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2016-07-06 06:42:05.429886+00

Kerns

On September 9, 1991, the plaintiff, James Zappe, was the executor of the estate of his father, W. Frank Zappe, who had insured his 1989 Chevrolet Celebrity with the defendant, Trinity Universal Insurance Company ("Trinity"), prior to his death. While James Zappe was acting as fiduciary of his father's estate, he entrusted the vehicle to his daughter, Jenny Zappe, to drive to school, but, on the way home, Jenny was involved in an accident which was later determined to be her fault. On October 1, 1992, James Zappe, as executor of the estate of his father, commenced this declaratory judgment action seeking a determination of the rights and duties of Trinity relative to the insurance policy issued to his father prior to his death. Then, after the issues were drawn by subsequent pleadings, and after the applicable facts had been stipulated by the parties to the action, both sides moved for a summary judgment. In a decision rendered on March 5, 1993, the trial court sustained Trinity's motion, and from the judgment entered thereupon in the Court of Common Pleas of Montgomery County, appellant James Zappe has perfected an appeal to this court. The appellant has set forth two assignments of error as follows: "1. The trial court erred in ruling upon a motion for summary judgment that appellant James Zappe was not entitled to coverage under the Trinity policy for the damages to the insured vehicle as executor of the estate of Frank Zappe, deceased. "2. The trial court erred in ruling without comment that Jennifer Zappe was not entitled to coverage under the policy as an omnibus insured." In support of the first assignment of error, appellant relies upon the standard provision of the insurance contract which provides that Trinity would pay for any direct and accidental loss to the covered vehicle which was caused by a collision. *Page 839 And in support of the second assignment of error, appellant relies upon the liability coverage provision of the policy which extends the definition of "insured" to include any person using the covered automobile. However, both of the arguments submitted by the appellant tend to ignore another provision of the insurance contract which deals directly with the factual pattern outlined in this case. Specifically, the policy provides as follows: "* * * if a named insured shown in the Declarations dies, coverage will be provided for: "1. The surviving spouse if resident in the same household at the time of death. Coverage applies to the spouse as if a named insured shown in the Declarations; and "2. The legal representative of the deceased person as if a named insured shown in the Declarations. This applies only with respect to the representative's legal responsibility to maintain or use `your covered auto.'" Here, the use of the automobile at the time of the accident was not related to the executor's legal responsibility to maintain or use the vehicle of the named insured, W. Frank Zappe, and it is beyond comprehension, under the circumstances, that the insurance policy afforded Jenny Zappe any more coverage under its liability provisions than it provided for her father under its collision provisions. Therefore, after carefully considering the policy language relied upon by both the appellant and the appellee, we perceive no valid basis for any departure from the comprehensive analysis contained in the decision of the court of common pleas, and for the reasons stated therein, both of the alleged errors are overruled. The judgment of the trial court is affirmed. Judgment affirmed. GRADY, P.J., and FREDERICK N. YOUNG, J., concur. JOSEPH D. KERNS, J., retired, of the Second Appellate District, sitting by assignment. *Page 840

2016-07-06 06:42:06.033479+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: Appellants-cross appellees, R. Russell Ass., Inc. and Ronald R. Zambetti, (collectively referred to as "Russell") appeal the decision of the Summit County Court of Common Pleas ordering Russell to pay appellees-cross appellants, Malick Investments, George Malick and Rose Malick (collectively referred to as "Malick") damages in the amount of $8,608.60. Malick cross-appeals the decision of the trial court granting Russell summary judgment on Malick's breach of contract claim. We reverse in part and affirm in part. I. On April 19, 1999, Malick filed a complaint against Russell alleging breach of contract, the tort of waste and damages to a leased property. Malick is the owner of a property located on Merriman Road. Malick entered into a 20 years lease with Food Franchise Inc.1 Food Franchise leased the property for a monthly rent in the amount of $3,583.33. Food Franchise operated a Rax Restaurant at the leased premises for 16 years. Pursuant to the lease, Food Franchise subleased the premises to Russell on October 27, 1995. Russell agreed to pay Food franchise 1/12 of the monthly real estate tax bill and rent under the following schedule: 1) from November 1, 1995 through March 31, 1995, $2000 a month; 2) from April 1, 1996 through March 31, 1997, $3000 per month and 3) from April 1, 1997 through March 31, 2000, $4000 per month. Russell operated a nightclub at the leased premises for 10 months. In 1996, Russell assigned its rights under the sublease with Food Franchise to Mellow Entertainment ("Mellow"). Mellow operated a business at the leased premises until sometime in 1998. In the spring of 1998, Mr. Zambetti arranged to show the leased property to a prospective new business owner. Upon entering the leased property, Mr. Zambetti observed that the property was in disarray, filthy with trash and soil. Several months later, Mr. Zambetti's counsel provided Malick with notice that Mr. Zambetti would be reentering the leased property. On October 25, 1998, Mr. Zambetti and his associates entered the property and removed Russell's equipment and furniture. In November of 1998, Malick visited the leased property, observed the condition of the property and filed the claims against Russell. Russell moved the trial court to dismiss the case or in the alternative to grant summary judgment on Malick's two claims. On September 27, 2000, the trial court granted Russell summary judgment on Malick's first claim of breach of contract finding that Malick was not a party to the 1995 sublease between Food Franchise and Russell. Malick's second claim for waste and damage proceeded to a bench trial. On January 11, 2001, the trial court found that Malick failed to present evidence of waste or evidence of its "damages with sufficient particularity to allow a reasonable award." However, the trial court found that the property was used as a storage space from March to October of 1998. The trial court determined that the reasonable value of the leased property for storage purposes was 1/3 of its value as a commercial restaurant/bar (leasehold value of $3,583.33 per month). The trial court awarded Malick a judgment in the amount of $8,608.60. This appeal and cross-appeal followed. II. Russell's Assignment of Error: THE TRIAL COURT ERRED IN GRANTING A JUDGMENT FOR THE APPELLEE WHERE THE APPELLEE NEITHER ASKED FOR THE JUDGMENT IN QUESTION NOR PRESENTED ANY EVIDENCE ON THE ISSUE THUS RENDERING THE JUDGMENT AGAINST THE WEIGHT AND THE LEGAL SUFFICIENCY OF THE EVIDENCE. In its sole assignment of error, Russell argues that the trial court's judgment was against the manifest weight of the evidence and was not supported by sufficient evidence. We agree. "Sufficiency of evidence" is a term of art that tests whether, as a matter of law, the evidence presented at trial is legally sufficient to sustain a verdict. See, e.g., State v. Thompkins (1997), 78 Ohio St.3d 380,386. An appellate court must not disturb a damage award if it is supported by competent, credible evidence. Arrow Concrete Co. v.Sheppard (1994), 96 Ohio App.3d 747, 750. In reviewing a damages award, an appellate court must not reweigh or assess the credibility of the evidence. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Where damages are established, the evidence need only tend to show the basis for the computation of damages to a fair degree of probability. Brewer v. Brothers (1992), 82 Ohio App.3d 148, 154. In the present case, the trial court awarded judgment to Malick in the amount of $8,608.60. The trial court found that the leased property was used as a storage facility for Russell's equipment and furniture from March to October of 1998. The trial court valued the property as a storage space at 1/3 of the value of the property as a commercial restaurant/bar ($3,583.33 per month). At trial, the parties stipulated that Mellow discontinued its operation at the leased property in 1998. Mr. Zambetti testified that after Mellow ceased its operation, he entered the property in March of 1998. Seven months elapsed before Mr. Zambetti reentered the property to remove Russell's equipment and furniture. Mr. Malick testified that the net lease per month was $3,583.33. After a careful review of the record, we find that no evidence was presented at trial regarding the 1/3 valuation of the property as a storage space. The trial court's damages award was not supported by competent or credible evidence. Arrow Concrete Co.,96 Ohio App.3d at 750. Russell's assignment of error is sustained. The judgment of the trial court regarding the award of $8,608.60 representing the value of the property as a storage space is reversed. III. Malick's Assignment of Error: THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED APPELLANTS' MOTION FOR SUMMARY JUDGMENT ON COUNT 1 OF THE CROSS-APPELLANTS' COMPLAINT ON THE GROUNDS OF LACK OF PRIVITY. In Malick's sole assignment of error, he argues that the trial court erred in granting Russell summary judgment on Malick's first claim regarding breach of contract. We disagree. To prevail on a summary judgment motion, the moving party "bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent's case." (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. To accomplish this, the movant must be able to point out to the trial court "evidentiary materials [that] show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Id. at 293. If such evidence is produced, the non-moving party must proffer evidence that some issue of material fact remains for the trial court to resolve. Id. An appellate court reviews an award of summary judgment de novo and, like the trial court, must view the facts in the case in the light most favorable to the non-moving party. Grafton v. Ohio Edison Co. (1996),77 Ohio St.3d 102, 105. Any doubt must be resolved in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7,12. Where the non-moving party would have the burden of proving all of a number of elements in order to prevail at trial, the moving party in the summary judgment motion may point to evidence that the non-moving party cannot possibly prevail on an essential element of the claim. See e.g.,Stivison v. Goodyear Tire Rubber Co. (1997), 80 Ohio St.3d 498, 499. If the moving party meets this burden of proof, the burden then shifts to the non-moving party to show that there is a genuine issue of material fact as to that element. Dresher, 75 Ohio St.3d at 293. Generally, a breach of contract occurs when a party demonstrates the existence of a binding contract or agreement; the non-breaching party performed its contractual obligations; the other party failed to fulfill its contractual obligations without legal excuse; and the non-breaching party suffered damages as a result of the breach. Garofalo v. Chicago Title Ins. Co. (1995), 104 Ohio App.3d 95, 108. A claimant seeking to recover for breach of contract must show damage as a result of the breach. Metro. Life Ins. Co. v. Triskett Illinois, Inc. (1994), 97 Ohio App.3d 228, 235. In the present case, Russell moved for summary judgment on Malick's breach of contract claim asserting there were no contractual obligations between Russell and Malick. Russell supported its motion for summary judgment with a copy of: 1) Malick and Food Franchise's lease, 2) Food Franchise and Russell's sublease, 3) Food Franchise and Russell's assignment of the sublease to Mellow, and 4) an affidavit by Mr. Zambetti. Article 27 of the Malick and Food Franchise lease states: Lessee may, [with] the consent of Lessor, * * * [which shall not be unreasonably withheld] assign or encumber this Lease or its right hereunder. Lessee shall also have the right to sublet all or any part of the demised premises at any time and from time to time during the term of this Lease without restriction. Lessee agrees to furnish to Lessor written notice of such an assignment or sublease within thirty (30) days thereafter, together with the name and address of the assignee or sublessee. However, in the event of such an assignment or subletting, Lessee shall remain liable for the payment of all rents required to be paid hereunder and for the performance of all terms, covenants and conditions herein undertaken by Lessee. The record reflects that Food Franchise exercised its rights under this contract provision and entered into a sublease agreement with Russell. Mr. Zambetti personally guaranteed the sublease. Malick was not a party to the contractual agreement between Food Franchise, Russell and Mr. Zambetti. The Dresher burden shifted to Malick to show that there was a contractual agreement between Malick and Russell. Malick failed to meet this threshold burden. Malick asserted that privity existed with Russell because Food Franchise was required to acquire Malick's consent to a sublease agreement. However, the provision at issue does not require Malick's consent. Article 27 states "Lessee shall also have the right to sublet all or any part of the demised premises at any time and from time to time during the term of this Lease without restriction." We find that Russell met its Dresher burden to show that there is no material issue of fact regarding the breach of contract claim. Accordingly, the trial court did not err in granting summary judgment to Russell on this claim. Malick's assignment of error is overruled. IV. Malick's assignment of error is overruled and the judgment of the trial court regarding the grant of summary judgment on Malick's breach of contract claim is affirmed. Russell's assignment of error is sustained and the judgment of the trial court awarding $8,608.60 to Malick is reversed and remanded for further proceedings consistent with this opinion. 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, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to both parties equally. Exceptions. CARR, J., WHITMORE, J. CONCUR 1 The record reflects that effective December 28, 1997, Food Franchise dissolved its corporation.

2016-07-06 06:42:06.066354+00

OPINION {1} Defendant-Appellant, Aubre Perkins, appeals a Paulding County Common Pleas Court entry of summary judgment in favor of Plaintiff-Appellee, Cincinnati Insurance Company ("Cincinnati Insurance"), concerning uninsured/underinsured motorist ("UIM") coverage under Business Auto and Commercial Umbrella policies issued to her employer, Tomco Plastics, Inc. For the following reasons, we affirm the judgment of the trial court. {2} This case is another in a long and complicated line of decisions spawned by the Ohio Supreme Court's pronouncement in Scott-Pontzer v.Liberty Mutual Fire Insurance Company.1 Facts underlying the instant appeal are not in dispute. On May 5, 2000, Perkins was involved in an automobile accident in Paulding County while driving her father's 1998 Pontiac Grand Am. The collision was caused by Nicole Laney's negligent operation of her motor vehicle. When medical bills and other claimed damages exceeded Laney's insurance limits, Perkins turned to other policies seeking additional UIM coverage. {3} As of May 5, 2000, Perkins was employed by Tomco Plastics, Inc. ("Tomco"). At that time, Tomco was insured through a Business Auto Policy and a Commercial Umbrella Policy issued by Cincinnati Insurance. The Business Auto Policy contained express UIM coverage provisions in an amount of coverage equivalent to underlying liability coverage.2 The Commercial Umbrella Policy was a follow-form policy providing UIM coverage in excess of and only to the extent coverage was provided by the Business Auto Policy. Perkins submitted claims for UIM coverage under said policies. Cincinnati Insurance denied coverage and, thereafter, filed a complaint for declaratory judgment as to Perkins' entitlement to coverage. The parties submitted competing motions for summary judgment as to coverage. By entry dated January 27, 2003, the trial court granted summary judgment in favor of Cincinnati Insurance, finding that Perkins was not entitled to coverage. {4} From this decision Perkins appeals, presenting the following single assignment of error for our review: The Trial Court erred by concluding that the "other owned autoexclusion" contained in the Appellee's Business Auto Policy issued to theAppellant's employer excludes the Appellant's claims for underinsuredmotorist benefits under the Appellee's, the Cincinnati InsuranceCompany, Policies. {5} Within her assignment of error, Perkins argues that the trial court erred in granting summary judgment in favor of Cincinnati Insurance and against her entitlement to coverage under UIM provisions contained within Tomco's Business Auto Policy and Commercial Umbrella Policy. I. Summary Judgment Standard {6} Appellate review of summary judgment is conducted independently of and without affording deference to the trial court's determination.3 Accordingly, a reviewing court will not reverse an otherwise correct judgment merely because the lower court utilized different or erroneous reasons as the basis for its determination.4 II. UIM Coverage Terms {7} Turning to the UIM coverage terms herein, we note that it is well-settled that an insurance policy is a contract and that the relationship between the insured and the insurer is purely contractual in nature.5 Insurance coverage is determined by reasonably construing the contract "in conformity with the intention of the parties as gathered from the ordinary and commonly understood meaning of the language employed."6 "Where provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured."7 However, where the intent of the parties to a contract is evident from the clear and unambiguous language used, a court must not read into the contract a meaning not contemplated or placed there by an act of the parties to the contract.8 A. Who is an Insured {8} The policy's Business Auto Coverage Form states that "[t]hroughout this policy, the words `you' and `your' refer to the Named Insured shown in the Declarations." The policy's Ohio Uninsured Motorist Coverage Bodily Injury Endorsement in effect at the time of the accident defined who is an insured as follows: {¶ 9} Considering an identical definition of who was an insured where, as here, the named insured was a corporation, the Ohio Supreme Court in Scott-Pontzer found the term "you" to be ambiguous, stating that "[i]t would be nonsensical to limit protection solely to the corporate entity, since a corporation, itself, cannot occupy an automobile, suffer bodily injury or death, or operate a motor vehicle."9 As a result, the Court "construed the language most favorably to the insured" and found that the plaintiff's husband was an insured under his employer's policy.10 Confronted with indistinguishable circumstances, we are required to find that the language in the Endorsement concerning the identity of "insureds" to be ambiguous. Accordingly, we are required to conclude that Perkins fell within the definition of "you" and "your" for purposes of UIM coverage.11 B. Whether Perkins was Operating a "Covered `Auto'" {¶ 10} Having concluded that Perkins was an insured under the policies at issue, we must now determine whether the circumstances of this accident fall within other applicable coverage provisions.12 "[W]here, as here, a liability policy expressly includes [UIM] coverage within the contract, restrictions and other coverage limitations are intended and will be applied for purposes of [UIM] coverage. Therefore, even when a party qualifies as a named insured under a policy that includes [UIM] coverage by contract, the circumstances of the accident must fall within other applicable coverage provisions."13 {¶ 11} Our first inquiry is whether the vehicle Perkins was operating was a "covered `auto'". The Business Auto Coverage Part Declarations state that "[t]his coverage part provides only those coverages where a charge is shown in the premium column below. Each of the coverages will apply only to those `autos' shown as covered `autos.'" "Covered `autos'" for purposes of UIM coverage are defined by numeric symbol "2." Coverage provided under symbol "2" is limited to: "Only those `autos' you own." Attached to the Declarations is a schedule of owned vehicles covered by the insurance policies. {¶ 12} Perkins concedes that she was not occupying a "covered `auto'" as defined by symbol 2. She argues, however, that althoughScott-Pontzer requires the term "you" to be construed to include her within the definition of "named insured" so as to be entitled to coverage, in the remainder of the policy the terms "you", "your," or "named insured" are either inapplicable to her or must be construed in her favor. {¶ 13} In Niese v. Maag, we recently addressed an argument similar to the one posited by Perkins.14 The Ohio Supreme Court determined inScott-Pontzer that when "you" is defined as the "named insured shown in the declarations" in an auto insurance policy, the term "you" necessarily included employees of the corporation.15 Accordingly, in Niese we found that insofar as Scott-Pontzer requires the term "you" to be construed to include employees as "named insureds," the term "you" would be applied consistently throughout the policy.16 {¶ 14} When the term "you" is consistently interpreted throughout the policy, we find that the vehicle driven by Perkins at the time of the accident, a 1988 Pontiac Grand Am owned by her father, is not one which is owned by a party falling within the definition of "you." Nor is it contained in the schedule of vehicles covered by the policies. Consequently, it does not qualify as a "covered `auto'" for purposes of UIM coverage,17 and under these circumstances Perkins is not entitled to UIM coverage. C. "Other-Owned Auto Exclusion" {¶ 15} In addition, the Ohio Uninsured Motorist Bodily Injury Endorsement contains an "other-owned auto exclusion," as authorized by R.C. 3937.18(J)(1),18 which states: {¶ 16} Perkins does not contest the validity of this provision, but instead maintains that the exclusion applies only to vehicles not specifically identified in the policy which are owned by or provided for the regular use of "named insureds". She argues that the exclusion is inapplicable to her because she is an "insured," as opposed to a "named insured," and that she was occupying a vehicle provided for the regular use of an "insured," rather than a "named insured." Cincinnati Insurance responds that under the Scott-Pontzer analysis, references to the "named insured" or "you" are to be construed to include Tomco as well as its employees, including Perkins. {¶ 17} Insofar as Scott-Pontzer requires the term "you" to be construed to include employees as "named insureds," the term "you" must be applied consistently throughout the policy.19 Because Perkins qualifies as a "named insured" and was driving a motor vehicle not specifically identified in the policy under which the claim is made which was furnished for her regular use at the time of the accident, the other-owned auto exclusion precludes coverage to Perkins.20 {¶ 18} For the foregoing reasons, we find that Perkins is thus not entitled to UIM coverage under either the Business Auto Policy or Commercial Umbrella Policy. Accordingly, Perkins' assignment of error is overruled. {¶ 19} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, the judgment of the Paulding County Common Pleas Court is hereby affirmed. Judgment affirmed. Bryant, P.J. and Shaw, J., concur. 1 Scott-Pontzer v. Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660,1999-Ohio-292. 2 See R.C. 3937.18(A). 3 Schuch v. Rogers (1996), 113 Ohio App.3d 718, 720. 4 Diamond Wine Spirits, Inc. v. Dayton Heidelberg Distrib. Co. (2002), 148 Ohio App.3d 596, 604-605, 2002-Ohio-3932, ¶ 25, citingState ex rel. Cassels v. Dayton City School Dist. Bd. of Ed. (1994),69 Ohio St.3d 217, 222. 5 Nationwide Mut. Ins. Co. v. Marsh (1984), 15 Ohio St.3d 107,109. 6 King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 211;Dealers Dairy Products Co. v. Royal Ins. Co. (1960), 170 Ohio St. 336, paragraph one of the syllabus. 7 King, 35 Ohio St.3d 208, syllabus (citations omitted). 8 Gomolka v. State Auto. Mut. Ins. Co. (1982), 70 Ohio St.2d 166,168. B. Who Is An Insured 1. You. 2. If you are an individual, any `family member.' 3. Anyone else `occupying' a covered `auto' or a temporary substitutefor a covered `auto.' The covered `auto' must be out of service becauseof its breakdown, repair, servicing, loss or destruction. 4. Anyone for damages he or she is entitled to recover because of`bodily injury' sustained by another `insured.' 9 Scott-Pontzer, 85 Ohio St.3d at 664. 10 Id. at 665. 11 Good v. Krohn (2002), 151 Ohio App.3d 832, 840, 2002-Ohio-4001, ¶ 24. 12 Id. at ¶ 25. 13 Rall v. Johnson (March 21, 2003), Wyandot App. No. 16-02-13, 2003-Ohio-1373, ¶ 9, citing Mazza v. American Continental Ins. Co. (Jan 29, 2002), Summit App. No. 21192, 2002-Ohio-360, ¶ 76-77. 14 Niese v. Maag (Dec. 13, 2002), Putnam App. No. 12-02-06, 2002-Ohio-6851, appeal allowed by (2003), 98 Ohio St.3d 1563,2003-Ohio-2242. 15 Id. at ¶ 13. See, also, Wyeda v. Pacific Employer's Ins. Co. (2003), 151 Ohio App.3d 678, 681-682, 2003-Ohio-443, ¶ 13-16;Universal Underwriters Ins. Co. v. Miller (May 12, 2003), 5th Dist. App. No. 2002CA00225, 2003-Ohio-2489, ¶ 46-50. 16 Niese, supra,. at ¶ 11-12. 17 Id. 18 Now R.C. 3937.18(I)(1). C. Exclusions This insurance does not apply to: * * * 1.`Bodily injury' sustained by an `insured' while the `insured' isoperating or occupying a motor vehicle owned by, furnished to, oravailable for the regular use of a named insured, a spouse or residentrelative of a named insured, if the motor vehicle is not specificallyidentified in the policy under which a claim is made, or is not a newlyacquired or replacement motor vehicle covered under the terms of thepolicy under which the uninsured and underinsured motorist coverages areprovided. 19 Niese, supra, at ¶ 11-12. 20 Id. at ¶ 11-12; Universal Underwriters Ins. Co., supra, at ¶ 46-50.

2016-07-06 06:42:06.141972+00

OPINION In September 1994, appellant Elwood Cogswell and appellee Clarence Goss had a brief discussion about appellant cutting chipwood on some property owned by appellee. Thereafter, the parties met at the property to discuss the project. A few days later, the parties again met at the property. This time, appellee brought along his surveyor, Max Graves. Mr. Graves and appellant walked the property to establish its boundaries. A few days later, appellant and his nephew, appellant Gene Cogswell, began cutting hardwood timber in the northwest corner of the property. On September 15, 1994, appellants delivered a $16,800 check to appellee representing sixty percent of the gross profits from the sale of the timber. On November 10, 1994, appellee, together with his wife, Dorothy Goss, filed a complaint against appellants for trespass. On December 6, 1994, appellants filed an answer and counterclaim for breach of contract. A bench trial was held on August 1, 1996. By findings of fact, conclusions of law and decision filed June 6, 1997, the trial court granted judgment in favor of appellees in the amount of $33,600 plus interest from September 14, 1994. The trial court also awarded appellees $25,000 in punitive damages and dismissed appellants' counterclaim. Said decision was reduced to judgment entry on July 7, 1997. Appellants filed a notice of appeal and this matter is now before this court for consideration. Assignments of error are as follows: I THE TRIAL COURT'S VERDICT, RENDERED IN ITS JUDGMENT ENTRY OF JULY 7, 1997, IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE FOR THE REASON THAT PLAINTIFFS/APPELLEES HAVE FAILED TO CARRY THEIR BURDEN OF PROOF WITH RESPECT TO THE ELEMENTS OF TRESPASS AND FOR THE FURTHER REASON THAT THE EVIDENCE CLEARLY DEMONSTRATES THAT THE PARTIES HAD ENTERED INTO A VALID AND ENFORCEABLE CONTRACT FOR THE REMOVAL AND SALE OF TIMBER AND CHIP WOOD. II THE TRIAL COURT ERRED IN APPLYING OHIO REVISED CODE SECTION 901.51 AS A MEASURE IN PLAINTIFFS/APPELLEES, DAMAGES AS DEFENDANTS/APPELLANTS' CONDUCT WAS NOT RECKLESS AS DEFINED BY OHIO REVISED CODE SECTION 2901.22. III THE TRIAL COURT ERRED IN AWARDING PUNITIVE DAMAGES TO PLAINTIFFS/APPELLEES AS THE EVIDENCE DOES NOT SUPPORT A FINDING THAT DEFENDANTS/APPELLANTS CONDUCT WAS WILFUL, WANTON, OR WITH MALICE. IV THE TRIAL COURT ERRED IN AWARDING THE PLAINTIFFS/APPELLEES BOTH STATUTORY TREBLE DAMAGES AND PUNITIVE DAMAGES. I Appellants claim the trial court's judgment was against the manifest weight of the evidence. Appellants argue the evidence failed to support a finding of trespass but did support the existence of a valid enforceable contract. We disagree. A judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the judgment rendered by the trial court. Myers v. Garson (1993), 66 Ohio St.3d 610. Appellants were found in violation of R.C. 901.51 which states as follows: No person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injury a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another or upon public land. In addition to the penalty provided in section 901.99 of the Revised Code, whoever violates this section is liable in treble damages for the injury caused. In its decision of June 6, 1997 under conclusions of law, the trial court specifically found the following: By September 8, 1994, the parties had reached an agreement that the chipwood in the area west of the alfalfa field would be cut, chipped and sold with 70% of the proceeds to Cogswell and 30% to Goss. Once the chipwood was cut and the area from which it was taken was cleaned up to Goss' satisfaction, Goss would then permit Cogswell to cut hardwood timber selected by Goss. The tentative agreement was to be reduced to a written contract by Goss and signed by the parties. Cogswell was given access to the area west of the alfalfa field near the Bethel Cemetery to make preparations for harvesting the chipwood trees. This agreement Plaintiff's Exhibit 3, was never signed. The defendants did not make any attempt to harvest chipwood but instead harvested and sold 160 hardwood trees in a grove to the east of the alfalfa field without permission to do so. There is no question that the plaintiffs had no intent to harvest the hardwood trees that were cut from September 12, 1994, through September 14, 1994, nor did the plaintiffs know that the defendant would harvest those trees. If these trees were to be harvested at all, it is clear this was to occur only after the chipwood cutting was completed. Central to the case is whether the parties had an agreement on cutting the timber (160 hardwood trees). On this issue, the trial court specifically found the following: By September 8, 1994, the parties had tentatively agreed on a 30%/70% split of the sale price of the chipwood with Goss receiving 30%. * * * The defendant began cutting timber early on the morning of September 12, 1994, and worked from early morning until noon and by the 14th had logged out the grove and skidded the logs to the north/south alfalfa field. * * * The testimony of George Kreager (`Kreager') established that in late summer of 1994, he reached an oral agreement with Cogswell to cut lumber trees selected and marked by Kreager from the latter's farm in western Muskingum County. Cogswell, without giving Kreager the opportunity to select and mark the trees, moved his equipment on to his property and began `clear-cutting' the timber. Upon discovery of Cogswell's action, Kreager ordered him off of his land and told him not to return. The initial discussion between the parties was solely for the cutting of chipwood not hardwood timber. T. at 106-107. At the first meeting at the property, the parties agreed "to chip first and not cut anything until we picked out what timber he could cut to sell." T. at 110. Appellant was to cut and chip until he reached a high-tension power line that runs along the west side of the "V-shaped alfalfa field." T. at 111. The eastern boundary was a yellow barn. T. at 113. Appellee told appellant he was not to cut a piece of timber until appellee was assured appellant had done a satisfactory job on the chipwood project. T. at 114. Appellee drafted an agreement but it was never signed (Plaintiff's Exhibit 3). T. at 119.1 Appellee endeavored to locate appellant on three to four occasions to sign the agreement. On the last occasion, appellee discovered cut logs on the east side of the V-shaped alfalfa field. T. at 121. The next time appellee saw appellant was the next day when appellant brought appellee the check. T. at 123-124. Appellant claims the parties had an agreement of 30/70 (30% to appellee, 70% to appellant) for the chipwood project and the cutting would be east of the alfalfa field. T. at 70, 74. Appellant testified he wanted to cut the big trees first and then "cut the small stuff" to limit clean-up time and effort. T. at 80. Appellant admitted he did not discuss this with appellee. T. at 81. Appellant denied he was told to do the chipwood project first and the cutting of the timber would depend upon his performance. T. at 86. Appellant testified the parties specifically discussed cutting timber during their initial discussion. T. at 182. Appellant testified the parties had an agreement as to the split of the proceeds of the chipwood and timber and appellee was going to put it in writing. T. at 191. It is not the role of an appellate court to chose between conflicting testimony but to determine if there is sufficient evidence to support the trial court's findings and conclusions.Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA-5758, unreported. From our review, we find substantial credible evidence to support the trial court's finding of no "meeting of the minds" as to the cutting of the timber and a violation of R.C. 901.51. Assignment of Error I is denied. II Appellants claim the trial court erred in awarding treble damages pursuant to R.C. 901.51 and in finding recklessness. We disagree. As cited in Assignment of Error I, R.C. 901.51 provides for treble damages if one recklessly destroys flora on the land of another without privilege to do so. R.C. 2901.22 defines "recklessly" as follows: (C) 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 trial court chose to accept appellee's testimony that appellant had been specifically told in detail of the area for the chipwood project and then only upon satisfactory completion could appellant cut timber. By appellant's own testimony, he acknowledged he never intended to clear the land as appellee envisioned and never told appellee he would cut the timber first and then complete the chipwood project. It was clear from the testimony the initial discussion centered solely on chipwood removal as opposed to timber. We find the trier of fact could have found from these facts that appellants had a "heedless indifference to the consequences" of their acts. Assignment of Error II is denied. III, IV Appellants claim the trial court erred in awarding punitive damages because there was no showing of wilful or wanton conduct or malice, and once treble damages were awarded, punitive damages were inappropriate. We agree. In its decision under conclusions of law, the trial court specifically found the following: Punitive damages in cases such as the present one before the Court are permitted in Ohio both as punishment of the offender and as an example to deter others from engaging in such a course of conduct. Saberton v. Greenwald, 1946 Ohio St. 414 (1946). The Court concludes that the defendant's conduct in the case sub judice and as testified to by Mr. Kreager constitutes a breach of contract and that such actions were wilful and wanton and were conducted with malice and that punitive damages are appropriate and may be awarded in addition to the treble damages provided for in ORC 901.51 Denoyer, et al. v. Lamb, et al. 22 Ohio App.3d 136 (1984). The Court finds that punitive damages of $25,000.00 are appropriate in this case. Appellants argue there was no testimony of malice. InPreston v. Murty (1987), 32 Ohio St.3d 334, 336, the Supreme Court of Ohio defined malice as "(1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." From our review of the record, we find any evidence of hatred, ill will or a spirit of revenge will substantiate a finding of malice. Appellant may very well be a trickster and deceitful in obtaining access to people's property under false pretenses however, there is no doubt from the record that timber cutting was discussed and was contemplated by the agreement drafted by appellee. The trial court found appellants' acts were "at least reckless if not done knowingly and contrary to the understanding and beliefs of the parties." The trial court made no independent finding of what the acts were that constituted malice separate and apart from the reckless or intentional acts therefore, the trial court erred in awarding punitive damages. On a side note, appellants argue the trial court erred in permitting the testimony of George Kreager. Appellees' counsel argued the Kreager testimony was relative because it would impeach appellant's testimony that he never had trouble with anybody. T. at 172. Evid.R. 608(B) prohibits extrinsic evidence of specific incidents of conduct unless at the trial court's discretion it is clearly probative of truthfulness. We find the Kreager testimony was not offered to test truthfulness but to show other bad acts specifically excluded by Evid.R. 609. Because this testimony was not an issue in any findings of fact or conclusions of law, we find the admission of the testimony to be harmless error. Civ.R. 61. Assignment of Error III is granted and Assignment of Error IV is moot. The judgment of the Court of Common Pleas of Muskingum County, Ohio is hereby affirmed in part and reversed in part. By Farmer, P.J., Gwin, J. and Wise, J. concur. JUDGMENT ENTRY CASE NO. CT97-0027 For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed in part and reversed in part. 1 Said exhibit corresponds to appellee's testimony concerning the agreement to mark the hardwood timber.

2016-07-06 06:42:04.957215+00

DECISION AND JUDGMENT ENTRY This appeal comes to us from a sentencing order issued by the Erie County Court of Common Pleas, Juvenile Division. Because we conclude that the trial court abused its discretion when it ordered a misdemeanant into a sex offender program, we reverse. Appellant, Johnny C. Young, was two weeks past his nineteenth birthday when he kept his fifteen year old girlfriend out past her curfew. The girl's parents disapproved of the relationship and involved police. Appellant was charged with a violation of R.C. 2919.24, contributing to the unruliness of a child,1 a first degree misdemeanor. Appellant eventually pled no contest to the charge and was found guilty. He was sentenced to sixty days local incarceration. Thirty days of the sentence was suspended, conditioned upon, inter alia, appellant's evaluation and treatment in a sex offender program. Appellant now brings this appeal, asserting the following single assignment of error: "The sentence rendered by the trial court is unlawfuland amounts to an abuse of discretion." The only part of his sentence appellant contests is being ordered into a sex offender program as a condition of probation. "Pursuant to R.C. 2951.02, the trial court is granted broad discretion in setting conditions of probation. Specifically, R.C. 2951.02(C) provides that '* * * [i]n the interests of doing justice, rehabilitating the offender, and insuring his good behavior, the court may impose additional requirements on the offender * * *. Compliance with the additional requirements shall also be a condition of the offender's probation or other suspension.' The courts' discretion in imposing conditions of probation is not limitless. Such conditions cannot be overly broad so as to unnecessarily impinge upon the probationer's liberty. "In determining whether a condition of probation is related to the `interests of doing justice, rehabilitating the offender, and insuring his good behavior,' courts should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation." State v. Jones (1990), 49 Ohio St.3d 51, 52-53 (citations omitted). We have throughly reviewed the record in this case and failed to find any evidence or allegation that appellant participated in any sexual misconduct. The only mention of the word "sex" is in the state's brief. There, appellee asserts that a police report states that the juvenile girl's father told a police officer that he had learned that his daughter had sexual intercourse with appellant. Notwithstanding the multiple hearsay problems with this report, no such report is contained in the record. See App.R. 9. Absent any record of a sexual allegation, we must conclude that making appellant participate in a sexual offender's program bears no relationship to his rehabilitation, no relationship to the crime of which he was convicted, and no relationship to any potential future criminal conduct. Consequently, the addition of the offending condition constitutes an abuse of the court's discretion. Accordingly, appellant's sole assignment of error is well taken. On consideration, the sentencing order of the Erie County Court of Common Pleas, Juvenile Division, to the extent that it ordered appellant into a sex offender program, is reversed. Costs to appellee. Melvin L. Resnick, J., James R. Sherck, J., Mark L. Pietrykowski,J., CONCUR. 1 Both the complaint and the sentencing order inaccurately refer to this as contributing to the "delinquency" of a child. "Delinquency" is the commission of an act by a minor which would constitute a crime if done by an adult. See R.C. 2151.02. A curfew violation is a status offense, that is an act prohibited to a minor which would not constitute a crime if committed by an adult. See, Waddington, Children in the Legal System (1983), 604.

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JOURNAL ENTRY AND OPINION On January 25, 2000, the petitioner, Morris Novak, pursuant to App.R. 26 (B), applied to reopen this court's judgment in State of Ohio v.Morris Novak (Sept. 10, 1998), Cuyahoga App. No. 72849, unreported, which affirmed Mr. Novak's conviction for complicity in the commission of attempted murder. Although the State of Ohio did not file a brief in opposition, this court denies the application for the following reasons. FACTUAL AND PROCEDURAL BACKGROUND The charges against Mr. Novak arose as a result of Mr. Novak's allegedly asking Jack Searl, an old acquaintance, to murder his girlfriend's ex-husband. At the time Mr. Searl was under a federal indictment. As part of his cooperation with the F.B.I., Mr. Searl taped his conversations with Mr. Novak, and turned the tapes over to the authorities.1 The Cuyahoga County Prosecutor became aware of the facts of this case in early March 1996. At that time attorney Irl Rubin represented Mr. Novak. Before the matter went to the Grand Jury, Mr. Rubin and the prosecutor met several times to try to resolve the case. At one of these meetings the state provided full discovery to Mr. Rubin, including playing all the audiotapes Mr. Searl provided. Nevertheless, they reached no agreement. On March 21, 1996, the Grand Jury indicted Mr. Novak on (1) complicity in the commission of attempted murder, (2) complicity in the commission of attempted felonious assault and (3) complicity in the commission attempted felonious sexual penetration. During pre-trial proceedings in April, Mr. Rubin requested certain materials from the state. Later that month the state provided the requested materials, as well as copies of all the audiotapes. After several continuances at the defendant's request during the Summer of 1996, the court eventually set the trial for September 24, 1996. On September 23, 1996, a new attorney, Thomas Wagner, filed a notice of appearance for Mr. Novak and also filed a motion for continuance, which the prosecutor opposed.2 The court continued the trial, and in October referred Mr. Novak for a psychiatric examination. On December 20, 1996, Mr. Novak pleaded guilty to complicity in the commission of attempted murder. The trial court engaged in a colloquy with Mr. Novak, accepted his guilty plea and nolled the other charges. In early 1997, the court sentenced Mr. Novak to five to twenty-five years in prison. At the sentencing Mr. Novak admitted: "I said things that I should have not said, and I accept that this was wrong and I accept responsibility for it. I shouldn't have done it." (Tr. pg. 16.) The trial judge in imposing sentence stated that he had reviewed "the circumstances involved in the underlying facts in this case. * * * I find them to be abhorrent." (Tr. Pg. 31.) On June 11, 1997, Mr. Novak moved to withdraw or otherwise vacate the guilty plea. The trial court denied that motion on June 13, 1997, and Mr. Novak appealed on July 11, 1997. Mr. Novak's counsel argued the following assignments of error: (1) The trial court lacked subject matter jurisdiction over the original charges. (2) Prosecutorial misconduct induced the guilty plea; there was no factual basis for the plea. (3) Because the guilty plea was induced by threats and promises, it was not voluntary, and a conviction so obtained violated due process. (4) The trial court erred by failing to inform Mr. Novak of the nature and elements of the crime, as well as the defenses available. Under this assignment of error, Mr. Novak's appellate counsel also argued that trial counsel did not adequately inform Mr. Novak of the elements of the charge or possible defenses. (5) The trial court failed to comply with Criminal Rule 11. (6) The trial court erred and denied Mr. Novak due process of law when it summarily denied the motion to withdraw the guilty plea without a full and fair hearing. This court affirmed the conviction on September 21, 1998. On November 5, 1998, Mr. Novak, through the same counsel he had before this court, appealed to the Supreme Court of Ohio. On February 4, 1999, the supreme court dismissed that appeal because there was no substantial constitutional question. Approximately a year later Mr. Novak filed this application to reopen. DISCUSSION OF LAW Nr. Novak claims that his appellate counsel was ineffective for not arguing that his trial counsel was ineffective because the trial counsel failed to file for a bill of particulars and a motion for discovery, resulting in trial counsel being unprepared to adequately represent him. 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 January 25, 2000 application was filed approximately fifteen months after this court's decision. Moreover, when this court issued that decision, State v. Murnahan (1992),63 Ohio St.3d 60, 584 N.E.2d 1204, had been released for over six years, and App.R. 26 (B) had been the law for over five years. Therefore, Mr. Novak's claims of ignorance of the law because he is a layman are not persuasive to establish good cause. The laws were too well known and too much time elapsed. State v. Klein (Apr. 8, 1991), Cuyahoga App. No. 58389, unreported, reopening disallowed (Mar. 15, 1994), Motion No. 49260, affirmed (1994), 69 Ohio St.3d 1481; State v. Trammell (July 24, 1995), Cuyahoga App. No. 67834, unreported, reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Cummings (Oct. 17, 1996), Cuyahoga App. No. 69966, unreported, reopening disallowed (Mar. 26, 1998), Motion No. 92134; and State v. Young (Oct. 13, 1994), Cuyahoga App. Nos. 66768 and 66769, unreported, reopening disallowed (Dec. 5, 1995), Motion No. 66164. Ignorance of the law is no excuse. This defect alone is sufficient to dismiss the application. 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. 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. 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 (1996), 77 Ohio St.3d 172, 672 N.E.2d 638. 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 court need not determine whether counsel's performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies. In the present case Mr. Novak's argument on ineffective assistance of appellate counsel is not well taken. Mr. Novak's appellate counsel in his fourth assignment of error argued trial counsel's ineffectiveness in failing to explore defenses and possible weaknesses in the charge. That argument covers much the same ground as Mr. Novak's current contention, the failure to obtain particulars and discovery. Pursuant to the Supreme Court's admonitions, this court will not second guess appellate counsel's strategy. Additionally, given the references in the record that Mr. Novak's trial counsel were provided with complete discovery, including all of the audiotapes, appellate counsel in the exercise of professional judgment could properly conclude that arguments based on the failure to file for discovery and a bill of particulars would be too weak to include and could lesson the impact of the other arguments. Finally, Mr. Novak has not demonstrated prejudice. Other than pure speculation he has not shown how a bill of particulars would have necessarily made a difference in his trial. Nor has he established what other discovery existed, much less how it would have made a difference in his case. A review of the record, especially Mr. Novak's admission at sentencing that his actions were wrong, indicates that it is highly unlikely that prejudice could be established. Accordingly, Mr. Novak's application to reopen is denied. _____________________ JOHN T. PATTON, JUDGE TIMOTHY E. McMONAGLE, P.J. MICHAEL J. CORRIGAN, J., CONCUR 1 In its appellate brief the state asserted that the tapes revealed the following: Mr. Novak provided specific identifying information, including social security number and date of birth, on his girlfriend's ex-husband. He repeatedly sought to have the man killed; he and Mr. Searl determined a price. Mr. Novak further noted that the body must be found, so that his girlfriend could collect from her ex-husband's estate. 2 The above narrative is based on all the materials in the record, including the prosecutor's brief in opposition to the motion for continuance filed on September 23, 1996.

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OPINION *Page 3 {¶ 1} In this consolidated appeal of case numbers 5-08-37, 5-08-38, 5-08-39, and 5-08-40, Father-Appellant, Scott Freed, appeals the judgments of the Hancock County Court of Common Pleas, Juvenile Division, adjudicating his minor daughter, ED, an abused and dependent child, adjudicating his other minor children, EL, ZA, and AL, dependent children, ordering the children to remain in the custody of their mother, Danielle Freed, with protective supervision by Hancock County Job and Family Services, and ordering that Scott's visitation with the children be only upon the recommendation of the designated therapist. On appeal, Scott argues that the trial court's adjudication of ED as an abused and dependent child, and its adjudication of his other children as dependent, was against the manifest weight of the evidence; that the trial court erred in refusing to allow him to present two witnesses at the adjudication hearing; and, that the trial court erred in denying him parenting time with his children. Based upon the following, we affirm the judgments of the trial court. {¶ 2} Scott and Danielle Freed are the parents of ZA (D.O.B. 3/23/94), AL (D.O.B. 8/5/98), EL (D.O.B. 7/25/00), and ED (D.O.B. 7/25/00). At the time this action commenced, ZA, in Scott's custody, was committed to a juvenile residential center on an unrelated offense, and AL, EL, and ED were in Danielle's custody, with Scott having visitation with the children on weekends. *Page 4 {¶ 3} In May 2008, the Hancock County Job and Family Services, Child Protective Services Unit (hereinafter "CPSU"), filed a complaint alleging that ED was an abused, neglected, and dependent child pursuant to R.C. 2151.03(A)(2), (3), and (6); R.C. 2151.031(A), (B), and (D); and R.C. 2151.04(B) and (C); and, that the other children were dependent pursuant to R.C. 2151.04(B), (C), and (D). The complaint arose from an allegation by ED that Scott sexually abused her during his visitation time by kissing her all over, humping her, and rubbing his genitals against her genitals. {¶ 4} Additionally, CPSU filed a motion for predispositional interim orders, requesting that the children be placed under the protective supervision or in the temporary custody of CPSU; that Scott be denied contact with the children; that ZA be placed in Danielle's custody; and, that Scott complete a mental health evaluation and follow through with any ensuing recommendations. After a subsequent hearing on the motion, the trial court ordered that Scott have no contact with the children, and that the children be placed under the protective supervision of CPSU. {¶ 5} In July 2008, the trial court held an adjudication hearing, at which Holly Schweitzer-Dunn, an outpatient therapist at Family Resource Centers in Findlay, testified that she is a specialist in adolescent depression and child trauma; that she had been seeing EL for therapy on an unrelated matter when Danielle brought ED into one of EL's scheduled sessions; that Danielle brought ED in *Page 5 because she had reported to Danielle's sister that Scott had been sexually abusing her; that, when she spoke with ED, ED informed her that, on multiple occasions when she visited her father without her sister, AL, her father tried to have sex with her, humped and kissed her, and "put[] [her] leg on top of him and one leg under him when he does it" (July 2008 adjudication hearing tr., p. 19); and, that she used these statements to diagnose and treat ED {¶ 6} Schweitzer-Dunn continued that she did not feel that ED was being coached to make these allegations; that Danielle even instructed ED to speak with her by herself, but, because she was uncomfortable doing so, Danielle went into the office with her and sat quietly while ED relayed the story; that ED came back to her office an another occasion so that a diagnostic assessment could be completed; that the diagnostic assessment was performed by another employee of Family Resource Centers, Alyssa Roach; that this assessment and the accompanying report were also used to treat and diagnose ED; that, according to the assessment report, ED relayed to Roach that her father tries to have sex with her while she is visiting him without her sister, that he took baths with her until she was age five, and that he sleeps with her when she is in her underwear; that the assessment diagnosed ED as being a sexually abused child; that, often, symptoms of trauma from sexual abuse and symptoms of attention deficit hyperactivity disorder ("ADHD") overlap; and, that a diagnosis of sexual abuse and the elimination of ADHD as a potential diagnosis have not yet been confirmed *Page 6 because ED did not attend all three of the assessment sessions that are conducted before confirming a diagnosis. {¶ 7} Schweitzer-Dunn further testified that, on another visit for treatment, ED was again hesitant to speak with her alone, so Danielle came into the room; that it is not at all unusual for a child of her age to be tentative in engaging in these sessions without a parent, especially when the child is expected to talk about difficult subjects; that Scott contacted her, inquiring whether she was providing counseling to ED and stating that he had not done anything inappropriate; and, that, based upon the sexual touching ED described, she believed that ED had an understanding of the act of sex and of the difference between a sexual and non-sexual touch. {¶ 8} Kathy Elliot, a social services worker with Hancock County Children Services, testified that she was assigned to investigate ED's allegations of sexual abuse; that she scheduled an interview with ED and had a detective sit in an observation area to watch the interview; that the only people in the interview room were ED and herself, and, based upon her answers, she did not show signs of being coached; that there are three dispositions available for her to make after an investigation: substantiated, unsubstantiated, and indicated; that unsubstantiated means there is no evidence to support the allegation, substantiated means there is evidence and a confession to support the allegation, and indicated means there is *Page 7 no confession or physical evidence to prove the allegation, but there is a strong belief that it did happen; and, that her disposition of this case was indicated. {¶ 9} On cross-examination, Elliot testified that ED told her that her father would lay on top of her, with one leg under her body and the other leg over her body; that ED never indicated that the "humping" by her father actually involved his private area touching her private area; that ED further told her that "if a boy tries to kiss her it's gross * * * but it's okay for a girl to kiss her," and that "a boy shouldn't kiss a girl even if they're a child" (July 2008 adjudication hearing tr., p. 95); that ED further told her that her father placed his hand or finger inside her pants on the outside of her underwear, but that he never touched her vagina; that ED stated that her father tried to put his hand down her shirt, but that his hand never touched her breasts because she pulled his hand out and told him to stop; that Danielle stated there were times where ED visited with her father without her sister present; and, that she also spoke with EL and AL and found no indication that Scott had inappropriate contact with them. {¶ 10} Elliot further testified that she tested ED's credibility by asking her about the facts multiple times, but in different ways, and that she was able to consistently maintain her story; that, in regards to ED's specific allegations, ED stated that Scott would lay on top of her and move his body up and down, and that this touching made her uncomfortable; and, that ED told her that when these *Page 8 incidents took place, her father would wear long underwear that she could see through. {¶ 11} At the close of CPSU's case-in-chief, Scott made a motion to dismiss all cases on the grounds that the evidence failed to establish that he engaged in sexual contact with ED, or that he engaged in inappropriate behavior with the other two children. The trial court then denied in part, and granted in part, Scott's motion, finding that CPSU submitted sufficient evidence to support a finding that ED was abused and dependent, and that the other children were dependent, but that insufficient evidence was presented to establish that ED was neglected. {¶ 12} Subsequently, Scott attempted to call two witnesses to testify, his pastor, Walt Shephard, and another church member, Darcie Adams. CPSU objected to both witnesses, arguing that their names had not been disclosed during discovery, and, as a consequence, that they should be barred from testifying pursuant to Juv. R. 24. Scott argued that he had not planned to call the witnesses until the testimonies of Schweitzer-Dunn and Elliot disclosed ED's claim that the sexual abuse occurred while she was visiting her father without her sister present. Scott proffered the testimony of both witnesses, explaining that they would testify that every time he attends church, all three of his children are present with him, thereby establishing that all three children always visit him at the same time and attacking the accuracy of ED's sexual abuse claim. Subsequently, the trial court *Page 9 ruled that Scott's failure to disclose the witnesses to CPSU was a violation of Juv. R. 24 and excluded them from testifying. {¶ 13} Scott then testified that there was never an occasion where ED would visit him without AL present; that he has kissed ED, but never with an open mouth; that he does not wear long underwear around the children, but only sweatpants; that he has never attempted to put his hand down ED's shirt to touch her breasts; that he has never attempted to place his hand or any portion of his hand inside ED's pants or to touch her vagina; that he has never attempted to touch her buttocks; that he has never climbed on top of, or moved close to, ED and rubbed himself on her in a sexual way; and, that he has never told ED not to tell anyone that he hugged, kissed, or touched her. {¶ 14} Scott continued that the visitation order from the trial court permits him to have the children every other weekend, but that he only had the children ten times in 2007 because Danielle would not permit him to see the children; that he filed a motion in November 2007 to modify his child support, but that he did not file a motion for the court to enforce the terms of the visitation at that time; that every time he had the children on a weekend, he took them to church on Sunday; that he first learned of ED's allegation when he was contacted by a police officer, and that Danielle never contacted him regarding the allegation; and, that he has no idea why ED would make up these allegations. *Page 10 {¶ 15} Subsequently, the trial court found ED to be an abused and dependent child, and found the other three children, ZA, AL, and EL to be dependent children. In reaching its conclusion, the trial court stated the following from the bench: Well, I think the key question was asked of Mr. Freed, and it was — the whole case is based on is, you know, why would [ED] lie. * * * And it would appear that the experts that questioned [ED] used all the techniques known to modern science on testing credibility. They examined her outside the presence of her mother, went over the story time and time again to see if she maintained consistency. She did. She passed all the tests of credibility. I don't see any likelihood here, and, of course, that's always one of the things you worry about is, you know, with the parties that are going through a divorce, did one of the parties put the child up to it or plant the story with the child in order to reap revenge on the other party. I see no evidence of that whatsoever here. * * * [Scott] brought out some inconsistencies and there apparently was inconsistency regarding the story about whether everybody was present or not and who was there and who was not there, but that to me is not enough to destroy the credibility of the child's story, so I find by clear and convincing evidence and the Court so finds * * * by clear and convincing evidence that [ED] is, in fact, abused and dependent as alleged in the complaint, and as a result of that finding, will find the other children to be dependent. (Id. pp. 187-188). {¶ 16} Also in July 2008, Annie Fisher, the guardian ad litem ["GAL"] for the children, filed a dispositional report recommending Scott be granted supervised visitation with the children, including ED. *Page 11 {¶ 17} In August 2008, Scott filed a motion for supervised visits, requesting that he be granted supervised visitation rights with all of his children. {¶ 18} Subsequently, the trial court held a dispositional hearing. At the hearing, CPSU submitted into evidence a letter prepared by Schweitzer-Dunn, who was then serving as the therapist for EL, ED, and AL. The letter recommended more time elapse before Scott is granted visitation rights, as the children have continued to express fear and anger towards his actions. {¶ 19} Also at the hearing, Scott called the GAL to the stand, but she requested a continuance of the hearing, as she had been unable to find counsel to represent her and was uncomfortable with proceeding without counsel. Consequently, the trial court issued a disposition, granting custody of all the children to Danielle with protective supervision, ordering that Scott's visitation rights be granted only upon the recommendation of the Family Resource Center therapist, and granting the parties leave to file a motion to modify the disposition, thereby giving Scott the opportunity to present evidence once the GAL obtained an attorney. {¶ 20} Subsequently, Scott filed a timely notice of appeal, and no parties filed a motion to modify the trial court's disposition. {¶ 21} It is from these judgments that Scott appeals, presenting the following assignments of error for our review. *Page 12 Assignment of Error No. I THE TRIAL COURT'S DECISION THAT THE MINOR CHILD, [ED] WAS AN ABUSED AND DEPENDENT CHILD IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Assignment of Error No. II THE TRIAL COURT'S DECISION THAT THE MINOR CHILDREN WERE DEPENDENT CHILDREN IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Assignment of Error No. III THE TRIAL COURT ERRED AS A RESULT OF ITS REFUSAL TO PERMIT THE APPELLANT TO CALL WITNESSES IN HIS DEFENSE. Assignment of Error No. IV THE TRIAL COURT ERRED AS A RESULT OF ITS DENIAL OF ANY PARENTING TIME BETWEEN APPELLANT AND HIS MINOR CHILDREN. {¶ 22} Due to the nature of Scott's arguments, we elect to address assignments of error one and two together. Assignments of Error Nos. I and II {¶ 23} In his first assignment of error, Scott contends that the trial court's adjudication of ED as an abused and dependent child was against the manifest weight of the evidence. Specifically, Scott contends that the evidence presented by CPSU failed to establish that ED suffered a physical or mental injury, a requirement for a finding of abuse under R.C. 2151.031(D), or that he had sexual *Page 13 contact with ED. Furthermore, Scott contends that the trial court erred by allowing two witnesses to testify to ED's out-of-court statements without first making a preliminary determination of ED's competency as a witness. {¶ 24} In his second assignment of error, Scott argues that the trial court's finding that the other children were dependent was also against the manifest weight of the evidence. Specifically, Scott asserts that the other children could not have been adjudicated dependent because the basis of that adjudication was found in R.C. 2151.04(D), requiring that the other children reside in the home of a parent who has committed an act to form the basis of an adjudication that another child who resides in the home is abused or dependent, and none of his other three children reside in his home, and insufficient evidence was presented to find ED was an abused and dependent child. A. Manifest Weight of the Evidence {¶ 25} "[W]hen reviewing a judgment under a manifest-weight-of-the-evidence standard, a court has an obligation to presume that the findings of the trier of fact are correct." State v.Wilson, 113 Ohio St.3d 382, 387, 2007-Ohio-2202, citing Seasons CoalCo., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80-81. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C. E. Morris Co.v. Foley Const. Co. (1978), 54 Ohio St.2d 279, 280. Mere disagreement over the credibility of *Page 14 witnesses or evidence is not sufficient reason to reverse a judgment.Wilson, 113 Ohio St.3d at 387. {¶ 26} A trial court's adjudication of a child as abused or dependent must be supported by clear and convincing evidence. R.C. 2151.35(A)(1); Juv. R. 29(E)(4); In re Myers, 3d Dist. No. 13-06-48, 2007-Ohio-1631, ¶ 11. Clear and convincing evidence is "[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." In re Estate ofHaynes (1986), 25 Ohio St.3d 101, 104. Furthermore, when "the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross v. Ledford (1954), 161 Ohio St. 469, 477, citingFord v. Osborne (1887), 45 Ohio St. 1; Cole v. McClure (1913),88 Ohio St. 1; and Frate v. Rimenik (1926), 115 Ohio St. 11. Thus, we are required to determine whether the trial court's determination was supported by sufficient credible evidence to satisfy the requisite degree of proof. In re McCann, 12th Dist. No. CA2003-02-017,2004-Ohio-283, ¶ 12, citing In re Starkey, 150 Ohio App.3d 612, 617,2002-Ohio-6892. {¶ 27} R.C. 2151.031 defines an abused child as one who: *Page 15 (A) Is the victim of "sexual activity" as defined under Chapter 2907. of the Revised Code, where such activity would constitute an offense under that chapter, except that the court need not find that any person has been convicted of the offense in order to find that the child is an abused child; (B) Is endangered as defined in section 2919.22 of the Revised Code, except that the court need not find that any person has been convicted under that section in order to find that the child is an abused child; * * * (D) Because of the acts of his parents, guardian, or custodian, suffers physical or mental injury that harms or threatens to harm the child's health or welfare. {¶ 28} Sexual activity is defined in R.C. 2907.01(C) as either sexual conduct, sexual contact, or both. Sexual conduct is defined, in part, as: {¶ 29} [T]he insertion, however slight, of any part of the body or anyinstrument, apparatus, or other object into the vaginal or anal openingof another. Penetration, however slight, is sufficient to completevaginal or anal intercourse. R.C. 2907.01(A). {¶ 30} Sexual contact is defined as: [A]ny touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. R.C. 2907.01(B). {¶ 31} Furthermore, R.C. 2919.22(A) defines endangering a child as creating "a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support." *Page 16 {¶ 32} R.C. 2151.04 sets forth the definitions of a dependent child as follows: As used in this chapter, "dependent child" means any child: * * * (B) Who lacks adequate parental care by reason of the mental or physical condition of the child's parents, guardian, or custodian; (C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child's guardianship; (D) To whom both of the following apply: (1) The child is residing in a household in which a parent, guardian, custodian, or other member of the household committed an act that was the basis for an adjudication that a sibling of the child or any other child who resides in the household is an abused, neglected, or dependent child. (2) Because of the circumstances surrounding the abuse, neglect, or dependency of the sibling or other child and the other conditions in the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household. 1. Adjudication of ED as an abused and dependent child {¶ 33} In the case at bar, Scott argues that the manifest weight of the evidence does not support a finding that ED is a dependent child, and that ED should not have been adjudicated an abused child because there was no evidence that she suffered from a physical or mental injury, as required under *Page 17 R.C. 2151.031(D), or that actual sexual contact took place, as required under R.C. 2151.031(A). {¶ 34} However, the trial court's finding that ED was an abused child was also based upon R.C. 2151.031(B), that the child is endangered. At trial, evidence was presented that Scott attempted to touch ED's vagina and breasts; that he "humps" her; that he would lay on top of her and move his body up and down; that he took baths with her until she was five years old; and, that he would sleep in the same bed with her while she was in her underwear. Additionally, two witnesses testified that it did not appear that ED had been coached to make these allegations, or that she was lying about the allegations, as she was able to give the same story with sufficient detail on multiple occasions. {¶ 35} On the other hand, Scott's only evidence was his own testimony that these events did not occur, and that ED's story of the events could not have been true, as she alleged that the acts occurred while she was at his house without her sister, and there was never an occasion where he did not have visitation with all the children at one time. However, we note that the trial court could have discounted Scott's testimony as self-serving and untrustworthy, as the weight to be given to the credibility of witnesses is primarily reserved to the trier of fact, and presents this Court with an insufficient basis to reverse a judgment.State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus; Wilson, 113 Ohio St.3d at 387. *Page 18 {¶ 36} Accordingly, we find that the weight of the evidence supported a finding that Scott's behavior presented a substantial risk to the health and safety of ED, thereby substantiating the adjudication that she was an abused child pursuant to R.C. 2151.031(B); that the testimony describing the details of Scott "humping" ED was sufficient to establish sexual contact, also supporting an adjudication that she was an abused child under R.C. 2151.031(A); and, that the clear and convincing evidence of Scott's actions supported a finding that ED lacked adequate parental care and that her environment warranted the State to be involved in her guardianship, thereby sustaining the determination that ED was dependent pursuant to R.C. 2151.04(B) and (C). 2. Adjudication of the other children as dependent {¶ 37} Additionally, Scott asserts that the other children could not have been adjudicated dependent under R.C. 2151.04(D), as that determination requires a finding that the other children reside with him and that ED is dependent, both of which he claims were not proven by clear and convincing evidence. {¶ 38} Again, however, the trial court also found the other children to be dependent under R.C. 2151.04(B) and (C). Based on the evidence presented that Scott had sexual contact with ED, it is clear the trial court's adjudication of the other children as dependent pursuant to R.C. 2151.04(B) and (C), finding that they lacked adequate parental care and that their environment warranted the State's involvement in their guardianship, was supported by clear and convincing *Page 19 evidence. Consequently, we find the trial court's determination that the other children were dependent was not against the manifest weight of the evidence. B. ED's competency as a witness {¶ 39} Scott also argues that the trial court erred in permitting Schweitzer-Dunn and Elliot to testify to out-of-court statements made by ED without first making a determination as to whether ED was competent to provide such testimony herself under Evid. R. 601. {¶ 40} We first note that Elliot did not testify to the details of ED's statements until Scott elicited them on cross-examination. Secondly, although Scott objected to Schweitzer-Dunn's testimony regarding the statements made by ED contained in the diagnostic assessment prepared by Alyssa Roach, Scott's objection was that the statements were double hearsay, and, after being provided with a copy of the report, Scott did not further pursue his objection. At no point did he object to ED's competency as a witness. Accordingly, Scott has waived all but plain error on this issue. See State v. Stiles, 3d Dist. No. 1-08-12, 2009-Ohio-89, ¶ 42. {¶ 41} However, because the statements made by ED to Schweitzer-Dunn in her capacity as a therapist were for purposes of medical diagnosis or treatment, the trial court was not required to conduct a competency evaluation of ED before admitting the statements. See State v.Muttart, 116 Ohio St.3d 5, 14, 2007-Ohio-5267, ("[R]egardless of whether a child less than ten years old has been *Page 20 determined to be competent to testify pursuant to Evid. R. 601, the child's statements may be admitted at trial as an exception to the hearsay rule pursuant to Evid. R. 803(4) if they were made for purposes of medical diagnosis or treatment")1. {¶ 42} As to the statements made by ED to Elliot in her capacity as a social worker, these statements may not have been made for purposes of medical diagnosis or treatment, but they were wholly elicited by Scott on cross-examination, thereby inviting the error, and, consequently, waving it. {¶ 43} Therefore, we find that the trial court did not err in admitting ED's statements regarding the sexual abuse through the testimony of her therapist and social worker without first requiring ED to submit to a competency evaluation pursuant to Evid. R. 601. {¶ 44} Accordingly, we overrule Scott's first and second assignments of error. Assignment of Error No. III {¶ 45} In his third assignment of error, Scott argues that the trial court erred in refusing to allow him to call witnesses in his defense. Specifically, he contends that he should have been permitted to call two witnesses whom he did not disclose *Page 21 in discovery because the need for the witnesses did not arise until CPSU presented its case. {¶ 46} An appellate court reviews a trial court's decision regarding disposition of discovery issues for abuse of discretion. Portman v.Mabe, 3d Dist. No. 15-07-12, 2008-Ohio-3508, ¶ 13, citing State ex rel.The V. Cos. v. Marshall, 81 Ohio St.3d 467, 469, 1998-Ohio-329. An 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. When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. Id. {¶ 47} Juv. R. 24 governs discovery in child abuse, neglect, and dependency proceedings. It provides, in relevant part: (A) Request for discovery Upon written request, each party of whom discovery is requested shall, to the extent not privileged, produce promptly for inspection, copying, or photographing the following information, documents, and material in that party's custody, control, or possession: (1) The names and last known addresses of each witness to the occurrence that forms the basis of the charge or defense; (2) Copies of any written statements made by any party or witness; (3) Transcriptions, recordings, and summaries of any oral statements of any party or witness, except the work product of counsel; *Page 22 * * * (C) Failure to comply If at any time during the course of the proceedings it is brought to the attention of the court that a person has failed to comply with an order issued pursuant to this rule, the court may grant a continuance, prohibit the person from introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances. {¶ 48} In this case, Scott attempted to call two witnesses, Walt Shephard, the pastor of the church he attends, and Darcie Adams, a church member. Scott proffered the testimony of both witnesses, stating that Adams would testify that, according to church attendance records, all three of his children are present with him when he attends church, and that Shephard would testify from his personal recollection that all three of Scott's children attend church with him. Scott asserted that he had not disclosed the witnesses because he did not plan on calling them, but, when CPSU presented ED's statements that the abuse occurs when she is at his house without her sister, he then saw the need to present testimony to establish that ED does not attend visits to his house without the other children present. {¶ 49} However, the trial court noted, and Scott recognized, that he had been provided with a videotape of ED's statements prior to trial, and, as such, he should have been fully aware of any need to present witnesses to discredit ED's statements. *Page 23 {¶ 50} Furthermore, we note that denying Scott the ability to present this testimony has little, if any, prejudicial effect upon his defense. Even if both witnesses were permitted to testify, their testimony would have limited persuasive value; just because all three children were present with Scott at church does not affirmatively establish that ED could not have visited Scott's home at a time when her sister was not present. {¶ 51} Consequently, we find that the trial court did not abuse its discretion in refusing Scott the opportunity to present the testimony of Adams and Shephard. {¶ 52} Accordingly, we overrule Scott's third assignment of error. Assignment of Error No. IV {¶ 53} In his fourth assignment of error, Scott asserts that the trial court erred by denying him parenting time with his children. Specifically, Scott contends that the trial court abused its discretion by denying him parenting time based solely upon the written recommendation of Schweitzer-Dunn and the hearsay statements contained therein without the presentation of any other testimony. We disagree. {¶ 54} A trial court's decision regarding disposition of a child will be upheld absent a finding of abuse of discretion, as set forth in our discussion of Scott's third assignment of error. In re Utz, 3d Dist. No. 3-2000-06, 2000-Ohio-1710, citing In re Ward (1992) 75 Ohio App.3d 377,379. *Page 24 {¶ 55} R.C. 2151.353 grants the trial court an array of dispositions when a child has been found abused, neglected or dependent. It provides, in pertinent part: A) If a child is adjudicated an abused, neglected, or dependent child, the court may make any of the following orders of disposition: * * * 6) Order the removal from the child's home until further order of the court of the person who committed abuse as described in section 2151.031 of the Revised Code against the child, who caused or allowed the child to suffer neglect as described in section 2151.03 of the Revised Code, or who is the parent, guardian, or custodian of a child who is adjudicated a dependent child and order any person not to have contact with the child or the child's siblings. (Emphasis added.) R.C. 2151.353(A)(6). {¶ 56} Furthermore, Juv. R. 34(E) provides: If the court issues an order for protective supervision, the court may place any reasonable restrictions upon the child, the child's parents, guardian, or any other person * * *. {¶ 57} In determining appropriate restrictions at a disposition hearing, the trial court may consider all material and relevant evidence, including hearsay evidence. Juv. R. 34(B)(2); In re SeanT, 6th Dist. Nos. H-04-009, H-04-010, 2005-Ohio-5739, ¶ 32. {¶ 58} At the dispositional hearing, CPSU submitted a letter from Schweitzer-Dunn, recommending additional time before Scott is permitted *Page 25 parenting time with the children, in part due to the statements made by the children that they are mad at their father and scared of him. While the letter may have contained hearsay statements of the children, the trial court had full authority under Juv. R. 34 to consider the contents of the letter in making its determination. {¶ 59} Additionally, Scott presented no evidence demonstrating that he should be permitted parenting time with the children. He attempted to present the GAL's recommendation that he be granted parenting time, but the trial court granted her request to continue her testimony until she could obtain counsel. As a consequence, the trial court filed the disposition judgment entry but granted the parties leave to file a motion to modify the disposition, thereby giving the GAL an opportunity to obtain counsel and giving Scott the opportunity to call her back to testify. However, Scott filed a notice of appeal to the decision and never filed a motion to modify the disposition, thereby depriving himself of the opportunity to present the GAL's testimony. {¶ 60} Furthermore, the trial court did not deny Scott parenting time with his children, but left the decision of parenting time to the discretion of Family Resource Center's therapist. However, based upon the trial court's adjudication of ED as abused and dependent due to Scott's abuse of the child, the trial court's adjudication of the other children as dependent, and the recommendation of Schweitzer-Dunn that Scott's parenting time be postponed, we find that the trial *Page 26 court was well within its discretion under R.C. 2151.353(A)(6) and Juv. R. 34(E) to order Scott's parenting time to be at the discretion of the therapist. {¶ 61} Accordingly, we overrule Scott's fourth assignment of error. {¶ 62} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgments of the trial court. Judgments Affirmed WILLAMOWSKI and SHAW, J.J., concur. 1 This author questions whether statements made to a psychologist that do not concern treatment of physical ailments fall under the Evid. R. 803(4) exception to the hearsay rule, as the Rule was originally clearly directed to medical treatment or diagnosis for physical ailments. See Evid. R. 803(4) and Staff note: Rule 803. As Schweitzer-Dunn was a therapist, she could not have been providingmedical treatment or diagnosis. *Page 1

2016-07-06 06:42:05.514524+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an accelerated appeal from a judgment of the Toledo Municipal Court in a landlord/tenant dispute. {¶ 2} Appellees, Clifton and Macon Reasonover, entered a lease agreement for a home in Toledo with appellant, Donald Stalhood, effective January 1, 2001. Monthly rent for the premises was $400. Rent was paid for six months and no more, even though the appellees continued to occupy the property. A Landlord's Complaint was filed in Toledo Municipal Court by appellant in August, 2001, seeking restitution of the premises and damages in the amount of $1,319.71. Appellees filed their answer and counterclaim, contending that appellant's frequent visits to repair and remodel the home denied their right to quiet enjoyment and constituted an invasion of privacy. The matter was then scheduled for hearing on the F.E.D. (forcible entry and detainer) first cause of action. The appellees returned the keys to the subject premises to the appellant and vacated the property. The remaining claim and the counterclaim (second cause), were continued for trial. {¶ 3} The trial court awarded appellant the damages he sought, but set off the figure by $200 for "incidental damages" to appellees and $800 for, "* * * failure to comply with O.R.C. § 5321.16(B)." {¶ 4} Appellant now brings this appeal, asserting in two assignments of error that the court improperly awarded R.C. 5321.16 damages and erroneously awarded "incidental damages." {¶ 5} R.C. 5321.16(C) allows a tenant to recover "* * * damages in an amount equal to the amount wrongfully withheld * * *" from a security deposit. However, R.C. 5321.16(B) specifically permits a landlord to withhold security deposit funds so that they may be, "* * * applied to the payment of past due rent * * *." Since the court found here that there were rent arrearages in excess of the $400 deposit amount, that amount was not "wrongfully withheld" and was, therefore, not subject to the "double" damages. Vardeman v. Llewellyn (1985), 17 Ohio St.3d 24,29. {¶ 6} With respect to the additional $200 setoff, the trial court stated that this was, "* * * for inconvenience and expense to [appellees] due to early termination of the lease." This award is simply unsupported by the evidence. {¶ 7} Accordingly, both of appellant's assignments of error are found well-taken. Appellees were only entitled to set off the amount of the $400 deposit against the $1,319.71 judgment. {¶ 8} On consideration whereof, the judgment of the Toledo Municipal Court is reversed. This matter is remanded to said court for further consideration consistent with the decision. Costs to appellee. JUDGMENT REVERSED. Mark L. Pietrykowski, J., Judith Ann Lanzinger, J., Arlene Singer, J., CONCUR.

2016-07-06 06:42:05.637298+00

OPINION Defendant-appellant, Robert Sawyers, appeals a decision of the Brown County Court of Common Pleas awarding plaintiff-appellee, Emily N. Sawyers, a $15,000 distributive award in the property division of a divorce proceeding. Because we find that the trial court did not abuse its discretion in making this distributive award, we affirm. Robert and Emily Sawyers were married on December 28, 1994 and separated during August of 1996. No children were born to the parties during this marriage. Before the 1994 marriage, Robert and Emily lived together for substantial periods of time beginning in May of 1992. Sometime during 1993, Robert began building a house with the help of Emily's son. This house was substantially completed at the time of the 1994 marriage. Robert and Emily lived in this home as their marital residence before and during the 1994 marriage. Emily's name was not on the note or the mortgage for the home. Emily testified at trial that she substantially contributed to the value of the marital home. Emily washed, stained, buffed, and polyurethaned nine of the eleven windows in the house. She stained and finished the baseboards and interior doors. Emily also helped to prepare the floor for carpet to be laid and helped lay hard wood on the foyer floor. She sealed and cleaned the tile floors after Robert laid them. Emily painted the walls in the living room, family room, kitchen, and bathroom. She also purchased decorative items for the home and landscaped the surrounding yard. Emily's daughter, son, and former daughter-in-law all testified that they saw Emily work on the construction and improvement the house. Emily's daughter said that she saw her mother working on the home on at least twenty separate occasions. Robert admitted that Emily had assisted in the construction and improvement of the home but estimated that she only contributed about thirty hours of labor. Throughout the marriage, Robert and Emily maintained separate banking accounts and never established a joint account. Emily testified that she often paid household bills so that Robert "could use his money on the home." Emily estimated that she purchased ninety percent or more of the household's groceries during the last year that they were living together as husband and wife. However, there was evidence that to some extent both Robert and Emily paid for groceries, utilities, phone service, and insurance. Emily also testified that when she received two lump sum settlements from workers' compensation and social security, the bulk of the money was deposited into Robert's account. Finally, Emily testified that she had charged $2,100 on one of Robert's credit cards in an effort to help support herself during the divorce proceedings because she was receiving only $161 per month from social security disability and was not employed. The trial court asked both parties to submit a property statement. Emily's property statement was fairly detailed and provided values for each piece of property listed. Robert's property statement affirmed or refuted selected properties mentioned in Emily's statement. In his property statement, Robert argued that Emily had no claim to his house but did not refute the $120,000 estimated value as set forth in Emily's property statement. At the conclusion of the evidence, the trial court determined that pursuant to R.C. 3105.171(A)(6)(a)(ii),1 the marital residence was Robert's separate property. The trial court found that for purposes of the marital distribution, "during the marriage" would equitably be determined to be the period of time from when the parties began living together on or about May of 1992 and during the time which Emily contributed to the construction, improvements, and appreciation of the home, until the parties separated in August of 1996. Under R.C.3105.171(A)(3)(a)(iii),2 a portion of the residence was deemed to be marital property, as it represented the appreciation of separate property due to labor, monetary, or in kind contribution during the marriage. The trial court awarded Emily a distributive award of $15,000, pursuant to R.C. 3105.171(E)(2). The marital residence, as separate property of Robert was awarded to Robert, subject to the distributive award for Emily. Thereafter, Robert filed this appeal, raising one assignment of error for our review. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT ROBERT SAWYERS IN AWARDING PLAINTIFF-APPELLEE EMILY N. SAWYERS FIFTEEN THOUSAND DOLLARS ($15,000.00) AS A DISTRIBUTIVE AWARD FOR HER INTEREST IN DEFENDANT-APPELLANT ROBERT SAWYERS' SEPARATE PROPERTY. Robert argues that the trial court's decision to grant Emily a $15,000 distributive award was an abuse of discretion. Robert asserts that the trial court did not record its findings in sufficient detail to understand the rationale behind the distributive award calculation and failed to consider damage that Emily allegedly caused to Robert's property. A distributive award is defined in R.C. 3105.171 as "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). While the trial court "shall disburse a spouse's separate property to that spouse," R.C. 3105.171(D), "the court may make a distributive award [from separate property] in lieu of a division of marital property in order to achieve equity between the spouses, if the court determines that a division of the marital property in kind or in money would be impractical or burdensome." R.C. 3105.171(E)(2). The trial court must consider the factors set forth in R.C.3105.171(F) when determining whether to make and the amount of any distributive award. These factors are as follows: (1) The duration of the marriage; (2) The assets and liabilities of the spouses; (3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage; (4) The liquidity of the property to be distributed; (5) The economic desirability of retaining intact an asset or an interest in an asset; (6) The tax consequences of the property division upon the respective awards to be made to each spouse; (7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of the property; (8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; (9) Any other factor that the court expressly finds to be relevant and equitable. A trial court is vested with broad discretion to decide whether a distributive award of a party's separate property is appropriate and equitable pursuant to R.C. 3105.171(E). Adams v.Chambers (1992), 82 Ohio App.3d 462, 466, citing Teeter v.Teeter (1985), 18 Ohio St.3d 76. An appellate court may change or reverse a distributive award made by a trial court only upon a demonstration of an abuse of discretion. Id. Abuse of discretion implies that the trial court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. The trial court granted a distributive award to Emily, in part, from a finding of marital property under R.C.3105.171(A)(3)(a)(iii). Following the plain language of R.C.3105.171(A)(3)(a)(iii), when either spouse makes a labor, money, or in-kind contribution that causes the value of separate property to increase, that increase is deemed marital property. (Emphasis added.) Middendorf v. Middendorf (1998), 82 Ohio St.3d 397, 400, citing Kotkowski v. Kotkowski (May 19, 1995), Portage App. No. 94-P-0027, unreported. When making the distributive award in this case, the trial court noted that a division of the marital property would be impractical or burdensome. See R.C. 3105.171(E)(2). The trial court explained that the amount of the distributive award was determined after consideration of the appreciation of the home as marital property from Robert's separate property, as well as the value of the personal property which Robert was to receive by order of the trial court. The trial court estimated that the value of items of marital personal property awarded to Robert exceeded $6,500. The trial court also found that Emily had contributed a significant portion of her $3,917.19 workers' compensation settlement and $1,081 social security settlement to make a down payment on Robert's pickup truck. Therefore, approximately $11,500 of the distributive award was offset by marital property given to Robert and settlement money that Robert benefited from during the marriage. The trial court also acknowledged Emily's contributions to the construction and improvement of the marital home in making the distributive award. Pursuant to R.C. 3105.171(A)(3)(a)(iii), the trial court found that during the marriage Emily and Robert's labor, money, and in-kind contributions increased the value of Robert's home and that this increase was marital property. Although it is not explicitly stated in the judgment entry, it appears that Emily's share of this increase was approximately $3,500. The trial court did not award Emily any spousal support. Robert asserts that the trial court also failed to consider damage that Emily allegedly caused to Robert's property. At trial Emily admitted that she had "keyed" the back bumper of Robert's truck, but denied causing any other damage to Robert's property. The damage to Robert's truck was estimated to be $381.60. We find that there was competent, credible evidence to support the trial court's decision to grant Emily a distributive award in the amount of $15,000. Therefore, the trial court's act was not an abuse of discretion and Robert's assignment of error is without merit. Judgment affirmed. YOUNG, P.J., and VALEN, J., concur. 1 1. R.C. 3105.171(A)(6)(a) states the following: "Separate property" means all real and personal property and any interest in real or personal property that is found by the court to be any one of the following: * * * (ii) Any real or personal property interest in real or personal property that was acquired by one spouse prior to the date of the marriage. 2 2. R.C. 3105.171(A)(3)(a) states the following: "Marital property" means, subject to (A)(3)(b) of this section, all of the following: * * * (iii) Except as otherwise provided in this section, all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage.

2016-07-06 06:42:05.953006+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellant, Ronald Fuller, Jr., appeals from the sentence imposed by the Summit County Court of Common Pleas. We reverse. On October 22, 1998, the Summit County Grand Jury indicted Mr. Fuller on three counts of aggravated burglary, in violation of R.C. 2911.11(A)(1); one count of rape, in violation of R.C.2907.02(A)(2); and two counts of attempted rape, in violation of R.C. 2907.02(A)(2) and R.C. 2923.02. In a journal entry dated February 11, 1999, pursuant to a plea agreement, the three counts of aggravated burglary in the indictment were amended to the lesser included offense of burglary. Subsequently on the same day, Mr. Fuller pleaded guilty to three counts of burglary, one count of rape, and two counts of attempted rape. On March 9, 1999, a sentencing hearing was held. In a journal entry dated March 11, 1999, Mr. Fuller was sentenced to a two-year definite term on each of the three counts of burglary, to a six-year definite term for rape, and to a four-year definite term on each of the two counts of attempted rape. The trial court further ordered that the sentences imposed on all of the counts be served consecutively for a total sentence of twenty years. Mr. Fuller was also adjudged to be a sexual predator, pursuant to R.C.2950.09. This appeal followed. Mr. Fuller asserts one assignment of error: The trial court erred by imposing upon the Appellant consecutive sentences which are contrary to law. Mr. Fuller avers that the trial court did not make the statutorily required findings when it sentenced him to consecutive terms of imprisonment. Mr. Fuller also asserts that the trial court's statements at the sentencing hearing and in the journal entry, reciting the court's decision and reasoning, were insufficient to fulfill the statutorily required findings for imposition of consecutive sentences. We agree. Our standard of review is controlled by R.C. 2953.08(G)(1), requiring us to determine if the trial court clearly and convincingly acted contrary to law or the record. Clear and convincing evidence is that "`which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.'" Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St.3d 121, 122, quoting Cross v. Ledford (1954),161 Ohio St. 469, paragraph three of the syllabus. R.C. 2929.14 governs the imposition of prison terms for felony convictions, stating, in relevant part: (E) * * * (4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: * * * (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. "[T]he verb `finds' as used in this statute means that the court must note that it engaged in the analysis and that [the sentence was imposed] for at least one of the [enumerated] sanctioned reasons." State v. Edmonson (1999), 86 Ohio St.3d 324, 326. Moreover, if a court imposes consecutive sentences under R.C.2929.14(E)(4), the court "shall make a finding that gives its reasons for selecting the sentence imposed[.]" R.C.2929.19(B)(2)(c). In the case at bar, we find that the trial court did not comply with the statutory requirements as interpreted by the Ohio Supreme Court in Edmonson at the hearing and in its judgment entry. At the sentencing hearing, the trial court stated that: Although the defendant is of youthful age, the Court feels the 20-year sentence is justified for the following reasons: First of all, the organized nature and planned nature of the crimes. Each of this [sic] was done with some planning and some design. The physical harm caused to the victims in each of the particular crimes. The use of force and threat of force in committing the crimes. The victims and their families suffered serious, physical, psychological, and emotional harm. * * * The Court has considered as mitigating factors in this case your youthful age and the fact that you did not have a serious criminal record. Although the trial court made specific factual findings, the trial court did not indicate that it engaged in the statutorily prescribed analysis regarding whether consecutive sentences were "disproportionate to the seriousness of [Mr. Fuller's] conduct[.]" R.C. 2929.14(E)(4). Furthermore, the trial court did not discuss whether it imposed the prison sentences consecutively after analyzing whether the sentences were "necessary to protect the public from future crime or to punish [Mr. Fuller][.]" R.C.2929.14(E)(4). Moreover, the trial court did not note whether the harm caused by the multiple offenses was so great that a single prison term for any of the offenses adequately reflects the seriousness of Mr. Fuller's conduct. R.C. 2929.14(E)(4)(b). Consequently, in light of Edmonson, we are compelled to conclude that the trial court's findings do not comport with the required findings under R.C. 2929.14(E)(4). Accordingly, appellant's assignment of error regarding his sentencing is sustained. Appellant's sentence is reversed, and the cause is remanded for re-sentencing in compliance withEdmonson and R.C. 2929.14(E)(4). Judgment reversed, and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellee. Exceptions. _______________________________ WILLIAM G. BATCHELDER FOR THE COURT SLABY, J., CARR, J. CONCUR.

2016-07-06 06:42:06.000599+00

OPINION {¶ 1} Plaintiffs-appellants appeal from the judgment of the Franklin County Court of Common Pleas entered upon a jury verdict awarding damages to plaintiffs against defendant-appellee Joseph L. Racan, Jr. ("Racan"), and against defendant-appellee Miranda Renee Edel ("Edel"). {¶ 2} On March 14, 2000, plaintiffs Lisa A. Sotos, aka Lisa A. Collins ("Lisa"), Lisa's husband, Andrew D. Collins ("Andrew"), and their minor child, Jeremy R. Collins ("Jeremy"), filed suit in the Franklin County Court of Common Pleas. Plaintiffs asserted claims for negligence and loss of consortium against Edel arising from an automobile accident occurring March 17, 1998. In addition, plaintiffs sought underinsured/uninsured motorist coverage from defendant Nationwide Insurance Company ("Nationwide"). Because Edel failed to answer the complaint, plaintiffs moved for default judgment. On August 4, 2000, the trial court, by entry, ruled that Edel was in default and referred the matter to a magistrate for a damages hearing. Nationwide answered the complaint but was ultimately dismissed from the action. {¶ 3} On November 9, 2000, the trial court granted plaintiffs leave to amend their complaint and to add Racan as a new-party defendant. Plaintiffs amended their complaint to assert claims for negligence and loss of consortium against Racan arising from an automobile accident occurring May 29, 1997. Racan answered the amended complaint on January 9, 2001. {¶ 4} The action against Racan and Edel came on for trial by jury in July 2002. The jury rendered a verdict on July 12, 2002, and also answered interrogatories. {¶ 5} Against Racan, involving the first accident, the jury awarded Lisa compensatory damages in the total amount of $18,951.10. The jury awarded no damages to Jeremy against Racan. {¶ 6} Against Edel, involving the second accident, the jury awarded Lisa compensatory damages in the total amount of $129,916.22, and awarded Jeremy $15,000 for loss of his mother's comfort, affection, guidance, and counsel. {¶ 7} On July 16, 2002, plaintiffs moved for "Additur Proper Determination of Damages." In the alternative, plaintiffs moved for a new trial. On August 23, 2002, the trial court denied these motions by entry. {¶ 8} On October 24, 2002, the trial court entered judgment on the jury verdict rendered July 12, 2002. Only the plaintiffs appealed from the judgment to the Franklin County Court of Appeals. {¶ 9} Lisa was injured in successive automobile accidents occurring respectively on May 29, 1997, and March 17, 1998. {¶ 10} On May 29, 1997, Lisa was 37 years of age and employed as a trial attorney at the office of the Ohio Attorney General where she had been working for several years at the downtown office in Columbus, Ohio. On that date, Lisa picked up Jeremy from daycare after work. Jeremy was not quite one year old on that day. {¶ 11} Lisa, Andrew, and Jeremy resided in the northwest area of Columbus. Lisa proceeded to drive home with Jeremy secured in the backseat of Lisa's Ford Escort. Heading east on Bethel Road, Lisa stopped at a red light at the intersection of Bethel and Godown roads. At that time, Racan was also heading east behind Lisa on Bethel Road in his Nissan Maxima. Racan stopped at the red light behind Lisa. As Lisa proceeded to make a right turn, Racan negligently collided his vehicle into the rear end of Lisa's vehicle. Racan's vehicle was moving under five m.p.h. when it struck Lisa's vehicle. There was very minor damage to the vehicles. Racan exited his vehicle and asked Lisa if she was alright. Lisa told Racan that she was fine. Upon Racan's suggestion, Racan and Lisa moved their vehicles to a nearby gas station. Lisa was concerned because Jeremy was crying so Racan called 911. {¶ 12} A police officer and a fire department medical squad arrived at the scene in response to Racan's call. {¶ 13} Lisa called Andrew at home. Andrew arrived at the accident scene while the medical squad was there. Jeremy was still secured in the vehicle and was crying. The medical squad kept Jeremy secured in the vehicle until they could determine whether he was injured. Then Andrew got Jeremy out of the car and calmed him down. {¶ 14} Later that evening, Andrew drove Lisa to a hospital emergency room because Lisa was complaining of pain. She was examined at the emergency room and released that evening. The emergency room physician reported his impression as "cervical mid back to low back strain, status post motor vehicle accident." {¶ 15} Lisa's automobile accident occurred on a Thursday. She missed work the next day but returned to full-time work the following Monday, June 2, 1997, at the Attorney General's office. {¶ 16} The following Friday, June 6, Lisa experienced some dizzy spells while at work. That evening, she returned to the emergency room complaining of continuing neck pain. The impression of the emergency room physician was "acute cervical strain, continued pain." The emergency room physician recommended that Lisa follow-up with Michael J. Meagler, M.D., a neurologist. {¶ 17} Lisa initially met with Dr. Meagler on June 9, 1997, and began treatment with him. Dr. Meagler referred Lisa to George W. Waylonis, M.D., for a consultation. Dr. Waylonis examined Lisa one time on September 22, 1997, and rendered a report of his findings. Dr. Waylonis is board certified in the specialty area of Physical Medicine and Rehabilitation and is a clinical professor of physical medicine at The Ohio State University. He has published extensively on the subject of fibromyalgia. He consults with other physicians regularly in that area. {¶ 18} According to Dr. Waylonis, fibromyalgia is a chronic disorder that results in pain in the muscles and soft tissues of the body. The symptoms of fibromyalgia may begin with a traumatic event such as an automobile accident, but can develop spontaneously. Approximately three to seven percent of the population are predisposed to the condition. Most who develop fibromyalgia do so before the age of 38. Moreover, the relative severity of the automobile accident is not an issue. Fibromyalgia can be induced by major or minor trauma. {¶ 19} In addition to muscle pain, other symptoms of fibromyalgia include stiffness, fatigue, headaches, and sleep disturbance. To determine whether a patient has fibromyalgia, Dr. Waylonis uses the criteria established by the American College of Rheumatology. {¶ 20} That criteria includes a history of widespread pain lasting for more than three months and the presence of at least 11 of 18 tender points at specific locations of the body. The presence of a tender point is determined by the physician's digital palpation of the area. {¶ 21} Once fibromyalgia develops, it is a lifelong condition. However, it is treatable with exercise, medications, and education. While the symptoms are chronic, they can vary in intensity from day to day. {¶ 22} Based on his September 22, 1997 examination, Dr. Waylonis opined in his written report of that date that Lisa did not have fibromyalgia based upon the absence of sufficient tender points in the standard 18 locations. However, on September 22, 1997, Dr. Waylonis did diagnose "Post traumatic cervical thoracic strain syndrome with localized post traumatic myofascial pain." (Waylonis Depo., at 27.) Dr. Waylonis also opined in his report that he believed Lisa's "prognosis is favorable for full recovery." (Depo. 28.) {¶ 23} During his deposition which was read to the jury, Dr. Waylonis noted the difference between myofascial pain and the pain associated with fibromyalgia. Myofascial pain "is a very limited restricted form [of] muscular pain" that "has a good chance to go away." (Depo. 32.) Dr. Waylonis testified that "many myofascial pain patients will eventually become fibromyalgia patients." (Depo. 33.) However, "there's no hard research on what percentage of people that show up with limited myofascial pain will go on to develop fibromyalgia." (Depo. 36.) {¶ 24} The fibromyalgic is not necessarily disabled from working, even full-time. Dr. Waylonis himself is an example of that point. Dr. Waylonis became symptomatic in his early 20's and has lived with fibromyalgia for over 40 years. {¶ 25} In late December 1997, Lisa began treatment with Kevin J. Anderson, M.D., as her primary care physician. In his initial office note, Dr. Anderson recorded that Lisa was involved in an automobile accident on May 29, 1997, and that she initially suffered significant neck and low back pain and has undergone physical therapy for the past four months. On her first visit, Lisa complained of having severe pain in her left lower neck with some radiation down into her shoulder. She reported to Dr. Anderson that she had been working out with weights, doing floor exercises, and swimming per instructions without relief. On the first visit, Dr. Anderson recommended that Lisa stop weight lifting but continue stretching exercises and swimming. {¶ 26} In his March 13, 1998 office note, Dr. Anderson gave his diagnosis as "post-traumatic myofascial pain syndrome." Dr. Anderson reiterated this diagnosis during his deposition. (Anderson Depo., at 16.) {¶ 27} In his deposition which was read to the jury, Dr. Anderson testified that, when he first saw Lisa in late December 1997, she "was working on a daily basis" and "had been recovering fairly well." (Depo. 16.) He also testified that Lisa was improving during the time that he first saw her until the second automobile accident. {¶ 28} Lisa's second automobile accident occurred on the morning of March 17, 1998 as Andrew was driving Lisa to work. Andrew and Lisa were stopped at a red light heading southbound on High Street when Edel, who was also driving southbound on High Street, drove her vehicle into the vehicle being driven by Andrew. Andrew testified that Edel's vehicle was moving about 30 m.p.h. at impact and that Edel did not apply her brakes prior to the collision. The emergency squad was called, and Lisa was transported to the emergency room at Riverside Hospital. {¶ 29} Lisa never returned to work after the March 17, 1998 accident. {¶ 30} At Riverside Hospital, Lisa underwent a series of spinal x-rays. There was no evidence of fracture or dislocation. She was kept under observation and then released. She was prescribed Percocet for pain. {¶ 31} On March 30, 1998, 13 days after her second accident, Lisa saw Dr. Anderson. They discussed a three-month period of disability to allow Lisa time to achieve some improvement. Dr. Anderson filled out the disability forms for her. After Lisa's second accident, Dr. Anderson prescribed narcotic medication for acute pain. He had not prescribed narcotics prior to the second accident. Percocet and Oxycontin were the narcotic medications that Dr. Anderson prescribed for pain. Lisa's functionality worsened under the narcotic medications. At one point, Lisa became "bedridden." (Depo. 51.) {¶ 32} According to Dr. Anderson, after the second accident, Lisa had a significant worsening of her pain and a significant worsening of her ability to function at home. In addition, Lisa began experiencing cognitive problems such as memory difficulties. {¶ 33} On September 8, 1998, Lisa first saw William S. Pease, M.D., upon being referred by Dr. Anderson. Dr. Pease is board certified in physical medicine and rehabilitation. He is also chairperson and associate professor of the Department of Physical Medicine Rehabilitation at The Ohio State University. {¶ 34} Initially, Dr. Pease concluded that Lisa did not have fibromyalgia. Dr. Pease's initial diagnosis was that Lisa had "multiple muscle strains and injuries related to the accidents." (Tr. 154.) Dr. Pease initially felt that the injuries were "localized" and that Lisa did not have fibromyalgia. (Tr. 154.) {¶ 35} However, in November 1998, some eight months after the second accident, Dr. Pease diagnosed fibromyalgia using the same criteria that Dr. Waylonis had used, i.e., the criteria established by the American College of Rheumatology. {¶ 36} Dr. Pease opined to a reasonable degree of medical certainty that Lisa will never be able to return to work as a trial lawyer due to her fibromyalgia. Dr. Pease opined to a reasonable degree of medical certainty that both automobile accidents "contributed" to Lisa's fibromyalgia. (Tr. 191.) Dr. Pease further testified that he could not allocate by percentages the respective contributions of the two accidents to Lisa's fibromyalgia. {¶ 37} During direct examination by plaintiffs' counsel, the following exchange occurred: Q. [Plaintiffs' counsel:] * * * If the second accident had never occurred, in your opinion, would Lisa Sotos still have fibromyalgia today? A. [Dr. Pease:] It's entirely reasonable to think that she would still have the fibromyalgia today if the second accident had never occurred, yes. Q. [Plaintiffs' counsel:] What's your basis for that opinion? A. [Dr. Pease:] My basis for my opinion is that this developed well after either accident. It's impossible to decide which of the two accidents actually triggered the fibromyalgia. * * * (Tr. 194.) {¶ 38} During cross-examination by Racan's counsel, Dr. Pease testified: Q. [Racan's counsel:] And it was after the second accident, was it not, that Ms. Sotos told you that that accident caused a complete physical and mental breakdown, is that correct? A. [Dr. Pease:] She reported depressive-type features as I recorded it, and I used the phrase physical and mental breakdown. I assume that's something close to what she told me, yes. Q. [Racan's counsel:] None of that had been described to you before the accident of March 1998, had it? A. [Dr. Pease:] She described being in a great deal of pain, and multiple physicians' visits and visits to emergency rooms before the second accident. Q. [Racan's counsel:] She did not describe her condition to you as a complete physical and mental breakdown, though, did she? A. [Dr. Pease:] That is correct, this is a change. (Tr. 210-211.) {¶ 39} On this appeal, plaintiffs present four assignments of error as follows: I. The trial court erred as a matter of law in failing to instruct the jury that the two individual defendants were jointly and severally liable, thus requiring the defendants to prove apportionment of damages. II. The trial court erred as a matter of law when it failed to make an independent determination as to the proper amount of damages related to defendant edel's conduct. III. The trial court erred by failing to grant plaintiff's [sic] motion for a new trial on the jury's verdict award of damages related to appellee racan's conduct, which was against the manifest weight of the evidence in that the damage award was inadequate. IV. The trial court erred by failing to grant plaintiff's [sic] motion for a new trial on the jury's finding of damages related to defendant edel's conduct, and the trial court's failure to correct this finding, both of which were against the manifest weight of the evidence in that the future damage award was inadequate. {¶ 40} In their first assignment of error, plaintiffs contend that the trial court erred in failing to instruct the jury on joint and several liability. We agree. {¶ 41} This issue is in large part controlled by the decision of the Ohio Supreme Court in Pang v. Minch (1990), 53 Ohio St.3d 186. {¶ 42} The syllabus of the Pang court states in part: 5. Where a plaintiff suffers a single injury as a result of the tortiuous acts of multiple defendants, the burden of proof is upon the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm. 6. Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor. * * * 7. 2 Restatement of the Law 2d, Torts (1965), Section 433B(2) is applicable where a single, indivisible injury is proximately caused by the successive tortious acts of multiple defendants. {¶ 43} In Pang, the plaintiff, Gordon Pang ("Pang") was injured in three automobile accidents occurring respectively on June 1, August 21 and October 15, 1984. Pang brought a negligence action in the common pleas court against the three defendants responsible for the operation of the motor vehicles involved in the three accidents. {¶ 44} Following the June 1 accident, but prior to the second accident, Pang was examined by his personal physician, Dr. Mark Roth. Dr. Roth diagnosed lumbar myofascitis and concluded that the condition resulted from the June 1 accident. During the same time period, Pang was also examined by Dr. Moses Leeb, an orthopedic surgeon, who also diagnosed lumbar myofascitis resulting from the June 1 accident. Dr. Leeb concluded at that time that Pang was experiencing some improvement in his condition. {¶ 45} Pang injured his lower back and exacerbated his pre-existing condition in the August 21, 1984 accident. Following this second accident, Pang saw Dr. Centanni, a chiropractor, who administered heat and manipulated adjustment to his back. Dr. Centanni concluded that Pang's symptoms were directly related to the August 21 accident. Following his second accident, Pang also saw Dr. Leeb for complaints of persistent pain in the lumbosacral region. By October 9, 1984, Dr. Leeb reported that Pang's condition had continued to improve. {¶ 46} Following his third accident on October 15, 1984, Pang reported to a hospital emergency room where x-rays were taken of his back and pain medication was prescribed. Thereafter, Pang returned to see Dr. Centanni, who opined that treatments were necessitated by the October 15, 1984 accident. Later, Pang was examined by Dr. Leeb, who found lumbosacral tenderness, spasm, and limitation of motion. {¶ 47} On November 27, 1984, Pang consulted his family physician, Dr. Roth, complaining of chronic lower back pain. Dr. Roth's diagnosis was "lumbosacral myofascitis." On January 17, 1985, Dr. Roth, after examining Pang, again concluded that Pang was suffering from lumbosacral myofascitis. {¶ 48} On February 3, 1986, Pang was examined by Dr. Richard Kaufman, an orthopedic surgeon. Dr. Kaufman diagnosed "chronic lumbosacral myofascitis" and concluded that it was the result of the three automobile accidents. Later examinations showed marginal easing of the pain and tenderness. However, Dr. Kaufman opined that the remaining discomfort was of a permanent nature and would preclude employment activities in which Pang had previously engaged. {¶ 49} In Pang, the jury returned verdicts in favor of Pang and against the three defendants severally. One of the defendants, Lynn Minch, appealed the judgment to the court of appeals. Pang filed a cross-appeal. The court of appeals overruled all of the assignments of error advanced by Minch but sustained Pang's assignment of error on his cross-appeal. On appeal to the Ohio Supreme Court, the Pang court stated: In the case at bar, it was clearly established that each of the appellants was negligent and that each negligent act was a substantial factor in producing the permanent injuries to appellee's back. Evidence was also presented to the jury from which it could conclude that appellee suffered indivisible harm as a result of all three accidents. Accordingly, the evidence adduced by appellees was sufficient to obtain joint and several judgments against all three appellants. The burden to apportion the harm was thereafter the responsibility of appellants. Id. at 198-199. {¶ 50} Citing App.R. 12(B), the Pang court held that it was error for the court of appeals to reverse the judgment of the trial court based solely upon the cross-appeal. Accordingly, the Pang court ordered that the trial court judgment be reinstated. {¶ 51} It is helpful to an understanding of Pang to set forth Restatement of the Law 2d, Torts (1965), Section 434: (1) It is the function of the court to determine (a) whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff; (b) whether the harm to the plaintiff is capable of apportionment among two or more causes; and (c) the questions of causation and apportionment, in any case in which the jury may not reasonably differ. (2) It is the function of the jury to determine, in any case in which it may reasonably differ on the issue, (a) whether the defendant's conduct has been a substantial factor in causing the harm to the plaintiff, and (b) the apportionment of the harm to two or more causes. {¶ 52} Comment d to Section 434 states: The question whether the harm to the plaintiff is capable of apportionment among two or more causes is a question of law, and is for the decision of the court in all cases. Once it is determined that the harm is capable of being apportioned, the actual apportionment of the damages among the various causes is a question of fact, which is to be determined by the jury, unless the evidence is such that reasonable men could come to only one conclusion. {¶ 53} Pertinent here is footnote 4 of the Pang decision, which comments upon Section 434(1)(b) of the Restatement: It is undoubtedly true that the determination of whether the harm sustained by the plaintiff is capable of apportionment constitutes a judicial function. 2 Restatement of the Law 2d, Torts (1965), Section 434(1)(b), Mathews v. Mills (1970), 288 Minn. 16, 23, 178 N.W.2d 841,845; Richardson v. Volkswagenwerk, A.G. (W.D.Mo. 1982), 552 F. Supp. 73,83. * * * {¶ 54} The syllabus of the Supreme Court of Minnesota in Mathewsv. Mills (1970), 288 Minn. 16, a case cited by the Pang court in footnote 4, states: It is the function of the trial court to determine whether the burden of establishing that the injuries in a multiple-accident situation are capable of apportionment has been met. Whether or not the harm to the plaintiff is capable of apportionment among two or more causes is a question of law. Once the trial court determines that the harm is capable of apportionment, the question of actual apportionment of damages among several causes becomes one of fact to be determined by the jury. {¶ 55} In Richardson v. Volkswagenwerk, A.G. (W.D.Mo. 1982),552 F. Supp. 73, a case cited by the Pang court in footnote 4, the court states: * * * Should the plaintiff's injuries be indivisible, the defendants are held jointly and severably liable as concurrent tortfeasors for plaintiff's total damage. If reasonable minds could differ on whether the plaintiff's injuries are divisible, the trier of fact determines whether the injury can be reasonably apportioned among the defendants and the extent of each defendant's liability. * * * * * * If the trial court determines that reasonable minds would not differ on the question of apportionment, the court may decide the issue and instruct the jury accordingly. Restatement (Second) of Torts § 434 (1965). Should the court believe that reasonable minds could differ, the question of apportionment of the harm, as well as liability and damages, is to be determined by the trier of fact. * * * Id. at 80, 83-84. {¶ 56} In the instant case, plaintiffs proposed the following jury instructions: Where a plaintiff suffers a single injury as a result of the negligent acts of multiple defendants, the burden of proof is upon the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm. * * * On the other hand, where the negligent conduct of two persons has combined to bring about harm to the plaintiffs, and one of the defendants (like Defendant Racan in this case) seeks to limit his liability on the ground that the harm is capable of apportionment among the defendants, the burden of proof as to the apportionment is upon the defendant to prove by a preponderance of the evidence that apportionment of damages. * * * Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in the same point of time, but in point of consequence, in producing a single indivisible injury. Where the negligence of two or more persons concurs to produce a single indivisible injury, then both persons are jointly and severally liable to the injured party. Therefore, if you find that the negligent acts of Defendant Racan and the negligent acts of Defendant Edel combined together to produce a single indivisible injury to Plaintiff Lisa Sotos, then you will need only to determine the amount of damages sustained by the plaintiffs [sic]. If on the other hand you find that the negligent acts of either defendant Racan or defendant Edel produced separate and divisible injuries to Plaintiff Lisa Sotos Collins, then you must determine what damages, if any, were the direct and proximate result of each defendants acts. (Emphasis sic; footnotes omitted.) {¶ 57} The trial court heard arguments from counsel regarding the proposed instructions. Plaintiffs' counsel argued: This is a single injury. It is a chronic pain syndrome that she has encountered. We can call it by a number of names and we know it does and frequently does evolve from sprain to myofascial pain syndrome to fibromyalgia. Now the only difference in those pain syndromes and pain, chronic pain conditions is the extent over which the body feels those particular pains. But the condition itself — the evidence that's been presented through Dr. Pease — is that she received this pain syndrome as a direct and proximate result of the original collision. It continued to escalate and continued to escalate to a full-blown fibromyalgia where more than 11 points of her body have the pain. So when we are looking at the single indivisible injury, the single indivisible injury is the creation of a musculoskeletal sprain/strain injury which develops into a multiple area condition. That's the single indivisible injury, therefore, it should be applied. (Tr. 530-531.) {¶ 58} After hearing arguments of counsel, the trial court rejected plaintiffs' proposed jury instructions on joint and several liability. The trial court explained: The problem I have here * * * we have fibromyalgia which is, as I understand it, can be brought about by trauma to lots of different places to the body. This case I have read [Pang], and it is singularly damage to the lumbar region of the back in all three cases. And so in the first instance, I don't think we have a single identifiable injury as a result of our collision number one and collision number two. And, therefore, I don't think Pang applies. (Tr. 532.) {¶ 59} The trial court gave the following instruction to the jury: If you find by the preponderance of the evidence that the plaintiff has proven that she suffered injury from the first accident, you must then determine what damages are attributable to the first accident. If you find by the preponderance of the evidence that the plaintiff has proven that she suffered injury from the second accident, you must then determine what damages are attributable to the second accident. If you find that the plaintiff suffered injury from the first accident, and you further believe that the plaintiff has proven by a preponderance of the evidence that damages from the first accident were incurred even after the second accident of March 29, 1998, then you must apportion those damages that are attributable to the first and second accidents and award those damages to the plaintiff and against the defendant Racan or defendant Edel, dependent upon which accident you believe caused those damages. If you find plaintiff suffered injury from the first accident, but you believe that the plaintiff has failed to prove by a preponderance of the evidence that damages from the first accident were incurred even after the date of the second accident, or you find that the plaintiff has failed to prove which damages incurred after the date of the second accident are attributable to the first accident, then the plaintiff has failed in her burden of proof on that issue and you are only permitted to consider those damages which were incurred after May 17 [sic], 1997, but before May 29 [sic], 1998, as being attributable to the defendant Joseph Racan. (Tr. 627-628.) {¶ 60} We find that the trial court erred in refusing to instruct the jury on joint and several liability with respect to the fibromyalgia diagnosis. Fibromyalgia, by definition, is a harm that is indivisible. The issue to be determined at trial was whether the negligence of Racan was a substantial factor in producing fibromyalgia. If it were determined that Racan's negligence was a substantial factor in producing fibromyalgia, then we have a single indivisible injury (fibromyalgia) that is proximately caused by the successive tortious acts of both defendants. Parenthetically, we note that Edel did not appear for trial and thus did not contest plaintiffs' evidence that Edel's negligence was a substantial factor in producing fibromyalgia. {¶ 61} Plaintiffs clearly presented a prima facie case that Lisa sustained an indivisible harm and that the negligence of both defendants was a substantial factor in producing the indivisible harm. As previously noted, Dr. Pease testified at trial that, although Lisa did not have fibromyalgia when he first examined her after the second accident, by November 1998 she had fibromyalgia. Dr. Pease further testified to a reasonable degree of medical certainty that both accidents "contributed" to Lisa's fibromyalgia and that he could not allocate by percentages the respective contributions of the two accidents to Lisa's fibromyalgia. {¶ 62} While plaintiffs presented a prima facie case that Lisa suffered an indivisible harm caused by both automobile accidents based upon the fibromyalgia diagnosis, defendant Racan also presented evidence upon which reasonable minds could conclude that the first automobile accident did not contribute to or cause fibromyalgia. {¶ 63} The jury could discount Dr. Pease's opinion that both automobile accidents contributed to the fibromyalgia that was not diagnosed until some eight months after the second accident. The jury could find that the fibromyalgia was proximately caused by the second injury only. The jury could reach this conclusion in light of Dr. Waylonis's prognosis prior to the second accident that Lisa would achieve full recovery and in light of Lisa's employment history before and after the second accident. The jury could also find that the fibromyalgia was proximately caused by the second injury only based upon the low impact of the first collision and the fact that fibromyalgia was not diagnosed until well after the second high impact collision. {¶ 64} Thus, the trial court should have concluded, as a question of law, that reasonable minds can differ as to whether the fibromyalgia diagnosis presents an indivisible harm proximately caused by both defendants or a harm caused by defendant Edel only. {¶ 65} Plaintiffs also argue that, even without the fibromyalgia diagnosis, the injury or harm suffered by Lisa as a result of the two accidents is indivisible. In this regard, plaintiffs rely upon the testimony of Drs. Waylonis, Berarducci, and Pease. From these testimonies, plaintiffs argue that the indivisible injury is myofascial pain syndrome. Plaintiffs point out that Dr. Waylonis testified that when he examined Lisa on September 22, 1997 after the first accident, but prior to the second accident, he concluded that she suffered from "localized myofascial pain in that shoulder and probably had sustained a cervical and dorsal strain syndrome." (Waylonis Depo., at 27.) {¶ 66} After the second accident, Lisa was examined in December 1998 by Dr. Albert Berarducci, who opined that Lisa suffered from "chronic pain syndrome with major depression." (Berarducci Depo., at 46, 56.) The diagnosis was also described as "myofascial pain syndrome." (Depo. 56.) Dr. Berarducci stated that Lisa's "condition was triggered by the accidents." (Dep. 73.) However, Dr. Berarducci's use of the word "trigger" did not equate with proximate cause because "I don't believe that an accident causes the syndrome, it unleashes it." (Depo. 74.) During Dr. Berarducci's deposition, the following exchange occurred: Q. In your opinion was the chronic progressive pain syndrome that you observed and determined, was that caused by the combined affect [sic] of the two collisions? A. No. Q. Was it precipitated by the combined affect [sic] of those two collisions? A. By history it was precipitated by the first one, spurred by the second, but the development of the chronic pain syndrome was spurred, developed, caused by the cumulative affect [sic] of the two years of inciting events, physical reaction, subjective interpretation of those physical reactions, emotional response, failed therapies, and frustrations with the medical system that developed. That's a package deal. You can't separate one single entity out of that and say that's the cause of the event. (Berarducci Depo. at 57.) {¶ 67} In September 1998, when Dr. Pease first examined Lisa, his initial diagnosis was "multiple muscle strains and injuries related to the accidents." (Tr. 154.) Dr. Pease also stated that his initial conclusion was that Lisa had "sprains and strains of the ligaments and muscles." (Depo. 219.) {¶ 68} Based upon the testimonies of Drs. Waylonis, Berarducci, and Pease upon which plaintiffs rely, we conclude that plaintiffs failed to present a prima facie case that Lisa's injuries from the two accidents are indivisible absent the fibromyalgia diagnosis from Dr. Pease. To begin, Dr. Berarducci refused to opine that the two automobile accidents were the proximate cause of Lisa's injuries. Thus, Dr. Berarducci's testimony fails to advance plaintiffs' case. {¶ 69} Moreover, it is not at all clear whether the diagnosis from Dr. Waylonis prior to the first accident and the initial diagnosis from Dr. Pease after the second accident can be viewed as medically similar. Significantly, plaintiffs failed to present a medical expert to opine to a reasonable degree of medical certainty that both automobile accidents produced indivisible injuries absent the fibromyalgia diagnosis. This case is unlike the scenario in Pang, where the plaintiff produced an opinion from Dr. Kaufman that the "chronic lumbosacral myofascitis" was the result of the three automobile accidents. We must therefore conclude that plaintiffs failed to meet their burden of showing that both automobile accidents proximately caused an indivisible injury absent the fibromyalgia diagnosis from Dr. Pease. {¶ 70} We find that the trial court should have concluded, as a question of law, that reasonable minds can differ as to whether the negligence of Racan was a substantial factor in producing Lisa's fibromyalgia. We find that the trial court should have concluded, as a question of law, that if reasonable minds were to conclude that the negligence of Racan was a substantial factor in producing Lisa's fibromyalgia, then the plaintiffs have met their burden of proof by demonstrating that Lisa suffers a single indivisible injury (fibromyalgia) caused by both defendants, and joint and several liability is appropriate. Thus, the trial court was required, as a matter of law, to instruct the jury on joint and several liability with respect to Lisa's fibromyalgia claim, and its failure to do so was reversible error. {¶ 71} Based upon the foregoing, plaintiffs' first assignment of error is sustained in part and overruled in part. {¶ 72} In their second assignment of error, plaintiffs contend that the trial court erred by accepting the jury's damages award against defendant Edel instead of rendering its own independent determination of damages to be awarded against Edel. {¶ 73} Addressing the entry of default judgment, Civ.R. 55(A) states in part: * * * If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties. {¶ 74} A default judgment may not be granted without a hearing unless the amount claimed is liquidated or capable of mathematical computation from documents or affidavits contained in the record.Columbus Mgmt. Co. v. Nichols (Aug. 4, 1992), Franklin App. No. 92AP-191, citing Buckeye Supply Co. v. Northeast Drilling Co. (1985),24 Ohio App.3d 134. {¶ 75} It is within the trial court's discretion as to the nature and type of the damages hearing, but one is required where evidence is necessary to establish damages, since, pursuant to Civ.R. 8(D), damages are not admitted by failure to file an answer. Stickney v. Ervin (Dec. 5, 1989), Franklin App. No. 89AP-616. {¶ 76} Because Edel failed to respond to the complaint, on June 29, 2000, plaintiffs moved for default judgment and requested a hearing to determine the amount of damages. Initially, a court magistrate scheduled a damages hearing, but on November 13, 2000, the trial court, by agreed entry, set aside the damages hearing, noting that it would be scheduled at a later date. {¶ 77} At trial, prior to voire dire, plaintiffs moved the trial court to consider the jury's determination of damages as to Edel as "advisory" and that the trial court itself determine damages against Edel. (Tr. 7.) The trial court rejected plaintiffs' proposition by indicating that the jury's decision would be accepted as to damages against Edel. {¶ 78} After the jury rendered its verdict, plaintiffs filed a post-trial motion on July 17, 2002 captioned "Plaintiffs Motion For Additur Proper Determination of Damages." {¶ 79} In their post-trial motion, plaintiffs again argued that under Civ.R. 55, the trial court must view the jury's verdict against Edel as "advisory" and that the trial court must make its own determination as to damages against Edel. In its decision denying plaintiffs' motion, the trial court wrote "the Plaintiffs apparently overlooked the last phrase of the Rule which enables a Court to empanel a jury to determine damages award which is exactly how damages were determined in this case at the request of the parties." In a footnote, the trial court noted that plaintiffs had submitted a jury interrogatory that asked the jurors to allocate damages caused by Edel. {¶ 80} We are aware of no authority holding that a jury verdict on damages involving a defaulting defendant is to be viewed by the trial court as advisory only. Nor do the cases cited by plaintiffs support such proposition. {¶ 81} The plain language of Civ.R. 55(A) states that the trial court "shall when applicable accord a right of trial by jury to the parties." We find that the trial court appropriately referred to that part of the rule in denying plaintiffs' post-trial motion. {¶ 82} Had the original negligence action against Edel proceeded without adding Racan, a hearing before a magistrate on damages would have been appropriate under Civ.R. 55(A) since Edel failed to appear in the action. However, with the addition of Racan as a defendant, it made sense to try the action against Edel and Racan to the jury. This is particularly so given plaintiffs' claim that defendants are jointly and severally liable. {¶ 83} We therefore overrule plaintiffs' second assignment of error. {¶ 84} In their third assignment of error, plaintiffs contend that the jury's failure to award any damages for pain and suffering for injury caused by the negligence of defendant Racan is against the manifest weight of the evidence and is therefore reversible error. Plaintiffs contend that the jury's failure to award any damages for future pain and suffering for injury caused by the negligence of defendant Edel is against the manifest weight of the evidence and is therefore reversible error. We agree. {¶ 85} Civ.R. 59(A) provides in pertinent part: A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: * * * (4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice; * * * (6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case[.] {¶ 86} In Nevins. v. Ohio Dept. of Transp. (1998), 132 Ohio App.3d 6,21, this court stated: When the claim is that the jury verdict is against the manifest weight of the evidence, a reviewing court must examine the entire record to determine if the verdict is supported by some competent, credible evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279 * * *. An appellate court will not overturn a verdict supported by competent, credible evidence. Seasons Coal, 10 Ohio St.3d at 80 * * *. Without evidence in the record reflecting that the jury was wrongfully influenced or that the award was manifestly excessive or inadequate, a reviewing court may not interfere with a jury's verdict on damages.Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 655 * * *. When the award to the injured party is so inadequate as to deny the party justice, the trial court should grant a new trial. Miller v. Irvin (1988), 49 Ohio App.3d 96, 98 * * *. Upon review, the asserted inadequate award must shock the reasonable sensibilities in order to be determined against the manifest weight of the evidence. Bailey v. Allberry (1993),88 Ohio App.3d 432 * * *. {¶ 87} The decision of the Second District Court of Appeals inBailey v. Allberry (1993), 88 Ohio App.3d 432, cited by this court inNevins, is particularly instructive here. Lonnie Bailey ("Bailey") was injured while riding as a passenger in a vehicle being driven by a co-worker, David Brackett. Brackett lost control of his vehicle while driving approximately 50 m.p.h. in a 35 m.p.h. zone and collided with a van. Brackett died as a result of his injuries. Bailey was ejected from the car's T-top roof and suffered two fractured cervical vertebrae and a cerebral concussion. Thereafter, Bailey sued the administrator of Brackett's estate for compensatory damages resulting from injuries he sustained in the accident. {¶ 88} Following trial, the jury awarded Bailey damages in the total amount of $25,500. The jury interrogatories revealed that the award included $16,349 for past medical expenses, $7,315 for lost wages, and $1,836 for pain and suffering to the time of trial. The jury awarded zero damages for "pain, suffering and impairment in the future." {¶ 89} The trial court denied Bailey's motion for new trial or additur on the issue of damages, and Bailey appealed to the court of appeals. {¶ 90} The court of appeals found that the jury's verdict, in light of the evidence as to Bailey's pain and suffering up to the time of trial, and his probable pain, suffering and impairment in the future is so disproportionate as to shock reasonable sensibilities and indicates that the jury lost its way in assessing compensatory damages. {¶ 91} With respect to the jury's failure to assess damages for pain and suffering up to the time of trial, the appellate court explained: * * * [T]he evidence is undisputed that Bailey was hospitalized for ten days, wore the halo device for sixty-seven days, missed five months of work, experienced a reduced activity level, was left with facial scars, and is still suffering from chronic neck pain. For the pain and suffering resulting from these experiences, the jury awarded Bailey $1,836. We find that this award cannot be reconciled with the undisputed evidence in this case and/or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiff's claim. Id. at 437. {¶ 92} The appellate court also found that the jury lost its way in failing to assess future pain and suffering "with respect to the chronic neck pain which the record shows continues to plague Bailey." Id. at 441. {¶ 93} The appellate court in Bailey reversed and remanded for a new trial on the issue of damages. {¶ 94} In the instant case, the jury awarded to Lisa total damages in the amount of $18,951.10 for her injury caused by Racan. The jury answered an interrogatory that itemizes total damages against Racan as follows: Past expenses for hospitals, doctors, medications and medical care $ 13,617.77 Past physical pain $ 0 Past anxiety, mental suffering, and emotional distress $ 0 Past loss of enjoyment of activities or pleasures of life $ 0 Past lost wages or income $ 5,333.33 Future physical pain $ 0 Future anxiety, mental suffering, and emotional distress $ 0 Future loss of enjoyment of activities or pleasures of life $ 0 Future lost wages or income $ 0 {¶ 95} We find that the jury's verdict that failed to award any damages against Racan for past physical pain, for past anxiety, mental suffering, and emotional distress and for past loss of enjoyment of activities or pleasures of life is against the manifest weight of the evidence and shocks reasonable sensibilities. {¶ 96} Pursuant to the stipulation of the parties, the trial court admitted into evidence plaintiffs' exhibit 3, which is a summary of medical expenses, lost wages and other expenses incurred by Lisa between the dates of the two automobile accidents, i.e., between May 29, 1997, and March 17, 1998. Obviously, responsibility for those expenses can only be attributed to Racan. Plaintiffs' exhibit 3 indicates total expenses of $24,171.24, which includes lost wages of $10,353.47. As plaintiffs point out here, if the lost income claim ($10,353.47) is subtracted from total expenses ($24,171.24), the result is $13,817.77, which is $200 more than the jury awarded for past medical expenses. Apparently, the jury agreed with Racan's counsel that the $200 expense for hiring someone to rake leaves was not appropriate to award. In short, the evidence of record readily shows how the jury came to award Lisa $13,617.71 for past medical expenses. The record shows that the jury awarded Lisa all of her medical expenses claimed between the two automobile collisions. {¶ 97} Given that the jury found that Racan is responsible for all of Lisa's medical expenses claimed prior to the second accident, it shocks reasonable sensibilities to award zero damages for the pain and suffering associated with the necessity of having to undergo those medical treatments. We find that the jury's failure to award any damages for pain and suffering cannot be reconciled with its award of damages for medical expenses and lost wages. We conclude that the jury lost its way in assessing damages against Racan. {¶ 98} Moreover, expert medical testimony relevant to the time period between the two automobile accidents undisputedly indicates that Lisa endured pain and suffering as a result of Racan's negligent conduct. As previously noted, Lisa presented to a hospital emergency room the evening of the first accident. The diagnosis on the date of injury was "cervical mid back to low back strain." Lisa returned to the hospital emergency room on June 6, 1997, and at that time the emergency room physician's impression was "acute cervical strain, continued pain." {¶ 99} Approximately four months after the accident, Lisa was examined by Dr. Waylonis on September 22, 1997. His diagnosis was "Post traumatic cervical and thoracic strain syndrome with localized post traumatic myofascial pain." {¶ 100} In late December 1997, Lisa began treatment with Dr. Anderson who noted that Lisa had been involved in an automobile accident and that she had suffered significant neck pain and low back pain. On that date, Lisa complained of having severe pain in the left lower neck with some radiation down into her shoulder. By March 13, 1998, Dr. Anderson's diagnosis was "post-traumatic myofascial pain syndrome." {¶ 101} We find that the jury's failure to award Lisa damages against Racan for any pain and suffering is against the manifest weight of the medical testimony. Racan presented no evidence, medical or otherwise, to even suggest that Lisa's pain complaints to her doctors were exaggerated. That Lisa suffered pain as a result of the May 29, 1997 automobile accident was not truly at issue at trial. Under such circumstances, we find that the jury's failure to award any damages for pain and suffering was against the manifest weight of the evidence. {¶ 102} In denying plaintiffs' motion for a new trial, the trial court found that it was not inconsistent to award stipulated medical expenses, yet refuse to award pain and suffering when Lisa did not testify as to the extent of pain that she experienced. The trial court noted that Racan reminded the jury at closing argument that Lisa had not testified. {¶ 103} We disagree with Racan's suggestion that Lisa's decision not to testify about her pain permitted the jury to reject undisputed medical testimony that Lisa suffered pain as a result of the first accident. We further note that if Racan felt that Lisa's testimony would be beneficial or even necessary to a defense of the claim, Racan had the right to call Lisa to the stand as on cross-examination. Apparently, both counsel for plaintiffs and counsel for Racan felt that, as a matter of trial strategy, Lisa should not be asked to testify. Clearly, under the circumstances of this case, no inference can be reasonably drawn from Lisa's failure to testify that she did not suffer pain as a result of the automobile accident of May 29, 1997. {¶ 104} We thus find that the jury's failure to award damages to Lisa and against Racan for pain and suffering was against the manifest weight of the evidence, and the trial court's failure to grant a new trial was an abuse of discretion. {¶ 105} Therefore, we sustain plaintiffs' third assignment of error. {¶ 106} In the instant case, the jury awarded Lisa total damages in the amount of $129,916.22 for her injury caused by Edel. The jury answered an interrogatory that itemizes total damages against Edel as follows: Past expenses for hospitals, doctors medications and medical care $ 40,910.22 Past physical pain $ 7,500.00 Past anxiety, mental suffering, and emotional distress $ 10,000.00 Past loss of enjoyment of activities or pleasures of life $ 7,500.00 Past lost wages or income $ 64,000.00 Future physical pain $ 0 Future anxiety, mental suffering, and emotional distress $ 0 Future loss of enjoyment of activities or pleasures of life $ 0 Future lost wages or income $ 0 {¶ 107} We now turn to plaintiffs' fourth assignment of error. The interrogatory reveals that the jury awarded $25,000 in damages to Lisa for past pain and suffering and zero damages for future pain and suffering. Plaintiffs contend that the jury's failure to award damages for future pain and suffering is against the manifest weight of the evidence. We agree. {¶ 108} Of the physicians who examined Lisa after the second accident, i.e., after March 17, 1998, all testified that Lisa has chronic or permanent injuries resulting from the second accident. {¶ 109} As previously noted, after her second accident, Lisa continued treatment with Dr. Anderson, her family doctor. Dr. Anderson's deposition was taken on May 21, 2002, and it was read to the jury at trial. (Tr. 451.) In his deposition, Dr. Anderson testified that he last saw Lisa on April 19, 2002, about one month prior to the deposition. At the time of the deposition, Dr. Anderson was seeing Lisa about every two months. Dr. Anderson testified that Lisa was improving significantly. Her pain levels had diminished significantly, but she still has pain and still needs medication for pain. In Dr. Anderson's opinion "I don't think this is something that's gonna go away." (Depo. 31.) {¶ 110} When Dr. Anderson examined Lisa in April 2002, less than three months prior to trial, she was still experiencing cognitive difficulties relating to "thinking, reasoning, word finding, elocution." (Anderson Depo., at 31.) Dr. Anderson opined that Lisa will never be able to return to her job as a trial attorney, although he hopes that she will eventually be able to return to some form of employment as an attorney. According to Dr. Anderson, Lisa will need medical and psychological treatment in the future. Lisa "will always have some problems." (Depo. 34.) {¶ 111} Chiropractor Jerome Stetz began regularly treating Lisa beginning August 10, 1998. Dr. Stetz testified at trial. At the time of trial, Dr. Stetz was treating Lisa every six weeks, but initially he treated her daily and then three times a week for quite some time. Dr. Stetz treated Lisa for a "spinal column sprain/strain injury that was severe enough to alter the normal muscles of her spine." (Tr. 440.) To a reasonable degree of chiropractic certainty, it was Dr. Stetz's opinion that Lisa will likely require chiropractic treatments for the remainder of her life. He also opined that Lisa was experiencing significant pain. {¶ 112} Psychologist Roxanne Lewis, Ph.D., began treating Lisa in September 1998, some six months after the second accident. Dr. Lewis testified at trial. At the time of trial, Dr. Lewis had last seen Lisa on July 3, 2002, less than a week before the trial began. Dr. Lewis had treated Lisa "intermittently" during the almost four-year period. (Tr. 260.) Dr. Lewis's initial working diagnosis for Lisa was "major depression." (Tr. 269.) Early on in the treatments, Lisa was experiencing "cognitive problems" relating to "thinking, solving problems, understanding, comprehending." (Tr. 269.) Lisa also experiences anxiety. Dr. Lewis opined that, as of the day of trial, Lisa was not able to function as a trial lawyer or even as a lawyer. {¶ 113} According to Dr. Lewis, Lisa suffers from significant sleep disruption associated with her depression. Lisa undergoes a cycle between depression and difficulty functioning to getting her motivation back and starting to push herself, which then leads to discomfort and pain and a setback to depression. This cycle has become chronic. Dr. Lewis testified that, to a reasonable degree of professional certainty, Lisa is not expected to ever fully recover from this chronic cycle, although she may experience some improvement over time. Dr. Lewis testified to a reasonable degree of professional certainty that Lisa will need treatment for her depression "for a long, long, long, time." (Tr. 298.) {¶ 114} Here, Racan argues that the jury had evidence from Dr. Waylonis upon which they could determine that Lisa should not be awarded damages for future pain and suffering caused by the second automobile accident involving Edel. Racan points out that Dr. Waylonis did not find indicia of fibromyalgia and he also opined that the prognosis was favorable for a full recovery. {¶ 115} The problem with Racan's argument is that Dr. Waylonis only examined Lisa one time — on September 22, 1997 — prior to the second accident. His prognosis for a full recovery relates only to the injuries sustained by Lisa from the first accident. Dr. Waylonis's testimony is irrelevant to the issue here of whether the jury had evidence upon which it could rely to assess zero damages for future pain and suffering relating to the second accident. {¶ 116} Here, Racan further argues that Racan's cross-examination of Dr. Pease at trial could have led the jury to conclude that they did not believe Dr. Pease's diagnosis of fibromyalgia after the second accident. By this argument, Racan suggests that discounting Dr. Pease's opinion that Lisa acquired fibromyalgia after the second accident somehow produces evidence that Lisa had recovered from her injuries resulting from the second accident. Racan's suggestion is incorrect. Dr. Pease had initially diagnosed multiple muscle strains and injuries related to the accidents. He further testified that by November 1998, using the 18 tender points criteria established by the American College of Rheumatology, Lisa had the threshold 11 tender points on her body that established the fibromyalgia diagnosis. There was no testimony from Dr. Pease upon which the jury could conclude that, by the time of trial, Lisa had recovered from the injuries caused by the second automobile accident. {¶ 117} Based upon our review of all the medical evidence of record, we conclude that the jury's failure to assess damages against Edel for Lisa's future pain and suffering was against the manifest weight of the evidence. Bailey, supra. {¶ 118} We therefore sustain plaintiffs' fourth assignment of error. {¶ 119} For the foregoing reasons, plaintiffs' first assignment of error is sustained in part and overruled in part, plaintiffs' second assignment of error is overruled, and plaintiffs' third and fourth assignments of error are sustained. The judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law and consistent with this opinion. Judgment reversed and cause remanded. BROWN and McCORMAC, JJ., concur. McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:42:06.174338+00

DECISION AND JUDGMENT ENTRY {¶ 1} Appellant, Ronald R. Pflug, Sr., appeals from a judgment entered against him by the Ottawa County Court of Common Pleas. For the reasons that follow, we affirm the judgment of the trial court. *Page 2 {¶ 2} On July 27, 2005, appellant was convicted on a charge of sexual battery arising from appellant's sexual conduct with his 17-year old mentally-retarded stepdaughter. On April 27, 2007, this court affirmed that conviction. {¶ 3} Appellant was sentenced to serve a prison term of three years. In August 2006, he was granted judicial release. Among the conditions of his community control was that he complete a sex offender treatment program. The treatment program requires that appellant divulge his entire sexual history and take a polygraph examination based on those revelations. In addition, the program requires that appellant sign a confidentiality waiver authorizing "a full and complete disclosure to law enforcement agencies" of all information, including, but not limited to, the offender's complete file, any and all disclosures he might make, and any and all information related to the offender's diagnosis or prognosis. {¶ 4} Appellant filed a motion in the trial court seeking modification of the conditions of his community control on the grounds that his compelled participation in the treatment program was violative of his constitutional right to remain silent. The trial court denied appellant's motion, finding that a privilege exists with respect to appellant's treatment. Appellant timely appealed the trial court's decision, raising the following assignment of error: I. "THE TRIAL COURT ERRED IN FAILING TO STRIKE [THAT] PORTION OF APPELLANT'S TERMS OF PROBATION THAT VIOLATE HIS RIGHT TO REMAIN SILENT SECURED TO HIM *Page 3 BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSITUTION." {¶ 5} Although a trial court has broad discretion in imposing probation conditions, those conditions "`cannot be overly broad so as to unnecessarily impinge on the probationer's liberty.'" State v.Thompson, 150 Ohio App.3d 641, 2002-Ohio-7098, ¶ 13, citing State v.Jones (1990), 49 Ohio St.3d 51, 52. In addition, the conditions imposed are to be related to the circumstances of the offense. In re D.S.,111 Ohio St.3d 361, 2006-Ohio-5851, ¶ 16. {¶ 6} In the instant case, there was testimony by sex abuse treatment provider, Mary Kay Baumgartner, that the polygraph is used as a clinical tool to help determine the extent of a sex offender's problem and, therefore, helps in formulating the most effective treatment plan. Without the polygraph, Baumgartner explained, "it can take us a long time to get to * * * the full extent of a person's problem[,] if we ever do." In this case, where appellant is an untreated sexual offender, at large in the community, and whose intent it is to one day be reunited with his victim stepdaughter and her mother, appellant's spouse, we conclude that the treatment program, including the polygraph requirement, is reasonably related to the circumstances of appellant's offense. {¶ 7} The question now becomes whether appellant can constitutionally be compelled to answer questions about his sexual history that may be posed to him during treatment. *Page 4 {¶ 8} The Fifth Amendment to the United States Constitution relevantly provides that no person "shall be compelled in any criminal case to be a witness against himself." Minnesota v. Murphy (1984), 465 U.S. 420, 426. This prohibition not only allows a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also "`privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'"Murphy, supra, citing Lefkowitz v. Turley (1973), 414 U.S. 70, 77. In such instances, "a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. * * * Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution." Lefkowitz v.Turley, supra, at 78. {¶ 9} The law further provides that, "a State may not impose substantial penalties because a witness elects to exercise hisFifth Amendment right * * *." Lefkowitz v. Cunningham (1977), 431 U.S. 801,805. Thus, a state may not assert that invocation of the privilege would lead to revocation of probation. Murphy, supra, at 435. On the other hand, "a state may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination." Id. *Page 5 {¶ 10} The Supreme Court of Ohio, itself, has recently held that "[t]he Fifth Amendment prohibits compelling a person on community control who claims privilege to give answers that might incriminate him in future criminal proceedings." In re D.S., 111 Ohio St.3d 361,2006-Ohio-5851, ¶ 19, citing Minnesota v. Murphy (1984), 465 U.S. 420,426. {¶ 11} In the instant case, because neither the requirement for disclosure of appellant's sexual history nor the polygraph eliminates appellant's rights against self-incrimination, unless and until appellant is granted protection against the use of any compelled answers, appellant may assert those rights — without reprisal — before giving answers that might incriminate him. {¶ 12} As with the defendant in In re D.S., appellant does not allege that he has in fact been compelled to answer incriminating questions, or that a claim of privilege would necessarily be disregarded by the court or by probation examiners. Because, at this point, appellant can only speculate as to future constitutional violations, appellant's assignment of error is found not well-taken.1 {¶ 13} The judgment of the Ottawa County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for *Page 6 the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Ottawa County. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. Peter M. Handwork, J., Mark L. Pietrykowski, P.J., William J. Skow, J., CONCUR. 1 We note that appellant, like the defendant in In re D.S., "may challenge as inadmissible in any future criminal proceeding, including at a hearing on an alleged community control violation, any incriminating statement he may have been compelled to make in response to a polygraph test question." See, In re D.S., supra, at ¶ 19. *Page 1

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PETITION FOR WRIT OF PROHIBITION The basic facts are that a Mr. Chesney appeared before Judge Stralka's court at an arraignment. Chesney, incorrectly, told Judge Stralka that his attorney was Bradley, so the court set the matter for trial and sent notice of the trial date to Bradley. When Bradley received the notice of hearing, he sent the court a letter explaining that Chesney had misinformed the court, that Chesney was not a current client of Bradley's,1 and that Bradley would not be attending the scheduled trial. When the court received this letter, Judge Stralka, instead of finding an attorney who would consent to representing Chesney, sua sponte, and without further consultation with Bradley, appointed Bradley to represent Chesney. When Bradley received notice of this unsolicited appointment he sent another letter to the judge informing the court that he had no intention of representing Chesney before Judge Stralka's, or any other, court. The trial date eventually arrived and, predictably, Bradley did not appear. Judge Stralka then scheduled a show cause hearing to hold Bradley in contempt of court for failing to appear at the scheduled trial. Bradley filed for a Writ of Prohibition with this court to vitiate the show cause proceedings. In order for a Writ of Prohibition to issue, Relator must establish that: (1) the court against whom the Writ is sought is about to exercise judicial authority; (2) the exercise of such authority is authorized by law; and, (3) the denial of the requested Writ will cause injury to the relator for which there exists no other adequate remedy in the ordinary course of law.State ex rel. Jones v. Garfield Hts. Mun. Court (1997), 77 Ohio St.3d 447. In the case sub judice, the Respondent argues that Judge Stralka's appointment of Bradley as counsel for the defense subjected Bradley to the jurisdiction of the trial court and that, having done so, the trial court is vested with authority to oversee an attorney's representation before the court and can impose contempt as a sanction for that attorney's failure to appear at trial. The Respondent relies upon State ex rel. Mancinov. Campbell (1993), 66 Ohio St.3d 217. In Mancino, attorney Paul Mancino, Jr., represented a Mr. Cusick at a preliminary hearing in Cuyahoga Falls Municipal Court. That Municipal Court found probable cause that Cusick had committed a felony and bound him over to Summit County Common Pleas Court. The Municipal Court Clerk, pursuant to Crim.R. 55, entered Mancino's name on the municipal court docket as attorney of record, and under Crim.R. 5 transmitted Mancino's name as attorney of record to the Clerk of Court of the Summit County Common Pleas Court. Cusick was then indicted by the grand jury and Judge Campbell of the common pleas court scheduled an arraignment for Cusick. Mancino and Cusick received notice of the arraignment. Mancino told Cusick to appear at the arraignment without him (Mancino), and Mancino, on the day of arraignment, informed Judge Campbell's bailiff that he (Mancino) was not Cusick's attorney and that he (Mancino) would not be appearing under any circumstances. Judge Campbell then appointed another attorney to represent Cusick and scheduled a show cause hearing for Mancino for failing to appear at the arraignment. Mancino sought a writ of prohibition. The appeals court dismissed the complaint because Judge Campbell had general jurisdiction over contempt and because Mancino had an adequate remedy at law via appeal. The Supreme Court affirmed the appellate court decision because Mancino, by virtue of the previously cited Criminal Rules of Procedure and the actions of the Clerk of the Municipal Court in recording Mancino as attorney of record and transmitting Mancino's name to the common pleas court, had made an appearance in common pleas court on behalf of Cusick, thereby subjecting Mancino to the jurisdiction of the common pleas court. The present case does not support the application of Mancino in that attorney Bradley never made an appearance in Judge Stralka's court on behalf of Chesney, nor did Bradley's prior representation in common pleas court relate to the offense which Chesney was accused of in Judge Stralka's court, which was the case in Mancino. Because Bradley never made a predicate appearance on behalf of Chesney with regard to this offense, Judge Stralka never lawfully obtained jurisdiction over him. Certainly, Bradley never consented to his appointment as counsel. Therefore, the order of appointment, under the facts presented, is constitutionally void ab initio, thereby depriving Judge Stralka of jurisdiction to conduct a show cause hearing premised on the faulty appointment of Bradley. JOHN T. PATTON, J., CONCURS; TERRENCE O' DONNELL, P.J.,DISSENTS WITH DISSENTING OPINION ATTACHED. _________________________ JAMES D. SWEENEY, JUDGE 1 Bradley had previously represented Chesney in Cuyahoga County Common Pleas Court on another matter, but had been granted permission to withdraw as counsel by common pleas court.

