a final decision because the Director of ODH did not sign it. Instead, Louis Pomerantz signed the letter. Appellees argue that absent an express delegation of authority to make an ultimate decision, the Director of ODH's signature is necessary for a final decision. This argument ignores practicalities. The director's signature is not always required for a letter to constitute a final decision. Appellant supplies an Ohio Supreme Court case which acknowledges the practicalities of operating public administrative bodies, such as ODH/SHPDA, "[i]n the operation of any public administrative body, subdelegation of authority, impliedly or expressly, exists — and must exist to some degree." (Emphasis added.) Bell v. Bd. of Trustees ofLawrence Cty. Gen. Hosp. (1973), 34 Ohio St.2d 70, 74, 63 O.O.2d 115, 117, 296 N.E.2d 276, 278. The Office of Resources Development handled the CON application process; the signature of the chief did not prevent the April 8 letter from being a final decision. Our decision in Akron, supra, reveals a final reason for finding that the site location at issue in this case required a specific location to permit SHPDA to grant final approval of the application. We held that the trier of the fact has the discretion to decide in a case-by-case situation how specific a site location must be. In this case, the hearing examiner personally drove through the zip code area after discussing it with the attorneys. In light of his firsthand view of the area, combined with the Akron decision of CONRB, the examiner concluded that the proposed site needed to be designated in the CON application. Thus, not only does the statutory language support the conclusion that the zip code was insufficient for a CON application to be approved, but the trier of fact's personal observation also supports this finding. If we were to hold that a very general site location could provide the basis for issuance of a CON conditioned upon later specific identification of the site, with no right to appeal from the time that the site was specified, much of the CON application and review process would be rendered impotent. Arguably, an applicant could designate the city of Cincinnati with the specific location to be designated later. Other hospitals would not know whether or not they were vitally affected. It makes a very significant difference whether the competitor hospital is located one mile away or ten miles away. This difference also applies to the determination of whether there is a need for a facility at that location. Public hearings are only meaningful if there is a reasonably *Page 7 specific site location. A zip code number was found to be not specific enough. This is a finding well within the discretion of CONRB. Once this finding was made, it was demonstrated that the order of February 7, 1986 was so lacking in an essential element that the order was not final. While an appeal from the February 7 order may also have been utilized to arrive at this conclusion, the availability of that remedy did not preclude an appeal of the order supplying the missing essential element. OLMH's reconsideration request was, therefore, timely because OLMH presented it to SHPDA within thirty days of the mailing of the SHPDA letter which acknowledged the exact site location and was a proper final decision by SHPDA to approve the CON application of CASC. OLMH's request for an adjudication hearing to CONRB fell within the thirty-day time period of Ohio Adm. Code3702-2-03(B) for requesting a hearing concerning a SHPDA decision. Appellees argue that allowance of the appeal from the fulfilling of the condition by supplying a proper site designation would render any condition in a CON allowance subject to later appeal. We disagree. Our decision herein is limited to the later supplying of a specific site designation where the conditional granting of the CON contained only a site designation that was so general that it did not constitute designation of a site and, thus, was in the same category as if no site had been designated. Appellee, CASC, also argues that, if we find that CONRB did have jurisdiction to hear the merits of the appeal, it erred when it found that the hearing conducted before the hearing examiner was a qualified de novo review and that evidence concerning the issue of need was admissible. This case is on appeal from the court of common pleas. The issue of whether the CONRB hearing was a qualified de novo one was asserted to the common pleas court. However, the court did not decide that issue because it determined that CONRB had no jurisdiction for the appeal in the first instance. Because the common pleas court did not rule on the merits of this issue and because appellee filed no notice of appeal with this court, we decline to decide this issue. Appellant's first assignment of error is sustained. Appellant's second assignment of error is overruled as not properly before the court. The common pleas court's finding concerning jurisdiction is reversed. This case is remanded to the trial court to determine the merits of the decision of the CONRB. Judgment reversedand case remanded. REILLY and LYNCH, JJ., concur. *Page 8 JOHN J. LYNCH, J., retired, of the Seventh Appellate District, was assigned to active duty pursuant to Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:41:42.584033+00

DECISION AND JUDGMENT ENTRY This is an appeal from a judgment of the Ottawa County Court of Common Pleas which granted summary judgment to plaintiff-appellee, United States Construction Corporation ("USCC"), in its action to quiet title to a strip of land hereinafter known as the disputed road. The court further granted summary judgment to defendants-appellants, Danbury Township, Trustee John C. Englebeck, Trustee David M. Hirt and Trustee Dianne M. Rozak, on appellee's claims of trespass and slander of title. From that judgment, appellants now raise the following assignments of error: "1. THE COURT BELOW ERRED IN DENYING APPELLANTS' MOTION FOR SUMMARY JUDGMENT AND DETERMINING THAT THE DISPUTED PORTION OF DANBURY NORTH ROAD, AKA TOWNSHIP ROAD 136, TRAVERSING APPELLEE'S PROPERTY WAS A PRIVATE ROAD WHERE THE PLEADINGS AND EVIDENCE COGNIZABLE PURSUANT TO OHIO CIVIL RULE 56 OVERWHELMINGLY ESTABLISHED THE PRESENCE OF ALL OF THE ELEMENTS REQUIRED FOR THE CREATION OF A PUBLIC TOWNSHIP ROAD BY PRESCRIPTION. "2. THE COURT BELOW ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT QUIETING ITS TITLE TO THE DISPUTED ROAD ON THE BASIS OF ITS UNSUPPORTED AND UNSUP-PORTABLE CONCLUSION THAT THE PUBLIC USE OF THE ROAD WAS BY PERMISSION OF APPELLEE'S PREDECESSOR IN TITLE RATHER THAN ADVERSE USER." The undisputed facts of this case are as follows. In 1860, an ancestor of Roy Bauman became the record owner of Lot 20, Section 4, Danbury Township, Ottawa County, Ohio. That property stayed in Bauman's family until Roy Bauman sold most of it to USCC in 1999. In 1885, Lawrence Kalb, the record owner of Lot 21, Section 4 (the "Kalb property"), the lot immediately east of and adjacent to Lot 20, and others petitioned the Ottawa County Commissioners for the establishment of a county road in Danbury Township. The Ottawa County Commissioners approved the petition and on April 10, 1886, a county road was established with the following legal description: "Commencing about 10 Rods S.E. of the South West corner of John Baumans land on the County Road along the Bay Beach in Lot 20[,] Section 4[,] Danbury Township[,] Ottawa County[,] Ohio[.] Thence north west on John Baumans land to his west line, thence north on said line about 75 Rods[.] Thence in a northwesterly direction across the marsh on Lot 20 to the south west corner of H.H. Lullmanns land on the line between Lots 19 20[.] Thence north about 50 Rods to intersect the so-called Lammers road the point of termination." That road has since been known as Township Road 136, Danbury Road North and Kalb Road ("T.R. 136"). Based on its legal description, T.R. 136 starts approximately 165 feet southeast of the southwest corner of the Bauman property and runs northwest from the starting point for approximately 165 feet, then north along the western border of the Bauman property for approximately 1,237 feet, then in a northwesterly direction until it terminates at Lammers Road, also known as County Road 225. Connecting to T.R. 136 lies the road that is the subject of this case (the "disputed road"). The disputed road picks up where T.R. 136 begins but curves northeasterly through the Bauman property and parallel to and along the Sandusky Bay shoreline, ending in Lot 21 approximately 700 feet beyond its connection to T.R. 136. There was no evidence submitted in the proceedings below that established when this road was originally built or by whom. Nevertheless, appellants contend that the disputed road is part of T.R. 136 and, therefore, a public road. Documents submitted in support of the motions below establish the following history of the disputed road. An 1874 Hardesty Atlas map of Danbury Township shows a road (the "shoreline road") which runs parallel to and along the Sandusky Bay shoreline through Lot 21. The shoreline road appears to dead end at the southern border of Lots 20 and 21. Thereafter, in 1886, T.R. 136 was created as explained above. Next, a 1900 Hardesty Atlas map of Danbury Township shows both T.R. 136 and the shoreline road. On this atlas map, the two roads appear to connect to form a large "U" shape, with the right side of the "U" being the shoreline road, the left side of the "U" being T.R. 136, and the bottom of the "U" running through the Bauman and Kalb properties. The bottom of the "U" is the disputed road. The next map in the record is a 1912-1913 map of a ditch improvement project. That map depicts T.R. 136 and the disputed road but does not depict the shoreline road. No other map or plat from this date on submitted in this case depicts the shoreline road. In 1961, the Danbury Township Trustees submitted to the Director of Highways a certification of the number of miles in the Danbury Township highway system. In that certification .83 miles represents T.R. 136. In her affidavit filed in the court below, Rhonda Botti, the clerk of Danbury Township, attested that .83 miles is the distance from T.R. 136's junction with County Road 225 to its dead end on the Kalb Farm property, thereby including the disputed road. Subsequently, in 1972, a flood damaged the Bauman property, including the disputed road. Roy Bauman testified at his deposition that he repaired the flood damage himself, including the road bed, and was reimbursed by the United States government after the U.S. Army Corp of Engineers approved the repairs. Bauman further testified that in approving the repairs, the Army Corp of Engineers drew a map and inspected the property. No evidence of that map or inspection was submitted in the proceedings below. In 1984, the Danbury Township Trustees approved the use of a Community Development Block Grant to elevate the pavement on T.R. 136. The plan/survey of the repavement project submitted in the proceedings below states that the project is for the south end of T.R. 136. It is not clear from that survey, however, that the disputed road was included in this project. Nevertheless, Roy Bauman did testify that sometime around 1985, the disputed road was paved. Prior to that time, Bauman stated, the disputed road was simply covered with oiled gravel. He further testified, however, that he always considered the disputed road to be his property, that he paid taxes on his entire property which included the disputed road, and that during the entire 75 years that he has lived on the land, the disputed road has only serviced one home on the Kalb Farm property and a seasonal cottage on that same property. Consistent with his testimony, the tax plat maps for the years 1993 and 1998, which were submitted as evidence below, do not show the disputed road. In August 1998, Roy Bauman and other property owners living in the vicinity of T.R. 136 filed a petition with the Ottawa County Commissioners to vacate a portion of the public road legally described as follows: "Commencing at the intersection of Danbury Station Rd. #225 and Danbury North Road #136; thence south in the west line of said Lot 20, Section 4, approximately 925 feet to a curve in the road; thence southeasterly through the lands of Paula Rahnenfuehrer, a distance of approximately 1400 feet to the west line of lands owned by Roy A. Bauman for the point and place of beginning; thence South in the line between the said lands of Rahnenfuehrer and Bauman, approximately 1200 feet to the north line of the Con Rail Railroad; thence southeast along said railroad approximately 200 feet to a curve in the road; thence southeast and northeast following the meandering of said road as built and occupied, approximately 700 feet to a point opposite the barn on the property owned by the Kalb family now in Trusteeship and there to terminate." Accordingly, the petition sought the vacation of the disputed road as well as the portion of T.R. 136 that runs along the western border of Bauman's property. The petition was filed by the property owners at the request of Gregory Spatz, the president of USCC, in contemplation of the sale of a portion of Bauman's property to USCC. On October 22, 1998, the Ottawa County Commissioners passed Resolution No. 98-73 denying the petition. On February 1, 1999, an application for administrative approval of the subdivision of a 2.9980 acre parcel of Lot 20, Section 4, was filed with the Ottawa Regional Planning Commission. While Bauman had not yet sold the property to USCC, the application names Roy Bauman as the "grantor" and Gregory Spatz as the "grantee." The application sought to subdivide a parcel, known as Parcel A, into four lots. The disputed road runs through the lower portion of Parcel A. On February 4, 1999, the Ottawa Regional Planning Commission approved the subdivision of Parcel A. On December 10, 1999, Roy and Matilda Bauman sold a portion of Lot 20, Section 4, to USCC. Through the sale, the Baumans conveyed to USCC Parcel A, the 2.9980 acre parcel described above, Parcel C, a 28.4918 acre parcel, and an ingress, egress and utility easement. The Baumans retained a 2.2332 acre parcel, Parcel B, upon which their home is located. Parcels A and B are adjacent to each other, with Parcel A sitting east of Parcel B. Parcel C is adjacent to and north of Parcels A and B. The disputed road runs through the south end of Parcels A and B along the shoreline and is included in the easement conveyed to USCC by the Baumans. On December 26, 2000, USCC filed a complaint in the court below to quiet title to the disputed road. USCC named as defendants Danbury Township and trustees John C. Englebeck, David M. Hirt and Dianne M. Rozak. The complaint alleged that on February 23, 2000, the township trustees passed a resolution claiming an ownership interest in and to T.R. 136, including the disputed portion running through the easement and appellee's property.1 The complaint further alleged that the disputed road is not a dedicated road and has never been recorded as a public right of way; that the road is a private road which the Baumans allowed the township to use as a bus turnaround; and that the township claims rights to the road by adverse possession and/or prescriptive easement. The complaint then asserted that the township had not acquired title to the disputed road by adverse possession and/or prescription but that the township's purported interest in the road constituted a cloud on appellee's title to its property. Appellee therefore sought a declaration that it is the sole and exclusive owner of the disputed road. In addition to its claim to quiet title, appellee asserted claims for trespass and slander of title. Subsequently, appellee filed an amended complaint which added as a party defendant the Bayshore Land Company, the owner of property, formerly known as the Kalb Farm property, adjacent to appellee's property and into which the disputed road dead ends. On March 28, 2001, appellants filed a motion for summary judgment supported by the affidavit of Rhonda Botti and the exhibits attached thereto. Appellants asserted that they were entitled to judgment as a matter of law on all of appellee's claims. On the claim to quite title, appellants asserted that the disputed road was established by the Board of Commissioners of Ottawa County and had not been abandoned. As to the claims for trespass and slander of title, appellants asserted that they were immune from liability under R.C. Chapter 2744, the Political Subdivision Tort Liability Act. In response, appellee filed its own motion for summary judgment and response to appellants' motion. Appellee asserted that it was entitled to judgment as a matter of law on its claim to quiet title because no township road had ever been established, dedicated or accepted on the disputed road running along appellee's easement and through appellee's property. Appellee supported its motion with the affidavits of Gregory Spatz and Daniel J. Cook, P.S., and the exhibits attached to those affidavits. Thereafter, appellants submitted the deposition of Roy Bauman in support of its claim for summary judgment. On August 23, 2001, the trial court filed a decision and judgment entry granting USCC summary judgment on its claim to quiet title and granting appellants summary judgment on the trespass and slander of title claims. The court found that it was undisputed that when the Ottawa County Commissioners created T.R. 136 in 1886, they did not include in the legal description of that road the road in dispute in this case. Accordingly, Danbury Township could not claim rights to the road under statutory or common law dedication. The court further found that Danbury Township did not acquire rights to the road by prescription because the township's use of the road was never adverse to the Baumans. Because the township did not acquire title to the disputed road by either dedication or prescription, the court held that USCC held title to the road. With regard to the trespass and slander of title claims, the court held that appellants were entitled to immunity under R.C. Chapter 2744 due to the intentional nature of the torts alleged. Subsequently, the court filed a stipulated judgment entry which recognized that all of appellee's claims against the Bayshore Land Company were determined by the court's summary judgment rulings. The court therefore dismissed the case in accordance with its summary judgment rulings. Appellants now challenge the trial court's judgment with regard to appellee's claim to quiet title. Because the two assignments of error are interrelated, they will be discussed together. Appellants assert that the trial court erred in granting appellee summary judgment on appellee's claim to quiet title because evidence presented in the proceedings below supported appellants' claim that the disputed road had become a public road by prescription. Appellants no longer assert that the disputed road was part of T.R. 136 as originally built in 1886. Rather, appellants assert that the public's open, notorious, adverse, continuous use of the disputed road for more than 21 years has given the township rights in the road by prescription. In reviewing a ruling on a summary judgment motion, this court must apply the same standard as the trial court. Lorain Natl. Bank v. SaratogaApts. (1989), 61 Ohio App.3d 127, 129. Summary judgment will be granted when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the non-moving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Moreover, the moving party is required to "specifically delineate the basis upon which summary judgment is sought * * *." Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, syllabus. Once the moving party sets forth specific reasons for summary judgment, the nonmoving party bears a reciprocal burden to produce evidence on any element essential to his case for which he bears the burden of proof at trial. Celetox Corp. v. Catrett (1986), 477 U.S. 317, 322-323. It is undisputed that appellee holds the record title to the disputed road. Nevertheless, it is well-established in Ohio that public roads and streets may be established by prescription. Railroad Co. v. Village ofRoseville (1907), 76 Ohio St. 108; Smith v. Krites (1950), 90 Ohio App. 38. "One who claims an easement by prescription has the burden of proving by clear and convincing evidence all the elements essential to the establishment thereof." McInnish v. Sibit (1953), 114 Ohio App. 490,490. To establish a public right of way by prescription, "the user must be under a claim of right by the public, adverse to the owner, and continued without substantial interruption or change" for a period of 21 years. Smith, supra at 42. That is, the use must be open, notorious, adverse, and continuous for a period of 21 years. The lower court held that because Bauman had permitted Danbury Township to maintain the road and to use the road as a school bus turnaround, the township's use of the road was never adverse to Bauman and, accordingly, the township did not acquire rights to the road by prescription. The trial court's finding and appellants' claim that appellee's predecessor in title, Roy Bauman, allowed the township to use the road as a school bus turnaround is perplexing. Appellee's amended complaint asserts that prior to appellee's purchase of the easement, Roy Bauman gave Danbury Township permission to use the road exclusively as a bus turnaround. In their answer to the amended complaint, appellants denied that allegation. The record reveals that the property had been in the Bauman family from 1886 until Roy Bauman sold a substantial portion of it to appellee in 1999. Roy Bauman testified that the disputed road had been a part of his property for as long as he could remember and that he always considered it his property. He further stated that no one from the township ever asked if they could use the road, they simply used it. Nevertheless, he did not state how the township used the road and he never testified that the road was used as a school bus turnaround. Rather, when asked if anyone from the township asked for his permission to use the property for the purposes of a road or turnaround he answered "no." He further testified that during the 75 years that he has lived on the property, the disputed road has only served one home on the Kalb property and one cottage on his property, although he also testified that he felt he was doing a public service by allowing the township to use the road. Given this testimony, it is impossible to conclude how or for how long the township used the disputed road. Absent such evidence, the township cannot establish that its use of the private road was continuous for a period of 21 years. Other evidence submitted in the case below does not support appellants' claim that the disputed road has become a public road by prescription. The atlases and ditch improvement project map simply show roads. They do not identify the roads as public or private. Moreover, there is no evidence of a public use of the road that would give the public rights to the road by way of prescription. The earliest evidence that the township claimed rights to the road is the 1961 certification of township mileage for Danbury Township which includes the disputed road as part of the total mileage for T.R. 136. Nevertheless, when the disputed road was damaged in a 1972 flood, Bauman himself repaired the damage with the approval of the Army Corp of Engineers. He was subsequently reimbursed for the costs of the repairs by the United States government. R.C. 5535.01(C), which has been in effect since 1953, provides that the board of township trustees shall maintain all public roads within its township. Accordingly, at least as late as 1972, the township treated the disputed road as Bauman's property. It therefore appears that over the years, the township treated the disputed road as Bauman's property when it was beneficial to the township to do so, and treated it as township property when it was beneficial to the township to do so. R.C. 5535.01(C) further provides that "[t]his section does not prevent the board of township trustees from improving any road within its township." In 1985 the township paved and therefore improved the disputed road. This action, however, was within the prescriptive period. There is no evidence in the record below that the township maintained the disputed road before this time. Absent evidence of the township's adverse use of the disputed road before 1985, the 1985 paving does nothing to establish appellants' claim that the road became township property by prescription. Accordingly, the township failed to present evidence that it continually used the road adversely to Bauman's interests for 21 years or more. That is, appellants presented no evidence as contemplated by Civ.R. 56(C) as to how the disputed road was used by the public or for how long. In an action to quiet title, the party claiming a right of ownership over the title owner by way of prescription has the burden of proof. McInnish, supra; Whitford v. MGM Limited (Sept. 6, 1995), Medina App. No. 2382-M. Although Bauman's petition to vacate a public road and his application for a parcel split demonstrate some recognition on his part of the township's interest in his property, there is no evidence in the record as to when that interest began. To prove that the disputed road had become a public road by prescription, the township was required to present evidence that it had adversely used that road for at least 21 years. There is no such evidence in this case. Because the undisputed facts establish that appellee holds the record title to the disputed road and that appellants failed to present evidence that the road had become a public road by prescription, appellee was entitled to judgment as a matter of law and the trial court did not err in granting summary judgment to appellee on its claim to quiet title. Accordingly, both assignments of error are not well-taken. On consideration whereof, the court finds that substantial justice has been done the parties complaining and the judgment of the Ottawa County Court of Common Pleas is affirmed. Court costs of this appeal are assessed to appellants. JUDGMENT AFFIRMED. Peter M. Handwork, J., Melvin L. Resnick, J., and Mark L.Pietrykowski, P.J., CONCUR. 1 No evidence of this resolution was submitted in the proceedings below. Although appellants did not deny the passage of the resolution in their answer to the complaint, they asserted that the resolution speaks for itself and no further response is required.

2016-07-06 06:41:44.028235+00

DECISION AND JUDGMENT ENTRY {¶ 1} Plaintiffs-Appellants Robert Luman, et al., appeal the judgment of the Highland County Court of Common Pleas awarding Appellee Daryl Igo $35,225.00 plus interest carried forward from October 11, 2006. The Appellants argue the trial court erred when: (1) it failed to order the Appellee to sell the thirteen acre tract which was the subject of the contract at issue to the Appellants; (2) it failed to grant judgment for the Appellants *Page 2 in the amount of $9,750.00, representing one-half of the government buyout of the tobacco base; (3) it allowed testimony by the Appellee, over the objection of the Appellant, and granted judgment for the Appellee on the issue of a lost grant payment in the amount of $26,500.00; (4) it found the Appellants were liable to the Appellee on the counterclaims in the amount of $35,225.00; and (5) it overruled Appellants' Civ. R. 52 motion for findings of fact and conclusions of law. Because we find that the trial court improperly denied Appellants' Civ. R. 52 motion, we reverse its judgment and remand the matter for proceedings consistent with this opinion. I. Facts {¶ 2} On August 21, 2003, the Appellants and Appellee agreed in writing to a purchase by the Appellants of a two acre tract of land, including a residence and outbuilding, and a thirteen acre tract of vacant land, all located within Highland County, from the Appellee, for $210,000.00. The Appellee also granted to the Appellants at this time an option to purchase a separate five acre tract for the amount of $30,000.00. The Appellants provided consideration to the Appellee at the time of contract in the form of a down payment in the amount of $40,000.00. The closing on the contract was to occur on November 1, 2003, or at some other time mutually agreeable to the parties, time being of the essence. *Page 3 {¶ 3} On October 12, 2003, the parties amended the August 21, 2003 contract in a writing whereby the parties agreed to the purchase of the two acre tract for the price of $210,000.00 with payment to be made as follows: credit for the $40,000.00 deposit, payment made at closing in the amount of $145,000.00, and the seller financing the balance of $25,000.00, to be paid off by August 2004. {¶ 4} On October 21, 2003, the Appellants and Appellee executed another purchase agreement in writing for the purpose of obtaining a bank loan. The terms of the agreement were the same as those dictated in the October 12, 2003 agreement, with closing on the contract to occur November 2, 2003, or at some other time mutually agreeable to the parties thereto, time being of the essence as to all terms of the agreement. In addition, this purchase contract stated that in consideration of the completion of the purchase under the purchase contract, the Appellants had an option to purchase the five acre tract for the amount of $30,000.00, and an option to purchase the thirteen acre tract for the amount of $15,000.00, both to close on or before August 1, 2004, upon notice in writing by the buyer to the seller. {¶ 5} No tender of money with regard to the thirteen acre tract, and thus, no closing, occurred prior to August 1, 2004. In December 2004, the *Page 4 Appellants informed the Appellee they were ready to exercise the option on the thirteen acre tract. In response, the Appellee informed the Appellants that he would no longer sell the tract to them. Subsequently, the Appellants filed suit in the Highland County Court of Common Pleas, seeking to enforce the option. The Appellee asserted several counterclaims, including a claim for damages on a tobacco-base buyout agreement between the parties, and claims for damages resulting from lost strawberry and hay crops grown on the properties at issue. {¶ 6} On October 11, 2006, the trial court issued a decision adopting the Appellee's brief as the trial court's own. The Appellants appealed the decision to this court. We found that the trial court's decision was not a final appealable order under R.C. 2502.02, and thus, we did not have jurisdiction over the matter. {¶ 7} The trial court issued a subsequent decision on the matter on July 27, 2007, awarding the Appellee $35,225.00 on his counterclaims, plus interest dating from October 11, 2006. In so doing, the trial court overruled the Appellants' February 16, 2007 Civ. R. 52 motion for findings of fact and conclusions of law. The Appellants now appeal the trial court's decision, asserting the following assignments of error: II. Assignments of Error *Page 5 {¶ 8} 1. THE TRIAL COURT ERRED IN NOT FINDING BY CLEAR AND CONVINCING EVIDENCE THAT THE APPELLANT AND APPELLEE HAD AN AGREEMENT FOR THE PURCHASE [OF] LAND INCLUDING A THIRTEEN (13) ACRE TRACT OF LAND OWNED BY THE APPELLEE, WHICH AGREEMENT WAS A VALID AND ENFORCEABLE CONTRACT AS TO THE THIRTEEN (13) ACRE TRACT, THAT THE APPELLEE BREACHED THE CONTRACT BY REFUSING TO SELL THE THIRTEEN ACRE TRACT, AND THUS FOR NOT GRANTING JUDGMENT FOR THE PLAINTIFF FOR SPECIFIC PERFORMANCE TO ORDER APPELLEE TO SELL THE THIRTEEN (13) ACRE TRACT. {¶ 9} 2. THE TRIAL COURT ERRED IN NOT FINDING BY A PREPONDERANCE OF THE EVIDENCE THAT THE APPELLEE HAD BREACHED THE CONTRACT OF AUGUST 21, 2003 OR OCTOBER 21, 2003 IN FAILING TO GRANT JUDGMENT FOR THE APPELLANTS AGAINST THE APPELLEE FOR THE ONE-HALF OF THE BUYOUT OF THE TOBACCO BASE IN THE AMOUNT OF NINE THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS ($9,750.00). {¶ 10} 3. THE TRIAL COURT ERRED [IN] ALLOWING TESTIMONY BY APPELLEE, OVER OBJECTION OF COUNSEL FOR APPELLANT, AND FINDING FOR AND GRANTING JUDGMENT AGAINST APPELLANT AND FOR APPELLEE ON THE ISSUE OF THE LOST GRANT PAYMENT IN THE AMOUNT OF TWENTY-SIX THOUSAND FIVE HUNDRED DOLLARS ($26,500.00), WHEN NEITHER THE ISSUE OR DEMAND FOR THIS CLAIM WAS SET FORTH IN ANY COUNTERCLAIMS OR WITH SPECIFICITY AS REQUIRED BY CIVIL RULE 9(g). {¶ 11} 4. THE TRIAL COURT ERRED IN FINDING [BY] A PREPONDERANCE OF THE EVIDENCE THAT THE APPELLANTS WERE LIABLE TO THE APPELLEE ON THE COUNTERCLAIMS, THAT THE APPELLANTS CAUSED DAMAGE TO THE APPELLEE, AND THAT THE *Page 6 AMOUNT OF THE DAMAGES [WAS] IN THE AMOUNT OF THIRTY FIVE THOUSAND TWO HUNDRED AND TWENTY FIVE DOLLARS ($35,225.00) ON APPELLEE'S COUNTERCLAIMS, AND BY GRANTING DAMAGE[S] IN EXCESS OF THE DAMAGES TESTIFIED TO AT TRIAL BY THE APPELLEE. {¶ 12} 5. THE TRIAL COURT ERRED IN OVERRULING APPELLANTS' MOTION PURSUANT TO CIVIL RULE 52, FOR FINDING[S] OF FACT AND CONCLUSIONS OF LAW AS FILED ON FEBRUARY 16, 2007. III. Legal Analysis {¶ 13} For ease of analysis, we will initially address the Appellants' fifth assignment of error, which argues that the trial court erred when it overruled their motion for findings of fact and conclusions of law pursuant to Civ. R. 52. We agree. {¶ 14} The purpose of issuing findings of fact and conclusions of law under Civ. R. 52 is to establish a record so that reviewing courts can conduct meaningful review. Salisbury v. Smouse, Pike App. No. 05CA737,2005-Ohio-5733, at ¶ 15. "A trial court's decision reciting various facts and a legal conclusion satisfies the requirements of Civ. R. 52 when, taken together with other parts of the trial court's record, the decision forms an adequate basis upon which to decide the legal issue presented upon appeal." Id. "The test for determining whether a trial court's opinion satisfies the requirements of Civ. R. 52 is whether the contents of the opinion, when considered together *Page 7 with other parts of the record, form an adequate basis upon which to decide the narrow legal issues presented." Brandon/Wiant Co. v.Teamor (1999), 135 Ohio App.3d 417, 423, 734 N.E.2d 425, citingWerden v. Crawford, 70 Ohio St.2d 122, 124, 24 O.O.3d 196,435 N.E.2d 424. {¶ 15} The provisions of Civ. R. 52 are mandatory in any situation in which questions of fact are tried by the court without intervention of a jury. In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 172,492 N.E.2d 146, citing Werden, supra. The failure to comply with a timely request to make findings of fact and conclusions of law is prejudicial error unless a reviewing court can determine, without weighing the evidence, that the appellant has not been prejudiced. St. Paul Fire Marine Ins. Co. v. Battle (1975), 44 Ohio App.2d 261, 997 N.E.2d 806, paragraph one of the syllabus. When a trial court's judgment has been reversed and remanded solely for findings of fact and conclusions of law, it is incumbent upon the trial judge to vacate his previous judgment and re-enter the same as of the date of the filing of the findings of fact and conclusions of law. Kennedy v. Cleveland (1984),16 Ohio App.3d 399, 476 N.E.2d 683, paragraph one of the syllabus. {¶ 16} Despite awarding the Appellee $35,225.00 on his counterclaims, the trial court failed in its judgment entry to detail the reasons behind the damage award. Given the lack of support in the entry for the *Page 8 damage award, this court has no adequate basis upon which to decide the issue presented. As such, we remand this matter to the trial court for explanation of its award, in the form of findings of fact and conclusions of law in accordance with Civ. R. 52, and a re-entry of judgment on a date concurrent with its issuance of findings of fact and conclusions of law. Given our determination upon the Appellants' fifth assignment of error, assigned errors one through four are not ripe for review at this time. JUDGMENT REVERSED AND REMANDED.

2016-07-06 06:41:44.179128+00

JOURNAL ENTRY and OPINION {¶ 1} Plaintiff-appellant, William P. Moreland ("Moreland") appeals the trial court's granting of summary judgment in favor of defendants-appellees, Jacqueline Ksiazek, individually and as executrix of the Estate of Genevieve Kozer ("Ksiazek"), Mary Jaworski ("Jaworski"), 2100 Realty, James Lentz ("Lentz"), William Davis ("Davis"), and ERA Lentz (collectively referred to as "appellees"). Finding no merit to the appeal, we affirm. {¶ 2} In January 2002, Moreland and his wife ("the Morelands"), solicited the services of Jaworski and 2100 Realty to assist them in purchasing a home. Moreland stated that he wanted a home that was approximately 1,500 square feet, with a garage, located close to his wife's work, and within a $125,000 price range. Based upon this criteria, Jaworski found a property located on South Hills Drive in Cleveland, which Ksiazek had listed with Lentz of ERA Lentz. The property was the home of Ksiazek's late mother, and Ksiazek was the executrix of her mother's estate. {¶ 3} During the Morelands' first visit to the property, they went through the entire house with Jaworski. A residential property disclosure form was provided to the Morelands that indicated that the owner was not occupying the property, the property was part of an estate, and that there was dampness in the basement. The Morelands were able to access the house with keys left in the lockbox. However, when they attempted to access the detached garage, a padlock prohibited their entrance, and no garage key could be found in the lockbox. {¶ 4} Moreland inquired as to whether there was a key for the garage. Jaworski contacted Lentz and inquired about the key to the garage. Lentz told her that the key was in the lockbox or that it was "there somewhere." {¶ 5} About a week later, the Morelands again visited the subject property with Jaworski. They gained access to the house by the keys left in the lockbox. However, they were unable to access the garage because no key could be found. Jaworski again contacted Lentz and left him a message regarding the missing garage key. {¶ 6} After the second visit, the Morelands, without viewing the interior of the garage, submitted an offer to purchase the subject property. The purchase agreement specified that the property was being sold "as-is" and provided, in pertinent part: "The property, which PURCHASER accepts in its PRESENTCONDITION, shall include appurtenant rights, privileges andeasements, and all buildings and fixtures * * * * * * Condition of Property: Purchaser has examined the property andagrees that the property in its `as is' present physicalcondition, including any defects disclosed by the seller,purchaser has not relied upon any representations, warranties orstatements about the property (including but not limited to itscondition or use) unless otherwise disclosed by the seller(s)." {¶ 7} The Morelands indicated on the purchase agreement that they desired to have a general home inspection, which was a contingency to the agreement. Any other inspection contingencies not indicated constituted a waiver and the property was accepted by the Morelands in its "as is" condition. The Morelands signed this agreement on January 30, 2002. {¶ 8} However, Moreland decided to forego a professional home inspection. Jaworski stated in her deposition that she recommended a professional home inspection and offered to provide names of inspectors. Instead, Moreland and his father, brother-in-law, and his brother-in-law's father conducted the inspection. None of these individuals were professional inspectors. {¶ 9} At the time of the inspection, Moreland was unable to gain access to the garage because the padlock was still on the garage and no key could be located. Moreland stated they could see inside the garage, but visibility was limited because the windows were dirty. Moreland was able to inspect the exterior of the garage, which needed paint, but he did not go up on the roof to inspect it. It was also pointed out that there was dampness in the basement and the paint was peeling. Moreland stated he was satisfied with the inspection of the house. {¶ 10} After the inspection, Jaworski notified Lentz that the inspection was completed and the sale proceeded. When Lentz went to remove the lockbox and return the keys to the seller as requested, he found the garage key on the floor in front of the door. Lentz did not advise Jaworski of his locating the key because it had been six weeks since the purchase agreement was executed. {¶ 11} Prior to closing, Moreland's financial broker contacted Lentz to see if the seller would allow Moreland to store carpet in the garage. Lentz advised him that the seller did not want anyone to access the property until the title transferred. Jaworski advised Moreland that this was customary. {¶ 12} After the Morelands took possession of the property and Moreland entered the garage, he found that the garage needed to be replaced at an estimated cost of $10,900. Moreland also stated that the basement was not only damp, but it had "puddles crawling across the floor." He found it necessary to waterproof that portion of the basement. {¶ 13} After Moreland advised Jaworski of the problems with the basement and garage, Jaworski contacted Lentz. According to Jaworski, Lentz advised her that the seller did not feel responsible because it was an estate and the property was sold "as is." Jaworski advised Moreland that the matter could not be resolved between the parties, and thus Moreland filed the present action, claiming fraudulent misrepresentation, fraudulent concealment/fraudulent nondisclosure, breach of contract, and negligence. {¶ 14} The trial court granted appellees' motions for summary judgment. Moreland appeals, raising four assignments of error. {¶ 15} In his first assignment of error, Moreland broadly claims that the trial court erred in granting summary judgment as to all appellees because genuine issues of material fact remain. He has made no specific argument, however, in this assignment of error. Therefore, we will address the claims he raises in each corresponding assignment of error. {¶ 16} Appellate review of summary judgment is de novo.Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105,1996-Ohio-336, 671 N.E.2d 241; Zemcik v. La Pine Truck Sales Equipment (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. The Ohio Supreme Court set forth the appropriate test in Zivich v.Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389,696 N.E.2d 201, as follows: "Pursuant to Civ.R. 56, summary judgment is appropriate when(1) there is no genuine issue of material fact, (2) the movingparty is entitled to judgment as a matter of law, and (3)reasonable minds can come to but one conclusion and thatconclusion is adverse to the nonmoving party, said party beingentitled to have the evidence construed most strongly in hisfavor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679,1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus.The party moving for summary judgment bears the burden of showingthat there is no genuine issue of material fact and that it isentitled to judgment as a matter of law. Dresher v. Burt,75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264." {¶ 17} 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, 76 Ohio St.3d 383, 385,1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992),65 Ohio St.3d 356, 358-359. Jaworski and 2100 Realty {¶ 18} In his second assignment of error, Moreland claims that the trial court erred in granting summary judgment in favor of Jaworski and 2100 Realty because material issues of fact existed regarding the duty owed to him. {¶ 19} When determining the presence or absence of negligent conduct, it is necessary to examine (1) the existence of a duty owing to the plaintiffs, (2) a breach of that duty, and (3) proximate causation. Bennison v. Stillpass Transit Co. (1966),5 Ohio St.2d 122. {¶ 20} A real estate agent has a fiduciary duty to its clients. See Parahoo v. Mancini (Apr. 14, 1998), Franklin App. No. 97APE08-1071, citing Foust v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164. "A `fiduciary relationship' is one in which special confidenceand trust is reposed in the integrity and fidelity of another andthere is a resulting position of superiority or influence,acquired by virtue of this special trust. Belvedere v.Condominium Unit Owners Assn. v. R.E. Roark Cos., Inc. (1993),67 Ohio St.3d 274, 282, citing In re Termination of Employmentof Pratt (1974), 40 Ohio St.2d 107, 115. {¶ 21} The statutory fiduciary duties owed by a real estate agent to {¶ 22} her client are set forth in R.C. 4735.62, which provides, in pertinent part: "In representing any client in an agency or subagencyrelationship, the licensee shall be a fiduciary of the client andshall use the licensee's best efforts to further the interest ofthe client including, but not limited to, doing all of thefollowing: Exercising reasonable skill and care in representing theclient and carrying out the responsibilities of the agencyrelationship; * * * (C) Following any lawful instructions of the client; (D) Performing all duties specified in this chapter in amanner that is loyal to the interest of the client; * * * (F) Disclosing to the client any material facts of thetransaction of which the licensee is aware or should be aware inthe exercise of reasonable skill and care and that are notconfidential information pursuant to a current or prior agency ordual agency relationship; (G) Advising the client to obtain expert advice related tomaterial matters when necessary or appropriate;" {¶ 23} Moreland claims that Jaworksi and 2100 Realty breached their fiduciary duty by failing to exercise reasonable skill and care in representing him, failing to follow lawful instructions, and failing to perform their duties in a manner loyal to his interest. {¶ 24} In support of these contentions, Moreland attached to his brief in opposition to summary judgment an unsworn letter from his real estate expert, Gary Pescatrice, which sought to demonstrate a breach of duty by Jaworski. Pescatrice opined that Jaworski "may have breached her duty by not pursuing the inspection of the interior of the garage prior to closing." {¶ 25} This letter does not create an issue of fact because it is inadmissible for summary judgment. Civ.R. 56(C) provides an exclusive list of materials that a trial court may consider when deciding a motion for summary judgment. Those materials are affidavits, depositions, transcripts of hearings in the proceedings, written admissions, answers to interrogatories, written stipulations, and the pleadings, if timely filed. Civ.R. 56(C). Other types of documents may be introduced as evidentiary material only through incorporation by reference in a properly framed affidavit. Martin v. Cent. Ohio Transit Auth. (1990),70 Ohio App.3d 83, 89. Documents that have not been sworn, certified, or authenticated by way of affidavit "have no evidentiary value." Mitchell v. Ross (1984), 14 Ohio App.3d 75. {¶ 26} Here, the letter attached to Moreland's brief in opposition is not proper Civ.R. 56(C) evidence because it does not fall into one of the categories of evidentiary materials listed in that section nor was it incorporated and referenced in a properly framed affidavit pursuant to Civ.R. 56(E). Therefore, this letter has no evidentiary value. {¶ 27} Moreland also attempts to use the deposition of Lentz to establish that Jaworski breached her fiduciary duty. After reviewing the deposition in its entirety, Lentz does not affirmatively opine that Jaworksi breached her fiduciary duty. Instead, Lentz gave his opinion as to how he would have handled the situation about being unable to access the garage, stating: "I can't — you know, again, I can't answer whether she'sbreached her duty or not. I mean, I wasn't there. I wasn't a partof her conversations with the Morelands. You know, it's reallyhard for me to say someone breached their duty." {¶ 28} Lentz's deposition testimony does not create an issue of material fact. {¶ 29} Moreland asserts that Jaworski breached her statutory and common law fiduciary duties by failing to gain access to the garage and by failing to explain how to include a contingency to the contract that mandated viewing the garage before title transfer. {¶ 30} It is uncontroverted that Jaworski unsuccessfully attempted to gain access to the garage by asking Lentz for the garage key at least twice. Moreland knew that she was unable to obtain the key. It is also uncontroverted that Jaworski had no actual knowledge about the condition of the garage. Nevertheless, Moreland purchased the home without ever viewing the interior of the garage. {¶ 31} While it is true that Jaworski did not suggest the use of a contingency for viewing the garage, Jaworski explained: "I did not suggest it because of Paul's [Moreland] response tothe inspection and his comfort level as far as not seeing theinside of the garage." {¶ 32} She repeatedly stated that Moreland told her, "I know that I'm buying an older home and an older garage." Jaworski could not recall any concerns by Moreland about not having access to the garage or any concerns about the basement. She stated: "Again, everything was relative to the age as far as theirconcerns, so they did not seem to be overly concerned, no." {¶ 33} Another reason why Jaworksi claims she did not recommend a contingency was because Moreland was satisfied with his own inspection of the property and he was willing to "sign off" on the general home inspection contingency. Moreland explained why he purchased the house without access to the garage, as follows: "Because there was no red flag to tell me that there was aproblem except for a locked garage, which didn't really seem tobe a problem. It seemed to be a problem with the key, not thegarage." {¶ 34} We find that Moreland has presented insufficient evidence demonstrating genuine issues of material fact as to whether Jaworski and 2100 Realty breached their fiduciary duty. Instead, Jaworksi fulfilled her duty, by assisting Moreland in seeking out a home that fit his criteria, arranging visits to the property, and repeatedly requesting the garage key. She also advised him to obtain a general home inspection and offered to supply him with names of professional inspectors. She accompanied him on his own inspection and provided him with the inspection approval form, which he voluntarily signed, indicating that he accepted the property in its present "as is" condition. She reviewed the purchase agreement and explained to him that the home was being sold "as is." {¶ 35} Therefore, the trial court properly granted summary judgment in favor of Jaworski and 2100 Realty. Moreland's second assignment of error is overruled. Lentz, Davis, and ERA Lentz {¶ 36} In his third assignment of error, Moreland argues that the trial court erred in granting summary judgment in favor of Lentz, Davis, and ERA Lentz because issues of fact exist regarding material misrepresentations made to him. {¶ 37} Moreland claims that Lentz, Davis, and ERA Lentz committed fraudulent misrepresentations by not investigating the property before listing it and by concealing the condition of the garage. He also claims that Lentz misrepresented the seller's wishes about entry to the garage. {¶ 38} A cause of action cannot be maintained against the seller or its agent for fraudulent nondisclosure when the property is being sold "as is." Kossutich v. Krann (Aug. 16, 1990), Cuyahoga App. No. 57255, citing Kaye v. Buehrle (1983),8 Ohio App.3d 381, and Vilk v. Radley (Aug. 18, 1989), Lake App. No. 13087. In the instant case, the property was sold "as is" and, thus, any claim for fraudulent nondisclosure is barred. {¶ 39} However, even if real property is being sold "as is," a cause of action can still be maintained for fraudulent misrepresentation. Kossutich, supra. The elements for a cause of action for fraudulent misrepresentation include: (1) an actual or implied misrepresentation, (2) which is material to the transaction, (3) made with knowledge that the statement is false, (4) with the intent to mislead another, (5) who relies on the misrepresentation, and (6) with resulting injury. Southworth v.Weigand (Sept. 5, 2002), Cuyahoga App. No. 80561, citingKossutich, supra. {¶ 40} R.C. 4735.67 governs a real estate agent's duty to disclose the physical condition of the property, which provides, in part: "(A) A licensee shall disclose to any purchaser all materialfacts of which the licensee has actual knowledge pertaining tothe physical condition of the property that the purchaser wouldnot discover by a reasonably diligent inspection, includingmaterial defects in the property, environmental contamination,and information that any statute or rule requires be disclosed.For purposes of this division, actual knowledge of such materialfacts shall be inferred to the licensee if the licensee acts withreckless disregard for the truth. (B) A licensee is not required to discover latent defects inthe property or to advise on matters outside of the scope of theknowledge required for real estate licensure, or to verify theaccuracy or completeness of statements made by the seller, unlessthe licensee is aware of information that should reasonably causethe licensee to question the accuracy or completeness of suchstatements." {¶ 41} Moreland claims that Lentz committed fraud by failing to disclose to Jaworski that he had never seen the interior of the garage and that he had no idea of its condition. He further claims that this nondisclosure misled Jaworski into believing that there was nothing wrong with the garage. These claims are legally and factually unfounded. {¶ 42} Lentz statutorily must disclose all material facts concerning the property to which he had actual knowledge, and he is not required to discover latent defects or to advise on matters outside the scope of his knowledge. R.C. 4735.67. It is uncontroverted that Lentz did not inspect the garage and, thus, he did not have actual knowledge of the condition of the garage. Thus, Lentz was not required to disclose that he never viewed the garage. Additionally, there is nothing in the record to indicate that Jaworski was misled by Lentz into believing that there was nothing wrong with the garage. {¶ 43} During deposition, Moreland admitted that he never had any conversations with anyone from ERA Lentz. Because he did not have any conversations with Lentz, Davis or ERA Lentz, no misrepresentation could occur. "Absent a demonstration of misrepresentation, a cause of action for fraud does not arise."Kossutich, supra, citing Hibbett v. Cincinnati (1982),4 Ohio App.3d 128. Additionally, Moreland admitted that he did not rely upon any representations or concealment by Lentz in purchasing the property. His deposition testimony included the following: "A: Well, I had a disclosure form, and so the disclosure, tomy knowledge is supposed to state any problems, which the garageor the basement wasn't on there. Q: Was that your primary reliance in purchasing the house? A: That and looking at the home ourselves." {¶ 44} Moreland also claims that Lentz actively concealed the condition of the garage by failing to give Jaworski a key to the garage after repeated requests. He admitted that Jaworski contacted him for the garage key, but he stated in regard to the first request: "My response was that the — you know, the keys were provided,they've got to be there somewhere." {¶ 45} After the second request by Jaworski, Lentz told her: "That, again, the keys were there. The keys were handed to me,they were put in the box. They were there. * * * * * I did tell them to check the kitchen, check somewhere, thekeys have to be there. Again, if an agent had mis — had notplaced a third key back in that box, they may have put it on thekitchen counter, to check." {¶ 46} Lentz eventually found the key on the landing upon opening the front door of the house. However, he never told Jaworski of his discovery because he found the key six weeks after the purchase agreement was signed, when he went to remove the lockbox. {¶ 47} The record reveals that Lentz did not conceal the condition of the garage. The padlock was already on the garage and Lentz did not place it there. It is clear from the record that he never went inside the garage, so he did not know its condition. Additionally, he stated that he went to the house only one time after he listed the property, just to remove the lockbox. {¶ 48} Moreland also claims that Lentz misrepresented to Jaworski that the seller did not want anyone on the property prior to closing. Lentz stated that he told Jaworski that the seller did not want anyone to have access to the house until the title transferred. He made this representation to Jaworski without first conferring with the seller. He based this decision on being requested by the seller to take off the lockbox and to return the keys to her. {¶ 49} This representation to Jaworski does not constitute fraudulent misrepresentation because he did not knowingly make a false statement. His statement was based on the fact that the seller wanted the keys back and the lockbox off. Lentz stated: "Well, again, they requested the lockbox off, they requestedthe keys, and typically I — you know, the agent just holds ontothe key until title transfers just to make it easier to give themthe keys, and when I gave the keys — they stopped over into myoffice to pick up the keys, so I handed them the keys * * * well,do you want me to keep the keys? No, we want the keys." {¶ 50} His decision not to allow Moreland access to the property prior to the title transfer was based upon the fact that the sellers wanted the keys back. {¶ 51} We find that Moreland has failed to present evidence demonstrating genuine issues of material fact as to whether Lentz made material misrepresentations to Moreland about the condition of the property. Therefore, the trial court properly granted summary judgment in favor of Lentz, Davis, and ERA Realty. Moreland's third assignment of error is overruled. Ksiazek — the Seller {¶ 52} In his fourth assignment of error, Moreland argues that the trial court erred in granting summary judgment in favor of the seller, Ksiazek, because genuine issues of material fact exist regarding fraudulent misrepresentations as to the condition of the house and garage.1 {¶ 53} R.C. 5302.30 requires that a seller of residential real estate disclose any information that he possesses concerning the existence of a material defect in the premises. The statute requires that the seller disclose this information by delivering to the buyer a property disclosure form. In the form, the seller must disclose material matters relating to the physical condition of the property and any material defect relating to the physical condition of the property that is within the actual knowledge of the seller. See Southworth, supra. {¶ 54} However, R.C. 5302.30(B)(2)(g) provides that disclosure is not required when the transfer of real property is being done by a fiduciary in the course of the administration of the decedent's estate. Therefore, Ksiazek did not owe a statutory duty to Moreland to disclose any material defects in the premises. {¶ 55} The doctrine of caveat emptor operates to relieve the vendor of the obligation to reveal every imperfection that might exist in a residential property. Buchanan v. Geneva ChervenicRealty (1996), 115 Ohio App.3d 250, 255, 685 N.E.2d 265. Caveat emptor precludes recovery in an action concerning a defect in real estate where "(1) the condition complained of is open to observation or discoverable upon reasonable inspection, (2) the purchaser had unimpeded opportunity to examine the premises, and (3) there is no fraud on the part of the vendor." Layman v.Binns (1988), 35 Ohio St.3d 176, 519 N.E.2d 642, syllabus. {¶ 56} "An `as is' clause in a real estate contract places the risk upon the purchaser as to the existence of defects and relieves the seller of any duty to disclose." Rogers v. Hill (1998), 124 Ohio App.3d 468, 471. An "as is" clause, however, does not relieve the seller of liability for fraudulent misrepresentation or fraudulent concealment." Id. {¶ 57} Therefore, as long as a seller does not engage in fraud, these two principles, caveat emptor and the "as is" clause, bar any claims brought by a buyer. {¶ 58} Because Moreland agreed to take the property "as-is," Ksiazek was not required to disclose latent defects in order to prevail under the doctrine of caveat emptor. Therefore, Moreland's claims regarding the basement and garage are barred.Eiland v. Coldwell Banker Hunter Realty (1997),122 Ohio App.3d 446, 457. {¶ 59} Moreland's claim regarding the basement fails because Ksiazek adequately established the defense of caveat emptor. The problem complained of was open to observation, nothing impeded Moreland's discovering the problem, and there is no evidence that Ksiazek acted fraudulently. {¶ 60} Ksiazek indicated in the property disclosure form, although not statutorily required to do so, that the basement had "no leakage but some dampness in SW corner of basement." Moreland, upon inspection, noted that there was some dampness in the basement, as his deposition testimony reveals the following: "Q: And did they voice any concerns to you? * * * Q: Okay. How about the house itself? A: The basement, they — we had noticed that it was — haddampness problems in the past. * * * Q: So when you inspected the home with your father and yourbrother-in-law and his dad, that was something that they pointedout to you and you were aware of when you purchased it? A: Correct. Q: It's something that you had seen before, is what I'm tryingto say. A: Right. Dampness." {¶ 61} It is clear from Moreland's deposition that he was able to observe the basement and nothing prevented his discovering the problem. {¶ 62} Moreland's claims against Ksiazek also fail regarding the garage because Ksiazek did not act fraudulently in padlocking the garage door. While it is true that Moreland was unable to examine the garage because no key was available, there is no evidence that Ksiazek acted fraudulently to prevent his access to the garage. Lentz stated at his deposition that Ksiazek gave him three keys, two for the house and one for the garage, and that he placed them in the lockbox. Lentz also stated that he never informed Ksiazek that the key to the garage was missing. Ksiazek thus had no way of knowing that access to the garage was unavailable. {¶ 63} Additionally, Moreland cannot prevail on his claim for fraudulent misrepresentation because the only representation made by Ksiazek to him was on the residential property disclosure form. Moreland has offered no evidence to indicate that Ksiazek knew of any additional problems, in the basement or in the garage, other than those already disclosed. {¶ 64} We find that Moreland failed to present evidence demonstrating genuine issues of material fact as to whether Ksiazek fraudulently misrepresented the condition of the property. We also find the doctrine of caveat emptor bars any claim against Ksiazek. {¶ 65} Therefore, the trial court properly granted summary judgment in favor of Ksiazek. Moreland's fourth assignment of error is overruled. Judgment affirmed. It is ordered that appellees recover of appellant 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Sweeney, P.J. and Gallagher, J. concur. 1 We note that Ksiazek's deposition was not filed in the trial court. Thus, any reference to her deposition by the parties is inadmissible for summary judgment purposes. Civ.R. 56(C).

2016-07-06 06:41:44.21557+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, William C. Richards, Jr., appeals from the judgment of the Summit County Court of Common Pleas denying his motion to disqualify counsel and his motion to vacate a default judgment. We affirm. I. On April 7, 1999, appellee, Gary D. Friedman, M.D., filed a foreign judgment in the Summit County Court of Common Pleas based upon a default judgment entered in the state of California. On September 3, 1999, the Summit County Court of Common Pleas granted a default judgment against Frederick R. Kalail, Sr. and Mr. Richards. On October 24, 2000, Mr. Richards filed a motion to vacate, stay, quash and other relief. In such motion, Mr. Richards asserted that he was never served with summons or complaint in the Ohio default judgment action. Additionally, he asserted that he was never served with summons or any other process in the California default judgment action. Mr. Richards also filed a motion to disqualify Mr. Friedman's counsel. Mr. Friedman responded to the motions on November 15, 2000. A hearing was held before the trial court on May 24, 2001, and, on June 20, 2001, the trial court issued a judgment entry denying Mr. Richards' motions. This appeal followed. II. Mr. Richards asserts two assignments of error. We will discuss each in turn. A. First Assignment of Error THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING DEFENDANT WILLIAM C. RICHARDS, JR.'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL. In Mr. Richards' first assignment of error, he asserts that the trial court erred when it denied his motion to disqualify Mr. Friedman's counsel. We disagree. In reviewing the decision of a trial court regarding the disqualification of a party's chosen counsel, this court applies an abuse of discretion standard. Kitts v. U.S. Health Corp. of S. Ohio (1994),97 Ohio App.3d 271, 275. An abuse of discretion is more than an error of judgment, but instead demonstrates "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Id. An attorney may not represent an interest which is adverse to that of a former client when a substantial relationship exists between the subject matter of the former representation and the matter encompassed by the present representation. Phillips v. Haidet (1997), 119 Ohio App.3d 322,325-26; see, also, Kala v. Aluminum Smelting Refining Co., Inc. (1998), 81 Ohio St.3d 1, 8. It is the burden of the party moving for disqualification of an attorney to affirmatively show the existence of a substantial relationship between the former and present subject matters.Phillips, 119 Ohio App.3d at 325-26. Matters are substantially related when there is a "commonality of issues." Id. at 327. "[T]he moving party must provide some evidence that a need for the disqualification exists. A mere allegation that allowing the representation presents the possibility of a breach of confidence or the appearance of impropriety is not enough." Id. at 327. Significantly, disqualification is a drastic measure which should only be imposed if it is absolutely necessary. Kala,81 Ohio St.3d at 6. In the case at bar, Mr. Richards filed a motion to disqualify Mr. Friedman's counsel. Specifically, Mr. Richards asserted that Irving B. Sugerman, who was representing Mr. Friedman in the Ohio default judgment action, had a conflict of interest in his representation because Mr. Sugerman was previously associated with the Haley Law Offices Co., L.P.A. ("Haley"). In his affidavit, Mr. Richards stated that Haley had represented him for over ten years and that, on several occasions in the past, he had been introduced to and spoken with Mr. Sugerman. While relating that Mr. Sugerman did not work directly on his representation, Mr. Richards stated that Mr. Sugerman was associated with Haley when Haley represented Mr. Richards in matters concerning personal and business finances, estate planning, litigation, and other transactions. In response, Mr. Friedman asserted that Mr. Sugerman did not have any involvement with Mr. Richards because, at all times, Mr. Richards was a client of R. Scott Haley, another attorney at the Haley law firm. Additionally, Mr. Friedman explained that Mr. Haley's representation of Mr. Richards was primarily in the nature of estate planning. Consequently, he argued that the California default judgment was filed well after Mr. Sugerman had terminated his association with Haley in 1995 and there did not exist a substantial relationship between the subject matter of the former representation and the present representation — the present action being solely related to the domestication of a foreign judgment in Ohio. On June 20, 2001, the trial court denied Mr. Richards motion to disqualify Mr. Friedman's counsel, holding that Mr. Richards had failed to establish that the former representation by Haley, which primarily involved estate planning, and the current representation, which primarily involved the domestication of a foreign judgment, were substantially related. Based on the foregoing, we cannot say that it was error for the trial court to find that Mr. Richards failed to prove that his former representation was substantially related to the domestication of a foreign judgment. Accordingly, we conclude that the trial court did not abuse its discretion in denying Mr. Richards' motion to disqualify Mr. Friedman's counsel. Mr. Richards' first assignment of error is overruled. B. Second Assignment of Error THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING DEFENDANT WILLIAM C. RICHARDS, JR.'S MOTION TO VACATE THE DEFAULT JUDGMENT. In the second assignment of error, Mr. Richards asserts that the trial court erred in finding that he was properly served in the Ohio default judgment action. Further, he asserts that, as he was never served in the California default judgment action, personal jurisdiction was lacking. For these reasons, Mr. Richards contends that the trial court erred in denying his motion to vacate the default judgment. We disagree. The decision of a trial court to deny a motion to vacate judgment will not be overturned absent an abuse of discretion. Talarek v. Miles, etal. (July 23, 1997), Lorain App. No. 96CA006567, unreported, at 9. An abuse of discretion is more than an error of judgment, but instead demonstrates "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons, 66 Ohio St.3d at 621. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Id. With regard to service in the Ohio default judgment, due process requires that service of process is accomplished in a manner reasonably calculated to apprise interested parties of the pendency of the action and to give such parties an opportunity to appear and present objections. Talarek, supra, at 5 (holding that due process does not require actual notice but rather notice that is reasonably calculated to apprise a defendant of an action's pendency). Additionally, in Ohio, service of process must satisfy the requirements of Civ.R. 4 et seq. Id. Civ.R. 4.1(A) requires that "service of any process shall be by certified or express mail unless otherwise permitted by [the] rules." Notably, under the Ohio Rules of Civil Procedure, certified mail does not require actual service upon the party receiving the notice but rather is effective upon certified delivery. Castellano v. Kosydar (1975),42 Ohio St.2d 107, 110. Moreover, service need not be to a party's actual address so long as it is made to an address where there is a reasonable expectation that it will be delivered to such party. United Home Fed. v.Rhonehouse (1991), 76 Ohio App.3d 115, 124. Proper service of process is needed before a court can render a valid default judgment. Westmorelandv. Valley Homes Mut. Hous. Corp. (1975), 42 Ohio St.2d 291, 293. While there is a presumption of proper service where the Civil Rules on service are followed, this presumption is rebuttable by sufficient evidence that service was not accomplished. Talarek, supra, at 9. For instance, an unchallenged affidavit made by a party may be sufficient to overcome the presumption of service. Id. The determination of whether service of process was sufficient in any particular case rests within the sound discretion of the court. Thomas v. Corrigan (1999),135 Ohio App.3d 340, 344. "In making this determination, the trial court may assess the competency and credibility of the evidence of nonservice."Talarek, supra, at 9. Additionally, each case should be examined on its particular facts to determine whether the service of process was reasonably calculated to reach the interested party. Thomas,135 Ohio App.3d at 344. The Summit County Court of Common Pleas granted a default judgment against Mr. Kalail and Mr. Richards on September 3, 1999. In response, on October 24, 2000, Mr. Richards filed a motion to vacate, asserting that he was never served with summons or complaint in the Ohio default judgment action. Along with the motion, Mr. Richards attached an affidavit which stated that he never received service of process in Ohio. Specifically, he explained that the certified mail was not addressed to his residence at 511 Rothrock Road but rather was addressed to 483 Rothrock Road. In response to Mr. Richards' contention, on November 15, 2000, Mr. Friedman asserted that the summons and complaint were sent to Mr. Richards by certified mail to 483 Rothrock Road because an investigation revealed that this address was where Mr. Richards accepts and directs his mail service. Mr. Friedman explained that 483 and 511 Rothrock Road are adjoining properties which are connected by a common private drive and which are both owned by Mr. Richards' wife, Helen Link-Richards. Mr. Friedman stated that Marilyn Waters, Mr. Richards' daughter who signed the certified mail on behalf of Mr. Richards, currently lives at 483 Rothrock Road. Further, Mr. Friedman attached as exhibits the results of his search including, for example, Mr. Richards' June 1, 1999 credit report from Trans Union; each of these exhibits purported to show that Mr. Richards had used and was still using 483 Rothrock Road as his address. In a hearing held on May 24, 2001, the parties stipulated to the following facts: (1) on April 20, 1999, Ms. Waters signed the service card addressed to Mr. Richards from Mr. Friedman; (2) Ms. Waters currently resides at 483 Rothrock Road, a property owned by her mother which adjoins 511 Rothrock Road; (3) mail addressed to Mr. Richards is routinely delivered to 483 Rothrock Road and, when received, is routinely taken next door to 511 Rothrock Road where it is placed on the kitchen counter; and (4) Ms. Waters had no reason to believe that this normal procedure was not followed on April 20, 1999. In its June 20, 2001 judgment entry, the trial court denied Mr. Richards' motion to vacate, holding that Mr. Richards was reasonably apprised of the action's pendency in accordance with the mandates of due process. In making such determination, the trial court assessed the competency and credibility of the evidence presented. See Talarek, supra, at 9. Upon review of the evidence as highlighted above, we cannot say that it was an abuse of discretion for the trial court to find that the service of process complied with the requirements of Civ.R. 4 et seq. and was reasonably calculated to provide Mr. Richards notice. Accordingly, Mr. Richards' assigned error as to service in the Ohio default judgment is without merit. Furthermore, as service was accomplished in the Ohio judgment, Mr. Richards had the opportunity to assert his objections regarding the alleged lack of personal jurisdiction of the California trial court when it entered default judgment against Mr. Richards. Although a party can defend against the enforcement of a foreign judgment on the ground that the court rendering the judgment lacked personal jurisdiction, "[t]he defense of lack of personal jurisdiction may by lost by failure to assert it seasonably[.]" Nichols, Rogers Knipper LLP v.Warren (Jan. 11, 2002), Montgomery App. No. 18917, unreported, 2002 Ohio App. LEXIS 58, at *3; see, generally, Hawkins Pro-Cuts, Inc. v. Garcia (Jan. 16, 1998), Montgomery App. No. 16383, unreported, 1998 Ohio App. LEXIS 96, at *11-12. Accordingly, by failing to object to the California judgment in the Ohio trial court, Mr. Richards has waived the right to assert the lack of personal jurisdiction on appeal. Mr. Richards' second assignment of error is overruled. III. Mr. Richards' 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 Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. Exceptions. SLABY, P.J. CONCURS.

2016-07-06 06:41:44.248865+00

OPINION {¶ 1} Appellant, the mother of V.M., appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, which granted permanent custody of her daughter, V.M., to Franklin County Children Services ("FCCS"). For the following reasons, we affirm. {¶ 2} V.M. was born on May 13, 1998. On July 27, 1998, FCCS filed neglect and dependency complaints on V.M.'s behalf following appellant's arrest for robbery. On October 1, 1998, the complaints were amended to identify V.M.'s father and include the information that V.M. was born with marijuana and barbiturates in her system. On November 9, 1998, the Franklin County Juvenile Court adjudicated V.M. a dependent minor and awarded FCCS temporary custody. The court also adopted FCCS's case plan, which listed the goals appellant was expected to achieve to be reunified with V.M. The plan required appellant to complete parenting and anger management classes, maintain independent housing, refrain from drug use and meet her daughter's needs. {¶ 3} On May 27, 1999, FCCS filed a motion requesting permanent custody of V.M. pursuant to R.C. 2151.413. After a hearing, a magistrate recommended that the trial court grant the motion. On August 10, 2000, the trial court overruled objections to the magistrate's recommendation and awarded FCCS permanent custody of V.M. However, on March 20, 2001, we reversed the trial court's decision and remanded the matter for a new hearing upon determining that appellant had received ineffective assistance of counsel. In re McLemore (Mar. 20, 2001), Franklin App. No. 00AP-974. {¶ 4} On May 23, 2001, FCCS filed a new motion for permanent custody pursuant to R.C. 2151.413. The matter was heard before a magistrate, who also recommended granting permanent custody. Appellant filed numerous objections to the magistrate's decision. On June 19, 2003, the trial court overruled appellant's objections and adopted the magistrate's recommendation awarding permanent custody to FCCS. On appeal, we found that the trial court committed plain error by relying on inadmissible hearsay evidence in reaching its decision. Thus, on February 12, 2004, we reversed the trial court's decision and remanded the matter for a new hearing. In re McLemore, Franklin App. No. 03AP-714,2004-Ohio-680. {¶ 5} On remand, the case was assigned to a visiting judge of the Franklin County Juvenile Court. The hearing occurred over the course of four days, beginning November 30, 2005 and concluding on December 7, 2005. The trial court heard testimony from Kelly Russell (V.M.'s case worker), Patricia Stephens (an FCCS caseworker who assisted with V.M.'s case), Richard Parry (V.M.'s guardian ad litem), appellant, and appellant's mother (V.M.'s grandmother).1 On December 21, 2005, the trial court issued a judgment entry granting FCCS's motion for permanent custody. {¶ 6} Apparently, appellant did not receive service of the December 21, 2005 judgment entry. Accordingly, the trial court granted a motion for relief from judgment, and reissued the order as of February 7, 2006. Appellant now raises the following assignments of error: First Assignment of Error Ohio Revised Code § 2151.414(B)(1)(d) is unconstitutional under the due process clauses of the state and federal Constitutions as it creates an irrebuttable presumption of parental unfitness. Second Assignment of Error The trial court erred in granting the motion for permanent custody as FCCS failed to make reasonable efforts to implement the case plan. Third Assignment of Error The trial court erred in finding that an award of permanent custody was in the best interests of the child, pursuant to R.C. § 2151.414(D). {¶ 7} Appellant's first assignment of error challenges the constitutionality of R.C. 2151.414(B)(1)(d). Appellant asserts that R.C. 2151.414(B)(1)(d) creates an irrebuttable presumption that the parent is unfit. Parents have a constitutionally protected interest in the care, custody and control of their children. Troxel v. Granville (2000), 530 U.S. 57,120 S.Ct. 2054. However, parental rights are not absolute, but are subject to the ultimate welfare of the child. In re S.W., Franklin App. No. 05AP-1368, 2006-Ohio-2958, at ¶ 7, citing In re Cunningham (1979), 59 Ohio St.2d 100, 106. The state may terminate a parent's rights in order to protect the best interests of the child. In re Wise (1994), 96 Ohio App.3d 619, 624. {¶ 8} Ohio's laws governing child custody and protection were created, and are to be construed, to respect the parent's fundamental right and to protect the ultimate welfare of the child. In re Wise, supra, at 624. As this court has previously recognized, these "statutes appropriately reflect the need to balance the extraordinarily significant rights and interests: [the] parents' * * * interest in the custody, care, nurturing, and rearing of their own children, and the state's parenspatriae interest in providing for the security and welfare of children under its jurisdiction." In re Thompson (Apr. 26, 2001), Franklin App. No. 00AP-1358; In re Thompson, Franklin App. No. 02AP-557, 2003-Ohio-580, at ¶ 23, discretionary appeal not allowed, 98 Ohio St.3d 1515, 2003-Ohio-1572. We have found that the balance thus struck is not unconstitutional. Id. {¶ 9} We have previously weighed appellant's assertion that R.C. 2151.414(B)(1)(d) is unconstitutional in that it creates an irrebuttable presumption of parental unfitness. On each occasion, our review found the argument advanced by appellant to lack merit. In re S.W., supra, at ¶ 11; In re J.S., Franklin App. No. 05AP-615, 2006-Ohio-702, at ¶ 11; In re C.C., Franklin App. No. 04AP-883, 2005-Ohio-5163, at ¶ 11-12; In re Abram, Franklin App. No. 04AP-220, 2004-Ohio-5435, at ¶ 12-13; In re Brooks, Franklin App. No. 04AP-164, 2004-Ohio-3887. We see no reason to diverge from this precedent. We find that R.C. 2151.414(B)(1)(d) is not unconstitutional. Appellant's first assignment of error is overruled. {¶ 10} In her second assignment of error, appellant argues that the trial court erred in terminating her parental rights where FCCS failed to make reasonable efforts to implement the assigned case plan. As was the case with her first assignment of error, this court has previously found the basis for appellant's contention to be without merit. We do so again. {¶ 11} Pursuant to R.C. 2151.419, a court must determine whether the children's services agency involved has made reasonable efforts to prevent the removal of the child from the child's home "at any hearing held pursuant to section 2151.28, division (E) of section 2151.31, or section 2151.314 [2151.31.4] 2151.33, or 2151.353 [2151.35.3] of the Revised Code." R.C.2151.419(A)(1). Absent from that listing is R.C. 2151.413 or2151.414, the sections under which FCCS filed its complaint and the trial court adjudicated the issues. Given that disparity, Ohio courts have held that the "reasonable efforts" requirement in R.C. 2151.419 is not applicable to permanent custody cases involving R.C. 2151.413 and 2151.414. In re S.M., Franklin App. No. 05AP-1262, 2006-Ohio-2529, at ¶ 12; In re J.S., supra, at ¶ 17; In re S.S., Franklin App. No. 05AP-204, 2005-Ohio-4282, at ¶ 17; In re S.P., Butler App. No. CA2004-10-255,2005-Ohio-1079, at ¶ 5. Accordingly, we overrule appellant's second assignment of error. {¶ 12} Appellant's third assignment of error challenges whether there is evidentiary support for the trial court's conclusion that permanent custody is in V.M.'s best interests as required by R.C. 2151.414(D). The decision of a trial court will not be disturbed on appellate review unless it is against the manifest weight of the evidence. In reviewing a judgment, an appellate court presumes that the findings of the trial court are correct. In re Brofford (1992), 83 Ohio App.3d 869, 876. Judgments supported by some competent, credible evidence going to all essential elements will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. FoleyConstr. Co. (1978), 54 Ohio St.2d 279, paragraph one of the syllabus. {¶ 13} In order to obtain an award of permanent custody, FCCS must demonstrate by clear and convincing evidence that (1) one of the four factors enumerated in R.C. 2151.414(B)(1) applies, and (2) permanent custody is in the best interest of the child. R.C.2151.414(B)(1); In re O.J., Franklin App. No. 05AP-810, 2006-Ohio-286, at ¶ 10. Similarly, the trial court must find that both requirements have been met before an award of permanent custody may be ordered. Id. Appellant's third assignment of error does not challenge the trial court's finding that V.M. was in the custody of FCCS for a period of 12 months or more out of a consecutive period of 22 months ending on or after March 18, 1999. Accordingly, our review is limited to the trial court's determination that granting permanent custody of V.M to FCCS was in V.M.'s best interest. {¶ 14} In assessing the best interests of the child, a trial court is guided by R.C. 2151.414(D). That statute provides, in pertinent part: In determining the best interest of a child * * * 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 though 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. The trial court addressed each of these factors in its entry. {¶ 15} As to the first factor, the trial court determined that V.M. had only interacted with appellant 17 times over the 44-month period, for a total of 17 hours. The trial court further noted that V.M. did not become familiar with appellant until after January 2002, when appellant began making regular visits. Moreover, the court noted that V.M. had bonded with her foster family and was very close to them. {¶ 16} The evidence presented at trial supports the trial court's observations. Kelly Russell, V.M.'s caseworker, testified that there was little bonding between V.M. and appellant. Appellant was incarcerated for two 90-day periods, during which time she could not see V.M. Appellant also admitted that she missed visits because she used poor judgment, overslept or mixed up the dates of the scheduled visits. The guardian ad litem reported there was some bonding between appellant and V.M., but admitted observing only one 30-minute visitation during the relevant time period. In contrast, V.M. has lived with her foster family for all but three months of her life and refers to them as "mom" and "dad." {¶ 17} Under R.C. 2151.414(D)(2), the court concluded that, as of March 20, 2002, V.M. was not mature enough to express her own wishes regarding custody. At that time, V.M. was only three years old, and we find the trial court's conclusion is appropriate. While the guardian ad litem recommended against permanent custody, V.M.'s appointed counsel advocated throughout the proceedings that permanent custody should be awarded to FCCS. The failure of the trial court to expressly note the report and position of the guardian ad litem does not render the decision against the manifest weight of the evidence. It is the task of the trial court to judge the credibility of witnesses and their testimony. The trial court did so in this instance. {¶ 18} The trial court next addressed V.M.'s custodial history under R.C. 2151.414(D)(3). The court noted that V.M. was in appellant's custody for less than three months following her birth on May 13 until July 27, 1998. Since July 27, 1998 forward, V.M. was in the custody of FCCS and living with her foster family. This factor weighs in favor of the trial court's decision to award permanent custody to FCCS. {¶ 19} Under R.C. 2151.414(D)(4), the trial court evaluated V.M.'s need for a legally secure placement and found that V.M.'s need for secure placement could not be achieved without granting FCCS permanent custody. Although there was evidence that appellant's ability to provide a stable environment was improving, there also was evidence that appellant continued to exhibit difficulties with anger management and had not completely overcome her problems with drugs and alcohol. On the other hand, there was no dispute that V.M. enjoyed a loving and stable environment with her foster family. {¶ 20} Under the final factor set out in R.C. 2151.414(D), the court was required to consider whether any of the factors listed in R.C. 2151.414(E)(7) through (E)(11) applied to the relationship between V.M. and appellant. The court found that V.M. was abandoned for two 90-day periods. R.C. 2151.414(E)(10). There is evidence in the record that supports the court's finding. In fact, appellant admits that she did not visit V.M. at all from January to June 1999. {¶ 21} The trial court's conclusions weigh in favor of granting permanent custody of V.M. to FCCS. Each of the findings is supported by competent and credible evidence. Accordingly, we find that trial court's award of permanent custody to FCCS is not against the manifest weight of the evidence. Appellant's third assignment of error is overruled. {¶ 22} Having overruled all of appellant's assignments of error, we affirm the judgment of the trial court. Judgment affirmed. Bryant and Whiteside, JJ., concur. Whiteside, J., retired of the Tenth District Court of Appeals, assigned to active duty under the authority of Section 6(C), Article IV, Ohio Constitution. 1 The trial court adopted the view of appellant, FCCS and V.M.'s guardian ad litem and limited the time frame for adjudication of the permanent custody motion from the child's date of birth to March 20, 2002, the last day of the second trial. Therefore, all evidence considered originates from that period.