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I dissent because I believe the law does not authorize issuance of a writ of prohibition in this instance. In this case, Steven L. Bradley, has filed a complaint for a writ of prohibition through which he seeks an order from this court to prevent the respondent, Judge Kenneth R. Stralka, from conducting a show cause hearing in the matter known as City ofIndependence v. Frank Chesney, Garfield Heights Municipal Court Case Nos. 99-CRB-00060 and 99-CRB-00061. The respondent has filed an answer and requests this court to dismiss the complaint and to deny the writ. In Garfield Heights Municipal Case Nos. 99-CRB-00060 and 99 CRB-00061, the defendant, Frank Chesney, appeared before the respondent and indicated that the relator had been retained as defense counsel. On March 2, 1999, the relator forwarded a letter to the respondent which provided that: "I recently received notice that Mr. Chesney is scheduled for trial on March 19, 1999. Please be advised that I do not represent Mr. Chesney in reference to the above-captioned matters. Necessarily, I do not intend to appear on Mr. Chesney's behalf at the scheduled trial date. I have previously represented Mr. Chesney in connection with a pending felony matter; however, I have since been permitted by the Court [Cuyahoga County Court of Common Pleas] to withdraw as counsel of record." The respondent, however, apparently ignored the relator's letter of March 2, 1999, and through two separate orders, as journalized March 12, 1999, appointed the relator as Frank Chesney's attorney and further ordered that relator appear for trial on March 19, 1999. On March 12, 1999, the relator once again forwarded a letter to the respondent which stated that "* * * I do not represent Mr. Chesney, nor do I intend to represent his interests in your court or any other court. * * *". On March 25, 1999, the respondent, in response to the relator's failure to appear for trial on March 19, 1999, issued an order which provided that relator was to appear at a show cause hearing, on March 31, 1999, to determine whether the relator should be held in contempt of court. On March 31, 1999, the relator filed his complaint for a writ of prohibition in this court in an attempt to prevent the respondent from conducting the show cause hearing. In order for this court to issue a writ of prohibition, the relator must establish that: 1) the court against whom the writ is sought is about to exercise judicial authority; 2) the exercise of such authority is unauthorized by law; and 3) the denial of the requested writ of prohibition will cause injury to the relator for which there exists no other adequate remedy in the ordinary course of law. State ex rel. Jones v. Garfield Hts.Mun. Court (1997), 77 Ohio St.3d 447; State ex rel. Barclays BankPLC v. Hamilton Cty. Court of Common Pleas (1996), 74 Ohio St.3d 536. In addition, absent a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction may determine its own jurisdiction and a party challenging the court's jurisdiction possesses an adequate remedy at law through an appeal. State ex rel. Enyart v. O'Neill (1995), 71 Ohio St.3d 655. A trial court possesses both statutory and inherent powers to punish disobedience of its orders through contempt proceedings. R.C. 2705.02; Zakany v. Zakany (1984), 9 Ohio St.3d 192;State ex rel. Dow Chemical Co. v. Court (1982), 2 Ohio St.3d 119;Harris v. Harris (1979), 58 Ohio St.2d 303;State ex rel. Turner v. Albin (1928), 118 Ohio St. 527. In addition, the respondent's appointment of the relator as counsel on behalf of Frank Chesney arguably subjected the relator to the jurisdiction of the respondent. See State ex rel.Mancino v. Campbell (1993), 66 Ohio St.3d 217, wherein the court held that a trial court possesses jurisdiction to oversee an attorney's representation of a criminal defendant and can impose contempt as a sanction f or failure of an attorney to appear at a scheduled court proceeding. Here, respondent is authorized by law to conduct a show cause hearing to determine whether the relator should be held in contempt of court for failing to appear as appointed legal counsel for Frank Chesney in Garfield Heights Municipal Court Case Nos. 99-CRB-0060 and 99-CRB-0061. In addition, relator has an adequate remedy at law by way of appeal from any adverse ruling and may also seek a stay of execution of any sanction imposed by the respondent as a result of a finding of contempt, first in the trial court and, if denied, in this court. State exrel. Tollis v. Cuyahoga County Court of Appeals (1988),40 Ohio St.3d 145. Hence, the law provides an adequate legal remedy for improper exercise of judicial authority. Accordingly, in my view, relator cannot establish that respondent's exercise of judicial authority, through a show cause hearing, is unauthorized by law or that a denial of the requested writ of prohibition will result in injury for which there exists no adequate remedy in the ordinary course of law. For these reasons, I would deny the writ and dismiss the petition at costs.

2016-07-06 06:42:06.313939+00

DECISION {¶ 1} Defendant-appellant, Steven E. Dennison ("appellant"), appeals from the judgment of the Franklin County Court of Common Pleas, whereby the trial court sentenced appellant on his convictions for aggravated burglary and theft. {¶ 2} On November 29, 2003, appellant entered the home of the McDowell's. Appellant grabbed Mrs. McDowell by the collar of her shirt and pressed something hard and metallic against her neck. Mrs. McDowell thought it might have been a gun, but she did not see a gun. Appellant threatened that he would kill Mrs. McDowell unless he was given money. Mr. McDowell took out his wallet and started to give appellant money. Appellant took the entire wallet and left. The McDowell's recognized appellant as he had done some handyman work for them at a prior time. After calling the police and reporting the credit cards as stolen, appellant was found using one of the stolen credit cards to purchase tools and gift cards at a Sears store in the Westland area. {¶ 3} Appellant was indicted by the Franklin County Grand Jury on one count of aggravated burglary with firearm specifications, one count of kidnapping with firearm specifications, one count of aggravated robbery with firearm specifications, two counts of robbery with firearm specifications, and one count of having a weapon while under disability. Appellant pled guilty to a first-degree felony charge of aggravated burglary, and a fifth-degree felony charge of theft, in exchange for a dismissal of all remaining counts in the indictment, including all firearm specifications. Following the joint recommendation of the parties, the trial court imposed a six-year term of incarceration on the aggravated burglary conviction, and a six-month term of incarceration on the theft conviction, to run consecutively. {¶ 4} Appellant raised the following single assignment of error on appeal: The trial court erred in imposing non-minimum, consecutive sentences on Appellant where the facts necessary to impose such sentences had neither been proven to a jury nor admitted by Appellant, thereby depriving Appellant of his right to a jury trial and due process of law as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and comparable provisions of the Ohio Constitution. {¶ 5} Appellant argues that additional findings are required pursuant to R.C. 2929.14(B), in order to impose non-minimum sentences on an offender. Appellant also argues that pursuant to R.C. 2929.13(B)(1), additional findings are required to overcome the presumption in favor of community control for fifth-degree felonies, and that pursuant to R.C.2929.14(E)(4), additional findings are required in order to impose consecutive sentences on an offender. {¶ 6} However, pursuant to R.C. 2953.08(D): A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge. A sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review under this section. {¶ 7} The record in this case clearly indicates that the sentences were jointly recommended. During the hearing, the court stated: There has been a joint recommendation in this matter. And unless I make some other findings and follow the joint recommendation, you would be ordered to go to prison for six years on the aggravated burglary charge and then an additional six months on the theft charge. (Tr. at 6.) {¶ 8} Additionally, appellant indicated that he understood what the sentence would be if the judge followed the joint recommendation. Id. Under R.C. 2953.08(D), a sentence is "authorized by law" if it falls within the statutory range of available sentences. State v. Smoot, Franklin App. No. 05AP-104, 2005-Ohio-5326, citing State v. Atchley, Franklin App. No. 04AP-841, 2005-Ohio-1124; State v. Gray, Belmont App. No. 02 BA 26, 2003-Ohio-805, at ¶ 10. {¶ 9} Here, the statutory range for appellant's first degree aggravated burglary conviction is three to ten years of imprisonment. R.C. 2929.14(A). The statutory range for appellant's theft conviction is six to 12 months of imprisonment. Id. Thus, the sentence imposed by the trial court falls within the statutory range of available prison terms and is "authorized by law." Because the sentences are authorized by law, and because the trial court imposed said sentences upon the appellee's and appellant's joint recommendation, R.C. 2953.08(D) precludes our reviewing appellant's claim that the trial court failed to make statutory findings and explanations when imposing the sentences. See Smoot, supra, citing State v. Porterfield (2005), 106 Ohio St.3d 5 at 10;1 Statev. Dingess, Franklin App. No. 02AP-150, 2002-Ohio-6450. {¶ 10} Also contained in appellant's assignment of error is his contention that the trial court erred in imposing non-minimum, consecutive sentences without a jury finding, or appellant admitting to, the requisite factors in Ohio's felony statute. In support of his position, appellant relies on Apprendi v. New Jersey (2000), 530 U.S. 466,120 S.Ct. 2348, and Blakely v. Washington (2004), 542 U.S. 296,124 S.Ct. 2531, and their progeny. In Apprendi, the United States Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Otherwise, according to Apprendi, the sentence violates a defendant's right to a jury trial under the Sixth Amendment to the United States Constitution and Fourteenth Amendment due process guarantees. In Blakely, the United States Supreme Court defined "`statutory maximum' for Apprendi purposes" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the juryverdict or admitted by the defendant." Blakely at 413 (emphasis sic). {¶ 11} We reject appellant's Blakely-based argument, just as we have rejected identical arguments in a recent line of cases beginning withState v. Abdul-Mumin, Franklin App. No. 04AP-485, 2005-Ohio-522. SeeState v. Houston, Franklin App. No. 04AP-875, 2005-Ohio-4249; State v.Imler, Franklin App. No. 04AP-1246, 2005-Ohio-4241; State v. Sanchez, Franklin App. No. 04AP-1320, 2005-Ohio-3783; State v. Fout, Franklin App. No. 04AP-1139, 2005-Ohio-3151; State v. Satterwhite, Franklin App. No. 04AP-964, 2005-Ohio-2823; State v. Sieng, Franklin App. No. 04AP-556, 2005-Ohio-1003. {¶ 12} Additionally, irrespective of R.C. 2953.08(D), appellant waived arguments under Apprendi and Blakely through the jointly recommended sentencing agreement. Smoot, supra at ¶ 10, citing State v. Tillman, Huron App. No. H-04-040, 2005-Ohio-2347; State v. Ranta, Cuyahoga App. No. 84976, 2005-Ohio-3692; State v. Phillips, Logan App. No. 8-05-05, 2005-Ohio-4619; State v. Rockwell, Stark App. No. 2004CA00193, 2005-Ohio-5213. Accordingly, we overrule appellant's single assignment of error. {¶ 13} For the foregoing reasons, appellant's single assignment of error is over-ruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. Brown, P.J., and Klatt, J., concur. 1 At oral argument, appellant attempted to distinguish this case fromPorterfield on the basis that in Porterfield, the defendant stipulated to the sentence in his plea agreement. We do not find appellant's position persuasive. First, as indicated above, this court has already citedPorterfield for the proposition that R.C. 2953.08(D) precludes our review of a defendant's claim that the sentencing court failed to make statutory findings when imposing jointly recommended sentences even in the absence of a stipulation. Secondly, the central issue in Porterfield was R.C.2953.08(D) and its application to sentences imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code. The court did not focus on the fact that there was a stipulation, nor did the court suggest any such requirement. Rather, the court stated, "[t]he General Assembly intended a jointly agreed-upon sentence to be protected from review precisely because the parties agreed that the sentence is appropriate." Id. at 10.

2016-07-06 06:42:06.507881+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION AND JUDGMENT ENTRY * * * * * This is an accelerated appeal from a judgment of the Lucas County Court of Common Pleas which denied appellant Ionia Horton's "MOTION TO PURSUANTTO RULE 60(b) TO SET ASIDE JUDGMENT." On appeal appellant sets forth the following as her "STATEMENT OF ASSIGNMENT OF ERROR": "Appellant states that the trial court judge erred in its Opinion and Journal Entry filed herein on September 24, 1997. In the Journal Entry, the Court denied appellant/defendant's [sic] Motion to Set Aside Judgment pursuant to Rule 60(B), ruling that `Defendant fails to adequately show grounds for relief . . .' In making this ruling, the trial court stated that it had compared two affidavits regarding whether the Defendant had received notice of Sheriff's sale, as described below, and concluded on the basis of same that Defendant had received notice. Appellant states that the trial Court erred in ruling that appellant had not met the grounds needed for a Civil Rule 60(B) motion, and that the trial Court erred in failing to hold a hearing on the question of whether appellant received proper notice." It is well-established that "[a] motion for relief from judgment under Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed absent a showing of abuse of discretion." Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77." 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. The grounds for relief from a final judgment or order as set forth in Civ.R. 60(B) are: "(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentations or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. * * *" In order to succeed on a motion seeking relief from judgment pursuant to Civ.R. 60(B), a movant must demonstrate that: "(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken." GTE Automatic Elec. v. ARC Indus. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. Relief pursuant to Civ.R. 60(B) will be denied if the movant fails to adequately demonstrate any one of the three requirements set forth in GTE. Argo Plastic Products Co. v. Cleveland (1984),15 Ohio St.3d 389, 391. This court notes at the outset that appellant's claim that the trial court erred when it determined that appellant had received notice of the sale could have been asserted on a direct appeal, and is not the proper subject of a motion for relief from judgment pursuant to Civ.R. 60(B). Blasco v. Mislik (1982),69 Ohio St.2d 684, 686, citing Colley v. Bazell (1980), 64 Ohio St.2d 243 (A Civ.R. 60(B) motion is not available as a substitute for a direct appeal). Generally, a trial court has discretion whether or not to hold an evidentiary hearing before ruling on a motion for relief from judgment. U.A.P. Columbus JV326132 v. Plum (1986),27 Ohio App.3d 293, 294. If a trial court has before it enough evidence to make a decision, an evidentiary hearing on the motion is not necessary. Matson v. Marks (1972), 32 Ohio App.2d 319,328. Although appellant asserted in her motion that the trial court failed to hold an evidentiary hearing to take evidence on the issue of notice, she failed to demonstrate how she was prejudiced by that omission. Appellant did not point to any material evidence that should have been before the trial court, in addition to the affidavits presented by both parties, that would have changed the result of the trial court's decision. Upon consideration, this court finds that the trial court did not abuse its discretion by refusing to hold an evidentiary hearing or by denying appellant's motion for relief from judgment pursuant to Civ.R. 60(B). Accordingly, appellant's sole assignment of error is not well-taken. On consideration whereof, this court finds further that substantial justice has been done the party complaining and the judgment of the Lucas County Court of Common Pleas is affirmed. Court costs of these proceedings are assessed to appellant. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. _______________________________ George M. Glasser, J. JUDGE _______________________________ Melvin L. Resnick, J. JUDGE _____________________________ James R. Sherck, J. JUDGE CONCUR.

2016-07-06 06:42:06.53877+00

DECISION. *Page 2 {¶ 1 } Defendant-appellant Michael Gundrum appeals the judgment of the trial court adopting a magistrate's distribution of marital assets. Gundrum was married to plaintiff-appellee Debra Jean Kenning in August 1990 and they were divorced in 2006. In two assignments of error, Gundrum asserts that the trial court erred in (1) concluding that his 75% interest in a dental laboratory had appreciated $272,090 during the marriage, and (2) continuing and increasing the amount of spousal support. In addressing his assignments of error in turn, we affirm. {¶ 2} A hearing was held in September 2005 before a magistrate to determine property division. At the hearing, Gundrum testified that he owned a 75% interest in Gundrum Dental Laboratories Incorporated, that his brother owned the other 25%, and that in 2004 the venture had gross sales exceeding $800,000. He also testified that, contained in the Gundrum Dental restrictive-stock agreement and cross-purchase agreement was a valuation method to be used in the event of a transfer of ownership between the Gundrum brothers. Under the agreement, the worth of the company could be calculated by using financial information from the previous three years. {¶ 3} The court relied on a valuation letter from Dan Henning (Gundrum's, Kenning's, and Gundrum Dental's accountant and bookkeeper) in concluding that Gundrum Dental's value had appreciated $272,090 during Gundrum and Kenning's marriage. In the letter to Gundrum, dated December 6, 2004, Henning had used the restrictive-stock formula to calculate Gundrum Dental's value from March 31, 1991, to March 31, 2004. In 1991, Gundrum Dental was valued at $422,765, and in 2004 it had a value of $694,855 — an appreciation of $272,090. Gundrum's 75% interest in Gundrum *Page 3 Dental equaled $206,788.40, and the trial court awarded Kenning half of that amount, or $103,394.20. {¶ 4} Later, Henning testified that the formula contained in the agreement was unusable because the formula "required" three years' worth of financial information, and because that information was unavailable. Henning also testified that Gundrum Dental's worth could be determined using the net-asset-value method — generally the value of an entity's assets less the value of the entity's liabilities. And that under that valuation method, the business had actually declined in value during the marriage. {¶ 5} Trial courts are given broad discretion in determining the equitable distribution of property in divorce actions.1 And that determination is subject to an abuse-of-discretion standard on appeal.2 "A Court of Common Pleas has broad discretion to determine what property division is equitable in a divorce proceeding. The mere fact that a property division is unequal does not, standing alone, amount to an abuse of discretion."3 An abuse of discretion is more than an error of law or judgment; it connotes an attitude that is unreasonable, arbitrary, or unconscionable.4 But, there is no presumption of an equitable division of marital property in a divorce.5 {¶ 6} The appreciation in the value of separate property during the marriage is marital property.6 {¶ 7} Gundrum argues that the trial court erred in using starting and ending dates for the determination of value that did not coincide with the exact dates of the duration of the marriage. *Page 4 {¶ 8} "`Equity may occasionally require valuation as of the date of the de facto termination of the marriage. The circumstances of a particular case may make a date prior to trial more equitable for the recognition, determination and valuation of relative equities in marital assets. In order to do equity, a trial court must be permitted to utilize alternative valuation dates, such as the time of permanent separation or de facto termination of the marriage, where reasonable under the facts and circumstances presented in a particular case. In this fashion, the trial court will have the necessary flexibility to exercise its discretion in making truly equitable awards consistent with legitimate expectations of the parties.'"7 {¶ 9} Again, we note that financial information for Gundrum Dental was unavailable for the date of the marriage. But the financial statements were available for March 1991 — Gundrum and Kenning were married in August 1990, a difference of about seven months. The trial court determined that the beginning and ending calculation dates were dates within the duration of the marriage, and that they were based on the best available information. Our review of the record convinces us that the trial court did not abuse its discretion, and that its explanation for using dates different from the date of marriage and the date of termination was adequate. {¶ 10} Gundrum's argument that the trial court should have valued the company by using the net-asset-value method is likewise meritless. The trial court used the valuation method originally provided by Gundrum's accountant, which showed an increase in value, rather than the net-asset-value method, which showed a decrease in value. Gundrum Dental had existed for some time and had a history of profitability, and *Page 5 under these circumstances the restrictive-stock formula showing an appreciation was a more appropriate valuation method. Gundrum's first assignment of error is overruled. {¶ 11} Gundrum also argues that the trial court erred in continuing spousal support and in increasing the amount of spousal support. Our review of the record convinces us that the trial court properly considered the factors enumerated in R.C. 3105.18(C), and that the court did not abuse its discretion in its award or increase of spousal support. The second assignment of error is without merit, and the trial court's judgment is, accordingly, affirmed. Judgment affirmed. HILDEBRANDT and WINKLER, JJ., concur. RALPH WINKLER, retired, from the First Appellate District, sitting by assignment. 1 See Berish v. Berish (1982), 69 Ohio St.2d 318, 319,432 N.E.2d 183; Thompson v. Thompson, 1st Dist. No. C-050578,2006-Ohio-2623, ¶ 11. 2 Id. 3 See Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293, paragraph two of the syllabus. 4 See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,450 N.E.2d 1140. 5 See Thompson, supra. 6 See Middendorf v. Middendorf (1998), 82 Ohio St.3d 397, 401,696 N.E.2d 575; R.C. 3105.171. 7 See Abolfatzadeh v. Abolfatzadeh, 1st Dist. Nos. C-050039 and C-050056, 2006-Ohio-573, quoting Berish, supra,69 Ohio St.2d at 320-321. *Page 1

2016-07-06 06:42:06.746137+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Huron County Court of Common Pleas, which denied appellant's motion to suppress evidence pursuant to Crim.R. 41(D). For the reasons set forth below, this court affirms the judgment of the trial court. {¶ 2} Appellant, George Vanek, sets forth the following single assignment of error: *Page 2 {¶ 3} "The trial court erred to the prejudice of Defendant-Appellant in denying his motion to suppress evidence, where such evidence was obtained through an unreasonable search of Appellant's home, in violation of his rights under the U.S. and Ohio Constitutions." {¶ 4} The following undisputed facts are relevant to the issues raised on appeal. On July 8, 2006, Captain Robert McLaughlin of the Huron County Sheriffs Office and the METRICH drug task force executed a search warrant on the home of appellant. The search warrant was properly authorized by Judge John S. Ridge of the Norwalk Municipal Court earlier that day. The search warrant allowed Captain McLaughlin and his team to search appellant's apartment for crystal methamphetamine and other drug paraphernalia and seize what was found. Appellant does not dispute the validity of this document. {¶ 5} On September 21, 2006, appellant filed a motion to suppress the evidence found during the execution of the search warrant. Appellant asserted that he was improperly served with a copy of search warrant. He argued that Captain McLaughlin did not allow him to hold or read the search warrant. In support, appellant claims that he was given no more than ten seconds to glance at the document. {¶ 6} On September 28, 2006, an evidentiary hearing was held. At the hearing, Captain McLaughlin testified that he allowed appellant at least 30 seconds to review the command portion of the search warrant. Captain McLaughlin further testified that he left a copy of the command warrant on the couch in appellant's apartment. After hearing the *Page 3 testimony of both appellant and Captain McLaughlin, the trial court determined that appellant's testimony regarding the events was not credible. In weighing the credibility of the two differing accounts, the court noted that appellant, by his own admission, was "extremely high" at the time the warrant was executed. {¶ 7} The trial court determined that even if there had been technical violations in serving appellant with the search warrant, these violations did not compromise appellant's constitutionally protected rights. On September 29, 2006, the trial court denied appellant's motion to suppress. On October 2, 2006, appellant pled no contest to both illegal manufacturing of methamphetamine and possession of methamphetamine. Appellant filed a timely notice of appeal. {¶ 8} In support of his appeal, appellant relies exclusively upon an issue of fact. At a suppression hearing, the trial court assumes the role of trier of fact. The trial court "is in the best position to resolve questions of fact and evaluate witness credibility." State v.Dixon (2001), 141 Ohio App.3d 654, 658, citing State v. Carter (1995),72 Ohio St.3d 545, 552. {¶ 9} Appellant alleges that his rights under both the United States and Ohio Constitutions were violated. The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution have been held virtually identical and coextensive by the Supreme Court of Ohio. State v. Geraldo (1981), 68 Ohio St.2d 120, 125-126. *Page 4 {¶ 10} Crim.R. 41(D) provides for two methods of service of a search warrant. Either a copy of the search warrant can be given to the person from whose premises property is seized, or a copy of the search warrant can be left at the place from which the property was taken. {¶ 11} Captain McLaughlin testified that he showed appellant the command portion of the search warrant for at least 30 seconds. Captain McLaughlin also testified that, after appellant's home was searched, he left the warrant in appellant's apartment, on appellant's couch. Appellant contends that this was not the case. He argues that when his wife returned to the apartment four days later, she could not locate the search warrant. {¶ 12} The trial court determined that Captain McLaughlin was a more credible witness than appellant and was persuaded by Captain McLaughlin's testimony on the manner of the July 8, 2006 execution of the search warrant. By his own admission, appellant was "extremely high" at the time the officers searched his residence. Appellant offers no evidence that the trial court abused its discretion in making this determination. {¶ 13} Violations under Crim.R. 41 are classified as either fundamental or technical violations. A fundamental violation occurs when the error in execution of a warrant presents a clear constitutional violation. United States v. Stefanson (C.A.9, 1981), 648 F.2d 1231,1238. Technical violations are minor violations in execution. Even if a technical violation occurs, police must have deliberately or prejudicially violated Crim.R. 41 for a constitutional violation to occur. U.S. v. Freitas (C.A.9, 1988), *Page 5 856 F.2d 1425, 1433. Suppression of evidence is only appropriate when there is a clear constitutional violation. {¶ 14} Appellant presents no evidence of a clear constitutional violation. Even assuming the argument that Captain McLaughlin's manner of service somehow violated Crim.R. 41, it was a technical violation. Appellant offers no evidence to show that he was prejudiced by the manner in which the search warrant was executed. We concur with the trial court's assessment. We find that the disputed execution of the search warrant was clearly in compliance with Crim.R. 41. Appellant was not deprived of any constitutionally protected rights. The trial court properly denied appellant's motion to suppress. {¶ 15} Wherefore, for the reasons stated herein, we find appellant's assignment of error not well-taken. On consideration whereof, the judgment of the Huron County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expenses incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Huron County. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. *Page 6 Peter M. Handwork, J., Mark L. Pietrykowski, P.J., Thomas J. Osowik, J., CONCUR. *Page 1

2016-07-06 06:42:06.771528+00

JOURNAL ENTRY and OPINION Relator, Justo Pratts, has filed a complaint for a writ of prohibition to prevent the respondent, the Ohio Adult Parole Authority, from imposing a period of three years of post-release control. The post-release control relates to the relator's release from prison following his conviction for the offense of possession of drugs (R.C. 2925.11). See State v. Pratt, Cuyahoga Common Pleas Case No. CR-365178. The respondent has filed a motion to dismiss which we grant for the following reasons. In order for this court to issue a writ of prohibition, the relator must establish that: (1) the respondent is about to exercise judicial power; (2) the exercise of such judicial power is unauthorized by law; and (3) the denial of the writ will cause injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas (1996), 74 Ohio St.3d 536,660 N.E.2d 458; State ex rel. Largent v. Fisher (1989), 43 Ohio St.3d 160,540 N.E.2d 428. An adequate remedy at law will preclude relief in prohibition. State ex rel. Lesher v. Kainrad (1981), 65 Ohio St.2d 68,417 N.E.2d 1382; State ex rel. Sibarco Corp. V. City of Berea (1966),7 Ohio St.2d 85, 218 N.E.2d 428. Finally, prohibition must be used with great caution and should not be issued in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas (1940), 137 Ohio St. 273,28 N.E.2d 641; Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447. In the case sub judice, the relator has failed to establish each prong of the aforesaid three-part test. Initially, the respondent is not a court or officer that is about to exercise judicial power. In addition, the respondent is authorized by R.C. 2967.28(C) to impose a post-release control upon the relator once he is released from prison. Finally, the relator possesses an adequate remedy at law since the issue of whether the relator was properly sentenced and subject to post-release control can and must be addressed through a direct appeal to this court. See State v. Hart (May 31, 2001), Cuyahoga App. Case No. 78170, unreported; State v. Williams (Dec. 7, 2000), Cuyahoga App. No. 76816, unreported; State v. Dillon (Nov. 30, 2000), Cuyahoga App. No. 77847, unreported; State v. Wright (Sept. 28, 2000), Cuyahoga App. No. 77748, unreported. See, also, Woods v. Telb (2000), 89 Ohio St.3d 504, 733 N.E.2d 1103. Accordingly, we grant the respondent's motion to dismiss. It is further ordered that the Clerk of the Eighth District Court of Appeals shall serve upon all parties notice of this judgment and date of entry pursuant to Civ.R. 58(B). Costs to relator. ANN DYKE, P.J., and JAMES J. SWEENEY, J., CONCUR.

2016-07-06 06:42:06.80053+00

OPINION {¶ 1} Defendant-Appellant Cindy May King appeals from her conviction and sentence, following a jury trial, for Theft. She contends that her trial counsel was ineffective for having failed to interpose more than one objection to a line of questioning, during the prosecutor's cross-examination of her, intended to elicit the nature of a felony offense of which she had previously been convicted, and that the trial court committed plain error by failing to limit this line of questioning. King also contends that her trial counsel was ineffective for having failed to request a jury instruction on the concept of accident, and that the trial court committed plain error by failing to give a jury instruction on this subject. {¶ 2} We conclude that trial counsel was not ineffective for having failed to interpose more than one objection to the prosecutor's line of questioning, during the cross-examination of King, intended to elicit the nature of the felony offense of which she had previously been convicted. We further conclude that the trial court did not commit plain error when it failed to limit this line of questioning. We also conclude that trial counsel was not ineffective for having failed to request a jury instruction on the subject of accident, and that the trial court did not commit plain error by failing to give a jury instruction on this subject. Accordingly, the judgment of the trial court is Affirmed. I {¶ 3} King and her husband, Ronald, were employed at a Kroger store in June, 2004. They were both working in the store, during the night shift, on June 27, 2004. At about 7:00 that morning, King was checking out some items at a cash register in the store, and her husband was bagging them. Among the items King was checking out, for her own purchase and use, were six packs of cigarettes. After she scanned the items and registered the transaction, she paid with a personal check, and took the purchased items, in a shopping cart, out to the car, where her husband was waiting. It was the end of the shift, and it took her about ten minutes from the time she scanned her purchases to the time that she had completed whatever she needed to do to leave the store and go home. {¶ 4} James Roberts, a risk management officer at Kroger, who had previously had his suspicions aroused concerning the possibility that King and her husband might be stealing items from the store, intercepted King as she was loading the bags in her trunk, and demanded to see the receipt, so that he could compare the receipt with the items purchased. The receipt showed only three packs of cigarettes. With respect to other items purchased, the receipt appeared to be accurate. {¶ 5} Roberts had the Kings return to the store, where he interviewed them both. Cindy King told Roberts that she had intended to scan all of the items, including all six cigarette packs, and had thought that she had successfully scanned the items. She told Roberts that she did not realize that three of the six cigarette packs were not accounted for in the total on the receipt. Roberts did not accept King's explanation, the police were summoned, and King was arrested and ultimately charged with Theft. Her husband was not charged. {¶ 6} At trial, Roberts was the sole witness for the State. He testified that it is against store policy for an employee to check out their own purchases, and that when an item is successfully scanned, there is a noise, and other items may be scanned. When the machine registers that an attempt to scan has been made, but there is some problem, there may be the same noise, but it becomes impossible to scan additional items until the problem is resolved. {¶ 7} King, her husband, and several other witnesses testified for the defense. King testified that she was very tired at the end of her shift, that someone using the register previously had turned the sound down, and that she was talking with her husband when she was attempting to scan the cigarette packs. Her husband, in his testimony, denied that there had been any conversation at that time. {¶ 8} Following the conclusion of the trial, the jury returned a verdict of guilty, a judgment of conviction was entered, and King was sentenced to 180 days in jail, all of which was suspended, a fine of $250 and court costs, and two years of probation. From her conviction and sentence, King appeals. II {¶ 9} King asserts two assignments of error, as follows: {¶ 10} "APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE DUE TO (1) FAILURE TO MAKE A CONTINUING OBJECTION TO THE PROSECUTOR ELICITING PREJUDICIAL DETAILS REGARDING APPELLANT'S PRIOR CONVICTION, AND (2) FAILURE TO REQUEST A JURY INSTRUCTION AS TO THE DEFENSE OF ACCIDENT, WHERE APPELLANT WAS CHARGED WITH A `PURPOSEFUL' CRIME AND ACCIDENT WAS APPELLANT'S DEFENSE AT TRIAL. {¶ 11} "THE TRIAL COURT ERRED IN FAILING TO RESTRICT THE SCOPE OF THE STATE'S CROSS-EXAMINATION REGARDING APPELLANT'S PRIOR CONVICTION AND IN FAILING TO INSTRUCT THE JURY AS TO THE DEFENSE OF ACCIDENT." A {¶ 12} With respect both to the First Assignment of Error, which involves a claim of ineffective assistance of trial counsel, and the Second Assignment of Error, which involves a claim of plain error on the part of the trial court, the first issue concerns the scope of the State's cross-examination of King concerning her prior criminal record. The entire colloquy with which this issue is concerned is as follows: {¶ 13} "Q. All Right. Now, have you ever been in trouble for stealing from an employer before? {¶ 14} "A. No. {¶ 15} "Q. You never have? {¶ 16} "A. Not an employer, no. {¶ 17} "Q. Well, if you were not stealing money while you worked for an employer, was it from the — if it was not from an employer, who was it from? {¶ 18} "A. From the — it's not an employer. It's my — I don't know how to answer that. I've been in trouble before, if that is what you want to know. {¶ 19} "Q. Well, specifically, it was for theft, was it not, when you went to prison, right? {¶ 20} "A. Misappropriation of funds. {¶ 21} "Q. Okay, And what is that exactly? {¶ 22} "MS. FARLEY: Objection. {¶ 23} "THE COURT: It's proper cross. {¶ 24} "THE DEFENDANT: The company I was working for prior to coming to Ohio was — I was the secretary for a nursing home. {¶ 25} "BY MR. LEWIS: {¶ 26} "Q. Okay. {¶ 27} "A. They were asking me to improperly bill Medicare and turn in wrongful amounts for taxes. {¶ 28} "Q. And your husband as well? {¶ 29} "A. He was contacted by that company to do some work for them. {¶ 30} "Q. Okay. And he got in trouble in the same way? {¶ 31} "A. Correct. {¶ 32} "Q. All right. He went to prison as well? {¶ 33} "A. Correct. {¶ 34} "Q. All right. And these were felonies? {¶ 35} "A. Correct. {¶ 36} "Q. How much money are we talking about there? {¶ 37} "A. At that point, I think it was like $65,000 or something. {¶ 38} "Q. Okay. And you knew that was wrong? {¶ 39} "A. Well, yeah. {¶ 40} "Q. You did it anyway? {¶ 41} "A. Well, no, I didn't participate in that. {¶ 42} "Q. You did not go to prison for it? {¶ 43} "A. I went to prison. {¶ 44} "Q. You were convicted and you went to prison? {¶ 45} "A. Yes. {¶ 46} "Q. So you were convicted of stealing? {¶ 47} "A. Yes. {¶ 48} "Q. Okay. Now, that was not from your employer, then; that was from the government that you were convicted of stealing from? {¶ 49} "A. Correct." {¶ 50} This line of questioning by the State suggests that the prosecutor may have been uncertain concerning the exact nature of King's prior offense. That suggestion is strengthened by the following remark made by the trial judge after the jury's verdict was reported and accepted: {¶ 51} "THE COURT: Miss King, I want to be as fair to you as I can about all these things. I am aware from what I've heard in court today and then I looked at some of the paperwork that your attorney has regarding your prior record. I'm not exactly sure what that is all about, and you will see, if Miss Farley will show it to you, there are a couple of charges against you that are listed and then there's a disposition or two and there's a note that they can't match them up. They are not sure which ones go where. Sometimes that happens, particularly on federal issues that there's just mistakes. I want to be as fair to you as I can in deciding what the proper sentence is, so I am not going to revoke your bond on your promise to come back to court when you are required and to stay in contact with your attorney, and I'm going to send you for a pre-sentence investigation." {¶ 52} King recognizes that because she testified in her own behalf, the State could properly use her prior conviction for purposes of impeachment. The record suggests that the prosecutor, rather than having been disingenuous, was actually somewhat uncertain about the nature of King's prior offense. Therefore, we conclude that the trial court properly overruled the one objection that King interposed, because the State had not yet succeeded in establishing that King had previously been convicted of a felony. {¶ 53} We tend to agree with King that at some point much later in this line of questioning, an objection would have been valid, and should have been sustained, had it been made. It appears that the State was attempting to prove that King had previously stolen from her employer, and, when it became clear that the victim of the offense was the government, and not an employer, the State attempted to prove that King was previously convicted of stealing money. {¶ 54} Towards the very end of the State's closing argument, the State made it rather clear that it was asking the jury to make the forbidden inference: "This individual is an individual who has a history of being a thief. In fact, she did time in the federal penitentiary for stealing." {¶ 55} Although a prior felony conviction can properly be used to impeach any witness's credibility, it may not properly be used to support an inference that because the defendant committed a particular type of offense on one previous occasion, therefore she must have committed the same type of offense on this occasion. Evid.R. 404(B). In our view, the State's emphasis, in the latter portion of its line of questioning, and in its argument, upon the fact that King's prior offense was for stealing, was inadmissible under Evid.R. 403(B), and, therefore, an objection would have been proper. {¶ 56} In order to make out a claim of ineffective assistance of trial counsel, a defendant must not only establish that her counsel's performance fell below an objective standard of reasonable representation, she must also "prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v.Bradley (1989), 42 Ohio St. 3d 136, paragraph three of the syllabus. {¶ 57} In our view, the prejudice prong of the ineffective assistance of trial counsel analysis cannot be satisfied in this case. That is because the trial court correctly instructed the jury concerning the only proper use that could be made of King's prior conviction, as follows: {¶ 58} "Evidence was also received that this Defendant has previously been convicted of a felony theft offense. That evidence was received only for a limited purpose. It was not refused [used?] and you may not consider it to prove the character of the Defendant in order to show that she acted in conformity or accordance to that character. If you find that the Defendant was in fact convicted of the felony theft offense, you may consider that evidence only for the purpose of testing her credibility or believability and the weight to be given her testimony. It cannot be considered for any other purpose." {¶ 59} In view of the trial court's correct instruction to the jury concerning the only proper purpose for which this testimony could be used, and the presumption that a jury will follow the instructions given by the trial court, we cannot conclude that there is a reasonable probability that the outcome of this trial would have been different, had King's trial counsel interposed a further objection, later in the State's line of questioning concerning King's prior conviction. Indeed, defense counsel may have concluded, with some justification, that the jury might have perceived her attempt to preclude the State from completing its inquiry into the nature of the offense for which King had been previously convicted as an effort to hide critical information from the jury. Defense counsel may have made a strategic decision not to be perceived by the jury as trying to hide critical information from it, recognizing that the damaging fact that King had previously been convicted of a felony was something that could not be kept from the jury, in any event. {¶ 60} King makes the further argument, in connection with her Second Assignment of Error, that the trial court should have limited the State's line of inquiry concerning King's prior conviction, even without the interposition of an objection by defense counsel. This claim is governed by the plain-error standard of review, which requires an even stronger showing of prejudice than ineffective assistance of trial counsel. For the reasons already indicated, we conclude that King has failed to demonstrate a strong probability that the outcome of the trial would have been different had the scope of the State's inquiry concerning her prior conviction been restricted, given that the fact that King had previously been convicted of a felony was inevitably going to be put before the jury, King having elected to testify in her own defense. B {¶ 61} King next argues that her trial counsel was ineffective for having failed to request, and the trial court committed plain error by failing to give, a jury instruction on accident. As the State notes, however, in the comments to Ohio Jury Instruction 411.01, the instruction on accident, the Committee states: {¶ 62} "An instruction on accident is not recommended unless required by the evidence, argument or request of counsel. The claim of accident is not an affirmative defense. {¶ 63} "The committee recommends that no statement be given to that effect because it is unnecessary and it is confusing unless there exists a second defense on which the defendant has the burden of proof." {¶ 64} King offered no affirmative defense. Furthermore, as the State points out, the trial court did specifically instruct the jury that in order to find King guilty, it must find, beyond reasonable doubt, that there was present in her mind a specific intention to deprive the owner of the three packs of cigarettes without paying for them, and that: "Purpose is a decision of the mind to do an act with the conscious objective to do it, and to act purposefully is to do it intentionally and not accidentally." {¶ 65} We conclude that trial counsel violated no duty to her client by failing to request an instruction on accident, which would have been redundant, at best, and possibly confusing; and that even if trial counsel had been derelict in her duty in this regard, there is no reasonable possibility that the jury failed to understand that the issue in this case was whether King intended to take the cigarettes without paying for them, as opposing to having accidentally left the store without paying for them, and, furthermore, that the State had the burden of proof, beyond reasonable doubt, on that issue. Therefore, King's trial counsel was not ineffective in this regard, and the trial court did not commit error, let alone plain error, by failing to give a separate instruction on the concept of accident. {¶ 66} Both of King's assignments of error are overruled. III {¶ 67} Both of King's assignments of error having been overruled, the judgment of the trial court is Affirmed. Grady, P.J., and Brogan, J., concur.

2016-07-06 06:42:05.297744+00

Jackson

This appeal presents highly important questions involving efforts by law enforcement officials of the city of Cleveland to halt the flow of obscene literature within its boundaries. Through seven assignments of error, appellants assail practically every facet of these efforts, including the enabling legislation, the procedural steps taken to secure the restraints, and finally the restraints themselves. On March 27, 1972, a Cleveland city prosecutor and several police officers entered the bookstore of the appellant Joseph Ricco, on orders of the chief police prosecutor to search for and confiscate obscene books and magazines. After identifying themselves they began to "thumb through the magazines trying to determine what they thought could possibly be pornographic," and upon concluding their examination seized 59 magazines and paperback books, all of different titles. Relevant to the validity of the seizure, it is noteworthy that the police were not acting pursuant to any search or arrest warrant, nor was the seizure incident to any arrest, nor did the police purchase any of the publications, and finally there is no evidence that the appellant Ricco explicitly consented to the seizure. The record is also silent as to what percentage of *Page 59 appellant's entire inventory the 59 publications represented, although it appears that they did not confiscate all the items on display. Thus, it is impossible to determine whethther the seizure can be considered "massive." Three days later, on March 30, 1972, the Cleveland Law Director filed this action under the provisions of R. C. 2905.37, praying that the defendant be permanently enjoined from selling or displaying the 59 books and magazines seized by the police. Accompanying the complaint was a motion for a temporary restraining order. A hearing on the motion was scheduled for April 6, 1972, and, although the record does not indicate that notice of this hearing was actually served upon the appellant, his counsel did enter an appearance. The hearing was brief and perfunctory. Police prosecutor Chandler was called to testify as to the circumstances surrounding the search and seizure. On this foundation, the city then introduced over defense objection six of the publications. The remaining 53 items were not offered apparently because they were regarded as being substantially the same as those introduced. Except for the six books and magazines, no other evidence was offered to establish their allegedly obscene character. At the conclusion of the hearing, the trial court ruled from the bench "that on the basis of the [six] exhibits * * * there is probable cause on the part of the complaining party to believe that a violation of Revised Code2905.34 and 2905.35 has occurred," and that "under the General Equity Principles * * * [i]rreparable harm occurred to the community * * * ." Accordingly, the temporary restraining order was granted, to be effective for five days. This order broadly restrained the distribution of not only the 59 publications seized on March 27, 1972, but also "any other publications of films, books, magazines, pictures or devices which display or depict the acts set forth in Revised Code 2905.34, 2905.35 * * *." On April 10, 1972, counsel for the appellant and the city prosecutor both appeared in court for a trial on the permanent injunction. The only evidence introduced at this hearing was the remaining 53 publications not previously offered, together with a stipulation incorporating the testimony *Page 60 and exhibits introduced at the prior hearing on the temporary order. Within the statutory prescribed period of five days, the trial court issued a permanent injunction of broader scope than the restraining order. It enjoined the sale and distribution of the seized publications as well as "any material which constitutes obscenity in that the following three elements exist and coalesce: "(1) The dominant theme of the material taken as a whole appeals to a prurient interest in sex; "(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and "(3) The material is utterly without redeeming social value. "(4) Material appeals to a prurient interest in sex when it has a tendency to excite lustful thoughts or appeals to a shameful or morbid interest in nudity or sex. `Appeal to prurient interest in sex' is not limited to material which causes lustful acts (rather than only thoughts) or which causes action reprehensible to society. An appeal to voyeurism constitutes an appeal to a prurient interest in sex. "(5) Material affronts contemporary community standards relating to the description or representation of sexual matters where the material affronts the standards of the average person of the national community. Neither the standards of the most permissive or liberal localities or segments of society, nor the standards of the most restrictive or conservative localities or segments of society constitute the national community standard. It is the standard of the national community, rather than the community itself that must be affronted, and such standard may be affronted even in the absence of evidence that any member of the community was or could have been personally affronted. "(6) `Social value' resulting from the fact that material is obscene does not constitute redeeming social value. Redeeming social value is `social value' existing for some use or purpose other than obscenity but such social value may be present in material despite the fact that it contains all the attributes of obscenity. *Page 61 "(7) Where material is offered for sale because it constitutes obscenity and for use as erotica through an appeal to the erotic interest of the purchaser, the existence of redeeming social value with respect to the use of the material for some other purpose (in a different context) is not available as a defense to such seller (or panderer). "(8) Pandering of obscenity is the business of purveying pictorial or graphic matter openly advertised to appeal to the erotic interest of customers or potential customers by either blatant and explicit advertising or subtle and sophisticated advertising. "(9) `Medium core pornography' as well as `hard core pornography' constitutes obscenity that is not within the area of constitutionally protected speech or press." The court cited two statutory schemes as the basis for this decree. In addition to Chapter 2905, Revised Code, the court relied upon Chapter 3767, Revised Code, to hold that the bookstore of Ricco's constituted a nuisance.1 We cannot avoid commenting on the unusualness of this finding, since at no point during the proceedings did the prosecutor ground his claim on a nuisance theory nor did he make any effort to comply with the provisions outlined in Chapter 3767, Revised Code. However, this did not represent the only bizarre aspect of this case. On the same day that the court entered this order against the appellant Ricco, the prosecutor took the unusual step of filing an amended complaint for the purpose of joining seven additional bookstore proprietors as co-defendants. Like the original complaint, the amended pleading included a request for a temporary restraining order, and on April 17, 1972, the court conducted a hearing on the interlocutory order. Officers Vrana and Pope testified that they visited the bookstores of the seven new defendants on April 10 and 11, 1972, in much the same manner as before, and seized a total of 23 magazines. As before, the police neither acted on the authority of any warrant nor did they arrest any of the clerks and seize the *Page 62 publications incident thereto, nor did they purchase them. The Law Director of Cleveland filed this action under R. C.2905.37, which empowers the Common Pleas Court to enjoin the sale and distribution of obscene material "[w]here it appears that section 2903.14 [not pertinent to the instant appeal] or2905.35 is being or is about to be violated."2 R. C. 2905.35 declares the sale and distribution of obscene material, as well as other related acts to be criminal offenses.3 Both Sections 2905.35 and 2905.37 are not self-containing but are dependent upon R. C. 2905.34 (A), which delineates the standards for determining whether material is obscene.4 This latter statute was last amended in 1970 and represents an effort by the General Assembly *Page 63 to formulate a detailed yet all encompassing definition of obscenity. The Ohio Supreme Court has recently held that at least parts of Sections 2905.34 and 2905.35 comport with constitutional standards announced by the Supreme Court of the United States in Miller v. California.5 By their first assignment of error, appellants urge that *Page 64 this court assume the burden of judicial review and strike down R. C. 2905.34 as being void for vagueness and overbreadth. This argument does not question the power of the legislature to control, by appropriate statutory enactment, the distribution of obscene materials within the state. Rather, it is built on the premise that in this most sensitive area of First Amendment rights, where protected speech must be delicately and carefully separated from illegitimate expression, that power must be exercised with precision. Shelton v. Tucker (1960),364 U.S. 479, 488. The vagueness argument has its roots in the Fifth and Fourteenth Amendments Due Process clauses. As the court stated in Giaccio v. Pennsylvania (1966), 382 U.S. 309, 40203, "a law fails to meet the requirements of the Due Process clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case." The overbreadth argument, on the other hand, is premised on the First Amendment and reflects the constitutional principle that "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."6 Although the two doctrines are conceptually distinct, their paths often cross. As the court noted in Hiett v. United States (5th Cir. 1969), 415 F.2d 664,671, the "doctrine of overbreadth is closely related to the vagueness doctrine, because it tends to be overly broad as well, in that they not only provide insufficient notice of illegality but sometimes include within their prohibitions expression that is protected speech." In asserting that the Ohio statutory scheme must succumb to the doctrines of overbreadth and vagueness, appellants focus narrowly on subsection (A) of R. C. 2905.34, the definitional statute.7 Appellants maintain that this subsection is vague and gives the accompanying penal and *Page 65 injunctive statutes too broad a reach because it lacks the second and third elements of the tripartite test of Memoirs v.Massachusetts:8 "(a) the dominant theme of the material taken as a whole appeals to the prurient interest in sex; (b) the material is patently offensive because it offends contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." This federally mandated definition was recently supplanted byMiller v. California,9 which announced new guidelines for defining the limits of the state's power to curb obscene expression. The majority of the Supreme Court approved the following three-pronged formula: material is obscene if (1) taken as a whole, it appeals to the prurient interest in sex; (2) it portrays sexual conduct in a patently offensive way; and (3) taken as a whole, it does not have serious literary, artistic, political, or scientific value.10 Because the instant appeal in one respect involves the continued validity of the injunction issued by the trial court below, we believe that the Ohio statute must be examined under the recent Miller decision. The first element of the Miller test is obviously met in R. C.2905.34(A) (1). Appellants might argue that the second element in the Miller test is missing from R. C. 2905.34(A) because this section does not contain the words "patently offensive." However, we conclude that any fair interpretation of this statute would find that the second element of the Miller test is present. Subsection (A) of R. C. 2905.34 could not under Memoirs, nor can it now underMiller be construed as producing a complete and exclusive listing of conduct and materials defined as obscene. Therefore, in defining "obscenity" the Ohio legislature must necessarily use some general descriptive phrases. The fact that the descriptive phrase "patently offensive" is not found in R. C.2905.34 (A) does not necessarily imply that the legislature intended *Page 66 to eliminate this element and thereby unduly expand the reach of the statute. In place of the words "patently offensive" the state legislature has used descriptive phrases found in subsections (2) and (3) of R. C. 2905.34(A). These phrases are "depicting * * * sexual conduct in a way which tends to represent human beings as mere objects of sexual appetite," and "* * * dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality." These phrases contain substantially the same idea as the phrase "patently offensive." In fact, if the Ohio statute deviates at all from the standard "patently offensive," it does so by using phrases which are more narrow and explicit. The third element of the Miller test is met in subsection (4) of R. C. 2905.34(A). On the basis of this interpretation we must reject appellants' arguments that R. C. 2905.34 is unconstitutional because of vagueness or overbreadth. II. The second assignment of error challenges the propriety of issuing temporary restraining orders to enjoin the distribution and sale of publications prior to a final hearing on their alleged obscenity. Appellants argue that this type of provisional relief is not specifically authorized by R. C.2905.37 and therefore should not have been granted on behalf of the City. Before considering this question it is first necessary to dispose of appellee's argument that this issue is now moot. The concept of mootness as a limitation upon appellate review has traditionally been invoked in those cases where events occurring during the pendency of the appeal so alter the posture of the controversy as to make further judicial response ineffective and inconsequential. For example, in Sakacsi v.McGettrick (1967), 9 Ohio St.2d 156, cited by appellee, the Ohio Supreme Court invoked this doctrine to avoid reviewing the granting of a writ of habeas corpus where the agency detaining the petitioner had transferred legal custody pending appeal to another governmental unit. The City of Cleveland attempts to analogize *Page 67 the instant case with Sakacsi by arguing that this court's granting of a stay, pending appeal, of the permanent injunctions into which the temporary restraining orders were merged, rendered the controversy over the interlocutory orders moot. However, the granting of the stay itself in no respect extinguished the fires of controversy between the parties, and has not reduced the decision which we announce today to a mere advisory opinion. Moreover, we do not believe that the doctrine of mootness can be expanded to eclipse the general rule allowing for the review11 of interlocutory orders in an appeal from a final judgment. It has been stated that "under modern statutes and modern rules, an appeal from a final judgment brings up for review all interlocutory or intermediate orders involving the merits and necessarily affecting the final judgment which were made prior to its entry." Robinson v. Meding (1960), 52 Del. 578, 163 A.2d 272, 275. See generally 5 Am. Jur. 2d, Appeal Error, § 856, at 298 (1962). In turning to the merits of this assigned error, the first point of inquiry must be the statute authorizing injunctive relief against the sale and distribution of obscene material, R. C. 2905.37. Appellant asserts that the failure to specifically authorize temporary restraining orders indicates a legislative intent to withhold such relief in these proceedings. We find that this interpretation of the statute is persuasive. The predecessor of R. C. 2905.37, enacted in 1959, provided for the issuance of temporary restraining orders against the sale and distribution of material, pending a trial of the issues. 128 Ohio Laws 359 (1959), codified as R. C. 2905.343. But within the year the Common Pleas Court for Mahoning County held this provision unconstitutional to the extent that it allowed for ex parte orders before service of summons. State, ex rel. Beil, v.Mahoning *Page 68 Valley Distrib. Agency, Inc. (1960), 84 Ohio Law Abs. 427, Aff'don other grounds (1962), 116 Ohio App. 57. When the 1959 statute was repealed and superceded by R. C. 2905.37, the provision pertaining to restraining orders was noticeably excluded. We infer from this legislative fact that the General Assembly perceived the potential constitutional infirmatives created by the prior restraints inherent in a temporary restraining order and sought to avoid them by withholding this form of relief. It may also be suggested that these ex parte restraints on sale and distribution cannot really be supported on those grounds which have historically justified the issuance of temporary restraining orders. The temporary restraining order originally was developed to overcome the inherent slowness of the judicial process in hearing evidence and deciding the issues in an adversary context. Without some device for maintaining the status quo, irreparable harm can occur before a final resolution of the legal issues. Even assuming generally that the exploitation of obscene material has harmful and antisocial effects and that it debases and distorts "a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality,"12 it is extremely doubtful whether the interim sales would so irreparably harm the public as to warrant the drastic step of enjoining sale and distribution prior to an adversary hearing. At least in the sparse record before us the prosecutor certainly did not assert nor did he demonstrate any urgency justifying ex parte relief. Moreover, the need for these temporary restraints is further diminished because of the time limitations mandated in R. C. 2905.37, to-wit: no more than ten (10) days may elapse between the filing of the complaint and the announcement of decision. III. Appellants attack the permanent injunctions as being overly broad in several respects. We agree. First, the court *Page 69 violated fundamental principles of procedural due process by enjoining, pursuant to R. C. 3767.02, the appellants from maintaining a "nuisance" at their respective book stores. This case was never prosecuted nor defended on the nuisance theory, and thus this facet of the injunction was tantamount to depriving the appellants of their livelihood without adequate notice or opportunity to be heard.13 Second, the court's attempt to extend the scope of the injunction to include "medium core" pornography must fail because of vagueness. Finally, the court's effort to catapult the injunction to a restraint on any materials in the defendants' bookstores that may fall within the court's definition of obscenity is clearly impermissible. The power of the Common Pleas Court under 2905.37 is limited to enjoining the sale and distribution of just that material which is lawfully presented to the court and which is determined to be obscene. Thus, the injunction must be set aside to the extent that it enjoins materials not determined by the court to be obscene. IV. The seized publications were the sole incriminating evidence of their alleged obscenity. The city offered no supporting evidence to establish that the books and magazines appealed to the prurient interest, were patently offensive to contemporary community standards, or were utterly without redeeming social value.14 The fourth assignment of error raises the question of whether, as a general evidentiary principle, the books and magazines, by themselves, can be sufficient proof of their obscenity. In Paris Adult Theatre I v. Slaton, an obscene film case, the Supreme Court observed that the "films, obviously, are the best evidence of what they represent," and, consequently, the court held that the prosecutor was not necessarily required to introduce additional expert evidence *Page 70 that the materials were obscene.15 Although a distinction can be drawn between a film and a book or magazine, it is mainly one of form, rather than substance. Both are mediums for conveying mental impressions and for stimulating thought. In terms of the fact finder's ability to comprehend the nature and context of these impressions and to evaluate their effect upon the human intellect, we perceive no essential difference between the two mediums. If a court or a jury needs no assistance from an expert witness in determining whether a film is obscene, it likewise will require no such assistance in evaluating material in print. Further, the Miller decision recognized that precisely what is "patently offensive" or appeals to the "prurient interest" is basically a question of fact, and that our adversary system has traditionally permitted lay jurors drawing on their community standards, and guided by instructions on the law, to make the ultimate findings of fact.16 Thus, based upon the Paris andMiller decisions, we cannot hold that a prosecutor must produce expert witnesses to establish the obscenity of seized materials.17 V. The fifth assignment of error claims that there was a misjoinder of the parties. Joseph Ricco was originally the sole defendant in this case. It was only after the trial court issued its permanaent injunction against him that the prosecutor sought to include seven new party defendants. Appellants maintain that the only reasons for this joinder *Page 71 was "to keep the same case number and assure the same judge, a result otherwise impossible to guarantee under the prevailing personal docket system in the common pleas court." The record does not disclose the prosecutor's motives in taking this unusual step, but regardless, we hold that it was error for the court to comply. As a civil action, a proceeding under R. C. 2905.37 is governed by the Rules of Civil Procedure, except where otherwise provided in the statutory scheme, Civ. R. 1(A). Civil Rule 20 controls the joinder of parties and provides in part: "All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence or succession or series oftransactions or occurrences and if any question of law or fact common to all defendants will arise in the action." (Emphasis added.) Even assuming that joinder is otherwise available once the court has entered a final judgment against the first party defendant, there is not the slightest shred of evidence indicating that the defendants shared in a common transaction or occurrence. As far as we can perceive, the defendants were eight different, independent bookstores, which shared the distinction of selling allegedly obscene publications. This common denominator does not furnish a sufficient nexus to warrant a joint trial of the defendants. The prosecutor chose to rest his case on the seized magazines and books themselves, without extended evidence relating to the elements of obscenity. And, save for a film which the court refused to admit, the appellants presented no evidence in defense. Thus, there was not the confusion and delay which can attend the complex amalgamation of unrelated facts and issues in a multifarious suit.18 VI. The sixth assignment of error presents the question of whether the trial court's finding that the seized materials *Page 72 are obscene. and therefore not protected by the First and Fourteenth Amendments, is supported by the evidence. Having determined that the books and magazines may be the sole evidence of their obscenity (see Part IV), it becomes the responsibility of this court as an appellate tribunal to review the material independently of the trial court's findings. Since obscenity cases in general must be decided on their own individual facts, and therefore, are of little precedential value, we find it unnecessary to launch into a graphic description of the evidence. Suffice to say that after a thorough review and examination of each of the books and magazines, we find that the trial court's judgment is supported by the evidence. VII. Appellants finally challenge the method by which the police took possession of the publications. As noted above, the books and magazines were seized (not purchased) on the basis of an on-the-scene evaluation by the police, without the benefit of an impartial review by a judicial magistrate. Relying on the teaching of Marcus v. Search Warrant (1961), 367 U.S. 717, andA Quantity of Copies of Books v. Kansas (1964), 378 U.S. 205, appellants argue that this procedure was too insensitive to "focus searchingly on the question of obscenity," and was therefore constitutionally defective. They contend that an adversary hearing should have preceded the seizure as the first step in these injunctive proceedings. This argument was rejected in substance by the Ohio Supreme Court in State v.Albini19 where the court held that a prior adversary hearing was not constitutionally required when police seized a single copy of a film incident to a warrantless arrest for violation of the obscenity laws. Subsequently, State v.Blair20 extended this principle to the seizure of books and magazines. However, these decisions no longer have the authority of binding precedent, because they were recently vacated by the United States Supreme Court and remanded for reconsideration in the wake of the Court's new obscenity *Page 73 rulings.21 Two of these rulings bear directly upon the constitutional need for warrants and adversary hearings prior to the seizure of allegedly obscene material. A. The Need for a Warrant In Roaden v. Kentucky22 a sheriff viewed a sexually explicit film at a local theater. He then seized the film and arrested the theater manager for violating the state's obscenity statute. Because the seizure and the arrest were accomplished without the authority of a warrant, the theater manager moved to have the film suppressed as evidence at the trial. The court overruled the motion and, upon appeal of Roaden's conviction to the state's high court, this ruling was upheld on the ground that the seizure was incident to a lawful arrest.23 Upon further appeal to the United States Supreme Court, the defendant's contention that the warrantless seizure was unreasonable under the Fourth and Fourteenth Amendments was finally sustained. The Supreme Court held that such seizure, in the absence of a warrant describing with particularity the "things to be seized," was a form of prior restraint upon the right of expression. Further, the court noted that this case, involving a film regularly scheduled for exhibition at a commercial theater, presented no exigent circumstances, such as the risk of the film's destruction, which might otherwise justify a warrantless seizure. With respect to warrant requirements of the Fourth Amendment, it must be remembered that the right guaranteed by this Amendment is a personal one, enjoyed by each citizen. As has been repeatedly stated, the Fourth Amendment's historic purpose is to protect the personal security of the individual in his home and in his place of business *Page 74 from unwarranted and arbitrary government intrusion.24 It should make little difference, therefore, whether a bookstore proprietor is subjected to a "massive" seizure of his stock in trade or simply one of quantitatively smaller proportions, designed to secure sample copies for future prosecution. In either case, there is governmental intrusion, and the personal security of the individual is disturbed. In either case, Fourth Amendment rights of the individual are threatened. We hold then that the Fourth Amendment requires that law enforcement officials must secure a warrant even where their purpose is to gather sample copies of books and magazines for use as evidence in a subsequent prosecution. It, of course, might be argued that Roaden might be distinguished on the grounds that there exists exigent circumstances in the case at bar, which the Roaden court found lacking in the case of regularly scheduled films. However, the burden of proving such circumstances has always been allocated to the party seeking the exemption from the warrant requirement.25 This burden was not met by the appellee city in the instant case. Nowhere in the course of the proceedings does the record disclose that the appellee attempted to establish that the exigency of the moment required seizure of the materials by the police prior to securing a search warrant. Further, while the record does disclose that in some of the bookstores an individual may have consented to the seizure of materials, there is no conclusive evidence that anyone withauthority to do so voluntarily consented to any of the searches or seizures.26 Consequently, we must conclude that the warrantless searches and seizures conducted at the stores of the eight defendants were unreasonable and violative of the Fourth Amendment. The trial court erred, therefore in not granting *Page 75 the motion to suppress the material which was the product of these illegal searches and seizures.27 B. The Need for a Prior Adversary Hearing Another recent case, Heller v. New York28 focuses on the need for an adversary hearing as a prerequisite to the issuance of a warrant. In Heller, the petitioner was arrested and convicted for exhibiting an obscene film. The film introduced at trial had been seized by police pursuant to a search warrant that had been issued ex parte by a magistrate who had personally seen the film. However, there was no adversary hearing, either before, or immediately after the seizure, to confirm the magistrate's finding of probable cause. It was only at the criminal trial itself, 47 days after the arrest and seizure, that the films received adversary scrutiny. Petitioner appealed his conviction to the Supreme Court, contending that the seizure was unconstitutional in the absence of a prior adversary hearing. The Court rejected this argument on the basis of the following facts disclose by the record: First, the purpose of the seizure was to preserve a copy of the film as evidence, not to subject it to a "final restraint," in the sense of being enjoined from exhibition or threatened with destruction; second the State of New York stood ready to grant immediate adversary hearings on pretrial motions challenging the seizure; third, the petitioner failed to request a prompt adversary hearing after the judicially authorized seizure, nor did he attempt to show that the seizure of the copy prevented continued exhibition of the film. Against this factual background, the Court sanctioned a procedure which, it concluded afforded adequate protection to the First Amendment guarantees while avoiding the burden of a prior adversary hearing.29 *Page 76 Thus, with respect to the need for an adversary hearing prior to the seizure of any allegedly obscene material, no extended discussion is required to conclude that appellants' argument has been rejected in principal if specified safeguards are present as enunciated by Heller v. New York, supra. As the above summary indicates, where (1) the material is seized to preserve it as evidence and not for the purpose of imposing a final restraint, and (2) a prompt adversary hearing is available, First Amendment freedoms are sufficiently protected where the seizure is preceded by the determination of probable cause made by a neutral magistrate prior to the issuance of a search warrant. Therefore, because the order of the trial court is based upon evidence which should have been suppressed, and because it contains a permanent injunction which is unlawfully broad, the order and decree issued on May 22, 1972, by the Court of Common Pleas is reversed and judgment granted for defendants appellants. Appellants are discharged. Judgment reversed. MANOS, C. J., and KRENZLER, J., concur. 1 These nuisance statutes have recently been upheld as a proper weapon for curbing obscenity. State, ex rel. Keating, v.Vixen (1973), 35 Ohio St.2d 215. 22905.37 [Enjoining sale or distribution of obscene material.] "(A) Where it appears that section 2903.14 or 2905.35 of the Revised Code is being or is about to be violated, the county prosecutor or chief executive or legal officer of a municipal corporation in the jurisdiction where such violation is taking place or is about to take place, may maintain an action in the common pleas court to enjoin the sale, distribution, or presentation of the obscene material or performance, or enjoin the sale, distribution, or presentation to minors under eighteen of the material or performance harmful to minors." 32905.35 [Production or dissemination of obscene material or performances.] "No person, with knowledge of the content and character of the obscene material or performance involved, shall make, manufacture, write, draw, print, reproduce, or publish any obscene material, knowing or having reasonable cause to know that such material will be sold, distributed, circulated, or disseminated; or sell, lend, give away, distribute, circulate, disseminate, exhibit, or advertise any obscene material; or write, direct, produce, present, advertise, or participate in an obscene performance; or possess or have in his control any obscene material with intent to violate this section; or offer or agree to do any act in violation of this section, or cause any such act to be done by another. "Whoever violates this section shall be fined not more than five thousand dollars or imprisoned not more than one year, or both, for a first offense, and for each subsequent offense shall be fined not more than ten thousand dollars or imprisoned not less than one nor more than seven years, or both." 4 § 2905.34: "As used in sections 2903.13 to 2903.16, inclusive, and sections 2905.39, inclusive, of the Revised Code: "(A) Any material or performance is `obscene' if, when considered as a whole and judged with reference to ordinary adults, any of the following apply: "(1) Its dominant appeal is to prurient interest; "(2) Its dominant tendency is to arouse lust by displaying or depicting nudity, sexual excitement, or sexual conduct in a way which tends to represent human beings as mere objects of sexual appetite; "(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality; "(4) It contains a series of displays or descriptions of nudity, sexual excitement, sexual conduct, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient interest, when the appeal to such interest is primarily for its own sake or for commercial exploitation, rather than for a genuine scientific, educational, sociological, moral, or artistic purpose. "(B) `Nudity' means the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering or any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state. "(C) `Sexual excitement' means the condition of human male or female genitals when in a state of sexual stimulation or arousal. "(D) `Sexual conduct' means masturbation, homosexuality, lesbianism sadism, masochism, natural or unnatural sexual intercourse, or physical contact with a person's clothed or unclothed genitals, public area, buttocks, or, if such person is a female, a breast. "(E) `Material' means any book, pamphlet, ballad, printed paper, phonographic record or tape, motion picture film, print, picture, figure, image, description, or other tangible thing capable of being used to arouse interest through sight, sound, or in any other manner. "(F) `Performance' means any motion picture, preview, play, show, skit, dance, or other exhibition performed before an audience." 5 41 U.S. L. W. 4925 (U.S. June 21, 1973). In State, exrel. Keating, v. Vixen (1973), 35 Ohio St.2d 215, the Ohio Supreme Court, in a Per Curiam opinion, held that ". . . the statutes applied in this cause . . . comport with the standards enunciated in Miller." The statutes sc applied were parts of both Sections 2905.34(A)(4) and 2905.35. The companion PerCuriam decision, State, ex rel. Sensenbrenner. v. Book Store (1973), 35 Ohio St.2d 220, interprets Vixen to hold flatly that Sections 2905.34 and 2905.35 comport with the Miller standards. 6 NAACP v. Alabama (1964), 377 U.S. 288, 307. 7 See note 4, supra. 8 (1966), 383 U.S. 413, 418. 9 41 U.S. L. W. 4925 (U.S. June 21, 1973). 10 Id. at 4927. 11 The concept of reviewability is to be distinguished from the concept of appealability, which focuses on the ripeness of finality of an order or judgment. See 4 Am. Jur. 2d, Appeal Error § 47, at 570 (1962). Thus, while an interlocutory order is normally said to be non-appealable in the sense that it is not final, it does not follow that it is non-reviewable once an appeal is properly filed. 12 Paris Adult Theatre I v. Slaton, 41 U.S. L. W. 4935, 4939 (U.S. June 21, 1973). 13 State, ex rel. Chalfin, v. Glick (1961), 172 Ohio St. 249,252; Commonwealth v. Boley (1971), 441 Pa. 495, 272 A.2d 905,908. 14 The "utterly without redeeming social value" test had not been rejected by the Supreme Court at this time. 15 41 U.S. L. W. 4935 (U.S. June 21, 1973). See, also,Kaplan v. California (1973), 37 L. Ed. 2d 492; and State v.Valchar (Cuyahoga Co., 1973), 34 Ohio App.2d 21, 25, in which this court held that with respect to material which was "hard core pornography," no expert testimony was needed to aid the trier of the facts in determining whether the material met the three-fold Roth test of obscenity. 16 41 U.S. L. W. 4925, 4929 (U.S. June 21, 1973). 17 The only reservation we place upon this holding is the one noted by the Supreme Court in Paris Adult Theatre: there may be the "extreme case * * * where contested materials are directed at such bizarre deviant group that the experience of the trier-of-fact would be plainly inadequate to judge whether the material appeals to the prurient interest." 41 U.S. L. W. at 4937 n. 6. The material in the case at bar does not present such an "extreme case." 18 See Henderson v. Ryan (1968), 13 Ohio St.2d 31, 38, which notes the point at which joinder becomes prejudicial. 19 (1972), 31 Ohio St.2d 27. 20 (1972), 32 Ohio St.2d 237. 21 Albini v. Ohio, 41 U.S. L. W. 3667 (U.S. June 25, 1973);Blair v. Ohio, 41 U.S. L. W. 3671 (U.S. June 25, 1973). 22 41 U.S. L. W. 5070 (U.S. June 26, 1973). 23 A warrantless search incident to a valid arrest has been one of the long recognized exceptions to the warrant requirements of the Fourth Amendment and has been upheld as reasonable on the grounds that it serves "the legitimate needs of law enforcement officers to protect their own well being and preserve evidence from destruction." United States v. UnitedStates District Court (1972), 407 U.S. 297; Chimel v.California (1969), 395 U.S. 752, 762-64. 24 Coolidge v. New Hampshire (1971), 403 U.S. 443, 455;Hoffa v. United States (1961), 385 U.S. 293, 301. 25 See, e. g., Coolidge v. New Hampshire (1971),403 U.S. 443, 455. 26 The person giving consent was variously referred to as, "the person in charge," "the proprietor," and "the individual in the place." 27 See Bumper v. North Carolina (1968), 391 U.S. 543;People v. Horman (1968), 29 App. Div. 2d 569, 589, N.Y.S.2d 642, aff'd 22 N.Y.2d 378, 239 N.E.2d 625, which extend the exclusionary rule to proceedings which are arguably civil in nature. 28 41 U.S. L. W. 5067 (U.S. June 25, 1973). 29 "If * * * a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and following the seizure, a prompt judicial determination of the obscenity issue an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary hearing. Otherwise, the film must be returned." Id. at 5069-70. *Page 77

2016-07-06 06:42:05.33619+00

Bowman

Appellee, Addison Clipson, has been the Buildings Plan Examiner for the village of Woodlawn since 1978 and, as such, holds Class I (Building Officer), Class II (Plans Examiner), and Class III (Building Inspector) certifications issued by the state of Ohio. In 1988, Charles F. Ware ("Ware"), President of Queen City Builders, submitted plans to the Woodlawn Building Department for a permit to construct a warehouse with approximately seventy-eight hundred square feet. In response, Clipson notified Ware on June 22, 1988, that the plans could not be processed unless the sprinkler permit had been issued in accordance with the provisions of village of Woodlawn Code, Section 1464.09.1 The ordinance required buildings with more than seventy-five hundred square feet to have a sprinkler system. After repeated attempts to contact Clipson at the municipal building, as well as Clipson's private office, to resolve any difficulties, Ware eventually submitted plans for a building of six thousand eight hundred square feet, which were subsequently approved. On August 8, 1988, Ware filed a complaint with the Board of Building Standards ("board") alleging Clipson violated the Ohio Basic Building Code ("Code") by failing to have regular business hours and making himself available to the public and by enforcing a local ordinance that conflicted with the Code. After properly serving Clipson with notice, pursuant to R.C. Chapter 119, the board conducted a hearing at which Clipson appeared and presented his case, although he was not represented by counsel. The board voted to revoke Clipson's Class I, II and III certifications for a violation of Ohio Adm. Code *Page 748 4101:2-1-45(L) and for enforcing provisions of a local ordinance which conflicted with the Code. The board's order specifically stated: "ORDER OF THE BOARD OF BUILDING STANDARDS "The Board of Building Standards of the Ohio Department of Industrial Relations on this 28th day of October, 1988, made the following order: "It is ordered that the Class I, II, and III certifications of Mr. Addison Clipson be revoked because he refused to schedule a meeting with Mr. Charles F. Ware as required by rule4101:2-1-45(L) of the Administrative Code and because Mr. Clipson enforced provisions of local ordinances which directly conflicted with rules of the Board of Building Standards which he is certified to enforce, and causing violations of Sections4101:2-1-83(A)(3), 4101:2-1-49(A), 4101:2-1-23(A), and4101:2-17-02, Ohio Administrative Code." Clipson appealed to the Franklin County Court of Common Pleas, which reversed the decision of the board on the basis that the board's order was not supported by reliable, probative and substantial evidence, and was not in accordance with law. Specifically, the trial court found that one instance where Clipson was not available at his office did not support revoking Clipson's certification and that the testimony of Ware was not reliable and was of little probative value. Further, the trial court found that there was no conflict between Woodlawn's ordinance and the Code, because no court had found such a conflict to exist. Appellant sets forth the following assignments of error: "I. The trial court erred in reversing the order of the Board of Building Standards when that order was a proper exercise of the Board's authority and is supported by reliable, probative and substantial evidence. "A. The Board of Building Standards properly revoked Appellee's Class I, II and III certifications. "B. The order of the Board of Building Standards is supported by reliable, probative and substantial evidence and is in accordance with law. "II. The trial court erred in its decision that the concepts of due process were violated." Appellant's assignments of error are related and will be addressed together. In determining whether the board's order was supported by the requisite quantum of evidence, a trial court must, to a limited extent, weigh the evidence. In Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 111, 17 O.O.3d 65, 67, 407 N.E.2d 1265, 1267-1268, the court stated: "In undertaking this hybrid form of review, the Court of Common Pleas must give due deference to the administrative resolution of evidentiary *Page 749 conflicts. For example, when the evidence before the court consists of conflicting testimony of approximately equal weight, the court should defer to the determination of the administrative body, which, as the factfinder, had the opportunity to observe the demeanor of the witnesses and weigh their credibility. However, the findings of the agency are by no means conclusive. "Where the court, in its appraisal of the evidence, determines that there exist legally significant reasons for discrediting certain evidence relied upon by the administrative body, and necessary to its determination, the court may reverse, vacate or modify the administrative order. Thus, where a witness' testimony is internally inconsistent, or is impeached by evidence of a prior inconsistent statement, the court may properly decide that such testimony should be given no weight. Likewise, where it appears that the administrative determination rests upon inferences improperly drawn from the evidence adduced, the court may reverse the administrative order." In reviewing a decision of the court of common pleas, this court must determine whether it abused its discretion. Kinney v.Dept. of Admin. Services (1984), 14 Ohio App.3d 33, 14 OBR 37,469 N.E.2d 1007. The board is authorized, pursuant to R.C. 3781.10(E), to certify a municipal building department to exercise enforcement authority, accept an approved plan, and to make inspections. This provision also authorizes the board to certify personnel of municipal building departments to exercise these duties and states: "The board also shall certify personnel of municipal, township, and county building departments, and persons and employees of persons, firms, or corporations as described in divisions (E)(1) and (2) of this section, to exercise enforcement authority, to accept and approve plans and specifications, and to make inspections, pursuant to sections3781.03 and 3791.04 of the Revised Code. The board shall specify, in rules adopted pursuant to Chapter 119. of the Revised Code, the requirements that shall be satisfied for certification purposes, which requirements shall be consistent with this division. * * *" Pursuant to this authority, the board adopted Ohio Adm. Code4101:2-1-45(K) and (L), which provide: "(K) The building department shall have an office conveniently located within the area it serves. The office shall be open and staffed to serve the public need and office hours shall be conspicuously posted; "(L) All inspectors shall be available at such time mutually agreed upon by both the department and the owner or his representative * * *[.]" R.C. 3781.10 and Ohio Adm. Code 4101:2-1-83 authorize the board to suspend or revoke certifications. *Page 750 As the holder of a Class I certification, Clipson was designated as a building officer with responsibility for overall administration of a certified building inspection department and, as a holder of a Class III certificate, Clipson was a building inspector subject to Ohio Adm. Code 4101:2-1-45(L). A Class III building inspector is defined in Ohio Adm. Code4101:2-1-78(A)(3) as follows: "Class III certificate of competency qualifies a person to be designated as a building inspector with the responsibility for the inspection of building construction to determine compliance with the approved plans." The building department of the village of Woodlawn is located in the village municipal building with hours from 8 a.m. to 4:30 p.m.; however, inasmuch as Clipson was not a village employee, but was an architect with his own office, he usually stopped at the municipal building only around noon each day. Upon receiving Clipson's letter of August 1988, stating the proposed building could not be processed until the plans complied with the local ordinance, Ware visited and telephoned the building inspection office and visited and telephoned Clipson's place of business. On August 1, 1988, Clipson specifically instructed Ware, in writing, not to come to his place of business and further stated: "One of our contracts is with the Village of Woodlawn to provide services in regard to enforcement of the OBBC and the Zoning Ordinance. All of such business is scheduled by and routed through the Municipal Clerk, not my firm's office. I request that you discontinue calling our office in regard to projects of interest to the Building Commissioner. You will find the Municipal Clerk prompt and efficient." While not a model of clarity, a reasonable interpretation of Clipson's letter to Ware, along with the testimony before the board, was a request to route business requests through the municipal clerk, including requests for appointments. While Ware's testimony was replete with references to unanswered phone calls, Clipson also testified that he attempted to return some of the calls but was unable to reach Ware. There was no evidence from which it could be found or even inferred that Ware specifically requested, or Clipson specifically refused, to meet with Ware. Rather, the evidence supports a finding of missed communications. Further, as defined in Ohio Adm. Code 4101:2-1-78(A)(3),supra, as a holder of a Class III building inspector certificate, Clipson was responsible for the inspection of building construction to determine compliance with approved plans. At the time Ware filed a complaint with the board, building construction had not commenced and Clipson was not yet acting in his capacity as a building inspector. Hence, Ohio Adm. Code 4101:2-1-45(L) is not *Page 751 applicable to the facts presented here and the trial court did not abuse its discretion in finding the board's order was not supported by reliable, probative and substantial evidence. The board also found that Clipson had enforced a local ordinance that was in conflict with the Code. R.C. 3781.10 provides in part: "The board of building standards shall: "(A) Formulate and adopt rules governing the erection, construction, repair, alteration, and maintenance of all buildings or classes of buildings specified in section 3781.06 of the Revised Code, including land area incidental thereto, the construction of industrialized units, the installation of equipment, and the standards or requirements for materials to be used in connection therewith. The standards shall relate to the conservation of energy in and to the safety and sanitation of such buildings. The rules shall be the lawful minimumrequirements specified for such buildings or industrialized units, except that no rule, except as provided in division (C) of section 3781.108 of the Revised Code, which specifies a higher requirement than is imposed by any section of the Revised Code shall be enforceable * * *." (Emphasis added.) R.C. 3781.11(A)(1) provides: "(A) The rules of the board of building standards shall: "(1) Provide uniform minimum standards and requirements for construction and construction materials, including construction of industrialized units, to make buildings safe and sanitary as defined in section 3781.06 of the Revised Code[.]" Pursuant to the above statutory authority, the board adopted Ohio Adm. Code 4101:2-17-02,2 which provided in pertinent part: "1002.1 Where required: Fired suppression systems shall be installed and maintained in full operating condition, as specified in this code, in the locations indicated in Sections 1002.2 through 1002.21. "* * * "1002.9 Use Groups M, S-1 and F-1: In all buildings or structures or portions thereof of Use Groups M, S-1 and F-1: "1. When more than 12,000 square feet (1116 m2) in area * * *[.]" The building proposed to be constructed by Ware fell within a S-1 use group and, as originally planned, had seventy-eight hundred square feet and *Page 752 would not have required a fire suppression system based on the requirements of the state code. R.C. 3781.01 authorizes municipal corporations also to adopt building regulations and provides: "Chapters 3781. and 3791. of the Revised Code do not prevent the legislative authority of a municipal corporation from making further and additional regulations, not in conflict with such chapters or with the rules and regulations of the board of building standards. Such chapters or the rules and regulations of the board of building standards do not modify or repeal any portion of any building code adopted by a municipal corporation and in force on September 13, 1911, which is not in direct conflict with such chapters or with such rules and regulations." The village of Woodlawn passed Ordinance No. 51-1986 enacting Chapter 1464, which provided in Section 1464.09 that warehouse buildings with more than seven thousand square feet had to have an automatic sprinkler system. Section 3, Article XVIII, of the Ohio Constitution grants to municipalities the authority to "* * * exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. * * *" R.C. 3781 and 3791 are general laws of the state. Niehaus v.State, ex rel. Bd. of Edn. (1924), 111 Ohio St. 47,144 N.E. 433; West Jefferson v. Robinson (1965), 1 Ohio St.2d 113, 30 O.O.2d 474, 205 N.E.2d 382. In determining whether an ordinance is in conflict with the general laws of the state, the test is whether the ordinance permits or licenses that which the statute prohibits and vice versa. Struthers v. Sokol (1923), 108 Ohio St. 263,140 N.E. 519. Here, since the statute provides the rules and regulations of the board are minimum standards and that a municipal corporation is authorized to adopt its own ordinance, no conflict exists under the facts of this case. A conflict would exist only if the village of Woodlawn ordinance permitted construction of a building in a S-1 category of more than twelve thousand square feet without a sprinkler system. To the extent appellant relies on Eastlake v. Bd. of Bldg. Stds. (1981), 66 Ohio St.2d 363, 20 O.O.3d 327, 422 N.E.2d 598, such reliance is misplaced. The issue in Eastlake was whether the city could enforce an ordinance which directly conflicted with a specific state statute. R.C. 3791.04 specifically provided that once industrialized units were approved by the state, no other approval was required and the particular industrialized unit could then be used anywhere in Ohio and, hence, the ordinance of the city of Eastlake which imposed further restrictions was in *Page 753 conflict with a general law of the state. Thus, Eastlake is limited in its application to the specific facts at issue and does not apply, as appellant argues, to any variation between the Code and a local ordinance. Thus, the trial court was correct in its finding that no conflict existed. To the extent the trial court found a denial of due process through the board's determination that a conflict existed between its rule and the local ordinance, the trial court was in error. An administrative agency has the authority to initially interpret and determine the validity of its rules. For the foregoing reasons, appellant's assignments of error are overruled and the judgment of the trial court is affirmed. Judgment affirmed. WHITESIDE and EVANS, JJ., concur. JOHN R. EVANS, J., of the Third Appellate District, sitting by assignment. 1 This provision was repealed by the Woodlawn Council on April 11, 1989. 2 Ohio Adm. Code 4101:2-17-02 was repealed in January 1989 and these provisions are now set forth in Ohio Adm. Code4101:2-10-02 and Article 10 of the Ohio Basic Building Code.

2016-07-06 06:42:05.551494+00

McManamon

Appellant, John B. Hootman, challenges a judgment of the Berea Municipal Court which found him personally liable for city of Strongsville taxes withheld from the employees of his co-defendant below, Brookfield Homes, Inc. ("Brookfield"). Appellant has filed no App. R. 9(C) statement or other record of the trial conducted on March 16, 1983 and he submits this appeal based upon the briefs, the original papers, the exhibits filed in the trial court and certified copies of the docket and journal entries. The amended complaint filed by appellee city of Strongsville alleges that Hootman was jointly liable with Brookfield for withheld income taxes of $3,420.26 because he had signed "relevant documents" while acting in a "fiduciary capacity" on behalf of Brookfield. The appellant raises one assignment of error in the court's judgment for the full amount claimed against both defendants below: "The trial court erred in rendering judgment against defendant John B. Hootman for withholding taxes owed by defendant Brookfield Homes, Inc." Hootman argues that he cannot be personally liable for withholding taxes owed by Brookfield because under Strongsville Municipal Ordinance 191.17(C) only an "employer" can be liable to the city for such taxes. He contends that the appellee has neither alleged nor proved that he was an "employer" within the purview of this ordinance. Appellant posits that, in the absence of a specific statutory enactment, he cannot be held personally liable for withheld taxes simply because of his position as an officer of Brookfield. Strongsville Municipal Ordinance 191.17 mandates the collection of a wage tax by each "employer." This section provides in part: "(a) In accordance with rules and regulations prescribed by the Administrator, each employer within or doing business within the City shall deduct, at the time of the payment of such salary, wages, commission or other compensation, the tax at its then applicable percentage of the gross salaries, wages, commissions or other compensation due by the employer to the employee, and shall, on or before the last day of each month, make a return and pay to the Administrator the amount of taxes so deducted during the previous month. However, if the amount of the tax so deducted by an employer in any one month is less than one hundred dollars ($100.), the employer may defer the filing of the return and payment of the amount deducted until the last day of the month following the end of the *Page 195 calendar quarter in which such month occurred. "(b) Such returns shall be on a form or forms prescribed or acceptable to the Administrator and shall be subject to the rules and regulations prescribed therefor by the Administrator. Such employer shall be liable for the payment of the tax required to be deducted and withheld whether or not such taxes have, in fact, been withheld. "(c) Such employer in collecting the tax shall be deemed to hold the same until payment is made by such employer to the City as a trustee for the benefit of the City, and any such tax collected by such employer from his employees shall, until the same is paid to the City be deemed a trust fund in the hands of such employer." Subsection (a) clearly imposes an affirmative duty upon every employer within the city to deduct city income taxes from the salaries, wages, commissions and any other compensation paid each employee. Under subsection (c) the monies collected are deemed a trust fund in the hands of the employer as trustee. The employer has no legal right or interest in such withheld funds and would undeniably be liable for their loss or misuse. See State, ex rel.Bettman, v. Canfield Oil Co. (1929), 34 Ohio App. 267, 275, andBilovocki v. Marimberga (1979), 62 Ohio App.2d 169, 171-172 [16 O.O.3d 369]. Strongsville Municipal Ordinance 191.02(g) defines "employer" in the following terms: "'Employer' means an individual, partnership, association, corporation, government body, unit or agency, or any other entity, whether or not organized for profit, who or that employs one or more persons on a salary, wage, commission or other basis of compensation." While an employer may also be an individual under the ordinance, it is admitted by the appellee that this action is maintained against appellant in his capacity as a fiduciary or officer of Brookfield, which is the employer. It is well-established in Ohio that: "Strict construction of taxing statutes is required, and any doubt must be resolved in favor of the citizen upon whom or the property upon which the burden is sought to be imposed." Davis v.Willoughby (1962), 173 Ohio St. 338 [19 O.O.2d 270], paragraph one of the syllabus. See, also, Gulf Oil Corp. v. Kosydar (1975),44 Ohio St.2d 208 [73 O.O.2d 507]. This principle requires us to construe Strongsville's municipal tax ordinances in favor of appellant. Since the ordinances fail to impose personal liability upon corporate directors, officers, or employees who may be responsible for tax collection, it was error for the trial court to hold appellant jointly liable with Brookfield for the subject taxes. This conclusion is buttressed by reference to legislation enacted by the Ohio Legislature and the United States Congress. As in the instant case, both of these legislative bodies have enacted statutory provisions providing that wage withholding taxes collected by an employer are deemed held in trust for the benefit of the government entity involved.1 *Page 196 Specific statutes have also been enacted which hold various corporate agents personally liable for the collection of taxes and administration of the tax trust fund. R.C. 5747.07(G) provides: "The officer or the employee having control or supervision of or charged with the responsibility of filing the report and making payment, is personally liable for failure to file the report or pay the tax due as required by this section. The dissolution of a corporation does not discharge an officer's or employee's liability for a prior failure of the corporation to file returns or pay tax due." See, also, Section 6672, Title 26, U.S. Code, which provides in part: "Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 for any offense to which this section is applicable;" Section 6671(b), Title 26, U.S. Code defines "person" in the following terms: "The term `person', as used in this subchapter, includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." We find that appellee has not chosen to enact such specifying legislation and cannot expand its ordinance by judicial action. The assignment of error is well-taken. Accordingly, the judgment against appellant is reversed. This cause is remanded to the Berea Municipal Court for further proceedings consistent with this entry. Judgment reversed and cause remanded. CORRIGAN, P.J., and NAHRA, J., concur. 1 R.C. 5747.07(E) provides in part: "Each employer required to deduct and withhold any tax is liable for the payment of that amount required to be deducted and withheld, whether or not such tax has in fact been withheld, unless the failure to withhold was based upon the employer's good faith in reliance upon the statement of the employee as to liability and such amount shall be deemed to be a special fund in trust for the general revenue fund." Section 7501(a), Title 26, U.S. Code, provides: "Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose."

2016-07-06 06:42:05.737967+00

Vukovich

The following appeal arises from the decision of the Mahoning County Court of Common Pleas dismissing a complaint alleging tortious interference with a contract. For the reasons set forth below, the decision of the trial court is reversed and this cause is remanded. I. FACTS On July 16, 1997, Louis Schiavoni, Esq. filed a complaint in the Mahoning County Court of Common Pleas sounding in tortious interference with a contractual relationship. The complaint alleged that Steel City Corporation, appellee, interfered with a contract between Louis Schiavoni and Steven Olenick as related to Olenick's Ohio Workers' Compensation claim. Schiavoni alleged that he had entered into a contract with Olenick which would entitle him to a one-third contingency fee in return for his representation of Olenick regarding the Workers' Compensation claim. Furthermore, Schiavoni alleged that appellee commenced *Page 316 settlement negotiations and ultimately secured an agreement which settled the claim without his knowledge. These actions were viewed not only as depriving Schiavoni of his one-third fee under the contract but also as having settled the claim for much less than its actual value. On July 25, 1997, the complaint was amended to add Schiavoni Schiavoni, L.P.A. as a plaintiff to the foregoing action. As such, Louis Schiavoni, Esq. and Schiavoni Schiavoni, L.P.A. will collectively be referred to as "appellants" herein. On August 19, 1997, appellee filed its answer to the complaint in conjunction with a motion to dismiss appellants' complaint for failure to state a claim upon which relief can be granted pursuant to Civ. R. 12(B)(6). In its motion, appellee argued that appellants had failed to properly allege all elements of an action for tortious interference with a contractual relationship and as such the complaint should be dismissed. Appellants responded to appellee's motion on September 24, 1997, when they filed a memorandum opposing defendant's (appellee's) motion to dismiss. Additionally, appellants filed a second amended complaint upon leave of the trial court. Having reviewed the respective arguments, the trial court sustained appellee's motion to dismiss on October 14, 1997. In doing so, the trial court noted that the actions of appellee in dealing directly with Olenick and thereby circumventing appellants did not constitute tortious interference with a contractual relationship. In the trial judge's words, in circumstances such as these, counsel should "'save the stamp' and write off as a bad experience or a good learning experience, whichever applies, and don't let it happen again." It is from this decision that appellants filed a timely notice of appeal on October 21, 1997. Appellants allege a single assignment of error on appeal. II. ASSIGNMENT OF ERROR Appellants' assignment of error reads: "THE TRIAL COURT ERRED IN SUMMARILY DISMISSING THE COMPLAINT PURSUANT TO CIVIL RULE 12(B)(6) FOR FAILURE TO STATE A CLAIM WHERE THE COMPLAINT, AS AMENDED, SET FORTH ALL ESSENTIAL ELEMENTS NECESSARY TO STATE A CAUSE OF ACTION FOR TORTIOUS INTERFERENCE WITH CONTRACT AS SET FORTH BY THE OHIO SUPREME COURT IN Kenty v. Transamerica Premium Ins. Co. (1995), 72 O.S.3d 415." Appellants argue that the trial court improperly dismissed their complaint as all essential elements of the tort had been alleged. In that the trial court was dealing with a Civ.R. 12(B)(6) motion, appellants contend that all material allegations in the complaint and all reasonable inferences drawn therefrom had to be construed in their favor. If the trial court had properly applied this standard, *Page 317 appellants conclude that the motion to dismiss should have been overruled and the complaint should have been heard on its merits. A. APPLICABLE LAW A motion to dismiss for failure to state a claim can only be granted when it appears "beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." Cleveland Elec. Illuminating Co. v. Public UtilitiesComm. (1996), 76 Ohio St.3d 521, 524 citing O'Brien v. Univ.Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245. Further, the factual allegations of the complaint as well as all reasonable inferences derived therefrom must be taken as true when addressing a motion to dismiss pursuant to Civ.R. 12(B)(6). Vail v. The Plain Dealer Publishing Co. (1995),72 Ohio St.3d 279, 280. In resolving a motion to dismiss for failure to state a claim upon which relief can be granted, a trial court may only look to the complaint to determine whether the allegations are legally sufficient to state a claim. Hansonv. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548. A trial court may not use the motion to summarily review the merits of the cause of action. State ex. rel. Martinelli v.Corrigan (1994), 68 Ohio St.3d 362, 363. Appellate review of a ruling on a motion to dismiss for failure to state a claim presents a question of law.Cleveland Elec. Illuminating Co., supra at 523. As such, we shall address this matter using a de novo standard of review. The Ohio Supreme Court first formally recognized a cause of action for tortious interference with a contract in Kenty v.Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415. In this decision, the Court set forth the elements of such an action as follows: (1) the existence of a contract; (2) the wrongdoer's knowledge of the contract; (3) the wrongdoer's intentional procurement of the contract's breach; (4) lack of justification; and (5) resulting damages. Id. at 419. In the event a complaint fails to provide allegations regarding each of these elements, the complaint can properly be dismissed for failure to state a claim upon which relief can be granted. B. ANALYSIS The resolution of this appeal turns upon the sufficiency of the allegations in appellants' complaint as related to the elements of a tortious interference with a contract cause of action. Appellants' complaint states in relevant part as follows: *Page 318 "3. Plaintiff alleges that on September 13, 1995, Plaintiff entered into a contingency fee agreement with Steven Olenik [sic] (hereinafter referred to as "Client") to represent Client in his Workers' Compensation claim. * * * 4. Defendant had actual or constructive knowledge that the Client was represented by counsel and that Plaintiff had a contract with Client. 5. Plaintiff further states that after vigorously representing Client for two years, Defendant, knowing that Client was still represented by counsel, intentionally, wilfully and wrongfully solicited Client in an effort to settle Client's Workers' Compensation claim without said Plaintiff's knowledge or consent, in order to induce client to breach his contract with Plaintiff. 6. Defendant, without justification, thereafter secretly concluded a settlement directly with Client without the Plaintiff's knowledge, consent or participation, and wrongfully induced Client to settle the case without notifying or consulting Client's counsel of record, and to otherwise breach his contract with Plaintiff. 7. Plaintiff further alleges that the realistic and reasonable value of the claim was $10,000.00, and that the Defendant Employer settled said claim directly with the client in a deliberate, willful and deceitful (but ultimately successful) effort to reduce or minimize its liability in the matter, thereby directly and proximately causing economic damages to the Client and to the Plaintiff, his counsel. 8. Plaintiff further states that Defendant's aforementioned wrongful conduct and actions constituted a tortious interference with Plaintiff's professional and business relationship with his Client, and with the Plaintiff's contingency contract with his Client. 9. Plaintiff sustained economic damages as a direct and proximate result of Defendant's said tortious interference, in that Plaintiff was deprived of his lawful one-third contingency fee in the matter, together with reimbursement of any out-of-expenses [sic] incurred in connection with the client's claim, if any." Assuming all of the facts alleged in appellant's complaint are true, this court must hold that the complaint addresses all of the elements of a tortious interference with a contract cause of action. Throughout appellant's complaint, references are made to the existence of a contract between appellants and Olenick in regards to his Workers' Compensation claim. Appellants meet the second element for their cause of action when they allege appellee had knowledge of the contract. In paragraph five appellants allege that appellee induced Olenick to breach the contract which had been entered into with appellants. Appellants further set forth sufficient allegations in paragraph six of their complaint to satisfy the fourth element established in Kenty, supra. Finally, appellants adequately allege damages in paragraphs seven and nine of their complaint when *Page 319 they allege that they not only lost out on their fee but the actual value of the claim was also reduced as a result of appellee's surreptitious actions. Having independently and thoroughly examined appellants' complaint and having construed the facts and all inferences therefrom as being true, this court finds that the trial court improperly dismissed appellants' complaint pursuant to Civ.R. 12(B)(6). The case sub judice does not present a situation whereby appellants are unable to prove any set of facts which would entitle them to recovery. All elements of the cause of action have been sufficiently pled and therefore, this action must be permitted to proceed at the trial court level. As discussed in Corrigan, supra, a motion to dismiss is not an opportunity for a trial judge to address the matter on its merits. The sole issue before a trial judge is whether or not the facts as alleged in the complaint, if construed as true, establish the cause of action provided for in the complaint. In the event facts are speculative or subject to multiple interpretations, a question of fact arises which shall be settled by the trier of fact. The sole requirement to survive a motion to dismiss and which has been provided in the case at bar are allegations as to the elements of the cause of action. If this court were to adopt the trial court's position, we would essentially be granting carte blanche to insurance companies, employers and the like to contact represented parties and negotiate settlements outside the presence of counsel. Such a decision would serve only to invite abuses and encourage exploitation. While the trial court tells counsel to write the occurrence off and "don't let it happen again", counsel has been rendered powerless to prevent a reoccurrence in light of the trial court's decision in this matter. The trial court's decision to dismiss the case despite the fact that appellants adequately pled a cause of action, disposes of any recourse which appellants may have utilized to discourage similar acts in the future. Therefore, this court holds that appellants' sole assignment of error has merit. For the foregoing reasons, the decision of the trial court is reversed and this cause is remanded for further proceedings according to law and consistent with the holding of this court's opinion. Cox, P.J., concurs. Waite, J., concurs. ____________________________ JOSEPH J. VUKOVICH, JUDGE *Page 320

2016-07-06 06:42:05.790112+00

Whiteside

This is an appeal from the decision of the Board of Tax Appeals finding a 7.246-acre tract of land owned by appellant, Welch Avenue Freewill Baptist Church, not to be exempt from real estate taxation because such tract is not currently used for any purpose, and there is no indication that the tract will be used for an exempt use within a reasonable time. Appellant seeks exemption of a 7.246-acre tract of land adjacent to a 5.759-acre tract of land, which is exempted and upon which is located a church building and a school house operated by the church. Adjacent to the latter tract is a 2.153-acre tract, also exempted, upon which is located a second school building, with the remainder of the tract being used as a playground and for a parking lot. The 7.246-acre tract sought to be exempt, consisting of two tax parcels, was vacant and overgrown with weeds and underbrush at the time that the application for exemption was filed. Appellant intends to lay out a football field, soccer field and tennis courts upon this tract so as to provide recreational accommodations for the students in attendance at its schools. Once the improvements, including bleachers, were in place, the property also would be used by appellant for outdoor worship services. The land sought to be exempt is not currently being put to any use; however, appellant has plans to use the property in an exempt manner as soon as it is able to do so and is working to achieve that goal by soliciting funds. In working toward the proposed goal, appellant has cleared the tract of dense underbrush and performed some excavation work but has conducted no active fund-raising campaign for the sole purpose of improving this tract and has set no proposed completion date for *Page 197 the improvement. Presently, appellant lacks the funds necessary to implement its plans for the property in question. The foregoing are essentially the factual findings made by the Board of Tax Appeals from which it concluded that there is no indication that an exempt use will be made of the property within a reasonable time and, accordingly, found the property not to be exempt. Appellant raises four assignments of error, the first two of which read as follows: "1. The Board of Tax Appeals erred in finding and determining based upon [the] existing record and * * * [as] a matter of law that the 7.246 acres of allegedly vacant land of the Appellant is not used exclusively for or necessary for the purposes of public worship pursuant to section 5709.07 of the Ohio Revised Code. "2. The Board of Tax Appeals erred in finding and determining based upon [the] existing record and * * * [as] a matter of law that the Appellant failed to carry its burden of proof to establish a right to real property tax exemption under Section5709.07 of the Ohio Revised Code for the 7.246 acres of allegedly vacant land of Appellant." Appellant raises no direct contention that the factual findings of the Board of Tax Appeals are erroneous but, rather, contends that the conclusion from those factual findings, that appellant is not actively working toward use of the subject property for solely religious purposes, is unreasonable. Appellant seeks exemption of this presently unused tract of land pursuant to R.C. 5709.07, which provides in part that: "* * * houses used exclusively for public worship, the books and furniture therein, and the ground attached to such buildings necessary for the proper occupancy, use, and enjoyment thereof * * * shall be exempt from taxation. * * *" In construing this section, the Supreme Court in Holy Trinity Protestant EpiscopalChurch v. Bowers (1961), 172 Ohio St. 103 [15 O.O.2d 173], held in the syllabus, as follows: "A religious institution which purchases vacant land for the purpose of erecting a house of worship thereon is entitled to have such land exempted from taxation, where such institution is actively working toward use of such land for the public benefit; and the intent to make such a use of the land may be evidenced by a showing that plans had been prepared and funds were available, or were to be available, to effectuate actual construction of such house of worship within a reasonable time from the filing of the application for exemption." Assuming the purposes for which appellant eventually intends to use the tract are sufficiently related to religion or the religious use of the other tract, the issue is whether appellant "is actively working toward" such use. As noted in Holy Trinity, such intent may be evidenced by demonstrating that plans have been prepared, and funds are available or will be available for actual construction of the necessary improvements "within a reasonable time" after filing the application for exemption. The Board of Tax Appeals found to the effect that, rather than actual plans having been prepared, appellant demonstrated only hopes and expectations of improving the property for use at some unspecified time in the future. Funds for the purpose were not available, and no means of acquiring necessary funds were demonstrated. Under the evidence adduced, the finding of the Board of Tax Appeals that appellant has not met the Holy Trinity test is neither unreasonable nor unlawful. Thus, the first two assignments of error are not well-taken. The finding of the board that the vacant land is not used exclusively for or necessary for the purposes of public worship, within the meaning of R.C.5709.07, is neither unreasonable nor unlawful. Likewise, the board's finding that appellant has not demonstrated a *Page 198 right to exemption under R.C. 5709.07 is neither unreasonable nor unlawful. Appellant's third and fourth assignments of error raise constitutional issues and read as follows: "3. The decision of the Board of Tax Appeals violates the letter and spirit of Article I, Section 7 of the Constitution of the State of Ohio which states in pertinent part: "`* * * [I]t shall be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment * * * [of] its [own] mode of public worship * * *.' "4. The decision of the Board of Tax Appeals results in a violation in the rights of the Appellant as protected by the religion clauses of the First Amendment to the United States Constitution." We find no merit to either of these assignments of error. The decision of the Board of Tax Appeals was made pursuant to the statutory provisions by which it is controlled, and specifically, R.C. 5709.07 in the present instance. Although before the Board of Tax Appeals appellant also relied upon R.C.5709.12 and 5709.121, no issue with respect thereto has been raised on appeal. Both of these sections require actual use of the property for a charitable purpose. No such use is demonstrated. Likewise, other statutes cited by appellant, including R.C.5709.13, 5709.14, 5709.16, 5709.17 and 5709.18, all require actual use of the property for the appropriate exempt purpose before exemption is granted, although R.C. 5709.13 does permit exemption where the income, rather than the property itself, is used for an exempt purpose under certain circumstances. In any event, we find no basis for finding a violation of either the Ohio or United States Constitutions with respect to the exercise of religion, or the duty of the General Assembly to protect religion. There is nothing in the record indicating that the action of the Board of Tax Appeals in properly applying R.C.5709.07 somehow violates appellant's religious freedom or creates an establishment of religion or denies appellant the peaceable enjoyment of public worship. The finding of the Board of Tax Appeals, which is not unreasonable but is supported by evidence, is that the land in question is not used for any purpose at the present time, although appellant has hopes and expectations of using the tract for recreational purposes and possibly also for outdoor worship services at some unforeseeable time in the future. When and if appellant's hopes and expectations come into fruition sufficiently to meet the Holy Trinity test, appellant may again apply for exemption from taxation. At present, however, we find no interference with any of appellant's religious rights or any of appellant's statutory rights, the record being clear that all property actually devoted by appellant to religious-related use is being treated as tax exempt. For the foregoing reasons, all four assignments of error are overruled, and the decision of the Board of Tax Appeals is affirmed. Decision affirmed. MCCORMAC and NORRIS, JJ., concur.

2016-07-06 06:42:05.920465+00

Nahra

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 319 Spremulli's American Service ("SAS"), plaintiff-appellant, appeals the court of common pleas' grant of summary judgment in favor of Cincinnati Insurance Company ("Cincinnati Insurance"), defendant-appellee. SAS was issued an insurance policy by Cincinnati Insurance which covered SAS's business premises at 19548 Detroit Road, Rocky River, Ohio. Issued in 1984, such policy covered the period of July 8, 1984 to July 8, 1989. On October 11, 1986, a retaining wall located behind SAS's business premises was damaged by a contractor who had been hired to undertake certain other construction activities. SAS submitted a claim to Cincinnati Insurance for the damage to the retaining wall. However, Cincinnati Insurance denied the claim since the policy did not cover the loss in question. SAS then filed a complaint against the contractor who was also insured by Cincinnati Insurance. On September 20, 1989, approximately three years after the retaining wall was damaged, SAS filed its claim against Cincinnati Insurance for the amount of the loss. In count one of its complaint, SAS sought recovery under the policy it had with Cincinnati Insurance; in count two, SAS sought compensatory and punitive damages against Cincinnati Insurance for the bad-faith denial of its claim. On February 15, 1990, Cincinnati Insurance filed a motion for summary judgment on the basis that SAS's action was barred by the one-year limitation period contained in the policy and that the loss in question was not covered under the policy. On March 27, 1990, the trial court granted Cincinnati Insurance's motion for summary judgment with respect to count one of the complaint because the suit had not been filed within twelve months after the loss occurred. The trial court also granted Cincinnati Insurance leave to file a motion for summary judgment on count two of SAS's complaint. In filing such motion, Cincinnati Insurance appended the affidavit of Michael Gagnon, its Vice President and Property Claims Manager, who stated that SAS's two claims were treated separately by Cincinnati Insurance. He indicated that Patrick Heffernan, a claims representative, handled the initial property damage claim in October 1986, while the 1989 suit against Cincinnati Insurance was handled by Art Clutter, a claims adjuster at Cincinnati Insurance. Gagnon further stated that Heffernan was under his control while Clutter was under the direction of Robert Wallace of Cincinnati Insurance. Gagnon revealed that at no time did Cincinnati Insurance *Page 320 consider that SAS's claim be denied so that SAS would be compelled to file an action against the contractor. On May 14, 1990, the trial court granted Cincinnati Insurance's motion with respect to count two because SAS "offered no evidence of any `arbitrary or capricious' conduct by defendant-appellee and/or has offered no evidence of any unreasonable or oppressive conduct." Furthermore, the trial court, in its entry dated December 20, 1990, found that SAS "has presented no evidence of ill-will, malice or otherwise to support a claim for punitive damages." SAS's timely appeal follows. I Appellant's first assignment of error states: "The court committed prejudicial error in ruling that the claims of the plaintiff upon the insurance contract were barred by a one year provision in the contract when that one year limitation conflicted with other provisions and was not unambiguously set forth as a one year limitation." Parties to an insurance contract may lawfully limit the time within which suit may be brought on the contract if the period fixed in the policy is reasonable and unambiguous. Lane v.Grange Mut. Cos. (1989), 45 Ohio St.3d 63, 543 N.E.2d 488;Colvin v. Globe Am. Cas. Co. (1982), 69 Ohio St.2d 293, 23 O.O.3d 281, 432 N.E.2d 167. In Ohio, a twelve-month contractual limitation provision has been deemed reasonable, valid, and enforceable. Id.; Kelley v. Travelers Ins. Co. (1983), 9 Ohio App.3d 58, 9 OBR 76, 458 N.E.2d 406. The insurance policy issued to SAS by Cincinnati Insurance provides that "[n]o suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity * * * unless commenced within twelve months next after inception of the loss." The loss to SAS's retaining wall occurred on October 11, 1986. However, SAS filed suit some thirty-five months later on September 20, 1989. SAS's delay in filing suit caused the action to be barred under the contractual limitation. SAS argues that the period of limitation set forth on the policy was not clear and unambiguous. SAS suggests that there are conflicting time periods mentioned in the policy; SAS refers to a contractual language that provides that no suit may be commenced until there is full compliance with all policy provisions. Yet, such language has nothing to do with the time period within which to file suit. We find that the limitations on the insurance policy are written in terms that are clear and unambiguous to the policyholder. The Ohio Supreme Court found the following contractual provision to be clear and unambiguous: *Page 321 "`Action Against The Company: No suit or action whatsoever or any proceeding instituted or processed in arbitration shall be brought against the company for the recovery of any claim under this coverage unless as a condition precedent thereto, the insured or his legal representative has fully complied with all of the terms of the policy and unless same is commenced within twelve months next after the date of the accident.'" Colvin v.Globe Am. Cas. Co., supra. The similar language of the insurance policy in the case at bar is also clear and unambiguous. It provides: "SUIT. No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity unless all of the requirements of this policy shall have been complied with, and unless commencement within twelve months next after inception of the loss." Since SAS's suit was filed some thirty-five months following the date of the occurrence giving rise to the claim, and because the twelve-month limitation was clear and unambiguous, the trial court's grant of summary judgment in favor of Cincinnati's Insurance on count one of the complaint was proper. Civ.R. 56. Appellant's assignment of error is overruled. II Appellant's second assignment of error states: "The court committed prejudicial error in granting summary judgment as to the claim of the defendant with respect to a conflict of interest." Summary judgment will be rendered in a case when "there is no genuine issue as to any material fact and * * * the moving party is entitled to judgment as a matter of law." Civ.R. 56(C). A court will look to the parties' pleadings to determine the issue and to see if any written admissions were made. The court then turns to the documentary evidence to determine whether a genuine issue of material fact exists. A genuine issue of material fact exists when the relevant factual allegations contained in the documentary evidence attached to a summary judgment motion and opposition brief are in conflict. Duke v. Sanymetal Prods. Co. (1972), 31 Ohio App.2d 78, 60 O.O.2d 171, 286 N.E.2d 324. Summary disposition is appropriate when reasonable minds can come to but one conclusion after reviewing the evidence and that conclusion is adverse to the nonmoving party. Civ.R. 56(C). SAS contends that a genuine issue of material fact exists with respect to whether Cincinnati Insurance acted in bad faith and with actual malice in its denial of SAS's claim of coverage. SAS appears to argue that Cincinnati Insurance's bad faith stems from a conflict of interest as SAS's insurer as well as *Page 322 the contractor's insurer. SAS maintains that Cincinnati Insurance acted in bad faith when it opted not to pay SAS on its policy and elected to defend a suit in negligence against the contractor, its other insured. Based on the relationship between an insurer and its insured, an insurer has the duty to act in good faith in the handling and payment of claims of its insured, and breach of this duty will give rise to a cause of action against the insurer. Hoskins v.Aetna Life Ins. Co. (1983), 6 Ohio St.3d 272, 6 OBR 337,452 N.E.2d 1315. This cause of action lies in tort irrespective of any liability arising from a breach of the underlying contract.Staff Builders, Inc. v. Armstrong (1988), 37 Ohio St.3d 298,525 N.E.2d 783. Punitive damages may be recovered against an insurer if the insurer breaches its duty to act in good faith. Id. at paragraph two of the syllabus. However, mere refusal to pay insurance claim is not, in itself, conclusive of an insurer's bad faith. Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 529 N.E.2d 464. An insured must prove that the insurer's refusal to pay a claim was totally arbitrary and capricious and without reasonable justification. An insured must also provide proof of actual malice, fraud, or insult on the part of the insurer in order to warrant punitive damages.Olbrich v. Shelby Mut. Ins. Co. (1983), 13 Ohio App.3d 423, 13 OBR 510, 469 N.E.2d 892. Actual malice, necessary for an award of punitive damages, has been defined as "that state of mind under which a person's conduct is characterized by hatred or ill will, a spirit of revenge, retaliation, or a determination to vent his feelings upon other persons." Columbus Finance, Inc. v. Howard (1975),42 Ohio St.2d 178, 183-184, 71 O.O.2d 174, 176-77, 327 N.E.2d 654,658; see, also, Preston v. Murty (1987), 32 Ohio St.3d 334,512 N.E.2d 1174. Paul Spremulli, SAS's owner, testified in his deposition that he believed Cincinnati Insurance acted in bad faith because it denied SAS's claim. Such assertion alone is not a basis for establishing bad faith. Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 529 N.E.2d 464. Richard McKeon, a Cincinnati Insurance adjuster, stated in his affidavit that Cincinnati Insurance had a good faith belief that the loss was not covered. Further, Paul Spremulli admitted that he was treated professionally and politely by representatives of Cincinnati Insurance at all times. Michael Gagnon stated in his affidavit that the two claims were handled separately and in the customary way. Our review of the documentary materials indicated that there was no genuine issue of material fact concerning Cincinnati Insurance's bad faith in denying the claim and no proof that Cincinnati Insurance acted with actual malice. Civ.R. 56(C). *Page 323 Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. Judgment affirmed. JAMES D. SWEENEY and KRUPANSKY, JJ., concur.