2016-07-06 06:41:44.276658+00

Joanne Moody appeals the Athens County Municipal Court judgment in favor of Thomas Blower. Moody sued Blower to recover the cost of waterproofing the basement of a house she purchased from him. The trial court held that Moody failed to prove, by a preponderance of the evidence, that Blower fraudulently misrepresented the condition of the basement, and that the doctrine of caveat emptor barred her claim. Moody appeals, asserting that the trial court's judgment is against the weight of the evidence. We disagree, because the record contains competent, credible evidence supporting the trial court's judgment. Accordingly, we affirm the judgment of the trial court. I. Blower and his three sisters inherited a home from their mother upon her death in February 1997. Blower never lived in the house. He and his sisters rarely visited their mother at her house, because they did not have a good relationship with their step-father. After their step-father died in August 1995, Blower frequently visited his mother. Blower entered the basement occasionally to add salt to the water softener. In April 1997, Blower sold the house to Moody. As part of the negotiations, Blower signed a residential property disclosure form which indicated that he had no knowledge of water leaking into the basement. The disclosure form also reflected that Blower did not live in the house, and that the disclosure form was not intended as a substitute for a house inspection. Before Moody purchased the house, she toured it twice. On the first occasion, Moody's realtor accompanied her. They entered the basement, whereupon Moody noticed a line across the wall. She inquired about whether the basement had a leakage problem, and her realtor replied that it did not. She made an offer on the house, which Blower rejected. On the second occasion, Moody and her friend, Frank Shumway, were driving by the house when they saw Blower working in the yard. Shumway recognized Blower as a former co-worker, and offered to introduce Moody to him. At trial, Moody testified that she asked Blower about whether the basement had water problems, and Blower responded that the house "had a nice, dry basement." Blower testified that he told Moody that there were "no problems" with the house, but denied stating anything specifically about the basement. Shortly after Moody took occupancy of the house, the basement flooded. Moody hired John Rogers, who waterproofed the basement by repairing a structural defect which allowed water to enter the basement. Moody sued Blower for the amount Rogers charged her, $6,200. At trial, Rogers offered his expert opinion that water collected in the walls of the basement and seeped through the walls due to a structural defect in the construction of the house and its foundation. Rogers pointed out that, within the past three years or so, someone attempted to remedy the problem by applying a sealant to the wall. Additionally, Rogers testified that the mildew in the basement could not have formed quickly. Therefore, Rogers opined that water had been leaking into the basement for a lengthy period of time. Finally, Rogers testified that the appearance of the basement would alert a reasonable lay person to the possibility that the basement had a water problem. Rogers qualified his opinion by adding that, while he did not wish to sound sexist, he might not expect a woman to recognize the warning signs. At trial, Blower asserted the defense of caveat emptor. Blower also testified that he never saw any water in the basement during the time his mother owned the house. Blower's sister, Donna Powell, also testified that she occasionally entered the basement and never saw any water in it. Another one of Blower's sisters, Mary Lee Dunkle, testified that she was at the house when sewage backed up into the basement on one occasion. Dunkle stated that Blower was vacationing in Florida at the time of the sewage back up, and that she did not recall telling him about the incident until after Moody filed suit. Finally, Dunkle testified that she never saw the basement flood via water seeping through the walls. At the close of evidence, the trial court ordered both parties to submit post-trial briefs. After considering the parties briefs, the trial court entered judgment in favor of Blower. In its opinion, the trial court found that Moody failed to prove, by a preponderance of the evidence, that she was entitled to relief. Moody appeals, asserting the following single assignment of error: THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT HAD NOT MET HER BURDEN IN ESTABLISHING THAT THE APPELLEE HAD FRAUDULENTLY MISREPRESENTED THE CONDITION OF THE PROPERTY. II. Blower asserts that Moody sued for negligent misrepresentation, that she never raised a fraud claim, and that the trial court properly dismissed Moody's claim upon finding that the doctrine of caveat emptor precluded her recovery for negligent misrepresentation. Blower contends we should not even consider Moody's assignment of error, as it alleges that she proved fraudulent misrepresentation, an issue that was not even before the trial court. Civil Rule 15(B) provides that issues not raised by the pleadings may be tried by express or implied consent of the parties. The pleadings should be amended to reflect such issues, but a party's failure to amend the pleadings will not affect the result of the trial of those issues. Civ.R. 15(B). In determining whether to allow a party to amend the pleadings, the trial court's primary consideration must be whether the amendment "will put [the opposing party] to serious disadvantage in presenting his case." Hall v. Bunn (1984),11 Ohio St.3d 118, paragraph one of the syllabus. The decision is a matter within the sound discretion of the trial court, which we will not reverse unless we find that the court's ruling was unreasonable, arbitrary, or unconscionable. Mossa v. W. CreditUnion, Inc. (1992), 84 Ohio App.3d 177, 181; State v. Adams (1980), 62 Ohio St.2d 151, 157. Moody did not allege fraud in her complaint. However, Moody did allege that Blower stated the basement had no water problems, though he knew the basement flooded frequently. In her summation and post-trial brief, Moody asserted that Blower fraudulently misrepresented the condition of the basement. In his summation and post-trial brief, Blower argued that Moody failed to prove fraudulent misrepresentation, and therefore that Moody could not overcome caveat emptor and recover. In its judgment entry, the trial court found that Moody failed to prove, by a preponderance of the evidence, that she was entitled to recover "on any of various potential causes of action." The court then cited Cardi v. Gump (May 22, 1997), Cuyahoga App. No. 71278, unreported, a case examining the applicability of caveat emptor when the seller committed fraudulent misrepresentation with respect to a wet basement. Though Moody did not amend her complaint to include an allegation of fraud, we find that Blower impliedly consented to trial on the issue. Moody and Blower each presented evidence regarding whether Blower actually knew about the leaks in the basement. Actual knowledge is a component of fraudulent misrepresentation. Moreover, while we recognize that fraud must be pled with particularity, Moody did so by alleging actual knowledge in her complaint. Finally, the trial court actually resolved the fraud issue. Moody's failure to amend her complaint to include a fraud allegation does not affect the validity of the trial court's determination that Blower did not commit fraud. Therefore, we find that Moody is entitled to appeal the trial court's determination that Blower did not commit fraud. III. Moody asserts that the trial court erred by concluding that she did not prove, by a preponderance of the evidence, that she is entitled to recovery. Thus, Moody asserts that the trial court's judgment is against the manifest weight of the evidence. A reviewing court will not reverse a judgment as being against the manifest weight of the evidence when the judgment is supported by some competent, credible evidence going to all the essential elements of the case. C.E. MorrisCo. v. Foley Construction Co. (1978), 54 Chio St.2d 279, syllabus. When conducting its review, an appellate court must make every reasonable presumption in favor of the trial court's findings of fact. Myers v. Garson (1993), 66 Ohio St.3d 610,614; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77,80. Moody contends that she is entitled to recover the cost of waterproofing her basement because the house had a structural defect when she purchased it and because the doctrine ofcaveat emptor does not apply. The doctrine of caveat emptor precludes recovery in an action by the purchaser for a structural defect in real estate where (1) the condition complained of is open to observation or discoverable upon reasonable inspection, (2) the purchaser had the unimpeded opportunity to examine the premises, and (3) there is no fraud on the part of the vendor. Layman v. Binns (1988), 35 Ohio St.3d 176, syllabus; Czarnecki v. Basta (1996), 112 Ohio App.3d 418,422-23. Under caveat emptor, buyers are responsible for discerning patent defects in the real estate. Layman at 177. Without the doctrine of caveat emptor, "nearly every sale would invite litigation instituted by a disappointed buyer." Id. A. In order to avoid operation of caveat emptor, the buyer must first show that the condition of which he complains was not openly observable at the time of purchase. The condition Moody complains of is the wet basement. At trial, Moody testified that, prior to purchasing the house, she observed marks on the wall which she suspected came from water. Moody also introduced photographs which she took shortly after she moved in the house that depicted mildew on the wall and rust on the furnace. Moody's expert, Rogers, testified that mildew like that shown in the photographs takes a long time to form. Rogers further testified that the appearance of the basement would alert a reasonable lay person to the possibility that the basement had a water problem. As Moody notes, Rogers qualified his opinion by adding that he might not expect a reasonable woman to notice the water problem. Considering Moody's own testimony that she noticed the lines on the wall and associated those marks with a possible water problem, we find that some competent, credible evidence supports the trial court's conclusion that the defect was open to observation by a reasonable person. B. The second factor in a caveat emptor analysis examines whether the buyer had an unhindered opportunity to inspect the premises he purchased. Moody testified that she was inside the house twice before she purchased it. Though the stairs to the basement were steep, she went into the basement on both occasions. Moody's realtor expressed concern for her safety in descending the stairs, but did not impede her inspection of the basement in any way. The basement was lighted. Additionally, the property disclosure form, signed by both Blower and Moody, specifically encouraged Moody to obtain an inspection of the property. Accordingly, we find that Moody had an unhindered opportunity to inspect the basement. C. Finally, where a defect is observable and the buyer has the opportunity to discover it without concealment or hindrance by the seller, the buyer may nonetheless recover if she can prove that the seller committed fraud. Layman at syllabus; Traversev. Long (1956), 165 Ohio St. 249, 252. Fraud is defined as (1) a representation or, where there is a duty to disclose, concealment of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance.Gaines v. Preterm-Cleveland Inc. (1987), 33 Ohio St.3d 54, 55. If the buyer merely proves that she relied on "misstatements and misrepresentations by the vendor not so reprehensible in nature as to constitute fraud," the doctrine of caveat emptor will preclude her claim. Layman, supra, at 177. Because the defect in this case was open to observation and Moody had an opportunity to discover the defect, Moody can only recover if she produced evidence that Blower committed fraud in describing the condition of the basement. See Layman at 177. Blower testified that he never lived in the house. Blower rarely visited his mother at her house and never entered her basement until after his step-father died in August 1995. From August 1995 until February 1997, Blower frequently visited his mother, and occasionally entered the basement to add salt to the water softener. Blower testified that he never saw any water in the basement. Blower's sister, Donna Powell, also testified that she occasionally entered the basement and never saw any water in it. Another one of Blower's sisters, Mary Lee Dunkle, testified that she was at the house when sewage backed up into the basement on one occasion, but that Blower was vacationing in Florida at the time and she did not recall telling him about the incident until after Moody filed suit. Finally, Dunkle testified that she never saw the basement flood via water seeping through the walls, as Moody alleges. Moody asserts that Blower committed fraud when he affirmatively stated on the residential property disclosure form and to her in person that the basement did not leak. However, the residential property disclosure form merely states that Blower had no knowledge of a Leak. Moreover, the form expressly warned against relying on it as a guarantee, and recommended that the potential buyer obtain an inspection. Additionally, the form indicated that Blower did not live in the house, implicitly warning Moody that Blower may not be entirely aware of the condition of the house. As a devisee who had not occupied the property, Blower had no duty to inspect the house in order to complete a residential property disclosure form. See R.C. 5302.30(B)(2)(n). With regard to Blower's oral statement, the trial court was free to believe Blower's testimony that he merely told Moody he had no problems the house, and that he did not, in fact, know of any problems with the house. Moody contends that the fact that someone applied a sealant in an attempt to repair the basement proves that Blower knew the basement leaked. However, the evidence indicated that Blower's step-father probably made the repairs, and that Blower had no knowledge of them. Though the marks on the wall were open to observation and would have alerted a reasonable person to water problem, the record contains no evidence that Blower ever had occasion or reason to inspect the basement in search of defects until Moody pointed out the marks to him. At that point, Moody had been alerted to the defect, and it was incumbent upon Moody, not Blower, to investigate the cause of the marks. Thus, even if Blower knew the basement flooded and stated that the basement never flooded, Moody's reliance on that statement despite her knowledge of the water marks was not justifiable. We find competent, credible evidence in the record supporting the conclusion that Blower had no knowledge that the basement leaked. We further find that any misstatement or misrepresentation Blower may have made was not so reprehensible in nature as to constitute fraud. Finally, we find that Moody's reliance on Blower's statements regarding the basement was not justifiable. V. In conclusion, we find competent, credible evidence in the record to support the trial court's conclusion that the defect was open to observation by a reasonable person, that Moody had the opportunity to discover the defect, and that Blower did not fraudulently conceal or misrepresent the condition of the basement. Therefore, the trial court properly ruled that the doctrine of caveat emptor bars Moody's claim to recover the cost of repairing the structural defect in the house. Accordingly, we affirm the judgment of the trial court. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellee recover of Appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Athens County Municipal 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 for the Rules of Appellate Procedure. Exceptions. Abele, J. and Harsha, J.: Concur in Judgment and Opinion. For the Court BY: ___________________________ Roger L. Kline, Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes afinal judgment entry and the time period for further appealcommences from the date of filing with the clerk.

2016-07-06 06:41:44.346725+00

OPINION {¶ 1} Plaintiff-appellant, Norbert M. Doellman, Jr., appeals from the judgment of the Warren County Common Pleas Court, wherein the court overruled Doellman's objections to the March 17, 2006 magistrate decision that limited his recovery of attorney fees to $351.32 with interest at the statutory rate from July 23, 2003. {¶ 2} The facts underlying this appeal are as follows: {¶ 3} On March 30, 2001, Doellman and defendant-appellee, MidFirst Credit Union, Inc. ("MidFirst"), entered into a contingent fee agreement in which Doellman would represent *Page 2 MidFirst in designated collection cases. The terms of the agreement, in pertinent part, stated: {¶ 4} "The fee of Attorney shall be contingent upon the result obtained. There shall be no legal obligation by Client to pay Attorney any fee if nothing is recovered from the adversary. {¶ 5} "However, Client is responsible for all expenses incurred in the prosecution of the claim. Client gives permission to Attorney to advance the payment of costs and expenses, but Client acknowledges the Client remains responsible for payment of said costs and expenses and agrees to reimburse Attorney for any such costs and expense for which Attorney advances payment. Client may reimburse Attorney as costs and expenses are incurred or, if Client reimburses Attorney upon settlement, Client agrees that such costs and expenses shall be paid out of Client's portion of the settlement proceeds. {¶ 6} "The legal fee of Attorney shall be thirty-three and one-third percent of the gross amount recovered if settlement is achieved without the necessity of filing suit; thirty-three and one-third percent of the gross settlement or judgment if it is necessary to file suit; and thirty-three and one-third percent of the ultimate gross settlement or judgment following the trial and any appeal undertaken by the adversary. {¶ 7} "In the event of discharge by Client, Client shall be indebted to Attorney for legal fees based upon the value in Butler County, Ohio of legal services rendered and for any costs and expenses advanced by Attorney." (Compl., Ex. A.) {¶ 8} From March 2001 until April 2003, Doellman was assigned between 40 and 50 cases for collection, and he received contingency fees on approximately 20 of those cases. However, early in 2003, MidFirst became aware that Doellman had failed to forward payments received on MidFirst accounts from debtor, Charles Carrico. Carrico had *Page 3 contacted MidFirst requesting a payoff for his account. Because MidFirst had no knowledge of the payments made to Doellman, the balance on Carrico's account was much higher than expected. Consequently, MidFirst confronted Doellman. In a response letter, Doellman provided that he had received payments totaling $3,825.57 from Carrico in March and May 2002 and February 2003. He also indicated that he would forward $2,550.38 to MidFirst as their payment per the contingent-fee agreement. Doellman subsequently issued a check to MidFirst from his personal account for $2,550.38; however, the check was returned unpaid for insufficient funds. At trial before the magistrate, Doellman testified that he deposited the funds into his personal account because he did not have checks for his IOLTA account, but he intended to promptly pay MidFirst its contingency fee. Doellman further stated that MidFirst owed him approximately $10,000 at the same time, and that he wrote several checks from that account believing MidFirst was going to pay him. According to Doellman, when MidFirst failed to make the $10,000 payment as promised, the checks he wrote were dishonored by the bank. {¶ 9} On April 23, 2003, MidFirst requested that Doellman place a hold on all collection activities regarding MidFirst accounts. As noted by the magistrate, there is some discrepancy whether this date terminated Doellman's employment with MidFirst, since communications continued into the summer of 2003 between Doellman and MidFirst concerning the collection of payments on certain cases. Furthermore, MidFirst's senior director did not advise Doellman until December 12, 2003 that he had breached his contract and was due no more compensation. {¶ 10} On March 30, 2005, Doellman filed a complaint seeking damages for 33.3 percent of the balance due to MidFirst from 20 debtors. Exhibits B1 through B20 of the complaint contained 20 invoices sent to MidFirst indicating the principal and interest owed by *Page 4 20 debtors and an estimated contingency for each. In total, Doellman demanded $73,159.86, in addition to prejudgment interest from May 10, 2003, fees and costs. {¶ 11} At a bench trial before a magistrate in January 2006, Doellman testified that he spent 84.4 hours working on 16 of the 20 cases mentioned in the complaint. He also testified that $195 per hour is an amount reasonable for an attorney with more than 20 years of collection experience in Butler County. Therefore, the total Doellman sought was $16,458.1 The record, however, demonstrates that MidFirst collected payments on only three of the 16 cases. On two of the cases, the record reveals that MidFirst offset its loss by retaining the amounts left in the debtors' savings accounts at the time the charge off occurred. The total for these accounts was $15.07. The record further indicates that MidFirst withheld Doellman's fee of $351.32 for payments received in the third case. {¶ 12} According to the magistrate, Doellman's cause of action for recovery of his fees had yet to arise because the contingency on 13 of the 16 subject cases had yet to occur. The magistrate's conclusion was based upon the Supreme Court of Ohio's holding in Reid, Johnson, Downes,Andrachik Webster v. Lansberry, 68 Ohio St.3d 570, 1994-Ohio-512, which provided that "[w]hen an attorney representing a client pursuant to a contingent-fee agreement is discharged, the attorney's basis ofquantum meruit arises upon the successful occurrence of the contingency." (Emphasis sic.) Id. at paragraph two of the syllabus (reaffirming the court's prior position in Fox Assoc. Co., L.P.A. v.Purdon [1989], 44 Ohio St.3d 69). As MidFirst had received payment for only one account, the magistrate found that Doellman's recovery was limited to 33.3 percent of the recovered amount, i.e., $351.32. {¶ 13} Doellman subsequently filed objections to the magistrate's decision. On May 17, 2006, *Page 5 the trial court overruled these objections and sustained the findings of the magistrate. Doellman filed a timely notice of appeal. {¶ 14} On appeal, Doellman raises the following assignments of error: {¶ 15} "1. The trial court erred by not giving meaning to the mandate in the Fee Agreement requiring payment upon discharge. {¶ 16} "2. The trial court erred by reasoning that payment for his time would create a windfall for Doellman." {¶ 17} The standard of review in this case is abuse of discretion. The factors a court considers to determine the reasonableness of a discharged attorney's fees under a quantum meruit claim, in addition to the ultimate amount of quantum meruit recovery by the discharged attorney, are matters to be resolved by the trial court within the exercise of its discretion. See Reid, 68 Ohio St.3d at 577;Goldauskas v. Elyria Foundry Co. (2001), 145 Ohio App.3d 490, 496. An abuse of discretion suggests more than an error in judgment; instead, it implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. {¶ 18} Upon review of the record, we find that the trial court did not abuse its discretion in adopting the magistrate's decision. In light of the Ohio Supreme Court's holdings in Fox and Reid, the magistrate correctly found that Doellman may recover fees for services rendered on the basis of quantum meruit and upon the successful occurrence of the parties' contingency agreement. Therefore, the reasonable value of Doellman's legal services is $351.32, where the only recovery under the contingent-fee agreement was $1,055, and where the agreement entitled Doellman to 33.3 percent of payments received. Accordingly, the judgment of the trial court will be affirmed. {¶ 19} In order to facilitate the disposition of this matter, we will address Doellman's *Page 6 assignments of error together. Essentially, Doellman argues that the trial court erred in limiting his recovery to $351.32 — 33.3 percent of the payment on only one debtor account-where the fee agreement specified that MidFirst would be indebted to Doellman in the event of his discharge for the reasonable value of his legal services rendered and for any costs and expenses he advanced. Doellman contends that he spent 77.9 hours in preparing cases for collection. He also asserts that the reasonable value of these services, as performed by an attorney in Butler County experienced in collection procedures, is $195 per hour. Thus, the reasonable value of his legal services would be $15,190.50. According to Doellman, his request of $15,190.50 creates a windfall for MidFirst of nearly $57,000, where he has allegedly secured judgments for MidFirst that potentially may result in over $220,000, and where the contingent fee for such amount is approximately $73,000.2 {¶ 20} The Ohio Supreme Court has held that "where an attorney is discharged by a client with or without just cause, and whether the contract between the attorney and client is express or implied, the attorney is entitled to recover the reasonable value of services rendered prior to the discharge on the basis of quantum meruit." (Emphasis sic.) Fox, 44 Ohio St.3d at 72. The court's rationale was based on the client's right to substitute counsel without showing cause or presenting evidence of legal malpractice or negligence, and the attorney's right to compensation for services rendered. Id. at 71-72. In reaching this conclusion, however, the court did not define what constitutes a reasonable value of services under the contract. Instead, it remanded this issue to the trial court for determination. {¶ 21} Subsequently, in Reid, Johnson, Downes, Andrachnik Webster v.Lansberry, the Ohio Supreme Court re-examined its decision inFox and discussed how the amount of quantum meruit recovery should be measured. First, the court held that an attorney who *Page 7 represents a client on a contingency basis, yet is discharged prior to completing his service, does not have a cause of action for a fee recovery in quantum meruit until the contingency has occurred. Id. at 575. In other words, "the discharged attorney is not compensated if the client recovers nothing." Id. The court's rationale for adopting this holding was explained in Fracasse v. Brent (1972), 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9, wherein the California Supreme Court provided the following: {¶ 22} "The basis for the rule was, of course, the fact that until the happening of the contingency, the amount of damages suffered by the attorney could not be ascertained. Having held herein that an attorney henceforth will be entitled to recover only the reasonable value of his services to the time of discharge, the question arises whether his cause of action has accrued at that time. With respect to contingent fee contracts, we hold otherwise for two reasons. {¶ 23} "First, one of the significant factors in determining the reasonableness of an attorney's fee is `the amount involved and the result obtained.' It is apparent that any determination of the `result obtained' is impossible, and any determination of the `amount involved' is, at best, highly speculative until the matter has finally been resolved. Second, and perhaps more significantly, we believe it would be improper to burden the client with an absolute obligation to pay his former attorney regardless of the outcome of the litigation. The client may and often is very likely to be a person of limited means for whom the contingent fee arrangement offers the only realistic hope of establishing a legal claim. Having determined that he no longer has the trust and confidence in his attorney necessary to sustain that unique relationship, he should not be held to have incurred an absolute obligation to compensate his former attorney. Rather, since the attorney agreed initially to take his chances on recovering any fee whatever, we believe that the fact that the success of *Page 8 the litigation is no longer under his control is insufficient to justify imposing a new and more onerous burden on the client. Hence, we believe that the attorney's action for reasonable compensation accrues only when the contingency stated in the original agreement has occurred — i.e., the client has had a recovery by settlement or judgment. It follows that the attorney will be denied compensation in the event such recovery is not obtained." Id. at 792 (Citations omitted.) {¶ 24} Next, the court held that the reasonable value of a discharged attorney's services in quantum meruit should be determined in light of the totality of the circumstances, yet the recovery should be limited to the amount maintained in the original contingency agreement.Reid, 68 Ohio St.3d at 576. Factors the court considers relevant include the recovery sought, the skill demanded, the results obtained, and the attorney-client relationship. Id. See, also, Prof. Conduct Rule 1.5(a) (setting forth guidelines for determining the reasonableness of attorney fees). {¶ 25} Here, the magistrate limited Doellman's recovery to $351.32 on the basis of quantum meruit, reflecting 33.3 percent of the amount actually obtained by MidFirst as a result of Doellman's services prior to his discharge. According to the record, there was only one collection case in which MidFirst received payment from a debtor yet failed to disburse fees to Doellman under their agreement. In that case, MidFirst collected $1,055 from the debtor subsequent to the assignment of the case to Doellman. Pursuant to the contingency-fee agreement, Doellman was entitled to 33.3 percent of the payment received, i.e., $351.32. In reaching his conclusion, it is apparent that the magistrate considered several of the factors set forth in Reid in light of the totality of the circumstances. The magistrate's decision notes that Doellman claimed he invested 7.7 hours of work on this case, and that he ultimately obtained a default judgment from MidFirst. The magistrate also points out that calculating *Page 9 damages in accordance with Doellman's figures would result in a windfall for Doellman because 7.7 multiplied by $195 equals $1,501.50, whereas MidFirst only recovered $1055 on the account. Thus, the magistrate found that $351.32 was a reasonable fee based on the result obtained. {¶ 26} We agree with the magistrate's conclusion. Pursuant toReid, $351.32 is the maximum amount of Doellman's quantum meruit recovery, for the original contingency-fee agreement specifies that he shall be awarded "thirty-three and one-third percent of the gross amount recovered." Moreover, it is apparent from the record that the magistrate carefully considered the amount Doellman sought, the skill demanded by the case, the actual recovery obtained, and the relationship at the time between Doellman and MidFirst. Thus, we find that the magistrate's determination of fees was based on a thorough consideration of all the relevant factors in this case. {¶ 27} We further find no merit in Doellman's claim that the terms of the contract mandate a payment of fees beyond a recovery in quantum meruit. In Reid, the court emphasized that "even if an attorney is discharged without cause, and even if a contingent fee agreement is in effect at the time of the discharge, the discharged attorney recovers on the basis of quantum meruit, and not pursuant to the terms of the agreement." Id. at 573. The court reaffirmed this position inCuyahoga Cty. Bar Assn. v. Levey (2000), 88 Ohio St.3d 146, where it found that a contingent-fee agreement calling for hourly charges if the attorney was discharged regardless of whether the contingency occurred violated DR 2-106(A) which provides that "A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee." Citing its decision in Reid, the court reiterated that when an attorney employed under a contingency-fee agreement is discharged, his or her recovery is "on the basis of quantum meruit and arises upon the successful occurrence of the contingency." Id. *Page 10 at 148. Consequently, such provision providing for hourly charges in the event of attorney discharge is contrary to the holding in Reid and constitutes a clearly excessive fee. {¶ 28} Here, the magistrate quotes the following clause of the fee agreement as supporting the law established in Reid: "There shall be no legal obligation by Client to pay Attorney any fee if nothing is recovered from the adversary." In contrast, Doellman asserts that this clause must be read independently of the clause entitling him to legal fees based upon their value in Butler County, Ohio, in the event of a discharge. The holding in Reid, however, looks to both the agreement and the equities of the situation. Id. at 577. As we stated above, the totality of the circumstances in this case demonstrates that the only amount not based on speculation is the $1,055 actually recovered by MidFirst from Doellman's services. Therefore, occurrence of the contingency in this case yields only a fee of $351.32. {¶ 29} We note, however, that nothing in this decision precludes Doellman from recovering his fees, in quantum meruit, for the 13 debtor cases which have yet to be collected. As it is, the supreme court's position that recovery arises upon the successful occurrence of the contingency, Doellman remains entitled to file additional complaints if and when those cases result in a recovery by MidFirst. It should also be pointed out that the trial court must consider an additional factor not anticipated by the supreme court when it adopted this rule, and that is the amount of Doellman's pro rata share of the recovery obtained under the contingency arrangement in the event that MidFirst hires a substitute attorney to finalize the pending collection cases. {¶ 30} In conclusion, we do not find that the trial court abused its discretion in adopting the magistrate's decision. Pursuant to the Supreme Court of Ohio's holdings in Fox and Reid, the magistrate considered the totality of the circumstances in the present matter and appropriately determined that the reasonable value of Doellman's legal services in quantum *Page 11 meruit is $351.32. Accordingly, Appellant's assignments of error are overruled. However, it is ordered that the complaint, as it demands the reasonable value of Doellman's services on the 13 collection cases still pending, is dismissed without prejudice. {¶ 31} The decision of the trial court is affirmed. WOLFF, J., and FAIN, J., concur. (Brogan, J., Wolff, J., and Fain, J., of the Second District Court of Appeals, sitting by assignment of the Chief Justice of Ohio, pursuant to Section 5[A][3], Article IV of the Ohio Constitution.) 1 We note that the calculations differ between the trial record, the magistrate's decision, and appellant's brief. The magistrate indicated that Doellman spent 85 hours on the 16 cases. Multiplied by $195, the total equals $16,575. Moreover, appellant states in his brief that he devoted 77.9 hours to these cases, totaling $15,190.55. For purposes of this appeal, we follow the calculation set forth in the trial record. 2 As discussed above, this figure is based on Doellman's calculation of 77.9 hours multiplied by $195. The trial record, however, indicates that Doellman is seeking $16,458 (84.4 x $195). *Page 1

2016-07-06 06:41:44.417037+00

OPINION {¶ 1} These appeals were brought by relator/plaintiff-appellant, Champaign County Nursing Home ("appellant"), from judgments of the Franklin County Court of Common Pleas. In 1997, appellant filed an action in the Franklin County Court of Common Pleas seeking a writ of mandamus, declaratory judgment, injunctive relief, and other relief based on alleged violations of federal and state Medicaid law, violations of federal and state constitutional provisions, and breach of contract. In February 1998, the trial court granted summary judgment in favor of respondent/defendant-appellee, Arnold R. Tompkins, Director of the Ohio Department of Human Services ("ODHS"). Appellant appealed, and we remanded the matter to the trial court to resolve an inconsistency in the decision. In January 2000, the trial court issued a supplemental decision correcting a clerical error and again awarded judgment in favor of ODHS. {¶ 2} Appellant again appealed. The two appeals were consolidated and additional briefs filed. However, in March 2000, appellant filed another motion in the trial court seeking relief from judgment under Civ.R. 60(B). Appellant asked this court to remand the matter again in order to permit the trial court to rule on the motion. We granted the request, and the trial court denied the motion in June 2000. We then granted leave to amend the notice of appeal and file supplemental assignments of error and briefs. The amended, consolidated appeals are now before this court. {¶ 3} Appellant is operated by Champaign County and is certified under Medicaid law as a nursing facility and as an intermediate care facility for the mentally retarded ("IC facility"). Under the Medicaid program, facilities across the country are not paid a standard rate for all residents, but each facility is reimbursed on the basis of its costs in providing services, and other factors. See Drake Ctr., Inc. v. Ohio Dept. of Human Serv. (1998), 125 Ohio App.3d 678. Based on federal and state law, and pursuant to provider agreements, ODHS reimburses appellant based on a per diem rate per resident. Section 1396, Title 42, U.S. Code; R.C. 5111.20, et seq. {¶ 4} During the period of time at issue, the Medicaid payment process in Ohio was a multi-stage process for each year of services provided. After the facility submitted its cost report for the year, the process involved a desk review, rate-setting, interim settlement (at which time ODHS paid the facility), and final settlement (at which time ODHS reached a final decision on disputed matters, determined whether the facility had been overpaid or underpaid, and made a final payment or a recoupment demand). See Am.S.B. No. 206; Am.Sub.H.B. No. 298; Sub.S.B. No. 359; affidavits of D. Wilkins and B. Cummins; deposition transcript of D. Wilkins; R.C. 5111.205111.31; Ohio Adm. Code 5101:3-3. If the facility chose to challenge ODHS's proposed final settlement, it could request an administrative hearing under R.C. Chapter 119.06. Following the administrative remedies within the agency, facilities could then appeal to the common pleas court under R.C. 119.12. {¶ 5} The present dispute focuses on ODHS's setting of the per diem rate for services provided by appellant from July 1, 1991 through June 30, 1992 ("fiscal year 1992"). In addition, appellant raises issues regarding ODHS's rates for services rendered from July 1, 1992 through June 30, 1993 ("fiscal year 1993"). {¶ 6} The pertinent events occurred against a backdrop of legislation in which the General Assembly modified the Medicaid payment system, changing from a retrospective-rate system to a prospective-rate system for nursing and IC facilities. Under the retrospective-rate system, the facility filed a cost report after each calendar year, and ODHS would make payment based on that year's costs and other factors. The new legislation created a prospective-rate system under which costs incurred during a given period were combined with factors such as inflation to determine a subsequent period's per diem rate. See Am.S.B. No. 206 (effective June 29, 1991); Am.Sub.H.B. No. 298 (effective July 26, 1991) and Sub.S.B. No. 359 (effective Dec. 22, 1992). {¶ 7} As part of these amendments to state Medicaid law, the General Assembly established a transitional or interim system for the period from July 1, 1991, through June 30, 1993 — fiscal years 1992 and 1993. For example, the legislature provided that ODHS would determine the prospective per diem rates for services provided during fiscal year 1992 based on the cost report for calendar year 1990. Am.S.B. No. 206, Section 36(A)(1). For services provided during fiscal year 1993, prospective rates would be determined from the cost report from July 1 through December 31, 1991. Id. at 36(A)(2). {¶ 8} Further, in Am.Sub.H.B. No. 298, the General Assembly added a subsection providing that, for services rendered in fiscal year 1992, ODHS could adjust the prospective rate based on renovation costs reported by the facility, if the renovation met three criteria. See Section 23(A)(1)(g) (amending Section 36 of Am.S.B. No. 206). These criteria were placed in former Ohio Adm. Code 5101:3-3-17, which recited the formula and criteria announced in the statute. In addition, the legislature established the source of funds from which ODHS would pay the adjustments under Section 23(A)(1)(g), and it also limited the spending for these adjustments. Sub.S.B. No. 359, Section 8 (amending Section 36 of Am.S.B. No. 206). {¶ 9} In 1991, appellant completed and filed its cost report for calendar year 1990. Under the former retrospective system, the 1990 cost report would be used for reimbursements for calendar year 1990. In addition, under the new transitional system, the 1990 cost report would be used to determine the per diem rate for fiscal year 1992. Accordingly, after appellant filed a 1990 cost report for the nursing and IC facilities, the administrative process began during which ODHS would set rates for fiscal year 1992, pay an interim settlement for that year, and eventually determine a final settlement for that year. {¶ 10} By November 1993, ODHS had completed its calculation of the rates for fiscal year 1992, including the adjustments under Section 23(A)(1)(g) for renovation costs. ODHS published a list in November 1993 showing the adjustments and rates for Ohio facilities for fiscal year 1992. Then, in February 1994, in connection with making the interim settlements, ODHS completed distribution of the limited funds available under Section 23(A)(1)(g), according to the testimony of Daniel Wilkins, an agency administrator. {¶ 11} At some point in 1994, appellant became aware that it had made significant errors in its cost report for calendar year 1990. It had failed to include renovation-related bond interest and depreciation. Appellant sought to amend its 1990 cost report to add these costs. Appellant not only wanted ODHS to use the new figures for the final settlement for calendar year 1990 under the former system, but also sought to have ODHS use the new 1990 figures for the purpose of qualifying for an adjustment under Section 23(A)(1)(g) pursuant to the new legislation. Appellant eventually filed an amended 1990 cost report. {¶ 12} According to appellant, ODHS used the revised figures in the amended 1990 report for the final settlement for 1990 but refused to use the new figures to award an adjustment for fiscal year 1992 under Section 23(A)(1)(g) because the reimbursement for calendar year 1990 was governed by laws different from those applicable to fiscal year 1992. ODHS took the position that appellant's amended report for 1990 was not filed in time to allow ODHS to make a payment under Section 23(A)(1)(g), due to funding limitations in the legislation. {¶ 13} In September 1995, ODHS issued "proposed adjudication" orders for the nursing facility and IC facility for fiscal year 1992, proposing a final settlement for each facility. In response, appellant requested the administrative hearing provided under R.C. Chapter 119. {¶ 14} Before the administrative hearing was held, ODHS decided to withdraw its proposed orders, apparently because it wanted to resolve appellant's final payments for prior years before proposing a final settlement as to fiscal year 1992. Therefore, on April 5, 1996, ODHS sent a letter to appellant withdrawing the proposed settlement issued in September 1995. However, the caption of the letter listed only one of the two provider numbers for appellant. Therefore, although ODHS had intended to withdraw the proposal for both facilities, the letter affected a withdrawal only of the proposal for the nursing facility; it did not withdraw the proposed adjudication for the IC facility for fiscal year 1992. {¶ 15} Subsequently, in the absence of an objection to this proposed adjudication order for the IC facility, ODHS issued in September 1996 a "final adjudication" order for the IC facility for fiscal year 1992. The order includes a statement regarding the facility's right to file an appeal to the common pleas court under R.C. Chapter 119 and5111.06. {¶ 16} Appellant filed the statutory appeal from the final order for the IC facility. The appeal, case No. 96CV-7546, was assigned to Judge Deborah O'Neill. However, this appeal also purported to include the proposal for the nursing facility, which ODHS had explicitly withdrawn. {¶ 17} In November 1996, ODHS moved to dismiss the appeal, asking Judge O'Neill to remand the matter to the agency on the grounds that, first, the proposed adjudication order regarding the nursing facility was not a final order in the first place and, in any event, it had been withdrawn. Second, ODHS stated that, although it had issued a final adjudication order regarding the IC facility, that final administrative order was issued by mistake. ODHS stated that the error would be corrected but for the filing of the current appeal under R.C. Chapter 119. {¶ 18} By order of March 12, 1997, Judge O'Neill dismissed the part of the appeal concerning the nursing facility because no final order had been issued by ODHS. However, the court did not dismiss the appeal with respect to the IC facility. Judge O'Neill referred the IC issues to a magistrate. {¶ 19} Therefore, as of March 1997, the appeal under R.C. Chapter 119 remained pending before the common pleas court in case No. 96CV-7546 with respect to the final administrative order for the IC facility for fiscal year 1992. With respect to the nursing facility, the agency was still considering a proposed settlement for 1992. {¶ 20} Nonetheless, on March 25, 1997, appellant filed a new and separate action in the Franklin County Common Pleas Court against ODHS. This action, case No. 97CV-3949, was not characterized as an administrative appeal under R.C. 119.12 but was styled as an original action seeking a writ of mandamus, declaratory judgment, injunctive relief, and a remedy for breach of contract in regard to both fiscal years 1992 and 1993. The case was assigned to Judge David Cain. {¶ 21} In this second action before Judge Cain, ODHS filed a motion to dismiss and/or for summary judgment. One of the grounds was that ODHS had not yet issued a final order with respect to the nursing facility, and that the final order with respect to the IC facility was pending on appeal before Judge O'Neill under R.C. Chapter 119. Further, ODHS explained that it had intended to withdraw both of the proposed orders but had withdrawn only one of them due to a clerical error. ODHS provided documents in support of its argument that there was, as yet, no final administrative order with respect to either facility for 1992. ODHS argued, inter alia, that the action should be dismissed because appellant had an adequate remedy at law and had not exhausted its administrative remedies. {¶ 22} In case No. 96CV-7546, the appeal before Judge O'Neill, the magistrate issued a decision in December 1997. The magistrate recommended the court vacate the final administrative order issued by ODHS for the IC facility for fiscal year 1992 and remand the matter to ODHS for further administrative proceedings. On February 4, 1998, Judge O'Neill adopted the magistrate's decision, and, by entry filed February 24, 1998, vacated ODHS's final administrative order with respect to the IC facility for fiscal year 1992. {¶ 23} The record shows no appeal from Judge O'Neill's judgment in case No. 96CV-7546. Accordingly, the matter was remanded to ODHS for further administrative procedures and issuance of a final administrative order. {¶ 24} In the meantime, the action before Judge Cain, sounding in mandamus, declaratory judgment, etc., was proceeding. Appellant filed an amended complaint and, eventually, both parties filed motions for summary judgment with accompanying evidence. On February 18, 1998, Judge Cain issued a decision in case No. 97CV-3949, granting summary judgment in favor of ODHS and denying appellant's motion for summary judgment. {¶ 25} In its decision, after addressing the relative rights and duties of the parties under statutory and constitutional law, the trial court concluded that a writ of mandamus could not be granted compelling ODHS to pay the requested amounts under Section 23(A)(1)(g) because the evidence established no failure of duty by ODHS. The trial court also addressed appellant's equitable arguments and again found that the circumstances did not provide a basis for compelling ODHS to pay the requested amounts. The court rejected arguments that preclusion doctrines controlled ODHS's consideration of the settlement amounts for 1992 and 1993, and the court found no breach of contract nor any violation of Medicaid law, state or federal. Further, the court found no violation of constitutional principles by ODHS. In sum, the trial court found no basis for issuing a writ or any basis for granting declaratory judgment or other relief requested in the complaint. The trial court also denied appellant's motion to strike Wilkins' affidavit. {¶ 26} On March 2, 1998, ODHS filed a motion to correct a clerical error in the decision, a sentence stating that there "were material issues of fact." However, the judgment was journalized on March 3, 1998, and appellant filed a notice of appeal before any ruling on the motion to correct the textual inconsistency in the decision. {¶ 27} In September 1998, this court remanded the matter for the trial court to address the inconsistent language in the decision. While the matter was on remand, appellant filed a motion to vacate the March 1998 judgment. On January 12, 2000, the trial court filed a decision and entry correcting the clerical error in the February 1998 decision, again awarding summary judgment in favor of ODHS and denying the motion to vacate. {¶ 28} Appellant again appealed, and this second appeal was consolidated with the 1998 appeal from the trial court's decision. However, appellant then filed a new motion in the trial court, a motion for relief from judgment under Civ.R. 60(B). Appellant asked this court to remand the matter to the trial court for a ruling on that motion. We granted the remand, and, in June 2000, the trial court denied appellant's motion. {¶ 29} Returning to the court of appeals, appellant then sought to amend its notice of appeal and to file supplemental assignments of error. We granted leave, and both parties filed additional briefs. Appellant stated seven assignments of error in regard to summary judgment in case No. 97CV-3949 and two assignments of error in regard to denial of relief under Civ.R. 60(B). In opposition, ODHS contended the court should uphold the summary judgment in favor of ODHS. {¶ 30} In reviewing the record, however, we have determined that appellate review of the issues raised by appellant would not be appropriate at this time. We conclude that the claims in case No. 97CV-3949 were not properly before the common pleas court. Rather than granting summary judgment on the merits, the common pleas court should have granted judgment in favor of ODHS based on the procedural posture of the case, which made mandamus relief and declaratory judgment inappropriate, as explained more fully below. {¶ 31} According to the record, ODHS has not yet issued a final administrative order for fiscal year 1992 or 1993 with regard to either of the facilities. In regard to fiscal year 1992, the record shows that ODHS issued a proposed adjudication for 1992 for the nursing facility but withdrew it. ODHS issued a final 1992 order for the IC facility, but Judge O'Neill vacated it and remanded the matter to ODHS. The record shows no appeal of Judge O'Neill's judgment. Therefore, as of February 24, 1998 — the date of Judge O'Neill's judgment entry — there was no final administrative order for either facility for fiscal year 1992. {¶ 32} As to fiscal year 1993, the record does not show that ODHS ever issued any proposed orders. On the contrary, in regard to fiscal year 1993, Dale Long, administrator for appellant, averred only that appellant "believes" ODHS "will" refuse to reimburse certain costs "in the fiscal year 1993 final settlement." Further, appellant acknowledges in its brief that ODHS has not "set the final rate for fiscal year 1993." {¶ 33} Appellant suggests wrongdoing or at least dilatory conduct by ODHS in failing to issue a final settlement for fiscal year 1993, and it argues that this failure to issue an order is grounds for extraordinary relief. We disagree. Given the interruption of the administrative process with protracted litigation, the delay in completing the administrative proceedings is not surprising. This delay is due largely to an unwillingness to allow the administrative proceedings to reach their termination unimpeded and to seek redress in the ordinary course of law for any legal error in the final ODHS orders. {¶ 34} Applying the procedural facts to the law, we conclude that ODHS was entitled to judgment as a matter of law based on the posture of the issues, and we find that the trial court erred in addressing appellant's claims on their merits. First, the law is well-established that a prerequisite for extraordinary relief in mandamus is that the party must allege and prove that it has no adequate remedy at law. E.g., State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28. Here, appellant had further remedies within the agency. In addition, following the issuance of a final administrative order, it had the remedy of an administrative appeal to the common pleas court under R.C. 119.12. Indeed, at the time appellant filed its mandamus action in the common pleas court, it already had an appeal pending before Judge O'Neill. If that appeal appeared fruitless because it was premature, the appropriate course for appellant was not to seek relief in mandamus or declaratory judgment but to assist in resuming the administrative proceedings as expeditiously as possible to hasten judicial review under R.C. Chapter 119. In short, the request for mandamus relief should have been denied based on appellant's failure to establish that there was no adequate remedy at law. {¶ 35} Second, the claims sounding in contract essentially sought a determination that ODHS was in breach of contract for failing to pay certain amounts for services rendered. However, ODHS had not yet made its final payment, and the contract claims were thus premature. Moreover, to the extent that appellant was seeking a monetary judgment against the state, the common pleas court lacked jurisdiction over that claim. The Court of Claims has exclusive original jurisdiction over contract actions for money damages against the state. See R.C. 2743.03. {¶ 36} Third, appellant sought a declaration of its rights regarding Medicaid reimbursement and injunctive relief consistent with those rights. However, these issues were not properly before the common pleas court for declaratory judgment under R.C. Chapter 2721. {¶ 37} We recognize that, in Ohio, a remedy in declaratory judgment is in addition to other legal and equitable remedies, to be granted where speedy relief is necessary to preserve rights that might otherwise be impaired. Herrick v. Kosydar (1975), 44 Ohio St.2d 128; Arbor Health Care Co. v. Jackson (1987), 39 Ohio App.3d 183, 186. Where other remedies exist, a common pleas court may nonetheless find in the sound exercise of its discretion that an action for declaratory judgment is a reasonable alternative to other remedies. Herrick, supra. For example, in Herrick, declaratory judgment was a reasonable alternative because appellant's sole issue was a constitutional question that the administrative agency could not determine in its hearings, and the action in common pleas court was a class action for thousands of people, making declaratory judgment a more efficient method of proceeding. {¶ 38} In other cases, however, declaratory relief is inappropriate where other remedies are available. In Arbor Health, supra, the plaintiff was a nursing facility seeking declaratory relief against a state agency with respect to a certificate of need, and the agency argued that plaintiff had an adequate remedy in the administrative proceedings with an eventual appeal, if necessary, to the common pleas court. This court observed, first, that where the statutory system provides a specialized procedure for an administrative remedy, declaratory relief is usually inappropriate. Citing numerous precedents, we recognized the following proposition of law: "Where, however, a specialized statutory remedy is available in the form of an adjudicatory hearing, a suit seeking a declaration of rights which would bypass, rather than supplement, the legislative scheme ordinarily should not be allowed." Id. at 186. {¶ 39} Second, we emphasized in Arbor Health that, merely because the administrative remedy takes more time than plaintiff desires, is not a sufficient reason to bypass the statutory procedures for review. Third, we observed that the presence of a constitutional claim did not mean that declaratory relief was appropriate. Where the plaintiff may prevail on the statutory claims and thus render the constitutional claims moot, we concluded that the administrative remedy should be pursued first. Id. We stated the following rationale: {¶ 40} "Plaintiff in the instant suit seeks a declaration of its constitutional right in addition to a declaration of its statutory rights under the administrative procedure. We believe that, should plaintiff prevail in its administrative appeal, plaintiff's constitutional claim will become moot. As such, Lieux [v. Westlake (1951), 154 Ohio St. 412] is controlling. {¶ 41} "The court in Lieux stated that constitutional questions will not be decided until it becomes necessary to do so. Thus, where an administrative procedure might provide the relief sought without deciding a constitutional issue, the administrative remedy should be pursued first. * * *" Id. {¶ 42} Based on consideration of all the above-listed factors, we concluded in Arbor Health that "the circumstances of this action dictate that declaratory relief was inappropriate." Id. Subsequently, in Fairview General Hosp. v. Fletcher (1992), 63 Ohio St.3d 146 (in which the Ohio Supreme Court adopted our decision, quoting it in full), we reaffirmed the rationale in Arbor Health as follows: {¶ 43} "The plaintiff [in Arbor Health] appealed to this court, and we held that, despite the presence of a constitutional claim, it was preferable for plaintiff to have exhausted its administrative remedies prior to seeking declaratory relief in the common pleas court in order to avoid unnecessarily deciding the constitutional issue." Id. at 149. {¶ 44} Based on our Arbor Health rationale, we conclude in the present case that appellant should have exhausted its administrative hearings and its statutory appeal, if necessary, before seeking a declaratory judgment in the common pleas court. {¶ 45} Although appellant relies on Buckeye Quality Care Centers, Inc. v. Fletcher (1988), 48 Ohio App.3d 150, the situation in that case was materially different from the circumstances in the present action. In Buckeye Quality, we merely found that the trial court's dismissal under Civ.R. 12(B)(6) was improper because some allegations in the complaint, though sketchy, met the plaintiff's "initial burden" under that rule. The plaintiff alleged that it was continuing to comply with defective rules for fear of losing its Medicaid certification and that it could not disobey the invalid rules without suffering overwhelming, irremediable harm. We acknowledged that, in certain cases such as Herrick, a party need not exhaust administrative remedies to seek declaratory relief, and we found that the situation in Buckeye Quality involved circumstances where, "[i]f plaintiffs continue indefinitely to comply with the rules, then they may be forever foreclosed forever from challenging the rules' adoption." Id. at 154. In contrast, in the present appeal, appellant was not faced with a situation where it might be foreclosed forever from challenging the laws at issue, nor was the trial court addressing a question of sufficiency of allegations under Civ.R. 12(B)(6). {¶ 46} We conclude here, as in Arbor Health, based on all the factors for consideration that "the circumstances of this action dictate that declaratory relief was inappropriate." First, the administrative system for Medicaid reimbursement is highly specialized, and the statutes and rules governing reimbursement to nursing facilities and IC facilities are extremely complex. Appellant's action served to bypass, rather than supplement, the legislative scheme. See Arbor Health, supra, at 186. Second, we believe that a favorable decision on the statutory claims in an administrative hearing or an appeal under R.C. Chapter 119 may render the constitutional issues moot. {¶ 47} Third, it was important for appellant to exhaust administrative remedies before seeking declaratory relief for other reasons relating to the appropriate and efficient use of the courts. Cf. Herrick (observing that a declaratory action was an efficient method for resolving the particular claims at issue because the suit was a class action on behalf of numerous plaintiffs). Here, the record shows that, when appellant filed its action for declaratory judgment in case No. 97CV-3949, it already had an administrative appeal pending in the same court before a different judge. A myriad of problems arise if the courts permit a complaining party to file an administrative appeal and then pursue a declaratory judgment action contemporaneously in the same court, in circumstances such as those presented here. The duplicative actions obviously waste the resources of the court. Further, having two cases proceed simultaneously in the same court on the same issues (or many of the same issues) raises the possibility of conflicting rulings, creating significant potential for confusion or at least further litigation to determine which rulings are binding. {¶ 48} Also, if the courts permit parties to proceed in declaratory judgment after filing the statutory appeal, the procedure could encourage "judge shopping." Parties could file the statutory appeal and then file a declaratory action to see whether they get a different judge whom they view as more favorable. In addition, where parties can maintain an action in declaratory judgment after filing the statutory appeal, simply by virtue of pleading a constitutional claim regardless of its merit, parties would have an easy avenue for bypassing the statutory appeal almost at will. In this case, the action before Judge Cain was filed while the statutory appeal was pending before Judge O'Neill and while the administrative proceedings before ODHS were incomplete. {¶ 49} For these reasons, we conclude that the common pleas court properly granted summary judgment in favor of ODHS. However, the common pleas court should have granted judgment on grounds of the procedural posture, not on the lack of merit of appellant's claims. In addition, a fourth reason that remedies under R.C. Chapter 119 should have been completed before seeking declaratory relief is that appellant did not meet the fundamental requirement of demonstrating that declaratory relief was necessary to preserve rights that might otherwise be lost during participation in administrative hearings. {¶ 50} At issue was a final payment of the remaining balance due, not the entire payment for 1992. Under the statutory system, the state would make a substantial payment to facilities at the interim-settlement stage, and facilities could then litigate any alleged underpayment during the administrative process. Although a decision regarding the final balance could take several years, facilities received the bulk of their Medicaid reimbursements much earlier. According to appellant's evidence, the additional payment at stake for fiscal year 1992 was about $66,000 for the nursing facility and about $11,000 for the IC facility. For fiscal year 1993, the amounts were smaller, and appellant explained that it obtained additional funds from the county so that there was no emergency. If successful in the administrative or judicial proceedings under R.C. Chapter 119, appellant could then repay the extra funds it had received from the county. Thus, the lack of a final administrative order did not warrant filing an action that circumvented the administrative proceedings. The record before the trial court did not demonstrate that appellant's rights would be lost unless it bypassed the administrative remedies provided by statute. {¶ 51} Therefore, we conclude that the trial court erred in reaching the merits of appellant's claims. Under the circumstances, declaratory relief was not a reasonable alternative. Mandamus relief was not available due to the adequate remedies in the ordinary course of law. The contract claims were not only premature but potentially barred by the exclusive jurisdiction of the Court of Claims. While we recognize that appellant raised constitutional issues in the common pleas court, and that it is theoretically possible that not all the constitutional issues would be rendered moot by a decision on the statutory issues, we conclude that, to the extent that any residual issues of constitutional law would remain after the administrative remedies were exhausted, those issues would be ripe for judicial review at that time. Those issues were not ripe for review, however, when appellant filed its action in 1997. {¶ 52} We acknowledge that appellee, having prevailed in the trial court on the merits, did not assign as error that the trial court failed to state procedural and/or jurisdictional grounds in support of summary judgment. However, we find that the record presents plain error that required correction by this court in the interests of justice. Accordingly, construing the evidence in favor of appellant, we agree with the trial court that ODHS was entitled to summary judgment, although we rest this decision on different grounds. The legislature established remedies and procedures for challenging ODHS decisions regarding Medicaid reimbursement, and we find that this process should not be circumvented under circumstances such as those presented here. We, therefore, affirm the judgment in favor of ODHS but we substitute the reasoning herein for the rationale set forth in the trial court's decision below. Judgments affirmed. PETREE, P.J., and BRYANT, J., concur.

2016-07-06 06:41:45.706858+00

OPINION Defendant, Jonathan Phillips, appeals from a judgment classifying him a sexual predator. Jonathan Phillips was convicted in 1989 of two counts of rape and two counts of gross sexual imposition. The victims were the children of Phillips' oldest sister; two nieces and a nephew, ages ten, six and five. The trial court sentenced Phillips to concurrent terms of imprisonment totaling five to twenty-five years. On March 24, 2000, a sexual offender classification hearing was held. The State presented as evidence four documents: the House Bill 180 screening instrument prepared by a probation officer; a report from the correctional institution dated May 5, 1997, which indicated that Phillips had completed four programs while in prison; a psychological evaluation of Phillips prepared in 1989; and the original presentence investigation report prepared in 1989. The State rested without presenting any testimony. Phillips testified that he has been in prison for about twelve years and is thirty-seven years old. He has no other criminal record except for the 1989 offenses. At the time he committed those offenses, Phillips had an alcohol abuse problem, but for the past eight years he has been attending treatment programs and going to weekly AA meetings, off and on. At his trial, Phillips maintained that he had been falsely accused of these crimes. He expressed no guilt or remorse, saying the mother of these victims was "crazy" and had encouraged her children to fabricate stories about sexual abuse. Phillips is no longer in denial, however, and now accepts responsibility for his actions and the personal choices he made in committing these crimes. While in prison Phillips successfully completed the Magellan sex offender treatment program. Phillips stated that he has learned empathy for his victims, and he understands that he must avoid those things that trigger his inappropriate sexual behavior, such as alcohol, pornography, isolation and depression. Phillips has also completed the "Cage your Rage" program, which taught him how to better deal with his emotions. Phillips obtained his GED, and is considering taking college courses. Since he has been in prison Phillips has not had any disciplinary problems. Phillips chooses not to look at pornographic material even though it is readily available to prisoners. Phillips testified that over the past twelve years he has learned much about himself and how to better handle his problems. Phillips does not believe that he would reoffend because he would seek out help and intervention before reaching that point. At the conclusion of the hearing the trial court determined that the evidence presented was sufficient to demonstrate by clear and convincing proof that Phillips is likely to engage in the future in one or more sexually oriented offenses, and the court designated Phillips a "sexual predator." In reaching its conclusion the trial court put heavy emphasis upon certain "high risk" factors: that the victims were three young children, Phillips' nieces and a nephew, who were sexually abused over a one to two month period of time. From the trial court's designation of him as a sexual predator, Phillips has timely appealed to this court. FIRST ASSIGNMENT OF ERROR THE TRIAL COURT'S DECISION DESIGNATING APPELLANT A SEXUAL PREDATOR, AS DEFINED BY R.C. 2950.01(E), IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. SECOND ASSIGNMENT OF ERROR THE COURT ABUSED ITS DISCRETION IN DESIGNATING APPELLANT A SEXUAL PREDATOR. In adjudicating Phillips a sexual predator, the trial court must find by clear and convincing evidence that Phillips has been convicted of or pleaded guilty to a sexually oriented offense and that "he is likely to engage in the future in one or more sexually oriented offenses." R.C.2950.01(E). That requires the trial court to make a determination more intuitive than it is rational, notwithstanding the "risk" factors set out in R.C. 2950.09(B). Several of those factors are facially neutral and of little help in making the prediction the trial court must make. Others, more pertinent to the issue, operate as presumptions which a defendant may rebut. Both the passage of time since the offense and the measures a defendant has taken to shed the motivations which caused him to commit the offense are relevant to rebut the factors which presume a higher risk for recidivism. Phillips argues that the trial court's finding that he "is likely to engage in the future in one or more sexually oriented offenses" is against the manifest weight of the evidence and constitutes an abuse of discretion, in view of the unrebutted evidence he presented that he has been rehabilitated in the twelve years since these crimes occurred. A weight of the evidence argument challenges the believability of the evidence, and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563, unreported. The proper test to apply to that inquiry is the one set forth in State v. Martin (1983),20 Ohio App.3d 172, 175: [t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the factfinder lost its way. State v. Bradley (October 2, 1997), Champaign App. No. 97-CA-03, unreported. An "abuse of discretion" connotes more than a mere error of law or an error in judgment. It implies an arbitrary, unreasonable, unconscionable attitude on the part of the trial court. State v. Adams (1980),62 Ohio St.2d 151. Without doubt, Phillips' testimony at the hearing about his rehabilitation and the treatment he has received for his alcohol abuse and sexual offending behavior, if accepted as true, weighs against a finding that he is likely to engage in the future in additional sexual offenses. However, the trial court had the opportunity to observe Phillips' demeanor where he testified. As the trier of facts, the trial court has broad discretion to determine the credibility of the witnesses and the weight to be given to their testimony. State v. DeHass (1967), 10 Ohio St.2d 230. The only evidence presented at the hearing which demonstrates that since these offenses occurred Phillips has been rehabilitated and is now a completely different person, was the testimony by Phillips himself, which it can be argued is self-serving. There was no other evidence to corroborate his claims. On the other hand, the documentary evidence presented by the State chronicles some of the objective facts and circumstances surrounding these offenses: the multiple victims, their tender ages, their familial relationship to Defendant Phillips, and the fact that this sexual abuse had been going on for some period of time. In reaching its conclusion the trial court considered all relevant factors. Some of those factors demonstrate a lower risk of recidivism, that Phillips is not likely to commit future offenses. These include the lack of any other criminal record, the rehabilitation Phillips has achieved by attending various programs during his twelve years in prison, and his successful completion of a treatment program for sexual offenders. Other factors considered by the trial court demonstrate a higher risk for recidivism, that Phillips is likely to commit future offenses. These include Phillips' alcohol abuse problem and the fact that his treatment for same has never been tested outside of prison, the fact that these offenses involved a pedophile type of situation with an uncle having parental control or authority over his young nieces and nephew, the number of victims involved (three), their tender ages (ten, six and five), and the fact that Phillips' inappropriate sexual behavior had been going on for some period of time. As trier of facts the trial court acted within its discretion in assigning the weight it thought appropriate to each factor. The trial court then weighed the factors, concluding that the factors showing a higher risk for recidivism outweighed the factors showing a lower risk. Under these circumstances, we cannot conclude that the trial court's actions were arbitrary, unreasonable or unconscionable, that is, an abuse of discretion. Neither can we say that in finding Phillips to be a sexual predator the trial court lost its way, that the evidence weighs heavily against such a finding, or that a manifest miscarriage of justice has resulted. The trial court's designation of Phillips as a sexual predator is neither an abuse of discretion nor against the manifest weight of the evidence. Both assignments of error are overruled. The judgment of the trial court will be affirmed. FAIN, J. and KERNS, J., concur. Hon. Joseph D. Kerns, Retired from the Court of Appeals, Second Appellate District, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

2016-07-06 06:41:45.794818+00

OPINION {¶ 1} The following is an accelerated calendar appeal submitted on the brief of appellant.1 Appellant, Timothy J. Barone, appeals from a judgment entry of the Geauga County Court of Common Pleas, denying a joint motion to forgive child support arrearage and adjust the record. {¶ 2} Appellant and Lesa J. Barone ("Lesa"), were married on July 27, 1984. One child was born as issue of the marriage; the child's date of birth was January 28, 1985. {¶ 3} Approximately two and a half years after the child's birth, appellant filed a complaint for divorce. Ultimately, appellant and Lesa jointly petitioned the court for a dissolution of their marriage. Accordingly, on October 28, 1987, the court entered a divorce decree dissolving the marriage. The decree incorporated the agreement of appellant and Lesa. The agreement divided their marital property equally and granted the parents joint custody of their child, while Lesa was named the primary residential parent. Also, the agreement established that appellant would pay child support at $300 per month. {¶ 4} Rather than making child support payments through the Geauga County Child Support Enforcement Agency ("CSEA"), appellant initially paid Lesa directly. Lesa would then file affidavits with the court attesting to appellant's direct payments of child support. The affidavits requested that the court order CSEA to credit appellant's child support account for the direct payments. The court would then issue a judgment entry ordering CSEA to credit the account. {¶ 5} On March 15, 1995, the court's judgment entry recognized appellant's direct payment of child support as of February 1995, and ordered CSEA to credit its account accordingly. However, the court further ordered that any future child support payments were to be paid through CSEA. The court stated that any future direct payments to Lesa would be considered gifts and, therefore, would not be credited as payments for child support. Nevertheless, appellant continued to pay the child support payments directly to Lesa. {¶ 6} On June 8, 2001, appellant and Lesa filed a joint motion to acknowledge direct child support payments and consent to continue the direct payments. The court denied this joint motion, finding that, despite the parties' agreement regarding direct payments, such payments were contrary to Ohio law. {¶ 7} CSEA issued an advanced notice of default to appellant. The notice informed appellant that, as of May 6, 2002, his total child support arrearage was $25,134.2 Consequently, appellant requested that CSEA conduct a mistake of fact hearing. {¶ 8} A mistake of fact hearing was held on May 22, 2002. Following the hearing, CSEA made its findings. CSEA found it had no authority to credit appellant's account for direct payments, as only the common pleas court was authorized to order a credit of the account. Thus, CSEA determined that no mistake of fact existed. {¶ 9} Appellant appealed CSEA's determination to the common pleas court. Following a magistrate's hearing, the magistrate affirmed CSEA's determination. The magistrate found there was no evidence that CSEA's findings of fact were incorrect or that its default notice was inappropriate. Appellant did not object to the magistrate's decision, and the court adopted the decision in its entirety. {¶ 10} On January 8, 2003, appellant moved for a hearing to correct the issue of child support arrearage. A hearing was held, and the magistrate issued a decision denying appellant's request to correct the child support arrearage. The magistrate found that appellant's direct payments to Lesa were in violation of Ohio law and two previous orders of the court. Again, appellant did not file objections to the magistrate's decision, and the court adopted the decision in its entirety. {¶ 11} On April 26, 2004, appellant and Lesa filed a joint motion to forgive child support arrearage and adjust the record. The joint motion requested the forgiveness of appellant's child support debt based upon a theory of equitable relief. Specifically, the joint motion acknowledged the prohibition of direct child support payments under R.C. 3121.44 and3121.45. It further recognized the court's previous rulings denying relief from the child support debt. However, the joint motion contended that an equitable ruling forgiving appellant's debt was appropriate because the child support payments had been made and there was no adverse impact to the child. Attached to the joint motion were affidavits by appellant and Lesa attesting to appellant's direct and complete payment of child support. {¶ 12} The court issued a May 10, 2004 judgment entry denying the joint motion. The court stated, "[the] current motion has no more merit than the prior proceedings in which this Court has repeatedly said that [appellant] will not receive credit nor will arrearages be forgiven because he has refused to follow the law and orders of this Court." {¶ 13} From this judgment, appellant filed a timely notice of appeal and sets forth the following assignment of error for our consideration: {¶ 14} "The trial court erred and abused its discretion to the prejudice of petitioner-appellant in overruling his [m]otion to [f]orgive [a]rrearage and [a]djust the [r]ecord." {¶ 15} Under his sole assignment of error, appellant argues that the common pleas court abused its discretion by denying the joint motion to forgive the child support arrearage. Appellant contends that the court's denial of the requested equitable relief was unreasonable and not in the best interests of the parties involved. In support of this contention, appellant maintains that the record clearly shows his payment of child support and that the child was not adversely affected by the direct payments. Appellant further argues that the court abused its discretion by denying the joint motion without first holding a hearing. {¶ 16} Our standard of review for claims for equitable relief is whether the common pleas court abused its discretion. Philabaun v.Ashley, 11th Dist. No. 2001-P0-107, 2002-Ohio-6938, at ¶ 8. An abuse of discretion connotes more than an error of law or judgment; rather, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. {¶ 17} The function of equitable relief is to supplement the law where the law is insufficient to remedy a wrong. See, e.g., Mosesson v. Rach, 7th Dist. No. 99 CA 321, 2001 Ohio App. LEXIS 1534, at fn.1. In short, a court's equitable powers may be invoked to provide the flexibility necessary to moderate unjust results. Id. A court of equity is authorized to render an award "on the principle that it may exercise its equitable jurisdiction to the extent of administering full relief which the case demands." Sandusky Properties v. Aveni (1984), 15 Ohio St.3d 273, 276. {¶ 18} Despite equity's flexibility, a court does not have unfettered discretion to award equitable relief. Id. To the contrary, there are various long standing maxims which limit a court's application of equity. Id. As will be shown, two of these maxims are relevant to the case at bar. {¶ 19} First, the maxim "equity follows the law" states that when there is no cause of action at law, there can be none in equity. SalemIron Co. v. Hyland (1906), 74 Ohio St. 160, 167. See, also, Mosesson at 5. In other words, "[e]quity follows the law, and cannot be invoked to destroy or supplant a legal right." In re Dickey (1949),87 Ohio App. 255, 264. Thus, although it may be tempting to decide a case on the subjective principles of equity, courts have a greater obligation to follow the law. Schwaben v. School Emp. Retirement Sys. (1996), 76 Ohio St.3d 280, 285. {¶ 20} "Equity follows the law" is the applicable maxim in determining the extent of a statutory right. Civil Serv. Personnel Assn., Inc. v.Akron (1976), 48 Ohio St.2d 25, 27. "Where a right is statutory it should not be extended beyond the scope of the statute, however inequitable the result may seem." Id. As a result, when a legal right is clearly defined by a statutory provision, the maxim "equity follows the law" is usually strictly applied. Id. {¶ 21} Here, appellant concedes that R.C. 3121.44 and 3121.45 are the pertinent statutory provisions. Under these provisions, "the court * * *shall require that support payments be made to the office of child support," and any payment not made through the child support enforcement agency "shall be deemed to be a gift" rather than child support. (Emphasis added.) Thus, under the statutes, appellant's direct payments to Lesa were only gifts and did not constitute child support payments. {¶ 22} R.C. 3121.44 and 3121.45 set forth clear mandatory language requiring the payment of child support to CSEA and obligating the court to consider any direct payment as a gift. To decide this matter upon the subjective principle of equity would extend the relevant law beyond the scope of the statutes, thereby violating the maxim "equity follows the law." Based upon this maxim, the court's denial of the joint motion was not an abuse of discretion. {¶ 23} Furthermore, the maxim that "he who comes into equity must come with clean hands" requires that the party seeking equitable relief not be guilty of reprehensible conduct. Keybank Natl. Assn. v. Environment FirstServices Co., Inc., 11th Dist. No. 2001-A-0064, 2002-Ohio-3126, at ¶ 23. More specifically, a party will not obtain equitable relief if the injury incurred by such party is "chargeable to his own wrong." Piatt v.Smith (1861), 12 Ohio St. 561, 570. See, also, Richmond v. Busch (Mar. 16, 1977), 9th Dist. No. 8345, 1977 Ohio App. LEXIS 9051, at 5. {¶ 24} As noted by the common pleas court, appellant was properly notified on March 15, 1995, that any further direct payments to Lesa would be considered gifts and would not be credited as child support payments. Despite this notification, appellant continued to pay child support directly to Lesa. In addition, appellant's persistent direct payments ignored the court's June 15, 2001 denial of the joint motion to acknowledge direct child support payments and consent to continue the direct payments. {¶ 25} Because the accumulated debt of child support was created by appellant's unwillingness to adhere to the court's orders and Ohio law, he is precluded from seeking equitable relief. Appellant's debt was chargeable to his own wrong and, therefore, violates the maxim that "he who comes into equity must come with clean hands." For this additional reason, the court's denial of equitable relief was not an abuse of discretion. {¶ 26} Appellant further argues that the common pleas court abused its discretion by denying appellant's request for equitable relief without holding a hearing. Local Rule 7(A) of the Geauga County Court of Common Pleas states that motions "shall be submitted and determined upon the motion papers[.]" The language of rule 7(A) places the burden upon the moving party to request and justify a hearing on a motion. {¶ 27} Our review of the record shows that appellant's joint motion to forgive child support arrearage stated that the grounds for the motion were fully set forth in the attached brief and affidavits. In addition, appellant failed to request a hearing on the joint motion. Appellant's failure to request or justify a hearing on the joint motion constitutes a waiver of this argument on appeal. See, e.g., State ex rel. Scioto Cty.Child Support Enforcement Agency v. Gardner (1996), 113 Ohio App.3d 46,52. This portion of appellant's assignment of error is also not well-taken. {¶ 28} Based upon the foregoing analysis, appellant's sole assignment of error is without merit. The judgment of the Geauga County Court of Common Pleas is affirmed. Rice, J., concurs. Grendell, J., concurs in judgment only with a Concurring Opinion. 1 An appellee's brief was not filed on appeal. 2 It was further noted that, as of February 4, 2002, appellant had begun paying child support through CSEA.

2016-07-06 06:41:43.549572+00

This is a consolidated appeal of appellate Case Numbers 74600, 74608, 74609, 74610, 74611, and 74612. Defendant-appellant J. Harvey Crow ("appellant") appeals from the trial court's entry of judgment foreclosing on certain real property in which appellant had an interest. Appellant assigns the following errors for review: I. DUE TO INSUFFICIENT SERVICE OF PROCESS UPON THE DEFENDANT, J. HARVEY CROW AND THE DEFENDANT, CAROLYN BATES, THE CASES HAVE NEVER BEEN COMMENCED AND ANY JUDGMENT RENDERED IS THEREFORE VOID. II. CROW'S MOTION TO DISMISS GLICKMAN'S CROSS-CLAIM WHILE GLICKMAN'S JUDGMENT WAS INTERLOCUTORY SHOULD HAVE BEEN GRANTED. GLICKMAN'S LIEN WAS NOT A FINAL JUDGMENT UNTIL APRIL 24, 1996. III. THE TRIAL COURT ERRED BY ORDERING THE CONSOLIDATED APPRAISAL AND SALE OF THE PROPERTIES WITHOUT AFFORDING NOTICE OF A HEARING AND A HEARING TO THE DEFENDANT. IV. THE TRIAL COURT ERRED IN GRANTING GLICKMAN'S MOTION FOR SUMMARY JUDGMENT AND IN GRANTING PREFERENCE TO GLICKMAN. Finding the first assignment of error to have merit, the judgment of the trial court is reversed and the case remanded for further proceedings consistent with this opinion. I. On December 11, 1990, the Treasurer of Cuyahoga County filed complaints for the collection of delinquent taxes, assessments, penalties and interest, foreclosure and equitable relief against appellant and other defendants having an interest in permanent parcel numbers 604-08-007 and 603-20-029. Those cases are on appeal in Case Nos. 74600 and 74609. One of the defendants in the suits was appellee Glickman Properties, Inc. On December 14, 1990, a similar complaint was filed involving permanent parcel number 603-21-022. That is Case No. 74608. On August 12, 1993, the Treasurer of Cuyahoga County filed complaints against appellant, Glickman, and the other defendants regarding permanent parcel numbers 604-08-002 and 604-07-007. Those appeals are before this court in Case Nos. 74610 and 74611. Also on that date, a complaint for foreclosure involving permanent parcel number 604-08-003 was filed against various defendants including Carolyn Bates and Glickman Properties, Inc. Appellant was not a named defendant in the lawsuit and made no appearance in the case. This case is before this court in Case No. 74612. The cases were consolidated below. In each of the five cases before this court in which appellant was a party, the plaintiff failed to obtain service upon appellant by certified mail or otherwise until after one year had passed from the filing of the complaint. Appellant filed motions to dismiss for lack of service pursuant to Civ.R. 4(E) in the cases filed in 1990, more than one year after the filing of the complaint. The plaintiff requested service by ordinary mail after the motions to dismiss were filed. In Case No. 74610, a request for service by ordinary mail was made on August 12, 1994, exactly one year after the complaint was filed. There is no record of service being perfected in Case No. 74611. Carolyn Bates, the defendant in Case No. 74612, also was served by ordinary mail after a year had passed from the filing of the complaint. In its journal entry granting the complaint for foreclosure and Glickman Properties, Inc.'s cross-claim for the return of monies paid pursuant to a failed option agreement to purchase the property, the trial court found that all necessary parties had been properly joined and served according to law. The trial court found that Glickman Properties, Inc. had a valid first lien on the real property at issue and ordered the property to be sold as a unit. II. In his first assignment of error, appellant contends that due to insufficient service of process, the foreclosure cases were never commenced, making any judgment void. Appellant relies on Civ.R. 3(A) which provides that a civil action is commenced by filing a complaint and obtaining service upon a defendant within one year of the date of filing. Appellant asserts that, because service was not obtained within one year, the actions against him never commenced and the cases should have been dismissed by the trial court. A necessary prerequisite to the commencement of a civil action is effective service of summons. Lash v. Miller (1977), 50 Ohio St.2d 63;Burgess v. Doe (1996), 116 Ohio App.3d 61. Unless service is waived, a party must be served with the summons and complaint pursuant to Civ.R. 4.1 through 4.6. King v. Hazra (1993), 91 Ohio App.3d 534. The time limitation set forth in Civ.R. 3(A) may not be extended. Fetterolf v. Hoffmann-LaRoche,Inc. (1995), 104 Ohio App.3d 272. Civ.R. 3(A) reflects a rationale "that court dockets should be cleared if service has not been attained within the reasonable time of one year."Maryhew v. Yova (1984), 11 Ohio St.3d 154, 157. It is the plaintiff's burden to ensure that proper service is accomplished.Gooch v. Toth (Mar. 20, 1997), Cuyahoga App. No. 71061, unreported. A plaintiff who fails to obtain service within one year must file a new complaint. See Jones v. Casey (Aug. 11, 1994), Cuyahoga App. No. 65624, unreported. The Supreme Court of Ohio carved out an exception to Civ. 3(A) in Goolsby v. Anderson Concrete Corp. (1991), 61 Ohio St.3d 549. In Goolsby, the court held: When service has not been obtained within one YEAR of filing a complaint, and the subsequent refiling of an identical complaint within rule would provide an additional year within which to obtain service and commence an action under Civ.R. 3(A), an instruction to the clerk to attempt service on the complaint will be equivalent to a refiling of the complaint. Id. at syllabus. Except for Case No. 74611, the plaintiff obtained service of process by ordinary mail before the expiration of the statute of limitations. Under Goolsby, a complaint should not be dismissed pursuant to Civ.R. 3(A) if service is completed more than one year after the complaint was filed but still within the time period allowed under the statute of limitations. In Case No. 74611, there is no record of service ever being perfected. The record only reflects one appearance by appellant in the case when he filed a motion to dismiss Glickman's supplemental cross-claim. That motion was filed two and a half years after the complaint was filed. In this case, appellant did not make an appearance until after the one-year period set forth in Civ.R. 3(A) had expired. In Temple v. John Gait Co. (Apr. 10, 1997), Franklin App. No. 96APE10-1364, unreported, the Tenth District Court of Appeals found that a defendant's appearance after the Civ.R. 3(A) one year term had expired did not result in a waiver of service because there was no action before the trial court for failure of commencement. Appellant was under no obligation to move or plead before the year expired. "Inaction upon the part of a defendant who is not served with process, even though he might be aware of the filing of the action, does not dispense with the necessity of service." Maryhew, supra, at 157. Appellant's motion to dismiss Glickman Properties, Inc.'s cross-claim did not result in a waiver of service because the suit against appellant never commenced. The Goolsby exception does not apply in Case No. 74611 as service of process was not perfected. In Sperduti v. Bubuloo, Inc. (May 28, 1992), Cuyahoga App. Nos. 60626, 61651, unreported, this court stated that when an action fails of commencement, it is as if no complaint were ever filed. A failure of commencement renders the case a nullity. BuckeyeUnion Ins. Co. v. Sheppard (Mar. 2, 1989), Cuyahoga App. No. 55782, unreported. The judgment against appellant in Case No. 74611 was a nullity for lack of commencement. The trial court ordered the property be sold as a unit, including the parcel at issue in Case No. 74611. Because this suit never commenced under Civ.R. 3(A), permanent parcel number 604-07-007 could not have been sold along with the other real property at issue. This entire case is remanded to the trial court to determine if the property can be sold without permanent parcel number 604-07-007 being included or if other determinations need to be made regarding the proceedings before the court. Appellant's first assignment of error is well-taken. III. Based on the resolution of appellant's first assignment of error, the remaining assignments of error are moot. See App. R. 12(A)(1)(c). Judgment reversed and remanded. The judgment of the trial court is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. TERRENCE O'DONNELL, P.J. MICHAEL J. CORRIGAN, J. LEO M. JUDGE

2016-07-06 06:41:42.454586+00

McMonagle

I concur in part and dissent in part with the opinion of the majority in the matter before us. I concur with the majority in affirming the determination of the trial court in the appellant's fifth assignment of error, and I find that there was no error by the court below in referring the matter to the referee for hearing. Further, I find that the court did not commit error in failing to record the proceedings. Additionally, I agree with the majority that the record in this case is insufficient for us to review the claimed errors in the appellant's Assignments of Error Two, Three and Four. In accordance with App.R. 12(A)(2), we should disregard these claimed errors of the court below. However, I must dissent from the majority in its determination that the trial court did not abuse its discretion when it approved the report of the referee. In the matter before us, a hearing was held and the evidence was presented to the referee. The report of the referee was issued, and appellant filed his objections, which included the failure of the referee to make findings of fact sufficient to support the "findings and recommendations." The trial court approved and confirmed the report of the referee. Appellant's objection to the report of the referee was filed without supporting affidavit or transcript. Civ.R. 53(E)(6) states: "The court may adopt any finding of fact in the referee's report without further consideration unless the party who objects to that finding supports that finding with a copy of all relevant portions of the transcript from the referee's hearing or an affidavit about evidence submitted to the referee if no transcript is available." Appellee contends that the appellant failed to make a proper objection to the referee's report by failing to submit either a transcript or an affidavit to support his objections. Failure to submit a transcript or an affidavit is not fatal to this appellant; it merely changes the standard of review on appeal. The sufficiency of a referee's report may be the basis for an appeal even where the appellant fails to submit a transcript or affidavit. Where a trial court adopts the report of a referee over the unsupported objection filed, the standard, upon *Page 365 appellate review, is abuse of discretion of the trial court. SeeProctor v. Proctor (1988), 48 Ohio App.3d 55, 60,548 N.E.2d 287, 292-293. Although I agree that the majority used the proper standard in this case, I do not agree with the holding of the majority that the trial court did not abuse its discretion in this case in accordance with Purpura v. Purpura (1986), 33 Ohio App.3d 237, 515 N.E.2d 27, and Civ.R. 53. Purpura, supra, stands for the proposition that the failure to provide a transcript or other evidentiary material to contest the referee's findings allows the trial court to adopt the referee's factual findings without further consideration. The reliance of the majority on Purpura is misplaced. In Purpura, the referee's report contained findings of fact to which the wife objected. The wife failed to support her objections with evidentiary materials. The court held, in consideration of Civ.R. 53(E)(6), that because she failed to provide a transcript or other evidentiary materials, the trial court could properly adopt the referee's factual findings without further consideration. Such is not the case here. The "findings" of the referee at issue herein stated intoto: "Findings "This matter came on to be heard this 13th day of June, 1995. Present were plaintiff Kilroy pro se and defendant counter claimant B.H. Lakeshore through it's [sic] Building Manager and counsel. "Plaintiff offered three witnesses and defendant one. Both sides offered extensive exhibits which were admitted and are attached. "Careful attention was given to the evidence presented and to the demeanor and presentation of the witnesses as well as to the arguments offered. "Recommendation "Judgment for the plaintiff and against the defendant in the amount of seven hundred and fifty dollars ($750.00) and for the defendant counter-claimant against the plaintiff in the amount of two thousand two hundred and fifty dollars ($2,250.00). Costs to be shared equally." This report of the referee is devoid of any findings of fact to support the recommendations given. The report of the referee fails to comply with the rule and is insufficient, as a matter of law, on its face. Civ.R. 53(E)(1) states: "The referee shall prepare a report upon the matters submitted by order of reference." Civ.R. 53(E)(5) provides as follows: *Page 366 "The report of a referee shall be effective and binding only when approved and entered as a matter of record by the court. The referee's findings of fact must be sufficient for the court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order. The court may adopt the referee's recommendations about appropriate conclusions of law and the appropriate resolution of any issues. However, the court shall determine whether there is any error of law or other defect on the face of the referee's report even if no party objects an error or defect. The court shall enter its own judgment the issues submitted for action and report by the referee." The minimum standard necessary for a referee's report was stated by the court in Logue v. Wilson (1975), 45 Ohio App.2d 132,136, 74 O.O.2d 140, 142-143, 341 N.E.2d 641, 644: "The report of the referee at the minimum requires a statement of the basis of his findings and recommendations in order that the judge may make an independent analysis of its validity prior to approving the report and entering judgment." In Nolte v. Nolte (1978), 60 Ohio App.2d 227, 14 O.O.3d 215,396 N.E.2d 807, the court further defined the standard for the requirements necessary for the report of the referee. TheNolte court stated that "when a referee's report contains a conclusion regarding an issue in the case, the facts that lead to that conclusion must also be included in the report." Id. at 230, 14 O.O.3d at 217, 396 N.E.2d at 810. The Nolte court went on to say: "[W]here the recommended entry form serves the dual purpose of recommending a journal entry and of reporting the referee's findings and conclusions to the trial judge, the report must contain not only a recommendation of the court's order but also the facts presented to the referee upon which that order is based. This situation is ripe for the `rubber stamping' abuses condemned in Logue v. Wilson [(1975), 45 Ohio App.2d 132, 74 O.O.2d 140, 341 N.E.2d 641], supra and in Eisenberg v. Peyton (1978), 56 Ohio App.2d 144 [10 O.O.3d 158] 381 N.E.2d 1136. As we held in Eisenberg, `the trial judge may not render judgment unless and until he has independently analyzed the case; he is in no position to make such an analysis unless the referee's report includes a statement of the facts relevant to the issue before the court.' Eisenberg, supra, at 146 [10 O.O.3d at 159-160,381 N.E.2d at 1138-1139]. Whenever a referee's report contains a legal conclusion but omits the facts necessary to reach that conclusion, the judgment is voidable. Eisenberg, supra, at 151 [10 O.O.3d at 162-163, 381 N.E.2d at 1141]." Nolte,60 Ohio App.2d at 231, 14 O.O.3d at 217-218, 396 N.E.2d at 810-811. The court in Zacek v. Zacek (1983), 11 Ohio App.3d 91, 93, 11 OBR 143, 145-146, 463 N.E.2d 391, 396, stated: *Page 367 "We have previously held that Civ.R. 53(E) contemplates a report from the referee which includes a statement of the basis of his finding and recommendations in order that the trial court can make its own independent analysis of the report's validity.Logue v. Wilson (1975), 45 Ohio App.2d 132 [74 O.O.2d 140],341 N.E.2d 641. Accordingly, the report must include sufficientinformation to enable the trial judge to render his owndecision. * * * Obviously, if the report does not include a statement of the facts forming the basis for the referee's recommendation, the trial court cannot adopt the recommendation as an order of the court since the report lacks the necessary information upon which an independent analysis of questions of law raised by the controversy can be based. Nolte v. Nolte (1978), 60 Ohio App.2d 227 [14 O.O.3d 215], 396 N.E.2d 807." (Emphasis added.) Zacek, 11 Ohio App.3d at 93, 11 OBR at 145-146,463 N.E.2d at 396. The Zacek court went on to say: "[W]hen a party objects to the referee's report, it is essential that the report include sufficient information to permit the trial court of resolve the legal issues raised by the objection. If the report is insufficient in this regard, or the objection challenges the weight of the evidence, the court will, of necessity, need to supplement the report by referring to a transcript of testimony, hearing additional evidence, returning the report to the referee with instructions or hearing the matter itself." (Emphasis added.) Id. at 94, 11 OBR at 146-147,463 N.E.2d at 396. In Conn Constr. Co. v. Ohio Dept. of Transp. (1983), 14 Ohio App.3d 90, 14 OBR 104, 470 N.E.2d 176, the court stated: "Civ.R. 53(E)(1) requires the referee to prepare a report upon the matters submitted to him. Further, it has been held that a referee's report must: "`* * * contain a statement of facts forming the basis for the referee's recommendation to the trial judge. Absent such a statement, the court cannot adopt the recommendation because itlacks the necessary information to make the required independentanalysis of the case.'" (Emphasis added.) Id., citing Nolte v.Nolte, supra, paragraph one of the syllabus. Even the case relied upon by the majority, Garcia v. Tillack (1983), 9 Ohio App.3d 222, 9 OBR 372, 459 N.E.2d 918, stated very clearly that: "Civ.R. 53 requires the referee to prepare a report which contains such factual information as may be necessary to support the findings and recommendations made. Jenkins v. Jenkins (Dec. 1, 1976), Lorain App. No. 2422, unreported. The trial judge is then required to review the report and make an independent analysis of the underlying facts involved in the dispute. It is the duty of the trial judge to critically review and verify the correctness of the referee's report prior *Page 368 to its adoption. Normandy Place Assoc. v. Beyer (1982), 2 Ohio St.3d 102 [2 OBR 653] 443 N.E.2d 161." In case after case, when analyzing the requirements of Civ.R. 53(E), our courts have directed us that because the trial judge must make an independent analysis before rendering judgment, the report of the referee must be sufficient for him to do so. "In most cases, where the trial court's entry has adopted the referee's report we have presumed that the court conducted the proper independent analysis. See Birt v. Birt (Dec. 21, 1994) Miami App. No. 94-CA-32, unreported, 1994 WL 718310; Patton [(Oct. 7, 1993), Montgomery App. No. 13929, unreported, 1993 WL 393634], supra. However, where the record has affirmatively demonstrated that the trial did not conduct a proper independent analysis prior to adopting the referee's report, we have reversed the trial court's judgment and ordered the court to comply with the dictates of Civ.R. 53. See Lear v. Brown (Nov. 5, 1993), Miami App. No. 93-CA-17, unreported, 1993 WL 452010."Inman v. Inman (1995), 101 Ohio App.3d 115, 118, 655 N.E.2d 199,201. The record before us shows that the report of the referee does not contain findings of any facts. The report and the exhibits, when reviewed together, do not create a "finding of fact." The report of the referee herein fails on its face. This report is insufficient, based upon the standards put forth by the court in Nolte, supra. This report of the referee failed to put forth any of the necessary information required for the judge to make an independent analysis of the case. "Obviously, if the report does not include a statement of the facts forming the basis for the referee's recommendation, the trial court cannot adopt the recommendation as an order of the court since the report lacks the necessary information upon which an independent analysis of question of law raised by the controversy can be based." Zacek, supra, 11 Ohio App.3d at 93, 11 OBR at 145-146, 463 N.E.2d at 396. "The trial court, as the ultimate finder of fact, must make its own factual determinations through an independent analysis of the issues and should not adopt the findings of the referee unless the trial court fully agrees with them." DeSantis v.Soller (1990), 70 Ohio App.3d 226, 232, 590 N.E.2d 886, 890-891. "[R]eferees serve only in an advisory capacity to the court and have no authority to render final judgments affecting the right of parties." (Emphasis added.) Nolte,60 Ohio App.2d at 231, 14 O.O.3d at 217-218, 396 N.E.2d at 810-811. Accordingly, Civ.R. 53(E)(2) provides: *Page 369 "* * * The court may adopt, reject or modify the report; hear additional evidence; return the report to the referee with instructions; or hear the matter itself." Thus, pursuant to Civ.R. 53(E)(2), the judge in the court below could have: (1) rejected the report as insufficient on its face, (2) heard additional evidence, (3) returned the report to the referee with instruction, or (4) heard the matter himself. Without a transcript of proceeding, the judge would be unable to modify the report as there were no facts or transcript before the judge giving him adequate information with which to modify. See DeSantis v. Soller (1990), 70 Ohio App.3d 226,590 N.E.2d 886. In the matter sub judice, the report of the referee was filed on June 13, 1995. The appellant timely filed his objections to the report on June 27, 1995. The next day, June 28, 1995, the judge adopted the report of the referee and entered judgment. As the court stated in Inman, supra, 101 Ohio App.3d at 119,655 N.E.2d at 202: "A further indication the trial court did not conduct an independent analysis of the issues tried before the referee is the speed with which the judgment was entered. Twenty-five hours after Mr. Inman responded to Mrs. Inman's objections the trial court filed its entry adopting the referee's report and recommendations. * * * While we applaud prompt decisions by the trial court, it strains credulity to believe that a thorough, independent evaluation of that much material could be conducted in so short a period of time. Although the court in Inman based its observation on the substantial amount of evidence before the court as an indicator that the court failed to perform its independent analysis, in the matter before us, the converse is equally true. The record affirmatively demonstrates that the court was unable to perform an independent analysis in this case. There was no transcript for the judge to review, there were no facts for the judge to evaluate and objections were filed, and yet, within twenty-four hours, the judge was able to conclude that the report of the referee should be `approved and confirmed.'" The trial judge in the case sub judice adopted the report of the referee over the objection of the plaintiff-appellant that the report contained no facts upon which the judge could properly determine conclusions of law and render judgment. Pursuant to Civ.R. 53(E)(5) and the case law interpreting Civ.R. 53, the report of the referee was insufficient to permit the trial court to make an independent analysis of the issues and to apply appropriate rules of law in *Page 370 reaching its judgment. The trial judge, despite timely filed objections, approved and confirmed the legally insufficient report of the referee and failed to conduct an independent analysis of the issues as required by Civ.R. 53(E)(5). This is the exact "rubber stamp" abuse condemned by the court inLogue v. Wilson, supra. "The findings of fact, conclusions of law, and other rulings of a referee before and during trial are all subject to the independent review of the trial judge. Thus, a referee's oversight of an issue or issues, even an entire trial, is not a substitute for the judicial functions but only an aid to them. A trial judge who fails to undertake a thorough independent review of the referee's report violates the letter and spirit of Civ.R.53, and we caution against the practice of adopting referee's reports as a matter of course, especially where a referee has presided over an entire trial. Hartt v. Munobe (1993), 67 Ohio St.3d 3,6, 615 N.E.2d 617, 620." (Emphasis added.) Inman,101 Ohio App.3d at 117, 655 N.E.2d at 201. The trial court in this case adopted the report of a referee which, because it contained no facts, was, on its face, insufficient as a matter of law to support the conclusions. Although the majority here does not see the adoption of this insufficient referee report by the trial court judge as an abuse of discretion, I believe that this is a clear example of abuse of discretion by the trial judge. "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, 5 OBR 481, 482-483, 450 N.E.2d 1140, 1141. In my opinion, there can be nothing more arbitrary than a judge rendering a judgment without any factual basis for doing so. The court below, although required to make an independent analysis, failed to do so in reaching its judgment. The rules mandate an independent analysis by the judge, and the case law mandates an independent analysis by the judge. I, therefore, would find that it is an abuse of discretion for the trial court to render judgment on a matter before it by merely adopting the report of the referee which was insufficient on its face as a matter of law. Consistent with this determination, I would reverse the decision of the court and remand this matter to the court below for further proceedings. *Page 371

2016-07-06 06:41:42.617584+00

Skow

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 787 {¶ 1} This is an appeal from a summary judgment granted by the Williams County Court of Common Pleas that determined that appellee was not a public authority in regard to donated real estate and, thus, was not subject to prevailing-wage laws. Because we conclude that no genuine issues of material fact remain and appellee was entitled to judgment as a matter of law, we affirm. {¶ 2} Appellants, International Brotherhood of Electrical Workers, Local Union No. 8, a union that represents approximately 2,000 electrical workers in northwest Ohio and southeast Michigan, and Northwestern Ohio Building Construction Trades Council, sued appellee, the city of Bryan, Ohio. Appellants' suit stemmed from the construction of a senior citizens' recreation center ("the project") by a private corporation, Bryan Senior Center, Inc., which then donated the center at completion to appellee. Appellants claimed that appellee was subject to prevailing-wage laws because the city was allegedly a public authority with respect to a public-improvement project and that appellee constructed certain work on the public improvement. {¶ 3} On June 22, 2004, appellants filed a prevailing-wage complaint with the Ohio Department of Commerce, Division of Labor and Workers' Safety, Bureau of Wage and Hour, as an interested party, pursuant to R.C. 4115.16(A). On September 23, 2004, appellants filed their prevailing-wage action in Williams County Court of Common Pleas against appellee, Bryan Senior Center, Inc., and Stollsteimer Electric, Inc. Appellants later amended the complaint, adding five other subcontractors as defendants who allegedly paid employees less than the prevailing rate of wages to work on the project. Appellants further alleged in the complaint that appellee undertook certain construction work with regard to the project and failed to comply with Ohio prevailing-wage laws through such construction work. On February 22, 2005, appellants and Stollsteimer reached a settlement on all claims and Stollsteimer was dismissed as a party to the action. At that time, the complaint against the other subcontractors remained unresolved. {¶ 4} Appellee filed a motion for summary judgment, asserting that it was not a public authority in regard to the project and, therefore, was not subject to Ohio prevailing-wage requirements. In support of its motion, appellee filed affidavits from the following persons. *Page 788 {¶ 5} George Isaac, an owner of Bryan Senior Center, Inc. ("the Center"), averred that on July 31, 2000, the Center was a nonprofit corporation formed to solicit and accept donations to build a senior citizens' center in the city of Bryan, Ohio. Isaac stated that the Center was supported in part by public funds from the state of Ohio. He further stated that appellee was not a party to the construction contract and did not participate in the bidding or acceptance of the contract. He stated that upon completion of the project, the Center transferred ownership of the building and property to appellee as a donation. {¶ 6} John Seele, the city clerk-treasurer, also averred that appellee was not a party to the construction contract and did not advertise for or participate in the bidding or the granting of the contract. He stated that appellee expended no city funds for and no motion, resolution, or ordinance was passed for the construction of the project, as required by the city's charter. {¶ 7} Stephen Casabere, the prevailing-wage coordinator for the Center, averred that he did not serve on behalf of the city. He stated that the only work by the city in connection to the project was performed by Bryan Municipal Utilities employees during the usual hook-up of utility service to the site. {¶ 8} Appellants opposed appellee's motion, arguing that appellee is a public authority subject to the prevailing-wage laws because the center transferred possession of the project upon completion to appellee and appellee performed work on the project. {¶ 9} On June 30, 2005, the trial court granted appellee's motion for summary judgment, on the basis that appellee was not involved in the construction of the project and that no city funds were expended on the project. The court concluded that appellee was not a public authority with respect to the project and, therefore, was not subject to Ohio prevailing-wage laws. {¶ 10} Appellants now appeal from that judgment, arguing the following sole assignment of error: {¶ 11} "The trial court committed reversible error when it held that the city of Bryan, Ohio was not a public authority in connection with a public improvement project where the city maintained a possessory interest in the completed project." {¶ 12} On review, appellate courts employ the same standard for summary judgment as trial courts. Lorain Natl. Bank v.Saratoga Apts. (1989), 61 Ohio App.3d 127, 129, 572 N.E.2d 198. {¶ 13} A motion for summary judgment may be granted only when it is demonstrated "(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 *Page 789 entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978),54 Ohio St.2d 64, 67, 8 O.O.3d 73, 375 N.E.2d 46; Civ.R. 56(C). {¶ 14} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler (1988), 38 Ohio St.3d 112,526 N.E.2d 798, syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact.Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleading, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley v.Montgomery (1984), 11 Ohio St.3d 75, 79, 11 OBR 319,463 N.E.2d 1246. A "material" fact is one that would affect the outcome of the suit under the applicable substantive law. Russell v.Interim Personnel, Inc. (1999), 135 Ohio App.3d 301, 304,733 N.E.2d 1186; Needham v. Provident Bank (1996),110 Ohio App.3d 817, 826, 675 N.E.2d 514, citing Anderson v. Liberty Lobby,Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. {¶ 15} Appellants first argue that appellee is subject to prevailing-wage laws because it became a public authority with respect to a public-improvement project when it received ownership of the project through donation and performed work on the project. {¶ 16} A public authority is "any officer, board, or commission of the state, or any political subdivision of the state, authorized to enter into a contract for the construction of a public improvement." R.C. 4115.03(A). A public improvement includes "all * * * structures or works constructed by a public authority of the state or any political subdivision thereof or by any person who, pursuant to a contract with a public authority, constructs any structure for a public authority of the state or a political subdivision thereof." R.C. 4115.03(C). Therefore, a project must be constructed "pursuant to a contract with a public authority" and "for a public authority" to apply the prevailing-wage statutes. Episcopal Retirement Homes, Inc. v.Ohio Dept. of Indus. Relations (1991), 61 Ohio St.3d 366, 369,575 N.E.2d 134. {¶ 17} A plaintiff may demonstrate that a public-improvement project was constructed "pursuant to a contract with a public authority" when a city remains involved in the planning and approval of construction plans for the project. Harris v.Cincinnati (1992), 79 Ohio App.3d 163, 169, 607 N.E.2d 15. A public-improvement project may be constructed "for a public authority" where the public authority receives the "benefit of the construction, either through maintaining a possessory or property interest in the completed project or *Page 790 through the use of public funds" to support construction of the project. Episcopal Retirement Homes, supra, at 370,575 N.E.2d 134. {¶ 18} In this case, it is undisputed that the project was a public-improvement project and that the Center, even though a nonprofit corporation, was a public authority in connection with the project. According to the affidavits filed in support of appellee's claim that it was not a public authority in this case, appellee did not advertise for, did not participate in the bidding or construction of, did not expend city funds for, and did not have any possessory or property interest in the senior citizens' recreation center prior to its completion. Furthermore, no evidence was presented that any form of collusion or inside dealing occurred between the corporation and appellee. Thus, the undisputed evidence presented demonstrates that the Bryan Senior Center project, as it relates to the city of Bryan, was constructed neither "pursuant to a contract with a public authority" nor "for a public authority." {¶ 19} Appellants further contend that because city employees performed utility work on the project, appellee was a public authority. A city or municipality that has adopted a charter under the Ohio Constitution and has adopted its own civil-service regulations for employment pursuant to its own charter is not subject to prevailing-wage statutes. Craig v.Youngstown (1954), 162 Ohio St. 215, 220, 55 O.O. 110,123 N.E.2d 19. In this case, it is undisputed that appellee is a chartered municipality and has adopted its own civil-service regulations pursuant to its charter. In our view, the mere presence of employees to hook up utilities to a construction project is insufficient to establish that appellee is a public authority with respect to that project. Under appellants' argument, any time a private construction project is connected to utility service, the city could be automatically designated as a public authority. Therefore, according to Craig, supra, we conclude that the work performed by Bryan Municipal Utilities employees does not transform appellee into a public authority for the Center project. {¶ 20} Upon our review of the record, we conclude that because there are no genuine issues of material fact and reasonable minds can only come to a conclusion that is adverse to appellants, appellee is entitled to judgment as a matter of law. Therefore, the trial court properly granted summary judgment in favor of appellee. Accordingly, appellants' sole assignment of error is not well taken. {¶ 21} The judgment of the Williams County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the *Page 791 record, fees allowed by law, and the fee for filing the appeal is awarded to Williams County. Judgment affirmed. PIETRYKOWSKI and PARISH, JJ., concur.

2016-07-06 06:41:45.752992+00

Holmes

This matter involves the appeal of a summary judgment of the Court of Common Pleas of Franklin County as granted to certain of the defendants in an action brought by these plaintiff employees of the defendant Borden, and its Columbus Coated Fabrics Division, against such employer, as well as a member of manufacturers and distributors of certain chemicals used by the Columbus Coated Fabrics company in its manufacturing process, which chemicals were alleged to have occasioned serious and crippling injuries to the plaintiff employees. The complaint also named as defendants Mr. Edward L. Mahoney, the president of Columbus Coated Fabrics, Mr. Dewey Bennett, the safety director of such company, and Dr. William T. Paul, the physician of Columbus Coated Fabrics. The defendant employer, as well as Mr. Mahoney, Mr. Bennett, and Dr. Paul, filed motions for summary judgment. Such motions were based upon Section 35, Article II of the Ohio Constitution, R. C. 4123.74, which provisions preclude an action for damages by an employee against his own employer, and upon R. C.4123.741, which precludes an action for damages by "any other employee" as against any "employee of any employer." Upon granting summary judgment for these defendants herein named, the claims as against the manufacturers and distributors of the complained of chemicals were left pending for further proceedings. The assignments of error of the plaintiffs, appellants herein, are as follows: "1. The trial court erred in sustaining the Defendants' Borden, Inc., Edward L. Mahoney, Dewey Bennett, and *Page 218 William T. Paul's Motion for a Summary Judgment on the basis of the Ohio Workmen's Compensation laws, Article II, Section 35, Ohio Constitution; and Section 4123.74 and 4123.741, Revised Code, for these Sections unconstitutionally deprived the Plaintiffs of their 5th Amendment, U.S. Constitution, right to property without due process. "2. The trial court erred in sustaining the Defendants' Borden, Inc., Edward L. Mahoney, Dewey Bennett, and William T. Paul's Motion for a Summary Judgment on the basis of the Ohio Workmen's Compensation laws, Article II, Section 35, Ohio Constitution; and Sections 4123.74 and 4123.741, Revised Code, for these Sections unconstitutionally deprived the Plaintiffs of their 5th Amendment, U.S. Constitution, right to life and liberty without due process of law. "3. The trial court erred in sustaining the Defendants' Borden, Inc., Edward L. Mahoney, Dewey Bennett, and William T. Paul's Motion for a Summary Judgment on the basis of the Ohio Workmen's Compensation laws, Article II, Section 35, Ohio Constitution; and Sections 4123.74 and 4123.741 Revised Code, for these Sections unconstitutionally deprived the Plaintiffs of their 14th Amendment, U.S. Constitution, right to equal protection of the laws." Basically, such assignments of error, and the rather voluminous brief filed by the plaintiffs in support thereof, argue that the workmen's compensation law of the state of Ohio, as provided for by the Ohio Constitution and statutory enactment, is contrary to the Constitution of the United States in that such law denies these and other Ohio employees the due process of law as provided by the Fifth Amendment to the Constitution, and denies such employees the "equal protection" of the law as provided for by the Fourteenth Amendment to the Constitution. We must reject all of the plaintiffs' assignments of error. Much of the plaintiffs' argument in support of their claim of the unconstitutionality of the workmen's compensation law is based upon their premise that the courts must review the purposes and the legislative intent of such *Page 219 state laws in the light of the changing patterns of manufacturing processes, and the increased use of new, exotic, and potentially physically dangerous types of chemicals and synthetics. The argument takes the form that such new and dangerous chemicals could not have been in the minds of the framers of the Constitution of Ohio and the minds of the legislature when the code sections were enacted, as such would relate to the right of action that employees should be ever granted where personal injuries have been received. Plaintiffs further emphasize that the continuing right to bring an action for injuries sustained in the course of one's employment should particularly not be denied where it is shown that the employer has not complied with certain safety standards for the protection of such employees. A number of cases cited by the plaintiffs in support of the aforestated propositions were decided prior to the adoption of the fountainhead for the authority of the original workmen's compensation provision, Section 35, Article II, of the Ohio Constitution, as adopted in 1912. This constitutional provision provided generally for the elimination of rights of action by employees against employers for injuries received by the employees. It initially provided that rights of action could still be maintained where "lawful requirements" for the protection of lives, health and safety of employees had not been met. However, effective January 1, 1924, this latter reference to rights of action where "lawful requirements" had not been met was amended to specifically preclude a suit for damages by an employee against an employer covered by the Workmen's Compensation Act, such amendment being in the following terms: "* * * Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. * * *" *Page 220 This constitutional provision has been implemented by the Workmen's Compensation Act which prohibits negligence actions by employees against a covered employer for injuries received while in the course of their employment, but provides for compensation for injuries or death in conformity with the procedures, findings, and schedules of the Industrial Commission pursuant to the authorization of such chapter of law. Also, if there be a violation of specific safety requirements as established by the commission, an additional recovery may be awarded pursuant to the following provisions of this constitutional section: "Such board shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final; and for the purpose of such investigations and inquiries it may appoint referees. When it is found, upon hearing, that an injury, disease, or death resulted because of such failure by the employer, such amount as shall be found to be just, not greater than fifty nor less than fifteen per centum of the maximum award established by law, shall be added by the board, to the amount of the compensation that may be awarded on account of such injury, disease, or death, and paid in like manner as other awards * * *." In conformity with such constitutional authority, the General Assembly created the Industrial Commission of Ohio and enacted volume 41 of the Ohio Laws, and sections of law providing for the general standards and duties of care owed by an Ohio employer to his employees, and to those known as "frequenters," who regularly come upon the premises of the employer. The Supreme Court of Ohio, prior to the 1924 amendment of section 35, Article II, held that these workmen's compensation laws, "embodying in general terms duties and obligations of care and caution," were lawful requirements *Page 221 within the meaning of the Ohio Constitution, and thence held that an action could be brought by an employee as against an employer. The Ohio Automatic Sprinkler Co. v. Fender (1923),108 Ohio St. 149. This interpretation of the workmen's compensation laws was again followed in the case of Winzeler v. Knox (1924),109 Ohio St. 503. However, as stated, the adoption of the amendment to Section 35, Article II, specifically precluded such a suit by an employee, and the language of the amendment stated in effect that the compensation received by an employee pursuant to laws provided for the compensation of employee injuries, "shall be in lieu of all other rights to compensation or damages * * *." In harmony with this provision of the Constitution, as amended, was the enactment of R. C. 4123.74, which provides: "Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition occurring during the period covered by such premium so paid into the state insurance fund, or during the interval of time in which such employer is permitted to pay such compensation directly to his injured employees or the dependents of his killed employees, whether or not such injury, occupational disease, bodily condition, or death is compensable under sections 4123.01 to 4123.94, inclusive, of the Revised Code." Since such constitutional amendment, and this specific code section, the Ohio Supreme Court, and other courts in Ohio, have uniformly held that an employee may not sue a complying employer for damages for injuries sustained in his employment. Example of such cases propounding such law are State, ex rel. Turner, v.United States Fidelity Co. (1917), 96 Ohio St. 250; State, exrel. Engle, v. Indus. Comm. (1944), 142 Ohio St. 425; Sebek v.Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693;Bevis v. Armco Steel *Page 222 Corp. (1949), 86 Ohio App. 525; Greenwalt v. Goodyear Tire Rubber Co. (1955), 164 Ohio St. 1; Daniels v. MacGregor Co. (1965), 2 Ohio St.2d 89; and State, ex rel. Allied ChemicalCorp., v. Earhart (1974), 37 Ohio St.2d 153. As noted here, the main thrust of the plaintiffs' argument in this appeal is to the effect that these workmen's compensation laws, as interpreted by the Ohio courts, unreasonably limit the rights of an employee to be "fully compensated" for his injuries received within the course of his employment, and in effect force the employee to accept the smaller amount of compensation provided for by the workmen's compensation law. Such resultant, argue the plaintiffs, is an unconstitutional denial of the employee's right of "due process" and "equal protection" of the law. The initial portion of the plaintiffs' argument, to the effect that "full compensation" in the form of pain and suffering and punitive damages, has been denied an employee by the workmen's compensation laws, was early laid to rest by the Supreme Court of Ohio in State, ex rel. Crawford, v. Indus.Comm. (1924), 110 Ohio St. 271. No Ohio cases have been cited herein which speak directly to the federal constitutional arguments advanced by these plaintiffs. However, the Supreme Court of the United States, and the Supreme Courts of other states, have upheld other similar statutory provisions against claims of unconstitutionality. As pointed out by the defendants herein, the United States Supreme Court considered three coordinated cases involving the constitutionality of the workmen's compensation laws of the states of New York, Iowa and Washington, in New York Central R.R. Co. v. White (1917), 243 U.S. 188, Hawkins v. Bleakly (1917), 243 U.S. 210, and Mountain Timber Co. v. State ofWashington (1917), 243 U.S. 219. In upholding the workmen's compensation law of New York, the Supreme Court set forth the following in its, syllabus in NewYork Central R. R. Co. v. White, supra: "Held: (1) That neither (a) in rendering the employer *Page 223 liable irrespective of the doctrines of negligence, contributory negligence, assumption of risk and negligence of fellow servants, nor (b) in depriving the employee, or his dependents, of the higher damages which, in some cases, might be recovered under those doctrines, can the act be said to violate due process. "(2) That viewed from the standpoint of natural justice, the system provided by the act in lieu of former rules is neither arbitrary nor unreasonable. * * * "The common-law rules respecting the rights and liabilities of employer and employee in accident cases, viz., negligence, assumption of risk, contributory negligence, fellow-servant doctrine, as rules defining legal duty and guiding future conduct, may be altered by state legislation, and even set aside entirely — at least if some reasonably just substitute be provided." In amplification of the rationale of these principles, we find the following within the decision, at page 197: "In considering the constitutional question, it is necessary to view the matter from the standpoint of the employee as well as from that of the employer. For, while plaintiff in error is an employer * * * the exemption from further liability is an essential part of the scheme, so that the statute if invalid as against the employee is invalid as against the employer. "The close relation of the rules governing responsibility as between employer and employee to the fundamental rights of liberty and property is of course recognized. But those rules, as guides of conduct, are not beyond alteration by legislation in the public interest. No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit. * * * The common law bases the employer's liability for injuries to the employee upon the ground of negligence; but negligence is merely the disregard of some duty imposed by law; and the nature and extent of the duty may be modified by legislation, with corresponding change in the test of negligence. * * *" The Supreme Court, in Hawkins v. Bleakly, supra, in *Page 224 reviewing the workmen's compensation law of Iowa, said, in the syllabus, the following: "A Workmen's Compensation Act, which, prescribing the measure of compensation and the circumstances under which it is to be made, establishes a method of applying the measure to the facts of each case by due hearings before an administrative tribunal, whose action upon all fundamental and jurisdictional questions is subject to judicial review, is not open to objection upon the ground that it clothes the administrative body with an arbitrary and unbridled discretion in violation of due process of law." Similarly, in Middleton v. Texas Power Light Co. (1919),249 U.S. 152, the Supreme Court of the United States reviewed the Texas workmen's compensation act, and it specifically rejected the assertion that workmen's compensation laws constitute a "deprivation of liberty and property without due process of law." It further rejected the claim that such act denied employees affected by the act equal protection of the law. In Keller v. Dravo Corporation (C. A. 5, 1971),441 F.2d 1239 (cert. denied 404 U.S. 1017), the plaintiff contended that "he was unconstitutionally deprived of a property right," and his "right" to sue his employer and fellow servants for damages by the provisions of the Longshoremen's and Harbor Workers' Compensation Act. In rejecting this contention, the court stated, at page 1242, that "one cannot be heard to question the sufficiency of due process if the rule of law, which merely held the potential to create a property right, was changed before any right vested," and concluded: "This latter situation is precisely what obtains in the instant case." In Massey v. Thiokol Chemical Corp. (S. D. Ga. 1973),368 F. Supp. 668, the claim that the workmen's compensation law of Georgia denied "due process" and "equal protection" because of the denial of "all common law and other remedies to covered employees and their dependents" was rejected. In Kaznoski v. Consolidation Coal Co. (W. D. Penn. 1974),368 F. Supp. 1022, it was held that the West Virginia *Page 225 workmen's compensation act was not a violation of "due process" by virtue of "the loss of one's right to sue." It is difficult, if not impossible, to enact perfect legislation pertaining to any field of human endeavor or needs. The laws relating to workmen's compensation, the Industrial Commission, and the provisions of law enacted to compensate employees for their work-related injuries, and to provide for relief from civil suit to the covered employer, is no exception to the general rule. The workmen's compensation laws of Ohio may well not be perfection in their attempt to compensate employees for their injuries, but they do indeed provide a reasonably equitable balance between the rights, duties and privileges of both the employee and the employer. Although these statutes as written, and as administered by the administrator and the Industrial Commission, may need amendments in certain respects, such laws are not unreasonable or unfair in the constitutional sense. We believe that these laws have provided a fair and reasonable opportunity for employees to be compensated for their injuries, and an opportunity for the families of deceased employees, who have succumbed from industrial injuries, to receive survivor benefits for their reasonable aid and care. We find no unconstitutional denial of due process, nor a denial of the equal protection of the law, on the face of such statutes. Nor do we find that these plaintiffs have been treated unfairly or unreasonably in the interpretation or application of such laws to their claimed right to relief. Therefore, all of the assignments of error as set forth by the plaintiffs are hereby dismissed, and the judgment of the Court of Common Pleas of Franklin County is hereby affirmed. Judgment affirmed. STRAUSBAUGH, P. J., and McCORMAC, J., concur. *Page 226

2018-12-04 17:29:37.161752+00

http://www.courts.state.ny.us/reporter/3dseries/2018/2018_08268.htm

Matter of Terian v Terian (2018 NY Slip Op 08268) Matter of Terian v Terian 2018 NY Slip Op 08268 Decided on December 4, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 4, 2018 Sweeny, J.P., Manzanet-Daniels, Gische, Tom, Moulton, JJ. 7805N [*1] In re Peter G. Terian File 3871I,J/02 Deceased. v Juliana C. Terian, Petitioner-Respondent, Thomas J. Killeen, Petitioner, v Robert Wurmbrand, Respondent-Appellant. Sullivan & Worcester, LLP, New York (Jonathan G. Kortmansky of counsel), for appellant. Law Office of Theodore P. Kaplan, New York (Theodore P. Kaplan of counsel), for respondent. Order, Surrogate's Court, New York County (Nora S. Anderson, S.), entered July 26, 2017, which, inter alia, granted the joint application of petitioners Juliana C. Terian and Thomas J. Killeen for the appointment of Jacques L. Debrot as successor co-trustee upon the resignation of Killeen, unanimously affirmed, with costs. The Surrogate properly granted the petition since the express terms of the subject will permitted a majority of the trustees to act collectively in selecting successor trustees (see Matter of Luckenbach, 303 NY 491, 496 [1952]; see also Georgius v Village of Morrisville, 90 AD3d 1256 [3d Dept 2011]). We have considered respondent's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: DECEMBER 4, 2018 CLERK

2016-07-06 06:41:46.13992+00

Jon T. LaLiberte has appealed from a judgment of the Medina County Court of Common Pleas that denied his motion to modify his child support obligation to his former wife, Julie Lynn Miller. He has argued that the trial court incorrectly calculated his basic child support obligation under R.C. 3113.215 because it was required to "give him credit" for the period of time that his children spend with him pursuant to a shared parenting plan that had been adopted by the trial court, but failed to do so. This court affirms the judgment of the trial court because it was not required to "give [Mr. LaLiberte] credit" for the time his children spend with him in its calculation of his basic child support obligation and did not abuse its discretion in not doing so. I Mr. LaLiberte and Ms. Miller's marriage was dissolved on August 7, 1990. Pursuant to a separation agreement between them, Miller was awarded custody of their three minor children, and LaLiberte became obligated to pay child support on their behalf. On February 9, 1993, LaLiberte moved the trial court to adopt a shared parenting plan. The parties eventually agreed to such a plan and, on June 29, 1993, the trial court adopted the agreed-upon plan. It included a provision setting forth LaLiberte's child support obligation: "Therefore, the parties agree that the child support obligation and levels shall be as follows: "a. Father shall pay to the mother, as and for the support of the minor children, the sum of $850.00 per month, from June 1993 to May 31, 1994; "b. The sum of $900.00 per month from June 1, 1994 to May 31, 1995; "c. The sum of $950.00 per month from June 1, 1995 until further order of the Court. "If any party seeks a modification of the support amounts under this Plan, all considerations under this Plan, including but not limited to income amounts, [are] void. Nothing in this Plan shall be construed as conclusive in future actions regarding income being modified." On March 15, 1994, LaLiberte moved for modification of his child support obligation. His motion was referred to a referee, who took evidence and, on May 11, 1994, filed a report and recommendation. She recommended that LaLiberte's motion for a modification of his child support obligation be denied because there *Page 209 was less than a ten percent difference between the agreed-upon amount and the amount she calculated using a Child Support Worksheet in accordance with R.C. 3113.215. LaLiberte objected to the recommendation of the referee. On July 27, 1994, the trial court overruled his objections and adopted the referee's recommendation. He timely appealed to this court. II LaLiberte's sole assignment of error is that the trial court incorrectly calculated his basic child support obligation under R.C. 3113.215 because it did not "give him credit" for the period of time that his children spend with him pursuant to the shared parenting plan that had been adopted by the trial court. R.C. 3113.215 includes a mandatory schedule for calculation of a parent's basic child support obligation, factors and criteria that a court may consider in determining that the basic child support obligation calculated in accordance with the schedule "would be unjust or inappropriate and would not be in the best interest of the child," and procedures for modification of existing child support orders. As this court recently noted in Smith v. Collins (Apr. 5, 1995), Summit App. No. 16802, unreported, at 2, 1995 WL 149215, pursuant to R.C. 3113.215, if a party to a child support order moves for a modification, the trial court must recalculate the basic child support amount using the current support schedule and the parties' updated financial information. This recalculated amount is then compared to the amount provided for in the existing child support order. If there is more than a ten percent difference between the recalculated amount and the amount in the existing order, the difference "shall be considered by the court as a change of circumstance that is substantial enough to require a modification of the amount of the [existing] child support order." In this case, as part of her consideration of LaLiberte's motion to modify his child support obligation, the referee utilized the then-current support schedule and his updated financial information. She concluded that there was not a ten percent difference between the amount provided for in the shared parenting plan and the recalculated amount: "In this case, the previous child support order was $850 per month from June, 1993 to May 31, 1994. After that, it was to rise to $900 per month for one year and then $950 per month thereafter. Based on the Referee's recalculation of Child Support Worksheet B, attached hereto and incorporated herein, using the respondent's own estimate of income for 1994 as $38,000 and using his stated income for the first three months of the year as evidence that the $38,000 figure is probably accurate, the total child support for all three children for one month *Page 210 would be $911.33 per month, which is less than the ten percent required for a finding of a change of circumstance. Finding no significant change of circumstance, the Referee recommends that the request for modification of support be denied." Pursuant to the shared parenting agreement, the parties' children spend sixty-four percent of their time with Miller and thirty-six percent of their time with LaLiberte. LaLiberte has argued that the referee was required to reduce the amount she calculated as his basic child support obligation by thirty-six percent to $583.25 because, according to him, he fulfills thirty-six percent of his child support obligation by spending money on his children during the time they are with him.1 R.C. 3113.215(C) provides that "[e]xcept when the parents have split parental rights and responsibilities, a parent's child support obligation for a child for whom the parent is the residential parent and legal custodian shall be presumed to be spent on that child and shall not become part of a child support order, and a parent's child support obligation for a child for whom the parent is not the residential parent and legal custodian shall become part of a child support order."2 According to LaLiberte, "[i]n this case, each of the parties are, for a period of time, the residential parent and legal custodian * * *." He has pointed out that R.C. 3109.04(K)(6) and (7), as those subparts existed at the time of the trial court's judgment, provided that, unless the context required otherwise, when a court had provided for shared parenting, the parent with whom a child was residing at a particular time was the "residential parent" during that time and a parent with whom a child was not residing at a particular time was "not the residential parent" during that time3: "(6) Unless the context clearly requires otherwise and except as otherwise provided in the order, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, the parent with whom the child is to reside at a particular point in time, as specified in the order, is the *Page 211 `residential parent,' the `residential parent and legal custodian,' or the `custodial parent' of the child at that point in time. "(7) Unless the context clearly requires otherwise and except as otherwise provided in the order, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, the parent with whom the child is not to reside at a particular point in time, as specified in the order, is the `parent who is not the residential parent,' the `parent who is not the residential parent and legal custodian,' or the `noncustodial parent' of the child at that point in time." R.C. 3109.04(A)(2), at the time of the trial court's judgment, specifically provided that child support obligations under a shared parenting plan were to be determined "in accordance with section [3113.215] of the Revised Code."4 R.C. 3113.215(B)(6) deals with calculation of child support under shared parenting orders. R.C. 3113.215(B)(6)(a) provides that such child support shall be calculated "in accordance with the schedule and with the worksheet set forth in division (E) of this section, through line 24 * * *." It further provides, however, for an exception: "[I]f the application of the schedule and the worksheet, through line 24, would be unjust or inappropriate to the children or either parent and would not be in the best interest of the child because of the extraordinary circumstances of the parents or because of any other factors or criteria set forth in division (B)(3) of this section, the court may deviate from the amount of child support that would be ordered in accordance with the schedule and worksheet, through line 24, shall consider those extraordinary circumstances and other factors or criteria if it deviates from that amount, and shall enter in the journal the amount of child support calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet, through line 24, its determination that that amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting that determination." R.C. 3113.215(B)(6)(b) provides that "[t]he amount of time that the children spend with each parent" is among the "extraordinary circumstances of the parents" that a court may consider in determining whether to order child support in an amount different from the amount calculated in accordance with the schedule and worksheet. Inasmuch as R.C. 3113.215(B)(6) specifically provides how the amount of time a child spends with a parent is to enter into the calculation of child support awardable under a shared parenting order, LaLiberte's argument that his basic *Page 212 child support obligation was incorrect because it was not reduced by the percentage of time his children spend with him must be rejected. The language of R.C. 3113.215(B)(6) makes it clear that, even under the former version of R.C. 3109.04(K), the parent with whom a child was residing at a particular time pursuant to a shared parenting agreement was not considered the "residential parent" for purposes of R.C. 3113.215(C).5 Pursuant to R.C. 3113.215(B)(6), a trial court may, in its discretion, determine that an amount different from the basic child support obligation calculated pursuant to the schedule and worksheet is in the best interest of the children and is, therefore, appropriate. In this case, the referee considered the amount of time the children spend with LaLiberte pursuant to the shared parenting agreement, but concluded that a variation from the amount calculated was not appropriate: "The Referee finds that a deviation from the schedule based on the amount of time the children spend with each parent would not be in the best interest of the children in this case. The mother needs child support in the statutory amount in order to maintain the children in the manner which they would have enjoyed had the marriage continued." This court cannot say that the trial court abused its discretion by adopting this part of the referee's report and recommendation. LaLiberte's assignment of error is overruled. III LaLiberte's assignment of error is overruled. The judgment of the trial court is affirmed. Judgment affirmed. QUILLIN, P.J., and REECE, J., concur. 1 Miller had no income and the trial court did not impute any income to her. Accordingly, it concluded that her child support obligation was zero. 2 "`Split parental rights and responsibilities' means a situation in which there is more than one child who is the subject of an allocation of parental rights and responsibilities and each parent is the residential parent and legal custodian of at least one of those children." R.C. 3113.215. 3 R.C. 3109.04(K) was amended effective November 9, 1994. It now provides that, "[u]nless the context clearly requires otherwise and except as otherwise provided in the order," each parent is the "residential parent" under a shared parenting order "regardless of where the child is physically located or with whom the child is residing at a particular point in time * * *." R.C.3109.04(K)(6). 4 This aspect of R.C. 3109.04 remains unchanged. 5 As noted previously, under the current version of R.C.3109.04(K)(6), "[u]nless the context clearly requires otherwise and except as otherwise provided in the order," each parent is considered the residential parent and legal custodian regardless of where the child is residing. If both parents were entitled to a setoff for the time they are the residential parent and legal custodian, therefore, neither would ever have a child support obligation. *Page 213

2016-07-06 06:41:46.176525+00

JOURNAL ENTRY and OPINION {¶ 1} In April 2001, two-month-old M.W. (we will refer to her as "the child") and her brother, 30-month-old Devin, were removed from the custody of their parents and placed in foster care after x-rays showed that she had numerous bone fractures in different stages of healing in her rib cage, clavicle and legs. Assuming that she had been abused, the county obtained temporary custody of the child and her brother and placed them in foster care. Two weeks later, Devin died as a result of having been shaken by his foster mothers' granddaughter. Further examination of the child showed that she suffered from osteogenesis imperfecta, or "brittle bone" disorder — a genetic disorder characterized by bones that break easily, often from little or no apparent cause. The county removed her to another foster home and eventually sought permanent custody, as relevant here, on grounds that the appellant-father R.W.'s past history of abuse and failure to take steps to correct his abusive behavior made him unsuitable as a parent. Although not seeking custody of the child, the father contested the motion for permanent custody and asked the court to impose a planned permanent living arrangement in which he would retain certain parental rights. The court denied the motion for permanent custody and continued temporary custody. Less than three months later, the county filed a new motion for permanent custody, primarily on grounds that the father had failed to complete counseling for his abusive conduct. The court held another hearing and this time granted the motion. The father appeals. I {¶ 2} The father first complains that the court violated his right to confront the witnesses against him when it permitted the guardian ad litem for the child to submit a report one day after the close of trial. That report recommended that the court grant the county's motion for permanent custody. The father maintains that the late filing prevented him from cross-examining the guardian ad litem on various factual allegations in the report; namely, his lack of commitment to the child and his propensity toward violence. {¶ 3} We summarily reject the father's Confrontation Clause claims as this court has held that the Confrontation Clause of the United States Constitution only applies in criminal cases and not to cases involving requests for permanent custody. See In re Hitchcock (June 22, 2000), Cuyahoga App. No. 76432. {¶ 4} The father also argues that the court violated the express terms of R.C. 2151.414(C), which states that "[a] written report of the guardian ad litem of the child shall be submitted to the court prior to or at the time of the hearing * * *." {¶ 5} We have held that "any claim of error arising from the guardian ad litem's failure to file a written report is waived when the argument is not raised in the trial court." In re Cordell (Apr. 2, 1992), Cuyahoga App. Nos. 60049 and 60050; see, also, In re Cooper (Aug. 28, 2001), Cuyahoga App. No. 78848. {¶ 6} There is no question that the father did not object to the court's order extending the deadline nor did he attempt to call the guardian ad litem as a witness at trial. The father argues that he raised the same objection in the first proceeding, only to have it overruled by the court. He figured that a second objection would be similarly futile. Regardless what he believed the court would do, the father had the duty to preserve error for appellate review. By failing to object, he is deemed to have waived any error. {¶ 7} Moreover, we must acknowledge that the father had the benefit of reading the guardian ad litem's first report. That report gave the guardian's opinion that granting permanent custody to the county would be in the best interests of the children. The guardian ad litem questioned the father's sincerity about his commitment to obtain gainful employment and noted that he told her, "I may never work again." She placed these remarks in the context of a wrongful death suit that the parents had pending against the county at the time. This leads to the conclusion that the father's interest in the child may have been pecuniary only. The report also spoke of the guardian ad litem's concerns about the father's abusive and angry conduct, which led one doctor to make a tentative diagnosis of "impulse control disorder." {¶ 8} Knowing all of this, it seems unlikely to us that the facts and circumstances which led to this opinion would have changed in any significant way in the very brief period of time that elapsed between the first and second motions for permanent custody. The father could well have assumed that the guardian ad litem would have continued to take a position adverse to his own interests as there was no evidence to show any change in circumstances in his conduct or behavior. Had it been his intention to call the guardian ad litem as a witness, he could easily have assumed the content of her recommendation for the court; hence, his failure to obtain the report before trial would have been of no moment to him. II {¶ 9} The father next complains that the court erred by failing to appoint an independent counsel for the child. He argues that the guardian ad litem did not adequately represent the wishes of the child, who he claims "did not by any account wish to be permanently legally separated from her parents." {¶ 10} R.C. 2151.281(B) permits the court to appoint a guardian ad litem to protect the interests of any child who has allegedly been abused or neglected. Ordinarily, this appointment satisfies R.C. 2151.352, which grants a child or the child's parents the right to counsel at all stages of the proceedings under R.C. Chapter 2151 and 2152. The supreme court has stated, however, that a child who is the object of a proceeding to terminate parental rights and has been appointed a guardian ad litem may be entitled to the appointment of independent counsel "in certain circumstances." See In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, syllabus. Those circumstances can arise when the guardian ad litem's role to protect the best interests of the child conflicts with the child's interests. Id. at ¶ 18; see, also, Juv.R. 4(C). {¶ 11} Because the right to counsel is a personal right, we must consider whether the father has standing to raise on the child's behalf issues relating to the court's failure to appoint the child counsel separate from the guardian ad litem. In the context of custody cases, it has been held that "[a]n appealing party may complain of an error committed against a non-appealing party when the error is prejudicial to the rights of the appellant. When parents and their children who are not in the parents' custody seek the same outcome, e.g., reunification, an error that is prejudicial to the children's interests in that outcome is similarly prejudicial to the parents' interests. Thus, the parents would have standing to raise such an error." In re Moody, Athens App. Nos. 00CA5 and 00CA6, 2001-Ohio-2494, at 10 (internal citations omitted); see, also, Jennings-Harder v. Yarmesch, Cuyahoga App. No. 83984, 2004-Ohio-3960 at ¶ 13. {¶ 12} The father says that the child expressed a desire to remain with his parents, but we think that it is a dubious proposition. There is nothing in the record to show that she indicated any choice in the matter. To be sure, the father presented evidence to show that the child had a bond with him and the mother. But the presence of parent/child bonding is not the same thing as making a knowing choice to remain with one parent. Indeed, the guardian ad litem noted in her report that the child did not express any preference between her natural and foster parents. Without that evidence to show that the child's interests were aligned with those of the father, the father fails to establish standing. See In re A.P., Cuyahoga App. No. 83220, 204-Ohio-4080, at ¶ 24. {¶ 13} Even had the father established standing to raise the argument on appeal, the same lack of evidence showing the child's desire to remain with her parents would doom the father's right to counsel claims. The right to counsel independent from that of the guardian ad litem arises only when the guardian ad litem's duties to protect the best interests of the child conflict with the desires of the child. For example, in the court of appeals decision in the Williams case, the court of appeals noted, "[t]here was evidence Malcolm had repeatedly maintained he wished to remain with appellant. His behavior regressed and became more aggressive upon his removal in October of 2001. During supervised visitation, Malcolm often did not want to let appellant out of his sight. A strong bond between the children and their mother was not in dispute below." See In re Williams, Geauga App. Nos. 2002-G-2454 and 2002-G-2459, 2002-Ohio-6588 at ¶ 9. {¶ 14} Here, the child expressed no such desire to remain with her parents, nor did she display the kind of behavior that would cause the court to conclude that the child had expressed a desire to do so. Indeed, the child could not even speak in full sentences. In short, there was nothing in the record to show that the guardian ad litem's representation somehow conflicted with the interests of the child. {¶ 15} And even had the child expressed a desire to remain with her natural parents, the court could have acted within its discretion to question whether the child had the mental capacity to make such a decision. At the time of trial, the child was 29-months-old and, aside from showing that she got along well with her parents during visitations, there was no other evidence to show that she had bonded to them. By contrast, the child at issue in Williams was six years of age and had exhibited behavior which backed up his verbal statements about wanting to remain with his natural parents. We have questioned the ability of children older than the child at issue here to make the kind of decisions required as prerequisite for the appointment of independent counsel. See, e.g., In re K. K.H., Cuyahoga App. No. 83410, 2004-Ohio-4629, at ¶ 9 ("[t]he level of cognitive maturity exhibited by a four-year-old non-developmentally delayed child is not that which would indicate the need for independent legal counsel."); In re G.C. M.C., Cuyahoga App. No. 83994, 2004-Ohio-5607 (same). If a child four years of age has questionable maturity to request independent counsel, there can be no doubt that a child only 29-months-old likewise has an even greater lack of necessary maturity. Hence, the court did not err by failing to appoint independent counsel for the child. III {¶ 16} The father complains that the court's order granting permanent custody of the child to the county was against the manifest weight of the evidence because the evidence did not support the court's findings that (1) the child could not be placed with the parents within a reasonable period of time because the parents had failed to remedy the conditions that caused the child to be removed from the home and (2) that the father demonstrated a lack of commitment to the child. See R.C. 2151.414(E). A {¶ 17} We preface our discussion under these assignments of error by noting that the court could not, contrary to the father's assertions, order a planned permanent living arrangement. {¶ 18} Pursuant to R.C. 2151.353(A)(5), the court can order a planned permanent living arrangement if "* * * a public children services agency or private child placing agency requests the court to place the child in a planned permanent living arrangement and if the court finds, by clear and convincing evidence, that a planned permanent living arrangement is in the best interest of the child and that one of the following exists: {¶ 19} "(a) The child, because of physical, mental, or psychological problems or needs, is unable to function in a family-like setting and must remain in residential or institutional care. {¶ 20} "(b) The parents of the child have significant physical, mental, or psychological problems and are unable to care for the child because of those problems, adoption is not in the best interest of the child, as determined in accordance with division (D) of section 2151.414 [2151.41.4] of the Revised Code, and the child retains a significant and positive relationship with a parent or relative. {¶ 21} "(c) The child is sixteen years of age or older, has been counseled on the permanent placement options available to the child, is unwilling to accept or unable to adapt to a permanent placement, and is in an agency program preparing the child for independent living." {¶ 22} In In re A.B., Cuyahoga App. No. 83971, 2004-Ohio-5862, we very recently restated our view that a planned permanent living arrangement can only be ordered if the county seeks it first. Because the county did not request a planned permanent living arrangement, the court could not order it. Consequently, the father's arguments that the court erred by refusing to implement a planned permanent living arrangement are irrelevant. See, also, In re K.P., Cuyahoga App. No. 82709, 2004-Ohio-1674. {¶ 23} We are aware that prior decisions of this court, and other districts, have held that the court may, sua sponte, impose a planned permanent living arrangement. For example, in In re Cremeans (Mar. 12, 1992), Cuyahoga App. Nos. 61367-61369, the panel cited to former R.C.2151.353(A)(5), and held that notwithstanding statutory language to the contrary, the courts were obliged to liberally construe R.C. Chapter 2151 to effectuate "the care, protection, and mental and physical development of children." The panel therefore held that "* * * the trial court has broad discretion under R.C. 2151.353. The fact that the agency did not request long-term foster care does not thereby limit such discretion." See, also, In re Lane (Feb. 8, 2001), Montgomery App. No. 18467. {¶ 24} We believe our current line of cases accurately reflects the meaning of R.C. 2151.353(A)(5), and thus expressly disapprove Cremeans. It is longstanding law that the interpretation of a statute rests on the legislature's intent. State ex rel. Francis v. Sours (1944),143 Ohio St. 120, 124. The intent of the legislature resides first in the words used in the statute. Provident Bank v. Wood (1973),36 Ohio St.2d 101, 105. If those words are unambiguous, we need go no further. State v. Tuomala, 104 Ohio St.3d 93, 2004-Ohio-93, at ¶ 21. {¶ 25} The wording of R.C. 2151.353(A)(5) is so unambiguous that we would be hard-pressed to find a clearer indication of intent. The statute states in no uncertain terms that the court may order a planned permanent living arrangement if (1) the county requests it, (2) that the planned permanent living arrangement would be in the best interests of the child, and (3) one of the factors in subsections (A)(5)(a)-(c) exist. While we understand that the best interests of the child are paramount in any custody case and that we are to liberally interpret the statutes to provide for the care and protection of the child, R.C. 2151.01(A), we cannot override unambiguous statutory language. Indeed, the juvenile courts derive their jurisdiction solely by grant from the General Assembly; thus, they do not have inherent equitable jurisdiction to determine a child's best interests. See In re Gibson (1991),61 Ohio St.3d 168, 172. We therefore restate the law in this district to be that a court may not order a planned permanent living arrangement unless it is requested by a "public children services agency or private child placing agency." B A claim that a factual finding is against the manifest weight of the evidence requires us to examine the evidence and determine whether the trial of fact clearly lost its way. We undertake this duty with the presumption that the court's factual findings were correct. See SeasonsCoal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 79-80. This is because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility. State v. DeHass (1967),10 Ohio St.2d 230, paragraph one of the syllabus. Hence, "[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. FoleyConstr. Co. (1978), 54 Ohio St.2d 279, syllabus. {¶ 26} The court could only grant the motion for permanent custody if it found the factors in R.C. 2151.414(E) existed by clear and convincing evidence. "Clear and convincing evidence" is that quantum of evidence which instills in the trier of fact a firm belief or conviction as to the allegations sought to be established. Cross v. Ledford (1954),161 Ohio St. 469, 477. Our review of the weight of the evidence in a permanent custody case is limited to whether competent, credible evidence exists to support the trial court's factual determinations. In reStarkey, 150 Ohio App.3d 612, 2002-Ohio-6892, at ¶ 16. C {¶ 27} R.C. 2151.414(B)(1) states that before a court can grant permanent custody to a moving agency, it must determine, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: (a) the child is not abandoned or orphaned or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for 12 or more months of a consecutive 22-month period ending on or after March 18, 1999, 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; (c) the child is orphaned, and there are no relatives of the child who are able to take permanent custody; (d) the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for 12 or more months of a consecutive 22-month period ending on or after March 18, 1999. {¶ 28} There is no factual dispute as to the court's finding that the child had been in the county's custody for 12 or more months of a consecutive 22-month period ending after March 18, 1999. The county took custody of the child on April 4, 2001, and she has continually remained in the county's custody since that time. That being the case, the court had no obligation to determine whether the child cannot or should not be placed with either parent within a reasonable time. See In re M.H., Cuyahoga App. No. 80620, 2002-Ohio-2968, at ¶ 25. The sole consideration at this point is whether permanent custody was in the best interests of the child. In re R.K., Cuyahoga App. No. 82374, 2003-Ohio-6333, at ¶ 16. {¶ 29} Because the father was unwilling to take custody of the child and the option of a planned permanent living arrangement was unavailable due to the county's failure to request it, the issue becomes whether permanent custody was in the best interests of the child. R.C. 2151.414(D) gives a nonexclusive list of factors which the court shall consider when determining the best interests of a child: {¶ 30} "(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers (sic) and out-of-home providers, and any other person who may significantly affect the child; {¶ 31} "(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; {¶ 32} "(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; {¶ 33} "(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; {¶ 34} "(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child." {¶ 35} Only one of the enumerated factors needs to be present in order for the court to award permanent custody. In re C.H., Cuyahoga App. Nos. 82258 and 82852, 2003-Ohio-6854, at ¶ 34. {¶ 36} The court made several conclusions of law, some of which specifically referenced factors listed under R.C. 2151.414(D). Contrary to the county's assertions, however, the court did not issue a conclusion of law specifically finding that permanent custody would be in the child's best interests because she had been in the temporary custody of the county for 12 or more months of a consecutive 22-month period. Had the court made a specific reference to this finding, our inquiry would be at an end. But the factor is not self-executing. It nonetheless requires that a concomitant finding relating to the best interests of the child be made. Even though the child has been in the temporary custody of the county for 12 or more months of a consecutive 22-month period, the court may still find that permanent custody would not be in the child's best interests. {¶ 37} One factor that the court did list as going to the child's best interests was the need of a legally secure placement that could not be achieved without a grant of permanent custody. The court ruled that as the child matures, "while enduring a physically challenging condition, she will need a secure, mature, family environment that is attentive to and supportive of her needs." {¶ 38} As we previously noted, the father did not seek custody of the child nor did the county want a planned permanent living arrangement. With no other dispositional option available to it, the court had no choice but to order permanent custody as the sole remaining avenue for creating a legally secure placement. The evidence supported the court's findings. IV {¶ 39} In April 2003, the trial judge informed the parties that she attended a party in December 2002 and met the child and foster mother. The court told the parties that "she's a very lovely child." None of the parties voiced any concerns about the judge's comments. Just before the start of the foster mothers' testimony, the trial judge reiterated for the record that she met the child and foster mother at a party. She said that she spoke briefly to the foster mother and told her that she thought the child was "lovely." The judge characterized the conversation as "small talk" and said it lasted about five minutes. The judge went on to assure the parties that this brief interaction would not affect her judgment, but that she wanted the parties to know about it. The father did not object. {¶ 40} The father's lack of objection to the court's disclosure forecloses his ability to complain about it on appeal. Had he wished for the court to recuse itself, he should have made a motion at a time when the court could have acted in a timely manner. By failing to do so, he is deemed to have waived the argument on appeal. State v. Williams (1977),51 Ohio St.2d 112, paragraph two of the syllabus {¶ 41} In any event, we see no likelihood whatsoever that the court's brief interaction with the child was sufficient to call its impartiality into question. Canon 3(B)(7) of the Code of Judicial Conduct states that "[a] judge shall not initiate, receive, permit or consider communications made to the judge outside the presence of the parties or their representatives concerning a pending or impending * * *" unless certain inapplicable exceptions apply. The "communications" in this case were non-substantive, and clearly so innocuous that the father saw no reason to ask the court to recuse itself. While the better course is for a trial judge to avoid all contact with parties to a case, we find that the contact here was harmless beyond any doubt since it was non-substantive. See State v. Jenkins (1984), 15 Ohio St.3d 164 (non-substantive ex parte communication between judge and jury held harmless). V {¶ 42} The father next complains of several instances in which he claims his assigned counsel performed ineffectively. He maintains that counsel should have filed objections to the unattainable case plan goals, that counsel should have requested the appointment of a new guardian ad litem for the child, and that counsel should have asked the judge to recuse herself once she revealed that she had an out-of-court conversation with the foster mother. A {¶ 43} "In actions instituted by the state to force the permanent, involuntary termination of parental rights, the United States and Ohio Constitutions' guarantees of due process and equal protection of the law require that indigent parents be provided with counsel and a transcript at public expense for appeals as of right." State ex rel. Heller v.Miller (1980), 61 Ohio St.2d 6, paragraph two of the syllabus; see, also, R.C. 2151.352 (statutory right to representation by legal counsel at all stages of proceedings under R.C. Chapter 2151). We thus consider claims of ineffective assistance of counsel in proceedings to terminate parental rights under the two-part test set forth in Strickland v.Washington (1984), 466 U.S. 668. That test means that the party claiming ineffective assistance of counsel must show that counsel's performance was deficient and that the deficient performance was so serious as to prejudice the defense. We have no obligation to address the separate elements of an ineffective assistance of counsel claim in any order: "there is no reason for a court * * * to approach the inquiry in the same order or even to address both components of the inquiry if the [party asserting the claim] makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id. at 697. B {¶ 44} The father first maintains that counsel should have made a timely objection to two items contained in the case plan. First, he argues that the lack of competent evidence showing a history of domestic violence made it inevitable that his protestations of innocence would cause him to be removed from treatment. Second, he maintains that the requirement that he and the mother live apart for six months could not be completed because the mother could find no housing other than in a battered woman's shelter and eventually had no choice but to return to live with him. Counsel orally objected to these elements of the case plan, but the court said that it would not rule on them since the objections had not been "formally submitted." {¶ 45} While counsel had the obligation to formally object to the case plan and request a hearing, see R.C. 2151.412(E)(2), we cannot say that counsel acted deficiently by failing to do so. The county continued to believe that the father had issues relating to anger management and impulse control. Although the father repeatedly denied having anger issues, those denials simply reinforced for the county the depth of his problems. While the father makes a compelling argument to show that he had no such issues, it is highly unlikely that the court would have amended the case plan based on the father's assertions to the contrary. In fact, the father only argues that a timely objection "may have" caused the court to modify the case plan. To prevail on an ineffective assistance of counsel argument, the father needs to show that but for the error the result of the proceeding would have been different. Here, he has only stated that it is possible that the outcome would have been different, and that is not enough. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. {¶ 46} As for the requirement that the couple live separate and apart for six months, we see no prejudice from the failure to object in a timely manner because the court did not specifically note this as a finding of fact in its order. C {¶ 47} The father argues that counsel should have requested the appointment of an independent counsel for the child once it became clear that the guardian ad litem did not provide representation consistent with the child's wishes to be reunited with her natural parents. As we stated earlier, the child was far too young to express any choice in custody, and counsel would have had to make a spurious argument to carry out the father's wishes. Counsel did not act deficiently by failing to make such an argument. D {¶ 48} Although counsel did not ask the judge to recuse herself after disclosing that she had briefly spoken to the foster mother at a party, that failure to act did not amount to a breach of an essential duty. The judge appeared to fully disclose the length and content of her interaction with the foster mother and child, and there was no indication whatsoever that her interaction with the foster mother and child somehow affected her decision in this matter. Indeed, we would assume that counsel would have wanted the judge to continue presiding over the matter since she had ruled favorably for the father in the first permanent custody hearing. That prior ruling, coming as it did after the judge disclosed the brief conversation with all the parties, would seem to be proof positive that the judge had not been biased against the father. VI {¶ 49} The father next complains that the court's journal entry granting permanent custody failed to demonstrate that the court considered all the factors required by R.C. 2151.414(D), particularly the child's relationship with her parents and the child's wishes with regard to custody. {¶ 50} R.C. 2151.414(D) requires the court to "consider all relevant factors, including, but not limited to" factors set forth within that section. In In re I.M., Cuyahoga App. Nos. 82669 82695, 2003-Ohio-7069, we stated at ¶ 27: {¶ 51} "R.C. 2151.414(D) requires the court to `consider all relevant factors' as set forth in this subsection. R.C. 2151.414(E), on the other hand, requires that the court `consider all relevant evidence' before determining that one or more of the conditions exist as set forth in this subsection before it enters a finding that the child cannot be placed with either parent. The statute does not require the court to list those factors or conditions it found applicable before making its determination that the child cannot be placed with either parent or that the permanent custody is in that child's best interest. * * * Absent [a request for findings of fact] and as long as the record supports the court's decision, the trial court was not required to journalize an entry that demonstrates that it considered statutory factors or evidence to support those factors before making a finding that the child could not be placed with either parent and that permanent custody is in the child's best interest." {¶ 52} The court did issue findings of fact which directly addressed several of the factors listed under R.C. 2151.414(D). As relevant here, the court found that "the child has visited with her parents while in foster care. There is nothing to indicate that visitation of some form could not continue if permanent custody is granted. While the child relates well to her biological parents, she has a significant attachment to her foster family." This statement certainly indicated that the court considered "the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers (sic) and out-of-home providers, and any other person who may significantly affect the child." See R.C. 2151.414(D)(1). {¶ 53} The court concluded that the parents had a relationship with the child, but that the foster parents had a greater relationship. The court found that the foster parents were "attentive, nurturing, and loving in their care of the child." On the other hand, the court found that "the parents' problems, especially those of the mother, eclipse those of the child. * * * A child * * * cannot afford to be in an environment of inattention and self-absorption on the part of the parent or caregiver [sic.])." {¶ 54} Moreover, the court found that the parents had shown a "lack of commitment" toward the child by "failing to regularly support, visit or communicate with the child." This lack of commitment directly relates to "interaction and interrelationship" between parents and child as required by R.C. 2151.414(A)(1). By failing to maintain a consistent schedule of visitation, the parents could not help but undermine their relationship with the child. {¶ 55} The court did not make any findings directly related to the child's wishes, but under the circumstances, it did not need to. As we found in part II of this opinion, the 29-month-old child did not have mental capacity to express her wishes on the matter. We cannot fault the court for ignoring an otherwise inapplicable factor. VII {¶ 56} During the first permanent custody hearing, the court heard the testimony of a doctor who examined the mother as a result of complaints she made that the father had partially mutilated her genitalia while performing oral sex on her. The doctor's examination could not verify the mother's complaints, and his office notes show that he believed she might have fabricated the allegations. The doctor testified over the mother's objections that he was violating the doctor/patient privilege. The court eventually struck the doctor's testimony, but allowed his report into evidence. The mother did not appeal. At the second hearing, the court incorporated all exhibits admitted into evidence at the first trial, including the doctor's notes. The father now complains that the court erred by doing so since the report constituted unauthenticated hearsay. {¶ 57} We review this assignment of error under the invited error standard because the father himself requested the court to consider the evidence even after the court said that it "would allow you to make any objections if you want to convince me that I should not consider the findings that I made in the past." {¶ 58} "The doctrine of invited error holds that a litigant may not take advantage of an error which he himself invited or induced." Statev. Campbell (2000), 90 Ohio St.3d 320, 324, 2000-Ohio-183 (internal quotation marks and citation omitted). The father's attorney said that he would post a "general objection" to the extent that the court failed to take into consideration "all of the evidence that is presented both at these proceedings and prior proceedings." By specifically asking the court to consider evidence admitted from the first hearing, the father is precluded from arguing that its admission, as requested, was erroneous. Judgment affirmed. It is ordered that appellee recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court — 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. Sweeney, P.J., Concurs. Karpinski, J., Concurs in Judgment Only.