2016-07-06 06:42:06.285437+00

Fain

{¶ 1} Plaintiff-appellant R.E. Holland Excavating, Inc. appeals from a summary judgment rendered against it, upon statute-of-limitations grounds, upon its legal-malpractice complaint against defendant-appellee Martin, Browne, Hull and Harper, P.L.L., ("Martin Browne"), the law firm that had represented Holland in an employer intentional-tort lawsuit, in which it had been a defendant. Holland contends that the trial court erred by rendering summary judgment against it because there is a genuine issue of material fact concerning when the attorney-client relationship ended, at which point the statute of limitations began to run, since Holland was already on notice of a potential legal-malpractice claim. We agree. {¶ 2} Although it is clear from the record that the attorney-client relationship between Holland and Martin Browne had become clouded by Holland's realization that it might have a legal-malpractice claim against Martin Browne, we cannot say that the attorney-client relationship unequivocally ended until Martin Browne's motion to withdraw was granted on January 16, 2002. The legal-malpractice action was filed on January 16, 2003, exactly one year later. The statute of limitations for legal malpractice is one year. {¶ 3} The summary judgment rendered against Holland is reversed, and this cause is remanded for further proceedings. I {¶ 4} The city of Urbana, a defendant in Hill v. Urbana, Clark County Common Pleas case No. 89-CV-74, brought R.E. Holland Excavating, Inc. into *Page 473 that case as a third-party defendant. Martin Browne was retained by Cincinnati Insurance, Holland's insurance carrier, to defend Holland in that action. Robert Holland, the owner of Holland, retained John Slagle to represent Holland in a declaratory judgment action that Holland had brought to determine issues of insurance coverage. Alfred W. Schneble III was also retained to consult with Slagle. {¶ 5} In September, 2001, Holland's liability in Hill v.Urbana was settled for $155,000, of which Cincinnati Insurance paid $25,000. Holland paid the remaining $130,000. {¶ 6} Earlier, in August, 2001, Schneble sent Martin Browne a letter informing Martin Browne that Holland believed Martin Browne might have been negligent in its representation, proximately causing damage to Holland. Schneble requested a copy of Martin Browne's malpractice insurance policy. In an affidavit in the legal-malpractice action with which this appeal is concerned, Schneble avers that he did not intend by this letter to terminate Martin Browne's representation, but intended, instead, to advise Martin Browne that Holland was attempting to mitigate its damages by settling with Hill, so that Martin Browne could take whatever steps it might deem advisable to protect Martin Browne's interests. {¶ 7} Martin Browne responded to the Schneble letter by denying any negligence on its part. In its response, Martin Browne did not evince any intention to terminate its representation of Holland, nor did Martin Browne indicate that it understood that its representation of Holland had terminated. {¶ 8} Martin Browne had expressed a willingness to sign an entry dismissing the claims against Holland as part of the settlement of Hill's lawsuit, and, to that end, a dismissal entry was forwarded to Martin Browne for signature on behalf of Holland. However, Martin Browne's malpractice carrier disapproved of the idea of Martin Browne signing the dismissal entry on Holland's behalf. {¶ 9} On December 27, 2001, Martin Browne filed a motion to withdraw as Holland's counsel in the Hill litigation. Although this fact was communicated by Martin Browne to John Slagle, an attorney whom Holland had consulted concerning the possibility of a legal-malpractice claim against Martin Browne, that same letter, dated January 2, 2002, expressly contemplated that Martin Browne might, nevertheless, perform the legal service of approving an entry dismissing all claims in the Hill litigation. {¶ 10} On January 16, 2003, exactly one year after the trial court had granted Martin Browne's motion to withdraw as counsel, Holland brought this legal-malpractice action. Martin Browne moved for summary judgment, contending that the action is barred by the one-year statute of limitations for legal malpractice. The trial court agreed, finding that the attorney-client relationship between *Page 474 Holland and Martin Browne had terminated by the time of the August 7, 2001 letter from Schneble, on Holland's behalf, stating that Holland believed Martin Browne had been negligent in its representation. The trial court further found that, even if the August 7, 2001 letter could not be said to have heralded the end of the attorney-client relationship, Martin Browne's December 27, 2001 motion to withdraw as counsel surely did so, and this was more than one year before the filing of the malpractice action. Accordingly, the trial court rendered summary judgment in favor of Martin Browne. {¶ 11} From the summary judgment rendered against it, Holland appeals. II {¶ 12} Holland's sole assignment of error is as follows: {¶ 13} "The trial court erred in granting summary judgment based on its finding that the complaint was filed more than one year after termination of the attorney-client relationship." {¶ 14} For statute-of-limitations purposes, a legal-malpractice action accrues, and the statute of limitations begins to run, when (1) there is a cognizable event from which the client discovers, or reasonably should discover, that the injury complained of is related to the attorney's act or omission and the client is put on notice of a need to pursue possible remedies against the attorney or (2) the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later. Zimmie v. Calfee, Halter Griswold (1989),43 Ohio St.3d 54, 538 N.E.2d 398, syllabus. In the case before us, there appears to be no question that the first event referred to in Zimmie v. Calfee, Halter Griswold had occurred by August 7, 2001, more than one year preceding the filing of the malpractice action, when Schneble, on Holland's behalf, sent Martin Browne the letter in which he asserted that Holland believed Martin Browne had been negligent in its representation. If an event satisfying the first prong of Zimmie were sufficient, in and of itself, to terminate the attorney-client relationship, there would be no need of the second prong. Although an attorney-client relationship is ideally characterized by the client's reposing trust and confidence in the attorney, this is not always the case. As one example, an indigent criminal defendant may complain to the trial court that his assigned defense counsel is not adequately representing him and that he has lost all confidence in his assigned counsel, and the defendant may request that new counsel be substituted. If the trial court, rightly or wrongly, denies the motion and the original assigned defense counsel appears at trial, examines witnesses, cross-examines witnesses, interposes objections, or fails to do any of these, it can hardly be said that counsel is not providing legal services to the client, notwithstanding *Page 475 the client's lack of trust in counsel. A similar situation might easily arise when an insurance carrier provides counsel to defend its insured, and the insured, despite lacking confidence in counsel, is without the means to hire independent counsel. A lack of trust and confidence in counsel may, but will not necessarily always, lead to the termination of the attorney-client relationship; in any event, that lack of trust and confidence does not constitute the termination of the relationship. {¶ 15} The crucial issue in this appeal is whether there is a genuine issue of material fact whether the second prong ofZimmie is satisfied — that is, when the evidence is viewed in a light most favorable to Holland, whether a reasonable mind can only conclude that the attorney-client relationship between Holland and Martin Browne, in connection with the Hill litigation, terminated before January 16, 2002. We bear in mind the following: (1) Robert Holland's averment in his affidavit that he was not aware of Martin Browne's motion to withdraw as counsel until that motion was granted on January 16, 2002, and (2) the January 2, 2002 letter from Martin Browne to Slagle in which it is expressly contemplated that Martin Browne might provide further legal service to Holland in the form of approving and signing a dismissal entry in the Hill litigation. We therefore conclude that a reasonable mind could find from the evidence in this record that the attorney-client relationship had not terminated until Martin Browne's intention to withdraw had been communicated to Holland. {¶ 16} Martin Browne relies upon two cases for the proposition that the attorney-client relationship between it and Holland must, as a matter of law, be deemed to have occurred before January 16, 2002, when Holland became aware of Martin Browne's motion to withdraw. One of these cases is Brown v. Johnstone (1982), 5 Ohio App.3d 165, 5 OBR 347, 450 N.E.2d 693. In that case, the court relied upon the following facts in upholding a summary judgment for the attorney-defendant upon statute-of-limitations grounds: {¶ 17} "It is uncontroverted that as of September 1, 1978, as a result of Brown's contact, Barrett from the Akron Bar Association told Brown that his workers' compensation claim was closed, that he should seek the aid of another attorney and that Johnstone had been reprimanded as a consequence of Brown's original complaint. A copy of the decision was sent with Barrett's letter. At this point an affirmative act had occurred which was sufficient to put Brown on notice as a reasonable man that the attorney-client relationship with Johnstone had terminated." Id. at 167, 5 OBR 347, 450 N.E.2d 693. {¶ 18} Admittedly, these facts are not entirely dissimilar from those in the case before us, and the issue is a close one. Nevertheless, we conclude that a crucial distinction is that the proceedings in which the defendant-attorney had been representing the plaintiff-client in Brown v. Johnstone, supra, had concluded. It *Page 476 was over. That fact, combined with the fact that the plaintiff-client had filed a complaint with the bar association that had resulted in the defendant-attorney's having been reprimanded, all of which was known by the plaintiff-client by September 1, 1978, required a holding, as a matter of law, that the attorney-client relationship had ended as of that date. But in the case before us, the Hill litigation, in which Martin Browne was representing Holland, was not quite over. To be sure, the settlement that had been negotiated signified that the litigation was almost over, but there remained a legal proceeding in which a reasonable mind might reasonably find that Martin Browne still represented Holland. {¶ 19} The other case upon which Martin Browne relies isWozniak v. Tonidandel (1997), 121 Ohio App.3d 221,699 N.E.2d 555. Martin Browne cites this case for the proposition that an attorney-client relationship may terminate before the trial court grants an attorney's motion to withdraw. However, the facts in that case from which the court concluded that a termination of representation had been effectively communicated to the client were stark: {¶ 20} "Defendant states in his affidavit that `[m]y engagement was to serve as counsel during the trial. I did not agree to represent Tom Wozniak for anything following the trial. The engagement letter of July 30, 1992 and the amendment of August 2, 1992 speak expressly in terms of the trial of the action.' {¶ 21} "Trial was postponed until November 4, 1992. After eight days of trial, the jury rendered its verdict on November 16, 1992. In his affidavit, defendant further states that after the verdict was announced, `I told Tom Wozniak in the courtroom that my firm's engagement was over. We had agreed to represent him in the trial. The trial was behind us. I told him that I would do no further work.' Thereafter, on November 24, 1992, defendant sent a letter to plaintiff which stated as follows: {¶ 22} "`As you know, this office's engagement was to represent you at the recently concluded jury trial in the above case. {¶ 23} "`This will confirm our discussion following the trial that we are not responsible for any post-trial procedures which you might desire, such as a motion for new trial, motion for judgment notwithstanding the verdict, notice of appeal or any other possible procedures, and we do not intend to do any such procedures. {¶ 24} "`For your information, the deadline for filing motions for new trial and/or judgment notwithstanding the verdict is fourteen days after entry of judgment. As you know, the deadline for filing a notice of appeal is thirty days after entry of judgment. {¶ 25} "`In accordance with your telephone discussion with Debbie Kackley, we are advising plaintiff's counsel that we are not authorized to approve the *Page 477 judgment. You can check the court's docket to see when the judgment is entered.' {¶ 26} "On December 14, 1992, plaintiff, acting pro se, filed a motion for judgment notwithstanding the verdict and a motion for a new trial. These motions were denied by the probate court. {¶ 27} "Subsequent to these motions, defendant filed a motion to withdraw as counsel. On December 21, 1992, the trial court journalized the order granting defendant's motion to withdraw." Wozniak v. Tonidandel, 121 Ohio App.3d at 224,699 N.E.2d 555. {¶ 28} Given the clarity with which the defendant-attorney in Wozniak communicated to the plaintiff-client that his representation was terminated, it is not surprising that the appellate court held that the attorney-client relationship had terminated even before the formal granting of the motion to withdraw by the trial court: {¶ 29} "In the case at bar, the attorney-client relationship was terminated on November 16, 1992 when, after the jury verdict, defendant told plaintiff that his firm's engagement was over. The fact that plaintiff understood that their relationship terminated on this date is reflected by his own affidavit, which states as follows: {¶ 30} "`After the jury portion of the trial was concluded, the defendant approached me in the lunch area of the court house and advised me that his firm "was not going to handel [sic] the appeal." I acknowledged this statement, as this was my understanding of the agreement. He then advised me that he knew of a client of his who had hired one attorney for negotiations, one for trial and one for appeal portion of a case.' {¶ 31} "Thus, plaintiff understood that the attorney-client relationship, which had existed for trial only, had been terminated by defendant after the return of the jury verdict. This termination was confirmed in the November 24, 1992 letter, in which defendant unambiguously states that his firm will not be responsible for any post-trial or appellate matters and advises plaintiff of the time frame if plaintiff wanted to file any post-trial motions or an appeal. This letter unequivocally communicated to plaintiff that any further action in the case would occur without defendant as his attorney. It is reasonable to infer that plaintiff understood from this letter that the relationship was over because he subsequently filed his own prose motion for judgment notwithstanding the verdict and new trial. {¶ 32} "Plaintiff's argument that defendant's representation lasted until the court granted his motion to withdraw is meritless. This court recently rejected this very argument and held that in a statute of limitations context the conduct of *Page 478 an attorney can terminate an attorney-client relationship prior to the filing of the notice of withdrawal." Wozniak v.Tonidandel, 121 Ohio App.3d at 226-227, 699 N.E.2d 555. {¶ 33} In Wozniak v. Tonidandel, there can be no question, as a result of the client's own admission, that he knew that his attorney in the underlying litigation was no longer representing him well before the trial court granted his attorney's motion to withdraw. In the case before us, by contrast, Holland was not aware that Martin Browne had either withdrawn as its counsel or had taken the position that it no longer represented Holland until Holland became aware of the entry granting Martin Browne's motion to withdraw as Holland's counsel. {¶ 34} We conclude, therefore, that there is a genuine issue of material fact concerning when the attorney-client relationship in this case ended, thereby causing the statute of limitations to begin to run. We cannot say, as a matter of law, that when the evidence in this record is viewed in a light most favorable to Holland, a reasonable mind could only conclude that the statute began to run before January 16, 2002, one year to the day before the filing of this malpractice action. {¶ 35} Holland's sole assignment of error is sustained. III {¶ 36} Holland's sole assignment of error having been sustained, the summary judgment rendered against it is reversed, and this cause is remanded for further proceedings. Judgment reversed and cause remanded. WOLFF and GRADY, JJ., concur. *Page 479

2016-07-06 06:42:06.441939+00

Wiseman

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County. Plaintiff sued for damages for personal injuries which resulted from slipping and falling on the floor of defendant's grocery store. At the close of plaintiff's case the court directed a verdict for the defendant on which judgment was entered. Plaintiff's *Page 409 motion for new trial having been overruled, this appeal was taken. Plaintiff, appellant, assigns fifteen separate errors, which counsel for plaintiff reduce to three propositions: (1) Did the trial court err in directing a verdict for the defendant? (2) Did the trial court err in refusing to reopen the case to hear further evidence after indicating its intention to direct a verdict, but before doing so? (3) Did the court deny plaintiff a fair trial? In his amended petition plaintiff alleges that as he entered defendant's grocery store and "that while he was walking in a store aisle at or near the cash registers, he slipped on a wet spot and fell to the floor"; and alleges further that "said injuries were the direct and proximate result of the negligence of the defendant in the following respects, to wit: Defendant while in control of said premises permitted or caused soft drink bottles to be placed in such a manner near the aisle of its grocery store as to allow the liquid remains of the bottles to drip to the floor and cause a wet and dangerous condition." The testimony shows that the plaintiff was a customer of the defendant's store on the day in question. In order to make a good case to go to the jury the plaintiff would be required to offer proof which would place the case in one of three classes: (1) Where the hazard was created by the negligent act of the defendant; (2) Where the defendant had, or in the exercise of ordinary care should have had, notice of the hazard; (3) Where the defendant was negligent in creating a permanent and continuing dangerous condition which caused the injury. The evidence shows that the wet spot on the floor was temporary and not of a permanent or continuing dangerous condition. Unquestionably, the evidence in this case does not meet the test in the third class of cases. We are required to consider whether plaintiff has offered sufficient proof to meet the test under class one or two. There is no proof whatever that defendant had any notice of the dangerous condition of the floor; *Page 410 there is no evidence as to the length of time this condition existed prior to plaintiff's fall. The evidence shows that as a store practice both the employees of the defendant and customers placed empty bottles in the cart, and that some of the bottles were placed in a horizontal position and some upside down. There is no evidence as to who placed the bottles in the cart on the day in question. For all that appears in the record the drippings which caused the slippery spot on the floor may have been caused by a customer. The evidence is insufficient to fix the responsibility on the defendant for the dangerous condition of the floor. The rule applicable is concisely stated inJohnson v. Wagner Provision Co., 141 Ohio St. 584, at page 589,49 N.E.2d 925, as follows: "To be entitled to recover in cases of the character presently before us, it is necessary for a plaintiff to show: "1. That the defendant through its officers or employees was responsible for the hazard complained of; or "2. That at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly; or "3. That such danger had existed for a sufficient length of time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care." On page 585 the facts are stated as follows: "At the trial it developed that another customer had dropped a glass jar of mayonnaise or salad dressing on the floor in defendant's market. It broke and the contents splattered. Felix Garlando, in charge of selling vegetables and an employee of the Mass. Market Company, which rented its space from the defendant, witnessed the incident, promptly secured a broom and dust pan or box from the rear of the storeroom and swept up as much of the mayonnaise as he could. According to his testimony, he then retraced his steps to get a mop. It was during this interim that plaintiff slipped on a part of what remained of the mayonnaise." On the facts the plaintiff in the Johnson case made a stronger case than the plaintiff in this case. But the court on page 589 said: *Page 411 "Here, we are convinced that the evidence offered by plaintiff did not establish lack of ordinary care on the part of the defendant, or that its conduct fell short of the standard represented by the conduct of reasonably prudent men in a position similar to that of the defendant." See, also, Anaple v. Standard Oil Co., 162 Ohio St. 537,124 N.E.2d 128. In the instant case, for all that appears in the record the drippings on the floor may have been caused by a customer a few minutes before plaintiff fell. Any conclusion that it was caused by an employee of the defendant or that the floor had been in such dangerous condition a sufficient period of time to put the defendant on notice, would be indulging in pure conjecture or supposition. In Boles v. Montgomery Ward Co., 153 Ohio St. 381, 92 N.E.2d 9, the sixth paragraph of the syllabus is as follows: "In such an action, a verdict for plaintiff predicated upon conjecture, guess, random judgment or supposition cannot be sustained." Did the court err in refusing to re-open the case? Counsel for plaintiff stated to the court that if the case were re-opened for the purpose of showing notice or knowledge of the dangerous condition of the floor, several witnesses would be produced who would testify that on previous busy days at the store they saw drippings on the floor from empty bottles placed in the cart. Such evidence would not be competent under the rule laid down in the case of Boles v. Montgomery Ward Co., supra. The fourth paragraph of the syllabus in that case states the rule as follows: "The admissibility of evidence as to similar occurrences to show notice or knowledge of danger is generally confined to situations where there are conditions of permanency, such as defects in substantial structures like buildings, machines, sidewalks and streets. Such evidence is not competent or admissible where it relates to a temporary condition which might or might not exist from one day to the next and where there is no showing that conditions surrounding the prior occurrences persisted and surrounded the occurrence which resulted in plaintiff's injury." *Page 412 In view of the fact that the evidence which plaintiff sought to introduce would have been incompetent, the trial court properly overruled plaintiff's motion to re-open the case. Other of the claimed errors, if found to exist, could not have been prejudicial where, as in this case, the court is reviewing the action of the trial court in directing the verdict. We have examined the record in this case in light of the numerous assignments of error, and have concluded that plaintiff was accorded a fair trial; that the trial judge did not abuse his discretion, and that no assignment of error is well made. Since we find no error in the record prejudicial to the rights of the appellant, the judgment is affirmed. Judgment affirmed. HORNBECK and CONN, JJ., concur. CONN, J. of the Sixth Appellate District, sitting by designation in the Second Appellate District.

2016-07-06 06:42:06.602729+00

Christley

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 162 OPINION Appellant, Steven E. Randall, appeals the judgment of the Lake County Court of Common Pleas adjudicating him a sexual predator pursuant to R.C. Chapter 2950. On November 16, 1998, appellant was charged by way of information with one count of gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05. This charge evolved out of a sexual encounter with a twelve year old daughter of a female acquaintance. Appellant admitted to using drugs and alcohol prior to entering the victim's room in search of her mother with whom appellant had a relationship. Believing the victim to be the mother, appellant touched her buttocks, back, and breast over the top of her nightclothes. During this incident, appellant was calling out the mother's name. On December 30, 1998, appellant entered a written plea of guilty to the charge. Prior to sentencing, the matter came on for a sexual offender hearing. The trial court found by clear and convincing evidence that appellant was a sexual predator as defined in R.C. 2950.01 and sentenced him to a term of one year in prison. Appellant now appeals the sexual predator adjudication, and asserts five assignments of error for our consideration: "[1.] R.C. 2950.09 constitutes a denial of due process and must be held unconstitutional under strict scrutiny because defendant[-]appellant's fundamental rights have been impaired. "[2.] R.C. 2950.09(C) is unconstitutionally vague, thus denying defendant-appellant due process of law. "[3.] R.C. 2950.09(C) is sufficiently punitive in nature to constitute cruel and unusual punishment. "[4.] R.C. 2950.09 is an unconstitutional exercise of Ohio's police powers which unreasonably interferes with the defendant-appellant's civil liberties and private rights and is unduly oppressive, in violation of Section 1, Articl[e] I of the Ohio Constitution. "[5.] The finding that the defendant-appellant is a sexual predator was against the manifest weight of the evidence." *Page 163 Under his first four assignments of error, appellant raises four different challenges to the constitutionality of R.C. 2950.09, Ohio's version of New Jersey's Megan's Law. For the reasons set forth below, we reject appellant's constitutional challenges. Appellant's first assignment of error concerns the Due Process and Equal Protection Clause. Specifically, appellant argues that there exists no rational basis for the classification. According to appellant, the statute is simply an arbitrary and capricious attempt to punish sex offenders and denies those affected individuals the protection of substantive due process. Further, appellant suggests that being adjudicated a sexual predator impinges upon his fundamental rights to liberty and privacy.1 R.C. Chapter 2950 does not offend substantive due process and equal protection as the statute is rationally related to a legitimate state interest, and there exist reasonable grounds for distinguishing between sexual predators and other offenders. State v. Lee (1998),128 Ohio App.3d 710, 716; State v. Lance (Feb. 13, 1998), Hamilton App. Nos. C-970301, C-970282, and C-970283, unreported, at 6-7, 1998 WL 57359. The legislature declared that its intent was to "protect the safety and general welfare of the people of this state." R.C. 2950.02(B). Assuring public protection from sex offenses is a legitimate state interest. Lance at 7. Further, the legislature has concluded that sex offenders poses a high risk of recidivism, and the registration and notification requirements "clearly advance the legislature's stated goal of protecting the public." Id. Because reasonable grounds exist for distinguishing between sexual predators and other offenders, R.C. Chapter 2950 does not violate the Equal Protection or the Due Process Clause.Lee at 716; Lance at 7. The first assignment of error lacks merit. Under the second assignment of error, appellant maintains that R.C.2950.09 is unconstitutionally vague as it gives the trial court virtually no guidance as to which party has the burden of proof nor how strong a showing is required for a defendant to be adjudicated a sexual predator. The Supreme Court of Ohio in State v. Williams (2000), 88 Ohio St.3d 513, rejected this precise argument and concluded that R.C. Chapter 2950 is not void for vagueness. There is "nothing impermissibly vague" about employing the clear and convincing evidence standard in R.C. Chapter 2950. Williams at 533. Although the general language of R.C. Chapter 2950 is broad, and the guiding factors may have been broadly worded, "a certain level of broadness in the language of R.C. Chapter 2950 allows for *Page 164 individualized assessment rather than an across-the-board rule." Id. at 534. As a result, appellant's second assignment of error is meritless. In his third assignment of error, appellant contends that R.C. 2950.09(C) amounts to cruel and unusual punishment under the federal and state constitutions as registration requirements traditionally have been viewed as punitive in nature. In State v. Cook (1998), 83 Ohio St.3d 404, 423, the Supreme Court held that the registration and notification provisions of R.C. Chapter 2950 are not punitive in nature. Rather, these provisions serve the remedial purpose of ensuring public safety. Thus, absent any punishment, the protections against cruel and unusual punishment are not triggered. Statev. Paul (Aug. 3, 2000), Auglaize App. No. 2-2000-12, unreported, at 1, 2000 WL 1061235; State v. Young (June 13, 2000), Meigs App. No. 99CA13, unreported, at 2, 2000 WL 781100. Accordingly, appellant's third assignment of error is without merit. With respect to the fourth assignment of error, appellant argues that R.C. Chapter 2950.05 is an unconstitutional exercise of police power as it unreasonably encroaches upon civil liberties, privacy rights, and violates Section 1, Article 1 of the Ohio Constitution. The Supreme Court in Williams rejected this constitutional challenge and held that R.C. Chapter 2950 did not violate the rights enumerated in Section 1, Article I of the Ohio Constitution. Williams at 527. Although the statute impacts a convicted sex offender's life, the Supreme Court found the statute to be reasonable as it addresses "legitimate governmental interests without a detrimental effect on individual constitutional rights." Id. at 525. The statute does not infringe on a sex offender's right to privacy because such a right encompasses onlypersonal information, and the information distributed as part of the notification provisions is already considered to be public record. Id. at 526. Further, the right to acquire or protect property, the right to pursue an occupation, and the right to a favorable reputation are not violated by the statute. Id. at 526-527. Appellant's fourth assignment of error lacks merit. Under the final assignment of error, appellant claims that the trial court's sexual predator determination was against the manifest weight of the evidence and that the court failed to use the clear and convincing standard when determining whether appellant was a sexual predator. According to appellant, the trial court ignored the opinions expressed in the psychological evaluation and pre-sentence report, which found that he was not sexually addicted and did not demonstrate sexually predatory behavior. *Page 165 The standard for determining whether a verdict is against the manifest weight of the evidence is as follows: "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Thompkins (1997), 78 Ohio St.3d 380, 387, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. See, also, State v. Thatcher (Apr. 18, 2000), Auglaize App. No. 2-99-50, unreported, at 4, 2000 WL 426403. R.C. 2950.01(E) defines a "sexual predator" as a person who: (1) has been convicted of or pleaded guilty to committing a sexually oriented offense; and (2) is likely to engage in the future in one or more sexually oriented offenses. In the instant matter, appellant pleaded guilty to one count of gross sexual imposition. The offense of gross sexual imposition qualifies as a "sexually oriented offense" under R.C. 2950.01(D)(1). Accordingly, appellant indisputably meets the first prong of the "sexual predator" definition. Appellant, however, challenges the trial court's finding on the second prong; i.e., that he is likely to commit a sexually oriented offense in the future. In making a determination as to whether a defendant is a sexual predator, the trial court must consider all relevant factors including, but not limited to, all of the factors specified in R.C.2950.09(B)(2)(a)-(j). These factors include: (1) the offender's age; (2) the offender's prior criminal record; (3) the age of the victim; (4) whether the sexually oriented offense for which sentence was imposed involved multiple victims; (5) whether the offender used drugs or alcohol to impair the victim or to prevent the victim from resisting; (6) whether the offender has participated in available programs for sexual offenders; (7) any mental illness or mental disability of the offender; (8) the nature of the offender's conduct and whether that conduct was part of a demonstrated pattern of abuse; (9) whether the offender displayed cruelty during the commission of the crime; and (10) any additional behavioral characteristics that contributed to the offender's conduct. The trial court must consider the above-mentioned factors as set out in R.C. 2950.09(B)(2) in determining whether a defendant is a sexual predator. State v. Qualls (Mar. 4, 1999), Cuyahoga App. No. 72793, unreported, at 5, 1999 Ohio App. LEXIS 829. "The statute does not require the court to list the criteria, but only to `consider all relevant factors, including' the criteria in R.C. 2950.09(B)(2) in making his or her findings." (Emphasis added.) Cook at 426. Even though the trial court is not required to refer to each factor in making its determination, the court is required to provide a general discussion of the factors so that the substance of the determination can be properly reviewed for purposes *Page 166 of appeal. State v. Burke (Sept. 21, 2000), Franklin App. No. 00AP-54, unreported, at 4-5, 2000 Ohio App. LEXIS 4256. Such a discussion can be set forth on the record during the sexual offender hearing or in the court's judgment entry. Burke at 4-5. Further, in order for the trial court to adjudicate the offender as a sexual predator, there must be clear and convincing evidence that the offender is a sexual predator. R.C. 2950.09(B)(3).2 A trial court may find an offender to be a sexual predator "even if only one or twostatutory factors are present, so long as the totality of the relevant circumstances provides clear and convincing evidence that the offender is likely to commit a future sexually-oriented offense." (Emphasis added.)State v. Clutter (Jan. 28, 2000), Washington App. No. 99CA19, unreported, at 3, 2000 WL 134730. In the case at bar, the trial court noted in its judgment entry that it considered the pre-sentence report, the victim impact statement, the psychiatric evaluation along with the factors set forth in R.C.2950.09(B)(2). Although not mentioned in its judgment entry, the trial court expressed its reasons for adjudicating appellant to be a sexual predator on the record during the hearing. Based upon the nature of the crime involved and the finding that a pattern of abuse had beendemonstrated by appellant, particularly as to younger females, the trial court labeled appellant as a sexual predator. It is undisputed that an offender's behavioral characteristics and mental illness or mental disability are factors in determining whether an offender is a sexual predator. R.C. 2950.09(B)(2)(g) and (j). Even though the trial court stated that it had considered the psychiatric evaluation, the court did not explain why it made a finding contrary to what the psychiatric evaluation had concluded. Certainly, trial courts should not be forced to accept the conclusions of psychologists or psychiatrists as to whether an individual is a sexual predator. However, when a psychiatric evaluation is in direct conflict with the finding of the trial court, we believe some discussion is required as to why the expert conclusion had been rejected. During the psychiatric evaluation, appellant admitted to several events of indecent exposure to women wherein he proceeded to drive several times in *Page 167 public without clothing.3 The record reflects that during at least one incident, appellant was under the influence of illegal drugs. Although appellant claimed to be drug and alcohol free, a urine screen taken at the time of his pre-sentence interview revealed that he tested positive for cocaine. Numerous attempts were made by appellant to seek treatment for his drug and alcohol dependence; however, he failed to follow through with such treatment. Despite the fact that appellant had demonstrated a pattern of exposing himself to women, the psychiatric evaluation indicated that appellant didnot demonstrate "patterns of abuse from a sexual perspective * * * [and did] not meet the criteria for classification as a sexual predator." (Emphasis added.) Moreover, the pre-sentence report indicated that a psychological consultation was made, and it "rule[d] out sexual addiction * * *." The trial court may have determined appellant to be a sexual predator because the court was disturbed by the evidence that appellant seemed to lose all his sexual inhibitions while under the influence of alcohol and/or drugs, and that while high or intoxicated, appellant presented a viable threat sexually to the women around him. The psychiatric evaluation supports such a contention as it recognized that appellant had a history of engaging in "multiple antisocial activities" while under the influence of alcohol and drugs. Arguably, the instant episode was an escalation from the prior episodes and was more than an indiscrete event. Further, appellant's motivation to recover from his drug and alcohol addiction was described in the psychiatric evaluation as being "questionable." Thus, absent evidence of a willingness to address and correct his problem with drugs and/or alcohol, the trial court could have concluded that the public needed to be protected because appellant had failed to address the substance abuse problems that seemed to trigger these escalating events, which most recently resulted in a near rape of a twelve year old. Unfortunately, we are unable to guess as to whether the above facts or others of record were the critical and determinative evidence upon which the trial court relied. Without a similar analysis, the trial court's judgment entry is insufficient for this court to properly review the manifest weight of evidence challenge because no explanation was provided by the court as to what it found to be clear and convincing evidence that appellant was a sexual predator contrary to the psychiatric evaluation. The trial court is required to provide a general discussion *Page 168 of the factors so that the substance of the determination can be properly reviewed on appeal. Burke at 4-5. Therefore, we remand this matter to the trial court so that it may provide such an explanation. Based on the foregoing analysis, the judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion and law. PRESIDING JUDGE JUDITH A. CHRISTLEY NADER, J., O'NEILL, J., concur. 1 This argument will also be addressed in appellant's fourth assignment of error. 2 At the hearing, the trial court stated that "[due] to the nature of the crime of which you [appellant] are involved, I do believe it was the intention of our legislature to protect the public and to beconservative in the labeling." (Emphasis added.) Such a statement inaccurately depicts the intent of the legislature. If the legislature had meant for the court to apply the sexual predator label in a conservative manner, then the clear and convincing standard of proof would not have been required under the statute. Upon remand, the trial court will be able to address its understanding of the clear and convincing standard so as to eliminate any conflict created by its use of the word "conservative." 3 We note that appellant has a lengthy criminal record which included three separate convictions in 1994 and 1996 for public indecency to women. Public indecency, however, is not included within the definition of a sexually orientated offense as set forth in R.C. 2950.01(D). Statev. Lusher (Nov. 7, 1997), Wood App. No. WD-97-006, unreported, at 1, 1997 WL 703339. Nevertheless, these offenses can still be considered by the trial court as an offender's prior criminal record remains a factor under R.C. 2950.09(B)(2)(b).

2016-07-06 06:42:06.831344+00

OPINION The defendant, Jamison L. Sexton, was tried in the Dayton Municipal Court without the intervention of a jury and found guilty of assault, and from the judgment and sentence thereupon entered in the trial court, Sexton has filed a notice of appeal to this court. On August 29, 1999, the victim of the alleged assault, Robin Balazs, and two friends, Kellee Haller and Michelle Pennington, went to the Bourbon Street Nightclub in Cincinnati, Ohio. While there, they met the defendant's brother, Jason Sexton, who was a boyfriend of Michelle Pennington, and when the nightclub closed, at about 2:30 a.m., the three women-Robin, Kellee, and Michelle-drove from Cincinnati to Jason's home which was located at 204 Pointview Avenue in Dayton, Ohio. Upon arrival, the women found Jason passed out on his couch, but Michelle and Kellee awakened and assisted him to another room, while Robin sat down on the couch where she eventually fell asleep. In the meantime, Jason had apparently called his brother, Jamie, the defendant, who resided in West Milton, Ohio, because Jamie called back and talked with Michelle, who requested that the defendant come over to help with Jason who had been drinking and was thinking of leaving on his motorcycle. Subsequently, Robin was awakened by the defendant, Jamie Sexton, and ordered out of the house. She testified that she was in a daze when she proceeded to stand up in order to leave the residence, and that the defendant grabbed her by the back of her neck, shoved her against a wall, through a screen door, over a porch, and then down a flight of concrete steps, all of which were alleged to have caused physical injuries and harm to her. In these appellate proceedings, the record shows that the evidence, while in serious conflict upon many factual issues, was readily susceptible to a reasonable finding that Mr. Sexton was in violation of Section 135.03 of the Dayton City Ordinances, which simply provides that "no person shall knowingly cause or attempt to cause physical harm to another." However, the appellant argues, for his only assignment of error, that the trial court erred in finding the defendant guilty of assault because he was lawfully ejecting a trespasser from the premises. And in this regard, Sexton relies upon the well-established proposition that a property owner may eject a trespasser by the use of reasonable force after the trespasser has received notice to depart and fails to do so within a reasonabletime. State v. Childers (1938), 133 Ohio St. 508, 516. Here, however, the testimony of the witnesses, though pregnant with inconsistency, is sufficient to support a finding that Jamie Sexton was not the owner of the property where the alleged assault occurred and that he had no proprietary right to remove Balazs forcibly from the house. Furthermore, there is some evidence in the record, if believed by the trier of the facts, to show that Balazs did not have a reasonable time to leave the premises before she was grabbed by the neck and shoved from the residence. Moreover, and perhaps most convincing, is the testimony which supports the conclusion that the amount of force used by the defendant to eject Balazs from the house, under all of the existing circumstances, was unreasonable. Ordinarily, the weight to be given the evidence and the credibility of the witnesses are for the trier of the facts.State v. Dunlap (1995), 73 Ohio St.3d 308, 316; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. And in the application of this fundamental rule, the state of the evidence in the present case is such as to preclude any interference from a reviewing court. Accordingly, the alleged error is overruled, and the judgment of the Dayton Municipal Court will be affirmed. BROGAN, J., concurs.

2016-07-06 06:42:06.929852+00

OPINION {¶ 1} The Chairman of the Ohio Democratic Party ("ODP"), as well as the ODP, appeal from a judgment of the Franklin County Court of Common Pleas affirming a decision of the Ohio Elections Commission ("commission") finding that the Chairman of the ODP acted in violation of R.C. 3517.21(B)(1). For the reasons that follow, we affirm. {¶ 2} This appeal concerns certain campaign material mailed before the November 2006 election that promoted Democratic candidates seeking statewide offices (hereinafter the campaign material will be referred to as the "flyer"). *Page 2 {¶ 3} The record contains a photocopy of the flyer. The Chairman of the ODP is identified on the flyer as its sender, and there is a notation on the flyer indicating that it was paid for by the ODP. The flyer states on one side: "Fed Up With The Mess? Do something about it — Vote Democrat." On the same side are what appear to be partial images of the White House1 in Washington, D.C., and the Ohio Statehouse, 2 with the words "CORRUPTION," "GAS PRICES," "HEALTH COSTS," "IRAQ," "JOBS OVERSEAS," and "LOST PENSIONS," superimposed over the buildings. {¶ 4} The top of the reverse side of the flyer states: "Vote Democratic — Help Turn Around Ohio." It also states: "If you have had enough of Republican incompetence and corruption, send them a message from the comfort of your home. All Ohio voters can now vote by mail from home. It's convenient. It's easy. And it will send a message that will be heard." The flyer explains the "three simple steps" for voting by mail and encourages the recipient to "vote the complete Democratic ticket to bring about the change we need in Ohio." The flyer further states: "Vote By Mail. Vote for Change. Vote the Democratic Ticket." Directly below these last three statements are photographs of the slate of Democratic candidates who were seeking statewide offices. Directly below each candidate's photograph is his or her name, and directly below most of the names are the titles of the offices the candidates were seeking to hold. For example, the photograph of Ted Strickland was placed directly above the following caption: Ted Strickland Governor *Page 3 In the same way, the preparer of the flyer set forth the photograph, name, and title of office sought, for candidates Lee Fisher, Marc Dann, Barbara Sykes, Jennifer Brunner, and Richard Cordray. However, instead of indicating that Sherrod Brown was seeking the office of "U.S. Senator," below his name is "U.S. Senate." In addition, instead of indicating that Ben Espy and Bill O'Neill were both seeking the office of "Justice," below each of their names is "Supreme Court." At the time the flyer was distributed, none of the Democratic candidates held the office that was being sought in the election. {¶ 5} On October 13, 2006, the Chairman of the Ohio Republican Party filed a complaint with the commission against the Chairman of the ODP, Ted Strickland, Lee Fisher, Sherrod Brown, Marc Dann, Barbara Sykes, Jennifer Brunner, Richard Cordray, Ben Espy, and Bill O'Neill. {¶ 6} A probable-cause hearing was held before the commission on October 19, 2006, and all individual candidates included in the original complaint were dismissed, thus leaving only the Chairman, acting on behalf of the ODP. On November 2, 2006, a full hearing was held before the commission. Subsequent to the hearing, the commission issued the following decision: THE COMMISSION FOUND A VIOLATION OF R.C. § 3517.21 (B)(1) BASED ON THE OHIO REVISED CODE'S STANDARD OF CLEAR AND CONVINCING EVIDENCE. THE COMMISSION DETERMINED THERE WAS GOOD CAUSE SHOWN NOT TO REFER THE MATTER FOR PROSECUTION OR TO ISSUE A LETTER OF REPRIMAND, BUT TO ALLOW THE FINDING OF A VIOLATION TO STAND AS THE PENALTY. ALL INDIVIDUAL CANDIDATES INCLUDED IN THE ORIGINAL COMPLAINT WERE DISMISSED BY THE PROBABLE CAUSE PANEL. *Page 4 {¶ 7} Pursuant to R.C. 119.12, the ODP and its Chairman appealed to the Franklin County Court of Common Pleas.3 The ODP and its Chairman challenged the constitutionality of R.C. 3517.21(B)(1) and additionally argued that there was no evidence that the Chairman of the ODP knowingly violated the statute. The trial court resolved that R.C. 3517.21(B)(1) is constitutional on its face and was constitutionally applied in this case. The trial court resolved that the ODP and its Chairman had knowledge of the implied claim of incumbency and still distributed the flyer. Therefore, the trial court affirmed the decision of the commission. {¶ 8} The ODP and the Chairman of the ODP have appealed to this court from the judgment of the trial court. In this appeal, they set forth the following assignments of error for our review: 1. The Trial Court erred in holding that [the Chairman of the ODP] knowingly made a false statement. 2. The Trial Court erred in holding that R.C. § 3517.21(B)(1) is facially constitutional. 3. The Trial Court erred in holding that the application of R.C. § 3517.21 (B)(1) was constitutional. 4. The Trial Court erred in holding that the Ohio Democratic Party violated R.C. § 3517.21(B)(1). 5. The Trial Court erred in holding that the Ohio Elections Commission can find a violation by the Ohio Democratic Party for statements made regarding a federal candidate. {¶ 9} Before addressing appellants' assignments of error, we will outline the standard of review for administrative appeals pursuant to R.C. 119.12. Pursuant to R.C. 119.12, when a common pleas court reviews an order of an administrative agency, it *Page 5 must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980),63 Ohio St.2d 108, 110-111; see, also, Andrews v. Bd. of Liquor Control (1955),164 Ohio St. 275, 280. Generally, an appellate court determines whether the trial court abused its discretion in review of the agency order.Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988),40 Ohio St.3d 257, 260-261. However, on questions of law, the review of the court of appeals is plenary. Univ. Hosp., Univ. of Cincinnati College ofMedicine v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339, paragraph one of the syllabus. {¶ 10} In cases involving the First Amendment, as in the case at bar, "an appellate court has an obligation to `make an independent examination of the whole record' in order to make sure that `the judgment does not constitute a forbidden intrusion on the field of free expression.'" Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 499, 104 S.Ct. 1949, quoting New York Times Co. v.Sullivan (1964), 376 U.S. 254, 284-286, 84 S.Ct. 710; see, also, TheTeam Working for You v. Ohio Elections Comm. (2001),142 Ohio App.3d 114, 119, citing Bose Corp. {¶ 11} The First Amendment of the United States Constitution states in part: "Congress shall make no law * * * abridging the freedom of speech." The Fourteenth Amendment of the United States Constitution makes the freedom of speech provision of the First Amendment applicable to the states. City of Ladue v. Gilleo (1994), 512 U.S. 43, 45,114 S.Ct. 2038, fn. 1. Analogously, the Ohio Constitution states in part: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being *Page 6 responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech[.]" Section 11, Article I, Ohio Constitution. {¶ 12} Political speech is "`at the core of our First Amendment freedoms.'" Republican Party v. White (2002), 536 U.S. 765, 774,122 S.Ct. 2528, quoting Republican Party of Minn. v. Kelly (C.A.8, 2001),247 F.3d 854, 861. "`Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order `to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" McIntyre v.Ohio Elections Comm. (1995), 514 U.S. 334, 346, 115 S.Ct. 1511, quotingBuckley v. Valeo (1976), 424 U.S. 1, 14-15, 96 S.Ct. 612, 632. Hence, the First Amendment has "`its fullest and most urgent application'" in campaigns for political office. McIntyre, at 347, quotingBuckley, 14-15. {¶ 13} However, certain statements in the context of political campaigns are not protected by the First Amendment. "Calculated falsehood falls into that class of utterances which `are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'"Garrison v. Louisiana (1964), 379 U.S. 64, 75, 85 S.Ct. 209. "[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected." Id. Therefore, "`false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth.'" McKimm v. Ohio Elections Comm. (2000), *Page 7 89 Ohio St.3d 139, at 147, quoting Pestrak v. Ohio Elections Comm. (C.A.6, 1991), 926 F.2d 573, 577. See, also, Garrison, at 75 ("Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.")4 False statements can distort the electoral process by potentially misleading and misinforming the electorate. See Marshall, False Campaign Speech and the First Amendment (2004), 153 U.Pa. L.Rev. 285. {¶ 14} Appellants' second and third assignments of error challenge the constitutionality of R.C. 3517.21(B)(1), 5 which provides, in part, as follows: No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials * * * shall knowingly and with intent to affect the outcome of such campaign do any of the following: (1) Use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office[.] {¶ 15} A violation of R.C. 3517.21(B)(1) must be proven by clear and convincing evidence. See R.C. 3517.155(D)(1); McKimm, at 142, fn.1 (applying R.C. 3517.21[B][10]). "Clear and convincing evidence is that measure or degree of proof which is more than a mere `preponderance of the evidence,' but not to the extent of such certainty as is required `beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to *Page 8 be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. {¶ 16} "All statutes have a strong presumption of constitutionality."Arbino v. Johnson Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 25. Moreover, it is a "well-settled principle of statutory construction that where constitutional questions are raised, courts will liberally construe a statute to save it from constitutional infirmities."State v. Sinito (1975), 43 Ohio St.2d 98, 101, citing State ex rel.Prospect Hosp. v. Ferguson (1938), 133 Ohio St. 325; Wilson v.Kennedy (1949), 151 Ohio St. 485. "Before a court may declare unconstitutional an enactment of the legislative branch, `it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.'" Groch v. General MotorsCorp., 117 Ohio St.3d 192, 2008-Ohio-546, quoting State ex rel. Dickmanv. Defenbacher (1955), 164 Ohio St. 142, paragraph one of the syllabus. {¶ 17} Appellants argue that because resolving the issue of whether the use of the title to an office implies that the candidate holds that office is highly subjective, regulating speech on the basis of what is implied is not constitutional. Appellants contend that a person can violate R.C. 3517.21(B)(1) without intentionally implying incumbency by using the title of the office, thus forcing the person to not use the title. Essentially, appellants argue that R.C. 3517.21(B)(1) is unconstitutionally overbroad because it prohibits persons from falsely implying incumbency in campaign materials. See Ashcroft v. Free SpeechCoalition (2002), 535 U.S. 234, 255, 122 S.Ct. 1389, 1404 ("The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process."). *Page 9 {¶ 18} In support of their contention that R.C. 3517.21(B)(1) is unconstitutional because it prohibits certain implications, appellants cite Pestrak, supra. In Pestrak, the Sixth Circuit Court of Appeals for the United States determined that R.C. 3599.091(B)(10), which is currently codified as R.C. 3517.21(B)(10), is not unconstitutional on its face. R.C. 3517.21 (B)(10), which is not the section at issue here, prohibits a person from, during the course of a campaign, and by means of campaign materials, knowingly and with intent to affect the outcome of such campaign, "[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate." {¶ 19} In addition to making the abovementioned determination, thePestrak court opined: "Certain portions of the statute, not at issue here, may pose greater problems. Ohio Rev. Code § 3599.091(B)(1) [currently R.C. 3517.21(B)(1)] proscribes the use of terms and titles in certain ways that `imply' certain things. Thus, a former governor may not use the term `elect Governor Smith' if he is not in fact the incumbent governor[.]" Id. at fn. 2. {¶ 20} Appellant's reliance on Pestrak for the proposition that R.C. 3517.21(B)(1) is unconstitutional is unpersuasive, as thePestrak court's statements concerning former R.C. 3599.091(B)(1) were dicta. Also, regarding appellants' contention that what a communication implies is subjective, we note that the Supreme Court of Ohio, inMcKimm, supra, observed that the standard for determining what a statement communicates is based on the reasonable reader standard, not what a particular person *Page 10 may subjectively perceive. See id. Moreover, for there to be a violation of R.C. 3517.21(B)(1), it must be determined, by clear and convincing evidence, that the person "knowingly and with intent to affect theoutcome of such campaign * * * use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office." Id. (Emphasis added.) Thus, R.C. 3517.21(B)(1) does not apply to circumstances only involving negligence or even recklessness. {¶ 21} For these reasons, we find as unpersuasive appellants' argument that R.C. 3517.21(B)(1) is unconstitutionally overbroad on the basis that it prohibits persons from falsely implying incumbency in campaign materials. {¶ 22} Appellants argue that R.C. 3517.21(B)(1) violates due process of law because it is unconstitutionally vague. A law is unconstitutionally vague if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden[.]"United States v. Harriss (1954), 347 U.S. 612, 617, 74 S.Ct. 808. The "vagueness doctrine," which is based on the idea of fairness, "is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." Colten v. Kentucky (1972), 407 U.S. 104, 110,92 S.Ct. 1953. The Supreme Court of Ohio has stated that "[w]hen a statute is challenged under the due-process doctrine prohibiting vagueness, the court must determine whether the enactment (1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement." Norwood v.Homey, *Page 11 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 84, citing Kolender v. Lawson (1983), 461 U.S. 352, 357, 103 S.Ct. 1855. {¶ 23} Appellants contend that the statute does not provide fair notice to a person of ordinary intelligence as to what conduct is prohibited by the statute. While an implication itself may be subject to interpretation, as is the wording of many statutes, the language of R.C. 3517.21(B)(1) is clear. Upon reviewing the statute, we resolve that a person of ordinary intelligence would reasonably understand what conduct is proscribed by R.C. 3517.21(B)(1). Additionally, we further resolve that the statute is sufficiently specific so as to prevent arbitrariness or discrimination in its enforcement. See Norwood, supra, at ¶ 84. The fact that circumstances may arise wherein it is relatively more difficult to determine whether there is a violation of a statute does not render that statute unconstitutionally vague. See Colton, supra. In sum, appellants have failed to demonstrate that R.C. 3517.21(B)(1) is unconstitutionally vague. {¶ 24} Appellants contend that R.C. 3517.21(B)(1) is an unconstitutional delegation of legislative power. The General Assembly is precluded from delegating its legislative function; however, it may delegate discretionary functions to administrative bodies so that they can apply the law to various sets of facts or circumstances. Blue Crossof N.E. Ohio v. Ratchford (1980), 64 Ohio St.2d 256, 259. "A statute does not unconstitutionally delegate legislative power if it establishes, through legislative policy and such standards as are practical, an intelligible principle to which the administrative officer or body must conform and further establishes a procedure whereby exercise of the discretion can be reviewed effectively." Id. at syllabus. *Page 12 {¶ 25} In enacting R.C. 3517.21(B)(1), the General Assembly set forth in detail the elements that must exist for the commission to find a violation of that statute, and set forth the evidentiary standard that must be established for the commission to find a violation. See R.C. 3517.21(B) and 3517.155(D)(1). Thus, we find as unpersuasive appellants' argument that R.C. 3517.21(B)(1) is an unconstitutional delegation of legislative power to the commission. {¶ 26} Appellants argue that the commission has interpreted R.C. 3517.21(B)(1) to require the use of the word "for" between the candidate's name and the office being sought, thereby compelling speech in violation of the United States and Ohio Constitutions. In this regard, appellants contend that the commission placed undue emphasis on the fact that the flyer did not contain the word "for" between the candidates' names and the titles of the offices. Appellants assert that the statute does not require the word "for" to be used between a candidate's name and the title of the office sought. Indeed, R.C. 3517.21(B)(1) does not require the use of the word "for" before the title of the office being sought. Even so, we disagree with appellants to the extent they contend that the commission has created a rule that the word "for" must be used by a non-incumbent. {¶ 27} We next address appellants' argument that R.C. 3517.21(B)(1) was unconstitutionally applied in this case. "In an `as applied' challenge, the party challenging the constitutionality of the statute contends that the `application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional. The practical effect of holding a statute unconstitutional "as applied" is to prevent its future application in a similar context, but not to render it utterly *Page 13 inoperative.'" Yajnik v. Akron Dept. of Health, 101 Ohio St.3d 106,2004-Ohio-357, at ¶ 14, quoting Ada v. Guam Soc. of Obstetricians Gynecologists (1992), 506 U.S. 1011, 113 S.Ct. 633 (Scalia, J., dissenting). In support of their argument that R.C. 3517.21(B)(1) was unconstitutionally applied in this case, appellants cite Briggs v. OhioElections Comm. (C.A.6, 1995), 61 F.3d 487. According to appellants, the flyer does not unambiguously imply the incumbency of the candidates. {¶ 28} In the Briggs case, the commission found Lou Briggs, a candidate for the office of Ohio State Representative for the 28th District, in violation of R.C. 3599.091(B)(1), which is now R.C. 3517.21(B)(1), in view of her paying for a billboard that stated: Lou Briggs State Representative Strong New Leadership Briggs, at 489. {¶ 29} Lou Briggs sued the commission in federal district court, alleging, inter alia, that R.C. 3599.091(B)(1) was unconstitutionally applied to her. See id. The district court dismissed the claim under Fed.R.Civ.P. 12(b)(6). Id. The Briggs court reversed, finding the plaintiff to have stated a claim upon which relief could be granted. Like the trial court, we find that the Briggs case is not controlling here because the Briggs case was resolved on the basis of the appellate court's finding that the district court erred in dismissing the matter under Fed.R.Civ.P. 12(b)(6). Thus, the Briggs holding did not resolve the constitutional claim raised by appellants. *Page 14 {¶ 30} In the case at bar, it is uncontested that none of the candidates on the flyer held the office for which he or she was seeking before the November 2006 election. But the parties do dispute whether the preparer of the flyer used the titles of the offices which the candidates were seeking in a manner that implies that the candidates held those offices. The flyer identifies nine Democratic candidates by their picture and name. As to six of the candidates, the public office that each was seeking to hold was identified under the corresponding name and picture. However, regarding Sherrod Brown, "U.S. Senate," was placed under his name, and "Supreme Court" was placed below the names of Ben Espy and Bill O'Neill. Without considering whether the flyer portrays Sherrod Brown, Ben Espy, and Bill O'Neill, as incumbents, we resolve that the flyer would communicate to a reasonable reader that the other six candidates currently held the offices of which they were seeking, considering the positioning of the candidates' photographs, names, and titles of the offices. We recognize that there is language on the flyer that generally advocates "change"; however, that language does not negate the clear implication conveyed by the flyer that these six candidates were incumbents. Therefore, we reject appellants' "as applied" constitutional arguments set forth by their third assignment of error. {¶ 31} Accordingly, appellants' second and third assignments of error are overruled. {¶ 32} Because they involve interrelated issues, we will address appellants' first and fourth assignments of error together. By their first assignment of error, appellants argue that the record contains no evidence showing that the Chairman of the ODP knowingly made a false statement. Appellants' fourth assignment of error alleges that the *Page 15 trial court erred in holding that the ODP violated R.C. 3517.21(B)(1) because the record does not establish by clear and convincing evidence that ODP violated R.C. 3517.21(B)(1). {¶ 33} The complaint named, as respondents, the candidates on the flyer and the Chairman of the ODP. After the commission dismissed the individual candidates who were named as respondents in the complaint, the only respondent remaining was the Chairman of the ODP. Thus, the violation finding of the commission applied to the Chairman of the ODP. As such, we must resolve whether there was clear and convincing evidence that the Chairman of the ODP knowingly, and with intent to affect the outcome of a political campaign used, in campaign material, titles of offices not currently held in a manner that implies incumbency. See R.C. 3517.21(B)(1); R.C. 3517.155(D)(1). {¶ 34} The Chairman of the ODP is expressly identified on the flyer as its sender. There is nothing in the record to suggest that the Chairman of the ODP did not sanction or authorize the distribution of the flyer. Furthermore, the Chairman of the ODP indisputably knew that none of the candidates on the flyer currently held the offices they were seeking. Thus, we find that there was clear and convincing evidence that the Chairman of the ODP knowingly, and with intent to affect the outcome of political campaigns, used titles of offices not currently held to imply that candidates on the distributed flyer currently held the office of which each was seeking. {¶ 35} Accordingly, appellant's first and fourth assignments of error are overruled. {¶ 36} By their fifth assignment of error, appellants argue that the trial court erred in holding that the commission can find that statements regarding a federal candidate can constitute a violation of R.C. 3517.21(B)(1). Only one of the candidates on the flyer, *Page 16 Sherrod Brown, was seeking the federal office of U.S. Senator. The other candidates were seeking state offices. The commission found a violation of R.C. 3517.21(B)(1) based on the evidence in the record, which, as determined above, supported a violation finding even without considering whether the flyer communicated that Sherrod Brown was an incumbent U.S. Senator. Thus, it is unnecessary for this court at this time to resolve the issue raised by appellants' fifth assignment of error. See App. R. 12(A)(1)(c). {¶ 37} Based on the foregoing, we overrule appellants' first, second, third, and fourth assignments of error. Additionally, for the reason expressed above, appellants' fifth assignment of error is moot. Accordingly, we affirm the judgment of the Franklin County Court of Common Pleas affirming the Election Commission's determination that there was a violation of R.C. 3517.21(B)(1), which precludes an implication that a candidate holds an office that is not currently held. Judgment affirmed. BROWN, J., concurs. BRYANT, J., dissents. 1 Adjacent to this image is the word "Washington." 2 Adjacent to this image is the word "Columbus." 3 R.C. 3517.157(D) provides that a party adversely affected by a final determination of the commission may appeal pursuant to R.C. 119.12. 4 Under First Amendment principles, such knowledge or recklessness must be demonstrated by clear and convincing evidence. See Committee toElect Straus Prosecutor v. Ohio Elections Comm., Franklin App. No. 07AP-12, 2007-Ohio-5447, at ¶ 9. 5 R.C. 3517.21 was formerly codified as R.C. 3599.091.

2016-07-06 06:42:07.945262+00

OPINION Defendant-appellant Dennis Danzy appeals the April 5, 2000 Judgment Entry of the Stark County Court of Common Pleas which found appellant guilty of one count of burglary and sentenced him accordingly. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE CASE AND FACTS During the evening hours of November 26, 1999, Roy and Deborah Morris left their home in Canton, Ohio, to walk their dogs. Mr. Morris locked the back door and turned on the back porch light as he left the residence. The couple returned around 8:00 p.m., but as they approached the house, Mr. Morris noticed a pane of glass was broken out of the back door. Mr. Morris went into the residence and discovered someone had taken approximately $5,000 in cash and some of his wife's jewelry from a desk drawer inside the house. Mr. Morris called the police. The police found the glass light cover on the back porch had been taken off and laid on the deck. The lightbulb had also been removed. This glass light cover produced a single thumb print which was submitted to the Stark County Crime Lab for analysis. Dennis Florea, a fingerprint and firearms examiner with the Stark County Crime Lab analyzed the print. Mr. Florea lifted the fingerprint from the glass light cover and submitted the fingerprint to the automatic fingerprint identification system (hereinafter "AFIS"). The AFIS system produced a list of likely candidates with whom a fingerprint match could be made. Appellant was the number one candidate on this latent fingerprint list. Mr. Florea subsequently obtained an ink fingerprint card bearing appellant's fingerprints and compared the fingerprint card to the latent print lifted from the glass light cover. Mr. Florea determined the latent impression left on the glass cover was made by appellant's left thumb. Thereafter, Detective Croston of the Canton City Police Department interviewed appellant about his whereabouts on the day of the burglary. Appellant denied knowing the victims or being near their residence on the date in question. Appellant's mother and step-father testified at trial appellant was at home at the time of the burglary. On January 28, 2000, the Stark County Grand Jury indicted appellant with one count of burglary in violation of R.C. 2911.12. The matter proceeded to trial on March 27, 2000. After deliberation, the jury returned a guilty verdict on March 28, 2000. In an April 5, 2000 Judgment Entry, the trial court found appellant guilty of one count of burglary, in violation of R.C. 2911.12, and sentenced appellant to a term of six years in prison. It is from this judgment entry appellant prosecutes his appeal, assigning the following as error: I. THE JUDGMENT RENDERED BY THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. II. STATEMENTS MADE BY THE PROSECUTOR IN HER CLOSING ARGUMENT WERE SO PREJUDICIAL AND INFLAMMATORY AS TO VIOLATE APPELLANT'S CONSTITUTIONALLY PROTECTED RIGHTS. III. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY WITH THE ENTIRE HOWARD INSTRUCTION AFTER THE JURY HAD REACHED AN IMPASSE IN ITS DELIBERATIONS. I In his first assignment of error, appellant maintains the verdict and judgment rendered by the trial court were against the manifest weight and sufficiency of the evidence. We disagree. In State v. Jenks (1981),61 Ohio St.3d 259, the Ohio Supreme Court set forth the standard of review when a claim of insufficiency of the evidence is made. The Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jenks, supra, at paragraph two of the syllabus. On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine "whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment. State v. Thompkins (1997),78 Ohio St.3d 380, 387 citing State v. Martin (1983), 20 Ohio App.3d 172,175. Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1. When applying the aforementioned standard of review to the case sub judice, based upon the facts noted supra, we do not find, as a matter of law, appellant's conviction was based upon insufficient evidence or against the manifest weight of the evidence. Burglary is proscribed by R.C. 2911.12. The statute provides, in relevant part: (A) No person, by force, stealth, or deception, shall do any of the following: * * * (2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense; * * * (4) Trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present. * * * Appellant maintains the State did not prove beyond a reasonable doubt all of the elements of burglary. Specifically, appellant argues the State failed to show he was the individual whose print matched those found on the lightbulb at the crime scene. Further, appellant contends the State failed to prove the likelihood a person may have been present in the home. "Where the State proves that an occupied structure is a permanent dwelling house which is regularly inhabited, that the occupying family was in and out on the day in question, and that such house was burglarized when the family was temporarily absent, the State has presented sufficient evidence to support a charge of aggravated burglary under R.C. 2911.11." State v. Kilby (1977), 50 Ohio St.2d 21, para. 1 of the syllabus. Similarly, the Ohio Supreme Court has also recognized a jury may draw a permissive inference occupants were present in the residence at the time of the burglary. See, State v. Fowler (1983),4 Ohio St.3d 16. Further, the Ohio Supreme Court held fingerprints corresponding to those of the accused are sufficient proof of his identity to sustained his conviction, where the circumstances show such fingerprint, found at the scene of the crime, could only have been impressed at the time the offense was committed. State v. Franklin (1991), 62 Ohio St.3d 118. We find the State proved each of the elements beyond a reasonable doubt. Mr. Florea testified the fingerprint found at the crime scene matched appellant's fingerprint. The victims herein testified their house was burglarized while they were temporarily absent from their home, walking their dogs. The victims testified they did not know appellant, and the light cover and lightbulb on the back porch were intact when they left the residence, supporting the conclusion the fingerprint had been impressed at the time the offense was committed. We find this evidence legally sufficient to support a conviction of burglary in violation of R.C. 2911.12. Further, we find the jury's verdict was supported by the manifest weight of the evidence. Appellant's first assignment of error is overruled. II In his second assignment of error, appellant maintains statements made by the prosecutor in her closing argument were so prejudicial to appellant as to result in a miscarriage of justice. We disagree. The test for prosecutorial misconduct is whether the prosecutor's conduct at trial was improper and prejudicially affected the substantial rights of the defendant. State v. Lott (1990), 51 Ohio St.3d 160, cert. denied112 L.Ed.2d 596; State v. Smith (1984), 14 Ohio St.3d 13. The touchstone of analysis "is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940,947, 71 L.Ed.2d 78, 87. Because appellant's counsel failed to object to the alleged incidences of prosecutorial misconduct, the alleged improprieties are waived, absent plain error. State v. Slagle (1992),65 Ohio St.3d 597, 604. Accordingly, we review these allegations under the plain error standard. Crim.R. 52(B) provides: (B) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Notice of plain error under this rule is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. See: State v. Long (1978), 53 Ohio St.2d 91; State v. Cooperrider (1983), 4 Ohio St.3d 226. Appellant points to four statements by the prosecutor and argues that each was improper as an expression of the prosecutor's personal belief or opinion as to the credibility of a witness. These statements were 1) "I submit to you that the evidence you heard in regards to Dennis Danzy's statement to Detective Croston and his parent's is not quite as unbiased. And I am not here to tell you that his parents are bad people." T. at 294; 2) "* * *they got the idea together, and that was Dennis was home with us, but they didn't get the details. And those are the types of details that you don't make up because you either remember it or you don't. And when Dennis Danzy's mother told you that she was at school the Thursday before and Dennis was home when she got home that Thursday night that was wrong. We are talking about Thanksgiving. And if she's mistaken about that, then she can be mistaken about other things * * * Dennis Danzy committed that burglary and the State has proven that * * * " T. at 295; 3) "And why didn't [Appellant] get caught by these people coming home? Maybe he was lucky * * * But what we do know is that he was there, and not just there, involved in part of that burglary, an essential part * * * " T. at 305; and 4) "Dennis Danzy committed that burglary at the Morris home on November 26 * * *" T. at 309. The Ohio Supreme Court has held it is improper for a prosecutor to express personal beliefs or opinions as the credibility of witnesses. State v. Apanovitch (1987), 33 Ohio St.3d 19. We find nothing improper with regard to statement number 1. While statements number 2, 3 and 4 may arguably, indirectly be construed to be statements of the prosecutor's personal beliefs, we find the prosecutor's comments fairly interpreted the evidence presented, and did not directly reflect the prosecutor's personal opinion about the evidence. Further, we find the statements did not effect appellant's substantial rights and did not result in a manifest miscarriage of justice. Accordingly, appellant's second assignment of error is overruled. III In his third assignment of error, appellant maintains the trial court committed plain error when it failed to fully provide the Howard instruction to the jury after the jury reached an impasse in deliberations. Appellant concedes he failed to object to the trial court's instruction in this regard; therefore, this Court must review any alleged error under a plain error standard. However, appellant maintains the trial court's instruction did amount to plain error. We disagree. The Howard charge is intended for a jury that believes it is deadlocked, so as to challenge them to try one last time to reach a censuses. State v. Howard (1989), 42 Ohio St.3d 18. In State v. Howard (1989),42 Ohio St.3d 18, 537 N.E.2d 188, paragraph two of the syllabus, the Supreme Court of Ohio set out the appropriate supplemental instruction to be given to juries in Ohio deadlocked on the question of conviction or acquittal: The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or intelligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another's arguments with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth, and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all other jurors. In formulating the instruction it approved in Howard, the Supreme Court recognized several competing factors regarding the giving of a supplemental instruction to a divided jury, and attempted to accommodate those factors. The supplemental instruction must not be coercive by stressing that the jury must reach a verdict. Howard, supra, It must, however, permit the trial judge to remind the jury of its purpose, namely, to reach a unanimous decision. It must be balanced and neutral. Id. at 24, 537 N.E.2d at 193. It cannot single out jurors in the minority and instruct them to reconsider their position. Id. It must encourage a verdict and it must be balanced, asking all jurors to reconsider their opinions. Id. at 25. In the matter sub judice, the jury submitted a question to the trial court indicating the jury was deadlocked in an eleven to one vote. In response thereto, the trial court read the exact Howard instruction stated above, less the first sentence of the charge. Appellant contends the trial court's failure to include the first sentence, "[t]he principle mode, provided by our constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict," was unfairly prejudicial. We find the trial court's deletion of the first sentence from the Howard charge did not destroy the balance of that charge. It did not coerce the jury to reach a verdict, nor did it single out jurors in the minority and instruct them to reconsider their position. We find, when taken as a whole, the trial court's instruction, did not render the charge non-neutral or unbalanced. While it may have been a better practice to give the entire jury instruction as mandated in Howard, we find no error amounting to a clear miscarriage of justice. Accordingly, appellant's third assignment of error is overruled. The April 5, 2000 Judgment Entry of the Stark County Court of Common Pleas is affirmed. _____________________ Hoffman, P.J. Hoffman, P.J. Farmer, J. and Reader, V.J. concur

2016-07-06 06:42:08.080512+00

OPINION This matter presents a timely appeal from a judgment rendered by the Southwest Area County Court, Columbiana County, Ohio, finding defendant-appellant, James L. Hill, guilty of driving under the influence (DUI) and driving left-of-center, along with his subsequent sentencing thereon. At the outset, we note that plaintiff-appellee, Village of Lisbon, has failed to file a brief in response to the arguments proposed by appellant. Pursuant to App.R. 18 (C), this court is granted authority to accept appellant's statement of the facts and issues as correct and reverse the judgment of the trial court if appellant's brief reasonably appears to sustain such action. On May 29, 1996, Patrolman John Hancock witnessed appellant exit the parking lot of the Ivystone Lounge and head north on South Market, in Lisbon, Columbiana County, Ohio. Appellant drew Patrolman Hancock's attention by making a wide turn onto Washington Street, driving one tire width left-of-center down the street and traveling at a speed of ten to twelve miles per hour in a thirty-five mile per hour zone. Patrolman Hancock followed appellant down Washington Street and onto Beaver Street, where appellant made another wide turn and continued to drive left-of-center. Next, appellant pulled into a vacant Amoco parking lot where he quickly turned off his vehicle and handed his wife the car keys in the belief that he could not be arrested if his wife held the keys. Patrolman Hancock testified that when he approached the vehicle, he could smell a strong odor of alcohol on appellant. (Tr. 11). Patrolman Hancock also stated that when he asked appellant for his driver's license and proof of insurance, he observed that appellant lacked motor coordination, his speech was slurred and his eyes were blood shot. (Tr. 11). As a result of his observations, Patrolman Hancock asked appellant if he would submit to field sobriety tests. Appellant agreed, but quickly explained that he was presently taking five different medications as a result of back surgery. (Tr. 12). Appellant also stated that he used alcohol as a pain reliever. (Tr. 13). Appellant thereafter proceeded to fail the field sobriety tests which he attempted to perform in accordance with Patrolman Hancock's instructions. Patrolman Hancock then asked appellant if he would submit to a breath test and appellant answered in the affirmative. (Tr. 15). At this point, Patrolman Hancock read appellant his Miranda warnings and placed him in custody. (Tr. 15). On the drive to the Columbiana County Sheriff's Department, appellant stated that he wanted a blood test and Patrolman Hancock responded that he could have an additional test at his own expense after the breath test. (Tr. 16). Upon appellant's arrival at the sheriff's department, Deputy Allan Young also testified that he noticed the smell of alcohol on appellant. (Tr. 47). Next, appellant refused to take the breath test until there was a public defender present. (Tr. 17). Patrolman Hancock testified that he informed appellant there was no public defender available, but that appellant was free to contact an attorney if he desired. Appellant did not contact an attorney, continued to refuse to take the breath test and refused to sign the refusal form. (Tr. 17). Appellant was ultimately charged with driving left-of-center and DUI, to which he pled not guilty. A bench trial commenced on September 13, 1996 and following due consideration of the evidence and testimony offered, the trial court found appellant guilty of DUI and driving left-of-center, given the totality of the circumstances. Appellant was sentenced to serve thirty days incarceration, with all but three of those days being suspended. Appellant was ordered to attend an alternative driving program and upon successful completion of such program, appellant would be given credit for the three days incarceration. The trial court also levied fines and costs against appellant, placed him on unsupervised probation for a period of two years and suspended his driver's license for 180 days. This appeal followed. Appellant sets forth three assignments of error on appeal. Appellant's first assignment of error alleges: "The trial court erred in finding the Defendant guilty of Driving Under the Influence where the police officer lacked an articulable suspicion to stop and detain the Defendant." Appellant essentially argues that leaving the parking lot of a bar, driving one tire width left-of-center for the entirety of a short drive consisting of two streets, making two wide turns, and driving at or below twelve miles an hour, are insufficient observations to provide an officer with reasonable and articulable suspicion that a person is driving under the influence. Appellant relies upon a number of cases which state that a police officer does not have the requisite reasonable and articulable suspicion to detain a driver for briefly going over the center line or briefly weaving in his own lane. (See, for example, State v. Drogi (1994), 96 Ohio App.3d 466). The applicable legal standard for determining whether a police officer was justified in making an investigatory stop is reasonable suspicion. Dayton v. Erickson (1996), 76 Ohio St.3d 3, Specifically, a police officer makes a constitutionally valid stop of a vehicle, regardless of the officer's subjective motivation for stopping the driver, if the officer has an articulable and reasonable suspicion that any criminal violation, including a minor traffic violation, has occurred. Dayton, supra. This objective standard makes inquiry of whether the facts available to the officer and any rational inferences taken therefrom would lead a person of reasonable caution to believe that a violation is occurring and that an investigatory stop is appropriate. State v. Richardson (December 16, 1998), Mahoning App. No. 94 CA 57, unreported, citing Terry v. Ohio (1968),392 U.S. 1, 21-22. Appellant is correct in noting it has been held that evidence of a momentary or minuscule crossing of a lane line or weaving within a lane, without more, does not justify an investigatory stop. State v. Johnson (1995), 105 Ohio App.3d 37; Drogi, supra;State v. Gullett (1992), 78 Ohio App.3d 138. In Drogi, this court held that insubstantial drifts across lane lines did not give rise to reasonable and articulable suspicion sufficient to outweigh a citizen's right to privacy. However, Drogi and its progeny can be distinguished from the case at hand in that appellant's failure to operate his vehicle within the marked lanes was more than a momentary lapse or a de minimis marked lanes violation. As previously stated, appellant left an establishment which was primarily a bar. Appellant proceeded to make two wide turns, drove one tire width over the center line for the duration of his journey down two streets and continually traveled well below the posted speed limit. Given the totality of the circumstances, Patrolman Hancock clearly had sufficient reasonable and articulable suspicion to stop and detain appellant. As such, appellant's arguments in this regard are not well-taken. Appellant's first assignment of error is found to be without merit. Appellant's second assignment of error alleges: "There was insufficient evidence presented at trial to support a conviction for driving under the influence." Appellant alleges that the only evidence supporting his conviction in this case was his poor performance on the field sobriety tests. Appellant claims that the horizontal gaze nystagmus test was inadmissible to establish that he was driving under the influence and the fingertip-count test was not approved by the National Highway Traffic Safety Administration as a means of testing for driving under the influence. Further, appellant maintains that the results of the heel-toe test offered insufficient evidence as he testified that his physical problems caused his poor performance. Therefore, appellant argues that any rational trier-of-fact, after reviewing the evidence in a light most favorable to the prosecution, could not have found the essential elements of DUI proven beyond a reasonable doubt. Sufficiency of the evidence is the legal standard applied to determine whether a case may go to the fact-finder or whether the evidence is legally sufficient as a matter of law to support a conviction. State v. Smith (1997), 80 Ohio St.3d 89, 113. In essence, sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. Whether the evidence is legally sufficient to sustain a conviction is a question of law.Thompkins, supra. In reviewing the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier-of-fact could have found the essential elements of the crime proven beyond a reasonable doubt. Smith, supra, at 113. In State v. Applegarth (1996), 114 Ohio App.3d 666, this court held that there was sufficient evidence to support a conviction on a DUI charge where the driver crossed over the center line on at least three separate occasions, smelled strongly of alcohol, had red eyes and slurred speech at the time he was pulled over by a highway patrol officer. A complete review of the record in the case at bar reveals that there was sufficient, competent and credible evidence to support the trial court's finding that appellant was guilty beyond a reasonable doubt of operating his vehicle while under the influence of alcohol. Appellant never traveled completely within his own lane during the entire time in question. Appellant smelled strongly of alcohol, his eyes were blood shot, his speech was slurred and he performed poorly on various field sobriety tests. Although appellant testified that his red eyes, slurred speech and poor performances on the field sobriety tests were due to a medical condition, it was within the purview of the trial court, as the trier-of-fact, to believe one witness more than another. The trial court was in the best position to assess the credibility of the witnesses and to determine the weight to be afforded the evidence offered. State v. DeHass (1967), 10 Ohio St.2d 230. Therefore, the trial court had before it sufficient evidence from which to find that the essential elements of driving under the influence were proven beyond a reasonable doubt. Appellant's second assignment of error is found to be without merit. Appellant's third assignment of error alleges: "Evidence of Defendant's refusal to take the breath test should not have been considered by the trial court where the Defendant requested the right to consult with an attorney. Appellant argues that because appellee did not adequately establish the manner in which he was given the opportunity to consult an attorney, evidence that he refused to take the breath test should not have been considered by the trial court. Appellant specifically contends Patrolman Hancock's testimony that he gave appellant the opportunity to have an attorney present was insufficient because Patrolman Hancock failed to state the means by which appellant was afforded the right to contact an attorney. Therefore, appellant argues that he was denied his right to due process because he was not permitted to consult with an attorney prior to the administration of the breath test. It must be noted that appellant did not object to the testimony presented at trial regarding his refusal to take the breath test. The Ohio Supreme Court has consistently held that an appellate court need not consider an error which the complaining party could have called, but did not call, to the trial court's attention at such time when the alleged error could have been corrected. (See State v. Peagler (1996), 76 Ohio St.3d 496, 499) Additionally, appellant did not attempt to suppress the evidence of his refusal to take the breath test through any motion, pretrial or otherwise. Therefore, this court need not address appellant's argument under this assignment of error. However, even in considering same, appellant's argument must nonetheless fail. In State v. Lloyd (1998), 126 Ohio App.3d 95, 107-108, this court stated, in relevant part: "* * * In Dobbins v. Ohio Bur. of Motor Vehicles (1996), 75 Ohio St.3d 533, 537, * * * the Supreme Court of Ohio followed its decision in McNulty v. Curry (1975), 42 Ohio St.2d 341, * * * and held that "the right to counsel associated with the protection against self-incrimination contained in the Fifth Amendment to the United States Constitution, or as guaranteed by the Sixth Amendment, does not apply to the stage at which the officer requested the chemical test for alcohol content.' The United States Supreme Court has held that the Sixth Amendment right to counsel for criminal defense applies only to the "critical stages' of criminal proceedings. * * * A breath — or blood-alcohol test is merely a preparatory stage of the prosecution and is not considered a critical stage at which the Sixth Amendment right to counsel would attach. Dobbins, 75 Ohio St.3d at 537, * * * citing McNulty, 42 Ohio St.2d at 344, * * * Furthermore, in Nyflot v. Minnesota Commr. of Pub. Safety (1985), 474 U.S. 1027, 1029, * * * the United States Supreme Court rejected a petitioner's argument that the Sixth Amendment right to counsel attaches prior to taking an breath-alcohol test." However, appellant does have a statutory right to counsel upon arrest, detention or being taken into custody pursuant to R.C.2935.20, which goes beyond the right to counsel guaranteed by the state and federal constitutions. McNulty, supra. R.C. 2935.20 states, in pertinent part: "After the arrest, detention, or any other taking into custody of a person, with or without a warrant, such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state * * *." (Emphasis added). In the case at bar, Patrolman Hancock testified that appellant was told there was no public defender available, however, if appellant wished to contact an attorney, he was free to do so. Appellant did not dispute Patrolman Hancock's statement, but indicated during his testimony that he expected the police to obtain an attorney for him. R.C. 2935.20 states that a person in custody has the right to contact, and is to be given facilities to contact, an attorney. R.C. 2935.20 does not state that police officials are required to obtain an attorney for a subject under arrest or otherwise in detention. Further, Patrolman Hancock testified that he afforded appellant an opportunity to contact an attorney. Appellant did not deny this fact. Therefore, Patrolman Hancock properly complied with R.C. 2935.20. Appellant's third assignment of error is found to be without merit. The judgment of the trial court is affirmed. Donofrio, J., Waite, J., concurs. APPROVED: _________________________________ EDWARD A. COX, PRESIDING JUDGE

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DECISION AND JOURNAL ENTRY Appellant, Theresa Ostrander, appeals the entry of summary judgment against her by the Summit County Court of Common Pleas. We affirm. Construing the facts in a light most favorable to the non-moving party, Ms. Ostrander brought a computer to Michael Andrew, doing business as Mac Exchange, appellee, for repair. Mr. Andrew estimated that it would be prohibitively expensive to repair the computer, costing several thousand dollars. Ms. Ostrander then sold the broken computer to Mr. Andrew for $200. On April 15, 1999, Ms. Ostrander purchased a computer from Mr. Andrew, which Mr. Andrew represented to be new. She purchased the computer using a check drawn on the account of Old Forge Services Company ("Old Forge"), which was listed as the purchaser on the sales receipt. Thereafter, Ms. Ostrander learned that the computer was used and that the old computer could have been fixed for $200, substantially less than Mr. Andrew had said repairs would cost. A letter was sent by an attorney representing Old Forge to Mr. Andrew, complaining of his actions. Furthermore, Ms. Ostrander alleges that Mr. Andrew falsely represented himself to Ms. Ostrander as an authorized retailer of Macintosh Computers. On April 28, 1999, Ms. Ostrander filed suit seeking damages under R.C. 1345 et seq. for the unconscionable, unfair, and deceptive acts committed by Mr. Andrew and alleging that Mr. Andrew's acts caused $12,000 in actual damages. She also sought treble damages pursuant to R.C. 1345.09. She further asserted claims for breach of contract, fraud, and negligent misrepresentation, as well as claims for punitive damages in each instance. On August 27, 1999, Mr. Andrew filed a motion for partial summary judgment as to Ms. Ostrander's claims under R.C. 1345 et seq. and the punitive damage claims that were based on her status as a consumer. On October 1, 1999, the trial court entered partial summary judgment in favor of Mr. Andrew. Ms. Ostrander dismissed her remaining claims without prejudice, and the trial court issued an order stating that there was no just reason for delay on October 14, 1999. This appeal followed.1 Ms. Ostrander asserts one assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT. Ms. Ostrander avers that the trial court erred in entering summary judgment in favor of Mr. Andrew because there are material issues of fact remaining to be litigated with regard to whether the computer was purchased primarily for consumer or personal use, and hence, whether the transaction is covered by the Consumer Sales Practices Act. We disagree. Pursuant to Civ.R. 56(C), summary judgment is proper if: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Appellate review of a lower court's entry of summary judgment is de novo, applying the same standard used by the trial court. McKay v. Cutlip (1992), 80 Ohio App.3d 487, 491. The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied, the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that shows a genuine dispute over the material facts exists. Henkle v.Henkle (1991), 75 Ohio App.3d 732, 735. The Consumer Sales Practices Act prohibits unfair or deceptive acts, R.C. 1345.02, and unconscionable acts or practices, R.C. 1345.03, in consumer transactions. Consumer transactions are defined as "a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, a franchise, or an intangible, to an individual for purposes that are primarily personal, family, or household, or solicitation to supply any of these things." R.C. 1345.01(A). "A consumer transaction typically involves a natural person who obtains or is solicited to obtain an item of goods, a service, or an intangible primarily for personal, family, or household purposes. Also included are certain analogous transactions in which a natural person obtains or is solicited to obtain a business opportunity in which he has not been previously engaged." Heritage Hills, Ltd. v. Deacon (1990), 49 Ohio St.3d 80, 82, quoting 7A Uniform Laws Annotated, Business and Financial Laws (Master Ed. 1985), Uniform Consumer Sales Practices Act, 233, Official Comment to Section 2(1), at 235. In the present case, the computer was purchased using a check drawn from the account of Old Forge. Moreover, that company is listed as the purchaser of the computer on the sales receipt from Mac Exchange. Also, in a letter dated April 23, 1999, it was an attorney representing Old Forge who complained of Mr. Andrew's conduct regarding the sale of a computer to Old Forge. Ms. Ostrander avers in her affidavit that the malfunctioning computer, which she originally brought to Mr. Andrew for service, was given to her as a bonus by Old Forge. Although, in her affidavit, Ms. Ostrander states that the malfunctioning computer was used by her for at least some personal purposes, she does not aver what the new computer was purchased for or whether it was purchased for her by Old Forge or whether it was purchased by Old Forge for itself as a replacement for the malfunctioning computer which was given to her. Hence, we conclude that no genuine issue of material fact remains in dispute as to whether the Consumer Sales Practices Act applies to the transaction in question because: (1) the sale of the malfunctioning computer was to Mr. Andrew where, to be a consumer transaction, the sale must be "to an individual for purposes that are primarily personal," (Emphasis added.) R.C.1345.01(A); (2) the purchase of the new computer was by a corporation rather than a natural person, Deacon,49 Ohio St.3d at 82; Toledo Metro Fed. Credit Union v. Ted Papenhagen Oldsmobile,Inc. (1978), 56 Ohio App.2d 218, 221; and (3) although Ms. Ostrander may have used the malfunctioning computer for some personal purposes, the new computer was not purchased primarily for personal use, Barazzotto v. Intelligent Systems, Inc. (1987),40 Ohio App.3d 117, 121. Hence, as we conclude that the transaction in this case was not covered by the Consumer Sales Practices Act, R.C. 1345.01 et seq., we conclude that the trial court did not err in entering summary judgment against Ms. Ostrander for her claim under that act. Accordingly, Ms. Ostrander's assignment of error is overruled. Ms. Ostrander's assignment of error is 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, 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. _____________________________________ WILLIAM G. BATCHELDER, FOR THE COURT. WHITMORE, J. CONCURS. 1 The Attorney General of Ohio was notified of Ms. Ostrander's suit on May 3, 1999 but has not appealed the trial court's ruling.

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{¶ 51} I concur that the state need not prove that a rape victim was alive at the moment of penetration. It is sufficient that the state prove that the victim was living at the beginning of the criminal conduct that the rape was part of. And I fully concur in the balance of the opinion. *Page 1

2016-07-06 06:42:08.014712+00

OPINION *Page 2 {¶ 1} Defendant-appellant Willie Alfred Parish appeals his conviction and sentence entered by the Stark County Court of Common Pleas, on one count of possession of cocaine, in violation of R.C. § 2925.11(A), (C)(4)(c), after the trial court found him guilty following Appellant's entering a plea of no contest. Plaintiff-appellee is the State of Ohio. {¶ 2} On September 18, 2006, the Stark County Grand Jury indicted appellant on the aforementioned charge. Appellant entered a plea of not guilty at his arraignment. Appellant filed a Motion to Suppress, requesting the trial court to prohibit the State from presenting any evidence obtained during the search of the vehicle. The trial court conducted a hearing on November 6, 2006. {¶ 3} Sgt. John Dittmore of the City of Canton Police Department testified he was surveilling an apartment building on the 2700 block of Rowland Avenue, N.E., in Canton, Ohio, on July 25, 2006. Sgt. Dittmore explained he is the supervisor of the Gang Unit. Sgt. Dittmore and the officers he was supervising were assisting the police department Vice Unit and the Stark County Metropolitan Narcotics Unit in the surveillance of an individual named Dontez Lewis. The Stark County Metropolitan Narcotics Unit had received information that Lewis was supplying crack cocaine to other individuals and was selling the drug from that location. {¶ 4} The sergeant described the neighborhood where the apartment building is located as residential and a low area for drug activity. On the evening in question, Sgt. Dittmore observed Jarvis Moore driving a maroon Buick Roadmaster. Moore parked the vehicle near the building Sgt. Dittmore was watching. Appellant was *Page 3 a passenger in the vehicle. At about the same time, Dontez Lewis and a female also arrived. Lewis walked toward the door of the apartment complex when Moore made contact with him. Moore and Lewis spoke briefly and walked into the building together. {¶ 5} Earlier that evening, Sgt. Dittmore observed an individual named Benjamin Tyson, with whom the officer had past dealings, arrive at the residence. Tyson entered the building and exited a short time later. Sgt. Dittmore provided the information to Canton Police Officer Steven Swank, who was in a marked vehicle. Officer Swank initiated a traffic stop after observing Tyson commit a traffic violation. During the stop, Tyson was found to be in possession of crack cocaine. {¶ 6} Approximately one hour later, Sgt. Dittmore watched Moore enter and leave the apartment building in a similar fashion to Tyson. Upon exiting the apartment building, Moore possessed a small brown bag. Sgt. Dittmore observed that appellant remained in the vehicle during Moore's entry into the apartment building. Sgt. Dittmore noted, based upon his training and experience, and upon the observation made in the earlier stop in which crack cocaine was found, he believed the bag Moore was carrying contained narcotics. Sgt. Dittmore added that multiple people coming to an apartment over a short period of time indicated drug activity. Additionally, the department had received complaints of drug activity occurring at that apartment complex. {¶ 7} Sgt. Dittmore relayed the information regarding Moore and appellant to Officer Swank and instructed the officer to maintain surveillance of Mr. Moore after he left the area and to make a stop of the vehicle. *Page 4 {¶ 8} Officer Swank testified he was involved with the stop of Moore's vehicle on July 25, 2006. Officer Swank stated he stopped the vehicle because he was directed by Sgt. Dittmore to do so based upon previously obtained information. The officer recalled the Sergeant wanted him to make the stop because he (Sgt. Dittmore) believed Moore had made a pickup of illegal narcotics from the apartment building his unit had been surveilling. Once Moore stopped his vehicle, Officer Swank approached the driver's side and made contact with Moore. The officer requested Moore's driver's license, but Moore informed him he did not have one at that time. Officer Swank instructed Moore to exit the vehicle and then secured him in handcuffs. {¶ 9} Canton Police Det. Kevin Sedares testified he was involved in the stop of a vehicle driven by Moore on July 25, 2006. Prior to the vehicle being stopped by Officer Swank, Det. Sedares began to follow the vehicle in the area of 24th or 25th Street and Rowland Avenue. The detective followed Moore's vehicle South to 19th Street. Officer Swank appeared and initiated the traffic stop at the intersection of 19th and Market Street. Det. Sedares recalled the vehicle did not stop immediately after Officer Swank activated his overhead lights. He observed a lot of movement in the vehicle and sent an advisement over the radio that Moore and his passenger might be ready to run out of the vehicle. When asked for the reason of the stop of the vehicle, Det. Sedares answered: "Suspicious of drug activity." Because of the movement in the vehicle prior to the stop, the detective had a raised level of suspicion of weapons in the vehicle. While Officer Swank approached the driver's side, Det. Sedares maintained a position of cover at the right rear passenger side of the vehicle. The detective made contact with appellant after Officer Swank began to talk with Moore. Det. Sedares *Page 5 instructed appellant to step out of the vehicle, asked his identity, and patted him down for weapons. Officer Sedares did not find any weapons on appellant. {¶ 10} Officer Swank testified he later searched appellant after appellant gave him consent to do so. During the search, Officer Swank discovered a large marble size bulge between appellant's buttocks. Officer Swank inquired whether the bulge was crack cocaine, and appellant confirmed that it was. Appellant also told Officer Swank that Moore had thrown the crack cocaine into his lap and told him to hide it. During the search of the vehicle, Officer Swank recovered a brown paper bag with a half-empty 40-ounce container of beer inside. {¶ 11} Following the testimony of the officers', counsel for the parties presented closing arguments to the trial court. The trial court found the officers had a reasonable articulable suspicion of criminal activity to stop Moore's vehicle. The trial court further found the officers did not violate appellant's constitutional rights regarding the stop. Based upon the findings, the trial court overruled appellant's Motion to Suppress/Dismiss. The trial court memorialized its decision via a Judgment Entry filed November 7, 2006. On November 13, 2006, appellant appeared before the trial court and entered a plea of no contest to one count of possession of cocaine. The trial court found appellant guilty and sentenced him to a period of incarceration of one year. {¶ 12} It is from this conviction and sentence Appellant appeals, raising the following assignment of error: {¶ 13} "I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS EVIDENCE." I. *Page 6 {¶ 14} In his sole assignment of error, Appellant contends the trial court erred in failing to grant his motion to suppress because the police did not have a reasonable and articulable suspicion to stop and search appellant. {¶ 15} 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, 437 N.E .2d 583; State v. Klein (1991),73 Ohio App.3d 486, 597 N.E.2d 1141; State v. Guysinger (1993),86 Ohio App.3d 592, 621 N.E.2d 726. 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. See State v. Williams (1993),86 Ohio App.3d 37, 619 N.E.2d 1141, overruled on other grounds. 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, 641 N.E.2d 1172; State v.Claytor (1993), 85 Ohio App.3d 623, 620 N.E.2d 906; Guysinger, supra. *Page 7 {¶ 16} As the United States Supreme Court held in Ornelas v.U.S., (1996), 517 U.S. 690, 116 S.Ct. 1657, ". . . as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." {¶ 17} In a motion to suppress, the trial court assumes the role of trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. Guysinger, supra, at 594 (Citations omitted). Accordingly, an appellate court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Id. (Citation omitted). {¶ 18} The Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *." The amendment has been extended to seizures of passengers in traffic stops under the rationale that the amendment "protects people, not places."Katz v. United States (1967), 389 U.S. 347, 351, 88 S.Ct. 507,19 L.Ed.2d 576; See also, Brendlin v. California (2007),127 S.Ct. 2400,168 LE.2d 132 (passenger was seized and entitled to challenge stop). Using the reasonableness requirement of the amendment, the United States Supreme Court has held that a seizure must be reasonable both at its inception and throughout its duration. See Terry v. Ohio (1968),392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889. A traffic stop is considered to be "analogous" to a Terry stop. Berkemer v. McCarty (1984),468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317. Thus, in order to effect a valid traffic stop, the police need only have a reasonable suspicion that some illegality has occurred or is occurring in order to stop a vehicle to investigate. Id. The basis for this suspicion, however, must be clearly articulable. Terry, 392 U.S. at 21. *Page 8 {¶ 19} In Terry v. Ohio (1968), 392 U.S. 1, 22, the United States Supreme Court determined "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." However, for the propriety of a brief investigatory stop pursuant to Terry, the police officer involved "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be viewed in the light of the totality of the surrounding circumstances" presented to the police officer. State v. Freeman (1980), 64 Ohio St.2d 291, paragraph one of the syllabus. {¶ 20} At the onset, we note this Court has ruled in the case ofState v. Moore, Stark Co. App. No. Case No. 2006CA00344, 2007-Ohio 4289) that the initial stop of the Moore vehicle was unconstitutional because "[although the facts known to Dittmore indicated a drug transaction had possible occurred, such does not rise to the level of a reasonable suspicion Appellant [Moore] actually participated in criminal activity." Id. at ¶ 21. {¶ 21} In this case, Sgt. Dittmore provided all the details upon which to base a stop of the vehicle in which appellant was a passenger. Sgt. Dittmore was conducting surveillance of a suspected drug dealer, Lewis. (T. at 9). The sergeant testified that an arrest of one individual took place after contact with Lewis. (T. at 10). He observed Moore drive a vehicle to the apartment complex and wait until Lewis arrived. (T. at 12). He saw Moore exit the vehicle and approach Lewis. Lewis and Moore spoke and then entered the building. (T. at 12). Sgt. Dittmore did not know *Page 9 which apartment they entered. (T. at 21). Moore then returned to his vehicle with a brown paper bag. (T. at 15). Appellant remained in the vehicle throughout the entire exchange. (T. at 22). Appellant did not speak with Lewis. (T. at 23). Sgt. Dittmore did not recognize appellant. (T. at 22). Moore then drove the vehicle away with appellant in the passenger seat. (T. at 15). Sgt. Dittmore relayed this information to Officer Swank and instructed Officer Swank to stop Moore's vehicle. (T. at 17). {¶ 22} In accordance with our holding in Moore, we hold there was no reasonable suspicion under Terry to stop the vehicle. The information which Sgt. Dittmore relayed to the officers was scant at best. He may have had a hunch there was criminal activity. An officer may not predicate a stop upon intuition or a hunch. Columbus v. Holland (1991),76 Ohio App.3d 196, 601 N.E.2d 190. There must be reasonable suspicion for a stop and that was missing here. Because we find there was no justification for the stop of the vehicle, any search occurring after the stop is also outside the bounds of constitutionality. {¶ 23} Accordingly, appellant's sole assignment of error is sustained. {¶ 24} The judgment of the Stark County Court of Common Pleas is reversed and the cause is remanded to the trial court for further proceedings consistent with the law and this opinion. Delaney, J., Hoffman, P.J. and Farmer, J. concur. *Page 10 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is reversed and remanded. Costs assessed to appellee. *Page 1

2016-07-06 06:42:08.273972+00

OPINION {¶ 1} This matter is before the Court on the Notice of Appeal of Octavio E. Acedo-Gonzalez, filed November 14, 2007. On April 27, 2007, Acedo-Gonzalez was indicted on one count of engaging in a pattern of corrupt criminal activity, in violation of R.C. 2923.32(A)(1), a felony of the first degree, one count of conspiracy to commit engaging in a pattern of corrupt *Page 2 activity, in violation of R.C. 2923.01(A)(2) and 2923.32(A)(1), a felony of the second degree, one count of conspiracy to trafficking in cocaine, in violation of R.C. 2923.01(A)(1) and 2925.03(A)(1), a felony of the second degree, with a major drug offender specification, one count of conspiracy to trafficking in heroin, in violation of R.C. 2923.01(A)(1) and 2925.03(A)(1), a felony of the second degree, with a major drug offender specification, one count of trafficking in heroin, in violation of R.C. 2925.03(A)(2), a felony of the first degree, with a major drug offender specification, one count of possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree, with three forfeiture specifications of an RCA 42 inch television, a Sony DVD player and cash in the amount of $907,438.85. {¶ 2} On September 4, 2007, Acedo-Gonzalez pled guilty to trafficking in heroin, along with the three forfeiture specifications. The State dismissed the remaining counts and specifications, and recommended a sentencing range of a minimum term of five years up to a maximum term of 10 years. The trial court sentenced Acedo-Gonzalez to a term of 10 years imprisonment and five years of mandatory postrelease control. {¶ 3} Acedo-Gonzalez asserts one assignment of error as follows: {¶ 4} "THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO A MAXIMUM SENTENCE OF TEN YEARS." {¶ 5} Acedo-Gonzalez argues that he had no criminal history and, although he participated in a complex drug conspiracy, he had only been involved and present in the United States for a few weeks prior to his arrest. According to Acedo-Gonzalez, our standard of review is abuse of discretion. The State responds that the trial court did not err in imposing a sentence within the statutory range. *Page 3 {¶ 6} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,845 N.E.2d 470, the Supreme Court of Ohio "established a bright-line rule that anypre-Foster sentence to which the statutorily required findings of fact applied (i.e. more-than-minimum, maximum, and consecutive sentences), pending on direct review at the time that Foster was decided, must be reversed, and the cause remanded for re-sentencing in accordance withFoster, if the sentence is a subject of the appeal." State v.Logsdon, Clark App. No. 2005-CA-66, 2006-Ohio-6833. Pursuant toFoster, trial courts now "have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than minimum sentences." Foster, ¶ 100. {¶ 7} In State v. Kalish, Slip Opinion No. 2008-Ohio-4912, ¶ 4,14, the Supreme Court of Ohio recently determined, "[i]n applyingFoster to the existing statutes, appellate courts must apply a two-step approach. First, they must examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law," the standard found in R.C. 2953.08(G). {¶ 8} "If this first prong is satisfied, the trial court's decision shall be reviewed under an abuse-of-discretion standard." Id., ¶ 4. TheKalish Court noted, trial courts still must consider R.C. 2929.11 and2929.12 in sentencing, "and be mindful of imposing the correct term of postrelease control." Id., ¶ 13. "R.C. 2929.11 and 2929.12 * * * are not fact-finding statutes like R.C. 2929.14. Instead, they serve as an overarching guide for trial judges to consider in fashioning an appropriate sentence. In considering these statutes in light ofFoster, the trial court has full discretion to determine whether the sentence satisfies the overriding purpose of Ohio's sentencing structure. Moreover, R.C. 2929.12 explicitly permits trial courts to exercise *Page 4 their discretion in considering whether its sentence complies with the purposes of sentencing. It naturally follows, then, to review the actual term of imprisonment for an abuse of discretion." Id., ¶ 17. {¶ 9} Here, the trial court's decision was not contrary to law. R.C. 2929.14(A)(1) authorizes a prison term of "three, four, five, six, seven, eight, nine, or ten years" for a felony of the first degree. The trial court expressly stated that it "considered the presentence investigation in this case, the memorandum filed by Counsel, the purposes and principles of sentencing, and the Court has balanced the seriousness and recidivism factors pursuant to Ohio Revised Code Section 2929.12." The trial court properly applied postrelease control. {¶ 10} Next, we must determine if the trial court abused its discretion. "An abuse of discretion is `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, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O. 3d 169, 404 N.E.2d 144."Kalish, ¶ 19. {¶ 11} Having reviewed the record, we conclude that the trial court did not abuse its discretion in sentencing Acedo-Gonzalez to a ten year term. At sentencing, the trial court noted that Acedo-Gonzalez, as originally indicted, faced as much as 55 years in prison. The court considered the nature of the offense and Acedo-Gonzalez's involvement in an "entire * * *conspiracy" to sell drugs. The court noted, "drugs are an evil," and "those that are the purveyors of drugs, in any degree," destroy lives. According to the court, Acedo-Gonzalez was "a bag man; someone who would be involved in taking the ill-gotten proceeds of this drug trafficking conspiracy back to its source." The court noted, "there may have been millions of *Page 5 dollars from this conspiracy locally that was successfully returned," and the court considered that Acedo-Gonzalez intended to return "nearly a million dollars." The court found "no mitigation to the nature of such involvement." The court noted that Acedo-Gonzalez needed money and that his role in the conspiracy was "an easy way to make money," and the court expressed its concern "that you would not be adequately deterred from doing this again given the opportunity." {¶ l2} Since Acedo-Gonzalez's sentence is not contrary to law, and since there is nothing in this record to suggest that the trial court abused its discretion, Acedo-Gonzalez's assignment of error is overruled, and the judgment of the trial court is affirmed. WOLFF, PJ. and GRADY, J., concur. Copies mailed to: Elizabeth A. Ellis Christopher B. Epley Hon. Stephen A. Wolaver *Page 1

2016-07-06 06:42:08.320459+00

DECISION ON RECONSIDERATION. *Page 2 {¶ 1} Defendant-appellant, Ryan Dieterle, appeals convictions for aggravated murder under R.C. 2903.01(B), aggravated burglary under R.C. 2911.11(A)(1), rape under R.C. 2907.02(A)(2), and violation of an anti-stalking protection order under R.C. 2919.27(A). We find no merit in his five assignments of error, and we affirm the trial court's judgment. I. Facts {¶ 2} Evidence presented at a jury trial showed that Dieterle and his wife, Michelle, began having marital problems after Michelle was kidnapped, robbed, and raped by an armed stranger. They eventually separated, with Michelle remaining in the parties' Blue Ash apartment and Dieterle living with his parents. They both began dating other people. Michelle began seeing Richard Banks, an old boyfriend. {¶ 3} Michelle also obtained a temporary protection order against Dieterle because of his violent behavior, although she did continue to have contact with him. In conjunction with that order, he was placed on an electronic monitoring unit ("EMU"). {¶ 4} Before the murder, Dieterle was employed at a Jiffy Lube store in Blue Ash. Dieterle told a coworker, "[F]uck that bitch, I could kill her." He also asked two other coworkers if they had "ever hated someone so much they could kill them, but then cry over their body?" {¶ 5} Several weeks before the murder, Dieterle and a coworker, Travis Thornton, arranged to set off an alarm at Jiffy Lube. As the assistant manager of the store, Dieterle had the responsibility to check on the alarm, which gave him an excuse to violate the terms of his EMU agreement. He left his parents' house at about midnight, but instead of going to Jiffy Lube, he went to Michelle's apartment. *Page 3 {¶ 6} Dieterle did not have keys to the apartment because the locks had been changed. He went to the rear of the building, climbed three stories to the balcony of Michelle's apartment, and looked in the windows. He then climbed down and returned to the car, and he and Thornton left the area. {¶ 7} On the night of the murder, at approximately 3:00 a.m., Dieterle left his parents' home. He drove to Michelle's apartment and parked his car. After he got out of the car, he removed his shoes and socks. He went to the rear of the building and climbed up the three stories to Michelle's balcony. He entered the apartment through an unlocked window. {¶ 8} Earlier in the evening, Michelle had invited Banks to her apartment, and he spent the night with her. At approximately 3:00 a.m., while she and Banks were sleeping, Dieterle jerked off the covers, exclaiming, "What the fuck?" At the time, Michelle was wearing underwear, sweat pants, and a tee shirt. {¶ 9} Dieterle demanded that Banks leave. Banks stated that Dieterle appeared upset but not out of control. Banks left the bedroom for a brief time while Dieterle and Michelle spoke. After they came out, Banks got dressed and prepared to leave. Both Dieterle and Michelle appeared calm, and Michelle told Banks that it was okay for him to leave. {¶ 10} Banks told her that we would call in a few minutes and that he would call the police if any trouble occurred. As he left the apartment, he heard the dead bolt lock. After about ten minutes, he called Michelle. When she did not answer the phone, he called the police. {¶ 11} The police found Michelle's partially clothed and mutilated body on the floor of her living room, with two knives lying nearby. Her wounds indicated a savage attack. She sustained the following injuries: (1) two black eyes and injuries to her mouth; (2) knife wounds to her face and neck, including saw-like injuries resulting from *Page 4 back-and-forth motions on her neck; (3) severe knife wounds to her abdomen, which left her internal organs protruding; (4) multiple knife wounds to her back; (5) lacerations to her vagina caused by a knife; and (6) a massive laceration to her rectum and adjacent areas, indicative of a knife being forced into her rectum. Additionally, her body had marks indicating that it had been pulled across the floor and carpet. {¶ 12} The police also found Dieterle naked and covered with blood. He had knife wounds on his neck and hands. The knife block where the knives had come from had blood stains on it that matched his blood. When Dieterle regained consciousness, a police officer asked him what had happened. He stated, "She cut me." A pathologist from the coroner's office testified that his wounds were self-inflicted. {¶ 13} Dieterle contended that he had acted in self-defense. He claimed that Michelle had attacked him with the knife first. He presented the testimony of a pathologist who said that his wounds were defensive wounds. II. Expert Testimony and Harmless Error {¶ 14} In his first assignment of error, Dieterle contends that the trial court erred in allowing improper expert testimony into evidence. He argues that, without the improper testimony, the state's evidence was insufficient to prove the rape and the aggravated-murder charge based upon the rape. This assignment of error is not well taken. {¶ 15} We first note that Dieterle did not object to all of the testimony that he now argues was improper. Therefore, we could only reverse his convictions if we found plain error.1 Further, even if some of the testimony that Dieterle had objected to was technically improper, any error was most certainly harmless. *Page 5 {¶ 16} R.C. 2907.02(A)(2) provides that "[n]o person shall engage in sexual conduct with another when the offender purposely compels the other to submit by force or threat of force." R.C. 2907.01(A) defines "sexual conduct" as "vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body, or any instrument, apparatus, or other object into the vaginal or anal opening of another." {¶ 17} All of the allegedly improper testimony occurred during the testimony of the coroner who had conducted the autopsy on Michelle's body. Further, it all focused on a particular contusion in her vagina. But Michelle suffered numerous injuries to her vagina. Though defense counsel focused on the contusion at trial, it was actually a side issue. {¶ 18} The coroner also testified that Michelle had suffered a laceration caused by a sharp instrument on her left thigh coming from the vagina. That laceration continued into the vagina. It was "carved" in a way that indicated movement, meaning that she was alive when it was inflicted. The coroner testified to a reasonable degree of medical certainty that a knife or sharp object penetrated the victim's vagina. Further, the knife caused the injury on Michelle's thigh when it was coming out of the vagina, because the laceration was deeper inside the vagina than outside. {¶ 19} The state's contention was always that Dieterle had raped Michelle with a knife. The coroner's testimony about the vaginal laceration was sufficient to prove the elements of rape.2 Even if the admission of some of the testimony about the contusion was erroneous, no possibility existed that it contributed to Dieterle's convictions. That testimony was a minimal part of the state's overall case, and the evidence against *Page 6 Dieterle was otherwise overwhelming. Under the circumstances, we hold that any error was harmless, 3 and we overrule Dieterle's first assignment or error. III. Jury Instruction on Rape {¶ 20} In his second assignment of error, Dieterle contends that the trial court erred by failing to properly and completely instruct the jury. He argues that it should have instructed the jury that, to sustain a rape conviction, the state had to prove beyond a reasonable doubt that the victim was alive when the sexual conduct began. This assignment of error is not well taken. {¶ 21} We note that although Dieterle argued the issue extensively while making a Crim. R. 29 motion for a judgment of acquittal, he never specifically requested the instruction, and he did not object when the court failed to give such an instruction. Consequently, we can reverse only upon a finding of plain error.4 {¶ 22} A trial court must fully and completely give the jury all instructions that are relevant and necessary for the jury to weigh the evidence and to discharge its duty as the fact-finder.5 An appellate court will not reverse a conviction due to improper jury instructions unless the defendant was prejudiced.6 A single instruction cannot be judged in isolation, but must be viewed in the context of the overall charge.7 {¶ 23} The law on this issue is far from clear. We have never specifically addressed it. Dieterle relies on State v. Smith, 8 in which we held that the state had *Page 7 presented evidence showing that the victim was alive when the sexual conduct started. We did not address whether a live victim was an essential element of rape or whether the trial court needed to instruct the jury on that element. {¶ 24} In State v. Rojas, 9 the defendant was convicted of aggravated murder predicated upon aggravated robbery and a death-penalty specification alleging that the murder had been committed in the course of aggravated robbery. The defendant argued that he could not have been convicted of aggravated robbery because the victim had been dead several hours before he took money from her purse. {¶ 25} The Ohio Supreme Court rejected this argument, stating, "The state argues that a thief should not be rewarded because he commits his offense at a leisurely, methodical pace — killing his victim first and then stealing his property. We agree."10 It went on to state, "[T]he victim of a robbery, killed just prior to the robber's carrying off her property, is nonetheless the victim of an aggravated robbery. The victim need not be alive at the time of asportation. A robber cannot avoid the effect of the felony-murder rule by first killing a victim, watching her die, and then stealing her property after the death."11 The court went on to point out that if the defendant intended to steal the victim's property while she was alive, the fact that he carried it away after she died is not crucial.12 This logic is also applicable to felony murder predicated on rape. {¶ 26} Additionally, we find the logic of Tenth Appellate District inState v. Collins13 to be compelling. In that case, the defendant and his companions had viciously beaten, choked, and raped the victim, who died at some point during the assault. The defendant, relying on R.C. 2927.01, the abuse-of-a-corpse statute, argued that his rape *Page 8 conviction was against the manifest weight of the evidence because the victim had been dead at the time of the rape. The court rejected that argument. {¶ 27} The court began by examining the evidence and concluding that the state had failed to prove that the victim was alive at the time of the sexual conduct.14 It pointed out that the rape statute does not explicitly require a living victim. It went on to state that "[m]ore important, we conclude that the existence of the abuse of corpse statute does not indicate that the legislature intended conduct like defendant's and his companions' to fall outside the scope of the rape statute. Even though the victim died during the incident in the present case, defendant's conduct, when viewed in its entirety, involved `indignities' to the living,' unlike the conduct that R.C. 2927.01 contemplates. "15 {¶ 28} The court noted that the defendant had engaged in sexual conduct with the victim only after he had compelled the still-living victim to submit by force. "The fact the force was sufficient to kill the victim does not lessen the seriousness of the defendant's actions."16 It pointed out that the case before it differed "fundamentally from a case in which one happens upon the corpse of a female and engages in sexual intercourse with it."17 {¶ 29} Finally, the court held that "the fact that the victim may have been dead when the sexual conduct occurred does not, in itself, lessen defendant's culpability herein, nor does the state have to prove in this case, as an element of the offense of rape, that the victim was alive when the sexual conduct occurred."18 We agree with the court's reasoning.19 {¶ 30} Applying the reasoning of these cases to the present case, we hold that the state did not have to prove that Michelle was alive when the sexual conduct began. *Page 9 Consequently, the trial court did not have to instruct the jury to that effect. The trial court fully instructed the jury on all the elements of rape. The evidence showed that Michelle was alive at the time Dieterle compelled her to submit by force or threat of force. Therefore, the evidence was sufficient to support the rape conviction. {¶ 31} We cannot hold that the court's failure to give the instruction was error, much less plain error. To accept Dieterle's argument would be to reward him for using enough force to kill the victim rather than just to harm her, a result that we would find unconscionable. {¶ 32} We also note that, even if the court's failure to give the instruction had been error, Dieterle would not have been prejudiced. During its deliberations, the jury specifically asked, "To be considered rape, must the victim be alive?" The trial court answered "yes." Consequently, we overrule Dieterle's second assignment of error. IV. Abuse of a Corpse — Lesser-Included Offense {¶ 33} In his third assignment of error, Dieterle contends that the trial court should have instructed the jury on abuse of a corpse under R.C. 2927.01 as a lesser-included offense of rape. He argues that in the absence of proof that the victim was alive when the sexual conduct began, an instruction on abuse of a corpse was proper. This assignment of error is not well taken. {¶ 34} The Ohio Supreme Court has adopted a two-pronged test to determine whether a jury instruction on a lesser-included offense is warranted. First, a court must determine whether the offense in the requested instruction is a lesser-included offense of the charged crime by comparing their statutory *Page 10 elements in the abstract.20 An offense may be a lesser-included offense of another if (1) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, be committed without the lesser offense also being committed; and (iii) some element of the greater offense is required to prove the commission of the lesser offense.21 {¶ 35} R.C. 2927.01(A) provides that "[n]o person, except as authorized by law, shall treat a human corpse in a way that the person knows would outrage reasonable family sensibilities." R.C. 2927.01(B) states that "[n]o person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities." This statute prohibits conduct such as "copulating with or otherwise mistreating a corpse."22 {¶ 36} An accused can commit rape, as defined in R.C. 2907.02(A)(2), without also committing abuse of a corpse under subsection (A) or (B) of R.C. 2927.01. Consequently, abuse of a corpse is not a lesser-included offense of rape, which Dieterle has essentially acknowledged. {¶ 37} Because abuse of a corpse is not a lesser-included offense of rape, we need not go to the second prong of the test and consider whether the evidence supported the instruction.23 Because Dieterle was not charged with abuse of a corpse, the trial court was not required to instruct the jury on that offense. Consequently, we overrule his third assignment of error. *Page 11 V. Cumulative Error {¶ 38} In his fourth assignment of error, Dieterle contends that the cumulative effect of errors warranted a new trial. The cumulative effect of errors may deprive a defendant of a fair trial, even though individual instances of error do not warrant reversal.24 The defendant must demonstrate that a reasonable probability exists that the outcome of the trial would have been different absent the alleged errors.25 {¶ 39} Dieterle has not demonstrated that, but for any errors by the trial court, the outcome of the trial would have been different. Any error in the admission of expert testimony was harmless, and the evidence that Dieterle committed this extremely brutal murder, while also committing aggravated burglary and rape, was overwhelming.26 We overrule his fourth assignment of error. VI. Sentencing {¶ 40} In his fifth assignment of error, Dieterle contends that the trial court erred in imposing maximum, consecutive sentences. He argues that the sentences were disproportionate and constituted cruel and unusual punishment. This assignment of error is not well taken. {¶ 41} First, Dieterle was convicted of aggravated murder under R.C. 2903.01(B). Since he did not receive the death penalty, the court had no choice but to sentence him to life in prison on that offense.27 *Page 12 {¶ 42} Further, following State v. Foster, 28 trial courts have full discretion to impose prison sentences within the statutory range for the crimes committed. In this case, all of the sentences were within the statutory ranges, and Dieterle has not demonstrated that they were so arbitrary, unreasonable, or unconscionable as to connote an abuse of discretion.29 {¶ 43} As a general rule, a sentence that falls within the terms of a valid statute cannot amount to cruel and unusual punishment.30 The sentences were not so disproportionate to the offenses as to shock the community's sense of justice.31 To the contrary, this case involves one of the most horrific and brutal murders this court has seen. Despite Dieterle's lack of a prior criminal record, the sentences were completely appropriate. Therefore, we overrule his fifth assignment of error. VII. Ineffective Assistance of Counsel {¶ 44} Some procedural confusion occurred at the briefing stage of this case. Dieterle's counsel filed a brief that exceeded the page limits for cases on the accelerated calendar, and this court struck the brief. Subsequently, counsel filed a motion for 16 extra pages or, in the alternative, to remove the case from the accelerated calendar. We overruled that motion. {¶ 45} Dieterle's counsel then filed an amended brief in which she asserted an assignment of error that she had not asserted in her previous brief. She also failed to separately argue some of her assignments of error as required by App. R. 16(A)(7), claiming that she had inadequate space. Nevertheless, we *Page 13 eventually reconsidered our previous decision. We struck the amended brief and reinstated counsel's original brief that exceeded the page limits. {¶ 46} Even though we struck counsel's amended brief, we have sua sponte decided to address the additional assignment of error raised in that brief because we believe that the issue raised needs to be decided for this appellate district. In that assignment of error, Dieterle contends that his previous appellate counsel was ineffective for failing to properly delineate the issues for appeal and for failing to request that this case be removed from the accelerated calendar. Essentially, he argues that the page limits prevented him from adequately presenting his arguments. This assignment of error is not well taken. {¶ 47} A criminal defendant is entitled to effective assistance of appellate counsel on a first appeal as of right.32 But Dieterle cannot properly raise the issue at this stage of the proceedings. The Ohio Supreme Court has held that claims of ineffective assistance of appellate counsel may be raised in an application for reopening under App. R. 26(B) or in a direct appeal to the supreme court.33 {¶ 48} The court has made it clear that an application under App. R. 26(B) is not part of the original appeal.34 "The provisions of App. R. 26(B) were specifically designed to provide for a specialized type of postconviction process. The rule was designed to offer defendants a separate collateral opportunity to raise ineffective-appellate-counsel claims beyond the opportunities that exist through the traditional motions for reconsideration and discretionary appeals to our court or the Supreme Court of the United States."35 *Page 14 {¶ 49} Thus, we conclude that the proper method for Dieterle to raise the issue is through a App. R. 26(B) motion to reopen the appeal after the journalization of this decision. To sustain a claim of ineffective assistance of counsel, Dieterle must show that but for counsel's errors, the results of the proceedings would have been different.36 In an appeal, no "result" exists until our decision is journalized, and until that time, Dieterle cannot show that the result would have been different. Additionally, the filing of an application under App. R. 26(B) would allow him to present evidence outside the record to support his claim, which we can not consider on direct appeal.37 Consequently, we strike Dieterle's fifth assignment of error and do not rule on its merits. VIII. Summary {¶ 50} In sum, we find no merit in Dieterle's arguments. We overrule his five assignments of error and affirm his convictions. Judgment affirmed. HILDEBRANDT, P.J., concurs. PAINTER, J., concurs separately. 1 State v. Underwood (1983), 3 Ohio St.3d 12, 13, 444 N.E.2d 1332;State v. Hirsch (1998), 129 Ohio App.3d 294, 309, 717 N.E.2d 789. 2 See State v. Denkins, 1st Dist. No. C-030518,2004-Ohio-1696, ¶ 34-37; State v. Young, 2nd Dist. No. 19466, 2003-Ohio-4706, ¶ 12-15. 3 State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035, paragraph seven of the syllabus, vacated as to death penalty (1978),438 U.S. 911, 98 S.Ct. 3135; State v. Williams, 1st Dist. Nos. C-060631 and C-060668, 2007-Ohio-5577, ¶ 39; State v.Brundage, 1st Dist. No. C-030632, 2004-Ohio-6436, ¶ 33. 4 Crim. R. 30(A); State v. Coley, 93 Ohio St.3d 253, 266,2001-Ohio-1340, 754 N.E.2d 1129; State v. Dixon, 1st Dist. No. C-030227, 2004-Ohio-2575, ¶ 21-22. 5 State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus; State v. Robinson, 1st Dist. No. C-060434, 2007-Ohio-2388, ¶ 18. 6 Robinson, supra, at ¶ 18, 7 State v. Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772, paragraph four of the syllabus; Robinson, supra, at ¶ 18. 8 (June 6, 1990), 1st Dist. No. C-880287, affirmed (1991), 61 Ohio St.3d 284, 574 N.E.2d 510. 9 64 Ohio St.3d 131, 1992-Ohio-110, 592 N.E.2d 1376. 10 Id. at 139. 11 Id., quoting State v. Smith (1991), 60 Ohio St.3d 284, 290,574 N.E.2d 510. 12 Id. 13 (1990), 66 Ohio App.3d 438, 585 N.E.2d 532. 14 Id. at 441. 15 Id. at 443. 16 Id. 17 Id., quoting Limpham v. State (1988), 257 Ga. 808, 810, 364 S.E.2d 840. 18 Id. 19 Accord State v. Whitsell (1990), 69 Ohio App.3d 512,591 N.E.2d 265. 20 State v. Thomas (1988), 40 Ohio St.3d 213, 215-216,433 N.E.2d 286; State v. Finley, 1st Dist. No. C-061052,2008-Ohio-4904, ¶ 24; Brundage, supra, at ¶ 8. 21 State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph three of the syllabus; Finley, supra, at ¶ 24. 22 1974 Committee Comment to H.B. No. 511. 23 See Brundage, supra, at ¶ 10; State v. Coulter (1992),75 Ohio App.3d 219, 225-226, 598 N.E.2d 1324. 24 State v. DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256, paragraph two of the syllabus; State v. Brewster, 1st Dist. Nos. C-030024 and C-030025, 2004-Ohio-2993, ¶ 63. 25 Brewster, supra, at ¶ 63. 26 See Hirsch, supra, at 310. 27 R.C. 2929.02(B). 28 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. 29 See State v. Clark, 71 Ohio St.3d 466, 470, 1994-Ohio-43,644 N.E.2d 331; State v. Henderson, 1st Dist. Nos. C-060799 and C-060823, 2007-Ohio-5128, ¶ 7. 30 McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69, 203 N.E.2d 334;Brewster, supra, at ¶ 82. 31 See State v. Weitbrecht, 86 Ohio St.3d 368, 370-371,1999-Ohio-113, 715 N.E.2d 167; Brewster, supra, at ¶ 84. 32 Rojas, supra, at 141. 33 State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608,894 N.E.2d 1221, ¶ 8-13; State v. Murnahan (1992), 63 Ohio St.3d 60,584 N.E.2d 1204, paragraph two of the syllabus. 34 Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110,818 N.E.2d 1157, ¶ 2-9. 35 Id. at ¶ 8. 36 Strickland v. Washington (1984), 466 U.S. 668, 687-694,104 S.Ct. 2052; Hirsch, supra, at 314-315. 37 See State v. Ishmail (1978), 54 Ohio St.2d 402, 405-406,377 N.E.2d 500; State v. Person, 174 Ohio App.3d 287, 2007-Ohio-6869,881 N.E.2d 924, ¶ 37.

2016-07-06 06:42:08.379499+00

OPINION {¶ 1} The defendant-appellant, Dorothy Dravenstott, appeals the judgment of the Crawford County Common Pleas Court requiring her to pay prejudgment interest on a jury verdict awarding damages of $1,834,522.60 to the plaintiffs-appellees, Michael Conway and Donald Heydinger, co-administrators of the estate of Jana L. Conway. *Page 3 {¶ 2} On June 30, 2004, Jana was a passenger in a Dodge Intrepid driven by her uncle, Larry Heydinger. Other passengers in the car included Sharon Heydinger, Larry's wife and Jana's aunt; Michael C. Conway, Jana's husband; and Evan Conway, Jana and Michael's minor child. Larry was operating his vehicle westbound on U.S. Route 224. At the same time, Dorothy was operating a 2002 Chevrolet 3/4 ton pick-up truck eastbound on U.S. Route 224. Harold Dravenstott, Dorothy's husband, owned the truck and was a passenger in it. Near the border of Medina County, Ohio and Ashland County, Ohio, Dorothy negligently drove the truck across the center line of the road and hit Larry's car head-on. Everybody in Larry's car was injured; however, Jana's, Michael's, and Sharon's injuries were fatal. {¶ 3} On November 5, 2003, the administrators filed a nine-count complaint against Dorothy, Harold, United Ohio Insurance Company ("United Ohio"), West American Insurance Company ("West American"), and Mansfield Brass Aluminum Co. ("Mansfield Brass"). The complaint stated a wrongful death claim, a survival action, a claim for negligent entrustment, four claims for uninsured/underinsured motorist insurance coverage ("UM/UIM"), and a claim for punitive damages. Eventually, the case proceeded to jury trial. By the time of trial, Dorothy was the sole remaining defendant and admitted liability. On January 31 and February 1, 2006, the court held a jury trial on the issue of damages, and *Page 4 the jury returned a verdict of $1,834,522.60 against Dorothy. The trial court filed its judgment entry in conformity with the verdict on February 3, 2006. {¶ 4} The plaintiffs filed a timely motion for prejudgment interest against Dorothy pursuant to R.C. 1343.03(C), and the defendants appealed the jury verdict, which we affirmed in Conway v. Dravenstott, 3d Dist. No. 3-06-05, 2006-Ohio-4840. The plaintiffs then filed a supplemental complaint against Allstate Insurance Company, as Dravenstott's insurer, pursuant to R.C. 3929.06. The supplemental complaint also requested prejudgment and post judgment interest from Allstate. {¶ 5} The trial court held an evidentiary hearing on Plaintiffs' motion on November 27, 2006. Following the hearing, the trial court allowed the parties to file post-hearing briefs. The trial court subsequently rendered judgment in Plaintiffs' favor on January 4, 2007. In its judgment entry, the court determined that Dravenstott had a personal net worth exceeding $700,000 at the time of the collision; that Dravenstott knew that the damages from the collision "greatly exceeded" the limits of her insurance policy; that Dravenstott knowingly disposed of or concealed assets to avoid paying damages; and that Dravenstott failed to make a reasonable settlement offer to the plaintiffs. The Plaintiffs filed a praecipe for a certificate of judgment based only on the award of prejudgment interest, and the Clerk of Court filed the certificate of judgment. On January 16, 2007, the *Page 5 plaintiffs dismissed the supplemental complaint against Allstate. Dravenstott filed an objection to the certificate of judgment and immediately filed her notice of appeal, asserting two assignments of error for our review. First Assignment of Error It was error for the trial court to award prejudgment interest where the conduct of both parties during settlement negotiations was so similar that there was no reasonable basis for determining that one party failed to make a good faith effort to settle the case and the other party did not. Second Assignment of Error If it is held that the trial court was not in error in granting the Plaintiff/Appellees' motion for prejudgment interest, the trial court erred in failing to provide a specific amount of interest to which Plaintiff/Appellees would be entitled.1 Allstate also filed a notice of appeal, asserting three assignments of error: First Assignment of Error The trial court erred in granting plaintiffs' motion for prejudgment interest. Second Assignment of Error The trial court erred in adopting plaintiffs' calculation of prejudgment interest, in the amount of $828,787.40. Third Assignment of Error *Page 6 The trial court erred in not giving Allstate notice and an opportunity to be heard as to the calculation of prejudgment interest. {¶ 6} As an initial matter, we note that Allstate is not a proper appellant in this matter. App.R. 4(A) allows a "party" to file a notice of appeal. The trial court entered judgment on January 4, 2007 against Dravenstott only, and the plaintiffs subsequently dismissed without prejudice their entire supplemental complaint against Allstate, which was the only way Allstate had been brought into this litigation. As a result, there were no proceedings pending against Allstate in the trial court, and Allstate had not filed any pleadings on its own behalf. Furthermore, the Ohio Supreme Court has held that under R.C. 1343.03(C), the individual defendant, as a party to the case, is responsible for the payment of prejudgment interest. Bellman v. Am. Internatl. Group,113 Ohio St. 3d 323, 2007-Ohio-2071, 865 N.E.2d 853, at ¶ 19, quotingPeyko v. Frederick (1986), 25 Ohio St.3d 164, 166, 495 N.E.2d 918; citing Lovewell v. Physicians Ins. Co. of Ohio, 79 Ohio St.3d 143, 145,1997-Ohio-175, 679 N.E.2d 1119. In Peyko, the court noted that the defendant's insurer may be liable to the defendant for the payment of prejudgment interest if its conduct was the basis for the award.Peyko, at 167, fn. 1, citations omitted. Therefore, there has been no final appealable order *Page 7 rendered against Allstate from which it can appeal, and all claims against it were dismissed. Allstate's appeal is dismissed.2 {¶ 7} In her brief, Dravenstott contends the trial court erred when it determined that she failed to act in good faith and that the Plaintiffs had not failed to act in good faith. One of the factors the court must evaluate in determining the presence or absence of good faith is the parties' cooperation during discovery. Dravenstott admits that she did not fully cooperate, but she argues that the plaintiffs did not fully cooperate either as she was required to file a motion to compel to obtain discovery from them. Therefore, Dravenstott contends that the good faith determination as to each party must be the same since they both engaged in similar behavior, and an award of prejudgment interest would not be allowed with such a finding. {¶ 8} Another factor the court must consider is a good faith settlement offer and the other party's good faith response to a settlement offer. Again, Dravenstott alleges that both parties must be treated equally. Dravenstott argues that Allstate offered policy limits of $100,000 in exchange for a full release of its insured, and she personally offered to put $75,000 into an annuity, which would have a lifetime payout of $715,000. Dravenstott alleges that Plaintiffs refused to *Page 8 accept Allstate's policy limits because they did not want to release the insured, and they refused to settle for less than $1,000,000 even though it would have been "impossible" for her to satisfy the demand. {¶ 9} R.C. 1343.03(C) "permits an injured party, in certain circumstances, to recover interest in a tort action from the date the cause of action accrues." Moskovitz v. Mt. Sinai Med. Ctr.,69 Ohio St.3d 638, 657, 1994-Ohio-324, 635 N.E.2d 331. The statute provides: Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case. R.C. 1343.03(C).3 The prejudgment interest statute was intended to "promote settlement efforts, to prevent parties who have engaged in tortious conduct from frivolously delaying the ultimate resolution of cases, and to encourage good faith *Page 9 efforts to settle controversies outside a trial setting." Kalain v.Smith (1986), 25 Ohio St. 3d 157, 159, 495 N.E.2d 572. {¶ 10} For a party to recover prejudgment interest, four elements must be met. First, the party must file a motion in the trial court no later than 14 days after the entry of judgment. Moskovitz, at 658, citingCotterman v. Cleveland Elec. Illum. Co. (1987), 34 Ohio St.3d 48,517 N.E.2d 536, paragraph one of the syllabus. In this case, Plaintiffs' motion was timely filed. Second, "the trial court must hold a hearing on the motion." Id. The hearing on Plaintiffs' motion was held on November 27, 2006. Third, "the court must find that the party required to pay the judgment failed to make a good faith effort to settle, and fourth, the court must find that the party to whom the judgment is to be paid did not fail to make a good faith effort to settle the case." Id., citing R.C. 1343.03(C). {¶ 11} If each of the four elements are satisfied, the trial court shall enter judgment on behalf of the moving party. Id. However, the trial court has broad discretion in determining whether either party made a good faith effort to settle. Id. In making its determination, the trial court should consider if a party has: (1) fully cooperated in the discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. *Page 10 Kalain, at 159. The Supreme Court has also noted that a lack of good faith is different than evidence of bad faith, and therefore, trial courts should consider the above mentioned factors. Id. at 159, f.n. 1. {¶ 12} Since the trial court has broad discretion in determining whether to award prejudgment interest, we may not reverse its determination that a party did or did not make a good faith effort to settle absent an abuse of discretion. Id., citing Ziegler v. WendelPoultry Serv., Inc. (1993), 67 Ohio St. 3d 10, 20, 615 N.E.2d 1022,1032. An "`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, 450 N.E.2d 1140, quoting State v. Adams (1980),62 Ohio St.2d 151, 157, 404 N.E.2d 144, internal citations omitted. As noted inKalain, the Supreme Court has addressed the application of the abuse of discretion standard where prejudgment interest has been awarded under R.C. 1343.03(C). Specifically, the court has stated: "`"[A]n abuse of discretion involves far more than a difference in * * * opinion * * *. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an `abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias."'" *Page 11 Kalain, at 161, (Celebrezze, P.J., dissenting), citing Huffman v. HairSurgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, quotations omitted in original. {¶ 13} In this case, the judgment entry contained one error, where in paragraph three, the trial court indicated that Dravenstott'snet worth had been in excess of $700,000. However, the evidence indicated that her gross worth was in excess of $700,000. This error is not indicative of an abuse of discretion. Our review of the record shows competent and credible evidence to support the trial court's findings, and we must defer to the trial judge, who was in the best position to weigh the evidence and assess witness credibility. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. On this record, we cannot find the trial court abused its discretion. The first assignment of error is overruled. {¶ 14} In the second assignment of error, Dravenstott asserts that the trial court should have calculated the specific amount of prejudgment interest awarded to Plaintiffs. In her argument, Dravenstott challenges the interest rate to be applied and whether prejudgment interest can be awarded based on future damages. Plaintiffs contend they are entitled to 10% interest on the entire jury award; however, Dravenstott argues that the statute establishing the statutory interest rate was amended while this case was pending, and therefore, different *Page 12 interest rates apply at different times throughout the litigation. Dravenstott also argues that Plaintiffs are not entitled to prejudgment interest on future damages. {¶ 15} As noted above, the prior version of R.C. 1343.03(C) provides that prejudgment interest shall be computed from the date the cause of action accrued until the underlying judgment is paid in full. When R.C.1343.03(C) was amended by 125 Am. Sub. H.B. 212, effective June 2, 2004, the General Assembly specified: The interest rate provided for in division (A) of section 1343. 03 of the Revised Code, as amended by this act, applies to actions pending on the effective date of this act. In the calculation of interest due under section 1343.03 of the Revised Code, in actions pending on the effective date of this act, the interest rate provided for in section 1343.03 of the Revised Code prior to the amendment of that section by this act shall apply up to the effective date of this act, and the interest rate provided for in section 1343.03 of the Revised Code as amended by this act shall apply on and after that effective date. This statement is clear that the General Assembly intended the changed interest rate to operate retrospectively, but limited the new rate's application to the effective date of June 2, 2004. However, the types of damages on which prejudgment interest could accrue and the pertinent time periods over which prejudgment interest could accrue were unaffected by the amendment, and therefore those portions of the prior version of R.C. 1343.03(A) and (C) not dealing with the interestrate operate prospectively. See Scibelli v. Pannunzio, 7th Dist. No. 05 MA 150, 2006-Ohio-5652, at ¶ 142, citing R.C. 1.48; Van Fossen. *Page 13 As such, we must apply the prior version of R.C. 1343.03(C) as to the period of time over which interest accrues and the types of damages to which prejudgment interest may be calculated on. See Scibelli, at ¶ 146-149 (amendment to R.C. 1343.03 only applies retroactively as to the interest rate specified in R.C. 1343.03(A)). Pursuant to the prior version of R.C. 1343.03(C), Plaintiffs are entitled to prejudgment interest from the date of the collision until the judgment is paid, and prejudgment interest may be awarded on the entire jury award. {¶ 16} The former interest rate of 10% applies from the date of the collision through June 1, 2004. Beginning on June 2, 2004, the interest rate was affected by the newly enacted legislation. Under the new version of R.C. 1343.03(A), courts and parties must look to R.C. 5703.47 to ascertain the applicable interest rate. R.C. 5703.47 provides for a fluctuating interest rate based on the federal short-term rate and a statutory formula. Since interest accrues until the judgment is paid, and since nobody can predict when the judgment will be paid, the trial court could not possibly enter a specific dollar amount for prejudgment interest. As such, the second assignment of error is overruled.4 *Page 14 {¶ 17} The appeal is dismissed in part, and the judgment of the Crawford County Common Pleas Court is affirmed. Appeal dismissed in part and judgment affirmed. SHAW and PRESTON, JJ., concur. 1 We note that Dravenstott's brief contained two different statements of the second assignment of error. The table of contents and the body of the brief contained one statement; however, in her "statements of the assignments of error," Dravenstott set forth a different assignment of error. The latter statement is consistent with the argument expressed in the body of Dravenstott's brief. In the interest of justice, we will consider the correct assignment of error as supported by the appellant's argument. 2 At oral arguments, Allstate represented to this Court that its policy provides for the payment of prejudgment interest up to a specified amount, and since it had said contractual obligation, it was a proper appellant in this case. However, Allstate has cited no authority for such proposition, we are unaware of any Appellate Rule that so provides, and Allstate is not part of this appeal as an intervenor. 3 We use the version of R.C. 1343.03(C) as amended by 124 Am. Sub. S.B. 108, effective July 6, 2001, even though the statute was subsequently amended by 125 Am. Sub. H.B. 212, effective June 2, 2004. Aside from issues concerning the applicable interest rate, which we will discuss herein, the remaining portions of the statute were intended to act prospectively. Therefore, we apply the version of the statute in effect at the time the cause of action arose in June 2002. DiscountCellular, Inc. v. Pub. Util. Comm., 112 Ohio St.3d 360, 2007-Ohio-53,859 N.E.2d 957, at ¶ 41, citing State v. Cook, 83 Ohio St.3d 404, 410,1998-Ohio-291, 700 N.E.2d 570, citing Van Fossen v. Babcock WilcoxCo. (1988), 36 Ohio St. 3d 100, 522 N.E.2d 489, at paragraph one of the syllabus. 4 We note that Dravenstott's objection to the Certificate of Judgment is not before us on appeal; however, it is apparent that our judgment in this matter may have some effect when jurisdiction is returned to the trial court following this appeal and Dravenstott's objection is considered by it. *Page 1

2016-07-06 06:42:08.441756+00

JOURNAL ENTRY AND OPINION {¶ 1} In March 2006, plaintiffs-appellants Timothy Barry and his parents, Thomas and Jacqueline Barry, filed this employer intentional tort action against defendant-appellee A.E. Steel Erectors, Inc. and four other defendants (all of whom were later voluntarily dismissed) for injuries Timothy sustained when he fell approximately 40 feet from a construction project at the Cleveland Clinic. Timothy was employed by A.E. Steel at the time. Timothy and his co-workers had been performing their job duties high in the structure without fall protection equipment mandated by the federal Occupational Safety and Health Administration. A.E. Steel answered, denying liability. {¶ 2} A.E. Steel subsequently filed a motion to dismiss, in which it argued that appellants had failed to allege that Timothy's injuries had been caused "deliberately" as required by R.C. 2745.01, Ohio's latest workplace intentional tort statute. The trial court denied the motion. At a subsequent status conference, it was agreed that the court would address the constitutionality of R.C. 2745.01 before considering appellants' liability claims. {¶ 3} Appellants then filed their first amended complaint, in which they requested a declaratory judgment regarding the constitutionality of the statute. A.E. Steel filed an answer denying liability. Both appellants and A.E. Steel *Page 4 subsequently filed motions for summary judgment regarding the constitutionality of the statute. {¶ 4} The trial court granted A.E. Steel's motion for summary judgment and denied appellants' motion. The trial court held that R.C. 2745.01 was "duly enacted," because a properly enacted statute is presumed constitutional and the Ohio legislature has the authority to alter, modify, or reject the common law. The trial court further held that, under the statute, appellants had not set forth any evidence establishing that A.E. Steel acted with a deliberate intent to injure Timothy and, therefore, A.E. Steel was entitled to judgment as a matter of law. The parties subsequently reached an agreement regarding the issue of damages and liability for Timothy's fall. The parties agreed upon certain payments contingent upon the courts' rulings on the constitutionality and interpretation of R.C. 2745.01. Hence, the only issue for this court is the constitutionality of R.C. 2745.01, addressed in appellants' first assignment of error. Appellants' second assignment of error regarding whether the trial court properly granted summary judgment to A.E. Steel on appellants' liability claims is moot due to the settlement and agreement of the parties. i. Standard of Review {¶ 5} Legislative enactments enjoy a strong presumption of validity.State v. Anderson (1991), 57 Ohio St.3d 168, 171. Nevertheless, "when the validity of a *Page 5 statute is challenged on constitutional grounds, the function of the court is to determine whether it transcends the limits of legislative power." State, ex rel. Bishop v. Bd. of Edn. (1942), 139 Ohio St. 427,438. "[I]f the legislation at issue exceeds the limits of legislative power, we must protect the rights of the citizens effected by the law and, * * * declare the legislation invalid." Johnson v. BP Chemicals,Inc., 85 Ohio St.3d 298, 303, 1999-Ohio-267. {¶ 6} Prior Legislative Attempts to Codify Employer IntentionalTorts {¶ 7} Section 34, Article II of the Ohio Constitution provides that "[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employe[e]s * * *." {¶ 8} Section 35, Article II, provides the General Assembly with the power to pass laws establishing a state workers' compensation fund "[f]or the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment." {¶ 9} While Ohio's workers' compensation system provides employees with the primary means of compensation for job related injuries, an employee may institute a tort action against the employer when the employer's conduct *Page 6 constitutes an intentional tort. Blankenship v. Cincinnati MilacronChemicals, Inc. (1982), 69 Ohio St.2d 608. In Blankenship, the Ohio Supreme Court reasoned that such claims were allowed, because "an employer's deliberately injurious act did not arise out of the employment relationship, was not a natural hazard of employment, and therefore, ipso facto, fell outside the Workers' Compensation Act."Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 631. Subsequently, in Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, the Ohio Supreme Court set forth the parameters of a common law intentional tort claim. {¶ 10} In response, the Ohio legislature enacted R.C. 4121.80 to govern actions alleging intentional torts committed by employers against their employees.1 However, in Brady, supra, the Ohio Supreme Court held R.C. 4121.80 to be unconstitutional in its entirety. The Supreme Court found R.C. 4121.80 "totally repugnant" to Section 34, Article II, of the Ohio Constitution, because "[a] legislative enactment that attempts to remove a right to a remedy under common law that would otherwise benefit the employee cannot be held to *Page 7 be a law that furthers the `* * * comfort, health, safety and general welfare of all employees * * *.'" Brady at 633. {¶ 11} The Ohio Supreme Court further held that R.C. 4121.80 attempted to "circumvent completely" the purpose of Section 35, Article II of the Ohio Constitution, which "is to create a source of compensation for workers injured or killed in the course of employment." Brady at 633. (Emphasis in original.) The Supreme Court reiterated its "firm belief that "the legislature cannot, consistent with Section 35, Article II, enact legislation governing intentional torts that occur within the employment relationship, because such intentional tortious conduct willalways take place outside that relationship." Brady at 634, citingBlankenship. (Emphasis added.) Therefore, the Supreme Court reasoned, "[s]ince we find that Section 35, Article II authorizes only enactment of laws encompassing death, injuries or occupational disease occasionedwithin the employment relationship, R.C. 4121.80 cannot logically withstand constitutional scrutiny, inasmuch as it attempts to regulate an area that is beyond the reach of its constitutional empowerment." Id.2 (Emphasis added.) *Page 8 {¶ 12} In Koziol v. Quality Stamping Products (Mar. 5, 1992), 8th Dist. No. 59941, this court interpreted the holding of Brady to establish that, "[t]he area of intentional tort is not one in which the legislature has the authority to legislate an employee's recourse because it occurs outside of the employment relationship." Id. {¶ 13} After Brady, in yet another attempt to govern when and under what circumstances an intentional tort claim can be commenced and maintained by an employee against his employer, the Ohio legislature enacted R.C. 2745.01, effective November 1, 1995. In Section 3 of the bill, the General Assembly declared its intent to supersede the effects of the Ohio Supreme Court decisions regarding employer intentional torts, and to establish statutory standards, different from the common law, with respect to intentional torts in the workplace. R.C. 2745.01(A) purported to limit an "employment intentional tort" claim to only those where "the employer deliberately and intentionally injures, causes an occupational disease of, or causes the death of an employee." {¶ 14} The Ohio Supreme Court addressed the constitutionality of R.C. 2745.01 in Johnson, supra, and found it unconstitutional in its entirety. In no uncertain terms, the court confirmed that legislative interference with workplace intentional torts is flatly prohibited: *Page 9 {¶ 15} "In Brady, the court invalidated former R.C. 4121.80 in its entirety, and, in doing so, we thought that we had made it abundantly clear that any statute created to provide employers with immunity from liability for their intentional tortious conduct cannot withstand constitutional scrutiny. Notwithstanding, the General Assembly has enacted R.C. 2745.01 and, again, seeks to cloak employers with immunity. In this regard, we can only assume that the General Assembly has either failed to grasp the import of our holdings in Brady or that the General Assembly has simply elected to willfully disregard that decision. In any event, we will state again our holdings in Brady and hopefully put to rest any confusion that seems to exist with the General Assembly in this area." Id. at 304. {¶ 16} The Johnson court found that the same "constitutional impediments" regarding Sections 34 and 35, Article II of the Ohio Constitution at issue in Brady with respect to former R.C. 4121.80 applied with equal force to R.C. 2745.01, because both statutes were enacted with the same purpose: to provide immunity for employers from civil liability for employee injuries, disease, or death caused by the intentional tortious conduct of employers in the workplace.Johnson at 305. The Supreme Court further found that the requirements of R.C. 2745.01 (to recover any damages, an employee had to prove by clear and convincing evidence that his employer's actions were both deliberate and *Page 10 intentional) were so "unreasonable and excessive" that the chance of recovery of damages by employees for intentional torts committed by employers in the workplace was "virtually zero" and that the General Assembly had created a cause of action that was "simply illusory." Id. at 306-307. In light of these "excessive standards," which essentially immunized employers from liability for intentional torts, theJohnson court found that R.C. 2745.01 violated Section 34, Article II, of the Ohio Constitution, as it did not further the "comfort, health, safety and general welfare of all employe[e]s." Id. at 308. Additionally, the Supreme Court found that R.C. 2745.01 violated Section 35, Article II, of the Ohio Constitution, because it was an attempt by the General Assembly to govern intentional torts occurringwithin the employment relationship, an area "that is beyond the reach of constitutional empowerment." Id., citing Brady at 634. Accordingly, theJohnson court held R.C. 2745.01 unconstitutional in its entirety. a. Constitutionality of R.C. 2745.01 {¶ 17} The latest version of R.C. 2745.01 became effective April 7, 2005. Under this version of the statute, an employer is not liable in an action for damages resulting from an intentional tort unless the employee proves that the employer committed the act "with the intent to injure another or with the belief that the injury was substantially certain to occur." The statute defines *Page 11 "substantially certain" to mean that an employer acts with "deliberate intent" to cause an employee to suffer an injury, disease, condition, or death. {¶ 18} In their first assignment of error, appellants contend that the trial court erred in finding R.C. 2745.01 constitutional. We agree. In light of the precedents established by the Ohio Supreme Court inBrady and Johnson, supra, and this court's holding in Koziol, supra, the trial court erred in finding R.C. 2745.01 constitutional. {¶ 19} First, R.C. 2745.01 represents an invalid exercise of legislative authority, in violation of Section 35, Article II of the Ohio Constitution, as it attempts to legislate employer intentional torts that occur within the employment relationship. As the Ohio Supreme Court has made clear, any legislation governing employer intentional torts within the employment relationship cannot withstand constitutional scrutiny, as such intentional tortious conduct always takes place outside that relationship. Johnson at 305, citing Blankenship, supra. See, also, Koziol, supra. {¶ 20} Second, the legislature's latest effort to restrict workplace intentional tort claims is indistinguishable from its earlier attempts to do so-all of which the Ohio Supreme Court has found unconstitutional. While the phraseology utilized in the latest enactment may be slightly different from its *Page 12 predecessors, the outcome is precisely the same: employers are immunized from liability for their intentional tortious conduct. {¶ 21} We agree with the Seventh District's analysis, as set forth inKaminski v. Metal Wire Prod. Co., 175 Ohio App.3d 227, 2008-Ohio-1521, at ¶ 31-32, that the latest version of R.C. 2745.01, which saddles victims of workplace accidents with an insurmountable "deliberate intent" standard, essentially immunizes employers from liability for their intentional tortious conduct, because it sets forth only an illusory cause of action. As stated in Kaminski: {¶ 22} "R.C. 2745.01(A) provides that in an employer intentional tort action, the employee must prove `that the employer committed the tortious act with the intent to injure another or with the belief thatthe injury was substantially certain to occur (Emphasis in original.) Thus, pursuant to section A, in order to succeed on the claim, the employee must prove one of two things: (1) the employer acted with intent to injure or (2) the employer acted with the belief that injury was substantially certain to occur. This leads one to believe that there are two alternate ways for an employee to succeed on an intentional tort claim against an employer. However, we must consider the rest of the statute. *Page 13 {¶ 23} "`Intent to injure' is clear and therefore is not defined in the statute. `Substantially certain,' however, is not as clear. Therefore, the legislature provided a definition. R.C. 2745.01(B) defines substantially certain as acting `with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.' {¶ 24} "When we consider the definition of `substantial certainty,' it becomes apparent that an employee does not have two ways to prove an intentional tort claim as R.C. 2745.01(A) suggests. The employee's two options of proof become: (1) the employer acted with intent to injure or (2) the employer acted with deliberate intent to injure. Thus, under R.C. 2745.01, the only way an employee can recover is if the employer acted with the intent to cause injury. The Johnson court held that this type of action was simply illusory[.]" Kaminski at ¶ 29-31. {¶ 25} As in Kaminski, we find no distinction between the two methods of proof. To prevail under either method an employee must demonstrate a deliberate intent to injure. Such requirements create an insurmountable burden for employees and thus an illusory cause of action. {¶ 26} "By establishing the foregoing standards in R.C. 2745.01, the General Assembly has created a cause of action that is simply illusory. Under the definitional requirements contained in the statute, an employer's conduct, in *Page 14 order to create civil liability, must be both deliberate and intentional. Therefore, in order to prove an intentional tort in accordance with R.C. 2745.01 * * *, the employee, or his or her survivors, must prove, at a minimum, that the actions of the employer amount to [a criminal act.] In fact, given the elements imposed by the statute, it is even conceivable that an employer might actually be guilty of a criminal assault but exempt from civil liability under R.C. 2745.01 * * *."Johnson at 306-307. {¶ 27} By creating a cause of action that is merely illusory, R.C. 2745.01 has eliminated an employee's right to a cause of action for an employer intentional tort that would otherwise benefit the employee. Thus, R.C. 2745.01 conflicts with Section 34, Article II of the Ohio Constitution, as it does not further the "comfort, health, safety and general welfare of all employe[e]s." Furthermore, by creating an illusory cause of action, the legislature has immunized employers from liability. As the Ohio Supreme Court has made clear, however, "any statute created to provide employers with immunity from liability for their intentional tortious conduct cannot withstand constitutional scrutiny." Johnson at 304. {¶ 28} Appellants also argue that R.C. 2745.01 violates the due process and equal protection clauses of the Ohio Constitution, and infringes on the rights to jury trial and open courts as guaranteed by the Ohio Constitution. As we find *Page 15 R.C. 2745.01 unconstitutional because it exceeds and conflicts with the legislative authority granted to the General Assembly pursuant to Sections 34 and 35 of the Ohio Constitution, no further analysis is necessary. We note, however, that in Johnson, the Ohio Supreme Court affirmed its agreement with the appellate court's judgment finding that former R.C. 2745.01, which we find indistinguishable from the current version of R.C. 2745.01, "denied employees equal protection of the law in violation of Section 2, Article I of the Ohio Constitution, and * * * also violated the open courts provision, Section 16, Article I." Id. at 308, fn. 14. {¶ 29} Appellants' first assignment of error is sustained. {¶ 30} Reversed and remanded. It is ordered that appellants recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. COLLEEN CONWAY COONEY, P.J., and ANN DYKE, J., CONCUR 1 R.C. 4121.80 provided that an employee had a claim for damages in excess of those received under Chapter 4123 for injury, disease, or death resulting from the intentional tort of his employer. The statute defined "intentional tort" as "an act committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur." The statute provided that "`substantially certain' means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death." The statute further provided that the court was limited to a determination of whether the employer was liable for damages; if the court determined the employer was liable, the Industrial Commission was to determine the amount of damages to be awarded. The statute provided for a cap on damages. 2 In State ex rel. Ohio AFL-CIO v. Voinovich (1994),69 Ohio St.3d 225, 230, the Ohio Supreme Court restated its holding in Brady that "intentional torts are completely unrelated to workers' compensation and the employment relationship." *Page 1

2016-07-06 06:42:08.587977+00

JOURNAL ENTRY AND OPINION This is an appeal of a conviction following a jury trial before Judge Christine T. McMonagle and Visiting Judge John L. Angellotta.1 Appellant Christian Haywood claims that he cannot and should not be subject to a rape conviction for consensual sexual conduct with the twelve-year-old victim. He asserts, inter alia, that his conviction is not supported by the evidence or it is unconstitutional. We do not agree and affirm. In August 1998, Haywood, then twenty-two years old, had sexual intercourse with T.T., then two months past her twelfth birthday. In September 1998, T.T. was caught while attempting to shoplift a home pregnancy test, and reported her involvement with Haywood to her mother. Haywood admitted having sex with T.T. and, when he learned she was pregnant, offered to pay for an abortion. He was indicted for rape on February 3, 1999, but failed to appear for trial on June 22, 1999. He was found in Minnesota, taken into custody, and returned to Ohio in January 2000 and trial was held May 11-15, 2000. In his defense, Haywood claimed T.T. misled him about her age stating that, about a week before the couple had sex, she was picked up by Cleveland police and cited for a curfew violation and told both him and authorities that she was sixteen years old. T.T. testified she had known Haywood since she was about six years old because he was a friend of her cousin and admitted telling Haywood that she was sixteen prior to having sex. Haywood was found guilty of rape of a child under thirteen, R.C.2907.02(A)(1)(b), and a sexual predator hearing and sentencing were scheduled for June 15, 2000. He was not found to be a sexual predator, but was adjudicated a sexually oriented offender and notified that he was subject to registration requirements. He was sentenced to six years for the rape conviction, consecutive to a one-year sentence imposed for a separate drug conviction. The first two assignments of error raise the same issues: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT COMPLETELY INFORM THE JURY AS TO THE ELEMENTS OF SEXUAL CONDUCT. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF RAPE AS ANY SEXUAL CONDUCT WAS WITH PRIVILEGE. Haywood claims that the jury should have been instructed that he could not be convicted of rape if he had a privilege to engage in sexual relations with T.T. and that he could not have been convicted because T.T.'s consent conferred that privilege upon him. Because he did not preserve error with respect to the jury instructions, we can sustain the first assignment only on a finding of plain error.2 The second assignment attacks the sufficiency of the evidence, and we will overturn the verdict on these grounds only if no reasonable jury could have found him guilty on the evidence presented.3 R.C. 2907.02(A)(1)(b) defines rape to include sexual conduct with a person under thirteen years old. R.C. 2907.01(A) defines sexual conduct as follows: Sexual conduct means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. * * *. The judge excluded part of this definition, instructing the jury only that sexual conduct included vaginal intercourse, and omitted the remainder of the instruction. Haywood argues that failing to give the complete instruction was error because the jury was required to consider whether he engaged in the conduct without privilege to do so before returning a conviction. The State counters that the without privilege clause does not apply to the vaginal intercourse in this case and such an instruction was unnecessary. We agree that R.C. 2907.02 does not require proving a lack of privilege when the sexual conduct is vaginal intercourse because the privilege clause excludes conduct such as medical examinations from the definition of sexual conduct. A claim of privilege does not place vaginal intercourse outside the definition of sexual conduct — rather, it would remove the sexual conduct from the definition of rape by negating some other element of the offense. The jury was properly instructed concerning the definition of sexual conduct as it applies to this case. Haywood's claim of privilege is based on the consent of a twelve-year-old girl to engage in intercourse. His argument is contrary to R.C. 2907.02(A)(1)(b), which defines sexual conduct with a child under thirteen years of age as rape regardless of consent. Simply put, a child under thirteen cannot validly consent to engage in sexual conduct, and Haywood cannot rely on his victim's acquiescence to claim privilege.4 The first and second assignments of error are overruled. The third assignment of error states: III. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER PROSECUTORIAL ARGUMENT APPEALING TO PASSION AND PREJUDICE. Haywood claims the prosecutor improperly appealed to the jury's passion and prejudice and cites the following as improper argument: It's there to protect children. You all agreed with that prior to when I was questioning you. A child of the age of twelve years, she's physically mature, doesn't have the emotional or mental maturity to make a decision, an informed decision to engage in sexual relations, and that is why the law is there. It's there to protect children from people like this, from men like this who will take advantage of them. Because if you come back not guilty you are telling him it's all right to mess around with a 12 year old. Just say you thought she was 16, or she looks 16. That is the message you will send if you come back with a not guilty verdict. Folks, I know you will not do that. The evidence here is overwhelming. He had a right to trial. He had a right to test the evidence here. That is exactly what he had a right to do, and he did it. And folks, you can have only one verdict here. Guilty. He took advantage of a 12 year old, and members of our society, members of this community, you've got to tell him this is not tolerated in our community. Haywood claims that this argument encouraged conviction on general principle rather than on the evidence, and was made to incite [the] jury to convict to meet a public demand * * *.5 While we agree that a prosecutor should not seek convictions based on a general sense of outrage concerning an offense, this was not the gist of the argument here. Haywood admitted to sexual intercourse with a twelve-year-old girl, and the prosecutor was correct in noting that the only way Haywood could be found not guilty was through jury nullification. The argument was not intended to persuade the jury to convict in spite of the evidence, but to dissuade the jury from returning an acquittal despite the undisputed evidence. Ohio courts have ruled that a trial judge need not instruct the jury that it has the power of nullification,6 but the appellate courts of this state appear not to have ruled on whether a lawyer may argue the issue of nullification. The issue is normally raised when a defense lawyer seeks to argue for nullification,7 but Haywood submits that the prosecutor should not have been allowed to argue against it. Without deciding the general propriety of such arguments, we find the prosecutor's argument appropriate here because, as noted, Haywood had no other argument available to him. The prosecutor anticipated an argument for nullification, whether expressly or implicitly, and sought to refute it. Haywood made such an argument for nullification asking the jury to acquit him based upon his mistake over the girl's age, or upon the consent of the child or her mother. The prosecutor's argument was proper under the circumstances and the third assignment of error is overruled. The fourth assignment states: IV. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER CROSS-EXAMINATION. Haywood testified on his own behalf, and claims he was subjected to unfair and irrelevant cross-examination concerning his history of drug use and convictions for drug trafficking, his flight to avoid the first trial, and his relationships with his girlfriend and his two children. Specifically, he contends unfair prejudice when the prosecutor characterized him as a drug boy, when he asked him how old his current girlfriend was when they first had sex, and when he questioned him concerning his provision for support of his children. The State counters that these questions were appropriate based upon Haywood's direct testimony, and that he was not prejudiced or deprived of a fair trial. Haywood objected only to the questions characterizing him as a drug boy, and asking him why the jury should believe a drug trafficker but did not object to questions about his girlfriend and children, or his failure to appear for the first trial and flight to Minnesota. We cannot find reversible error here regardless of whether we apply a plain error standard for unpreserved error, or the standard of harmlessness beyond a reasonable doubt for error that was preserved. Even if any part of the cross-examination was improper, Haywood cannot possibly show prejudice because he admitted committing the offense, and apparently took the matter to trial only in the hope of obtaining a jury nullification. Even if we would entertain the theory that his chance for nullification was prejudiced by a trial error, such a theory would have to be expressly presented and argued before us, and it has not been so presented here. Moreover, we expect such an argument would be advanced only in a case with extraordinary facts compelling its consideration, and this case presents no such facts. Haywood testified that he had sex with the girl. The remainder of his testimony was irrelevant to the offense, and went solely to the question of nullification. Regardless of the propriety of the questioning, he was not prejudiced by the cross-examination. The fourth assignment of error is overruled. The fifth and sixth assignments of error state: V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF AN OFFENSE WHICH DID NOT REQUIRE PROOF OF ANY CULPABLE MENTAL STATE. VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THERE WAS NO REQUIREMENT THAT DEFENDANT KNOW THE AGE OF THE VICTIM. Under these two assignments, Haywood argues that his conviction is unconstitutional because there is no mens rea requirement whatsoever for the offense of rape as defined in R.C. 2907.02(A)(1)(b), or for the age element of that offense. R.C 2.907.02(A)(1)(b) defines sexual conduct with a child under thirteen as rape, punishable as a first degree felony. The statute specifically provides that a person can be guilty of the offense whether or not the offender knows the age of the other person. The age element of this form of rape is, therefore, a matter of strict liability.8 Rape of a child under thirteen has been described as a strict liability offense, and the act itself, engaging in sexual conduct, does not require a mental element.9 Our analysis is the same regardless of whether we consider strict liability imposed for the offense or only for the age element. There is no constitutional bar to attaching felony punishment to strict liability offenses. Although a criminal statute that does not specifically state a mens rea requirement will not be construed as a strict liability offense unless that intent is plainly shown, this doctrine is a matter of statutory construction, not constitutional law.10 In fact, sexual conduct with a child was considered a strict liability offense at common law, and has long been recognized as an exception to the general requirement of guilty knowledge in the criminal law.11 As noted, R.C. 2907.02(A)(1)(b) plainly imposes strict liability concerning the victim's age. Haywood cites Lambert v. California12 for imposing constitutional due process restrictions on strict liability offenses, but that case is inapplicable here. The Lambert Court recognized that legislators have wide latitude to create strict liability offenses, but found that, absent actual knowledge of the requirement, punishment could not be constitutionally imposed for violating an ordinance requiring convicted felons to register with the police.13 The Supreme Court has further restricted Lambert's application, stating, inter alia, that Lambert applied only to crimes of omission, and that this Court has never articulated a general constitutional doctrine of mens rea.14 The Ohio Supreme Court has also interpreted Lambert narrowly, stating: The Lambert decision rested on three factors: (1) The conduct involved was passive, (2) the situation addressed by the ordinance would not move one to inquire as to the applicable law, and (3) the law is designed solely for its convenience in compiling a list which might be of some assistance to law enforcement agencies. [citation omitted.]15 Haywood had sex with a twelve-year-old girl. This is not passive conduct, it is certainly the type of conduct which should move one to inquire into the applicable law, and the law is designed not for convenience, but to protect children from those who would prey on them. Haywood submits that strict liability is unfair because the age element draws an arbitrary line — he suggests the law is designed to protect pre-pubescent children, and that he should not be convicted because T.T., while only twelve years old, had reached puberty. This argument misconstrues the goals of R.C. 2907.02(A)(1)(b), which go beyond protecting those physically unprepared for sexual behavior, but are also intended to protect those mentally and emotionally unprepared. Although an age requirement is imperfect, it is no less flawed than a requirement based on physical development, and is more easily applied. Haywood cannot persuasively argue that he was not on notice of the risks he undertook when taking advantage of this child. American culture might glorify youthful sex appeal, but is at the same time rife with warnings against sexual conduct with children. The word jailbait is defined in Webster's New Collegiate Dictionary (1976) as a girl under the age of consent with whom unlawful sexual intercourse constitutes statutory rape. Any person contemplating sexual conduct with a child in this age range should be cautious — the existence of statutory rape laws is hardly a secret. Haywood's fifth and sixth assignments of error are overruled. The seventh assignment of error states: VII. DEFENDANT WAS DENIED EQUAL PROTECTION OF THE LAW AND DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF A FIRST DEGREE FELONY WHEN SIMILAR CONDUCT IS NOT PUNISHED AS SUCH. Haywood argues that his offense is unfairly punished as a first-degree felony, when he would have been guilty only of the less serious offense of sexual battery, R.C. 2907.03, if he had been an authority figure defined in the sexual battery statute. He mistakenly believes that if he had satisfied one of the relational components of 2907.03(A)(8) or (9), he would have been prosecuted under that statute, and not under R.C.2907.02. He fails to recognize the difference between the significance of being a minor, defined as a person under eighteen years of age in R.C.2907.01(M), and being less than thirteen years of age under R.C. 2907.02. There is no denial of equal protection when greater punishment is imposed for sexual conduct with someone under thirteen years of age, as opposed to someone merely under eighteen years of age, because the offenders are not similarly situated. Moreover, nothing in R.C. 2907.03 would insulate a defined authority figure from the more serious charge of rape if the victim was under thirteen. The seventh assignment of error is overruled. The eighth and ninth assignments of error state: VIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND TO BE A SEXUALLY ORIENTED OFFENDER WHEN THERE WAS NO INDICTMENT, PLEADING OR NOTICE. IX. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS DETERMINED TO BE A SEXUALLY ORIENTED OFFENDER. Haywood claims that he was unfairly determined to be a sexually oriented offender without proper notice, and that the evidence did not support such classification. The State correctly notes that the determination was statutorily mandated upon his conviction, and that he was not entitled to any more notice than he received. R.C. 2950.04 imposes a duty to register on every person convicted of a sexually oriented offense (defined in R.C. 2950.01(D)(1) to include this offense), and R.C. 2950.03(A)(2) required that Haywood be notified of this duty at sentencing. Although an offender must be given notice and opportunity to be heard before being adjudicated a sexual predator under R.C. 2950.09, which results in more onerous registration requirements, there are no further determination or notification requirements to impose the duty to register as a sexually oriented offender under R.C. 2950.04. The judge held a sexual predator hearing, but did not find Haywood a sexual predator and, therefore, imposed the less burdensome registration sanctions upon him. R.C. 2950.04 imposes a registration requirement, and is not considered a criminal punishment.16 Because the determination is civil in nature, no indictment is necessary, the duty automatically arises from conviction of the stated offenses, and no pleading or notice is necessary prior to the notice given in R.C. 2950.03. The only way Haywood could have escaped the duty is by avoiding conviction of the underlying offense. Finally, Haywood was not denied due process by the automatic imposition of the duty to register. The conviction requirement dispels any argument that the duty to register is arbitrarily imposed.17 Haywood's arguments stem from his erroneous belief that the duty to register is at criminal sanction but, because R.C. 2950.04 imposes a civil duty imposed on a reasonable basis, it satisfies procedural and substantive due process requirements.18 The eighth and ninth assignments of error are overruled. The tenth, and final, assignment of error states: X. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. This assignment is based upon Haywood's claims that his lawyer failed to object to the prosecutor's allegedly improper cross-examination of him, and also failed to interview defense witnesses before calling them to testify. In order to show ineffective assistance of counsel, he must show not only that his lawyer's representation fell below reasonable professional standards, but that he was prejudiced as a result.19 Prejudice is shown if, but for the lawyer's errors, there is a reasonable probability the outcome of the trial would have been different and, if we can determine that no prejudice occurred, we need not determine whether a lawyer's conduct violated professional standards.20 As noted, Haywood's only defense was a plea for jury nullification, because the elements of the offense were conclusively shown, and absent an argument expressly addressing this issue and extraordinary circumstances, we will not find prejudice to a defendant's chance at obtaining jury nullification. The tenth assignment of error is overruled. Judgment affirmed. It is ordered that the appellee recover from appellant costs herein taxed. This court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. Appellant's conviction having been affirmed, any bail pending appeal is vacated. 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. TERRENCE O'DONNELL, J., CONCUR; MICHAEL J. CORRIGAN, P.J. CONCURS IN JUDGMENT ONLY. ______________________ ANNE L. KILBANE, JUDGE 1 Due to an emergency, Judge Angellotta presided over part of the trial proceedings after trial had begun; Judge McMonagle impanelled the jury, and returned to preside after the jury's verdict. 2 State v. Williford (1990), 49 Ohio St.3d 247, 252, 551 N.E.2d 1279,1284. 3 State v. Stallings (2000), 89 Ohio St.3d 280, 289, 731 N.E.2d 159,171. 4 Also, to the extent Haywood bases his privilege claim on the alleged consent, express or implied, of the child's mother, we reject such a claim. No parent has authority to subject a child to sexual encounters, and no defendant has a right to rely on such parental consent. 5 State v. Cloud (1960), 112 Ohio App. 208, 217, 168 N.E.2d 761,767. 6 See State v. Jackson (Feb. 20, 2001), Franklin App. No. 00AP-183, unreported. 7 See, e.g., Harding v. Florida (Fla.App. 1999), 736 So.2d 1230 (nullification argument not allowed), and State v. Bonacorsi (1994),139 N.H. 28, 32, 648 A.2d 469, 471 (nullification argument permitted). 8 R.C. 2901.21(B); State v. Smelcer (1993), 89 Ohio App.3d 115,124, 623 N.E.2d 1219, 1225. 9 R.C. 2901.21 does require a voluntary act; whether one can posit some circumstance in which a voluntary act can result in accidental sexual conduct is not at issue here, and does not affect the constitutional analysis. 10 R.C. 2901.21(B); see, also, Morrissette v. United States (1952),342 U.S. 246, 263, 72 S.Ct. 240, 249-50, 96 L.Ed. 288 (construing federal statute). 11 Id. at 251 n. 8, 72 S.Ct. at 244 n. 8. 12 (1957), 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228. 13 Id. at 228-29, 78 S.Ct. at 242-43. 14 Powell v. Texas (1968), 392 U.S. 514, 535 and n. 27,88 S.Ct. 2145, 2155-56 and n. 27, 20 L.Ed.2d 1254. 15 University Heights v. O'Leary (1981), 68 Ohio St.2d 130, 134, 22 O.O.3d 372, 429 N.E.2d 148, 151. 16 State v. Cook (1998), 83 Ohio St.3d 404, 417, 700 N.E.2d 570,581. 17 See, e.g., State v. Williams (2000), 88 Ohio St.3d 513, 524,728 N.E.2d 342, 355 (addressing R.C. Chapter 2950 under Section 1, Article 1 of the Ohio Constitution). 18 Williams; Cook, supra. 19 Strickland v. Washington (1984), 466 U.S. 668, 687,104 S.Ct. 2052, 2064, 80 L.Ed.2d 674; State v. Johnson (2000), 88 Ohio St.3d 95,108, 723 N.E.2d 1054, 1067. 20 Strickland, at 694, 697, 104 S.Ct. at 2068-69.

2016-07-06 06:42:08.61528+00

OPINION *Page 2 {¶ 1} Defendant-Appellant, James A. Orwick, appeals the judgment of the Hancock County Court of Common Pleas sentencing him to non-minimum, consecutive prison terms. On appeal, Orwick argues that the felony sentencing statutes set forth in State v. Foster, 109 Ohio St.3d 1,2006-Ohio-856, violate due process. Finding that Foster does not violate Orwick's due process rights, we affirm the judgment of the trial court. {¶ 2} In November 2001, the Hancock County Grand Jury indicted Orwick for one count of gross sexual imposition in violation of R.C.2907.05(A)(1), a felony of the fourth degree; thirteen counts of rape in violation of R.C. 2907.02(A)(2), felonies of the first degree; and, fifteen counts of sexual battery in violation of R.C. 2907.03(A)(5), felonies of the third degree. Subsequently, Orwick entered a plea of not guilty as to all counts in the indictment. {¶ 3} In June 2004, a jury found Orwick guilty on the gross sexual imposition count and on two rape counts, but found him not guilty on the remaining counts. {¶ 4} In October 2004, the trial court sentenced Orwick to an eighteen-month prison term on the gross sexual imposition count and to an eight year prison term on each rape count, all to be served consecutively for an aggregate of seventeen years and six months. Also, the trial court classified Orwick as a sexual predator. Subsequently, Orwick appealed his conviction and sentence to this Court. *Page 3 {¶ 5} In August 2005, this Court affirmed the trial court's judgment in State v. Orwick, 3d Dist. No. 5-04-42, 2005-Ohio-4444. {¶ 6} In October 2005, Orwick appealed to the Ohio Supreme Court. {¶ 7} In May 2006, the Ohio Supreme Court reversed and remanded the case to the trial court for resentencing pursuant to Foster in In reOhio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313,2006-Ohio-2109. {¶ 8} In October 2006, the trial court resentenced Orwick to a sentence identical to the sentence imposed in October 2004. {¶ 9} It is from this judgment that Orwick appeals, presenting the following assignment of error for our review. THE JUDICIALLY CREATED FELONY SENTENCING STATUTES PURSUANT TO STATE V. FOSTER VIOLATE THE DUE PROCESS CLAUSE. {¶ 10} In his sole assignment of error, Orwick asserts that the judicially created felony sentencing statutes set forth underFoster violate the due process clause. Specifically, Orwick argues that, because Foster gave the trial court complete discretion to impose any sentence, it enlarged the sentencing statutes. Thus, Orwick contends that Foster violated his due process rights when applied retroactively to him. We disagree. {¶ 11} In Foster, the Ohio Supreme Court held parts of the felony sentencing statute that required judicial factfinding before imposition of non-minimum or consecutive sentences to be unconstitutional and severed those parts. Foster, *Page 4 109 Ohio St.3d at ¶ 100. Accordingly, Foster held that "[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. Additionally, Foster declared that "our remedy does not rewrite the statutes but leaves courts with full discretion to impose a prison term within the basic ranges of R.C.2929.14(A) based upon a jury verdict or admission of the defendant without the mandated judicial findings[.] * * *" Id. at ¶ 102. {¶ 12} This Court in State v. McGhee, 3d Dist. No. 17-06-05,2006-Ohio-5162, found that Foster did not violate the due process clause. Here, Orwick committed the crimes in question in 2001, afterApprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, was decided, which provided notice that a major change in criminal sentencing law was probable. Additionally, Orwick had notice of the sentencing range for his offenses prior to their commission, and that sentencing range has remained unchanged. See McGhee at ¶¶ 16, 20; R.C. 2929.14(A). Thus, consistent with our opinion in State v. McGhee, we find Orwick's arguments unpersuasive. {¶ 13} Orwick further contends that the United States Supreme Court's recent holding in Cunningham v. California (2007), 127 S.Ct. 856, is contrary to McGhee and Foster and urges this Court to vacate and remand his sentence on that basis. Specifically, Orwick argues thatMcGhee and Foster are contrary to Cunningham because their *Page 5 interpretation of Blakely v. Washington (2004), 542 U.S. 296,124 S.Ct. 2531, differs from Cunningham's interpretation ofBlakely. {¶ 14} In Cunningham, the United States Supreme Court evaluated the constitutionality of California's determinate sentencing law (hereinafter referred to as "DSL"), a three tier system in which each offense carried a lower, middle, and upper term sentence. Id. at 861-62. The DSL provided that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." Id. It was the duty of the trial judge to determine circumstances in aggravation or mitigation and choose the appropriate tier of sentencing. As a result, the Supreme Court held that "because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment." Id. at 870. In making this determination, the Court referenced Blakely. Blakely concerned Washington's Reform Act, which contained a standard range for each offense. Sentencing above the standard range could not be imposed absent findings of specific facts by the judge. If findings were made, the trial judge could impose up to a maximum sentence. Blakely found the Reform Act unconstitutional because it violated the Constitution's jury trial guarantee. Blakely,542 U.S. at 305. {¶ 15} As a remedy, Cunningham held that "`[M]erely advisory provisions,' recommending but not requiring `the selection of particular sentences in response to differing sets of facts would not implicate the Sixth Amendment.' To remedy the *Page 6 constitutional infirmity * * *, the Court's majority excised provisions that rendered the system mandatory, leaving the Guidelines in place as advisory only." Cunningham, 127 S. Ct. at 870, quotingUnited States v. Booker, 543 U.S. 220, 245-246, 125 S.Ct. 738. This is precisely the remedy Foster chose to fix the Ohio statutes. SeeFoster at ¶¶ 99-101. {¶ 16} Thus, Foster is consistent with Blakely and Cunningham because it held those portions requiring judicial factfinding unconstitutional and, alternatively, held that judges have the discretion to impose a prison term within the statutory range. Like Cunningham, in doing so,Foster relied upon Blakely, stating: the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Emphasis sic and citations omitted). Foster, 109 Ohio St.3d at ¶ 7, quoting Blakely, 542 U.S. at 303-304. {¶ 17} While Orwick asserts that this passage mandates that the maximum sentence he could receive was three years for each rape conviction and six months for the gross sexual imposition conviction, to be served concurrently, his argument ignores Foster. In accordance withBlakely, Foster chose to remedy the Ohio sentencing statutes by making them advisory. Thus, the trial judge had discretion to impose any term up to the statutory maximum. In determining the statutory maximum,Foster held that *Page 7 "[O]hio's `statutory maximum' for purposes of Apprendi and its progeny, the maximum prison term authorized by the jury verdict or the facts admitted by a defendant upon acceptance of a plea[,] is the top of the sentencing range for the crime of which the defendant is convicted. For example, if the offender is convicted of a first-degree felony, the `statutory maximum' is ten years under R.C. 2929.14(A)(1)." Id. at ¶ 96. Additionally, the Ohio Supreme Court held that "judicial fact-finding is not required before imposition of consecutive prison terms." Id. at ¶ 99. {¶ 18} Consequently, we find that McGhee and Foster are consistent with Cunningham. {¶ 19} Accordingly, we overrule Orwick's assignment of error. {¶ 20} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment affirmed. SHAW and WILLAMOWSKI, JJ., concur. *Page 1

2016-07-06 06:42:08.646782+00

OPINION {¶ 1} Appellant, Howard D. Shannon, appeals from the judgment entered by the Lake County Court of Common Pleas. Appellant was sentenced to seventeen months in prison for his convictions for unlawful sexual conduct with a minor. {¶ 2} The victim in this matter was fifteen years old during the relevant times, while appellant was twenty-four years old. One evening in June 2001, the victim went to a local skating rink in Mentor-on-the-Lake, Ohio. On a prior occasion, the victim met Ritchie Batich ("Ritchie"), a twenty-one-year-old male, at the skating rink. Ritchie is appellant's cousin. Shortly after arriving at the skating rink, the victim left with three of her friends and went to visit Ritchie at his home. {¶ 3} Upon arriving at Ritchie's residence, the group learned that Ritchie was next door at appellant's parents' house. The group went next door, where they talked to Ritchie and appellant outside of the residence. Soon after, the victim's friends left, and the victim went inside the residence to use the restroom. {¶ 4} When the victim exited the restroom, she observed Ritchie and appellant flipping a coin. She testified that she did not know the purpose of the coin toss. However, the testimony of appellant and Ritchie indicates that the coin toss was for the purpose of determining who would have sex with the victim and the victim was aware of this purpose. Appellant won the coin toss. {¶ 5} The victim claimed appellant grabbed her arm and pulled her to a back bedroom. In response, she stated "[n]o. I want Ritchie." Appellant denied pulling the victim into the bedroom and stated she went willingly. Once in the room, the victim testified that appellant pushed her onto the bed and laid on top of her. She stated appellant removed her pants and began to have sexual intercourse with her, despite her telling him "no." While appellant and the victim were in the room, appellant's brother, Neil Shannon, Jr. ("Neil"), arrived home and entered the room. Neil stated "[o]h, no. This isn't happening in my room." Thereafter, appellant and the victim left Neil's room. Appellant denied having sexual intercourse in Neil's bedroom. {¶ 6} After leaving Neil's room, appellant picked the lock on his parents' bedroom. The victim testified that appellant pulled her into the parents' bedroom. While in the second bedroom, appellant and the victim engaged in sexual intercourse. Appellant testified that this activity was consensual. The victim testified it was not. After the intercourse concluded, appellant left the bedroom. {¶ 7} Neil entered the bedroom while the victim was still sitting on the bed. Neil approached the victim and asked her "is it okay." She responded "uh-uh." Neil and the victim engaged in sexual intercourse. Neil left after he was finished. {¶ 8} Next, Ritchie entered the room and talked with the victim. The victim got dressed and left the residence. When she left, her friends were waiting for her outside the house. The victim advised her friends of what had happened and, eventually, the police were notified. The victim was taken to the hospital. {¶ 9} At the hospital, the victim met with Detective Gerri Deutsch of the Mentor-on-the-Lake Police Department. The victim told Detective Deutsch that she was pulled into the residence. At trial, the victim admitted that this was a lie. {¶ 10} As a result of this incident, appellant was indicted in June 2001. This indictment was assigned case No. 01 CR 000311. Appellant was initially indicted on two counts of rape and two counts of kidnapping. In October 2001, a second indictment was filed against appellant, charging him with two counts of unlawful sexual conduct with a minor. The second indictment was assigned case No. 01 CR 000495. These cases were consolidated at the trial court level for the purpose of trial, and the charges in case No. 01 CR 000495 were referred to as counts five and six. {¶ 11} Appellant pled not guilty to the charges against him, and a jury trial was held. Following the state's case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29. The trial court overruled this motion. Appellant renewed his motion at the close of trial, and, again, the trial court overruled it. The jury found appellant not guilty of the rape and kidnapping charges. The jury found appellant guilty of the unlawful sexual conduct with a minor charges. {¶ 12} Appellant was sentenced to seventeen-month prison terms on each of the convictions. These sentences were ordered to be served concurrently. In addition, appellant was labeled a sexually oriented offender. Since appellant was found not guilty of the charges in case No. 01 CR 000311, appellant has only appealed the judgment entered in case No. 01 CR 000495. {¶ 13} Appellant raises one assignment of error on appeal: {¶ 14} "The jury's verdict as to count 5 of the indictment is against the manifest weight of the evidence." {¶ 15} Appellant cites State v. Dresnek and State v.Brown in support of his argument.1 These cases commingle the legal concepts of sufficiency of the evidence and manifest weight of the evidence.2 However, in State v.Thompkins, the Supreme Court of Ohio held that these are not synonymous legal concepts.3 Specifically, the court held "[t]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different."4 We will conduct both a sufficiency of the evidence and a manifest weight of the evidence analysis. {¶ 16} A trial court shall grant a motion for acquittal when there is insufficient evidence to sustain a conviction.5 When determining whether there is sufficient evidence presented to sustain a conviction, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt."6 {¶ 17} Following the state's case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29. We note that the docket sheet from case No. 01 CR 000311 indicates that appellant moved for, and the state filed, a bill of particulars. This document was filed in July 2001, prior to the indictment in case No. 01 CR 000495 being filed. The record is devoid of a bill of particulars for the counts of unlawful sexual conduct with a minor. Moreover, in the indictment in case No. 01 CR 000495, the counts are verbatim, each alleging appellant committed sexual conduct with the victim on the day in question, without identifying the type of sexual conduct or the location, i.e. which bedroom, the respective charges related to. The discussion of appellant's motion for acquittal indicates that appellant was charged with one count of rape and one count of kidnapping for the conduct that occurred in each of the respective bedrooms. Presumably, this was also the rationale of the unlawful sexual conduct with a minor charges. Accordingly, we will analyze appellant's assignment of error with the presumption that Count 5 of the indictment alleged that appellant engaged in sexual conduct with the victim in Neil's bedroom, and Count 6 of the indictment alleged appellant engaged in sexual conduct with the victim in his parents' bedroom. This analysis is consistent with the parties' arguments in their appellate briefs. {¶ 18} Count five alleged that appellant committed unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), which provides: {¶ 19} "No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard." {¶ 20} "`Sexual conduct' means vaginal intercourse between a male and a female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse."7 {¶ 21} Appellant contends the state failed to provide sufficient evidence to support a conviction for the activities which occurred in Neil's bedroom (count five). Appellant is not challenging the conviction for the activities which occurred in his parents' bedroom (count six). {¶ 22} Appellant is not contesting the evidence presented regarding his knowledge of the victim's age or that the victim was not his spouse. Appellant asserts the state failed to provide sufficient evidence showing that he engaged in sexual conduct with the victim in Neil's bedroom. We disagree. {¶ 23} The victim provided the following testimony on direct examination regarding the events that took place in Neil's bedroom: {¶ 24} "Q. At this time after your pants were removed, can you tell us what took place after that? {¶ 25} "A. Then [appellant] pushed down his pants and started to go in me. {¶ 26} "Q. At the time you say go into you, describe what part of the body he touched you with. {¶ 27} "A. His penis. {¶ 28} "Q. Where did he touch you with his penis? {¶ 29} "A. My crotch. {¶ 30} "Q. When he started to go in, can you describe for us what you felt at that time? {¶ 31} "A. I felt him like starting to push it into me and I told him no." {¶ 32} The victim testified that appellant inserted his penis into her vagina. While she testified that the actions were interrupted by Neil, we note that "penetration, howeverslight," is sufficient to complete intercourse.8 {¶ 33} Through the testimony of the victim, the state provided evidence regarding the incident in Neil's bedroom that, when viewed in a light most favorable to the prosecution, was sufficient for a reasonable person to find appellant guilty of unlawful sexual conduct with a minor. Thus, the trial court did not err by overruling appellant's Crim.R. 29 motion for acquittal. {¶ 34} In determining whether a verdict is against the manifest weight of the evidence, the Supreme Court of Ohio has adopted the following language as a guide: {¶ 35} "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction."9 {¶ 36} The weight to be given to the evidence and the credibility of witnesses are primarily matters for the jury to decide.10 {¶ 37} Appellant and the victim both testified regarding the events that occurred in Neil's bedroom. The victim claimed they engaged in sexual intercourse. Appellant testified that, while he had removed the victim's pants and underwear, Neil interrupted them before any sexual conduct occurred. We do not find that the jury created a manifest miscarriage of justice in choosing to believe the victim's version of the events. {¶ 38} Appellant notes that the victim's credibility was challenged regarding her lie in her initial statement to the police, where she said she was pulled into the house. However, the jury was able to evaluate the credibility of the victim's testimony during the trial. The victim admitted that she had initially lied. This is not a conclusive indication that she lied on the witness stand Further, the jury returned not guilty verdicts on the rape and kidnapping charges. Thus, the jury demonstrated its ability to be discerning in its decision making. {¶ 39} Appellant's conviction for unlawful sexual conduct with a minor (count five) was not against the manifest weight of the evidence. {¶ 40} Appellant's assignment of error is without merit. {¶ 41} The judgment of the trial court is affirmed. Judgment affirmed. Ford, P.J., and Christley, J., concur. 1 State v. Dresnek (Nov. 10, 1994), 11th Dist. No. 93-A-1845, 1994 Ohio App. LEXIS 5077, at *6, quoting State v.Brown (1988), 38 Ohio St.3d 305, paragraph four of the syllabus. 2 Id. 3 State v. Thompkins (1997), 78 Ohio St.3d 380, 386. 4 Id. 5 Crim.R. 29(A). 6 State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, following Jackson v. Virginia (1979),443 U.S. 307. 7 R.C. 2907.01(A). 8 (Emphasis added.) Id. 9 (Citations omitted.) State v. Thompkins,78 Ohio St.3d at 387. 10 State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.

2016-07-06 06:42:08.692857+00

OPINION On January 27, 1998, Cheryl Ann Daniels (hereinafter "Ms. Mobley") filed a complaint in the Franklin County Court of Common Pleas, Division of Domestic Relations, seeking a divorce from her husband, Gary Dean Daniels. Mr. Daniels filed an answer and counterclaim. By way of brief background, Ms. Mobley and Mr. Daniels began residing together as husband and wife in 1981. In 1983, Ms. Mobley took steps to formally change her last name to Daniels. A marriage ceremony was conducted in 1987. Three children were subsequently born as issue of the marriage, one of whom is now deceased. One of the children suffers from multiple congenital birth defects. A guardian ad litem was appointed to represent the interests of the children. On May 11, 1999, the allocation of parental rights and responsibilities was referred to a magistrate for final disposition. On May 9, 2000, the magistrate rendered a decision on the allocation of parental rights and responsibilities. On this same date, the trial court adopted the magistrate's decision. Ms. Mobley was designated the residential parent and legal custodian of the children, and Mr. Daniels was awarded companionship. Mr. Daniels was ordered to pay $473.38 per child per month as child support. Ms. Mobley was ordered to maintain health insurance for the children, and the parties were ordered to equally pay the children's uncovered medical expenses. Mr. Daniels filed objections to the magistrate's decision. These objections were "dismissed" on September 19, 2000. Various other motions, including contempt motions, were subsequently filed. A trial on the divorce and division of property was held before a judge in April 2001. On September 7, 2001, the trial court journalized a decision and judgment entry/decree of divorce. Mr. Daniels (hereinafter "appellant") has appealed to this court, assigning the following errors for our consideration: ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED CONTRARY TO LAW IN ORDERING APPELLANT TO MAINTAIN HEALTH INSURANCE FOR THE CHILDREN. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED CONTRARY TO LAW IN FAILING TO RECALCULATE CHILD SUPPORT AFTER ORDERING APPELLANT TO MAINTAIN HEALTH INSURANCE FOR THE MINOR CHILDREN. ASSIGNMENT OF ERROR NO. 3 THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING SPOUSAL SUPPORT TO APPELLEE. ASSIGNMENT OF ERROR NO. 4 THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT TO PAY ATTORNEY FEES INCURRED BY APPELLEE. ASSIGNMENT OF ERROR NO. 5 THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT TO PAY ALL THE GUARDIAN AD LITEM FEES. ASSIGNMENT OF ERROR NO. 6 THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING EACH PARTY ONE-HALF OF THE BALANCE OF FUNDS IN ACCOUNTS AS OF DECEMBER 1, 1997. ASSIGNMENT OF ERROR NO. 7 THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO RECALCULATE CHILD SUPPORT BASED UPON THE EARNING ABILITIES OF THE PARTIES AS OF THE DATE OF THE FINAL HEARING AND AFTER AWARDING SPOUSAL SUPPORT. ASSIGNMENT OF ERROR NO. 8 THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO USE THE DATE THE PARTIES SEPARATED AS THE MARRIAGE TERMINATION DATE. ASSIGNMENT OF ERROR NO. 9 THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DIVISION OF THE PROPERTY AND ALLOCATION OF DEBTS. In his first assignment of error, appellant contends the trial court erred in ordering him to maintain health insurance for the children. In the May 9, 2000 magistrate's decision on allocation of parental rights and responsibilities, adopted by the trial court on the same date, Ms. Mobley (hereinafter "appellee") was ordered to maintain health insurance for the children. Appellee did not object to this decision. However, in the final divorce decree, the trial court found that it was not in the best interest of the children for appellee to maintain their health insurance and, instead, ordered that appellant maintain such. Appellant asserts the trial court erred in reconsidering this issue since appellee never objected to the earlier magistrate's decision, there was never any motion filed putting health insurance back into issue, and there was no evidence presented at the contested divorce trial upon which to base the trial court's order that appellant now maintain health insurance for the children. For the reasons that follow, we find appellant's argument well-taken. As indicated above, the allocation of parental rights and responsibilities was referred to a magistrate for final disposition. The magistrate determined that appellee should maintain health insurance for the children, and the trial court adopted this decision. Appellee never objected to this determination nor did she file a motion or otherwise seek a modification of this order. In addition, we note that appellee's trial statements indicated that it was her position that she would maintain health insurance for the children. The issue of who would maintain health insurance for the children was finally determined by the magistrate in the May 9, 2000 decision adopted by the trial court, and there is nothing in the record to indicate that this was going to be an issue at the divorce trial. Because there was no objection filed and no motion was made to modify such order, the trial court erred in sua sponte changing the order to require appellant to maintain health insurance. If appellee desires a modification of the order regarding health insurance, she may file the appropriate motion. See, for example, R.C. 3119.33. To the extent the final judgment entry ordered appellant to maintain health insurance for the children, such judgment is reversed. Accordingly, appellant's first assignment of error is sustained. In his second assignment of error, appellant asserts the trial court erred in failing to recalculate his child support obligation in light of him being ordered to maintain the children's health insurance. Given our disposition of the first assignment of error, the second assignment of error is moot. In his third assignment of error, appellant contends the trial court erred in awarding spousal support. In the divorce decree, the trial court ordered appellant to pay appellee $25 per month for seventy-two months as spousal support, retaining jurisdiction to modify this. Our review of a trial court's determination as to spousal support is limited to whether or not the trial court abused its discretion. See Casper v. DeFrancisco, Franklin App. No. 01AP-604, 2002-Ohio-623, at ¶ 16. In determining whether spousal support is appropriate and reasonable, and in determining the amount and duration of spousal support, the trial court must consider the factors listed in R.C. 3105.18(C)(1). Appellant contends the trial court erred in finding, pursuant to R.C.3105.18(C)(1)(b), that he was capable of earning between $38,500 and $55,000 per year. However, there was evidence in the record that appellant had such earning potential. (See Tr. at 142-143.) Further, in 1997, appellant earned $42,000. Appellant did testify that his gross income in the year 2000 was approximately $24,100 and that he expected to make that same amount in 2001. Indeed, the trial court found that appellant's income was $24,104. However, given all of the evidence, the trial court did not err in determining that appellant was capable of earning between $38,500 and $55,000 per year. Appellant also finds fault with the trial court's determination that appellee was capable of earning $14,040 per year. Appellant contends, in essence, that the trial court erred in determining, pursuant to R.C.3105.18(C)(1)(f), that it was inappropriate for appellee to work full-time given their daughter's disabilities. However, the trial court's determination in this regard was supported by the evidence and was well within its discretion. Appellant next asserts the trial court erred in determining that the duration of the marriage was seventeen years, three months. The trial court determined that the parties were in a common law marriage beginning in January 1983 and that such marriage terminated on the date of the final hearing — April 26, 2001. Appellant contends the trial court should have found the marriage terminated on the date the parties separated, which appellant contends was June 1998. We see no abuse of discretion or other error in the trial court's determination in this regard. Further, we see no prejudice stemming from the trial court's determination. There are a variety of factors at play in the trial court's determination on spousal support, only one of which is the duration of the marriage. Given all of the evidence before the trial court and the small amount of monthly spousal support actually ordered in this case, we find no error, let alone prejudicial error, in the trial court's determination of the duration of the marriage in the context of spousal support. As to the remaining factors in R.C. 3105.18(C)(1), we find no evidence or other equitable considerations that would lead us to determine the trial court abused its discretion in awarding appellee $25 per month for seventy-two months as spousal support. Given all of the evidence and circumstances presented in this case, such an award was not an abuse of discretion. Accordingly, appellant's third assignment of error is overruled. In his fourth assignment of error, appellant contends the trial court erred in awarding attorney fees to appellee. Appellant asserts that the attorney fees issue was already determined in the magistrate's May 9, 2000 decision. In such decision, which was adopted by the trial court, the magistrate denied appellee's request for interim attorney fees because he found appellee would not be prevented from fully litigating her rights and adequately protecting her interests if no fees were awarded. R.C. 3105.18(H) states: In divorce * * * proceedings, the court may award reasonable attorney's fees to either party at any stage of the proceedings, * * * if it determines that the other party has the ability to pay the attorney's fees that the court awards. When the court determines whether to award reasonable attorney's fees to any party pursuant to this division, it shall determine whether either party will be prevented from fully litigating that party's rights and adequately protecting that party's interests if it does not award reasonable attorney's fees. [Emphasis added.] Under R.C. 3105.18(H), reasonable attorney fees are awardable at any stage of the proceedings. Hence, the fact that the magistrate determined at that time that attorney fees were not warranted does not preclude a different finding later in the proceedings. Accordingly, the trial court was not precluded from awarding attorney fees in the final decree simply by virtue of the fact that a previous request for interim fees was denied. However, the trial court did have to comply with the dictates of R.C. 3105.18(H). In order to award attorney fees under R.C. 3105.18(H), a trial court must determine that the attorney fees are reasonable, the payor has the ability to pay the attorney fees, and the other party will be prevented from fully litigating his or her rights and adequately protecting his or her interests if attorney fees are not awarded. See Trott v. Trott, Franklin App. No. 01AP-852, 2002-Ohio-1077, at ¶ 10. In general, it is within the sound discretion of the trial court to award attorney fees in a divorce action. Trott at ¶ 8, citing Rand v. Rand (1985),18 Ohio St.3d 356, 359. In the case at bar, the trial court ordered appellant in the divorce decree to pay $1,310 owed to Marcia Zand, appellee's former attorney. In addition, the trial court found appellee owed her present attorney, Gregg Lewis, $5,268.97 as of April 3, 2001, and the trial court ordered appellant pay one-half of this amount. As to the fees owed to Marcia Zand, appellee testified that she owed Ms. Zand over $12,000. (Tr. 13.) Later, appellee testified that she owed Ms. Zand $6,118 and that she had paid Ms. Zand almost $10,000 in attorney fees. Id. at 71. The only other evidence submitted was plaintiff's exhibit No. 11, a statement from Ms. Zand's law firm dated January 12, 2000. The statement merely indicated that the balance was $1,310. This is the amount the trial court ordered appellant to pay. We find the trial court erred in ordering appellant to pay the $1,310 owed by appellee to Ms. Zand. There was no testimony as to what this figure represented. While the trial court could reasonably infer that the $1,310 represented legal fees stemming from Ms. Zand's representation of appellee, more evidence was necessary to support an award. For example, there was no breakdown of the work performed or Ms. Zand's hourly rate. Rather, plaintiff's exhibit No. 11 merely indicated that appellee had a balance forward of $1,280 and a charge on January 10, 2000 of $30, for a total of $1,310. Obviously, there was no testimony regarding the reasonableness of this figure. The lack of evidence as to Ms. Zand's fees, including appellee's conflicting testimony, leads this court to conclude that an award of attorney fees was erroneous without additional evidence and findings. The trial court also ordered appellant to pay one-half of the $5,268.97 owed to Mr. Lewis. Appellee testified that she had paid Mr. Lewis $5,000-6,000, which she had to borrow from family members, and that she owed him $5,268.97. Id. at 12. Plaintiff's exhibit No. 1 was an April 3, 2001 invoice from Mr. Lewis showing appellee's outstanding bill. This invoice showed itemized billings (i.e., services rendered, time spent, hourly rate(s), total amounts) totaling $768.46. In addition, the invoice showed a previous balance of $4,500.51, for a total of $5,268.97. There was no breakdown or itemization of the $4,500.51 previous balance. We find that an attorney fees award based on the itemized $768.46 was proper. Such amount was supported by sufficient and specific evidence, and the trial court could properly conclude that Mr. Lewis's hourly rates of $60 and $175 were reasonable. However, there was not such sufficient or specific evidence in regard to the $4,500.51 previous balance. For essentially the same reasons as discussed with regard to Ms. Zand's fees, there simply was insufficient evidence to find such fees were reasonable. Hence, it was error to grant an attorney fees award as to these particular fees without additional evidence and factual findings. However, as indicated above, the $768.46 owed to Mr. Lewis was reasonable and supported by the evidence. The trial court ordered appellant to pay one-half of Mr. Lewis's attorney fees. Of course, the trial court ordered this in the context of total fees of $5,268.97. But for the lack of evidence on the specifics of the previous balance owed Mr. Lewis, the evidence supported the trial court's conclusion that appellant had the ability to pay one-half of the $5,268.97 and that appellee would have been prevented from fully litigating her rights and adequately protecting her interests if such an award was not made. The trial court correctly concluded that appellant was able to pay $2,634.49 (one-half of $5,268.97) in attorney fees. However, there was insufficient evidence as to the reasonableness of all but $768.46 of the $5,268.97. In summary, the trial court erred in ordering appellant pay the fees owed to Ms. Zand without additional evidence and factual findings. The same is true with respect to the fees owed to Mr. Lewis. For this reason, appellant's fourth assignment of error is sustained in part and the cause will be remanded for further proceedings with respect to attorneys fees. In his fifth assignment of error, appellant contends the trial court erred in ordering him to pay certain fees appellee owed the guardian ad litem. In the final judgment entry, the trial court found that appellee owed the guardian ad litem $999.45 as of March 19, 2001. At trial, appellee submitted an exhibit showing that her portion of the guardian ad litem fees owed was $999.45. The trial court ordered that appellant pay this amount. Appellant contends that given the history of orders relating to guardian ad litem fees, the trial court's final order was erroneous. Such history follows. In the magistrate's May 9, 2000 decision on the allocation of parental rights and responsibilities, appellant was ordered to pay $4,294 in guardian ad litem fees. Appellee was ordered to pay $566 in guardian ad litem fees. These figures represented an 80/20 split of the total fees due the guardian ad litem at that time. On October 13, 2000, the guardian ad litem filed an affidavit for fees, requesting the trial court order certain unpaid fees be paid to her. The affidavit indicated that appellee had paid $266 of the $566 she had been ordered to pay and that appellant had paid nothing. The affidavit also indicated that since the May 9, 2000 decision, an additional $1,272.80 in fees had been generated. The amount for preparation and filing of the affidavit was not included in this new amount. On December 5, 2000, the magistrate found that the additional $1,272.80 in new guardian ad litem fees was reasonable and in the best interest of the children. Further, no party had filed any objections to the guardian ad litem's fee affidavit. The magistrate ordered that appellee pay twenty percent of the new fees ($254.56) and that appellant pay eighty percent of such fees ($1,018.24). Further, the magistrate stated that the guardian ad litem was under no obligation to perform any additional services until all fees were paid. The magistrate noted that the guardian ad litem fees were in the nature of child support and that the failure to pay could result in a continuation of the hearing and/or contempt proceedings. The magistrate's decision was adopted by the trial court on December 5, 2000, and no objections were filed. On April 20, 2001, the guardian ad litem filed a motion for contempt against appellant for his alleged failure to pay guardian ad litem fees in accordance with previous orders. According to the guardian ad litem, appellant owed $5,313.24 of the $6,162.80 owed her. On June 20, 2001, a memorandum of agreement was filed, indicating that the guardian ad litem agreed to accept a total payment from appellant of $3,600 and that if appellant failed to pay such amount as agreed upon, then appellant would owe $5,312.24,1 plus $300. Again, in the final judgment entry/decree of divorce, the trial court ordered that appellant pay $999.45 owed by appellee to the guardian ad litem. For the same reasons as set forth under the first assignment of error, the trial court erred in ordering appellant pay such fees, but only as to fees that had been ordered as of December 5, 2000. As to such fees, no objections were ever filed and, as it did with the health insurance issue, the trial court erred in revisiting the issue of who should pay these amounts. At the time of the December 5, 2000 magistrate's decision, appellee was ordered to pay $254.56. Appellee had previously been ordered to pay $566 in guardian ad litem fees, for a total owed of $820.56. Appellee paid $266 of this amount and, therefore, owed the guardian ad litem $554.56 as of December 5, 2000. Appellant should not have been ordered to pay this amount. However, since that time, the guardian ad litem had incurred additional fees. Contrary to appellant's contention, the guardian ad litem was not absolutely relieved of her duties in the case. Rather, she was given the option of not performing additional duties if the fees were not paid as ordered on December 5, 2000. The guardian ad litem apparently did perform additional services. Given the equities involved in the case, the trial court did not err in ordering appellant to pay appellee's portion of these additional fees, which totaled $442.89. Such figure represents the total amount appellee owed the guardian ad litem at the time of trial ($997.45), minus the $554.56 she had owed the guardian ad litem on December 5, 2000. Therefore, the trial court's award of guardian ad litem fees must be modified so that appellant is required to pay only $442.89 of the amount appellee owes the guardian ad litem and that appellee pay the remaining $554.56. Accordingly, appellant's fifth assignment of error is sustained in part and overruled in part. In his sixth assignment of error, appellant contends the trial court abused its discretion in its division of the parties' assets. As to the division of funds in the parties' bank accounts, the trial court found that neither party presented evidence of the balances of any bank accounts at the time of trial. The trial court noted that at the time the original complaint and counterclaim were filed (January/February 1998), appellee had $700 in her checking account and appellant had $500 in a checking account. The trial court ordered that each party be awarded these respective amounts and that they divide any remaining balance of funds left in any accounts as of December 1, 1997, the date the trial court found the parties separated. Appellant asserts the trial court erred in ordering that the parties divide amounts existing (in excess of the amounts indicated above) on the date the parties separated, which the trial court indicated was on December 1, 1997, because the trial court determined the marriage termination date was the date of the final hearing, April 26, 2001. As the trial court pointed out, there was no evidence presented at trial as to the balances of any accounts. Therefore, the trial court did not abuse its discretion in basing its determination as to division of accounts on the evidence it did have before it and on other equitable considerations. Further, even if the date chosen was erroneous, appellant can show no prejudice, as no evidence as to account balances at any time was presented at trial. Appellant's sixth assignment of error is overruled. In his seventh assignment of error, appellant contends the trial court erred in failing to recalculate child support once it awarded appellee $25 per month in spousal support. Further, appellant asserts the trial court should have recalculated child support in light of appellant's changed economic circumstances since the time of the hearing on allocation of parental rights and responsibilities. As to this assignment of error, we refer to our previous discussion under the first assignment of error. If appellant wishes to modify his child support obligation, he may file the appropriate motion(s). Further, appellant has not shown that the $25 per month (for seventy-two months) spousal support would affect his child support obligation either under the worksheet or as a matter of equity. Given the equitable circumstances which the trial court clearly considered throughout this case, the trial court did not abuse its discretion in awarding appellee $25 per month for seventy-two months in spousal support, even considering that appellant also had a child support obligation. Appellant's seventh assignment of error is overruled. In his eighth assignment of error, appellant contends the trial court erred in determining the termination date of the marriage was the date of the final hearing — April 26, 2001. Under R.C. 3105.171(A)(2), the date generally used for determining the duration of a marriage for purposes of property division is the date of the marriage through the date of the final hearing, unless the court determines that use of such dates would be inequitable. Such a determination is left to the sound discretion of the trial court. See Fox v. Fox, Franklin App. No. 01AP-83, 2002-Ohio-2010, at ¶ 107. In the case at bar, appellee moved out of the marital residence in June 1998. Appellant has pointed to no evidence that would lead this court to find that the trial court abused its discretion in determining that for purposes of dividing property, the marriage terminated on the date of the final hearing — April 26, 2001. Accordingly, appellant's eighth assignment of error is overruled. In his ninth assignment of error, appellant contends the trial court abused its discretion in its division of property and allocation of debts. A trial court has broad discretion in making divisions of property in domestic relations cases. Middendorf v. Middendorf (1998),82 Ohio St.3d 397, 401. Under R.C. 3105.171(C)(1), a division of marital property shall be equal unless such would be inequitable. In making such division, the trial court must consider all relevant factors, including those set forth in R.C. 3105.171(F). See R.C. 3105.171(C)(1). R.C. 3105.171(F) lists a variety of factors, and R.C. 3105.171(F)(9) states that the trial court shall consider any other factor that it finds to be relevant and equitable. Here, the trial court specifically stated that the division of property was equitable if not precisely equal. Appellant takes issue with the way the trial court divided household goods and furnishings. However, minimal evidence was presented about these items. Given this, and the equitable considerations, we can find no abuse of discretion in this regard. As to debts, the bulk of the debts were discharged during the parties' respective bankruptcies. Since appellant did not pay his child support as ordered, appellee ran up her Visa card in order to provide for herself and the children. The trial court was clearly within its discretion to order appellant pay the balance of the bill at the time of the hearing ($1,019.80), including membership fee(s), which was necessitated by his failure to fulfill his support obligation. Appellant also contends the trial court erred in holding him liable for any tax liability or liens incurred during the marriage.2 We find no abuse of discretion here. If tax problems arise, the problems would be more likely the result of the way appellant conducted his own business, rather than the result of appellee's income which was reported on a W-2 form by a reputable employer. The trial court was within its discretion to allocate any past potential tax problems to appellant. Finally, we can find no abuse of discretion in the trial court ordering appellant to pay one-half of appellee's outstanding medical bills, including counseling bills, existing on the date of the final hearing. For all of the above reasons, appellant's ninth assignment of error is overruled. In summary, appellant's first assignment of error is sustained. The second assignment of error is moot. Appellant's third, sixth, seventh, eighth, and ninth assignments of error are overruled. Appellant's fourth and fifth assignments of error are sustained in part and overruled in part. The judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed in part and reversed in part. This cause is remanded to such court for further appropriate proceedings consistent with this opinion. Judgment affirmed in part and reversed in part; and cause remanded. LAZARUS and DESHLER, JJ., concur. 1 We note that this amount differs by one dollar from the amount stated to be owed in the April 20, 2001 contempt motion. 2 The trial court ordered that each party pay their respective tax liability for the years 2000 and forward.

2016-07-06 06:42:08.729818+00

Plaintiff David Martin brought this action against defendant-landlord David Henderson, alleging that landlord negligently maintained a stairway in landlord's apartment building, and that plaintiff injured himself when a step on the stairway broke. The court granted a default judgment to plaintiff in the amount of $25,000. The court eventually refused to grant relief from the default judgment, and defendant appeals. We dismiss the appeal for want of jurisdiction. Plaintiff filed the complaint in May 1997 and took a default judgment in November 1997. In July 1999, defendant filed a motion for relief from judgment that fell woefully short of establishing any of the elements necessary under Civ.R. 60(B) and the test set forth inGTE Automatic Electric, Inc. v. ARC Industries (1976),47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus. Read liberally, the motion appeared to claim that defendant was entitled to relief from judgment because he had no knowledge of the lawsuit. The court scheduled an evidentiary hearing on the motion for relief from judgment, but neither party appeared for the hearing. In a journal entry issued August 31, 1999, the court said that it had reviewed the filings relating to the motion for relief from judgment and was denying relief. Two days later, on September 2, 1999, defendant filed a motion to amend his motion for relief from judgment. As we noted, the initial motion for relief from judgment did not contain any of the elements required under Civ.R. 60(B). In the amended motion, defendant said that while "he did not believe that the assertion of a meritorious defense is an absolute requirement for relief under the Rules," he was, out of an abundance of caution, requesting leave to file an amended motion for relief from the default judgment, stating as the meritorious defense plaintiff's own comparative negligence in falling on the steps. That same day (September 2, 1999) defendant filed a reply brief to plaintiff's "preliminary brief in opposition to defendant's motion for relief from default judgment." In that reply brief, he asserted a more traditional argument for relief from judgment, this time setting forth the factors contained in Civ.R. 60(B). On September 10, 1999, the court granted defendant's motion for leave to amend the motion for relief from judgment, and further considered defendant's reply to plaintiff's brief in opposition to the motion for relief from judgment as a motion for reconsideration. The court then denied the motion for relief from judgment. On September 20, 1999, defendant filed two more motions: (1) a motion asking the court to reconsider its "dismissal" of the motion for relief from judgment and (2) another motion for relief from judgment, once again saying that plaintiff had not served the complaint at an address where defendant resided. The court denied this motion on September 22, 1999. Defendant filed his notice of appeal on October 8, 1999, purporting to appeal from judgments entered September 10, 1999 and September 22, 1999. A party has thirty days in which to file an appeal from a final judgment. See App.R. 4(A). The thirty-day time period for filing an appeal is jurisdictional.State, ex rel. Pendell v. Adams Cty. Bd. of Elections (1988), 40 Ohio St.3d 58. The final appealable order in this case was the August 31, 1999 order denying defendant's motion for relief from judgment. Instead of appealing directly from that order, defendant sought to amend the initial motion — a request the court properly considered a request for reconsideration. The court could not permit the amendment of a motion after it had been overruled and turned into a final, appealable order. Defendant's attempt to seek reconsideration of that court order was nullity. See Pitts v. Dept. of Transportation (1981),67 Ohio St.2d 378. The motion for reconsideration being a nullity, defendant could not extend the time for appeal by filing successor motions for relief from judgment that raised the same grounds for relief or by seeking to continually amend a motion that lacked merit. Principles of collateral estoppel prohibit the relitigation of issues that have been finally decided. Because defendant did not appeal the August 31, 1999 order denying relief from judgment until October 8, 1999, he did not file the appeal within thirty days. We therefore lack jurisdiction to hear this appeal. Appeal dismissed. It is ordered that appellee recover of appellants his costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, J. ANNE L. KILBANE, J., CONCUR. _______________ PRESIDING JUDGE JOHN T. PATTON

2016-07-06 06:42:08.765005+00

OPINION {¶ 1} The plaintiff-appellant, Kenneth E. Silvers, appeals the judgment of the Hancock County Court of Common Pleas granting summary judgment in favor of the defendant-appellee, Erie Insurance Group (hereinafter "Erie"). {¶ 2} Prior to filing their motions for summary judgment, both parties stipulated to the following facts: Silvers owns and operates a lawn care company, Residential Lawn Care. In March 2002, Silvers, d/b/a Residential Lawn Care, purchased a FiveStar Contract Policy (hereinafter "Contractor Policy") with an endorsement for application of herbicides or pesticides from Erie. Moreover, Silvers, as an individual, purchased an Extracover Home Protector Policy (hereinafter "Home Protector Policy") from Erie, too. {¶ 3} Silvers was hired to provide lawn care and maintenance to two private lawns and the Marion Township Building. In the course of his business, Silvers inadvertently sprayed all three lawns with Round Up Pro, a non-selective herbicide. Silvers also inadvertently sprayed his own lawn with Round Up Pro. Silvers thought that he had sprayed Momentum, a selective weed control product. As a result, all lawns were damaged, and Silvers incurred the cost to repair them. {¶ 4} Silvers subsequently presented Erie claims under both the Home Protector Policy and the Contractor Policy for property damage to recover the costs he incurred by repairing the lawns. Erie denied all claims, so Silvers filed a complaint on May 14, 2003. Both parties moved for summary judgment, and on October 14, 2004, the trial court granted summary judgment in favor of Erie and denied summary judgment against Silvers. Silvers appeals alleging two assignments of error. First Assignment of Error The trial court erred by its determination that the accidentalapplication of a non-selective herbicide that caused entire sections oflawns to require repair was not an "occurrence" constituting damage toproperty within the coverage terms of the five star contractor policyincluding additional coverage for herbicide and pesticide applications. Standard of Review {¶ 5} The standard for review of a grant of summary judgment is one of de novo review. Lorain Nat'l Bank v. Saratoga Apts. (1989),61 Ohio St.3d 127, 129, 572 N.E.2d 198. Thus, such a grant will be affirmed only where there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In addition, "summary judgment shall not be rendered unless it appears . . . that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence construed most strongly in his favor." Id. {¶ 6} The moving party may make his motion for summary judgment in his favor "with or without supporting affidavits[.]" CivR. 56(B). However, "[a] party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond." Mitseff v. Wheeler (1988),38 Ohio St.3d 112, 526 N.E.2d 798, syllabus. Summary judgment should be granted with caution, with a court construing all evidence and deciding any doubt in favor of the nonmovant. Murphy v. Reynoldsburg (1992),65 Ohio St.3d 356, 360, 604 N.E.2d 138. Once the moving party demonstrates that he is entitled to summary judgment, the burden then shifts to the non-moving party to show why summary judgment in favor of the moving party should not be had. See Civ.R. 56(E). In fact, "[i]f he does not so respond, summary judgment, if appropriate, shall be rendered against him." Id. Insurance Coverage {¶ 7} The relevant language of the Contractor Policy states: Section I — Coverages Coverage a bodily injury and property damageliability 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated topay as damages because of "bodily injury" or "property damage" to whichthis insurance applies. * * * b. This insurance applies to "bodily injury" and "property damage" onlyif: 1) The "bodily injury" or "property damage" is caused by an"occurrence" that takes place in the "coverage territory: 2) The "bodily injury" or "property damage" occurs during the policyperiod; and 3) Prior to the policy period, no insured listed . . . knew that"bodily injury" or "property damage" had occurred in whole or in part. Contractor Policy at p. 1. An "`[o]ccurrence' means an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Id. at 11. {¶ 8} Moreover, the Contractor Policy defines the following exclusions. 2. Exclusions This insurance does not apply to: * * * j. Damage to Property "Property damage" to: 1) Property you own, rent, or occupy . . . * * * 5) That particular part of real property on which you work or anycontractors or subcontractors working directly or indirectly on youbehalf are performing operations, if the "property damage" arises out ofthose operations; or 6) That particular part of any property that must be restored, repairedor replaced because "your work" was incorrectly performed on it. Id. at 4. The insurance policy defines "your work" as the following. 22. "Your work": a. Means: 1) Work or operations performed by you or on your behalf; and 2) Materials parts or equipment furnished in connection with such workor operations. Id. at 12. {¶ 9} On the other hand, the relevant portions of the Home Protector Policy states: Property damage liability coverage our promise We will pay all sums up to the amount shown on the Declarations whichanyone we protect becomes legally obligated to pay as damages because ofbodily injury or property damage caused by an occurrence during thepolicy period. We will pay for only bodily injury or property damagecovered by this policy. We do not cover . . . 11. Bodily injury, property damage or personalinjury which arises out of the discharge, disposal, release or escape ofany solid, liquid, or gaseous or thermal irritant, pollutant orcontaminant, including . . . chemicals. . . . Home Protector Policy at 17, 19. {¶ 10} Because the facts of this case are stipulated by both parties, we must determine whether the inadvertent application of the non-selective herbicide is covered by either insurance policy. Silvers contends that the inadvertent herbicide application to his and his customer's lawns was an "occurrence" within the definition stated in the insurance policies. Moreover, Silvers argues that the Pesticide and Herbicide Applicator Coverage extends the basic policy coverage to include the inadvertent herbicide application. Contrarily, Erie argues that under the Contractor Policy, the "your work" exclusions prevents coverage in this particular context. Furthermore, Erie suggests that there was no "occurrence" as defined in either the Contractor Policy or the Home Protector Policy in order for Silvers to receive coverage. {¶ 11} The Ohio Supreme Court has held that "insurance contracts must be construed in accordance with the same rules as other written contracts." Hybud Equipment Corp. v. Sphere Drake Ins. Co. (1992),64 Ohio St.3d 657, 665, 597 N.E.2d 1096. In doing so, the Court stated: In applying these rules, we have stated that the most critical rule isthat which stops this court from rewriting the contract when the intentof the parties is evident, i.e., if the language of the policy'sprovisions is clear and unambiguous, this court may not resort toconstruction of that language. Thus, in reviewing an insurance policy, words and phrases used thereinmust be given their natural and commonly accepted meaning, where they infact possess such meaning, to the end that a reasonable interpretation ofthe insurance contract consistent with the apparent object and plainintent of the parties may be determined. In reaching its decision, [a federal district] court aptly noted thatunder the case law of this state, an exclusion in an insurance policywill be interpreted as applying only to that which is clearly intended tobe excluded. However, the rule of strict construction does not permit acourt to change the obvious intent of a provision just to imposecoverage. Id. (internal quotations and citations omitted). {¶ 12} In the instant case, the Contractor Policy states that Silvers is entitled to coverage if (1) the property damage is caused by an occurrence that takes place in the coverage area; and (2) the property damage occurred during the policy period. Without discussing whether the inadvertent application of the non-selective herbicide is an "occurrence," the record indicates that the property damage did occur during the policy period. Nevertheless, despite possibly meeting the criteria necessary for coverage, the Contractor Policy does state explicit exclusions that prevent coverage. Specifically, the Contractor Policy excludes coverage for property damage "that must be restored, repaired or replaced because `your work' was incorrectly performed on it." The policy defines "your work" as "[w]ork or operations performed by you. . . ." {¶ 13} According to the joint stipulation of facts, Silvers admittedly applied the non-selective herbicide to his and his customer's lawns, which would constitute "your work" under the Contractor Policy. Moreover, according to the exclusion, any repair, restoration, or replacement of any lawn, which is a result of Silvers' work, falls within the exclusion outlined in the policy. In sum, Silvers' application of non-selective herbicide to his and his customer's lawns is within the clear and unambiguous exclusion as detailed in the Contractor Policy. Finally, while the Herbicide and Pesticide Endorsement does eliminate an exclusion primarily dealing with herbicides and pesticides, the Endorsement does not alter, change, or eliminate the "your work" exclusion that prevents Silvers from coverage given this particular set of facts. {¶ 14} After reviewing the Home Protector Policy, we similarly conclude that Silvers' claim was properly denied. The Home Protector Policy states that Erie will pay "all sums up to the amount shown on the Declarations which anyone we protect becomes legally obligated to pay as damages because of . . . property damage caused by an occurrence during the policy period." Home Protector Policy at 17 (emphasis not included). Under the exclusions, however, the policy states "[w]e do not cover . . . property damage . . . which arises out of the discharge, disposal, release or escape of any solid, liquid, gaseous or thermal irritant, pollutant, or contaminant, including . . . chemicals. . . ." Id. at 17, 19 (emphasis not included). Thus, according to this language, the inadvertent discharge of a non-selective herbicide is not included under the property damage section of the Home Protector Policy. Therefore, Silvers is barred from recovering insurance proceeds from Erie under this policy. {¶ 15} According to the exclusionary language highlighted in both the Contractor Policy and the Home Protector Policy, Silvers' actions of inadvertently spraying the lawns with a non-selective herbicide bars recovery of insurance proceeds as a matter of law. Thus, his first assignment of error is overruled. Second Assignment of Error The trial court erred in its determination that the failure of theinsurer to pay claims on covered occurrences and property damages throughdenial of coverage is a valid basis for bad faith claims against theinsurer. {¶ 16} Based on our foregoing conclusion in the first assignment of error, no bad faith can exist because he was not entitled to insurance coverage under Contractor Policy or the Home Protector Policy. SeeBoughan v. Nationwide Property Cas. Co., 3rd Dist. No. 1-04-57, 2005-Ohio-244, at ¶ 19. Accordingly, the second assignment of error is overruled. Judgment Affirmed. Cupp, P.J. and Rogers, J., concur.

2016-07-06 06:42:09.059707+00

DECISION AND JUDGMENT ENTRY JUDGMENT ENTRY {¶ 1} Plaintiff-Appellants Gail Miller, executor of the estate of Betty Adkins, and Adam Julius Lee Jackson, by and through his natural Guardian, Michael Lee Jackson, appeal the decision of the Jackson county Court of Common Pleas, which granted summary judgment on appellants' negligence claims in favor of Defendants-Appellees the Jackson County Board of Commissioners, Brian McPherson (the Jackson County Engineer), and Kenneth Burton (an employee of the Jackson County Engineer's Department). Appellants assert that genuine issues of material fact exist as to the issues of negligence, proximate cause, and percentage of fault. Consequently, appellants conclude that the trial court erred by granting appellees summary judgment. {¶ 2} For the reasons that follow, we disagree with appellant and affirm the judgment of the trial court. Proceedings Below {¶ 3} On July 19, 2001, Kenneth Burton, an employee of the Jackson County Engineer's Department, was driving a road grader eastbound on U.S. Route 35 (a four-lane, divided highway). Burton was traveling in the right-hand lane at a low rate of speed (approximately 25 m.p.h.). The speed limit on the highway was 55 m.p.h. and no other county vehicle was accompanying the road grader that day. The rear end of the road grader, however, was equipped with a "slow-moving vehicle" sign and flashing red lights. {¶ 4} Betty Adkins and her son were also traveling eastbound on U.S. Route 35 that day. According to an eyewitness, Mark Denny, July 19, 2001, was a clear summer day, and he, too, was traveling eastbound on U.S. Route 35. Denny was traveling in the left-hand lane on a straight stretch of the highway when he noticed the road grader in the right-hand lane several hundred feet ahead of him. There were no obstructions hampering the view of the road grader. Denny also observed another vehicle (Betty Adkins' vehicle) in the right-hand lane approaching the road grader. Denny slowed his vehicle to allow the other vehicle to switch lanes and pass the road grader. As Denny and the other vehicle approached the road grader, Denny noticed that the other vehicle was not changing lanes or slowing down. Denny watched the other vehicle collide with the rear of the road grader, never applying its brakes or slowing down prior to impact. {¶ 5} Betty Adkins died at the scene from injuries sustained in the collision; her son Adam, however, was not seriously injured. Adkins' estate and her son, through his natural guardian (appellants herein), brought suit against the Jackson County Board of Commissioners, the Jackson County Engineer (Brian McPherson), and Burton. Appellants asserted that the county and its employees were negligent in several aspects regarding the accident, and that the accident resulted in Adkins' death and her son's emotional injuries. Specifically, appellants asserted that Burton was negligent in his operation of the road grader, that the county engineer was negligent by "failing to properly mark, identify, and make visible the road grader," and that the county failed to take proper precautions when transporting equipment between work sites on public highways. {¶ 6} Following discovery, appellees filed a motion for summary judgment. Appellee asserted that Adkins failed to maintain an assured clear distance in violation of R.C.4511.21(A) and was negligent per se when she collided into the backend of the road grader. In support of this assertion, appellees presented Denny's affidavit, which contained his description of the accident. Consequently, appellees concluded that reasonable minds could only conclude that Adkins was negligent per se by failing to maintain an assured clear distance between her vehicle and the road grader. Additionally, appellees asserted that Adkins' own negligence was the proximate cause of her injuries. Appellees relied on the deposition testimony of appellants' expert witness, Kenneth Agent, an engineering consultant, who testified in part that a reasonable person faced with the same scenario would have been able to observe the road grader and take some action to avoid a collision. {¶ 7} The trial court granted appellees summary judgment on all of appellants' claims. The Appeal {¶ 8} Appellants timely filed their notice of appeal and present the following assignment of error for our review: "The court erred in the granting of defendant/appellee's [sic] motion for summary judgment because there are material issues of fact present in this case and Defendant/Appellee was not entitled to judgment as a matter of law." Summary Judgment Standard of Review {¶ 9} We conduct a de novo review of a trial court's decision to grant summary judgment pursuant to Civ.R. 56. See Renner v.Derin Acquisition Corp. (1996), 111 Ohio App.3d 326,676 N.E.2d 151. The Supreme Court of Ohio has established the test to be employed when making a determination regarding a motion for summary judgment. {¶ 10} "Under Civ.R. 56, summary judgment is proper when `(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.'" (Citations omitted.) Welco Industries, Inc. v. AppliedCos., 67 Ohio St.3d 344, 346, 1993-Ohio-191, 617 N.E.2d 1129. Therefore, upon review, we give no deference to the judgment of the trial court. See Renner, supra. {¶ 11} Additionally, when a party to an action moves for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists as to all essential elements of a claim, even those issues the opposing party would bear the burden of proving at trial. See Vahila v. Hall,77 Ohio St.3d 421, 1997-Ohio-259, 674 N.E.2d 1164. However, a nonmoving party may not rest upon the allegations set forth in its pleadings in response to a properly supported summary judgment motion. See State ex rel. Mayes v. Holman,76 Ohio St.3d 147, 1996-Ohio-420, 666 N.E.2d 1132. The nonmoving party must show that a genuine issue of material fact remains to be tried by pointing to specific facts in the record, either through affidavits or by other proper means. See id. II. The County's Alleged Negligence {¶ 12} Appellants do not contest appellees' assertion that Adkins was negligent per se in that she violated the assured-clear-distance provision of R.C. 4511.21(A). Rather, appellants assert that the county was also negligent by operating the road grader on the highway in the manner that it did. Consequently, appellant's assert that a jury should determine the percentage of fault for which each party was responsible. {¶ 13} Appellants assert that genuine issues of fact exist regarding appellees' alleged negligence. Specifically, appellants assert that the testimony of their expert witness creates several issues of fact that a jury should be permitted to determine. According to this witness: the road grader did not have proper markings for a slow-moving piece of equipment; the road grader should have been accompanied by an escort vehicle with a flashing arrow instructing other vehicles on the highway to pass the slower vehicle; the road grader should have been equipped with a flashing beacon light; the road grader's "slow-moving vehicle" sign was located too low on the vehicle and slanted downward, making it harder to see; the road grader should have been operated at least partially on the shoulder; and, an acceptable and appropriate alternate route was available for the road grader's use. {¶ 14} According to Agent, appellees had a duty to do all of the above and that their failure to do them was the proximate cause of the accident. {¶ 15} We agree with appellants that a jury could determine that the county should have done all of the preceding things. However, appellants have failed to establish that these alleged defects were a proximate cause of the accident. The uncontested evidence is that the road grader was readily discernible, that the collision took place on a straight portion of the highway, and that the road grader was a large and easily visible piece of equipment. Further, this accident took place on a clear and sunny, summer day. The Supreme Court of Ohio has held that, "An automobile, van, or truck stopped on a highway in a driver's path during daylight hours is, in the absence of extraordinary weather conditions, a reasonably discernible object as a mater of law."Smiddy v. Wedding Party, Inc. (1987), 30 Ohio St.3d 35,506 N.E.2d 212, paragraph two of the syllabus. {¶ 16} Consequently, as a matter of law, Adkins should have perceived the road grader on the road and taken appropriate action to avoid the collision. Appellants' own expert conceded as much in his deposition where he testified that Adkins had more than 1,000 feet to notice the road grader and take action to avoid striking it. According to appellants' own witness, a reasonable driver would have taken some action to avoid the collision, considering the 13.5 to 15 seconds it would have taken to close the distance between their vehicle and the road grader. Agent conceded that Adkins took no such actions. {¶ 17} Although appellants' witness testified that it was his opinion that the alleged defects were the proximate cause of the accident, this conclusion is based on the assumption that Adkins did not see the road grader traveling on the highway in her lane of travel. This assumption is not tenable under Ohio law. SeeSmiddy, supra. {¶ 18} Therefore, we overrule appellants' assignment of error and affirm the judgment of the trial court. Judgment affirmed. 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 Jackson County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, P.J. Harsha, J.: Concur in Judgment Only.

2016-07-06 06:42:09.435906+00

JOURNAL ENTRY AND OPINION This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. Plaintiff-appellant State of Ohio appeals from the trial court's order that granted the defendant-appellee's motion for expungement of his conviction in 1992 for Drug Abuse in violation of R.C. 2925.11 and Possession of Criminal Tools in violation of R.C. 2923.24. The defendant has not filed an answer brief. For the reasons that follow, we reverse the trial court's order. The sole assignment of error provides as follows: I. A TRIAL COURT ERRED IN GRANTING A MOTION TO SEAL THE RECORD OF CONVICTION WHEN IT IS WITHOUT JURISDICTION TO GRANT SAID MOTION TO AN APPLICANT WHO IS NOT A FIRST OFFENDER DUE TO HIS CONVICTION FOR DRIVING UNDER SUSPENSION. The record reflects the defendant's 1997 conviction in Lyndhurst Municipal Court for violating Moving Violation Ordinance number 335.07. The State argued to the trial court that this ordinance is similar to R.C. 4511.192, Ohio's Driving with Suspended License statute.1 As such, the State contends that the trial court was without jurisdiction to grant the defendant's application for expungement because he does not meet the statutory definition of a first offender as provided by R.C.2953.31(A) and required by R.C. 2953.32(A) and (C). While the defendant has not filed an answer brief for this Court's review, he did admit to the trial court that he was driving under suspension three years ago and that he was guilty. Where an individual has a subsequent or previous conviction for driving under suspension, the pertinent statutes require the court to consider it as an additional conviction. See, generally, State v. Thomas (1979), 64 Ohio App.2d 141; State v. May (1991), 72 Ohio App.3d 664; State v. Garcia (June 28, 2001), Cuyahoga App. No. 79067, unreported; State v. Pantages (Feb. 15, 2001) Cuyahoga App. No. 78446, unreported. That additional conviction excludes the defendant from the definition of first offender rendering him ineligible for expungement under Ohio law. Id. Given the statutory prerequisites necessary to qualify for an expungement and the established and binding precedent of this Court, the State's assignment of error has merit and is sustained. Reversed and remanded to the lower court for further proceedings consistent with this opinion. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR. 1 On appeal, however, the State urges that the ordinance is similar to R.C. 4507.02, which pertains in pertinent part to the prohibition of operating a motor vehicle without a valid license.

2016-07-06 06:42:11.879691+00

OPINION {¶ 1} Joey R. Lee, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas in which the court denied his motion for post-conviction relief. {¶ 2} Appellant was convicted on three counts of rape, with one additional finding of force, and two counts of gross sexual imposition. The trial court sentenced appellant to a mandatory life sentence on the rape count that included a finding of force, and eight years on each of the two remaining rape counts, all of which were to be served consecutively to each other. The court also sentenced appellant to four years on each gross sexual imposition count, to be served concurrently with each other and with the rape sentences. Appellant appealed, and this court affirmed the trial court's judgment in State v. Lee, Franklin App. No. 02AP-1340, 2003-Ohio-4059. {¶ 3} On July 29, 2005, appellant filed the present post-conviction petition, alleging the trial court's non-minimum, consecutive sentences violated his constitutional right to a jury trial, pursuant to Blakely v. Washington (2004), 542 U.S. 296,124 S.Ct. 2531, and United States v. Booker (2005),543 U.S. 220, 125 S.Ct. 738. On August 26, 2005, the trial court denied the petition. Appellant appeals the judgment of the trial court, asserting the following four assignments of error: [I.] The Trial Court Erred When It Sentenced The DefendantUnder An Unconstitutional System. [II.] Trial Court Erred When It Sentenced Defendant, AFirst-Time Offender, To A More-Than-Minimum Sentence Based OnFacts found By a Judge Not a Jury, Nor Admitted By Defendant. [III.] The Trial Court erred by allowing the imposition ofconsecutive sentences based on facts not found by a jury, noradmitted to by the defendant violating his rights guaranteed bythe Sixth Amendment. [IV.] The Trial Court Erred When It Ruled Defendant's PetitionWas Untimely. {¶ 4} We will first address appellant's fourth assignment of error, as it is dispositive of the appeal. Appellant asserts in his fourth assignment of error that the trial court erred when it found his petition was untimely. We disagree. The decision to grant or deny a petition for post-conviction relief is committed to the discretion of the trial court. State v. Watson (1998),126 Ohio App.3d 316, 324. Accordingly, the trial court's decision regarding a petition for post-conviction relief will not be disturbed absent an abuse of discretion. State v. Campbell, Franklin App. No. 03AP-147, 2003-Ohio-6305, citing State v.Calhoun (1999), 86 Ohio St.3d 279, 284. {¶ 5} R.C. 2953.21(A)(2) provides, in pertinent part, that, "[e]xcept as otherwise provided in section 2953.23 * * *, a [post-conviction relief] petition * * * shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication[.]" In the present case, the transcript was filed in appellant's direct appeal on January 17, 2003. Appellant filed his post-conviction petition on July 29, 2005, long after 180 days had expired. R.C.2953.21(A)(2) provides an exception to the 180-day limitation, as found in R.C. 2953.23. R.C. 2953.23(A)(1) provides that a court may entertain a petition filed after the expiration of 180 days if both of the following apply: (1) either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period described in R.C.2953.21(A)(2), the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right; and (2) the petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted. {¶ 6} Here, appellant failed to meet the requirements of R.C.2953.23(A)(1). As for R.C. 2953.23(A)(1)(a), appellant's petition was not based upon any new facts, and Blakely did not create a new federal or state right that applies retroactively to appellant. See State v. Wilson, Franklin App. No. 05AP-939, 2006-Ohio-2750, at ¶ 15, citing State v. Graham, Franklin App. No. 05AP-588, 2006-Ohio-914, at ¶ 10, and State v. Myers, Franklin App. No. 05AP-228, 2005-Ohio-5998, at ¶ 36-37. With regard to R.C. 2953.23(A)(1)(b), in appellant's July 29, 2005 post-conviction petition, appellant addressed only sentencing issues and did not present any argument related to his guilt for the underlying rape and gross sexual imposition charges. "The plain language of R.C. 2953.23(A)(1)(b) does not extend to sentencing errors, except for those occurring within the capital punishment context." State v. Barkley, Summit App. No. 22351,2005-Ohio-1268, at ¶ 11. Thus, because appellant's sole argument related to sentencing and not to guilt, he failed to meet R.C.2953.23(A)(1)(b). As we noted in Wilson, although the Supreme Court of Ohio held in State v. Foster, 109 Ohio St.3d 1,2006-Ohio-856, that certain Ohio felony sentencing statutes violate the Sixth Amendment to the United States Constitution, its ruling applies only to those cases pending upon direct review or not yet final as of the date Foster was decided, not to a post-conviction relief motion untimely filed. Wilson, at ¶ 15, citing State v. Luther, Lorain App. No. 05CA008770,2006-Ohio-2280, at ¶ 12; State v. Jones, Miami App. No. 2005-CA-26, 2006-Ohio-2360, at ¶ 18; and State v. Rawlins, Scioto App. No. 05CA3012, 2006-Ohio-1901, at ¶ 12. {¶ 7} Therefore, because appellant neither filed his petition within the 180-day time period of R.C. 2953.21(A)(2), nor satisfied the exception in R.C. 2953.23, we must overrule his assignment of error and find the trial court did not err in denying his petition for post-conviction relief. Thus, appellant's fourth assignment of error is overruled. Further, as we have found the trial court did not err in denying appellant's petition, his remaining assignments of error are moot. {¶ 8} Accordingly, appellant's fourth assignment of error is overruled, his first, second, and third assignments of error are moot, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. Klatt, P.J., and Travis, J., concur.

2016-07-06 06:42:09.371712+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, Juvenile Division, that returned custody of appellant's three children to their mother and ordered that appellant have no contact with the children until further order of the court. For the reasons that follow, this court affirms the judgment of the trial court. {¶ 2} Appellant James K., father of Nichole, Raymond and Courtney K., sets forth the following assignment of error: {¶ 3} "A. The trial court's termination of the appellant's contact with his children is unjust and unreasonable." {¶ 4} Nichole, Raymond and Courtney were first removed from the home of their mother, Julie G., and placed in the temporary custody of appellee Lucas County Children Services Board ("LCCS") on May 4, 1999.1 Appellant and the children's mother are not now, and never have been, married. In approximately 1999, appellant began serving a seven-year prison sentence on a forgery conviction and he remains incarcerated at this time. After providing extensive case plan services to mother and the children for two years, LCCS moved the trial court on June 14, 2001 to terminate protective supervision. Following a hearing on the motion held on July 12, 2001, the magistrate ordered that the children be returned to their mother's custody and that appellant have no contact with the children until further order of the court. {¶ 5} On August 9, 2001, appellant filed a pro se petition requesting "reasonable communication" with the children and on November 7, 2001, he filed objections to the magistrate's order. The trial court denied appellant's motion for reasonable communication on November 7, 2001, finding that appellant should refile his motion upon his release from prison. On February 25, 2002, the trial court adopted the magistrate's decision. It is from that judgment that appellant appeals. {¶ 6} In support of his sole assignment of error, appellant asserts that the trial court failed to consider the factors set forth in R.C. 3109.015(D) for determining whether to grant parenting time to a parent. {¶ 7} We must first look to R.C. 3109.12(A), which provides that if a child is born to an unmarried woman, as in this case, the father may file a complaint requesting that the court grant him reasonable parenting time rights with the child. Division (B) of this section provides that the court may grant the parenting time rights requested under division (A) of the section if it determines that it is in the best interest of the child. In making such a determination, "the court shall consider all relevant factors, including, but not limited to, the factors set forth in division (D) of section 3109.051 * * * of the Revised Code." A thorough review of the trial court record, however, shows that appellant did not at any time prior to the July 12, 2001 hearing file a complaint requesting parenting time with Nichole, Raymond and Courtney. The record also reveals that appellant received notice of all proceedings in this case, including the July 12, 2001 hearing, but did not contact the court until August 9, 2001, when he filed his petition requesting "reasonable communication." Since appellant was not represented at the hearing, the trial court had no evidence before it that might have supported an order allowing appellant to have contact with the children while incarcerated. Further, the family's caseworker recommended that appellant have supervised visitation with the children upon his release from prison, and the children's guardian ad litem recommended that appellant not have any contact with the children until his release from prison. {¶ 8} Based on the foregoing, we find that the trial court did not abuse its discretion by ordering that appellant have no contact with the children until further order of the court and, accordingly, appellant's sole assignment of error is not well-taken. {¶ 9} Upon consideration whereof, this court finds that substantial justice was done the party complaining and the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Costs of this appeal are assessed to appellant. JUDGMENT AFFIRMED. Peter M. Handwork, J., James R. Sherck, J., and Richard W. Knepper,J., CONCUR. 1 Danielle G. is not appellant's child and is not the subject of this appeal.