2016-07-06 06:41:46.312137+00

JOURNAL ENTRY AND OPINION Defendant-appellant Damien Peterson appeals from his convictions for aggravated robbery in violation of R.C. 2911.01 and felonious assault in violation of R.C. 2903.11. The trial court imposed a four-year term of imprisonment for each crime and ordered that the terms be served concurrently. On January 19, 2000, Omar Stearns (hereinafter Mr. Stearns or the victim) and his uncle, Ellis Stearns, were accosted by two men who were unknown to them. Mr. Stearns' grandmother resides near Eddy Road and St. Clair Ave. At 10:30 p.m., the time of the attack, Mr. Stearns and his uncle were on their way to the store. Two strangers approached them on a diagonal and inquired as to whether Mr. Stearns and his uncle knew someone in the neighborhood. Because they did not recognize these two men, Mr. Stearns and his uncle simply said no and provided no further information. Mr. Stearns observed that one of the men was carrying a silver pistol. He yelled to his uncle and turned around to run. At this point, Mr. Stearns was shot in the back. Ellis Stearns was ordered to leave the area. The two men proceeded to strip Mr. Stearns of the Avirex jacket he was wearing and remove approximately fifty dollars from his pants pocket. Omar Stearns described the two men who robbed him. The man who was approximately five-foot seven inches tall and lighter in skin tone was the man with the firearm. The appellant was the second man involved. He was described as a larger man with a darker skin tone. During the robbery the assailants were close enough for Mr. Stearns to see their faces clearly. The appellant stepped on Mr. Stearns' face when inquiring after the money. After the robbery, the assailants told him to run away, an impossible feat with a bullet lodged in his back. The victim hopped to a neighbors' home as best he could. The perpetrators strolled away from the scene. By the time Mr. Stearns arrived at the neighbors' house, the police had been notified and were there within a few minutes. Throughout the trial, Mr. Stearns repeatedly and emphatically identified the appellant as one of his assailants. (T. 139, 147, 155, 156, 159, 167, 174). Ellis Stearns fully corroborated the testimony of his nephew. When he was ordered to leave the area after his nephew was shot, Ellis Stearns went back to his mother's home which was a few houses away. Ellis Stearns made a positive in-court identification of the appellant as one of the assailants. He also testified that thirty minutes after the robbery he identified the appellant, who was then seated in the rear of a police vehicle. The assailant with the gun was also seated in the police vehicle and was wearing Mr. Stearns' jacket. Ellis Stearns affirmatively testified that the jacket's presence was not a factor in his identification, rather, he identified the appellant because he had seen his face. Cleveland Police Detective Louis Vertosnik testified that he was on duty as a patrol officer the night of January 19, 2000. He and his partner, Tom Berry, responded to a call for shots fired on Eddy Road. EMS was already on the scene when the officers arrived. After speaking with those on the scene, the officers proceeded to the empty lot and observed footprints in the snow. There were four sets of footprints in the lot, two westbound and two eastbound. Officer Berry followed the footprints from Eddy Road to East 123rd Street. Detective Vertosnik retrieved the police vehicle and proceeded up East 124th Street. Although the two sets of footprints never separated, there were times when the officers lost sight of the footprints because the snow was too compacted or a street was crossed. At the end of the trail, the appellant and his accomplice were found in an abandoned van located in front of the second house south of Carnation Court on East 125th Street. Regarding the footprint trail, Detective Vetosnik testified that they: went through an empty lot from Eddy Road which is to abandon apartment buildings that was freshly covered with snow, hopped the fence, went through another yard, crossed 123rd through a school area, it is an abandon school called Hazel Dale, went through the playground area and they crossed 124th, cut a yard and a half, like catty cornered it to Carnation Court, which doesn't get a lot of traffic so it had pretty much snow. We could still follow. Crossed 125 again not again, but they crossed 125 back onto Carnation Court, and I picked them up when they jumped the fence into a yard and jumped behind a garage and jumped back over another fence and it led right to the back of the van. (T. 206-207). At the time of the arrest, the appellant's accomplice was wearing Mr. Stearns' jacket. A search of the van revealed a semiautomatic handgun with one round in the chamber and four more in the magazine. Neither the money nor the hats worn by the perpetrators were recovered. The appellant asserts two assignments of error, the second of which will be considered first. In the appellant's second assignment of error he argues that he was denied due process of law because the identification procedures used by the police in this case were suggestive. In State v. Allen (1995), 73 Ohio St.3d 626, 653 N.E.2d 675, the Ohio Supreme Court held that the failure to raise the issue of a suggestive identification results in a waiver of that issue. The identification issue raised in the present appeal was not raised before the trial court and therefore all but plain error is waived. In State v. Martin (1998),127 Ohio App.3d 272, 275, the court cited to Neil v. Biggers (1972),409 U.S. 188 and noted that in that case, the United States Supreme Court held that even though a show-up identification, involving the exhibition of just one individual to an eyewitness, as opposed to a lineup, is suggestive, it may, nevertheless, not offend constitutional due process if, under the totality of the circumstances, the identification is reliable. In Biggers, supra, the Supreme Court held that the factors to be considered in evaluating the likelihood of misidentification include: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness's degree of attention; 3) the accuracy of the witness' description of the criminal; 4) the level of certainty demonstrated by the witness at the confrontation; and, 5) the length of time between the crime and the confrontation. The central question is whether, under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive. Id. In the matter at hand, Ellis Stearns testified that he was able to see the appellant's face when the appellant first approached because the appellant was two or three feet from him. When Ellis was told to leave the area, he was five to ten feet away from the assailants. As he left, Ellis Stearns kept looking over his shoulders in order to keep an eye on the men. Ellis Stearns identified the appellant in court and testified that, after the shot, the appellant rushed towards his nephew's body and began to go through pockets. Ellis Stearns observed the assailants manhandling his nephew's body and testified that there was no doubt in his mind that the appellant was one of the persons involved in the robbery. The two assailants left as they came, together. It is evident from this testimony that, prior to the time his nephew was shot, Ellis Stearns had an opportunity to observe the appellant. Ellis Stearns had sufficient time to mentally process that the appellant was unknown to him and to determine that it would be best not to impart information regarding a neighbor to this unknown person. Ellis Stearns was given an opportunity to, and did, identify the appellant less than an hour from the time of the robbery. Despite the fact that Ellis Stearns' descriptions of the jackets and hats worn by the assailants was simple, he did identify that their clothing was dark. He was able to describe the relative heights and skin tones of the men. Most importantly, Mr. Ellis Stearns unhesitatingly identified the appellant as one of the perpetrators. The appellant has failed to demonstrate any unreliability of the identification made by Ellis Stearns. Turning next to the identification made by the victim, Mr. Omar Stearns identified the appellant as one of the perpetrators at a preliminary hearing held approximately thirty days after the robbery. Mr. Stearns had the opportunity to observe the appellant prior to and during the crime, just as did his uncle. Omar Stearns was aware that the appellant and the accomplice were strangers to the neighborhood and should not be given any answers to questions. Mr. Stearns testified that the appellant was only a foot away from him at one point and that, during the robbery, it was the appellant who placed his foot on Omar's face. Despite close questioning on cross-examination, Mr. Stearns was not deterred from his identification of the appellant. During his testimony, Mr. Stearns, over and over again, emphasized his certainty regarding his identification of the appellant. The appellant has failed to demonstrate any unreliability of the identification made by Omar Stearns. The second assignment of error is overruled. In the first assignment of error the appellant asserts that he was denied effective assistance of trial counsel based upon counsel's failure to file a motion to suppress the eyewitness identification of the appellant by Omar and Ellis Stearns. 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. State v. Keenan (1998),81 Ohio St.3d 133, 152, citing to Strickland v. Washington (1984),466 U.S. 668, 688. 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. See also State v. Davie (1997), 80 Ohio St.3d 311, 331 and State v. Reynolds (1997),80 Ohio St.3d 670, 674. There is a strong presumption that licensed attorneys are competent and that the challenged action is the product of sound trial strategy. State v. Hamblin (1988), 37 Ohio St.3d 153. Even debatable tactics do not constitute ineffective assistance of trial counsel, for it is obvious that nothing is seen more clearly than with hindsight. State v. Clayton (1980), 62 Ohio St.2d 45, 49. A reviewing court must evaluate trial counsel's performance on the facts of the particular case as of the time of counsel's conduct. Strickland, supra. In the matter now before this court, we have held that the identification of the appellant by Omar Stearns and by Ellis Stearns was properly admitted. We also note that the state presented overwhelming evidence of the appellant's guilt. Ellis Stearns identified the appellant in court and his testimony indicated that he could identify the appellant because of his observations at the crime scene. The suppression of the stand-up identification made by Mr. Ellis Stearns would not have changed the results of the trial. Likewise, the victim's testimony was unwavering regarding his identification of the appellant both in court and at the scene of the crime. Suppression of his pretrial identification of the appellant would not have altered the outcome of the trial. The appellant's first 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, P.J., and MICHAEL J. CORRIGAN, J., CONCUR.

2016-07-06 06:41:46.419345+00

OPINION Plaintiff-appellant, Phyllis J. Mills, appeals a decision by the Butler County Court of Common Pleas, granting summary judgment to defendant-appellee, Grover Mills. We affirm the decision of the trial court. This case involves a scuffle between appellant and Grover's daughter, Shirley Mae Spivey, which occurred at appellant's residence on January 12, 1998. Appellant and Grover were married for twenty years when they were granted a dissolution in 1993. Although they did not remarry, appellant moved back into Grover's home. On the morning of January 12, 1998, appellant and Grover were sitting at the kitchen table discussing Grover's health problems when Shirley came over to visit her father. Shirley joined in the discussion about Grover's health. At one point, appellant left the room to sit on a couch in the living room, which was adjacent to the kitchen. Shortly thereafter, Shirley and appellant began arguing. Although there was conflicting testimony as to how it began, a brief scuffle ensued, lasting about one minute. In her depositional testimony, appellant stated that Grover did not assist her or try to break up the scuffle, although she thought that she might have hollered for help. Grover testified that neither woman called for him. Appellant was able to break away from Shirley and call 911. Shirley waited for the police to arrive and was arrested. Grover refused to take appellant to the hospital, but one of appellant's family members took her to receive doctors' care for various injuries. One of appellant's fingers had been bitten, clumps of her hair had been uprooted, and she complained of pains in her neck, shoulder, head, and hip. Grover was sixty-nine years old at the time of the incident and suffered from heart problems and diabetes. Before the argument began, he was complaining that his foot was sore. Grover did not participate in the argument between the two women. He testified that he was not aware that the argument had become physical until he heard squealing, and the scuffle ended shortly thereafter. Grover, Shirley, and appellant had lived together from the time Shirley was four years old until she was seventeen years old. Shirley was thirty years old at the time of this incident. Grover stated that, although Shirley and appellant always argued when they were together, they had never physically fought before this incident. Appellant testified that Shirley had called her at work that day to threaten her. The record does not reveal any evidence that Grover knew about this. Appellant filed a complaint against Shirley and Grover, asking for reimbursement of her medical bills, an award for pain and suffering, and punitive damages. The trial court awarded summary judgment to Grover, finding that appellant had failed to show that Grover owed any duty to appellant, had any control over Shirley, or that the scuffle was foreseeable.1 Appellant appealed, raising one assignment of error: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE, AND DEFENDANT/APPELLEE IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. In her sole assignment of error, appellant argues that Grover, as a possessor of land, had a legal duty to protect appellant, his guest, from Shirley, a person over whom he allegedly had control. In the alternative, appellant argues that Grover, as a possessor of land, had a legal duty to rescue or assist appellant, his guest, once she was injured as a result of an intentional assault. Pursuant to Civ.R. 56(C), a summary judgment is appropriate when (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, and who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis DayWarehousing Co. (1978), 54 Ohio St.2d 64, 66. This court reviews a trial court's decision to grant summary judgment de novo. Jonesv. Shelly Co. (1995), 106 Ohio App.3d 440, 445. In order to sustain an action founded upon negligence, a plaintiff must show (1) that the defendant had a duty, recognized by law, requiring him to conform his conduct to a certain standard for the plaintiff's protection; (2) that the defendant failed to conform his conduct to that standard; and (3) that the defendant's conduct proximately caused the plaintiff to suffer a loss or injury. Cassano v. Antenan-Stewart, Inc. (1993), 87 Ohio App.3d 7,9, citing Brauning v. Cincinnati Gas Elec. Co. (1989),54 Ohio App.3d 38, 40. See, also, Fed. Steel Wire Corp. v. RuhlinConstr. (1989), 45 Ohio St.3d 171, 173, citing Menifee v. OhioWelding Products, Inc. (1984), 15 Ohio St.3d 75, 77. "Ordinarily, there is no duty to control the conduct of a third person by preventing him from causing harm to another, except in cases where there exists a special relationship between the actor and the third person which gives rise to a duty to control, or between the actor and another which gives the other the right to protection."Fed. Steel at 173. Therefore, to find liability in negligence requires the determination of a special duty owed by a particular defendant. Id., citing Hill v. Sonitrol of Southwestern Ohio,Inc. (1988), 36 Ohio St.3d 36, 38. Under the law of negligence, a defendant's duty to a plaintiff depends upon the relationship between the parties and the foreseeability of injury to someone in the plaintiff's position. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642,645, citing Huston v. Konieczny (1990), 52 Ohio St.3d 214,217. "Injury is foreseeable if a defendant knew or should have known that its act was likely to result in harm to someone." Id. There is no common law duty to anticipate or foresee a criminal act, and the law does not generally require the prudent person to predict the criminal acts of others. Fed. Steel at 174. Therefore, "the duty to protect against injury caused by third parties, which may be imposed where a special relationship exists, is expressed as an exception to the general rule of no liability."Id. Appellant argues that Grover, a possessor of land, had a duty to protect her from Shirley. The Restatement of Torts, Section 328E(a) defines "possessor of land" as "a person who is in occupation of the land with intent to control it." The Restatement of Torts, Section 314A imposes the following duties on a possessor of land who holds the land open to the public to its invitees: "(a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others." An "invitee" has generally been defined for tort purposes as "a business visitor, that is, one rightfully on the premises of another for purposes in which the possessor of the premises has a beneficial interest." Cassano v. Antenan-Stewart, Inc. (1993), 87 Ohio App.3d 7, 9, quoting Patete v. Benko (1986), 29 Ohio App.3d 325, 328. In support of her argument, appellant cites to Heys v. Blevins (June 13, 1997), Montgomery App. No. 16291, unreported, which involves a negligence action against a business owner based upon an assault that occurred on the business premises. Clearly, appellant was not an "invitee" under the most commonly understood definition for the term, because Grover was not a business owner and appellant was not Grover's customer. Rather, this was a situation where appellant and Grover shared a home, despite the fact that they were not legally married at the time of the incident. Therefore, the relationship between Grover and appellant was one of host and social guest. A host is not an insurer of the safety of a social guest while on the premises of the host. Scheibel v. Lipton (1951), 156 Ohio St. 308, 328. A host who invites a social guest to his or her premises owes the guest a duty to exercise ordinary care not to cause injury to the guest by any act of the host or by any activities carried on by host while the guest is on premises. Id. at 329. Also, a host of a social guest must warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in position of host should reasonably consider dangerous, if the host has reason to believe that guest does not know and will not discover such dangerous condition. Id. In this case, there is no evidence that Grover failed to fulfill a duty owed to appellant. First, the scuffle was not foreseeable. Appellant and Shirley had verbally fought many times before, but this was the first time one of their disagreements turned into a physical fight. Although appellant claims that Shirley had threatened her before the incident, there was no evidence suggesting that Grover had any knowledge of this alleged threat. Under these circumstances, Grover had no duty to warn appellant about Shirley or to watch closely for a physical fight of which he had no notice. Second, appellant failed to provide sufficient facts to show that Grover had the duty to rescue her from Shirley once the fight began. The scuffle lasted for approximately one minute, and it was not shown that Grover was aware of the nature of the scuffle before it ended. Nor was there any evidence that Grover had any control over Shirley, by which he could have restrained her behavior. Although Shirley was Grover's daughter, she was a thirty-year old woman whom Grover had not been able to control in numerous verbal arguments between Shirley and appellant. Moreover, there was no showing that Grover, who was in poor physical health, could have assisted appellant during the scuffle. Therefore, there was no showing that Grover could have assisted appellant during the scuffle. Additionally, appellant argues that Grover, her host, had a duty to assist her after the incident occurred. Assuming arguendo that Grover should have assisted appellant in obtaining medical attention after the scuffle ended, appellant failed to show that Grover's conduct was the proximate cause of any harm to appellant. There was no evidence suggesting that Grover's refusal to drive her to the hospital proximately caused or contributed to her injuries, where another family member was able to drive her. Appellant has failed to show that Grover owed her any duty under the law, that Grover failed to act in accordance with any duty, or that Grover's conduct proximately caused any injury to appellant. See Cassano v. Antenan-Stewart, Inc., 87 Ohio App.3d 7, 9. Therefore, the trial court's grant of summary judgment was appropriate. The assignment of error is overruled. Judgment affirmed. YOUNG, P.J., AND WALSH, J., concur. JUDGMENT ENTRY The assignment of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, affirmed. It is further ordered that a mandate be sent to the Butler County Court of Common Pleas for execution upon this judgment and that a certified copy of this Judgment Entry shall constitute the mandate pursuant to App.R. 27. Costs to be taxed in compliance with App.R. 24. William W. Young, Presiding Judge James E. Walsh, Judge Anthony Valen, Judge 1 Although Shirley is a party to this lawsuit, she is not a party to this appeal because the trial court's granting of summary judgment did not address her involvement in the incident and possible legal liability. This appeal addresses the question of whether Grover breached any legal duty owed to appellant.

2016-07-06 06:41:46.674828+00

OPINION AND JOURNAL ENTRY {¶ 1} On March 26, 2003, Petitioner Reginald Sevayega filed a petition requesting a writ of habeas corpus, providing at least seven propositions upon which he bases this request. Respondent David Bobby subsequently filed a motion to dismiss on April 23, 2003. For the following reasons, Respondent's motion to dismiss is granted. {¶ 2} Petitioner was convicted of one count of rape and two counts of tampering with evidence on July 23, 1993, and sentenced to a total of eight to twenty-five years incarceration. He is currently serving that sentence at the Belmont County Correctional Institution. Petitioner directly appealed his conviction, arguing that he was denied effective assistance of counsel, that the court erred in denying his motion for acquittal, and that he was denied a fair trial due to prosecutorial misconduct. The judgment of the trial court was affirmed by the Eighth District Court of Appeals. {¶ 3} In seeking a writ of habeas corpus, Petitioner alleges multiple "violations" including the discovery of new evidence, the failure of appellate counsel to argue ineffective assistance of counsel, and the failure of the Sixth Circuit Federal Court of Appeals to utilize the correct standard for reviewing his claims of actual innocence. However, we cannot reach the allegations contained in the request, as Petitioner has failed to follow proper procedure for seeking habeas corpus relief. {¶ 4} R.C. 2725.02 grants to this court the ability to authorize writs of habeas corpus. However, R.C. 2725.03 directs that "If a person restrained of his liberty is an inmate of a state benevolent or correctional institution, * * * no court or judge other than the court or judges of the county in which the institute is located has jurisdiction to issue or determine a writ of habeas corpus * * *." (Emphasis added.) Petitioner is incarcerated in Belmont County, and yet he filed this petition with the Mahoning County Clerk of Courts. Although the petition would ultimately reach this court whether filed in Belmont County or Mahoning County, the statute explicitly directs that Petitioner must file in Belmont County. Thus, the petition was not properly filed and should not be considered. {¶ 5} Beyond these procedural defects in the petition, this court could still not properly entertain the merits of his request for a writ of habeas corpus due to the substance of the claims upon which Petitioner rests. As previously stated, Petitioner alleges the discovery of new evidence, the failure of appellate counsel to argue ineffective assistance of trial counsel, and an improper review of his actual innocence claim by the Sixth Circuit Federal Court of Appeals. None of these issues presents a jurisdictional problem, and habeas is generally not the proper avenue for review of nonjurisdictional issues. State exrel. Pirman v. Mooney (1994), 69 Ohio St.3d 591, 593. {¶ 6} Generally, habeas corpus will lie only to challenge the jurisdiction of the sentencing court. Stahl v. Shoemaker (1977),50 Ohio St.2d 351. Under R.C. 2725.05: {¶ 7} "If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed." {¶ 8} Petitioner herein does not allege that the sentencing court lacked jurisdiction to impose the sentence it did, but rather that there were constitutional violations that resulted in an improper conviction. {¶ 9} While habeas will lay in certain extraordinary circumstances where the issues are nonjurisdictional, such situations are strictly limited to where there was no adequate legal remedy, such as appeal or post-conviction relief. Pirman, 69 Ohio St.3d at 593. In the instant case, Petitioner had an adequate remedy at law for the errors complained of. Although Petitioner claims that "* * * Counsel, on direct appeal in state court, raise[d] `ineffective assistance of counsel', but fail[ed] to argue the issue * * *," the opinion from the appellate court indicates otherwise. See State v. Sevayega (Sept. 22, 1994), 8th Dist. No. 65942. In the course of ruling on Petitioner's direct appeal, the appellate court indicates at least three respects in which Petitioner alleged that his trial counsel was deficient, and addressed each argument, explaining why counsel was not deficient. Thus, adequate legal relief was not only available to Petitioner, but was utilized as well. Where an adequate remedy at law was unsuccessfully invoked, extraordinary relief is not available to relitigate the same issue. Childers v. Wingard (1998),83 Ohio St.3d 427, 428. {¶ 10} Petitioner also claims that there is "newly discovered evidence" that can exonerate him, namely three investigative reports that Petitioner states were deliberately withheld by the prosecution pursuant to Crim.R. 16. In an attempt to bolster this claim, Petitioner included, among other pages of his trial transcript, page 313, wherein the admissibility of certain police reports is discussed. While the conversation is presented out of context, the extent to which it is presented is sufficient to demonstrate that the reports were not "new evidence" at all, but were instead reports deemed not to be subject to discovery. Because Petitioner was aware of the existence of the reports from, at the very least, the time of trial, to label them "new evidence" is a mischaracterization. If Petitioner believed the trial court's exclusion of the reports from discovery was erroneous, he had an adequate remedy by means of post-trial appeal. See State ex rel. Steckman v.Jackson (1994), 70 Ohio St.3d 420. {¶ 11} Furthemore, even if the evidence was "newly discovered," as Petitioner contends it to be, Petitioner would still have available to him an adequate remedy at law. Crim.R. 33(B), which governs motions for new trials, dictates protocol for defendants who wish to seek a new trial due to newly discovered evidence. The rule further provides an exception to the otherwise applicable time limitation for those who were unavoidably prevented from discovering the evidence in the given time period. Crim.R. 33(B). Thus, even if the evidence was in fact newly discovered, Petitioner would still have at his disposal an adequate remedy at law, thereby necessitating the denial of a petition for habeas relief. Gaskins v. Shiplevy (1996), 76 Ohio St.3d 380, 383. {¶ 12} Finally, while petitioner complains of errors made by the Sixth Circuit Federal Court of Appeals, this court is without jurisdiction to consider such allegations and, thus, would not be able to reach the merits of such a claim. Inasmuch as this petition fails in both procedure and substance, Petitioner's request for a writ of habeas corpus is denied. Petition dismissed. Costs taxed against Petitioner. {¶ 13} Final order. Clerk to serve a copy on counsel of record and Petitioner pursuant to the Civil Rules. Vukovich, Donofrio and DeGenaro, JJ., concur.

2016-07-06 06:41:46.716975+00

DECISION AND JUDGMENT ENTRY {¶ 1} Petitioner, Martin A. Gaines, filed a petition for writ of habeas corpus against respondents, Sheriff Mark Wasylyshyn, who is holding petitioner at the Wood County Justice Center, and Judge Alan R. Mayberry. Petitioner brings this proceeding to contest the amount off bail set as a condition of his release as issued by the Wood County Court of Common Pleas on May 30, 2008. *Page 2 {¶ 2} According to his verified petition, petitioner states that he was arrested upon a warrant pursuant to a complaint filed in Perrysburg Municipal Court charging him with two counts of receiving stolen property, in violation of R.C. 2913.51, and forgery, in violation of R.C. 2913.31, each a felony of the fifth degree. On April 24, 2008, petitioner appeared, in custody, before the municipal court for a preliminary hearing, where, over no objection from the state, petitioner was granted a personal recognizance bond and released from custody. Petitioner states that at the time of his preliminary hearing, a full disclosure of his prior criminal history was contained in the court's file for review. {¶ 3} On May 21, 2008, the Wood County Grand Jury indicted petitioner on two counts of receiving stolen property, in violation of R.C. 2913.51, forgery, in violation of R.C. 2913.31, and misuse of credit card, in violation of R.C. 2913.21, each a felony of the fifth degree. On May 30, 2008, petitioner appeared before the common pleas court for arraignment. Defense requested a continuance of the personal recognizance bond granted by the municipal court. The state indicated that it had no objection. Judge Mayberry, however, indicated that he had "some concerns about an own recognizance bond given the nature of the charges here [in petitioner's criminal record], including escape." The court noted petitioner's "multiple, multiple counts of money laundering and receiving stolen property," the ten pages of criminal record, a number of theft-related convictions, two driving under the influence convictions, multiple prison sentences, convictions for burglary, forgery, fraud and larceny in Florida, and two years incarceration for escape. Judge Mayberry stated that he did not "know what the *Page 3 prosecutor in Perrysburg or the judge were looking at, but [he didn't] see anything that warrants an own recognizance bond." As such, the common pleas court set bond at $10,000, no ten percent, on each of the four counts, for a total of $40,000, no ten percent. {¶ 4} In his petition, Gaines argues that he is being unlawfully detained because Judge Mayberry abused his discretion in establishing a cash bond based upon the same information regarding petitioner's criminal record that was available for review by the municipal court and the state at petitioner's preliminary hearing. Because the municipal court found that a personal recognizance bond was appropriate, and petitioner appeared at his arraignment pursuant to summons, petitioner argues that the common pleas court's amount of bail was excessive. Petitioner also argues that the common pleas court abused its discretion in changing the bond because there was no new information presented to the court regarding the likelihood that petitioner may abscond, and no other change in circumstance that would warrant a change in bond. {¶ 5} In Ohio, the writ of habeas corpus protects the right to reasonable bail. In re Petition of Gentry (1982), 7 Ohio App.3d 143,145. If the offense is bailable, the right to reasonable bail is an inviolable one which may not be infringed upon or denied. Id.; andLewis v. Telb (1985), 26 Ohio App.3d 11, 14-15. As such, a person charged with the commission of a bailable offense cannot be required to furnish bail in an excessive or unreasonable amount. Exparte Lonardo (1949), 86 Ohio App. 289, 290-91. {¶ 6} The purpose of bail is primarily to secure the accused's presence in court. Garcia v. Wasylyshyn, 6th Dist. No. WD-07-041,2007-Ohio-3951, ¶ 4. Pursuant to *Page 4 R.C. 2937.23(A)(3), "[i]n all cases, the bail shall be fixed with consideration of the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of the defendant appearing at the trial of the case." In addition, Section 9, Article I of the Ohio Constitution recognizes the need to ensure public safety as a consideration for setting bail in felony cases. King v. Telb, 6th Dist. No. L-05-1022, 2005-Ohio-800, ¶ 6. {¶ 7} In determining the types, amounts, and conditions of bail, Crim. R. 46(C) states that the court shall consider all relevant information, including the nature and circumstances of the crime charged, the weight of the evidence against the defendant, the confirmation of the defendant's identity, the defendant's family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, record of appearance at court proceedings or of flight to avoid prosecution, and whether the defendant is on probation, a community control sanction, parole, post-release control, or bail. After weighing the factors in Crim. R. 46, the trial court may set the amount of bail within its sound discretion. Davenport v. Tehan (1970),24 Ohio St.2d 91; and Bland v. Holden (1970), 21 Ohio St.2d 238, 239. {¶ 8} We have previously held that this discretion to set bail also permits the trial court that set the original bond to change the amount required for bail as circumstances warrant, such as, where new information is presented to the trial court regarding the likelihood that the accused may abscond. Utley v. Kohl (1997), 120 Ohio App.3d 52,55. In making our decision in Utley, we held that "[w]here the trial court setting the original *Page 5 bail has considered all the required factors in determining the amount of bail, and there is no showing of any changed circumstances of the accused or his surroundings, the bond as set must continue as a matterof right." (Emphasis added.) Id., citing Crim. R. 46(J). {¶ 9} Crim. R. 46, however, was amended in July 1998. The prior version of Crim. R. 46(J) stated that "[u]nless application is made by the surety for discharge, the same bond shall continue as a matter of right until the return of a verdict or judgment by a jury * * *." (Emphasis added.) Additionally, the amendments to bond permitted by former Crim. R. 46(H) stated, "a judge or magistrate ordering the release of a person on any condition specified in this rule may at any time amend the order to impose additional or different conditions of release." "Conditions" of release are and were separate requirements the trial court could impose upon the accused to secure his presence, in addition to or in lieu of a bond amount. Under the current version of Crim. R. 46, however, a trial court is not limited to only amending the conditions of release. SeeKing, 2005-Ohio-800, ¶ 17. {¶ 10} Rather, Crim. R. 46(E) states that "[a] court, at any time, may order additional or different types, amounts, or conditions of bail." (Emphasis added.) Moreover, there is no longer a "right" to the continuation of bond as stated in former Crim. R. 46. Rather, the current version of Crim. R. 46(H) merely states: {¶ 11} "Unless otherwise ordered by the court pursuant to division (E) of this rule, or if application is made by the surety for discharge, the same bond shall continue until the return of a verdict or the acceptance of a guilty plea. * * *" *Page 6 {¶ 12} We find that the language of Crim. R. 46(E) and (H) is consistent with Section 9, Article I of the Ohio Constitution, which states that "the court may determine at any time the type, amount, and conditions of bail." King, ¶ 19. In no circumstance, however, can excessive bail be required, excessive fines imposed, or cruel and unusual punishments inflicted. {¶ 13} In a habeas corpus action which challenges the amount of bond, we must review the decision of the trial court under an abuse of discretion standard. See Hardy v. McFaul, 103 Ohio St.3d 408,2004-Ohio-5467, ¶ 7. An abuse of the trial court's discretion occurs when the trial court's actions are unreasonable, arbitrary, or capricious. Gentry, supra at 146. {¶ 14} Upon review of the bond hearing in common pleas court, we find that the trial court did not abuse its discretion in setting a bond amount totaling $40,000, no ten percent. The common pleas court thoroughly considered the factors contained in R.C. 46(C) and determined that, given petitioner's lengthy record, frequent incarcerations, and criminal behavior in other jurisdictions, including a conviction for escape, that a personal recognizance bond was insufficient to secure petitioner's presence in court. Even assuming that the municipal court had petitioner's record available for review prior to releasing him on a personal recognizance bond, we do not know what factors the municipal court considered when determining bond. {¶ 15} Moreover, assuming arguendo that a change in circumstance is needed to justify an increase in bond amount, see, e.g., Leu v.Telb, 6th Dist. No. L-07-1217, 2007-Ohio-3317, *Page 7 we note that petitioner had not yet been indicted at the time the municipal court set bond, and that he was charged with only three crimes, not four as finally indicted. Given the minimal threshold required to establish for a change in circumstances, see, e.g., May v.Berkemer (Mar. 29, 1977), 10th Dist. No. 77AP-183, where merely a request for a continuance of a trial date was a sufficient change in circumstances to warrant an increase in the cash bond amount required for bail, we find that the common pleas court's determination of an appropriate amount for bail in this case was made within its sound discretion. {¶ 16} Accordingly, we find that the petition for habeas corpus does not contain a facially valid claim and, therefore, dismiss petitioner's action. Costs of this action to be assessed against petitioner. WRIT DISMISSED. {¶ 17} To the Clerk of Court: {¶ 18} The clerk is directed to immediately serve upon allparties a copy of this dismissal of Martin A. Gaines' petition for Writ of Habeas Corpus in a manner prescribed by Civ. R. 5(B). *Page 8 Peter M. Handwork, J., William J. Skow, J., Thomas J. Osowik, J., Concur. *Page 1

2016-07-06 06:41:46.793743+00

DECISION AND JUDGMENT ENTRY This is an appeal from a Meigs County Common Pleas Court summary judgment in favor of William Morehouse, plaintiff below and appellee herein. Appellant Ohio Adult Parole Authority raises the following assignment of error: "THE TRIAL COURT ERRED BY SUA SPONTE ENTERING SUMMARY JUDGMENT AGAINST THE DEFENDANTS BECAUSE (1) SUCH RELIEF IS PRECLUDED BY CONTROLLING PRECEDENT, (2) THERE WAS INSUFFICIENT EVIDENCE SUPPORTING THE PLAINTIFF'S CLAIM AND GENUINE QUESTIONS OF FACT EXISTED AND (3) THE DEFENDANTS WERE NOT GIVEN PRIOR NOTICE THAT SUMMARY JUDGMENT MIGHT BE ENTERED AGAINST IT." In 1973, appellee entered a guilty plea to a murder charge and was sentenced to life in prison. In 1988, appellee was paroled. In 1991, appellee, while on parole from his prior sentence, was indicted for aggravated attempted murder, kidnapping, and having a weapon while under a disability, as well as a gun specification and an enhancement due to a prior offense of violence. Appellee subsequently entered a guilty plea to felonious assault with a gun specification and was sentenced to six to fifteen years imprisonment to be served consecutively with his reinstated life sentence for the 1973 murder. At a 1998 parole hearing, the board noted that appellee has "a prior conviction for murder which has very similar circumstances and therefore the Parole Board voted to depart from" the normal parole guidelines. The board voted to require appellee to serve at least 330 months before he would be considered for parole. On July 31, 2000, appellee filed a complaint for declaratory judgment and requested the trial court to declare that the terms of his plea agreement for the 1991 offense contractually restricted appellant from considering the specific nature of his crime. Appellant filed a Civ.R. 12(B)(6) motion to dismiss. On December 29, 2000, the trial court denied appellant's motion. The trial court, however, sua sponte entered summary judgment in appellee's favor. Appellant filed a timely notice of appeal. In its sole assignment of error, appellant asserts that the trial court erred by sua sponte entering summary judgment in appellee's favor. We agree. Generally, "[a] trial court commits prejudicial error if it grants summary judgment sua sponte when neither party has moved for summary judgment." Spradlin v. Collier (Mar. 31, 1998), Scioto App. No. 97 CA 2521, unreported; see, also, Caudill v. A-Best Prods. Co. (Feb. 20, 1996), Scioto App. No. 94 CA 2305, unreported ("The Ohio Supreme Court has consistently held that trial courts may not render summary judgmentssua sponte.") (citing Bowen v. Kil-Kare. Inc. (1992), 63 Ohio St.3d 84,94, 585 N.E.2d 384, 393; James R. Soda, Inc., v. United Liberty LifeIns. Co. (1986), 24 Ohio St.3d 188, 190, 494 N.E.2d 1099, 1100; Marshallv. Aaron (1984), 15 Ohio St.3d 48, 50-51, 472 N.E.2d 335, 338). Some cases have held that a sua sponte entry of summary judgment may be appropriate in certain instances. For example, in Wilson v. Tucker (Jan. 14, 1997), Ross App. No. 96 CA 2209, unreported, we stated that "while courts should refrain from granting summary judgment to a nonmoving party as a general rule, courts may do so * * * where all relevant evidence is before the court, no genuine issue as to any material fact exists, and the nonmoving party is entitled to judgment as a matter of law." This holding, however, is conditioned upon at least one of the parties moving for summary judgment, thus giving notice to the nonmovants that they must come forward with evidence. When no party has moved for summary judgment, no party has been notified that it must produce evidence to support its claims. Under such circumstances, a trial court, as a general rule, cannot reasonably be certain that "all relevant evidence is before the court." We therefore agree with appellant that the trial court erred by sua sponte entering summary judgment in appellee's favor. Accordingly, based upon the foregoing reasons, we sustain appellant's assignment of error and reverse and remand the trial court's judgment. JUDGMENT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITHTHIS OPINION. Kline, J. Evans, J.: Concur in Judgment Opinion.

2016-07-06 06:41:47.056792+00

{¶ 27} I respectfully dissent. The issue is not who has control of the dog. It is whether Bowman had control of the premises in which the dog resided. The answer to that question is clear. There is no factual dispute that from time to time, as a resident of the home, Bowman had control over the entire premises and all its contents, including the dog.

2016-07-06 06:41:47.560071+00

I dissent from the majority's disposition of the fourth assignment of error.

2016-07-06 06:41:46.826729+00

DECISION {¶ 1} On March 10, 2000, plaintiff-appellant, Shawn C. Lautner, was involved in a collision when defendant-appellee, Chen Chin Lin, drove her vehicle into the rear of the vehicle appellant was driving. Appellant originally filed an action against appellee, State Farm Mutual Insurance Company and Grange Insurance Company for personal injuries arising out of the collision. After several dismissals, this case proceeded to a jury trial against appellee in August 2004. Prior to the trial, the parties stipulated that appellee negligently operated her motor vehicle causing the automobile collision, but the issues of proximate cause and damages were tried before the jury. After the trial, the jury returned a general verdict in favor of appellant and answered interrogatories, finding appellee's negligence directly and proximately caused injury or damage to appellant and awarding appellant $625 in total compensation, of which $612 was for past economic loss to appellant, $13 for past non-economic loss and nothing for future damages. {¶ 2} Appellant filed a notice of appeal and raises the following assignments of error: ASSIGNMENT OF ERROR NO. I The jury's verdict is inadequate as a matter of law, against the manifest weight of the evidence and the trial court erred by denying Appellant's motion for a mistrial based on the grossly inadequate jury award. ASSIGNMENT OF ERROR NO. II The trial court committed prejudicial error by improperly instructing the jury during deliberations and instructing the jury that it could award nominal damages in a negligence personal injury case. ASSIGNMENT OF ERROR NO. III The trial court committed prejudicial error by overruling Appellant's objections to Appellee's questions to and responses from Dr. Season expressed in the form of a medical opinion without the requisite foundation establishing that the medical opinion was based on a reasonable degree of medical probability rather than mere possibilities, and improperly refusing to instruct the jury regarding the standard for competence of medical opinions pursuant to Stinson v. England,69 Ohio St.3d 451 (1994). ASSIGNMENT OF ERROR NO. IV The trial court committed prejudicial error by improperly refusing to instruct the jury as requested pursuant to O.J.I. 11.10, ¶ 3,Preexisting condition, and O.J.I. 23.10, Aggravation; acceleration. {¶ 3} At the trial, appellant was the first witness to testify. He was employed by the Truro Township Fire Department as a firefighter paramedic, worked at MedFlight and taught at the State Fire Academy. On the date of the accident, he was leaving work at approximately 7 p.m., and traveling south on Interstate 270. An automobile accident had occurred and the traffic was stopping. He saw appellee's vehicle in his rearview mirror and she collided with the rear of the car he was driving. He estimated her speed was at least 55 m.p.h. Immediately after the accident, he felt pain in his lower back, shoulder and neck areas. That night, the pain became progressively worse. He took Advil and went to see Dr. Grant Evans, a chiropractor, for his complaints of lower back pain, neck and shoulder pain, and pain radiating down his left leg. {¶ 4} The pain interfered with his work activities and his free-time activities. Before the accident, he played softball approximately three times per week, played golf at least once per week, went boating, water skiing and lifted weights. After the accident, he testified he could not water ski, lift weights and decreased the amount of time he spent playing golf and softball. Dr. Evans treated appellant until November 2001, when he referred him to Dr. Emily Yu, who scheduled appellant for an MRI. The MRI revealed that appellant had degenerative disk disease on three levels of his back and a herniated disk. Dr. Yu recommended physical therapy, which appellant completed. In February 2002, after the physical therapy, appellant reported to Dr. Yu that his symptoms had significantly improved. {¶ 5} As a firefighter paramedic, he carried drug kits and airway kits which weighed 25 to 30 pounds and regularly lifted patients for transport, who ranged from children to adults who could weigh as much as 500 pounds. Sometimes when he lifted patients, he hurt his lower back and several times he completed an employee accident report. On October 12, 2002, he completed a form indicating he was injured while lifting and carrying a patient down the steps on a cot. He admitted that he reaggravated his injuries from the accident and began seeing Dr. Evans again on October 16, 2002. He has continued seeing Dr. Evans an average of once every two weeks since October 2002. {¶ 6} In February 2004, Dr. Evans referred appellant to Dr. Edwin Season, who, after examining appellant, recommended that appellant continue with his home exercise program and taking Advil. Appellant is examined by Dr. Season every three months. {¶ 7} Lieutenant Jeff Sharps with the Truro Township Fire Department testified that he is a long-time friend of appellant. He never heard appellant complain of injuries before the accident, but frequently heard complaints from appellant after the accident. He testified appellant missed softball games because of his injuries in the summer of 2001. They have taken trips and played in weekend softball tournaments together two to three times per year for the last five years. Sharps stated that, as part of the job of being a firefighter paramedic, appellant would have done heavy lifting, carrying, bending and stretching on a regular and daily basis. {¶ 8} Appellant's wife, Michele Lautner, testified that appellant was very active in sports before the accident, but, after the accident, he decreased the number of times he played softball and did not lift weights for approximately one and one-half years. After six months, he still had daily back pain, sporadic neck pain and sporadic sciatic nerve pain. {¶ 9} Chris Arp, the strength and conditioning coach and educational aide at Reynoldsburg City Schools, testified that he and appellant began to lift weights together in 1990, and they have been lifting together sporadically since that time. After approximately six months of not lifting weights, they began again after appellant finished physical therapy. {¶ 10} Andrew Weber, a lieutenant with the Truro Township Fire Department, testified that appellant still complains about back pain and asks for help in lifting patients more often than prior to the accident. Approximately six times in the last two years, appellant has asked to not work as medic but, rather, to drive the truck. {¶ 11} Appellee testified that, at the time of the accident, appellant did not express that he was injured. She estimated that she was traveling at approximately 65 m.p.h. at the time of the accident. {¶ 12} The videotape deposition of Dr. Yu was played to the jury. Dr. Yu examined appellant on November 12, 2001, and reviewed the MRI images and the report. Appellant had three levels of degenerative disk disease, which existed prior to the accident, and a herniated disk. Dr. Yu recommended surgical intervention or epidural injections, both of which appellant rejected as a course of treatment. Appellant then completed a course of physical therapy. After the physical therapy, appellant reported a significant improvement in both his low back pain and left leg pain. She recommended he continue with home exercises and start weight training gradually. He was a candidate for surgery or epidural injections if the leg pain continued. She testified that the herniated disk was a direct result of the collision, but that the degenerative changes were not related to the accident. The natural history of a herniated disk is that it would resolve within 24 months and appellant probably would not need future medical care. However, Dr. Yu testified that a herniated disk can be caused by degenerative changes or trauma and the degenerative changes could cause pain. She believed the herniated disk was caused by the accident because the MRI was taken after the accident and appellant's pain began after the accident. She opined that the medical bills in Exhibit 6, which was a list of all the medical bills incurred by appellant, were necessary. Dr. Yu did not review in detail the chiropractic bills or records because she does not understand them, but believes, generally, chiropractic care is a good first step in treatment for such an injury. {¶ 13} The videotape deposition of Dr. Season was played for the jury. Dr. Season believed appellant's injuries were the direct and proximate result of the accident and his injuries have produced chronic pain, which is permanent. Appellant will have continuing activity restrictions and his injuries will require future care. Dr. Season testified that appellant's chiropractic treatments were reasonable and necessary to treat his symptoms. {¶ 14} Since the second assignment of error is dispositive of the appeal, we shall address it first. By the second assignment of error, appellant contends that the trial court committed prejudicial error by improperly instructing the jury during deliberations and instructing the jury that it could award nominal damages in a negligence injury case. During deliberations, the jury asked the trial court: "Can the jury find for the plaintiff and award 0 in damages?" (Court Ex. 1.) The trial court responded as follows: The question implies that you found that the Defendant's negligence proximately caused some injury. Your question implies that. Okay. Assuming that implication is correct, my charge to you in answer to this question is as follows: If you find for the Plaintiff and that some injury to the Plaintiff was done by the Defendant, but the Plaintiff failed to prove by the greater weight of the evidence any amount of damages, you may award the Plaintiff nominal damages. Nominal means trifling or small. Nominal damages are generally $10 or less. Or you may award the Plaintiff any other amount of damages you find has been proved by the greater weight of the evidence. Okay. That is my answer to your question. So you may return and continue your deliberations. (Tr. at 301-302.) {¶ 15} In Lacey v. Laird (1956), 166 Ohio St. 12, paragraph two of the syllabus, the court held: "Nominal damages" are those recoverable where a legal right is to be vindicated against an invasion thereof which has produced no actual loss of any kind, or where, from the nature of the case, some injury has been done, the extent of which the evidence fails to show. "Nominal damages" are limited to some small or nominal amount in terms of money. {¶ 16} In Younce v. Baker (1966), 9 Ohio App.2d 259, the court found that, since actual injury is a necessary element of a cause of action for damages for personal or bodily injury, nominal damages alone are not recoverable in such an action. When actual damage is an element of the cause of action, nominal damages are unavailable. Lyle v. Aron (Oct. 31, 1997), Lucas App. No. L-97-1128. If the plaintiff fails to prove damages, in a personal injury case, the cause of action fails. Younce, at 262. In this case, the trial court should have simply answered the jury question with "No." In cases involving negligence, a jury instruction on nominal damages is reversible error. Stojkovic v. Avery Thress, M.D.,Inc. (May 28, 1999), Hamilton App. No. C-970279, citing Anderson v. St.Francis-St. George Hosp. (1992), 83 Ohio App.3d 221; and Craig v.Chambers (1867), 17 Ohio St. 253. The trial court in this case erred in giving the nominal damages instruction in response to the jury's question. Appellant's second assignment of error is well-taken. {¶ 17} Based upon our sustaining the second assignment of error, appellant's first, third and fourth assignments of error are rendered moot. {¶ 18} For the foregoing reasons, appellant's second assignment of error is sustained, the first, third and fourth assignments of error are overruled as moot, and the judgment of the Franklin County Court of Common Pleas is reversed and this cause is remanded to that court for a new trial. Judgment reversed and cause remanded. Bryant and Klatt, JJ., concur. Bowman, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:41:46.86057+00

DECISION AND JUDGMENT ENTRY {¶ 1} This case is before the court on appeal from a judgment of the Lucas County Court of Common Pleas, Domestic Relations Division. Appellant, Betty Davis, asserts the following assignments of error: {¶ 2} "I. The trial court erred by failing to provide the parties with notice that timely filed objections operated as an automatic stay of its judgment." {¶ 3} "II. The trial court erred as a matter of law by adopting the magistrate's decision and holding that appellant failed to prove, by clear and convincing evidence, all elements of civil contempt." {¶ 4} "III. The trial court abused its discretion by applying the equitable doctrine of laches. {¶ 5} "A. Appellee did not raise laches and therefore this defense is waived. {¶ 6} "B. Appellee did not prove laches." {¶ 7} We note at the outset that appellee failed to file a brief. Therefore, we would generally accept appellant's statement of the facts and issues as correct. See App.R.18(C). Nevertheless, we need not reach the merits of this cause and shall, therefore, limit the facts of this case to the following. {¶ 8} Appellant and appellee, Robert C. Davis, were divorced on October 5, 1978. Appellee was ordered to pay appellant spousal support in the amount of $85 per week for a period of 520 weeks. Over the ensuing years, the only amount of spousal support paid by appellee was $390.19. {¶ 9} On December 18, 2000, appellant filed a motion to show cause for failure to make court-ordered spousal support and a motion for contempt. However, neither party appeared at the hearing on these motions, and, on July 3, 2002, the domestic relations court dismissed the case, without prejudice, pursuant to Civ.R. 41(B)(1). The case was reinstated on July 3, 2002. {¶ 10} After a hearing on both issues, the magistrate issued a decision, dated March 6, 2003, granting appellant a lump sum judgment of $100,022.03. The magistrate denied the motion for contempt, finding: {¶ 11} "The Court has considered all evidence presented and concludes with regard to the evidence presented that the [appellant] failed to prove contempt by clear and convincing evidence. The [appellant] admits that she was aware of the whereabouts of [appellee] back to the 1980s but took no enforcement action. The purpose of Civil Contempt is to enforce the court order. Defendant sought no enforcement for almost twenty years. She is entitled to judgment for money owed." {¶ 12} On March 11, 2003, the trial court adopted the magistrate's decision as the order of the court. Appellant failed to file objections to the magistrate's decision; instead, she opted to file a notice of appeal. {¶ 13} In her Assignment of Error No. I, appellant concedes that she failed to file objections to the magistrate's findings of fact or conclusions of law as required by Civ.R. 53(E)(3)(a). In such a situation, a party is barred from assigning as error on appeal the trial court's adoption of any of the magistrate's findings of fact or conclusions of law. Civ.R. 53(E)(3)(b); State ex rel. Booher v. Honda ofAm. Mfg., Inc, 88 Ohio St.3d 52, 2000-Ohio-269 at ¶ 2. Appellant contends, however, that she did not waive her right to raise such errors because the trial court failed to notify her that the filing of objections would automatically stay execution of judgment under Civ.R. 53(E)(4)(c) and toll, pursuant to App.R. 4(B)(2), the time for the filing of her notice of appeal. According to appellant, she thus viewed the filing of the court's judgment as triggering the time for filing her notice of appeal. Therefore, instead of filing written objections, she appealed. {¶ 14} We initially note that there is nothing in either Civ.R. 53 or App.R. 4 that requires a magistrate to provide notice to the parties that the time for appeal will be tolled if objections are filed. Further, our reading of the case, Cunnningham v. Cunningham, 4th Dist. No. 01CA2801, 2002-Ohio-4094, relied upon by appellant as imposing such a notice requirement, reveals that Fourth District Court of Appeals is really referring to Civ.R. 53(E)(a). To repeat, that provision in the statute governs timely written objections to the magistrate's decision. Id. at ¶ 9. It does not require notice of the fact that the time for the appeal will be tolled upon the filing of those objections. The actual holding of the Cunningham court is that the lack of objections to the magistrate's decision barred the review of the merits of the appeal. Id. {¶ 15} Even if we were to assume, arguendo, that Cunningham requires that the magistrate's decision contain a notice that written objections must be timely filed, both the magistrate's decision and the trial court's judgment in the case before us would comport with that holding. Each reads: {¶ 16} "Notice to attorneys and parties {¶ 17} "Objections must be filed pursuant to Civil Rule 53(E)(3) and Local Rule 7.14." {¶ 18} The docket sheet of the present case reveals that copies of this decision and of this order were mailed to the parties. Consequently, as in Cunningham, appellant's failure to file timely written objections to the magistrate's decision precludes any consideration of the merits of this appeal. {¶ 19} Appellant's Assignment of Error No. I is found not well-taken. Our disposition of this assignment of error renders Assignments of Error Nos. II and III moot. Accordingly, the judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, is affirmed. The costs of this appeal are assessed to appellant. Judgment affirmed. Richard W. Knepper, J. and Mark L. Pietrykowski, J., concur.