2016-07-06 06:42:09.08877+00

Curtis Hamilton appeals the conviction and sentence entered upon him by the Scioto County Court of Common Pleas. On appeal, Hamilton asserts that the trial court erred by sentencing him to consecutive sentences for grand theft and receiving stolen property. Because the two offenses are allied offenses of similar import, we agree. Additionally, Hamilton asserts that the trial court abused its discretion by admitting evidence regarding footprints found at the crime scene. Because the trial court admitted the photographs and expert testimony regarding the footprints in accordance with the rules of evidence, we disagree. Finally, Hamilton asserts that the record does not contain sufficient evidence to support his conviction and that his conviction is against the manifest weight of the evidence. Because the record contains some competent credible evidence supporting each element of his crimes, and because the jury did not lose its way or create a manifest injustice, we disagree. Accordingly, we reverse in part and affirm in part the judgment of the trial court. I. On or about November 13, 1998, Hamilton asked Kenneth Reed to assist him in an upcoming break — in at the Beaver IGA grocery store. Reed declined, and reported Hamilton's plan to the Scioto and Pike County Sheriff's Departments. During the night of November 15 or the early morning hours of November 16, 1998, Hamilton and his nephew, Brian Beasley, used a cutting torch to open the back door of the Beaver IGA. Hamilton and Beasley then cut a hole in the safe and removed $30,000 in cash, food stamps and rolled coins, three certificates of deposit valued at $5,000 each, three certificates of deposit valued at $10,000 each, and assorted business and personal papers. Based upon the information supplied by Reed, Scioto and Pike County detectives obtained a warrant to search Hamilton's home. Deputies recovered several, of the certificates of deposit from the IGA safe, approximately $600 in cash and rolled coins, and approximately $125 in food stamps. Additionally, deputies confiscated a pair of Hamilton's sneakers. The Scioto County Grand Jury indicted Hamilton for breaking and entering, a violation of R.C. 2911.13 (A); safecracking, a violation of R.C. 2911.31 (A); grand theft, a violation of R.C.2913.02 (A) (1); and receiving stolen property, a violation of R.C. 2913.51 (A). Hamilton pled not guilty to all charges. At trial, the state introduced Reed's testimony and the stolen property recovered from Hamilton's home. Additionally, the state introduced the expert testimony of forensic scientist William Mark. Mark testified that footprints photographed at the scene of the crime were consistent with Hamilton's sneakers. Additionally, Mark noted that Hamilton's sneakers were marked with burns consistent with those that would be made by a cutting torch. At the close of evidence, Hamilton made a Crim.R. 29 motion for acquittal based upon the sufficiency of the evidence. The trial court denied Hamilton's motion, and sent the case to the jury. The jury found Hamilton guilty on all counts. The trial court sentenced Hamilton to nine months imprisonment and a three hundred dollar fine on count one of the indictment, and to twelve months imprisonment and a five hundred dollar fine on each of counts two, three and four of the indictment. The trial court ordered Hamilton to serve all the sentences consecutive to each other. Hamilton filed a timely notice of appeal, and asserts the following assignments of error: I. The trial court erred as a matter of law/abuse of discretion in sentencing Defendant on Count 3 * * * and Count 4 * * * where the two are allied offenses of similar import, and then ordering the sentences to run consecutive. II. The jury's verdict is against the manifest weight of the evidence. III. The trial court abused its discretion to the prejudice of appellant by admitting exhibits and testimony regarding the footprints photographed at the scene. IV. The trial court erred as a matter of law/abuse of discretion in overruling appellant's Crim.R. 29 motion where the evidence was insufficient to sustain a conviction of breaking and entering, safecracking and grand theft. II. In his first assignment of error, Hamilton contends that the trial court erred in sentencing him to serve consecutive sentences upon convictions for allied offenses of similar import. specifically, Hamilton contends that the trial court was required to order concurrent sentences for his convictions for grand theft and for receiving stolen property. The state concedes that the trial court erred in this regard. The offenses of receiving stolen property and grand theft of that same property constitute allied offenses of similar import.State v. Stone (1990), 69 Ohio App.3d 383, 390, citing Maumee v.Geiger (1976), 45 Ohio St.2d 238, 240; accord State v. Rance (1999), 85 Ohio St.3d 632, paragraph three of the syllabus. A defendant may be indicted, tried and found guilty for two offenses though they are allied offenses of similar import. SeeState v. Lang (1995), 102 Ohio App.3d 243, 251; State v. Fields (1994), 97 Ohio App.3d 337, 346-347. However, that defendant may only be convicted or sentenced for one of the offenses. Id.; see, also, R.C. 2941.25 (A). In this case, Hamilton was charged in count three with stealing items from the Beaver IGA safe and in count four with receiving the items stolen from that safe. Pursuant to R.C.2941.25 (A), Hamilton can not be convicted or sentenced for both crimes, as they constitute allied offenses of similar import. Therefore, the trial court erred in failing to merge the two counts for the purposes of conviction and sentencing. Accordingly, we sustain Hamilton's first assignment of error. We remand this case to the trial court for appropriate sentencing on counts three and four of the indictment. III. In his third assignment of error, Hamilton contends that the trial court abused its discretion by permitting the state to introduce photographs and testimony regarding footprints found at the crime scene. A trial court has broad discretion in the admission or exclusion of evidence, and so long as such discretion is exercised in line with the rules of procedure and evidence, its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice to defendant. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269,271; State v. Hymore (1967), 9 Ohio St.2d 122, certiorari denied (1968), 390 U.S. 1024. The term "abuse of discretion" connotes more than an error of law; it implies that the court acted unreasonably, arbitrarily or unconscionably. Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Berk v. Matthews (1990),53 Ohio St.3d 161, 169. Hamilton asserts that the trial court did not admit Mark's testimony regarding the footprints found at the scene in accordance with the rules of evidence. Specifically, Hamilton contends that the trial court should not have permitted Mark to testify regarding the similarity the footprints and Hamilton's sneakers, because Mark did not qualify as an expert on the subject. Evid.R. 702 provides that a witness may testify as an expert if the following three conditions are met: (1) he or she is qualified as an expert by virtue of specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; (2) the testimony relates to matters beyond the knowledge or experience of lay persons or dispels a common misconception among lay persons; and (3) the testimony is based upon reliable scientific, technical, or other specialized information. The qualification of an expert depends upon the expert's possession of special knowledge that he or she has acquired either by study of recognized authorities on the subject or by practical experience that he or she can impart to the jury and that will assist the jury in understanding a pertinent matter. State Auto Mut. Ins. Co. v. Chrysler Corp. (1973),36 Ohio St.2d 151, 160. Furthermore, it must appear that the expert has an opinion of his or her own or is able to form one upon the matter in question. Id. The expert witness is not required to be the best witness on the subject, but his or her testimony must assist the trier of fact in the search for the truth. Nichols v.Hanzel (1996), 110 Ohio App.3d 591, 597, citing Alexander v. Mt.Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 159. In this case, Mark testified that he received numerous years of training in the area of footprint identification before starting his own work in the area seven years ago. Additionally, Mark detailed the specialized methods he employs in footprint identification, and described the specialized information he looks for to conclusively identify a footprint. Based upon Mark's testimony, we find that the trial court did not abuse its discretion in permitting Mark to testify as an expert pursuant to Evid.R. 702. Hamilton also asserts that the trial court abused its discretion in permitting Mark to testify regarding discovery materials that the state failed to provide to him in discovery. Specifically, Hamilton contends that he never received the black and white photographs of his shoe print, nor the inked impression of the shoe print generated by Mark in the laboratory. When reviewing the propriety of a discovery ruling entered by the trial court, this court must determine whether the trial court abused its discretion. State v. Wiles (1991), 59 Ohio St.3d 71,78. Accordingly, we reverse a discovery ruling only if the trial court acted arbitrarily, unreasonably, or unconscionably. Berk, supra at 169. In this case, the trial court determined that Hamilton had a color copy of the black and white photograph introduced into evidence. Additionally, the trial court determined that Hamilton had access to Mark's final report regarding the footprint analysis, and that prior to the trial neither the state nor Hamilton had access to the inked footprint Mark used in his analysis. The trial court also offered Hamilton the use of a recess to review the photograph and the print prior to cross-examination. We can not say that the trial court acted arbitrarily, unreasonably or unconscionably in permitting the photograph and ink print to be introduced into evidence. Accordingly we find that the trial court did not abuse its discretion and overrule Hamilton's third assignment of error. IV. In his second assignment of error, Hamilton asserts that his conviction is against the manifest weight of the evidence. In his fourth assignment of error, Hamilton contends that the record does not contain sufficient evidence to support his conviction. The Ohio Supreme Court clearly outlined the role of an appellate court presented with a sufficiency of evidence argument in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. [See, also, Jackson v. Virginia (1979), 443 U.S. 307.] This test raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172,175. Rather, this test "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson at 319. Accordingly, the weight given to the evidence and the credibility of witnesses are issues primarily for the trier of fact. State v.Thomas (1982), 70 Ohio St.2d 79, 79-80; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. In this case, the evidence includes testimony that Hamilton planned to break into the IGA, that he sought help in doing so just two days before the crime occurred, and the fact that deputies found items from the IGA safe in Hamilton's home on the day after the theft. Viewing this evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found, beyond a reasonable doubt, that Hamilton broke into the IGA store and removed the contents of the safe. Accordingly, we overrule Hamilton's fourth assignment of error. Even when a verdict is supported by sufficient evidence, an appellate court may nevertheless conclude that the verdict is against the manifest weight of the evidence because the test under the manifest weight standard is much broader than that for sufficiency of the evidence. State v. Banks (1992), 78 Ohio App.3d 206,214; Martin, supra at 175. "A reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." Statev. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus. In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in 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 granted. State v. Garrow (1995),103 Ohio App.3d 368, 370 — 371. Upon review of the evidence outlined above, we find that the record contains substantial evidence upon which the jury could reasonably conclude that the state proved, beyond a reasonable doubt, that Hamilton broke into the IGA store and removed the contents of the safe. The trier of fact did not clearly lose its way or create a manifest miscarriage of justice. Accordingly, we overrule Hamilton's second assignment of error. V. In conclusion, we find that the trial court erred in entering convictions and sentences upon Hamilton for both grand theft and receiving stolen property, as the two offenses constitute allied offenses of similar import. However, we overrule Hamilton's remaining assignments of error and find that the trial court did not abuse its discretion in admitting evidence, and that Hamilton's conviction is supported by the manifest weight and the sufficiency of the evidence. Accordingly, we remand this case to the trial court for the purpose of merging Hamilton's convictions for grand theft and receiving stolen property. In all other respects, we affirm the judgment of the trial court. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED IN PART AND AFFIRMED IN PART, and the cause remanded to the trial court for the trial court to enter a new sentence consistent with this opinion, and Appellant and Appellee to split 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 Scioto County Court of Common Pleas to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. The stay as herein continued will terminate in any event at the expiration of the sixty day period. The stay shall terminate earlier if the appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, J. and Evans, J.: Concur in Judgment and Opinion. _______________________ Roger L. Kline, Judge

2016-07-06 06:42:09.127351+00

OPINION {¶ 1} Defendant-appellant, Stephanie Hatfield ("Stephanie" or "appellant"), appeals the decision of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch ("juvenile court"), granting permanent custody of her son, Matthew Anderton, to plaintiff-appellee, James Marion Anderton ("Jim" or "appellee"). We affirm the juvenile court's decision. {¶ 2} Stephanie and Jim are the parents of Matthew, born October 29, 1998. Stephanie and Jim were never married, but resided together for approximately three years. When Matthew was about one year old, they separated. Jim established paternity *Page 2 in September 2000 and, at that time, moved for custody of Matthew and that he be designated as the residential parent. In April 2001, the juvenile court issued a temporary order designating both parents as Matthew's residential parent and legal custodian. They were given alternating weeks of residential parenting time with Matthew. In May 2001, Stephanie moved for custody of Matthew and that she be designated as the residential parent. {¶ 3} A guardian ad litem ("GAL") was appointed in January 2002 and, after several continuances, a hearing was scheduled for August 13, 2002 before a magistrate. At the hearing, the GAL and counsel for appellee jointly moved for a continuance of the hearing on grounds that, on the morning of the hearing, the GAL received information that required him to investigate. Over the objection of appellant, the magistrate granted the continuance. {¶ 4} In January 2004, a magistrate heard both motions for custody. At the end of the proceedings, the magistrate instructed the GAL to submit his report and recommendation to the court several weeks later. Apparently, because of several health issues, the GAL was unable to submit his report in a timely fashion. In August 2004, the GAL moved for leave to submit additional evidence on grounds that some relevant information had recently come to his attention. {¶ 5} At a September 23, 2004 hearing, the magistrate granted the GAL's motion. The magistrate held that the record was still open and that it was in the best interest of Matthew to hear additional evidence. The magistrate heard the additional evidence in October and, on October 8, 2004, conducted an in camera interview of Matthew. Written closing arguments were submitted in late October. *Page 3 {¶ 6} In January 2005, the magistrate issued her written decision. In her decision, the magistrate sustained Jim's motion for custody and denied Stephanie's motion for custody. Jim was designated Matthew's residential parent and legal custodian and Stephanie was granted parenting time pursuant to local court rule and as the parties may agree. {¶ 7} Stephanie timely objected to the magistrate's decision. In May 2005, Stephanie filed an amended objection. On February 6, 2007, the juvenile court overruled Stephanie's objections and adopted the magistrate's decision. Stephanie timely appealed the decision of the juvenile court, presenting the following six assignments of error: ASSIGNMENTS OF ERROR I. The Trial Court Erred In Overruling Appellant's Objections To Continue The Hearing Set On August 13, 2002. II. The Trial Court Erred In Overruling Appellant's Objections To The GAL/Appellee's Motion To Reopen The Case Filed August 6, 2004 [Seven (7) Months After The Final Hearing Was Held.] In Violation Of Appellant's Constitutional Rights Under The Due Process And Equal Protection Provisions Of The United States And Ohio Constitutions In regard To The Following Grounds: (1) Fundamental Unfairness And (2) Denial Of The Equal Protection Of The Laws. III. The Trial Court Erred In Overruling Appellant's Objections To The Granting Of "Ex Parte" Extensions To The GAL/-Appellee To Prepare The GAL Report Outside The Presence Of Appellant Or Her Counsel Without Notice To Appellant Or Her Counsel And Without The Opportunity To Be Heard In Violation Of Appellant's Procedural Due Process Rights Pursuant To The Due Process And Equal Protection Provisions Of The United States And Ohio Constitutions. IV. The Trial Court Erred In Not Considering Appellee's Act Of Tainting The Child's Wishes As Shown By The Transcript Of The Child Interview Conducted On October 8, 2004. *Page 4 V. The Trial Court's Decision Is Against The Manifest Weight Of The Evidence; Is Not Supported By Sufficient, Probative Evidence; Is Contrary To The Law; And Is Further Contrary To The Best Interest Of The Child. VI. The Trial Court Erred In Denying Appellant's Oral Motion To Dismiss Made On January 6, 2004 On The Basis That Appellee Failed To Sustain His Initial Burden Of Proof Regarding His Fitness To Be The Custodial Parent. {¶ 8} In appellant's first assignment of error, appellant argues that the magistrate abused her discretion in granting a continuance over appellant's objection. According to appellant, because neither the GAL nor appellee had performed any discovery prior to the August 13, 2002 hearing, it was an abuse of discretion to grant a continuance on grounds of recently received information. We disagree. {¶ 9} The juvenile court overruled appellant's objection to the continuance in its February 6, 2007 decision and entry. In its decision, the juvenile court explained that the transcript of the August 13, 2002 hearing shows that the request for a continuance was for legitimate reasons. The transcript discloses that the GAL told the magistrate that, present in the courtroom was Stephanie's acquaintance who had allegedly served a prison sentence "for some serious criminal charges." (Tr. at 3.) {¶ 10} In its decision, the juvenile court observes that "consideration of individuals involved in Stephanie's life who may come in contact with Matthew are essential to the Guardian's recommendation and the court's determination of what is in Matthew's best interests." Id. at 4. {¶ 11} Recently, in Kemba Financial Credit Union v. Fish, Franklin App. No. 06AP-195, 2007-Ohio-43, at ¶ 20, we quoted from State v.Unger (1981), 67 Ohio St.2d 65, 67-68: *Page 5 "In evaluating a motion for a continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. * * *" {¶ 12} In its decision, the juvenile court applied the above-quoted language from Kemba Financial in overruling appellant's objection to the continuance. {¶ 13} We find that the juvenile court did not abuse its discretion in applying Kemba Financial and Unger in determining to overrule appellant's objection. The juvenile court fully considered appellant's failure of discovery argument, but, nevertheless, determined that Matthew's interests required that the continuance be granted. We therefore overrule appellant's first assignment of error. {¶ 14} We now address appellant's second assignment of error. According to appellant, the magistrate "reopened" the case when she granted the GAL's August 6, 2004 motion for leave to submit additional evidence. Appellant claims that the "reopening" constitutes "undue surprise," gave the appellee a "second bite of the apple," and violates the "principle of finality." Appellant also claims that the hearing of the additional evidence constitutes an "extreme waste of time and resources." Appellant further asserts that the seven months between the January 2004 hearing and the August 2004 motion is "`[p]er se' too long." (Appellant's brief, at 5-6.) We disagree with the import of appellant's claims and assertions regarding the granting of the GAL's motion. {¶ 15} Appellant cites to In re Sullivan, Butler App. No. CA2002-03-061, 2003-Ohio-195, and then endeavors to distinguish that case from the instant one in arguing that *Page 6 the juvenile court abused its discretion in overruling appellant's objection to the GAL's August 6, 2004 motion. {¶ 16} In Sullivan, as in this case, the appellant, Antoine Sullivan, appealed the juvenile court's granting of permanent custody. The juvenile court granted custody of Antoine's daughter, Aaliyah, to the Butler County Children's Services Board ("BCCSB"). The appellate court affirmed the juvenile court's decision. {¶ 17} In November 2000, the juvenile court heard BCCSB's motion for permanent custody of Aaliyah and two older children of Tina Sackenheim (Aaliyah's mother), with whom Antoine had resided for a period of time prior to and after Aaliyah's birth. Prior to the filing of the parties' closing arguments, BCCSB filed a "Motion to Reopen Permanent Custody Proceedings" based upon the discovery of new evidence. BCCSB submitted an affidavit signed by a BCCSB caseworker describing the new evidence. In the affidavit, the caseworker claimed that Antoine had another child, a son, a fact that Antoine had concealed from the court. The affidavit alleged that Antoine's son had previously made sexual abuse allegations against Antoine and Antoine's brother. The affidavit further alleged that Antoine's son had perpetrated sexual abuse and had recently been released to Antoine's care. The juvenile court granted BCCSB's motion, extending the hearing and allowing BCCSB to present additional testimony. {¶ 18} In his appeal to the Twelfth District Court of Appeals, Antoine assigned as error the juvenile court's granting of BCCSB's motion to reopen. In overruling Antoine's assignment of error, the appellate court explained: * * * Appellant argues that the juvenile court's re-opening of the permanent custody proceedings is akin to granting a new trial based on newly discovered evidence. Therefore, *Page 8 appellant argues that we should apply the standard set forth in Sheen v. Kubiac (1936), 131 Ohio St. 52, * * * and determine that the juvenile court erred in granting BCCSB's motion. Under Sheen, a court can grant a new trial only if (1) the new evidence will probably change the result of the trial; (2) the new evidence has been discovered since the trial; (3) the new evidence could not have been discovered by due diligence prior to the trial; (4) the new evidence is material; (5) the new evidence is not merely cumulative to former evidence; and (6) the new evidence does not merely impeach or contradict the former evidence. Id. We do not find that BCCSB's motion was akin to a motion for a new trial. BCCSB was not asking the court for a new hearing but for the opportunity to present additional, newly discovered evidence within the same hearing. Appellant does not direct us to any relevant law indicating that the juvenile court's actions were improper and we find nothing improper in the juvenile court's granting of BCCSB's motion. * * * Id. at ¶ 9-11. {¶ 19} Here, appellant argues that the Sullivan case did not present a lengthy delay as occurred in this case. Also, appellant points out that, unlike Sullivan, there was no allegation that appellant concealed a material fact. While there are indeed factual differences between theSullivan case and this case, those differences do not compel the conclusion that the juvenile court in this case abused its discretion in granting the GAL's August 6, 2004 motion. {¶ 20} We disagree with appellant's contention that the GAL's August 6, 2004 motion was akin to a motion for new trial. The GAL did not ask for a new hearing, but sought leave to present additional newly discovered evidence within the same hearing. {¶ 21} Moreover, in its decision, the juvenile court appropriately explains why it overruled appellant's objection to the magistrate's decision to allow the GAL to present *Page 8 additional evidence. The juvenile court observed that the GAL was concerned that the paternal grandmother, Edna Anderton, had suffered possibly two heart attacks in the summer 2004, and her ability to care for Matthew was called into question. The GAL was also concerned that Stephanie was evicted from her home on Bucher Street in late summer 2004, and was staying with friends on a temporary basis. Also, there was a concern about where Matthew was attending school. {¶ 22} The juvenile court, in its decision, determined that all of the GAL's concerns could have a significant impact on the evaluation of Matthew's best interest. Although noting that the delay between the close of the parties' cases and the GAL's submission of the report is "troubling," the juvenile court, nevertheless, held that the magistrate did not err in allowing the GAL to present additional evidence. The juvenile court further noted that the parents had an opportunity to cross-examine the GAL concerning his recommendation once his report was submitted. {¶ 23} The juvenile court stated that it was unable to see how Stephanie was unduly surprised because she received notice of the GAL's motion, and her attorney was able to present arguments against the GAL's motion at the September 23, 2004 magistrate's hearing. When the case was called back to court for the GAL's witnesses to testify on October 4, 2004, Stephanie's attorney was able to cross-examine the GAL's witnesses and was able to present her own witnesses as well. The juvenile court properly held that Stephanie was not denied due process of law or equal protection of the laws. {¶ 24} We find that the juvenile court properly overruled Stephanie's objection to the granting of the GAL's August 6, 2004 motion. Accordingly, appellant's second assignment of error is overruled. *Page 9 {¶ 25} We now address appellant's third assignment of error. In its decision, the juvenile court addressed the issue raised in this assignment of error. As the juvenile court notes, the transcript of the September 23, 2004 magistrate's hearing discloses the following statement of the magistrate: * * * We tried this case, took testimony some time back and we're in a position where we still needed a guardian ad litem report. For various reasons, some health problems and scheduling problems that had not come in. The guardian ad litem report has not been submitted and the GAL filed this motion prior to submitting any report. * * * (Sept. 23, 2004 Tr., at 2-3.) {¶ 26} The trial transcript further discloses that the magistrate stated: There was a guardian ad litem report due and closings due, and there was some issues that Mr. Silvestri had, some health issues that prevented the guardian ad litem report from coming in. (Jan. 5, 2004 Tr., at 271.) {¶ 27} After noting the above statements from the magistrate, the juvenile court held: Even if these statements can be construed to refer to ex parte grants of extensions, the setting of due dates is a procedural matter that does not involve the substantive issues of a case. As such it is appropriate for a Magistrate to address the possibility of an extension with the Guardian ex parte. Neither a due process nor an equal protection violation occurred. Stephanie's objection on this ground is overruled. Id. at 6. {¶ 28} According to appellant, the magistrate's recorded statements show that the magistrate had ex parte discussions with the GAL regarding the granting of extensions of time for the filing of the GAL report. Appellant's counsel asserts that he was never *Page 10 notified of those discussions. Appellant asserts that: "It is well-established that granting oral motions of one party outside the presence of as well as without notification to other parties by a judicial officer violates fundamental tenets of procedural due process." (Appellant's brief, at 8.) However, appellant does not cite to this court any case authority to support her proposition of law. {¶ 29} Canon 3(B) states: (7) 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 proceeding except: (a) Where circumstances require, ex parte communications for scheduling, administrative purposes, or emergencies that do not address substantive matters or issues on the merits are permitted if the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication. {¶ 30} Based on Cannon 3(B), we find that the juvenile court appropriately determined the matter and did not err in overruling appellant's objection. There is no evidence that any party obtained a procedural or tactical advantage as a result of any ex parte communication between the magistrate and the GAL. See McDermott v.Tweel, 151 Ohio App.3d 763, 2003-Ohio-885. {¶ 31} Accordingly, we overrule appellant's third assignment of error. {¶ 32} We now address appellant's fourth assignment of error. In its decision, the juvenile court addressed this issue in overruling appellant's objections to the magistrate's decision. The transcript of the magistrate's October 8, 2004 interview of Matthew shows the following exchange: *Page 11 THE MAGISTRATE: Okay. If you had to choose if you wanted to live with your mommy at her house or your daddy at his house most of the time, which one would you pick? MATTHEW: My dad and my mom. Both of them. THE MAGISTRATE: You would like to stay with both of them? If you had to pick one to go to school to live at their house, just to go to school, which would you pick? MATTHEW: My dad, because I have to. THE MAGISTRATE: Why? MATTHEW: Because if I quit school there, they'll kick my dad's butt. THE MAGISTRATE: They would kick you dad's butt if you quit school? MATTHEW: Yeah. (Child Interview Tr., at 15.) {¶ 33} Noting the above-quoted portion of the transcript, the juvenile court, in its decision, stated that "[considering the statements in context, this court does not find that the statements show Jim influenced Matthew's wishes." Id. at 9. {¶ 34} Here, appellant disagrees with the juvenile court, arguing: * * * How could a child of that age utter such a statement without being influenced by an adult[?] The obvious conclusion is that Appellee had to tell his child that for the very purpose of influencing his wishes. The Trial Court should have taken Appellee's conduct into consideration in its decision. (Appellant's brief, at 9.) {¶ 35} That the above-quoted portion of Matthew's interview can be read to show that Jim influenced Matthew's statement to the magistrate does not compel the *Page 12 conclusion that the magistrate or the juvenile court failed to appreciate or consider that Matthew's statement may have been the result of his father's influence. {¶ 36} In the magistrate's decision, the magistrate describes the interview as follows: The court conducted an in-camera interview of Matthew at the written request of Mother. After questioning of Matthew, the Court determined that Matthew is of sufficient reasoning ability to express some of his wishes and concerns to the Court, even though Matthew's reasoning ability is extremely basic at this time. It was made very clear to the Court by the minor child that he loves both his parents and desires to spend as much times as possible with both Mother and Father. {¶ 37} There is no evidence in the record that the magistrate or the juvenile court was unduly persuaded to rule in Jim's favor on his custody motion because of Matthew's statement that he would pick his dad's house as the place to live to go to school. The magistrate's decision indicates that, from the interview, the magistrate concluded that Matthew loves both of his parents and desires to spend as much time as possible with both. {¶ 38} Clearly, the juvenile court did not err in overruling appellant's objection regarding the alleged tainting of Matthew's interview. Accordingly, we overrule appellant's fourth assignment of error. {¶ 39} We now address appellant's fifth assignment of error. R.C.3109.04(F)(1) provides a nonexclusive listing of relevant factors that the juvenile court shall consider in determining the best interest of a child for purposes of allocating parental rights and responsibilities for the care of the child. *Page 13 {¶ 40} In her decision, the magistrate addressed each of the statutory factors before concluding that it was in Matthew's best interest to designate Jim as the residential parent and legal custodian. {¶ 41} In its decision, the juvenile court commented that the magistrate was "extremely thorough in her findings regarding all of the applicable factors of R.C. 3109.04(F)(1)." Id. at 10. The juvenile court adopted the magistrate's findings of fact and conclusions of law concerning Matthew's best interest. The juvenile court also held that the magistrate's decision was not against the manifest weight of the evidence, is supported by sufficient evidence, and is not contrary to Matthew's best interest. The juvenile court then overruled appellant's objection to the findings. {¶ 42} Here, under her fifth assignment of error, appellant objects to the magistrate's determination of many of the R.C. 3109.04(F)(1) factors as adopted by the juvenile court. {¶ 43} R.C. 3109.04(F)(1)(c) provides that the court shall consider as a relevant factor "[t]he child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest." Under this factor, the magistrate made several determinations. Matthew has a half-sister named Brandy who was eight years old at the time of the magistrate's decision. When at his mother's, Matthew spent significant time with Brandy. However, since late August 2004, Brandy has been permitted to live with her natural father by agreement of Brandy's father and Stephanie. The magistrate notes that Stephanie asserted that this arrangement was only for the "current" school year and was borne of necessity and will terminate sooner if Brandy's grades are unsatisfactory to Stephanie. The magistrate determined that: *Page 14 * * * Stephanie was required to allow Brandy to live at her father's at the end of August 2004 because she was evicted from her residence at * * * Bucher St., Columbus, Ohio and did not have appropriate arrangements to permit Brandy to relocate with Stephanie at maternal grandmother's home. Mother does not have alternative housing with room for Brandy and the likelihood that Brandy will be able to return to Mother's care anytime soon seems quite slim. While Stephanie and Jim believe Matthew's relationship with Brandy is positive, with Brandy gone from Mother's home, that relationship is no longer being fostered by Mother. {¶ 44} Here, appellant challenges the magistrate's findings regarding Matthew's relationship with Brandy by pointing to appellant's testimony in the transcripts. Appellant testified that Matthew is well bonded to Brandy and that appellant has been the primary caretaker of Brandy since birth. Appellant reemphasizes that if Brandy does not do well in the school where her father lives, appellant will bring her back to her home. Also, Stephanie's mother, Patricia, testified that Brandy is always at her home when Matthew is present. {¶ 45} Appellant has not shown that the magistrate's factual determinations about Matthew's relationship with Brandy are an abuse of discretion. The magistrate weighed the evidence before her, as did the juvenile court that adopted the magistrate's decision. While appellant is entitled to her view of the evidence, the juvenile court was not required to adopt appellant's view. {¶ 46} The magistrate made further findings regarding Matthew's relationship with his paternal grandmother, Edna Anderton, at whose home Matthew and his father "currently" live in Alexandria, Ohio in Licking County. The magistrate found that Ms. Anderton was initially capable of caring for Matthew full time when Jim was working, despite her advanced age. However, at the end of the trial, Ms. Anderton had suffered *Page 15 two heart attacks within a two-month period and was hospitalized and placed in a nursing home after the first. The magistrate found: * * * It is undisputed that Ms. Anderton is incapable of providing care for Matthew as she used to. Father, Mother, and the GAL all believe that it is not in Matthew's best interests for Ms. Anderton to provide care for Matthew if she is caring for him alone. Matthew does have a significant relationship with his paternal grandmother, however, and Father is willing to foster that relationship without having Ms. Anderton as a child care provider at anytime. {¶ 47} Appellant challenges the magistrate's determination that Ms. Anderton was initially capable of caring for Matthew before her heart attacks. Appellant points to evidence that Ms. Anderton uses a cane to walk, has hearing, vision, and other problems. {¶ 48} Again, it is the magistrate and juvenile court who had the responsibility of weighing the evidence. There was no abuse of discretion in that regard. Moreover, given that the magistrate and the juvenile court determined that Ms. Anderton is no longer capable of caring for Matthew, the relevancy of Ms. Anderton's earlier health status is greatly diminished. {¶ 49} Appellant endeavors to further her argument regarding Ms. Anderton's health status by pointing out that it requires Jim to obtain a babysitter for Matthew while he is working. Appellant points out that Matthew has to be awakened early so that Jim can drop Matthew off at the babysitter, which appellant characterizes as a "stranger" to Matthew. Appellant asserts that she "does not have to work and therefore can directly care for and spend more quality time with Matthew." (Appellant's brief, at 13.) *Page 16 {¶ 50} The magistrate and the juvenile court adequately explained why it is in Matthew's best interest to reside with his father, even when it necessitates babysitting. Again, appellant simply invites this court to reweigh the evidence. {¶ 51} The magistrate further found that Stephanie had allowed Matthew to interact with a friend of Stephanie's named Jeff Crabtree who had served time in an Ohio prison "for taking his family hostage and shooting a handgun at Columbus police." While the magistrate found that Matthew has shown no ill effects from his contact with Mr. Crabtree, the magistrate found that Stephanie showed a lack of good judgment in allowing this contact. {¶ 52} According to appellant, there is no "hard" evidence that Mr. Crabtree was continuously residing with appellant. {¶ 53} Clearly, there is evidence in the record to support the determination that appellant's association with Mr. Crabtree created a situation that is not in Matthew's best interest. {¶ 54} Appellant also objects to the juvenile court's determination regarding the maternal grandmother, Patricia Hatfield, contending that those conclusions are not supported by sufficient, probative evidence and are against the weight of the evidence. {¶ 55} Regarding Matthew's relationship with his maternal grandmother, the magistrate noted that her testimony was "very scant." However, she did testify that Matthew "comes in and says: Hi," and "goes about his business." (Tr. Vol. III, at 408.) Maternal grandmother further testified that Matthew's activity at her residence was largely playing outside alone. The magistrate found that "[u]nfortunately, evidence about the residence showed several rusty items of metal lying in the open, along with cars and car *Page 17 parts." The magistrate concluded that this shows a lack of concern of maternal grandmother for Matthew's safety. {¶ 56} We find that the magistrate's findings regarding the maternal grandmother are supported by the record and are not against the manifest weight of the evidence. {¶ 57} R.C. 3109.04(F)(1)(d) provides that the juvenile court consider as a relevant factor "[t]he child's adjustment to the child's home, school, and community." Under this factor, the magistrate made several determinations. {¶ 58} As previously noted, Jim resides in Alexandria, Ohio with his mother and Matthew. The magistrate found that the home is adequate, although there is a wood burning stove in an open area of the living room. Matthew has burned himself on at least one occasion. Jim has told Matthew not to go near it again and Matthew has stayed away from the stove since. Matthew has his own bedroom and there is nothing inappropriate about the residence. The house is located on a lot with a very large backyard in which to play. The home is clean. {¶ 59} The magistrate expressed a "concern" that Jim took Matthew hunting when he was five years old. However, there is no evidence that Matthew ever had access to a firearm outside of this incident. Jim keeps all firearms in the home locked away from Matthew. {¶ 60} Appellant objects to what appellant calls the "minimal consideration" of the hunting event and Matthew's receiving a burn from the wood burning stove. Clearly, however, these incidents were considered and carefully weighed by the magistrate and the juvenile court. We disagree with appellant's characterization of "minimal consideration." Neither the magistrate nor the juvenile court were required to give those *Page 18 incidents the weight that appellant argues should be the case. We find no abuse of discretion. {¶ 61} In her decision, the magistrate found that Stephanie's first residence at Bucher Street was extremely cluttered. The various rooms were really different areas without demarcation as to where one ended and another began, except for a kitchen area. Stephanie was evicted from her residence on Bucher Street by her brother in July 2004 for being in default of rent for about four months over two years of tenancy. Her brother rented the home to Stephanie at below market price as a courtesy. Stephanie's brother allowed her to fall in arrears several times without taking action. Even after her brother obtained the eviction writ, he still gave Stephanie additional time to stay and then he had to remove what appeared to be an inordinate amount of personal belongings. The landlord's examination after set-out revealed animal excrement, cockroaches and flea infestation. The magistrate concluded that because Stephanie has a poor record as a tenant, it will be difficult for her to find a suitable place to rent in the near future. Also, because she has no source of income outside of child support and handouts from friends and relatives, and she has taken no steps to secure employment, the magistrate concluded that Stephanie is without the financial means to rent another home. {¶ 62} The magistrate found that Stephanie currently resides at her parents' home on Curtis Avenue, in Columbus, Ohio. The front door opens directly into the area that was called "Stephanie's bedroom." The set-up of this room partially obstructed the pathway into the rest of the home. Additional evidence shows that there were several small clouds of flying insects. There were other such clouds visible throughout the room and walking area into the bathroom. Also, the kitchen area was unsanitary and there *Page 19 were items all over the place, including the floor. There were more insects all about the kitchen area. Matthew's bedroom consisted of an open area with a small bed covered with more personal items and clothing. Stephanie testified the room was in the process of being made ready for Matthew, but Matthew had already made several visits to the residence. The magistrate concluded: Clearly, Mother had not yet created an environment appropriate to raise Matthew at her Mother's residence." {¶ 63} Here, appellant acknowledges that she had a "temporary setback" regarding her living arrangements at Bucher Street. Nevertheless, appellant claims that she is not doing anything different than appellee by living with her mother. Appellant points to her mother's testimony and her own that Patricia's home, school, and neighborhood are appropriate for Matthew. {¶ 64} Appellant objects to the magistrate's conclusion that she has no source of income outside of child support and has taken no steps to secure employment. Appellant also objects to the magistrate's consideration of Stephanie's failure to acquire a driver's license. According to appellant, she is no different than any other "housewife who has children." (Appellant's brief, at 16.) However, appellant's assertion is simply not at all supported by the record. {¶ 65} Again, it was the duty of the magistrate and the juvenile court to weigh the evidence. Clearly, there was no abuse of discretion in that regard. {¶ 66} R.C. 3109.04(F)(1)(f) provides that the juvenile court consider as a relevant factor "[t]he parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights." {¶ 67} For this factor, the magistrate's decision states: *Page 20 Mother presented evidence that in late August 2004, Jim failed and refused to return Matthew to Stephanie and that he enrolled Matthew is school in Alexandria, Ohio, all in contravention of the court-ordered parenting schedule. Specifically, Stephanie needed Jim to care for Matthew beyond the scope of the temporary orders issued by the Court in 2001. That order provided for shared custody with week-on, week-off parenting times schedules, and neither parent was specifically designated as Matthew's residential parent for school placement purposes. Stephanie needed Jim's help with Matthew because her eviction caused [her] to have to live with friends until she got settled into her mother's home. The period of time within which Stephanie needed Jim's help with Matthew carried over into the beginning of school and so Jim enrolled Matthew in Alexandria. Indeed, the court order gave both Stephanie and Jim "shared custody" which means Matthew could attend school at either parents' residence. Coupling all that with the apparent same situation that Stephanie had with Brandy, and the fact that Brandy was also placed with and remains with her father, James Anderton did not improperly dishonor the parenting time schedule. Further, the court order provided that each party was to do one-half of the driving for Matthew's parenting time. Stephanie did not travel to pick Matthew up during the time Matthew stayed with Father because she had no driver's license. Father did the majority of the driving required for parents to share custody, showing he was willing to do what was necessary to follow the Court's orders. No evidence exists that mother ever denied Father his court ordered parenting time. {¶ 68} Here, appellant challenges the magistrate's conclusion that Jim did not properly dishonor the parenting time schedule. Appellant points out that Jim never obtained court permission to enroll Matthew in school which had the effect of modifying the parenting time established in 2001 and denied appellant the benefit of the joint custody arrangement that preceded Matthew's enrollment in school. {¶ 69} We find that the magistrate's decision adequately explains the circumstances that resulted in Matthew's enrollment at a school in Alexandria, Ohio. *Page 21 Those circumstances were largely the result of Stephanie's own circumstances resulting from her eviction. Neither the magistrate nor the juvenile court abused its discretion in consideration of this factor. {¶ 70} Accordingly, we overrule appellant's fifth assignment of error. {¶ 71} We now address appellant's sixth assignment of error. In its decision and entry, the juvenile court addressed the issue that appellant raises in her sixth assignment of error. The juvenile court stated: Section 3109.042 establishes an unmarried mother as the sole residential parent and legal custodian until an order of the court designates some other person the residential parent and legal custodian. R.C. 3109.042. However, the section also provides when the court considers which unmarried parent to designate the residential parent and legal custodian, the court "shall treat the mother and father as standing upon an equality." R.C. 3109.042. It is well-established that the court must apply the best interest test when allocating parental rights and responsibilities between two unmarried parents. In re Byrd (1981), 66 Ohio St.2d 334, 338 * * *; Anthony v. Wolfram (Sept. 29, 1999), 9th Dist. No. 98CA007129. Therefore, the Magistrate did not err in denying Stephanie's oral motion to dismiss. Jim did not have to prove his fitness as a suitable parent before the child's best interest could be determined. Stephanie's objection on this ground is overruled. Id. at 11. {¶ 72} Appellant offers this court no authority other than that cited by the juvenile court. Appellant then declares that "[a]ppellee affirmatively established that he was an unfit parent." (Appellant's brief, at 19.) {¶ 73} Appellant's position lacks merit. The juvenile court appropriately deter-mined the applicable law and applied that law in denying appellant's motion to dismiss. *Page 22 Also, appellant is incorrect in asserting that appellee affirmatively established that he was an unfit parent. Accordingly, we overrule appellant's sixth assignment of error. {¶ 74} Having overruled each of appellant's assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. Judgment affirmed. BRYANT and BROWN, JJ., concur. BOWMAN, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution *Page 1

2016-07-06 06:42:09.157651+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, Corey Wheeler, appeals from the judgment of the Summit County Court of Common Pleas, Juvenile Division. We affirm. I. On March 24, 2000, a complaint was filed, alleging that Mr. Wheeler was delinquent for committing acts which would have constituted two counts of rape, in violation of R.C. 2907.02(A)(1)(b), if he had been an adult at the time of commission. The charge alleged that Mr. Wheeler, born July 20, 1986, committed the offenses in June of 1999 against B.H. and A.R., two minor children. A hearing was held before a magistrate on September 18, 2000. At the hearing, B.H., who was born on April 16, 1994, was found competent to testify. However, he became so upset during direct examination that he was excused from testifying by the magistrate. A.R., born on September 17, 1995, did not testify. R.H., the mother of B.H. and A.R., testified that Mr. Wheeler was a neighbor throughout 1999 and that he had played with her sons on several occasions prior to the incident. She stated that Mr. Wheeler had only played inside her house one time, the day her sons invited him over to see their new playroom in June of 1999. R.H. testified that, in December of 1999, both B.H. and A.R. approached her regarding a game Mr. Wheeler had played with them; they referred to this game as "the wiggle." Upon talking with her sons, R.H. reported the incident to the police and the children were taken to the Children At Risk Evaluation ("CARE") Center at Children's Hospital Medical Center of Akron ("Children's Hospital"). Detective Shannon Davis of the Barberton Police Department testified that she investigated a report which alleged that Mr. Wheeler had sexually assaulted B.H. and A.R. She stated that, in furtherance of her investigation, she scheduled an interview for the children at the CARE Center at the Children's Hospital. Detective Davis testified that she watched the children's interviews via a television set. She also testified that she interviewed Mr. Wheeler and his mother and later filed charges against Mr. Wheeler on two counts of rape. Elizabeth Morstatter, a licensed social worker at the CARE Center, testified that she routinely meets with children and parents when there is a concern that a child has been physically or sexually abused. Ms. Morstatter stated that, once a child is interviewed, she presents the information she has gathered to a physician in order to facilitate the child's medical evaluation. She also stated that the purpose of the interviews held with B.H. and A.R. was to facilitate their medical evaluations. When asked what she talked about with B.H., Ms. Morstatter testified that B.H. was upset about an incident that had occurred when Mr. Wheeler had been upstairs in his playroom. Ms. Morstatter elaborated on the contents of the conversation, testifying as to B.H.'s discussion of the incident and description of the so-called wiggle game. Prior to the close of the hearing, Mr. Wheeler testified that he was not guilty of the charges before him. He admitted that he had gone upstairs once to see the new playroom but denied that he had ever touched B.H. or A.R. in a sexual manner. On October 4, 2000, the magistrate found Mr. Wheeler to be a delinquent child pursuant to the rape charge relating to B.H. The magistrate found that the state had not met its burden on the second rape charge and dismissed the charge relating to A.R. Mr. Wheeler filed objections to the magistrate's decision. On January 11, 2001, the trial court overruled the objections and adopted the decision of the magistrate. This appeal followed. II. Mr. Wheeler asserts four assignments of error. We will discuss each in due course, consolidating the first and third assignments of error to facilitate review. A. First Assignment of Error The lower court erred in permitting the social worker to testify to the out-of-court statements attributed to B.H. and in admitting the interview notes and records of the social worker into evidence under Evid.R. 803(4). Third Assignment of Error The magistrate erred by failing to conduct a voir dire examination of the facts and circumstances surrounding the out-of-court statements of B.H. that were admitted under Evid.R. 803(4). In the first assignment of error, Mr. Wheeler asserts that the trial court erred when it admitted into evidence the social worker's testimony of statements made by B.H., along with the accompanying interview notes and records from the hospital. Mr. Wheeler asserts that the testimony, notes, and records were inadmissible hearsay that should have been excluded. In the third assignment of error, Mr. Wheeler contends that there was insufficient evidence to indicate that B.H.'s statements to the social worker were made for the purpose of medical diagnosis or treatment. Consequently, Mr. Wheeler avers that the trial court should have conducted a voir dire examination of the facts and circumstances surrounding the making of the statements. Both assignments of error lack merit. As a general rule, preliminary questions concerning the admissibility of evidence are determinations to be made by the trial court. Evid.R. 104(A). Significantly, "[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court." State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus. Unless there has been an abuse of discretion, an appellate court should not interfere in the determination made by the trial court. State v. Hymore (1967),9 Ohio St.2d 122, 128. 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. "`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). Generally, hearsay is not admissible evidence. Evid.R. 802. Evid.R. 803(4) provides an exception to the exclusion of hearsay statements which applies even where the declarant is available as a witness: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: * * * Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Evid.R. 803(4) does not require that the individual diagnosing or treating the declarant be a physician in order for the hearsay exception to apply: "Indeed, statements made to a social worker are admissible pursuant to Rule 803(4) provided the surrounding circumstances are consistent with medical diagnosis or treatment." State v. Grooms (Aug. 19, 1998), Summit App. No. 18558, unreported, at 4. Additionally, "Rule 803(4) has been interpreted as including diagnosis or treatment related not only to physical injuries, but also to psychological injuries." Id. at 5. In addressing the application of Evid.R. 803(4) to statements made by young children, the Ohio Supreme Court held that the "trial court should consider the circumstances surrounding the making of the hearsay statement." State v. Dever (1992), 64 Ohio St.3d 401, 410. The court referred to the examination process and explained that any factor which could affect the reliability of the child's statement, including a cross-examination of the witness whose testimony brings in the child's hearsay statement, could be considered. Id. The court noted that the "inquiry will vary, depending on the facts of each case." Id. Mr. Wheeler has argued that the record does not support the determination that the statements by B.H. were made to facilitate a medical evaluation; rather, he has asserted that the referral to the Children's Hospital was made by the police department and the interview was conducted solely to further the police investigation. Additionally, he argues, in essence, that a voir dire examination of the circumstances surrounding the statements was necessary because there was insufficient evidence to indicate that B.H.'s statements to the social worker were made for the purpose of medical diagnosis or treatment. The evidence before this court indicates that R.H. filed a complaint with the police after her sons approached her to discuss the incident whereupon the police referred the family to the CARE Center at the Children's Hospital. Once the children were at the hospital, the police were not involved in the medical evaluations and merely watched the interviews via a television set, not influencing the conversation which occurred between Ms. Morstatter and B.H. Ms. Morstatter, the social worker, stated that it is her primary duty to interview children who may have been physically or sexually abused and present the information gathered to a physician in order to facilitate a child's medical evaluation. She testified that her purpose in interviewing B.H. and A.R. was to facilitate their medical evaluations. Based on the foregoing, we cannot conclude that the trial court abused its discretion in admitting the social worker's testimony pursuant to Evid.R. 803(4). The trial court considered the circumstances surrounding the making of the hearsay statement and made a determination that the statements made by B.H. to Ms. Morstatter were for the purpose of medical diagnosis or treatment. See Dever, 64 Ohio St.3d at 410. As the inquiry into the reliability of a child's statement will vary and be dependant upon the facts of any particular case, we cannot say that it was error for the trial court to determine that there was sufficient reliability in the statements to admit them into evidence without conducting further examination. See id. Accordingly, Mr. Wheeler's first and third assignments of error are overruled. B. Second Assignment of Error Appellant was materially prejudiced and his right of confrontation was violated by the admission of the social worker's testimony and accompanying interview notes and records and the trial court's excusal of B.H. from the Adjudication Hearing. In the second assignment of error, Mr. Wheeler asserts that he was materially prejudiced and denied his due process right of confrontation, as guaranteed by the Sixth Amendment to the United States Constitution, when the trial court admitted into evidence Ms. Morstatter's testimony, interview notes, and records, as the statements made to her by B.H. do not comply with Evid.R. 803(4). We disagree. A defendant's right of confrontation is protected by theSixth Amendment to the United States Constitution and provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him[.]" The Confrontation Clause is made applicable to the states through theFourteenth Amendment. Pointer v. Texas (1965), 380 U.S. 400, 403, 13 L.Ed.2d 923,926. In considering the admission of a juvenile's statements, the Ohio Supreme Court has held that "[t]he admission into evidence of a hearsay statement pursuant to a firmly rooted hearsay exception does not violate a defendant's right of confrontation." Dever, 64 Ohio St.3d at 418-19 (holding that, as the hearsay exception in Evid.R. 803(4) was firmly rooted, the statements made by a juvenile sex offense victim during treatment could be admitted without denying the defendant his right to confrontation). Mr. Wheeler asserts that his Sixth Amendment right to confrontation has been infringed upon. Significantly, Mr. Wheeler avers that, as B.H.'s statements do not satisfy the requirements of Evid.R. 803(4), there is insufficient indicia of reliability in such statements to admit them into evidence. Mr. Wheeler asserts that the statements do not satisfy Evid.R. 803(4) because they were not made for the purpose of medical treatment or diagnosis, but rather to further police investigation. This court held in the first and third assignments of error that the trial court did not abuse its discretion in making the determination that the statements by B.H. to Ms. Morstatter were made for the purposes of medical diagnosis or treatment and not for the purposes of furthering police investigation. Consequently, we held that it was not error to admit the social worker's testimony pursuant to Evid.R. 803(4). Accordingly, as the testimony was admitted pursuant to a firmly rooted hearsay exception, we find that Mr. Wheeler's assigned error as to his right to confrontation is without merit. Mr. Wheeler's second assignment of error is overruled. C. Fourth Assignment of Error Any failure of Appellant to properly object and support his objections constitutes ineffective assistance of counsel or plain error. In his fourth assignment of error, Mr. Wheeler asserts that, should he have failed to properly object or support his objections to the introduction of the social worker's testimony, notes, and records, any such failure was due to the ineffective assistance of counsel, or, in the alternative, constituted plain error. A properly licensed attorney in Ohio is presumed competent. State v.Smith (1985), 17 Ohio St.3d 98, 100. The burden of proving the ineffectiveness of counsel, therefore, is on the defendant. Id. A defendant is denied effective assistance of counsel when his attorney's performance falls below an objective standard of reasonable representation, and the defendant is prejudiced as a result. State v.Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. Debatable trial tactics do not constitute ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 49. Moreover, because a strong presumption exists that counsel's conduct falls within the wide range of reasonable professional assistance, in order 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." Bradley, 42 Ohio St.3d at paragraph three of the syllabus. Additionally, in criminal cases, plain error is governed by Crim.R. 52(B), which states that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." However, notice of plain error under Crim.R. 52(B) is to be taken with extreme caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long (1978),53 Ohio St.2d 91, paragraph three of the syllabus. In the present case, this court reviewed Mr. Wheeler's assignments of error as if he had properly raised and supported his objections to the introduction of the social worker's testimony, notes, and records. Reviewing these assigned errors, this court found no error in the decision of the trial court. Accordingly, Mr. Wheeler has failed to establish that his counsel's performance fell "below an objective standard of reasonable representation[.]" Bradley, 42 Ohio St. 3d at paragraph two of the syllabus. Furthermore, Mr. Wheeler has not demonstrated prejudice, as he has failed to prove by "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. Additionally, in view of this court's determination to address Mr. Wheeler's assignments of error as if he had properly raised and supported his objections at trial, Mr. Wheeler's plain error argument also must fail. Accordingly, Mr. Wheeler's fourth assignment of error is overruled. III. Mr. Wheeler's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of 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., CARR, J. CONCUR.

2016-07-06 06:42:08.233149+00

McManamon

Plaintiff, Georgetown Arms Condominium Unit Owners' Association (the "Association"), appeals from a judgment on its complaint for injunctive relief by the court of common pleas. In its sole assignment of error, the Association contends that the equitable relief granted by the court was an abuse of discretion, inappropriate, and inadequate. The eighty-four condominiums which are governed by the Association are located in Parma Heights, Ohio. The Association operates, manages, and maintains these units pursuant to R.C. Chapter 5311. Defendant-appellee, William Super, owns Unit No. 316. The record demonstrates that Super and former tenants of Unit 316 experienced "tremendous problems with cold air" and "things freez[ing] up in the apartment." In 1980, after his first full winter there, Super brought the problem to the attention of the Association's Board of Managers. The Association "listened, and that was it." Four years later, Super removed *Page 133 four single-pane windows from his unit, and, in their place, installed two sliding Thermopane glass doors. According to Super, the cost of Thermopane windows of comparable size was prohibitive when compared to that of the Thermopane sliders, which Super decided "had exactly the same appearance" as the windows everyone else had. Super failed to obtain written approval from the Association for this structural modification as required by the Georgetown Arms condominium declaration. The Association sought an injunction requiring Super to remove the Thermopane doors and restore the original windows. The trial court ordered Super to install a white anodized horizontal bar on each door, to create conformity with all other window units on the premises. R.C. 5311.19 requires condominium unit owners to comply with all restrictions set forth in the declaration of condominium, bylaws, and other condominium documents. This same section authorizes a condominium association to bring an action for injunctive relief against a unit owner for non-compliance. The Association has an interest in maintaining the integrity and uniformity of its common and limited common property. Accordingly, various provisions throughout the Association's declaration and bylaws, enacted pursuant to R.C. Chapter 5311, mandate uniformity, and specifically provide that unit owners may not alter, add, construct or remove anything from the common areas and facilities, except upon the prior written consent of the Association. The declaration defines doors and windows in the perimeter walls of a unit as part of the common areas. It is undisputed that Super did not obtain prior written consent from the Association before installing the sliding glass doors, and that he made this alteration with full knowledge that he lacked permission to do so. The Association contends that because Super failed to follow the rules, regulations, covenants, and restrictions, the trial court erred and abused its discretion in not ordering the installation of conforming windows in the Super unit. It posits that the court's ruling defeats the purpose of the declaration to ensure both uniformity and integrity of the common scheme. We agree. We hold that the trial court erred in recognizing that Super violated the terms of the condominium declaration, and yet permitting him to maintain his unauthorized structural change. Super raises issues of selective enforcement, lack of reasonable guidelines for change, and passive disregard of enforcement in this case. However, he readily admits that he was aware he needed written permission for structural change and that he took no steps to obtain it. The court's finding in this regard is fully supported by the record. The issue in focus is therefore limited to the equitable remedy contained in the court's order permitting Super to install the anodized strip to simulate windows. We hold that the trial court essentially obviated the clear meaning and purpose of the rules, regulations, covenants and restrictions with which the court found Super had not conformed. We note that Super chose to install unauthorized doors instead of conforming windows because doors were a cheaper means by which to rectify his cold-air problems. A unit owner should not be permitted to act in derogation of a condominium declaration whenever he or she may have a legitimate personal interest to advance in so doing. Condominium declarations established pursuant to Ohio's Condominium Act *Page 134 must be strictly construed, since the condominium concept depends upon reasonable use and occupancy rules and restrictions. SeeJuno by the Sea North Condominium Assn. v. Manfredonia (Fla.App. 1980), 397 So.2d 297, rehearing granted (1981), 397 So.2d 301. As one court has noted: "* * * Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be." Sterling Village Condominium, Inc. v.Breitenbach (Fla.App. 1971), 251 So.2d 685, 688. See, also,Schmeck v. Sea Oats Condominium Assn., Inc. (Fla.App. 1983),441 So.2d 1092; Fountains of Palm Beach Condominium, Inc. No. 5 v.Farkas (Fla.App. 1978), 355 So.2d 163. Super's installation of the doors clearly violated both the condominium declaration and Ohio condominium law. Accordingly, we are constrained to conclude that the trial court granted the Association inequitable relief and, to this extent, we find appellant's assignment of error well-taken. We hereby modify the trial court's order to mandate removal of the doors and the installation of windows which conform to the original scheme. The judgment of the trial court is modified and, as modified, affirmed. Judgment modified and, as modified, affirmed. PARRINO, C.J., and NAHRA, J., concur.

2016-07-06 06:42:08.526864+00

Wolff

James O. Hess entered a plea of no contest to the third count of a three-count indictment, which count charged a violation of R.C. 1548.19(C). In return for Hess's plea to the third count, the first two counts were dismissed. The trial court found Hess guilty and sentenced him to one to five years' imprisonment, fined him $300, and assessed him court costs. The sentence was suspended and Hess was placed on probation for three years. Hess appeals, advancing three "arguments": I "The trial court did error [sic] in finding the appellant-defendant guilty on his no-contest plea for said finding of guilt was against the manifest weight of the evidence under the facts stipulated to said court." II "In the alternative, the trial court did error [sic] in ruling the state did not have to prove said motor was stolen under O.R.C. Section 1548.19." III "In the alternative, the trial court did error [sic] in finding that the state need not prove intent as an element of the offense under O.R.C. Section 1548.19(C)." Prior to entering his plea of no contest, Hess and the state entered into the following stipulation: "The defendant will plea [sic] no contest to the third count of the indictment, with Counts One and Two being dismissed, with the specific understanding defendant reserves all his rights to appeal said no contest plea and court judgment against him both factually and on the legal issues decided by the court. "Said factual and legal issues reserved for appeal include but are not limited to the following: "1. Under the factual situation stipulated to below, did the defendant violate Ohio Revised Code, Section 1548.19(C)?; "2. Does Section 1548.19(C) require the state as an element of the offense to prove Defendant was `dealing in a stolen motor'?; "3. Does the state have to prove intent as an element of the offense defended in O.R.C., Section 1548.19(C)?" *Page 265 In addition, Hess and the state have entered into the following stipulation for purposes of appeal: "On or about April 17, 1990, James Dingus went to defendant's place of business, Jim's Marine in Urbana, Ohio, and, while there, agreed to purchase a 1959 Sea King boat motor for $300.00 plus $18.00 tax. "Mr. Dingus and defendant understood that at this time the defendant did not have a certificate of title to said motor for its previous owner was deceased and defendant was attempting to get a certificate of title. "Mr. Dingus and defendant further agreed if no certificate of title could be obtained, defendant would refund to Mr. Dingus his payment. "With said understanding, Mr. Dingus took possession of said motor on April 17, 1990. "On August 28, 1990, with defendant still being unable to obtain a certificate of title for said motor, defendant refunded to Mr. Dingus his $318.00. "There was no evidence said motor was stolen." This stipulation followed the trial court's determination of certain questions of law in response to the state's motion inlimine, wherein the state had sought a pretrial determination that R.C. 1548.19(C) imposes strict liability. The trial court stated, in part, in its journal entry: "Defendant objected to the state's motion in limine, and defendant set forth reasons for his objection. Defense believes that the degree of culpability required for a charge under Revised Code § 1548.19(C) is knowingly, and defendant further believes that the heading for the Revised Code Section which reads `dealing with stolen watercraft or motor' requires that an element of proof be that the motor is stolen. "After listening to the arguments from each side, the court sustained the motion of the state, and the court denied the requests of the defense. The court [finds] that the statute [does] not require the culpable mental state of knowledge. The court [finds] that strict liability applie[s] to this criminal situation. The court further [finds] that a stolen motor or watercraft [is] not an element of the offense under 1548.19(C) of the Ohio Revised Code." Hess first argues that he could not be convicted of violating R.C. 1548.19(C) in the absence of an allegation that the motor was stolen. This argument appears to be based on the title or description of R.C. 1548.19 as shown in Page's Ohio Revised Code: " § 1548.19 Dealing with stolen watercraft or motor. "No person shall: *Page 266 "(A) Procure or attempt to procure a certificate of title to a watercraft or outboard motor, or pass or attempt to pass a certificate of title or any assignment thereof to a watercraft or outboard motor, knowing or having reason to believe that such watercraft or outboard motor has been stolen; "(B) Sell or offer for sale in this state a watercraft or outboard motor on which the manufacturer's or assigned serial number has been destroyed, removed, covered, altered, or defaced with knowledge of such destruction, removal, covering, alteration, or defacement of such manufacturer's or assigned serial number; "(C) Sell or transfer a watercraft or outboard motor without delivering to the purchaser or transferee thereof a certificate of title, or a manufacturer's or importer's certificate thereto, assigned to such purchaser as provided for in such sections." (Emphasis added.) We agree with the trial court that the state need not allege or prove a motor is stolen to establish a violation of R.C.1548.19(C). The elements of an offense under R.C. 1548.19(C) are as stated within the four corners of that subsection of R.C.1548.19. As the state has observed, the title or description of R.C. 1548.19 as shown in Page's Ohio Revised has been supplied by a private publisher of the Ohio Revised Code, not the legislature, and another private publisher, Banks-Baldwin, describes the same section as "altered or false certificate; false information; sale without certificate." Hess also appears to argue that his arrangement with the purchaser, James Dingus, was a permissible conditional sale. He cites, inter alia, R.C. 1548.03 in support of this apparent argument, although he expressly disclaims the application of R.C. 1548.03 to the situation in this case. The then applicable version of R.C. 1548.03 stated: "No person, except as provided in section 1548.05 of the Revised Code, shall sell or otherwise dispose of a watercraft or outboard motor without delivering to the purchaser or transferee thereof a certificate of title with such assignment thereon as is necessary to show title in the purchaser; nor shall any person purchase or otherwise acquire a watercraft or outboard motor without obtaining a certificate of title for it in his name in accordance with Chapter 1548. of the Revised Code; however, a purchaser may take possession of and operate a watercraft or outboard motor on the waters in this state without a certificate of title for a period not exceeding twenty-one days if he has been issued and has in his possession a dealer's dated bill of sale, or in the case of a casual sale, a notarized bill of sale." (See 139 Ohio Laws, Part II, 4431, 4449-4450.) *Page 267 From our reading of R.C. 1548.19(C) and 1548.03, it appears that the arrangement between Hess and Dingus is one within the reach of R.C. 1548.19(C). The sale in this case was only conditional in that Hess agreed to refund Dingus's money if Hess could not furnish Dingus with a certificate of title. After a period of more than four months from the date Dingus paid for and took possession of the motor, Hess, still unable to furnish a certificate of title, refunded Dingus's money. R.C. 1548.03 does not authorize conditional sales of the sort that occurred in this case. What R.C. 1548.03 does permit is possession and operation of a motor by the purchaser, notwithstanding his lack of a certificate of title, for a twenty-one day period provided the purchaser has proper documentation of his purchase. (The current version of R.C. 1548.03 extends the period during which the purchaser may possess and operate the motor to thirty days. See 143 Ohio Laws, Part IV, 5519, 5561.) Hess's final argument is that the state was required to prove that he "knew or should have known that the motor transferred was a stolen motor." We have already determined that the state need not allege, or prove, a stolen motor to establish a violation of R.C.1548.19(C), and that determination is dispositive of Hess's final express argument to this court. In the event that Hess also seeks to attack the trial court's determination that R.C. 1548.19(C) imposes strict liability, we also address that issue. Hess contended in the trial court, and contends here, that the state was required to allege, and prove, that he acted knowingly. His specific contention, at least in this court, is that the state had to allege, and prove, he acted with knowledge that the motor was stolen. We have already addressed, and rejected, the argument that the state must allege, and prove, a stolen motor to establish a violation of R.C. 1548.19(C). On the more general issue of whether R.C. 1548.19(C) requires an allegation, and proof, that the defendant acted knowingly, we turn to R.C. 2901.21(B) which provides: "When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense." Subsections (A) and (B) of R.C. 1548.19, set out above, both specify a culpable mental state, i.e., knowledge; subsection (C) specifies no culpable mental state. This plainly indicates a legislative purpose to impose strict *Page 268 liability for the conduct described in R.C. 1548.19(C). SeeState v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299,428 N.E.2d 428. The judgment of the trial court is affirmed. Judgment affirmed. WILSON and BROGAN, JJ., concur.

2016-07-06 06:42:09.729019+00

Guernsey

Defendant insurance company appeals on questions of law from a judgment of the Common Pleas Court *Page 525 of Union County entered on a verdict directed on plaintiff's motion at the end of the defendant's evidence, assigning as error the action of the trial court in sustaining the motion. The action was for a declaratory judgment praying a declaration that defendant had contracted to insure plaintiff from loss by automobile casualty, that such contract was in force and effect on May 9, 1962, at the time and place of a collision involving plaintiff's car, and that the defendant company was liable under the provisions of its contract. In answer defendant admitted that Charles O. Shearer "is a duly authorized agent of this defendant for the purpose of soliciting and writing automobile insurance," and alleged, among other things not here material, "that on or about the 16th day of November, 1961, plaintiff offered to purchase a policy of automobile casualty insurance from defendant's agent, Charles O. Shearer and on said date Charles O. Shearer issued a temporary binder and forwarded the application for a policy in conformity to said binder to this defendant's home office in Columbus, Ohio." In answer to interrogatories attached to plaintiff's petition defendant stated that "no policy of automobile casualty insurance coverage was ever issued or written by Republic-Franklin Insurance Co. insuring an automobile of" plaintiff and stated that "a true copy of the binder is attached hereto and submitted." Attached is a printed document (admitted on trial as plaintiff's exhibit 3) titled "Insurance Application" with the usual information supplied by an insurance applicant typed thereon. At the place provided for the signature of the insured appears the signature of Charles O. Shearer and the date 11-16-61. The typed policy period, to wit, "Nov. 16, 1961 to May 16, 1962" has been altered in ink to read, "Nov. 16, 1961 to 12/11/61." In a column headed "Premiums" appear inked amounts pertaining to each of the various types of coverage, i. e., bodily injury liability, property damage liability, comprehensive and collision, which amounts are then totalled in ink to show a "Total Policy Premium" of $47.33. Written across the face of this entire document in large inked script, with an inked arrow pointing to the aforesaid total, are the words and figures, "Binder Charge 11-16-61 to 12-11-61." *Page 526 On trial, the court refused to admit any evidence as to notice by the defendant of termination of coverage or of refusal by the defendant of coverage by reason of alleged false representations of the plaintiff and stated in the record: "To clarify the court's position, I'll state for the record that in the court's opinion the only contract before this court is this alleged binder, which is marked as Plaintiff's Exhibit `3,' and that there is no provision in that agreement for cancellation of it during the six months period." Notwithstanding this rejection defendant company proffered all the testimony which it had to offer on such issues. Without consideration of the proffered testimony and considering only that testimony admitted into evidence by the trial court, Mr. Shearer's testimony showed, without dispute, that on October 28, 1961, he was the agent for the defendant and two other insurance companies in the business of writing automobile casualty insurance; that on that date plaintiff, Littell, came to his office for the purpose of obtaining insurance on his car and supplied Shearer with information as to his name, age, kind of car, etc., which information Shearer filled in on an American States Insurance Company application form signed by Littell and then sent to that company; that at that time he computed the six months' premium "on the basis of the classification in the record," and came up with his "own figures of $104.32," which amount he collected from Littell in two payments, one received on October 28th and the other on November 2, 1961; that on the former date he advised Littell that he had coverage starting as of noon; and that in time American States turned down the application and it was returned to Shearer. The following other pertinent testimony of Shearer was admitted into evidence and appears, as indicated, in the record: p. 13. "Q. Now, you then submitted as an agent and — representing Mr. Littell and also the Republic-Franklin Insurance Company, a binder policy or contract of insurance with Republic-Franklin Insurance Company, is that not correct? A. Yes." p. 42 "Q. Then what did you do? A. I, in turn, took the information off of the [American States] application and mailed it in to Republican-Franklin. *Page 527 "Q. And Mr. Littell at that time did not know that he had been turned down by American States when you made the application to Republic-Franklin? A. No. "Q. I'll hand you what's been marked Plaintiff's Exhibit `3.' * * * Will you tell the court whether or not that is what you refer to as the application for insurance that you sent to Republic-Franklin? A. That's right." p. 14 "Q. Well, this is your signature? A. Yeah. "Q. This is the application form and the binder form that you submitted to Republic-Franklin, is that correct? A. That's right. Un-huh. "Q. Now, would you tell the jury under No. 2 there what the dates that you typed in were? A. November 16th, '61. "Q. Until what date? A. May 16th, '62. "Q. Well, now, who marked this on here? A. That had to be the company office. "Q. This writing that is over the front of the policy with the exception of your signature on there was put in by the company office, is that not correct? A. That's right." p. 15 "Q. And so that on November 16th, 1961, you had written a binder policy for a period of six months with Republican-Franklin Insurance Company, had you not? "* * * "A. I wrote that application, that's right. "Q. And that was a binder? A. Which is a binder, right." The following pertinent testimony of Littell was admitted into evidence and appears, as indicated, in the record: p. 19 "Q. Tell the jury, Larry, in your own words what happened on October 28th when you saw Mr. Shearer. A. Well, I went in Mr. Shearer's office and inquired about purchasing insurance on my car. "* * * "Q. And tell us briefly what the conversation was as you remember it. We understand that you wouldn't remember every word, but what took place while you were there? A. Well, he said that he thought he could fix me up, and he filled out this binder policy, and he asked me some questions." p. 21 "Q. And where was it that you next saw him or about *Page 528 when? A. Well, about two weeks later I seen him in Kay's Restaurant one morning. "Q. And what did he — did you have any words with him at that time? A. Yes, sir. I was settin' there and he came over and informed me that he had sent in with this first company and they'd refused it, and he said that he would take care of it, that he was going to send it in with another company. "Q. Did he advise you about your coverage? A. Yes, sir, He said I was covered." p. 24 "Q. You never received any policy or any binder or anything in writing from Mr. Shearer other than the receipts, did you?" p. 25 "A. No, sir. "Q. Now, when you went in to Mr. Shearer on October 28th, 1961, you said that Mr. Shearer told you he thought he could fix you up with insurance, is that right? A. Yes sir. "Q. Now, why was there any question about whether or not he could fix you up with insurance at that time? A. I wouldn't know." The trial court's duty in the disposition of the plaintiff's motion for a directed verdict is succinctly stated in 4 Ohio Jurisprudence 2d 422, Appellate Review, Section 1085: "Under the modern rule which, since ats pronouncement, has been scrupulously followed by the Ohio courts, upon a motion to direct a verdict, if the trial court, after construing theevidence most strongly in favor of the person against whom themotion is directed, finds that upon any essential issue reasonable minds could come to but one conclusion upon the evidence submitted and that such conclusion is adverse to such party, it should direct a verdict against him, and not allow the jury to speculate upon the question; but if reasonable minds may reasonably reach different conclusions, or draw different inferences upon any question of fact, the motion should be denied and the case submitted to the jury." (Emphasis added.) The trial court sustained the motion on the basis of its view that when the agent, Shearer, received the premium which he had computed, advised the plaintiff that he was covered, and completed and sent in the application form (plaintiff's exhibit *Page 529 3), there was thereby created, as a matter of law, an irrevocable insurance contract for the period of six months originally set forth in such form, and that evidence of any contract for a lesser period or cancellation of the six months contract was irrelevant. Defendant insurer's answer acknowledges that Shearer was its agent "for the purpose of soliciting and writing automobile insurance," and the provisions of Section 3905.01, Revised Code, operate to bind defendant company for all of his acts "within his apparent authority." This agency, being admitted, is not enlarged, or lessened, by the provisions of Section 3929.27, Revised Code, bearing on the agency of an insurance solicitor. In the face of his express and his apparent authority we might have agreed with the trial court in its conclusion as to the length and irrevocability of the insurance contract, had Shearer informed the plaintiff when, by plaintiff's testimony, they met in Kay's Restaurant, that plaintiff was covered for a period of six months. The statement as to coverage made by Shearer on October 28, 1961, pertained to another of Shearer's principals, American States Insurance Company, as Littell knew when he signed an American States application form, and such statement could not have been binding upon defendant insurer. However, Littell's own testimony as to what transpired on October 28th, as well as thereafter at Kay's Restaurant, which on his motion for a directed verdict must be construed most strongly in favor of the defendant insurance company, shows that Shearer never advised Littell that he was covered by insurance for any specific period of time. It shows instead that Shearer stated that "he thought he could fix * * * [Littell] up" with insurance, that "he had sent in with this first company and they'd refused it," "that he was going to send it in with another company," that Littell never received "any binder or anything in writing from Mr. Shearer other than the receipts," and that when Shearer told him on October 28, 1961, that he "thought he could fix * * * [Littell] with insurance," "* * * [Littell] wouldn't know" why there was "any question about whether or not he [Shearer] could fix * * * [Littell] up *Page 530 with insurance at that time." The very fact that Littell was made aware at Kay's Restaurant that one company had refused his application and that Shearer "was going to send it in with another company," in futuro, tended to show that Littell's negotiations with Shearer for a six months insurance contract were conditioned upon acceptance of the contract by the home office of the insurer and that Shearer was not exercising any express, or apparent, authority to himself bind the insurer for a six months term, and, further, tended to show that any coverage which Shearer, as agent, contracted for on behalf of his principal was to be temporary and only while the application was being processed. In 44 Corpus Juris Secundum 497, Insurance, Section 49, it is said: "The term `binder' has a well-known significance in the parlance of insurance contracts, and a binder or a binding slip is merely a written memorandum of the most important terms of a preliminary contract of insurance intended to give temporary protection pending the investigation of the risk of insurer, or until the issuance of a formal policy; a contract of insurance in praesenti, temporary in its nature, intended to take the place of an ordinary policy until one can be issued; a short method of issuing a temporary policy for the convenience of all parties, to continue, unless sooner canceled, until the execution of a formal policy." In 44 Corpus Juris Secundum 957 et seq., Insurance, Section 230, it is said: (a) "The preliminary contract intended to protect the applicant pending investigation of the risk or until the policy can be properly issued is an important form of insurance contract." (d) "Preliminary contracts of insurance are necessarily of the most informal character; they may be oral, partly oral, or written, and are frequently evidenced by binders or other memoranda." (e) "* * * A contract of temporary present insurance is terminated by the issuance, delivery, and acceptance of a policy, and if the policy is not issued, delivered, and accepted, and the contract is not otherwise terminated, the contract continues *Page 531 until, and only until, the time fixed thereby for its termination, which is sometimes the expiration of a specified period of time, unless the course of conduct and dealings between the parties discloses an intention to have the insurance continue in effect notwithstanding the expiration date provided for in the binder. * * * Where no time is specified and theapplicant is simply told that he is `covered,' the temporaryinsurance commences at that instant, and continues for such alength of time as is reasonable for the issuance of the policy or the removal of some temporary impediment to a complete and formal contract of insurance. It has been held, however, that the applicant must be notified of a rejection so that he may have an opportunity to obtain insurance elsewhere." (Emphasis added.) From the undisputed evidence and particularly from the testimony of plaintiff, Littell, and construing the evidence most strongly in favor of the defendant insurance company, it is readily apparent, and it is the opinion of this court, that reasonable minds might reasonably reach different conclusions. The jury might reasonably have concluded that an oral and temporary binder, as alleged in defendant's answer, was effected by the agent's statement that the applicant was covered, which coverage was to continue by virtue of the binder only until the application was processed by the home office of the defendant insurer and, if approved, until a formal policy was issued. Consistently, the jury might also reasonably have concluded that plaintiff's exhibit 3 was, in its inception, merely what it purported on its face to be, an application for the issuance of a six months policy of insurance which was being submitted for approval by defendant company at its home office, and that same was "accepted" by defendant company only for a period of time which would permit the plaintiff to make application for insurance to another company. These, therefore, constituted questions of fact which could not be withdrawn from consideration by the jury, and the court committed error prejudicial to the defendant in so doing. Such being the case, the court committed further error in excluding from the consideration of the jury the conflicting evidence as to whether the plaintiff was notified of a rejection of his application *Page 532 so that he might have an opportunity to obtain insurance elsewhere. If such notice were given, as the agent Shearer claimed in his proffered testimony, then Shearer's failure to return the unearned premium to plaintiff prior to the time of the collision loss would not estop the defendant from denying liability as insurer. If the notice were not given then the defendant may have been estopped from denying liability without regard to the amount of the premium and without regard to its retention by Shearer. For the prejudicial error of the trial court in directing a verdict for the plaintiff on the evidence which it admitted and considered, the judgment of the trial court is reversed and vacated and the cause is remanded thereto for new trial and for further proceedings as provided by law. Judgment reversed and cause remanded. MIDDLETON and RUTHERFORD, JJ., concur. RUTHERFORD, J., of the Fifth Appellate District, sitting by designation in the Third Appellate District. *Page 533

2016-07-06 06:42:09.992758+00

Griffith

This is an appeal on questions of law from an order of the Common Pleas Court reversing a conviction of the defendant, appellee herein, in the Ravenna Municipal Court for a violation of Section 4511.31, Revised Code, and entering a final order of acquittal. The defendant was driving an automobile south on State Route No. 44 in Portage County and passed a semi-trailer traveling in the same direction, at a place in the road where there is an upgrade. He started his act of passing at a place where there was no yellow-line marking but, while in the act of passing, he drove to the left of the highway, which is a two lane highway, at a place where there was a yellow line, which line was to the right of the center line of the road; and, when he came upon the yellow line, he had not completed his act of passing and was along side the rear wheels of the tractor of the semi-trailer which he was passing, and it was necessary for him to travel to the left of the yellow line for a considerable distance before he completed his act of passing and returned to his right side of the road. *Page 488 A state highway patrolman, traveling in the opposite direction, observed the defendant in the act of passing, stopped him, and charged him with a violation of Section 4511.31, Revised Code. The yellow line was placed on the highway to mark an especially hazardous zone and, in accordance with the Manual of Uniform Traffic Control Devices for streets and highways prepared by the Department of Highways of the State of Ohio, it was clearly visible. The defendant admitted driving to the left of the center line. There was no evidence produced to show that the yellow line was not clearly visible, and it was not contended that the yellow line was not placed there in accordance with the law and with the standards set up by the department of highways. Upon trial in the Municipal Court, the defendant was found guilty. On appeal to the Court of Common Pleas, the conviction in the lower court was reversed, and a final order of acquittal was entered. The affidavit filed against the defendant reads, in part, as follows: "That on or about the 8th day of November, 1954, at a place on a state highway in said county, which is State Highway No. 44 in Ravenna Township, one Albert A. Shackleford, R. D. No. 2, Kent, Ohio, did then and there drive a certain motor vehicle, to wit: a 1951 Buick, D 93 B Ohio, to said driver's left of center of said highway and across a yellow line placed there pursuant to law for the purpose of designating such place as an especially hazardous zone in which to overtake and pass traffic, or to drive to the left of the center of said highway; that said act was contrary to the marking aforesaid, and in violation of Section 4511.31 Revised Code of Ohio and against the peace and dignity of the state of Ohio." Section 4511.31, Revised Code, reads as follows: "The department of highways may determine those portions of any state highway where overtaking and passing other traffic or driving to the left of the center or center line of the roadway would be especially hazardous, and may, by appropriate signs or markings on the highway, indicate the beginning and end of such zones. When such signs or markings are in *Page 489 place and clearly visible, every operator of a vehicle or trackless trolley shall obey the directions thereof, notwithstanding the distances set out in Section 4511.30 of the Revised code." Conformable to Sections 4511.09 and 4511.10, Revised Code, the department of highways has adopted a manual for traffic control devices for use upon the state highways, and that manual, in evidence in this case, at page 215, provides: "The yellow line, when in the driver's lane, i. e., to the right of the center line, is a barrier line which warns that crossing the yellow line to overtake and pass or for any reason [is] not only illegal but extremely hazardous. In some cases where overtaking and passing is prohibited in both directions, there will be a yellow line on each side of the normal center line. When the yellow line is in the opposite lane, that is to the left of the center line, overtaking and passing is permitted provided traffic conditions are such as to permit such maneuver to be completed in safety." The defendant at no time drove over the yellow line prohibited by the rules set forth in the manual, and the rules in the manual, having been adopted pursuant to legislative enactment, have the force and effect of a statute. Section 4511.31, Revised Code, says that the operator of a vehicle shall obey the directions of the markings on the roadway. The traffic rule designated as, "No Passing Zone Markings" (Page 215 of Manual), provides that, "a barrier line which warns that crossing the yellow line to overtake and pass * * * [is] not only illegal but extremely hazardous." The contention of the state is that when the defendant entered his left hand side of the highway at the point of the beginning of the yellow line he committed a misdemeanor no matter how or where he entered this portion of the highway. Had he approached and entered the highway at the east side thereof from a private drive with the intention of driving south, he would have been guilty of a misdemeanor under this reasoning, because he was driving on the highway to the left of the center line of the roadway which had been marked as especially hazardous. We do not believe this position is tenable. He was not at the right of the barrier line before entering the east side of *Page 490 the highway. The defendant did not pass any barrier line at any time, that is a barrier line to him. He found himself on his left hand side of the highway and on the left side of the barrier line when he was passing the truck, and he proceeded to extricate himself by driving on the wrong side of the highway until he could enter his rightful position on the highway. Had no yellow line been placed on the highway, would the defendant have been guilty of violating Section 4511.31, Revised Code, in the operation of his automobile as the evidence discloses? Would the fact that the highway department, in the interest of public safety, had placed a discernible yellow line there convert such conduct into a violation? The yellow line to this defendant was a warning, or at least a direction to him, to get back on his right side of the road as soon as he could in safety after passing the tractor-trailer. This he did. In approaching the north end of this yellow line, it was not a violation of any criminal statute for the defendant to enter the east half of the highway on which he had been traveling, nor was it a violation of the criminal code for him to continue thereon, under the circumstances attending this case, until he could safely pull to his right and back on his own right-hand side of the road. It is a well-settled general rule that a strict construction is to be accorded to penal statutes. It is not the prerogative of a court to fill in or interpolate into a statute that which the Legislature omits. We believe the judgment of the Court of Common Pleas is correct, and the same is hereby affirmed. Judgment affirmed. PHILLIPS, P. J., and NICHOLS, J., concur. *Page 491

2016-07-06 06:42:09.190459+00

OPINION Petitioner-appellant, James L. Schneider, appeals a decision of the Butler County Court of Common Pleas, Domestic Relations Division, denying his motion to have petitioner-appellee, Merry R. Schneider, pay him child support. We affirm. The parties were married on August 19, 1991. Two children were born as issue of the marriage: James Z., born March 6, 1992 and Sydney R., born March 18, 1997. On January 13, 1999, the parties' marriage was terminated by a decree of dissolution. As part of the decree of dissolution, the parties entered into a shared parenting plan ("SPP") for their two minor children that was adopted by the trial court. The SPP provided that "each party acknowledges that the other shall be deemed the residential parent when the children are in their [sic] possession[,]" and that "[f]or purposes of determining school district, the residence of the Father shall be the legal residence of the children." The SPP also provided that during the school year and the second half of the summer, Merry would have possession of the children on alternate weekends and each Tuesday evening after school until 8:00 p.m. Wednesday. This schedule would be reversed during the first half of the summer. A court schedule was used for the holidays and each party had the right to two weeks for vacations with the children. At that time, Merry earned $15,000 per year and James earned $40,000 per year. According to the child support worksheet submitted by the parties, Merry owed James child support of $123 per month per child.1 However, the parties determined that this amount was unjust or inappropriate and not in the best interest of their children. The parties therefore agreed that neither one would pay the other child support because of the disparity in incomes, agreed that they each would each pay day care expenses during his or her period of possession, and agreed to equally divide any uncovered medical expenses. The SPP awarded James the federal tax exemptions for the two children and ordered him to provide medical insurance coverage. In addition, Merry and James were responsible for the cost of clothing, school supplies, and other expenses not specifically set forth in the SPP when the children were in his or her possession. Thereafter, on November 30, 1999, James moved to modify the SPP to establish child support pursuant to the Ohio guidelines, asserting that the reason for deviation no longer existed since Merry then earned approximately $21,000 per year. James attached a child support worksheet indicating that he was the sole residential parent, casting Merry in the dual role of nonresidential parent and child support obligor. In calculating child support, James indicated that he had $4,000 in day care expenses per year and Merry had $600 in day care expenses per year. According to James' calculations, Merry owed child support to him of $214 per month per child. On January 13, 2000, while James' motion was still pending, Merry moved to modify the SPP to show that she paid dental insurance coverage for the children. In addition, Merry moved for additional time with the children, allocation of one child's federal tax exemption to her, and for an order that payment of any uncovered medical and dental bills would be made in proportion to the parties' incomes. A hearing on these matters was held before a magistrate on March 15, 2000. By decision filed March 17, 2000, the magistrate found that James earns $42,500 per year and pays medical insurance of $105 per month and day care expenses of $98 per week for the youngest child, while Merry earns $21,528 per year and pays $14 per month for dental insurance. Using the worksheet set forth in R.C. 3115.215(E) for shared parenting plans, the magistrate calculated James' support obligation as $6,202.75 per year and Merry's as $5,707.25 per year, absent any deviation. Before offsetting these obligations, the magistrate noted that James and Merry are both residential parents, with James having the children approximately sixty percent of the time and Merry having the children approximately forty percent of the time. As a result, the magistrate denied James' motion to have Merry pay him child support and modified the SPP to have James pay all the day care expenses since such expenses are factored into the child support calculation. The magistrate also denied Merry's motion for additional time with the children and for allocation of a federal tax exemption. However, the magistrate granted Merry's motion for her to continue paying the cost of dental insurance, and that the parties pay uncovered medical and dental expenses in proportion to their incomes, with James being responsible for sixty-six percent and Merry responsible for thirty-four percent. On March 23, 2000, James filed objections to two aspects of the magistrate's decision. James contended that the magistrate erred by: (1) offsetting the parties obligations for child support pursuant to the split custody guidelines; and (2) relieving Merry of her obligation to pay day care expenses since the issue was not before the court. Following a hearing on the objections, the trial court, in an April 25, 2000 entry, "affirmed" the magistrate's decision, and by a May 10, 2000 entry "adopted" the magistrate's decision. James appeals raising three assignments of error.2 Assignment of Error No. 1: THE TRIAL COURT ERRED TO OFFSET THE PARTIES' RESPECTIVE CHILD SUPPORT OBLIGATIONS. At the outset, we note that James asserts that his appeal is from the March 17, 2000 magistrate's decision that was later adopted by the trial court. The magistrate's decision by itself was not a final appealable order. See In re Guardianship of Dick (Nov. 15, 1999), Warren App. No. CA98-12-154, unreported, appeal not allowed, 88 Ohio St.3d 1444. Our review is limited to the trial court's adoption of a magistrate's decision under Civ.R. 53(E)(4) which, will not be disturbed on appeal absent an abuse of discretion. See Wade v. Wade (1996),113 Ohio App.3d 414, 419. A trial court has broad discretion to create and subsequently modify a child support order. Pauly v. Pauly (1997),80 Ohio St.3d 386, 390, citing Booth v. Booth (1989), 44 Ohio St.3d 142,144. For an abuse of discretion to be shown, the record must show "more than an error of law or judgment"; the record must establish "that the court's attitude was unreasonable, arbitrary or unconscionable."Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Further, James can raise on appeal only those challenges that he properly preserved pursuant to Civ.R. 53. Specifically, Civ.R. 53(E)(3)(b) provides that: [o]bjections shall be specific and state with particularity the grounds of objection. * * * Any objection to a finding of fact shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that fact or an affidavit of that evidence if a transcript is not available. A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule. (Emphasis added.) Moreover, the failure to follow Civ.R. 53 embodies the long-recognized principle that the failure to draw the trial court's attention to a possible error, by objection or otherwise, when the error could have been corrected, results in a waiver of the issue for purposes of appeal. Cf.Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 121. See, also, Burns v.May (1999), 133 Ohio App.3d 351, 358; Hodges v. Hodges (May 27, 1997), Butler App. No. CA97-10-207, unreported, at 4, citing Schade v. CarnegieBody Co. (1982), 70 Ohio St.2d 207, 210. As noted by the court inGoldfuss, "it is well established that failure to follow procedural rules can result in forfeiture of rights." Goldfuss at 122. It is also important to note that when James filed his March 23, 2000 objections to the magistrate's decision, he indicated that a transcript of the magistrate's hearing had been requested. The record reveals that the trial court held a hearing on James' objections and affirmed the magistrate's decision on the basis of James' March 20, 2000 objections and his arguments at the hearing. The record further reveals that a copy of the transcript of the magistrate's hearing was not part of the record before the trial court. Rather, James filed the transcript on June 16, 2000 after he filed his notice of appeal with this court. It is well-established that an appellate court is precluded from considering any evidence not submitted to the trial court when reviewing a magistrate's decision adopted by the trial court. State ex rel. Duncanv. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730. "A reviewing court cannot add matter to the record before it, which was not part of the trial court's proceedings, and then decide the appeal on the basis of the new matter." Id. at 730, quoting State v. Ishmail (1978),54 Ohio St.2d 402, paragraph one of the syllabus. James also did not request that the trial court make findings of fact or conclusions of law pursuant to Civ.R. 52 after it held the hearing on his objections. Nor does the record on appeal include a transcript of the hearing before the trial court on James' objections. Absent a transcript of such hearing before the trial court, our review will presume regularity in the proceedings below. Hartt v. Munobe (1993),67 Ohio St.3d 3, 7. As such, there is nothing in the record that indicates James raised any other objections before the trial court other than those raised in his March 23, 2000 objections. In his first assignment of error, James contends that the trial court cannot automatically offset child support obligations between the parties under a shared parenting plan without first finding factors or reasons to support a deviation under R.C. 3113.215. Specifically, James argues that the magistrate should have made a detailed finding as why there are no factors under R.C. 3113.215 that support a deviation to require Merry to pay him child support. The record reveals that James did not object or raise this specific issue with the trial court. The only objection that James raised below as to the issue of an offset was that the magistrate applied the split custody guidelines pursuant to R.C. 3113.215(C) to the calculation of child support. James now claims in his brief that the magistrate did not apply the split custody guidelines pursuant to R.C. 3113.215(C), but applied the shared parenting guidelines pursuant to R.C. 3113.215(B)(6)(a) by following Luke v. Luke, 1998 Ohio App. 1998 WL 172813 (Feb. 20, 1998), Lake App. No. 97-L-044, unreported, appeal not allowed,82 Ohio St.3d 1434. We therefore find that James has waived his right to raise this issue on appeal. See Civ.R. 53(E)(b)(3); Goldfuss,79 Ohio St.3d at 121; Burns, 133 Ohio App.3d at 358. An exception to the general rule of waiver is the plain error doctrine. See Crim.R. 52. "In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss, 79 Ohio St.3d at syllabus. This court has limited plain error review in civil cases to dependency and permanent custody matters. See In the Matter of: Patricia Morris aka Patricia Gallaher (Oct. 16, 2000), Butler App. No. CA2000-01-001, unreported; In Re: DwayneJohnson, a Minor Child (Dec. 11, 2000), Butler App. Nos. CA2000-03-041 and CA2000-05-073, unreported. Given our previous limitation of the application of the plain error rule in civil cases and the broad discretion of the trial court in matters pertaining to child support, we are averse to invoking the doctrine of plain error under the facts of this case. James' first assignment of error is overruled. Assignment of Error No. 2: THE TRIAL COURT ERRED IN ITS SUPPORT CALCULATION WHEN IT INCORRECTLY FIGURED THE RESPECTIVE DAYCARE [sic] EXPENSES OF THE PARTIES. In his second assignment of error, James contends that the magistrate cannot substitute an amount for day care expenses when the parties testified to a different amount. James argues that the magistrate erroneously imputed day care expenses of $4,136 on line eighteen of the child support worksheet while the evidence at the hearing indicated $5,108 for day care expenses, i.e., forty-six weeks at $98 per week totaling $4,508 plus $600. As previously indicated, the transcript of the hearing before the magistrate is not before this court. Duncan, 73 Ohio St.3d at 730. However, based on the allegations in his brief and the existing record, it would appear that James overstates his day care expenses because he fails to deduct the mandatory child care tax credit which would reduce the amount that is entered on line eighteen of the worksheet. See R.C.3113.215(E); Coulter v. Coulter (Oct. 14, 1996), Warren App. No. CA95-11-112, unreported, at 9-10. Moreover, James failed to object or raise the issue before the trial court concerning the magistrate's calculation of the parties' annual child support obligations. Accordingly, James has waived any objection. See Civ.R. 53(E)(b)(3); Goldfuss, 79 Ohio St.3d at 121; Burns,133 Ohio App.3d at 358. James' second assignment of error is overruled. Assignment of Error No. 3: THE COURT'S DECISION CHANGING THE PARTIES SHARED PARENTING ORDER TO REQUIRE APPELLANT TO PAY ALL OF THE DAYCARE [sic] FOR THE CHILDREN AND REDUCING APPELLEE'S SHARE OF UNINSURED MEDICAL EXPENSES IS AN ABUSE OF DISCRETION. In his third assignment of error, James raises two issues for our review. James first contends that the magistrate's decision reducing Merry's obligation to pay uncovered medical expenses without requiring her to pay him child support was an abuse of discretion. The record reveals that James failed to object to the magistrate's decision concerning uncovered medical and dental expenses. We therefore find James has waived any objection. See Civ.R. 53(E)(b)(3); Goldfuss,79 Ohio St.3d at 121; Burns, 133 Ohio App.3d at 358. Accordingly, James' first issue for review is not well-taken. In his second issue for review, James contends that since he now pays over $4,000 annually in day care expenses and Merry earns more money, it was an abuse of discretion for the trial court not to require Merry to pay him child support. James first argues that the trial court lacked authority to change the parties' arrangement concerning day care expenses since the issue was not raised in any motion. We disagree. When James filed his motion to modify child support, James invoked the continuing jurisdiction of the trial court regarding all issues of child support including day care expenses. See Civ.R. 75(J); R.C. 3113.215(B)(4) and (5)(f); Harlow v. Harlow (June 29, 1994), Montgomery App. No. 14287, unreported. James next argues that even if the trial court had authority to modify the parties' arrangement for day care expenses, there was no evidence indicating a change of circumstances for a new order. James failed to object or raise this specific issue before the trial court. As such, James has waived any objection. See Civ.R. 53(E)(b)(3); Goldfuss,79 Ohio St.3d at 121; Burns, 133 Ohio App.3d at 358. We therefore find that James' second issue for review is not well-taken. Accordingly, James' third assignment of error is overruled. Judgment affirmed. YOUNG and VALEN, JJ., concur. 1 The record reveals that the trial court adopted the calculation of child support obligations made by James' counsel and filed by both parties. At the time of their dissolution, Merry waived representation by counsel. A review of the worksheet for calculation of child support reveals that the calculation was improperly done under the basis that James was the sole residential parent while Merry was cast in the dual role of nonresidential parent and child support obligor. Further, the worksheet showed that the cost of medical insurance and day care expenses were not included in the calculation of child support. According to the worksheet, James' support obligation on line 24 was $7,865 per year and Merry's support obligation was $2,954 per year. See R.C.3113.215(B)(6)(a). 2 We note that under each assignment of error, James' brief incorrectly contains "propositions of law" used in Supreme Court practice, rather than "issues presented for review" as are used in intermediate level appellate practice. See S.Ct.Prac.R. VI(A)(4); App.R.16(A)(4); Loc.R. 11(A)(2). In the interest of justice, we construe his propositions of law as issues for review.

2016-07-06 06:42:09.223902+00

JOURNAL ENTRY AND OPINION An accelerated appeal is authorized pursuant to App. R. 11.1 and Loc.App.R. 11.1. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision.Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App. R. 11.1 (E). In the accelerated appeal sub judice, plaintiff-appellant Jorgen Nielsen-Mayer appeals from the granting of summary judgment in favor of defendant-appellee Cuyahoga Metropolitan Housing Authority ("CMHA") on his tort claim of intentional infliction of emotional distress. For the reasons adduced below, we affirm. The record reflects that appellant's complaints center around alleged abusive conduct directed at him by his supervisor (Mr. Ferraro) while employed at CMHA. This abuse, which happened between the period of September 1991 to June 1996, consisted of: episodes of verbal abuse laced with profanity; instances in which the supervisor allegedly pounded furniture during an episode of a verbal dressing down; throwing a pencil in the direction of the appellant during one outburst; using a baseball bat as a prop in one of the tirades by hitting the floor in front of the appellant and coming within eighteen inches of the appellant's person. Two assignments of error are presented for review. These assignments will be addressed in reverse order. II THE TRIAL COURT IMPROPERLY APPLIED OHIO REVISED CODE SECTIONS 2744.01 ET SEQ. IN FINDING DEFENDANT-APPELLEE IMMUNE FROM PLAINTIFF-APPELLANT'S SUIT AS A MATTER OF LAW. In this assignment, appellant argues that his intentional tort claim is not barred against the governmental authority pursuant to the exception to sovereign immunity for the political subdivision contained in R.C. 2744.09 (B). This appellate court has recently determined that intentional torts do not arise out of the employment relationship and that the sovereign immunity codified in R.C. 2744, et seq., applies to immunize the political subdivision from such intentional tort claims. See Ventura v. City of Independence (May 7, 1998), Cuyahoga App. No. 72526, unreported, 1998 WL 230429, at 6-8. We conclude that the trial court properly granted summary judgment in favor of CMHA on the basis of sovereign immunity barring the intentional tort claim of appellant. The second assignment is overruled. I THE TRIAL COURT IMPROPERLY GRANTED SUMMARY JUDGMENT TO DEFENDANT-APPELLEE BASED ON A FINDING BY THE TRIAL COURT THAT THE CONDUCT DESCRIBED BY PLAINTIFF-APPELLANT WAS NOT SUFFICIENTLY OUTRAGEOUS TO SUPPORT A CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL HARM. By virtue of the holding in the second assignment of error above, the resolution of this assignment is moot and need not be discussed. See App. R. 12 (A) (1) (c). The first assignment is overruled as moot. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue Out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, P.J., and LEO SPELLACY, J., CONCUR. ________________________ JAMES D. SWEENEY JUDGE

2016-07-06 06:42:09.336039+00

OPINION {¶ 1} Defendant-appellant, Frank Simpson ("appellant"), appeals from the judgment of the Franklin County Municipal Court convicting him of one count of intimidation in violation of R.C. 2921.04(A). {¶ 2} On July 14, 2006, appellant was charged with knowingly attempting to intimidate the victim of a crime in the filing or prosecution of criminal charges in violation of R.C. 2921.04(A). Appellant entered a plea of not guilty and waived his right to a jury trial. The matter proceeded to a trial before the court on January 23, 2007. The court *Page 2 heard testimony from the victim, John T. Long, Linda Lanis, David Schnese, Anthony Brusadin, Dublin Police Officer Jeffrey Kiedtke, Dublin Police Detective Gwen Higgins, Anthony Pusateri, Tracy Miller, Kyle Dougherty, Jordan Bowdy, Brian Simpson, and appellant. {¶ 3} The charge herein relates to an incident that occurred in March 2006 when the Dublin Coffman High School Boys' Lacrosse Team ("the team"), took a three-day trip to Memphis, Tennessee. At the time of the incident, appellant was serving as a volunteer assistant coach for the team since 1990, and his son, Brian Simpson ("head coach Simpson"), was serving as the head coach. Also, serving as assistant coaches were appellant's son Greg Simpson ("assistant coach Simpson"), and Dustin Pentz. {¶ 4} It was alleged that while in Tennessee on the team bus, Mr. Pentz placed his fingers in the rectum of the victim, John T. Long, an 18-year-old team member. It was further alleged that assistant coach Simpson was involved in the incident. Appellant was not present on the bus during the alleged occurrence. Approximately three weeks after returning from Tennessee, on April 17, 2006, Dublin Coffman Athletic Director Tony Pusateri was informed by the father of the team captain about what allegedly happened on the team bus. Upon receiving this information, Mr. Pusateri immediately notified the school resource officer, Dublin Police Officer Jeff Liedtke, as well as the assistant principal. At approximately 3:30 p.m. that afternoon, Mr. Pusateri called head coach Simpson and suggested that he call assistant coach Simpson and Mr. Pentz to tell them they were not to be at the game that evening. Officer Liedtke testified that upon learning of the alleged assault from Mr. Pusateri, he informed his sergeant of the allegations. *Page 3 {¶ 5} After receiving the phone call from Mr. Pusateri, head coach Simpson called both assistant coaches and then appellant. Head coach Simpson informed appellant that Mr. Pusateri instructed head coach Simpson to suspend both assistant coaches based on allegations that they were involved in a sexual assault of a player on the team bus during the Memphis trip. {¶ 6} There was a lacrosse game scheduled for the evening of April 17, 2006, and although he attempted to obtain additional information from Mr. Pusateri about the allegations, appellant was unsuccessful. Prior to the lacrosse game, there was a pre-game team meeting in a locker room at the high school. While pre-game team meetings are standard procedure, the discussion of personal matters, or anything outside of the "game plan" was not. The intimidation charge at issue arises from appellant's actions and comments at this team meeting. According to the testimony, appellant entered the locker room and asked the team, by way of raising their hands, who "had fingers stuck up his butt." (Tr. at 20.) Mr. Long raised his hand. According to Mr. Long, appellant "singled" him out, and said that Mr. Long "would have to go to court and testify that it had happened, because he was going to resist any charges that would have been brought up." (Tr. at 20, 21.) Mr. Long stated that appellant was "intensely staring" at him, and "seemed really on edge," and "really intense." Id. at 21. Though he was not threatened and "not necessarily fearing for [his] life[,]" Mr. Long testified that he was "intimidated." (Tr. at 39.) According to Mr. Long, appellant said "if I went through with this, then he would be adamant about taking it to court." (Tr. at 38.) When asked why he felt intimidated Mr. Long stated: *Page 4 Because of the way — more or less his demeanor, his mannerisms and also how he felt. He came across more or less threatening when they said I am going to take you to court over this or you are going to have to testify. That was kind of an intimidating thought. * * * (Tr. at 42.) {¶ 7} David Schnese, the team captain, testified that appellant asked if someone could raise their hand if they remember either of the assistant coaches touching them inappropriately. When Mr. Long raised his hand, appellant asked if it was true and Mr. Long said that it was. Appellant asked "Do you know that you are going to have to testify to this in court?" (Tr. at 59.) Mr. Schnese also stated that after Mr. Long raised his hand, appellant's demeanor changed. Mr. Schnese stated: You could tell that Frank became a little more fired up and agitated that somebody had actually raised their hand, that that had actually taken place, like he almost could not believe that something like that would have happened. (Tr. at 72.) {¶ 8} According to Mr. Schnese, it appeared as if appellant was directing his comments towards Mr. Long himself. When asked to describe what he meant that appellant was "fired up" Mr. Schnese testified: Raised voice, just — It's almost too hard to explain, but it is not like — just the tone of his voice and how you felt like he was like directing the comment toward J.T. himself. Id. at 73. When asked on cross-examination if he ever felt threatened by appellant when appellant was "fired up," Mr. Schnese responded, "Not before that meeting." Id. at 68. {¶ 9} Another team member, Anthony Brusadin was present in the locker room and testified that he remembers discussing the Tennessee trip and appellant saying "that *Page 5 we were going to have to go and testify in court for it." (Tr. at 79.) Mr. Brusadin also remembered appellant stating that there would be consequences for lying, but Mr. Brusadin was unclear as to whether appellant said they could go to jail for lying. Mr. Brusadin testified that it seemed as if "they were kind of singling [Mr. Long] out and pointing that he would have to go to court and testify." (Tr. at 81.) {¶ 10} Two additional teammates, Kyle Dougherty and Jordan Bowdy testified for appellant. Both were present at the team meeting at issue. Mr. Dougherty remembers appellant asking if Mr. Pentz "put his fingers up their butt." (Tr. at 200.) After pausing, Mr. Long admitted that he had. Mr. Dougherty recalled appellant saying "you may have to testify in court." (Tr. at 201.) Mr. Dougherty's perception was that appellant was upset and angry, but not at the team. According to Mr. Dougherty, appellant said "this will probably ruin his dreams but not to let it ruin ours." Id. Although he believed appellant was speaking to the team as a whole at first, Mr. Dougherty thought appellant "kind of singled out [Mr. Long] and was speaking just to him." (Tr. at 202.) {¶ 11} Mr. Bowdy testified that appellant and head coach Simpson seemed upset about the whole situation in general, but not angry with the players. Mr. Bowdy testified that the statement he gave to the police after the team meeting was that "[t]hey told us the school was doing an investigation into the incident and that the police were going to be involved, as well." (Tr. at 218.) {¶ 12} Following the bench trial, the trial court found appellant guilty of knowingly attempting to intimidate a victim of crime in the filing or prosecution of criminal charges in *Page 6 violation of R.C. 2921.04(A). Appellant was sentenced to pay a $1,000 fine, plus court costs. On appeal, appellant brings three assignments of error for our review: I. The trial court erred in its application of the elements of O.R.C. § 2921.04(A). II. The trial court based its decision on elements not in evidence. III. The trial court incorrectly applied the mental state for O.R.C. § 2921.04(A). {¶ 13} In his first assignment of error, appellant contends the trial court erred in its application of the elements of R.C. 2921.04(A). Under this assignment of error appellant challenges the trial court's interpretation of "to intimidate or hinder" and the sufficiency of the evidence. {¶ 14} R.C. 2921.04, provides, in relevant part: (A) No person shall knowingly attempt to intimidate or hinder the victim of a crime in the filing or prosecution of criminal charges or a witness involved in a criminal action or proceeding in the discharge of the duties of the witness. (B) No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder the victim of a crime in the filing or prosecution of criminal charges or an attorney or witness involved in a criminal action or proceeding in the discharge of the duties of the attorney or witness. {¶ 15} "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C.2901.22(B). *Page 7 {¶ 16} Appellant was charged under subsection (A). Appellant contends that pursuant to the Supreme Court of Ohio's definition of intimidation provided in State v. Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, intimidation involves threats and the creation of fear in the victim, and that the evidence here does not rise to that level. {¶ 17} It is appellee's position that Ohio law indicates neither threats nor fear of physical harm are necessary to sustain a conviction under R.C. 2921.04(A), as said provision states a defendant is guilty if he or she knowingly attempts to intimidate or hinder a crime victim. Additionally, appellee argues appellant's reliance on Cress is misplaced as Cress concerned subsection (B) of R.C. 2921.04, rather than subsection (A), and Cress does not stand for the proposition stated by appellant. Our reading of Cress is consistent with the view expressed by appellee. {¶ 18} The question before the Supreme Court of Ohio in Cress was "[d]oes a criminal charge of intimidation in violation of R.C.2921.04(B) require the state to prove that the defendant has made a threat to engage in unlawful conduct?" Id. at 72. In Cress, after the couple had an argument, Cress entered his girlfriend's apartment without permission by accessing the attic crawl space that connected their two apartments. Cress' girlfriend, the victim, heard noises in the bedroom and discovered Cress in the closet. The victim called the police and Cress returned to his apartment. After gaining a search warrant for Cress' apartment, Cress was arrested. Within hours of his arrest, Cress called the victim from jail and stated, in essence, that if the victim would refrain from getting Cress in trouble, he would not disseminate photographs of her and others *Page 8 smoking a bong. Cress also admitted he was using the photographs as a "scare tactic" against the victim. Id. at 73. {¶ 19} A jury found Cress guilty of intimidation in violation of R.C.2921.04(B). The Third District Court of Appeals reversed the conviction concluding that the term "unlawful threat of harm" contained in R.C.2921.04(B) required proof that a specific threat be, in and of itself, a threat to commit an unlawful act." Id. at 75. The Supreme Court of Ohio disagreed, and the court stated: Significantly, a violation of R.C. 2921.04(B), involving force or an "unlawful threat of harm," constitutes a felony of the third degree, while violation of R.C. 2921.04(A) constitutes a misdemeanor of the first degree. R.C. 2921.04(D). Where, as in this case, the use of force to intimidate a witness is not alleged, the statute distinguishes between felony witness intimidation and misdemeanor witness intimidation by the presence of an unlawful threat of harm. We must therefore determine from the words of the statute the General Assembly's intent in adding the term "unlawful threat of harm" in R.C. 2921.04(B) to describe those instances of witness intimidation properly found to be felonious. In interpreting the phrase "unlawful threat of harm" in R.C. 2921.04(B), the opinion in the Third District Court of Appeals stated, "Without a showing of an express or implied threat of unlawful conduct, there can be no finding that Cress is guilty of intimidation." But the word "threat" is defined as "an expression of an intention to inflict evil, injury, or damage on another usu[ally] as retribution or punishment for something done or left undone." Webster's Third New International Dictionary (1986) 2382. It connotes almost any expression of intent to do an act of harm against another person irrespective of whether that act is criminal. State v. Moyer (1920), 87 W.Va. 137, 104 S.E. 407 ("The word `threat' is very broad and indefinite. It includes almost any kind of an expression of intention of one person to do an act against another. Ordinarily, it signifies intention to do some sort of harm, but the realm of injury is equally broad and undefined. All wrongs are not criminal offenses"). *Page 9 A witness threatened with perfectly legal conduct ("I will tell your spouse about our affair") may be more intimidated than a witness threatened with illegal conduct ("I will knock down your mailbox"). The most intimidating threat of all may be an indefinite one ("You'll be sorry"). We therefore reject the contention that the General Assembly intended to differentiate between felonious witness intimidation and misdemeanor intimidation based on the legality of the threatened conduct, particularly when that construction is contrary to the rule of grammar that an adjective, here "unlawful," modifies the noun that follows it, here "threat." The General Assembly did not provide a definition of the term "unlawful threat," and we presume that it intended that the term be given its common meaning in accordance with the general rules of grammar. * * * Both R.C. 2921.04(A) and (B) prohibit knowing attempts to intimidate a witness. We cannot hypothesize an instance in which the act of threatening a witness would not also constitute intimidation. The term "threat" represents a range of statements or conduct intended to impart a feeling of apprehension in the victim, whether of bodily harm, property destruction, or lawful harm, such as exposing the victim's own misconduct. See Planned Parenthood League of Massachusetts, Inc. v. Blake (1994), 417 Mass. 467, 474, 631 N.E.2d 985 (defining "threat" as "the intentional exertion of pressure to make another fearful or apprehensive of injury or harm"). To "intimidate" means to "make timid or fearful: inspire or affect with fear: frighten * * *; esp.: to compel to action or inaction (as by threats)." (Emphasis added and capitalization omitted.) Webster's Third New International Dictionary at 1184. "Intimidation" by definition involves the creation of fear in a victim, and the very nature of a threat is the creation of fear of negative consequences for the purpose of influencing behavior. We simply do not discern a meaningful difference between intimidation of a witness and the making of a threat to a witness. Accordingly, both R.C. 2921.04(A) and (B) prohibit the threatening of witnesses. Id. at 76-77. *Page 10 {¶ 20} While the court said it did not "discern a meaningful difference" between intimidation of a witness and making a threat to a witness, when read in context, we find the court was noting that essentially any threat would constitute intimidation. However, the reverse, that intimidation requires a threat, is not implicit in their statement, especially in light of the court's additional commentary that intimidation, by definition, involves the creation of fear in a victim. Our perception of the court's reference is bolstered by the court's holding "that the statutory language in R.C. 2921.04(B), proscribing intimidation by an `unlawful threat of harm,' is satisfied only when the very making of the threat is itself unlawful because it violates established criminal or civil law." Id. at 77-78 (emphasis added). {¶ 21} Thus, while Cress is instructive for purposes of defining intimidation by unlawful threat of harm under R.C. 2921.04(B), we do not find it dispositive to the issue before us, nor do we find that it stands for the proposition advanced by appellant. As previously noted, R.C. 2921.04(A) states a defendant is in violation of said provision if he or she knowingly attempts to intimidate or hinder a crime victim. There is no requirement of a threat. Further, Cress states that "to `intimidate' means to `make timid or fearful: inspire or affect with fear: frighten * * *; esp.: to compel to action or inaction (as by threats)." Id. at 77. In fact, in his reply brief, appellant states that by definition, "intimidation requires a threat or the creation of fear." (Reply Brief at 3, emphasis added.) While the majority of fact patterns concerning R.C. 2921.04(A) that we have reviewed do contain overt threats, we are not aware of an appellate court that, to date, hasrequired the making of a threat in order to sustain a conviction under R.C. 2921.04(A). For *Page 11 instance, this court recently sustained a conviction under R.C.2921.04(A), wherein the defendant called his estranged girlfriend from jail where he was being held on a domestic violence charge and left the following message on her voicemail: You gotta tell `em I didn't do anything. Tell `em I didn't touch you[.] * * * All you gotta do is tell `em I didn't do anything, Erin. {¶ 22} State v. Stanley, Franklin App. No. 06AP-65, 2006-Ohio-4632, at ¶ 15. According to the victim in Stanley, she felt as if the defendant was pressuring her and attempting to get her to change her story. InStanley, there does not appear to have been an accompanying threat, yet, based on the testimony, this court concluded that any rational trier of fact could have found the essential elements of intimidation contained in R.C. 2921.04(A) proven beyond a reasonable doubt. See, also,State v. Sessler, Crawford App. No. 3-06-23, 2007-Ohio-4931 (noting that a conviction under R.C. 2921.04(A) did not require proof of force or threat of harm); State v. Munz (Feb. 21, 2002), Cuyahoga App. No. 79576, 2002-Ohio-675 (conviction under R.C. 2921.04 upheld where the defendant called the victim of his domestic violence charge and said he would commit suicide if she continued with the charges); State v.Williams (June 1, 2001), Ashtabula App. No. 2000-A-0005 (conviction under R.C. 2921.04[B] affirmed where the defendant called the victim of a rape charge in which the defendant's best friend was being held and the defendant asked for "$3000 to get a friend out of jail" and then stated that he would kill the victim when she indicated she would not give him the money); State v. Bates (Mar. 30, 2001), Portage App. No. 99-P-0100 (conviction under R.C. 2921.04[A] affirmed where the defendant enlisted the aid of a fellow Deputy Sheriff to "talk" to a witness in the defendant's son's felonious assault case and "let [the witness] know that *Page 12 she could be facing criminal charges for serving alcohol to underage kids"); State v. Greenberg (Mar. 21, 1997), Delaware App. No. 96CA-A-05-029 (conviction under R.C. 2921.04(A) affirmed where the defendant called the victim and said "he was going to `. . . fucking k . . .,'" and though the victim hung up, she believed the defendant was threatening to kill her). {¶ 23} Upon review of the record and established case law, we find no error in the trial court's interpretation of "to intimidate or hinder," as used in R.C. 2921.04(A). We now turn to appellant's argument regarding the sufficiency of the evidence. {¶ 24} As set forth in State v. Jenks (1991), 61 Ohio St.3d 259, when reviewing the sufficiency of the evidence supporting a criminal conviction, an appellate court must examine the evidence submitted at trial to determine whether such evidence, if believed, would convince an average person 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. Id. at paragraph two of the syllabus. See, also, Jackson v.Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781. {¶ 25} This test raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172. Rather, the sufficiency of the evidence test "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, supra, at 319. Accordingly, the reviewing court does not substitute its judgment for that of the fact finder. Jenks, supra, at 279. *Page 13 {¶ 26} Appellant contends the victim was not threatened by appellant, was not afraid of appellant, and that no team players were threatened or fearful during the team meeting in question. Appellant further contends there is no evidence that he made any statements to the alleged victim in an attempt to discourage the victim from future involvement with criminal proceedings. Therefore, appellant asserts the evidence was insufficient to sustain the conviction for intimidation. {¶ 27} Appellee suggests that when construed in appellee's favor, the evidence is clearly sufficient to establish an intimidation attempt under R.C. 2921.04(A). {¶ 28} In support of his position, appellant cites to this court's decision in State v. Jackson, Franklin App. No. 02AP-867,2003-Ohio-6183, wherein this court reversed a conviction under R.C.2921.04(B) for sufficiency of the evidence. In Jackson, the defendant was charged with aggravated arson after he started a fire on the balcony of an apartment he shared with his girlfriend. While incarcerated, appellant called his girlfriend, but her friend Barrows answered the phone and would not let appellant speak to his girlfriend. Barrows testified that Jackson stated "tell Shelia I'm going to kill her when I get out of here" and that he was "going to make her life a living hell when I get out of here." Id. at ¶ 53. Barrows testified that she believed appellant may simply have been expressing his frustration at being in jail rather than threatening anyone. Finding no nexus between the threats and defendant's desire to intimidate his girlfriend so that she would refrain from cooperating with the prosecution, this court reversed the conviction. {¶ 29} In the case at bar, appellant's comments were made directly in response to Mr. Long admitting inappropriate conduct by the assistant coaches, one of whom being *Page 14 appellant's son, while knowing that because of the allegations a criminal investigation would have been initiated. Thus, even applyingJackson's standard, there is clearly "some evidence of a nexus" to sustain appellant's conviction. Consequently, we do not findJackson to be either applicable or dispositive. See, also,Williams, supra (noting that the culpable mental state is knowledge and that it is sufficient under R.C. 2921.04(A) that the actor "knows that his conduct is likely to hinder or intimidate"). {¶ 30} The testimony revealed that the pre-game team meeting is mandatory if a player wants to play in the game. Team meetings had routinely consisted only of game plans, and personal matters had never been addressed until the meeting held on April 17, 2006. Appellant was aware of the allegations against his son and Mr. Pentz, and appellant admitted he knew that based on such allegations, a criminal investigation would have been initiated. Appellant and head coach Simpson were the only authority figures present in the meeting. After raising his hand in response to appellant's question about having "fingers stuck up his butt," Mr. Long testified that appellant became agitated, singled Mr. Long out, and stated that he would have to testify in court and that any charges would be "resisted." Other team members perceived that after Mr. Long raised his hand, appellant became more agitated and singled Mr. Long out. Others testified that appellant stated the allegations would have to be testified to in court and that there are consequences for lying. Based on appellant's mannerisms, words, and demeanor, Mr. Long testified that he was intimidated by appellant. Another team member described Mr. Long as visibly shaken and on the verge of breaking down. *Page 15 {¶ 31} Viewed in a light most favorable to the state, as is required, we find that any rational trier of fact could have found the essential elements of the intimidation contained in R.C. 2921.04(A) proven beyond a reasonable doubt, and as such, we find there is sufficient evidence to sustain appellant's conviction. {¶ 32} For the foregoing reasons, appellant's first assignment of error is overruled. {¶ 33} In his second assignment of error, appellant contends the trial court based its decision on "elements" not contained in evidence. Specifically, appellant challenges the trial court's following statements that we have italicized for distinction: There are many troubling aspects of the fact patter presented in this case. I have looked at all of the facts of this case frequently since we were last together. I have placed myself in the shoes of JT and the Simpsons. Several elements of the locker room meeting stand out to me. These include the following: The power disparity between adult coaches and high school boys; the family relationship between the accused coaches and our defendants; the male culture of stoicism at play; the humiliation of having one's private parts violated, in a group no less; the fragility of an adolescent's sense of self and/or sexual identity; a teen's desire to just be normal and fear of ostracism and public ridicule. This is our background in this case. It's clear from JT Long's testimony that he had a storm of emotions at play on the April day of that locker room meeting. Many of those emotions were fed by realistic fears, fears of such nature that that would nearly overwhelm a teenager. This is the classic stressed crime victim, only in this case it is a high school boy. This is the teenager that the coaches called out in that locker room. Requiring anything of the team that night beyond playing a game was ill advised. As coaches the Simpsons should have known that. Perhaps under circumstances they should not have been placed in such proximity to the team. (Feb. 5, 2007 Tr. at 30-31; emphasis added.) *Page 16 {¶ 34} According to appellant, the trial court does not have free reign to consider elements and factors that are not in evidence, and it is clear the trial court based its decision on elements unsupported by the record. We disagree. {¶ 35} "Under Ohio law, `the usual presumption is that in a bench trial in a criminal case the trial court considers only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.'" State v. Copley, Franklin App. No. 04AP-1128, 2006-Ohio-2737, discretionary appeal not allowed by111 Ohio St.3d 1432, 2006-Ohio-5351, at ¶ 27, quoting State v. Klempa, Belmont App. No. 01 BA 63, 2003-Ohio-3482, at ¶ 15, citing State v.Post (1987), 32 Ohio St.3d 380, 384. {¶ 36} The language to which appellant refers consists of less than two paragraphs taken from the trial court's eight page discussion leading up to its rendering of the verdict. Immediately following the portion of the transcript at issue, the trial court began discussing the charge, what the law requires, prior precedent from various Ohio appellate courts, and the transcript, including specific quotes from Mr. Long, Mr. Schnese, Mr. Brusadin, as well as the defense witnesses. The trial court then again discussed the legal definitions at issue, and finally rendered its verdict. The language challenged by appellant, when read in context, reveals to us, not what the trial court relied on in making its decision, but rather reveals the trial court's perception of the surroundings and the atmosphere of the team meeting based upon the testimony at trial. {¶ 37} There is an obvious power disparity between authority figures, such as teachers and coaches, and the high school students under their charge. This is bolstered by the team members' testimony that "you can't talk back to a coach," the coaches are *Page 17 "trusted" by the players, and the coaches are "authority" figures. (Tr. at 65, 221, 225.) As for the trial court's discussion wherein the trial court spoke in generalized terms regarding male stoicism, a fear of ostracism, and a sense of self, Mr. Long testified as to essentially each one of these. Mr. Long did not come forward about this incident on his own because he "was really embarrassed of it." (Tr. at 23.) Only after being troubled by the alleged incident did the team captain finally discuss it with his father. Further, Mr. Long stated that he did not want it in the news, or for his parents to find out about it because it "was pretty embarrassing." (Tr. at 24.) When the allegations were raised at the team meeting, Mr. Long said he played in the game that night because he did not want "to make more of a spectacle of [himself] maybe by leaving and maybe causing more questions to arise the next day at school from friends or, you know, players, or anything like that," and he just "wanted to be as normal" as he possibly could. (Tr. at 26.) The trial court's last statement with which appellant takes issue is regarding Mr. Long being a classic stressed crime victim. Again, we find this to be the trial court's perception based upon the evidence adduced at trial, not elements unsupported in the record and relied upon to make its decision as appellant suggests. {¶ 38} Upon review of the record, while the trial court spoke in general terms during its introduction, it appears to this court that the trial court was merely setting forth its perception of the circumstances and the surrounding atmosphere based on the evidence presented at trial. Thus, we find that appellant has failed to rebut the presumption that the trial judge, sitting as trier of fact, understood the applicable rules and *Page 18 did not rely on evidence not contained in the record. Accordingly, appellant's second assignment of error is overruled. {¶ 39} In his final assignment of error, appellant contends the trial court incorrectly applied the mental state for R.C. 2921.04(A). Specifically, appellant argues his testimony demonstrates that he did not "intend" to intimidate or scare Mr. Long, nor did he threaten anyone at the team meeting at issue. Appellant asserts the trial court disregarded his testimony about his intentions with respect to the team meeting, and focused solely on Mr. Long's interpretation of the same. Appellant's argument is not well-founded. {¶ 40} Initially, we note that we have already determined through disposition of appellant's first assignment of error that there is sufficient evidence in the record to sustain appellant's conviction under R.C. 2921.04(A). {¶ 41} Secondly, the transcript does not support appellant's position, but rather belies it. The trial court acknowledged that the requisite mental state is "knowingly," and recognized that "purpose or intent is not an element of this case." (Feb. 5, 2007 Tr. at 36.) Moments later, the trial court reiterated, "[s]o again, let me repeat. Purpose is not involved here." Id. Further, the transcript reveals the trial court's reference to the testimony of not only Mr. Long, but other witnesses as well. {¶ 42} Lastly, it is well established that the determination of weight and credibility of the evidence is for the trier of fact. State v.DeHass (1967), 10 Ohio St.2d 230. The rationale is that the trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner and demeanor, and determine whether the witnesses' testimony is credible. State v. Williams, Franklin App. No. 02AP-35, 2002-Ohio-4503, *Page 19 at ¶ 58; State v. Clarke (Sept. 25, 2001), Franklin App. No. 01AP-194. The trier of fact is free to believe or disbelieve all or any of the testimony. State v. Jackson (Mar. 19, 2002), Franklin App. No. 01AP-973;State v. Sheppard (Oct. 12, 2001), Hamilton App. No. C-000553. {¶ 43} We have reviewed the record, and upon such review, we cannot find that the trial court erred in resolving issues of credibility or incorrectly applied the legal standard. Consequently, we overrule appellant's third assignment of error. {¶ 44} For the foregoing reasons, appellant's three assignments of error are overruled and the judgment of the Franklin County Municipal Court is hereby affirmed. Judgment affirmed. FRENCH, J., concurs. WHITESIDE, J., concurring separately. WHITESIDE, J. retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:42:09.937919+00

OPINION {¶ 1} Appellants, Neil J. Conway, Sr. and Jeanne L. Conway (Educational Trust No. 1), Christine Emerick, Jeanne Wagner, Keith Conway, Barry Conway, Sean Conway, and Rachael Meaney, appeal from the June 8, 2006 judgment entry of the Lake County Court of Common Pleas, affirming the report of the Special Master. *Page 2 {¶ 2} On March 21, 2005, appellees, Seanna Conway and Neil Conway III, filed a complaint against appellants for money damages, punitive damages, and the removal of the trustees of the Neil J. Conway, Sr. and Jeanne L. Conway Educational Trust No. 1 ("the trust").1 On May 25, 2005, appellants filed an answer and counterclaim.2 {¶ 3} On June 3, 2005, appellees filed a motion for default judgment. Appellants filed a brief in opposition on June 8, 2005. Appellees filed a response on June 14, 2005. Pursuant to its June 15, 2005 judgment entry, the trial court denied appellees' motion for default judgment. {¶ 4} On June 28, 2005, appellees filed a reply to appellants' counterclaim. On August 12, 2005, appellees filed a motion for leave to file an amended complaint, which *Page 3 was granted by the trial court on August 18, 2005.3 On September 16, 2005, appellants filed an answer and counterclaim.4 {¶ 5} On September 20, 2005, appellees filed a motion for default judgment. Appellants filed a brief in opposition on that same date. Appellees filed a response on September 30, 2005. Pursuant to its October 20, 2005 judgment entry, the trial court denied appellees' motion for default judgment. {¶ 6} A bench trial was scheduled to commence on February 24, 2006, at which time the parties negotiated a settlement. Pursuant to its March 1, 2006 judgment entry, the trial court indicated that the parties agreed that appellants would pay appellees $28,200. Also, the trial court stated that the parties agreed that the Special Master would be appointed to promulgate rules to govern the future administration of the trust and to determine the effect and validity of any existing rules. The trial court also issued a separate judgment entry that same date, appointing Anthony J. Aveni as the Special Master. {¶ 7} The Special Master filed his report on May 19, 2006. Appellees filed objections on June 1, 2006. Appellants filed objections the following day, disagreeing with the Special Master's recommendation that appellee Neil Conway III be reinstated as a general trustee of the trust since he had not raised that issue in his case in chief. {¶ 8} A hearing was held on June 2, 2006.5 *Page 4 {¶ 9} Pursuant to its June 8, 2006 judgment entry, the trial court affirmed the report of the Special Master in its entirety, except for the modification of Paragraphs 13 and 16.6 It is from that judgment that appellants filed a timely notice of appeal and make the following assignment of error:7 {¶ 10} "The trial court erred in confirming the recommendation of the Special Master to reinstate plaintiff Neil J. Conway, III as a general trust[ee] of the Neil J. Conway, Sr. and Jeanne L. Conway Educational Trust No. 1 since plaintiffs had not raised the issue of plaintiff Neil J. Conway, III's status as a general trustee in their complaint." {¶ 11} In their sole assignment of error, appellants argue that the trial court erred by confirming the Special Master's recommendation to reinstate appellee Neil Conway III as a general trustee of the trust since neither he nor appellee Seanna Conway raised the issue in their complaint. Appellants allege that an issue not raised in the pleadings cannot be adjudicated by the trial court. {¶ 12} "The Rules of Civil Procedure only require a short, plain statement of the claim which is sufficient to give the defendant fair notice of the plaintiff's claim and the grounds upon which that claim is based." Jones v. Am. Elec. Power (Feb. 28, 1990), 10th Dist. No. 89AP-358, 1989 Ohio App. LEXIS 3515, at 4. See, also, Slife v. KundtzProperties (1974), 40 Ohio App.2d 179. "Accordingly, few complaints fail to meet the liberal pleading standard embodied in Civ.R. 8[.]"Jones at 4. "[W]hether a plaintiff will *Page 5 ultimately prevail upon the merits of his complaint is a matter properly determined at trial, and not on the pleadings." Id. {¶ 13} "A settlement agreement extinguishes parties' original rights or claims, and substitutes new rights and obligations." Rice v.Hope (Jan. 7, 1991), 2d Dist. No. 12048, 1991 Ohio App. LEXIS 56, at 8, citing Bd. of Commrs. of Columbiana Cty. v. Samuelson (1986),24 Ohio St.3d 62, 63. "Agreements of compromise and settlement are highly favored at law." Rice at 10, citing State ex rel. Wright v. Weyandt (1977), 50 Ohio St.2d 194. "When litigants voluntarily enter into a settlement agreement in the presence of the trial court, the contract is binding and, once journalized, it need not be reduced to writing for the parties' signatures in order to be enforceable." Rice at 10, citingSpercel v. Sterling Industries, Inc. (1972), 31 Ohio St.2d 36. {¶ 14} In the case at bar, although appellees did not specifically raise the issue of the status of appellee Neil Conway III as a general trustee in their complaint and/or their amended complaint, they asked for "Money Damages, Punitive Damages and Removal of the Trustees." Pursuant to Jones, supra, whether appellees would ultimately prevail upon the merits of their complaint was to be determined at the bench trial, rather than on the pleadings. Although a bench trial was scheduled for February 24, 2006, the parties agreed to settle the matter. {¶ 15} Pursuant to its March 1, 2006 judgment entry, the trial court stated that "[t]he parties deem it in their interest to settle the issues reflected by this Judgment Entry and therefore, agree as follows: {¶ 16} "1. Defendants shall pay the Plaintiffs the sum of Twenty-Eight Thousand Two Hundred Dollars ($28,200) by March 1, 2006. With this payment all financial demands in this matter have been adjudicated. Plaintiffs withdraw their demand to *Page 6 remove the Trustees. Whether or not Plaintiff, Neil J. Conway, III is a Trustee was not an issue in this case. * * * {¶ 17} "2. The Court will appoint attorney Anthony J. Aveni, Esquire, as a Special Master to promulgate rules to govern the future administration of the trust and to determine the effect and validity of any existing rules. Under separate order of the Court, the Master is to submit periodic reports on the issues brought before him. The Court shall provide, by separate Judgment Entry, the specific order to the Special Master of his duties and responsibilities. {¶ 18} "* * * {¶ 19} "The Court hereby reserves jurisdiction to enforce the settlement agreement and to enforce and oversee the Trust." {¶ 20} The foregoing entry was signed by the trial judge, and approved by appellants Jeanne Wagner and Keith Conway, as well as their attorney, and by appellees, as well as their counsel. {¶ 21} The trial court issued a separate judgment entry, also dated March 1, 2006, referencing the appointment of the Special Master and his specific duties and responsibilities. The trial court indicated that the Special Master shall: {¶ 22} "1. Promulgate rules and regulations by which the Trust shall henceforth be governed and operated. The Master shall consider the Trust documents and give counsel for the respective parties an opportunity to make recommendations. {¶ 23} "2. Consider the current rules adopted by the Trustees and determine their validity and applicability to the Trust. {¶ 24} "3. Conduct hearing[s], take evidence, participate in meetings and proceed in whatever fashion deemed the best course of action. *Page 7 {¶ 25} "4. Make a written report of the findings and recommendations to the Court by May 1, 2006. {¶ 26} "5. All Master fees and costs shall be borne equally by the parties. The fees charged by the Special Master shall be at his regular billing." {¶ 27} In their brief, appellants state that "Neil [Conway III] was removed as an Operating Trustee and a General Trustee by a vote of Defendant Trustees in 2001. He never protested his removal, never demanded reinstatement." Again, we note that appellants did not provide a transcript or an App.R. 9(C) or (D) statement for our review. Based on the record provided to us by appellants, there is no evidence that appellee Neil Conway III was ever actually removed as a trustee of the trust. The trial court found that there is no authority in the trust for the removal of appellee Neil Conway III as a general trustee. {¶ 28} The trial court referenced the report of the Special Master in its June 8, 2006 judgment entry, and specifically stated the following: {¶ 29} "3) The Special Master finds that there is no authority in the Trust for the removal of Neil J. Conway III * * * as a General Trustee. Each child was appointed by the Grantors for life terms, subject to earlier termination only by death, resignation, incapacity or refusal to serve * * * none of which are applicable to Neil [J. Conway] III. Further, a General Trustee who has failed, neglected or refused to serve his term will be permanently disqualified as General Trustee and Operating Trustee * * *. Again, none of the stated grounds are applicable to Neil [J. Conway] III." {¶ 30} In the instant case, the Special Master and the trial court addressed the contention at issue as part of their duty to "promulgate rules to govern the future administration of the trust and to determine the effect and validity of any existing rules." *Page 8 Whether or not the trustees have the authority to remove appellee Neil Conway III as a general trustee falls within the authority that was given to the Special Master and to the trial court by the agreement of the parties. In addition, the issue here falls within the continuing jurisdiction over this matter that the trial court retained to further administer the trust. There is no factual record before this court to support the laches claim of appellants. {¶ 31} For the foregoing reasons, appellants' sole assignment of error is not well-taken. The judgment of the Lake County Court of Common Pleas is affirmed. CYNTHIA WESTCOTT RICE, P.J., MARY JANE TRAPP, J., concur. 1 According to the complaint, the trust is an irrevocable educational trust that was established by Neil J. Conway, Sr. and Jeanne L. Conway on November 25, 1986, for the purpose of providing educational financial assistance for their grandchildren. Appellee Seanna Conway is a grandchild of the grantors of the trust and is a beneficiary of the trust. At the time of the complaint, she was a fulltime college student at York University in Canada. Appellee Neil Conway III is the father of appellee Seanna Conway, a son of the grantors of the trust, and is or was a general trustee of the trust at the time of the complaint. He paid his daughter's college tuition, housing costs, fees, and other educational expenses, in the amount of $16,964.52, due to appellants' failure to pay for the 2004-2005 school year. In addition to the foregoing amount, appellees seek punitive damages in the sum of $25,000, jointly and severally, as well as attorney fees and costs. Appellants Christine Emerick, Jeanne Wagner, and Keith Conway, are all operating trustees of the trust. Appellant Jeanne Wagner is also the secretary of the trust. Appellants Barry Conway, Sean Conway, and Rachael Meaney are all general trustees of the trust. 2 In their counterclaim, appellants maintained that the operating trustees paid $8,020 to the University of New Hampshire for the benefit of appellee Seanna Conway as tuition for the 2002-2003 academic year. The University of New Hampshire refunded $4,262.84 to appellees because it only required payment of one-half of the year's tuition. Thereafter, appellants allege that appellee Seanna Conway withdrew from the University of New Hampshire without notifying the operating trustees. Appellants sought that the complaint against them be dismissed; that the trial court enter judgment in their favor in the amount of $4,262.84, plus court costs and interest; punitive damages in excess of $25,000; and attorney fees and costs. 3 In their amended complaint, appellees additionally alleged that appellants breached their fiduciary duty by refusing to pay appellee Seanna Conway's tuition and board and York University in the amount of $18,872 for the 2005-2006 school year. Also, appellees maintained that they paid room and board and other educational expenses for appellee Seanna Conway in the amount of $6,198 for academic year 2001-2002, and $7,672 for 2002-2003. 4 Appellants' counterclaim sought the same relief as their previous counterclaim. 5 Appellants did not file a transcript from that hearing. 6 Paragraph 13 was modified to provide for payment of private housing, and Paragraph 16 was stricken. The modifications made to the report are not at issue here. 7 Appellants did not file an App.R. 9(C) or (D) statement. *Page 1