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{¶ 21} I respectfully disagree with my colleagues' conclusion that judicial notice was inappropriately taken in this case simply because the State failed to identify which specific device Officer Roth utilized when recording Freitag's speed. Instead, I would affirm Freitag's conviction because I believe that speed measuring devices have reached the point that they are generally accepted as scientifically reliable, thus the specific device or model employed by Officer Roth is irrelevant to determining Freitag's guilt. {¶ 22} In State v. Miko, 9th Dist. No. 07CA0018-M, 2008-Ohio-1991, this Court determined that judicial notice of the scientific accuracy of a speed measuring device could be appropriately taken under Rule 201(B)(1) "if the trial court, in a reported decision, or the appellate court for the district in which the trial court is located, in a reported or unreported decision, determines that it is scientifically accurate." (Internal quotations omitted.) Miko at ¶ 11, citingCincinnati v. Levine, 1st Dist. No. C-040192, 2004-Ohio-5992. Further, a court can take judicial notice under Rule 201(B)(2) "if it has determined, in an earlier case, based on expert testimony in that earlier case, that the particular speed measuring device is scientifically accurate." Miko at ¶ 12; see, also, Levine at ¶ 10. I consider these requirements outdated and *Page 11 unnecessary given the state of the science surrounding all radar and laser-based speed monitoring devices and the revised opinion reporting rules of the Ohio Supreme Court. {¶ 23} The reporting distinctions outlined in Miko and adopted by our Court no longer comport with the revised reporting rules enacted by the Supreme Court in 2002 which effectively abolished the distinction between "reported" and "unreported" appellate court opinions. See Rep.R. 4. Nor do they align with the Supreme Court's current requirements for the reporting of trial court opinions. See Rep.R. 5. Thus, I consider the requirement born from case law that judicial notice of speed radar devices may only be taken in a case where the device's scientific accuracy is reported in a published trial court decision or a published or unpublished appellate court decision to be inconsistent with Supreme Court's revised rules governing opinion reporting. {¶ 24} A court also can take judicial notice if it has determined in a previous case, based on expert testimony received in that case, that the device is scientifically reliable. Miko at ¶ 12. I consider the Eighth District's opinion in Cleveland v. Tisdale, 8th Dist. No. 89877,2008-Ohio-2807, to present a more reasoned and uniform approach to this issue. In Tisdale, the appellate court held "that expert testimony is no longer required to establish the general reliability of radar or laser devices that are used to determine speed." Tisdale at ¶ 18. TheTisdale court followed the lead of other states who have established that speed measuring devices have achieved a state of scientific reliability, thus courts in those states no longer focus on the underlying science or mechanics upon which the machine operates, but instead focus on the accuracy of the particular device being used and the qualifications of the person using it. Tisdale at ¶ 16-18 (explaining that New York, Wisconsin, Idaho, and Hawaii no longer require expert testimony on the general reliability of speed measuring devices, though they continue to require evidence of the *Page 12 instrument's accuracy, the operator's use and the operator's training, and citing to case law from Maryland, Minnesota, New Jersey in support of the same). See, also, Ga. Code Ann., § 40-14-17; Va. Code Ann., § 46.2-882. {¶ 25} Ohio first addressed speed radar reliability in East Clevelandv. Ferell (1958), 168 Ohio St. 298, 303, where it held that stationary radar devices had reached the point that their readings "may be accepted into evidence *** without *** offering expert testimony as to scientific principles underlying them." Since Ferell, however, Ohio courts have continued to require expert testimony on a device-specific basis as technology has changed over time to include moving and laser-based devices. See, e.g., State v. Saphire (Dec. 8, 2000), 2d Dist. No. 2000 CA 39 (addressing what appeared to be the Ultralite 20/20 Model 200 laser); State v. Kirkland (Mar. 2, 1998), 3d Dist. No. 8-97-22 (addressing the K-55 radar-moving mode); State v. Schroeder (Sept. 8, 1995), 11th Dist. No. 95-G-1907 (addressing the LTI 20/20 laser);Moreland Hills v. Gazdak (1988), 49 Ohio App.3d 22 (addressing the Model S-80 moving radar). This movement, however, has evolved into a device-and jurisdiction-specific inquiry, and has returned us to apre-Ferell state of "[wasting] the time of experts *** and [increasing] the expenses of litigation *** by compelling such [experts] to appear in court after court telling the same truths over and over[.]"Ferell, 168 Ohio St. at 302, quoting State v. Dantonio (1955),18 NJ. 570, 579. {¶ 26} The appropriate question before the Court should be whether thetheory underlying the device has met scientific reliability standards, not whether the design of each specific device has. See Goldstein v.State (1995), 339 Md. 563, 574-75. I do not think that the science underpinning speed monitoring should be treated any differently than other scientific theories, such as the science supporting the measurement of a person's blood alcohol content, *Page 13 done by way of a breathalyzer device. Id.; see, also, Westerville v.Cunningham (1968), 15 Ohio St.2d 121, 123 (finding that "such [blood alcohol] tests are today generally recognized as being reasonably reliable on the issue of intoxication when conducted with proper equipment and by competent operators") Instead, I side with theTisdale court in concluding that, given the well-established reliability of radar and laser based speed measuring devices, the focus at trial should be to expose inaccuracies of the devices being used or insufficient qualifications of the officer using the device. Accordingly, even if the State failed to identify what specific model of the Genesis Radar Officer Roth used to record Freitag's speed, I would permit that evidence at trial, subject to proof that the device was in proper working order and that Officer Roth was adequately trained to use it. {¶ 27} In this case, Officer Roth testified in detail as to the internal and external calibration tests he performed on the Genesis Radar. He further testified that he was trained to use speed measuring devices while at the police academy and that he attended a class specifically on the Genesis Radar when the Village purchased the devices. Thus, I would conclude, without the need for judicial notice as to the reliability of the specific model of the device employed, that the trial court could appropriately rely on the readings Officer Roth recorded from the Genesis Radar that night. {¶ 28} Notwithstanding my preference to eliminate the requirement of expert testimony with respect to the general reliability to moving and laser based speed measuring devices, I also write to reiterate that our district is one in which the testimony of an officer who is trained in visual speed detection is considered sufficient to sustain a speeding conviction. See State v. Wilson (Nov. 20, 1996), 9th Dist. No. 95CA006285, at *1. See, also, State v. Kincaid (2003),124 Ohio Misc.2d 92, 95; State v. Harkins (Aug. 5, 1987), 4th Dist. No. 431, at *3-4;Columbus *Page 14 v. Bravi (Mar. 5, 1991), 10th Dist. No. 90AP-1135, at *2; State v.Jones (Nov. 8, 1991), 11th Dist. No. 91-T-4508, at *2. In this case, Officer Roth testified that "based on [] visual and audible observation," he determined that Freitag's sport utility vehicle was speeding. Officer Roth testified that that he had been trained in audible speed detection by a field training officer when he started with the Village seven years ago. He further stated that "the sound is what drew [his] attention specifically to the mirror to begin an observation of the vehicle." Officer Roth testified that he visually monitored the vehicle traveling in excess of the speed limit for 100-150 yards as it approached his police car before he activated the Genesis Radar. Accordingly, I would affirm Freitag's conviction even in the absence of Genesis Radar's recorded speeds based on principles of stare decisis. *Page 1

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OPINION {¶ 1} This habeas corpus action is presently before this court for disposition of the motion to dismiss of respondent, Warden Bennie Kelly of the Trumbull Correctional Institution. As the primary basis for his motion, respondent contends that the sole claim of petitioner, David J. Pishok, fails to set forth a viable cause of action for a writ because the sufficiency of a criminal indictment cannot be challenged in the context of a habeas corpus proceeding. For the following reasons, this court concludes that the dismissal of *Page 2 the instant matter is warranted. {¶ 2} Petitioner's current incarceration in the state penitentiary is based upon a 2002 criminal conviction in the court of common pleas of Seneca County, Ohio. At the outset of that underlying case, petitioner was indicted on nine separate felony charges. In addition, three of the primary charges contained specifications that petitioner was a repeat violent offender. Initially, petitioner entered a plea of not guilty to all nine counts. However, after the case had been pending for approximately four months, he entered a new plea of guilty as to seven of the nine charges. In exchange for this plea, the state dismissed the remaining two charges and each of the "repeat violent offender" specifications. {¶ 3} Of the seven remaining charges, the two most serious offenses consisted of aggravated robbery, a first-degree felony under R.C. 2911.01(A)(3), and complicity to robbery, a second-degree felony under R.C. 2911.02(A)(2) and R.C. 2923.03(A)(2). As to those offenses, the trial court sentenced petitioner to consecutive terms of nine and seven years respectively. In relation to the other five charges, the trial court imposed an additional consecutive term of five years, leading to an aggregate sentence of twenty-one years. {¶ 4} In bringing the instant action, petitioner sought his immediate release from prison on the grounds that his conviction for both aggravated robbery and complicity to robbery must be declared void. Specifically, he asserted in his petition that the Seneca County court did not have the requisite subject matter jurisdiction to go forward on those two offenses because he was never properly indicted for the crimes. According to him, the underlying indictment was flawed because, in attempting to delineate the crimes of *Page 3 aggravated robbery and complicity to robbery, the document failed to cite the mens rea element of both offenses; thus, since no viable charges were ever brought concerning those crimes, the trial court never acquired the authority to proceed against him. {¶ 5} In now moving to dismiss the habeas corpus claim under Civ. R. 12(B)(6), respondent essentially argues that such a claim cannot be employed to litigate this type of issue. Citing Wilson v. Rogers (1993),68 Ohio St.3d 130, respondent submits that a dispute regarding the legal sufficiency of an indictment cannot form the basis of a viable habeas corpus claim because the dispute does not pertain to the jurisdiction of the trial court over the criminal case. He further contends that the writ will never lie under these circumstances because petitioner had the ability to raise the "sufficiency" issue as part of a direct appeal from the conviction. {¶ 6} In responding to the motion to dismiss, petitioner expressly challenges the legal propriety of respondent's contentions. That is, petitioner states that an insufficient indictment can affect a trial court's jurisdiction and render any ensuing conviction void. In support of this position, he relies upon the decision of the Supreme Court of Ohio in State v. Cimpritz (1953), 158 Ohio St. 490. As petitioner correctly notes, paragraph six of the Cimpritz syllabus provides: {¶ 7} "A judgment of conviction based upon an indictment which does not charge an offense is void for lack of jurisdiction of the subject matter and may be successfully attacked either on direct appeal to a reviewing court or by a collateral proceeding." {¶ 8} Given the relative clarity of the foregoing language, it is certainly arguable that, at the time of its issuance, theCimpritz opinion stood for the basic proposition that *Page 4 a habeas corpus action could be used to contest the sufficiency of an indictment after the entry of the conviction. Nevertheless, our review of subsequent decisions indicates that the Supreme Court has expressly limited the application of Cimpritz. For example, in State v.Wozniak (1961), 172 Ohio St. 517, the primary question before the Supreme Court concerned whether the trial court had erred in allowing the prosecution to amend the indictment at trial to add missing elements. Upon concluding that the amendment of the charges had been improper, the Wozniak court then addressed the separate issue of whether the defect in the indictment had been waived. As part of this discussion, the court quoted its prior language in Cimpritz as to the use of a collateral action to contest the sufficiency of an indictment. Although the Wozniak court upheld the general validity of theCimpritz holding, the court specifically stated that the use of a collateral action would not be permitted in all instances: {¶ 9} "However, after a judgment of conviction for the crime sought to be charged in such indictment, such a collateral attack would no longer be effective because the judgment of conviction necessarily binds a defendant, where the court rendering it had jurisdiction of the person of the defendant and also jurisdiction of the subject matter,i.e., jurisdiction to try the defendant for the crime for which he was convicted. Such a judgment of conviction is necessarily binding as between the state and the defendant and can only be set aside by a direct and not a collateral attack." Id. at 522-523. {¶ 10} Under Wozniak, a collateral proceeding, such as a habeas corpus action, can only be employed to challenge the propriety of an indictment when the underlying criminal case still remains pending. However, once the conviction has been entered the *Page 5 indictment can no longer be subject to a collateral attack. Instead, the defendant's sole remedy is to raise the issue as part of his direct appeal. {¶ 11} Notwithstanding the Wozniak precedent, defendants have still tried to rely upon Cimpritz to justify the filing of a habeas corpus action following the completion of the criminal case. In Midling v.Perrini (1968), 14 Ohio St.2d 106, the defendant argued that a collateral attack was still permissible after conviction because theCimpritz court had stated that a judgment of conviction must be declared void if it is predicated upon an insufficient indictment. CitingWozniak, the Midling court indicated that the use of the word "void" inCimpritz had been inappropriate; instead, the prior opinion should have stated that an insufficient indictment only renders a judgment of conviction voidable. Id., at 107. Based upon this, the Midling court expressly held that a post-conviction habeas corpus action was not a proper means for seeking relief from a defective indictment: {¶ 12} "Where a defendant, while represented by counsel, pleads guilty to an offense and is sentenced, the judgment of conviction cannot be collaterally attacked on the ground that the indictment fails to state one or more essential elements of the offense. Evans v. Sacks,173 Ohio St. 116; Mills v. Maxwell, 174 Ohio St. 523; Perry v. Maxwell,175 Ohio St. 369, approved and followed. Paragraph six of the syllabus ofState v. Cimpritz, 158, Ohio St. 490, explained and distinguished." Id., at syllabus. {¶ 13} Even though the Wozniak and Midling precedent was rendered over forty years ago, the basic holding of those cases is still followed. Under that precedent, even if the underlying indictment was defective for failing to state all essential elements of a charged crime, the resulting conviction is still binding upon the defendant and cannot be subject to collateral attack when: (1) the trial court had jurisdiction over the defendant's *Page 6 person; and (2) the trial court had subject matter jurisdiction to try the defendant for the crime upon which the conviction is based.Hammond v. Dallman (1992), 63 Ohio St.3d 666, 667-668. Under such circumstances, the legal sufficiency of an indictment can be litigated only in a direct appeal from the conviction. State ex rel. Beaucamp v.Lazaroff (1997), 77 Ohio St.3d 237, 238. {¶ 14} In light of the foregoing legal analysis, petitioner's reliance upon Cimpritz is simply misplaced. Pursuant to the more recent Supreme Court case law, a defect in an indictment's statement of the elements of a charged offense does not constitute a jurisdictional error which can form the basis of a viable claim in habeas corpus. {¶ 15} A review of the pleadings in the instant matter readily shows that petitioner has not made any allegation concerning a lack of service of the indictment upon him; as a result, there is no dispute that the Seneca County trial court had personal jurisdiction over him. Similarly, petitioner has not disputed the fact that, as a common pleas court, the Seneca County court had subject matter jurisdiction to try him for the felony crimes of aggravated robbery and complicity to robbery. See R.C. 2931.03. Furthermore, consistent with the Midling precedent, this court would note that the documents accompanying the habeas corpus petition establish that petitioner was represented by counsel when he entered his plea of guilty to those two offenses. Thus, the merits of petitioner's contention regarding the legal propriety of the underlying indictment cannot be addressed in the context of the instant proceeding. {¶ 16} As this court has indicated on numerous prior opinions, a claim in habeas corpus can be subject to dismissal under Civ. R. 12(B)(6) because such a proceeding is viewed as civil in nature. See, e.g.,Novak v. Ganshieimer, 11th Dist. No. 2003-A-0023, *Page 7 2003-Ohio-5428, at ¶ 16. Pursuant to that rule, the dismissal of a claim is justified when "the nature of the allegations in the petition is such that, even when those allegations are construed in a manner most favorable to the petitioner, he will not be able to prove any set of facts under which he would be entitled to the writ." State ex rel.Peoples v. Warden of T.C.I., 11th Dist. No. 2003-T-0087, 2003-Ohio-4106, at ¶ 7. We have further indicated that the decision to dismiss under Civ. R. 12(B)(6) can be predicated upon the petitioner's factual assertions and any materials attached to his petition. Strzala v.Gansheimer, 11th Dist. No. 2004-A-0049, 2004-Ohio-6472, at ¶ 18. {¶ 17} Upon fully reviewing the factual allegations and attached materials in the instant action, this court concludes that petitioner has failed to state a viable claim for a writ of habeas corpus. Since petitioner has only sought to contest the sufficiency of the indictment in the underlying criminal case, he has not raised a proper challenge to the jurisdiction of the Seneca County trial court. In turn, this means that the actual merits of the "indictment" issue could only be considered in a direct appeal from his conviction. {¶ 18} In light of the foregoing legal discussion, respondent's motion to dismiss the habeas corpus claim is granted. It is the order of this court that petitioner's habeas corpus petition is hereby dismissed in its entirety. DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON, J., concur. *Page 1

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JOURNAL ENTRY AND OPINION I. FACTS AND PROCEDURAL HISTORY On September 18, 1987, defendant-appellant, Billy Joe Slagle, Jr., was indicted by the Cuyahoga County Grand Jury on one count of aggravated murder with three death penalty specifications, one count of aggravated burglary, one count of aggravated robbery and one count of attempted rape. Appellant's trial commenced on February 25, 1988. As set forth by the Supreme Court of Ohio in State v. Slagle (1992),65 Ohio St.3d 597, 598-599, the following evidence was adduced at trial: In the early morning hours of August 13, 1987, the victim Mari Anne Pope was awakened in her home by appellant. Two children, who she had agreed to watch for her neighbors, were also awakened. The children awoke to the voice of Mari Anne inquiring as to who this person was that had entered her home. A man's voice angrily threatened her and ordered her to roll onto her stomach. The man asked if there were others in the house, to which she replied that there were two children upstairs. The man told the victim not to move and that he had a knife at her back. The children then heard Mari Anne begin to pray. The man responded by ordering her to stop praying. The children recognized the voice and knew the man as Billy Slagle, who lived next door. They first sought to hide, and then to escape. They scurried through the hall and out the back door. One of the children looked into the bedroom and observed Slagle sitting on top of the victim, who was lying upon her stomach. Slagle had on only his underwear. As the children exited, the victim could be heard screaming. The children were admitted into a neighbor's home and police were called. Police officers arrived momentarily and as they moved around the house, shining a flashlight into the windows, one officer observed a man standing in the rear bedroom. The officer entered and observed appellant attempting to hide in the dining room, armed with blood-covered scissors. After ordering appellant to discard the scissors and lie face down on the floor, the officer placed handcuffs on him. The officer then went into the bedroom. He observed Mari Anne Pope lying across the middle of the bed. Her nightgown was pulled up around her neck. She was drenched in blood with large holes in her body. On the floor lay Mari Anne's broken rosary, and appellant's tank-top T-shirt. The officer called to his companion, telling him to call for medical treatment and to take custody of the handcuffed man on the dining room floor. The other officer responded that there was no one on the dining room floor and both officers began to search. Appellant had gotten up and hidden himself in a hallway closet. When the officer passed the closet door in this as yet darkened home, appellant burst from the closet and sought to escape. The first officer to react testified that appellant was very quick and agile. The officer was unable to subdue appellant until two other officers entered the fray. Appellant was observed to have blood on his hands and clothing. He also had a number of superficial scratches and bruises. Despite efforts to save her, Mari Anne Pope was pronounced dead at 6:00 a.m. The coroner reported that she had been stabbed seventeen times, with many of the stab wounds having been inflicted in and around her chest area. There were four stab wounds in her abdomen, five in the upper and lower extremities, with eight to the chest area, including wounds to the right atrium, pulmonary artery and right lung. She had also been severely beaten about her head and face. At 10:00 a.m. the same day, Detective John J. McKibben interviewed appellant, after having first advised him of hisFifth Amendment rights. At first, appellant claimed to have no knowledge of the events of that morning. After being reminded that he had been arrested in the victim's home, appellant described his actions on the night of August 12 and the morning of August 13 in some detail. The jury returned its verdict on March 13, 1988, finding appellant guilty of aggravated murder, aggravated burglary and aggravated robbery. The jury found appellant not guilty of attempted rape. On April 5, 1988, the sentencing phase of appellant's trial began. On April 7, 1988, the jury recommended a sentence of death. On April 14, 1988, the trial court sentenced appellant to death on the aggravated murder charge. The trial court also sentenced appellant to concurrent terms of ten to twenty-five years of actual incarceration for his convictions of aggravated burglary and aggravated robbery. On May 20, 1988, appellant filed a notice of appeal to this court, presenting twenty-five assignments of error for our review. On June 14, 1990, this court affirmed appellant's conviction and sentence of death. State v. Slagle (June 14, 1990), Cuyahoga App. No. 55759, unreported. The Ohio Supreme Court subsequently affirmed appellant's conviction and death sentence on December 31, 1992. State v. Slagle (1992), 65 Ohio St.3d 597. On February 10, 1993, the Ohio Supreme Court denied appellant's motion for rehearing. The United States Supreme Court denied appellant's petition for certiorari on October 4, 1993. This court subsequently denied appellant's application for reopening and on July 19, 1995, the Ohio Supreme Court affirmed the decision of the Court of Appeals. State v. Slagle (1995),72 Ohio St.3d 509. On March 26, 1996, appellant filed a motion for reconsideration in the Ohio Supreme Court. The court denied appellant's motion on May 8, 1996. On May 17, 1996, appellant filed an amended petition to vacate or set aside judgment1 in the trial court, raising sixty-three claims for relief.2 On July 21, 1999, the trial court issued its findings of fact and conclusions of law.3 The trial court denied appellant's amended petition without an evidentiary hearing, finding that all of appellant's claims were barred by the doctrine of res judicata. Appellant appealed the trial court's judgment denying his petition for post-conviction relief, raising seventeen assignments of error for our review.4 II. ASSIGNMENT OF ERROR ONE In his first assignment of error, appellant contends that the trial court committed reversible error in dismissing his petition without first conducting an evidentiary hearing. It is well settled, however, that a hearing is not automatically required whenever a petition for post-conviction relief is filed. State ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450; State v. Strutton(1988), 62 Ohio App.3d 248, paragraph one of the syllabus. The pivotal concern is whether there are substantive constitutional grounds for relief which would warrant a hearing based upon the petition, the supporting affidavits and materials, and the files and record of the cause. State v. Jackson (1980), 64 Ohio St.2d 107,110; Strutton, supra. A petitioner is entitled to post-conviction relief under R.C. 2953.21 only if the court can find that there was such a denial or infringement of the petitioner's rights as to render the judgment void or voidable under the Ohio or United States Constitutions. State v. Perry (1967), 10 Ohio St.2d 175, paragraph four of the syllabus. Where a petition for post-conviction relief fails to allege facts which, if proved, would entitle the petitioner to relief, however, the trial court may so find and summarily dismiss the petition. Perry, supra, paragraph two of the syllabus. We conclude the trial court did not err in dismissing appellant's petition without holding an evidentiary hearing. A review of the petition, the supporting affidavits and other documentary evidence, the files and the record of the case leads this court to conclude that appellant has failed to raise a genuine issue of material fact that there are substantive constitutional grounds for relief. The deficiencies of appellant's claims are discussed in detail below in our analysis of appellant's other assignments of error. Appellant's first assignment of error is overruled. III. ASSIGNMENTS OF ERROR TWO THROUGH ELEVEN AND THIRTEEN THROUGH SIXTEEN We will consider assignments of error two, three, four, five, six, seven, eight, nine, ten, eleven, thirteen, fourteen, fifteen and sixteen together because they raise the same issue: whether the trial court properly dismissed appellant's claims on the basis of res judicata. In these assignments of error, appellant contends that the trial court erred in dismissing his first, fourth, fifth, sixth, ninth, eleventh, fifteenth, twentieth, twenty-first, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-ninth, thirtieth, thirty-second, thirty-third, thirty-forth, fortieth, forty-fifth, forty-sixth, fifty-fourth, fifty-eighth, sixtieth, sixty-first and sixty-second claims for relief. We disagree. Under the doctrine of res judicata, constitutional issues cannot be considered in post-conviction proceedings brought pursuant to R.C. 2953.21 where they have already or could have been fully litigated by the defendant, either before his judgment of conviction or on direct appeal from that judgment. Perry, supra at paragraph seven of the syllabus; State v. McCollough (1992),78 Ohio App.3d 587, 591. Issues properly raised in a petition for post-conviction relief are those which could not have been raised on direct appeal because the evidence supporting such issues is outside the record. State v. Milanovich (1975), 42 Ohio St.2d 46,50; State v. Durr (July 28, 1994), Cuyahoga App. No. 65958, unreported. If an issue has, or should have been, raised on direct appeal, the trial court may dismiss the petition on the basis of res judicata. State v. Spisak (Apr. 13, 1995), Cuyahoga App. No. 67229, unreported. Because an appeal from the judgment of conviction is limited to the trial court record, a petition for post-conviction relief may defeat the res judicata bar if its claims are based on evidence outside the record. See State v. Cole (1982), 2 Ohio St.3d 112,113-114. New evidence attached to the petition for post-conviction relief, however, does not automatically defeat the res judicata bar. Evidence outside the record must meet some threshold standard of cogency; otherwise it would be too easy to defeat the holding of Perry by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner's claim[.] State v. Lawson (1995), 103 Ohio App.3d 307, 315, quoting State v. Coleman (Mar. 17, 1993), Hamilton App. No. C-900811, unreported. Moreover, the evidence dehors the record must not be evidence which was in existence and available for use at the time of trial and which could and should have been submitted at trial if the defendant wished to use it. Id. Here, the trial court properly dismissed appellant's first, fourth, fifth, sixth, ninth, eleventh, fifteenth, twentieth, twenty-first, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-ninth, thirtieth, thirty-second, thirty-third, thirty-forth, fortieth, forty-fifth, forty-sixth, fifty-fourth, fifty-eighth, sixtieth, sixty-first and sixty-second claims for relief. As noted by the trial court, appellant's first, fourth, fifth, sixth, ninth, eleventh and fifteenth claims of error were adjudicated by this court and, subsequently, the Supreme Court of Ohio, in appellant's direct appeal of his conviction. Accordingly, they are barred by the doctrine of res judicata. The remainder of the claims at issue could have been raised on direct appeal and, therefore, are also barred by the doctrine of res judicata. Appellant's twenty-fourth and twenty-fifth claims for relief assert that appellate review was done from an incomplete record. These assertions do not depend on evidence dehors the record and could have been raised on appellant's direct appeal. Accordingly, the trial court properly dismissed them on the basis of res judicata. Furthermore, any claimed errors allegedly occurring during the appellate phase of the proceedings are barred pursuant to State v. Murnahan (1993), 63 Ohio St.3d 60. Appellant's twenty-sixth claim for relief alleges that the prosecutor engaged in misconduct during the trial by improperly questioning witnesses and using leading questions to elicit character and victim impact evidence and other inflammatory testimony. To support this claim, appellant attached an affidavit from Nina Roseberry, a juror in appellant's trial, in which Ms. Roseberry averred that she does not understand the purpose of holding a trial when it is clear, such as in Billy Slagle's case, that the defendant is guilty of committing the murder, voted for the death penalty because the crime was particularly gruesome and appellant's attorneys could not have presented any mitigating circumstances that would have convinced her that appellant did not deserve the death penalty. Appellant contends on appeal that the trial court improperly dismissed this claim on the basis of res judicata because the evidence demonstrating that he was prejudiced by the prosecutor's alleged misconduct was outside the record and, therefore, the claim could not have been raised on appellant's direct appeal. Appellant's claim is without merit. Any alleged prosecutorial misconduct and resultant prejudice can be determined from the record. Therefore, this claim could have been raised on direct appeal and is now barred from consideration by application of the doctrine of res judicata. Moreover, even assuming for the sake of argument that appellant's claim of prosecutorial misconduct could not be determined from the record, it is not supported by any evidence dehors the record. There is nothing in Ms. Roseberry's affidavit to indicate that her opinions in this case were influenced whatsoever by the prosecutor's alleged misconduct. Accordingly, the trial court did not err in dismissing this claim. Appellant's thirty-second claim for relief alleges that in the penalty phase of his trial, the state failed to prove that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt. Appellant alleges that because his counsel failed to present mitigation evidence that could have been presented, there was insufficient evidence to prove that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. The trial court dismissed this claim on the basis of res judicata. Appellant contends on appeal, however, that the trial court erred in dismissing this claim on the basis of res judicata because the claim could not have been presented without resort to evidence dehors the record since the record does not disclose the type of mitigation evidence that could have been presented. Therefore, appellant argues, this claim could not have been raised on direct appeal. We disagree. Contrary to appellant's argument, this claim can be determined from the record. Moreover, a post-conviction relief proceeding is not a civil re-trial of appellant's conviction. State v. Lott (Nov. 3, 1994), Cuyahoga App. Nos. 66388, 66389 and 66390, unreported. Appellant's attempt to have this court re-weigh the aggravating and mitigating factors and thereby retry his conviction and sentence through post-conviction proceedings is inappropriate and exceeds the parameters of R.C. 2953.21. See State v. Mitchell (1988), 53 Ohio App.3d 117. Appellant's thirty-fourth and fortieth claims for relief generally challenge the imposition of appellant's death sentence as violating various provisions of the Ohio Constitution, the United States Constitution and various international laws and treaties to which the United States is a signatory nation. These systematic challenges to appellant's death sentence also do not depend on factual allegations or evidence dehors the record and are matters which could have been raised on direct appeal. Therefore, the trial court properly dismissed them without a hearing on the basis of res judicata. Appellant's forty-fifth and forty-sixth claims for relief allege pretrial errors that allegedly deprived him of a fair trial. Specifically, appellant asserts that the grand jury was improperly constituted and that excessive media coverage deprived him of a fair trial. Appellant's claims regarding pre-trial error are barred by application of the doctrine of res judicata because these alleged errors could have been raised on direct appeal. Perry, supra at paragraph nine of the syllabus; Lott, supra. The evidentiary materials appellant submitted with his petition to support these claims for relief — a list of the grand jury members and various newspaper articles regarding the murder of Mari Anne Pope — add nothing to the substance of the arguments that could have been raised on direct appeal. Accordingly, the trial court did not err in dismissing these claims on the basis of res judicata. Appellant's petition for post-conviction relief also sets forth various claims of ineffective assistance of counsel. In his twentieth, twenty-first, twenty-seventh, twenty-ninth, thirtieth and thirty-third claims for relief, appellant alleges that he was denied his constitutional right to effective assistance of counsel because his trial attorneys failed to object to errors during voir dire; failed to exercise peremptory challenges against biased jurors during voir dire; failed to question jurors as to their attitudes about mitigating factors; repeatedly conceded appellant's guilt of aggravated murder; improperly requested sanity and competency evaluations of appellant, even though neither of these issues was being raised by the defense; failed to obtain an independent pathologist; failed to object to improper comments in the state's closing argument and to improper instructions by the trial court; failed to request a continuance between the trial phase and penalty phase of appellant's trial; failed to interview most members of appellant's family for the mitigation phase of the trial; failed to obtain a social history and take measures to enhance and supplement the psychological analysis conducted by the mental health professionals; failed to procure a cultural expert; failed to hire a mitigation specialist even though the trial court had granted funds for same; waived opening argument during the mitigation phase and failed to provide expert witnesses with the background information necessary to adequately testify. In order to establish ineffective assistance of counsel, a defendant must demonstrate this his counsel's performance fell below an objective standard of reasonable representation and that he was prejudiced by that performance. State v. Bradley (1989),42 Ohio St.3d 136, paragraph two of the syllabus, certiorari denied (1990), 497 U.S. 1011. Before a hearing is granted, the petitioner bears the initial burden in a post-conviction proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel's ineffectiveness. Jackson, supra at 111 (emphasis in original). There are countless ways for an attorney to provide effective assistance in a given case and we must give great deference to counsel's performance. Strickland v. Washington (1984),466 U.S. 668, 689. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance * * *. Id. Debatable trial tactics and strategies do not constitute a denial of effective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 49, certiorari denied (1980), 449 U.S. 879. Within the purview of trial tactics is defense counsel's selection of witnesses to call at trial. State v. Coulter (1992), 75 Ohio App.3d 219, 230. A review of the evidence dehors the record which appellant contends supports his claim of ineffective assistance of counsel reveals that appellant has failed to demonstrate that defense counsel breached an essential duty owed to appellant. Initially, we note that the Ohio Supreme Court considered appellant's claim of ineffective assistance of counsel, although admittedly based on other alleged errors, and stated, Appellant's counsel were both qualified criminal defense lawyers and neither failed in any essential duty. We cannot hold that appellant's legal representation was inadequate. Slagle,65 Ohio St.3d at 610. Moreover, the majority of appellant's arguments regarding the alleged ineffectiveness of his counsel could have been raised on direct appeal without resort to evidence outside the record and, therefore, were properly dismissed on the basis of the doctrine of res judicata. With respect to appellant's arguments that, for various reasons, his counsel was ineffective during the mitigation phase of the trial, we note that during the penalty phase of the trial, appellant presented the testimony of Maureen Dee (a social worker), Dr. Isidore Helfand (a clinical psychologist), Dr. Peter Rogers (a pediatrician specializing in chemical dependency) and Dr. Kurt Bertshinger (a forensic psychiatrist). In addition, Michael Davis (a friend of appellant), Patricia Wakefield (appellant's mother), Billy Slagle, Sr. (appellant's father) and Lisa Slagle (appellant's sister) testified on appellant's behalf. Appellant also gave an unsworn statement on his own behalf. The testimony portrayed the dysfunction in appellant's family, his alcoholism and chemical dependency and his alleged remorse for the murder. The record demonstrates, therefore, that appellant's counsel had and presented a competent and meaningful theory of mitigation. In support of the claims in his petition regarding ineffective assistance of counsel, appellant submitted affidavits from experts and family members, all of whom essentially reiterated the psycho-social and genetic factors already placed before, and rejected by, the courts. The additional evidence presented by appellant, therefore, is merely cumulative to that already presented at trial and, consequently, properly disregarded by the trial court on the basis of the doctrine of res judicata. Finally, we note that many of appellant's claims regarding counsel's alleged ineffectiveness challenge counsel's strategy and tactical decisions. Judicial scrutiny of counsel's performance must be highly deferential, as it is all too tempting for a defendant to second-guess counsel's assistance after conviction. Bradley, supra. An attorney's strategic decisions will not be the subject of second-hand guessing by courts reviewing claims of ineffective assistance of counsel. Id. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra at 699. Strategy and tactical decisions employed and exercised by defense counsel which are well within the range of professionally reasonable judgment need not be analyzed by a reviewing court. Id. Here, we conclude that nothing in the evidentiary materials, when considered against the entire record, raises an issue of fact that appellant was deprived of effective assistance of counsel during any phase of the trial. Accordingly, the trial court properly dismissed appellant's claims on the basis of res judicata. Finally, appellant's petition also claims various errors relating to the jury instructions. In his fifty-fourth, fifty-eighth, sixtieth and sixty-first claims for relief, appellant contends that the trial court erred in instructing the jury that a life verdict must be unanimous, it could infer from appellant's use of a deadly weapon that he intended to cause the victim's death and it could consider any other factors that are relevant to whether the defendant should be sentenced to death, thereby inviting the jury to consider non-statutory aggravating factors. Appellant also contends that the penalty phase instructions created a mandatory presumption in favor of the death sentence. In support of his claims, appellant attached to his petition a linguistic analysis of the jury instructions, in which linguist Dr. Michael Geis concludes that the way the issue of death is framed in the jury instructions invariably communicated to the jury that death is the most important and preferred sentence and the trial court's jury instructions prejudiced appellant because they decreased the possibility that a life sentence would be returned, relieved the state of its burden to prove every element of appellant's guilt beyond a reasonable doubt and invited the jury to consider any fact as aggravating as long as the jury considered it relevant. The trial court dismissed appellant's claims regarding the jury instructions, ruling that the claims should have been raised on direct appeal and, therefore, were barred by the doctrine of res judicata. Appellant contends on appeal, however, that the trial court erred in dismissing these claims because the evidence dehors the record attached to his petition demonstrates substantive grounds for relief. We disagree. Appellant's evidence fails to demonstrate why his claims regarding alleged improper jury instructions could not have been raised at trial or on direct appeal. Because these claims should have been raised on direct appeal, the trial court properly dismissed them on the basis of res judicata. Having found that the trial court properly dismissed appellant's claims on the basis of res judicata because they were or could have been raised on direct appeal, assignments of error two, three, four, five, six, seven, eight, nine, ten, eleven, thirteen, fourteen, fifteen and sixteen are overruled. IV. ASSIGNMENT OF ERROR TWELVE Appellant's sixty-second claim for relief alleges that the City of Cleveland failed to timely respond to his request, made pursuant to R.C. 149.43, Ohio's Public Records Act, to review and inspect public records relating to his arrest and prosecution for the aggravated murder of Mari Anne Pope. Appellant's claim asserts that the City's failure to disclose public records necessary for the preparation of his petition for post-conviction relief violated his due process rights as guaranteed by the Ohio and United States Constitutions. The trial court found this claim barred by the doctrine of res judicata because it contained matters that should have been raised on direct appeal. In his twelfth assignment of error, appellant contends, however, that the trial court erred in dismissing this claim on the basis of res judicata because the claim did not even arise until after appellant's direct appeal had been taken. We agree that the trial court erred in dismissing this claim on the basis of res judicata. Obviously, a claim that did not even arise until after the direct appeal could not have been raised on appeal. We do not agree, however, that appellant has presented sufficient evidence dehors the record in support of this claim to warrant an evidentiary hearing. In support of his claim that the City failed to timely respond to his public records request, appellant attached copies of certified letters sent to the City of Cleveland Police Department and City of Cleveland Law Department requesting the records. Appellant also attached a copy of a fax transmittal letter from the City of Cleveland Police Department, in which the Police Department instructed appellant's counsel that appellant's public records request had been sent to the City of Cleveland Law Department and further instructed counsel to contact attorney Shawn Mallamad at 664-2917. Appellant did not attach an affidavit from himself or his counsel, however, indicating that counsel did, in fact, contact Mr. Mallamad and he refused to comply with their request. Furthermore, we find that this claim is not appropriately raised in a petition for post-conviction relief. Mitchell, supra. R.C. 2953.21 provides a state remedy to attack a judgment of conviction where that judgment was based on a denial of a criminal defendant's constitutionally protected rights. Id. Challenging the failure of governmental unit to respond to a public records request exceeds the boundaries imposed by the legislature when it enacted R.C. 2953.21 et seq. Id. Indeed, appellant's remedy for the failure of a governmental unit to promptly prepare a public record and to make it available to the person for inspection, is a mandamus action to obtain a judgment ordering the City to comply with his public records request. See R.C. 149.43(C). Because the evidence dehors the record attached to appellant's petition failed to demonstrate that appellant was entitled to relief, the trial court properly dismissed this claim without an evidentiary hearing. Appellant's twelfth assignment of error is overruled. V. ASSIGNMENT OF ERROR SEVENTEEN In his seventeenth assignment of error, appellant asserts that R.C. 2953.21 and Ohio's post-conviction proceedings are unconstitutional because they do not provide an adequate corrective process. A review of the record reveals that appellant did not assert this claim in his petition for post-conviction relief nor did he raise this issue at the trial court level. Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of the petition for post-conviction relief, constitutes a waiver of such issue and, therefore, need not be heard for the first time on appeal. State v. Awan (1986), 22 Ohio St.3d 120. Because appellant did not raise this issue below, he waived it on appeal. Moreover, we note that R.C. 2953.21 has been held to be constitutional. State v. Skenlar (1991), 71 Ohio App.3d 444,449. Appellant's seventeenth assignment of error is therefore overruled. 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. TIMOTHY E. McMONAGLE, JUDGE TERRENCE O'DONNELL, P.J. and MICHAEL J. CORRIGAN, J., CONCUR. APPENDIX A I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S POST-CONVICTION PETITION WHERE HE PRESENTED SUFFICIENT OPERATIVE FACTS TO MERIT AN EVIDENTIARY HEARING AND DISCOVERY. II. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S FIRST CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. III. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S FOURTH CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. IV. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S FIFTH CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. V. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S SIXTH, NINTH AND FIFTEENTH CLAIMS FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. VI. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S ELEVENTH CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. VII. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S TWENTY-SIXTH CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. VIII. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S THIRTY-SECOND CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. IX. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S FORTIETH CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. X. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S FORTY-FIFTH CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. XI. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S FORTY-SIXTH CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. XII. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S SIXTY-SECOND CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. XIII. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S TWENTIETH, TWENTY-FIRST, TWENTY-SEVENTH, TWENTY-NINTH, THIRTIETH, AND THIRTY-THIRD CLAIMS FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. XIV. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S TWENTY-FOURTH AND TWENTY-FIFTH CLAIMS FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. XV. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S THIRTY-FOURTH CLAIM FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. XVI. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S FIFTY-FOURTH, FIFTY-EIGHTH, SIXTIETH, AND SIXTY-FIRST CLAIMS FOR RELIEF IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. XVII. OHIO POST-CONVICTION PROCEDURES DO NOT AFFORD AN ADEQUATE CORRECTIVE PROCESS NOR DO THEY COMPLY WITH DUE PROCESS OR EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT. APPENDIX B 1. The trial court erred in overruling appellant's motion to suppress his confession. 2. The prosecution's use of peremptory challenges to exclude jurors who expressed concerns about capital punishment violated appellant's right to a fair and impartial jury. 3. The trial court erred by instructing the jury during voir dire as to the verdict necessary to capitally convict the accused. 4. The trial court abused its discretion by allowing into evidence a series of gruesome photographs which contained little probative value. 5. The evidence is constitutionally insufficient to sustain convictions of aggravated murder, aggravated robbery and aggravated burglary as appellant's state of intoxication rendered him unable to form the requisite culpable mental state. 6. Prosecutorial misconduct during cross-examination of appellant deprived him of his right to due process of law. 7. The trial court erred by granting the state's motion in limine to prevent defense experts from expressing an opinion on whether appellant was unable to form the specific intent to kill. 8. The prosecutor improperly questioned defense experts regarding irrelevant issues of competency and sanity when these issues had not been raised by the defense. 9. The prosecutor's closing argument was replete with improper comments which prejudicially affected substantial rights of appellant. 10. The jury instructions failed to define the elements of voluntary manslaughter, thereby precluding the jury from considering an instruction on a lesser included offense. 11. The trial court erroneously instructed the jury that appellant had stipulated guilt to a capital specification of the aggravated murder indictment. 12. The trial court erred in not giving a limiting instruction that other acts must not be considered as any proof that the accused did any act alleged in the indictment. 13. Defense counsel failed to object to erroneous jury instructions, to request proper jury instructions and placed irrelevant evidence before the jury. 14. The submission of two allied statutory aggravating factors artificially inflated the aggravating circumstances. 15. During the penalty phase of the trial, the prosecutor improperly addressed victim impact issues, introduced other acts evidence and referred to non-statutory aggravating factors. 16. The trial court improperly instructed the jury that their decision in the penalty phase was a recommendation. 17. The trial court improperly instructed the jury that the law provides for mitigating factors not proven in appellant's case. 18. The trial court erroneously instructed the jury during the penalty phase that the jury's finding must not be solely based on sympathy. 19. The trial court erred in finding state's witness Howard Bloxham competent to testify. 20. Appellant's trial attorney's failed to effectively represent him during voir dire of prospective jurors. 21. Appellant was deprived of effective assistance of counsel during the guilt/innocent phase of the trial. 22. The trial court gave an improper instruction on reasonable doubt in both the guilt/innocence and penalty phases of appellant's trial. 23. The trial court failed to adequately define the term outweigh in its sentencing instructions to the jury in the penalty phase. 24. The state failed to preserve the record in the case. 25. The appellate review was done from an incomplete record. 26. Prosecutorial misconduct in the improper questioning of witnesses included using leading questions to elicit victim character and impact evidence and other inflammatory testimony. 27. Numerous errors by defense counsel denied appellant his right to effective assistance of counsel. 28. The trial court erred when it instructed the jury that it could not deliberate on the lesser included offense until it found appellant not guilty of aggravated murder. 29. Defense counsel failed to obtain a social worker to assist counsel in identifying, etc., witnesses for the mitigation phase of the trial. 30. The trial court failed to grant defense counsel sufficient funds to conduct an adequate mitigation investigation. 31. Ohio's plain error standard, used to review errors to which counsel did not object at trial, is unconstitutionally overstringent. 32. The state failed to prove that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt. 33. Defense counsel failed to present evidence in the penalty phase regarding the cultural issues in appellant's background. 34. Appellant's death sentence is unreliable, inappropriate andviolates the Eighth and Fourteenth Amendments to the United States Constitution. 35. In preparing her evaluation of appellant, Dr. Kathleen Quinn used the prosecutor's file. 36. Ohio's capital punishment statutes are unconstitutional because they result in an improper deprivation of the right to life, which is a fundamental liberty interest. 37. Ohio's capital punishment statutes require imposition of the death penalty if the aggravating circumstances outweigh the mitigating factors by even the slightest amount. 38. Ohio's capital punishment statutes improperly shift the burden of production upon defendants to establish the existence of mitigating factors. 39. Ohio's capital punishment statutes are unconstitutional because the decision on whether to capitally indict a defendant is left to the unfettered discretion of the prosecutor. 40. Ohio's death penalty is in violation of international laws and Article VI of the United States Constitution. 41. Ohio's capital punishment statutes charge appellate courts with performing a de novo review but improperly restrict mitigating factors to those presented at trial. 42. The trial court made improper statements to prospective jurors during voir dire. 43. The trial court failed to excuse individuals who indicated that they could not give appellant a fair hearing. 44. Ohio's death penalty scheme violates the Ohio and United States Constitutions. 45. Pretrial publicity improperly influenced the jury. 46. Appellant's indictment was returned by an improperly constituted grand jury and upon inadequately presented evidence. 47. Ohio's death penalty statutes improperly impose a mandatory requirement of death. 48. The grand jury proceedings were not recorded as required by Crim.R. 22. 49. On appeal, the state failed to establish beyond a reasonable doubt that any constitutional error which occurred during appellant's trial did not contribute to his convictions and sentences. 50. Appellant was denied a fair and impartial review of his death sentence because trial courts ignore the dictates of R.C. 2929.03(G). 51. Defense counsel did not request an independent expert pathologist. 52. The state failed to state its reasons for exercising its peremptory challenges. 53. The trial court failed to instruct the jury in the sentencing phase that appellant enjoyed a presumption of life. 54. The trial court improperly instructed the jury in the mitigation phase that a life verdict must be unanimous. 55. The trial court failed to appoint a non-attorney expert to assist defense counsel with jury selection. 56. The composition of the special venire was an unrepresentative sample of the population of Cuyahoga County. 57. Police misconduct occurred during the investigation of the state's case against appellant. 58. The trial court improperly instructed the jury that it could infer from the fact that appellant used a deadly weapon that he specifically intended to cause the death of the victim. 59. The trial court gave the jury an incorrect definition of circumstantial evidence. 60. The penalty phase instructions created a mandatory presumption in favor of the death sentence. 61. The trial court improperly instructed the jury that it could consider any other factors that are relevant to whether the defendant should be sentenced to death. 62. The City of Cleveland failed to timely respond to appellant's requests for information made pursuant to R.C. 149.43. 63. The Cleveland Police Department failed to test appellant's blood for the presence of alcohol. 1 Appellant's original petition was filed on July 12, 1994. 2 A summary of appellant's claims is set forth in Appendix B. 3 Thus, appellant's petitions remained pending with the trial court for over five years before the trial court rendered a decision. 4 Appellant's assignments of error are set forth in Appendix A.

2016-07-06 06:41:47.225548+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION AND JUDGMENT ENTRY * * * * * This matter is before the court on appeal from the Lucas County Court of Common Pleas wherein appellant, Brian M. Wilson, was convicted of felonious assault. A jury trial commenced on May 1, 1997. Appellant's wife, Kimberly A. Wilson, testified that she began arguing with her husband over finances on December 10, 1996. The argument continued into the early morning hours of December 11, 1996 when appellant assaulted her. A neighbor testified that on December 11, she saw appellant grab Kimberly Wilson by the hair, hit her, attempt to slam her head into a car and kick her. Oregon Police Officer Paul Sharlow testified he arrived on the scene and found Kimberly Wilson with blood on her head, face and legs. After appellant's arrest, Sharlow testified that appellant stated he "just flipped out and hit [Kimberly Wilson] with his fist." According to Sharlow, appellant claimed he remembered nothing else. Appellant took the stand in his own defense. He testified he had no memory of assaulting his wife on December 11, 1996. On May 2, 1997, the jury found appellant guilty of felonious assault, a violation of R.C. 2903.11(A)(1) and a felony of the second degree. He was sentenced to five years in prison. Appellant now appeals setting forth the following assignments of error: I. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO ESTABLISH BEYOND A REASONABLE DOUBT THAT DEFENDANT KNOWINGLY CAUSED SERIOUS PHYSICAL INJURY TO ANOTHER. II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT THE PROCEEDINGS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. In his first assignment of error, appellant contends that the state did not establish beyond a reasonable doubt that appellant knowingly caused serious, physical injury to Kimberly Wilson. At issue is the question of whether Kimberly Wilson's injuries rose to the level of "serious, physical harm" as that term is defined in the Ohio Revised Code. The elements of R.C. 2903.11(A)(1), the felonious assault statute, are as follows: "No person shall knowingly: Cause serious physical harm to another or to another's unborn." "Serious physical harm to persons" is defined in R.C. 2901.01(A) (5) as: "(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; "(b) Any physical harm that carries a substantial risk of death; "(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity; "(d) Any physical harm that involves some permanent disfigurement, or that involves some temporary, serious disfigurement; "(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering, or that involves any degree of prolonged or intractable pain." (Emphasis added). State exhibits 1, 2 and 3, admitted into evidence, were photos of Kimberly Wilson's bloodied face and arm shortly after she was brought to a hospital emergency room on December 11, 1996. State's exhibit 4, also admitted into evidence, was Kimberly Wilson's emergency room records showing she was treated for contusions to her head, face, extremities and left shoulder as well as a broken nose. Kimberly Wilson testified that appellant knocked her to the ground on December 11, 1996. He then began hitting and kicking her. She testified he kicked her so hard that she lost control of her bowels. He also attempted to break appellant's neck by severely twisting it with his hands. Kimberly Wilson testified she escaped from the apartment onto the front lawn where appellant pulled her by her hair and slammed her head into a car door. Kimberly Wilson testified that her next memory was of appellant kicking her again while a neighbor yelled at him to stop. Based on the testimony at trial coupled with the photos and emergency room records, we conclude that the jury was presented with substantial evidence upon which they could reasonably conclude that Kimberly Wilson suffered serious physical harm. At the very least, appellant's action in "slamming" Kimberly Wilson's head into a car door constitutes "physical harm" which "carries a substantial risk of death." Appellant's first assignment of error is found not well-taken. In his second assignment of error, appellant contends he was denied effective assistance of counsel. The standard for evaluating an ineffective assistance of counsel claim was enunciated by the Supreme Court of Ohio in Statev. Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, as follows: "2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391; Strickland v. Washington [1984], 466 U.S. 668, followed.) "3. 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." Further, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance * * *."Bradley, supra, at 142 quoting Strickland, supra, at 689. Ohio presumes a licensed attorney is competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. Counsel will not be deemed ineffective merely because a defendant is convicted and not acquitted. State v. Hunt (1984), 20 Ohio App.3d 310, 311. Appellant first contends his counsel was ineffective in not calling his doctor as a witness. At trial, appellant testified that he suffered a memory loss on December 11, 1996 because he had ingested a combination of alcohol and prescription drugs. Appellant now contends that his doctor could have offered testimony on the type of memory loss appellant likely sustained as a result of the drug and alcohol combination. Appellant contends that this witness would have bolstered his own testimony regarding his memory loss and would have helped show that appellant did not knowingly assault his wife. Appellant also contends his counsel should have called the attending emergency room doctor as a witness to testify that Kimberly Wilson's injuries were minor. Finally, appellant contends his counsel was ineffective for failing to introduce jail medical records. Appellant claims these records would show that he was not well when he was arrested and that he later tried to commit suicide. Appellant also claims these records would show he did not act "knowingly" on December 11, 1996. Appellant is essentially complaining about his counsel's trial strategy. "Strategy and tactical decisions exercised by defense `well within the range of professionally reasonable judgment' need not be analyzed by the reviewing court." State v. Walker (1993),90 Ohio App.3d 352, 359 quoting Strickland at 699. Accordingly, appellant's second assignment of error is found not well-taken. On consideration whereof, the court finds that appellant was not prejudiced nor prevented from having a fair trial, and the judgment of the Lucas County Court of Common Pleas is affirmed. It is ordered that appellant pay the court costs of this appeal. JUDGMENT AFFIRMED. 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 _____________________________ James R. Sherck, J. JUDGE _______________________________ Richard W. Knepper, J. JUDGE CONCUR.

2016-07-06 06:41:47.260879+00

JOURNAL ENTRY AND OPINION Defendant-appellant, Jeffrey Jefferson, appeals the decision of the Cuyahoga County Common Pleas Court, which sentenced him to consecutive terms of imprisonment following convictions for felonious assault and attempted felonious assault. For the reasons that follow, we affirm the trial court's decision in part but vacate appellant's sentence and remand for resentencing. The record reveals that appellant is a long-time user of marijuana and PCP. On the night of the offense, appellant was at the home of his cousin, Sonya Boyd, who is the mother of nine-month-old Anthony. When Anthony began crying, Sonya asked appellant to hold him while she prepared a bottle for him. Appellant did so but apparently became disoriented due to his recent use of PCP and marijuana. He began smothering the child with his weight and biting him on his torso. Initial attempts to retrieve Anthony from appellant's hold were unsuccessful. In an effort to prevent appellant from continuing to bite Anthony, Sonya inserted her thumb into appellant's mouth whereupon he bit her as well. Anthony was eventually freed from appellant's grasp and taken to MetroHealth Medical Center for treatment where he remained for four days. Sonya likewise was treated at that facility but released that same day. Appellant was subsequently indicted for three counts of felonious assault against Anthony and one count of the same against Sonya, in violation of R.C. 2903.11. He was also indicted for one count of attempted murder against Anthony, in violation of R.C. 2903.02 and 2923.02. Appellant eventually pleaded guilty to one count of felonious assault and one count of attempted felonious assault, second and third degree felonies, respectively. The remaining charges were nolled. At the sentencing hearing that followed, appellant made a statement and the trial court questioned him extensively regarding his use of PCP. Anthony's mother also made a statement about the effect appellant's criminal behavior has had on her and her family. After detailing the offense on the record, the trial court sentenced appellant to consecutive terms of imprisonment of six years on the felonious assault charge and three years on the attempted felonious assault charge. Appellant is now before this court and assigns two errors for our review, both of which challenge the sentence imposed by the trial court. I. In his first assignment of error, appellant contends that the trial court erred in sentencing him to consecutive terms of imprisonment when such a sentence is not supported by the record. R.C. 2929.14 governs the imposition of prison terms for felony convictions and, as applicable to this case, provides for prison terms of two to eight years for second degree felonies and one to five years for third-degree felonies. R.C. 2929.14(A)(2) and (3). A court may impose consecutive sentences only when it concludes that the sentence is (1) necessary to protect the public from future crime or to punish the offender; (2) not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (3) the court finds one of the following: (a) the crimes were committed while awaiting trial or sentencing, under sanction or under post release control; (b) the harm caused by multiple offenses was so great or unusual that a single prison term would not adequately reflect the seriousness of his offense; or (c) the offender's criminal history demonstrates that consecutive sentences are necessary to protect the public from future crime. R.C. 2929.14(E)(4). Imposing consecutive prison terms for convictions of multiple offenses, therefore, is appropriate upon making certain findings as enumerated in this statute. When the trial court does so, however, it must state its reasons on the record. See R.C. 2929.19(B)(2)(c). Failure to sufficiently state these reasons on the record constitutes reversible error. See State v. Albert (1997), 124 Ohio App.3d 225; see, also, State v. Gary (2001), 141 Ohio App.3d 194. Prior to sentencing appellant, appellant expressed his remorse and the trial court took this as an opportunity to extensively question appellant regarding his past drug use and its effects. The trial court judge thereafter sentenced appellant to consecutive terms of six and three years on each of charges. In deciding to run the sentences consecutive, the court stated: * * * the Court finds that running them consecutive is necessary to protect the public, mainly children of tender years, as well as to punish [appellant] because of his knowing conduct, knowing how he reacts to PCP, especially when combined with the marijuana. The Court finds that the combined sentence of nine years would not [be] disproportionate to the seriousness of this conduct, acting inhuman towards a nine-month old baby. The harm caused by this act has not yet fully shown itself. Obviously those people, including Miss Boyd, who witnessed the event are I'm sure traumatized by it and Anthony, only time will tell what a nine month old baby mauled by a human being will suffer. The harm is not disproportionate to the sentence. As can be surmised from the excerpt above, the trial court did specifically find that the imposition of consecutive sentences is necessary to protect the public from future crime and that the sentences are not disproportionate to the seriousness of appellant's conduct. Nonetheless, appellant claims that the trial court failed to address the variables under R.C. 2929.14(E)(4)(a) through (c) when it decided to sentence appellant to consecutive terms of imprisonment. We disagree. Contrary to appellant's argument, the court need not find all three of the factors present, one will suffice. In this case, the court found that the harm caused was great and, in fact, detailed that harm extensively. Notwithstanding that finding, however, we find that the imposition of consecutive sentences in this case is disproportionate to the seriousness of appellant's conduct, despite its express finding to the contrary. To be sure, appellant viciously attacked Anthony and for that the trial court sentenced appellant within the range of the term of imprisonment consistent with the statute. The harm, however, to Anthony's mother a bite to her thumb is drastically different from that inflicted on a defenseless child. That does not mean that the harm caused to Anthony's mother goes unpunished. To the contrary, a term of imprisonment proportionate to the offense or a sentence concurrent to that imposed for assaulting Anthony satisfies the purposes of felony sentencing. We acknowledge that we, as a reviewing court, are not to substitute our judgment for that of the trial court and that R.C. 2953.08(G), as amended, requires us to remand for resentencing when the trial court fails to make the necessary findings required by statute. See State v. Jones, 93 Ohio St.3d 391, 400, 2001-Ohio-1341; see, also, R.C.2953.08(G)(1). Nonetheless, we find that the trial court did state the required findings on the record as mandated by R.C. 2953.08(G)(1). Consequently, we are guided by R.C. 2953.08(G)(2), which authorizes a reviewing court to increase, reduce, or otherwise modify a sentence when the record does not support the sentencing court's findings relative to the imposition of consecutive sentences under R.C. 2929.14(E)(4) or to vacate the sentence and remand for resentencing. We choose the latter. Appellant's first assignment of error is well taken and is sustained. Appellant's sentence is vacated and remanded for resentencing. II. In his second assignment of error, appellant contends that his sentence is also contrary to law because the trial court (1) failed to sentence him to the minimum sentence as authorized by R.C. 2929.14(B); and (2) imposed an aggregate sentence greater than the maximum allowed for felonious assault. A. As pertains to his argument regarding the imposition of more than the minimum sentence, we note that a reviewing court will not reverse a sentence unless that court finds, by clear and convincing evidence, that the sentence is unsupported by the record or is contrary to law. See R.C. 2953.08(G). In this case, appellant was convicted of felonious assault, which is a second degree felony pursuant to R.C. 2903.11, and kidnaping, which is a first degree felony pursuant to R.C. 2905.01. If prison is not inconsistent with the purposes and principles of R.C. Chapter 2929, a definite term of two, three, four, five, six, seven or eight years is required for a second degree felony under R.C. 2929.14(A)2) while a definite term of three, four, five, six, seven, eight, nine or ten years is required for a first degree felony under (A)1) of that same statute. The overriding purpose of felony sentencing is to protect the public from future crime by the offender and others and to punish the offender. Towards that end, R.C. 2929.11(A) provides: To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both. R.C. 2929.14(B) provides, in relevant part: * * * if 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 pursuant to division (A) of this section, 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. (Emphasis added.) Appellant argues that, because he has never before served a prison term, the trial court erred when it sentenced him to more than the minimum sentence. Appellant neglects to read the entire statute. It specifically states that the minimum shall be imposed unless the court finds on the record that the minimum sentence would demean the seriousness of an offender's conduct or would not adequately protect the public from future crime. In sentencing appellant, the trial court specifically stated that it would find that the minimum sentence of two years for this crime would seriously demean the seriousness of the offense. This statement, in combination with the court's extensive review of the events surrounding appellant's conviction, supports that the trial court considered the minimum sentence but chose to depart from that sentence. Consequently, it is immaterial that appellant had never previously served a prison term as long as the court, on the record, supported its reasons for departing from the minimum sentence as it did. Accordingly, to the extent that appellant's second assignment of error is addressed to this argument, it is not well taken and is overruled. B. Appellant also argues that his sentence is contrary to law because the aggregate sentence exceeds the maximum possible sentence for a second degree felony. In support of his argument, appellant relies on this court's decision in State v. Youngblood (May 17, 2001), Cuyahoga App. No. 77997, wherein we stated that the imposition of consecutive sentences, in general, is disfavored for offenses arising out of a single incident. Because the purpose behind felony sentencing is thereby defeated when the imposition of consecutive sentences in the aggregate exceeds the maximum sentence for the offense of the highest degree, appellant argues that several courts, including this court, have interpreted R.C. 2929.19(B)(2)as requiring the trial court to state its reasons as it would when imposing the maximum sentence. Due to our disposition of appellant's first assignment of error, however, we need not address this argument. See App.R. 12(A)(1)(c). The judgment of the trial court sentencing appellant to consecutive terms of imprisonment is hereby vacated and remanded for resentencing. The judgment is otherwise affirmed. Appellant's sentence is vacated and this cause is remanded for resentencing consistent with the opinion herein. It is, therefore, ordered that appellant and appellee equally share the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL, J., CONCURS KENNETH A. ROCCO, J. (DISSENTS WITH SEPARATE OPINION)

2016-07-06 06:41:47.31959+00

Defendant-appellant Terrence Crockett appeals the September 18, 1998, Judgment Entry of the Stark County Court of Common Pleas overruling his Motion to Suppress. Plaintiff-Appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE On June 26, 1998, the Stark County Grand Jury indicted appellant on one count of possession of cocaine in violation of R.C. 2925.11(A)1. The indictment alleged that appellant, on or about May 19, 1998, knowingly obtained, possessed, and/or used cocaine. At his arraignment on July 2, 1998, appellant entered a plea of not guilty to the charge contained in the indictment. Appellant, on August 4, 1998, filed a Motion to Suppress any evidence gathered directly or indirectly as a result of the search and seizure of appellant's person and/or the immediate area surrounding his person. A hearing on the Motion to Suppress was held on August 10, 1998. The following facts were developed at the hearing. During the midnight shift on May 19, 1998, Patrolman David McElhaney was patrolling on foot in a known high drug trafficking area where he had made approximately fifty to seventy five arrests in the past. While he was walking with his partner, Patrolman McElhaney saw appellant approach a vehicle and lean towards the driver's window. A couple of minutes thereafter, both McElhaney and his partner saw appellant make contact with the driver of a second vehicle. There was no hand-to-hand transaction between appellant and the occupants of either of the vehicles. After the second vehicle drove away, appellant was observed approaching and conversing with a pedestrian who was known to Patrolman McElhaney as someone who uses crack and had been arrested for drug paraphernalia. Patrolman McElhaney testified that he did not see any hand-to-hand exchange or physical contact between the two of them. When appellant and the pedestrian saw Patrolman McElhaney and his partner approach, the two proceeded to walk away separately. Appellant was observed walking away in "a very brisk manner." Transcript of Proceedings, at 16. After stopping appellant, the two (2) officers began to pat him down for weapons, starting with appellant's hair. Appellant was patted down because "he was acting in a manner that was consistent with either selling drugs, drug activity." Transcript of Proceedings, at 17. During the pat down, appellant fully cooperated with the officers. Although no weapons were found, Officer McElhaney testified that during the pat down, he felt "tightly wadded rocks with crack cocaine" when his hand passed over appellant's left front pants pocket. Transcript, at 18. Even though he did not know whether it was crack at the time, Patrolman McElhaney stated that the material on appellant felt like crack cocaine since "it felt like — it's just a tightly wound ball with small hard objects that crumble, rough and crumbly." Transcript of Proceedings, at 18. Subsequently, Patrolman McElhaney removed the item from appellant's pocket and found "it to be the corner of a plastic baggie and tied with several off-white hard objects that had the feeling and consistency of crack cocaine." Transcript of Proceedings, at 19. The substance tested positive for crack cocaine. At the conclusion of the suppresion hearing, the trial court denied appellant's Motion to Suppress on the basis of Terry v.Ohio, (1968), 392 U.S. 1. Thereafter, appellant entered a plea of no contest to the charge of possession of cocaine in violation of R.C. 2925.11 (A) and was found guilty by the trial court of such charge. Appellant was sentenced to a prison term of eight (8) months and ordered to pay a fine in the amount of $1,000.00. Such sentence was to be served consecutively with appellant's sentence in another case. Appellant's plea and sentence were memorialized in a Judgment Entry filed on August 12, 1998. On September 18, 1998, a Judgment Entry was filed memorializing the trial court's denial of appellant's Motion to Suppress. It is from the September 18, 1998, Judgment Entry that appellant prosecutes this appeal, raising the following assignment of error: THE TRIAL COURT ERRED BY OVERRULING APPELLANTS MOTION TO SUPPRESS EVIDENCE AND THEREBY DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS AS GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION FOURTEEN OF THE OHIO CONSTITUTION. I In his single assignment of error, appellant contends that both the investigatory stop of appellant and the subsequent pat-down search under Terry v. Ohio (1968), 392 U.S. 1 were unconstitutional. Therefore, appellant argues, the trial court should have granted the Motion to Suppress. There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. See State v. Fanning (1982) 1 Ohio St.3d 19;State v. Klein (1991), 73 Ohio App.3d 486, State v. Guysinger (1993) 86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. SeeState v. Williams (1993), 86 Ohio App.3d 37. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v Curry (1994), 95 Ohio App.3d 93, 96, State v. Claytor (1993), 85 Ohio App.3d 623,627, 620 N.E.2d 906, 908, and State v. Guysinger (1993), 86 Ohio App.3d 592. As the United States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, ". . . as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Under Terry, supra, a law enforcement officer may initiate an investigatory stop of a person when the officer has a reasonable suspicion of criminal activity. To justify such a stop, the seizing officer must be able to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant the officer's suspicion of criminal activity. Id at 20. The propriety of an investigative stop must be considered in light of the totality of the surrounding circumstances. State v. Bobo (1988), 37 Ohio St.3d 177. Upon review of the record, we concur with the trial court's determination that the investigatory stop of appellant was constitutional. There existed specific and articulable facts in this case warranting a suspicion of criminal activity. The area where the stop occurred was a known drug area where weapons were common. Not only was appellant observed approaching the driver's side of two (2) separate vehicles shortly after midnight, but he was also seen approaching and conversing with a known drug user. When the two (2) were approached by the police officers, appellant and the other man parted and appellant briskly walked away. Based on the totality of circumstances, this court finds that the investigatory stop of appellant was proper since appellant's actions reasonably warranted the officers' suspicion of criminal activity. In the alternative, appellant asserts that even if the investigatory stop was justified, the scope of the pat down search was beyond that permitted by Terry, supra. Under Terry, an officer is justified in conducting a limited protective pat down search for concealed weapons when the officer reasonably concludes that "the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officers or to others." Id at 24. See also State v Evans (1993), 67 Ohio St.3d 405. There is no legal requirement that a law enforcement officer feel "scared" by the threat of danger.Evans, 67 Ohio St.3d at 413, citing United States v. Tharpe (1976), 536 F.2d 1098. Rather, "[e]vidence that the officer was aware of sufficient specific facts as would suggest he was in danger satisfies the test set forth in Terry, supra. Id. Patrolman McElhaney testified that he patted appellant down because "he was acting in a manner that was consistent with either selling drugs, drug activity." Transcript, at 17. He further testified that, based upon his experience, suspects that he had arrested before in the same high drug trafficking area were frequently armed with guns, knives, or keys. Based on their safety concerns, the officers were warranted in conducting a pat down search of appellant for weapons. Appellant further contends that the scope of the pat down search exceeded that permitted by Terry since the identity of the contraband was not immediately apparent to the officer. InMinnesota v. Dickerson (1993), 113 S.Ct. 2130, the United States Supreme Court established the "plain feel" doctrine as it relates to a Terry pat down search for officer safety. InMinnesota, the court held that police may seize contraband detected through the sense of touch during a valid, Terry pat down if its identity as contraband is immediately apparent, Id. at 2137. If the officer conducting the search must manipulate the object to determine its identity as contraband, said search exceeds the scope of a lawful Terry search and any resulting seizure of contraband by the officer is not justified under the "plain feel doctrine." Id at 2138-9. At the suppression hearing, Patrolman McElhaney testified, when asked if he found any material on appellant during the pat down, as follows: A. As I was patting him down, when I took my hand over his left front pants pocket, I felt tightly wadded rocks with crack cocaine. Q. Now, you didn't know it was crack at the time? A. No, but it had the feel of crack cocaine. Q. And can you describe what that feel was? A. It was a tightly wound ball. When I put my hands over it, it had a rough, moving sensation inside it and it felt like — it's just a tightly wound ball with small hard objects that crumble, rough and crumbly. Transcript of Proceedings, at 18. On cross examination by appellant's counsel, Patrolman McElhaney further testified as follows: Q. With your fingers through jean pants, you could determine it was crumbly material? That's your testimony? A. I could feel it was a tightly wound ball that had several pieces in it and they moved as I went across them. Transcript of Proceedings, at 20. Based upon the testimony, we find that the search was within the parameters set forth in Minnesota. Unlike in Minnesota there was no impermissible sliding, rotating or manipulation of the object in Appellant's pocket. Moreover, as evidenced by Patrolman McElhaney's testimony, the contour or mass of the cocaine seized made its incriminating character immediately apparent to him through the sense of touch. Accordingly, since both the investigatory stop of appellant and the subsequentTerry pat down were constitutional, the trial court did not err in denying the Motion to Suppress. Appellant's single assignment of error is denied. The judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. By Edwards, J., Wise, P.J. and Hoffman, J. concur ------------------------- ------------------------- ------------------------- JUDGES For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. ------------------------- ------------------------- ------------------------- JUDGES 1 Appellant had been bound over from the Alliance Municipal Court.

2022-07-29 03:08:16.713409+00

PER CURIAM. Prohibition dismissed.

2016-07-06 06:41:47.095612+00

Wolff

Heidi Sue Inman appeals from the judgment of the Miami County Common Pleas Court, which awarded custody of Donald and Danielle Inman to Jeffrey Inman. Heidi and Jeffrey Inman were married on November 5, 1985, in Miami County, Ohio. Donald and Danielle were born as issue of this marriage. During the marriage, Mr. and Mrs. Inman moved to Kansas. On May 10, 1991, they were granted a divorce by a Kansas court. Before the divorce proceedings were initiated, Mr. Inman moved back to Miami County, Ohio, and he still lives there. On June 14, 1992, through an agreed entry, the Inman's foreign decree of divorce was registered in Miami County. The original divorce decree awarded custody of both children to Mrs. Inman. She and the children lived in Kansas until January 1992, when they moved back to Miami County. On May 11, 1992, Mr. Inman filed a motion for change of custody in the Miami County Common Pleas Court, seeking custody of both Donald and Danielle. In June 1992, Mrs. Inman filed a motion for a temporary restraining order with an affidavit accusing Mr. Inman of sexually abusing the children, and the motion was granted. However, in July 1992, the order was terminated and visitation was granted to Mr. Inman pursuant to his affidavit and his motion to terminate the restraining order. The trial court appointed a guardian ad litem for Danielle pursuant to R.C. 3109.04(B)(2)(a). The trial court also ordered that psychological evaluations be conducted of Mr. and Mrs. Inman and the children. *Page 117 An evidentiary hearing was conducted by a referee, and the referee filed his report and recommendation on February 4, 1994. The referee recommended that custody of Danielle and Donald be awarded to Mr. Inman. Mrs. Inman requested a transcript of the proceedings, and she was granted leave to file her objections to the report within fourteen days of the date the transcript was filed. On April 14, 1994, Mrs. Inman filed a twenty-eight-page set of detailed objections to the referee's report. After obtaining an extension of time to respond, Mr. Inman filed a sixteen-page response on May 16, 1994. The next day, May 17, 1994, the trial court filed a "Journal Entry" adopting the report and recommendations of the referee in their entirety. Mrs. Inman filed a timely notice of appeal. Simultaneously, she filed a "Motion Concerning Appealable Order," in which she moved this court to determine whether the trial court's journal entry was a final appealable order. We held that the journal entry was a final appealable order and that the issue of whether the judgment was erroneous because of the paucity of the entry was a matter subject to appellate review. Mrs. Inman asserts eleven assignments of error. Due to the substantial similarity of the issues involved, the first two assignments of error will be considered together: "1. The trial court erred by failing to rule on the objections of the appellant and by failing to enter a judgment as required by Civil Rule 53(E)(5). "2. The trial court erred when it adopted the report and recommendation of the referee without reviewing the transcript even though objections were filed based on the manifest weight of the evidence." The thrust of Mrs. Inman's argument is that the trial court failed to conduct an adequate review of the referee's report and to enter its own independent judgment. The trial court's journal entry reads, in its entirety, as follows: "This Court's Referee having filed his report with regard to this matter, the Court in reviewing the report and any objections timely filed thereto, does hereby approve and adopt such report, and incorporates in this Journal Entry the facts and recommendation of such report as though fully re-written. "It is so ordered." Civ.R. 53(E)(5) requires a trial court to "enter its own judgment on the issues submitted for action and report by the referee." In entering its own judgment, the trial court must conduct an independent analysis of the issues considered by the referee. Civ.R. 53(E)(5). The Supreme Court of Ohio has described the roles of the referee and the trial court: *Page 118 "The findings of fact, conclusions of law, and other rulings of a referee before and during trial are all subject to the independent review of the trial judge. Thus, a referee's oversight of an issue or issues, even an entire trial, is not a substitute for the judicial functions but only an aid to them. A trial judge who fails to undertake a thorough independent review of the referee's report violates the letter and spirit of Civ.R. 53, and we caution against the practice of adopting referee's reports as a matter of course, especially where a referee has presided over an entire trial." Hartt v. Munobe (1993), 67 Ohio St.3d 3,6, 615 N.E.2d 617, 620. The trial court does not sit in the position of a reviewing court when reviewing the referee's report; rather, the trial court must conduct a de novo review of the facts and conclusions contained in the report. DeSantis v. Soller (1990), 70 Ohio App.3d 226,232, 590 N.E.2d 886, 890-891. The trial court, as the ultimate finder of fact, must make its own factual determinations through an independent analysis of the issues and should not adopt the findings of the referee unless the trial court fully agrees with them. Id. at 233, 590 N.E.2d at 891; see, also, State v. Patton (Oct. 7, 1993), Montgomery App. No. 13929, unreported, 1993 WL 393634. The court's role is to determine whether the referee has properly determined the factual issues and appropriately applied the law, and, where the referee has failed to do so, the trial court must substitute its judgment for that of the referee. Coronet Ins. Co. v. Richards (1991), 76 Ohio App.3d 578, 585, 602 N.E.2d 735, 739-740; In reLucas Health Care Facilities, Inc. (Feb. 1, 1994), Franklin App. No. 93APE09-1286, unreported, 1994 WL 30933. We have previously held that the trial court's judgment entry need not address specific objections and that nothing in Civ.R. 53 prohibits the court from adopting the referee's findings in their entirety. Galley v. Galley (May 18, 1994), Miami App. Nos. 93-CA-31 and 93-CA-32, unreported, 1994 WL 191431; Patton,supra. See, also, Natl. Mtge. Co. v. Brown (May 11, 1993), Franklin App. No. 92AP-847, unreported, 1993 WL 169083 ("Civ.R. 53 does not require a court to include its independent analysis in its judgment order adopting the referee's report and recommendation."). In most cases, where the trial court's entry has adopted the referee's report, we have presumed that the court conducted the proper independent analysis. See Birt v. Birt (Dec. 21, 1994), Miami App. No. 94-CA-32, unreported, 1994 WL 718310; Patton,supra. However, where the record has affirmatively demonstrated that the trial court did not conduct a proper independent analysis prior to adopting the referee's report, we have reversed the trial court's judgment and ordered the court to comply with the dictates of Civ.R. 53. See Lear v. Brown (Nov. 5, 1993), Miami App. No. 93-CA-17, unreported, 1993 WL 452010. *Page 119 Thus, in order to prevail on her first two assignments of error, Mrs. Inman must make an affirmative demonstration that the trial court did not conduct an independent analysis of the issues raised at the evidentiary hearing before the referee. Initially, Mrs. Inman contends that the court failed to rule even upon her objections to the referee's report. As quotedsupra, the court's journal entry stated that the court reviewed "any objections," but it does not expressly rule on the objections. While the better practice would be to explicitly state the court's ruling on the objections, it can be fairly inferred from the entry that the objections were overruled. We were willing to so interpret an identical entry in Birt, supra. However, several questions are raised by the language of the court's journal entry. The reference to "any objections timely filed" implies that the court's journal entry is a form decision used regardless of whether objections have been filed in a particular case. This same form was filed as a journal entry in both Birt, supra, and Lear, supra. While this fact by itself is not an affirmative demonstration that the trial court has "rubber-stamped" the referee's report, it does raise an inference that the court has adopted "the practice of adopting referee's reports as a matter of course" — a practice expressly discouraged by the Supreme Court. Hartt, supra. A further indication that the trial court did not conduct an independent analysis of the issues tried before the referee is the speed with which the judgment was entered. Twenty-five hours after Mr. Inman responded to Mrs. Inman's objections, the trial court filed its entry adopting the referee's report and recommendations. The report was twenty pages, the objections were twenty-eight pages, the response to the objections was sixteen pages, and the transcript of the hearing was one hundred eighty pages. While we applaud prompt decisions by the trial court, it strains credulity to believe that a thorough, independent evaluation of that much material could be conducted in so short a period of time. Mrs. Inman also argues that, because one of her objections was based upon the manifest weight of the evidence, the trial court was required to review the transcript of the proceedings, and she claims that the court did not do so. This court held inIn re Moorehead (1991), 75 Ohio App.3d 711, 720, 600 N.E.2d 778,783-784, that the trial court must review the transcript of an evidentiary hearing when one of the parties raises an objection to the referee's report based upon the manifest weight of the evidence. The court's journal entry gives no indication that it reviewed the transcript. However, unless the record affirmatively demonstrates error, we must presume that the trial court fulfilled its duties. Birt, supra. Mrs. Inman argues that "even a cursory review of the referee's report and findings of fact would instantaneously raise questions as to the admissibility of *Page 120 evidence upon which the Referee's recommendation was premised." We agree. Several of the referee's findings of fact appear to be based upon inadmissible hearsay, e.g., statements a police officer made to Mr. Inman and statements the Inman's niece made to her mother. Additionally, the referee based other findings upon the guardian ad litem's report and Mr. Inman's voluntary lie detector test, and both of these items were arguably inadmissible. The trial court adopted these findings without any explanation. As the Marion County Court of Appeals noted: "It must be recognized that the very nature of the duties of a judge often requires him to have knowledge of inadmissible evidence. Every time he makes a ruling determining evidence inadmissible, he has to know what the inadmissible evidence consists of, and if he is the fact finder, he must eliminatesame from his consideration in determining the facts." (Emphasis added.) Hawkins v. Marion Corr. Inst. (1990), 62 Ohio App.3d 863,869, 577 N.E.2d 720, 723-724. The duties of a judge when ruling on evidentiary issues are the same when he conducts his independent analysis of the issues considered by a referee as when he hears the evidence in the first instance. The trial court had the duty to independently evaluate the objections Mrs. Inman's counsel made to the evidence admitted at the evidentiary hearing and to determine whether the evidence was admissible. The trial court has broad discretion in determining the admissibility of evidence; however, its decisions are subject to review by this court to determine whether the court abused its discretion. The trial court's cryptic entry adopting the referee's findings of fact gives us no indication of the court's reasoning, if any, in relying on apparently inadmissible evidence. Therefore, it is impossible for us to determine whether the court abused its discretion if, indeed, it actually exercised its discretion. Further, the court's failure to address the arguable errors which appear on the face of the referee's report lends additional support to Mrs. Inman's contention that the trial court failed to conduct an independent analysis of the issues referred to the referee. From our consideration of the record, we can only conclude that Mrs. Inman has met her burden to overcome the presumption of regularity of the trial court's proceedings. The trial court made a decision on a complicated record consisting of two hundred forty-four pages, not including the reports which were admitted as exhibits at the hearing, within one day of receiving all of the materials. The trial court failed to address any of Mrs. Inman's objections, several of which appear to have merit. The trial court adopted the referee's findings in their entirety, including several findings based upon apparently inadmissible evidence. Finally, the court failed to provide this court with a sufficient record to determine whether the court abused its discretion in making evidentiary rulings, assuming, *Page 121 arguendo, that the trial court actually exercised its discretion. Thus, we hold that the trial court failed to satisfy its duty to make and enter its own independent judgment when it adopted the referee's report. Accordingly, the first and second assignments of error are sustained. The remaining assignments of error provide: "3. The trial court erred when it found that a change of circumstances existed premised on the grounds that the parties have moved to Ohio, since such a circumstance is not a change as contemplated by R.C. 3109.04. "4. The trial court erred when it permitted the guardianad litem to file a report and further erred when it adopted the guardian's report as a basis for a change of custody, since R.C.3109.04 does not authorize the guardian ad litem to file a report. "5. The trial court erred when it admitted into evidence the guardian ad litem 's report which was submitted more than two months after the hearing, was never submitted to counsel, and was submitted in direct contravention to R.C. 2317.39. "6. The trial court erred when it admitted into evidence a police report, in its entirety, which was replete with instances of inadmissible hearsay. "7. The trial court erred when it relied on testimony concerning a polygraph examination and its results taken by appellee. "8. The trial court erred when it permitted a seven-year-old minor child to testify who demonstrated no ability to receive and relate just impressions of fact in a truthful manner. "9. The trial court erred when it approved a change of custody for the minor child Donald Inman where there was no evidence presented at trial [or] contained within the referee's report to support a change for this child. "10. The trial court erred when it permitted a witness's hearsay testimony of matters which were not within the witness's personal knowledge. "11. The trial court erred in determining the best interest of the child when it relied on factors pursuant to R.C.3109.04(F)(1) which are unsupported by the trial court's findings of fact." Our resolution of the first two assignments of error has rendered the remaining assignments of error moot. The judgment of the trial court will be reversed. This matter will be remanded for the trial court to conduct a thorough analysis of the issues considered by the referee, in light of the objections filed by Mrs. Inman, and to *Page 122 enter its own independent judgment on the submitted issues in accordance with Civ.R. 53. Judgment reversedand cause remanded. BROGAN, P.J., and FREDERICK N. YOUNG, J., concur.

2016-07-06 06:41:47.353758+00

Farmer

{¶ 1} On July 16, 2006, the Stark County Grand Jury indicted appellee, Nicklaus Palmer Horger, on the following charges: one count of rape in violation of R.C.2907.02(A)(1)(b), a first-degree felony, and two counts of gross sexual *Page 385 imposition in violation of R.C. 2907.05(A), both third-degree felonies. The alleged victim is a minor child. {¶ 2} On September 7, 2006, appellee filed a motion for the disclosure of the child's grand jury testimony. Upon review, and prior to appellant's response, the trial court sua sponte ordered appellant to transcribe the testimony and provide appellee with a transcript of it. {¶ 3} On September 26, 2006, appellant moved the trial court to reconsider the sua sponte order, and the matter was set for hearing. At the hearing, the trial court indicated that there had been a review of a transcript of the child's interview at Akron Children's Hospital and a review of the state's bill of particulars. Upon review of this information, the trial court found inconsistencies in the child's statements. The trial court further speculated that because there were inconsistencies in those statements, there must also be inconsistencies between the grand jury testimony and other statements made by the child during the investigation. For this reason, the trial court found that appellee had established a particularized need for disclosure of the child's grand jury testimony and further ordered that a transcript of the testimony be provided to appellee. It is from this order that appellant was granted leave to appeal. {¶ 4} Appellant sets forth the following assignment of error for consideration: {¶ 5} "The trial court abused its discretion when it sustained appellee's motion to disclose the victim's testimony before the grand jury." {¶ 6} In this appeal, appellant argues that the trial court abused its discretion in ordering appellant to transcribe and provide appellee with the child's grand jury testimony. Specifically, appellant argues that appellee failed to demonstrate a particularized need for the testimony that would outweigh the need for secrecy. {¶ 7} The disclosure of grand jury testimony is governed by Crim.R. 6(E) and Crim.R. 16(B)(3), and the disclosure of materially inconsistent statements is governed by Crim.R. 16(B)(1)(g). Disclosure of grand jury testimony is controlled by Crim.R. 6(E), not by Crim.R. 16(B)(1)(g), and any release of that testimony for use prior to or during trial is within the sound discretion of the trial court. State v.Coley (2001), 93 Ohio St.3d 253, 261, 754 N.E.2d 1129. {¶ 8} Crim.R. 6(E) provides that a "prosecuting attorney * * * may disclose matters occurring before the grand jury, other than deliberations of a grand jury or the vote of a grand juror, but may disclose matters only when so directed by the court preliminary to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that *Page 386 grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." {¶ 9} In State v. Greer, the Supreme Court of Ohio stated, "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 139,20 O.O.3d 157, 420 N.E.2d 982, paragraph two of the syllabus. A particularized need is established "`when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial'" of the allegations placed in issue by the witnesses' testimony.State v. Davis (1988), 38 Ohio St.3d 361, 365,528 N.E.2d 925, quoting State v. Sellards (1985),17 Ohio St.3d 169, 173, 17 OBR 410, 478 N.E.2d 781. State v.Hernandez (Mar. 29, 1991), Columbiana App. No. 87-C-56,1991 WL 44362; and State v. Dillon, Darke App. No. 05CA1674, 2006-Ohio-4931, 2006 WL 2709704. {¶ 10} Impeachment through material inconsistencies may be a proper basis for disclosure of grand jury testimony, but that purpose alone is not sufficient.State v. Patterson (1971), 28 Ohio St.2d 181,57 O.O.2d 422, 277 N.E.2d 201; Hernandez. The claim that a witness's grand jury testimony may differ from trial testimony is insufficient to show a particularized need. State v.Henness (1997), 79 Ohio St.3d 53, 62, 679 N.E.2d 686. Accordingly, in conjunction with the impeachment purpose, the particularized-need standard must still be met.Hernandez. {¶ 11} "When defense counsel asserts and establishes to the satisfaction of the trial court a particularized need for certain grand jury testimony, the trial court, along with defense counsel and counsel for the state, shall examine the grand jury transcript in camera and give to defense counsel those portions of the transcript relevant to the state's witness' testimony at trial, subject to the trial court's deletion of extraneous matter, and issuance of protective orders where necessary." State v. Greer,66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, paragraph four of the syllabus. Absent the showing of a particularized need, the trial court judge has no obligation to examine the grand jury testimony of the witness. {¶ 12} In this case, appellee argues that the grand jury testimony is necessary for impeachment purposes. In response, and absent an in camera review of the child's grand jury testimony, the trial court granted disclosure of the grand jury testimony. {¶ 13} Even if appellee establishes the probability of inconsistent statements, the trial court must conduct an in camera examination of the testimony to *Page 387 determine whether there is a particularized need for disclosure. Specifically, the trial court should determine whether the failure to disclose the testimony will deny appellee a fair trial or, in the alternative, whether appellee's request for disclosure is a fishing expedition for inconsistent statements that are readily available or could be demonstrated by alternative means sufficient to show the inconsistencies in question. Furthermore, the trial court should consider whether, pursuant to Crim.R. 16(B)(1)(g), the grand jury testimony is more appropriately made available if the child's trial testimony is materially inconsistent with the grand jury testimony and therefore necessary solely for impeachment purposes after the child testifies at trial, rather than for pretrial discovery. {¶ 14} In this case, on the record, the trial court stated as follows: When I look at the Bill of Particulars, I see that the Bill of Particulars is inconsistent with what the young lady said at Akron General. On the basis of that there are obvious inconsistencies between what she said at grand jury and what she said at Akron General. Therefore, I am ordering the State of Ohio to produce the grand jury testimony of the alleged victim because it is inconsistent with what she stated to the interviewer at Akron General. And I'm finding that because of that because that shows a particularized need. {¶ 15} The trial court's judgment entry after the hearing motion to reconsider does not acknowledge that one more step is necessary before disclosure to appellee and his trial counsel. Because there has yet to be an in camera inspection of the grand jury testimony by the trial court, the relinquishment of the transcript to appellee is premature. {¶ 16} Accordingly we hereby reverse the decision and remand this matter to the trial court for an in camera inspection of the child's grand jury testimony and for further proceedings consistent with this opinion. Judgment reversed and cause remanded. WISE, P.J., concurs. HOFFMAN, J., concurs separately.

2016-07-06 06:41:49.710672+00

Ross

This case comes into this court on error from the court of common pleas of Hamilton county, Ohio, wherein a judgment was rendered for the defendant below, the Industrial Commission of Ohio. The petition recites that the plaintiff, as an employee of a company covered by industrial state insurance, was awarded compensation by the commission for a period of one and six-sevenths weeks; that the plaintiff applied for a rehearing before the Industrial Commission; that he was given a rehearing; *Page 394 and that the commission made a finding as follows: "From the record and proof on file in this case that the claim was recognized and allowed and that claimant was fully compensated for the injury set forth in the claim filed by him. That the rehearing be denied and that the commission finds claimant has been fully compensated for any disability due to the injury complained of." A demurrer was filed to the petition, which was overruled. The Industrial Commission then filed an answer, admitting all the allegations of the petition, whereupon the plaintiff moved for judgment, which motion was denied. The court thereupon entered the following judgment: "This cause came on to be heard on the motion of the plaintiff for a judgment on the pleadings in favor of the plaintiff, and the court, being fully advised, finds that said motion is not well taken, and hereby overrules the same. "The court further finds that, the defendant, having admitted all the allegations in plaintiff's petition, there being no further issue before the court, hereby renders judgment in favor of the defendant, at plaintiff's cost. To all of which the plaintiff, by his counsel, excepts." The record does not indicate that the defendant moved for judgment on the pleading, or that the case was submitted to the court, and there was no act of the parties warranting the court's action in rendering judgment for the defendant, defendant in error here. It is urged on behalf of defendant in error that the *Page 395 court of common pleas had no jurisdiction to hear the action, because there had been no rehearing before the Industrial Commission, which is a requirement precedent to bringing an action in the court of common pleas, under Section 1465-90, General Code. The petition recites that a rehearing was had, and this fact is admitted by the answer. The finding of the commission also indicates that a rehearing was had, and the fact that the finding of the commission takes the form of a denial of the application for rehearing in no way affects the fact that a rehearing was had. The court of common pleas therefore had jurisdiction. Plaintiff in error claims that, if Section 1465-90 denies to him the right to bring the instant action, the section is unconstitutional. Sections similar to the one in question, as found in the former act, known as the "Workmen's Compensation Act," have been held constitutional, and we think the same reasoning applies to the present section. See State, ex rel.Yaple, v. Creamer, 85 Ohio St. 349, 97 N.E. 602, 39 L.R.A. (N.S.), 694. However, the petition contains no averment of fact upon which can be predicated a conclusion that the plaintiff in error is suffering from continuing injuries, indicating that further compensation is due, or any averment indicating that he has not been fully compensated. We hold, therefore, in view of the fact that the demurrer to the petition should have been sustained, for the reason that the petition stated no cause of action, that, in spite of the irregularity of the judgment *Page 396 of the court below, the judgment should be affirmed. Judgment affirmed. CUSHING, P.J., and HAMILTON, J., concur.

2016-07-06 06:41:48.45327+00

OPINION {¶ 1} Appellant, David J. Osborn, appeals from a judgment entry of the Trumbull County Court of Common Pleas, Domestic Relations Division, granting him a divorce from appellee, Holly Osborn, and dividing the parties' assets. For the following reasons, we affirm in part, reverse in part, and remand this matter. {¶ 2} By way of background, appellant and appellee were married on October 6, 1984. No children were born as issue of the marriage. {¶ 3} On January 4, 2002, appellee filed a complaint for legal separation in the Trumbull County Court of Common Pleas, Domestic Relations Division. The complaint alleged that the parties were incompatible and, therefore, entitled to a legal separation. Appellant countered by filing an answer and counterclaim. The counterclaim requested a divorce, asserting the parties' incompatibility. {¶ 4} Thereafter, on November 27, 2002, a hearing was held to resolve the parties' claims and determine an equitable distribution of their property. During the hearing, evidence relating to the following property items was disclosed: (1) real estate property located at 440 Kenilworth Road, Warren, Ohio; (2) appellant's pension; (3) a bank account withdrawal of $9,500; and (4) a bank account withdrawal of $1,500. {¶ 5} First, with respect to the real estate property, testimony revealed that, prior to the parties' marriage, appellant resided with his first wife at 440 Kenilworth Road, Warren, Ohio. The deed to the home named appellant and his first wife as joint owners. {¶ 6} Following a divorce from his first wife, appellant married appellee. Appellant's first wife, however, continued to reside at the 440 Kenilworth property. Appellant testified that, during the parties' marriage, it was his funds which paid for the mortgage, taxes, insurance, and maintenance of the real estate. Appellee, however, testified that she also contributed to the payment of the real estate's expenses. {¶ 7} In 1991, the mortgage principal on the real estate was paid in full and a quitclaim deed was executed, naming appellant as the sole owner of the real estate. Appellant's first wife moved from the home, and appellant began to rent out the residence. {¶ 8} In 1996, appellant had a heart attack. Appellant testified that his health problems initiated various estate planning actions. As part of appellant's estate planning, he executed another quitclaim deed which named appellant and appellee as joint owners of the real estate, with a survivorship interest. This deed remained in effect at the initiation of the divorce. {¶ 9} Next, testimony disclosed that appellant was a participant in his employer's pension plan. Appellant's participation in the pension plan began at the start of his employment and continued until his retirement on November 1, 1999. When appellant retired, he elected a 65 percent Joint and Survivor form of pension benefit. There was no testimony provided as to the total value of the pension. However, a posthearing joint exhibit filed with the trial court estimated the portion of the pension accumulated during the parties' marriage was valued at $155,532.91. {¶ 10} The evidence also established that the parties maintained a joint bank account with Credit Union One. As of June 30, 2001, there was $14,044.66 in the joint account. On September 28, 2001, appellant withdrew $11,958.71 from the joint account and transferred these funds to a bank account which was established solely under his name. The $11,958.71 represented the initial balance of appellant's newly established personal account. Appellant testified he then withdrew $9,500 from his personal account and spent this money on gambling and marital bills. {¶ 11} Furthermore, on November 15, 2001, appellant withdrew an additional $1,500 from his personal account. Appellant testified that he used the $1,500 to purchase a television and entertainment center. He further stated that he retained the television and entertainment center subsequent to the initiation of the divorce proceedings. {¶ 12} After the hearing, the trial court issued a July 22, 2003 judgment entry, granting the parties a divorce, awarding appellee spousal support, and dividing the parties' assets. The court made the following findings of fact and determinations with respect to the aforementioned property items at issue. {¶ 13} The trial court found that, prior to his marriage to appellee, appellant owned the real estate located at 440 Kenilworth. The court determined that, during the parties' marriage, marital funds were expended to maintain the property and reduce the mortgage. Thus, the court concluded that the real estate was marital property. Furthermore, the court found at "some time during the marriage [appellant] deeded the property to [appellant] and [appellee] and that property therefore become [sic] marital." As a result of these findings, the court awarded appellant possession of the real estate and awarded appellee a one-half interest of $53,000, which was the appraised value of the residence. {¶ 14} With respect to appellant's pension, the court concluded, "[t]he marital portion of [appellant's] pension plan shall be equally divided by Qualified Domestic Relations Order. The coverture portion shall be defined as being from the October 6th, 1984 marriage date through and including [appellant's] retirement date." {¶ 15} The court then made findings with respect to appellant's withdrawals from his personal account. Specifically, the court determined appellant had "made a withdrawal of $9,500 on 9/28/01 from a marital account at Credit Union One. He claims that he paid some bills with some of this money but adds that he gambled most of it away without [appellee's] knowledge. He could produce no receipts or verification as to bill payments and the Court finds that [appellant] committed financial misconduct in wasting this marital asset and owes [appellee] her one-half share or $4,750. {¶ 16} "The Court finds further that [appellant] withdrew $1,500 from this account on November 15th, 2001. He states that with this money he purchased the TV and an entertainment center which remain in his possession. The Court finds that since he expended marital funds for property he now holds that he owes [appellee] her one-half share or $750." {¶ 17} From this judgment, appellant has filed a timely notice of appeal and now sets forth the following four assignments of error for our consideration: {¶ 18} "[1.] The trial court committed prejudicial error toward appellant-husband and abused its discretion in finding that the property located at 440 Kenilworth, Warren, Ohio was marital property. {¶ 19} "[2.] The trial court committed prejudicial error towards appellant-husband and abused its discretion in not including the `excess' survivorship value in the division of the marital protion [sic] of appellant-husband's pension. {¶ 20} "[3.] The trial court committed prejudicial error towards appellant-husband and abused its discretion in finding that appellant-husband dissipated certain marital funds in the sum of $9,500, and furthermore, erred in ordering a distributive award in the full amount of said funds. {¶ 21} "[4.] The trial court committed prejudicial error towards appellant-husband and abused its discretion in the division of the parties' household goods and furnishings." {¶ 22} We will first set forth the general standard of review which is applicable to each assignment of error. A trial court is given broad discretion in its division of marital assets. Cherryv. Cherry (1981), 66 Ohio St. 2d 348, paragraph two of the syllabus. Accordingly, as a reviewing court, our inquiry is limited to whether the trial court abused that discretion.Holcomb v. Holcomb (1989), 44 Ohio St. 3d 128, 131. "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. {¶ 23} Under his first assignment of error, appellant argues that the trial court erred in determining that the real estate property located at 440 Kenilworth was marital property. In doing so, appellant submits two separate issues for our review. First, appellant contends the court erred in making the factual determination that he applied the parties' marital funds to various house payments, thereby transforming the real estate into marital property. Second, appellant maintains that his execution of a joint survivorship deed with appellee failed to establish his donative intent and, therefore, the real estate remained his separate property. {¶ 24} The initial issue before us is whether the 440 Kenilworth real estate was marital property or separate property. To assist in our review, the applicable definitions of marital property and separate property are necessary. Pursuant to R.C.3105.171(A)(3)(a)(i), marital property is defined as "[a]ll real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage[.]" Marital property, however, does not include any separate property. R.C. 3105.171(A)(3)(b). {¶ 25} On the other hand, separate property is defined by R.C. 3105.171(A)(6)(a)(ii) as "[a]ny real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage." {¶ 26} That being said, if commingled marital funds were used to pay the real estate's expenses, the real estate was properly considered marital property subject to an equitable division. It is axiomatic that "[t]he commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separateproperty is not traceable." (Emphasis added.) R.C. 3105.171 (A)(6)(b). See, also, Woods v. Woods (Apr. 7, 1995), 11th Dist. No. 93-G-1835, 1995 Ohio App. LEXIS 1458, at 7. "The party attempting to prove that the asset is traceable separate property must establish such tracing by a preponderance of the evidence."Price v. Price, 11th Dist. No. 2000-G-2320, 2002-Ohio-299, 2002 Ohio App. LEXIS 240, at 5. {¶ 27} Here, appellant failed to provide any evidence corroborating his claim that only his funds were used to pay for the mortgage, taxes, insurance, and maintenance of the real estate. The testimony at trial established that, following the parties' marriage, on October 6, 1984, mortgage payments on the 440 Kenilworth property were still being made as appellant's first wife was residing at the house. In 1991, the mortgage payments were completed, but expenses relating to taxes, insurance, and maintenance continued. Contrary to appellant's testimony, appellee testified that she also contributed funds relating to the real estate's expenses. {¶ 28} It was appellant's burden to trace the funds used to pay for the real estate and establish, by a preponderance of the evidence, that his separate property was not commingled with marital property. Appellant failed to present any substantive evidence establishing an adequate trace of funds. Thus, the trial court did not abuse its discretion in finding the 440 Kenilworth property to be marital property and dividing it equally between the parties. This portion of appellant's first assignment of error is not welltaken. {¶ 29} Moreover, once the mortgage payments were complete, appellant became the sole owner of the real estate via a quitclaim deed. Nevertheless, following his heart attack, appellant executed a new deed which named himself and appellee as joint owners, with a right of survivorship. Appellant argues that, despite the execution of the joint survivorship deed with appellee, the real estate remained his separate property. In support of this contention, appellant maintains he executed the joint survivorship deed for estate planning purposes and did not have donative intent. We disagree. {¶ 30} Under R.C. 3105.171(H), "the holding of title to property by one spouse individually or by both spouses in a form of co-ownership does not determine whether the property is marital property or separate property." Thus, we must examine the surrounding circumstances to determine whether appellant's execution of a joint survivorship deed transformed the real estate into marital property. {¶ 31} "[S]pouses can change separate property to marital property based on actions during the marriage." Moore v. Moore (1992), 83 Ohio App. 3d 75, 77. The primary method for effecting this change is through an inter vivos gift of the property from the donor spouse to the donee spouse. Helton v. Helton (1996),114 Ohio App. 3d 683, 685. "[A]n inter vivos gift is an immediate, voluntary, gratuitous and irrevocable transfer of property by a competent donor to another." Smith v. Schafer (1993),89 Ohio App. 3d 181, 183. The essential elements of an inter vivos gift are: {¶ 32} "(1) [the] intent of the donor to make an immediate gift; (2) delivery of the property to the donee; [and] (3) acceptance of the gift by the donee." Barkley v. Barkley (1997), 119 Ohio App. 3d 155, at fn.2. {¶ 33} Generally, the donee has the burden of showing, by clear and convincing evidence, that the donor made an inter vivos gift. Smith at 183. However, "`[w]hen a transaction is made that benefits a family member, there is a presumption that the transaction was intended as a gift.'" Davis v. Davis, 5th Dist. No. 2003CA00243, 2004-Ohio-820, at ¶ 8, quoting Wertz ex rel.Estate of Jurkoshek v. Tomasik (Feb. 7, 2001), 9th Dist. No. 20209, 2001 Ohio App. LEXIS 426. {¶ 34} First we note, "[a] joint survivorship deed transfers a present undivided one-half interest and not merely an expectancy of future interest." Gills v. Gills (Dec. 23, 1994), 11th Dist. Nos. 93-L-191 and 93-L-194, 1994 Ohio App. LEXIS 5844, at 5. Thus, appellant's transfer of an ownership interest was immediate upon his execution of the joint survivorship deed. {¶ 35} Furthermore, "the fact that appellant caused the property to be titled jointly with the right of survivorship is highly probative in determining his intent." Id. Although appellant argues that there was no donative intent, his testimony at the hearing is contradictory to this argument, to wit: {¶ 36} "Q: You in fact, gave a gift to your wife for [the 440 Kenilworth real estate]? {¶ 37} "A: I wouldn't necessarily call it a gift. We were both concerned that we were, having medical problems for my own and if I happened to die what would become of this property. {¶ 38} "Q: And you wanted it to go to [appellee]? {¶ 39} "A: Well in case of my being deceased, yes. {¶ 40} "Q: So it was placed in a joint deed with the two of you correct? {¶ 41} "A: Yes, sir." {¶ 42} The foregoing testimony clearly demonstrates that it was appellant's ultimate and sole intent to gift a one-half interest in the real estate to appellee. It is irrelevant that appellant's donative intent was the result of his estate planning. His own testimony establishes that when the joint survivorship deed was executed he intended to make an immediate, voluntary, gratuitous and irrevocable transfer of a one-half interest in the real estate to appellee. {¶ 43} Accordingly, there was clear and convincing evidence that appellant made an inter vivos gift via his execution of a joint survivorship deed for the property located at 440 Kenilworth. Appellant has failed to overcome the presumption that his transfer of a one-half interest in the property to appellee was a gift. Therefore, for this additional reason, the trial court did not abuse its discretion via its equitable division of the real estate, as such property was marital property. Appellant's first assignment of error is without merit. {¶ 44} Under his second assignment of error, appellant argues that the trial court erred in failing to adjust its division of his pension benefits in accordance with his election of a 65 percent joint and survivorship annuity. Specifically, appellant states that his election of a 65 percent joint and survivorship annuity, rather than the typical 50 percent joint and survivorship annuity, reduced his pension benefits and increased appellee's survivorship benefits. Thus, appellant concludes that the trial court was required to offset appellee's "excess" survivorship benefits against its division of appellant's present pension benefits. {¶ 45} "In general, pension and retirement benefits acquired by a spouse during the marriage are deemed marital assets that are subject to division." Neville v. Neville,99 Ohio St. 3d 275,2003-Ohio-3624, at ¶ 6. In the instant case, the trial court ordered the parties to divide the marital portion of appellant's pension plan equally between the parties. However, the court failed to provide a monetary valuation of the pension. {¶ 46} In Willis v. Willis (1984), 19 Ohio App. 3d 45, 48, we held that, although a trial court is vested with substantial discretion when determining a property division, a valuation of pension funds is necessary for adequate appellate review. Similarly, in McNulty v. McNulty (Nov. 29, 1996), 11th Dist. No. 96-A-0028, 1996 Ohio App. LEXIS 5400, the trial court merely determined that the husband's future pension benefits were to be divided equally between the parties. Relying upon Willis, we held, "the trial court in this case erred when it did not undertake to assign some value to appellant's pension plan in the equitable property division." (Emphasis sic.) Id. at 4. {¶ 47} Here, because the trial court failed to assign a value to the equally divided marital portion of appellant's pension, we are precluded from an adequate appellate review. While a post-hearing exhibit included a valuation of appellant's pension fund, the court failed to give any indication that it was adopting this valuation as a factual finding. Because the valuation of appellant's pension was within the trial court's discretion, this court, on appeal, is prohibited from assigning its own value to the pension. Thus, the trial court's failure to ascertain a valuation of the pension precludes an adequate appellate review. Appellant's second assignment of error is with merit to the limited extent indicated. {¶ 48} Under his third assignment of error, appellant argues that the trial court erred in issuing a distributive award to appellee in the amount of $4,750, based upon its erroneous determination that appellant dissipated marital funds in the amount of $9,500. {¶ 49} Appellant maintains that the majority of the $9,500 was used to pay for marital expenses. {¶ 50} A distributive award represents any payment or payments, in real or personal property, that are payable in a lump sum or over time, in fixed amounts, that are made from separate property or income, and that are not made from marital property and do not constitute payments of spousal support. R.C.3105.171(A)(1). Pursuant to R.C. 3105.171(E)(3), "if a spouse has engaged in financial misconduct, including, but not limited to, the dissipation, destruction, concealment, or fraudulent disposition of assets, the court may compensate the offended spouse with a distributive award or with a greater award of marital property." {¶ 51} A trial court enjoys broad discretion in determining whether a distributive award is necessary to compensate one spouse for the financial misconduct of the other. Anthan v.Darvish-Kojouri, 11th Dist. No. 2002-G-2483, 2004-Ohio-1168, at ¶ 36. Thus, we will apply an abuse of discretion standard. Id. Again, 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 at 219. The burden of proving financial misconduct is on the complaining spouse. Anthan at ¶ 37. {¶ 52} In the case sub judice, the court's judgment entry acknowledges appellant's testimony claiming that he withdrew $9,500 to pay some bills, but gambled most of it away. Despite his claims, the court noted that appellant "could produce no receipts or verification as to bill payments." Thus, the court found appellant had committed financial misconduct. {¶ 53} The record before us supports the trial court's determinations. First, the evidence shows that the $9,500 originated from the parties' marital assets. Appellant testified that after he transferred the money from the parties' joint account to his own personal account, and then withdrew the funds, he lost the majority of the $9,500 due to his gambling habit. Nevertheless, appellant continued to testify that a portion of the funds was actually spent on marital bills. Appellant was unable to substantiate his testimony with any evidence of bill payments for marital expenses. Nor was he able to present evidence establishing the use of these funds for gambling. {¶ 54} Appellee testified she was unaware of appellant's gambling habit and his expenditure of marital funds to support this habit. She further testified that she was uninformed of appellant's withdrawal of $9,500 from the parties' joint account prior to the divorce proceedings. Such evidence demonstrates that appellee was oblivious to appellant's unauthorized use of the parties' marital funds and further confirms that appellant did not use the funds to pay marital bills. {¶ 55} Accordingly, the evidence presented at the hearing established that the trial court did not abuse its discretion by determining appellant had engaged in financial misconduct by his withdrawal and expenditure of $9,500 from the parties' joint account. Appellant's third assignment of error is without merit. {¶ 56} Under his fourth assignment of error, appellant contends the trial court erred by ordering him to pay appellee one-half the value of the television and entertainment center. In support of his argument, appellant maintains that the funds used to pay for the television and entertainment center were taken from his personal account and that an award to appellee for half the value of these items was not equitable. {¶ 57} First, the evidence produced at the hearing clearly demonstrated the funds used by appellant to pay for the television and entertainment center were marital funds. At the hearing, appellant testified that he withdrew $11,958.71 fromthe parties' joint account and placed these funds into his own personal account. The bank statement demonstrated that the $11,958.71 was the beginning balance of appellant's personal account. Appellant failed to present any evidence that he had deposited any additional funds into his personal account which represent his own separate funds. The bank statement only showed six separate credits to the account in the amount of $22.50, each for dividend payments. Appellant further testified that on November 15, 2001, he withdrew $1,500 from his personal bank account and used these funds to purchase the television and home entertainment center. {¶ 58} Accordingly, although appellant withdrew the $1,500 from his personal account, these funds originated from the marital assets of the joint account. Unlike separate property, marital property does not become separate property if it is commingled with separate property. R.C. 3105.171(A)(3)(b). But, c.f., Moore at 77. Thus, we need not determine the traceability of the marital property once it was placed in appellant's personal bank account. {¶ 59} In the instant case, the $1,500 expended by appellant clearly represented marital assets, regardless of his withdrawal of these funds from his personal account. Because the television and home entertainment center were purchased with marital funds, the trial court was within its discretion to divide the value of the television and home entertainment center equally between the parties. R.C. 3105.171(C)(1). Appellant's fourth assignment of error is without merit. {¶ 60} Based upon the foregoing analysis, appellant's first, third, and fourth assignments of error are without merit. However, appellant's second assignment of error is with merit to the limited extent indicated. Thus, we hereby affirm in part, reverse in part, and remand this matter for the trial court to state its valuation of the pension. Ford, P.J., Rice, J., concur.

2016-07-06 06:41:48.518805+00

DECISION. *Page 2 {¶ 1} Dante Shelton was convicted of robbery, kidnapping, aggravated burglary, two counts of aggravated robbery, three counts of rape, and four counts of receiving stolen property, as well as accompanying firearm specifications. Shelton was sentenced to 11 years in prison and was adjudicated a sexual predator. {¶ 2} Shelton now appeals. In two assignments of error, he argues that the trial court erred by (1) denying his motions to suppress and (2) adjudicating him a sexual predator. Denial of Untimely Motions to Suppress {¶ 3} In his first assignment of error, Shelton challenges the trial court's denial of his untimely motions to suppress evidence. {¶ 4} Under Crim.R. 12, motions to suppress evidence must be filed within 35 days after arraignment or seven days before trial, whichever is earlier.1 A defendant's failure to file a timely motion to suppress evidence constitutes a waiver of any objection to the introduction of the evidence at trial.2 But a trial court may grant relief from the waiver where the defendant demonstrates good cause for his failure to file a timely motion.3 {¶ 5} The determination of "good cause" must be made on a case-by-case basis.4 We have held that "[u]nless the defendant's counsel demonstrates to the *Page 3 satisfaction of the court that he did not know and could not reasonably have been expected to know of facts tending to establish a constitutional violation of his client's rights in sufficient time to have complied with the time limitations of Crim.R. 12, then he has failed to sustain his burden of rebutting the presumption of waiver, and the trial court does not err in admitting the challenged evidence."5 We review a trial court's denial of an untimely motion to suppress for an abuse of discretion.6 {¶ 6} In this case, Shelton did not file a motion to suppress until July 20, 2006, more than five months beyond the deadline provided by Crim.R. 12. {¶ 7} Shelton's cases were originally scheduled for trial in February 2006. Upon Shelton's requests, the cases were rescheduled three more times, with the final setting on August 21, 2006. {¶ 8} On the morning of trial, defense counsel asked the trial court to hear his motions to suppress. The motions were directed at statements Shelton had made to police, as well as to the traffic stop that had led to his arrest. {¶ 9} Counsel proffered a police dispatch report and a tape recording of police radio transmissions related to the traffic stop, as well as summaries of Shelton's statements to police. Counsel said that he had not obtained the information supporting his motions until July 2006 "after a lengthy investigation," but he did not explain why it had taken so long to obtain the information. {¶ 10} The state's responses to discovery had been completed by February 7, 2006. The state had included summaries of Shelton's statements to police. In *Page 4 March 2006, the trial court had granted Shelton's request for the appointment of an investigator. Yet Shelton did not file a motion to suppress for another four months. {¶ 11} Defense counsel gave no explanation for why it had taken from December to July to conduct his investigation, why an investigator appointed at the end of March 2006 had not simply obtained the police dispatch documentation at that time, or why it had taken another four months to "discover" the information. And at no point did the defense request the court's leave to file an untimely motion to suppress. {¶ 12} Clearly, defense counsel knew through discovery that Shelton had spoken to police several times and that he had been arrested during a traffic stop. Defense counsel failed to show that he could not have discovered the facts supporting the motions to suppress within the time limitations of Crim.R. 12. {¶ 13} Because Shelton's motions to suppress were filed more than five months out of time, and because he supplied no acceptable justification for his failure to timely file the motions, we cannot say that the trial court abused its discretion by denying the motions without a hearing. We overrule the first assignment of error. Sexual-Predator Determination {¶ 14} In his second assignment of error, Shelton argues that the trial court erred by finding him to be a sexual predator under R.C. Chapter 2950. He contends that the trial court lacked jurisdiction to conduct a sex offender classification hearing because the hearing was not conducted on or before the date of sentencing. He also argues that the predator determination was against the manifest weight of the *Page 5 evidence, and that it was invalid because the sentencing court did not conduct the classification hearing. A. Timing of the Sexual-Predator Hearing {¶ 15} Under R.C. 2950.09(B)(1)(a), "[t]he judge who is to impose sentence on a person who is convicted of or pleads guilty to a sexually oriented offense * * * shall conduct a hearing to determine whether the offender is a sexual predator * * *." R.C. 2950.09(B)(2) provides, "Regarding an offender, the judge shall conduct the hearing required by division (B)(1)(a) of this section prior to sentencing and, if the sexually oriented offense for which sentence is to be imposed is a felony and if the hearing is being conducted under division (B)(1)(a) of this section, the judge may conduct it as part of the sentencing hearing * * *." {¶ 16} In State v. Bellman, the Ohio Supreme Court addressed the statutory requirement regarding the timing of a sexual-predator hearing.7 In Bellman, the defendant at sentencing had explicitly agreed to a postponement of the hearing. {¶ 17} The supreme court noted that "[a]s a general rule, a statute providing a time for the performance of an official duty will be construed as directory so far as time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure."8 The court explained, "Generally, then, it is only where a statutory time requirement evinces an object or purpose to limit a court's authority that the requirement will be considered jurisdictional."9 *Page 6 {¶ 18} The court noted that the language of R.C. 2950.09(B) "`does not establish that its time periods are for anything other than convenience and orderly procedure,' and it `does not include any expression of intent to restrict the jurisdiction of the court for untimeliness.'"10 The court held that the statutory requirement regarding the timing of a sexual-predator hearing is not jurisdictional, and that a defendant may waive it.11 {¶ 19} In this case, Shelton argues that, unlike the defendant inBellman, he did not explicitly waive the statutory time requirement. Shelton contends that at his August 22, 2006, sentencing, the parties had mutually agreed to postpone the classification hearing until October 25, 2006, to allow him to remain in the local jail facility in the meantime. {¶ 20} But the record reflects no mention of an agreement by the parties to allow Shelton to remain in the local jail, and no objection by Shelton to the postponement. It was not until the sexual-predator hearing that an agreement was mentioned and that Shelton first lodged an objection to the timing of the hearing. {¶ 21} In any event, because the time requirement in R.C.2950.09(B)(2) is not jurisdictional, the trial court's failure to comply with the requirement did not deprive it of jurisdiction to hold the sexual-predator hearing after sentencing.12 Moreover, as one court has said, "[w]e fail to see how [the defendant] could have been prejudiced by the trial court sentencing him before declaring him a sexual *Page 7 predator. If anything, a prior finding that an offender is a sexual predator would tend to increase, not lessen, the sentence that he receives."13 B. Evidence Supported Sexual-Predator Determination {¶ 22} Moreover, Shelton's sexual-predator adjudication was not against the weight of the evidence. In reviewing the factors in R.C.2950.09(B)(3), the court noted that Shelton was a "young offender" who had an extensive criminal and delinquency history. The court considered Shelton's prior adjudication for sexual imposition, as well as his participation in available programs for sexual offenders. {¶ 23} The court considered Shelton's mental illness or disability and noted that he was "basically a sociopath." The court determined that the nature of Shelton's conduct was part of a demonstrated pattern of abuse in that Shelton had "a history of doing the same sort of thing." {¶ 24} In concluding that Shelton had displayed cruelty during the commission of the rapes, the court stated, "He held a gun to her head. I guess kind of [choked] her. Pulled her head back. Woke her up in the middle of the night and raped her a number of different ways, orally and vaginally. Performed oral sex on her. Made her perform oral sex on him. Took her out to the bank to get monies. Drove her — so he essentially kidnapped her too. That's pretty cruel." {¶ 25} The court also considered the report of Dr. Sherry Baker, the psychologist who had evaluated Shelton. Dr. Baker identified several risk factors presented by Shelton that were significantly correlated with sexual-offense *Page 8 recidivism. The doctor reported that Shelton's score on a Static-99 test reflected that Shelton was in the "high" risk category for reoffending. {¶ 26} Because competent, credible evidence supported the trial court's sexual-predator determination, we must affirm it.14 Moreover, because the trial court was apprised of all the facts and had the entire record before it, we reject Shelton's argument that any prejudicial error occurred when the sentencing court did not conduct the sexual-predator hearing. {¶ 27} Accordingly, we overrule the second assignment of error and affirm the judgment of the trial court. Judgment affirmed. PAINTER, P.J., and HILDEBRANDT, J., concur. Please Note: The court has recorded its own entry on the date of the release of this decision. 1 See Crim.R. 12(C)(3) and (D). 2 See Crim.R. 12(H); State v. Wade (1978), 53 Ohio St. 2d 182,373 N.E.2d 1244, paragraph three of the syllabus, vacated on other grounds (1978), 438 U.S. 911, 98 S. Ct. 3138. 3 Crim.R. 12(H). 4 See, e.g., State v. Brown (1988), 38 Ohio St. 3d 305,528 N.E.2d 523. 5 State v. Murphy (1982), 1st Dist. Nos. C-810203 and C-810270. 6 Akron v. Milewski (1985), 21 Ohio App. 3d 140, 487 N.E.2d 582;State v. Karns (1992), 80 Ohio App. 3d 199, 608 N.E.2d 1145. 7 86 Ohio St. 3d 208, 1999-Ohio-95, 714 N.E.2d 381. 8 Id. at 210, quoting State ex rel. Jones v. Farrar (1946),146 Ohio St. 467, 66 N.E.2d 531, paragraph three of the syllabus. 9 Id. 10 Id., quoting State ex rel. Harrell v. Streetsboro Bd. ofEdn. (1989), 46 Ohio St. 3d 55, 63, 544 N.E.2d 924, and In re Davis (1999), 84 Ohio St. 3d 520, 522, 705 N.E.2d 1219. 11 Id. at 210-211. 12 Id. 13 State v. Hurst, 2nd Dist. No. 20435, 2005-Ohio-128, at ¶ 6; see, also, State v. Webb, 9th Dist. No. 06CA008875, 2006-Ohio-5476; State v.Imler, 10th Dist. No. 04AP-1246, 2005-Ohio-4241. 14 State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202,865 N.E.2d 1264, syllabus. *Page 1

2016-07-06 06:41:48.54621+00

OPINION Defendant-appellant Safabian Stearns (appellant) appeals his convictions on two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), two counts of rape in violation of R.C.2907.02(B) and one count of kidnapping a minor with sexual motivation in violation of R.C. 2905.01(A)(4), which were entered against him in Cuyahoga County Common Pleas Court upon jury verdict. Appellant urges reversal of his convictions claiming that evidentiary rulings entered by the trial court violated his rights as protected by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Section 10, Article I, Ohio Constitution. We find no reversible error in the trial court proceedings and for the reasons stated below, we affirm. At trial the state presented the testimony of eleven witnesses. The record reveals the following undisputed facts. On Sunday evening September 6, 1998, Tiffany Gilson (d.o.b. January 19, 1987), a mentally-challenged eleven-year-old third-grader, was reported missing to the Cleveland police by her family when she failed to arrive at church where she was to meet her mother. That night her family and police searched, without success, her expected route from the Gilson home at 113 Tuscora Avenue, up Lakeview Avenue, through the grounds of the Glenville Rec Center to E. 115 Street, crossing over to E. 117 Street to her anticipated destination, the Cleveland Temple, Church of God. Early the next morning, September 7, in the area of E. 117 Street and St. Clair Avenue, Patrolman John Mitchell, who had been assigned to look for the missing child, saw Tiffany walking alone and questioned her as to what happened. She told him they took me and explained by saying "sex." Patrolman Mitchell questioned her as to whether she had been raped and she responded yes. As a result, he immediately took Tiffany to Rainbow Babies and Children's Hospital where she was interviewed, examined and evidence was gathered. Upon their arrival at Rainbow Babies and Children's Hospital, Ann Darby, a pediatric nurse, took Tiffany's history. Tiffany told Nurse Darby that she had been abducted by four men. She identified each man by description and wrote what each man had done to her. She described the four men as the light-skinned one, the "old man", the "son" and the "uncle." Dr. Anthony Villella, pediatric resident at Rainbow Babies and Children's Hospital, obtained Tiffany's history as taken by Nurse Darby and undertook Tiffany's physical examination with the knowledge that Tiffany claimed to have been assaulted by three or four men who had committed oral, anal and vaginal sex acts against her. Dr. Villella's examination revealed that Tiffany was already estrogenized, that is physically sexually matured. Her physical exam revealed that she had sustained no recent injury and, although he originally determined that no hymen was present, upon conferring with an experienced nurse practitioner and with the aid of photographs taken of Tiffany's genitalia, he determined that Tiffany's hymen was normal appearing. Dr. Villella and Nurse Darby labeled Tiffany's clothing and collected samples for the rape kit which was sealed and given to Patrolman Mitchell. Lauren McAliley, pediatric nurse practitioner, conducted a medical interview, a physical exam and a detailed exam of Tiffany's genitalia with a colposcope. Tiffany reported to her that four men touched her private, her butt and her breasts, both with their penises and their mouths, and these four men made her mouth touch their penises. Nurse McAliley found Tiffany to be sexually mature with her hymen estrogenized. Nurse McAliley was declared an expert and she opined that based upon her training, experience and her physical exam of Tiffany, the likelihood of sexual abuse of Tiffany was probable. Patrolman Mitchell transported Tiffany, now accompanied by her mother, home from the hospital. On the way, he drove to the area where he found Tiffany. On E. 123 Street Tiffany was able to identify the two houses as the locations where the alleged assaults occurred, 617 E. 123 Street a gray house with the white trim, and 626 E. 123 Street a green house. Later that week, Tiffany and her mother met with Detective Parker, a thirteen-year veteran of the Cleveland Police Department Sex Crimes Unit, who took a statement from each. Tiffany described the inside of the house located at 617 E. 123 Street, described the four individuals who assaulted her and she recalled the name Omar as a fifth individual who was present in the house. During this interview, Tiffany again referred to the four individuals as the "old man", the "old man's son", the "uncle", and the "light-skinned one." The police obtained search warrants for both houses identified and executed the warrants on Friday morning. When the warrant was executed at the house located at 617 E. 123 Street, no one was present; the police confiscated a video camera, case and tripod, some X-rated videos, a box of Black and Milds, and mail addressed to Curtis Sanders. Four individuals were present at the house located at 626 E. 123 Street, who were identified as Beatrice Farrington, Katen Farrington, William Kimbrough III and Jamie Moore. The police arrested all three males. That day, two lineups were conducted, one involving Katen Farrington and the other Jamie Moore. Tiffany did not identify anyone from either lineup as an assailant and both Katen Farrington and Jamie Moore were released. At a subsequent lineup, Tiffany chose William Kimbrough III and identified him as the son. Detective Parker obtained arrest warrants for Omar Stearns, William Kimbrough, Jr. and Curtis Sanders. The police transported Tiffany to the location at E. 123 Street where she observed Omar Stearns in a "cold stand" identification procedure but did not identify him as one of her attackers. William Kimbrough, Jr. and Curtis Sanders were arrested and charged in the crimes on Monday, September 14, 1998. The police obtained a second statement from Tiffany regarding the sexual assault which took place in the white car. On Friday, September 18, appellant was arrested by the Fugitive Task Force at the Garden Valley Apartment complex. Upon his arrest, appellant gave his statement to Detective Parker in which appellant denied having sex with Tiffany or forcing her to do anything. Omar Stearns was arrested but was subsequently released. Four men, William Kimbrough, Jr.; William Kimbrough III; Curtis Sanders; and appellant; were charged with kidnap and rape by the Cuyahoga Count Grand Jury in a seventeen count indictment. Specifically, appellant was charged with one count of kidnapping with specification alleging a sexual motivation and five counts of the rape of a child under the age of thirteen by force. At his arraignment, appellant was found to be indigent, counsel was appointed, and appellant entered pleas of not guilty to each charge against him. Court orders were obtained for blood and saliva samples from all four men and sent to the Cleveland Police Scientific Investigation Unit (SIU). Tina Stewart of the SIU prepared six reports which concluded that no semen was present from Tiffany's vaginal, oral or rectal swabs nor from the smear slides. However, the stain on Tiffany's blue-denim jumper and the stain on her panties tested positive for seminal fluid. The samples were stored for DNA analysis with blood and saliva standards from each of the four suspects and Tiffany. Selvarangan Ponnazhagan, Ph.D., a forensic scientist with the Cuyahoga County Coroner's Office, conducted tests on the evidence gathered in relation to Tiffany's alleged sexual assault and he determined that the sperm fraction of DNA found on her jumper and panties matched that of William Kimbrough, Jr. Testing also determined that William Kimbrough III, Curtis Sanders and appellant were excluded as donors of the semen samples. Subsequently, pursuant to an agreed plea arrangement, William Kimbrough, Jr. pled guilty to an amended indictment in exchange for his truthful trial testimony on behalf of the state. Prior to trial, as relevant to this appeal, the state amended both counts two and three as charged against appellant from Rape to Gross Sexual Imposition, with the remaining charges against appellant unchanged. The matter was tried before a jury in a joint trial against appellant and two co-defendants, William Kimbrough III and Curtis Sanders. Tiffany testified as to the events which occurred on September 6 and 7, 1998. She described the men who attacked her as the "light-skinned one", the "uncle", the "old man", and the brown-skinned one who was the "son of the old man." On the Sunday night when the events occurred she wore a blue-denim jumper with buttons up the front, a Tweetie Bird t-shirt, a bra, panties and socks. As she walked alone through the Glenville School and Rec Center area on her way to the church, the light-skinned one approached her and asked her questions. At trial, Tiffany identified appellant as the light-skinned one. She said appellant asked her whether she wanted to make money. When she said no, he asked whether she wanted twenty dollars. She again said no. Finally, she said he asked whether she wanted a fifty, but she said no. She testified that she went with appellant to the gray house with the white trim where the uncle was. When she and appellant arrived at the gray house, they entered through the side door. The uncle and the old man were already at the house. Tiffany said that they did it to her in the living room. She testified that this meant that they had sex with her. She described the sex acts which the men performed. She stated that the appellant, the light-skinned one, and the uncle made her suck their penises. She said that uncle had sex with her with his penis touching her private part. She said appellant put his finger in her private part and he sucked on her breasts. Tiffany was able to describe the interior rooms and furnishings of the gray house in detail and was able to identify the photographs of the interior of the house which were taken by the Cleveland police. She said that while she was at the gray house she went upstairs to use the bathroom and also went into the little bathroom off the kitchen. While she was in the house she saw the old man in the kitchen and she saw the uncle sell dope. At some point another man and a woman came into the house. She saw boxes of milds (Black and Milds cigars) on the see-through table. She said uncle talked on the phone and then told appellant to get his nephew, Omar. Then, appellant left the house. Shortly thereafter, uncle and the old man walked her across the street to a green house with its porch light on. She entered the green house through the side door with the old man. Once inside, the old man, whom she identified as William Kimbrough, Jr., took her to a bedroom, shut the door and fastened it at the top with a screwdriver. There William Kimbrough, Jr. touched her private part with both his tongue and with his penis. While she was at the green house, she saw the old man's son. Later that night, William Kimbrough, Jr. put her into a white car with his son, William Kimbrough III, who drove with her to the YMCA parking lot. At the YMCA parking lot, William Kimbrough III made her suck his penis. After that, William Kimbrough III removed her panties, put on a condom and did it to her. He took her back to the green house, put her in the bedroom, turned on the TV and locked her in. In the morning, William Kimbrough, Jr. let her go. She started walking to her uncle's house but a policeman stopped her. When she told the policeman that she had been raped, he took her to the hospital. Tiffany testified that while at the hospital she cried and told the nurse and doctor what had happened to her. She removed her clothing on a sheet and was examined in her private part and was given something to wear. She described her attackers to the hospital personnel as the light-skinned one, the uncle, the old man and the brown skinned man, the son of the old man. When Tiffany left the hospital, she identified the gray house with the white trim and the green house where the sexual assaults occurred. Later, Tiffany went downtown where she talked to Det. Parker and her partner and made a statement. Tiffany identified appellant as the light-skinned one in the line-up conducted and identified co-defendant William Kimbrough III as the brown-skinned son of the old man. On a different day, she identified William Kimbrough, Jr., while he was in a blue car passing by the houses at E. 123 Street, as the old man. Tiffany identified co-defendant Curtis Sanders as the man everyone called the uncle. On cross-examination, Tiffany restated that appellant sucked her breasts, put his finger into her private part and forced her to suck his penis while they were at Curtis Sanders' house. Tiffany conceded that appellant did not display a gun, knife or other weapon. On redirect examination, Tiffany asserted that she did not want appellant, the old man, the uncle or the son to do these things to her and she testified that she was afraid while she was in the gray house, in the green house and in the white car where the sexual assaults occurred. William Kimbrough, Jr. (Jr.), identified by Tiffany as the old man, testified on behalf of the state as follows. Jr. is fifty-seven years old and lives at 626 E. 123 Street (the green house) with his mother, step-father, and his son, co-defendant William Kimbrough III. Jr. testified that unc is the street name of co-defendant, Curtis Sanders. Sanders sells dope out of the gray house with white trim across the street at 617 E. 123 Street. Jr. spends every day at Sanders' house pitching horseshoes or cooking up cocaine. Sanders' house is a place where people purchase dope, girls come to perform sexual favors or clean the house, and people take pictures with the video camera. Jr. testified that appellant and his cousin, Omar Stearns, had previously brought girls to Sanders' house. Jr. engaged in sexual activity with girls at the house and he has observed Sanders engage in sexual activity there. Jr. said that on September 6 he was at Sanders' house and had cooked up some dope at Sanders' request. That night, Jr. sat on the porch waiting for customers to come for a drug transaction. When they arrived he would call for Sanders. He saw appellant, accompanied by a girl wearing a starter jacket, a blue-jean dress and tennis shoes, arrive, knock on the door and call out for Sanders. The girl waited on the porch until appellant told her to come into the house. Jr. testified that although he stayed on the porch, he looked through the window into the living room and was able to see both appellant and Sanders messing with the girl, playing with her breasts. Jr. remained on the porch smoking crack until Sanders came out. Fifteen or twenty minutes later, appellant left the house claiming he was going to the store, but Jr. observed he went in the opposite direction. Sanders returned into the house while Jr. remained on the porch. A man came looking for Sanders, so Jr. went into the house and called out for Sanders. When he failed to hear an answer from Sanders, Jr., he walked toward the living room where he saw Sanders with the girl. Jr. backed-off and called Sanders name again; then, Sanders, zipping up his pants, came out of the living room. Jr. observed the girl's unbuttoned dress while she attempted to cover herself with her hands. Sanders went outside and took care of his business. During that evening, Omar Stearns came to Sanders' house but did not stay. Sanders offered Jr. a couple of stones to take the girl out of the house. Jr. assumed that Sanders meant to take the girl to do what he wanted with her because that was what they had done with girls previously. Jr. said that it did not cross his mind that Tiffany was a minor although he admitted he thought she did not seem very streetwise. When Omar came back, Jr. removed Tiffany into a little room off the kitchen. When Omar went into the dining room, Jr. took Tiffany outside and offered her a ride. He took a ten-dollar bill out of her jumper pocket and drove her to the gas station where he spent the money on pop, cigars and gas. Jr. brought Tiffany back to his house where, after he wedged the bedroom door shut with a screwdriver, he engaged in both oral and vaginal sex with Tiffany without using a condom. Later, Jr. saw his son, co-defendant William Kimbrough III, talking to Tiffany when she was sitting on the porch railing at Sanders' house. That night, Jr. left the area and went to the Garden Valley apartments where he picked up a girl. When he returned about four or five in the morning, he saw Tiffany still sitting on Sanders' steps and advised her not to wait there. Later, when he pulled his car into the backyard, he noted that Tiffany was gone and he did not see her again. On cross-examination, Jr. conceded that in the first statement which he made to the police he denied having sex with Tiffany. But, after the DNA tests confirmed that he did have sex with her, pursuant to a plea agreement, he entered a guilty plea to some counts in the indictment. The state rested its case; counsel for each defendant moved for acquittal pursuant to Crim.R. 29. As relevant to this appeal, the trial court granted appellant's motion for acquittal as to count six of the indictment which charged him with one count of rape. In his defense, appellant testified as to his version of the events of September 6, 1998. Appellant stated that while he was walking through the Glenville Recreation field he saw Tiffany. He was smoking a blunt and she approached him asking for a light. They conversed, he thought that she was at least sixteen years old. He left the Rec Center to go to Tuscora Avenue, but he asked her to wait for him. He returned after fifteen minutes and they engaged in kissing and fondling for ten minutes. He suggested that they go to unc's house, home of Curtis Sanders, where they could have further sexual activity. Tiffany went with him voluntarily. When they arrived at Sanders' house, appellant directed her to wait on the porch until he got permission from unc to chill. Then, he and Tiffany went into the TV room where they stayed about twenty minutes smoking some reefer and listening to music. Appellant denied engaging in sexual activity with Tiffany at Sanders' house. Subsequently, he left the house to get some blunts to smoke. On September 18, because he understood that the police were looking for him, he called the FBI and advised them that he intended to turn himself in. He met the police at the Garden Valley Apartments and turned himself in. He was taken directly to the Sex Crime Unit where he was interviewed by Det. Parker. Although he understood his right to remain silent, he made a statement to the police. During his statement he cried because he was scared. He said he did not know that Tiffany was only eleven years old. On cross-examination, appellant denied making Tiffany have oral or vaginal sex with him, he denied seeing Sanders fondle or have oral or vaginal sex with Tiffany, and he claimed that William Kimbrough, Jr. could not have observed him fondling Tiffany. Appellant conceded that although it was his intention to have sex with Tiffany when he walked from the Rec Center to Sanders' house, he left Sanders' house to get some blunts and he did not return because he went to his grandmother's house to get his crying baby. Curtis Sanders testified on his own behalf admitting that in 1990 he was found guilty of drug abuse and drug trafficking. After serving his term of imprisonment, Sanders said he started living a good life. He and Kimbrough, Jr. fixed up his house providing a place where people come to play horseshoes, dominos and cards. Sanders said he is known as uncle in the neighborhood. The night appellant brought Tiffany to his house Sanders said he was on the porch using the phone. Jr. was on the porch sitting on a chair. Appellant took the girl into the house, but Sanders did not see her. About fifteen to twenty minutes later, when appellant called to Sanders, he responded and entered the dining room. Appellant asked him for El Producto cigars, but Sanders told appellant that he did not have any and Sanders returned to the porch. Twenty or thirty minutes later as appellant was leaving, Sanders requested appellant to tell his cousin Omar to come by if appellant saw him. After appellant left, Sanders went into his house and was surprised to see Tiffany was still there. Tiffany told Sanders that she was waiting for appellant. Jr. volunteered to take Tiffany home. Sanders estimated that the total time that Tiffany was at his house was one hour to one and one-half hours. Sanders spent most of that time outside on the porch talking on the phone. Sanders denied touching Tiffany or having either oral sex or sexual intercourse with her. After Tiffany left his house, Sanders said he went to a bar and stayed until closing time. The defense rested for appellant, Curtis Sanders and William Kimbrough III. Defense counsel renewed motions for acquittal pursuant to Crim.R. 29 and closing arguments were made. As to appellant, the matter was submitted to the jury as follows: on count one, kidnapping; amended counts two and three, gross sexual imposition; and counts four, five on rape; and count eight, rape on the theory of aiding and abetting a rape. The jury returned verdicts of guilt as to appellant on counts one, two, three, four and eight and returned a verdict of not guilty on count five. At appellant's sentencing, the state dismissed the sexually violent predator specification on the counts for which he was found guilty, and after hearing the court classified appellant as a sexually-oriented offender as defined in R.C. 2950, et seq. Appellant was sentenced as follows: on appellant's conviction on count one, kidnapping, the trial court imposed a five-year term of imprisonment to run consecutively to two terms of mandatory non-probational life imprisonment as imposed on counts four and eight; for rape, which were to run concurrent to each other; and on counts two and three, gross sexual imposition, the court imposed a term of two years, each to run concurrent with each other and all other counts. Appellant timely appeals his convictions and advances three assignments of error for our review. I. THE TRIAL COURT IMPROPERLY RESTRICTED THE APPELLANT'S CROSS-EXAMINATION OF STATE WITNESSES. II. THE TRIAL COURT IMPROPERLY RESTRICTED THE DIRECT EXAMINATION OF THE APPELLANT AND THE APPELLANT'S CLOSING ARGUMENT. III. THE TRIAL COURT IMPROPERLY RESTRICTED THE APPELLANT'S RIGHT TO COMPULSORY PROCESS BY PROHIBITING A DEFENSE WITNESS FROM TESTIFYING. In each assignment of these assigned errors, appellant complains that the trial court restricted appellant's presentation of evidence. It is well-established that the admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St. 3d 173, 180. An abuse of discretion is more than an error of law and judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448, 451. A reviewing court "will not reject an exercise of this discretion unless it clearly has been abused and the criminal defendant thereby has suffered material prejudice." State v. Long (1978),53 Ohio St. 2d 91, 98. The record demonstrates that appellant was convicted of one count of kidnapping a minor with sexual motivation in violation of R.C. 2905.01(A)(4), which required the state to show beyond a reasonable doubt that appellant, by force or any means, removed Tiffany Gilson, a child under the age of thirteen, from the place where she was found and/or restrained her liberty for the purpose of engaging in sexual activity as defined in R.C. 2907.01 with her against her will. No demonstration of force is required to be shown. At trial, appellant admitted that he walked Tiffany from the Glenville Rec Center to Sanders' house with the intention of engaging in sexual activity with her. Further, appellant was convicted of two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), which consists of sexual contact with another, not his spouse, and less than thirteen years, whether or not the offender knows the age of the person. At trial, appellant conceded that he fondled and sucked Tiffany's breasts. Tiffany's testimony corroborated appellant's admission. Finally, appellant was convicted of two counts of rape in violation of R.C. 2907.02(B), which required the state to show that he engaged in sexual conduct with Tiffany by purposely compelling her to submit by use of force or threat of force. One of the two counts for which appellant was convicted was for appellant's aiding and abetting rape. The jury was properly instructed that force need not be openly displayed or physically brutal but can be subtle and psychological. If the victim's will was overcome by fear or duress the element of force has been proven. See State v. Fowler(1985), 27 Ohio App. 3d 149. In this case, Tiffany described two acts of appellant's sexual conduct with her when she claimed that appellant made her suck his penis and she claimed appellant placed his finger into her vagina. Moreover, Tiffany testified that she did not want to engage in sexual conduct with William Kimbrough, Jr.; Curtis Sanders; William Kimbrough III; or appellant; and Tiffany testified that she was in fear while she was in the gray house, the green house and the white car where each of the sexual assaults had occurred. In his first assignment of error, appellant complains that the trial court erred by improperly restricting his cross-examination of Patrolman Mitchell and William Kimbrough, Jr., thus mandating a new trial. Specifically, appellant complains that the court should have permitted Patrolman Mitchell to state whether the victim sustained bruises to her neck and should have permitted William Kimbrough, Jr. to testify as to the full benefits of his plea bargain and whether Kimbrough, Jr. ever forced Tiffany to do anything. The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him[.]" The right embodied by the Confrontation Clause applies to the states through the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas (1965), 380 U.S. 400, 406, 13 L. Ed. 2d 923,85 S. Ct. 1065. See, also, State v. Madison (1980), 64 Ohio St. 2d 322,325. The Ohio Constitution contains an analogous provision. Section 10, Article I states that "in any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel * * * [and] to meet the witnesses face to face[.]" Although cross-examination of a witness is a matter of right, the extent of such cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. State v. Green (1993), 66 Ohio St. 3d 141, 147,609 N.E.2d 1253, citing Alford v. United States (1931), 282 U.S. 687,691, 75 L. Ed. 624, 51 S. Ct. 218. "Cross-examination shall be permitted on all relevant matters and matters affecting credibility." Evid.R. 611(B). It is within the trial court's discretion to control the scope of cross-examination. State v. Woodard (1993), 68 Ohio St. 3d 70,78. "The trial judge is posited with broad discretion in controlling cross-examination, and the appellant has the burden to show a patent abuse of discretion." State v. Walker (1978),55 Ohio St. 2d 208, 214. Thus, a criminal defendant is not entitled to question an adverse witness in an unrestricted manner. A careful review of the record reveals that no basis existed in the record for a question to Patrolman Mitchell as no evidence was presented to show that Tiffany suffered any physical injury. Further, no prejudice to appellant can be shown by the restriction of any testimony regarding the lack of injury where the emergency room doctor testified that there were no signs of recent injury. Finally, as stated above, physical injury is not an element necessary to the finding of guilt for any of the offenses at issue in this matter. The record further demonstrates that the trial court properly balanced the conflicting interests relative to the cross-examination of the co-defendant William Kimbrough, Jr. when it considered that the jury be informed of his possible motives for testifying, but that the jury not consider punishment when deliberating as to the innocence or guilt of the defendants. Finally, our review of the record demonstrates that appellant's counsel thoroughly questioned William Kimbrough, Jr. as to the issue of force. Accordingly, we find no error in the rulings of the trial court relative to the cross-examination of witnesses at trial. Appellant's first assignment of error is without merit. In his second assignment of error, appellant complains that the trial court improperly restricted his direct examination and his closing arguments by denying him the opportunity to introduce relevant evidence. Specifically, appellant complains that he was precluded from answering whether he forced Tiffany to go with him, he was precluded from testifying as to what Tiffany told him, he was precluded from presenting the real reason that he did not have sex with Tiffany, and he was precluded from asserting during closing argument that he took Tiffany to Uncle's house after "they" had agreed to go there. First, as we have stated above, the use of force is not an element of kidnapping, thus rendering appellant's answer to the question irrelevant. Further, the line of questioning relative to what Tiffany told appellant constitutes hearsay and pursuant to Evid.R. 802 was properly excluded. Finally, a review of the record fails to disclose any abridgment of appellant's opportunity to present direct testimony as to his real reason for not having sex with Tiffany. Accordingly, we do not find any improper restriction by the trial court of appellant's direct examination, which denied appellant the opportunity to introduce relevant evidence. Appellant further complains that the trial court erred in sustaining the state's objection to the remark of his counsel during closing argument by which counsel indicated that appellant took Tiffany to Sanders' house after they had agreed to go there. The record demonstrates that conflicting evidence had been presented as to whether Tiffany agreed to accompany appellant. Thus, under the circumstances, the trial court should have permitted counsel's reference to the agreement of going to Sanders' house. However, counsel was able to remind the jury that appellant's testimony at trial and appellant's statement to the police indicated that Tiffany agreed to go to Sanders' house. It is well-settled that remarks made by counsel during opening statements and closing arguments are not evidence. The trial court properly instructed the jury that closing arguments is not evidence to be considered in the case. The jury is presumed to follow the instructions given by the trial judge. State v. Coleman (1999),85 Ohio St. 3d 129. Therefore, we presume that the jury considered the evidence as presented at trial and find any error in the trial court's limitation of counsel's closing argument on this issue to have been harmless error. Appellant's second assignment of error is without merit. In his third assignment of error, appellant contends that the trial court restricted his right to compulsory process when it refused to allow his mother to testify to rebut the testimony of Sgt. Charles Boddy of the Fugitive Task Force. Specifically, appellant complains that Sgt. Boddy's testimony implied that appellant must be guilty or he would have turned himself over to the police. Appellant asserts that the testimony which was excluded by the court would have shown that appellant wanted to turn himself over to the police. We find no abuse of the trial court's discretion in excluding a witness where the witness was not identified on appellant's witness list and the witness had remained in the courtroom during the testimony of Sgt. Boddy despite an order for separation of witnesses. Moreover, appellant makes no assertion that the excluded witness had any information relating to the circumstances concerning the crimes as charged to appellant. Appellant's third assignment of error is without merit. 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 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. ______________________________________ TIMOTHY E. McMONAGLE, PRESIDING JUDGE ROCCO, J. and BLACKMON, J., CONCUR.