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OPINION {¶ 1} Defendant-appellant, Daryl J. Miller, appeals from the February 20, 2007 sentence imposed on him by the Ashtabula County Court of Common Pleas. For the reasons that follow, we affirm. {¶ 2} Appellant was indicted for one count of drug trafficking within the vicinity of a school, in violation of R.C. 2925.03, a felony of the fourth degree, and one count of possession of drugs (cocaine), in violation of R.C. 2925.11, a felony of the fifth degree. *Page 2 {¶ 3} The evidence at trial reveals that between 2:30 and 2:45 a.m. on February 16, 2006, Officer Robert Wolford of the Ashtabula Police Department's Special Operations Group, was patrolling the city streets in an unmarked car dressed in plain clothes to see if either a drug dealer or prostitute would approach him. As he was driving, appellant waived him over, yelled "hey" and asked him what he was looking for. Wolford replied that he was looking for a "20 piece," which meant $20 worth of crack cocaine. Appellant got into the car and directed the officer to drive to an abandoned house, where he got the crack cocaine. While appellant was out of the car, the officer called his captain who told him to pull over into the nearby school parking lot where they could both make the arrest. The captain testified that the drug exchange took place within one thousand feet of the school (required for the enhancement), and in fact, occurred less than fifty yards from the school. The offer itself was made less than five hundred yards from the school. Appellant was patted down and arrested and charged with possession and trafficking near a school. {¶ 4} The jury found appellant guilty as charged. Appellant was sentenced to concurrent sentences of eighteen months on the drug trafficking charge and twelve months on the possession charge. {¶ 5} Appellant's trial counsel perfected the appeal in this case but filed a motion to withdraw. We granted trial counsel's request to withdraw and appointed appellate counsel on his behalf. However, assigned counsel subsequently filed a motion to withdraw and an"Anders brief," in accordance with the United States Supreme Court decision of Anders v. California (1967), 386 U.S. 738. *Page 3 {¶ 6} In Anders, the Supreme Court held that "[i]f counsel is convinced, after conscientious investigation, that the appeal is frivolous, * * * he may ask to withdraw on that account." Id. at 741, citing Ellis v. United States (1958), 356 U.S. 674, 675. TheAnders Court delineated several requirements that must be met in order for counsel to withdraw. For instance, the request to withdraw must be accompanied by a brief identifying anything in the record that could arguably support an appeal. Furthermore, counsel must furnish his or her client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any conceivable matters he or she chooses. Id. Once these requirements have been met, the appellate court must examine the record fully to determine if the appeal is indeed frivolous. If the appellate court determines there are no meritorious issues, it may grant counsel's request to withdraw as counsel and affirm the trial court's decision. {¶ 7} Turning to the case at hand, assigned counsel filed anAnders brief asserting her belief that there were no meritorious issues and that the appeal was frivolous. Counsel stated that the only possible issue to argue on appeal would be entrapment. However, counsel did not believe the defense had merit and further stated that she believed appellant had received a fair trial. The state filed a response brief in which it argued that appellant waived his right to argue that the jury should have been charged on the defense of entrapment and that the evidence does not support the defense of entrapment. The affirmative defense of "entrapment exists when `the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute.' * * * `However, entrapment is not established when *Page 4 government officials "`merely afford opportunities or facilities for the commission of the offense" and it is shown that the accused was predisposed to commit the offense.'" Dayton v. Clark, 2d Dist. No. 19672, 2004-Ohio-162, at ¶ 32, citing State v. Doran (1983),5 Ohio St.3d 187, 192; Sherman v. U.S. (1958), 356 U.S. 369, 372. {¶ 8} The evidence does not support the affirmative defense of entrapment. The fact that the officer made the opportunity available to appellant to approach him and offer him drugs is not synonymous with entrapment. The criminal conduct was initiated by appellant, not by the police. Furthermore, since it is an affirmative defense, the burden was on defense counsel to prove entrapment, which was not even argued.State v. Klapka, 11th Dist. No. 2003-L-044, 2004-Ohio-2921, at |J28. Nor did defense counsel request an instruction on entrapment. {¶ 9} After a thorough and independent review of the record, including the transcript of the proceedings, the presentence investigation report, and briefs of the parties, we hold that there was sufficient evidence presented upon which to convict appellant of the crimes he was charged with. We also find that the trial court did not err in failing to find that appellant was entrapped into committing the offenses. Thus, there are no arguable legal points on the merits of this matter. Counsel's motion to withdraw is granted. {¶ 10} The judgment of the Ashtabula County Court of Common Pleas is hereby affirmed. DIANE V. GRENDELL, J., TIMOTHY P. CANNON, J., concur. *Page 1

2016-07-06 06:42:10.179167+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendants-appellants appeal from the trial court's judgment entered upon the jury verdict in this medical malpractice case and the trial court's order that granted plaintiff's motion for prejudgment interest. After careful review, we affirm. {¶ 2} Plaintiff commenced this action as Adminstratrix of the Estate of Lawrence A. Smith, Jr., Deceased. Mr. Smith died on June 8, 1999 as the result of cardiac arrest. The autopsy report revealed that Mr. Smith suffered from "severe coronary artery atherosclerosis" and indicated a "remote myocardial infarct," which was described by expert testimony as longstanding heart disease and a previous heart attack. Plaintiff maintained that the defendants' negligent medical care and treatment of Mr. Smith caused his death. The record establishes that the decedent was a patient of defendant Franklin Price, M.D. between 1995 and 1999. Decedent, among other things, suffered from diabetes, was overweight, and smoked. Dr. Price repeatedly urged decedent to lose weight and quit smoking. According to Dr. Price, decedent preferred to manage his diabetes through diet and exercise rather than through medication. Decedent had little success losing weight or lowering his high cholesterol levels over the years. Ultimately, Dr. Price prescribed medication for him in April 1999. During the course of decedent's treatment, Dr. Price interpreted EKGs performed on decedent in 1995, 1997, 1998 and 1999. {¶ 3} On April 12, 1999, decedent underwent a physical and EKG. Dr. Price stated that he was "a little concerned about the V-6" on that particular EKG, which prompted him to advise decedent to see a cardiologist, Dr. James Lane, for a stress test within the next 30 days. Dr. Price's office notes from that visit indicate "we will give [Mr. Smith] the name of Dr. James Lane at Severence." Dr. Price's receptionist stated at trial that she had no recollection of decedent or a referral to Dr. Lane. Decedent returned to Dr. Price's office on April 26, 1999. Dr. Price did not follow-up on the referral to the cardiologist at that time. {¶ 4} Plaintiff suggests that Dr. Price failed to refer decedent to the cardiologist and/or that Dr. Price was negligent in not following up on the referral or not considering such referral as being urgent. She states that decedent would have told her about any referral; would have complied with the doctor's instructions to see Dr. Lane; and would have put an appointment card on the refrigerator, as was his habit. Dr. Price corroborated that decedent was generally a compliant patient. The evidence reflects that when Dr. Price previously referred decedent to another physician for potential prostrate cancer, decedent complied and ultimately underwent surgery. {¶ 5} Plaintiff's expert, Dr. Glasser, testified that Dr. Price breached the standard of care in his treatment of decedent. In Dr. Glasser's opinion, the EKGs, when read in conjunction with decedent's history and risk factors, should have raised a concern of underlying heart disease. Dr. Glasser further testified that decedent should have been prescribed medication to lower the risk of heart disease and failure to do so was a breach of the standard of care. Defendants' experts disagree and all testified that Dr. Price met the standard of care under the guidelines that existed during the relevant time of treatment which were known as ATP II.1 The ATP guidelines changed in 2001, which required certain individuals to be placed on statin drugs who were not required to be medicated under the previous guidelines of ATP II. The studies precipitating these changes were in medical publications in the 1990s. {¶ 6} Defendants moved to exclude Dr. Glasser's testimony the day after he had completed his testimony. The court denied the motion. Plaintiff's damages expert determined the economic loss to be between $400,000 and $585,000 and the loss of services to be between $55,459 and $94,476. In addition, plaintiff (who is decedent's widow), and her two adult children testified about the impact that the loss of their husband and father has had on each of them emotionally. Additionally, plaintiff related that she has assumed a second job that requires her to travel across the nation in order to make ends meet in the absence of her late husband's income. Decedent's daughter further testified that she could no longer afford the tuition at the college she attended prior to her father's death. {¶ 7} At the close of plaintiff's case and that of the defense, defendants moved for a directed verdict, which the court denied. The jury returned a verdict in favor of plaintiff in the amount of $3,500,000.00. In response to the jury interrogatories, six jurors found that Dr. Price had failed to exercise ordinary, reasonable care in his care and treatment of Lawrence Smith by "failure to follow-up on referral to cardiologist" and "lack of credibility of witnesses" and that such proximately caused the death of Mr. Smith. {¶ 8} The trial court denied defendants' post-trial motions for new trial and remittitur. The trial court granted plaintiff's motion for prejudgment interest after an evidentiary hearing. Defendants appeal raising five assignments of error for our review, which we will address in the order asserted and together where it is appropriate for discussion. {¶ 9} "I. The trial court erred in failing to exclude the testimony of plaintiff-appellee's expert, Stephen Glasser, MD, since Dr. Glasser failed to satisfy the qualification requirements pursuant to Evid.R. 601(D)." {¶ 10} "The qualification of competency of a witness to testify as an expert * * * rests with the trial court, and on appeal, its ruling with respect to such matters will ordinarily not be reversed unless there is a clear showing that the court abused its discretion.'" McCrory v.State (1981), 67 Ohio St.2d 99, 105, quoting Ohio Turnpike Comm. v.Ellis (1955), 164 Ohio St. 377, paragraph eight of the syllabus [other citations omitted]. An abuse of discretion is defined as a decision that is unreasonable, arbitrary or unconscionable, rather than a mere error in judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. {¶ 11} In relevant part, Evid.R. 601 provides that "Every person is competent to be a witness except * * * {¶ 12} "(D) A person giving expert testimony on the issue of liability in any claim asserted in a civil action * * * arising out of the diagnosis, care or treatment of any person by a physician * * * unless the person testifying is licensed * * * and unless the person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school. * * *" {¶ 13} In McCrory, the Ohio Supreme Court held that time-conducting research qualifies as work "so related or adjunctive to patient care as to be necessarily included in the definition of "active clinical practice" for purposes of determining fault or liability in a medical claim. See McCrory, supra, at syllabus; accord Robertson v. Univ.Hospitals of Cleveland, Cuyahoga App. No. 81150, 2002-Ohio-6508, ¶ 35 (finding that "[p]ursuant to McCrory the time [the physician] dedicates to research is considered `active clinical practice.' He, therefore, clearly meets the criteria of Evid.R. 601(D).") {¶ 14} The purpose of Evid.R. 601 is to discourage witnesses who devote the majority of their time as being expert witneses and who consequently "lack experiential background in the very field they seek to judge" from testifying against their fellows. McCrory,67 Ohio St.2d at 103; see, also, Crosswhite v. Desai (1989), 64 Ohio St.3d 170, 176-177, quoting McCrory and Wise v. Doctors Hosp. (1982), 7 Ohio App.3d 331,334. "`The rule merely establishes the competence of the witness and the parties are free to attack the credibility of the witness who spends little time in clinical practice.'" Id., quoting Wise,7 Ohio App.3d at 334. In Crosswhite, the court observed that in effectuating the purposes of the Rule, its limitations should not be applied so narrowly that the right of redress in a medical claim collapses under an undue burden. Instead, "once established, the quality of [the expert's] experiential base and the credibility of the witness is subject to attack through cross-examination. {¶ 15} No one disputes the qualification of the estate's witness as an expert but only whether he dedicated the requisite amount of his "professional time to the active clinical practice" as required by the rule. On direct examination, the estate's expert testified that he spent all of his time in the clinical practice. In addition, he testified that while epidemiologists generally do not do individual patient care, he indicated that this was not true of him. When asked if his teaching responsibilities encompassed 60 to 80 percent of his professional time, he stated "not currently." When pressed, he explained that the burden of his teaching responsibilities decrease linearly with each passing month. He also elaborated that his research interests are "in the treatment of patients with ischemic heart disease, coronary artery disease, high blood pressure and prevention" and that this is "patient-based research." Moreover, he explained that he could not teach patient-based research unless he was involved in patient-based research; he could not teach people about individual patient care unless he was involved in it; and he needs his background as an internist and cardiologist to be able to teach "as well as to continue to take care of patients." {¶ 16} Ultimately, the following testimony was elicited: {¶ 17} "Q. Now, you were asked to explain the percentage that you spend teaching, okay. Would you explain to us at this point, what is the percentage of time that you spend in time managing patients, treating patients in the clinical practice of medicine at the present time? {¶ 18} "A. So, I guess I need to have clarification because you're talking about what I would consider patient care, patient-based research and other things? {¶ 19} "Q. Yes. {¶ 20} "A. As we speak today, not yesterday or — {¶ 21} "Q. Correct. {¶ 22} "A. About fifty percent." (Tr. 197). {¶ 23} Applying the foregoing testimony to the applicable law, we find that the trial court did not abuse its discretion by finding the estate's witness competent to testify under Evid.R. 601(D). It is apparent that this witness' testimony adequately established that he has been engaged in medical professional work so related or adjunctive to patient care as to be a part of it. The nature, value, and extent of that experience is a matter of credibility rather than one of competence under the Rule. {¶ 24} Based upon the foregoing, Assignment of Error I is overruled. {¶ 25} "II. The jury's verdict was a result of improper and prejudicial closing arguments by plaintiff-appellee's counsel." {¶ 26} It is well settled that counsel is accorded wide latitude in opening statements and closing arguments. "Included within the bounds of permissible argument are references to the uncontradicted nature of the evidence presented by the advocate. * * * The assessment of whether the permissible bounds of closing argument have been exceeded is, in the first instance, a discretionary function to be performed by the trial court. Such determination will not be reversed on appeal absent an abuse of discretion." Pang v. Minch (1990), 53 Ohio St.3d 186, paragraphs two and three of the syllabus. Only if the circumstances are of such reprehensible and heinous nature as to constitute prejudice will this Court reverse a judgment. Hunt v. Crossroads Psychiatric Psychological Ctr. (Dec. 6, 2001), Cuyahoga App. No. 79120, citingKubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 688, other citation omitted. {¶ 27} During rebuttal closing arguments, plaintiff's counsel commented upon defendants failure to call Dr. Lane as a witness.2 Dr. Price had testified that he instructed the decedent to see Dr. Lane for a stress test. Dr. Price went on to state that he referred all of his patients in need of a cardiologist to Dr. Lane. Plaintiff questioned whether the referral was ever made. Dr. Lane did not testify at trial. {¶ 28} Plaintiff's counsel speculated about what Dr. Lane might have said had he testified. Defendants objected and the trial court overruled this objection. On appeal, defendants assert that trial counsel's comments were designed to mislead the jury and arouse a verdict borne of passion and prejudice. {¶ 29} After careful review, we do not find that the identified comments were so reprehensible and heinous in nature as to merit reversal under the abuse of discretion standard. See Mesina v. Lewis (Feb. 10, 1992), Butler County App. No. CA91-03-050, citing, generally, Mead Corp.v. Lane (1988), 54 Ohio App.3d 59, 67. {¶ 30} While it is improper to comment upon evidence not in the record, Dr. Price specifically testified about decedent's alleged referral to Dr. Lane as part of his defense.3 Trial counsel did not purport to know what Dr. Lane would have said but instead speculated as to what he might have said had he seen plaintiff's EKG's. We do not find that the trial court abused its discretion in allowing counsel this latitude under the particular circumstances of this case. {¶ 31} Other Ohio and federal courts have observed that it is proper to comment in closing arguments on opposing party's failure to call a person "who, under the circumstances, would have been presumed to be a witness on that party's behalf." Cook v. Krause (May 5, 1978), Ottawa County App. No. OT-77-13, citing Chesapeake Ohio Ry. Co. v.Richardson, 116 F.2d 860 (6th Cir. 1941), certiorari denied, 313 U.S. 574;Penny v. Thurman (1972), 34 Ohio App.2d 190. {¶ 32} Moreover, the court specifically instructed and reminded the jury that closing arguments of counsel are not evidence. (Tr. 569). We are to presume that the jury followed the instructions of the trial court. Pang v. Minch (1990), 53 Ohio St.3d 186. For these reasons, Assignment of Error II is overruled. {¶ 33} "III. The jury's verdict was against the manifest weight of the evidence. {¶ 34} "IV. The jury's award of $3.5 million was clearly excessive and a result of passion and prejudice." {¶ 35} "In Ohio, it has long been held that the assessment of damages is so thoroughly within the province of the jury that a reviewing court is not at liberty to disturb the jury's assessment absent an affirmative finding of passion and prejudice or a finding that the award is manifestly excessive." Moskovitz v. Mt. Sinai Med. Ctr. (1994),69 Ohio St.3d 638, 655 citing Toledo, Columbus Ohio River RR. Co.v. Miller (1923), 108 Ohio St. 388, 402-403. Further, the trial judge is in the best position to determine whether an award is manifestly excessive or influenced by passion and prejudice. Id., citing, generally, Villella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36, 40 and Larrissey v. Norwalk Truck Lines, Inc. (1951), 155 Ohio St. 207,219. The trial judge's refusal to set the verdict aside and denial of a motion for a new trial is entitled to deference. Id. {¶ 36} In determining whether passion or prejudice influenced a jury's verdict to merit a new trial, the court should consider the amount of damages returned and ascertain whether the record discloses that the verdict was induced by: "(a) admission of incompetent evidence, (b) by misconduct on the part of the court or counsel, or (c) by any other action occurring during the course of the trial which can reasonably be said to have swayed the jury in their determination of the amount of damages that should be awarded." Fromson Davis Co. v. Reider (1934), 127 Ohio St. 564, paragraph 3 of the syllabus. The mere size of the verdict will not support a finding of passion or prejudice. Sindelv. Toledo Edison Co. (1993), 87 Ohio App.3d 525, 532. {¶ 37} A trial court's denial of a motion for new trial is subject to reversal only if the trial court abused its discretion. Dillon v.Bundy (1991), 72 Ohio App.3d 767, 773, citing Yungiwirth v. McAvoy (1972), 32 Ohio St.2d 285 [other citations omitted]. The trial court does not abuse its discretion in denying a motion for a new trial where the verdict is supported by substantial competent, credible evidence. Id. "A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not." Seasons Coal Co. v.Cleveland (1984), 10 Ohio St.3d 77, 81. {¶ 38} Defendants contend that no reasonable juror could have found plaintiff's liability expert more credible than defendants' experts. Defendants base this opinion upon their belief that plaintiff's expert was not qualified to testify. We have previously found that the trial court did not err in finding plaintiff's expert qualified to testify. While defendants' experts outnumber the conflicting testimony of plaintiff's sole expert, this alone does not merit reversal. {¶ 39} "The mere number of witnesses, who may support a claim of one or the other of the parties to an action, is not to be taken as a basis for resolving disputed facts. The degree of proof required is determined by the impression, which the testimony of the witnesses makes upon the trier of facts, and the character of the testimony itself. Credibility, intelligence, freedom from bias or prejudice, opportunity to be informed, the disposition to tell the truth or otherwise, and the probability or improbability of the statements made, are all tests of testimonial value. Where the evidence is in conflict, the trier of facts may determine what should be accepted as the truth and what should be rejected as false." Cross v. Ledford (1954), 161 Ohio St. 469, 477-478, citing Rice v. Cleveland (1944), 144 Ohio St. 299. In this case, the jury cited "lack of credibility of witnesses" as a basis for its finding of liability. {¶ 40} Because there is competent, credible evidence to support the jury's verdict, a reversal under the weight of the evidence standard is not warranted. {¶ 41} Defendants also contend that the verdict was the improper result of passion and prejudice. Civ.R. 59(A)(4) allows the trial court to grant a new trial in the event of "excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice." This Court has recognized that the "[f]actors to be assessed in reviewing the exercise of discretion by the trial court under this provision include the excessive nature of the verdict, consideration by the jury of incompetent evidence, improper argument by counsel, or other improper conduct which can be said to have influenced the jury. Fields v. Dailey (1990), 68 Ohio App.3d 33, 39. To support a finding of passion or prejudice, it must be demonstrated that the jury's assessment of damages was so overwhelmingly disproportionate as to shock reasonable sensibilities. Pena v. Northeast Ohio Emergency Affiliates (1995),108 Ohio App.3d 96. The burden is on the moving party to demonstrate that passion and prejudice played a role in the jury's determination. Knor v.Parking Co. of Am. (1991), 73 Ohio App.3d 177. A reviewing court should be particularly circumspect about attributing passion or prejudice to a jury's determination of damages as that is a matter peculiarly in their province. Kluss v. Alcan Aluminum Corp. (1995), 106 Ohio App.3d 528, 539. After all, passion and prejudice are not proved by the size of the verdict. Id." Santoli v. Marbuery (May 14, 1998), Cuyahoga App. No. 72110. {¶ 42} Having thoroughly reviewed the record, we do not find that the trial court abused its discretion in denying the motion for new trial on this ground. The jury's assessment of damages was not so overwhelmingly disproportionate to the evidence that it would shock reasonable sensibilities. Plaintiff's damages expert established the economic loss resulting from Mr. Smith's death in the range between $400,000 and $585,000 in addition to the value of his lost services ranging up to $94,476. The jury also heard testimony from decedent's wife of over 30 years and his two children. {¶ 43} We do not find that the jury was influenced by incompetent evidence, improper argument by counsel, or other improper conduct that would have improperly influenced it in rendering its verdict. {¶ 44} Lastly, we address the trial court's denial of defendants' alternative motion for remittitur. "Low compensatory damages and high punitive damages assessed by a jury are not in and of themselves cause to reverse the judgment or to grant a remittitur, since it is the function of the jury to assess the damages and, generally, it is not for the trial or appellate court to substitute its judgment for that of the trier of fact. A large disparity, standing alone, is insufficient to justify a court's interference with the province of the jury." Villella v. WaikemMotors, Inc. (1989), 45 Ohio St.3d 36, 40. "The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct."Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638,651. Given the nature of the evidence in the record, the trial court did not err in denying defendants' alternative motion for remittitur. {¶ 45} Assignments of Error III and IV are overruled. {¶ 46} "V. The trial court erred in granting prejudgment interest in favor of plaintiff-appellee." {¶ 47} The focus of our review is the application of R.C. 1343.03(C), which provides as follows: {¶ 48} "Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case." {¶ 49} It is not the purpose of this statute to penalize those who go to trial. Avondet v. Blankstein (1997), 118 Ohio App.3d 357, 370, citing Hardiman v. ZEP Mfg. (1984), 14 Ohio App.3d 222, 227-228. Rather, the statute "`only affects those who choose to go to trial and then abuse the trial process, those who fail to conduct a lawsuit in good faith.'" Id. This Court continues to find that "`it would be unconstitutional to penalize a party for exercising his right to a trial.'" Id. {¶ 50} The Ohio Supreme Court has established the criteria for determining whether a party has "failed to make a good faith effort to settle" as contemplated by R.C. 1343.03(C) and directs that: {¶ 51} "A party has not `failed to make a good faith effort to settle' under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer." {¶ 52} Kalain v. Smith (1986), 25 Ohio St.3d 157, paragraph one of the syllabus. It is generally within the sound discretion of the trial court to determine whether a party's settlement efforts indicated good faith. Id. at 159, citing Huffman v. Hair Surgeon, Inc. (1985),19 Ohio St.3d 83. However, where the record reflects that a party cooperated fully in discovery, did not unnecessarily delay any of the proceedings and had a reasonable, good faith belief that they had no liability, the trial court abuses its discretion when it awards prejudgment interest against that party. Id. at 159-160. {¶ 53} It is undisputed that the plaintiff made a settlement demand upon defendants in September 2001. Plaintiff remained willing to negotiate settlement throughout the proceedings. Defendants opted not to make any settlement offer.4 The insurance claims file contained evidence from various defense consultants/experts that expressed concerns about certain EKG interpretations and the cholesterol management.5 Those concerns were echoed by plaintiff's expert's criticisms at trial. The insurance claims file further revealed a persistent awareness and concern over how the jury would receive a certain witness. The evidence and witnesses further reflected an assessment that the case was "defensible but [was] not without concerns or risks." (PJI Tr. 31). {¶ 54} The trial court granted plaintiff's motion for prejudgment interest pursuant to R.C. 1343.03(C) and the authority of Moskovitz v.Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638. The court explicitly found that "the party required to pay money in this case failed to make a good faith effort to settle the case, and the party not required to pay moneydid make a good faith effort to settle the case." The record contains evidence that supports the court's determination and precludes a finding of an abuse of discretion. {¶ 55} Alternatively, defendants contend that "R.C. 1343.03 is unconstitutional as violative of the right to a jury trial and to due process of law." The Supreme Court, however, has concluded that "R.C.1343.03(C), which authorizes an award of prejudgment interest in a tort action against a defendant who failed to act in good faith to settle, does not violate either the Due Process Clause (Sec. 16, Art. I) or the Right to Jury Trial Clause (Sec. 5, Art. I) of the Ohio Constitution by imposing a penalty for exercise of that right." Galayda v. Lake Hosp.Systems, Inc. (1994), 71 Ohio St.3d 421, paragraph two of the syllabus. The court in Galayda reasoned that the statute in "no way precludes a defendant from insisting on exercising his right to trial by jury nor does it create a `financial barrier that prevents a * * * party from taking his case to a jury.'" Id. at 426 [other citations omitted]. The court also reasoned that an award of prejudgment interest is compensatory and, thus, does not impose a penalty on defendants for exercising their right to a jury trial. Id. {¶ 56} To the extent that defendants raise additional or different arguments than those addressed in Galayda, we find those arguments equally without merit. See Edgerson v. Cleveland Electric IlluminatingCo. (1985), 28 Ohio App.3d 24, 28, citing Black v. Bell (1984),20 Ohio App.3d 84; Cox v. Fisher Fazio Foods, Inc. (1984),13 Ohio App.3d 336, 338. Accordingly, Assignment of Error V is overruled. {¶ 57} The judgment is affirmed. Judgment affirmed Patricia A. Blackmon, J., Concurs. Michael J. Corrigan, A.J., Dissents. 1 ATP stands for Adult Treatment Panel. The National Cholesterol Education Program published a report in 1993 that became known as ATP II, which were guidelines for the treatment until they were updated in 2001 by ATP III. 2 While defendants refer to additional remarks made in closing arguments they failed to assert a timely objection to those comments below. We do not find a gross and persistent abuse of privilege by counsel and therefore the defendants' arguments in this regard were waived. Eastin v. Eastin-Rossi (Dec. 1, 1988), Cuyahoga App. No. 54660, citing Norwood v. Forest Converting Co. (1984), 16 Ohio App.3d 411. 3 See Boyd v. Bridges (Jan. 13, 1998), Summit App. No. 13136. InBoyd, defense counsel commented upon his own failure to call a witness and then proceeded to supply the nature of this absent witness' testimony. Those comments are wholly distinguishable from the comments under our examination here. 4 Although defendants offered to enter a high/low agreement with plaintiff capping their potential damage at $500,000 in the midst of trial, defense counsel testified he did not consider this a settlement offer. 5 These same experts issued reports concluding that Dr. Price met the requisite standard of care for an internist yet these reports were silent on their concerns that were detailed in other documents. The reports were never produced in this case and those experts were never deposed.

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{¶ 58} While I agree that the estate's expert would have beenqualified to testify on the ultimate issue of breach of the standard of care, I believe that he was incompetent to testify due to his own admission he did not devote at least fifty percent of his time to the clinical practice of medicine as required by Evid.R. 601(D). {¶ 59} The estate's lone expert witness was a full-time professor of epidemiology at the University of Minnesota. The university recruited him to begin a program that taught physicians the methodology and ethics of patient-based research. In addition to this program, the expert was active in cardiac prevention clinics in both Minnesota and Florida. During cross-examination, the expert conceded that he had a "low percentage" of practice related to primary care medicine. In response to a question whether the expert followed patients throughout the course of their illness, the expert replied that he was not currently following any patients. When asked about his routine, the expert gave this testimony: {¶ 60} "Q. Okay. So, you're not following them now? {¶ 61} "A. Correct. {¶ 62} "Q. You have some time in the past? {¶ 63} "A. Correct. {¶ 64} "Q. You see them now on a consultive basis; do you not? {¶ 65} "A. Correct. {¶ 66} "Q. You see them on an occasion and then another doctor may see them the next time they're in, correct? {¶ 67} "A. That is true. {¶ 68} "Q. The fact of the matter, you did not follow your patients on a regular basis, true? {¶ 69} "A. Currently, no." {¶ 70} Upon further questioning, the expert admitted that it "had been a number of years" since he admitted a patient into the hospital and that he had no current plans to do so. In 1990, the expert decided not to continue as the cardiology director in Florida in order to focus on research. That same year, he stopped teaching cardiology. In 1991, he became the director of the division of clinical pharmacology at the University of South Florida, and in 1992, he became board certified in clinical pharmacology. In 1998, he moved to Minnesota where he became a professor of epidemiology at the University of Minnesota. He maintained a consulting position with the clinical pharmacology division even after moving to Minnesota. His current teaching assignments in Minnesota were "fundamentals of clinical research and literature review seminar." {¶ 71} On the issue of the precise amount of time devoted to an active clinical practice, the expert said at a deposition taken in March 2000 that he estimated that classroom teaching took up sixty to eighty percent of his time, with the remainder given to clinical trials and administration. At the time of trial in August 2002, the expert said that division of duties had changed, with his teaching duties decreasing "linearly" with each passing month. A detailed look at his teaching schedule showed that the expert taught a clinical research seminar and clinical research literature review in Spring 2000; no classes in Summer 2000; fundamentals of research in Fall 2000; clinical research project seminar in Spring 2001, no classes in Summer 2001; fundamentals of clinical research in Fall 2001; clinical research seminar in Spring 2002; and direct study in Summer 2002 (a thesis class where he guided the students in individual projects). {¶ 72} The expert's current clinical research involved the study of new drugs which explored the relationship of estrogen replacement therapy and its effect on the development and prevention of osteoporosis and cardiovascular outcomes. Finally, the expert was forced to concede that the American Medical Association listed his "major professional activity" as "research." {¶ 73} With this information, Price asked the court to strike the expert's opinions under Evid.R. 601(D). Price argued that the expert could not establish that he spent at least one-half of his professional time in the active clinical practice of cardiology. The court denied the motion by saying that "the witness doesn't have to be the best witness." {¶ 74} I am unsure what the court meant when it said "the witness doesn't have to be the best witness." In the context of expert testimony, it is true that neither party is obligated to find the "best" expert in any given field of expertise. But that wasn't a question before the court — the question was whether the estate's expert devoted at least one-half of his professional time to the active clinical practice of cardiology. The court's reason for denying the motion was non sequitur and shows that the court did not have the proper legal standard in mind when it denied Price's motion. {¶ 75} Had the court applied the proper standard to the legal question before it, it would have no choice but to find that the testimony showed rather convincingly that the estate's expert did not spend at least one-half of his time in the active clinical practice of medicine when he testified at trial. The expert conceded that he did not actively see patients, that he had not admitted a patient to the hospital for several years, and that he does not perform in-patient care. At best, the expert could be said to be engaged in clinical trials of drugs which were unrelated to cardiac care as raised as an issue in this case. At the time of trial, the expert said that among his clinical trials he was studying estrogen replacement therapy. I can see no possible means of correlating the study of estrogen replacement therapy to the issues of diagnosis and treatment of heart disease as raised in this case. It may be that the expert's research involves the effects of certain drug therapies on individual patients, but the expert rather explicitly stated that he did not see any patients as part of his research. In short, the expert did not spend at least one-half of his time in the active clinical practice of medicine. {¶ 76} The estate argues that even if we find that the expert did not devote at least one-half of his professional time to active clinical practice, he nevertheless qualifies as an expert because his activities are necessarily related to or adjunctive to patient care. In the past, the expert had significant experience in cardiology. Regardless of the merits of the expert's past qualifications, it is important to understand that Evid.R. 601(D) is a rule of competency, not qualification. The world's foremost medical expert could be rendered incompetent to testify if that expert had retired from medical practice only days before because that expert would not be "actively" engaged in clinical practice at the time of trial testimony. The lifetime of experience gained in the field — the expert's qualifications — would mean nothing for purposes of the rule. Evid.R. 601(D) is a remedial rule and like other remedial rules or statutes, "should be liberally construed and applied to effect their respective purposes." See Wellston Iron Furnace Co. v.Rinehart (1923), 108 Ohio St. 117, syllabus. The purpose of Evid.R. 601(D) is to ensure that those testifying about applicable standards of care give their testimony based on experience within the field. The expert's research had no direct relationship with the cardiac issues raised by the estate. Consequently, the expert should have been declared incompetent and his testimony on matters of expert opinion should have been stricken. I would hold that the court abused its discretion by refusing to do so. And because the estate's expert witness was its only expert witness, the record as it stands before us would not establish any evidence going to the applicable standard of care; hence, the court should have found the witness incompetent and directed a verdict in Price's favor. Accordingly, I respectfully dissent. It is ordered that appellee recover of appellants her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

2016-07-06 06:42:10.410637+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Roy H. Buck, Jr., appeals the decision of the Lorain County Court of Common Pleas, which adjudicated him a sexual predator and sentenced him to non-minimum, consecutive prison terms. This Court affirms. I. {¶ 2} On November 13, 2002, appellant pled guilty to two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4). The trial court scheduled the case for a hearing both to determine the sexual offender status of appellant and to sentence him for the convictions. On January 17, 2003, the hearing proceeded and the court found appellant to be a sexual predator and sentenced him to two three-year prison sentences, to be served consecutively. {¶ 3} Appellant timely appealed and sets forth two assignments of error for review. II. FIRST ASSIGNMENT OF ERROR "THE COURT ERRED IN MAKING A SEXUAL CLASSIFICATION DETERMINATION THAT THE OFFENDER WAS A SEXUAL PREDATOR FOLLOWING A HEARING UNDER R.C.2950.09(B)(1)WHEN THE COURT FAILED TO FIRST OBTAIN AND CONSIDER AN EXPERT REPORT FROM THE OFFENDER'S PSYCHIATRIST WHEN THE COURT WAS AWARE THAT THE OFFENDER WAS RECEIVING SEXUAL OFFENDER COUNSELING AS A CONDITION OF A COMMUNITY CONTROL SANCTION HE WAS SERVING AS A RESULT OF A PREVIOUS SEXUAL OFFENSE CONVICTION." {¶ 4} In his first assignment of error, appellant argues the trial court erred in adjudicating him a sexual predator because it failed to first obtain and consider a report from appellant's psychiatrist pertaining to his sexual offender counseling, which he was receiving as part of his community control sanction from a previous sexual offense conviction. This Court disagrees. {¶ 5} R.C. 2950.01 defines a sexual predator as a person who "has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." R.C. 2950.01(E)(1). R.C. 2950.09 sets forth factors the trial court must consider, but is not limited to, in making a sexual predator determination: "(a) The offender's * * * age; "(b) The offender's * * * prior criminal or delinquency record regarding all offenses, including, but not limited to, all sexual offenses; "(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made; "(d) Whether the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made involved multiple victims; "(e) Whether the offender * * * used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting; "(f) If the offender * * * previously has been convicted of or pleaded guilty to * * * a criminal offense, whether the offender * * * completed any sentence or dispositional order imposed for the prior offense * * * and, if the prior offense * * * was a sex offense or a sexually oriented offense, whether the offender * * * participated in available programs for sexual offenders; "(g) Any mental illness or mental disability of the offender * * *; "(h) The nature of the offender's * * * sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; "(i) Whether the offender * * *, during the commission of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made, displayed cruelty or made one or more threats of cruelty; "(j) Any additional behavioral characteristics that contribute to the offender's * * * conduct." R.C. 2950.09(B)(3)(a-j). {¶ 6} R.C. 2950.09 also provides the procedural requirements for conducting all sexual offender classification hearings and states, in relevant part: "The court shall give the offender * * * and the prosecutor who prosecuted the offender * * * for the sexually oriented offense notice of the date, time, and location of the hearing. At the hearing, the offender * * * and the prosecutor shall have an opportunity to testify, present evidence, call and examine witnesses and expert witnesses, and cross-examine witnesses and expert witnesses regarding the determination as to whether the offender * * * is a sexual predator. The offender * * * shall have the right to be represented by counsel and, if indigent, the right to have counsel appointed to represent the offender * * *." R.C.2950.09(B)(2). {¶ 7} In the instant case, the trial court conducted a sexual offender classification hearing for appellant and determined him to be a sexual predator. The court found that appellant had been previously convicted of gross sexual imposition in July of 2002. After applying the R.C. 2950.09(B)(2) factors to the facts and circumstances surrounding appellant's offenses in the present case, the court also found that appellant is likely to engage in the future in one or more sexually oriented offenses. The court noted that, at the time of the offenses, including appellant's prior conviction, appellant was in his 30's and the victims were all 10 to 12 years of age. The court also noted there were multiple victims, appellant's offenses involved sexual touching of the vaginal area of the victims, and that appellant violated his victims while they were sleeping and in a vulnerable state. Moreover, the court noted that appellant's victims included his own step-daughter and children whose parents were close friends to appellant; therefore, appellant was willing to sacrifice those close relationships of trust to perpetrate his offenses. {¶ 8} Appellant now argues that the trial court erred in adjudicating him a sexual predator because it did not obtain an evaluation from a psychiatrist he was receiving counseling from for his previous gross sexual imposition conviction. However, this Court draws attention to the fact that appellant did not request this evaluation to present at his hearing, nor did he request the court to obtain the same from the treating psychiatrist before or during his hearing. Despite appellant's failure to utilize his opportunity to present such evidence or call and examine his psychiatrist at the time of his classification hearing, appellant now claims the trial court was required to obtain the evaluation from his treating psychiatrist before adjudicating him a sexual predator. Appellant is incorrect. {¶ 9} The Ohio Supreme Court has held that an expert psychiatric evaluation is not mandatory in every case of sexual offender classification. State v. Eppinger (2001), 91 Ohio St.3d 158, 163. TheEppinger court clarified that one prior sexually oriented conviction, when considered along with evidence that falls within the list of R.C.2950.09(B)(3) recidivism factors, can establish by clear and convincing evidence that a defendant is likely to engage in one or more sexually oriented offenses in the future. Id. at 167. In appellant's case, the court found the facts of appellant's conduct met several of the recidivism factors listed in R.C. 2950.09(B)(3): he preyed on multiple victims, all young girls, children of his family and friends, and violated them while they were sleeping. The court determined these factors, along with appellant's prior gross sexual imposition conviction, established that appellant is likely to commit sexual offenses in the future. {¶ 10} After careful review of the record and applicable law, this Court cannot find that the trial court erred in adjudicating appellant a sexual predator. Appellant's first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR "THE SENTENCING COURT ERRED IN SENTENCING THE DEFENDANT TO CONSECUTIVE SENTENCES: (1) WITHOUT STATING ON THE RECORD THE COURT'S FINDINGS ON THE APPLICABLE RECIDIVISM AND SERIOUSNESS FACTORS SET FORTH IN OHIO REVISED CODE SECTION 2929.12 AND, (2) WHEN THE COURT FAILED TO STATE REASONS THAT SUPPORT A FINDING REQUIRED BY R.C. 2929.14(E)(4) FOR THE IMPOSITION OF CONSECUTIVE SENTENCES." {¶ 11} In his second assignment of error, appellant argues the trial court erred in sentencing him to consecutive sentences because it failed to state its findings and reasons for its findings on the record. This Court disagrees. {¶ 12} The Ohio Supreme Court has recently held that "[p]ursuant to R.C. 2929.14(E)(4) and 2929.19(B)(2)(c), when imposing consecutive sentences, a trial court is required to make its statutorily enumerated findings and give reasons supporting those findings at the sentencing hearing." State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, paragraph one of the syllabus. The Comer court provided the following instruction as to what the trial court must state on the record at the sentencing hearing: "A court may not impose consecutive sentences for multiple offenses unless it `finds' three statutory factors. R.C. 2929.14(E)(4). First, the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. Id. Second, the court must find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Id. Third, the court must find the existence of one of the enumerated circumstances in R.C. 2929.14(E)(4)(a) through (c). "A trial court must also comply with R.C. 2929.19(B) when imposing consecutive sentences. R.C. 2929.19 is the statute governing the sentencing hearing. R.C. 2929.19(B)(2) provides that the sentencing court `shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in all of the following circumstances: " `* * * " `(c) If it imposes consecutive sentences under [R.C.] 2929.14.' " (Emphasis sic.) Id. at ¶ 13-16. {¶ 13} In the instant case, the trial court imposed consecutive sentences upon appellant. The court stated the following on record at the sentencing hearing: "This Court finds, pursuant to R.C. 2929.14(E), that the sentences this Court will be imposing are to be served consecutively to each other, as consecutive sentences are necessary to protect the public from future crime, and are not disproportionate to the defendant's conduct and the danger the defendant poses to the public, and the Court also finds that the harm caused by defendant 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 defendant's conduct, and therefore these sentences will be ordered to be served consecutively." {¶ 14} The court then set forth its reasons for making its determination, stating the following: there were two separate victims, the offenses were committed roughly five years apart, the victims were 10 and 11 year old girls, one victim was appellant's stepdaughter, the other victim was a daughter of friends who had taken appellant in to live with them. The court also noted, as additional reasons for the imposition of consecutive sentences, that appellant admitted to conduct with another victim in his pre-sentence report and his offenses involved violations of the trust he had developed with his family and friends. {¶ 15} After careful review of the sentencing transcript, this Court finds that the trial court properly made its findings and reasons supporting those findings at the sentencing hearing pursuant to Comer. Therefore, the court did not err when it sentenced appellant to consecutive sentences. Appellant's second assignment of error is overruled. III. {¶ 16} Accordingly, appellant's two assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed. Judgment affirmed. Slaby, P.J., and Baird, J. Concur.

2016-07-06 06:42:10.444576+00

JOURNAL ENTRY AND OPINION Plaintiff-appellant Dorothy Porter (appellant) appeals from the orders of the trial court denying Porter's motion for a protective order and, instead, granting defendant-appellee Litigation Management, Inc.'s motion to compel. For the following reasons, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion. On or about January 6, 1997, Porter commenced an employment relationship with Litigation Management, Inc. (LMI). On February 19, 1997, LMI terminated Porter. On December 18, 1997, Porter filed a complaint against LMI and four John and Jane Doe defendants in the Cuyahoga County Court of Common Pleas. In her complaint, appellant averred the following seven counts: breach of contract, breach of implied contract, promissory estoppel, intentional infliction of emotional distress, fraud, negligent misrepresentation, and defamation. On March 5, 1998, LMI filed a motion to dismiss Porter's complaint. In a journal entry filed on June 10, 1998, the trial court dismissed Porter's claims of negligent misrepresentation and defamation. On October 11, 1998, Porter voluntarily dismissed her claim of intentional infliction of emotion distress. Discovery continued on Porter's remaining claims, viz., breach of contract, breach of implied contract, promissory estoppel and fraud. On February 2, 1999, LMI filed a motion to compel. In its supporting brief, LMI requested a court order compelling Porter to answer discovery related to her physical and mental state during her employment. In support of its motion, LMI stated in part: * * * Defendant contends that Plaintiff was terminated for her irrational and inflammatory behavior toward co-workers, and her inability to deal with the numerous responsibilities of her higher paying executive position. Testimony given in Plaintiff's deposition revealed that Plaintiff may have had a physical or mental condition that would explain her behavior and inability to perform. * * * In particular, Porter acknowledged that she was taking Ritalin during her deposition on December 3, 1998. On February 12, 1999, Porter filed a motion for protective order. In journal entries filed on February 19, 1999, the trial court granted LMI's motion to compel and denied Porter's motion for protective order. Therefrom, Porter filed a timely notice of appeal with this court. I. [THE] TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT GRANTED DEFENDANT'S MOTION TO COMPEL (AND OVERRULED PLAINTIFF'S MOTION FOR PROTECTIVE ORDER) THEREBY ALLOWING DEFENDANT UNLIMITED ACCESS TO PRIVILEGED MEDICAL AND PSYCHOLOGICAL INFORMATION WHERE PLAINTIFF DID NOT MAKE HER CONDITION AN ISSUE BY MAKING CLAIMS FOR PHYSICAL OR MENTAL INJURIES. II. [THE] TRIAL COURT FURTHER ERRED AND ABUSED ITS DISCRETION WHEN IT GRANTED DEFENDANT'S MOTION TO COMPEL AND DENIED PLAINTIFF'S MOTION FOR PROTECTIVE ORDER SINCE IT DID SO WITHOUT LIMITATION WHEN DEFENDANT'S REQUESTS ARE ADDITIONALLY OBJECTIONABLE AS THEY ARE VASTLY OVERBROAD AND WERE NOT MADE SUBJECT TO A CONFIDENTIALITY ORDER. In her first and second assignments of error, Porter argues that the trial court abused its discretion when it granted LMI's motion to compel and denied Porter's motion for a protective order. Generally, the trial court has broad discretion in controlling the discovery process. See, e.g., BFI Waste Systems of Ohio v. Garfield Hts. (1994), 94 Ohio App.3d 62, 75, citing Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 85; State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55. However, an appeal from the interpretation and application of R.C.2317.02(B) should be reviewed as a matter involving an issue of law. Accord Ward v. Johnson's Indus. Caterers, Inc. (June 25, 1998), Franklin App. No. 97APE11-1531, unreported. In Ohio, the physician-patient privilege is governed by R.C.2317.02(B). As a general rule, a physician may not testify concerning a communication made to the physician by a patient. R.C. 2317.02(B)(1). Privileged physician-patient communication includes medical records. See State v. Bourdess (Oct. 7, 1999), Cuyahoga App. No. 74842, unreported. However, there are situations where the physician-patient privilege is waived or is otherwise inapplicable. In general, the privilege does not apply when the patient files a civil action. R.C. 2317.02(B)(1)(a)(iii). R.C. 2317.02(B)(1)(a)(iii) is limited in scope by R.C. 2317.02(B)(3)(a), which provides: (3)(a) If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(1)(a)(iii) of this section, a physician or dentist may be compelled to testify or to submit to discovery under the Rules of Civil Procedure only as to a communication made to the physician or dentist by the patient in question in that relation, or the physician's or dentist's advice to the patient in question, that related causally or historically to physical or mental injuries that are relevant to issues in the medical claim, dental claim, chiropractic claim, or optometric claim, action for wrongful death, other civil action, or claim under Chapter 4123. of the Revised Code. (Emphasis added.) Pursuant to R.C. 2317.02(B)(3)(a), [o]nly those communications (which includes medical records) that relate causally or historically to the injuries relevant to the civil action may be discovered. Ward, supra. Ohio appellate courts have found that the physician-patient privilege does not apply when the patient files a civil action which directly places the patient's physical or mental condition at issue. See Kutz v. Ohio Educ. Assoc. (Mar. 16, 1995), Franklin App. No. 94APE06-781, unreported (Privilege was not applicable because the handicap discrimination charge filed by appellant with OCRC constitutes a civil action which places appellant's physical and mental health at issue because the charge requires a determination both as to whether appellant is handicapped, and whether appellant can safely perform the duties of her job.) See also Cully v. St. Augustine Manor (Apr. 20, 1995), Cuyahoga App. No. 67601, unreported (Employee's psychological condition was undeniably relevant to her claim that she suffered severe emotional distress.); Humble v. Dobson (Nov. 1, 1996) Champaign App. No. 95-CA-12, unreported (The plaintiff filed a medical malpractice action involving surgery to his left knee and, therefore, waived the physician-patient privilege with regard to all matters causally and historically related to his knee injury.); National City Bank v. Rainer (Aug. 12, 1999), Franklin App. No. 98-AP-1170, unreported ([A]ppellant's counterclaims filed in this case seeking recovery for emotional distress injuries allegedly caused by appellee's conduct constituted a waiver of the physician-patient privilege as to such conditions.). In the instant case, Porter has four remaining claims against LMI: breach of contract, breach of implied contract, promissory estoppel and fraud. Porter's claims do not directly place her physical or mental condition at issue. Notwithstanding, LMI insists that Porter's mental health was at issue in the instant case because she was terminated for irrational and inflammatory behavior. Upon review of the record on appeal, we find the trial court failed to make any finding that would justify granting LMI unlimited access to Porter's medical records. We surmise that most, if not all, of the subject medical records will have absolutely no relevance to the issues of the underlying case. As such, the trial court's orders are clearly overbroad in their scope. Based upon the foregoing, we find that the trial court abused its discretion when it granted LMI unlimited access to Porter's medical records. Porter's first and second assignments of error are sustained. The judgment of the trial court is reversed, and the challenged orders are vacated. Upon remand, we direct the trial court to conduct an in camera inspection of the requested medical records to determine which records, if any, are pertinent to LMI's defense. The trial court should only permit the discovery of medical information that relates to the issues of this case. Further, the release of any relevant medical information must be limited by a confidentiality order. The judgment of the trial court is reversed, and this case is remanded for further proceedings consistent with this opinion. The judgment of the trial court is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is ordered that appellant recover of appellee her costs herein taxed. 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. TIMOTHY E. McMONAGLE, P.J. and MICHAEL J. CORRIGAN, J. CONCUR. __________________________ LEO M. SPELLACY, JUDGE

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OPINION On July 16, 1999, Appellant was arraigned and pled not guilty in Case NO. 99 CRB 590 for one count of Underage Consumption of Beer, a first degree misdemeanor. On August 31, 1999, appellant changed his plea and entered a plea of guilty to said charge. On October 11, 1999, appellant was arraigned and pled not guilty on a separate charge of Underage Consumption of Beer, a first degree misdemeanor, in Case No. 99 CRB 964. On November 17, 1999, appellant was sentenced to 180 days in the Knox County jail on Case No. 99 CRB 590 and began serving said sentence immediately. On November 17, 1999, appellant withdrew his former plea of not guilty and entered a plea of guilty in Case No. 99 CRB 964. The trial court ordered a pre-sentence investigation in Case No. 99 CRB 964. On February 28, 2000, the trial court sentenced appellant in Case No. 99 CRB 964 to 180 days in the Knox County jail but stayed imposition of the sentence pending acceptance into and completion of the Spencer House Program, an alcohol treatment program. On March 6, 2000, the Court was notified that appellant was denied admission into the Spencer House Program. As a result, the trial court imposed the original 180 day sentence in Case No. 99 CRB 964 and gave appellant jail time credit in this case for the time he had served from February 28, 2000, the date of sentencing. Appellant served 77 days concurrently in Case No. 99 CRB 590 and 99 CRB 964 from February 28, 2000, to May 15, 2000, which marked the completion of his 180 sentence in Case No. 99 CRB 590. Appellant served seven days from May 15, 2000, to May 22, 2000, solely on Case NO. 99 CRB 964. On May 22, 2000, appellant was placed on intensive supervision and was released from jail. On November 14, 2000, appellant was arrested and charged with a probation violation for alcohol consumption. On December 19, 2000, at the probation violation hearing, appellant admitted to said violation, but argued that he had already served the 180 day sentence. By Judgment Entry dated December 27, 2000, the Court sentenced appellant to serve the remaining 96 days of his 180 day jail term in Case No. 99 CRB 964, crediting appellant with the 84 days he served from February 28, 2000, to May 22, 2000. It is from this decision that appellant appeals, assigning the following error: ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT DAILY CREDIT FOR HIS 104 DAYS OF INCARCERATION AFTER CONVICTION, BUT BEFORE SENTENCING, WHILE AWAITING COMPLETION OF A PRE-SENTENCE INVESTIGATION, SUCH THAT APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL DOUBLE JEOPARDY RIGHTS PROTECTING HIM AGAINST MULTIPLE PUNISHMENT FOR THE SAME OFFENSE WERE VIOLATED. The Ohio legislature passed R.C. 2967.191 to enable defendants to receive credit for time spent awaiting trial. The statute provides: OH ST §§ 2967.191CREDIT FOR CONFINEMENT AWAITING TRIAL AND COMMITMENT The department of rehabilitation and correction shall reduce the stated prison term of a prisoner or, if the prisoner is serving a term for which there is parole eligibility, the minimum and maximum term or the parole eligibility date of the prisoner by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine the prisoner's competence to stand trial or sanity, and confinement while awaiting transportation to the place where the prisoner is to serve the prisoner's prison term. The power to credit a defendant for jail time does not rest with trial court. Moss v. State 1986 WL 849 (Ohio App. 4 Dist.) The statute vests the authority to give jail time credit in the Department of Rehabilitation and Correction, not in the sentencing court. Id. The trial court makes the factual determination as to the actual number of days which may be credited by law to the defendant, and then submits same to the Department of Rehabilitation and Correction. State v. Smith (1992), 71 Ohio App.3d 302. The Department of Rehabilitation and Correction may give credit only for jail time served in relation to the charge upon which a defendant is sentenced. Moss, supra. In the case sub judice, the Appellant was not sentenced in Case No. 99 CRB 964 until February 28, 2000. The time served by the Appellant from November 17, 1999, to February 28, 2000, was time served solely on Case No. 99 CRB 590, which was a separate, unrelated offense from Case No. 99 CRB 964. Appellant argues that the failure of the trial court to give him credit for the time he served from November 17, 1999, to February 28, 2000, violated his federal and state constitutional Double Jeopardy rights. While it is true that Appellant was in jail from the time of entering his plea until his sentencing in Case No. 99 CRB 964, such jail time was due to the serving of his sentence in Case No. 99 CRB 590. The Double Jeopardy Clause states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."Fifth Amendment to the United States Constitution; see, also, Section 10, Article I, Ohio Constitution. Although the Double Jeopardy Clause was commonly understood to prevent a second prosecution for the same offense, the United States Supreme Court has applied the clause to prevent a state from punishing twice, or from attempting a second time to criminally punish for the same offense. See Kansas v. Hendricks,521 U.S. at 369, 117 S.Ct. at 2085, 138 L.Ed.2d at 519; Witte v.United States (1995), 515 U.S. 389, 396, 115 S.Ct. 2199, 2204, 132 L.Ed.2d 351,361. As noted in State v. Williams (2000), 88 Ohio St.3d 513, 527-528. In State v. Uskert (1999), 85 Ohio St.3d 593, 595, the Supreme Court of Ohio discussed double jeopardy as follows: As this court recognized recently, `the Double Jeopardy Clause of each Constitution prohibits (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.' State v. Gustafson (1996), 76 Ohio St.3d at 432, citing United States v. Halper (1989), 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487, 496. Upon review, as we find the two offenses in this matter are separate and unrelated and that separate sentences were appropriate, we find appellant's rights under the Double Jeopardy Clauses of the United States and Ohio Constitutions were not violated. Furthermore, the trial did grant Appellant credit for the 77 days served concurrently in Case No. 99 CRB 590 and 99 CRB 964 from February 28, 2000, to May 15, 2000, thereby running Appellant's sentences for the two cases concurrently from the time of sentencing on February 28, 2000. For the above-stated reasons, we find Appellant's sole assignment of error not well-taken and overrule same. The judgment of the Mount Vernon Municipal Court is affirmed. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Mount Vernon Municipal Court, Knox County, Ohio is affirmed. Costs to appellant. Boggins, J. Farmer, P.J. and Hoffman, J. concur.

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OPINION {¶ 1} Appellant, Angelica Bixler, nka Kaufman ("Appellant"), appeals the judgments of the Seneca County Court of Common Pleas, Juvenile Division, that denied Appellant's motion for expanded visitation with her children, J.S. and E.B., that denied Appellant's motion for legal custody of E.B., that granted legal custody of E.B. to Aaron and Robin Fox ("Foxes") and that granted Appellee, Seneca County Department of Job and Family Services' ("SCDJFS") motion to terminate its protective supervision for both J.S. and E.B. On appeal, Appellant asserts that the trial court erred in denying her motion for expanded visitation for both J.S. and E.B.; that the trial court erred in denying her motion for legal custody of E.B. and in granting legal custody of E.B. to the Foxes; and, that the trial court erred in granting SCDJFS's motion to terminate protective supervision for both J.S. and E.B. Finding that the trial court did not abuse its discretion, we affirm the judgments of the trial court. {¶ 2} Appellant is the biological mother of E.B. and J.S.E.B. was born October 28, 2001, and J.S. was born July 1, 2003. E.B. and J.S. are half brothers. J.S.'s biological father is Appellee, Steve Smith, and E.B.'s biological father is unknown. Appellant and Smith were never married. {¶ 3} In July of 2003, SCDJFS filed two complaints alleging that E.B. and J.S. were both dependant children pursuant to R.C.2151.04(C). The children were placed in foster care pursuant to Appellant and Smith's approval. Both Appellant and Smith were given visitation with the children while they were in foster care. {¶ 4} In April of 2004, SCDJFS filed a motion to place both children in the temporary custody of the Foxes. Aaron Fox was the brother of Kenneth Kaufman, Appellant's husband during this time and the father of Appellant's third child, D.K. Subsequently, the Foxes were granted temporary custody of the children. Appellant was also granted supervised visitation with her children. {¶ 5} In June of 2004, Smith was granted temporary custody of J.S. Additionally, Appellant's visitation was expanded and was to be exercised at the discretion of SCDJFS. {¶ 6} In October of 2004, the trial court granted SCDJFS' emergency order to suspend Appellant's visitation with both children based upon an allegation of abuse of J.S. Additionally, SCDJFS amended its complaint for J.S. to have him designated an abused child. {¶ 7} In January of 2005, an adjudication hearing was held. At the hearing, Deputy Roy Sargent, a Putnam County Sheriff's Deputy, testified about the alleged abuse of J.S. The alleged abuse of J.S. was based upon bruising on his buttocks, which was found after an unsupervised visit with Appellant. According to Sargent, Appellant had told him that her husband, Kenneth Kaufman, may have spanked J.S., causing the bruising. Sargent stated that she told him she did not know what had happened for sure because she was not home at the time. {¶ 8} During the adjudication hearing, both Appellant and Smith agreed on the record that J.S. was an abused child pursuant to R.C. 2151.031(C). Additionally, Appellant agreed on the record that E.B. was a dependant child pursuant to R.C. 2151.04(C). Additionally, the trial court granted legal custody of J.S. to Smith at this time. Appellant was granted supervised visitation with both children for one hour a week. {¶ 9} Subsequently, SCDJFS filed a motion to terminate protective supervision of J.S. and to have the Foxes designated E.B.'s legal custodian. In October of 2005, a hearing was held. At that hearing, Appellant made an oral motion for legal custody of E.B. and for greater visitation with both children. At the hearing, the testimony of Tracey Kohls, a Putnam County Jobs and Family Services wraparound coordinator, Robin Fox, Kent Nord, the children's guardian ad litem, and Erin Tea, Appellant's social worker, was presented. {¶ 10} First, Tracey Kohls testified that she was a wraparound coordinator that had been working with Appellant for services in Putnam County. According to Kohls, she had been working with Appellant for approximately two and one half months. She stated during that time, she had been to Appellant's house and that it had been clean and safe. Additionally, Kohls stated that she had observed Appellant with her third child, D.K., and that Appellant was meeting D.K.'s basic needs. Kohls acknowledged that she had not witnessed Appellant with either J.S. or E.B., but stated she was satisfied that Appellant was meeting D.K.'s basic needs. {¶ 11} Robin Fox testified that she and her husband were the temporary custodians of E.B., and that they would like to receive legal custody of him. She stated that while E.B. was developmentally delayed when he came to live with her and her husband, he had made substantial improvements since he had been living with them. Robin went on to state that she objected to unsupervised visitation with Appellant, based upon comments E.B. had made after coming back from his visits with his mother. {¶ 12} Robin also testified that E.B. had been picked up by the police while her daughter was babysitting him, because he had gotten out of the house and was missing. Robin stated that SCDJFS had investigated the incident and that nothing came of the investigation. Finally, Robin stated that her husband, Aaron, was Kenneth Kaufman's brother, and that Kenneth Kaufman was a registered sex offender. She stated that she did not allow Kaufman to have visitation with E.B.; however, Kaufman had been at her in-laws' house one day while they were visiting. {¶ 13} Next, Kent Nord, the children's guardian ad litem, testified. According to Nord, it was in the children's best interest to grant legal custody of E.B. to the Foxes, to maintain the current supervised visitation schedule for Appellant and to continue protective supervision by SCDJFS. Nord acknowledged that Appellant had maintained a stable residence and employment for over a year. Additionally, he stated that she had physically completed the case plan that had been put in place by SCDJFS. However, Nord was concerned with Appellant's track record with men, which included a thirty-nine year old man named Shelton that was living in her apartment and had a criminal record. He stated that since he had been involved with her case several different men had come in and out of Appellant's life and that he did not think Appellant made good decisions regarding her children. Additionally, Nord stated that Appellant's mental health was a factor for him, and that Appellant seemed to change her stories about things to fit her needs. {¶ 14} Finally, Erin Tea, a social worker, testified. Tea acknowledged that Appellant had physically completed everything in the case plan that had been put into place by SCDJFS. However, according to Tea, Appellant had not implemented what she had been taught with the case plan. Specifically, Tea stated that during Appellant's visits with the children Appellant would get stressed and did not seem to know how to deal with the children. Tea testified that it was clear to her that Appellant was not able to apply what she was learning in her parenting classes and other parts of the case plan. {¶ 15} Tea also disagreed with Kohls assessment of Appellant's apartment. According to Tea, the last time she had been to Appellant's apartment it would not have passed a health and safety check. Additionally, D.K. was in his playpen with a full diaper, and both Appellant and Shelton appeared to be asleep when she got to the apartment in the late morning. Tea went on to state that she does not believe that Appellant should have custody of D.K. Further, Tea stated that Appellant had been involved in several unhealthy relationships since she had been working with her. Tea also stated that while she had maintained housing and employment, which did show stability, she had people coming in and out of her life, showing instability. {¶ 16} Upon review of the evidence presented, the juvenile court denied Appellant's motion for legal custody of E.B, granted legal custody of E.B. to the Foxes, denied Appellant's motion for expanded visitation with both J.S. and E.B., and granted SCDJFS' motion to terminate its protective supervision for both J.S. and E.B. It is from this judgment Appellant appeals, presenting the following assignments of error for our review. Assignment of Error No. I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN BY (sic.)DENYING THE APPELLANT'S MOTION FOR EXPANDED VISITATION RIGHTS. Assignment of Error No. II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN BY (sic.)DENYING THE APPELLANT'S MOTION FOR LEGAL CUSTODY OF [E.B.] Assignment of Error No. III THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN BY (sic.)GRANTING LEGAL CUSTODY OF [E.B.] TO AARON AND ROBIN FOX. Assignment of Error No. IV THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN BY (sic.)GRANTING THE APPELLEE SENECA COUNTY DEPARTMENT OF JOBS AND FAMILYSERVICES MOTION TO TERMINATE PROTECTIVE SUPERVISION. {¶ 17} Due to the nature of the assignments of error, we elect to address them out of order. Assignment of Error No. IV {¶ 18} In the fourth assignment of error, Appellant asserts that the juvenile court erred by granting SCDJFS' motion to terminate protective services. Specifically, Appellant argues that the trial court's grant of SDCJFS' motion to terminate protective services for both E.B. and J.S. effectively cut off her rights to her children. We disagree. {¶ 19} Initially we note that this is not a case involving permanent custody of either E.B. or J.S. Rather, the juvenile court herein granted only legal custody of the children. {¶ 20} R.C. 2151.011(B)(30) defines "permanent custody" as "a legal status that vests in a public children services agency or a private child placing agency, all parental rights, duties, and obligations, including the right to consent to adoption, anddivests the natural parents or adoptive parents of all parentalrights, privileges, and obligations, including all residualrights and obligations." (Emphasis added.) Conversely, R.C.2151.011(B)(19) defines "legal custody" as "a legal status that vests in the custodian the right to have physical care andcontrol of the child and to determine where and with whom thechild shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residualparental rights, privileges, and responsibilities." (Emphasis added.) {¶ 21} As recently pointed out by the Ohio Supreme Court inIn re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 17, "[t]he important distinction is that an award of legal custody of a child does not divest parents of their residual parental rights, privileges, and responsibilities. In the future, then, in this case, either parent may petition the court for a modification of custody." (Citations omitted.) Accordingly, Appellant's fourth assignment of error is without merit. Assignments of Error Nos. II III {¶ 22} In the second assignment of error, Appellant asserts that the juvenile court erred in denying her motion for legal custody of E.B. In the third assignment of error, Appellant asserts that the juvenile court erred in granting legal custody of E.B. to the Foxes. Because these assignments of error are interrelated, we will address them together. {¶ 23} As noted above, E.B. was adjudicated dependent. Once a child is adjudicated abused, neglected or dependent, a juvenile court may award legal custody of the child to any parent or person who files a motion requesting legal custody. R.C.2151.353(A)(3). In determining whether to grant legal custody to the parent or movant, the court must comply with R.C. 2151.42, which requires the court to consider the best interest of the child in making the custody determination. R.C. 2151.42(A). {¶ 24} On appeal, we will not reverse an award of legal custody absent an abuse of discretion. In re Nice (2001),141 Ohio App.3d 445, 455. Abuse of discretion connotes more than an error of law or judgment. Rather, it implies that the trial court's decision was unreasonable, arbitrary or unconscionable.Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. "`[L]egal custody where parental rights are not terminated is not as drastic a remedy as permanent custody.'" In re A.W.G., 12th Dist. No. CA2003-04-099, 2004-Ohio-2298, at ¶ 7, quoting Nice,141 Ohio App.3d at 455. Therefore, the trial court's standard of review in legal custody proceedings is not clear and convincing evidence, as it is in permanent custody proceedings, but is merely a preponderance of the evidence. Nice,141 Ohio App.3d at 455. "Preponderance of the evidence" means "evidence that's more probable, more persuasive or of greater probative value."State v. Finkes 10th Dist. No. 01AP-310, 2002-Ohio-1439. {¶ 25} In the case sub judice, Appellant specifically argues that because she completed the case plan and had maintained employment and housing that the juvenile court abused its discretion in denying her motion for legal custody of E.B. and in granting legal custody of E.B. to the Foxes. Upon review of the evidence, we find that the juvenile court clearly considered these issues in making a best interest determination.1 {¶ 26} In the juvenile court's judgment entry, the court went through a seventeen page analysis to determine what was in E.B.'s best interests. Specifically, the juvenile court found that E.B. was getting along well with the Foxes and that Robin Fox had stated she would keep E.B. until he was eighteen. Additionally, the juvenile court found the Foxes did not suffer any disabilities and had not been convicted of any crimes. Regarding the Appellant, the juvenile court acknowledged that Appellant had completed the case plan, but that she had "not demonstrated an application of those skills." (J.E. p. 29.) The juvenile court went on to acknowledge that Appellant had maintained housing and employment, but found that she had "not demonstrated stability with her adult relationships." Id. Finally, the juvenile court specifically noted that Nord, the guardian ad litem, and Tea believed it was in E.B.'s best interest to grant legal custody of E.B. to the Foxes and to continue supervised visitation with Appellant. {¶ 27} Based upon these, in addition to other findings, the juvenile court found by clear and convincing evidence that it was in E.B.'s best interest to grant legal custody to the Foxes. Upon review of the record, we cannot find that the juvenile court abused its discretion. Additionally, all the findings made by the juvenile court are clearly supported by the record. Accordingly, the second and third assignments of error are overruled. Assignment of Error No. I {¶ 28} In the first assignment of error, Appellant asserts that the juvenile court erred in denying her motion for expanded visitation. Again, Appellant asserts that the juvenile court abused its discretion. {¶ 29} Juvenile courts are vested with broad discretion in determining the visitation rights of a noncustodial parent.Wilson v. Redmond, 12th Dist. No. CA2003-09-033,2004-Ohio-3910, at ¶ 9, citing Appleby v. Appleby (1986),24 Ohio St.3d 39, 41. "Accordingly, while a trial court's decision with respect to visitation must be just, reasonable, and consistent with the best interest of the child, an appellate court must review a trial court's decision with respect to visitation with deference and will reverse it only if the trial court abused its discretion." Wilson at ¶ 9, citing King v.King (1992), 78 Ohio App.3d 599, 602; overruled on other grounds as recognized in Baker v. Baker (Jan. 19, 1996), 3rd Dist. No. 13-95-36. An abuse of discretion will only be found where the decision is unreasonable, arbitrary, or unconscionable.Blakemore, 5 Ohio St.3d at 219. Where "there is some competent, credible evidence to support the trial court's decision, there is no abuse of discretion." Van Vorce v. Van Vorce, 3rd Dist. No. 2-04-11, 2004-Ohio-5646, at ¶ 15, citing Kramer v. Kramer, 3d Dist. No. 13-02-03, 2002-Ohio-4383 at ¶ 11, citing Ross v. Ross (1980), 64 Ohio St.2d 203, 208. {¶ 30} A noncustodial parent's right of visitation is a natural right and should be denied only under extraordinary circumstances. Pettry v. Pettry (1984), 20 Ohio App.3d 350,352. The party contesting the visitation has the burden of proving by clear and convincing evidence that such an extraordinary circumstance exists. Hoppel v. Hoppel, 7th Dist. No. 03 CO 56, 2004-Ohio-1574, at ¶ 44, citing Pettry, 20 Ohio App.3d at paragraph one of the syllabus. {¶ 31} In the case sub judice, Appellant has not been completely denied visitation with either E.B. or J.S. As noted above, after the children were originally removed from her custody, she and Smith were granted supervised visitation. Subsequently, Appellant was granted unsupervised visitation with the children; however, unsupervised visitation was ended following the alleged abuse of J.S. Appellant never denied that abuse had taken place, during her visit with J.S. Additionally, she agreed to have J.S. adjudicated an abused child during the January 2005 hearing. Appellant was then granted supervised visitation with the children of one hour per week. {¶ 32} In October of 2005, Appellant requested expanded visitation with her children during the adjudication hearing. Following the presentation of the evidence, the juvenile court denied Appellant's motion for expanded visitation, finding it was in the children's best interests to maintain the current supervised visitation with Appellant of one hour per week. {¶ 33} Upon review of the evidence, we cannot find that the trial court abused its discretion in making this determination. Again, both Nord and Tea testified that it was not in the children's best interests to grant Appellant's motion for expanded visitation. Both Nord and Tea testified that supervised visitation should continue. Nord did testify that Appellant was making progress; however, he and Tea both testified that she still was not demonstrating she was learning from her case plan. {¶ 34} Because we cannot find that the juvenile court abused its discretion in denying Appellant's motion for greater visitation, the first assignment of error is overruled. {¶ 35} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgments of the trial court. Judgments affirmed. Bryant, P.J., and Cupp, J., concur. 1 We note that the trial court relied upon R.C. 3109.04 to make its best interest determination. While R.C. 3109.04 is found within Title 31, the Domestic Relations section of the Revised Code, we find that section to be sufficient to make a best interest determination herein because Title 21, the Probate and Juvenile section of Revised Code, contains no definitive standard.

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JOURNAL ENTRY AND OPINION {¶ 1} Plaintiffs, Jennifer and David Olah, appeal the trial court granting the motion of defendant, Ganley Chevrolet, to stay proceedings pending arbitration, pursuant to R.C. 2711.02. {¶ 2} In October, 2004, plaintiffs purchased a 2004 Chevrolet Aveo from defendant. Before deciding to purchase the vehicle, plaintiffs maintain that defendant consistently represented that the vehicle was brand new. Plaintiffs executed a purchase agreement that included an arbitration clause. {¶ 3} When plaintiffs discovered that the vehicle was not new when they purchased it, they filed suit against defendant. In their Complaint, plaintiffs asserted various claims against defendant, including violations of the Ohio Consumer Sales Practices Act, breach of contract, violation of the Motor Vehicle Sales Rule, along with fraud and deceit. {¶ 4} Instead of filing an answer to plaintiffs' Complaint, defendant filed a motion to stay. In that motion, defendant argued that when the plaintiffs signed the purchase agreement, they agreed to arbitrate any disputes arising out of the purchase transaction. {¶ 5} Plaintiffs responded to the motion to stay and argued that the arbitration clause was unconscionable and, therefore, unenforceable. The trial court disagreed and granted defendant's motion to stay.1 Plaintiffs timely appeal2 the trial court's judgment and present one assignment of error for review: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED APPELLEE'S MOTION FOR STAY OF PROCEEDINGS. {¶ 6} Plaintiffs argue that the trial court erred in granting defendant's motion to stay, because the arbitration provision included in their purchase agreement was unconscionable and, therefore, unenforceable. {¶ 7} Whether an arbitration clause is unconscionable is a question of law. Ins. Co. of North Am. v. Automatic SprinklerCorp. (1981), 67 Ohio St.2d 91, 98, 423 N.E.2d 151. This court, however, "does not agree upon the standard of review applicable to a trial court's decision denying a stay of proceedings and referral to arbitration. Several panels have held that questions regarding whether the parties have made an agreement to arbitrate is a question of law requiring de novo review, while others have held that the appropriate standard is whether the trial court abused its discretion in rendering its decision."3Shumaker v. Saks, Inc., Cuyahoga App. No. 86098,2005-Ohio-4391, at ¶ 6. As in Shumaker, we conclude that the trial court in the case at bar, erred regardless of the review standard we apply to the facts. {¶ 8} Resolving disputes through the extra-judicial process of arbitration is generally favored in the law. Williams v.Aetna Fin. Co., 83 Ohio St.3d 464, 471, 1998-Ohio-294,700 N.E.2d 859. An agreement to arbitrate is typically viewed "as an expression that the parties agree to arbitrate disagreements within the scope of the agreement, and, with limited exceptions, such an agreement is to be upheld just as any other contract."Vanyo v. Clear Channel Worldwide, 156 Ohio App.3d 706,2004-Ohio-1793, at ¶ 8, 808 N.E.2d 482. {¶ 9} R.C. 2711.024 requires, with some exceptions, a trial court to stay proceedings when a party demonstrates that a written agreement exists between the parties to submit the issue to arbitration. Determining whether an arbitration agreement is enforceable, however, is further explained by R.C. 2711.01(A), which, in relevant part, provides as follows: A provision in any written contract * * * to settle by arbitration a controversy that subsequently arises out of the contract, * * * or any agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, or arising after the agreement to submit, from a relationship then existing between them or that they simultaneously create, shall be valid, irrevocable, and enforceable, except upon grounds that exist atlaw or in equity for the revocation of any contract. (Emphasis added.) {¶ 10} As a matter of law, an arbitration clause is not enforceable if it is found to be unconscionable. Williams, supra, at 471. {¶ 11} The Tenth Appellate District has analyzed the issue of unconscionability as it applies to arbitration in an automobile purchase agreement. In Battle v. Bill Swad Chevrolet, Inc., (2000), 140 Ohio App.3d 185, 746 N.E.2d 1167, plaintiff purchased a used car from defendant. Before the purchase, she specifically asked whether the car had ever been in an accident. The salesman told her "no." After signing the purchase agreement, which included an arbitration clause, she learned that the vehicle had been in two accidents. She also discovered that the damage from the more serious of the two crashes had never been repaired but only concealed with "bondo." {¶ 12} After she filed suit, defendant filed a motion to stay and requested the case be referred to arbitration as required by the arbitration clause in the purchase agreement. In response, she argued, among other things, that the arbitration clause was unconscionable. On grounds unrelated to unconscionability, the trial court denied her motion to stay. {¶ 13} The appellate court vacated the trial court's judgment and remanded the case with instructions to determine specifically whether the arbitration clause was unconscionable. The court explained: Assuming appellee's allegations are true, a company with far superior knowledge of the situation concealed very damaging information about its product from a far less knowledgeable consumer in a transaction which is among the most expensive transactions engaged in by the average consumer. Further, the product purchased is of critical importance to the consumer. If the vehicle purchased fails to perform its basic function of providing reliable transportation, the impact on the consumer can be devastating, especially if the consumer is not a wealthy person. Id., at 191-192. The court further commented: "Transactions involving modern day necessities such as transportation deserve especially close scrutiny before an arbitration clause is enforced by the courts." Id. This court has previously emphasized the need for scrutiny arising from the uneven field upon which the consumer and business operate. "An arbitration agreement should only be enforceable when it was freely entered into, and the circumstances should be scrutinized where a consumer is confronted with a sophisticated lending institution, and waives the constitutional right of trial. Whether the arbitration agreement is unconscionable should be reviewed by the trial court prior to granting a stay of litigation and compelling arbitration." Miller v. Household Realty Corp., Cuyahoga App. No. 81968, 2003-Ohio-3359, at ¶ 40; Hampton v. Swad, Franklin App. No. 03AP-294, 2003-Ohio-6655, ¶ 10. Unconscionability {¶ 14} "Unconscionability is generally recognized to include an absence of meaningful choice on the part of one of the parties to a contract, combined with contract terms that are unreasonably favorable to the other party." Collins v. Click Camera Video,Inc. (1993), 86 Ohio App.3d 826, 834, 621 N.E.2d 1294. "Unconscionability thus embodies two separate concepts: (1) unfair and unreasonable contract terms, i.e., `substantive unconscionability,' and (2) individualized circumstances surrounding each of the parties to a contract such that no voluntary meeting of the minds was possible, i.e., `procedural unconscionability' * * *." Id. Unconscionability is an equitable doctrine that allows a party to avoid an arbitration clause if a "`quantum' of both prongs" is established. Id, citing White Summers, Uniform Commercial Code (1988, 219, Section 4.7. {¶ 15} Substantive unconscionability, which pertains to the contract itself, "involves those factors which relate to the contract terms themselves and whether they are commercially reasonable. Because the determination of commercial reasonableness varies with the content of the contract terms at issue in any given case, no generally accepted list of factors has been developed for this category of unconscionability. However, courts examining whether a particular limitations clause is substantively unconscionable have considered the following factors: the fairness of the terms, the charge for the service rendered, the standard in the industry, and the ability to accurately predict the extent of future liability." Id. {¶ 16} "Procedural unconscionability involves those factors bearing on the relative bargaining position of the contracting parties, e.g., `age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible, whether there were alternative sources of supply for the goods in question." Id., quoting Johnson v. Mobil Oil Corp. (E.D. Mich. 1976),415 F.Supp. 264, 268. Substantive Unconscionability {¶ 17} In the case at bar, the subject arbitration clause includes the following language: ARBITRATION: ANY DISPUTE BETWEEN YOU AND DEALER (SELLER) WILL BE RESOLVED BY BINDING ARBITRATION. YOU GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT YOUR RIGHTS IN THE SALES TRANSACTION (EXCEPT FOR ANY CLAIM IN SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT ARBITRATION PROCEDURES ARESIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE AS ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO A VERY LIMITED REVIEW BY A COURT. SEE GENERAL MANAGER FOR INFORMATION REGARDING ARBITRATION PROCESS. This is the exact same language5 used in the arbitration clause at issue in Sikes v. Ganley Pontiac Honda, (Sept. 13, 2001), Cuyahoga App. No. 79015, 2001 Ohio App. LEXIS 4065, at *2, appeal after remand at Sikes v. Ganley PontiacHonda, Inc., Cuyahoga App. No. 82889, 2004-Ohio-155. {¶ 18} In Sikes, this court determined that the arbitration clause was on a preprinted form and that Ganley Pontiac Honda never provided any particular details about the arbitration to the plaintiff in that case. These two facts, though not enough to decide the unconscionability issue alone in Sikes, nonetheless, proved sufficient to send the case back to the trial court for a further determination on the question of whether the clause was unconscionable. {¶ 19} In the case at bar, plaintiffs challenge the language of the agreement. Specifically, plaintiffs argue that the language of the arbitration provision binds only plaintiffs to arbitration. The provision reads as follows: "ANY DISPUTE BETWEEN YOU AND DEALER (SELLER) WILL BE RESOLVED BY BINDINGARBITRATION. YOU GIVE UP YOUR RIGHT TO GO TO COURT." Emphasis added. Plaintiffs note that the second sentence says nothing about binding arbitration for defendant. Plaintiffs ignore, however, the first sentence. Although not written as emphatically, this sentence binds both parties to arbitration. The unequal emphasis on plaintiff's limitation, however, may mislead plaintiff. {¶ 20} There is another sentence, furthermore, that is troublesome: "ARBITRATION PROCEDURES ARE SIMPLER AND MORELIMITED THAN RULES APPLICABLE IN COURT." This statement is not only arguably not true, but also certainly ambiguous. Depending on which arbitration forum parties choose, the arbitration procedures of that forum are not necessarily simpler or more limited than the Ohio Civil Rules of Procedure or the Local Rules of Court. Often, the Rules of Evidence do not strictly apply in an arbitration. Without the evidentiary parameters provided by the Rules, the arbitration process can be unpredictable and, therefore, more difficult. Further, the sentence offers no explanation about what the word "Limited" means. The meaning of this term will depend on the type of arbitration forum selected. We further note that the arbitration clause in this case does not describe who chooses the arbitration forum or by what procedure. {¶ 21} Under scrutiny, not only does this sentence fail to provide accurate information about the arbitration process, it also fails to describe the type of arbitration forum plaintiffs will be bound to participate in and it fails to clearly explain how arbitration is "simpler and more limited." {¶ 22} Third, the language "ARBITRATOR DECISIONS ARE AS ENFORCEABLE AS ANY COURT ORDER," while true, is significantly incomplete. This statement fails to mention that the burdens are different for each party in the appeal process. An understanding of that difference is crucial to the consumer's assessment of the arbitration agreement. The ease or difficulty of enforcing an arbitration award in contrast to an order rendered by a court lies in the difference between the appellate process unique to each process. {¶ 23} Court orders can be appealed directly to an appellate court so long as there is a final appealable order. On appeal, the Rules of Appellate Procedure offer a fairly open forum for appeal of issues raised in the lower court. Those issues can be subject to a wide variety of different review standards. See, Rules of Appellate Procedure and annotations related thereto. {¶ 24} By contrast, appeal of an arbitration decision will depend on the selected forum and whatever rules it follows. Arbitration decisions are generally subject to a very narrow and strict appeal process in the common pleas and appeals courts. A binding arbitration award will be enforced unless the complaining party can demonstrate that "the arbitrators were corrupt or committed gross procedural improprieties." Bordonaro v. MerrillLynch, Pierce, Fenner Smith, Cuyahoga App. No. 82806,156 Ohio App.3d 358, 2004-Ohio-741, ¶ 6, 805 N.E.2d 1138, discretionary appeal not allowed by Bordonaro v. Merrill Lynch, Pierce, Fenner Smith, 102 Ohio St.3d 1485, 2004-Ohio-3069, 810 N.E.2d 968, Subsequent appeal at Bordonaro v. Merrill Lynch, Cuyahoga App. No. 85338, 2005-Ohio-4988. Having to show that the arbitrators were corrupt and/or committed gross procedural errors is a far more stringent and narrow standard of appellate review than is otherwise required in typical appeals. {¶ 25} Other than denying the enforceability of the arbitration clause itself, a trial court cannot vacate an arbitration award unless one of the following criteria6 is demonstrated: the award was procured by corruption, fraud, or undue means, there was evident partiality or corruption on the part of the arbitrators, the arbitrators committed misconduct in the procedural aspects of the case, or the arbitrators exceeded their powers. On appeal, the substantive merits of an arbitration award are not reviewable "absent evidence of material mistake or extensive impropriety." Id., citing Cleveland v. FOP, Lodge No. 8, (Mar. 23, 2000), Cuyahoga App. No. 75892, 2000 Ohio App. LEXIS 1173, at *7. Overturning an arbitration award on appeal is more difficult than an ordinary civil appeal from a judgment in a court of law. {¶ 26} Because crucial information about the appellate process was not divulged, we find that the arbitration provision by its incompleteness is not only confusing, but misleading and thus substantively unconscionable. Accepting the arbitration clause as written, plaintiffs could not have known what being bound to arbitration really meant. The clause does not include some very important and material information plaintiffs would have needed in order to make an informed decision about whether to agree to arbitration. Because of the absence of any details about the arbitration process that plaintiffs would be bound to, we conclude that when they signed the purchase agreement plaintiffs were substantially less informed than defendant. The clause, on its face, violates principles of equity. Moreover, the failure of the arbitration provision to divulge certain information could have induced the consumers to agree to it. Procedural Unconscionability {¶ 27} As in Sikes, supra, however, while the information we have about the arbitration clause raises a specter of doubt about whether the subject clause is unconscionable, there is other information still needed. Plaintiffs aver that defendant made numerous misrepresentations about the Aveo before they purchased it. Plaintiffs argue defendant manipulated them into not only purchasing the Aveo but also signing the purchase agreement that included the arbitration provision. Specifically, plaintiffs claim that they were rushed into signing the agreement, which, because it was part of a preprinted document, was virtually impossible to modify. Plaintiffs further argue that the arbitration provision was never explained to them. Because the arbitration clause was foisted upon them unfairly, they argue, it is therefore, unconscionable. {¶ 28} These allegations, while they raise some question about the fairness of holding plaintiffs to the arbitration clause, are not conclusive on the issue of whether the clause is unconscionable. Contrary to Collins, supra, we do not know plaintiffs' age, education, intelligence, business acumen, etc. Necessity of a Hearing {¶ 29} As this court recently held, when the circumstances of the sale are not developed sufficiently in the record to ascertain unconscionability, the trial court should conduct a hearing to decide the issue. Molina v. Ponsky, Cuyahoga App. No. 86057, 2005-Ohio-6349, at ¶ 18. See, also, Women's FederalSavings Loan Association v. Potz (Nov. 17, 1983), Cuyahoga App. No. 46690, which held that the parties should be afforded an evidentiary hearing when a contract may be unconscionable.7 {¶ 30} As I reported in my concurring opinion in Miller, supra, ¶ 43, in which Judge Anne Kilbane joined: "* * * [T]his court has repeatedly held that the trial court must conduct a hearing when the validity of an arbitration clause is in dispute." See, also, Herman v. Ganley Chevrolet, Inc., Cuyahoga App. Nos. 81143 and 81272, 2002-Ohio-7251; Meastle v. Best BuyCo., Cuyahoga App. No. 79827, 2002-Ohio-3769; Poling v.American Suzuki Motor Corp. And Ganley, Inc. (Sept. 13, 2001), Cuyahoga App. No. 78577, 2001 Ohio App. LEXIS 4074; Dunn v. L M Building, Inc. (Mar. 25, 1999), Cuyahoga App. No. 75203, 1999 Ohio App. LEXIS 1166; Ritchie's Food Distributor, Inc. v.Refrigerated Construction Services, Inc., Pike App. No. 02CA683, 2002-Ohio-3763. {¶ 31} Accordingly, because the record in this case is not sufficiently developed, we must therefore remand this matter for a hearing to develop those circumstances in order to determine whether the arbitration clause is also procedurally unconscionable and thus unenforceable. {¶ 32} For the foregoing reasons, the trial court erred in granting defendant's motion to stay proceedings pending arbitration. Plaintiffs' sole assignment of error is sustained. {¶ 33} Accordingly, we vacate the judgment of the trial court and remand this matter for proceedings consistent with this opinion. Judgment accordingly. This cause is vacated and remanded. It is, therefore, ordered that appellants recover of appellee their costs herein taxed. 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. Calabrese, Jr., J., and Kilbane, J., concur. 1 In its journal entry the court stated as follows: 02/18/2005 N/A JE D1 GANLEY CHEVROLET INC MOTION FOR STAY OF PROCEEDINGS. RUSSELL W. HARRIS 0020761, FILED 12/14/2004, IS GRANTED. THIS COURT FINDS THAT THE ARBITRATION AGREEMENT IS VALID AND ENFORCEABLE. WHILE THE CONSUMER SALES PRACTICES ACT (CSPA) CONFERS JURISDICTION UPON THIS COURT, IN CASES ARISING UNDER CSPA IT DOES NOT PRECLUDE ARBITRATION OF SUCH CLAIMS. SEE EAGLE V. FRED MARTIN MOTOR CO. (2004), 157 OHIO APP. 3D 150. IT IS FURTHER NOTED THAT AS DEFENDANT GANLEY HAS INDICATED THEIR INTENT TO PAY ALL FEES AND COSTS IMPOSED BY THE AMERICAN ARBITRATION ASSOCIATION, DEFENDANT SHALL DO SO AND THIS CASE IS STAYED PENDING ARBITRATION. BOOK 3276 PAGE 0248 02/18/2005 NOTICE ISSUED. 2 At one point this case was consolidated with Case No. 86050, in which defendant filed its brief as appellant. When the two cases were subsequently separated, defendant did not file an appellee brief in the case at bar. 3 To demonstrate this disagreement, the Shumaker court cited the following cases: "Vanyo v. Clear Channel Worldwide (2004), 156 Ohio App.3d 706, 2004-Ohio-1793, 808 N.E.2d 482;Ghanem v. American Greeting Corp., Cuyahoga App. No. 82316,2003-Ohio-5935; Herman v. Ganley Chevrolet, Inc., Cuyahoga App. Nos. 81143 81272, 2002-Ohio-7251; Spalsbury v. Hunter Realty,Inc. (Nov. 30, 2000), Cuyahoga App. No. 76874, 2000 Ohio App. LEXIS 5552; Gibbons-Grable Co. v. Gilbane Bldg. Co. (1986),34 Ohio App.3d 170, 517 N.E.2d 559 (holding that the question of whether a party has agreed to submit an issue to arbitration is a question of law requiring de novo review). Cf. Bevan v.Owens-Illinois, Inc., Cuyahoga App. No. 84776, 2005-Ohio-2323;Strasser v. Fortney Weygandt, Inc., Cuyahoga App. No. 79621, 2001 Ohio App. LEXIS 5738; Sikes v. Ganley Pontiac Honda (Sept. 13, 2001), Cuyahoga App. No. 79015, 2001 Ohio App. LEXIS 4065 (holding that the appropriate standard of review is abuse of discretion)." 4 R.C. 2711.02(B), in part, states: If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement * * *. 5 There is, however, a typographical difference: the print in the Sikes case was not in caps and had no underlining. 6 Pursuant to R.C. 2711.10. 7 In the case at bar, defendant's motion to stay the proceedings was brought under R.C. 2711.02. Unlike R.C. 2711.03, which requires a trial court to conduct a hearing on the enforceability of an arbitration provision, R.C. 2711.02 does not require a hearing. Maestle v. Best Buy Co., 100 Ohio St.3d 330,2003-Ohio-6465, 800 N.E.2d 7.

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DECISION AND JUDGMENT ENTRY {¶ 1} Robert E. White, II appeals the Marietta Municipal Court's judgment finding him guilty of sexual imposition, a violation of R.C.2907.06. On appeal, White asserts that the trial court erred by refusing to enter a Crim.R. 29 judgment of acquittal based on the state's failure to produce corroborating evidence as required by R.C. 2907.06(B). We disagree, because the record reveals that the state produced corroborating evidence. Accordingly, we affirm the judgment of the trial court. I. {¶ 2} The victim testified at White's jury trial that she worked at a pizza place and made deliveries. After midnight on a Sunday she delivered a sub to White at his residence. She did not know White. White opened the front door in just his white underwear briefs. White had his hands down in his underwear playing with himself while he asked her how much he owed. White owed $7.49. {¶ 3} The victim thought that White appeared drunk. White acted like he could not find his money and asked the victim to come in twice. She remained outside. She told White that she needed her money and needed to leave. White walked around and continued to have his hands down in his underwear. The victim could see the top of his penis. Eventually, White located two bills, i.e. a five and a one. As White handed the money to the victim, he acted as though he lost his balance and grabbed each of her breasts with his hands as he stumbled into her. The money fell to the floor. The victim threw the sub at White, picked up the money from the floor, and left. {¶ 4} The victim reported what happened to her boss when she arrived back at work. He told her to report what happened to the police after work. She testified that because they were too busy for her to leave right away, she worked another hour and made two more home deliveries before going to the police station. She reported the incident to officer Ryan Huffman. He took the report but told her that they could not investigate at that time because they were extremely busy. {¶ 5} The victim saw White the next night in a bar that was located in the same building where she worked. She told her boss who in turn called the police. {¶ 6} Officer Huffman testified that he took the report from the victim on Sunday morning and that she looked upset. He further testified that he responded to the Monday evening call from the victim's boss. He said that the victim identified White sitting in the bar with several other people. {¶ 7} Officer Huffman approached White and talked to him about the Sunday morning complaint regarding the sub delivery. He said that White eventually provided him with oral and written statements about the incident. He testified that White's version was "that he had ordered a sub from Paradise Pizza, it had been delivered to his address. He advised that he was wearing underwear, and that was the only thing he had on during the time of delivery, and he also advised that he was having trouble finding his money, and he was intoxicated that evening. However, he did not admit to fondling [the victim] or grabbing her." {¶ 8} With this information, officer Huffman charged White with sexual imposition in violation of R.C. 2907.06, a misdemeanor of the third degree. Specifically, the charge stated that White "did, knowingly, have sexual contact with another, who was not the spouse of the offender, when the offender knew that the sexual contact would be offensive to the other person, or was reckless in that regard[.]" {¶ 9} After these two witnesses, i.e. the victim and the officer, the state introduced White's written statement into evidence and rested. White moved the court for a Crim.R. 29 acquittal. The court denied the motion. White did not present any evidence. The jury returned a verdict of guilty as charged. {¶ 10} White appeals and assigns the following assignment of error: "The trial court violated Mr. White's right to due process when it overruled his Crim.R. 29 motion for acquittal despite the State's failure to provide sufficient evidence to corroborate the victim's testimony." II. {¶ 11} White argues that the state failed to prove beyond a reasonable doubt every element of the offense of sexual imposition. Specifically, he asserts that the trial court erred by failing to grant his Crim.R. 29 motion for acquittal because it did not require the state to comply with R.C. 2907.06(B). Thus, he concludes that he was denied due process of law because of the lack of evidence corroborating his victim's testimony. {¶ 12} R.C. 2907.06(B) provides that no person may be convicted of sexual imposition unless the state produces evidence corroborating the victim's testimony. However, the corroborating evidence "need not be independently sufficient to convict the accused." State v. Economo (1996), 76 Ohio St.3d 56, syllabus. Rather, even "[s]light circumstances or evidence which tends to support the victim's testimony is satisfactory." Id. at syllabus. Corroborating evidence is not an element of the offense, but an ancillary evidential requirement that the trial court must decide. Id. at 60-62. {¶ 13} The state asserts that it did produce such corroborating evidence, and, therefore, no violation of White's due process rights occurred. The state submits that the corroborating evidence it produced is similar to the evidence the Ohio Supreme Court found sufficient to satisfy the corroboration requirement in Economo. The state further claims that this court applied the Economo test in State v. Laferty (April 21, 1999), Vinton App. No. 97CA17 and "found sufficient corroboration where other evidence showed that victim's car was in defendant's drive way at [the] date and time of offense, and other persons testified that she was upset and crying on the day after the incident[.]" {¶ 14} In Economo, the corroborating evidence consisted of: (1) confirmation that the victim had an appointment with the defendant on the date in question; (2) a witness' testimony that the victim appeared frightened and upset, and asked to not be left alone with the defendant; and (3) a witness' testimony that the victim was on the verge of crying upon exiting a room where she had been alone with the defendant. Economo at 60. {¶ 15} Similarly, here, the corroborating evidence consisted of officer Huffman's testimony that White admitted that: (1) the victim came to his residence to deliver a sub on the date and time in question; (2) he came to the door only wearing underwear; (3) he had trouble finding money; and (4) he was intoxicated. In addition, officer Huffman testified that the victim was upset when she filed the report. We find that this corroborating evidence meets the Economo test. Therefore, we find that the trial court did not err by refusing to grant White's Crim.R. 29 motion for acquittal because the state did comply with R.C. 2907.06(B). {¶ 16} Accordingly, we overrule White's sole assignment of error and affirm the judgment of the trial court. JUDGMENT AFFIRMED.

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I realize we found no violation of the statute and thus need not make a constitutional analysis. Nonetheless, it seems that in "constitutionalizing" state evidentiary law, the appellant in this case, and many other litigants, have overlooked a critical part of the analysis they ask us to perform. Appellant frames his assignment of error in terms of a denial of the constitutional right to due process of law. In order to arrive at this conclusion, the appellant must establish that a violation of the Ohio statute creating the corroboration requirement also amounts to a violation of the due process clause. This in turn requires appellant to show that the corroboration requirement is "so rooted in the traditions and conscience of our people as to be ranked as fundamental." See, In ReEveridge (April 21, 1998), Ross Co. App. No. 97CA2314, unreported; 1998 WL 224903 at 7 citing Montana v. Egelhoff (1996), 518 U.S. 37;116 S.Ct. 2013; 135 L.Ed.2d 361. In many cases where an appellant frames an evidentiary issue in terms of a constitutional challenge, the appellant challenges a state rule that prevents the admission of otherwise relevant evidence. See Engelhoff, supra; Crane v. Kentucky (1986), 476 U.S. 683; Chambers v. Mississippi (1973), 410 U.S. 284. The defendant then argues that the inability to introduce this evidence amounts to fundamental unfairness, i.e. a denial of due process. However, due process concerns are involved only where the state rule of exclusion offends some principle of justice so rooted in the traditions and conscience of the people as to be ranked as fundamental. In Re Everidge at 7 citing Egelhoff at 368, 371, 377. The primary guide to making such a determination is historical practice. Id. at 368. In this case, the appellant argues a state law placing an additional evidentiary burden upon the state in a criminal trial rises to the level of a fundamental principle of law. He does so without providing any historical basis for such a bold proposition and in spite of the fact that the Supreme Court of Ohio has indicated that the corroboration requirement did not exist in the common law and is purely a legislatively created rule. See State v. Economo (1996), 76 Ohio St.3d 56 at 58, footnote 4. Moreover, federal authority also recognizes the corroboration requirement created by state law does not implicate a constitutional right cognizable in habeas corpus. See Loeblien v. Dormire (2000),229 F.3d 724, 727. While a failure to satisfy R.C. 2907.06 (B) would indeed entitle the appellant to an acquittal, it would be on the basis of a state law that provides protection beyond that guaranteed by the due process clause of the Ohio and United States Constitutions. For as we said in Everidge, the Fourteenth Amendment does not permit courts to engage in a finely-tuned review of the wisdom of a state rule of law under the rubric of due process. In Re Everidge at 7 citing Spencer v. Texas (1967), 385 U.S. 554,556; 87 S.Ct. 648; 17 L.Ed.2d 606. 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 Marietta Municipal Court to carry this judgment into execution. If the trial court or this court has previously granted a stay of execution of sentence and release upon bail, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. The stay as herein continued will terminate in any event at the expiration of the sixty-day period. The stay shall terminate earlier if the appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec.2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal before expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Harsha, J.: Concurs with Concurring Opinion. McFarland, J.: Concurs in Judgment and Opinion and Concurs with Concurring Opinion.

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OPINION {¶ 1} On August 10, 1988, the Coshocton County Grand Jury indicted appellant, George Carpenter, on several counts of rape in violation of R.C. 2907.02 and gross sexual imposition in violation of R.C. 2907.05. Following a jury trial, appellant was convicted of two counts of gross sexual imposition and two counts of rape, one count including a force specification. By judgment entry filed December 16, 1988, the trial court sentenced appellant to an aggregate term of life imprisonment. {¶ 2} On September 18, 2001, appellant filed a "writ of error coram nobis." Appellant complained the "prosecution has made a structural and fundamental error" by failing "to institute the legal or lawful process in initiating lawful prosecution of the Defendant." Appellant claimed the trial court lacked jurisdiction because no complaint had been filed. By judgment entry filed January 2, 2002, the trial court denied the writ, finding the writ was "in actuality a petition for post-conviction relief" and same was untimely and lacked merit. {¶ 3} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 4} "IT WAS ERROR FOR THE TRIAL COURT TO HOLD THAT A WRIT OF ERROR CORAM NOBIS WAS A POST-CONVICTION PETITION." II {¶ 5} "IT WAS ERROR FOR THE TRIAL COURT TO RULE THAT A COMPLAINT IS NOT REQUIRED TO GIVE JURISDICTION OVER THE SUBJECT TO THE COURT." I {¶ 6} Appellant claims the trial court erred in denying his "writ." We disagree. {¶ 7} The trial court reviewed appellant's "writ" and found "it is in actuality a petition for post-conviction relief filed beyond the time limit established by R.C. 2953.21." See, Judgment Entry filed January 2, 2002. {¶ 8} Barron's Law Dictionary (3 Ed. 1991) 534, defines a "writ of error coram nobis" as follows: {¶ 9} "The purpose of the writ `is to bring the attention of the court to, and obtain relief from, errors of fact, such as . . . a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake; these facts not appearing on the face of the record [nor being facts that,] if known in season, would have prevented the rendition and entry of the judgment questioned. . . . [Thus,] writ does not lie to correct errors of law.' 198 P.2d 505, 506. It is addressed to the court that rendered the judgment in which injustice was allegedly done, in contrast to appeals or review, which are directed to another court. 269 N.Y.S.2d 983, 986." {¶ 10} A motion for postconviction relief is defined in R.C.2925.21(A)(1) as a claim "that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States." {¶ 11} Appellant's "writ" challenged the trial court's jurisdiction because prosecution was not initiated by the filing of a complaint. Appellant cited to authority under the United States Constitution. {¶ 12} We concur with the trial court's decision that the filing was "in actuality a petition for post-conviction relief" because it requested the enforcement of rights guaranteed by the United States Constitution. The Supreme Court of Ohio has spoken on this issue in Statev. Reynolds (1997), 79 Ohio St.3d 158, syllabus: {¶ 13} "Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21." {¶ 14} Therefore, the trial court was correct in finding the "writ" was in actuality a petition for postconviction relief. Although the trial court discussed the merits of the motion, it also found the motion was not timely pursuant to R.C. 2953.21(A)(2) which states as follows: {¶ 15} "A petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal." {¶ 16} Appellant was sentenced on December 16, 1988 and the direct appeal was determined on September 26, 1989. See, State v. George B.Carpenter (September 26, 1989), Coshocton App. No. 89-CA-1. We agree the petition was untimely filed. {¶ 17} Assignment of Error I is denied. II {¶ 18} Appellant claims the trial court erred in finding it had jurisdiction to hear the rape and gross sexual imposition charges. The trial court found no error in the initiation of the criminal proceedings by way of an indictment. Appellant claims the charges against him could have been initiated only through the filing of a complaint. We disagree. {¶ 19} Pursuant to Section X, Article I, of the Ohio Constitution and Crim.R. 7, the initiation of felony charges shall be by indictment. In lieu of an indictment in non-capital cases and a waiver by the defendant, a bill of information may be utilized. See, Crim.R. 7(A). A complaint pursuant to Crim.R. 3 and 4 may also be used to initiate the criminal process in arresting an individual. It is however, the clear mandatory language of the Ohio Constitution and the Criminal Rules that felony charges such as the ones herein shall be commenced with the filing of an indictment or bill of information. {¶ 20} The case sub judice was initiated via a true bill being returned by the Coshocton County Grand Jury and an indictment being issued on August 10, 1988. See, Crim.R. 6(F). We find the trial court had jurisdiction to hear the charges. {¶ 21} Assignment of Error II is denied. {¶ 22} The judgment of the Court of Common Pleas of Coshocton County, Ohio is hereby affirmed. By Farmer, J., Gwin, P.J. and Wise, J. concur. topic: "writ of error coram nobis" petition for post-conviction relief denied.

2016-07-06 06:42:10.945945+00

OPINION {¶ 1} Thomas T. Henderson appeals from his conviction and sentence on one count of aggravated burglary in violation of R.C. § 2911.11(A)(1). {¶ 2} Henderson advances three assignments of error on appeal. First, he contends he received ineffective assistance of counsel at trial because his attorney's opening statement and closing argument conceded everything necessary to convict him. Second, he claims his sentence must be vacated because he was sentenced in violation of State v.Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. In connection with this assignment of error, Henderson also argues that the remedy provided by the Ohio Supreme Court in Foster operates as an ex post facto violation. As a result, he asserts that the trial court must impose a statutory minimum sentence on remand. In his third assignment of error, Henderson contends his trial counsel provided ineffective assistance by failing to object to his sentence on the basis ofBlakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531,159 L.Ed.2d 403. {¶ 3} The present appeal stems from an altercation Henderson had with Tracey Higgins inside her home in the early morning hours of July 9, 2005. The incident resulted in Henderson being charged with aggravated burglary. The matter proceeded to a jury trial on January 23-25, 2006. The State's primary witness at trial was Higgins herself. She testified that Henderson was an ex-boyfriend who had resided in her home for several months in early 2005. He moved out at her request around May 6, 2005, and she attempted to terminate her relationship with him. After Henderson's departure, Higgins changed the locks on her doors. Contrary to her wishes, however, he continued showing up at her house and attempting to communicate with her. His conduct resulted in a civil protection order being filed against him on July 6, 2005. {¶ 4} Thereafter, on the evening of July 8, 2005, Higgins fell asleep on her couch after returning home from work. She awoke sometime after 1:00 a.m. on July 9, 2005, to find Henderson standing in the middle of her living room. Higgins was "shocked" when she saw him there because she thought she had locked her doors. In response to Higgins' inquiry about how he had entered the house, Henderson grabbed her by the wrists and pulled her into the kitchen. While holding her arms, he began accusing her of sleeping with his friends. He also rifled through her purse in search of his friends' phone numbers. As he did so, Higgins noticed that her keys had been removed from a deadbolt lock on the inside of her back door. She had placed the keys there upon her return home from work. {¶ 5} During the encounter, Henderson began hitting Higgins in the face with a closed fist. The blows caused her to fall to the kitchen floor. He then kicked her in the ribs before dragging her down a hallway and into her bedroom. Once there, he threw her on the bed, got on top of her, and began choking her. They then rolled onto the floor, where Henderson continued to choke her while holding a bedspread over her face. As she felt herself beginning to lose consciousness, Higgins reached up and knocked Henderson's glasses off of his face. He momentarily released his grip, which enabled Higgins to rise and run back into the hallway. Henderson caught her there, however, and pulled her into the kitchen a second time. He then choked her again before returning to the contents of her purse. As he did so, Higgins managed to reach her cordless phone and dial 9-1-1. Upon realizing that she had made the call, Henderson smashed the phone on the floor. He also grabbed two kitchen knives and said, "I ought to stab you in the heart right now." {¶ 6} At that point, Higgins heard a knock on the door and saw Henderson momentarily back away from her. After initially going toward the front door, he returned to the kitchen and punched her in the stomach. Henderson then moved toward the front door a second time before returning again and kicking Higgins in the stomach. He eventually turned away from her for good and opened the door to find Dayton police officers Donald Fink and James Baker outside. The officers entered the home and placed Henderson in handcuffs. While patting him down, they found Higgins' keys and her cell phone in his possession. The officers also attended to Higgins, who was moaning and crying in a fetal position on the floor. She was taken to the emergency room and examined. Her injuries included a chipped tooth as well as bruising, swelling, and redness at various places on her body. A subsequent investigation revealed no signs of forced entry into Higgins' residence. After the incident, however, she discovered that one of the two locks on her back door was defective and could be opened by jiggling the doorknob. Based on the foregoing evidence, the jury found Henderson guilty of aggravated burglary. The trial court sentenced him to eight years in prison. This timely appeal followed. {¶ 7} In his first assignment of error, Henderson contends he received ineffective assistance of counsel under Strickland v. Washington (1984),466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, because his attorney's opening statement and closing argument conceded everything necessary to convict him of aggravated burglary. Citing United States v. Cronic (1984), 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657, he also argues that prejudice may be presumed where, as here, his attorney failed to subject the State's case to meaningful adversarial testing. {¶ 8} We begin our analysis with a review of the aggravated burglary statute, R.C. § 2911.11(A), which provides: {¶ 9} "(A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply: {¶ 10} "(1) The offender inflicts, or attempts or threatens to inflict physical harm on another[.]" {¶ 11} During opening statements at trial, defense counsel conceded that an altercation had occurred inside Higgins' home and that she had sustained some injuries. Counsel insisted, however, that Higgins had invited Henderson into her home on the night in question. Therefore, defense counsel told the jury that Henderson had not trespassed by force, stealth, or deception. {¶ 12} The State then presented evidence at trial to establish that Higgins had not allowed Henderson into her home and that he, in fact, had entered by force through the back door. As noted above, the State primarily relied on testimony from Higgins, who told the jury that she had not invited Henderson into her house. Higgins also told the jury that she was surprised when she awoke and saw him, as she had no idea how he had gotten inside. {¶ 13} In response to the State's case, defense counsel elected not to dispute the fact that Henderson had caused physical harm to Higgins. Counsel's efforts during trial were directed toward establishing that Higgins had invited Henderson into her house. Although Higgins denied having done so, defense counsel nevertheless sought through cross-examination to undermine the State's theory that Henderson had entered the residence forcibly while Higgins was asleep. {¶ 14} During closing argument, the State reiterated its belief that Henderson had trespassed in the house by entering through Higgins' back door while she was asleep. In response, defense counsel told the jury: {¶ 15} "There is only one element in this case at issue. That element is how was access gained to the residence. Was it gained by force, stealth, or deception? And that issue can be narrowed down further to force. The complaining witness says it must have been force, and we say there is another way to get into that house. There's only two ways. It's either force or she let him in. It's got to be one of those two * * *." {¶ 16} Defense counsel then reviewed the evidence and attempted to discredit the State's theory that Henderson had entered the home by force while Higgins was asleep. In rebuttal, the State again stressed its belief that Henderson had committed a trespass by force when he entered through the back door without Higgins' knowledge or consent. The prosecutor told the jury: {¶ 17} "Ms. Higgins was asleep on her couch. She told you she didn't hear a vehicle. She also told you she didn't know whether [Henderson] was in her backyard when she let the dogs out. She also told you she did not invite him. {¶ 18} "Mr. Henderson wants to make a big deal about no pry marks. You know, the State did not show you any forcible entry. The Judge is going to give you an instruction on what force is. Force is any means necessary to get through an unlocked door. You have to turn the doorknob and push the door open. That is force. That's what we are talking about. {¶ 19} "We're not talking about throwing stuff through a window, breaking stuff to get into that house. We're talking about the elementary force, moving an object. That is force. Opening an unlocked door is force to get into the house. {¶ 20} "And I submit to you that the Defendant didn't want Ms. Higgins to know that he was there without her knowledge. He wanted to get in and take her by surprise, which he did. He grabbed her and she said, how did you get in." {¶ 21} "* * * {¶ 22} "You can infer from all the facts and all the evidence that was presented, you can infer force, you can infer stealth, you can infer that obviously if she thought she locked the door, somehow he got in there. You can infer force, you can infer stealth and you can infer deception. {¶ 23} "If he got in there by saying, hey, I'm going to come over and talk to you and he gets over and begins to beat her up, you can infer that he used the guise, let's chat, to get into her house." {¶ 24} "* * * {¶ 25} "And you can come to the conclusion here today that the man was not invited, he got into the house by force because he opened the door. He jiggled the door handle. He was out there when she let the dogs out and wasn't allowing the door to be locked. You can make those inferences because he got in there by God, and it wasn't because he vaporized in there. It was because he wanted to and he wanted to harm her because she can't end the relationship." {¶ 26} Following closing arguments, the trial court instructed the jury on the elements of aggravated burglary. In so doing, it provided instructions on trespass by force and by stealth. The trial court concluded that the evidence did not support an instruction on trespass by deception. In the course of its instructions, the trial court told the jury: {¶ 27} "Trespass means that the Defendant without privilege to do so knowingly entered and remained on the land or premises of another. {¶ 28} "Privilege means any immunity, license or right that was conferred by law or that was bestowed by an expressed or implied grant or arising out of a status position, office or relationship or growing out of a necessity." {¶ 29} "* * * {¶ 30} "Force. A force may properly means [sic] any violence, compulsion or effort or constraint exerted or used by any means upon a person or a thing to gain entry. Force may be properly defined as effort rather than violence and that force is used to gain entry into a residence and can include the opening of an unlocked door." {¶ 31} On appeal, Henderson cites State v. Steffen (1987),31 Ohio St.3d 111, 509 N.E.2d 383, for the proposition that a defendant may be convicted of aggravated burglary even if his initial entry into a victim's home was lawful. In Steffen, the court reasoned that one who enters a home with permission becomes a trespasser, subject to conviction for aggravated burglary, if he assaults the victim after gaining entry. Id. At 114 — 115. In support, the court reasoned that a defendant's privilege to remain in a home terminates the moment he commences an assault on a victim. Id. {¶ 32} Henderson contends Steffen rendered Higgins' consent or lack of consent to his entry into her home meaningless. Under Steffen, Henderson reasons, even if Higgins' consent granted him a privilege to enter her home, the privilege terminated when his assault began and made him subject to conviction for aggravated burglary. Thus, Henderson contends the crucial issue at trial was whether he assaulted Higgins inside her home, not whether she invited him to enter. Because his attorney conceded the fact of an assault inside the home, Henderson argues that he received constitutionally ineffective assistance of counsel. Moreover, Henderson asserts that he need not demonstrate actual prejudice because defense counsel failed to subject the State's case to meaningful adversarial testing. {¶ 33} Upon review, we find Henderson's argument to be unpersuasive. We find no ineffective assistance resulting from counsel's concession that Henderson had engaged in an "altercation" with Higgins inside her home. As an initial matter, the fact of the assault was well documented. The State presented the jury with photographs of Higgins' physical injuries. In addition, the State presented testimony that police found Henderson inside the home, where Higgins also was discovered moaning and crying in a fetal position on the kitchen floor. In light of this evidence, defense counsel reasonably may have concluded that hecould not seriously dispute the fact of the assault. Indeed, defense counsel legitimately may have determined that the only possible course of action was to challenge the State's theory of an unlawful initial entry into Higgins' home. As the United States Supreme Court recognized in Cronic, "the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade." Cronic, 466 U.S. at 656 n. 19. {¶ 34} Here Henderson's counsel reasonably may have concluded that there was no bona fide defense to the fact of the assault on Higgins inside her home. Even though the assault itself may have created some risk of a conviction under a Steffen-type theory,1 defense counsel avoided that issue and instead directed the jury's attention to the State's theory of a forcible entry into the home. On that issue, which was the only one Henderson fairly could dispute, defense counsel sought to create reasonable doubt in the jurors' minds. On the record before us, we see nothing more that counsel could have done. Therefore, Henderson's attorney did subject the State's case to adversarial testing. His first assignment of error is overruled. {¶ 35} In his second assignment of error, Henderson contends the trial court erred by imposing more than the statutory minimum sentence for his offense. In support, he argues that the sentence he received violatesState v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, because the trial court itself made certain statutorily required findings of fact to support the sentence. {¶ 36} "Foster established a bright-line rule that any pre-Foster sentence to which the statutorily required findings of fact applied (i.e., more-than-minimum, maximum, and consecutive sentences), pending on direct review at the time that Foster was decided, must be reversed, and the cause remanded for re-sentencing in accordance withFoster, if the sentence is a subject of the appeal." State v. Boyd, Montgomery App. No. 21372, 2006-Ohio-6299, ¶ 28. The State concedes thatFoster applies here and that Henderson was sentenced in violation of the rule articulated in that case. We agree. Accordingly, we will vacate Henderson's sentence and remand the cause for re-sentencing. {¶ 37} We find no merit, however, in Henderson's additional argument that ex post facto principles preclude the trial court from imposing anything more than the statutory minimum sentence on remand. This court fully addressed and rejected the same argument in State v. Smith, Montgomery App. No. 21004, 2006-Ohio-4405, ¶ 30-34, and we find no reason to depart from our prior ruling. Therefore, on remand the trial court may impose any sentence within the applicable statutory range. Henderson's second assignment of error is sustained in part and overruled in part. {¶ 38} In his third assignment of error, Henderson contends his trial counsel provided ineffective assistance by failing to object to his sentence on the basis of Blakely v. Washington (2004), 542 U.S. 296,124 S.Ct. 2531, 159 L.Ed2d 403. We note, however, that Blakely was a forerunner to the Ohio Supreme Court's more recent decision inFoster, which itself requires a remand for re-sentencing in this case. Given that we are vacating Henderson's sentence pursuant toFoster, his third assignment of error is overruled as moot. {¶ 39} Having sustained Henderson's second assignment of error in part, we hereby affirm his conviction for aggravated burglary but vacate his sentence and remand the cause for re-sentencing. WOLFF, P.J., and DONOVAN, J., concur. 1 Parenthetically, we note that a Steffen-type argument was not the focus of the State's case at trial. As set forth above, the State's theory plainly was that Henderson committed an unlawful trespass by force when he entered Higgins' home through the back door. Only once did the State even suggest that an aggravated burglary conviction could be based on anything else. On that one occasion, the State told the jury, during closing argument, that "if [Henderson] got in there by saying, hey, I'm going to come over and talk to you and he gets over and begins to beat her up, you can infer that he used the guise, let's chat, to get into her house." This argument suggests the possibility of a conviction based on trespass by deception. Notably, however, the trial court subsequently declined to instruct the jury on trespass by deception. As a result, we find no reasonable likelihood that the jury convicted Henderson based on such a theory.

2016-07-06 06:42:10.973344+00

DECISION AND JUDGMENT ENTRY {¶ 1} The Athens County Court of Common Pleas convicted Robert Schoolcraft of one count of Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs, a violation of R.C. 2925.04(A), and one count of Aggravated Possession of Drugs, a violation of R.C. 2925.11(A). Schoolcraft appeals, asserting that the court erred when it denied his motion to suppress the evidence obtained against him in his encounter with Sergeant Brian Cooper of the Athens County Sheriff's Department. Because Sgt. Cooper's request that Schoolcraft provide identification information did not render his encounter with Schoolcraft non-consensual, and because a reasonable person in Schoolcraft's position would have felt free to leave, we disagree. Accordingly, we overrule Schoolcraft's assignment of error and affirm the judgment of the trial court. I. {¶ 2} On January 11, 2002, Sgt. Cooper was following a truck driven by Schoolcraft. While Sgt. Cooper was following the truck, Schoolcraft stopped the truck in the middle of the road, got out, and started looking under the seat or dashboard. After several minutes, Schoolcraft started walking back toward Sgt. Cooper's cruiser. Because it was dark outside and in order to identify himself, Sgt. Cooper activated his takedown and overhead lights. As Schoolcraft continued to approach, Sgt. Cooper exited his cruiser and asked Schoolcraft if there was a problem. {¶ 3} Schoolcraft told Sgt. Cooper that he had blown a fuse in his stereo, and asked Sgt. Cooper if he could borrow a flashlight. Sgt. Cooper asked Schoolcraft for his social security number. Sgt. Cooper later testified that he always asks motorists for their social security number before providing assistance, so that his dispatcher has a way of following up if his safety is compromised in the course of assisting the motorist. After Schoolcraft provided his social security number, Sgt. Cooper called it in to the dispatcher. {¶ 4} Sgt. Cooper asked Schoolcraft if he had a driver's license, and asked if he had any outstanding warrants. He then asked whether Schoolcraft was carrying anything that he should be concerned about. Schoolcraft asked if he was under arrest. Sgt. Cooper told him he was not, and asked Schoolcraft if he could pat him down for weapons. Sgt. Cooper informed Schoolcraft he had the right to refuse. Schoolcraft consented to the pat down. When Sgt. Cooper discovered what he thought was a pill bottle in Schoolcraft's jacket pocket, Schoolcraft again asked if he was under arrest. Sgt. Cooper again informed him that he was not. Schoolcraft told Sgt. Cooper that he did not want the sergeant to pat him down anymore. {¶ 5} At that point, Sgt. Cooper's dispatcher radioed to inform Sgt. Cooper that the search on the social security number Schoolcraft provided revealed that Schoolcraft did not have a valid driver's license. Based upon the dispatcher's information, Sgt. Cooper then placed Schoolcraft under arrest for driving under suspension. Sgt. Cooper performed a thorough search incident to the arrest, and discovered the pill bottle containing methamphetamine. {¶ 6} The State brought a two count indictment against Schoolcraft. Schoolcraft filed a motion to suppress the evidence obtained by Sgt. Cooper on the grounds that Sgt. Cooper impermissibly forced Schoolcraft to submit to a search without probable cause. The trial court denied Schoolcraft's motion. Schoolcraft brought a second motion to suppress on different grounds, but the trial court again denied his motion. Schoolcraft then pled no contest to the two counts, and the trial court found him guilty and entered judgment and sentence accordingly. {¶ 7} Schoolcraft appeals, asserting the following assignment of error: "The trial court erred by failing to rule that Schoolcraft's consent to the initial search was involuntary." I. {¶ 8} Appellate review of a decision on a motion to suppress evidence presents mixed questions of law and fact. State v. McNamara (1997), 124 Ohio App.3d 706, citing United States v. Martinez (C.A. 11, 1992), 949 F.2d 1117, 1119. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v.Carter (1995), 72 Ohio St.3d 545, 552. We must accept a trial court's factual findings if they are supported by competent, credible evidence.State v. Guysinger (1993), 86 Ohio App.3d 592, 594. We then apply the factual findings to the law regarding suppression of evidence. Finally, we review the trial court's application of the law to those facts under the de novo standard of review. State v. Anderson (1995),100 Ohio App.3d 688, 691. {¶ 9} The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution provide for "[t]he right of the people to be secure * * * against unreasonable searches and seizures * * *." Searches and seizures conducted without a prior finding of probable cause by a judge or magistrate are per se unreasonable under the Fourth Amendment, subject to only a few specifically established and well-delineated exceptions. California v. Acevedo (1991), 500 U.S. 565;State v. Tincher (1988), 47 Ohio App.3d 188. If evidence is obtained through actions that violate an accused's Fourth Amendment rights, exclusion of the evidence at trial is mandated. Mapp v. Ohio (1961),367 U.S. 643. {¶ 10} Not every encounter between a citizen and a law enforcement official implicates the state and federal prohibition on unreasonable searches and seizures. California v. Hodari D. (1991), 499 U.S. 621;State v. Taylor (1995), 106 Ohio App.3d 741. The United States Supreme Court has created three categories of police-citizen contact to identify the separate situations where constitutional guarantees are implicated: (1) consensual encounters, (2) investigative or "Terry" stops, and (3) arrests. See Florida v. Royer (1982), 460 U.S. 491, 501-507; UnitedStates v. Mendenhall (1980), 446 U.S. 544, 553; Lyndhurst v. Sadowski (Sept. 2, 1999), Cuyahoga App. No. 74313, unreported. {¶ 11} Police may lawfully initiate a consensual encounter without probable cause or a reasonable, articulable suspicion of criminal activity. Mendenhall at 556. Encounters between the police and the public are consensual when the police approach an individual in a public place, engage the person in conversation, and request information, as long as the person is free to walk away. See Mendenhall at 554; State v. Jones (1996), 112 Ohio App.3d 206, 211. An officer's request to examine a person's identification or search his or her belongings does not render an encounter non-consensual; nor does the officer's neglect to inform the individual that he is free to walk away. See Florida v. Rodriguez (1984), 469 U.S. 1; Florida v. Bostick (1991), 501 U.S. 429; Jones at 211-213. {¶ 12} A "seizure" giving rise to Fourth Amendment concerns occurs only when, in view of all the circumstances surrounding the incident, the police officer, either by physical force or by show of authority, restrains the person's liberty so that a reasonable person would not feel free to decline the officer's request and walk away. State v. Williams (1990), 51 Ohio St.3d 58, 61; Jones at 211. This "reasonable person" test is based upon the state of mind of an innocent person, not a person engaged in criminal activity. Bostick at 438. Factors suggesting that a seizure has occurred include the presence of multiple police officers, the displaying of a weapon by the police, the use of language suggesting that compliance with police requests is compelled, and the physical touching of the person. Mendenhall at 554; Jones at 211. {¶ 13} In this case, Schoolcraft approached Sgt. Cooper. Sgt. Cooper did not render the encounter non-consensual by asking for Schoolcraft's social security number, as that request merely amounted to a request for identification. Sgt. Cooper told Schoolcraft that he was not under arrest, and Schoolcraft felt free to tell Sgt. Cooper when he no longer wished to consent to the pat down search. Under the circumstances, we find that a reasonable person would have felt free to walk away from Sgt. Cooper up until the time that Sgt. Cooper learned that Schoolcraft did not have a valid driver's license. At that time, Sgt. Cooper had probable cause to arrest Schoolcraft for driving under suspension. The discovery of the methamphetamine resulted from the search incident to that arrest. In short, we find no error in the trial court's determination that Schoolcraft's encounter with Sgt. Cooper in which he provided identification information was voluntary. Accordingly, we overrule Schoolcraft's assignment of error, and we affirm the judgment of the trial court. Judgment Affirmed. Harsha, J. and Evans, J., concur in Judgment and Opinion.