2016-07-06 06:41:48.577784+00

OPINION This appeal emanates from the Lake County Court of Common Pleas. Appellant, West Channel Yacht Club, appeals the June 10, 1998 judgment entry awarding judgment in favor of appellees, James and Betty Turner, on appellant's complaint, and further, granting appellees punitive damages on their counterclaim. Additionally, appellant appeals the entry dated September 29, 1998, ordering appellant to pay appellees $8,000 in attorney fees.1 On May 31, 1995, appellant filed a complaint to quiet title and other relief against appellees alleging that it had been the equitable owner of a portion of property located at 35817 Lake Shore Boulevard in Eastlake, Ohio since 1972. Appellant agreed that appellees owned the property abutting that land since November 20, 1992. Appellant argued that for more than twenty-one years appellant used the area of the land that both parties claim to own in accordance with the elements of adverse possession. On June 21, 1995, appellee James Turner filed a counterclaim declaring ownership of the property and maintaining a cause of action for trespass. Appellees submitted discovery to appellant on December 9, 1996. After over nine months, and two motions to compel, on September 26, 1997, appellant filed its responses to the discovery. On October 10, 1997, appellant filed an amended complaint to include another party, Chagrin Lagoons Yacht Club, Inc. ("Chagrin Lagoons"), alleging that it may also have an interest in the property in question. Appellant submitted discovery requests to Chagrin Lagoons. On October 21, 1997, appellees proceeded to file an answer to the amended complaint, a counterclaim, and a third-party complaint against William and Malise Wiles ("Wiles"), the former owners of the property. Appellant replied to the counterclaim and the Wiles moved to dismiss the third-party complaint, which was denied. Meanwhile, appellant filed a motion for default judgment against Chagrin Lagoons, which was granted. The Wiles filed their answer to appellees' third-party complaint. On April 9, 1998, the Wiles moved for separate trials and the trial court granted the motion. Ultimately, the trial court dismissed appellees' third-party complaint against the Wiles. The following facts were adduced from the bench trial that started on May 1, 1998. Appellant, an Ohio corporation, was incorporated on March 10, 1972. On August 1, 1972, appellant entered into a land contract to procure property that abutted sublot 256 owned by appellees and located on West Island Drive in Eastlake. Both parties agreed that the most northerly point of the land was situated within the metes and bounds description of appellees' property. Yet, appellant claimed that the northern portion of the land, which is part of sublot 256, belonged to it through adverse possession. Sublot 256 passed through many owners from 1972 to 1992. In 1972, Thomas Cox owned sublot 256 and transferred ownership to Thomas Golenberke ("Golenberke"). Golenberke revealed that he conveyed the property to Wiles, who deeded the property to appellees in 1992. Appellees presented the testimony of numerous witnesses, who indicated that the northerly point of sublot 256 remained unchanged from 1972 until 1978. Additionally, appellee James Turner testified that he had been familiar with the property since 1966. He purchased sublot 256 in November 1992 and following the acquisition, he notified appellant, both orally and in writing, not to trespass on his property. He also introduced a letter he sent to appellant on May 25, 1993, informing appellant that it must pay for the use of the wall on the main channel of the river to dock boats belonging to club members. Subsequently on June 14, 1993, he sent another letter ordering appellant to immediately remove all docks and boats from his property. Thereafter, appellant's attorney forwarded correspondence to appellee James Turner stating that since appellant had openly and notoriously used the land for over twenty-one years, his rights were extinguished. Appellee James Turner further testified that he had the property surveyed, pins and flags put down to mark the property lines, and "no trespassing" signs placed on the property when he took over possession in 1992. Further, appellees demonstrated the expenses they incurred to present their case-in-chief. They retained a certified real estate appraiser, a surveyor, a title company to perform a title search, and an attorney to defend them against appellant's complaint. In a judgment entry dated June 10, 1998, the trial court dismissed appellant's action and ordered appellant to pay appellees $10,000 in punitive damages. Before determining the exact amount of compensatory damages, the trial court in its June 10, 1998 judgment entry, clearly indicated that such damages existed and continued the matter to determine the amount of the damages.2 From that judgment entry appellant timely filed a notice of appeal. On July 9, 1998, appellees filed a motion for attorney fees and a reimbursement of expert fees. In a judgment entry dated September 29, 1998, the trial court granted appellees' motion for attorney fees and awarded appellees $8,000. On October 13, 1998, appellant filed a motion to amend its notice of appeal with this court to include the September 29, 1998 judgment entry, which we granted. Appellant now asserts the following as error: "I. The trial court erred in finding that [appellant] had not used the property continuously for more than twenty-one years. "II. The trial court erred in finding appellant to be a trespasser after finding appellant's use of the disputed land was `permissive.' "III. The trial court erred in awarding appellee[s] more than nominal damages without evidence of actual damages being offered at trial. "IV. The trial court erred in awarding appellee[s] punitive damages. "V. The trial court erred in considering and allowing [appellees'] motion for attorney fees after a final judgment had been rendered in the case." In its first assignment of error, appellant contends that the trial court erred in finding that it had not continuously occupied the property in excess of twenty-one years. Specifically, appellant argues that it began its operation in 1972 and continuously possessed the land until 1993. The Supreme Court of Ohio has held, "[t]o acquire title by adverse possession, a party must prove, by clear and convincing evidence, exclusive possession and open, notorious, continuous, and adverse use for a period of twenty-one years." Grace v. Koch (1998), 81 Ohio St. 3d 577, syllabus. Generally, this court has disfavored the doctrine of adverse possession as a method of acquiring title to land, and thus, any adverse possession claim is construed strictly in favor of the titleholder. See, generally,Cannone v. Levy (Dec. 20, 1991), Trumbull App. No. 91-T-4560, unreported. In the case sub judice, appellant had the burden of proving by clear and convincing evidence the requisite elements of adverse possession. Appellant failed to demonstrate that it continuously possessed the land from 1972 until 1993. Although appellant was incorporated in March 1972, it did not acquire the property until August 1, 1972. Furthermore, appellant did not present any evidence proving that it continuously used sublot 256 from 1972 to 1993. After appellant acquired its property, the record does not reveal that it immediately began a course of occupation and ownership sufficient to establish adverse possession. Moreover, appellees offered evidence that showed that appellant did not install the boat docks until about 1984. Appellees also introduced the testimony of a few witnesses who recalled that the portion of sublot 256 in question was under water until the late 1970's. These witnesses also recalled that for the first several years appellant was in operation, the property remained unchanged. Appellees demonstrated that one of the previous owners of sublot 256 entered into negotiations with appellant to discuss appellant's plan to construct a retaining wall in exchange for membership to the yacht club. After appellant denied this offer, it was never granted permission to construct the retaining wall. This was outlined in a letter from the attorney who represented the then-owner of sublot 256. Thus, appellant has failed to meet its burden of proof and did not establish by clear and convincing evidence that it met all the requirements of adverse possession. Appellant's first assignment of error lacks merit. In its second assignment of error, appellant avers that the trial court mistakenly classified it as a trespasser even though the trial court concluded that its use of the land was permissive. This court has stated that "every unauthorized entry onto another's property is a trespass. One who goes upon the premises of another without invitation, express or implied, and for his orher own purpose, is a trespasser." (Emphasis sic.) Warren v.Owens (June 27, 1997), Trumbull App. No. 96-T-5480, unreported, at 4-5, quoting Dayton v. Gigandet (1992), 83 Ohio App. 3d 886, 890. In the case at bar, appellant alleges that the individuals who owned the land before appellees gave appellant permission to enter the land. However, two of the previous owners of sublot 256 testified at the trial. One of them stated that he objected to the installation of the retaining wall on the property, while the other stated that he did not care. The Supreme Court of Ohio has stated that "[a] use of premises permissive in the beginning can be changed to one which is hostile and adverse only by the most unequivocal conduct on the part of the user * * *." Hinman v.Barnes (1946), 146 Ohio St. 497, paragraph two of the syllabus. Hence, although one of the previous owners may have consented to appellant's presence on the land, the record reveals that appellee James Turner sent two letters requesting that appellant either pay him some money or quit trespassing on his property. Appellee James Turner's testimony confirmed that appellant was made aware of this both verbally and in writing, and therefore, appellant committed a trespass on the land. Appellant's second assignment of error is not well-taken. As appellant's third and fourth assignments of error are interrelated, they will be addressed in a consolidated manner. Appellant claims that the trial court awarded appellees more than nominal damages without any evidence of actual damages, and further, that the trial court erred in awarding appellees punitive damages. Damages are available in every case of trespass. Pearl v. PicWalsh Freight Co. (1969), 112 Ohio App. 11, 12. "It is well-settled Ohio law that once a party proves that he has been trespassed against that party has a right to nominal damages without specifically proving actual damages." Fairfield CommonsCondominium Assn. v. Stasa (1985), 30 Ohio App. 3d 11, 20. The measure of damages must be gauged against the rental value or the reasonable rental value of the use of the property during the time the owner was deprived of his or her property. Pearl, supra, unreported, at 15. Thus, even if an individual actually benefited by the act of the trespasser, the individual is still entitled to at least nominal damages. Id. at 14. In the instant matter, since we concluded in the second assignment of error that appellant committed a trespass against appellees, damages are available. The fact that appellant may have used the property from 1984 to 1992 with the permission of previous owners has nothing to do with appellees. Appellant claims that it also cleaned up the property and installed a retaining wall. However, after appellees purchased sublot 256, they placed "no trespassing" signs on their property and informed appellant, both verbally and in writing, that they did not want appellant on their property. According to appellee James Turner, appellant spoiled the property by removing trees, disregarding appellees' signs, and denying them the use and enjoyment of their property. Therefore, appellant's argument that it enhanced the value of appellees' land is not well-founded. Additionally, it appears that appellant was not prejudiced by appellees' evidence of physical damage since the trial court's award of compensatory damages was confined to the rental value of the boat dockage. Hence, we conclude that the amount of compensatory damages the trial court awarded for the trespass was proper. Furthermore, although punitive damages do not serve a compensatory purpose, they are intended to serve as a punishment for the offender and a warning to others. Foust v. ValleybrookRealty Co. (1981), 4 Ohio App. 3d 164, 168. Punitive damages are recoverable where the trier of fact finds that the tortious actions of a defendant, giving rise to the cause of action, were taken with actual malice, through conduct that may be characterized as reckless, wanton, willful, or gross. Villella v.Waikem Motors, Inc. (1989), 45 Ohio St. 3d 36, 37. In addition, punitive damages may be awarded in cases involving fraud, malice or insult. Griffin v. Lamberjack (1994), 96 Ohio App. 3d 257, 263. The amount of punitive damages to be granted lies largely within the discretion of the trial court. Okocha v. Fehrenbacher (1995),101 Ohio App. 3d 309, 324. Such award will not be reversed "unless it is based upon passion and prejudice." Id. We also note that in Savage v. Thomas (Aug. 18, 1995), Lake App. No. 94-L-062, unreported, this court upheld the trial court's punitive damage award over the tortfeasor's challenge that he did not trespass knowingly. The plaintiff in Savage alleged that the defendant trespassed on her land while constructing a home on adjoining land and that the trespass had destroyed certain vegetation and changed the grading of the plaintiff's land. In addressing the defendant's assertion that the trial court erred when it instructed the jury on punitive damages, the Savage court wrote the following: "* * * [Defendant-]appellee contends that there was no evidence of conscious wrongdoing. However, evidence was adduced which demonstrated that appellee had been told to stay off the property and not to clear the property by a person who purported to own the property, but that encroachments onto the property continued. "Appellee is correct in his contention that malice cannot include mere reckless conduct. * * * `[A]ctual malice requires consciousness of the near certainty (or otherwise stated "great probability") that substantial harm will be caused by the tortious behavior.' "* * * [I]t is clear that * * * appellee consciously disregarded a great probability that his conduct would result in substantial harm to appellant's property." Id. at 6-7. In the case at hand, after a careful review of the record, we conclude there was sufficient credible evidence to support the trial court's conclusion that appellant willfully and intentionally trespassed against appellees, and that by doing so, appellant disregarded the likelihood that its conduct would result in substantial harm to appellees' property. Therefore, the trial court properly awarded punitive damages. Thus, appellant's third and fourth assignments of error are without merit. In its fifth assignment of error, appellant maintains that the trial court erred in permitting appellees' motion for attorney fees after a final judgment had been rendered. This court has held that "under the doctrine of the law of the case, a lower court is free to change its rulings on all issues not complained of upon appeal and not previously decided as finally settled." Bodo v.Nationwide Ins. Co. (1991), 75 Ohio App. 3d 499, 505. Furthermore, in Okocha, 101 Ohio App.3d at 323, the Eighth District Court of Appeals relied on Bodo in holding that a trial court had the jurisdiction to award attorney fees after a notice of appeal was filed since the issue of attorney fees had not been decided at the time the notice of appeal was submitted. "An award of attorney fees is discretionary with the trial court, and we will not disturb that award unless the court has abused its discretion in making it." Sprovach v. Bob Ross Buick, Inc. (1993), 90 Ohio App. 3d 117,123. In the case at bar, appellees' counterclaim set forth a demand for attorney fees. Further, the testimony presented at the trial indicated the amount appellees incurred in attorney fees. However, in its June 10, 1998 judgment entry, the trial court failed to address the question of attorney fees. Thus, initially the issue had not been raised on appeal, nor had the trial court previously decided it. Accordingly, the trial court did not abuse its discretion. The award of attorney fees was appropriate. Appellant's fifth assignment of error lacks merit. For the foregoing reasons, appellant's assignments of error are not well-taken. The judgment of the Lake County Court of Common Pleas is affirmed. CHRISTLEY, J., NADER, J., concur. 1 This court discovered that one claim was not finalized by the trial court, so the matter was remanded to the trial court. In compliance with this court's order, the trial court issued a September 29, 1999 judgment entry. Pursuant to that entry, we now have a final appealable order. Therefore, appellant's notice of appeal filed July 8, 1998 will be considered a premature appeal as of September 29, 1999. 2 In its September 29, 1999 judgment entry, the trial court awarded appellees $2,826 in rental value as compensatory damages.

2013-10-30 07:40:44.086405+00

Brown

184 B.R. 902 (1995) In the Matter of Houston David HUGHES, Sr., Debtor. Robert E. TILLERY, Plaintiff, v. Houston David HUGHES, Sr., Defendant, FIRST UNION NATIONAL BANK OF NORTH CAROLINA, Plaintiff, v. Houston David HUGHES, Sr., Defendant. Bankruptcy No. 94-10665-JAB. Adv. Nos. 94-1127, 94-1129. United States Bankruptcy Court, E.D. Louisiana. July 18, 1995. *903 Merrill T. Landwehr, Landwehr & Hof, New Orleans, LA, for defendant/debtor. Xenia H. Tillery, Baton Rouge, LA, for Robert E. Tillery. Edward Arnold, III, Adams & Reese, New Orleans, LA, for plaintiff/First Union Nat. Bank of North Carolina. MEMORANDUM OPINION JERRY A. BROWN, Bankruptcy Judge. This adversary proceeding was tried on March 3, 1995 on the consolidated complaints of First Union National Bank of North Carolina ("First Union") and Robert E. Tillery ("Tillery") objecting to the debtor's discharge under various subsections of Section 727 of the Code, 11 U.S.C. § 727. At the conclusion of the trial, the court found in favor of the debtor/defendant as to the portions of the complaints relating to Section 727(a)(5), and dismissed those portions of the complaint. The remaining grounds for discharge were taken under advisement. At issue, therefore, are the plaintiffs' complaints objecting to the debtor's discharge under Section 727(a)(2), (a)(3), and (a)(4). After reviewing the pleadings, the evidence at trial, and the arguments of counsel, the court makes the following determinations.[1] I. FACTS A. Procedural background. 1. On March 2, 1994, the debtor, a practicing dentist, filed a voluntary petition under Chapter 7. He also filed a Statement of Financial Affairs and Schedule of Assets and Liabilities signed under penalty of perjury. On May 24, 1994, a Rule 2004 Examination was conducted of the debtor by First Union and Tillery, creditors and plaintiffs in this adversary proceeding. On June 6, 1994, First Union timely filed a complaint to deny debtor's discharge. On the same day, Tillery filed a similar complaint also seeking to deny the debtor's discharge under Section 727. On June 27, 1994, the debtor filed an Amendment to Schedules amending Schedule "F" and the Summary of Schedules to include James H. Brown as a creditor holding an unsecured non-priority claim in the amount of $705,325.39. Pursuant to a minute entry dated August 10, 1994 the above-referenced adversary proceedings were consolidated for trial purposes only. *904 B. Debtor's history of transfers and/or concealment of property. 2. A review of the petition, the Statement of Financial Affairs and Schedule of Assets and Liabilities filed by the debtor would lead one to believe that the debtor was a self-employed dentist operating as a sole proprietor with no assets, who resided in Metairie, Louisiana in a rented residence, drove a rental car, and had no income except that from corporations which paid his living expenses. A closer examination, however, of all the facts reveals a totally different picture. 3. First Union is the successor in interest to Northwestern Bank and is a creditor of the debtor's estate pursuant to a judgment rendered by the Superior Court for the County of Burke, State of North Carolina on September 1, 1981 in the principal amount of $39,000 together with interest thereon at the rate of 12% per annum from November 9, 1979, until paid together with a sum equal to 15% additional on both principal and interest due as attorney's fees, and costs. (Pl. 8, Pre-Trial Order, Statement of Uncontested Material Fact No. 2 (hereinafter designated as "Uncontested Fact"); P.Ex. 33.) 4. Tillery is a creditor of the debtor's estate pursuant to a judgment rendered by the 21st Judicial District Court for the State of Louisiana on December 11, 1986 in the principal amount of $15,521.43 together with interest at the rate of 12% per annum from October 27, 1986, plus costs. (Uncontested Fact No. 4; P.Ex. 2). 5. On July 27, 1979, the debtor and his former spouse transferred the property at 25602 Colonial Drive, Denham Springs to H. David Hughes, D.D.S., a Professional Corporation. Plaintiff's Exhibit 5; Testimony of H.D. Hughes at p. 129. The debtor continued to live at that address until at least eight months prior to the filing of the bankruptcy petition. 6. This professional corporation is listed in the debtor's schedules under Item 12 of Schedule B with an interest of "0.00". (P.Ex. 37). The debtor's testimony with respect to the ownership of the stock in this entity is vague. (Pl. 18, Transcript of March 3, 1995 ("Trans.") at 127-128). 7. The records of the Louisiana Secretary of State reflect that at the time of filing the debtor was an officer for that entity. (P.Ex. 36). At the trial, the debtor testified that it was possible that he was still listed as an officer of that entity. (Trans. at 122). 8. This entity also owns the property described in Plaintiff's Exhibit 30 which includes the real property identified as municipal number 1310 S. Range, Denham Springs and numerous items of movable property incidental to the practice of dentistry. (P.Ex. 30; Trans. at 131-32). 9. The office building at 1310 S. Range is the location in which the debtor has provided dental services for several entities through purported consulting agreements. (Trans. at 77-82 and 132). 10. Associated Family Dentistry, Inc. is a Louisiana corporation which was incorporated by the debtor in 1985. Uncontested Fact No. 15. 11. Prior to September of 1994 the debtor was the president and agent for service of process for Associated Family Dentistry, Inc. Uncontested Fact No. 13. 12. All of the debtor's personal living expenses including clothing, meals, entertainment, transportation, household, and tuition expenses are paid for by third parties including Associated Family Dentistry, Inc. Uncontested Fact No. 17. 13. At the time of filing, the debtor owned one share of Associated Family Dentistry, Inc. Uncontested Fact No. 14. The remaining shares as of the date of filing were owned by the debtor's second wife, Tina Farachi Hughes. Id. At trial the debtor attempted to contradict this uncontested issue of material fact and denied any ownership of stock in Associated Family Dentistry, Inc. (Trans. at 152). The court does not find this testimony credible and does not accept the denial. 14. H. David Hughes, D.D.S., a Professional Corporation, is also the record owner of the real property identified by municipal address 8196 Hermitage, Denham Springs *905 which is currently occupied by the debtor's former wife, Gloria McDuffy Hughes. (Trans. at 130; P.Ex. 4). 15. The debtor has never entered into a community property settlement with his first wife, Gloria McDuffy Hughes. (Trans. at 130-131). 16. The debtor testified that he was providing dental services to patients of Affiliated Family Dentistry, Inc. at the 1310 S. Range location pursuant to a consulting agreement with Products Marketing, Inc. and Management Company, a Cayman Islands Corporation, which agreement had been assigned to Enregle, an Arizona Trust, and then assigned again to Affiliated Family Dentist, Inc. (Trans. at 86). 17. Under the debtor's so called consulting agreements, all of the debtor's personal living expenses are either paid for or reimbursed by third parties. The debtor for at least the past ten years has received no reported salary or wages from any person or entity as a consequence of his providing professional dental services. (Uncontested Fact No. 11; Trans. at 77-82). 18. The debtor's testimony with respect to the consulting agreements is contrary to the testimony of the debtor's accountant and the debtor's tax returns. The debtor's accountant, whose testimony was submitted pursuant to deposition, clearly testified that the tax returns of the debtor were prepared as a sole proprietorship and that the corporate entities of Associated Family Dentistry, Inc. and H. David Hughes, D.D.S., A Professional Corporation, were totally disregarded. (P.Ex. 50, Deposition of Robert Slokum at 12-15). A review of the tax returns clearly shows that the debtor took mortgage interest deductions with respect to the property located at 25602 Colonial Drive and 8196 Hermitage. Additionally, the debtor paid self-employment taxes for 1991, 1992, and 1993. (P.Ex. 49). C. Debtor's failure to keep sufficient records. 19. The debtor maintains no receipts, records, or ledgers with respect to his personal living expenses which were paid for by third parties. Uncontested Fact No. 12. 20. In response to a request for documents in connection with a Rule 2004 examination, the debtor produced three documents which were copies of tax returns for the calendar years 1991, 1992, and 1993. The tax returns were admitted into evidence as Plaintiff's Exhibit No. 9. Subsequently, three additional documents were forwarded to counsel for the plaintiff on February 23, 1995 and admitted into evidence as Plaintiff's Exhibit No. 42. These six documents were the only documents produced by the debtor prior to trial. 21. On October 25, 1994, a joint deposition of Associated Family Dentistry, Inc. was noticed by First Union and Tillery pursuant to Federal Rule of Civil Procedure 30(b)(6). In connection with that deposition, a subpoena for records of Associated Family Dentistry, Inc. was properly served upon the debtor as agent for service of process of Associated Family Dentistry, Inc. Uncontested Fact No. 9. While the debtor did appear at the deposition and answer questions, no documentation was produced in connection with that testimony. (Trans. at 26). 22. The only other documents produced at any time were certain business records of Associated Family Dentistry, Inc. intended to be offered as exhibits at trial which primarily consist of bank statements and receipts of Associated Family Dentistry, Inc. purporting to be expenses of the debtor. These records are not complete and do not fulfill the debtor's requirement with respect to the maintenance of books and records sufficient from which the court or the debtor's creditors can reconstruct the debtor's financial affairs with substantial completeness and/or accuracy. 23. The debtor failed to produce any other documentation or information with respect to his relationship to Dr. Tyronne G. Clark & Associates, Denta-Care, a Professional Dental Corporation, or Associated Family Dentistry, Inc. H. David Hughes, D.D.S., a Professional Corporation. The debtor further failed to provide any information with respect to a comprehensive settlement agreement entered into with the Internal Revenue *906 Service on the eve of the bankruptcy filing. Only upon the post-petition discovery and subsequent demand by the plaintiffs with respect to releases of federal tax liens was any information provided. A review of the information provided by the debtor to the plaintiffs clearly shows that it is incomplete and that it does not reflect any acceptance on the part of the Internal Revenue Service. 24. The debtor has also failed to maintain sufficient information to explain the basis for the tax returns produced by the debtor for the calendar years 1991, 1992, and 1993. The tax returns produced by the debtor in connection with the 2004 examination, Plaintiff's Exhibit 9, were altered to delete the debtor's address for two years and to consolidate certain income apparently reported on Schedule E into Schedule C income. (See P.Ex. 49 compared with P.Ex. 9). Schedules C and SE with respect to all the above-referenced years were never produced by the debtor, although the returns provided by the debtor's accountant included the schedules. (P.Ex. 49; Trans. at 93-40). The debtor could not explain either the alterations or the sources of income which were affected. D. Debtor's false oath. The debtor's schedules include several material omissions as follows: 25. He failed to list his involvement in Tyronne G. Clark & Associates, Denta-Care, A Professional Dental Corporation. Within the reporting period required by the Code, the debtor was the secretary of that entity and also functioned as its CEO. (Trans. at 49-51). Within the reporting period required by the Code, this entity was the subject of extensive litigation and an order of rehabilitation issued by the Commissioner of Insurance for the States of Louisiana. (P.Ex. 29). The Commissioner of Insurance had also filed suit against the debtor which included allegations of theft. (P.Ex. 2). The debtor's own testimony reveals that this omission was intentional as it was based upon information from prior counsel that the lawsuit was non-dischargeable. (Trans. at 35, 37, 95, 100). 26. The debtor failed to list several other lawsuits to which the debtor was a party involving James H. Brown as Commissioner of Insurance, Tyronne G. Clark & Associates, Denta-Care, and/or Samuel Gray Hodges and Arriba Investments. These lawsuits include the suits referenced in the Plaintiff's Exhibits 2, 8, 10, 17, and 29. 27. Debtor failed to correctly list his address at the time of the filing of the Chapter 7 petition. The petition lists his address as 5100 Haring, Metairie, Louisiana. (Case No. 94-10665-JAB, Pl. 1). Other than the petition and the 1993 tax return prepared post-petition, no other documents reflect or evidence this address as being the debtor's residence. (Trans. at 33-34). To the contrary, all of the other documentation evidences that the debtor's address prior to the filing of the bankruptcy petition was 25602 Colonial Drive, Denham Springs which is in Livingston Parish, Louisiana. This evidence includes telephone listings, driver's license information, and expense items submitted in the debtor's own exhibits. (Trans. at 37, 67-68). Copies of pleadings filed in state court suits show debtor's domicile as of October 4, 1993 and July 11, 1994 was in Livingston Parish, Louisiana. (P.Ex. 8 and 10). A release of tax lien and offers of compromise with the IRS show debtor's address as being in Denham Springs. (P.Ex. 41 and 42). 28. The debtor claimed he resided at 5100 Haring Court in Metairie for eight months prior to the date of filing and admitted that he moved there for the purpose of establishing residency in order to file bankruptcy in New Orleans. (Trans. at 31, 35). 29. Even if the court ignored all the other evidence and accepted the debtor's contention that he was really domiciled in the New Orleans area rather than Livingston Parish, there is no explanation or excuse for the debtor not listing the previous address he had in Livingston Parish in his statement of financial affairs. Item 15 of the statement of financial affairs lists as a prior address only an address in Florida. (P.Ex. 37). 30. The debtor failed to disclose any and all entities with whom he has purportedly operated under consulting agreements within the applicable pre-petition period required by the Code. The debtor's testimony with respect *907 to his consulting agreement is contrary to the statements in the debtor's schedules that he is self-employed. (P.Ex. 37 at 1). The schedules as filed by the debtor do not indicate any sources of income from any other third party. 31. The debtor failed to list other corporation or entities in which he has been an officer or director within the two years prior to the filing of the bankruptcy petition including: Associated Family Dentistry, Inc.; H. David Hughes, D.D.S., A Professional Corporation; Dr. Tyronne G. Clark and Associates, Denta-Care, A Professional Dental Corporation; Drs. Hughes, Teel, and Benton, Inc.; H. David Hughes, a Professional Corporation; Associated Family Dentistry, A Professional Dental Corporation; Inuco; and Products Marketing, Inc. and Management Company. (See P.Ex. 15, 16, 29, 35, and 36; Trans. at 133). 32. The debtor checked "none" on the financial affairs statement calling for information as to safety deposit boxes (P.Ex. 37), thus failing to disclose a safety deposit box maintained at the Hibernia National Bank in the debtor's name. (Trans. at 107). 33. The debtor failed to list his ownership of the trade name Denta-Care. (Trans. at 104, 106). 34. The debtor failed to disclose his interest in the Enregle Trust which he describes as a "shell trust" that he does not own, but does "own the use of". (Trans. at 142-44). 35. The debtor failed to correctly list his accountants. (Trans. at 146; P.Ex. 37). 36. The debtor failed to list as an executory contract the lease he had assumed on the Mercedes automobile that debtor drives. (Trans. at 185-86). II. ANALYSIS A. Burden of proof The elements of an objection to discharge under Section 727 must be proved by a preponderance of the evidence. In re Beaubouef, 966 F.2d 174, 178 (5th Cir.1992). See Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991). B. Section 727 The defendants seek denial of the debtor's discharge under 11 U.S.C. § 727(a)(2), (a)(3), and (a)(4). These sections provide in pertinent part: (a) The court shall grant the debtor a discharge, unless — (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed — (A) property of the debtor, within one year before the date of the filing of the petition; ... (3) the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, ..., from which the debtor's financial condition or business transactions might by ascertained, unless such act or failure to act was justified under all of the circumstances of the case; (4) the debtor knowingly and fraudulently, in or in connection with the case — (A) made a false oath or account; . . . . . Application of the foregoing law to the above facts convinces the court that the debtor should be, and is, denied a discharge under all three subsections of Section 727. C. Section 727(a)(2)(A) — intent to defraud, transfer property of the estate The purpose of Section 727(a)(2) is to deny a discharge to those debtors who, intending to defraud, transfer property which would have become property of the bankrupt estate. In re Chastant, 873 F.2d 89, 90 (5th Cir.1989). The creditor must prove four elements for a discharge to be denied under Section 727(a)(2)(A) as follows: (1) a transfer of property; (2) belonging to the debtor; (3) within one year before the filing of the petition; (4) with intent to hinder, delay, or *908 defraud a creditor or officer of the estate. Id. Evidence of actual intent to defraud creditors is required to support a finding sufficient to deny a discharge. Constructive intent is insufficient. Id. at 91. Actual intent, however, may be inferred from the actions of the debtor and may be proved by circumstantial evidence. Id. at 91. On its face, Section 727(a)(2)(A) addresses only transfers or concealment of property occurring within a year before the filing of a bankruptcy petition. However, the doctrine of continuing concealment provides that the continuation of a concealment of an interest in an asset that continues, with the requisite intent, into the year prior to the bankruptcy filing constitutes a concealment within the reach of Section 727(a)(2)(A). In re Olivier, 819 F.2d 550, 555 (5th Cir.1987); In re Kauffman, 675 F.2d 127, 128 (7th Cir.1981); In re Penner, 107 B.R. 171, 173 (Bankr.N.D.Ind.1989). Circumstantial evidence and/or inferences drawn from the debtor's course of conduct can support a finding that the debtor has acted with intent to hinder, delay or defraud his creditors. In re Chastant, 873 F.2d at 91; Oldendorf v. Buckman, 173 B.R. 99, 106 n. 9 (E.D.La.1994). The retention of the use of transferred property very strongly indicates a fraudulent motive underlying the transfer. In re Olivier, 819 F.2d at 553, quoting, EFA Acceptance Corp. v. Cadarette (In re Cadarette), 601 F.2d 648, 651 (2nd Cir.1979). In this case, the plaintiffs have proved sufficient facts from which the court can conclude that the debtor concealed and/or transferred the properties at 25602 Colonial Drive, 1310 S. Range, and 8196 Hermitage, Denham Springs to H. David Hughes, D.D.S., a Professional Corporation, with intent to defeat the collection efforts of First Union and Tillery. The debtor's entire course of conduct evidences an intent to hinder, delay, or defraud these two judgment-creditors as well as other creditors. The continued use of two pieces of property by the debtor and continued use of the other parcel by the debtor's first wife is strong evidence of the intent to defraud. The debtor's enjoyment of the benefits of ownership of these properties and concealment of his true stock ownership and control of the professional corporation that was the record owner continued concealment into the one year period prior to the filing of the petition. This was an elaborate scheme concocted years ago and perpetuated over a period of years by the debtor. As early as 1985 several corporations were recognized by Judge Parker as alter egos of the debtor. After that the debtor created other entities that he controlled. Large amounts of funds were funnelled through a maze of corporate entities but the net benefit accrued to the debtor. All of this was a more sophisticated and more egregious concealment than the case of In re Olivier, 819 F.2d 550 (5th Cir.1987), involving transfer of a house seven years before filing with a continued retention of a secret beneficial interest, in which the Fifth Circuit held that the continuing concealment doctrine would be followed in discharge cases under Section 727(a)(2)(A). D. Section 727(a)(3) — failure to keep sufficient records Under 11 U.S.C. § 727(a)(3), a debtor may not be granted a discharge if the debtor's financial records do not enable the court to evaluate the debtor's current financial condition and reconstruct the debtor's business transactions for a reasonable period of time with substantial completeness and accuracy. In re Bailey, 145 B.R. 919, 924 (Bankr. N.D.Ill.1992); In re Hubbard, 96 B.R. 739, 741 (Bankr.W.D.Tex.1989). The purpose of this section of the Code is to give the trustee, creditors, and the court complete and accurate information concerning the status of the debtor's affairs and financial history, and to test the completeness of the debtor's disclosure requirements to a discharge. Miller v. Pulos (In re Pulos), 168 B.R. 682, 690 (Bankr.D.Minn.1994). The debtor's intent is irrelevant with respect to a Section 727(a)(3) objection to discharge. Id. The disclosure of the debtor's financial condition is a prerequisite to obtaining a discharge. Id., citing, Meridian Bank v. Alten, 958 F.2d 1226, 1230 (3rd Cir.1992). The Code does not require *909 an impeccable system of bookkeeping, but does require that the records maintained sufficiently identify transactions so that intelligent inquiry can be made. Id. The completeness and accuracy of a debtor's records are determined on a case-by-case basis, taking into account the size and complexity of a debtor's business. In re Bailey, 145 B.R. at 924. The court has reasonably wide discretion in determining whether the debtor's books and records are sufficient to trace the debtor's financial history. In re Dias, 95 B.R. 419, 422 (Bankr.N.D.Tex.1988). The plaintiff seeking denial of discharge has the burden of proving the inadequacy of the debtor's records. Miller v. Pulos (In re Pulos), 168 B.R. at 690. Once the plaintiff has shown that the debtor's records are inadequate, the burden then shifts to the debtor to prove that the failure to keep adequate records was justified under the circumstances. Id. If the lack of records is not adequately explained, the debtor is not entitled to a discharge. Id. The debtor in this case is a licensed pharmacist, real estate agent, dentist, and a well-educated, sophisticated businessman. His explanation as to why better records were not kept lacks plausibility. For example, the debtor's testimony that he omitted information as to the lawsuit by the insurance commissioner on advice of his prior counsel as to the non-dischargeability of such debts falls on deaf ears. The debtor's reliance upon prior counsel is misplaced. See In re Tully, 818 F.2d 106, 111 (1st Cir.1987) (Reliance upon advice of counsel is no defense where it should have been evident to the debtor that the assets ought to be listed in the schedules). The creditors of this estate are entitled to know about the pendency of all actions within the applicable period. In re Tully, 818 F.2d at 111. ("A petitioner cannot omit items from his schedules, force the trustee and the creditors, at their peril, to guess that he has done so — and hold them to a mythical requirement that they search through a paperwork jungle in the hope of finding an overlooked needle in a documentary haystack.") The other failures to keep, or failure to furnish, records detailed in Findings of Fact Nos. 19-24, supra, at 905-906, prove by a preponderance of the evidence that debtor should be denied a discharge under Section 727(a)(3). E. Section 727(a)(4) — false oath In order to prevail under section 727(a)(4)(A), the creditor must prove: (1) the debtors made a statement under oath; (2) the statement was false; (3) the debtors knew the statement was false; (4) the debtors made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case. In re Beaubouef, supra at 178; In re Dunbar, 99 B.R. 320, 322 (Bankr.M.D.La.1989). The success of the bankruptcy system hinges upon a debtor's veracity and willingness to make full disclosure. Owensboro National Bank v. Gipe (In re Gipe), 157 B.R. 171, 178 (Bankr.M.D.Fla.1993). "Neither the trustee nor the creditors should be required to engage in a laborious tug-of-war to drag the simple truth into the glare of daylight". In re Tully, 818 F.2d at 110. False oaths sufficient to justify denying a discharge include: (1) a false statement or omission in the debtor's schedules or (2) a false statement by the debtor at an examination during the course of the proceedings. In re Beaubouef, 966 F.2d 174, 178 (5th Cir.1992); 4 Collier on Bankruptcy ¶ 727.04, at 727.59 (15th ed. 1995). The subject matter of a false oath is "material" and thus sufficient to deny discharge if it bears a relationship to the debtor's business transactions or estate, or concerns the discovery of assets, business dealings, or the existence or disposition of his property. In re Chalik, 748 F.2d 616, 618 (11th Cir.1984), citing, In re Steiker, 380 F.2d 765, 768 (3rd Cir.1967). The purpose of Section 727(a)(4)(A) is to ensure that adequate information is available to those interested in the administration of the bankruptcy estate without the need of the examinations or investigations to determine whether the information provided is true. Oldendorf v. Buckman, 173 B.R. at 104. Even if assets are worthless or invaluable to creditors, the debtor has an obligation *910 of full disclosure. Id. at 105. Furthermore, the existence of more than one falsehood, together with the failure to clear up all the inconsistencies when filing amended schedules, may constitute reckless indifference to the truth, and, therefore, the requisite intent to deceive. Id. As noted by the court in the case of In re Chalik, 748 F.2d at 618, "[t]he recalcitrant debtor may not escape a section 727(a)(4)(A) denial of discharge by asserting that they admittedly omitted or falsely stated information concerning a worthless business relationship or a holding; such a defense is specious". The debtor's failure to disclose his business involvement with several corporations, failure to list numerous lawsuits, failure to list his correct address, and other failures enumerated in Findings of Fact Nos. 25-36, supra, at 906-907, are material to a determination of the debtor's true financial condition. The cumulative effect of all these initial omissions, and the failure to clear up the various lawsuits with the filing of the amended schedules, evidence a reckless disregard for the truth and furnish the requisite intent to deceive. This disregard was simply reinforced by the debtor's testimony at trial. The evidence shows a knowing and fraudulent making of a false oath or account prohibited by Section 727(a)(4). III. CONCLUSION A finding sufficient to justify denial of a discharge under any one of the subsections of Section 727 is sufficient to deny a discharge. In re Beaubouef, 966 F.2d at 177; In re Reed, 700 F.2d 986 (5th Cir.1983); Oldendorf v. Buckman, 173 B.R. at 104. After a full review of the evidence, and considering the debtor's lack of credibility in his various explanations, the court is convinced that the debtor should be denied a discharge on all three grounds. A central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy "a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt". Grogan v. Garner, 111 S.Ct. at 659. This "fresh start" policy is to be limited to the "honest but unfortunate debtor". Id. This debtor does not fall within that class of honest debtors entitled to a discharge. His discharge is therefore denied under Sections 727(a)(2)(A), (a)(3), and (a)(4). Judgment will be entered in accordance with this memorandum opinion. JUDGMENT For the reasons assigned in the foregoing memorandum opinion issued this date, accordingly, IT IS ORDERED, ADJUDGED, AND DECREED that judgment be entered in favor of the plaintiffs, Robert E. Tillery and First Union National Bank of North Carolina, and against the debtor, Houston David Hughes, Sr., on the complaints of Robert E. Tillery and First Union National Bank of North Carolina objecting to the debtors' discharge under 11 U.S.C. § 727. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the discharge of Houston David Hughes, Sr. be and it hereby is DENIED pursuant to 11 U.S.C. §§ 727(a)(2)(A), (a)(3), and (a)(4). NOTES [1] This memorandum opinion constitutes the court's findings of facts and conclusions of law in accordance with Bankruptcy Rule 7052. The court has jurisdiction over this matter under 28 U.S.C. § 1334. The matter is a core proceeding under 28 U.S.C. § 157(b)(2).

2016-07-06 06:41:48.66109+00

Appellant George Crose is appealing the decision of the Richland County Court of Common Pleas which found him to be a "sexual predator" as defined in R.C. 2950.01(E). The following facts give rise to this appeal. In 1993, appellant was sentenced to two years on one count of gross sexual imposition. After the enactment of Ohio's version of Megan's Law, in R.C. Chapter 2950, the warden of the Ohio penal institution where appellant is incarcerated recommended that appellant be classified a "sexual predator". The trial court conducted the classification hearing on August 5, 1997. At this hearing, the trial court considered appellant's constitutional challenges to R.C. Chapter 2950. The trial court proceeded to overrule appellant's constitutional challenges to the statute and found appellant to be a "sexual predator". Appellant timely filed his notice of appeal and sets forth the following assignments of error for our consideration: I. THE IMPOSITION OF SEXUAL PREDATOR STATUS TO THE DEFENDANT-APPELLANT WAS IN VIOLATION OF ARTICLE I, SECTION 9 IN THE US CONSTITUTION AND ARTICLE I, SECTION 28 OF THE OHIO CONSTITUTION PROHIBITING APPLICATIONS OF LAWS EXPOST (SIC) FACTO. II. DEFENDANT-APPELLANT'S RIGHT NOT TO BE PLACED TWICE IN JEOPARDY WAS VIOLATED WHEN HE WAS PUNISHED FOR A SECOND TIME A YEAR LATER FOR HIS OFFENSE. I Appellant contends, in his first assignment of error, the retroactive provisions of R.C. Chapter 2950 violate the Ex Post Facto Clause of the United States Constitution. We disagree. We previously addressed this issue in the case of State v.McIntyre (Feb. 1, 1999), Stark App. No. 1997CA00232, unreported. Based on the Ohio Supreme Court's decision in Statev. Cook (1998), 83 Ohio St. 3d 404, we found R.C. Chapter 2950 is not unconstitutional on ex post facto grounds. In reaching this conclusion, we relied on paragraph two of the syllabus of the Cook decision. This paragraph provides: 2. R.C. 2950.09(B)(1), as applied to conduct prior to the effective date of the statute, does not violate the Ex Post Facto Clause of Section 10 of the United States Constitution. Pursuant to the Ohio Supreme Court's decision inCook and our recent decision the McIntyre case, we overrule appellant's first assignment of error. Appellant's first assignment of error is overruled. II In his second assignment of error, appellant contends R.C. Chapter retroactive provisions constitute cruel and unusual punishment. We disagree. We also previously addressed this issue in theMcIntyre case. In so doing, we referred to the Ohio Supreme Court's decision, in Cook, which found the registration and notification procedures were not punitive in nature. Cook at 417. The Court explained: * * * R.C. Chapter 2950 serves the solely remedial purpose of protecting the public. Thus, there is no clear proof that R.C. Chapter 2950 is punitive in its effect. We do not deny that the notification requirements may be a detriment to registrants, but the sting of public censure does not convert a remedial statute into a punitive one * * *. Id. at 423. Clearly, the registration and notification provisions, not being punitive in nature, do not constitute punishment and therefore, do not violate the prohibition against cruel and unusual punishment. See McIntyre at 5-6. Appellant's second assignment of error is overruled. For the foregoing reasons, the judgment of the Court of Common Pleas, Richland County, Ohio, is hereby affirmed. By: Wise, P. J., Gwin, J., and Reader, V. J., concur -------------------- -------------------- -------------------- JUDGES For the reasons stated in the Memorandum-Opinion on file, the judgment Court of Common Pleas of Richland County, Ohio, is affirmed. -------------------- -------------------- -------------------- JUDGES Hon. John W. Wise, P. J., Hon. W. Scott Gwin, J., Hon. W. Don Reader, V. J. (Retired from the Fifth Appellate District, Sitting by Supreme Court Assignment), JUDGES.

2016-07-06 06:41:49.402365+00

OPINION On September 17, 1996, Minerva Drake-Lassie filed a complaint asserting that she was entitled to recover uninsured-underinsured motorist benefits from her insurance carrier State Farm Insurance Company ("State Farm"). Ms. Drake-Lassie had been injured in November of 1994 when a co-worker at Dayton Rogers of Ohio, Inc., operated a forklift in such a way as to injure her. State Farm argued at first that the forklift was not a motor vehicle for purposes of uninsured-underinsured motorist coverage and that State Farm was not obligated to pay benefits as a result. The trial judge accepted State Farm's argument and granted summary judgment. A panel of this court disagreed and reversed the granting of summary judgment inMinerva Drake-Lassie v. State Farm (Sept. 17, 1998), Franklin App. No. 98AP-40, unreported. After the case was remanded to the trial court, State Farm sought summary judgment on a new theory. The trial court allowed the filing of a second summary judgment motion and granted a second summary judgment on behalf of State Farm. Minerva Drake-Lassie has once again appealed, assigning three errors for our consideration: ASSIGNMENT OF ERROR NO. 1: UNINSURED MOTORIST COVERAGE, AS DEFINED BY THE SUPREME COURT, IN SAVOIE, AND SUBSEQUENT CASES, CANNOT BE ABROGATED BY CONTRACT, AND WAS IN FORCE FOR THE PLAINTIFF REGARDLESS OF WHETHER SENATE BILL 20 STATUTORY LANGUAGE APPLIES. UNINSURED CLAIMS MUST BE PAID WHEN THE INDIVIDUAL COVERED BY AN UNINSURED POLICY SUFFERS DAMAGES THAT EXCEED THOSE MONIES AVAILABLE TO BE PAID BY THE TORTFEASOR[']S LIABILITY CARRIERS. ASSIGMENT OF ERROR NO. 2: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO FOLLOW THE LAW OF THE CASE, CONSIDERING A MOTION FOR SUMMARY JUDGMENT THAT SHOULD HAVE BEEN LITIGATED DURING THE FIRST LOWER COURT PROCEEDING, AND RESOLVED BY THE FIRST APPEAL. ASSIGNMENT OF ERROR NO. 3: THE TRIAL COURT MISAPPLIED THE ROSS DECISION TOTHE FACTS OF THIS CASE, IMPOSING A LEGAL STANDARD IN VIOLATION OF THE INSURED'S RIGHTS. After the first grant of summary judgment, the Supreme Court of Ohio decided Ross v. Farmers Ins. Group of Cos. (1998), 82 Ohio St. 3d 281. The syllabus for the Ross case reads: For the purpose of determining the scope of coverage of an underinsured motorist claim, the statutory law in effect at the time of entering into a contract for automobile liability insurance controls the rights and duties of the contracting parties. In the Ross case, the Supreme Court of Ohio had a choice among the date of the contract of insurance, the date of the accident resulting in injury, and the date of the exhaustion of other insurance coverage as the key date to use as the reference point in determining when a claim for relief for underinsured motorist coverage accrued so as to determine the law applicable to the claim. As indicated in the syllabus, the Supreme Court of Ohio chose the date of the contract of insurance. This choice avoided the application of statutes enacted by the Ohio General Assembly to overturn the Supreme Court of Ohio's earlier decision of Savoie v.Grange Mut. Ins. Co. (1993), 67 Ohio St. 3d 500, which had increased the availability of uninsured and underinsured motorist coverage in the context of wrongful death cases. In the situation involving Ms. Drake-Lassie, the legislature made a different modification of the Ohio Revised Code, one that worked to increase the availability of uninsured motorist's coverage. The legislature enacted S.B. No. 20 which became effective in October of 1994. S.B. No. 20 became effective between the effective date of Ms. Drake-Lassie's contract of insurance with State Farm and the date of her injury. R.C. 3937.18, as construed by earlier Ohio Supreme Court decisions, had held that an insurance company was not liable to its policyholders on an uninsured-underinsured claim when the person responsible for injuring the policyholder had liability insurance but was immune from liability based upon a statutory grant of immunity. SeeState Farm Mut. Ins. Co. v. Webb (1990), 54 Ohio St. 3d 61. S.B. No. 20 modified the statute so uninsured motorists coverage applied in such situations and a person who was injured by an immune driver could at least recover from their uninsured motorist coverage. Thus on the date Ms. Drake-Lassie bought her policy of insurance, she could not recover under the uninsured motorist coverage of the policy for injuries she sustained from an immune operation of a motor vehicle. However, by the date she was actually injured by a person who has been found to be an operator of a motor vehicle — an operator who is immune from liability by operation of the workers' compensation laws — she could recover under the express wording of her policy. The issue then becomes whether State Farm and other insurance companies who wrote policies prior to enactment of S.B. No. 20 are entitled to the benefit of the law as it existed at the time the policies were written. We can find no legal basis under recent case law from the Supreme Court of Ohio for treating one party to a contract of insurance (the insurance company) differently from the other party to the contract of insurance (the policyholder), even though the equities of the situation might dictate different treatment for the injured policyholder than for the insurance company. Counsel for appellant argues that S.B. No. 20 did not change the law of Ohio because the Supreme Court of Ohio had earlier granted uninsured/underinsured motorists coverage in co-worker situations through the syllabus of Savoie, supra. Specifically, counsel cites to paragraph three of the syllabus, which reads: An underinsurance claim must be paid when the individual covered by an uninsured/underinsured policy suffers damages that exceed those monies available to be paid by the tortfeasor's liability carriers. (Hill v. Allstate Ins. Co. [1990], 50 Ohio St. 3d 243, 553, N.E.2d 658, overruled.) We do not view the Savoie case as addressing the effect of statutory immunities upon the availability of uninsured and underinsured motorists coverage. Hence, we view S.B. No. 20 as having made a change in the law regarding such coverage. The first and third assignments of error are overruled. The second assignment of error addresses the application of legal doctrines such as res judicata and law of the case to the present situation. As noted above, this is the second appeal in this case. In the first appeal, we sustained the first and second assignments of error, which read: ASSIGNMENT OF ERROR NO 1: THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO PLAINTIFF WHERE THE ESTABLISHED OHIO CASE LAW HOLDS A FORKLIFT QUALIFIES AS A MOTOR VEHICLE AS DEFINED BY OHIO REVISED CODE 4501.01 (B), AND THEREFORE PLAINTIFF IS ENTITLED TO UNINSURED MOTORIST BENEFITS FOR INJURIES CAUSED BY THE NEGLIGENCE OF AN UNINSURED OPERATOR OF THIS FORKLIFT MOTOR VEHICLE. ASSIGNMENT OF ERROR NO. 2: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT STATE FARM INSURANCE, THERE AT MINIMUM BEING A QUESTION OF FACT FOR A JURY WHETHER A FORKLIFT IS A MOTOR VEHICLE AS DEFINED BY OHIO REVISED CODE 4501.01 (B), THEREBY ENTITLING PLAINTIFF TO UNINSURED MOTORIST BENEFITS UNDER THE PROVISIONS OF HER CONTRACT OF INSURANCE WITH STATE FARM INSURANCE. Thus, a panel of this appellate court clearly found that the trial court erred in failing to grant summary judgment for Minerva Drake-Lassie. Since the only issue addressed by the trial court was whether or not State Farm was liable under the policy of insurance based upon a determination of whether or not a forklift was a motor vehicle, the ruling of this appellate court was a finding that summary judgment should have been granted for Ms. Drake-Lassie. Our mandate was for the trial court to correct its error when it failed to grant summary judgment for Ms. Drake-Lassie on the issue of liability. Under the circumstances, the trial court following our mandate should have granted summary judgment for Ms. Drake-Lassie on the declaratory judgment part of her lawsuit and proceeded to conduct a hearing on damages. We believe that counsel had an opportunity to raise the issues contained in Ross, supra, for consideration both in the trial court and before this court on direct appeal. The Ross case was filed in the Supreme Court of Ohio in early 1997. The Ross case was argued before the Supreme Court of Ohio at about the same time that the record on Ms. Drake-Lassie's case was forwarded on the first appeal and before any briefs were filed on that direct appeal. The Supreme Court of Ohio had decided the Ross case before oral argument on the first appeal. No appeal to the Supreme Court of Ohio was made following the decision on the first appeal of Ms. Drake-Lassie's case being issued, despite our finding that the trial court erred in failing to grant summary judgment for Ms. Drake-Lassie. The issue decided in Ross was known before, during and after the first appeal. As a practical matter, all grounds for granting summary judgment should be litigated in a single motion rather than risk serial grants of summary judgment based upon new theories and serial appeals based upon newly argued theories. We do not mean to imply that either counsel was less than expert or diligent in the litigation of this lawsuit. Both counsel have acquitted themselves professionally and well. However, the issue presented to the trial court in the second summary judgment motion was available for review as a part of a single motion for summary judgment and should have been presented in the original motion. Because the narrow scope of the original motion resulted in a ruling by the appellate court that summary judgment should have been granted to Ms. Drake-Lassie, further issues and litigation regarding liability are precluded. We, therefore, sustain the second assignment of error. As a result, we vacate the judgment of the trial court and enter judgment for Ms. Drake-Lassie on the issue of liability of State Farm on uninsured motorist coverage for the injuries she sustained in November of 1994. We remand the case for further proceedings on the issue of a determination of the amount of damages to which she is entitled. _________________ TYACK, J. PETREE, J., BOWMAN, P.J., concur.

2016-07-06 06:41:47.594655+00

DECISION. {¶ 1} Defendant-appellant Jerry Jones pleaded no contest to violations of his community control resulting from a forgery conviction. The trial court imposed a 12-month sentence. Jones now appeals, arguing (1) that his trial counsel was ineffective for failing to request a competency hearing after acknowledging Jones's mental issues; and (2) that he made his plea unknowingly. {¶ 2} The purpose of Crim.R. 11 is to assure that the defendant is informed. It also enables the court to determine that the defendant understands that his plea waives his constitutional right to a trial. When Jones originally pleaded guilty to forgery, the dialogue between the trial court and Jones at the plea hearing supported the court's decision that Jones had voluntarily, knowingly, and intelligently pleaded guilty to forgery. When Jones was brought back to court on violations of his community control, Jones pleaded no contest. Although Jones then made a statement that he was "confused about his violation," in the broader context of the plea and sentencing hearing, the record does not contain sufficient indicia that Jones was incompetent. {¶ 3} Additionally, Jones's trial counsel did not fall below an objective standard of reasonableness by failing to request a competency hearing. Although Jones may suffer from depression, nothing in the record indicates that Jones was incompetent at the time he entered his plea. For these reasons, we affirm the trial court's judgment. I. A Community-Control Violation, a Plea, and now an Appeal {¶ 4} In January 2004, Jones pleaded guilty to forgery.1 The trial court properly reviewed all the constitutional rights Jones was waiving by entering a plea under Crim.R. 11. Jones affirmatively waived all his rights and pleaded guilty. The trial court sentenced him to three years' community control and informed Jones that he would be sentenced to 12 months in prison if he violated the terms of his community control. {¶ 5} A year later, in January 2005, Jones pleaded no contest to four violations of his community control: (1) he had been arrested on a new charge of forgery in Kentucky; (2) he had failed to report and was declared an absconder; (3) he had failed to make payments toward the fines and court costs; and (4) he had failed to complete the community-control program. {¶ 6} Due to the community-control violations, the trial court sentenced Jones to a 12-month prison term. In March 2005, the trial court granted Jones's request for an appeal bond and reduced the sentence to eleven months. {¶ 7} Jones now claims that (1) he received ineffective assistance of counsel because his trial counsel failed to ask for a competency evaluation, and (2) he entered an unknowing plea to the community-control violations. Because we need to examine Jones's competency before addressing his ineffective-assistance-of-counsel claim, we first turn to his second assignment of error. II. Competency {¶ 8} "Fundamental principles of due process require that a criminal defendant who is legally incompetent shall not be subjected to trial."2 In Pate v. Robinson, the United States Supreme Court held that a failure to observe procedures that protect a defendant's right not to be tried or convicted while incompetent deprives the defendant of the right to a fair trial.3 In Dusky v. United States, the United States Supreme Court had set forth a test to determine whether a defendant is competent to stand trial, stating that the "test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him."4 {¶ 9} The right to a hearing on the issue of competency rises to a constitutional level where the record contains "sufficient indicia of incompetence" such that an inquiry into the defendant's competency is necessary to ensure the defendant's right to a fair trial.5 {¶ 10} In Ohio, R.C. 2945.37 protects the right of a criminal defendant not to be tried or convicted while incompetent. R.C.2945.37(B) provides that "[i]n a criminal action in a court of common pleas or municipal court, the court, prosecutor, or defense may raise the issue of the defendant's competence to stand trial. If the issue is raised before trial, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after trial has begun, the court shall hold a hearing on the issue only for good cause shown." A defendant is presumed to be competent to stand trial, unless the court finds by a preponderance of the evidence that because of the defendant's present mental condition, he is incapable of understanding the nature and objective of the proceedings against him or cannot assist in his defense.6 {¶ 11} Thus, R.C. 2945.37(B) requires a trial court to hold a mid-trial hearing on the issue of competency "only for good cause shown." The Ohio Supreme Court has stated that the statutory requirement mandating a showing of "good cause" has been "construed in accordance with the general principles set forth by the United States Supreme Court in Drope and Pate."7 The issue of competency may be raised by the prosecution or the defense, or on the court's own motion. The determination whether to conduct a mid-trial competency hearing is normally a matter committed to the sound discretion of the trial court.8 {¶ 12} In the present case, Jones alleges that he made his plea unknowingly. Jones points to his statement that he did not understand what was happening and that he did not understand how he had violated his community control. While Jones did indeed make these isolated statements, they must be analyzed in the context of the entire proceedings. We have reviewed both records — when Jones was given a Crim.R. 11 colloquy before he pleaded guilty to forgery and also when he pleaded no contest to the community-control violations — and neither leads us to conclude that Jones was incompetent. {¶ 13} Before the court imposed the sentence for the community-control violations, Jones was asked if he wanted to make a statement. Jones stated, "I really don't understand. I went to the TASC, I completed the TASC program. * * * I had a case manager over at SAMI and I think he sabotaged my efforts. * * * he thought that I had to relearn how to cook, how to clean, and do the basic things of living and I didn't agree with it. I was disappointed that I had to go to another * * * halfway house. * * * It didn't register to me that it was a probation violation if I didn't do the group home thing. * * * I'm really confused about the violation." {¶ 14} Here, the record does not contain "sufficient indicia of incompetence." Jones may have been confused as to how he violated his community control, but he was not incompetent. He did not complete his community-control program and instead left for Kentucky to live with his daughter. In doing so, and also in failing to pay his fines and court costs, and being arrested on another charge of forgery in Kentucky, Jones violated his community control. {¶ 15} We conclude that Jones's second assignment of error is without merit. III. Ineffective Assistance of Counsel {¶ 16} Jones's first assignment of error claims that he received ineffective assistance of counsel because his trial counsel did not ask for a competency evaluation. The thrust of Jones's argument is that his trial counsel acknowledged Jones's mental issues — depression and bipolar disorder — yet failed to ask for a competency hearing to ensure that Jones was entering a plea knowingly. {¶ 17} In Strickland v. Washington, the United States Supreme Court enunciated the two-prong standard for evaluating claims of ineffective assistance of counsel.9 When a defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.10 There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.11 The Court further stated that counsel's performance must have prejudiced the defense so as to deprive the defendant of a fair trial.12 This means that the "defendant must [also] show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different."13 {¶ 18} In the present case, Jones was given a Crim.R. 11 colloquy in which he affirmatively waived his constitutional rights when he originally pleaded guilty. Although the trial court did not repeat the colloquy when he pleaded no contest to the community-control violations, the court was not required to do so.14 And there is nothing in the record from either plea to suggest that Jones was incompetent when he waived his rights and received his sentence. {¶ 19} Additionally, there is nothing in the record to suggest that Jones's trial counsel fell below an objective standard of reasonableness by failing to request a competency hearing. Although Jones stated, "I am confused about the violation," and said, "I really don't understand," these were not statements of an incompetent person. Jones simply disagreed with what constituted a violation. He did not think that he had violated his community control by leaving the community-control program and going across the river to Kentucky to live with his daughter. Unfortunately for Jones, he was wrong. {¶ 20} We conclude that Jones's first assignment of error is also without merit, and we affirm the trial court's judgment. Judgment affirmed. Hildebrandt, P.J., and Hendon, J., Concur. 1 R.C. 2913.31(A)(3). 2 See State v. Berry, 72 Ohio St.3d 354, 359-360, 1995-Ohio-310, 650 N.E.2d 433, citing Pate v. Robinson (1966),383 U.S. 375, 86 S.Ct. 836, and Drope v. Missouri (1975),420 U.S. 162, 95 S.Ct. 896. 3 Pate, 383 U.S. at 385. 4 See Dusky v. United States (1960), 362 U.S. 402,80 S.Ct. 788. See, also, Drope, 420 U.S. at 172, 95 S.Ct. 896. 5 Berry, 72 Ohio St.3d at 359-360, 1995-Ohio-310,650 N.E.2d 433, citing Drope, 420 U.S. 162, 95 S.Ct. 896, Pate,383 U.S. 375, 86 S.Ct. 836, and State v. Bock (1986),28 Ohio St.3d 108, 110, 502 N.E.2d 1016. 6 R.C. 2945.37(G). 7 Berry, 72 Ohio St.3d at 359-360, 1995-Ohio-310,650 N.E.2d 433, citing State v. Chapin (1981), 67 Ohio St.2d 437,424 N.E.2d 317. 8 Id., citing State v. Rahman (1986), 23 Ohio St.3d 146,156, 492 N.E.2d 401. 9 See Strickland v. Washington (1984), 466 U.S. 668,104 S.Ct. 2052. 10 Id. at 687-688. 11 Id. 12 Id. 13 Id. at 694. 14 See State v. Durgan (1976), 1st Dist. Nos. C-75288 and C-75503.

2016-07-06 06:41:47.733487+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant, Stevo Djuric, appeals the finding of guilt and his sentence in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm the finding of guilt, but vacate his sentence and remand for resentencing. {¶ 2} On April 17, 2004, the victim and her sister were visiting with their father at his apartment in Lakewood. Djuric lived in the same apartment complex as the father. While the father was outside with his daughters, Djuric came outside and invited them up to share candy and cookies for his birthday. The father declined, but Djuric insisted. {¶ 3} They went to Djuric's apartment. Dolores Cosic, Djuric's roommate, came out of the bedroom and sat at the table. The girls were given pop and candy. The father had a beer, and Djuric was drinking alcohol. {¶ 4} Soon after entering the apartment, Djuric told the girls to come to the bedroom to help him find the cat. This happened at least two times. Both times when the girls were in the bedroom, Djuric touched the victim's breasts and digitally penetrated her. The victim was ten years old at the time. {¶ 5} When they left Djuric's apartment, the father took the girls to Burger King. On their way home, the victim told her father that Djuric had touched her. The father called the police. {¶ 6} Officer Robert Moher of the Lakewood Police Department was first to arrive, and observed that the victim was crying and visibly upset. She told Officer Moher that Djuric grabbed her "underneath" while in the bedroom. Officer Heather Herpka was called in to interview the victim. Meanwhile, Officer Moher went to Djuric's apartment to speak with him, but he was out. {¶ 7} Officer Herpka learned that Djuric had fondled the victim's breasts twice, touched her vaginal area twice, and digitally penetrated her twice. Officer Herpka went with the victim and her father to Lakewood Hospital where a rape kit was performed. Officer Herpka learned that the victim's vaginal area was red and irritated. {¶ 8} Nurse Lisa Grafton testified that the victim was visibly upset when she, the nurse, performed the initial exam. Nurse Grafton testified that she observed the redness and that, relying on her experience, it was likely caused by "something that doesn't belong there." {¶ 9} Dr. Thomas A. Waters testified that he treated the victim in the emergency room. He testified that the victim was visibly upset and withdrawn during the examination and administration of the rape kit. After the exam, he reported erythema (redness, irritation) on the outside genitalia and visible vaginal mucosa (the lining of the vagina was red) and the victim's hymen was not intact. Dr. Waters concluded with a reasonable degree of scientific certainty that the redness was caused by possible manipulation of the genitalia. {¶ 10} Detective Leslie Wilkins from the Lakewood Police Department testified about her investigation and interview with Djuric. Det. Wilkins interviewed Djuric after she read and explained to him hisMiranda rights and Djuric waived these rights. Det. Wilkins testified that Djuric spoke and understood English, and that during the interview, Djuric told the detective that he told the arresting officers that he could not understand English because he was upset about his arrest. Djuric admitted to inviting the father and his girls up because it was Djuric's 52nd birthday. He denied touching the victim except for her ankles when he pulled her out from under the bed. He claimed she became stuck under the bed while looking for the cat. {¶ 11} Cosic testified for the defense. She testified that she had full view of the bedroom from where she sat and that she did not see Djuric do anything to the victim. She testified that Djuric went into the bedroom for only a short time to retrieve her medications so the girls would not get into them. {¶ 12} Djuric was charged with two counts of rape, two counts of gross sexual imposition, and two counts of kidnapping. All six counts contained sexually violent predator specifications, which eventually were dismissed by the state. Djuric was found guilty of one count of gross sexual imposition and one count of kidnapping with a sexual motivation specification. He was sentenced to a total of four years in prison. Djuric appeals, advancing eleven assignments of error for our review. {¶ 13} "I. Defendant was denied a fair trial when the Court, through its conduct and questioning enhanced the credibility of a state's witness, [the victim]." {¶ 14} It is well-settled that a trial judge is not precluded from making comments during trial and, in fact, must do so at times to control the proceedings. J. Norman Stark Co., L.P.A. v. Santora, Cuyahoga App. No. 81543, 2004-Ohio-5960, citing State v. Plaza, Cuyahoga App. No. 83074, 2004-Ohio-3117; State v. Jackson, Cuyahoga App. No. 82724, 2004-Ohio-2332. See, also, Evid.R. 611(A). However, a trial judge should be cognizant of the influence his or her statements have over the jury and, therefore, a trial judge must remain impartial and avoid making comments that might influence the jury. Jackson, supra, citingState v. Boyd (1989), 63 Ohio App.3d 790. See, also, State v. Allen (1995), 102 Ohio App.3d 696. When a judge's comments express his or her opinion of the case or of a witness's credibility, prejudicial error results. Plaza, supra, and Jackson, supra, citing State v. Kay (1967),12 Ohio App.2d 38. {¶ 15} In State ex rel. Wise v. Chand (1970), 21 Ohio St.2d 113, paragraphs three and four of the syllabus, the Ohio Supreme Court warned: "In a trial before a jury, the court's participation by questioning or comment must be scrupulously limited, lest the court, consciously or unconsciously, indicate to the jury its opinion on the evidence or on the credibility of a witness. "In a jury trial, where the intensity, tenor, range and persistence of the court's interrogation of a witness can reasonably indicate to the jury the court's opinion as to the credibility of the witness or the weight to be given to his testimony, the interrogation is prejudicially erroneous." {¶ 16} In State v. Wade (1978), 53 Ohio St.2d 182, the Ohio Supreme Court set forth the following criteria for determining whether a trial judge's remarks were prejudicial: "(1) The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they are made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of counsel."Id. at 188. {¶ 17} At trial, the victim did not want to testify as to where Djuric had touched her. The trial court stepped in and attempted to persuade the victim to answer the state's questions. Djuric argues that the following comments by the trial court judge deprived him of a fair trial: "THE COURT: Let me talk to [the victim] for just a second, okay? "STATE: Okay, Your Honor, please. Thank you. "THE COURT: I've been doing this for a long time, like 15 years, and these are sort of tough cases at times, but I've heard it all, you know? And the jurors understand what's going on here. They've heard it all, too. They don't think that you're a bad girl or anything like that if you say things that are private. We're here for justice. Have you learned about justice in your school? "THE WITNESS: Yeah. "THE COURT: And this is a real — it's important stuff on the road to justice. We got to do this here today. "We need some Kleenex. We'll take a break here. Do you need a glass of water? I think I do. I'm going to take a drink here. "We got to do this. This is what we do here. It's a very important step along the road to justice, and as difficult as this story is, you got to tell it once to these 14 people — 13. And if necessary, what we can do is we can talk about `my private part down there.' You can stand up and show us, you can draw a picture, but ultimately we're going to have to ask you to be brave and testify, okay?" When the victim completed her testimony, the trial court stated: "THE COURT: All right, [victim]. Thanks very much for your testimony. We certainly appreciate it * * * Well, enjoy the rest of your week. It was nice to meet you * * * ." {¶ 18} In addition, Djuric alleges that the judge shook hands with the victim before she testified. Djuric argues that the judge's comments and actions expressed an opinion as to the victim's credibility and deprived him of a fair trial. The state argues that Djuric failed to object to the judge's colloquy with the victim, and furthermore, the state contends that Djuric did not show prejudice. The state also asserts that there is no evidence in the record that the trial court shook hands with the victim. Alternatively, the state argues that any error in the trial court's comments was cured by the court's final jury instruction, in which the court stated: "If I have said or done anything during the course of this trial that you consider to be any indication whatsoever of my view on this case, I can assure that you are wrong. I do not have an opinion because the decision is yours and it is not appropriate for me to give any indication, and frankly, you have been listening to the evidence; you will make the determination. Disregard anything you may think I have said or done that would give you any indication whatsoever as to the ultimate issue of the outcome of this lawsuit." {¶ 19} Although Djuric did not object at the time of the judge's comments, he did move for a mistrial at the end of the state's case based on the judge's comments and actions. Evid.R. 614(C) states the following: "Objections to the calling of witnesses by the court or through the interrogation by it may be made at the time or at the next available opportunity when the jury is not present." We agree with Djuric that this was sufficient to preserve the issue for appeal. {¶ 20} The granting of a mistrial is necessary only when a fair trial is no longer possible. State v. Chambers, Cuyahoga App. No. 87323,2006-Ohio-5326, citing State v. Franklin (1991), 62 Ohio St.3d 118, 127. A trial court's grant or denial of a motion for mistrial is reviewed under the abuse of discretion standard. State v. Conway,108 Ohio St.3d 214, 244, 2006-Ohio-791. {¶ 21} We agree that the trial court's comments and actions, if believed, were borderline and implied that the victim was telling the truth and that the only way justice could be done in this case was for the victim to testify. However, the trial court's jury instructions included an order not to consider anything the trial court may have done or said that could be perceived as its opinion on the case. Under the circumstances, we find that the trial court's comments constituted harmless error. Crim.R. 52(A) defines harmless error as: "any error, defect, irregularity, or variance which does not affect substantial rights * * *." In light of all the evidence put forth corroborating the victim's testimony, we cannot say that the outcome of the trial would likely have been different had the trial court not made the improper comments. See State v. Allen (1995), 102 Ohio App.3d 696, 700-701. {¶ 22} Accordingly, Djuric's first assignment of error is overruled. {¶ 23} "II. Defendant was denied his constitutional right to a public trial when the Court sealed the courtroom during the testimony of [the victim]." {¶ 24} Djuric claims he was denied his right to a public trial when the trial court sealed the courtroom while the victim was testifying. {¶ 25} The right to a public trial is set forth in the Sixth Amendment of the Constitution of the United States and applies to the states through the Fourteenth Amendment. In re Oliver (1984), 333 U.S. 257,273. Likewise, Section 10, Article I of the Ohio Constitution guarantees an accused a public trial. State v. Whitaker, Cuyahoga App. No. 83824,2004-Ohio-5016. Nonetheless, the right to a public trial is not absolute, and an order barring spectators from observing a portion of an otherwise public trial does not necessarily introduce error of constitutional dimension. Id. {¶ 26} "A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim's age, psychological maturity, and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives." Globe Newspaper Co.v. Superior Court for the Cty. of Norfolk (1982), 457 U.S. 596, 608. {¶ 27} As a general rule, criminal trials must be open to the public and the press. Richmond Newspapers, Inc. v. Virginia (1980),448 U.S. 555. However, Globe made clear that in certain situations, trial courts do have the discretion to close the courtroom to the press and public. {¶ 28} On appeal from such an order, the reviewing court is to determine whether the lower court abused its discretion. State v.Whitaker, Cuyahoga App. No. 83824, 2004-Ohio-5016. Nevertheless, failure to object to closing of the courtroom constitutes a waiver of the right to a public trial. Peretz v. United States (1991), 501 U.S. 923, citingLevine v. United States (1960), 362 U.S. 610, 619. {¶ 29} Assuming, for the sake of argument, that Djuric objected at side-bar to the court closing the courtroom, we find that the trial court did not abuse its discretion when it ordered "at this point we're going to seal the courtroom. In other words, we're not going to have people walking in and out." The court did not bar spectators; it required only that spectators not move in and out during the testimony. The court's order came after the victim was reluctant to answer the state's questions regarding where Djuric allegedly touched her. It was evident to the trial court that the victim was very nervous and embarrassed to talk about what happened. The purpose of closing the courtroom for the remaining portion of her testimony was to eliminate excess noise and to save the witness as much embarrassment as possible. The standards laid out in Globe were followed in this case. The trial court legitimately exercised its discretion barring movement in and out of the courtroom during the testimony of the victim. Further, Djuric suffered no prejudice when the trial court sealed the courtroom. Therefore, his second assignment of error is overruled. {¶ 30} "III. Defendant was denied due process of law when the Court failed to conduct a pretrial evidentiary hearing on Defendant's motion to suppress." {¶ 31} Djuric complains that the trial court erred when it failed to conduct a pretrial hearing on his motion to suppress. A review of the record reveals that Djuric's attorney mentioned his motion to suppress while arguing for an interpreter. During his argument he conceded that the jury should decide whether Djuric can understand English, which was one of the bases for his motion to suppress. In addition, Djuric did not object to the trial going forward without a hearing or a ruling on his motion to suppress. {¶ 32} Djuric should have raised an objection to the trial court's action prior to the commencement of trial, and failure to object waives any error. State v. Canady (Apr. 16, 1992), Cuyahoga App. No. 60355;State v. Weems (Mar. 18, 1982), Cuyahoga App. No. 43813. Notwithstanding, Crim.R. 12(E) does not mandate an evidentiary hearing on every motion to suppress. State v. Johnson (Apr. 2, 1992), Cuyahoga App. No. 60402, citing Solon v. Mallion (1983), 10 Ohio App.3d 130, 132. A trial court must conduct such a hearing only when the claims in the motion would justify relief and are supported by factual allegations. Id. See, also, State v. Hartley (1988), 51 Ohio App.3d 47. {¶ 33} Djuric's motion alleges that he was arrested at his home without a warrant and without probable cause, and that he did not knowingly, intelligently or voluntarily waive his Miranda warnings. Djuric alleges that he does not have a good command of the English language. Again, the record reflects that Djuric conceded that the jury should decide whether Djuric understands the English language. Furthermore, the testimony adduced at trial indicated that Djuric did understand and speak English and that he told the arresting officers he did not understand English only because he was mad about the arrest. Furthermore, Djuric's motion contains no factual allegations to support his contention that there was no probable cause to make a warrantless arrest. A motion to suppress may be overruled without a hearing when the motion consists of nothing but a boilerplate recitation of all the possible objections to the admission of evidence. State v. Clark (Feb. 1, 1996), Cuyahoga App. No. 67305, citing Bryan v. Fox (1991),76 Ohio App.3d 607. Thus, the court could have denied the motion without further hearing. {¶ 34} Djuric's third assignment of error is overruled. {¶ 35} "IV. Defendant was denied due process of law when the court overruled his motion to suppress." {¶ 36} At the close of the state's case, Djuric requested that the court revisit his motion to suppress, arguing that he was arrested at his home without a warrant and held for two days without being allowed a phone call. The state argued that there was probable cause to arrest Djuric without a warrant and that he could have been held for forty-eight hours prior to questioning. In addition, the state argued that Djuric never raised the "phone call issue" in his motion to suppress. As stated previously, a motion to suppress may be overruled without a hearing when the motion consists of nothing more than boilerplate language alleging constitutional violations and requesting the court to suppress certain evidence. Since Djuric's motion simply stated that he was wrongfully arrested without a warrant or probable cause, the court was within its discretion to deny Djuric's motion. Furthermore, a warrantless arrest is valid if the arresting officer possessed probable cause to believe that the suspect committed an offense. State v. Schlick (Dec. 7, 2000), Cuyahoga App. No. 77885, citing Beck v. Ohio (1964), 379 U.S. 89, 91. Probable cause to arrest exists if all the facts and circumstances within the officer's knowledge were sufficient to cause a prudent person to believe that the individual had committed or was committing an offense. Id.; State v. Otte (1996),74 Ohio St.3d 555, 559. In determining whether probable cause to arrest exists, a reviewing court should examine the "totality of the circumstances." Illinois v. Gates (1983), 462 U.S. 213, 230-31. In this case, there was probable cause to arrest Djuric for the rape of a child. {¶ 37} Finally, regarding Djuric's argument that his statutory right to a phone call was violated, the Ohio Supreme Court has held that the exclusionary rule is not applicable as a sanction for a violation of R.C. 2935.14 or 2935.20. See State v. Unger (1981), 67 St.2d 66, 70, andState v. Griffith (1996), 74 Ohio St.3d 554. Therefore, Djuric's argument is without merit. {¶ 38} Djuric's fourth assignment of error is overruled. "V. Defendant was denied due process of law when the Court allowed Detective Leslie D. Wilkins to testify as to the truth of the allegations made by [the victim]." {¶ 39} Under this assignment of error, Djuric argues that the testimony elicited by the state on direct examination of Detective Leslie Wilkins invaded the province of the jury and was plain error. Djuric complains about the following testimony: "A. Well, after Mr. Djuric, again, denied that any touching took place, I had asked him: Is there anything that could be misconstrued here? Is there anything that's, to clarify, maybe why an allegation such as this being made by a complete stranger, a 10-year-old girl? "Q. Let me stop you there, Detective Wilkins. Why did you feel it was necessary to again inquire and say, Well, maybe could something be misconstrued here? Why did you feel it was necessary to start that line of questioning? "MR. MANCINO: Objection. "COURT: Overruled. "Q. Please answer. "A. It's been my experience that with a victim of this age, usually-usually we sometimes see victims and there might be possibly a motive for an allegation. There might be some other underlying circumstances that, you know, had brought us to a police investigation with a 10-year-old, and after reading the reports, we had reason to believe that [the victim] was telling us the absolute truth about what happened to her. "MR. MANCINO: Objection. "COURT: Overruled." {¶ 40} At the time of this testimony, the detective was testifying about her interview with Djuric. She was explaining why she asked Djuric if any of his actions could be misconstrued. {¶ 41} In State v. Boston (1989), 46 Ohio St.3d 108, syllabus, the Supreme Court of Ohio held as follows: "An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant." Boston stands for the proposition that expert testimony cannot be used to show that a child is telling the truth or that the child accurately testified. This is because the trier of fact, and not the expert, has the burden of assessing the credibility and veracity of witnesses. Id. at 128-129. {¶ 42} The state argues that the detective's testimony did not violateBoston because she was not testifying as an expert in this case. As stated in State v. Miller (Jan. 26, 2001), Montgomery App. No. 18102, "This argument is not persuasive for two reasons. First, we believe that jurors are likely to perceive police officers as expert witnesses, especially when such officers are giving opinions about the present case based upon their previous experiences with other cases. Second, and more importantly, the language of Boston, supra, makes it clear that the holding of that case applies to lay persons as well as experts.Boston, 46 Ohio St.3d at 129 (quotation omitted). Thus, regardless of whether a police officer testifies as an expert or lay witness, his testimony cannot violate Boston.'" {¶ 43} In this case, the detective's testimony was in direct violation of Boston because she offered an opinion as to the truth of the victim's accusations. The admission of the detective's testimony was improper. Nevertheless, we must determine whether such error was harmless. {¶ 44} Pursuant to Crim.R. 52(A), "any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." In order to find an error harmless, a reviewing court must be able to declare a belief that the error was harmless beyond a reasonable doubt.State v. Lytle (1976), 48 Ohio St.2d 391, 403. A reviewing court may overlook an error where the admissible evidence comprises "overwhelming" proof of a defendant's guilt. State v. Williams (1983),6 Ohio St.3d 281, 290. "Where there is no reasonable possibility that unlawful testimony contributed to a conviction, the error is harmless and therefore will not be grounds for reversal." State v. Brown (1992),65 Ohio St.3d 483, 485, 1992-Ohio-61. In State v. Lewis (Aug. 14, 1991), Summit App. No. 14632, the Ninth Appellate District found an expert opinion on the veracity and credibility of a child victim was prohibited by Boston. However, the court concluded that admission of the expert opinion was harmless beyond a reasonable doubt. Several key elements factored into its finding of harmless error: (1) the victim testified and was subject to cross-examination; (2) the state introduced substantial medical evidence of sexual abuse; and (3) the expert's testimony was cumulative to other evidence. This court has recognized that recent case law states that "Boston does not apply when the child victim actually testifies and is subjected to cross-examination."State v. Benjamin, Cuyahoga App. No. 87364, 2006-Ohio-5330, quotingState v. Curren, Morrow App. No. 04 CA 8, 2005-Ohio-4315; State v.Fusion (Aug. 11, 1998), Knox App. No. 97 CA 000023. In this case, the victim testified and was subject to cross-examination. In addition, there was medical evidence of the assault. Finally, the detective's testimony was cumulative; therefore, we find that the error was harmless beyond a reasonable doubt. Accordingly, Djuric's fifth assignment of error is overruled. {¶ 45} "VI. Defendant was denied his right of confrontation and cross-examination when the Court admitted testimony of hearsay evidence." {¶ 46} Under this assignment of error, Djuric complains that the trial court allowed inadmissible hearsay in over his objection and in violation of his right to confrontation. Djuric points to the testimony of Det. Wilkins and Officer Herpka because they were permitted to testify as to what they "learned" during their police investigation. {¶ 47} First, the victim testified at trial and was subject to cross-examination; therefore, the Confrontation Clause was not implicated. Furthermore, in State v. Thomas (1980), 61 Ohio St.2d 223,232, the Ohio Supreme Court addressed this issue and held as follows: "The testimony at issue was offered to explain the subsequent investigative activities of the witnesses. It was not offered to prove the truth of the matter asserted. It is well established that extrajudicial statements made by an out-of-court declarant are properly admissible to explain the actions of a witness to whom the statement was directed. * * * The testimony was properly admitted for this purpose." Thomas was reaffirmed in State v. Skatzes, 104 Ohio St.3d 195, 214,2004-Ohio-6391, which was decided December 8, 2004, nine months afterCrawford v. Washington (2004), 541 U.S. 36. Although Crawford applied Confrontation Clause analysis to testimonial out-of-court statements, the court made clear that the use of such statements may be exempt from Confrontation Clause analysis. State v. Scott, Franklin App. No. 05AP-1144, 2006-Ohio-4981. The court noted a distinction between testimonial evidence used to prove the matter asserted in the out-of-court statement and testimonial evidence that was not used to prove the truth of the statement. Id. In a footnote theCrawford court noted that "[t]he Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 59, fn. 9, citing Tennessee v. Street (1985), 471 U.S. 409, 414. Although the victim's statements in this case were testimonial, we find that the statements made by Det. Wilkins and Officer Herpka were admissible because they were not offered to prove the truth of the matter asserted. Both the detective and the officer explained the steps they took in investigating the victim's rape report. {¶ 48} Next, Djuric objects to the testimony given by Nurse Grafton when she stated that the victim told her she had been sexually assaulted. Here again, the victim testified at trial and was subject to cross-examination; therefore, the Confrontation Clause was not implicated. Furthermore, the Supreme Court of Ohio recently ruled, "Where the victim of a criminal offense makes a statement to a police officer identifying the accused, and subsequently presents herself for a medical examination for purposes of gathering evidence of the crime and repeats the identification, the latter statement is not made `under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,' because the declarant had previously made the identifying statement to the police." State v. Stahl, 111 Ohio St.3d 186, 198, 2006-Ohio-5482, citing Crawford, 541 U.S. at 53. Therefore, the victim's statements to Nurse Grafton were admissible. {¶ 49} Djuric's sixth assignment of error is overruled. {¶ 50} "VII. Defendant was denied due process of law and a fair trial by reason of cumulative errors committed during the course of the trial." {¶ 51} Djuric alleges eleven errors committed at trial and claims that these cumulative errors denied him of a fair trial. {¶ 52} It is true that separately harmless errors may violate a defendant's right to a fair trial when the errors are considered together. State v. Madrigal, 87 Ohio St.3d 378, 397, 2000-Ohio-448. In order to find "cumulative error" present, we first must find that multiple errors were committed at trial. Id. at 398. We then must find a reasonable probability that the outcome of the trial would have been different but for the combination of the separately harmless errors.State v. Durant (2004), 159 Ohio App.3d 208, 219; see, also, State v.Thomas, Clark App. No. 2000-CA-43, 2001-Ohio-1354. {¶ 53} Djuric complains about numerous things but cites no case law in support of eight of the alleged errors. We find no merit to any of the complained errors and will not address each pursuant to App.R. 12(A)(2) and 16(A)(7). {¶ 54} Next, Djuric complains that it was improper for Det. Wilkins to testify that she thought the victim was telling the truth. As stated previously, we find this error to be harmless. {¶ 55} Djuric also complains that the state argued during closing statement that the victim was telling the truth. The Ohio Supreme Court in State v. Slagle (1992), 65 Ohio St.3d 597, 607, stated: "when we review a prosecutor's closing argument we ask two questions: `whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.' State v. Smith (1984),14 Ohio St.3d 13, 14, 14 Ohio B. 317, 470 N.E.2d 883 * * *. The closing argument is considered in its entirety to determine whether it was prejudicial. State v. Moritz (1980), 63 Ohio St.2d 150, 157,407 N.E.2d 1268 * * *." (Parallel citations omitted.) {¶ 56} "Counsel is generally given latitude during closing arguments to state what the evidence has shown and what inferences can be made by the jury." State v. Hearns, 11th Dist. No. 2002-P-0050, 2004-Ohio-385, at ¶ 15, citing State v. Davis (1996), 76 Ohio St.3d 107, 117,1996-Ohio-414. In determining whether the prosecutor's statements affected a substantial right of the defendant, an appellate court should consider the following factors: "(1) the nature of the remarks; (2) whether an objection was made by defense counsel; (3) whether the court gave any corrective instructions; and (4) the strength of the evidence presented against the defendant." Hearns, 2004-Ohio-385, at ¶ 15, citingState v. Braxton (1995), 102 Ohio App.3d 28, 41. {¶ 57} Although the state's comment was arguably improper, we find, in light of the evidence produced at trial, it did not prejudicially affect Djuric. {¶ 58} Last, Djuric complains about the questions posed to Cosic with regard to what she told the detective. Evid.R. 616(C) allows a witness to be impeached using specific contradiction. The state was permitted to show that Cosic's testimony in court was different from what she told the detective; therefore, there was no error. {¶ 59} Although several errors were committed at trial, we do not find a reasonable probability that the outcome of the trial would have been different. Accordingly, Djuric's seventh assignment of error is overruled. {¶ 60} "VIII. Defendant was denied due process of law when the Court denied defendant's motion for judgment of acquittal as to the kidnapping count." {¶ 61} Crim.R. 29(A) permits a motion for acquittal if the evidence is insufficient to sustain a conviction for the offenses as charged in the indictment. A challenge to the sufficiency of the evidence attacks the adequacy of the evidence presented. Whether the evidence is legally sufficient to sustain a conviction is a question of law. See State v.Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. The relevant inquiry in a claim of insufficiency 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 proved beyond a reasonable doubt.'" State v. Leonard, 104 Ohio St.3d 54, 67,2004-Ohio-6235, quoting State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. {¶ 62} Djuric complains that there was insufficient evidence to sustain a conviction for kidnapping in count two because there was no evidence to show that Djuric by any means removed the victim from where she was found or restrained her of her liberty. {¶ 63} The kidnapping statute reads as follows: "No person, by force, threat, or deception, or in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person * * * to facilitate the commission of any felony or flight thereafter [and] to engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim's will * * *." R.C. 2905.01(A)(4). {¶ 64} In this case, there was sufficient evidence to prove beyond a reasonable doubt that the victim was removed from the living room where her father was to the bedroom by Djuric's ploy to find his cat. Accordingly, Djuric's eighth assignment of error is overruled. {¶ 65} "IX. Defendant was denied due process of law when he was found not guilty and guilty of gross sexual imposition and kidnapping involving identical allegations." {¶ 66} Djuric argues that he cannot be found guilty of gross sexual imposition and kidnapping because he was found not guilty of another count of gross sexual imposition and kidnapping. Djuric argues that the indictment alleged the same conduct for all counts. {¶ 67} Under Crim.R. 8(A), two or more offenses may be charged together if the offenses "are of the same or similar character * * * 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." In fact, "the law favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged `are of the same or similar character.'" State v. Hand, 107 Ohio St.3d 378, 401,2006-Ohio-18, quoting State v. Lott, 51 Ohio St.3d 160, 163. Djuric was charged with two separate counts of gross sexual imposition and kidnapping because the facts alleged by the victim detailed two separate but similar incidents that occurred during the two trips to the bedroom. Djuric's ninth assignment of error is without merit and thus overruled. {¶ 68} "X. Defendant was denied due process of law when he was sentenced to more than a minimum sentence." {¶ 69} The trial court imposed more than the minimum sentence pursuant to R.C. 2929.14(B) and 2929.19(B)(2), which the Supreme Court of Ohio has since declared unconstitutional and excised from the statutory scheme. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ?1-4, applyingUnited States v. Booker (2005), 543 U.S. 220; Blakely v. Washington (2004), 542 U.S. 296; and Apprendi v. New Jersey (2000), 530 U.S. 466. As a result, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Foster, at paragraph 7 of the syllabus, and State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, paragraph 3 of the syllabus. Nevertheless, defendants who were sentenced under unconstitutional and now void statutory provisions must be resentenced. Foster, supra, ¶ 103-106. Consequently, we sustain Djuric's assignment of error, vacate his sentence, and remand this matter to the trial court for resentencing. {¶ 70} "XI. Defendant was denied due process of law when the Court in recording the verdict of the jury and sentencing stated defendant had been found guilty of gross sexual imposition with a sexually violent predator specification." {¶ 71} Djuric complains that the trial court erred because its journal entry reflects that he was found guilty of the sexually violent predator specification, when in fact he was not. We agree that the verdict and sentencing journal entry incorrectly state that Djuric was found guilty of the sexually violent predator specification. {¶ 72} As a result, Djuric's eleventh assignment of error is sustained. As stated in the previous assignment of error, Djuric's sentence is vacated and this case is remanded for resentencing. In addition, the trial court is ordered to correct the verdict and sentencing journal entry to accurately reflect Djuric's convictions. Affirmed in part and vacated in part and remanded for resentencing. It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN, J.,* CONCURS; CHRISTINE T. M CM O NAGLE, J., CONCURS IN JUDGMENT ONLY REGARDING ASSIGNMENT OF ERROR 1 and CONCURS WITH MAJORITY ON THE REMAINING ASSIGNMENTS OF ERROR (See separate opinion.) * Sitting by Assignment: Judge Michael J. Corrigan, Retired, of the Eighth District Court of Appeals.