2016-07-06 06:42:11.052803+00

DECISION AND JUDGMENT ENTRY {¶ 1} James Webb and his daughter Jennifer Webb appeal the Pike County Court of Common Pleas' summary judgment in favor of American Justice Insurance Reciprocal ("AJIR"). The Webbs argue that the trial court erred when it found that they were not insureds under an insurance policy with underinsured motorist ("UIM") coverage by operation of law that AJIR issued to Buckeye Joint-County Self-Insurance Council ("Buckeye") with Pike County as a named insured. We disagree because James injuries did not occur during the course and scope of his employment with Pike County. See Westfield Ins. Co. v. Galatis,100 Ohio St.3d 216, 2003-Ohio-5849, paragraph two of the syllabus. In addition, Jennifer does not qualify as a "family member" of other insureds because James was not a named insured in the policy. Id. at paragraph three of the syllabus. Accordingly, we affirm the judgment of the trial court. I. {¶ 2} In 1997, James was an employee of Pike County and exercised visitation rights with his minor daughter Jennifer. Pike County was a named insured in an AJIR insurance policy without UIM coverage. The policy did provide for liability arising out of the use of motor vehicles. {¶ 3} On February 1, 1997, sixteen-year-old Bobbie Southworth lost control of her vehicle on a curve and struck a tree severely injuring passenger Jennifer. The Webbs settled with the tortfeasor and recovered the full limits of the liability coverage available from the tortfeasor's motor vehicle insurer. {¶ 4} Later, the Webbs notified AJIR of the accident and sought a UIM claim under the insurance policy it had issued to Buckeye with Pike County as a named insured. The policy did not provide for UIM coverage. At the time AJIR issued the policy, Ohio law required an "automobile liability or motor vehicle liability policy of insurance" to be accompanied by an offer of UM/UIM coverage with limits equivalent to the liability limits of the policy. Under Ohio law the policy qualified as a "motor vehicle liability policy," but AJIR did not offer the UM/UIM coverage. AJIR denied the Webbs' claim for UIM coverage. {¶ 5} The Webbs filed a complaint against AJIR seeking UIM benefits under the policy. AJIR filed a counterclaim for a declaratory judgment. Both sides filed cross-motions for summary judgment. AJIR argued in the trial court that the Federal Liability Risk Retention Act (15 U.S.C. § 3901, et seq.) preempts Ohio from requiring that risk retention groups issuing motor vehicle liability policies also offer UM/UIM coverage to insureds. AJIR also argued that even if Ohio law applied, the implied UIM coverage by operation of law does not extend to "family members" of such employees in the absence of "family member" language. The Webbs argued that Ohio law applied, not federal law, and that by operation of law they were insureds under the policy pursuant toScott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660 andEzawa v. Yasuda Fire Marine Ins. Co. of Am. (999), 86 Ohio St.3d 557. The trial court agreed with AJIR and granted its motion for summary judgment. {¶ 6} The Webbs appeal and assign one assignment of error as follows: "The trial court erred in granting [AJIR's] motion for summary judgment." II. {¶ 7} The Webbs argue that the trial court erred when it found that they were not insureds under the policy. They maintain that the federal law does not preempt Ohio law regarding UIM coverage. They claim that even though the policy does not expressly have a UIM form that defines insured, by operation of law the implied coverage exists. They contend that James is an insured pursuant to Scott-Pontzer and that Jennifer is an insured because UIM coverage imposed under a policy by operation of law can also extend to family members pursuant to Ezawa. Finally, they assert that Jennifer is a resident of her father's household as required by Ezawa because he exercises visitation rights with her. For all of these reasons, the Webbs conclude that they are insureds under the policy. We disagree. {¶ 8} Summary judgment is appropriate when the court finds that the following factors have been established: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed in his or her favor. Civ.R. 56. See Bosticv. Connor (1988), 37 Ohio St.3d 144, 146; Harless v. Willis DayWarehousing Co. (1978), 54 Ohio St.2d 64, 66; Morehead v. Conley (1991),75 Ohio App.3d 409, 411. "In reviewing the propriety of summary judgment, an appellate court independently reviews the record to determine if summary judgment is appropriate. Accordingly, we afford no deference to the trial court's decision in answering that legal question." Morehead v. Conley, 75 Ohio App.3d at 411-12. See, also,Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809. {¶ 9} The burden of showing that no genuine issue of material fact exists falls upon the party requesting summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, citing Mitseff v. Wheeler (1988),38 Ohio St.3d 112, 115. The moving party bears this burden even for issues that the nonmoving party may have the burden of proof at trial.Id. "However, once the movant has supported his motion with appropriate evidentiary materials, the nonmoving party may not rely upon the allegations and/or denials in his pleadings. * * *. He must present evidentiary materials showing that a material issue of fact does exist."Morehead v. Conley, 75 Ohio App.3d at 413. {¶ 10} We apply identical standards of interpretation to insurance contracts as we do to other written contracts. Hybud Equip. Corp. v.Sphere Drake Ins. Co., Ltd. (1992), 64 Ohio St.3d 657, 665. We must give the language of an insurance policy its plain and ordinary meaning.Dairyland Ins. Co. v. Finch (1987), 32 Ohio St.3d 360, 362. When deciding whether a claimant is an insured under a policy and the contract is ambiguous and susceptible of more than one interpretation, we must liberally construe the language in favor of the policyholder, not the claimant. Galatis at ¶ 35. We review the interpretation of insurance contracts de novo. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108. {¶ 11} "Absent specific language to the contrary, a policy of insurance that names a corporation as an insured for uninsured or underinsured motorist coverage covers a loss sustained by an employee of the corporation only if the loss occurs within the course and scope of employment. (King v. Nationwide Ins. Co [1988], 35 Ohio St.3d 208,519 N.E.2d 1380, applied; Scott-Pontzer v. Liberty Mut. Fire Ins. Co. [1999], 85 Ohio St.3d 660, 710 N.E.2d 1116, limited.)" Galatis, supra, at paragraph two of the syllabus. "Where a policy of insurance designates a corporation as a named insured, the designation of "family members" of the named insured as other insureds does not extend insurance coverage to a family member of an employee of the corporation, unless that employee is also a named insured. (Ezawa v. Yasuda Fire Marine Ins. Co. ofAm. [1999], 86 Ohio St.3d 557, 715 N.E.2d 1142, overruled.)" Id. at paragraph three of the syllabus. {¶ 12} Here, we will assume, arguendo, that (1) Ohio law applies instead of federal law so that UIM coverage exists by operation of law, (2) the policy has the ambiguous word "you" that defines "insured" so that the UIM coverage extends to all employees of a named insured, (3) the policy has "family member" language so that the UIM coverage can extend to a family member that resides with an employee of a named insured, and (4) Jennifer resided with her father at the time of the accident. {¶ 13} The policy named Pike County as an insured. James worked for Pike County. However, James did not receive his injuries during the course and scope of his employment with Pike County. Hence, James is not an insured under the policy. Scott-Pontzer as limited by Galatis. Likewise, although Jennifer lived with her father at the time of the accident, the designation of "family members" of the named insured as other insureds does not include Jennifer because her father was not a named insured in the policy as required by Galatis. Consequently, the Webbs are not insureds under the AJIR policy and cannot receive UIM benefits. {¶ 14} Accordingly, we overrule the Webbs' sole assignment of error. III. {¶ 15} In conclusion, we find that the Webbs are not insureds under the UIM coverage of the AJIR policy. We find that there is no genuine issue as to any material fact, AJIR is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the Webbs. {¶ 16} Accordingly, we overrule the Webbs' assignment of error and affirm the judgment of the trial court. Judgment affirmed. Harsha, J. and Abele, J., concur in Judgment and Opinion.

2016-07-06 06:42:11.082563+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff-appellant, State of Ohio, Cuyahoga Support Enforcement Agency ("CSEA"), appeals from the decision of the Cuyahoga County Court of Common Pleas, Juvenile Division, which vacated its prior judgment of contempt. For the following reasons, we reverse and remand. {¶ 2} A review of the record reveals the following: On October 23, 1997, plaintiff-appellant, Crystal Shelton ("Shelton"), gave birth to a child. On February 28, 2000, defendant-appellee, Deonne Dickerson ("Dickerson"), was determined to be the father of the child and ordered to pay $50 per month in child support.1 {¶ 3} On August 9, 2001, CSEA, on behalf of Shelton, filed a contempt motion alleging that Dickerson had failed to comply with the child support order. {¶ 4} On July 1, 2004, Dickerson admitted to the allegations in the complaint and was found to be guilty of contempt for failure to pay child support as ordered in the administrative order. The magistrate recommended that Dickerson be sentenced to 30 days incarceration with the sentence suspended on the condition that Dickerson pay the arrears of $2,500 in full. On July 23, 2004, the trial judge signed the report and recommendation of the magistrate. The judge did not, however, indicate whether he fully adopted the Magistrate's Decision in its entirety, adopted it with revisions, or rejected. Specifically, the preprinted form sheet attached to the Magistrate's Decision was not checked in any box. On August 3, 2004, the Magistrate's Decision was filed and on August 5, 2004, it was journalized. No objections were filed. {¶ 5} On February 4, 2005, CSEA filed a motion to execute sentence, alleging that Dickerson had not complied with the conditions for the suspended sentence. After a hearing on the motion, the trial court filed a judgment entry in which it denied CSEA's motion to impose sentence finding that "the Magistrate failed to set forth definite and reasonable purge conditions in the Magistrate Decision, filed August 3, 2004." {¶ 6} It is from this decision that CSEA timely appeals and raises the following three assignments of error for our review: {¶ 7} "I. The trial court erred in failing to find that defendant/appellee waived any claim that he was denied a proper purge. {¶ 8} "II. The trial court abused its discretion in dismissing the motion to execute sentence with prejudice, effectively vacating its contempt order, sua sponte." {¶ 9} "III. The trial court abused its discretion in finding the purge provisions, already approved by the court, were not definite or reasonable, without any evidence before it suggesting the appellee could not comply." {¶ 10} We find that we lack jurisdiction over this appeal. Although the preprinted form sheet attached to the Magistrate's Decision was signed by the trial judge, it was not checked to indicate whether the Decision was expressly accepted, modified, or rejected. See Civ.R. 53(E)(4)(a); Colombo Enterprises, Inc.v. Fegan (Feb. 22, 2001), Cuyahoga App. No. 78041, citing Mielev. Ribovich (2000), 90 Ohio St.3d 439. Accordingly, the Decision is not a final appealable order. The matter is remanded to allow the trial court the opportunity to adopt, modify, or reject the Magistrate's Decision and proceed accordingly. Judgment reversed and remanded. 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 Court of Common Pleas, 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. Karpinski, J., and Blackmon, J., concur. 1 See administrative order dated March 2, 2000.

2016-07-06 06:42:11.109787+00

JOURNAL ENTRY and OPINION {¶ 1} In 1989, a jury convicted appellant, John R. Tiedjen ("appellant"), of murder and the trial court sentenced him to 15 years to life in prison. This court affirmed appellant's conviction and sentence. See State v. Tiedjen (Feb. 7, 1991), Cuyahoga App. No. 57996, appeal dismissed by State v. Tiedjen (1991), 61 Ohio St.3d 1419, 574 N.E.2d 1090. {¶ 2} Approximately 13 years later, appellant filed a series of postconviction motions with the trial court — one seeking additional discovery, another seeking leave to file a motion for new trial, and yet another seeking to "retain blood evidence collected at the scene of the crime for testing of DNA evidence at the defendant's expense." All of these postconviction motions were denied; however, appellant only appeals the trial court's denial of his motion to retain blood evidence for the purposes of DNA testing. {¶ 3} Appellant cites two assignments of error. First, appellant argues that the trial court erred when it denied his motion to retain blood evidence for the purposes of DNA testing. In particular, he asserts that his motion was merely a request that the trial court not act in accordance with Sup.R. 26.03(F)(5), which provides that the trial court retain the record in this case for 12 years. Because 12 years had long passed since appellant's conviction and sentence were affirmed, appellant maintains that the trial court erred in denying his request, especially when he averred that he was willing to pay for the DNA testing at his own expense and the motion was supported by a professor who concluded in a report that appellant could not have murdered the victim. {¶ 4} Second, appellant argues that he was denied due process when the trial court denied his motion without considering the professor's report and giving him an evidentiary hearing. Appellant contends that his constitutional right to be heard was violated. Appellant's arguments are without merit. {¶ 5} The records retention schedule for the courts of common pleas is provided in the Rules of Superintendence for the Courts of Ohio. The record includes all documents received by the court of common pleas and includes exhibits admitted into evidence. See Sup.R. 26(B)(6) and (F). In particular to this appeal, Sup.R. 26.03(F)(5) provides as follows: {¶ 6} "Any case file not listed in division (F) of this rule shall be retained for twelve years after the final order of the general division. Documents within a case file admissible as evidence of a prior conviction in a criminal proceeding shall be retained for fifty years after the final order of the general division." {¶ 7} Although appellant is requesting the trial court to retain blood evidence, appellant has failed to show that the trial court has, in its possession, any blood evidence or that the blood evidence was an exhibit admitted into evidence at his trial. Without such a showing that the blood evidence is part of the "record" scheduled for destruction by the trial court or an exhibit admitted during trial, appellant's motion to retain blood evidence was properly denied by the trial court. {¶ 8} In addition, appellant's motion, styled as a petition for postconviction relief, was filed well after the 180 days from the date the trial transcript was filed in this court. R.C. 2953.21(A)(2). Notwithstanding the time violation, appellant's motion does not provide a ground for postconviction relief. Appellant has failed to assert that a constitutional violation occurred at trial. In accordance with R.C.2953.23(A)(1)(b), appellant must show "by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact finder would have found the [appellant] guilty" of murder. Appellant's motion to retain blood evidence for future DNA testing "fails to fall within the purview of the limited type of claims allowable under R.C. 2953.21 — constitutional deprivations that occurred at trial." State v. Dean,149 Ohio App.3d 93, 2002-Ohio-4203, ¶ 10 776 N.E.2d 116; see, also,State v. Nelson (Sept. 21, 2000), Cuyahoga App. No. 77094. Such a claim is more in the nature of a request for discovery which, according to clear Ohio law, does not require a trial court to compel. State v. Byrd (2001), 145 Ohio App.3d 318, 332, 762 N.E.2d 1043 ("trial courts are not statutorily required to compel discovery so that a petitioner may gather evidence to prove that an evidentiary hearing is warranted on his postconviction petition"); Dean, 2002-Ohio-4203 at ¶ 10 ("discovery is not available in the initial stages of a postconviction proceeding.") Because appellant's motion to retain blood evidence fails to assert a constitutional violation that occurred at trial, the trial court properly denied his request. {¶ 9} Furthermore, appellant was properly denied an evidentiary hearing on his motion to retain blood evidence as he failed to "set forth sufficient operative facts to establish substantive grounds for relief."Byrd, 145 Ohio App.3d at 329. Because an evidentiary hearing is not automatic in a petition for postconviction relief, the trial court did not abuse its discretion when it denied appellant's unsubstantiated motion to retain blood evidence without an evidentiary hearing. Thus, appellant's first and second assignments of error are overruled. Affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Dyke, P.J., and Rocco, J., concur.

2016-07-06 06:42:11.568477+00

JOURNAL ENTRY AND OPINION Petitioner-appellant Nuo Lucaj ("appellant") appeals from the order of the trial court dismissing his second petition for postconviction relief. For the reasons adduced below, we affirm the judgment of the trial court. On June 24, 1988, the grand jury issued an indictment against appellant charging him with murder in violation of R.C. 2903.02 with a gun specification. At his arraignment on July 14, 1988, appellant entered a plea of not guilty. The case proceeded to trial on November 14, 1988. After deliberation, the jury returned a verdict finding appellant guilty of murder. The jury also found appellant guilty of the gun specification. In a journal entry filed on December 1, 1988, the trial court sentenced appellant to consecutive prison terms of fifteen years to life for murder and three years on the gun specification. Appellant, through counsel, filed a direct appeal of his conviction with this court. In that direct appeal, appellant's counsel raised seven assignments of error, including prosecutorial misconduct and ineffective assistance of trial counsel. In State v. Lucaj (May 17, 1990), Cuyahoga App. No. 56933, unreported, this court affirmed appellant's conviction. On February 28, 1991, appellant filed a pro se petition for relief after judgment; this petition cited R.C. 2953.21 and was, in effect, a petition for postconviction relief based upon an allegation of ineffective assistance of counsel. In a journal entry filed on April 2, 1991, and corresponding findings of fact and conclusions of law filed on November 8, 1991, the trial court dismissed appellant's first postconviction petition. On July 21, 1996, appellant filed pro se a second petition for postconviction relief. Once again, appellant asserted a claim of ineffective assistance of counsel. In a subsequent motion to amend his second petition for postconviction relief, appellant accused the state of prosecutorial misconduct, viz., "grand jury shopping." In a journal entry with findings of fact and conclusions of law filed on December 23, 1998, the trial court dismissed appellant's request for postconviction relief without conducting an evidentiary hearing. The trial court's decision was based on the doctrine of res judicata. On January 11, 1999, appellant filed a timely notice of appeal from this journal entry. I. THE TRIAL COURT'S RELIANCE UPON RES JUDICATA AS A VALID REASON FOR DISMISSING THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF, [SIC] WAS NOT ONLY IMPROPER UNDER THE CIRCUMSTANCES, BUT CONTRARY TO LAW AS WELL. II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CONDUCT AN EVIDENTIARY HEARING AFTER THE APPELLANT HAD MADE A SUBSTANTIAL SHOWING OF INEFFECTIVE REPRESENTATION ON THE PART OF HIS TRIAL ATTORNEY. In his first and second assignments of error, appellant insists that the trial court erred in denying his second request for postconviction relief based upon the doctrine of res judicata without first conducting an evidentiary hearing. We will address these assignments concurrently because they involve common issues of law and fact. As noted above, appellant appeals from the dismissal of his second petition for postconviction relief. R.C. 2953.23 (A) provides in part: (A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply: (1) Either of the following applies: (a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief. (b) Subsequent to the period prescribed in division (A) (2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right. (2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence. (Emphasis added.) We find that appellant failed to set forth sufficient grounds to permit the court to entertain his second petition. R.C.2953.23 (A) expressly forbids courts from entertaining second or successive petitions for postconviction relief unless the petitioner shows both that: (1) he was unavoidably prevented from discovering the facts upon which the petition relies to present the claim for relief; and (2) that the petitioner shows by clear and convincing evidence that, but for the constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted.State v. Martinelli (Dec. 5, 1996), Cuyahoga App. No. 70120, unreported. In the instant case, appellant fails to present, or even allege, the discovery of new facts. In his second petition for postconviction relief, as subsequently amended, appellant essentially raised three claims for relief: (1) his trial counsel failed to object to a confusing jury instructions on self-defense; (2) his trial counsel failed to object to the prosecutor's questions regarding his refusal to give a written statement; and (3) his indictment for murder, after an initial, indictment for involuntary manslaughter, constituted "grand jury shopping" by the prosecutor. The facts underlying these arguments were known to appellant when he filed his direct appeal and his first postconviction petition. Based upon the foregoing, we find that R.C. 2953.23 (A) prohibited the trial court from entertaining appellant's second petition for postconviction relief. Appellant's first and second assignments of error are overruled. The judgment of the trial court is affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE. P.J. and ANNE L. KILBANE. J. CONCUR. _______________________ LEO M. SPELLACY JUDGE

2016-07-06 06:42:09.853145+00

Fain

Defendant-appellant William J. Blair appeals from his conviction and sentence for attempted rape, following a negotiated guilty plea. Blair contends that the trial court erred by accepting the plea without first determining that he understood the nature of the charge, as required by Crim.R. 11 (C)(2)(a). We agree with Blair. Consequently, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion. I Blair was charged with kidnapping and attempted rape. On the day of trial, Blair accepted a plea bargain, pleading guilty to attempted rape, with the state dismissing the kidnapping charge. The trial court accepted the plea and sentenced Blair accordingly. From his conviction and sentence, Blair appeals. II Blair's sole assignment of error is as follows: "The trial court violated appellant's due process rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and erred under Ohio Criminal Rule 11 (C) by accepting appellant's guilty plea without first determining that appellant understood the nature of the charge to which he was pleading guilty." Blair relies upon Crim.R. 11 (C)(2)(a), which provides in part: "In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: "(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved." Blair contends that the trial court failed to determine that he understood the nature of the charge-attempted rape. The pertinent part of the plea colloquy between Blair and the trial judge includes the following: "THE COURT: All right. Mr. Blair, did you understand the plea agreement? "THE DEFENDANT: Yes, I do. "THE COURT: Do you understand the State of Ohio is dismissing the kidnapping indictment; and your attorney, Mr. Lehmkuhl's, entering a guilty plea on your behalf to the charge of attempted rape. *Page 437 "That charge is an aggravated felony of the second degree. When you plead guilty, you're admitting you committed that offense; and you're subject to a maximum sentence of 8 years to 15 years in the state penitentiary and a maximum fine of 7,500 dollars. "Under this plea agreement, the Court will sentence you at this time to the Ohio State Penitentiary for a term of 5 years to 15 years. Do you understand that? "THE DEFENDANT: Yes, sir. "THE COURT: Have you discussed the facts of the case with your lawyer? "THE DEFENDANT: Yes, sir. "THE COURT: Do you understand the nature of the charge against you? "THE DEFENDANT: Yes. "THE COURT: And do you understand the consequence of the plea? "THE DEFENDANT: Yes, sir. "THE COURT: Do you wish to enter this plea voluntarily? "THE DEFENDANT: Yes, sir." Whereupon, the trial court proceeded to explain to Blair the rights that "he would be waiving by pleading guilty and also ascertained that Blair was willing to waive those rights. The Ohio Supreme Court has expounded upon the nature of the determination that the trial court must make, in accepting a guilty plea, as follows: "The question before the court is whether the defendant received a notice of the charges leveled against him and, if so, did he understand the nature of those charges. As to the latter requirement, there is no easy or exact way to make such a determination, i.e., to determine what someone subjectively understands. If the defendant receives the proper information, then we can ordinarily assume that he understands that information. In this case, we must decide whether the defendant's counsel, or someone else, provided defendant with information or notice of the charges. To do so, we look at all the particular facts and circumstances surrounding the case. Johnson v. Zerbst (1938), 304 U.S. 458, 464 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466]." State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760. In view of the fact that Blair's plea was tendered on the day of trial, it is entirely plausible that his counsel had reviewed with him the nature of the charges against him, so that he understood what the state was required to prove. However, there is nothing in the record from which the trial court could make that determination. "The record must demonstrate that [the] defendant has *Page 438 acquired an understanding of the nature of the charges against him, from whatever source, be it from the trial court itself, the prosecutor, or some other source, such that the trial court can determine that [the] defendant understands the charges to which he was pleading guilty or no contest." State v. Shultz (Mar. 23, 1994), Miami App. Nos. 93-CA-24 and 93-CA-25, unreported, 1994 WL 101512. See, also, State v. Cookson (June 1, 1993), Montgomery App. No. 13368, unreported, 1993 WL 189921. Because there is nothing in this record to support a finding that Blair was ever advised, by anyone, of the nature of the charge of attempted rape-that is, what the state would have had to prove to convict him-we agree with Blair that the trial court erred in accepting his plea. A defendant's mere affirmative response to the question whether he understands the nature of the charge against him, without more, is insufficient to support the necessary determination that he understands the nature of the charge against him. Blair's sole assignment of error is sustained. III Blair's sole assignment of error has been sustained, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion. Judgment reversed and cause remanded. WOLFF and GRADY, JJ., concur.

2016-07-06 06:42:10.026829+00

Carr

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Frank W. Welsh, Jr. ("Welsh") has appealed from the judgment of the Cuyahoga Falls Municipal Court, which granted prejudgment interest to Ohio Edison Company. This Court reverses *Page 500 Because appellee, Ohio Edison Company ("Ohio Edison"), failed to file a brief with this Court, we will accept Welsh's statement of facts as correct. App.R. 18(C). Ohio Edison filed suit against Welsh for damage Welsh caused to a utility pole owned by Ohio Edison. The matter went to trial, and a jury found in favor of Ohio Edison. Subsequently, the trial court journalized the verdict, and sua sponte ordered prejudgment interest to be paid from the date the damage occurred Welsh has timely appealed, and has asserted one assignment of error: ASSIGNMENT OF ERROR THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT IN AN AWARD OF PREJUDGMENT INTEREST ABSENT * * * A PETITION FOR SUCH RELIEF AS REQUIRED BY [R.C.] 1343.03(C); A HEARING ON THE ISSUE AS REQUIRED BY [R.C.] 1343.03(C) AND; A DETERMINATION THAT DEFENDANT/APPELLANT FAILED TO MAKE A GOOD FAITH EFFORT TO SETTLE WHERE THE JURY'S VERDICT WAS ONLY $43.64 HIGHER THAN DEFENDANT'S OFFER OF SETTLEMENT In his sole assignment of error, Welsh asserts that the trial court erred in sua sponte granting prejudgment interest. Specifically, Welsh asserts that because Ohio Edison never filed a motion for prejudgment interest, and the lower court did not hold a hearing on the issue, the prejudgment interest award must be reversed. This Court agrees A trial court's grant of prejudgment interest will be upheld absent an abuse of discretion. Kalain v. Smith (1986), 25 Ohio St.3d 157, 159 The only statutory authority to impose prejudgment interest is found in R.C. 1343.03(C).1 The statute permits an injured party, in certain circumstances, to recover interest in a tort action from the date the cause of action accrues. "[T]he purpose of R.C. 1343.03(C) is to encourage litigants to make a good faith effort to settle their case, thereby conserving legal resources and promoting judicial economy."Peyko v. Frederick (1986), 25 Ohio St.3d 164, 167 An "R.C. 1343.03(C) motion for prejudgment interest must be made to the trial court following the verdict or decision in the case and in no event later than fourteen days beyond the entry of judgment." (Emphasis added.) Cotterman v *Page 501 Cleveland Elec. Illuminating Co. (1987), 34 Ohio St.3d 48, paragraph one of the syllabus. The statute places an evidentiary burden upon the party seeking the award. R.C. 1343.03(C) See, also, Galmish v. Cicchini (2000), 90 Ohio St.3d 22, 25. Moreover, the statute "requires that the trial court determine the issue of prejudgment interest `at a hearing held subsequent to the verdict or decision in the action.'" Galmish,supra, quoting Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638,658 In the instant case, Ohio Edison did not make a motion for prejudgment interest following the verdict, and a hearing was never held Accordingly, this Court finds that the lower court abused its discretion in awarding prejudgment interest pursuant to R.C. 1343.03(C). See Boesv. Boes (June 17, 1998), Seneca App. No. 13-98-10, unreported (reversing a trial court's grant of prejudgment interest on the basis that the award was made sua sponte, and that the record did not support a finding that a good faith effort to settle was not made) Welsh's sole assignment of error is sustained. The prejudgment interest award is vacated The Court finds that there were reasonable grounds for this appeal We order that a special mandate issue out of this Court, directing the Cuyahoga Falls Municipal Court, County of Summit, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27 Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E) Costs taxed to appellee Exceptions Judgment reversed BATCHELDER, P.J., SLABY, J. CONCUR 1 R.C. 1343.03(C) provides: Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case.

2016-07-06 06:42:10.138801+00

Crawford

This is an action in mandamus originating in this court. Relator seeks a writ compelling the issuance of a building permit for the erection of a building upon its premises within the city of Dayton. Respondent, who is the duly authorized agent of the city in all such matters, refuses the permit for the sole reason that the premises will probably be required in the relocation of U.S. highway No. 25. The amended answer alleges that the question of the public need for relator's premises cannot be determined until after the alignment plan for the portion of the project here involved has been received from an engineering firm. The city has hopes but no assurance of receiving the plan within two or three weeks. All these facts have been stipulated (or admitted or undenied), as have also the provisions of the Charter of the City of Dayton. Respondent points out that the appropriation procedure to be followed by the city is prescribed by this charter and not *Page 542 by the general statutes. State, ex rel. Bruestle, City Solr., v.Rich, Mayor, 159 Ohio St. 13, 110 N.E.2d 778. Sections 142 to 146, inclusive, of the charter prescribe the steps to be followed in the appropriation of private property for public use. Section 142 begins with this sentence: "Property within the corporate limits of the city may be appropriated for any public or municipal purpose, and to the full extent of the authority granted by the Constitution of the state, such appropriation shall be made as herein provided." (Emphasis added.) In the case of City of Cincinnati v. Vester, 281 U.S. 439, at page 448, 74 L. Ed., 950, 50 S. Ct., 360, the Supreme Court of the United States said: "We understand it to be the rule in Ohio, as elsewhere, that the power conferred upon a municipal corporation to take private property for public use must be strictly followed. Harbeck v.City of Toledo, 11 Ohio St. 219, 222, 223; Grant v. Village ofHyde Park, 67 Ohio St. 166, 172, 173; Farber v. City of Toledo,104 Ohio St. 196, 200; Roosevelt Hotel Bldg. Co. v. City ofCleveland, 25 Ohio App. 53, 63, 64." As provided in the charter and outlined by respondent's counsel in argument, the following steps are required for appropriation: (1) a resolution by the city commission declaring its intent; (2) the giving of written notice thereof to the owner in the manner prescribed; (3) passage of an ordinance by the commission ordering the purchase at an agreed price, or (4) if the commission is unable to agree with the owner upon the purchase price, the passage of an ordinance directing the appropriation to proceed; and (5) application by the city attorney to the Court of Common Pleas or Probate Court, followed by (6) subsequent procedures in accordance with general law. Thus far only the first two of these steps have been taken. Hence the city has not yet acquired the property and can exercise no proprietary rights therein. The relator is still the owner and as such is entitled to use and improve its property in any lawful manner it may see fit. Denial of a building permit for the sole reason that the city may later appropriate is an unauthorized present interference with relator's rights of ownership. *Page 543 Considerable argument has been devoted to the cases of Henle v. City of Euclid, 97 Ohio App. 258, 125 N.E.2d 355, andState, ex rel. Sun Oil Co., v. City of Euclid, 164 Ohio St. 265, 130 N.E.2d 336. However the applicable appropriation procedures and status of the public project in those cases may differ from the present situation, still the principles enunciated there have significance here. In the latter case the Supreme Court said (pp. 271, 272): "* * * The municipality has no power or authority to appropriate lands for some contemplated future use. City ofCincinnati v. Vester, 281 U.S. 439, 448, 74 L. Ed., 950,50 S. Ct., 360. "The Court of Appeals in the course of its opinion in theHenle case said: "`The claim that the city has the right to "freeze" plaintiff's property, preventing her from its beneficial use until the city gets around to appropriating it for public purposes as a part of the Lakeland Freeway, is without foundation. If the city needs the property in that development, then an immediate proceeding in eminent domain would end this lawsuit. All that has been done so far toward building the Lakeland Freeway is tentative in character. The proceeding looking to the construction of the freeway has not reached a stage compelling the city to appropriate the property, nor is the plaintiff compelled to stand by, paying taxes without benefit, until the development reaches a stage, if it ever does, where her property must be taken for freeway purposes. Section713.14, Revised Code.' "With this statement of the law we concur, and it is equally applicable to the facts and issues in this case." Respondent argues that significant strides have already been taken toward performance of this public project. This fact does not constitute an appropriation of relator's property. It is argued further that by virtue of Sections 719.21 and 2709.46, Revised Code, the city might, even after assessment of compensation, decline to take the property; that is to say, that it might then relinquish the rights it had acquired. Such subsequent possibility does not avoid the necessity of its first acquiring rights in the property before exercising dominion over it. *Page 544 We can readily appreciate the difficulties confronting both the city and the relator. The location of the project has already been the subject of prolonged public debate; and the city must deal with other governmental agencies, both state and federal, as well as with engineers and others, in completing its plans and embarking upon final action. Relator, on the other hand, can hardly be expected to refrain indefinitely from embarking upon its plans until others complete theirs. As we understand the plans of the relator, they contemplate the razing of present buildings. It is entirely possible that these would be demolished and new construction not yet substantially begun, when the city might appropriate, to relator's serious loss. Hence, there are hazards on both sides. But such circumstances cannot affect the present legal rights of the parties which we are called upon to determine. If no appropriation were contemplated, relator would unquestionably be entitled to a writ, if indeed a building permit were then refused. He cannot be denied the writ because of a possible future appropriation which has not yet occurred and may never occur. The city not having appropriated the property, and the application for a building permit being admittedly in due form, relator cannot be denied its rights of ownership by withholding the permit. The writ is granted. Writ allowed. HORNBECK, P. J., and WISEMAN, J., concur.

2016-07-06 06:42:10.375747+00

Krupansky

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 253 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 254 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 255 Defendant-appellant Gary A. Oatey appeals from a prejudgment order of the Cuyahoga County Common Pleas Court, Domestic Relations Division, awarding plaintiff-appellee Susan A. Oatey $100,000 in attorney fees funded by an immediate court-ordered sale of substantial marital property. We reverse and remand for further proceedings consistent with this opinion. Plaintiff filed a complaint for divorce in domestic relations case No. D-200521 against defendant and five other defendants who are not parties to the appeal sub judice, viz.: (1) Oatey Company; (2) Oatey Company Profit Sharing Trust Savings Incentive Plan; (3) Cardinal Federal Savings Bank; (4) Society National Bank; and (5) Ameritrust Company, National Association. Plaintiff requested a divorce, custody of the couple's three minor children, alimony, child support, an equitable division of property, attorney fees, temporary restraining orders against the six defendants prohibiting the disposition of various property and other equitable relief. Plaintiff subsequently filed an amended complaint naming seven additional defendants who are not parties to this appeal for the purpose of obtaining additional temporary restraining orders against the transfer of property in which *Page 256 plaintiff claims an interest. It appears from the record the Oateys have accumulated substantial marital assets. Defendant Gary Oatey filed an answer and an amended answer and counterclaim requesting a divorce, custody of the three children, an equitable division of property, attorney fees and other relief. During the course of the proceedings in the domestic relations court plaintiff filed a motion for interim attorney fees and costs in addition to a separate motion for temporary alimony and child support. The domestic relations court granted the motion for attorney fees after conducting a hearing over a three-day period. The domestic relations court order journalized July 2, 1991 (the "Order") awarded plaintiff $100,000 as interim attorney fees, ordered defendant to pay plaintiff's counsel $50,000 within seven days of journalization of the "Order" and to deposit the proceeds from the court-ordered sale of certain condominiums in escrow within sixty days pending further order of the domestic relations court. The "Order" continued the prior temporary restraining orders on all the parties' remaining assets and did not contain the express language "no just reason for delay" pursuant to Civ.R. 54(B). Defendant filed a notice of appeal from the "Order" July 9, 1991 raising eleven assignments of error.1 Plaintiff thereafter commenced proceedings to enforce the "Order" in the domestic relations court and filed a motion in this court of appeals to dismiss the appeal contending the "Order" from which defendant appealed was not a final appealable order. This court of appeals granted defendant's motion for a stay of execution of the "Order" July 29, 1991 upon the posting of a $100,000 supersedeas bond after the domestic relations court denied a similar motion. Defendant subsequently filed a "Motion to Supplement the Record on Appeal" pursuant to App.R. 9(E) to include as part of the record in the appeal sub judice various original papers from proceedings conducted by the domestic relations court to enforce the "Order" while defendant's appeal from the underlying "Order" was pending in this court of appeals. Defendant's motion contends the enforcement proceedings demonstrate the "Order" from which he appealed constitutes a final appealable order. Plaintiff's motion to dismiss the appeal sub judice and defendant's motion for leave to supplement the record on appeal have been referred to the merit panel for disposition. For the sake of simplicity, this court shall address defendant's motion to supplement the record prior to considering plaintiff's motion to dismiss and the additional authority submitted by the parties concerning this jurisdictional issue. *Page 257 Motion for Leave to Supplement Record Defendant contends interlocutory orders are not enforceable by the domestic relations court prior to final judgment; however, since the domestic relations court attempted to enforce the "Order," defendant maintains this makes the "Order" "final."2 However, the enforceability of orders entered by domestic relations courts does not depend upon whether such orders are classified as "final" or "interlocutory" for purposes of appeal. Notwithstanding defendant's argument to the contrary, interlocutory orders entered during the course of the proceedings may be enforced by a domestic relations court against a noncomplying party prior to final judgment. In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657; see, also,Ollick v. Rice (1984), 16 Ohio App.3d 448, 16 OBR 529,476 N.E.2d 1062 (probate court). The mere filing of a notice of appeal from the order by a noncomplying party does not divest the domestic relations court of jurisdiction to enforce an interlocutory or final order pending appeal unless the party is granted a stay of execution of the order. In re Kurtzhalz, supra;Pugh v. Pugh (1984), 15 Ohio St.3d 136, 15 OBR 285,472 N.E.2d 1085; Buckles v. Buckles (1988), 46 Ohio App.3d 118,546 N.E.2d 965; Huelsman v. Huelsman (Nov. 17, 1988), Cuyahoga App. No. 54684, unreported, at 22-23, 1988 WL 122899; White v. White (1977), 50 Ohio App.2d 263, 272, 4 O.O.3d 225, 230,362 N.E.2d 1013, 1019. Although this court's stay of execution renders any purported enforcement of the "Order" by the domestic relations court pending appeal a nullity, the stay has no effect on the finality of the "Order." Gieg v. Gieg (1984), 16 Ohio App.3d 51, 16 OBR 55, 474 N.E.2d 626. We find defendant's proffered materials relating to subsequent proceedings conducted in the domestic relations court after defendant's notice of appeal to this court of appeals do not fall within the scope of App.R. 9(E) and are not relevant to the determination of the jurisdiction of this court or the merits of the appeal sub judice. Accordingly, defendant's motion for leave to supplement the record is not well taken and is hereby denied. *Page 258 Motion to Dismiss Plaintiff's motion to dismiss the appeal sub judice contends the underlying "Order" for the payment of attorney fees was entered pursuant to the temporary alimony and attorney fees provisions of Civ.R. 75(M)(1) and Dom.Rel.Loc.R. 21 and constitutes an interlocutory order from which no appeal may be taken prior to a final judgment disposing of the entire case based upon Loc.App.R. 20 and Civ.R. 54(B). Loc.App.R. 20 governs jurisdiction in appeals from actions involving multiple claims or parties and provides as follows: "Appeals involving either multiple claims or multiple parties are not within the jurisdiction of this court unless: "1) A judgment disposition in the trial court determined all issues and all claims involving all parties, or "2) A partial disposition in the trial court is accompanied by a determination by that court under Civ.R. 54(B) that there is no just reason to delay entering judgment on issues, claims or parties involved in the partial disposition." Civ.R. 54(B) likewise provides as follows: "Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Defendant's brief in opposition argues the "Order" for interim attorney fees was entered pursuant to R.C. 3105.18(H) and constitutes a final appealable order affecting a "substantial right" made in a "special proceeding" within the scope of R.C. 2505.02 to which neither Loc.App.R. 20 nor Civ.R. 54(B) applies. R.C. 3105.18(H), which was enacted and became effective after plaintiff filed her motion for attorney fees in the case subjudice, provides as follows: "In divorce or legal separation proceedings, the court may award reasonable attorney's fees to either party at any stage ofthe proceedings, including, but not limited to, any appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it *Page 259 determines that the other party has the ability to pay the attorney's fees that the court awards. When the court determines whether to award reasonable attorney's fees to any party pursuant to this division, it shall determine whether either party will be prevented from fully litigating his rights and adequately protecting his interests if it does not award reasonable attorney's fees." (Emphasis added.) R.C. 2505.02 defines "final order" in pertinent part as follows: "An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, anorder that affects a substantial right made in a specialproceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial." (Emphasis added.) Although the underlying motion for attorney fees in the casesub judice was filed prior to the effective date of R.C.3105.18(H), the motion was heard and decided by the domestic relations court after the effective date. The "Order" expressly states, "[t]his matter came on to be heard on June 18th, 25th and 26th upon Plaintiff's motion for interim fees and costs pursuant to Local Rule 21 as amended by O.R.C. 3105.18(H)." Consequently, we conclude the domestic relations court relied upon and decided its "Order" in the case sub judice pursuant to the guidelines specified in R.C. 3105.18(H). Defendant contends that since attorney fees incurred by a party in litigation are not ordinarily recoverable from an opposing party absent statutory or other authority, R.C.3105.18(H), therefore, establishes a definitive statutorily authorized "special proceeding" within a domestic relations action to recover such attorney fees. Although an order mandating immediate payment of attorney fees to an opponent clearly affects a "substantial right" of a party, we reject defendant's argument R.C. 3105.18(H) categorically establishes a "special proceeding." Defendant has offered nothing to support his contention that R.C. 3105.18(H) departs from the prior longstanding well-developed practice governing the timing of appeals from orders in domestic relations cases granting attorney fees pending final disposition of the case. Authority existing prior to the enactment of R.C. 3105.18(H) sanctioned motions for attorney fees during the course of domestic relations proceedings prior to final judgment, Stuart v. Stuart (1944),144 Ohio St. 289, 29 O.O. 432, 58 N.E.2d 656, during appeals,Lee v. Lee (1983), 10 Ohio App.3d 113, 10 OBR 137,460 N.E.2d 710, or in proceedings to modify or enforce domestic relations orders, Rand v. Rand (1985), 18 Ohio St.3d 356, 18 OBR 415,481 N.E.2d 609; Blum v. Blum (1967), 9 Ohio St.2d 92, 38 O.O.2d 224,223 N.E.2d 819. *Page 260 Such attorney fee awards were generally characterized as a component of "alimony" or as "necessaries" supplied to the parties' spouse or children, Hamilton v. Hamilton (1988),40 Ohio App.3d 190, 532 N.E.2d 213, although some awards were not in fact made as part of alimony or child support obligations.E.g., Butler v. Butler (Apr. 17, 1986), Cuyahoga App. No. 50422, unreported, 1986 WL 249. The discretion of the domestic relations court in awarding such attorney fees was likewise guided by,inter alia, the parties' respective needs and ability to pay.Swanson v. Swanson (1976), 48 Ohio App.2d 85, at 94-95, 2 O.O.3d 65, at 70-71, 355 N.E.2d 894, at 900-901. It was likewise well established prior to the enactment of R.C. 3105.18(H) that prejudgment orders in domestic relations actions, including attorney fee awards, generally constitute ordinary proceedings in the domestic relations action from which an appeal may not be taken until final disposition of the case.Galbreath v. Galbreath (June 13, 1989), Franklin App. No. 89AP-103, unreported, 1989 WL 65389; Daughtry v. Daughtry (1973), 47 Ohio App.2d 195, 1 O.O.3d 275, 353 N.E.2d 641;Venable v. Venable (1981), 3 Ohio App.3d 421, 3 OBR 498,445 N.E.2d 1125.3 As in other cases, absent a finding of contempt or some other basis for immediate review, a party filing an appeal from an attorney fee award prior to final judgment in a domestic relations case must demonstrate the order awarding attorney fees "affects a substantial right made in a special proceeding" within the meaning of R.C. 2505.02. See Galbreath v. Galbreath,supra. The Ohio Supreme Court has established a balancing test based on the following factors to determine whether an order, such as the "Order" in the case sub judice, was made in a "special proceeding": "This test weighs the harm to the `prompt and orderly disposition of the litigation,' and the consequent waste of judicial resources resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable." Id.; Amato v. Gen. Motors Corp. (1981), 67 Ohio St.2d 253, 258, 21 O.O.3d 158, 161,423 N.E.2d 452, 455; Voss v. Voss (1989), 62 Ohio App.3d 200, 203-204,574 N.E.2d 1175, 1176-1177. Based upon our balancing of the factors discussed inAmato, supra, this court concludes the "Order" sub judice affects a "substantial right" made in a "special *Page 261 proceeding" under R.C. 2505.02. We recognize that immediate appeals from attorney fee awards would under most circumstances constitute unwarranted interference with the timely resolution of domestic relations actions since the awards would be subject to reconsideration prior to final judgment in each case and could be adequately reviewed at that time. Galbreath v.Galbreath, supra, at 8. However, the "Order" falls within the narrow range of cases warranting immediate review based upon a substantial likelihood of extreme and irreparable harm since the attorney fee award is funded by an immediate court-ordered sacrifice sale of substantial property and mandates payment of prospective fees to a non-party without any provision for reimbursement. We agree with the Fifth District Court of Appeals which held prior to the enactment of R.C. 3105.18(H) that an order to liquidate business assets and real estate to facilitate the subsequent division of property and to pay, inter alia, attorney fees prior to the final disposition of a divorce proceeding constitutes a final appealable order under R.C. 2505.02 to which Civ.R. 54(B) does not apply. Joseph v. Joseph (Jan. 25, 1988), Stark App. No. CA-7126, unreported, 1988 WL 8490. The Joseph court reasoned that such an order mandating the sale of marital assets prior to disposition of the entire case is similar to a foreclosure decree, where the order of sale is immediately appealable although the action is not yet concluded, since it is impossible as a practical matter to unwind the sale if the order is later found to be erroneous. Id. at 7 (citingThird Natl. Bank of Circleville v. Speakman [1985], 18 Ohio St.3d 119, 18 OBR 150, 480 N.E.2d 411). The Joseph court stated as follows: "We conclude that the order of the trial court, in effect liquidating the businesses of the parties by a procedure akin to receivership or partition, so impacts with finality the rights of the respective parties as to `affect a substantial right' of these parties. The sale of the business assets would be an event from which the trial court and the parties could hardly retrench in the event it was determined the judgment was in error."Id. at 6-7. The "Order" in the case sub judice directed defendant to liquidate numerous condominiums within sixty days, distribute $50,000 of the proceeds to plaintiff's attorney and place an additional $50,000 in escrow to ensure payment of possible future attorney fees and expenses of litigation. Ordering such an immediate wholesale sacrifice sale of real property accumulated over the course of years is not commercially reasonable and may irrevocably deprive both parties from realizing the fair market value of the assets to their detriment and "so impacts with finality the rights of the respective parties" to constitute an order made in a "special proceeding" warranting an immediate appeal prior to the final disposition of the entire case. SeeVan Fossen v. Van Fossen (1988), 47 Ohio App.3d 175, *Page 262 547 N.E.2d 1237 (court-ordered auction of marital property "forthwith" as part of divorce decree reversed as an abuse of discretion). As noted by the Van Fossen court, the role of the domestic relations court is to resolve the parties' disputes in a fair and equitable manner at a difficult time in their lives rather than embroiling them in further litigation. Id. at 176,547 N.E.2d at 1238. Ordering an immediate wholesale sacrifice sale of real property without regard to market conditions constitutes an abuse of discretion. Id. Any losses sustained by the parties as a result of the liquidation of the marital property would be irreparable as a practical matter and unnecessary since much of the proceeds are ordered to be stored in a bank account to hold for possible future expenses. R.C. 3105.18(H) governs the payment of reasonable interim attorney fees and it is an abuse of discretion for the domestic relations judge to order immediate payment of substantial prospective attorney fees since the effect is to mandate extending credit to counsel for an opposing party who renders services only at the discretion of the client and who may not continue to provide services until final disposition of the case. Accordingly, plaintiff's motion to dismiss is not well taken and is hereby denied. Prior to considering the merits of the parties' respective arguments concerning the "Order," this court must address one other preliminary matter. Defendant's brief on appeal does not separately brief and argue his eleven assignments of error as mandated by App.R. 12(A).4 Consequently, the court shall disregard the assignments of error which are not properly briefed and argued and address only defendant's fifth, sixth and eighth assignments of error which are properly executed. Jackson v.Jackson (Dec. 26, 1991), Cuyahoga App. No. 59459, unreported, 1991 WL 280984. We shall address defendant's sixth assignment of error first. I Defendant's sixth assignment of error follows: "The lower court committed prejudicial error in finding plaintiff's motion for interim fees and costs well taken and granting same." Defendant's sixth assignment of error is well taken. Defendant argues plaintiff did not sufficiently demonstrate the "reasonableness" of the direct payment to plaintiff's counsel of $50,000 within seven days or the total award of $100,000 in interim attorney fees, or that plaintiff would be *Page 263 prevented from fully litigating her rights or adequately protecting her interests in the case without such an immediate payment or award. Appellate review of attorney fee awards in domestic relations actions is not intended to deny awards of reasonable attorney fees and is limited to determining whether (1) the factual considerations upon which the award was based are supported by the manifest weight of the evidence, or (2) the domestic relations court abused its discretion. Linehan v. Linehan (1986),34 Ohio App.3d 124, 517 N.E.2d 967 (citing Swanson v. Swanson,supra, 48 Ohio App.2d at 90, 2 O.O.3d at 68, 355 N.E.2d at 898). An "`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, 450 N.E.2d 1140, 1142. We note that R.C. 3105.18(H) authorizes domestic relations courts to order the payment of reasonable interim attorney fees for completed services upon proper application from time to time during the course of the proceedings and not prospective attorney fees at the inception of a case as in the "Order"sub judice. Moreover, an award of reasonable attorney fees must be predicated upon evidence submitted by the movant demonstrating the reasonable value of actual services performed and itemized to the party pursuant to Dom.Rel.Loc.R. 21(B). See, also, Swanson v. Swanson, supra (mere multiplication of the hourly rate by the number of hours expended without evidentiary support is insufficient). The record demonstrates that prior to the filing of plaintiff's motion for interim attorney fees and costs counsel for plaintiff had received a $1,500 retainer and billed plaintiff a total of $3,177.68 for services rendered. Counsel for plaintiff presented a bill at the hearing for additional services in the amount of $24,970 based upon 51.3 hours at $250 per hour and 59.8 hours performed by an associate at $150 per hour.5 However, counsel for plaintiff offered no testimonyconcerning the "reasonableness" of any of the fees in theoriginal or supplemental invoices. In addition, the domestic relations court did not consider whether plaintiff would be prevented from fully litigating her rights without an award of reasonable interim attorney fees in light of her counsel's statement at the final hearing that counsel would continue to provide services without payment until the conclusion of the case. Based upon our review of the record, we find that the "Order" mandating payment of $50,000 within seven days and the total award of $100,000 in attorney fees is unsupported by the evidence and constitutes an abuse of discretion. *Page 264 Under the circumstances, such an award improperly circumvents the requisite finding of the "reasonableness" of such an award pursuant to R.C. 3105.18(H), Civ.R. 75(M) and Dom.Rel.Loc.R. 21. Accordingly, defendant's sixth assignment of error is well taken and the judgment of the trial court is reversed in its entirety and remanded for further proceedings consistent with this opinion. The court shall address defendant's remaining assignments of error pursuant to App.R. 12(A). II Defendant's eighth assignment of error follows: "The lower court committed prejudicial error in including an amount for appraisers' charges in its award." Defendant's eighth assignment of error lacks merit. Defendant contends the "Order" improperly awarded plaintiff appraiser fees due to the fact the trial court improperly excluded testimony at the hearing that plaintiff's appraisers would continue to provide services without such interim payments. However, our review of the terms of the "Order" demonstrates the "Order" makes absolutely no reference of any kind to the payment of appraiser fees. Although the hearing transcript and exhibits indicate that such evidence was presented by plaintiff, the trial court is presumed to consider "only the relevant, material and competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record." State v. Crisp (Dec. 13, 1990), Cuyahoga App. No. 57805, unreported, at 9, 1990 WL 204054. Defendant has failed to exemplify any error. Id. Accordingly, defendant's eighth assignment of error is overruled. III Defendant's fifth assignment of error follows: "The lower court committed prejudicial error in finding that defendant-appellant has the ability to pay what the court awarded." Defendant's fifth assignment of error lacks merit. Defendant contends plaintiff did not adequately demonstrate defendant has the "ability to pay" the award for interim attorney fees of $50,000 within seven days or the total award of $100,000 within sixty days. Defendant argues the evidence demonstrated his annual income of approximately $287,000 not including profit sharing benefits, or $22,814 per month was consumed by monthly expenses of *Page 265 $22,685, and the trial court did not authorize the use of any of the assets subject to restraining orders as collateral for the purpose of obtaining a loan. Although we reverse the trial court's attorney fee award based upon defendant's sixth assignment of error under the facts of this case, we reject defendant's contention that a domestic relations court is prohibited from ordering the commerciallyreasonable sale of marital property to satisfy reasonable court-ordered interim attorney fee awards for completed services. As we have noted, funding such an award by ordering an immediate wholesale sacrifice sale of real property accumulated over years without regard to market conditions or considering less draconian alternatives constitutes an abuse of discretion. Nevertheless, contrary to defendant's argument, a party's "ability to pay" reasonable court-ordered attorney fees encompasses more than the party's current income flow or credit limitations and may include court-ordered asset sales under appropriate circumstances after considering other alternatives to adequately protect the parties' respective interests. Moreover, we note that in the case sub judice there was evidence at the hearing that defendant obtained a short-term loan in the amount of $7,500 from the Oatey Company for a down-payment to obtain a new residence valued at $315,000 despite the stated company policy against making loans. The domestic relations court could properly consider this evidence when making an award. Contrary to plaintiff's contention, defendant's ability to post the $100,000 supersedeas bond within two weeks of the journalization of the "Order" to stay execution of the "Order" does not demonstrate his claimed inability to pay is a sham. Accordingly, defendant's fifth assignment of error is overruled. The judgment of the domestic relations court is reversed in its entirety and the domestic relations court is directed on remand to scrutinize any subsequent attorney fee motion under the Swanson criteria based upon evidence properly submitted to the domestic relations court demonstrating the reasonable value of actual services performed by counsel and itemized to the movant prior to filing the motion. Any orders pertaining to the issue sub judice, entered by the domestic relations court to enforce the "Order" after the domestic relations court was divested of jurisdiction and the stay granted by this court of appeals, shall have no force or effect. Judgment reversed and remanded for further proceedings consistent with this opinion. Judgment reversedand cause remanded. FRANCIS E. SWEENEY, P.J., and JOHN F. CORRIGAN, J., concur. *Page 266 APPENDIX Defendant's eleven assignments of error follow: "Assignment of Error 1. "The lower court abused its discretion and committed prejudicial error when it excluded evidence that plaintiff's attorney would continue to represent plaintiff through final hearing without being paid interim attorney's fees. "Assignment of Error 2. "The lower court abused its discretion and committed prejudicial error when it permitted testimony concerning projections of prospective future appraisers' charges. "Assignment of Error 3. "The lower court abused its discretion and committed prejudicial error when it excluded evidence that plaintiff's appraiser would continue to perform services for plaintiff and plaintiff's attorney even though the appraiser's monthly bills were not paid as submitted. "Assignment of Error 4. "The lower court committed prejudicial error in finding that plaintiff will be prevented from fully litigating her rights. "Assignment of Error 5. "The lower court committed prejudicial error in finding that defendant-appellant has the ability to pay what the court awarded. "Assignment of Error 6. "The lower court committed prejudicial error in finding plaintiff's motion for interim fees and costs well taken and granting same. "Assignment of Error 7. "The lower court committed prejudicial error in awarding plaintiff $100,000 as interim attorney's fees. "Assignment of Error 8. "The lower court committed prejudicial error in including an amount for appraisers' charges in its award. "Assignment of Error 9. "The lower court committed prejudicial error in not rescinding its award when it appointed a valuation expert/special referee to determine property values, ordered defendant-appellant to pay $15,000 by September 16, 1991 for the initial *Page 267 costs of his services, and authorized the valuation expert/special referee to have additional experts appointed to assist in appraising property. "Assignment of Error 10. "The lower court committed prejudicial error in ordering defendant-appellant to pay $50,000 to plaintiff's counsel within seven days. "Assignment of Error 11. "The lower court erred in ordering the sale of nine condominiums and the first $50,000 from the sales proceeds to be paid to plaintiff's counsel, and the balance to be held in escrow pending further order of court." Defendant's three arguments set forth in his brief on appeal follow: "I. As required by the statute which governs plaintiff's motion, O.R.C. Section 3105.18(H), the evidence did not establish that plaintiff-appellee would be prevented from fully litigating her rights and adequately protecting her interests if the lower court did not award reasonable attorney's fees at this stage of the proceedings — to the contrary, the evidence established that plaintiff-appellee would not be prevented from fully litigating her rights and adequately protecting her interests if the lower court did not award reasonable attorney's fees at this stage of the proceedings. "II. The statute which governs plaintiff's motion, O.R.C. Section 3105.18(H), authorizes the court, under certain prescribed conditions that were not satisfied here, to award `reasonable attorney's fees' — it does not authorize the court to award appraisers' charges as it did here. "III. Even though the statute which governs plaintiff's motion, O.R.C. Section 3105.18(H), so requires, the evidence did not establish that appellant has the ability to pay what the lower court awarded — to the contrary, the evidence established that appellant does not have the ability to pay what the lower court awarded." 1 Defendant's eleven assignments of error are set forth in the Appendix. 2 Defendant presented certified copies of various documents from the file in case No. D-200521 indicating the domestic relations court granted plaintiff's motion to enforce the "Order" in an entry threatening possible imprisonment pursuant to R.C. 2705.05 August 15, 1991 despite the stay of execution granted by this court and prior to the filing of the underlying recommendations of the referee concerning enforcement. Defendant subsequently filed timely objections to the recommendations of the referee along with a motion to vacate the referee's report and court order of August 15, 1991. The domestic relations court thereafter entered an order September 9, 1991 holding the enforcement order "effective until October 11, 1991." 3 These cases evolved after the Ohio Supreme Court abandoned a prior line of cases which permitted immediate review of temporary alimony awards, McMahon v. McMahon (1951), 156 Ohio St. 280, 46 O.O. 143, 102 N.E.2d 252, by holding that an abuse of discretion does not render an otherwise interlocutory order relating to an award of attorney fees immediately appealable. See Kennedy v. Chalfin (1974), 38 Ohio St.2d 85, 67 O.O.2d 90,310 N.E.2d 233 (citing Klein v. Bendix Westinghouse Co. [1968],13 Ohio St.2d 85, 42 O.O.2d 283, 234 N.E.2d 587). 4 Defendant's three arguments set forth in his brief on appeal are set forth in the Appendix following defendant's eleven assignments of error. 5 Plaintiff's Exhibit 6 likewise included $461.50 in court reporter fees and $6,247.50 in appraiser's fees neither one of which is properly recoverable as "attorney fees" pursuant to R.C. 3105.18(H). *Page 268

2016-07-06 06:42:10.69623+00

Johnson

This is an appeal on questions of law from an order of the Common Pleas Court of Trumbull County sustaining a demurrer of the defendant-appellee Helen McCowin, administratrix of the estate of Lester McCowin, deceased. A motion was filed by such defendant asking the trial court to dismiss the plaintiff's petition. Since no grounds for dismissal were stated, the trial court treated the motion as a demurrer and dismissed the plaintiff's petition on the grounds that the same had not been filed within the two year statute of limitations. Decedent, Lester McCowin (hereinafter called McCowin) was employed by State Chevrolet Auto, Inc. (hereinafter called State) as an automobile salesman. McCowin owned a 1956 Chevrolet automobile. Under his employment agreement, *Page 63 in addition to owning his automobile he was to carry his own liability insurance. McCowin was covered by a policy of liability insurance issued by the Allstate Insurance Company (hereinafter called Allstate). State also had in full force and effect a comprehensive liability insurance policy issued by American Insurance Group (hereinafter called American), which effected liability insurance coverage on McCowin as well as the other personnel of State. On April 13, 1956, McCowin, while operating his own 1956 Chevrolet automobile, and while in the course of his employment, did demonstrate it to one Harry L. Cornman (hereinafter called Cornman), a passenger and prospective purchaser. In so doing he operated his vehicle in a negligent manner, causing Cornman to sustain personal injuries. Cornman sued State in Mahoning County Common Pleas Court case number 149467. Allstate was advised of the accident and later the lawsuit, and, although demand was made, refused to defend the claim. This action was predicated on the negligence of State by and through its employee, McCowin, by application of the doctrine ofrespondeat superior, as indicated by the second amended petition in such case, marked as Exhibit B, and attached to the amended petition filed herein. Thereafter American effected a settlement of the claim on May 11, 1957. On December 1, 1958, American filed a petition, and on February 2, 1959, an amended petition, against the defendant Helen McCowin, as Administratrix, American having been subrogated to the rights of State. The theory of American is to recover a judgment against the decedent's estate by reason of the negligence of the employee, McCowin, and the right of the employer to recover against the employee. A motion was filed on February 16, 1965, by the decedent's administratrix to dismiss American's petition. This motion was treated as a demurrer by the court, and the petition was dismissed for the reason that American failed to file its petition within the two year statute of limitations provided for in Section 2305.10, Revised Code. *Page 64 The primary question presented by this appeal is whether American's action is barred by the statute of limitations. Secondarily, American questions the right of the trial court to treat a motion to dismiss as a demurrer for the purpose of disposing of the same. The secondary question can be answered under the authority ofState, ex rel. Greenwood, v. Baals, 66 Ohio App. 255, wherein at page 256 it is stated: "In this situation, we are constrained to consider the motion to dismiss as a demurrer to the petition, testing the legal right of the relator to the relief sought." See, also, Zajachuck v. Willard Storage Battery Co., 106 Ohio St. 538. Coming to the primary question, American contends that its right of action is not limited by the provisions of Section2305.10, Revised Code, but by virtue of the provisions of Section2305.07, Revised Code, its action has been timely filed. Section 2305.10, Revised Code, provides: "An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose." Section 2305.07, Revised Code, provides: "Except as provided in Section 1302.98 of the Revised Code, an action upon a contract not in writing, express or implied, or upon a liability created by statute or other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued." We are thus confronted with the question of whether the right of reimbursement of American arises ex contractu or ex delicto. In the former, the statute of limitations (Section 2305.07, Revised Code) is six years, in the latter (Section 2305.10, Revised Code), it is but two years. Liability in the case filed by Cornman against State, in Mahoning County, arose by reason of the fact that its employee, McCowin, while engaged in the scope of his employment, did negligently injure Cornman. Thus the doctrine of respondeatsuperior placed liability on the employer for the employee's negligent acts. The liability is imputed to State and does not arise because State and its employee are joint tort feasors. (This is sometimes referred to as the doctrine of primary and secondary liability.) *Page 65 As was said in Pacific Employers Ins. Co. v. HartfordAccident Indemnity Co., 228 F.2d 365 (certiorari denied October 8, 1956, 352 U.S. 826, 1 L. Ed 2d 49, 77 S. Ct. 38), at page 373: "* * * when the tort is committed in accordance with the express orders of corporate officers or agents carrying out corporate policy, the corporation is a joint tort-feasor, * * *. However, if the tort is the undirected act of the employee acting within the scope of his employment, the corporation is liable solely under the doctrine of respondeat superior. * * *" The relationship of employer and employee arises by contract either express or implied. When a contract of employment was entered into between State and McCowin, it was an implied condition of such contract, if not otherwise expressed, that McCowin was bound to act in good faith and to exercise reasonable care and diligence in performing his tasks. Failure to so act in the interest of his employer constituted a breach of his employment contract. SeeOhio Casualty Ins. Co. v. Capolino, 44 Ohio Law Abs. 564. Subrogation, as defined in Black's Law Dictionary, is: "The substitution of one person in the place of another with reference to a lawful claim, demand or right, * * *." As a substitute, a subrogee insurer stands in no higher position and can have no greater right than its insured. The right of State to recover against its employee is not bottomed in tort, but rather on the indemnity implied in the employment contract. As was said in the Pacific case, supra (228 F.2d 365), at page 373: "Although an insurer subrogated to the rights of an insured is subject to the same statute of limitations as the insured, * * * still an action by Pacific as subrogee of Neil against the two employees would not be a personal [injury] action but rather an action for the enforcement of a right based upon an implied contract of indemnity, Ohio Casualty Co. v. Capolino, Ohio App. 1945, 65 N.E.2d 287. * * *" To hold otherwise would in effect deny to most insurer-subrogees any right of recovery, for all practical purposes. The right of subrogation arises only after payment has been made as a result of the negligent acts of the employee. In the typical personal injury claim, if a subrogation action had to be instituted within the two year statute of limitations imposed by Section 2305.10, Ohio Revised Code, a subrogee could not *Page 66 state a cause of action, for the following reasons: The original action of the injured party could be filed at any time within two years after the accident occurred. But the imputed negligence of the defendant-employer in all probability would not have been determined within the two year period (other than by settlement), and in like manner the amount for which indemnification was sought could not be set out. Frequently, the time from the filing of a case to its disposition is a period of four or five years. Appellee urges that by reason of the provisions of Section2307.191, Revised Code (wherein, among others, employers and employees may be joined by a plaintiff in the same action), the decision of Ohio Casualty Ins. Co. v. Capolino, 44 Ohio Law Abs. 564, is no longer applicable. Conceded that the permissible joinder facilitates action by an injured person, which was not available to a plaintiff until the passage of the above statute, it does not in any way effect the contractural rights existing between the employer and the employee. The headnote of Ohio Casualty Ins. Co. v. Capolino, 44 Ohio Law Abs. 564, reads as follows: "When an insurance company, after issuing a policy of insurance protecting an assured against loss or claims made against the assured due to the negligence of any employee and by the terms of the policy on the payment of a claim is subrogated to the rights of the assured and where such insurer has paid to a third party certain damages sustained by him because of the negligence of an employee of the assured while acting in the course and scope of his employment, an action by the insurer seeking reimbursement from the employee is an action based on contract and is not barred until six years have passed from the date the action accrued." With this statement of law we agree. The present action having been filed within the six year period provided by Section2305.07, Revised Code, the trial court erred in sustaining the motion to dismiss the petition filed herein; and the judgment is, therefore, reversed and the cause remanded for further proceedings in accordance with law. Judgment reversed. JONES and LYNCH, JJ., concur. *Page 67

2016-07-06 06:42:10.908159+00

Patton

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 103 Plaintiff-appellant ZBS Industries, Inc. ("ZBS") appeals from a jury verdict rendered in favor of defendant-appellee Anthony Cocca Videoland, Inc. ("Videoland") on a counterclaim alleging breach of contract and promissory estoppel. On December 10, 1991, ZBS filed a complaint seeking recovery of $170,383.79, representing the amount owed by Videoland for the purchase of videotaped movies from ZBS. On January 29, 1992, Videoland filed an answer and a counterclaim, alleging breach of contract and promissory estoppel claims. In its counterclaim, Videoland maintained that ZBS breached a promise to extend a $150,000 line of credit for a period of two years. At trial, Videoland admitted purchasing the movies from ZBS and the court directed a verdict in favor of ZBS in the amount of $170,383.79. The case then proceeded on Videoland's counterclaim. The transcript of proceedings reflects that Videoland consists of ten video rental stores located in Youngstown, Ohio. ZBS is one of the major distributors of new videotape movies in the United States. From 1985 until the instant dispute arose, ZBS was the principal supplier of new movie titles to Videoland. In June 1991, Videoland was offered an opportunity to sell used videotapes to Blockbuster Video, a national chain of video stores located throughout the United States. Blockbuster, through its broker, Unicorn, Inc., agreed to purchase one thousand forty-five-day-old movies per month from Videoland at a cost of $30 per movie. In order to facilitate the arrangement with Blockbuster, Videoland needed to obtain a $150,000 sixty-day line of credit with its supplier. Videoland contacted ZBS and Jay Schultz, Vice-President of ZBS, orally agreed to the credit terms. Videoland then entered into the agreement with Blockbuster, relying on the promise of ZBS to provide the necessary credit terms. It was conceded by the parties that neither the Videoland-ZBS nor Videoland-Blockbuster agreement was in writing. The record reveals that ZBS established a separate billing account for the movies Videoland would sell to Blockbuster. These movies were reflected in invoices marked "Videoland B." *Page 104 In July 1991, Blockbuster received three hundred movies from Videoland. In August, Blockbuster received five hundred or six hundred movies and by September it was receiving the agreed-upon one thousand movies per month. On November 22, 1991, ZBS Vice-President Schultz contacted Videoland and informed it that ZBS would no longer honor the agreed-upon credit line of $150,000 and sixty-day terms. Schultz informed Videoland that ZBS President Larry Beyer decided not to provide any additional movies to Videoland for resale to Blockbuster. The reason given for the decision was that Beyer was not comfortable with Blockbuster Video or its financial stability. ZBS refused Videoland's request to continue to supply the movies until a new supplier could be found. As a result, Videoland was unable to supply the movies to Blockbuster and the agreement between Blockbuster and Videoland was immediately terminated. ZBS moved for a directed verdict at the close of Videoland's case-in-chief and at the close of all evidence. ZBS argued that Videoland's contract claim was barred by the Statute of Frauds contained in R.C. 1335.05. Additionally, ZBS argued that Videoland's proof of damages was too speculative to submit the issue to the jury. The trial court denied the motion for directed verdict and the counterclaim was submitted to the jury. The jury returned a general verdict in favor of Videoland in the amount of $210,000. Thereafter, ZBS moved for judgment notwithstanding the verdict, or, in the alternative, a new trial. Specifically, ZBS asserted that expectancy damages or lost profits were not recoverable in promissory estoppel actions. The trial court denied the ZBS motion for post-trial relief and the instant appeal followed. The assignments of error raised by ZBS are subject to the same standard of review and thus will be addressed collectively. They provide: "I. The trial court erred in failing to direct a verdict in favor of plaintiff with respect to the defendant's breach of contract counterclaim. "II. The trial court erred in failing to direct a verdict in favor of plaintiff with respect to the defendant's promissory estoppel counterclaim. "III. The trial court erred in denying plaintiff's motion for judgment notwithstanding the verdict, or, in the alternative, a new trial." The test that must be applied by the trial court in ruling on a motion for directed verdict or a motion for judgment notwithstanding the verdict is set forth in Posin v. A.B.C.Motor Court Hotel (1976), 45 Ohio St.2d 271, 74 O.O.2d 427,344 N.E.2d 334. Therein, the Ohio Supreme Court explained at 275, 74 O.O.2d at 430, 344 N.E.2d at 338: "The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a *Page 105 directed verdict. The evidence adduced at trial and the facts established by admissions in the pleading and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions. * * *" (Citations omitted.) Moreover, we note that a review of a motion for a directed verdict does not involve weighing the evidence, but rather involves consideration of the legal sufficiency of the evidence to submit the case to the jury. A motion for a directed verdict thus raises a question of law. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68, 23 O.O.3d 115, 116, 430 N.E.2d 935,937-938. In the first assignment of error, ZBS argues that it was entitled to judgment on Videoland's breach-of-contract claim. Specifically, ZBS contends that uncontroverted evidence presented at trial established the oral contract between ZBS and Videoland was for a definite term of two years. Thus, it is maintained that the breach-of-contract claim is barred by the Statute of Frauds contained in R.C. 1335.05. The argument has merit. R.C. 1335.05 provides in relevant part: "No action shall be brought * * * upon an agreement that is not to be performed within one year from the making thereof, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized." An alleged oral contract is unenforceable pursuant to the Statute of Frauds contained in R.C. 1335.05 where the agreement is not to be fully performed within a one-year period.Shepherd v. Westlake (1991), 76 Ohio App.3d 3, 600 N.E.2d 1095;DeCavitch v. Thomas Steel Strip Corp. (1990), 66 Ohio App.3d 568, 585 N.E.2d 879; Pullar v. Upjohn Health Care Serv., Inc. (1984), 21 Ohio App.3d 288, 21 OBR 433, 488 N.E.2d 486. By all accounts presented below, the alleged agreement was intended by the parties to be for a term of two years. As such, the agreement was not to be fully performed within one year and was, therefore, unenforceable. Accordingly, we find that the trial court should have directed a verdict in favor of ZBS on Videoland's breach-of-contract claim pursuant to the Statute of Frauds contained in R.C. 1335.05. In the second assignment of error, ZBS argues that it was entitled to a directed verdict on Videoland's promissory estoppel claim. Specifically, ZBS *Page 106 contends that it is entitled to judgment as a matter of law because Videoland failed to prove its lost profit damages with sufficient certainty. The argument lacks merit. Lost profits may be recovered by a plaintiff in an appropriate case where "the profits are not remote and speculative and may be shown with reasonable certainty."Charles R. Combs Trucking, Inc. v. Internatl. Harvester Co. (1984), 12 Ohio St.3d 241, 12 OBR 322, 466 N.E.2d 883, paragraph two of the syllabus. Moreover, it has been stated that "the amounts of lost profits, as well as their existence, must be demonstrated with reasonable certainty." Gahanna v. EastgateProperties, Inc. (1988), 36 Ohio St.3d 65, 521 N.E.2d 814, syllabus. The evidence adduced below established that ZBS agreed to supply Videoland with one thousand movies per month at a cost of $60 per movie for a period of two years. Videoland would rent those movies for forty-five days at a fee of $2 per day. Videoland's owner testified that, consistent with industry standards, his stores would rent the movies for at least thirty of the forty-five days, thereby recovering the full $60 cost of the movies. The owner's testimony was supported by business consultant Don Bucci, who also stated that Videoland would recover the full cost of the movies within the forty-five-day rental period. At the conclusion of the forty-five-day rental period, Blockbuster agreed to purchase one thousand of the movies per month from Videoland at a cost of $30 per movie. Under this arrangement, Videoland would earn a profit of $30,000 per month without incurring additional expenses ($30 per movie times one thousand movies). We find that the lost profits were not remote or speculative and were shown with reasonable certainty. Videoland produced sufficient evidence showing that a profit would have been realized if ZBS continued honoring the promised credit terms. Accordingly, we find that the trial court correctly denied the motion for a directed verdict on Videoland's promissory estoppel claim based on the argument that the lost profits were too speculative. In the third assignment of error, ZBS argues it was entitled to judgment notwithstanding the verdict, or, in the alternative, a new trial. In essence, ZBS contends that Ohio law does not permit recovery of lost profits or expectancy damages in a promissory estoppel action. The argument lacks merit. We agree with and adopt the following analysis of the Hamilton County Court of Appeals which appears in Ohio KnifeCorp. v. A.C. Strip (Oct. 21, 1992), Hamilton App. Nos. C-910482 and C-910488, unreported, 1992 WL 308365, regarding the recovery of damages in a promissory estoppel action: "In general, the law of contract recognizes three compensable interests: a restitution interest, a reliance interest, and an expectation interest. We are *Page 107 concerned here with only the latter two. As stated by Calamari and Perillo: `The reliance interest represents the detriment [the promissee] may have incurred by changing his position. The expectation interest represents the prospect of gain from the contract.' Calamari and Perillo, Contracts (2 Ed.1977) 522, Section 14-4. The availability of both expectancy and reliance damages in a promissory-estoppel action was discussed by the court in Mers v. Dispatch Printing Co. (1988), 39 Ohio App.3d 99,105, 529 N.E.2d 958, 966. A damage award in a promissory estoppel claim can be based upon either reliance damages or expectancy damages. 1A Corbin, Corbin on Contracts (1963) 221, Section 200. The remedy should depend on what justice requires in a particular case. Factors to be considered are the definiteness in measuring the damages caused by the reliance and whether the promise relied upon obligates the promisor into the future. 1A Corbin, Corbin on Contracts (1963) 221, Section 200, 240-241, Section 205." See, also, Evets Elec., Inc. v. OhioEdison Co. (Dec. 20, 1991), Trumbull App. No. 89-T-4289, unreported, 1991 WL 274243; Pieper v. Gunderman (Sept. 16, 1991), Paulding App. No. 11-90-15, unreported, 1991 WL 216786. Consistent with the above-cited authority, we find that a plaintiff may recover expectancy damages, including lost profits, in a promissory estoppel action where, as here, the promise relied upon obligates the promisor into the future and those damages are demonstrated with reasonable certainty. Accordingly, we find that ZBS was not entitled to judgment notwithstanding the verdict or a new trial based on the argument that lost profits or expectancy damages were not recoverable in a promissory estoppel action. Consistent with our disposition of the assignments of error presented for review, we affirm the judgment below on the basis that the jury correctly found in favor of Videoland on its promissory estoppel claim. Judgment affirmed. SPELLACY and MATIA, JJ., concur. *Page 108

2016-07-06 06:42:11.018616+00

Petree

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 247 Plaintiffs, Linda S. Colling, individually and as administrator of the estate of her deceased son, Mark E. Longstreth, David M. Longstreth, Sr., and the derivative heirs and next of kin of Mark E. Longstreth, appeal from the Franklin County Court of Common Pleas which granted summary judgment in this wrongful death action to defendants, Franklin County Children Services ("FCCS"), Franklin County Children Services Board, Franklin Village, Franklin County Commissioners, and Carol Hoversten-Pepper. Plaintiffs assert five assignments of error on appeal, as follows: "I. The trial court erred in granting Children Services' worker Carol Hoversten-Pepper immunity under § 2744.03(A)(6)(b) of the Code when, given all reasonable inferences under Civ.R. 56(C), plaintiffs' evidence demonstrates the requisite recklessness to sustain a wrongful death claim against the governmental employee. "II. The off-site outing conducted by Children Services could be characterized as a proprietary function. The trial court erred when it failed to consider the circumstances under §2744.02(B)(2) of the Code as a basis to impose liability upon Children Services. "III. By court order, Mark Longstreth was placed in Children Services' custody and protective residential care. The trial court erred in disregarding the duties and liabilities imposed upon the agency by this common law special relationship. "IV. Mark Longstreth was endangered by Children Services. When reading Revised Code § 2125.01 and § 2744.02(B)(5), in parimateria, the law expressly imposes liability upon the agency for the child's resulting wrongful death. "V. The sovereign immunity act may not be applied in a matter which denies decedent equal protection and due course of law." The present appeal poses the question of whether a county children services agency can be held responsible for the drowning death of a juvenile in its custody at an agency-sponsored fishing trip. Though we disagree with the trial court that, pursuant to principles of sovereign immunity, the agency can never be held liable for agency-sponsored recreational activities, we nonetheless find that there are no genuine issues of material fact to be tried on the instant set of facts. Accordingly, we must affirm the judgment of the trial court. The statement of facts set forth in plaintiffs' brief and accepted by defendants in their brief state the following undisputed pertinent facts. Mark E. Longstreth drowned during an FCCS fishing outing on July 22, 1989. At the time, Mark was subject to the custody and residential care of FCCS in accordance with a July 19, *Page 249 1989 juvenile court dispositional order declaring him an unruly minor. Pursuant to that order, Mark was placed at a residential care facility known as the FCCS Transition Center, which serves as an emergency shelter and care facility and is operated as a "child residence center" under R.C. 5153.03, 5153.16, and Ohio Adm. Code Chapter 5101:2-9. Carol Hoversten-Pepper is a social worker employed at the FCCS Transition Center as an activities therapist whose job duties include the planning and supervision of youth activities for children there. In the days preceding Mark Longstreth's death, Hoversten-Pepper planned a merit outing, involving fishing and swimming, for certain boys who had behaved well at the center during the previous week. These well-behaved boys were told that they were going to go to Alum Creek and perhaps to the beach there to swim. Mark Longstreth was one of those boys. On the day of this outing, Hoversten-Pepper advised the on-site agency staff that the boys were going on a swimming and fishing trip to Alum Creek, but without advising anyone further, she changed the plans in the parking lot of the center because the agency van did not have enough gasoline to get the group to Alum Creek. Because of this, she instead took the boys to fish at the Greenlawn Dam, a closer area on the Scioto River. When they arrived at the river there were no lifeguards in sight. Indeed, Hoversten-Pepper was not qualified in lifesaving or water safety. Moreover, signs were posted expressly prohibiting "swimming and wading" on the pathway taken by Hoversten-Pepper and the children. The children began the outing by fishing on the public dock on the north eastern bank of the dam, but in the afternoon they moved to the more remote western shore across the river. At this location, the river flows quickly and noisily over a spillway. The parties were spread across a bank, underneath a bridge, where there were echoes and muffling sounds from passing traffic. The day was hot and humid; some of the children changed to swimming trunks or cut-offs. At this more remote location, one of the children waded knee-deep to fish. Then other children began wading as well. Hoversten-Pepper called them back as they got "too far out." But Mark Longstreth entered the water anyway. Unfortunately, he came across a hidden drop-off in the water. Consequently, he lost control, struggled and faltered, and he eventually drowned. Hoversten-Pepper did not try to rescue him because she was alone, had no lifesaving background, and could not leave the other children stranded. Further, she had not brought a life preserver, buoy or life jacket that day. The Greenlawn Dam area is generally known as the site of previous drowning deaths. The on-site agency supervisor that day knew of such occurrences and the administrator of the center also had personal knowledge of the known *Page 250 hazards of the site. There is no evidence that Hoversten-Pepper asked anyone about the suitability of the Greenlawn Dam area for purposes of the fishing outing. Section 709.08 of the Columbus City Code prohibits swimming or bathing in a watercourse such as the Scioto River. Further, former Ohio Adm. Code 5101:2-9-51, which applied to children housed in residence centers, prohibited water activities at an unsafe area or where there was no lifeguard present. Subsequent review of the drowning incident by FCCS revealed the following deficiencies: (1) no off-site recreation plan existed; (2) no agency safety policy was in place; (3) no plans for water-related activities existed; and (4) no general assessment tool was employed by the agency to ascertain the hazards or risks of given activities. The Institutional Abuse Summary also commented that children in these circumstances "tend to be rebellious, have impaired judgment and lack control." Carol Hoversten-Pepper had no specific, clear standards for planning or acquiring approval of the off-site activities. The activity she undertook that day was not scheduled on a master calendar, nor subject to approval by any other person at the agency. Carol Hoversten-Pepper independently prepared activity plans by the guidelines of her "common sense" and "good judgment." Performance evaluations of Carol Hoversten-Pepper reveal that in 1986 and 1987 she did not appear to be comfortable in some judgment calls, at times being too lenient and waiting until the boys actually got out of control. Indeed, Hoversten-Pepper knew that Mark Longstreth had trouble obeying authority figures. Moreover, Carol Hoversten-Pepper also knew from previous outings that Mark Longstreth was afraid of deep water and was a poor swimmer. Given this evidence, the trial court held that plaintiffs could not recover from defendants for the wrongful death of Mark Longstreth because R.C. Chapter 2744 provided the political subdivision and its employee, Carol Hoversten-Pepper, with the protection of sovereign immunity. The court noted that when a "governmental function" is involved under R.C. 2744.02(A), neither an agency nor an employee of a political subdivision can be held liable for simple negligence. The court found that the fishing outing here was a governmental function because R.C.2744.01(C)(2)(o) expressly provided that "the operation of a children's home" or agency was a governmental function. The court reasoned that since the provision of adequate recreational opportunities was mandated by statute for such homes and thus was an "integral part" of the operation of such a home, the fishing outing here was necessarily immune. Further, the court rejected plaintiffs' arguments that the common law or other sections of the Revised Code imposed liability on defendants in any event. Last, the court said that there was no genuine issue of material fact concerning recklessness in this case because *Page 251 Carol Hoversten-Pepper was present at all times during this outing and Mark Longstreth was nearly seventeen years old when he went out into the water on his own and drowned. Plaintiffs' first, second, third and fourth assignments of error are related and will be considered together. Plaintiffs argue that there were genuine issues of material fact to be tried in this case which would preclude summary judgment. In this regard, Civ.R. 56(C) provides that summary judgment should only be granted if reasonable minds can reach but one conclusion, and that conclusion is adverse to the nonmoving party.Blankenship v. Enright (1990), 67 Ohio App.3d 303, 305,586 N.E.2d 1176, 1176. The party seeking summary judgment bears the initial responsibility of identifying those elements of the opponent's case which raise no genuine issues of material fact and upon which the moving party is entitled to judgment as a matter of law. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112,526 N.E.2d 798, syllabus. Once the moving party satisfies this burden, the party opposing the motion has an affirmative duty to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. ofTexas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus, citing Celotex Corp. v. Catrett (1986),477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. When reviewing a summary judgment, we apply the same standard as that employed by the trial court. Lorain Natl. Bank v. Saratoga Apts. (1989),61 Ohio App.3d 127, 129, 572 N.E.2d 198, 199. Construing the evidence most strongly in favor of the nonmoving party, summary judgment will be granted where that party fails to make a showing sufficient to establish the existence of an element essential to that party's case and upon which it will bear the burden of production at trial. Celotex, supra, 477 U.S. at 322,106 S.Ct. at 2552, 91 L.Ed.2d at 273. As this court recently noted in Hedrick v. Columbus (Mar. 30, 1993), Franklin App. No. 92AP-1030, unreported, 1993 WL 104713: "* * * R.C. Chapter 2744, Ohio's Political Subdivision Tort Liability Act, * * * was enacted in 1985. This measure was passed in response to the judicial abrogation of sovereign immunity in Ohio in the early 1980's and creates its own framework for analysis of political subdivision liability. SeeBlankenship v. Enright (1990), 67 Ohio App.3d 303, 305-311 [586 N.E.2d 1176, 1176-1180]." Here, the trial court's analysis of defendants' liability was indeed confined to the parameters set by R.C. Chapter 2744. As the trial court noted, the general principle embodied in this chapter of the Revised Code is that sovereign immunity blankets the actions of local government bodies and their employees from the threat of legal liability. R.C. 2744.02(A) provides that a political subdivision is not liable in damages in a civil action for injury, death, or loss *Page 252 allegedly caused by an act or omission of the political subdivision. The express exceptions to this rule, subject to the dictates of R.C. 2744.03 and 2744.05, are enumerated in R.C.2744.02(B). Plaintiffs first assert that R.C. 2744.02(B)(2) and (B)(5) provide exceptions to immunity under the present set of facts. R.C. 2744.02(B)(2) provides: "Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance ofacts by their employees with respect to proprietary functions ofthe political subdivision." (Emphasis added.) The term "proprietary function" is defined in R.C.2744.01(G)(1) as: "* * * [A] function of a political subdivision that is specified in division (G)(2) of this section or that satisfies both of the following: "(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section; "(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons." By contrast, the term "governmental function" is defined in R.C. 2744.01(C)(1) as: "* * * [A] function of a political subdivision that is specified in division (C)(2) of this section or that satisfies any of the following: "* * * "(b) A function that is for the common good of all citizens of the state; "(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function." Though R.C. 2744.01(C)(2)(o) specifically designates as an immune governmental function the "operation of * * * children's homes and agencies," plaintiffs nonetheless argue that the fishing outing in question was part of the proprietary functions of the agency within the meaning of the immunity section in R.C.2744.02(B)(2). Simply put, plaintiffs maintain that such a trip was not essential to the operation of the agency or its purposes and, therefore, the outing cannot be said to fall within the agency's immune operations. We disagree because under R.C.5153.16(O)(1)(c), child care facilities are evaluated yearly by the state to ensure that the children there receive "adequate recreational opportunities" as part of their care. We cannot say that a fishing trip is so far out of the range of "adequate" recreational opportunities and the discretion of the *Page 253 agency in this regard that the agency's action here could be characterized as nongovernmental. Perhaps if the agency deviated altogether from anything that a reasonable custodian would choose as an activity, like taking the boys skydiving or bungee jumping, thereby creating an inherent and substantial risk of harm without any countervailing benefits, we would rule otherwise. However, in this case, the type of activity chosen for these boys appears to be well within the sound discretion of the agency. Plaintiffs next contend that, even if the activity in question is characterized as a governmental function, defendants are nevertheless liable because other sections of the Revised Code impose liability on them. On this score, R.C. 2744.02(B)(5) states that an exception to immunity exists where "liability is expressly imposed upon the political subdivision by a section of the Revised Code. * * *" To establish such liability, plaintiffs cite the definition of legal custody contained in R.C. 2151.011(B)(10), the prohibition against criminal child endangerment contained in R.C. 2919.22, and the wrongful death statute codified at R.C.2125.01 et seq. However, none of these statutes expressly imposes liability upon defendants for the harms alleged by plaintiffs. As the appellate court plainly held in Farra v. Dayton (1989),62 Ohio App.3d 487, 576 N.E.2d 807, a court should give sections of the Revised Code their ordinary meaning and should not "stretch" them to impose liability on a political subdivision for purposes of the exception to immunity contained in2744.02(B)(5). Id. at 496, 576 N.E.2d at 812-813. Plaintiffs also maintain that, even if no express statutory provision imposes liability on defendants for their negligence in this instance, defendants nonetheless have a "special relationship" with children in their care, allowing for common-law liability under the decision of Sawicki v. OttawaHills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468. But as we recognized in Hedrick, the passage of R.C. Chapter 2744 abrogated the public duty/special duty theory of municipal liability. Hedrick, supra; Amborski v. Toledo (1990), 67 Ohio App.3d 47,51, 585 N.E.2d 974, 976. Consequently, the decision of Crago v. Lorain Cty. Commrs. (1990), 69 Ohio App.3d 24,590 N.E.2d 15, which appeared to employ the similar "special relationship" reasoning of Brodie v. Summit Cty. Children Serv.Bd. (1990), 51 Ohio St.3d 112, 554 N.E.2d 1301, cannot control. Plaintiffs lastly contend that, even if defendants cannot be held liable for their negligence, R.C. Chapter 2744 does not absolve either the agency or its employee from liability for reckless behavior. Plaintiffs contend that reasonable minds could conclude that defendants were reckless on the record presented. We cannot agree. *Page 254 In Jackson v. Butler Cty. Bd. of Commrs. (1991), 76 Ohio App.3d 448, 602 N.E.2d 363, the appellate court examined whether a social worker and board of county commissioners could be held liable for the death of a child in the custody of the county's human services department where the child was placed by the social worker in the custody of her natural father, who had previously abused and neglected the child and eventually beat the child to death. The complaint in the consequent wrongful death action against the social worker and the county board of commissioners charged them with "negligent, willful, wanton and reckless conduct" for placing the child in the custody of her abusive natural father, and for failing to provide any protective supervision under the circumstances. After recognizing the general rule of immunity in R.C. 2744.02(A)(1) for political subdivisions in the exercise of their governmental or proprietary functions, the Jackson court noted that the operation of a county human services department is a governmental function, which would exempt the operation of the department from liability for simple negligence under R.C.2744.02(B)(2). The court then analyzed the defendants' liability for wrongful death based on reckless performance of its duties, as follows: "The political subdivision itself is immune from liability if the death or injury resulted from the exercise of judgment or discretion in determining how to use personnel and other resources, unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner. R.C. 2744.03(A)(5). Similarly, R.C. 2744.03(A)(6) provides that: "`In addition to any immunity or defense * * * the employee is immune from liability unless one of the following applies: "`(a) His acts or omissions were manifestly outside the scope of his employment or official responsibilities; "`(b) His acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; "`(c) Liability is expressly imposed upon the employee by a section of the Revised Code.'" Id., 76 Ohio App.3d at 453,602 N.E.2d at 366. Even if a children services agency or its employee could be liable for reckless disregard of the safety of a child committed to its care, as the Jackson court intimated, we cannot conclude under the instant set of facts that there is a genuine issue of material fact concerning recklessness. To define "reckless behavior," the Jackson court employed the test stated in Thompson v. McNeill (1990), 53 Ohio St.3d 102,559 N.E.2d 705 (quoting 2 Restatement of the Law 2d, Torts [1965] at 587, Section 500). The Jackson court said that recklessness occurs if an actor "`"does an act or intentionally fails to do an act which is his duty to the other to do, knowing or having reason to know of *Page 255 facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent."'"Jackson, supra, 76 Ohio App.3d at 454, 602 N.E.2d at 367. Here, however, it cannot be said that either FCCS or Carol Hoversten-Pepper acted in reckless disregard of the rights of Mark Longstreth by taking him on a fishing outing to the Greenlawn Dam area. Plaintiffs simply failed to establish that defendants perceived a substantial risk to Mark Longstreth. His own uncontrollable individual actions in contravention of both the instructions of Hoversten-Pepper and the no-wading signs, assuming that he did see them, are simply too much to charge defendants with under the circumstances. Plaintiffs' first, second, third, and fourth assignments of error are not well taken. In their fifth assignment of error, plaintiffs argue that R.C. Chapter 2744 as construed and applied to the instant set of facts is unconstitutional under due process and equal protection principles. Plaintiffs claim that the state had no real or legitimate interest in limiting the remedies of the children it commits to juvenile facilities where they are supposed to be protected from harm in those facilities. First, it must be noted that a person has no vested right in a rule of common law allowing liability in the place of sovereign immunity. The constitution does not forbid the creation of new or the abolition of old common-law rights.Phipps v. Dayton (1988), 57 Ohio App.3d 11, 566 N.E.2d 181. As noted in Agee v. Butler Cty. (1991), 72 Ohio App.3d 481,594 N.E.2d 1050, when the state consents to be sued, it may qualify and draw parameters around that granted right without violating due process or equal protection. Id. at 484, 594 N.E.2d at 1051, quoting Grange Mut. Cas. Co. v. Columbus (1989), 49 Ohio App.3d 50, 550 N.E.2d 524. When neither a fundamental right nor a suspect classification is implicated, a rational basis test is used to test the statutory classification against the articulated legitimate state interest. Id. Here, the political subdivision had a legitimate interest in limiting its liability to appropriate and manageable boundaries. It could have rationally concluded that unbridled liability stemming from the operation of children's homes and agencies would cripple the ability of the political subdivision to provide the needed services to the children the agency was charged to protect. Plaintiffs did not establish any record to the contrary. Accordingly, we do not find that the Constitution was violated in this instance and, thus, plaintiffs' fifth assignment of error is not well taken. *Page 256 Wherefore, plaintiffs' assignments of error are overruled. The judgment of the trial court is affirmed. Judgment affirmed. BOWMAN and JOHN C. YOUNG, JJ., concur.

2016-07-06 06:42:13.562929+00

Doyle

There has been presented from time to time certain aspects of this case, which was appealed on questions of law and fact from the Court of Common Pleas of Lorain county and which appeal invoked the chancery jurisdiction of this court. Our record of unreported decisions treats of the various questions then presented. The question for determination in this final hearing on the merits is whether a judgment now owned by the defendant Edgar B. Yeckley should be allowed in satisfaction of the judgment which the plaintiffs, Lorenzo and Carmelina Montalto, hold against the said Edgar B. Yeckley. And if it is found that the judgment may be so set off, that conclusion is dispositive of all remaining questions in the action. The record discloses that the Montaltos (plaintiffs) have a valid, subsisting judgment against Yeckley (one of the defendants), and that, after the process of the court was invoked for the collection thereof, Yeckley purchased, from a third party, a judgment which said third party had against the Montaltos, and which judgment had been rendered in the same action in which the judgment in favor of the Montaltos and against Yeckley was rendered. Yeckley prays this court that the judgment which he so purchased be allowed in satisfaction of the judgment which the Montaltos have against him; Yeckley's judgment being the larger in amount of the two judgments. In other words, it is *Page 482 prayed that the one judgment be allowed as an offset against the other. We determine from the evidence the facts to be that the defendant Yeckley purchased the judgment in good faith, for a valuable consideration, and became and now is the absolute and unconditional owner thereof; that the judgment so purchased is greater in amount than the judgment against him. The general rule in equity applicable to such an involvement may be tersely stated in the following language: The assignee of a judgment against his judgment creditor, procured by such assignee subsequent to the rendition of the judgment against him, may have such judgment set off against the judgment against him, where a set-off would have been allowed if the judgment had been recovered directly by him against his judgment creditor. The fact that a judgment debtor purchases a judgment for the purpose of using it as a set-off does not prevent it from being so used, if the purchase is bona fide. 31 American Jurisprudence, Judgments, Section 905. On the general subject of set-off, it is held in this state, in equity, that, as between judgments, it is a matter within the sound discretion of the court to which the application for a set-off is made. Diehl v. Friester, 37 Ohio St. 473; Barbour v.National Exchange Bank, 50 Ohio St. 90, 33 N.E. 542, 20 L.R.A., 192; 121 A.L.R., 478, annotation. This court therefore determines that the after-acquired judgment of the defendant Yeckley may be allowed in full satisfaction of the judgment of the plaintiffs Montalto against the said defendant Yeckley; and a final decree for said defendant may be entered, at the costs of plaintiffs. Decree accordingly. STEVENS, P.J., and WASHBURN, J., concur. *Page 483

2017-01-13 12:08:05.51667+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20170112_C328937_53_328937.OPN.PDF

STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED January 12, 2017 Plaintiff-Appellee, v No. 328937 Wayne Circuit Court DENNIS ALBERT WANGLER, LC No. 15-000568-03-FH Defendant-Appellant. Before: BOONSTRA, P.J., and CAVANAGH and K. F. KELLY, JJ. PER CURIAM. Defendant appeals as of right his jury convictions of conducting a criminal enterprise (racketeering), MCL 750.159i(1), two counts of receiving or concealing stolen property with a value of $1,000 or more but less than $20,000, MCL 750.535(3)(a), three counts of organized retail crime, MCL 752.1084, and attempted receiving or concealing stolen property with a value of $1,000 or more but less than $20,000, MCL 750.92; MCL 750.535(3)(a). We affirm. Defendant first argues that the trial court erred in admitting evidence of items seized from the home of codefendant Carlos Davila (Carlos). We disagree. Defendant’s argument that the evidence is irrelevant is preserved, but his argument that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice is unpreserved because he did not object on that ground below. See People v Aldrich, 246 Mich. App. 101 , 113; 631 NW2d 67 (2001). A trial court’s decision whether to admit evidence is reviewed for an abuse of discretion, which occurs when the decision falls outside the range of principled outcomes or when the court erroneously interprets or applies the law. People v Lane, 308 Mich. App. 38 , 51; 862 NW2d 446 (2014). Any preliminary questions of law are reviewed de novo. Id. The unpreserved aspect of defendant’s argument is reviewed for plain error affecting substantial rights. See People v Carines, 460 Mich. 750 , 763; 597 NW2d 130 (1999). Under the plain error rule, a defendant must demonstrate that an error occurred, that it was clear or obvious, and that it affected substantial rights, i.e., that it affected the outcome of the proceedings. Id. If these requirements are satisfied, reversal is warranted only when the error resulted in the conviction of an innocent defendant or seriously affected the fairness, integrity, or public reputation of the proceedings. Id. at 763-764. -1-  In general, all relevant evidence is admissible, but evidence that is not relevant is not admissible. MRE 402. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401; see also People v Mills, 450 Mich. 61 , 66-67; 537 NW2d 909, mod on other grounds 450 Mich. 1212 (1995). Evidence that is “of consequence to the determination of the action” is “material.” Id. at 67. Evidence need not be directed to an element of a crime or an applicable defense in order to be deemed material. Id. at 67-68. A fact is material if it is within the range of litigated matters in controversy. Id. at 68. Any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence comprises sufficient probative force for the purpose of determining relevance. Id. MRE 403 allows the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. All relevant evidence is prejudicial; only unfairly prejudicial evidence may be excluded. Unfair prejudice exists when there is a tendency that evidence with little probative value will be given too much weight by the jury. Unfair prejudice may arise where considerations extraneous to the merits of the case, such as jury bias, sympathy, anger, or shock, are injected. [People v Danto, 294 Mich. App. 596 , 600; 822 NW2d 600 (2011) (quotation marks and citations omitted).] Defendant challenges the admission of Michigan State Police Sergeant Andrew Osborne’s testimony concerning items recovered from Carlos’s home during the execution of a search warrant. The items recovered included $97,000 in cash, buckets of bulk silver, precious gems, Home Depot gift cards, and a 2006 Chevrolet Corvette. Defendant contends that this evidence was irrelevant and unfairly prejudicial because there was no connection established between defendant and the confiscated items. Defendant’s argument lacks merit because the evidence comprised proof of the existence and nature of a common criminal enterprise in which both defendant and Carlos participated. “In order to prove a racketeering violation, the prosecution must prove beyond a reasonable doubt that the defendant was employed by, or associated with, an enterprise and knowingly conducted or participated in the affairs of the enterprise directly or indirectly through a pattern of racketeering activity.” People v Martin, 271 Mich. App. 280 , 289; 721 NW2d 815 (2006), aff’d 482 Mich. 851 (2008). “The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it.” People v Beller, 294 Mich. 464 , 468; 293 N.W. 720 (1940), quoting People v Pitcher, 15 Mich. 397 , 403-404 (1867). It has likewise been recognized by a federal appellate court that proof of the enterprise and pattern elements of racketeering may well entail evidence of numerous criminal acts by a variety of persons. A single pattern of racketeering may be common to a number of defendants and, in such circumstances, even though individual defendants may reasonably claim no direct -2-  participation in the acts of others, evidence of those acts is relevant to the [Racketeer Influenced and Corrupt Organizations Act (RICO)] charges against each defendant. Specifically, the various criminal activities of racketeering confederates are admissible against each defendant to prove: (i) the existence and nature of the RICO enterprise and (ii) a pattern of racketeering activity on the part of each defendant by providing the requisite relationship and continuity of illegal activities. [United States v Basciano, 599 F3d 184, 207 (CA 2, 2010) (quotation marks and citations omitted).1] It is also “well settled that in prosecutions for racketeering offenses, the government may introduce evidence of uncharged offenses to establish the existence of the criminal enterprise.” United States v Baez, 349 F3d 90, 93 (CA 2, 2003); see also United States v Mejia, 545 F3d 179, 206 (CA 2, 2008) (“Where, as here, the existence of a racketeering enterprise is at issue, evidence of uncharged crimes committed by members of that enterprise, including evidence of uncharged crimes committed by the defendants themselves, is admissible to prove an essential element of the RICO crimes charged – the existence of a criminal enterprise in which the defendants participated.”) (quotation marks and citation omitted). In this case, defendant was charged with conducting a criminal enterprise (racketeering) in connection with his repeated purchases of stolen goods from the same persons and what appeared to be stolen goods from an undercover police officer. Defendant made these purchases in his capacity as an employee of a business called the Wayne Exchange, of which codefendant Carlos was the owner and codefendant Matthew Davila was another employee. It is reasonable to infer that Carlos, as the owner of the Wayne Exchange, retained the greatest share of proceeds arising from the criminal enterprise. The fact that $97,000 in cash was found in a duffel bag underneath the stairs in Carlos’s home, along with other valuable items that could reasonably be concluded to have been acquired with the proceeds of the enterprise, was probative of the existence of the criminal enterprise. It is unlikely that a person would risk keeping such a large amount of cash in his home unless it was related to a criminal activity. Further, the Home Depot gift cards found in Carlos’s home were determined to be the same cards that had been sold by an undercover police officer to the Wayne Exchange, further tying the evidence recovered from Carlos’s home to the criminal enterprise. It is reasonable to infer that the enterprise was ongoing at the time the evidence was recovered from Carlos’s home given that it had been in operation for years and an undercover officer sold goods that were made to appear stolen to the Wayne Exchange less than three weeks before the execution of the search warrant. The evidence concerning the items recovered from Carlos’s home was therefore relevant to the existence of the criminal enterprise. There is no indication that the evidence was unfairly prejudicial, let alone that such unfair prejudice substantially outweighed the probative value. 1 “Lower federal court decisions are not binding on this Court, but may be considered on the basis of their persuasive analysis.” People v Fomby, 300 Mich. App. 46 , 50 n 1; 831 NW2d 887 (2013). -3-  Even if the trial court had erred in admitting the evidence, reversal would not be required. With respect to the unpreserved aspect of his argument, defendant must demonstrate a plain error that affected the outcome of the proceedings. See Carines, 460 Mich. at 763 . Regarding the preserved aspect of his argument, defendant must demonstrate that the error was more likely than not outcome-determinative in that it undermined the reliability of the verdict. See People v Krueger, 466 Mich. 50 , 54; 643 NW2d 223 (2002). The testimony concerning the recovery of items from Carlos’s house was not significant in comparison to other evidence of defendant’s guilt. There was overwhelming evidence regarding the existence of the criminal enterprise and defendant’s key role in that enterprise, including testimony by an undercover police officer who repeatedly sold what appeared to be stolen products to defendant at the Wayne Exchange and from persons who regularly sold actual stolen items to defendant at the Wayne Exchange. The alleged error was not outcome determinative in light of the weight and strength of the untainted evidence. Id. Defendant next argues that the prosecution abused its power in charging him with both racketeering and the offense of organized retail crime. We disagree. Contrary to defendant’s assertion on appeal, he did not raise this issue below, and it is therefore unpreserved. See People v Metamora Water Serv, Inc, 276 Mich. App. 376 , 382; 741 NW2d 61 (2007). A prosecutor has discretion in determining what charges to file. People v Barksdale, 219 Mich. App. 484 , 488; 556 NW2d 521 (1996); see also People v Nichols, 262 Mich. App. 408 , 415; 686 NW2d 502 (2004) (“The prosecution is given broad charging discretion. The prosecutor has discretion to bring any charges supported by the evidence.”) (citation omitted). An abuse of that discretion occurs only if the prosecutor’s reasons for filing charges are unconstitutional, illegal, or ultra vires. Barksdale, 219 Mich. App. at 488 . “Courts thus review a charging decision under an ‘abuse of power’ standard, questioning whether a prosecutor has acted in contravention of the constitution or the law.” Id. “Questions of constitutional and statutory interpretation present questions of law reviewed de novo.” People v Hall, 499 Mich. 446 , 452; 884 NW2d 561 (2016). Because this issue is unpreserved, this Court’s review is for plain error affecting substantial rights. See Carines, 460 Mich. at 763 -764. As our Supreme Court recently explained in Hall, 499 Mich. at 453-454 : Prosecutors have broad discretion in deciding under which statute they will prosecute a defendant, even if more than one statute is applicable. Statutory interpretation begins with the text of the statutes, and effect must be given to every clause and sentence. The Court must avoid an interpretation that would render any part of the statute surplusage or nugatory. When the Legislature has unambiguously conveyed its intent in a statute, judicial construction is not permitted. If a statute is unambiguous, a court should not apply preferential or dice-loading rules of statutory interpretation. A statute is ambiguous if two provisions irreconcilably conflict or if the text is equally susceptible to more than one meaning. If two provisions can instead be construed to avoid conflict, that construction should control. [Quotation marks, ellipsis, and citations omitted.] In Hall, 499 Mich. at 448-449 , 463-464, the Supreme Court held that the defendant could be charged with two separate offenses related to his falsification of nominating petitions in a -4- judicial election. The defendant was charged under both MCL 168.937, a felony offense which prohibited the making of a false document under the Michigan Election Law, and MCL 168.544c(8)(a), a misdemeanor offense that proscribed the specific act of signing another person’s name to a nominating petition. Id. at 463-464. A significant indicator of the Legislature’s intent to allow prosecution under either of two statutes is the fact that the two offenses do not involve the same elements. Id. at 455, citing People v Ford, 417 Mich. 66 , 80; 331 NW2d 878 (1982). The Supreme Court concluded in Hall that MCL 168.937 required proof of a specific intent to defraud, an element that was not present in the offense set forth in MCL 168.544c. Hall, 499 Mich. at 455-456 . A statutory presumption exists that when two statutes related to the same subject matter or sharing a common purpose conflict, the more recent and more specific statute will control. Id. at 458. However, this presumption applies only when the seemingly conflicting statutes are ambiguous. Id. MCL 168.937 and MCL 168.544c each defined distinct prohibited conduct, and the defendant could be charged under the plain language of either provision. Id. at 458-459. “That the two statutes apply concurrently does not render them ambiguous, where each applies independently to prohibit defendant’s conduct. The Legislature frequently and reasonably criminalizes similar instances of misconduct in separate and independent statutes that share common elements.” Id. at 459 (citation omitted). The Court also concluded that the purpose of MCL 168.544c was not to reduce the severity of punishment for election law forgery; rather, it was to criminalize conduct that falls short of common law forgery but still threatens the integrity of elections. Id. “When statutory crimes are distinct, as here, a prosecutor does not abuse his discretion by charging the greater offense.” Id. at 460. See also Ford, 417 Mich. at 80-84 (finding no abuse of prosecutorial discretion in charging the defendant, who forged a credit card slip, with uttering and publishing rather than misuse of a credit card, where the knowing presentation of a forged writing was an element of uttering and publishing but not of misuse of a credit card and the record adequately supported the prosecutor’s exercise of his charging discretion); Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672 , 683-684; 194 NW2d 693 (1972) (a prosecutor has broad discretion in determining under which of two statutes to file charges; if the two offenses are related but nonetheless separate and distinct, the prosecutor has discretion to charge under either statute or both, if warranted by the facts); People v Peach, 174 Mich. App. 419 , 423; 437 NW2d 9 (1989) (“Where a defendant may be charged under two statutes, one general and the other specific, the prosecutor has discretion to charge under either statute if the statutes prohibit different crimes (i.e., an additional element is required to convict the defendant of one of the crimes, but not the other).”). Defendant asserts that the prosecution abused its power by charging him with both organized retail crime and racketeering. He suggests that organized retail crime is the more specific statute that fits the facts of this case. We disagree with defendant’s argument. The provision of the racketeering statute under which defendant was charged, MCL 750.159i(1), provides: “A person employed by, or associated with, an enterprise shall not knowingly conduct or participate in the affairs of the enterprise, directly or indirectly, through a pattern of racketeering activity.” The statutory language thus makes plain that, “[i]n order to prove a racketeering violation, the prosecution must prove beyond a reasonable doubt that the defendant was employed by, or associated with, an enterprise and knowingly conducted or participated in the affairs of the enterprise directly or indirectly through a pattern of racketeering activity.” Martin, 271 Mich. App. at 289 , citing MCL 750.159i(1). “ ‘Enterprise’ includes an -5- individual, sole proprietorship, partnership, corporation, limited liability company, trust, union, association, governmental unit, or other legal entity or a group of persons associated in fact although not a legal entity. Enterprise includes illicit as well as licit enterprises.” MCL 750.159f(a). “Pattern of racketeering activity” means not less than 2 incidents of racketeering to which all of the following characteristics apply: (i) The incidents have the same or a substantially similar purpose, result, participant, victim, or method of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated acts. (ii) The incidents amount to or pose a threat of continued criminal activity. (iii) At least 1 of the incidents occurred within this state on or after the effective date of the amendatory act that added this section, and the last of the incidents occurred within 10 years after the commission of any prior incident, excluding any period of imprisonment served by a person engaging in the racketeering activity. [MCL 750.159f(c).] As explained in Martin, 271 Mich. App. at 290 : “Racketeering” is further defined as “committing, attempting to commit, conspiring to commit, or aiding or abetting, soliciting, coercing, or intimidating a person to commit” certain enumerated offenses for financial gain. MCL 750.159g. Hence, the prosecution must normally prove the commission of each element of the predicate acts of racketeering, in addition to the other elements of racketeering, in order to prove a racketeering violation. “[T]he Legislature intended racketeering to be a separate and distinct offense, the violation of which may be punished separately from and cumulatively with the underlying predicate offenses.” Martin, 271 Mich. App. at 295 , citing MCL 750.159j(13) (“Criminal penalties under this section are not mutually exclusive and do not preclude the application of any other criminal or civil remedy under this section or any other provision of law.”). Racketeering is “a felony punishable by imprisonment for not more than 20 years or a fine of not more than $100,000, or both.” MCL 750.159j(1). The racketeering provision has been in effect since April 1, 1996. See 1995 PA 187 . The Organized Retail Crime Act defines an “organized retail crime” as follows: “Organized retail crime” means the theft of retail merchandise from a retail merchant with the intent or purpose of reselling, distributing, or otherwise reentering the retail merchandise in commerce, including the transfer of the stolen retail merchandise to another retail merchant or to any other person personally, through the mail, or through any electronic medium, including the internet, in exchange for anything of value. -6- The provision under which defendant was charged, MCL 752.1084(1), provides in relevant part as follows: A person is guilty of organized retail crime when that person, alone or in association with another person, does any of the following: * * * (e) Receives, purchases, or possesses retail merchandise for sale or resale knowing or believing the retail merchandise to be stolen from a retail merchant. Another provision of the Organized Retail Crime Act, MCL 752.1085, states: “This act does not prohibit a person from being charged with, convicted of, or sentenced for any violation of law arising out of the same criminal transaction that violates this act.” “Organized retail crime is a felony punishable by imprisonment for not more than 5 years or a fine of $5,000.00, or both.” MCL 752.1084(2). The Organized Retail Crime Act became effective on March 31, 2013. See 2012 PA 455 . Defendant’s argument that he should not have been charged with racketeering because organized retail crime is the more specific offense that fits the facts of this case is devoid of merit. Defendant has made no effort to identify an ambiguity in either the racketeering statute or the Organized Retail Crime Act that would warrant resort to the dice-loading or preferential rule that the more recent and more specific statute controls. See Hall, 499 Mich. at 458 (noting that this presumption applies only if the seemingly conflicting statutes are ambiguous). An appellant may not leave it to this Court to unravel or elaborate for him his arguments. People v Kevorkian, 248 Mich. App. 373 , 389; 639 NW2d 291 (2001). Defendant’s argument has thus been abandoned. Id. In any event, we can discern no ambiguity in the language of the relevant statutory provisions. It is clear from the text of the statutory provisions that the Legislature intended for racketeering and organized retail crime to be separate and distinct offenses. Racketeering requires proof of elements that are not required for a conviction of organized retail crime. In addition to the predicate acts of racketeering, the prosecutor must prove that the defendant was employed by or associated with an enterprise and that the defendant knowingly participated in the affairs of the enterprise through a pattern of racketeering activity. MCL 750.159i(1); Martin, 271 Mich. App. at 289 . By contrast, the Legislature has explicitly provided that organized retail crime may be committed by the defendant alone, and there is no requirement to prove that the defendant was employed by or associated with an enterprise or that he participated in the affairs of the enterprise through a pattern of racketeering activity. MCL 752.1084(1). The Legislature’s intent to allow prosecution under either statute is thus made plain by the fact that the offenses do not involve the same elements. Hall, 499 Mich. at 455 . The Legislature has made amply clear that racketeering is an offense that is separate and distinct from other criminal offenses, see MCL 750.159j(13); Martin, 271 Mich. App. at 295 , and the Legislature has likewise provided in the Organized Retail Crime Act that a defendant may be charged with another offense arising out of the same transaction that led to the organized retail crime charge, see MCL 752.1085. “That the two statutes apply concurrently does not render them ambiguous, where each applies independently to prohibit defendant’s conduct.” Hall, 499 Mich. at 459 . -7-  Accordingly, we conclude that racketeering and the offense of organized retail crime constitute separate and distinct offenses and, thus, the prosecution did not abuse its discretion by charging both offenses. See id. at 460; Genesee Prosecutor, 386 Mich. at 684 . Defendant’s claim that he was subjected to arbitrary or discriminatory charging must therefore fail. See Ford, 417 Mich. at 84 (rejecting a claim of arbitrary or discriminatory charging where the record adequately supported the prosecutor’s exercise of his charging authority). Affirmed. /s/ Mark T. Boonstra /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly -8-

2017-01-13 14:08:26.259813+00

http://www.courts.state.nh.us/supreme/opinions/2017/2017001hagenbuch.pdf

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Department of Health and Human Services No. 2015-0079 PETITION OF KELLY HAGENBUCH (New Hampshire Department of Health and Human Services) Submitted: September 21, 2016 Opinion Issued: January 13, 2017 Tarbell & Brodich Professional Association, of Concord (Friedrich K. Moeckel on the brief), for the petitioner. Joseph A. Foster, attorney general (Laura E. B. Lombardi, senior assistant attorney general, on the brief), for the New Hampshire Department of Health and Human Services. BASSETT, J. The petitioner, Kelly Hagenbuch, has petitioned for a writ of certiorari, see Sup. Ct. R. 11, challenging the termination of her food stamp benefits by the New Hampshire Department of Health and Human Services (department). The department terminated the petitioner’s benefits because it found that her income exceeded the maximum amount permitted by the program. In calculating the petitioner’s income, the department included distributions from an irrevocable trust, of which the petitioner is the sole beneficiary, that had been made by the trustee to third parties. These distributions included payments for trust expenses and for legal fees that the petitioner had incurred to obtain public benefits. On administrative appeal, the presiding officer of the department’s Administrative Appeals Unit (AAU) agreed with the department that the trust distributions counted as income to the petitioner. In her petition for a writ of certiorari, the petitioner claims that the presiding officer erred because the trust distributions should have been excluded from her income for the purpose of determining food stamp benefits. We reverse. The record supports the following facts. The petitioner began receiving food stamp benefits through the department in approximately 2008. The department is the state agency tasked with administering the federal supplemental nutrition assistance program, commonly known as food stamps. See 7 U.S.C. § 2013(a) (2012) (amended 2014); RSA 161:2, XIII (2014). Under the program, the department disburses funds to eligible, low-income households so that the household members may “obtain a more nutritious diet.” 7 U.S.C. § 2011 (2012). Generally, a household is eligible for food stamps if the household’s resources and income fall below certain thresholds. See 7 C.F.R. §§ 273.8(b), 273.9(a) (2016). Alternatively, a household may be “categorically eligible” for food stamps, without regard to its resources and income, if household members qualify for certain other governmental assistance programs. See id. §§ 273.2(j)(2), 273.8(a), 273.9(a). The parties agree that the petitioner is categorically eligible for food stamp benefits. Separate from the question of a household’s eligibility for food stamps is the amount of benefits to which an eligible household is entitled. The amount of benefits an eligible household receives depends, in part, upon the household’s income. See id. § 273.10(e)(2)(ii)(A); see also 7 U.S.C. § 2017(a) (2012). In order to track household income and determine the amount of benefits, the department periodically requires each household receiving food stamp benefits to provide current income information. See generally 7 C.F.R. § 273.14 (2016); N.H. Admin. Rules, He-W 746.02. This is known as the recertification process. See 7 C.F.R. § 273.14(b). In early 2013, as part of her recertification for food stamp benefits, the petitioner submitted income and asset information to the department. In connection with her submission, the petitioner provided information regarding distributions made and income generated by the Kelly Jean Hagenbuch Irrevocable Trust (Trust), of which the petitioner is the sole beneficiary during her lifetime. The Trust was originally funded as part of the settlement of a lawsuit arising out of an injury to the petitioner. Pursuant to the terms of the Trust, an “Independent Trustee” (trustee) is vested with the sole discretion to make distributions to the petitioner or for her benefit. The department examined the Trust’s income and distributions between August 2012 and February 2013 and counted the following distributions as income to the petitioner (collectively, “the trust distributions”): (1) distributions that the trustee made to third parties to cover trust expenses—trust 2 administration fees, legal fees, investment-management expenses, and tax preparation fees—and (2) distributions that the trustee made to the petitioner’s attorneys to pay the legal fees that the petitioner incurred to obtain public benefits. These distributions totaled $20,344.94. None of the distributions was paid directly to the petitioner. In June 2013, the department issued a Notice of Decision, in which it “[c]losed,” i.e., terminated, the petitioner’s benefits, concluding that the petitioner’s net income exceeded the maximum amount permitted by the program. The petitioner’s mother, serving as the petitioner’s representative, filed a timely request for a “fair hearing” with the AAU. RSA 126-A:5, VIII (2015). The presiding officer of the AAU affirmed the department’s decision that the trustee’s payments to third parties constituted income to the petitioner. With the inclusion of those distributions, the petitioner’s income would be too high for her to receive any benefits. The presiding officer denied the petitioner’s motion for reconsideration as it related to the issues relevant to the present petition. This petition followed. On appeal, the petitioner requests that we reverse the presiding officer’s decision that the department properly counted the trust distributions as income. First, she argues that the trust distributions do not meet the definition of income under the regulations. Second, she argues that, even if the distributions are deemed to be income, they fall within one of the income exclusions in the regulations. Third, the petitioner contends that the presiding officer erred by relying upon evidence that was not submitted by either party. The petitioner also requests that we determine whether future payments that the trustee intends to make to the petitioner’s guardian will count as income. “The only judicial review of a fair hearings decision issued by the department is by petition for a writ of certiorari.” Petition of Kalar, 162 N.H. 314 , 318 (2011) (quotation and brackets omitted). “Review on certiorari is an extraordinary remedy, usually available only in the absence of a right to appeal, and only at the discretion of the court.” Petition of Chase Home for Children, 155 N.H. 528 , 532 (2007). Our review of the department’s decision on a petition for writ of certiorari entails examining whether the department has “acted illegally with respect to jurisdiction, authority or observance of the law or has unsustainably exercised its discretion or acted arbitrarily, unreasonably or capriciously.” Id. “We exercise our power to grant such writs sparingly and only where to do otherwise would result in substantial injustice.” Id. This case presents an issue of first impression in New Hampshire: whether a distribution made by the trustee of an irrevocable trust to third parties counts as income to the trust beneficiary for the purpose of determining 3 food stamp benefits. Resolving this issue requires that we interpret federal food stamp statutory and regulatory provisions. “The interpretation of a statute or a regulation is a question of law, which we review de novo.” Petition of Estate of Braiterman, 169 N.H. ___, ___, 145 A.3d 682 , 686 (2016) (slip op. at 4). We interpret federal statutes and regulations “in accordance with federal policy and precedent.” Id. (quotation omitted). “When interpreting statutes and regulations, we begin with the statutory or regulatory language, and, if possible, construe that language according to its plain and ordinary meaning.” Id. Because the department must administer the food stamp program in accordance with federal law, see RSA 161:2, XIII; Petition of Kalar, 162 N.H. at 318 , we begin by examining how federal food stamp law directs state agencies to treat irrevocable trusts. When calculating household resources for the purpose of determining whether the household is eligible for food stamps, a state agency may not include funds in certain types of irrevocable trusts. See 7 C.F.R. § 273.8(e)(8) (2016). The regulations set forth a number of requirements that an irrevocable trust must meet in order for it to be considered an excludable resource. See id. § 273.8(e)(8)(i)-(iv). If the irrevocable trust meets those requirements, any funds in the trust, as well as the “income produced by that trust to the extent it is not available to the household,” are not considered resources of the household. Id. § 273.8(e)(8). Because the parties stipulated in the administrative proceedings that the petitioner’s trust is an excludable resource under section 273.8(e)(8), and the presiding officer accepted that stipulation, we will assume, without deciding, that the Trust is an excludable resource. We express no opinion regarding whether the Trust, in fact, meets the requirements enumerated in section 273.8(e)(8), and we need not decide how the funds in the Trust would be treated if, in the future, the department were to conclude that the Trust is not an excludable resource. Funds in an excluded trust are treated as income when they are withdrawn from the trust, unless the withdrawal is excluded “under the provisions of paragraph (c)” of section 273.9. Id. § 273.9(b)(2)(vi). Paragraph (c), in turn, lists a number of transactions that are excluded from household income. See id. § 273.9(c). One exclusion is for “[a]ny gain or benefit which is not in the form of money payable directly to the household,” including “certain vendor payments.” Id. § 273.9(c)(1). A vendor payment is a payment made by a person outside of the household to a third party for the household’s benefit. Id. A vendor payment is excluded from income for the purpose of determining food stamp benefits if the person making the payment uses funds that “are not owed to the household.” Id. § 273.9(c)(1)(vii) (emphasis added). In contrast, when the funds are “legally obligated and otherwise payable to the household,” but are 4 “diverted by the provider of the payment to a third party for a household expense,” the funds are counted as income. Id. The petitioner argues that, even assuming that the trust distributions otherwise come within the definition of income, the distributions are not counted as income because they were not owed to her and were, therefore, excluded vendor payments. We agree. The narrow question before us is whether the trust distributions were “owed” to the petitioner. Id. The term “owed” is not defined in the regulations, so we look to the plain and ordinary meaning of the word. See Petition of Estate of Braiterman, 169 N.H. at ___, ___, 145 A.3d at 686, 689-91 (interpreting and applying federal Medicaid law) (slip op. at 4, 8-11). The plain meaning of “owe” is, in part, “to be under an obligation to pay.” Webster’s Third New International Dictionary 1612 (unabridged ed. 2002). Thus, funds are “owed to the household” when the household has a legal right to receive the funds. 7 C.F.R. § 273.9(c)(1)(vii). This interpretation is consistent with the provision as a whole, which provides that whether funds are excluded turns on whether the “moneys [are] legally obligated and otherwise payable to the household.” Id. In addition, the regulations provide a number of illustrations of excluded vendor payments, all of which require a determination as to whether a household is entitled to receive the funds in question. See id. § 273.9(c)(1)(vii)(A)-(C). Accordingly, a distribution by a trustee to a third party is an excluded vendor payment if the household does not have a legal right to receive the funds that are used to pay the third party. See id. § 273.9(c)(1)(vii). In order to determine a beneficiary’s rights with respect to withdrawn funds, we examine the terms of the trust. See Restatement (Second) of Trusts § 128, at 276 (1959) (“The extent of the interest of the beneficiary of a trust depends upon the manifestation of intention of the settlor . . . .” (bolding omitted)). Here, the terms of the Trust establish that the petitioner was not owed— i.e., did not have the legal right to receive—the funds used to pay the third parties for trust expenses and legal fees. The trustee has the sole discretion to make payments from the trust, either to the petitioner or to third parties for the petitioner’s benefit. The trustee also has the power to pay trust expenses with trust assets. Despite her status as the beneficiary, the petitioner may not access trust assets, amend the Trust’s terms, or terminate the Trust. Nor does the petitioner have any right to “require payments from the Trust for any purpose.” Indeed, under Massachusetts law, which governs the construction and administration of the Trust, “any right of [a] beneficiary to receive anything [from the trust] is subject to the condition precedent of the trustee having first exercised his discretion.” Pemberton v. Pemberton, 411 N.E.2d 1305 , 1312 (Mass. App. Ct. 1980) (quotation, italics, and brackets omitted); see also Pfannenstiehl v. Pfannenstiehl, 55 N.E.3d 933 , 940-41 (Mass. 2016). 5  Regarding the distributions at issue, the trustee did not exercise his discretion in a manner that gave the petitioner a legal right to receive the funds. See Pemberton, 411 N.E.2d at 1312 . Rather, pursuant to his authority, the trustee chose to pay third parties directly to cover trust expenses and the petitioner’s legal fees. As the presiding officer noted in her final decision, the purpose of the distributions was to satisfy those obligations. In light of the nature of the trust arrangement and the trustee’s actions in this case, we conclude that the funds used for the trust distributions were not “owed to” the petitioner within the meaning of the regulations. 7 C.F.R. § 273.9(c)(1)(vii). The department, however, advances several arguments as to why the trust distributions cannot be considered to be vendor payments. Most of the department’s arguments are subsumed by one overarching theory: because the Trust was originally established with the petitioner’s own funds, no trust distribution—including the trust distributions at issue—may come within the vendor payment exclusion. We disagree. We need not decide the validity of the premise underlying the department’s argument—that because the money used to establish the Trust was derived from the settlement of the petitioner’s personal injury lawsuit, the Trust was established with the petitioner’s “own funds.” Even assuming that the premise is correct, we conclude that the vendor payment exclusion applies to the trust distributions because the regulations do not recognize the distinction that the department attempts to draw regarding trusts originally funded by the household. Although a trust established with household funds must satisfy certain requirements in order to be considered an excludable resource, see id. § 273.8(e)(8)(iv), once the trust qualifies as an excludable resource, the funds in the trust are not considered resources of the household, regardless of whether the trust in question was funded by the household or by a nonhousehold member, see id. § 273.8(e)(8). Likewise, the regulations provide a single framework for determining when funds withdrawn from an excluded trust are treated as income. Neither section 273.9(b)(2)(vi), which excludes from income any trust withdrawal that comes within one of the enumerated exclusions, nor section 273.9(c), which lists those exclusions, limits its application to excluded trusts funded by a nonhousehold member. Rather, when read together, these provisions contemplate that money in an excluded trust—regardless of how the trust was originally funded—will not be attributed to the beneficiary unless and until a non-exempt withdrawal is made. Because the parties agree that the Trust is an excludable resource, any withdrawal from the Trust is subject to the exclusions set forth in the regulations, including the exclusion for vendor payments. The department also argues that, because the Trust must be administered for the petitioner’s benefit, the funds in the Trust are “owed to the 6 household” within the meaning of the regulations. However, as explained above, funds are owed to a household when the household has a legal right to receive the funds. Under the terms of the Trust, the trustee may pay third parties for the petitioner’s benefit or to cover trust expenses, and the petitioner’s status as the beneficiary of the Trust does not, standing alone, give her the right to control trust assets, compel distributions, or receive payment from the Trust. Thus, although the petitioner is the beneficiary of the Trust, until the trustee disburses trust funds that the petitioner has legal right to receive, the funds are not “owed to the household.” In this case, given that the distributions made by the trustee to third parties were not owed to the petitioner—and therefore, were excluded vendor payments—the department should have excluded the trust distributions from the petitioner’s income. Accordingly, we reverse the presiding officer’s decision that the department properly counted the trust distributions as income. In light of our decision, we need not address the petitioner’s other arguments. Also, because the department stipulated during the administrative appeal that future payments made by the trustee to the petitioner’s guardian would be treated by the department in a manner “similar to” the trust distributions at issue here, we need not separately address the question of whether trustee payments to the guardian will count as income. Reversed. DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred; LYNN, J., concurred specially. LYNN, J., concurring specially. I concur with the majority decision but write separately to emphasize the importance to the result reached that the case comes before us based upon a stipulation of facts, which includes the parties’ agreement that the irrevocable trust at issue is an excludable resource for purposes of the food stamp program. See Joint Stipulation of Fact ¶ 8 (“The Trust is not a countable resource for purposes of determining Kelly’s eligibility for benefits under the SSI, Medicaid and Food Stamp programs.”); see also 7 C.F.R. § 273.8(e)(8) (2016). Given that this stipulation has been in place throughout the proceedings before the agency and on appeal, it would be unfair to the parties were we now to call the stipulation into question in deciding the legal issues before us. We therefore properly accept the stipulation in deciding the present case. However, since the petitioner’s future eligibility for food stamps presumably will require that she participate in the “‘recertification’ process mandated under both state and federal law,” Petition of Kalar, 162 N.H. 314 , 321 (2011), and since the department has a continuing responsibility to ensure that the requirements of the law and the regulations are met, id., I believe it 7 important to note that the record raises at least some question as to whether the parties have properly analyzed how the regulations governing the food stamp program apply to the trust at issue in this case. Because the parties’ stipulation includes their agreement that the trust qualifies as a special needs trust for Medicaid purposes, see 42 U.S.C. § 1396p(d)(4)(A), I also assume, without deciding, that this is correct. But merely because a trust qualifies as a special needs trust under Medicaid is not sufficient to make it an excludable resource for food stamp purposes. Section 273.8(e)(8) of the regulations provides, in relevant part, that “[r]esources having a cash value which is not accessible to the household, such as but not limited to, irrevocable trust funds” are to be excluded in determining whether the household meets the resource eligibility requirements of the food stamp program. 7 C.F.R. § 273.8(e)(8) (emphasis added). The regulation goes on to state: Any funds in a trust or transferred to a trust, and the income produced by that trust to the extent it is not available to the household, shall be considered inaccessible to the household if: (i) The trust arrangement is not likely to cease during the certification period and no household member has the power to revoke the trust arrangement or change the name of the beneficiary during the certification period; (ii) The trustee administering the funds is either: (A) A court, or an institution, corporation, or organization which is not under the direction or ownership of any household member, or (B) an individual appointed by the court who has court imposed limitations placed on his/her use of the funds which meet the requirements of this paragraph; (iii) Trust investments made on behalf of the trust do not directly involve or assist any business or corporation under the control, direction, or influence of a household member; and (iv) The funds held in irrevocable trust are either: (A) Established from the household’s own funds, if the trustee uses the funds solely to make investments on behalf of the trust or to pay the educational or medical expenses of any person named by the household creating 8  the trust, or (B) established from non-household funds by a non-household member. Id. (emphasis added). The hearings officer found that the trust, which was funded with the proceeds of the settlement of a personal injury lawsuit brought by or on behalf of the petitioner, was a self-funded trust––that is, one “[e]stablished from the household’s own funds,” id. § 273.8(e)(8)(iv)(A)––and neither party challenges that finding. However, the record before us raises a question as to whether the settlement proceeds ever actually passed through the hands of the petitioner before being placed in the trust. If the petitioner never had control of the settlement funds, there may be an issue as to whether the trust can properly be characterized as self-funded, as opposed to being funded by a “nonhousehold member,” i.e., the tortfeasor or the tortfeasor’s insurance carrier. If the trust is not a self-funded trust, then the hearings officer’s decision is clearly in error because, as we point out, the trust is treated as inaccessible to the petitioner and distributions from the trust made to third parties by the trustee, as a matter of discretion rather than pursuant to a binding obligation to the petitioner, are properly treated as vendor payments excluded from income. See id. §§ 273.9(b)(2)(vi), 273.9(c)(1)(vii). On the other hand, if the hearings officer was correct in treating the trust as a self-funded trust, her decision still seems to be erroneous, but for a different reason. Even assuming that all other criteria of 7 C.F.R. § 273.8(e)(8) are satisfied––and the record before us does not definitively establish that they are—the ostensibly self-funded trust does not appear to qualify as an excludable resource under this regulation because the trustee has not used the trust funds “solely to make investments on behalf of the trust or to pay the educational or medical expenses of any person named by the household creating the trust.” Id. § 273.8(e)(8)(iv)(A). The most apparent deviation from this requirement of the regulations is that trust funds were used to pay for legal services provided to the petitioner; but even the expenditure of trust funds for the payment of trust expenses and trust administration fees appears not to qualify as “investments on behalf of the trust” within the meaning of the regulation. Id. Although the resource eligibility regulations found in 7 C.F.R. § 273.8 do not apply, as such, to the petitioner because she is categorically eligible for food stamps, § 273.8(e)(8) is relevant in determining whether distributions from the trust are included in the petitioner’s income because § 273.8(e)(8) is cross- referenced in 7 C.F.R. § 273.9, the section of the regulations that defines the types of income that are included and excluded for purposes of the food stamp program. Section 273.9(b)(2)(vi) specifically provides that “[m]onies which are withdrawn or dividends which are or could be received by a household from trust funds considered to be excludable resources under § 273.8(e)(8) . . . shall 9 be considered income . . . unless otherwise exempt under the provisions of paragraph (c) of this section.” However, if the trust does not meet the requirements of § 273.8(e)(8), the trust funds are deemed “accessible” to the household. And if the trust funds are accessible to the household, the trust is not treated as an entity separate from the household. But it does not follow that if the trust is not “separate” from the petitioner’s household, all distributions from the trust are deemed to be income to her under 7 C.F.R. § 273.9, which is essentially the manner in which the hearings officer treated them. The settlement monies from which the trust was originally established would appear to qualify as a “lump-sum payment” as defined in 7 C.F.R. § 273.9(c)(8). Such monies are generally treated as a resource in the month received, rather than as income, for purposes of the food stamp program. See id. §§ 273.8(c)(1), 273.9(c)(8). Thus, in the absence of some other consideration which has not been brought to our attention, if the trust is regarded as an asset accessible to the petitioner, the income properly chargeable to her under 7 C.F.R. § 273.9(b)(2)(v) could not exceed the earnings of the trust, which, during the certification period at issue, amounted to $3,158.11––far less than the legal fees, trust expenses and trust administrator fees that the hearings officer attributed to her as income. As with any other asset, withdrawals from the trust in excess of its earnings would appear not to be considered as income to the petitioner, but rather as a reduction of her capital (similar to a withdrawal from the principal of a savings account). 10

2016-07-06 06:42:11.134337+00

OPINION {¶ 1} Defendant-appellant Micah Marshall appeals from the February 14, 2002, Judgment Entry of the Richland County Court of Common Pleas overruling his Motion for Leave to File a Delayed Motion for a New Trial. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶ 2} Appellant was indicted in 1996 on one count of aggravated robbery (Count 1) in violation of R.C. 2911.01 with a firearm specification and one count of robbery (Count 2) in violation of R.C.2911.02. Following a jury trial held in November of the same year, appellant was found guilty on all counts and sentenced to prison for eight to twenty five years on both Counts I and 2. Counts I and 2 were to be served concurrently. In addition, appellant was sentenced to a consecutive three year prison term on the firearm specification. Appellant's conviction was affirmed by this Court pursuant to an opinion filed on August 8, 1997, in Case No. 96-CA-108. {¶ 3} On October 15, 1999, appellant filed a Motion for Leave to File a Delayed Motion for a New Trial based on newly discovered evidence pursuant to Crim.R. 33(B). Appellant, in his motion, specifically contended that he had newly discovered evidence that the Prosecutor purposefully withheld information that was favorable to appellant's case, that the Mansfield Police Department falsified and tampered with information relevant to appellant's case, and that witnesses for the State perjured themselves at appellant's trial. The trial court, pursuant to a Judgment Entry filed on March 16, 2000, overruled appellant's motion, finding, in part, that appellant had failed to prove by clear and convincing evidence that he was unavoidably prevented from discovering the "new evidence" in a timely manner. The trial court's judgment was affirmed by this Court as memorialized in an Opinion filed on September 6, 2000, in Case No. 00-CA-26. {¶ 4} Thereafter, appellant, on November 29, 2001, filed a second Motion for Leave to File a Delayed Motion for a New Trial Pursuant to Crim.R. 33(B), again arguing that his conviction was the result of "improper Police investigation, Perjured Testimony by State Witnesses at his criminal trial concerning the identification of the assailant, which contributed to defendant's conviction." As memorialized in a Judgment Entry filed on February 14, 2002, the trial court overruled the same, holding that the same was not timely filed and that the evidence appellant relied on was not newly discovered evidence. {¶ 5} It is from the trial court's February 14, 2002, Judgment Entry that appellant now prosecutes his appeal, raising the following assignments of error: {¶ 6} "I. TRIAL COURT ERROR [SIC] WHEN IT DENIED DEFENDANT-APPELLANT MOTION WITHOUT REVIEWING THE MOTION UPON IT'S [SIC] MERIT AND RELYING UPON IT'S [SIC] DENIAL FROM IT'S [SIC] PREVIOUS DECISION. {¶ 7} "II. TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING APPELLANT'S MOTION FOR A NEW TRIAL WITHOUT GRANTING AN EVIDENTIARY HEARING AS REQUIRED BY CRIMINAL RULE 33(B), IN VIOLATION OF APPELLANTS RIGHT TO DUE PROCESS OF LAW UNDER THE UNITED STATE [SIC] AND OHIO CONSTITUTIONS." I, II {¶ 8} Appellant, in his two assignments of error, challenges the trial court's denial of his Motion for Leave to File a Delayed Motion for a New Trial Pursuant to Crim.R. 33(B). Appellant specifically contends that the trial court failed to review the merits of appellant's motion and that the trial court erred in dismissing the same without holding an evidentiary hearing. We, however, disagree. {¶ 9} Crim.R. 33 states, in relevant part, as follows: {¶ 10} "(A) Grounds {¶ 11} A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: {¶ 12} (6) When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses. {¶ 13} (B). . . .Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period." {¶ 14} In order to grant a Crim.R. 33 motion for a new trial on the ground of newly discovered evidence, it must be shown that the newly discovered evidence upon which the motion is based: {¶ 15} "(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence." State v. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370, syllabus. {¶ 16} A motion for a new trial pursuant to Crim.R. 33 is addressed to the sound discretion of the trial court. State v. Schneibel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. An abuse of discretion standard also applies to motions for leave to file a delayed motion for a new trial. See State v. Pinkerman (1993), 88 Ohio App.3d 158, 160,623 N.E.2d 643. To constitute an abuse of discretion, a trial court's decision must be unreasonable, unconscionable, or arbitrary. State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144. {¶ 17} Upon our review of the record, we find that the trial court did not abuse its discretion in denying appellant's motion for leave to file a delayed motion for a new trial without holding an evidentiary hearing. We find that the trial court's decision was not arbitrary, unconscionable or unreasonable since appellant failed to establish that the evidence upon which he relies discloses a strong probability that it will change the result if a new trial is granted. Appellant, in his motion before the trial court, argued that he was entitled to a new trial since he was the victim of misidentification. Appellant pointed out that while he is 5'4" and that he has never had a pierced ear, the two victims described their assailant as a black male approximately 5'10" with an earring in his left ear who identified himself as "Andre". Appellant further noted that while he has facial scars and a mustache, the two victims never mentioned either during the trial in this matter. Moreover, appellant also argued that he had evidence that one of the victims herein, a correctional officer at Mansfield Correctional Institution, did not recognize appellant when he walked up to her in the prison in 1998 and 1999. {¶ 18} In support of his motion for leave to file a delayed motion for a new trial based on the alleged new evidence of misidentification, appellant submitted both his own affidavit and the affidavit of James Gilliam.1 James Gilliam, in his affidavit dated October 31, 2001, states, in relevant part, as follows: {¶ 19} "(A). I'am [sic] James Gilliam an inmate at the Richland Correctional Institution in Mansfield. On or about September 28, 2001, while walking on the yard I met a inmate by the name of Micah Marshall, he ask me would I help him with his case, because I have help [sic] so many other guys, [sic] I talked to Marshall and look at his paper work and explain to him that I was aware of his case and I knew Andre Smith, I had help him with his paper work for he could go home on the 4th of October, 2001 on Parole. {¶ 20} "(B). Andre had talked to me about some Robberies, that he had been question [sic] about in the past, Which he wanted to know what was the time period before a person could not be charge [sic] with Robbery, and I took him (Andre) to the Law Library and show [sic] him the statue [sic] on Robberies, Which reads after Seven (7) years no one could be charge [sic] with an [sic] Robbery. {¶ 21} "(C). I explain to Micah Marshall, who Andre Smith was after reading his paper work on his case, And that Andre was in the same block with him, And I would give him an Affidavit and testify to this matter in a court of law if I had to. {¶ 22} "(D). Just by the questions Andre kept asking about the time period the discription [sic] of the person that committed the rebberies [sic] Andre Smith is the man that committed these crimes and not Marshall." {¶ 23} In turn, appellant, in his November 5, 2001, affidavit, states, in relevant part, as follows: {¶ 24} "(16). On October 1, 2001, I (Micah Marshall), was talking to an inmate here at Ri.Ci. about My case because he (Mr. Gilliam) has some knowledge of the Law. {¶ 25} "(17). After looking at my paper work James Gilliam stated that he knew a Andre Smith, I then show Mr. Gilliam an article from the new journal's most wanted of Andre Smith, and at that time Mr. James Gilliam told me that Andre Smith was right here at Ri.Ci. and show Me who he was, and that he was in the same Unit that I was in. {¶ 26} "(18). Mr. Gilliam than told me that he did some paper work for Andre and that Andre asked him about some robberies." {¶ 27} Based on our review of the affidavits, we conclude that appellant has failed to present any new evidence that would entitle appellant to a new trial. Contrary to appellant's arguments, the purported newly discovered evidence "of Andre Smith" does not, in and of itself, create a strong probability of a different result at trial. The fact that a man named "Andre," who appellant alleges fits the description given by the victims herein, asked another inmate about some robberies does not lead to the conclusion that "Andre," rather than appellant, committed the same. {¶ 28} Appellant's first and second assignments of error are, therefore, overruled since the trial court's decision overruling appellant's Motion for Leave to File a Delayed Motion for a New Trial was not arbitrary, unconscionable or unreasonable. {¶ 29} Accordingly, the judgment of the Richland County Court of Common Pleas is affirmed. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Richland County Court of Common Pleas is affirmed. Costs to appellant. By Edwards, J., Gwin, P.J. and Farmer, J. concur. 1 While appellant attached other documents to his November 29, 2001, motion, we note that the same documents, including Exhibits I and J, were attached to his earlier October 15, 1999, motion for leave to file a delayed motion for a new trial. As is stated above, this Court previously affirmed the trial court's overruling of such motion. We shall, therefore, not consider such documents again, since they clearly are not "newly discovered." Nor, for the same reason, shall we consider allegations in appellant's affidavit that relate to Exhibits I and J.

2016-07-06 06:42:11.169333+00

JOURNAL ENTRY AND OPINION {¶ 1} This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. {¶ 2} This appeal is from a judgment of the Cuyahoga County Court of Common Pleas, dismissing the claims filed by appellant Herman Weaver ("Weaver") against appellee the City of Cleveland ("the City" or "Cleveland"). For the following reasons, we affirm the decision of the trial court. {¶ 3} A review of the record reveals the following facts: Weaver is a civil service employee of the City of Cleveland On February 15, 2003, Weaver and another employee were involved in a verbal confrontation, which resulted in the filing of a complaint against Weaver. {¶ 4} On February 26, 2003, the City notified Weaver that a "pre-disciplinary" hearing would be held on March 5, 2003 to determine whether he had committed misconduct. Weaver attended the hearing with a union representative. At the hearing, Assistant Chief of Pipe Repair Jimmy Gates and Assistant Administrator DeAndre Benson, served as the hearing officers. They provided Weaver with statements made by the accuser and his witness, which alleged that Weaver threatened and intimidated the accuser. Weaver was permitted to explain his version of the events and to submit an affidavit from a witness that supported his story. Weaver was not permitted to cross-examine his accuser or the accuser's witness. On March 6, 2003, Commissioner of Water Julius Ciaccia notified Weaver that he would be suspended for ten days, effective March 10, 2003. The ten-day suspension was later reduced to 5 days. Weaver filed a notice of appeal in the Cuyahoga County Court of Common Pleas. The Common Pleas Court found that it lacked jurisdiction to hear the appeal and dismissed the case. Weaver now appeals, setting forth the following sole assignment of error: {¶ 5} "I. The trial court erred to the prejudice of appellant Weaver by granting appellee Cleveland's motion to dismiss appellant's administrative appeal, and finding that it does not have subject matter jurisdiction to hear Weaver's administrative appeal." {¶ 6} In this assignment of error, Weaver contends that the trial court erred in finding that it lacked jurisdiction to hear his appeal. Weaver argues that the trial court had jurisdiction to hear his appeal under R.C. 2506.01. We disagree. {¶ 7} Pursuant to R.C. 2506.01, an individual may appeal from a decision of administrative officers and agencies. Specifically, R.C. 2506.01 provides that: {¶ 8} "Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division of any political subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located." {¶ 9} However, the right afforded by R.C. 2506.01 is limited by Section 121 of the Cleveland City Charter1 and Civil Service Commission Rule 9.21,2 which provide that employees may not appeal from suspensions of ten days or less. Charter provisions and rules, which deal with civil service employment and are promulgated pursuant to the home-rule authority of the Ohio Constitution, will prevail over conflicting state civil service provisions as found within the Revised Code. See Jacomin v. Cleveland (1990), 70 Ohio App.3d 163, 165, citing State, ex rel. Bardo v. Lyndhurst (1988),37 Ohio St.3d 106; State Personnel Bd. of Review v. Bay Village Civ. ServiceComm. (Jan. 19, 1986), Cuyahoga App. No. 49919. {¶ 10} Since Weaver was suspended for ten days (later reduced to 5), he did not have the right to appeal his suspension before the Civil Service Commission. Accordingly, the trial court did not err in determining that it did not have jurisdiction to hear his appeal. See Loparo v. Huron Cty. Gen. Health Dist., Huron App. No. H-03-025, 2004-Ohio-1041; Bodnar v. Lordi (Dec. 7, 1999), Mahoning App. No. 98 CA 198; Houseman v. Fayette Cty.Dept. of Human Serv. (Jan. 30, 1995), Fayette App. No. CA94-08-006; Klosterman v. Payne (Oct. 27, 1975), Hamilton App. No. C-075044. {¶ 11} This assignment of error is overruled. {¶ 12} The judgment is affirmed. Judgment affirmed. Gallagher and Rocco, JJ., concur. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. 1 Section 121 provides in pertinent part: "Any person in the classified service of the City who is suspended for more than ten (10) days may appeal from such a decision to the Civil Service Commission within ten days from and after the date of the suspension." By specifying that this length of suspension is appealable, the City inherently precluded an appeal from a suspension of less than ten working days. See Bodnar v. Lordi (Dec. 7, 1999), Mahoning App. No. 98 CA 198. 2 CSC Rule 9.21 provides in pertinent part: "The Commission will entertain no appeal from a suspension of ten (10) work days or less."

2017-01-13 16:00:35.388772+00

http://www.ca2.uscourts.gov/decisions/isysquery/4c0b1bb5-fbbb-4513-913e-c266ed3ba80b/2/doc/16-0321_so.pdf

16-0321-cv Qiao v. Lynch UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of January, two thousand seventeen. PRESENT: REENA RAGGI, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. ---------------------------------------------------------------------- JIAN QIAO, AKA CHEN MING, Plaintiff-Appellant, v. No. 16-0321-cv LORETTA E. LYNCH, ATTORNEY GENERAL OF THE UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee. ---------------------------------------------------------------------- FOR APPELLANT: David Jason Rodkin, Law Offices of David J. Rodkin, Esq., New York, New York. FOR APPELLEE: Kirti Vaidya Reddy and Christopher Connolly, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge). 1  UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on December 2, 2015, is AFFIRMED. Plaintiff Jian Qiao is a Chinese national who was granted asylum in 2001 on the basis of a well-founded fear of political persecution. He here appeals the dismissal for lack of subject-matter jurisdiction of his complaint challenging the reopening of his removal proceedings based on evidence that he had returned to China on multiple occasions after being granted asylum. We review de novo the dismissal of a complaint for lack of subject-matter jurisdiction, accepting the alleged facts as true and drawing all reasonable inferences in plaintiff’s favor. See Barrows v. Burwell, 777 F.3d 106 , 111 (2d Cir. 2015); Delgado v. Quarantillo, 643 F.3d 52 , 54 (2d Cir. 2011). In so doing, we assume the parties’ familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our decision to affirm. Qiao claims that the district court had jurisdiction to review the Immigration Judge’s (“IJ’s”) reopening decision under 28 U.S.C. § 1331 and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq.1 Judicial review of agency action is not available under the APA where such review is limited by another statute. See 5 U.S.C. § 701(a)(1); Delgado v. Quarantillo, 643 F.3d at 55 . The Immigration and Nationality Act precluded the district court’s review here. It states that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an 1 Qiao has explicitly waived his claim of review jurisdiction under the collateral order doctrine, and thus we do not consider it further. 2 alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9) (emphasis added). Further, “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter.” Id. § 1252(a)(5) (emphasis added). Together, these provisions limit judicial review to determinations whose substance is “inextricably linked” to final orders of removal, Delgado v. Quarantillo, 643 F.3d at 55 (explaining that whether district court has jurisdiction will turn on substance of relief that plaintiff seeks), and then only by courts of appeals, see INS v. Chadha, 462 U.S. 919 , 938 (1983) (stating that court of appeals is exclusive forum for judicial review not only for final order of removal, but also for “all matters on which the final [removal] order is contingent, rather than only those determinations made at the [removal] hearing”). Like the district court, we conclude that the IJ’s challenged order reopening removal proceedings against Qiao is inextricably linked to the removal proceedings, as well as any removal order that may ultimately result from reopening those proceedings. We reach this conclusion because any review of reopening would require consideration of the merits of Qiao’s eligibility for removal—specifically, whether the United States Immigration and Customs Enforcement’s proffered evidence was adequate to support a finding that Qiao is no longer eligible for asylum and is, therefore, removable. Indeed, this conclusion is confirmed by Qiao’s cursory attempt to argue the merits of whether “return trips to the country of alleged persecution were [] alone enough to support an 3 order of removal.” Appellant’s Reply Br. 6. Because reopening is preliminary to and not in fact a final order of removal, and because even such a final order is reviewable only by the court of appeals, the district court correctly dismissed Qiao’s complaint for lack of jurisdiction. We have considered all of Qiao’s remaining arguments and conclude that they are without merit. Accordingly, the dismissal of his complaint for lack of subject-matter jurisdiction is AFFIRMED. FOR THE COURT: CATHERINE O=HAGAN WOLFE, Clerk of Court 4

2016-07-06 06:42:11.230432+00

OPINION {¶ 1} Defendant-appellant, Robert Payne, appeals the sentencing decision of the Butler County Court of Common Pleas. {¶ 2} In January 2006, appellant pled guilty to two fourth-degree felony counts of non-support of dependents in two separate cases. At the beginning of the sentencing hearing, appellant's attorney asked for a one-week continuance to allow appellant's mother to be present and speak on appellant's behalf. The trial court denied the request. After hearing from appellant's attorney, appellant, and J.R. (the mother and custodial parent of two of *Page 2 appellant's children), the trial court sentenced appellant to two consecutive 17-month prison terms. This appeal follows. {¶ 3} In a single assignment of error, appellant argues that the trial court abused its discretion by refusing to continue the sentencing hearing to allow his mother to speak on his behalf and "present relevant mitigation evidence." {¶ 4} The decision to grant or deny a motion for continuance is a matter within the sound discretion of the trial court. State v.Unger (1981), 67 Ohio St.2d 65, 67. Absent an abuse of discretion, a reviewing court will not disturb a trial court's decision denying a motion for a continuance. State v. Grant, 67 Ohio St.3d 465, 479,1993-Ohio-171. An abuse of discretion is more than an error of law or judgment; rather, it requires a finding that the trial court's decision is unreasonable, arbitrary, or unconscionable. See State v.Hancock, 108 Ohio St.3d 57, 2006-Ohio-106. The reviewing court must weigh the potential prejudice to the defendant against the trial court's "right to control its own docket and the public's interest in the prompt and efficient dispatch of justice." State v. Powell (1990),49 Ohio St.3d 255, 259. {¶ 5} Appellant cites R.C. 2929.19(A)(1) and Crim.R. 32(A)(1) in support of his argument. R.C. 2929.19(A)(1) provides that at the sentencing hearing, "the offender, the prosecuting attorney, the victim * * *, and, with the approval of the court, any other person may present information relevant to the imposition of sentence in the case." (Emphasis added.) There is "no requirement [in R.C. 2929.19(A)(1)] that the trial court must allow other persons with an interest in a defendant's sentencing to make a statement." State v. Schweitzer, Auglaize App. No. 2-05-03, 2005-Ohio-5611, ¶ 39. Crim.R. 32(A) (1 ) provides that at the time of imposing sentence, a trial court must "[a]fford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he * * * wishes to make a statement in his * * * behalf or present any information in mitigation of punishment." *Page 3 {¶ 6} The record shows that following appellant's guilty plea, the trial court originally tried to set the sentencing hearing for February 21, 2006. However, at the request of appellant's attorney, the trial court set the hearing for February 28. On that day, appellant's attorney was there. However, neither appellant nor his mother were there. The sentencing hearing was rescheduled for April 4. {¶ 7} As noted above, at the beginning of the April 4 sentencing hearing, appellant's attorney asked for a one-week continuance to allow appellant's mother to be present and speak on appellant's behalf. While originally inclined to grant the request, the trial court denied the request upon realizing that J.R. was present, had already been waiting over three hours, and was "on the clock." The trial court denied the request of appellant's attorney to hear J.R.'s statements but continue the hearing another week to allow appellant's mother to be present and speak on his behalf. The trial court, however, gave appellant's attorney the opportunity to proffer what appellant's mother would say. The attorney replied, "I can't speak to what his mother was going to state." The trial court then heard statements from appellant, his attorney, and J.R. {¶ 8} The foregoing clearly shows that the trial court complied with Crim.R. 32(A) (1 ). Appellant and his attorney were both afforded the opportunity to address the court at the sentencing hearing and both did, in fact, make statements to the court. Appellant's attorney was given the opportunity to proffer what appellant's mother would have said, but did not take this opportunity. In light of all of the foregoing, there is simply no way that the trial court abused its discretion by refusing to continue the sentencing hearing and further delay appellant's sentencing under these circumstances. The sole assignment of error is overruled. {¶ 9} Judgment affirmed. BRESSLER and WALSH, JJ., concur. *Page 1

2016-07-06 06:42:11.406412+00

OPINION On November 3, 2000, the Stark County Grand Jury indicted appellant, Thomas Spencer, Jr., on one count of felonious assault with a firearm specification in violation of R.C. 2903.11 and one count of aggravated menacing in violation of R.C. 2903.21. Said charges arose from the shooting of Michael Darr at appellant's residence. A jury trial commenced on April 11, 2001. A jury was selected prior to lunch. Following the lunch recess, Juror No. 76, an African-American, did not return. The Stark County Sheriff's Department attempted to locate the juror, but they were unsuccessful. Thereafter, the state moved to replace the juror with the first alternate, a Caucasian. Appellant requested a mistrial claiming he was denied his rights under the Thirteenth and Fourteenth Amendments. The trial court denied the request and replaced Juror No. 76 with the first alternate. At the close of the state's case, appellant moved for acquittal pursuant to Crim.R. 29. The trial court sustained the motion as to the aggravated menacing charge. The jury found appellant guilty of the felonious assault charge. By judgment entry filed April 23, 2001, the trial court sentenced appellant to five years in prison plus three years for the firearm specification, to be run consecutively. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I THE JUDICIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT WHEN THE TRIAL COURT DENIED APPELLANT'S MOTION FOR MISTRIAL. II THE TRIAL COURT ABUSED ITS DISCRETION TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT WHEN IT SUBSTITUTED A CAUCASIAN ALTERNATE JUROR FOR AN ABSENT AFRICAN-AMERICAN JUROR WITHOUT EXERCISING DUE DILIGENCE TO LOCATE THE ABSENT JUROR. III APPELLANT WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. I, II In these assignments of error, appellant claims the trial court erred in substituting the first alternate juror for Juror No. 76, and erred in denying his request for a mistrial as a result of that substitution. We disagree. The grant or denial of a mistrial rests in the sound discretion of the trial court. State v. Garner (1995), 74 Ohio St.3d 49. In order to find an abuse of that discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Appellant based his request for a mistrial on the fact that the lone African-American juror, Juror No. 76, failed to appear and was replaced by the first alternate juror who was Caucasian.1 Although appellant alludes to this case being similar to Batson v.Kentucky (1985), 476 U.S. 79, it is clear the facts sub judice do not qualify as a Batson claim. In this case, the jury was sworn and all alternates were passed for cause and peremptory challenges. T. at 122-124. Opening statements by counsel and preliminary instructions by the trial court were given. T. at 126-160. Following the lunch break (1:25 p.m.), Juror No. 76 failed to return. T. at 161. A jury commissioner attempted to contact the juror at his home, but the answering machine came on. T. at 162. At defense counsel's suggestion, the trial court waited until 1:50 p.m. T. at 163-164. Thereafter, the trial court sent sheriff's deputies to the juror's home. T. at 165-166. The deputies called the juror on the telephone and knocked on the door, but received no response. T. at 167. At 2:46 p.m., approximately one hour and fifteen minutes from the end of the lunch break, the trial court replaced Juror No. 76 with the first alternate juror, Juror No. 93.2 T. at 168. Crim.R. 24(F) controls the use of the alternate jurors and the mandatory language states the following in pertinent part: Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. We fail to find that the trial court abused its discretion in following the mandates of Crim.R. 24(F). The trial court made diligent efforts to find the missing juror, including telephone calls, searching the courthouse and sending deputies to the juror's home. There is no showing of any manifest injustice created by the adherence to Crim.R. 24(F). Assignments of Error I and II are denied. III Appellant claims his conviction was against the manifest weight of the evidence. We disagree. On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991), 61 Ohio St.3d 259. On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State v.Thompkins (1997), 78 Ohio St.3d 380. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. Appellant was convicted of felonious assault in violation of R.C.2903.11 which states: No person shall knowingly: Cause serious physical harm to another; Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. Appellant specifically claims there was a failure of proof that he knowingly caused or attempted to cause serious physical harm to Mr. Darr. Although appellant admitted that he discharged his weapon and Mr. Darr suffered a gunshot wound, he did not mean to hit anyone or shoot anyone.3 T. at 150, 154. Appellant challenges the credibility of Mr. Darr and his girlfriend, Lalana Vales.4 At the outset, we note the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v.Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. Appellant testified that on a day previous to the incident, he found his bedroom disturbed and items missing from his home. T. at 541-542. On the morning of the day of the incident, appellant returned home and while he was in the basement, he heard his dog barking and the sound of something being pried. T. at 545. Appellant grabbed his gun and eased open his door. T. at 546. Appellant observed a person dressed in black with a black hood on. T. at 547. As appellant opened the door, the gun discharged. T. at 547. Appellant took the hood off and recognized Mr. Darr. T. at 548-549. Appellant grabbed Mr. Darr as he was going over the banister, but Mr. Darr fell to the ground. T. at 549. Appellant accused Mr. Darr of attempting to break into his home. T. at 551. Before Mr. Darr could answer, appellant noticed Ms. Vales nearby. T. at 551-553. As appellant was speaking with Ms. Vales, Mr. Darr fled. T. at 553-555. Appellant ordered Mr. Darr to stop and when he did not, appellant fired his gun in the air to "catch him." T. at 555. Appellant denied firing any shots directly at Mr. Darr as he fled. T. at 554. Appellant caught up with Mr. Darr and told him not to move while he went in to call the police. T. at 556-557. When appellant went into his home to call the police, Mr. Darr and Ms. Vales ran away. T. at 557. Appellant never called the police. T. at 558. He just secured his house and went back to work. T. at 559. Both Mr. Darr and Ms. Vales testified as to what happened. Mr. Darr testified appellant was looking into who had broken into his home and told Mr. Darr it was a person who was messing with his girlfriend. T. at 176. Mr. Darr admitted that at that time, he was the person who was "messing with her." T. at 175-176. Appellant told Mr. Darr "he knew who it was and he would take care of it." T. 177. On the day of the incident, Mr. Darr went to appellant's home with Ms. Vales to talk about this argument. T. at 178. They observed appellant's vehicles at the home. T. at 178. They knocked on the door, but there was no answer. T. at 184-185. When Ms. Vales knocked again, the door flew open and appellant put a gun in Mr. Darr's face and told Ms. Vales to get down on the ground. T. at 185-186. Appellant waved the gun back and forth and pointed it at them. T. at 186. Appellant punched Mr. Darr in the forehead and grabbed his sweatshirt. T. at 186-187. Mr. Darr went over the porch banister and attempted to flea. T. at 187. He heard a shot and told appellant to "chill out." T. at 187. Appellant approached Mr. Darr. T. at 188. Mr. Darr ran off and heard two more gunshots. T. at 188-191. The third shot hit Mr. Darr. T. at 191. Ms. Vales pulled Mr. Darr into her vehicle and took him to his grandparents' home. T. at 192-193. Ms. Vales testified she and Mr. Darr went to appellant's home because Mr. Darr "wanted to talk to him." T. at 340. After Ms. Vales knocked on the door, appellant came out the door with a gun and went right after Mr. Darr. T. at 346. Mr. Darr went over the porch banister and ran out into the street. T. at 347-348. Appellant told Mr. Darr to come back and pointed his gun at Ms. Vales. T. at 349. Appellant told her to stay on the porch and went after Mr. Darr. T. at 349. From the porch, appellant fired his gun toward Mr. Darr. T. at 350-351. Appellant went over the porch banister after Mr. Darr and fired twice toward his direction. T. at 352-353. Ms. Vales heard Mr. Darr say "ouch" and call her name. T. at 353. Appellant returned and told Ms. Vales to leave. T. at 354. Ms. Vales found Mr. Darr and realized he had been shot in the back with the bullet "sticking out the front of him." T. at 357. Ms. Vales put Mr. Darr in her vehicle and drove him to his grandparents' home. T. at 357. Eventually, Mr. Darr went to the hospital where it was discovered that he had two wounds, one in his left buttocks and one in his abdomen. T. at 249-250, 257, 325. A neighbor testified he heard two shots and someone say "I got you, motherfucker, or something around there." T. at 279-280. Another neighbor heard three shots and observed appellant by a person on the ground. T. at 427, 432. When appellant was questioned by police, he denied being at his home at the time of the shooting and denied his home had been broken into. T. at 447-448. One bullet was taken from Mr. Darr's body and shell casings were found at the scene. T. at 325, 469-472. Given the totality of the evidence, we cannot find the jury lost its way. Appellant claimed two accidental firings of his gun, one in the air. Mr. Darr was shot in the left buttocks with the bullet lodged in his lower abdomen. Both Mr. Darr and Ms. Vales testified that appellant purposely fired at Mr. Darr. A neighbor observed appellant standing over Mr. Darr while another heard someone say "I got you, motherfucker." The evidence relied on the credibility of Mr. Darr and Ms. Vales apart from the substantial evidence of the neighbors and the physical location of Mr. Darr's wounds. Accordingly, we find substantial evidence in the record as a whole, if believed, to support the finding of guilty, and no manifest miscarriage of justice. Assignment of Error III is denied. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. concur. 1 Appellant is African-American. 2 We note the second alternate juror was an African-American. Defense counsel did not request that the second alternate be used. T. at 168-170. 3 We note that the trial court charged the jury on "accident." T. at 722. 4 Ms. Vales was appellant's ex-girlfriend. T. at 175.

2016-07-06 06:42:11.634773+00

OPINION On May 23, 1997, Ramakant Mandalaywala filed a lawsuit against Rashmi N. Yajnik in which he claimed that Mr. Yajnik owed him money based upon investments in working oil wells and as a result of a personal loan. Following service of process, Mr. Yajnik filed an answer which alleged that no funds were due. Mr. Yajnik also filed a counterclaim which alleged that Mr. Mandalaywala was indebted on an account due. Mr. Mandalaywala filed a reply alleging that no funds were owed by him. The case was originally set for trial in May of 1998. Discovery proceeded slowly and the parties agreed to continue the trial date on a number of occasions. Mr. Mandalaywala's counsel began filing motions asking for default judgment for failure of Mr. Yajnik to provide discovery. On June 1, 1999, the trial judge journalized an order requiring Mr. Yajnik to provide discovery or show cause as to why judgment should not be rendered against him. On December 2, 1999, an agreed entry was filed ordering that Mr. Mandalaywala receive directly from the driller, producer or gas company all future royalty or dividend payments derived from his interest in the oil and gas wells. On December 6, 1999, the trial judge granted a motion to compel discovery and ordered the payment of attorney fees and expenses. On January 19, 2000, the trial judge refused to grant default judgment. Attempts at mediation proved unsuccessful. The case ultimately proceeded to trial in April of 2000. On May 17, 2000, the trial judge rendered a decision granting judgment in the sum of $59,800 on behalf of Mr. Mandalaywala. The trial court also granted prejudgment interest at the rate of ten percent per annum beginning January 28, 1993. A final judgment was journalized June 1, 2000. Mr. Yajnik (hereinafter "appellant") has pursued a direct appeal, assigning four errors for our consideration: I. The Trial Court erred to the prejudice of Defendant-Appellant by awarding prejudgment interest when the contract between the parties was rescinded pursuant to R.C. § 1707.43. II. The Trial Court erred to the prejudice of Defendant-Appellant by entering judgment for Plaintiff-Appellee based upon a violation of a statute not specifically pled by Plaintiff-Appellee, to wit: Chapter 1707 of the Ohio Revised Code, without applying the limitation on the bringing of an action thereunder, which limitation is contained in that statute. III. The Trial Court erred to the prejudice of Defendant-Appellant as a matter of law by failing to give Defendant-Appellant credit for monies paid to Plaintiff-Appellee as a return on his investment, Decision in Favor of Plaintiff Following Trial to Court at p. 4, and by failing to terminate the Order which directed that ongoing revenues from the subject oil and gas wells be paid directly to Plaintiff-Appellee, when the Court rescinded the contract subject of this action. IV. The trial court erred to the prejudice of Defendant-Appellant in finding that the November 2, 1993, transfer of Fifteen Thousand Dollars ($15,000.00) was a "personal loan" and not an investment pursuant to contract, when such finding was against the manifest weight of the evidence. We address appellant's second assignment of error first. Appellant asserts the trial court erred in rendering judgment against him based upon a violation of R.C. Chapter 1707 because appellee failed to specifically plead such in the complaint. Further, appellant contends the R.C. Chapter 1707 claim is barred by the applicable statute of limitations. Appellant is correct insofar as Mr. Mandalaywala (hereinafter "appellee") did not specifically assert in the complaint a violation of R.C. Chapter 1707. Clearly, the better practice is for a lawsuit which centers around the sale of unregistered securities to include in the complaint the specific statutes which are alleged to have been violated. However, Civ.R. 15(B) states that when issues not raised by the pleadings are tried by express or implied consent of the parties, such issues will be treated as if they had been raised in the pleadings. Here, the parties were on notice that the registration requirements in R.C. Chapter 1707 were at issue. Appellant was questioned about the registration issues at trial without objection. In addition, appellee specifically addressed appellant's alleged violations of R.C. Chapter 1707 in his post-trial brief. The trial court's decision was not rendered until almost one month after appellee's post-trial brief. Therefore, appellant yet again had the opportunity to object to such; however, he failed to do so. Accordingly, the issue of violation(s) of R.C. Chapter 1707 was tried by the consent of both parties. Hence, the trial court did not err in basing its judgment on appellant's violation(s) of R.C. Chapter 1707. Appellant also contends that the trial court erred in failing to apply the statute of limitations applicable in securities law cases. As noted above, appellant was on notice of appellee's securities law claim. Appellant impliedly consented to such claim, and he failed to raise the issue of the statute of limitations applicable to such claim. Therefore, appellant waived the issue. See State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 75. Given all of the above, the trial court did not err in basing its decision on violation(s) of R.C. Chapter 1707. Accordingly, appellant's second assignment of error is overruled. We now address appellant's fourth assignment of error. The trial court found that a certain $15,000 check was a personal loan and not an investment. Appellant contends this finding was against the manifest weight of the evidence. Judgments supported by some competent, credible evidence will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley ConstructionCo. (1978), 54 Ohio St.2d 279. After reviewing the evidence, we find there was sufficient competent, credible evidence supporting the trial court's finding. On January 28, 1993, appellee and appellant signed an agreement for appellee to invest in oil and gas wells in Ohio. Appellee wrote checks totalling $19,800 that day. Appellee wrote a third check for $20,000 on June 27, 1993. On November 2, 1993, appellee wrote two more checks. One of these checks was for $5,000 and the other was for $15,000. The parties are in agreement about these basic facts; however, they dispute whether the $15,000 check was a personal loan to appellant or another investment by appellee. The November 2, 1993 check for $5,000 was made out to "Rail Petroleum," one of appellant's unincorporated associations. The $15,000 check, written at the same time, was made out to appellee personally. (Tr. 50; Plaintiff's exhibit No. 4.) Appellee testified that appellant requested such loan in order to meet some of appellant's "immediate needs" and that appellant promised to "return" the money in two weeks. (Tr. at 97-98.) Appellee testified that he made it clear to appellant that this was a personal loan and not an investment. Id. at 98. Appellant disputes this and testified that appellee could take only $5,000 more in write-offs for 1993 and that appellee was going to write-off the $15,000 "investment" in 1994. Id. at 51. We note that this court gives deference to the trier of fact as the trial court observes the witnesses and is best able to use such observation in weighing the credibility of the proffered testimony.Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Given this and the evidence presented at trial, we conclude the trial court's finding that the $15,000 check was a loan was not against the manifest weight of the evidence. Accordingly, appellant's fourth assignment of error is overruled. We next address appellant's third assignment of error. The trial court found appellant violated R.C. Chapter 1707 and, therefore, it rescinded the sales transactions. The trial court awarded appellee $59,800, which reflects the payments appellee made to invest in the oil and gas wells ($44,800) and the $15,000 loan to appellant. The trial court indicated that appellee was entitled to the $44,800 regardless of the fact that appellee received dividends from the investment and/or took certain tax write-offs. Appellant contends the trial court erred in failing to apply a credit of $11,451.98 against this judgment based on appellee's receipt of $11,451.98 in dividends. Appellant asserts that a rescission contemplates putting the parties in the positions they were in prior to the transactions at issue. Therefore, appellee should not, in effect, be entitled to keep the dividends he received as a result of the investments. In addition, appellant contends the trial court erred in failing to terminate a prior entry which ordered revenues from the wells be transferred directly to appellee. For the reasons that follow, we find the trial court did not err in failing to reduce the judgment by the amount appellee received as dividends from the investments. In Crater v. Internatl. Resources, Inc. (1993), 92 Ohio App.3d 18, the appellate court dealt with a situation similar to the one in the case at bar. The plaintiff had purchased working interests in oil and gas leases, and the plaintiff had earned $36,541.99 as a return on her investment. Id. at 20-21. The trial court found the seller had violated Ohio securities law and determined that pursuant to R.C. 1707.43, the plaintiff was entitled to restitution of the purchase price without a setoff for any tax benefit or income received from the investment. Id. at 21. The defendant-seller argued on appeal that the judgment should be reduced by the income the plaintiff received from the working interests and by any tax benefits taken. Id. at 25. The defendant contended that the purpose of R.C. 1707.43 was to put the parties in the position they had been in prior to the investment. Id. The court of appeals rejected this argument and stated that the rescission remedy in R.C. 1707.43 was not an equitable remedy but a statutory right derived from the illegality of the transaction. Id., citing Sorenson v. Tenuta (1989),62 Ohio App.3d 696, 703. The court noted that R.C. 1707.43 specifically provided for full restitution of the plaintiff's purchase price and indicated that R.C. 1707.43 was designed to redress the defendant's unlawful securities transactions by restoring the full amount paid by the purchaser regardless of the ultimate success or failure of the investment: *** The fact that [the plaintiff] received a return on her investment and may have enjoyed certain tax benefits does not change the illegality of the [defendant's] actions nor does it alter the operation of the statute. *** Crater at 25. Indeed, R.C. 1707.43 specifically provides for full recovery of the purchase price: Every sale or contract for sale made in violation of Chapter 1707. of the Revised Code, is voidable at the election of the purchaser. The person making such sale or contract for sale *** [is] liable to such purchaser *** for the full amount paid by such purchaser ***. [Emphasis added.] This court in Sorenson, supra, addressed a similar issue in a case involving the sale of unregistered securities. The trial court rescinded the securities transaction and awarded the plaintiff $18,173 — the amount he actually paid for the securities. Id. at 698, 703. The defendant argued that the trial court erred in awarding such an amount. This court stated that R.C. 1707.43 provides the purchaser with the right to recover the full amount paid, and the fact that the plaintiff may have deducted losses on prior income tax returns or claimed various tax shelters did not inure to the defendant's advantage. Id. at 703. We agree with the reasoning set forth in Crater and Sorenson. First, R.C. 1707.43 specifically calls for rescission and recovery of the "full amount paid" by the purchaser. Appellant equates the rescission remedy in R.C. 1707.43 with the general contract principle that rescission of a contract puts the parties in the positions they were in prior to the contract. However, the right to recover in the case at bar is not based on contract, it is based upon a violation of Ohio's blue sky laws. Such laws provide for a specific remedy — rescission and recovery of the full purchase price. The fact that a purchaser of securities, which later become the subject of a lawsuit under R.C. Chapter 1707, may derive a monetary benefit such as a tax deduction or the receipt of dividends from such unlawful transaction does not take away from the illegality of the transaction. The purposes of Ohio's blue sky laws are to protect Ohio consumers. In addition, the purpose behind registration requirements is to "prevent those persons willing to market worthless or unnecessarily risky securities from soliciting the purchasing public without first subjecting themselves and their securities to reasonable licensing and registration requirements." Bronaugh v. R. E. Dredging Co. (1968), 16 Ohio St.2d 35,40-41. Such purposes would not be served if we allowed a deduction from the full purchase price based of any dividend received. Despite the illegality of a transaction, a plaintiff could conceivably make a return that exceeds the full purchase price. Under appellant's theory, the violator would have no liability to such plaintiff. There is simply no support for such a result either in R.C. 1707.43's specific language or based upon the purposes of R.C. Chapter 1707 in general. Accordingly, we find the trial court did not err in failing to deduct from appellee's award those amounts attributable to dividends received or any tax benefit derived from the investments. To this extent, appellant's third assignment of error is overruled. Appellant also contends that the trial court erred in failing to terminate its prior entry which ordered revenues from the wells be transferred directly to appellee. On December 2, 1999, an agreed entry was filed, ordering appellee receive directly from the driller, producer or gas company all future royalty or dividend payments derived from his interest in the oil and gas wells. However, because the trial court's judgment rescinded the transactions, appellee no longer owns any interest in the oil and gas wells. Therefore, appellee can no longer receive revenues derived from such former interests. However, and in line with the previous discussion, appellee was entitled to keep any revenue generated from such interests prior to the judgment rescinding the transactions. Accordingly, and to this extent only, appellant's third assignment of error is sustained. The trial court is instructed to terminate the December 2, 1999 order effective June 1, 2000 the date of the final judgment herein. In summary, appellant's third assignment of error is overruled in part and sustained in part to the extent discussed above. In his first assignment of error, appellant contends the trial court erred in awarding prejudgment interest. Appellant asserts prejudgment interest is improper under R.C. 1343.03. R.C. 1343.03(A) states, in pertinent part: *** [W]hen money becomes due and payable upon any bond, bill, note, or other instrument of writing, *** the creditor is entitled to interest at the rate of ten percent per annum ***. This court has previously addressed the issue raised by appellant. As indicated above, in Sorenson, the trial court found the defendant violated R.C. Chapter 1707 and rescinded the transaction. Id. at 698. The trial court awarded the plaintiff damages in the amount of the purchase price plus interest from the date the sale was completed (i.e., prejudgment interest). Id. The defendant asserted it was improper to award prejudgment interest. This court stated that the issue was whether rescission and recovery of the purchase price constituted money due and payable under the sales agreement or was another form of damages. Id. at 703. This court found that rescission and recovery of the purchase price under R.C. 1707.43 was another form of damages, specifically, a statutory right derived from the illegality of the transaction and not a recovery applicable from the face of the transaction. Id. Hence, R.C. 1343.03(A) was not applicable. In light of our decision in Sorenson, the trial court here erred in awarding prejudgment interest on the entire judgment. However, the total amount of such judgment, $59,800, included more than just an award for violation of R.C. Chapter 1707. It included $15,000 for the personal loan made by appellee to appellant. R.C. 1343.03(A) provides for interest to run from the date money becomes due on any written instrument. Here, such written instrument was the $15,000 loan check. The check was written on November 2, 1993. Appellee testified that appellant promised to pay the money back within two weeks. (Tr. 97.) Hence, the trial court could properly award prejudgment interest on the $15,000 loan. Such interest began to run when the loan became due and payable — two weeks after November 2, 1993, on November 16, 1993. In light of the above, the trial court erred in awarding prejudgment interest on $44,800, the amount constituting a return of the purchase price pursuant to R.C. Chapter 1707. The trial court properly awarded prejudgment interest on the $15,000 loan. However, such interest did not begin to run until November 16, 1993. Accordingly, appellant's first assignment of error is sustained to the extent discussed above. In summary, appellant's first assignment of error is sustained to the extent discussed above, the second and fourth assignments of error are overruled, and the third assignment of error is sustained in part and overruled in part. The judgment of the Franklin County Court of Common Pleas is vacated, and this cause is remanded for entry of a new judgment in accord with this opinion. LAZARUS and McCORMAC, JJ., concur. McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:42:11.838428+00

JOURNAL ENTRY AND OPINION {¶ 1} Appellant, Rodney Lawson, appeals his convictions and sentences for rape, kidnapping, and aggravated robbery. After a thorough review of the record, and for the reasons set forth below, we affirm. {¶ 2} On February 27, 2006, a grand jury indicted appellant on six counts. Counts One, Two, and Three charged rape under R.C. 2907.02(A)(2); Count Four charged kidnapping under R.C. 2905.01(A)(2)-(4); Count Five charged aggravated robbery under R.C. 2911.01(A)(1); and Count Six charged having a weapon while under disability under R.C. 2923.13. {¶ 3} On August 13, 2007, a bench trial began. The trial court found appellant guilty of the first five counts, but found him not guilty of Count Six and all firearm specifications. The judge also found appellant guilty of the notices of prior conviction, repeat violent offender specifications, and sexually violent predator specifications regarding Counts One through Five. {¶ 4} At the sentencing hearing, the trial judge sentenced appellant to ten years in prison on each of the first five counts. The court ordered that the ten-year sentences on Counts One, Two, and Three be served consecutively to each other for a total of 30 years. The trial court ordered that the ten-year sentences on Counts Four and Five be served concurrently to each other and concurrently to the first three counts. *Page 4 {¶ 5} The facts that gave rise to this appeal began on January 15, 2006 at 3:00 a.m., when seventeen-year-old C.T.1 ("the victim") decided to visit a friend. According to the testimony of the victim, she took a bus to the Windermere Rapid Transit Station ("the rapid station") in East Cleveland, arriving at the rapid station at 3:30 or 3:40 a.m. As the victim waited for the rapid to arrive, appellant approached her asking for a cigarette. The victim gave him a cigarette, and he walked away. {¶ 6} A few minutes later, the victim decided to purchase a beverage from a vending machine inside the rapid station. Appellant approached her and informed her that there was a vending machine on the lower level where you could purchase drinks at a lower cost. The victim decided to go with appellant down the escalator to find the vending machine. Ultimately, she discovered that no vending machine existed and realized that she had been lured outside by a stranger. {¶ 7} The victim told appellant she wanted to get back to the rapid station because she did not want to miss her bus; however, appellant grabbed her from behind, dragged her back outside, and thrust her against a wall. Appellant ordered the victim to give him all her money. The victim testified that she was scared, but gave appellant all her money as he pressed a hard object into her neck. {¶ 8} After obtaining the victim's money, appellant grabbed her coat and took her out to the street. Appellant then took the victim behind a convenience store and ordered her to *Page 5 perform oral sex on him. The victim begged him to stop, but he would not. A few minutes later, appellant inserted his penis into the victim's vagina. Thereafter, he ordered her to perform oral sex again, and then inserted his penis into her anus. Finally, appellant engaged in vaginal intercourse with the victim again. {¶ 9} Ultimately, the victim was able to run away from appellant and get onto a bus, where she told the driver, Jerry Edwards, that she had been robbed and needed help. According to the victim, she did not tell him about the rape because she was embarrassed. The bus driver took the victim to RTA Police Officer Rhonda Briskey. Officer Briskey testified that the victim gave her a full report of the incident. An ambulance took the victim to Huron Road Hospital, where a sexual assault examination took place. At the East Cleveland Police Department, the victim was unable to identify appellant in the photo books; however, in February 2006, she identified appellant in a photo array. {¶ 10} RTA Police Officer Orlando Hudson testified that the victim gave him a description of the attacker, but he was unable to locate the suspect. Officer Hudson went to the convenience store and saw the victim's purse and personal items strewn about and found two sets of footprints. One set of prints led to the rapid station, while the other led to a field. {¶ 11} Huron Road Hospital's Dr. Janice Eitel testified that she examined the victim, who reported pain in her vaginal area. From the medical records, the doctor testified about what the victim told her about the incident. The description in the medical records was consistent with the victim's in-court testimony. According to the Ohio Bureau of Criminal *Page 6 Investigation and Identification's laboratory technician, Chris Smith, appellant could not be excluded as the source of the semen and DNA found in the victim's vagina and anus. {¶ 12} RTA Police Department's Sergeant Scott Medlong testified about surveillance camera footage showing that appellant forcefully removed the victim from the rapid station. The video also showed the victim returning to the station after 27 minutes. {¶ 13} The East Cleveland Police Department's Detective Tiffany Cleveland testified about appellant's tape-recorded oral statement. According to Det. Cleveland, appellant stated that he was on a bus when he saw the victim notice a $100 bill he was holding in his hand. The victim sat down next to appellant and they conversed. According to appellant, the victim stared in the direction of his penis and asked what she could do to get appellant's $100. They got off the bus at Windermere Station and the victim again asked what she could do for the $100. Appellant told her she could have the money in exchange for sex. {¶ 14} Appellant stated that they went behind the convenience store and engaged in consensual oral and vaginal sex. After they had sex, appellant gave the victim the $100 bill; however, the victim became enraged after she discovered it was fake currency. Appellant stated he went home and thought nothing more about the situation. Appellant did not present a defense at trial. Review and Analysis {¶ 15} Appellant brings this appeal, asserting five assignments of error for our review. Because appellant's first and second assignments of error are substantially interrelated, they are addressed together. *Page 7 Sufficiency and Manifest Weight of the Evidence {¶ 16} "I. The trial court erred in denying appellant's motion for acquittal as to the charges when the state failed to present sufficient evidence against appellant." {¶ 17} "II. Appellant's convictions are against the manifest weight of the evidence." {¶ 18} Appellant argues that his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. More specifically, he alleges there is no evidence of "force." This argument is without merit. {¶ 19} Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486,124 N.E.2d 148. A conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982),457 U.S. 31, 102 S.Ct.2211, 72 L.Ed.2d 652, citing Jackson v. Virginia (1979),443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. {¶ 20} Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the trier of fact as to the weight and sufficiency of the evidence. State v. Nicely (1988),39 Ohio St.3d 147, 529 N.E.2d 1236. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. On review, the appellate court must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259,574 N.E.2d 492; Jackson v. Virginia, supra. *Page 8 {¶ 21} Sufficiency of the evidence is subjected to a different standard than is manifest weight of the evidence. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court "has the authority and duty to weigh the evidence and to determine whether the findings of * * * the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial." State ex rel. Squire v. Cleveland (1948),150 Ohio St. 303, 345, 82 N.E.2d 709. {¶ 22} The United States Supreme Court recognized the distinctions in considering a claim based upon the manifest weight of the evidence as opposed to sufficiency of that evidence. The court held in Tibbs v.Florida, supra, that, unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983),20 Ohio App.3d 172, 485 N.E.2d 717, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: {¶ 23} "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest *Page 9 miscarriage of justice that the conviction must be reversed and a new trial ordered." Martin at 720. {¶ 24} Initially, we note that appellant seems to allege that the victim's testimony alone is insufficient to convict him of rape. However, in State v. Sklenar (1991), 71 Ohio App.3d 444, 447,594 N.E.2d 88, the court held that there is no requirement that victim testimony in rape cases be corroborated. Further, as will be discussed below, the state provided additional evidence other than the victim's testimony. {¶ 25} We now turn to appellant's main argument that the sexual activity was consensual and there was no evidence to indicate that force was use. Under R.C. 2907.02(A)(2), "no person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." {¶ 26} We find that there was sufficient evidence of "force" or "threat of force," as required under R.C. 2907.02(A)(2). In addition to the victim's testimony, the evidence included medical records, DNA evidence, and video surveillance images showing appellant's forceful removal of the victim from the rapid station. The video evidence provides sufficient evidence of "force." The victim's testimony that appellant jabbed a "hard object" into her neck and ordered her to perform sexual acts with him is evidence of "threat of force." The victim testified that she complied with his orders because she feared for her life, which evidences "threat of force." Therefore, we find that the state, while only needing to prove "force" or "threat of force," provided sufficient evidence of both. *Page 10 {¶ 27} Next, we specifically address appellant's argument that the victim is seen smiling in State's Exhibit No. 12, and smoking a cigarette in State's Exhibit No. 13. First, it is not clear from the photograph that the victim is smiling. Further, the images from the video camera were taken at 4:03 a.m., before the alleged rapes occurred. This time was presumably after the victim discovered no vending machine existed and was attempting to return to catch her bus. Thereafter, at 4:04 a.m., State's Exhibit No. 16 shows appellant grabbing the victim from behind to take her outside where the rapes occurred. Thereafter, State's Exhibit No. 18 and 19 show the victim returning to the rapid station at 4:31 a.m., after the alleged rapes. In those images, the victim appears upset. {¶ 28} In his brief, appellant alleges that he feels the trial judge may have considered some inadmissible evidence. Appellant refers to the fact that the trial judge knew about his previous criminal record, that appellant had disagreements with his lawyer, and that appellant had considered a plea deal. However, in bench trials, the trier-of-fact is presumed to only consider relevant and competent evidence. State v.Vason, Cuyahoga App. No. 88069, 2007-Ohio-1599, at ¶ 19. Therefore, we find appellant's argument unpersuasive. {¶ 29} Finally, appellant argues that the rape convictions are against the manifest weight of the evidence. We find this argument unpersuasive. Because of the amount of evidence in support of appellant's convictions (as outlined above), we cannot say that the fact finder clearly lost his way. Therefore, we find that appellant's convictions are not against the manifest weight of the evidence. Accordingly, appellant's first and second assignments of error are without merit. *Page 11 Allied Offenses {¶ 30} "III. The trial court erred by imposing a sentence for rape and kidnapping because the offenses are allied offenses pursuant to R.C. 2941.15 and they are part of the same transaction under R.C. 2929.14." {¶ 31} Appellant argues that the trial court erred when it failed to merge his rape and kidnapping offenses. This argument is without merit. {¶ 32} In State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291,710 N.E.2d 699, the Ohio Supreme Court reconsidered the issue of how to apply R.C. 2941.25(A) when determining whether two or more offenses constitute allied offenses of similar import. Prior to Rance, the test used by the courts was that set forth in Newark v. Vazirani (1990),48 Ohio St.3d 81, 549 N.E.2d 520, syllabus, overruled, Rance, supra. {¶ 33} Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import, and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. *Page 12 {¶ 34} In Vazirani, the court compared the elements of the two crimes charged by reference to the particular facts alleged in the indictment. Id. at 83. Later cases compared the elements of the charged offenses in the abstract, without reference to facts alleged in the indictment.State v. Richey, 64 Ohio St.3d 353, 369, 1992-Ohio-44, 595 N.E.2d 915, rehearing denied, 65 Ohio St. 3d 1421, 598 N.E.2d 1172, certiorari denied (1993), 507 U.S. 989, 113 S.Ct. 1592, 123 L.Ed. 2d 157, rehearing denied (1993), 508 U.S. 934, 113 S.Ct. 2401, 124 L.Ed. 2d 303. {¶ 35} In Ranee, the Ohio Supreme Court reconsidered whether the elements test should be conducted in terms of the facts of the specific case or in terms of the statutory elements of the offenses in the abstract. The court ruled that an analysis of the elements in the abstract was proper, overruling Vazirani and language to the contrary in other cases. Ranee, supra, paragraph one of the syllabus. {¶ 36} Under Ranee, when determining whether two or more offenses are allied offenses of similar import, the court should assess, by aligning the elements of each crime in the abstract, whether the statutory elements of the crimes "correspond to such a degree that the commission of one crime will result in the commission of the other. (Citation omitted.) And if the elements do so correspond, the defendant may not be convicted of both unless the court finds that the defendant committed the crimes separately or with separate animus. R.C. 2941.25(B)." Id. at 638-639. {¶ 37} Here, appellant alleges that kidnapping and rape are allied offenses. We find that the offenses are not allied offenses because each offense was committed with separate *Page 13 animus. In State v. Rodrigues, Cuyahoga App. No. 80610, 2003-Ohio-1334, this court held that "kidnapping may be said to be implicit in any forcible rape." Id. at ¶ 27, citing State v. Mitchell (1983),6 Ohio St.3d 416, 418, 453 N.E.2d 593. "The Ohio Supreme Court has held that kidnapping, in violation of R.C. 2905.01(A)(4), and rape, in violation of R.C. 2907.02(A)(2), can constitute allied offenses of similar import." Id., citing State v. Donald (1979), 57 Ohio St.2d 73,386 N.E.2d 1341. Therefore, a defendant cannot be convicted for both offenses unless they were committed separately or with separate animus. Id. {¶ 38} In determining whether kidnapping and an offense of the same or similar import are committed with separate animus, the Ohio Supreme Court has held that where the restraint of the victim is merely incidental to a separate underlying crime, there is no separate animus sufficient for separate convictions. Id. at ¶ 27-28, citing State v.Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345. However, where the restraint is prolonged, secretive, or the movement is substantial, there is a separate animus as to each offense. Id. {¶ 39} Here, appellant lured the victim outside the rapid station and robbed her. Then, he kidnapped her by forcefully walking her through a parking lot, across a street, and behind a store. After he arrived at the store, he raped the victim. We find that the duration and distance from the rapid station to the store is evidence that appellant committed the offenses of rape and kidnapping with separate animus. Therefore, the crimes are not allied offenses. Accordingly, appellant's third assignment of error is overruled. Sentences *Page 14 {¶ 40} Because appellant's fourth and fifth assignments of error are substantially interrelated, they are addressed together. {¶ 41} "IV. The trial court erred by ordering appellant to serve a consecutive sentence." {¶ 42} "V. The trial court erred when it sentenced appellant to a maximum sentence." {¶ 43} Appellant argues that the trial court erred when it failed to make findings when it sentenced him to maximum sentences to be served consecutively. He also argues that the application of State v.Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, violates the ex post facto clause. These arguments are without merit. {¶ 44} In Foster, the Court found several sections of the revised code unconstitutional, including R.C. 2929.14(B), and severed the offending portions from the statutes. As a result, trial courts now have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or state reasons for imposing more than the minimum sentences. Foster, supra.2 {¶ 45} Appellant also argues that Foster does not apply to defendants whose alleged criminal conduct pre-dates Foster because it would be a violation of the ex post facto clause. If Foster did not apply to appellant, he would enjoy a presumption of minimum concurrent sentencing. The Ex Post Facto Clause of Article 1, Section 10, of the *Page 15 United States Constitution prohibits any legislation that "changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when committed." Miller v. Florida (1987), 482 U.S. 423, 429, 107 S.Ct. 2446,96 L.Ed.2d 351, quoting Calder v. Bull (1798), 3 U.S. 386, 1 L.Ed.648. {¶ 46} This court has addressed this issue and, after a thorough analysis of state and federal law, found as follows: "In the instant case, [defendant] had notice that the sentencing range was the same at the time he committed the offenses as when he was sentenced.Foster did not judicially increase the range of his sentence, nor did it retroactively apply a new statutory maximum to an earlier committed crime, nor did it create the possibility of consecutive sentences where none existed. As a result, we conclude that the remedial holding ofFoster does not violate [defendant's] due process rights or the ex post facto principles contained therein." State v. Mallette, Cuyahoga App. No. 87984, 2007-Ohio-715, discretionary appeal not allowed,115 Ohio St.3d 1439, 2007-Ohio-5567, 875 N.E.2d 101. {¶ 47} In the instant case, appellant had notice regarding the sentencing range, which was the same at the time of the offenses as when he was sentenced. Because we find that the holding of Mallette, supra, directly applies to the instant matter, we adopt the Mallette court's holding. We therefore find that the remedial holding of Foster does not violate appellant's due process rights or the ex post facto principles contained therein. Accordingly, appellant's fourth and fifth assignments of error are overruled. Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed. *Page 16 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 convictions 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. ANTHONY O. CALABRESE, JR., P.J., and MARY EILEEN KILBANE, J., CONCUR KEY WORDS: #90589 — S/O v. Rodney Lawson 1 The victim is referred to herein by her initials in accordance with this court's established policy. 2 We acknowledge that the Ohio Supreme Court's recent decision inState v. Kalish, Slip Opinion No. 2008-Ohio-4912, sets forth a two-prong test for review of sentences. We note that Kalish is a plurality opinion; therefore, it is merely persuasive. *Page 1

2016-07-06 06:42:11.91456+00

DECISION. Bringing forth one assignment of error, plaintiff-appellant, Lichtenberg Construction Development, Inc., appeals the judgment of the trial court entered in favor of defendant-appellee, Paul W. Wilson, Inc., in a breach-of- contract action. For the following reasons, we affirm the trial court's judgment. Lichtenberg, a general contractor, relied on a bid offered by Wilson, a masonry subcontractor, when submitting its own bid on a construction project. On May 4, 1998, after Lichtenberg was awarded the general contract, it presented a subcontract to Wilson for its signature. Wilson refused to sign Lichtenberg's proposed contract because it contained objectionable terms, including a "time-is-of-the-essence" clause that required Wilson to complete the masonry work under a strict time schedule to allow for total project completion by September 1, 1998. At trial, Wilson claimed that Lichtenberg had refused to negotiate the disputed terms. Lichtenberg denied this allegation. Lichtenberg eventually hired another masonry subcontractor to complete the work, paying it $22,500 more than Wilson's bid. Lichtenberg sued Wilson for the additional cost it had incurred. This court has previously heard an appeal from a final judgment entered in this action.1 In Lichtenberg I, we held, "[A] subcontractor is bound to its bid to a general contractor if the general contractor relied on that bid, was awarded a general contract, and notified the subcontractor within a reasonable time that the subcontractor's bid was accepted. But if the general contractor then proposes a subcontract with terms that the subcontractor should not reasonably have expected when the subcontractor made the bid, then the subcontractor will not be obligated to honor the bid. [Citations omitted.]2 Based on those principles of law and our determination that Lichtenberg had notified Wilson within a reasonable time that it intended to use Wilson as its masonry subcontractor, we remanded the case to the trial court to determine whether the terms of the proposed subcontract were such that Wilson should have reasonably expected them. (Wilson had argued at trial that the terms of the subcontract were not reasonably foreseeable.) Based on the masonry industry's customs in Cincinnati, the trial court determined that certain terms of the subcontract, specifically the "time-is-of-the-essence" clause, were unreasonable and dismissed Lichtenberg's claim with prejudice. This timely appeal followed. In Lichtenberg's sole assignment of error, it asserts that the trial court erred in allowing Wilson to reject the proposed subcontract. Lichtenberg essentially argues that there was insufficient evidence to support a finding that the terms of the subcontract, specifically, the "time-is-of-the-essence" clause, were unreasonable. In C.E. Morris Co. v. Foley Constr. Co.,3 the Ohio Supreme Court set out the standard of review applicable in a civil proceeding in which the judgment is challenged on the manifest weight of the evidence. Lichtenberg argues that the standard set forth in C.E. Morris is inapplicable in the case sub judice because the sufficiency, not the weight, of the evidence is at issue here. The Ohio Supreme Court has held that in the context of a criminal proceeding the concepts of sufficiency and weight of the evidence are qualitatively and quantitatively distinct and, thus, that different standards of review are necessary.4 There has been no similar distinction recognized in civil cases.5 Therefore, as this is a civil proceeding, we are constrained to apply the standard of review set out in C.E. Morris, which states that a trial court's judgment will not be reversed if there is some "competent, credible evidence going to all the essential elements of the case[.]"6 With that standard established, we now turn to the merits of Lichtenberg's assignment of error. The record contains evidence supporting the trial court's finding that the "time-is-of-the-essence" clause, which required Wilson to adhere to a strict time schedule for completion of its work, was a term that Wilson would not have reasonably expected to be included in the subcontract. Peter Petroze, a masonry subcontractor who had been in the business in the Cincinnati area for the past twenty-five years, testified about the customs and practices in masonry construction in the local area. Petroze stated that although a general "time-is-of-the-essence" clause was standard language in a subcontract, it "d[idn't] carry much weight" because the practice was for a general contractor and a subcontractor to negotiate in good faith the time schedule for completion of the work. Further, if a general contractor was adamant that work had to be completed within a strictly limited time, and refused to negotiate, then the subcontractor simply did not sign the contract, because, if it did so, it would then have been obligated to perform within that time. Finally, Petroze testified that if a general contractor knew in advance that a strict time schedule would be warranted for a project, it would send a letter of intent to the subcontractor requesting that it reserve a specific period of time in its schedule to work on the project. Petroze's testimony provided competent, credible evidence supporting the trial court's finding that "[t]he standard masonry industry practice in the Cincinnati area is that the time schedule for any subcontract work is arranged by the general and the subcontractor after the general contract is awarded and that the parties must negotiate in good faith in setting up a work schedule." There was also competent, credible evidence to support the trial court's finding that this industry practice was not followed in the instant case. Wilson's owner testified that soon after he had received a copy of the proposed subcontract, including the strict time schedule, he met with Lichtenberg at the construction site to discuss the schedule for work completion. Although, at that meeting, Lichtenberg indicated that the contract was flexible, Wilson testified that Lichtenberg refused to discuss alterations to the time schedule. Lichtenberg denied this and stated that it did offer to negotiate. There was further testimony that Lichtenberg sent by fax, on April 16, 1998, a letter of intent, which included the time schedule for the masonry work. Wilson testified that it never received the fax. Wilson testified that it instead received a copy of the time schedule and the proposed subcontract for the first time on May 4, 1998. Clearly, there was conflicting testimony on this issue. The trial court specifically found that Wilson's testimony was more credible than that offered by Lichtenberg. We must defer to the trial court's finding in this respect, since, as the trier of fact, it was "best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the testimony."7 Accordingly, we conclude that Wilson did not receive a letter of intent and the proposed time schedule until early May 1998. We also note that the strict time schedule was not included in the bid specifications that Wilson had reviewed prior to submitting its bid to Lichtenberg for the masonry work on the project, and, thus, that Wilson had no reason to expect that an inflexible time schedule would be included in the subcontract. If the time schedule for performance of the work had been included in the bidding specifications, Wilson would have been obligated to honor its bid. From our review of the record, we are convinced that there was competent, credible evidence that supported the finding that industry practice required the general and the subcontractor to negotiate in good faith a time schedule for work completion, as well as competent, credible evidence that supported the finding that good-faith negotiation did not occur here. Therefore, we hold, as did the trial court, that Wilson was free to reject the proposed subcontract because the "time-is-of-the-essence" clause, which included a rigid time schedule, was unreasonable, and, thus, that Wilson should not have reasonably expected that term in the subcontract. Accordingly, Wilson was not obligated to honor the bid that it had submitted to Lichtenberg. Under these circumstances, we overrule Lichtenberg's sole assignment of error and affirm the judgment of the trial court. Judgment affirmed. Winkler, J., concurs. Painter, J., concurs in judgment only. 1 See Lichtenberg Construction Development, Inc., v. Paul W.Wilson, Inc. (Mar. 10, 2001), Hamilton App. No. C-990533, unreported. 2 Id. 3 (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. 4 See State v. Thompkins (1997), 78 Ohio St.3d 380,678 N.E.2d 541. 5 See Lakeshore Properties v. Sharonville (Feb. 16, 2001), Hamilton App. No. C-000321, unreported; State v. Hunter (June 1, 2001), Hamilton App. No. C-000266, unreported. 6 See C.E. Morris Co. v. Foley Constr. Co., supra, at syllabus. 7 Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80,461 N.E.2d 1273, 1276.

2016-07-06 06:42:11.955954+00

DECISION. *Page 2 I. Facts and Procedure {¶ 1} After the trial court overruled his motion to suppress, plaintiff-appellant, Curtis Burton, pleaded no contest to two counts of trafficking in cocaine under R.C. 2925.03(A)(1) and (A)(2) and one count of possession of cocaine under R.C. 2925.11(A). The trial court sentenced him to four years' imprisonment on each count, to be served concurrently. This appeal followed. {¶ 2} The record shows that Cincinnati Police Officer Mark Bode received information from a confidential informant that Burton was selling drugs. The informant had been purchasing drugs from Burton for over a year and had informed the police that Burton would have drugs to sell on a particular day. {¶ 3} Bode was present in a car that the informant and another individual drove to a residence at 3146 Gloss Avenue, Letter A. Burton's girlfriend lived at the residence. Bode was hiding in the trunk and could bend the back seat so that he could see into the front of the car and through the driver's side window. He saw Burton come to the driver's side of the car and exchange drugs and money with the informant through the open window. Burton sold the informant $660 worth of powdered cocaine. {¶ 4} Subsequently, Bode submitted a search warrant with a supporting affidavit to a judge, and he was present when the judge signed the warrant. The warrant and the supporting affidavit listed the property to be searched as "3146 #A Gloss Avenue, Cincinnati Ohio, 45207." Bode testified that the property was located on the boundary between Kennedy Heights and Pleasant Ridge in Cincinnati. He stated that he usually checked information from the Hamilton County Auditor for zip codes. But since *Page 3 he was familiar with the area, he used the zip code for Kennedy Heights, which was 45207. The property was actually in Pleasant Ridge and the correct zip code was 45213. {¶ 5} Bode was present when the police executed the search warrant and took Burton into custody. He walked Burton out to a police car and interviewed him there. He said that he read Burton his rights underMiranda v. Arizona, 1 and that Burton seemed to understand them. Burton told Bode that the drugs police had found in the residence were his, not his girlfriend's, and that she was not involved in any drug activity. {¶ 6} In this appeal, Burton presents four assignments of error for review. We find one of them to have merit. Consequently, while we affirm the findings of guilt, we vacate the sentences imposed and remand the case for resentencing. II. Burton's Statement to Police {¶ 7} In his first assignment of error, Burton contends that the trial court erred in overruling his motion to suppress his statements to the police. He argues that he did not voluntarily waive his Miranda rights and that his confession was involuntary. This assignment of error is not well taken. {¶ 8} Appellate review of a motion to suppress presents a mixed question of law and fact. We must accept the trial court's findings of fact as true if competent, credible evidence supports them. But we must independently determine whether the facts satisfy the applicable legal standard.2 {¶ 9} This assignment of error involves two distinct issues: (1) whether Burton knowingly, intelligently and voluntarily waived hisMiranda rights; and (2) whether he made his statement to the police voluntarily under the Due Process Clause of *Page 4 the United States Constitution. We analyze both issues using a totality-of-the circumstances test.3 {¶ 10} We begin with the Miranda analysis. The state bears the burden to prove by a preponderance of the evidence that the accused made a knowing, voluntary, and intelligent waiver of his Miranda rights. Courts will not presume a waiver just because the accused responded to the interrogation.4 {¶ 11} A suspect's decision to waive his Fifth Amendment privilege is made voluntarily absent evidence that his will was overborne or that his capacity for self-determination was critically impaired because of coercive police misconduct5 "Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law."6 {¶ 12} Under the due-process analysis, the prosecution must prove by a preponderance of the evidence that a confession was voluntary.7 "In deciding whether a defendant's confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement."8 *Page 5 Coercive police activity is necessary to a finding that a confession was involuntary within the meaning of the Due Process Clause.9 {¶ 13} We cannot hold that Burton's statements were the result of coercive police conduct. At the time of the interrogation, Burton was 31 years old and had a substantial criminal record. Bode testified that he had read Burton his rights and that Burton, who did not appear to be under the influence of drugs or alcohol, had understood them. He also testified that the interrogation had lasted approximately five to ten minutes. Bode did not make any promises or engage in coercive behavior. He did suggest the possibility of charging Burton's girlfriend for permitting drug abuse. Burton immediately stated that the drugs were his and that his girlfriend was not involved. This tactic was not coercive because Bode had probable cause to believe that Burton's girlfriend had committed an offense, and it did not render Burton's statements involuntary.10 {¶ 14} In sum, the record shows that the state proved by a preponderance of the evidence that Burton made a knowing, intelligent, and voluntary waiver of his Fifth Amendment rights and that his confession was voluntary under the Due Process Clause. Consequently, the trial court did not err in denying his motion to suppress his statement, and we overrule his first assignment of error. III. Validity of the Search Warrant {¶ 15} In his second assignment of error, Burton contends that the trial court erred in denying his motion to suppress evidence found in the residence on Gloss Avenue. He argues that the search warrant was fatally deficient. He points out *Page 6 that the warrant and the supporting affidavit had the wrong zip code, and that confusion existed as to the premises to be searched. This assignment of error is not well taken. {¶ 16} A search warrant and its supporting affidavit must particularly describe the place to be searched.11 An incorrect address does not invalidate a search warrant where the warrant contains a sufficient description and no possibility exists that the police would search the wrong property.12 The determining factors are whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether a reasonable probability exists that the officers might mistakenly search another premises that is not the one intended in the warrant.13 {¶ 17} The search warrant and the affidavit stated that the property to be searched was "3146 #A Gloss Avenue, Cincinnati, Ohio 45207." The warrant and affidavit also described the property as "a brick, two family dwelling with four windows facing Gloss Avenue. The numbers and letter `3146 A' are black in color and located above the glass entry door. Entry into the target apartment is made through the second door on the east side of the building along the driveway." {¶ 18} The only problem in the warrant was the incorrect zip code. As the trial court noted, the other information was correct and only one Gloss Avenue existed with that particular building number. Consequently, the evidence showed that little danger existed that the police would search the wrong residence. *Page 7 {¶ 19} Burton also contends that confusion existed about the address in the affidavit and warrant. The record shows that the bill of particulars and some other documents used different street names such as "Glass Avenue" and Gross Avenue." Burton's counsel argued this issue extensively at the hearing on the motion to suppress. But the address, except for the zip code, and the description of the building in the warrant were correct. The incorrect street names in the bill of particulars and other later documents were irrelevant to the issue of whether the search warrant was fatally deficient. {¶ 20} We cannot hold that the search warrant was fatally deficient for failing to particularly describe the place to be searched. Consequently, we overrule Burton's third assignment of error. IV. Ineffective Assistance of Counsel {¶ 21} In his third assignment of error, Burton contends that he was denied the effective assistance of counsel. Burton's counsel asked the trial court to reconsider its denial of his motion to suppress. At a hearing on that motion, she presented a transcript of the confidential informant's testimony. The trial court denied the motion to reconsider. Burton argues that counsel's failure to present the informant's live testimony constituted ineffective assistance of counsel. This assignment of error is not well taken. {¶ 22} The record shows that Burton's counsel was zealous in her representation. It does not show that the informant's live testimony would have resulted in a different outcome. Burton has not demonstrated that his counsel's representation fell below an objective standard of reasonableness or that, but for counsel's unprofessional errors, the result of the proceeding would have been *Page 8 otherwise. Therefore, he has failed to meet his burden to show ineffective assistance of counsel.14 We overrule his third assignment of error. V. Sentencing {¶ 23} Finally, in his fourth assignment of error, Burton contends that his sentences were contrary to law. First, he argues that the sentences were excessive. We disagree. The two counts of trafficking in cocaine were second-degree felonies, and the count of possession of cocaine was a third-degree felony. All the sentences were in the appropriate statutory range, 15 and Burton has failed to demonstrate that the trial court abused its discretion in imposing them.16 {¶ 24} Next, Burton argues that his convictions for trafficking in cocaine under R.C. 2925.03(A)(2) and possession of cocaine under R.C. 2925.11(A) should have been merged for sentencing. We agree. InState v. Cabrales, 17 the Ohio Supreme Court held that these two offenses are allied offenses of similar import.18 In this case, they were not committed separately or with a separate animus as to each. Therefore, Burton could have been convicted of only one of the offenses.19 {¶ 25} The state argues that Burton failed to raise the issue in the trial court and that he has failed to demonstrate plain error because the court ordered the sentences to run concurrently.20 But this court has held that imposing concurrent sentences when offenses should have been merged is plain error.21 *Page 9 {¶ 26} Consequently, we sustain Burton's fourth assignment of error. We vacate the sentences imposed and remand the case to the trial court to enter a single conviction under either R.C. 2925.03(A)(2) or R.C. 2925.11(A). We do note that trafficking in cocaine under R.C. 2925.03(A)(1) and possession of cocaine under R.C. 2925.11(A) are not allied offenses of similar import.22 Therefore, Burton may be sentenced on both the R.C. 2925.03(A)(1) count and one of the other two counts, for a total of two sentences.23 We affirm the trial court's judgment in all other respects. Judgment affirmed in part, sentences vacated, and cause remanded. HENDON, P.J., and CUNNINGHAM, J., concur. 1 (1966), 384 U.S. 436, 86 S.Ct. 1602. 2 State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,797 N.E.2d 71, ¶ 8; State v. Taylor, 174 Ohio App.3d 477, 2007-Ohio-7066,882 N.E.2d 945, ¶ 11. 3 State v. Eley, 77 Ohio St.3d 174, 178, 1996-Ohio-323,672 N.E.2d 640; State v. Slaughter (Apr. 28, 2000), 1st Dist. No. C-980702. 4 State v. Edwards (1976), 49 Ohio St.2d 31, 37-38, 358 N.E.2d 1051, vacated as to death penalty (1978), 438 U.S. 911, 98 S.Ct. 3147;Slaughter, supra. 5 State v. Dailey (1990), 53 Ohio St.3d 88, 559 N.E.2d 459, paragraph two of the syllabus; Slaughter, supra. 6 Dailey, supra, at 91, quoting Moran v. Burbine (1986),475 U.S. 412, 422-423, 106 S.Ct. 1135. 7 Lego v. Twomey (1972), 404 U.S. 477, 489, 92 S.Ct. 619;Slaughter, supra. 8 Edwards, supra, at paragraph two of the syllabus. 9 Colorado v. Connelly (1986), 479 U.S. 157, 167, 107 S.Ct. 515;State v. Combs (1991), 62 Ohio St.3d 278, 285, 581 N.E.2d 1071;Slaughter, supra. 10 See United States v. Gannon (C.A.8, 2008), 531 F.3d 657, 661-662;Thompson v. Haley (C.A. 11, 2001), 255 F.3d 1292, 1297; United States v.Jones (C.A.11, 1994), 32 F.3d 1512, 1517; Allen v. McCotter (C.A.5, 1986), 804 F.2d 1362, 1364. 11 Crim. R. 41(C). 12 State v. Jones, 6th Dist. Nos. L-00-1231, L-00-1232, and L-00-1233, 2003-Ohio-219, ¶ 74; State v. Dore (1992),79 Ohio App.3d 466, 468-469, 607 N.E.2d 553; State v. Hurt (Feb. 9, 1981), 2nd Dist. No. 1161. 13 State v. Scott, 7th Dist. Nos. 02 CA 108 and 02 CA 123, 2003-Ohio-5011, ¶ 21-22; State v. Smith, 9th Dist. No. 21069, 2003-Ohio-1306, ¶ 17-19; State v. Pruitt (1994),97 Ohio App.3d 258, 260, 646 N.E.2d 547. 14 See Strickland v. Washington (1984), 466 U.S. 668, 687-689,104 S.Ct. 2052; State v. Hirsch (1998), 129 Ohio App.3d 294, 314-315,717 N.E.2d 789. 15 R.C. 2929.14(A)(2) and (3). 16 State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus; State v. Smith, 1st Dist. No. C-060991, 2008-Ohio-2561, ¶ 17-19. 17 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181. 18 Id. at paragraph two of the syllabus. 19 See id. at ¶ 14; State v. Lanier, 1st Dist. No. C-080162, 2008-Ohio-6906, ¶ 19. 20 See State v. Underwood (1983), 3 Ohio St.3d 12, 13,444 N.E.2d 1332; State v. Salaam, 1st Dist. Nos. C-070385 and C-070413, 2008-Ohio-4982, ¶ 25. 21 State v. Moore, 1st Dist. No. C-070421,2008-Ohio-4116, ¶ 10; State v. Fields (1994), 97 Ohio App.3d 337,347-348, 646 N.E.2d 866. See, also, State v. Gilmore, 1st Dist. Nos. C-070521 and C-070522, 2008-Ohio-3475, ¶ 16-17. 22 Cabrales, supra, at ¶ 29. 23 See Lanier, supra, at ¶ 19. *Page 1

2018-12-19 10:07:43.308421+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20181218_C339765_57_339765.OPN.PDF

STATE OF MICHIGAN COURT OF APPEALS THE RESERVE AT HERITAGE VILLAGE UNPUBLISHED CONDOMINIUM ASSOCIATION, December 18, 2018 Plaintiff, v No. 339765 Macomb Circuit Court WARREN FINANCIAL ACQUISITION, LLC, LC No. 2012-000133-CB Defendant-Appellant, and HERITAGE VILLAGE SINGLE FAMILY, INC., HERITAGE VILLAGE MASTER COMMUNITY ASSOCIATION, GRAND/SAKWA PROPERTIES, LLC, GRAND/SAKWA OF WARREN, LLC, GARY SAKWA, NICK DONOFRIO, WHITEHALL PROPERTY MANAGEMENT, INC., CHRISTINE METIVA, STANLEY L. SCOTT, DAVID A. GANS, WINNICK HERITAGE VILLAGE, LLC, and RESERVE MORTGAGE HOLDING, LLC, Defendants, and THE MEISNER LAW GROUP, PC, ROBERT M. MEISNER, and DANIEL P. FEINBERG, Appellees. Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ. PER CURIAM. In this long-standing litigation involving allegations of unpaid condominium association assessments, defendant-appellant Warren Financial Acquisition, LLC (Warren Financial) appeals as of right the trial court’s order denying its motion for sanctions against appellees, Robert M. -1- Meisner, Daniel P. Feinberg, and The Meisner Law Group, PC. Appellees served as counsel to plaintiff, The Reserve at Heritage Village Condominium Association, in the underlying litigation. We affirm in part, reverse in part, and remand for further proceedings. I. BACKGROUND We recited the facts of the underlying litigation at some length in a previous appeal to this Court and will not repeat them here. See Reserve at Heritage Village Ass’n v Warren Fin Acquisition, LLC, 305 Mich App 92 , 96-103; 850 NW2d 649 (2014). In that appeal, this Court affirmed the trial court’s determination that Counts IV through XXX of plaintiff’s second amended complaint were properly dismissed as barred by the statute of limitations, reversed the portion of the trial court’s decision concluding that Warren Financial could foreclose on the mortgage, and remanded for additional proceedings without retaining jurisdiction. Id. at 126 . On remand, Warren Financial and plaintiff filed multiple motions for summary disposition on Count I, which involved plaintiff’s request to foreclose on a lien it had placed on Warren Financial’s 76 condominium units, and Count II, which involved plaintiff’s claim that it was owed $205,884 in unpaid assessments, exclusive of interest, late charges, costs, and attorney fees.1 There were numerous discovery matters, multiple hearings, and constant disputes between the parties, including a dispute over what the holdings of this Court and the trial court meant. Warren Financial believed that plaintiff was continuously attempting to relitigate the dismissed counts, and plaintiff believed that Warren Financial was involved in a plot to defraud it of funds. Almost every order issued by the trial court was followed by a motion for reconsideration from one or both parties, which resulted in additional hearings where the trial court argued with counsel over what it meant by its opinion and order. Mediation and case evaluation were, unsurprisingly, unsuccessful. Almost two years after this Court issued its opinion remanding this case, the parties finally proceeded to a bench trial on Counts I and II. Trial lasted five days over three months and consisted of testimony from the owner of the company currently managing the condominium complex, three members of plaintiff’s board of directors, Nicholas Donofrio, and two attorney fees experts (one for each side). Six months after trial, the trial court issued its decision and held that Warren Financial was liable to “plaintiff for its pro rata share of expenses of administration, consistent with Article II, § 8 of the Bylaws,” and had to pay $96,565.60. But the court also ruled that Article II, § 8’s developer exemption was valid under the Condominium Act, MCL 559.101 et seq., and that it exempted Warren Financial’s liability for assessments. Because allegedly unpaid assessments formed the basis for plaintiff’s lien on Warren Financial’s condominium units, and because the trial court ruled that Warren Financial was not liable to plaintiff for any unpaid assessments, the trial court denied plaintiff’s request to foreclose its lien, dissolved the lien, and denied plaintiff’s request for attorney fees. The trial court also explained: While Warren Financial is . . . obligated to pay some money to plaintiff, plaintiff has not actually succeeded on even a single count of its complaint. To wit, 28 of 1 By trial, this amount had increased to over $1 million. -2-  the 30 counts brought against Warren Financial were dismissed prior to the commencement of this bench trial. Of the remaining two counts, plaintiff has not prevailed on its count of lien foreclosure (count I), nor has plaintiff prevailed on its count for unpaid assessments (count II). While this Court will enter judgment in favor of plaintiff for the unpaid pro rata share of administrative expenses— given the admission that such expenses are due and owing—there is not a single count on plaintiff’s complaint on which plaintiff was “successful.” Accordingly, plaintiff’s request for attorney fees is properly denied.[2] [Emphasis added.] Following this ruling, Warren Financial filed a motion seeking attorney fees and costs for filing a frivolous complaint under MCR 2.1143 and MCL 600.2591. Warren Financial’s motion 2 Plaintiff appealed this decision. At some point after that, Warren Financial satisfied the judgment, and plaintiff’s appeal was dismissed by stipulation. Reserve at Heritage Village Ass’n v Warren Fin Acquisition LLC, unpublished order of the Court of Appeals, entered August 1, 2017 (Docket No. 336932). 3 MCR 2.114 was repealed effective September 1, 2018; its provisions now appear in MCR 1.109(E)(5) through (7). Administrative Order No. 2002-37, 501 Mich ___ (2018). Relevant to this appeal, MCR 2.114(D) through (F) provided: (D) Effect of Signature. The signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that (1) he or she has read the document; (2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (3) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (E) Sanctions for Violation. If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees. The court may not assess punitive damages. (F) Sanctions for Frivolous Claims and Defenses. In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2). The court may not assess punitive damages. -3- sought sanctions against plaintiff’s counsel, appellees. The trial court scheduled an evidentiary hearing on the motion. At the hearing, Warren Financial argued that it was the prevailing party under MCL 600.2591, but appellees’ asserted that Warren Financial could not be the prevailing party because it had a judgment entered against it. Warren Financial countered that the trial court’s opinion stated that plaintiff had not succeeded on a single count of its complaint and that the judgment was based on Warren Financial’s admissions of its liability, not plaintiff’s claims. Warren Financial then argued that various counts, positions, and defenses argued by appellees lacked a factual basis, were devoid of arguable legal merit, or showed an intent to embarrass, harass, or injure Warren Financial. Appellees countered that none of its positions lacked legal merit, that there was a factual basis for every count, and that it was Warren Financial that intended to embarrass, harass, or injure plaintiff. In rendering its decision, the trial court addressed each of Warren Financial’s claims individually, and rejected all of them. Having not found any of plaintiff’s positions frivolous, the trial court refused to consider whether Warren Financial was the prevailing party. The court then denied Warren Financial’s motion in its entirety. Warren Financial sought reconsideration, which the trial court denied because it “remain[ed] unpersuaded that Plaintiff’s positions were devoid of arguable legal merit.” Warren Financial then filed this appeal against appellees. II. STANDARD OF REVIEW In Meisner Law Group, PC v Weston Downs Condo Ass’n, 321 Mich App 702 , 730; 909 NW2d 890 (2017), this Court explained: A trial court’s findings with regard to whether a claim or defense was frivolous, and whether sanctions may be imposed, will not be disturbed unless it is clearly erroneous. A decision is clearly erroneous where, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. [Quotation marks and citations omitted.] III. ANALYSIS Warren Financial contends that the trial court clearly erred by determining that none of plaintiff’s claims, defenses, or positions were frivolous. “ ‘Whether a claim is frivolous within the meaning of MCR 2.114(F) and MCL 600.2591 depends on the facts of the case.’ ” Id. at 731, quoting Kitchen v Kitchen, 465 Mich 654 , 662; 641 NW2d 245 (2002). Under MCL 600.2591(3)(a), “Frivolous” means that at least 1 of the following conditions is met: (i) The party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party. -4-  (ii) The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true. (iii) The party’s legal position was devoid of arguable legal merit. The provisions about frivolous claims and defenses in the Michigan Court Rules and MCL 600.2591 “ ‘impose an affirmative duty on each attorney to conduct a reasonable inquiry into the factual and legal viability of a pleading before it is signed.’ ” Meisner, 321 Mich App at 731, quoting Attorney General v Harkins, 257 Mich App 564 , 576; 669 NW2d 296 (2003). The reasonableness of the attorney’s inquiry is determined by an objective standard, not the attorney’s subjective good faith. The purpose of imposing sanctions for asserting a frivolous action or defense is to deter parties and their attorneys from filing documents or asserting claims or defenses that have not been sufficiently investigated and researched or that are intended to serve an improper purpose. A court must determine whether a claim or defense is frivolous on the basis of the circumstances at the time it was asserted. [Meisner, 321 Mich App at 731-732 (citations omitted).] A claim or defense is devoid of arguable legal merit when there clearly are no legal grounds to support it, Taylor v Lenawee Co Bd of Rd Comm’rs, 216 Mich App 435 , 444-446; 549 NW2d 80 (1996), “such as when it violates basic, longstanding, and unmistakably evident precedent,” Bronson Health Care Group v Titan Ins Co, 314 Mich App 577 , 585; 887 NW2d 205 (2016). A. PREVAILING PARTY Before Warren Financial can be entitled to sanctions for frivolous claims and defenses, we must determine whether it was “the prevailing party.” MCL 600.2591(1). A “prevailing party” is “a party who wins on the entire record.” MCL 600.2591(3)(b). In the underlying suit, the trial court was clear that (1) plaintiff “[had] not prevailed on its count of lien foreclosure (count I), nor [had] plaintiff prevailed on its count for unpaid assessments (count II),” (2) the judgment was entered in plaintiff’s favor “given [Warren Financial’s] admission that such expenses are due and owing,” and (3) “there is not a single count on plaintiff’s complaint on which plaintiff was ‘successful.’ ” Not only did the trial court accept Warren Financial’s calculation of its liability, but the amount awarded to plaintiff was less than the amount of the lien that plaintiff filed in 2011. Even though the amount Warren Financial owed plaintiff increased throughout the five-year litigation, it never reached the amount that plaintiff asserted it was entitled to before the litigation began. In this light, plaintiff never improved its position and its claims were “meritless,” while Warren Financial improved its position by obtaining the removal of plaintiff’s lien from its units. We conclude that the dissolution of the lien and the trial court’s award to plaintiff of only the amount that Warren Financial conceded it was liable for rendered Warren Financial the prevailing party. See Keinz v Keinz, 290 Mich App 137 , 141- 142; 799 NW2d 576 (2010) (holding that the plaintiff was the prevailing party even though “[t]he circuit court did not resolve this question”). -5-  B. COUNTS IV THROUGH XXVII Warren Financial first argues that the trial court erred in denying its motion for sanctions for plaintiff’s Counts IV through XXVII in its amended complaint because those counts “were undeniably time-barred and the relation-back doctrine did not apply.” We disagree. In the previous appeal, the issue was whether the claims plaintiff added in its amended complaints against Warren Financial and other defendants were barred by the statute of limitations. We explained that “[a]ny causes of action that accrued from January 11, 2010, to July 16, 2010, and are not contained in the original complaint, are . . . barred, unless the amended complaints relate back to the original complaint.” Reserve, 305 Mich App at 120. In determining whether the claims in the amended complaints related back to the original complaint, we found a “close question” on “whether the amended complaints added wholly new and different parties.” Id. at 121. We found no question, however, that “the claims in the amended complaints do not arise out of the conduct, transaction, or occurrence set forth in the original complaint.” Id. But that did not end our inquiry because plaintiff could nevertheless have saved its claims “if the statute of limitations was tolled by fraudulent concealment.” Id. at 120. Both this Court and the trial court rejected plaintiff’s fraudulent-concealment argument. Both courts concluded that for Counts IV through XI—which concerned physical defects—there was no evidence that the defects were concealed. Id. at 123. As for “Counts XII through XXVII, involving the fraudulent scheme,” this Court concluded that fraudulent concealment did not toll the statute of limitations because “plaintiff was aware of a possible cause of action by October 8, 2008, or March 3, 2009.” Id. at 124. Warren Financial asserts that “[b]ased upon a clear reading of the MCR 2.118(D) there was no arguable legal merit to justify the filing of Counts IV through XXVII.” But the record shows that plaintiff was relying on alleged fraudulent concealment to toll the statute of limitations. Based on this argument, until the trial court determined—and we affirmed—that the date on which plaintiff had notice of a possible cause of action was March 3, 2009, plaintiff had an arguable claim that Counts IV through XXVII were not time-barred. We also note that the statute of limitations is a waivable affirmative defense; had Warren Financial not asserted the defense, the counts could have remained viable. See Dell v Citizens Ins Co of America, 312 Mich App 734 , 757-758; 880 NW2d 280 (2015). And, contrary to Warren Financial’s apparent assertions, filing a claim that may be barred by the statute of limitations does not, as a matter of law, render the claim or its filing frivolous. See Siecinski v First State Bank of E Detroit, 209 Mich App 459 , 465-466; 531 NW2d 768 (1995) (holding that the plaintiff’s error about application of the statute of limitations did not necessitate a finding that the action was frivolous).4 4 Warren Financial raised other arguments at trial that it does not raise in its brief on appeal. We deem Warren Financial’s decision to not include the arguments to be a waiver of those arguments. See In re Subpoena Duces Tecum to Wayne Co Prosecutor, 205 Mich App 700 , 704; 518 NW2d 522 (1994) (explaining that a party waives appellate review of an issue raised at trial if that issue is not also raised in the party’s brief on appeal). -6-  C. COUNT I—THE BLANKET LIEN As part of plaintiff’s attempt to foreclose on Warren Financial’s condominium units (Count I), plaintiff imposed a blanket lien on all 76 of Warren Financial’s units. Warren Financial contends that plaintiff’s imposition of a blanket lien was a blatant violation of the relevant law, and that plaintiff’s argument to the contrary was devoid of legal merit. We disagree. When Warren Financial moved for summary disposition on Counts I and II in July 2015, it argued—as it does on appeal—that plaintiff’s blanket lien violated MCL 559.208, which provides that “[t]he lien upon each condominium unit owned by the co-owner shall be in the amount assessed against the condominium unit.” Warren Financial also relied on Article II, § 4 of the Bylaws, which states that “all assessments levied against the co-owners to cover expenses of administration shall be apportioned among and paid by the co-owners in accordance with the percentage value allocated to each unit.” In response, plaintiff asserted that Warren Financial ignored the beginning of MCL 559.208(1), which provides that the unpaid amounts “constitute a lien upon the unit or units in the project owned by the co-owner at the time of the assessment,” as well as the requirement in MCL 559.208(3)(a)(i) that the notice of lien include “[t]he legal description of the condominium unit or condominium units to which the lien attaches.” Plaintiff reasoned that because the sums assessed constituted a lien against units—plural—owned by a single co-owner, and the lien required a legal description of the condominium units—again, plural—to which it attached, a blanket lien was “proper, if not absolutely mandatory.” In ruling on the parties’ cross-motions for summary disposition, the trial court did not address Warren Financial’s blanket-lien argument. Instead, it dissolved plaintiff’s lien because it could only be imposed if Warren Financial owed assessments, and the trial court determined that Warren Financial was not liable to plaintiff for assessments. When ruling on Warren Financial’s motion for sanctions, the trial court refused to address whether plaintiff’s blanket-lien argument In Warren Financial’s reply brief, it argues that appellees’ argument at trial that Article XXIII of plaintiff’s Bylaws was unenforceable was a frivolous claim. Yet Warren Financial did not raise this argument in its initial brief; Warren Financial’s initial brief referenced Article XXIII in its statement of facts, but its argument section is devoid of any mention of that article, and nowhere in Warren Financial’s initial brief does it explain why appellees’ Article-XXIII argument was frivolous. We decline to address Warren Financial’s Article-XXIII argument because it is not properly before this Court having been first raised in Warren Financial’s reply brief. See Check Reporting Services, Inc v Michigan Nat Bank-Lansing, 191 Mich App 614 , 628; 478 NW2d 893 (1991) (“[W]e decline to address the new issues raised in plaintiff’s reply brief because they are not properly before us.”); Blazer Foods, Inc v Rest Properties, Inc, 259 Mich App 241 , 252; 673 NW2d 805 (2003) (“Reply briefs may contain only rebuttal argument, and raising an issue for the first time in a reply brief is not sufficient to present the issue for appeal.”); MCR 7.212(G). -7- was frivolous in part because the trial court did not decide the issue in its earlier opinion and order.5 Assuming that the trial court should have addressed whether plaintiff’s blanket-lien argument was frivolous, we conclude that the argument was not and so affirm the trial court’s ruling. See Gleason v Mich Dep’t of Transp, 256 Mich App 1 , 3; 662 NW2d 822 (2003) (upholding a trial court’s ruling where the court reached the right result for the wrong reason). Both parties relied on MCL 559.208 for their arguments. MCL 559.208(1) provides: (1) Sums assessed to a co-owner by the association of co-owners that are unpaid together with interest on such sums, collection and late charges, advances made by the association of co-owners for taxes or other liens to protect its lien, attorney fees, and fines in accordance with the condominium documents, constitute a lien upon the unit or units in the project owned by the co-owner at the time of the assessment before other liens except tax liens on the condominium unit in favor of any state or federal taxing authority and sums unpaid on a first mortgage of record, except that past due assessments that are evidenced by a notice of lien recorded as set forth in subsection (3) have priority over a first mortgage recorded subsequent to the recording of the notice of lien. The lien upon each condominium unit owned by the co-owner shall be in the amount assessed against the condominium unit, plus a proportionate share of the total of all other unpaid assessments attributable to condominium units no longer owned by the co-owner but which became due while the co-owner had title to the condominium units. The lien may be foreclosed by an action or by advertisement by the association of co-owners in the name of the condominium project on behalf of the other co-owners. [Emphasis added.] Plaintiff has always argued that a “blanket lien” was proper under MCL 559.208(1) based on the statute’s use of the alternative plural “unit or units” in the phrase “constitute a lien upon the unit or units in the project owned by the co-owner at the time of the assessment.” Plaintiff’s argument was essentially that the statute speaks of a singular lien that is applicable to multiple units. Although, as Warren Financial points out, the second sentence of MCL 559.208(1) likely bars blanket liens, we do not find that plaintiff’s argument was devoid of legal merit. The argument was reasonable and grounded in basic principles of statutory interpretation. See Taylor, 216 Mich App at 444-446. And neither party was able to cite authority to support that their interpretation was settled law, or that the other party’s position was contrary to settled precedent. See Bronson Health Care Group, 314 Mich App at 585. This was a purely legal question, and because Warren Financial has not established that plaintiff’s argument was devoid 5 The trial court also refused to find the argument frivolous because this Court refused to grant Warren Financial’s motion to lift the stay on the proceedings in the first appeal, presumably inferring that if the claim was frivolous, then this Court would have lifted the stay. But this Court’s order does not reflect any such intent. See Reserve at Heritage Village Ass’n v Warren Fin Acquisition, unpublished order of the Court of Appeals, entered November 20, 2013 (Docket No. 317830). -8- of legal merit, we are not left with a definite and firm conviction that the trial court erred by not finding the argument frivolous. D. COUNT II—UNPAID ASSESSMENTS 1. VALIDITY OF DEVELOPER EXEMPTION At issue in this count was the proper interpretation of MCL 559.169(3), “at least as it relates to a developer’s liability to pay condominium assessments,” which the parties agreed was a matter of first impression in Michigan. To resolve this count, the trial court had to consider the interplay of the Bylaws and the Condominium Act, and decide whether developer exemptions, like the one contained in the Bylaws, were permitted under the Condominium Act. As part of its ruling, the court had to determine what the term “expenses of administration”—used in both the Bylaws and in the Condominium Act—meant. The trial court first ruled that “expenses of administration” had different meanings in the Condominium Act and the Bylaws. The trial court determined that, as used in the Condominium Act, “expenses of administration” included assessments, but that the term was used much more narrowly in the Bylaws. The trial court then referred to the rest of MCL 559.169(3), which permitted “expenses of administration”—and therefore assessments—to be apportioned as “contained in the master deed.” The trial court concluded that, because the Condominium Act allowed liability for assessments to be determined by the Master Deed, the provision in the Bylaws exempting developers like Warren Financial from paying assessments was permissible under the Condominium Act. Warren Financial asserts that plaintiff pleaded several defenses and positions related to Count II that were frivolous. We will address each of these in turn. 2. DEFENSES OF ESTOPPEL, WAIVER, AND COURSE OF CONDUCT At trial, plaintiff argued that even if the Bylaws exempted Warren Financial from paying assessments, Warren Financial was estopped or waived its right to not pay the assessments based on its course of conduct. Warren Financial argues that plaintiff’s estoppel, waiver, and course of conduct assertions were without legal merit because the Bylaws expressly provided that, even if Warren Financial had paid the assessments in the past, it would not constitute a waiver of its right to enforce the developer exemption in the future. The trial court held that the estoppel argument was not frivolous because its resolution depended on a factual dispute that was decided at trial. During trial, the parties presented conflicting evidence about Warren Financial’s reasons for why it paid—and then stopped paying—assessments. The trial court resolved the conflict in evidence in Warren Financial’s favor, finding that Warren Financial’s witness, Donofrio, “provide[d] a fully adequate rationale for Warren Financial’s decision to stop paying assessments.” Based on this “adequate rationale,” the trial court concluded that Warren Financial was not estopped from refusing to pay assessments. In a footnote, the trial court referenced Article XIX, § 5 of the Bylaws, which provides, “[t]he failure . . . of any Co-owner to enforce any right, provision, covenant, or condition which may be granted by the Condominium Documents shall not constitute a waiver of the right . . . to -9- enforce such right, provision, covenant or condition in the future.” In determining whether plaintiff’s estoppel or waiver arguments were frivolous, the trial court erred by focusing on its resolution of a factual dispute rather than on the application of Article XIX, § 5. Regardless of Warren Financial’s reasons for paying or not paying assessments, if Warren Financial was entitled to the developer exemption and therefore not liable to plaintiff for assessments, then, based on Article XIX, § 5, its previous act of paying the assessments simply could not constitute a waiver. On appeal, appellees do not explain why its estoppel or waiver arguments were permissible in light of the plain language of Article XIX, § 5. Because Article XIX, § 5 clearly precluded plaintiff’s estoppel or waiver arguments, we are definitely and firmly convinced that the trial court erred by not finding those arguments frivolous. 3. DEFENSE THAT WARREN FINANCIAL WAS NOT A DEVELOPER Warren Financial also argues that the Condominium Act and Bylaws are clear that Warren Financial was a developer, and that plaintiff’s initial argument that Warren Financial was not a developer was frivolous. We disagree. Warren Financial contends that appellees “need only have looked at the [Condominium Act] and the Master Deed to see that” Warren Financial was “a ‘successor developer’ and, consequently, [was] a ‘Developer’ under” the Master Deed. Warren Financial supports this argument by referencing the statutory definitions of “developer” and “successor developer” in MCL 559.106(2) and MCL 559.235(1) respectively. But Warren Financial does not address appellees’ argument why these statutory definitions do not control the Master Deed. Appellees have always contended that, although Warren Financial met the statutory definition of “successor developer,” this did not de facto make Warren Financial a “developer” as used in the Master Deed. Notably, the trial court accepted a similar argument for the term “expenses of administration”; it ruled that “expenses of administration” as used in the Condominium Act was not the same as when that term was used in the Bylaws. The parties’ dispute about whether Warren Financial was a developer centered around Article III, § 11 of the Master Deed, which defines “Developer” as meaning “Heritage Village Single Family, Inc. [HVSFI], a Michigan corporation, which has made and executed this Master Deed, and its successors and assigns.” Appellees took the position that if the drafters of the Master Deed wanted to incorporate the statutory definition of “successor developer” into this section, they could have done so but did not. Appellees contended that this was evidence that the drafters of the Master Deed intended for the definition of “developer” in the Master Deed to be distinct from the statutory definition of a “successor developer.” Appellees asserted that, based on this evidence, the section should be read as only applying to corporate successors of HVSFI, meaning those who succeeded HVSFI by merger or acquisition. While appellees’ position was ultimately rejected, it was nonetheless based on basic principles of contract interpretation. Warren Financial has not explained why the trial court clearly erred by concluding that there were no legal grounds that supported appellees’ position, see Taylor, 216 Mich App at 444-446, or how appellees’ position violated longstanding and unmistakably evident precedent, see Bronson Health Care Group, 314 Mich App at 585. As a result, we are not definitely and firmly convinced that the trial court erred by concluding that appellees’ argument that Warren Financial was not a “developer” as that term is used in the Master Deed was not frivolous. -10-  4. DEFENSE THAT ARTICLE II, § 8 VIOLATED CONDOMINIUM ACT Warren Financial also takes issue with plaintiff’s assertion that Article II, § 8 was void as violative of the Condominium Act, which plaintiff first asserted after this Court held in the previous appeal that Warren Financial was a developer. As the trial court noted, parties’ positions during litigation are fluid and, so long as they are not inconsistent, there is nothing inherently frivolous with pleading new or alternative arguments to support a client’s position. Warren Financial claims that the law was clear and did not exclude or void a developer exemption provision, but this ignores that the validity of the developer exemption under the Condominium Act was an issue of first impression and that appellees asserted legally sound, albeit ultimately unsuccessful, arguments in support of their position that the exemption was invalid. The trial court did not clearly err in determining that plaintiff’s position was not frivolous. 5. BUDGETS AND FINANCIAL STATEMENTS Warren Financial next argues that the trial court erred in denying its motion for sanctions because (1) plaintiff’s proffered budgets and financial statements were not true and accurate; (2) plaintiff allegedly misrepresented that generally accepted accounting principles (GAAP) did not apply to condominium financials; (3) plaintiff’s position that assessments and the developer’s responsibility for administration expenses under Article II, § 8 were identical was frivolous; and (4) plaintiff’s position that, regardless of a budget’s contents, its formulation was solely within the discretion of the board of directors was contrary to the plain language of the Bylaws and therefore was frivolous. a. BUDGET ACCURACY Although Warren Financial complains about the accuracy of plaintiff’s budgets, the average of those budgets was what both Warren Financial and the trial court used to calculate Warren Financial’s liability for its pro rata share of the expenses of administration. And because both Warren Financial and the trial court determined the budgets to be accurate enough to use their arithmetic mean to determine Warren Financial’s liability, we conclude that the trial court did not clearly err in denying Warren Financial sanctions on this issue. b. GAAP Similarly, the trial court did not clearly err by not finding plaintiff’s assertion that GAAP did not apply to condominium financials was frivolous. The statute governing this issue is MCL 559.157(2), which states: Except as provided in subsection (3), an association of co-owners with annual revenues greater than $20,000.00 shall on an annual basis have its books, records, and financial statements independently audited or reviewed by a certified public accountant, as defined in section 720 of the occupational code, 1980 PA 299 , MCL 339.720. The audit or review shall be performed in accordance with the statements on auditing standards or the statements on standards for accounting and review services, respectively, of the American institute of certified public accountants. [Emphasis added.] -11- Without explanation, Warren Financial asserts that the italicized portion of the statute refers to GAAP. This is a strictly legal issue of statutory interpretation, and Warren Financial provides no support for its assertion that the statute necessarily refers to GAAP. By its plain terms, the statute refers to standards set by “the American institute of certified public accountants,” not GAAP. Warren Financial’s argument is cursory and wholly underdeveloped, and it presents no basis for us to conclude that plaintiff’s claim that GAAP did not apply to condominium financials was frivolous. See Blazer Foods, Inc v Rest Properties, Inc, 259 Mich App 241 , 252; 673 NW2d 805 (2003) (“[P]laintiffs have waived the issue by giving it such cursory treatment.”). c. ASSESSMENTS AND DEVELOPER’S RESPONSIBILITY ARE IDENTICAL Warren Financial objects to plaintiff’s contention that the assessments it sought to impose were identical to the expenses of administration that the Bylaws permitted. But this does not accurately reflect plaintiff’s position; plaintiff contended that the definition of “expenses of administration” was the same in both the Bylaws and the Condominium Act, and that the term included assessments. The trial court agreed with plaintiff that, as used in the Condominium Act, “expenses of administration” included assessments, but rejected plaintiff’s argument that the term was used the same way in the Bylaws. So, although the trial court ultimately rejected plaintiff’s position, plaintiff’s argument was not wholly without justification and, as noted earlier, was an issue of first impression. Warren Financial argues that the Bylaws’ developer exemption expressly differentiated between developers’ obligations for assessments and expenses of administration, but the question before the trial court was whether the developer exemption was valid in light of the Condominium Act. The trial court did not clearly err in denying sanctions to Warren Financial for appellees’ position on this issue. d. UNFETTERED BOARD DISCRETION TO CREATE BUDGET Next, Warren Financial argues that plaintiff’s position that its board had unfettered discretion to determine what was contained in the budget was frivolous. We disagree. The board members testified that they believed they held complete authority to determine the budget. Warren Financial’s financial expert testified to the contrary. The trial court did not resolve this conflict. Although there is no question that the litigation expenses related to Counts IV through XXX should have been assessed through a special litigation assessment and not in the annual assessments, those attorney fees were removed from the attorney fees calculation at trial. And, until the final verdict was issued, plaintiff’s board was working under the reasonable position that the litigation fees being incurred were for an assessment-collection action. Although there was testimony that the legal fees ought to have been separated out into their own line item in the budget, there was no testimony that they were not properly assessed to the remaining co-owners in the budget. Just because Warren Financial could not be charged for the attorney fees—as will be discussed—did not render their inclusion in the budget inappropriate. E. PLAINTIFF’S CLAIM FOR ATTORNEY FEES Warren Financial argues that plaintiff’s entire claim for attorney fees related to Counts I and II was frivolous based on a clear provision in the Bylaws that plaintiff never argued was invalid. We disagree. -12-  Warren Financial’s argument centers on Article II, § 8 of the Bylaws, which provides in relevant part: Further, the Developer shall in no event be liable for any assessment levied in whole or in part to purchase any Unit from the Developer or to finance any litigation or other claims against the Developer, any cost of investigating and preparing such litigation or claim or any similar or related costs. Warren Financial argues that, based on this section, the Bylaws “expressly [exclude] the recovery of attorney’s fees from the developer for the purpose of litigation,” “[n]o reasonable reading of . . . the Bylaws supported a finding that a developer would be liable to pay attorney’s fees related to litigation asserted against it arising under the Bylaws,” and any “arguments to the contrary were frivolous.” But this argument ignores that the Bylaws provide other ways to collect attorney fees. Namely, Article II, § 6(d) provides that “[t]he expenses incurred in collecting unpaid assessments, including . . . actual attorneys’ fees” are “chargeable to the Co-owner.” While Article II, § 8 prohibits a developer from liability for “any assessment levied . . . to finance any litigation . . . against the Developer,” attorney fees awarded under Article II, § 6(d) are not assessed but are directly charged to the co-owner—which includes a developer—in default. In other words, Article II, § 8 prohibits collecting attorney fees or other costs related to litigation against a developer from the developer through assessments, but Article II, § 6(d) permits charging a developer attorney fees related to collecting unpaid assessments against the developer in default. For reasons already explained, plaintiff had a reasonable legal basis to argue that Warren Financial, as a developer, owed assessments to plaintiff. Until the trial court ruled that Warren Financial was not, in fact, liable for assessments based on Article II, § 8—which the trial court upheld as valid under the Condominium Act—plaintiff reasonably sought attorney fees under Article II, § 6(d) as part of an attempt, albeit an unsuccessful attempt, to collect unpaid assessments. Because appellees’ position that plaintiff was entitled to attorney fees was not devoid of legal merit, the trial court did not clearly err by ruling that the position was not frivolous. F. PURPOSE OF LITIGATION WAS TO EMBARRASS, HARASS, OR INJURE Finally, Warren Financial argues that the trial court clearly erred when it determined that plaintiff did not initiate the litigation to embarrass, harass, or injure Warren Financial and its agents. We disagree. In support of its contention, Warren Financial first relies on testimony of plaintiff’s attorney-fees expert, who agreed with the proposition that some of the counts that plaintiff added in the amended complaints “were asserted by the Plaintiff just to put pressure on the Defendant to try to get them to pay the assessment.” The expert also testified: I said it, and I’ll say it again. [The second amended complaint] relates to a strategy that was in response to the defense strategy to put it all and any kind of counts that they feel might have an effect on the Defendant to resolve the case in the manner in which they wanted it to. -13- The expert described Meisner as “overzealous” and “aggressive” in a case he had litigated against Meisner, but maintained that Meisner’s actions in that case were not inappropriate. The expert believed that, in this case, both sides were “aggressive” and “strong advocate[s].” Warren Financial’s argument that plaintiff’s amended complaints, which added a number of claims, establishes that appellees’ intent was to embarrass, harass, or injure Warren Financial ignores that initiating litigation is almost always a strategic decision and an attempt to force the other party into resolution of the matter. We will not conclude that asserting one’s legal rights through litigation is, by itself, evidence of an intent to embarrass, harass, or injure. Similarly, although advancing numerous claims may be evidence of an intent to embarrass, harass, or injure, it does not per se establish that that was the party’s intent. Relatedly, Warren Financial argues that Counts IV through XXVII are evidence of appellees’ intent to embarrass, harass, or injure Warren Financial because the counts “were premised upon allegations of a fraudulent scheme . . . and stealing and embezzlement on the part of Warren Financial, its agents[,] and its representatives,” and, despite Counts IV through XXVII being dismissed as barred by the statute of limitations, appellees referred to these allegations as late as their July 2016 post-trial brief. But Warren Financial does not explain why this is evidence of an intent to embarrass, harass, or injure. While it is possible that appellees were seeing fraud where none existed, Counts IV through XXVII were dismissed on procedural grounds and so were never developed. Appellees’ continued assertions about the dismissed fraud allegations suggests that they believed in the validity of those allegations and that Warren Financial and its agents only got away with the fraud based on the running of the statute of limitations. In short, we cannot conclude that the mere existence of the fraud allegations and appellees’ references to those allegations is evidence of an intent to embarrass, harass, or harm. Warren Financial argues that appellees’ intent to injure Warren Financial was also evidenced by plaintiff’s keeping the lien on Warren Financial’s lots and refusing to lift the stay because appellees knew that the units could not be sold with the lien. Unlike Warren Financial, we do not construe plaintiff’s and appellees’ refusal to lift the lien as evidence of an intent to injure. The record suggests that plaintiff and appellees truly believed that plaintiff was entitled to its lien, and that the lien was imperative to protecting plaintiff’s ability to obtain the unpaid assessments that plaintiff argued were due. And Warren Financial is not without fault for the amount of time that the lien remained pending; Warren Financial chose to focus not on getting the lien vacated in court but on creating an end-run around the lien through two separate foreclosure proceedings. Warren Financial also takes issue with appellees’ actions during discovery, and contends that those actions are evidence of appellees’ intent to embarrass, harass, or injure. But appellees’ actions in discovery are not concerning. Warren Financial claims appellees acknowledged Warren Financial’s right to seek depositions, but then filed a motion for a protective order to block the depositions on grounds that the depositions were being sought for purposes of annoyance, oppression, or to cause undue burden or expense. We fail to see how this is evidence of an intent to embarrass, harass, or injure; permitting a party to seek a deposition is not equivalent to agreeing to the deposition. Indeed, if the parties cannot agree on whether a deposition is proper, the entire point of telling the other party to seek the deposition may be to contest the deposition and have a court resolve the parties’ disagreement. -14-  In short, this was a complex litigation with two very zealous law firms representing two parties completely entrenched in their positions and unwilling to budge. This happens in litigation, and it is not evidence of an intent to embarrass, harass, or injure. None of the evidence that Warren Financial points to on appeal leaves us with a definite and firm conviction that the trial court made a mistake when it ruled that appellees’ purpose for initiating the litigation was not to embarrass, harass, or injure. III. CONCLUSION In light of the foregoing, we hold that Warren Financial was the prevailing party, and the trial court clearly erred by concluding that none of plaintiff’s claims or defenses were frivolous. We remand for a determination by the trial court of the appropriate sanction for appellees’ frivolous claim as identified in this opinion. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. No taxable costs under MCR 7.219, neither party having prevailed in full. We do not retain jurisdiction. /s/ Michael J. Kelly /s/ Patrick M. Meter /s/ Colleen A. O’Brien -15-

2018-12-04 17:29:37.359905+00

http://www.courts.state.ny.us/reporter/3dseries/2018/2018_08262.htm

Matter of Jaquiya F. (2018 NY Slip Op 08262) Matter of Jaquiya F. 2018 NY Slip Op 08262 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. 7794 [*1]In re Jaquiya F., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency Dawne A. Mitchell, The Legal Aid Society, New York (Marianne Allegro of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Jessica Miller of counsel), for presentment agency. Order of disposition, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about October 4, 2017, which adjudicated appellant a juvenile delinquent upon appellant's admission that she committed an act that, if committed by an adult, would constitute attempted assault in the third degree, and placed her on probation for a period of 12 months, unanimously affirmed, without costs. The court providently exercised its discretion in adjudicating appellant a juvenile delinquent and imposing a one-year period of probation, which was the least restrictive dispositional alternative consistent with appellant's needs and the community's need for protection (see Matter of Katherine W ., 62 NY2d 947 [1984]). The underlying offense was a serious, violent attack that resulted in injuries to the victim, and appellant has demonstrated a multitude of behavioral problems at school and at home. In light of these factors, the court properly concluded that an adjournment in contemplation of dismissal would not have provided sufficient supervision. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: DECEMBER 4, 2018 CLERK

2016-07-06 06:42:14.803196+00

CONCURS SAYING: {¶ 10} By attempting to appeal the trial court's March 1, 2005 order, Cook is in essence attempting to collaterally attack what he considers a void order. As Cook did not file any motions in the trial court, he lacks standing to raise this issue on direct appeal.