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OPINION *Page 2 {¶ 1} Defendant-appellant, David Phillips, appeals his sentence from the Holmes County Court of Common Pleas on one count of breaking and entering. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶ 2} On December 17, 2007, the Holmes County Grand Jury indicted appellant on one count of breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth degree, and one count of theft in violation of R.C. 2913.02(A)(1), also a felony of the fifth degree. At his arraignment on January 15, 2008, appellant entered a plea of not guilty to the charges. {¶ 3} Thereafter, on February 11, 2008, appellant withdrew his former not guilty plea and entered a plea of guilty to one count of breaking and entering. Pursuant to a Judgment Entry filed on March 27, 2008, appellant was sentenced to twelve (12) months in prison and ordered to pay restitution in the amount of $417.00. {¶ 4} Appellant now raises the following assignment of error on appeal: {¶ 5} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN SENTENCING DEFENDANT/APPELLANT TO THE MAXIMUM PRISON SENTENCE ALLOWED BY LAW." {¶ 6} However, we cannot reach the merits of appellant's arguments at this time because the judgment appealed from is not a final, appealable order and this Court, therefore, lacks jurisdiction to hear the instant appeal. {¶ 7} The Supreme Court has held, "A more logical interpretation of Crim. R. 32(C)'s phrase `the plea, the verdict or findings, and the sentence' is that a trial court is *Page 3 required to sign and journalize a document memorializing the sentence and the manner of the conviction: a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial."State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163 (emphasis added). Further, all four of these requirements must be contained in a single document. Id. at 201. The entry appealed from does not contain the manner of conviction; therefore, the entry is not a final, appealable order. {¶ 8} Moreover, upon review of the record, we find the count of theft remains pending. While, at the plea hearing, the trial court indicated that the State was going to dismiss such count, there is no indication that such count was ever dismissed. The trial court did not journalize an entry that disposed of the remaining count of theft. Because the trial court has failed to dispose of all the charges, the order appealed from is not yet a final appealable order. See, R.C. 2505.02. *Page 4 {¶ 9} Accordingly, this case is dismissed for lack of a final appealable order. Edwards, J. Hoffman, P.J. and Wise, J. concur. *Page 5 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the appeal of the Holmes County Court of Common Pleas is dismissed for lack of a final appealable order. Costs assessed 50% to appellant and 50% to appellee. *Page 1

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ACCELERATED DOCKET JOURNAL ENTRY and OPINION This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the record from the lower court and the briefs of counsel. Defendant-appellant Gregor H. Rigo appeals the sentences imposed by the trial court. For the reasons below, we affirm. On February 18, 2000, Rigo, a volunteer soccer coach in Strongsville, invited one of his soccer players, a fourteen-year-old boy, to dinner. Rigo asked T1 to participate in a scientific study. Rigo, an environmental engineer, claims to have seen a study which analyzed the effect that dioxins have on the genital development of young males whose mothers were exposed to the chemical. Rigo decided to conduct his own study of this issue. Rigo did not tell T the nature of his study, but advised him that he was sending his results to Congress. T agreed to participate in the study. After dinner, Rigo took T to his office, and asked T if he could take some measurements of his body. Rigo measured each body part five times, each time writing the measurements onto a piece of paper. Rigo then asked T if he could measure his testicles. At first T was reluctant, but was persuaded by Rigo who assured him that it would help with the experiment. Rigo provided T with a pair of green shorts, and instructed T to remove his underwear and then put on the shorts. Rigo measured T's penis and then he measured T's testicles with a caliper. Rigo requested that T bend over so that he could measure his anus. Claiming that he was unable to get a proper measurement in this position, Rigo asked T to place his chest on the floor and push his bottom upward so that Rigo could measure T's anus with a tape measure. After the incident, Rigo gave T $60 and told him not to tell anyone about the measurements. While driving T home, Rigo stated that he would like to measure T again on February 21, 2000. On February 21, 2000, T and his father reported the incident to the Berea Police. The police instructed T to call Rigo and ask him questions. Rigo's responses corroborated T's story. Rigo was arrested and questioned by the police. This interview revealed that Rigo had also measured another boy, W, whom Rigo had also coached in soccer. W advised police that in mid-1997, Rigo had measured him at his office. In addition to other body parts, Rigo had also measured W's penis and testicles. After completing the measurements he gave W $100 and told him not to tell anyone. Approximately two years later, W was working in Rigo's home. While alone with Rigo, Rigo grabbed W in a bear hug and attempted to put his hands down W's pants. W stated that he elbowed and punched Rigo, ending the encounter. W also advised police that Rigo provided him with gifts and an Internet account. On February 22, 2000, the police conducted a search of Rigo's office and found a pair of green shorts, a caliper, a tape measure and written measurements. In addition, pictures of young nude males engaging in sexual acts were discovered. These pictures had been downloaded from the Internet. On February 23, 2000, police conducted a search of Rigo's home and found pornographic images of children on Rigo's computer, including photos, movie clips and audio files. Rigo first maintained that the child pornography was linked to his scientific study. In later interviews, however, he admitted that he was motivated to conduct the scientific study by his erotic interests. Rigo's psychologist testified that Rigo was in denial, and believed that he was truly conducting a scientific experiment. Rigo was indicted on two counts of kidnapping; two counts of gross sexual imposition, a fourth degree felony (counts 2 and 4); one count of attempted gross sexual imposition; twenty-three counts of pandering sexually-oriented matter involving a minor, a fifth degree felony (counts 20, 22, and 28); and one count of possession of criminal tools, a fifth degree felony (count 30). On August 21, 2000, Rigo pled guilty to counts 2, 4, 20, 22, 28 and 30. On September 25, 2000, the trial court sentenced Rigo to the maximum sentence of eighteen months on both counts 2 and 4, to run consecutively. On counts 20, 22, 28 and 30, Rigo was sentenced to the minimum sentence of six months on each count, to run concurrently to each other, and consecutively to the sentence on counts 2 and 4. In total, the sentence included forty-two months of incarceration. On October 25, 2000, Rigo filed a notice of appeal. On November 11, 2000, Rigo filed a motion for judicial release with the trial court. On December 15, 2000, the trial court denied Rigo's motion at this time.2 On May 4, 2001, after a hearing, the court granted the motion, and sentenced Rigo to five years of community controlled sanctions. Pursuant to R.C. 2929.20, if Rigo violates the sanction, the trial court reserves the right to reimpose the original sentence. Thus, whether the trial court erred in imposing the original sentence is at issue. Appellant raises the following assignments of error: I. THE TRIAL COURT ERRED BY IMPOSING MORE THAN THE MINIMUM SENTENCE FOR COUNTS 2 AND 4. II. THE TRIAL COURT ERRED BY IMPOSING THE MAXIMUM SENTENCE FOR COUNTS 2 AND 4. III. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES FOR COUNTS 2 AND 4 AND BY IMPOSING THE SENTENCES ON COUNTS 20, 22, 28 AND 30 CONSECUTIVE TO THE SENTENCES ON COUNTS 2 AND 4. Rigo maintains that the trial court's sentencing decision failed to meet the statutory requirements for imposing more than the minimum sentence for an offender who has not previously served prison time, for imposing the maximum sentence for gross sexual imposition, and for imposing consecutive sentences. Rigo's appeal of his sentence is brought pursuant to R.C. 2953.08 which provides: (G)(1) If the sentencing court was required to make the findings required by division (B) or (D) of section 2929.13, division (E)(4) of section 2929.14, * * * of the Revised Code relative to the imposition * * * of the sentence, and if the sentencing court failed to state the required findings on the record, the court hearing an appeal under division (A), (B), or (C) of this section shall remand the case to the sentencing court and instruct the sentencing court to state, on the record, the required findings. (2) * * * The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. * * * The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (E)(4) of section 2929.14, * * * of the Revised Code, whichever, if any, is relevant * * *. Applying a clear and convincing standard in reviewing Rigo's sentences, we conclude that the trial court followed the mandates of R.C. 2929.14 and 2929.19, specifically as these statutes refer to the imposition of more than a minimum sentence, maximum sentences and consecutive terms. R.C. 2929.14(B), R.C. 2929.14(C) and R.C. 2919.14(E)(4) establish the public policy disfavoring prison terms that are greater than the minimum for first time offenders, and maximum or consecutive sentences except for the most deserving offenders. See, State v. Edmonson (1999),86 Ohio St. 3d 324, 328, 715 N.E.2d 131, 135; State v. Gonzales (Mar. 15, 2001), Cuyahoga App. No. 77338, unreported. The other statute at issue, R.C. 2929.19(B)(2)(a),(d) and (e), sets forth the procedure that a trial court must follow when imposing a prison term for a fourth or fifth degree felony, consecutive sentences for multiple offenses and maximum sentences. See R.C. 2929.19; Edmonson,86 Ohio St.3d at 328, 715 N.E.2d at 135; Gonzales, supra. Prison term on fourth and fifth degree felonies Before the court can impose a prison term for a fourth or fifth degree felony, it must give its reasons for imposing the prison term, based upon the overriding purposes and principles of felony sentencing set forth in section R.C. 2929.11, and any factors listed in division (B)(1)(a) to (h) of section 2929.13 that it found to apply relative to the offender. Here, the court found that section (B)(1)(d) of R.C. 2929.13 applied. This section states as follows: (d) 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. The court stated that as a soccer coach Rigo was in a position of trust, and used that position to violate the victims. Thus, the trial court did not err in imposing prison sentences for the fourth and fifth degree felonies. Greater than minimum term In regard to imposing more than the minimum upon a first-time offender, the record of the sentencing hearing must reflect that the court found that either or both of the two statutorily sanctioned reasons for exceeding the minimum term warranted a longer sentence. R.C.2929.14(B) does not require that the trial court give its reasons for its [statutory] findings. Edmonson 86 Ohio St.3d at 326. R.C. 2929.14(B), reads as follows: (B) * * * if 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 pursuant to division (A) of this section, 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. Prior to sentencing, the trial court recited generally the factors to be considered in sentencing, and in doing so, recited one of the R.C.2929.14(B) factors, stating that: In attempting to achieve the overriding purposes for felony sentencing, the Court has to be mindful that the sentencing be commensurate with the offender's conduct and that the sentence not demean the seriousness of the offender's conduct. The trial court recited this language, but it never concluded that a minimum sentence in this case would demean the seriousness of Rigo's conduct. The trial court did consider the recidivism component of R.C.2929.14(B), stating that: The need for deterring the offender from future crime. I find that is great. The trial court then explained that based on Megan's law, these types of offenders have a high rate of recidivism. Also, the court noted that Rigo lacked remorse, as determined by the probation officer who prepared the presentence investigation report.3 The presentence investigation report checklist states that Rigo's lack of remorse supported a finding that recidivism is likely. The court also noted that these incidents took place at two separate times, with two different boys, over a two-year period. Although the language used by the trial court did not specifically state that a shorter term will not adequately protect the public from future crime by [Rigo] * * *, it implies that he made that finding as required by R.C. 2929.14(B). Further, in the journal entry the court states that Sentences between cts 2 4 and the constellation of cts (20, 22, 28, 30) are necessary to protect the public from future crime * * *. Thus, the trial court's finding that Rigo presents a risk of committing the same kind of crime in the future supports the court's decision to sentence Rigo to more than the minimum prison term. State v. McKinley (June 22, 2000), Cuyahoga App. No. 76443, unreported. Therefore, the trial court did not err in imposing more than the minimum sentence on Rigo. Consecutive Sentences R.C. 2929.14(E)(4) sets forth the factors for imposition of consecutive or multiple prison terms. R.C. 2929.14(E)(4), in pertinent part provides: 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 sentence 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 * * *. Further, the trial court is required to find that the offender's behavior fits into one of the categories listed in R.C.2929.14(E)(4)(a)(b)(c). Once the trial court has made a category finding, the trial court must give its reason for imposing consecutive terms. R.C. 2929.19(B)(2)(c). Here, in imposing consecutive sentences, the trial court recited the statutory language set forth in R.C. 2929.14(E), and made a category finding under R.C. 2929.14(E)(4)(b), which states: (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. The trial court then stated that he was imposing consecutive sentences because the nature of the offense caused the victims depicted in the pornographic pictures that Rigo had downloaded to be violated again and again by the dissemination of these photos and films. He further stated that he made these findings in the context of all these reports that I've read, all these scientific reports, all of these other studies that have been provided by the State and the defense. Therefore, it can be construed that the trial court set forth its reasons for making the category finding above by incorporating the material that he previously discussed in detail on the record in his analysis under R.C. 2929.14(C). During the discussion of R.C. 2929.14(C), the trial court found Rigo's acts to be the worst form of the offense, and, as noted below, gave specific reasons for his findings. Maximum sentence Rigo disputes that the trial court complied with the statutory sentencing requirements in imposing the longest terms allowed on both counts of gross sexual imposition. However, the court made a category finding under R.C. 2929.14(C), and gave its reasons under R.C. 2929.19(B)(2)(d) for imposing the longest term. R.C. 2929.14(C) provides: The court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense * * * only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders * * *, and upon certain repeat violent offenders * * *. The trial court made the requisite category finding by stating on the record that Rigo committed the worst form of the offense of gross sexual imposition, and further found that Rigo poses the greatest likelihood of committing future crimes. In addition to the required category finding under R.C. 2929.14(C), the sentencing judge must provide for the record the reasons for said category finding. See Edmonson, 86 Ohio St.3d at 326, 715 N.E.2d at 134; Gonzales, supra. Reasons should mean the trial court's basis for its findings. Gonzalez. Here, the trial court stated that the reasons for its finding that this was the worse form of the offense was the deceitful and fraudulent nature of the acts and Rigo's breach of ethics by committing the acts under the guise of a scientific experiment. Further, the court noted that Rigo's offenses were despicable due to the fact that Rigo is a Ph.D., and in a position of trust, and that his acts involved young people who remain adversely affected well after these incidents have taken place. Therefore, the trial court followed the statutory mandates in sentencing Rigo to maximum terms on the gross sexual imposition counts. Based on the foregoing, we find that Rigo's assignments of error lack merit. Accordingly, the decision of the trial court is affirmed. It is ordered that appellant recover of appellee its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. _____________________________ COLLEEN CONWAY COONEY, JUDGE: JAMES D. SWEENEY, P.J., and ANNE L. KILBANE, J., CONCUR. 1 Court policy requires that we avoid naming victims of sexual assaults whenever possible. 2 No subsequent motion was filed, but the hearing on the motion was continued even though it had already been denied. 3 However, there was evidence of remorse at the sentencing hearing. For instance, the psychologist who had been counseling Rigo from the date of the incident testified on behalf of Rigo. She stated that she had been chipping away at Rigo's denial, and that he is a man who feels very badly about what happened. At the hearing, Rigo stated that he couldn't feel worse about what [he] did to the boys. * * * I feel especially bad about the teasing and verbal abuse suffered by the boys who played soccer for me or worked with me, at their schools, as the result of my action.

2016-07-06 06:41:48.977368+00

OPINION *Page 2 {¶ 1} This is an appeal from the decision of the Tuscarawas County Court of Common Pleas granting summary judgment in favor of appellee, Sandy Valley Church of God and against appellant, Tom Aycock. STATEMENT OF FACTS AND CASE {¶ 2} This case involves a premise liability matter. The facts which gave rise to the action are as follows: {¶ 3} On April 18, 2002, appellant, Tom Aycock, attended a district meeting at the Sandy Valley Church of God. Appellant was fifty-five years old, with poor peripheral vision. Because of his vision problems, appellant was driven to the church meeting by a friend. Appellant arrived at the church at approximately 7:00 p.m. Sunset was at approximately 8:08 p.m. Appellant entered and exited the church through the south door. When he arrived, appellant walked up the sloped wheelchair ramp located on the east side of the church's cement porch. {¶ 4} The south door of the church leads into the vestibule. "Immediately outside the vestibule doors (i.e. the south door) there is a concrete porch which is approximately 14' 6" wide and 8' 1" deep. The southern edge of the [concrete] porch abuts an asphalt driveway and parking lot. The top of the porch is elevated off the driveway between 17 ¾ and 22 inches due to varying grade. Concrete ramps intended for handicap access extend from the east and west side of the porch and connect to concrete sidewalks below." (Affidavit of Mark E. Williams, Architect). The porch is tan in color and the asphalt parking lot is black. *Page 3 {¶ 5} "The east ramp has a 1:8 slope. The west ramp has a 1:9 slope. There is no handrail provided on either side of the ramps. There is no guardrail provided on the open side of the elevated concrete porch floor. The available light for the porch consists of two decorative coach type light fixtures mounted approximately 5'0" above the concrete porch floor and 1'6" from the vestibule door. . .. A line projected from each light fixture to the elevated edge would cross the concrete and strike the asphalt paving approximately 3 feet south of the porch, resulting in no direct light reaching the first three feet of the driveway/ parking lot." (Affidavit of Mark E. Williams, Architect) {¶ 6} The church meeting ended at approximately 8:45 p.m. After the meeting, appellant waited inside the church and allowed the majority of the crowd to leave. Appellant exited the vestibule through the south door and waited on the concrete porch for his friend to bring the car. The porch was completely full of people. The coach lights were dim and the pole light in the parking lot was not operating. {¶ 7} While he was on the porch he spoke with another attendee and watched people hop off the porch to the asphalt below. He also observed several cars go by with their headlights illuminating the area between the porch and the asphalt parking lot. When appellant saw what he thought were his friend's car's headlights, he stepped down off the front of the concrete porch. Before stepping off the porch he looked at the asphalt parking lot below. Appellant admitted that he misjudged the height of the porch from the asphalt. Consequently, appellant landed heavily on his right foot and fell onto the pavement. As a result, appellant injured his right shoulder and fractured his right hip. {¶ 8} On October 7, 2005, (after a prior voluntary dismissal) appellant re-filed a complaint for negligence against appellee-church. Appellant alleged that appellee *Page 4 breached a duty of care owed to appellant by failing to keep the porch area in a safe condition and by failing to adequately light, guard, or give warning of the dangerous conditions. Appellant further alleged that appellee failed to comply with state and local building codes as they related to the construction, improvements and maintenance of the porch area. Specifically, appellant argued that appellee failed to install handrails. Appellant stated that appellee's negligence was the proximate cause of his injuries. {¶ 9} On February 6, 2006, appellee filed a motion for summary judgment arguing that the difference in height elevation between the porch and the asphalt was an open and obvious danger which served as a warning to appellant thereby negating any liability. Appellant filed a response in opposition. On August 24, 2006, the trial court granted appellee's motion for summary judgment. Specifically, the trial court held as follows: {¶ 10} "FINDS that from a review of the evidence to be considered under Civ.R.56, reasonable minds can come to but one conclusion on all claims made in the Complaint against the Defendant, and that conclusion is unfavorable to the Plaintiffs, the parties against whom the Motion for Summary Judgment has been made. The Plaintiffs have been entitled to, and have received, a construction of the evidence most strongly in their favor. {¶ 11} "FINDS that no genuine issue as to any material fact remains to be litigated. {¶ 12} "FINDS that the Defendant is entitled to judgment as a matter of law and that the Plaintiffs have failed to produce a sufficient quantum of evidence on the issues *Page 5 postured for Summary Judgment for which the Plaintiffs bear the burden of production at Trial. {¶ 13} "FINDS that the evidence allowed to be considered on a Summary Judgment Motion supports the conclusion that the Plaintiffs have no legally recoverable claims against the Defendant in this case." {¶ 14} It is from this judgment that appellant appeals, setting forth the following assignment of error: {¶ 15} "THE TRIAL COURT COMMITTED ERROR BY DISMISSING THE CLAIMS OF APPELLANT AS A MATTER OF LAW." {¶ 16} An appellate court's review of summary judgment is conducted de novo. See, e.g., Grafton v. Ohio Edison Co. (1996), 77 Ohio St. 3d 102,105, 671 N.E.2d 241. Accordingly, an appellate court must independently review the record to determine if summary judgment was appropriate and need not defer to the trial court's decision. See Brown v. Scioto Bd. ofCommrs. (1993), 87 Ohio App. 3d 704, 711, 622 N.E.2d 1153; Morehead v.Conley (1991), 75 Ohio App. 3d 409, 411-412, 599 N.E.2d 786. Thus, in determining whether a trial court properly granted a summary judgment motion, an appellate court must review the Civ.R. 56 summary judgment standard, as well as the applicable law. {¶ 17} Civ. R. 56(C) provides, in relevant part, as follows: {¶ 18} "* * * 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 *Page 6 party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor." {¶ 19} Therefore, pursuant to that rule, a trial court may not award summary judgment unless the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and after viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327,364 N.E.2d 267; Vahila v. Hall (1997), 77 Ohio St. 3d 421, 429-30,674 N.E.2d 1164. {¶ 20} "In order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of duty, and injury resulting proximately therefrom." Strother v. Hutchinson (1981),67 Ohio St. 2d 282, 285, 423 N.E.2d 467; Texler v. D.O. SummersCleaners (1998), 81 Ohio St. 3d 677, 680, 1998-Ohio-602, 693 N.E.2d 217;Jeffers v. Olexo (1989), 43 Ohio St. 3d 140, 142, 539 N.E.2d 614;Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75,472 N.E.2d 707. If a defendant points to evidence illustrating that the plaintiff will be unable to prove any one of the foregoing elements and if the plaintiff fails to respond as Civ.R. 56 provides, the *Page 7 defendant is entitled to judgment as a matter of law. SeeFeichtner v. Cleveland (1994), 95 Ohio App. 3d 388, 394, 642 N.E.2d 657;Keister v. Park Centre Lanes (1981), 3 Ohio App. 3d 19, 443 N.E.2d 532. {¶ 21} In a premises liability case, the relationship between the owner or occupier of the premises and the injured party determines the duty owed. See, e.g., Gladon v. Greater Cleveland Regional TransitAuth. (1996), 75 Ohio St. 3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287;Shump v. First Continental-Robinwood Assocs. (1994), 71 Ohio St. 3d 414,417, 644 N.E.2d 291. Ohio adheres to the common-law classifications of invitee, licensee, and trespasser in cases of premises liability.Shump v. First Continental-Robinwood Assoc. (1994), 71 Ohio St. 3d 414,417, 1994-Ohio-427, 644 N.E.2d 291, 294; Boydston v. Norfolk S.Corp. (1991), 73 Ohio App. 3d 727, 733, 598 N.E.2d 171, 175. In the case at bar, the parties do not dispute that appellant is an invitee. {¶ 22} An invitee is defined as a person who rightfully enters and remains on the premises of another at the express or implied invitation of the owner and for a purpose beneficial to the owner. Gladon v.Greater Cleveland Regional Authority (1996), 75 Ohio St. 3d 312, 315,1996-Ohio-137, 662 N.E. 287. The owner or occupier of the premises owes the invitee a duty to exercise ordinary care to maintain its premises in a reasonably safe condition, such that its invitees will not unreasonably or unnecessarily be exposed to danger. Paschal v. Rite AidPharmacy, Inc. (1985), 18 Ohio St. 3d 203, 480 N.E.2d 474. A premises owner must warn its invitees of latent or concealed dangers if the owner knows or has reason to know of the hidden dangers. See Jackson v. KingsIsland (1979), 58 Ohio St. 2d 357, 358, 390 N.E.2d 810. However, a premises *Page 8 owner is not, an insurer of its invitees' safety against all forms of accidents that may happen. Paschal v. Rite Aid Pharmacy, Inc,18 Ohio St. 3d at 204. Invitees are expected to take reasonable precautions to avoid dangers that are patent or obvious. See Brinkman v. Ross (1993),68 Ohio St. 3d 82, 84, 623 N.E.2d 1175; Sidle v. Humphrey (1968),13 Ohio St. 2d 45, 233 N.E.2d 589, paragraph one of the syllabus. Therefore, when a danger is open and obvious, a premises owner owes no duty of care to individuals lawfully on the premises. See Armstrong v. Best BuyCo., 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E.2d 1088; Sidle v.Humphrey (1968), 13 Ohio St. 2d 45, 233 N.E.2d 589, paragraph one of the syllabus. {¶ 23} Open and obvious dangers are not concealed and are discoverable by ordinary inspection. Parsons v. Lawson Co. (1989), 57 Ohio App. 3d 49,50-51, 566 N.E.2d 698. The dangerous condition at issue does not actually have to be observed by the claimant to be an open and obvious condition under the law. Lydic v. Lowe's Cos., Inc., Franklin App. No. 01AP-1432, 2002-Ohio-5001, at paragraph 10. Rather, the determinative issue is whether the condition is observable. Id. {¶ 24} The underlying rationale is that "the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves."Armstrong Supra, citing Simmers v. Bentley Construction Co. (1992),64 Ohio St. 3d 642, 644, 1992-Ohio-42, 597 N.E.2d 504. "The fact that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves the property owner of liability. Rather, it is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the *Page 9 plaintiff." Armstrong Supra. When applicable, the open and obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claim. Id. {¶ 25} In most situations, whether a danger is open and obvious presents a question of law. See Hallowell v. Athens, Athens App. No. 03CA29, 2004-Ohio-4257, at paragraph 21; see, also, Nageotte v. CafaroCo., 160 Ohio App. 3d 702, 2005-Ohio-2098, 828 N.E.2d 683. However, under certain circumstances disputed facts may exist regarding the openness and obviousness of a danger thus rendering it a question of fact. As the court explained in Klauss v. Marc Glassman, Inc., Cuyahoga App. No. 84799, 2005-Ohio-1306, at paragraph 17-18: "Although the Supreme Court of Ohio has held that whether a duty exists is a question of law for the court to decide, the issue of whether a hazardous condition is open and obvious may present a genuine issue of fact for a jury to review. Therefore, where only one conclusion can be drawn from the established facts, the issue of whether a risk was open and obvious may be decided by the court as a matter of law. Anderson v. Hedstrom Corp. (S.D.N.Y.1999), 76 F. Supp. 2d 422, 441; Vella v. Hyatt Corp. (S.D. MI 2001), 166 F. Supp. 2d 1193, 1198; see, also, Parsons v. Lawson Co. (1989), 57 Ohio App. 3d 49, 566 N.E.2d 698. where reasonable minds could differ with respect to whether a danger is open and obvious, the obviousness of the risk is an issue for the jury to determine.Carpenter v. Marc Glassman, Inc. (1997), 124 Ohio App. 3d 236, 240,705 N.E.2d 1281; Henry v. Dollar General Store, Greene App. No. 2002-CA-47, 2003-Ohio-206; Bumgarner v. Wal-Mart Stores, Inc., Miami App. No. 2002-CA-11, 2002-Ohio-6856." Accordingly "[t]he determination of the existence and obviousness of a danger alleged to exist on a *Page 10 premises requires a review of the facts of the particular case."Miller v. Beer Barrel Saloon (May 24, 1991), Ottawa App. No. 90-OT-050. {¶ 26} "Attendant circumstances" become part of the analysis and may create a genuine issue of material fact as to whether a hazard is open and obvious. See Cummin v. Image Mart, Inc., Franklin App. No. 03AP1284, 2004-Ohio-2840, at paragraph 8, citing McGuire v. Sears, Roebuck Co. (1996), 118 Ohio App. 3d 494, 498, 693 N.E.2d 807. An attendant circumstance is a factor that contributes to the fall and is beyond the injured person's control. See Backus v. Giant Eagle, Inc. (1996),115 Ohio App. 3d 155, 158, 684 N.E.2d 1273. "The phrase refers to all circumstances surrounding the event, such as time and place, the environment or background of the event, and the conditions normally existing that would unreasonably increase the normal risk of a harmful result of the event." Cummin, at paragraph 8, citing Cash v.Cincinnati (1981), 66 Ohio St. 2d 319, 324, 421 N.E.2d 1275. An attendant circumstance has also been defined to include any distraction that would come to the attention of a person in the same circumstances and reduce the degree of care an ordinary person would have exercised at the time.McGuire, 118 Ohio App.3d at 499. Attendant circumstances do not include the individual's activity at the moment of the fall, unless the individual's attention was diverted by an unusual circumstance of the property owner's making. See McGuire, 118 Ohio App.3d at 498. {¶ 27} Also, an individual's particular sensibilities do not play a role in determining whether attendant circumstances make the individual unable to appreciate the open and obvious nature of the danger. As the court explained in Goode v. Mt. Gillion Baptist Church, Cuyahoga App. No. 87876, 2006-Ohio-6936, at paragraph 25: *Page 11 "The law uses an objective, not subjective, standard when determining whether a danger is open and obvious. The fact that a particular appellant herself is not aware of the hazard is not dispositive of the issue. It is the objective, reasonable person that must find that the danger is not obvious or apparent." {¶ 28} Furthermore, the violation of a building code does not automatically act to impart negligence. In Chambers v. St. Mary'sSchool, 82 Ohio St. 3d 563, 1998-Ohio-184, 697 N.E.2d 198, the Supreme Court addressed whether a violation of the OBBC may constitute negligence per se. The court explained the difference between negligence and negligence per se, stating: "The distinction between negligence and `negligence per se' is the means and method of ascertainment. The first must be found by the jury from the facts, the conditions and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of the specific act inhibited or required." * * * Negligence per se is tantamount to strict liability for purposes of proving that a defendant breached a duty.' Id. at 565-66, 697 N.E.2d 198, quoting Swoboda v.Brown (1935), 129 Ohio St. 512, 522, 196 N.E.2d 274. {¶ 29} The Supreme Court further held that violations of the OBBC do not constitute negligence per se, but that they may be admissible as evidence of negligence and should be considered in light of the surrounding circumstances. Furthermore, "Negligence per se does not equal liability per se. Courts have reasoned that, simply because the law may presume negligence from a person's violation of a statute or rule does not presume that such negligence was the proximate cause of the harm inflicted. *Page 12 Merchants Mutual Insurance Company v. Baker (1984),15 Ohio St. 3d 316, 473 N.E.2d 827, citing 39 Ohio Jurisprudence 2d (1959) 525-528, Negligence, Section 26. {¶ 30} In this case we disagree with appellant. We find that no genuine issue of material fact exists as to whether the elevation of the cement porch from the asphalt driveway presented an open and obvious danger. Appellant testified in his deposition that he had to walk up a sloping wheelchair ramp to reach the cement porch prior to entering the south door to the church. He further stated that he watched people hop off the porch, noticed a difference in colors between the porch and parking lot, observed the height elevation between the porch and the parking lot as cars drove by, and looked down at the asphalt prior to stepping off the porch. He was also aware that the wheelchair ramp and porch did not have handrails. Appellant further admitted that all these hazards were readily observable. See Early v. Damon's Restaurant, Franklin App. No. 05AP-1342, 2006-Ohio-3311 (stating that the lack of a handrail was an open and obvious hazard); Nelson v. Sound HealthAlternatives, Inc. (Sept. 6, 2001), Athens App. No. 01CA24, unreported, (holding that lack of handrail, uniformity of color between steps and landing, and dimly lit stairs presented open and obvious danger). Additionally, the argument that the cement porch was dimly lit making the elevation unperceivable is also unpersuasive since "darkness is always a warning of danger, and may not be disregarded." McCoy v. KrogerCo., Franklin App. No. 05AP7, 2005-Ohio-6965, at ¶ 14; see, also,Chaparro-Delvalle v. TSH Real Estate Invest. Co., Inc., Lorain App. No. 05CA008712, 2006-Ohio-925; Storc v. Day Drive Assocs. Ltd., Cuyahoga App. No. 86284, 2006-Ohio-561. *Page 13 {¶ 31} Under the circumstances, it appears from the record that appellant simply misjudged the height between the cement porch and the asphalt parking lot. We find that the condition of the cement porch was observable, open and obvious to the reasonable person. We further find that the open and obvious nature of the cement porch precludes appellant from liability for negligence. Accordingly, we hereby overrule appellant's sole assignment of error. {¶ 32} The judgment of the Tuscarawas County Court of Common Pleas is hereby affirmed. By: Edwards, J. Wise, J. concurs Hoffman, P. J. dissents *Page 14

2016-07-06 06:41:50.40214+00

JOURNAL ENTRY AND OPINION. {¶ 1} Defendant-appellant, Kevin Harris, appeals his conviction for rape and gross sexual imposition following a bench trial for these offenses. For the reasons that follow, we affirm. {¶ 2} In December 2000, the victim and her siblings were under the guardianship of their aunt, who had brought the children over to the home of the victim's mother for their weekend visitation. It appears from the record that the mother did not have custody of the victim or her siblings because the mother had recently been released from prison after serving a sentence for welfare fraud in California. Appellant, who was the boyfriend of the victim's mother, and his three-year old daughter were likewise visiting the home of the victim's mother. The victim was 11 years old at this time. {¶ 3} As evening approached, the victim and her siblings, as well as the mother, appellant and the latter's three-year-old child, all went to sleep in one room. According to the victim's testimony, the three-year-old child was sleeping in between appellant and the victim on the floor when, sometime during the night, appellant reached over the child and fondled the victim's breasts and later inserted his finger in her vagina. The victim testified that she awoke and appellant then got up to go to the bathroom. The victim's mother was awake by then and observed appellant "sweating" after returning from the bathroom. The victim testified that she then got up and went to sleep on the bed without saying anything to anyone. The next day, everyone awoke, had breakfast and went home. {¶ 4} The victim did not tell her mother what had happened until approximately one week later when the victim, again, went to visit her mother. The victim's aunt testified that the victim was very apprehensive about entering her mother's home when she heard appellant's voice from within. Appellant soon left and the victim then relayed the events that had occurred one week earlier. The mother, although angered and shocked, asked the victim not to say anything to anyone for fear that it would interfere with the mother's ability to regain custody of her children, which was due to occur in February 2001. The mother said that she would handle the situation. {¶ 5} The victim's mother testified that she confronted appellant and he denied the incident ever occurred. She, nonetheless, continued to see appellant, although he had no further contact with her children. The aunt, who was unaware of the allegations, testified that, around this time, the victim began acting out and fighting with her siblings more than before. {¶ 6} Feigning the need for medical attention, the aunt took the victim to pediatrician Karen Vargo, M.D., for a medical examination on January 16, 2001. The victim testified that she then described the incident involving appellant. Dr. Vargo testified that the victim's physical examination was unremarkable and she referred her to the Alpha Clinic at MetroHealth Medical Center for further gynecological examination as well as for counseling. She also contacted the Cuyahoga County Department of Children and Family Services ("CCDCFS"). {¶ 7} Bonnie Buden, an investigator in the intake department of CCDCFS, testified that she interviewed the victim. The victim again described the incident with appellant but her description of the sleeping arrangements had her mother sleeping on the bed and the victim getting up to go the bathroom. Ms. Budin similarly referred the victim to the Alpha Clinic and had no further contact with the victim. {¶ 8} At the Alpha Clinic, the victim was seen by pediatrician David Bar-Shain, M.D. He noted that she was a sixth-grade student in special classes for learning disabled children and that she exhibited oppositional behavior prior to disclosure. He further noted that, previous to this incident, the victim cut her lip with scissors "to prove that it didn't hurt" and also slit her throat with a knife although she didn't remember when or why she did it. The physical examination was otherwise normal, a finding that is not unusual with digital penetration, according to Dr. Bar-Shain's testimony. Based on her history, physical examination and the fact that she had given "spontaneous, clear consistent and detailed description of being abused," he concluded that the victim was "probably abused." {¶ 9} The counselor, Cheryl Kim, a licensed social worker, testified that she began counseling the victim in March 2001. She further testified that she had concluded that the victim's symptoms were consistent with post-traumatic stress disorder and treated her accordingly. {¶ 10} Appellant was eventually indicted for one count each of rape and gross sexual imposition, in violation of R.C. 2907.02 and 2907.05, respectively. Appellant waived a trial before a jury and the case was tried to the bench. {¶ 11} Testifying on appellant's behalf was Jacqueline Warren, Ph.D., a psychologist in private practice in Beachwood, Ohio. Dr. Warren testified that she reviewed the medical and educational records in this case. Relying on these records and, in particular, the report of Dorothy Dickens, a social worker affiliated with the Alpha Clinic,1 she opined that the victim's version of events is questionable given her history of embellishing or exaggerating events in order to seek attention. She conceded, however, that she did not interview nor otherwise evaluate the victim. {¶ 12} Appellant testified on his own behalf. His version of the events on the night in question was quite different than that of the victim's. He testified that the victim slept next to her mother, who slept next to him. Appellant's three-year-old child slept on the other side of him. He further testified that he did not get up to go the bathroom at any time during the night and that he slept through the night. Appellant vehemently denied that the events of that evening occurred as the victim reported them. {¶ 13} The trial court eventually found appellant guilty of both offenses. The trial court, however, did not find that the state proved beyond a reasonable doubt that appellant "purposely compell[ed] [the victim] to submit by use of force or threat of force," the penalty enhancement provision of the rape offense. He was, nonetheless, sentenced to concurrent terms of six years and one year, for rape and gross sexual imposition, respectively. {¶ 14} Appellant is now before this court and in his sole assignment of error contends that his conviction is against the manifest weight of the evidence. {¶ 15} A manifest-weight-of-the-evidence argument involves determining whether there exists a greater amount of credible evidence to support one side of an issue rather than the other. State v. Thompkins (1997), 78 Ohio St.3d 380, 387. It is not a question of mathematics, but depends on its effect in inducing belief. Id. A reviewing court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the factfinder clearly lost his or her 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. A new trial is warranted only in the exceptional case where the evidence weighs heavily against conviction. Id. {¶ 16} This is not the exceptional case. It was appellant's position that the victim's history of "embellish[ing] her stories" and engaging in self-injurious behavior such as cutting her lips with scissors and putting a knife to her throat was indicative of her lack of credibility as a witness. He, therefore, posited that inconsistencies in the testimony as to the sleeping arrangements, inter alia, could be equally indicative of less than credible testimony regarding the allegations of rape and gross sexual imposition against him. {¶ 17} To be sure, the trial court acknowledged the conflict in testimony as it pertained to the sleeping arrangements on the evening in question. Finding this testimony conflicting, however, did not require the trial court to conclude that the remaining testimony was any less credible. It is within the purview of the factfinder to believe all or part of any testimony the factfinder hears. We cannot say that the trial court lost its way in resolving this conflicting testimony so as to create a manifest miscarriage of justice. In analyzing the inconsistencies in the testimony, the trial judge stated: {¶ 18} "Based on all the evidence here, I think that if we had only [the victim's] testimony as to what happened, * * * I would agree with [Defense Counsel], but her testimony was consistent with changes in her behavior that were noted and with the circumstances of this — details of this coming out over a period of several weeks or even months. I find that testimony to be credible. {¶ 19} "I understand there were inconsistencies as to who was where in the bedroom, but we must keep in mind that this — what happened that night was something that probably nobody in the room even thought much about at the time except for [the victim]. Where the television was, where the people were, I — I think two years or a year and a half after the fact, it's something people could be inconsistent about." {¶ 20} Relying on not only the testimony of the victim, but those with whom she interacted on a day-to-day basis, the trial court was able to reconcile this conflicting testimony with its conclusion finding appellant guilty of the offenses for which he was charged. Consequently, we see no manifest miscarriage of justice. Judgment affirmed. MICHAEL J. CORRIGAN, P.J., AND ANTHONY O. CALABRESE, JR., J., CONCUR 1 In the history section of her report, Ms. Dickens stated that the victim "also has a history of running away from home, suicidal gestures, embellishes her stories and struggles with adults including her teachers."

2016-07-06 06:41:49.589769+00

OPINION Appellant Derek Lee Williams is appealing the decision of the Muskingum County Court of Common Pleas, Probate Division, that denied his petition for adoption of Sara Marie Valentine, born June 11, 1992. The facts giving rise to this appeal are as follows. Appellant Williams is the husband of the minor child's biological mother, Cindy Williams. Appellee Gregory Thomas and Cindy Williams ended their relationship prior to the birth of their daughter. However, two weeks after the child's birth, Appellee Thomas contacted Mrs. Williams and asked to see the child. For the next year, appellee visited with the child between two to three times per week for approximately one and one-half to two and one-half hours. The visits occurred at Mrs. Williams' residence. Appellee filed two actions to establish paternity, however, both were subsequently dismissed. Appellee subsequently filed a third paternity action which was completed. Appellee was determined to be the biological father of Sara Marie Valentine on January 16, 1996. In late 1992, appellee gave Mrs. Williams $600 which she used to purchase bedroom furniture for the child. Also in 1992, appellee purchased an annuity for the child in the amount of $1,300. During the summer of 1993, appellee moved to Las Vegas. Between the summer of 1993 until June of 1997, appellee visited with the child a couple of times and telephoned once a week. Appellee contends that since the birth of the child, he has offered on several occasions to give Mrs. Williams money to cover expenses for the child. Mrs. Williams refused to accept the money. In December of 1996, appellee offered to pay the child's school tuition which Mrs. Williams refused stating the tuition was already paid. Appellant Williams filed adoption proceedings on January 23, 1997. In the petition, appellant alleged that consent of Appellee Thomas was not required because he had failed, for a period of one year prior to the filing of the petition, without justifiable cause, to provide maintenance and support for the minor child. The trial court conducted a hearing on the petition on January 31, 1997. The trial court issued its judgment entry on July 11, 1997, finding that appellee's failure to provide maintenance and support of the minor child was due to a justifiable cause and therefore, denied appellant's petition for adoption. Appellant timely filed his notice of appeal and sets forth the following assignments of error: I. THE TRIAL COURT ERRED IN ITS FINDING THAT APPELLEE HAD "JUSTIFIABLE CAUSE" FOR FAILING TO SUPPORT THE MINOR. II. THE TRIAL COURT'S FINDING THAT THE APPELLEE'S FAILURE TO PROVIDE MAINTENANCE AND SUPPORT FOR THE MINOR CHILD WAS JUSTIFIED, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL. I, II We will address both of appellant's assignments of error simultaneously as both concern whether appellant had justifiable cause for failing to support his minor child and whether the trial court's determination that appellant had justifiable cause was against the manifest weight of the evidence. Specifically, appellant contends, in his first assignment of error, that the trial court erred when it found justifiable cause for appellee's failure to support his minor daughter. In his second assignment of error, appellant contends the trial court's decision finding appellee's failure to provide support justified was against the manifest weight of the evidence. We disagree with both assignments of error. The statute at issue is R.C. 3107.07, which provides, in pertinent part: (A) A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner. (B) The putative father of the minor if either of the following applies: (1) The putative father fails to register as the minor's putative father with the putative father registry established under section 3107.062 of the Revised Code not later than thirty days after the minor's birth; (2) The court finds, after proper service of notice and hearing, that any of the following are the case: (b) The putative father has willfully abandoned or failed to care for and support the minor. * * * The trial court determined, in its judgment entry, that Cindy Williams' refusal to accept support payments was a justifiable cause for appellee not to pay and therefore, his consent to the adoption of the child was necessary. Judgment Entry, July 11, 1997, at 2. Appellant contends the one-year period began on January 16, 1996, and the only evidence of an attempt to support the minor child was the telephone conversation in December 1996, when appellee offered Mrs. Williams money for the child's tuition, which Mrs. Williams refused. Appellant also contends the trial court failed to consider R.C. 3107.07(B)(2)(b) which permits adoption, without the biological father's consent, where the putative father has abandoned or failed to care for and support the minor child. Based upon appellant's arguments, it is obvious that the dispute in this matter centers around appellee's support of the minor child. Pursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of proving, by clear and convincing evidence, both that the natural parent has failed to support the child for the requisite one year period and that this failure was without justifiable cause. In Re Adoption of Bovett (1987), 33 Ohio St. 3d 102, paragraph one of the syllabus. A probate court's determination will not be disturbed on appeal unless such determination is against the manifest weight of the evidence. In Re Adoption of Masa (1986), 23 Ohio St. 3d 163, paragraph two of the syllabus; Bovett at paragraph four of the syllabus. 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. We find the trial court's decision that appellee had justifiable cause not to financially support the minor child supported by the weight of the evidence. The trial court found that appellee offered to pay the child's tuition in December of 1996, within the one year period prior to the application for adoption, and that Mrs. Williams refused to accept the money stating the tuition had been paid. Tr. at 86-87. In a case similar to the case sub judice, an appellate court held that a father had justifiable cause for failure to support his child within the meaning of R.C. 3107.07(A) as the mother refused to accept offers of financial contributions towards the support of the child. In Re Adoption of Foster (1985), 22 Ohio App. 3d 129, paragraph three of the syllabus. Further, once it was determined that appellee was the biological father of the minor child, a hearing still had to be conducted to determine the amount of support he is to pay and the amount of support that he owes for back support. The trial court did not schedule a hearing on this matter until January 31, 1997, one week after appellant filed his petition for adoption, even though paternity was established on January 16, 1996. Appellant obviously could not make any payments to the Muskingum County Child Support Enforcement Agency during this time period as he did not know the amount owed and the Muskingum County Child Support Enforcement Agency would not accept the money without a court order. We find the trial court's decision finding appellee had justifiable cause for failing to support his daughter was not against the manifest weight of the evidence. Appellant's first and second assignments of error are overruled. For the foregoing reasons, the judgment of the Court of Common Pleas, Probate Division, Muskingum County, Ohio, is hereby affirmed. By: Wise, J., Farmer, P. J., and Gwin, J., concur. For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas, Probate Division, of Muskingum County, Ohio, is affirmed.

2016-07-06 06:41:49.646621+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Ronald V. Pigg, appeals his conviction from the Summit County Court of Common Pleas. This Court affirms. I. {¶ 2} Pigg was indicted on one count of burglary, in violation of R.C. 2911.12(A)(2), a felony of the second degree; and one count of menacing by stalking, in violation of R.C. 2903.211(A), a felony of the fourth degree. Pigg entered a plea of not guilty. {¶ 3} The indictment stemmed from an incident on March 4, 2008, where Pigg entered the apartment of Kristen Hutchinson. Hutchinson had a roommate, Vanessa Bonceak. Bonceak and Pigg had a child together and they had been in an on-and-off relationship for approximately two years. Bonceak received a phone call from Pigg earlier in the day on March 4, 2008, where he indicated he might come over later that evening to visit their son if Pigg did not have to work. Neither Hutchinson nor Bonceak had given him permission to enter the apartment alone. After *Page 2 receiving several phone calls informing her that someone had broken into her apartment, Hutchinson called 911. Hutchinson returned home to find law enforcement waiting for her. Law enforcement observed that the blinds to Bonceak's room had been tampered with, there was mud on the window and on the wall above the bed, and there were muddy footprints on the mattress. Law enforcement also found a note that had been left on Bonceak's bed. The note read, "Vanessa, Baby why ain't you here. I love you so much and I have no idea why you ain't here. I love you, Ron. Call me[.] Came to stay the night with you. [A]nd you ain't here[.]" Pigg was arrested by the Akron police on March 5, 2008. {¶ 4} A trial commenced on June 16, 2008. Pigg was convicted of the lesser-included offense of burglary, a felony of the fourth degree. The jury returned a verdict of not guilty of burglary as a second degree offense, and not guilty of menacing by stalking. On July 8, 2008, Pigg was sentenced to eighteen months in the Ohio Department of Corrections. The judgment of conviction was journalized on July 8, 2008, from which this appeal was timely taken. Pigg raises two assignments of error. This Court consolidates the assignments of error to facilitate review. II. ASSIGNMENT OF ERROR I "THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESSPASS, R.C.2911.21(A)(1)." ASSIGNMENT OF ERROR II "APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS HIS ATTORNEY FAILED TO REQUEST A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS, THUS CAUSING PREJUDICE TO APPELLANT'S SUBSTANTIAL RIGHTS." *Page 3 {¶ 5} Pursuant to Crim. R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." To constitute plain error, the error must be obvious and have a substantial adverse impact on both the integrity of, and the public's confidence in, the judicial proceedings. State v.Tichon (1995), 102 Ohio App. 3d 758, 767. A reviewing court must take notice of plain error only with the utmost caution, and only then to prevent a manifest miscarriage of justice. State v. Bray, 9th Dist. No. 03CA008241, 2004-Ohio-1067, at ¶ 12. "While a trial court does have a duty to include instructions on lesser included offenses, a defendant still retains the right, through counsel, to waive such instructions.State v. Clayton (1980), 62 Ohio St. 2d 45, 47, at fn.2. Given this right to waive jury instructions on lesser-included offenses, plain error does not lie where trial counsel failed to request jury instructions on lesser included offenses as a matter of trial strategy. Id. at 47."State v. Davis, 9th Dist. No. 21794, 2004-Ohio-3246, at ¶ 18. {¶ 6} Appellant points to this Court's ruling in State v. Morris, 9th Dist. No. 07CA0044-M, 2008-Ohio-3209, and contends that in addition to instructing the jury on the lesser-included offense of burglary as a fourth degree felony under R.C. 2911.12(A)(4), the trial court was required to instruct the jury on another lesser-included offense of burglary, that of criminal trespass under R.C. 2911.21(A)(1). InMorris, the trial court refused to grant the defendant's request for a jury instruction on criminal trespass. Morris at ¶ 3. However, in the present case, no such request was made. The trial record indicates that trial counsel for Pigg agreed to the jury instructions with the exception of a minor objection regarding the menacing by stalking charge. The parties were "in consensus" with regard to the jury instruction on the burglary charge. *Page 4 {¶ 7} The decision not to request a jury instruction on criminal trespass appears to be part of a trial strategy which allowed trial counsel to successfully persuade the jury that his client was not guilty of burglary as a second degree offense and not guilty of menacing by stalking. With the aim of obtaining an acquittal on all charged counts, trial counsel for Pigg advanced the theory that his client had entered the apartment with permission. R.C. 2911.21(A)(1), which proscribes criminal trespass, provides in a pertinent part: "No person, without privilege to do so, shall: [k]nowingly enter or remain on the land or premises of another[.]" To request a specific jury instruction for the lesser-included crime of criminal trespass would have undermined trial counsel's theory of the case which maintained that Pigg entered the apartment with permission. Trial counsel's decision amounted to an implicit waiver of the right to have a jury instruction on the lesser-included crime. Therefore, the tactical decision of trial counsel not to request a jury instruction on criminal trespass does not amount to a manifest miscarriage of justice and is not plain error. {¶ 8} The fact that trial counsel for Pigg made a tactical decision not to request a jury instruction on criminal trespass is also relevant to this Court's analysis of the allegation of ineffective assistance of counsel. To prevail on an allegation of ineffective assistance of counsel, the appellant must satisfy a two-prong test. First, the appellant must establish that his trial counsel's performance fell below an objective standard of reasonable representation and, second, he must demonstrate that he was prejudiced by counsel's performance.Strickland v. Washington (1984), 466 U.S. 668, 687; State v.Bradley (1989), 42 Ohio St. 3d 136, paragraph two of the syllabus. Trial counsel for Pigg elected not to request the jury instruction on criminal trespass as part of a trial strategy that proved to be, in part, successful. The strategy was reasonable and worked to the benefit of his client in that Pigg was acquitted of the second degree felony *Page 5 burglary charge as well as the fourth degree felony menacing by stalking charge. Employing such a strategy did not constitute ineffective assistance of counsel. The first and second assignments of error are overruled. III. {¶ 9} Pigg'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 Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30. Costs taxed to Appellant. WHITMORE, J. BELFANCE, J. CONCUR. *Page 1

2016-07-06 06:41:49.678755+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ACCELERATED DOCKET JOURNAL ENTRY AND OPINION {¶ 1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of counsel. {¶ 2} The appellant, Christopher Sanders, appeals the trial court's acceptance of his guilty plea relating to a charge of child endangerment by claiming that his plea was not entered into knowingly and voluntarily. After reviewing the record presented and for the reasons set forth below, we affirm the decision of the trial court. {¶ 3} On October 10, 2002, the Cuyahoga County Grand Jury indicted Christopher Sanders on a charge of child endangering, in violation of R.C. 2919.22. The indictment stated that Sanders did administer corporal punishment or other physical disciplinary measures against his two-year-old son, D.M.,1 which created a substantial risk of serious physical harm to D.M., that, if continued, would seriously impair or retard the child's mental health or development. As a result of this physical punishment, D.M. suffered various injuries, including a fractured left leg, a fractured left arm, an untreated fractured wrist, a lacerated pancreas, two lumps on his head, cigarette burns to his penis and foot, and a black eye. D.M. will need physical therapy to repair his left leg and is also suffering from night terrors. {¶ 4} On December 3, 2002, Sanders entered a plea of guilty to count one of the indictment as amended: child endangering, in violation of R.C. 2919.22, a felony of the third degree. The trial court explained Sanders' constitutional rights and accepted his guilty plea. The court then referred Sanders to the probation department for a presentence investigation and to the psychiatric clinic for a mitigation of penalty report. {¶ 5} On March 6, 2003, Sanders filed a pro se motion to disqualify his defense counsel citing ineffective assistance. Sanders claimed that his defense counsel did not represent him to the best of her ability because she allowed the prosecuting attorney to misstate the facts as they pertain to his indictment. On March 19, 2003, before the sentencing hearing began, the trial court addressed Sander's pro se motion to disqualify his defense counsel. At that time, Sanders had apparently changed his mind about the disqualification of his defense attorney and agreed to have that same attorney represent him during the sentencing hearing. {¶ 6} After hearing testimony from both sides as it relates to sentencing, the trial court sentenced Sanders to four years of incarceration. Sanders subsequently sought to withdraw his guilty plea by filing a motion for a delayed appeal and other post-conviction relief. The instant appeal followed. {¶ 7} The appellant presents one assignment of error for our review: {¶ 8} "The court denied appellant his right to fundamental due process of law by failing to determine if appellant entered his plea knowingly and voluntarily." {¶ 9} We note that the appellant did not properly file a motion to withdraw his guilty plea with the trial court. As a result, the trial court failed to conduct a hearing on or fully consider the motion presented by the appellant in this appeal. We also note that the appellant did not attempt to withdraw his guilty plea until after he was sentenced, making the motion untimely. However, we will address this appeal, as included in the briefs of both parties, as a failed motion to withdraw a guilty plea based on Crim.R. 32.1. {¶ 10} Crim.R. 32.1 provides: {¶ 11} "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea." {¶ 12} A motion to withdraw a guilty plea prior to sentencing is to be freely allowed and treated with liberality. State v.Peterseim (1980), 68 Ohio App. 2d 211, 214, 428 N.E.2d 863, citing Barker v. United States (C.A. 10, 1978), 579 F.2d 1219,1223; State v. Crayton (Sept. 4, 2003), Cuyahoga App. No. 81257. However, the decision to grant or deny such a motion is within the sound discretion of the trial court; a defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. State v. Xie (1992), 62 Ohio St. 3d 521,584 N.E.2d 715. {¶ 13} In the instant case, the appellant underwent a hearing pursuant to Crim.R. 11 prior to entering his plea. Crim.R. 11 requires that the trial court engage in the following inquiry where an individual charged with a felony seeks to enter a plea of guilty: {¶ 14} "(2) In felony cases the court * * * shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: {¶ 15} "(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that he is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. {¶ 16} "(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. {¶ 17} "(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving his rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself." {¶ 18} The Supreme Court of Ohio has established that a trial court, in accepting a plea of guilty, need only substantially comply with the mandates of Crim.R. 11(C). State v. Stewart (1977), 51 Ohio St. 2d 86, at 92, 364 N.E.2d 1163. Substantial compliance means that, under the totality of the circumstances, the defendant subjectively understands the implications of his plea and the rights he is waiving. State v. Nero (1990),56 Ohio St. 3d 106, 564 N.E.2d 474, citing Stewart, supra; Statev. Carter (1979), 60 Ohio St. 2d 34, 38, 14 O.O.3d 199,396 N.E.2d 757, certiorari denied (1980), 445 U.S. 963,100 S. Ct. 1605, 63 L.Ed 2d 789. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93; Crim.R. 52(A). The test is whether the plea would have otherwise been made. Stewart, supra, at 108. {¶ 19} In the instant matter, the appellant specifically claims that his plea of guilty was not entered into knowingly or voluntarily because he lacked a full understanding of the evidence presented against him due to ineffective assistance of counsel. Furthermore, the appellant claims he was coerced by the state under a threat of greater prosecution should he fail to enter a plea of guilty and proceed to trial. {¶ 20} First, we will address the appellant's claim of ineffective assistance of counsel. On March 6, 2003, the appellant filed a pro se motion to disqualify his defense counsel claiming that counsel did not represent him to the best of her ability by allowing the prosecuting attorney to misstate the facts as they pertain to his indictment. However, on March 19, 2003, before the sentencing hearing began, the appellant apparently changed his mind and, on the record, agreed to have the same counsel represent him for the sentencing hearing. (Tr. at 13). By agreeing to have his current counsel represent him for the sentencing hearing, the appellant effectively withdrew the motion to disqualify that he had filed with the court on March 6. {¶ 21} If appellant's counsel was ineffective and the appellant was unhappy with her representation, he was afforded a chance before the sentencing hearing to have her replaced by the court and also to withdraw his guilty plea. The appellant chose neither and proceeded to sentencing utilizing the same representation. Based on the appellant's decision to retain his current counsel after having the opportunity to replace her, and after reviewing the record in this case, we find that appellant's counsel was competent in her representation of the appellant. {¶ 22} Furthermore, during the plea hearing, the appellant acknowledged he understood that by pleading guilty to the charge against him he was admitting to the truth of the allegations in the indictment. (Tr. at 10). The appellant at no time during the plea or sentencing hearings, objected to the characterization of the facts as presented by the trial court, Detective Strickler, or the prosecution. {¶ 23} The appellant further argues that the state coerced him into pleading guilty to the charge of child endangering by threatening him with greater prosecution if the case proceeded to trial. However, after reviewing the record, the trial court asked the appellant whether anyone had threatened or coerced him into entering a guilty plea; the appellant answered "No, your Honor." (Tr. at 10). It is well within the power of the prosecution to offer a lesser charge in return for a plea or to indict the appellant on a greater charge if the facts of the case warrant the charge. {¶ 24} After reviewing the record, we find that the appellant's sole assignment of error is without merit because no error amounting to a manifest injustice occurred during the plea hearing. The trial court substantially complied with the mandates of Crim.R. 11. We find that the appellant's plea was entered into knowingly, intelligently and voluntarily. The appellant's conviction is hereby affirmed. Judgment affirmed. Dyke, P.J., and O. Calabrese, JR., J., concur. 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. 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. 1 The child victim is referred to herein by his initials, in accordance with this court's established policy.