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2016-07-06 06:42:26.639846+00

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This is a consolidated appeal from a judgment of the Franklin County Court of Common Pleas, where that court determined that the order of the State Employment Relations Board ("SERB") in this matter was not supported by substantial, reliable and probative evidence and was not in accordance with law. The relevant facts are undisputed. The Shelby City Board of Education ("board") is a public employer within the meaning of R.C. 4117.01(B). For the period July 1, 1991 through June 30, 1994, the board and the Shelby Association of School Support, OEA/NEA ("union"), as the certified representative of all school bus drivers employed by the board, were parties to a collective bargaining agreement, which provides in pertinent part: "ARTICLE XXII — EXTRA CURRICULAR DRIVING: "22.01 For extra curricular driving: athletic events, band trips, field trips, etc., driver employees will be paid $10.00 an hour for actual driving time calculated to the nearest 1/4 hour. * * * Extra curricular trips which are not scheduled during a regular bus run will be offered to the most senior regular driver employees before being offered to substitute drivers according to the procedure below. "All extra curricular driving shall be offered on a rotation basis, beginning with the most senior driver employee. Driver employees refusing an extra curricular driving assignment during the rotation shall not be offered another extra curricular driving assignment until their next turn in the rotation." *Page 331 Pursuant to the agreement, no disciplinary action may be taken against any bus driver who individually declines an extracurricular driving assignment. However, upon a driver's refusal to accept such an assignment, that driver is moved to the end of the list as if the assignment had been accepted and is not offered another extracurricular run until his or her next turn in the rotation. Forfeiture of a driver's turn in the rotation is the only penalty for refusal. The collective bargaining agreement also contains a provision entitled "ARTICLE XXXIII — NO STRIKE OR LOCK OUT CLAUSE," which reads in pertinent part: "33.01 The Union hereby agrees that it will not directly or indirectly encourage or assist in any way, nor shall any employee initiate or participate, either directly or indirectly, in any strike, slowdown, walk out, work stoppage, or other concerted interference with or withholding of services from the Board or any type of activity which results in a reduction of the regular professional duties or employment obligations of any district employees, during the term of this contract." During the 1993-1994 school year, the board implemented a number of cost reduction measures which included a reduction in force and the elimination of high school busing. While these measures did not result in any bus driver layoffs, they did cause a reduction in hours. In response to the board's cutbacks, the bus drivers organized a meeting at which the drivers voted to withhold their services for extracurricular driving assignments. The purpose of this action was to protest the reductions and to coerce the board's compliance with certain economic demands. Thereafter, a series of meetings were held for the purpose of reaching a compromise between the drivers and the board. By September 22, 1993, those attempts yielded no solution to the dispute. Consistent with their vote, a number of bus drivers scheduled for extracurricular assignments removed themselves from the list. Attempts to replace those drivers proved unsuccessful as the remaining drivers on the rotation exercised their right to refuse the assignments. On September 24 and 25, no drivers reported to transport students to scheduled athletic events. As a result of the drivers' refusal, substitute and charter drivers were retained to perform the assignments. However, the union drivers continued to report for their regular routes. Those regular professional duties were performed continuously and without disruption. On September 27, 1993, the board filed a Request for Determination of Unauthorized Strike pursuant to R.C. 4117.23. In support of its request, the board argued that the concerted refusal of the drivers to perform extracurricular runs constituted an unlawful strike since it occurred mid-term in the parties' *Page 332 contract. Finding the board's position to be well taken, SERB determined that the drivers had participated in an unauthorized strike. R.C. 4117.01(H) defines a "strike" as: "[C]oncerted action in failing to report to duty; willful absence from one's position; stoppage of work; slowdown, or abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment for the purpose of inducing, influence, or coercing a change in wages, hours, terms and other conditions of employment. * * *" (Emphasis added.) In finding that a strike had occurred, SERB noted that the unified refusal of the drivers to accept extracurricular runs constituted a concerted action since the refusal had its genesis in the collective agreement made at the drivers' meeting. SERB further noted that the action of the drivers was aimed at inducing or coercing the board's compliance with certain economic demands. These findings have gone unchallenged. However, this case turns on SERB's determination with regard to the issue of duty. SERB found that the acceptance of extracurricular runs amounted to a duty of employment. Although drivers were immune from discipline for refusing extra assignments on anindividual basis, SERB found that the drivers were under a duty to refrain from collectively eliminating the pool of drivers available to perform the runs. Based on these findings, SERB held that the action of the drivers constituted an unauthorized strike. The union appealed the SERB order to the Franklin County Court of Common Pleas. That court reversed SERB's determination that an unauthorized strike had occurred. SERB and the board filed separate notices of appeal, which have been consolidated for this proceeding. As its challenge to the decision of the common pleas court, SERB raises the following assignments of error: "First Assignment of Error "The trial court erred when it concluded that the job action in the instant case was not a strike because, as a matter of fact and law, the concerted refusal of the bus drivers to drive any extracurricular runs as a means of obtaining economic concessions from the school board constituted a `strike' within the meaning of R.C. 4117.01(H). "Second Assignment of Error "The trial court abused its discretion in this case when it reversed the State Employment Relations Board's R.C. 4117.23 determination of unauthorized strike because said determination of unauthorized strike is supported by substantial evidence and is otherwise in accordance with law." The board assigns as error: *Page 333 "1. The trial court erred in failing to find, after giving due deference to the administrative interpretation of the applicable law, that the agency decision in question was supported by reliable, probative, and substantial evidence, and was otherwise in accordance with law, and to accordingly affirm the agency decision. "2. The trial court erred in failing to find that the simultaneous, concerted refusal of school bus drivers of the Shelby City School District to drive field trips and extracurricular activity runs, for the specific purpose of influencing the Shelby City Board of Education with respect to wages, hours, and other terms and conditions of employment, constituted an unlawful mid-term `strike' as defined by Section4117.01(H) of the Ohio Revised Code and prohibited by Sections4117.14(B)(3), 4117.15(A), and 4117.18(C) of the Ohio Revised Code." Despite presentation of this appeal as separate assignments of error, the dispositive issue is whether the bus drivers' refusal to drive extracurricular assignments constituted a strike within the meaning of R.C. 4117.01. As such, the assignments of error will be considered and addressed together. On appeal from an administrative order, the function of an appellate court is somewhat limited since the court of common pleas serves as the first forum for review. While it is incumbent on the common pleas court to weigh the evidence and determine whether the agency order is supported by substantial, reliable and probative evidence, such is not the charge of the court of appeals. Rather, the standard of review for an appellate court is whether the trial court has abused its discretion. Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St. 3d 257, 260, 533 N.E.2d 264, 266. Absent an abuse of discretion, the court of appeals must affirm the trial court's judgment if it is in accordance with law. The question becomes whether the drivers' failure to volunteer for extracurricular runs constitutes a strike. Appellants' focus on the "concerted action" of the drivers is misplaced. Concerted action does not, in and of itself, constitute a violation of the collective bargaining agreement. Clearly, there are circumstances under which the drivers could act in concert without violating the contract. Rather, resolution of this issue turns on whether such voluntary activities were a "duty" of employment. If so, the action of the drivers must be deemed a strike within the meaning of R.C.4117.01(H). The collective bargaining agreement in effect at the time of the drivers' action clearly confers the right to refuse extracurricular driving assignments. Due to the voluntary nature of such assignments, it cannot be said that the runs were "duties" of the drivers' employment. This outcome is consistent with the opinion in In re Amalgamated Transit Union, Local 272,Emp. Org. and W. Res. Transit *Page 334 Auth. (May 23, 1990), SERB No. 90-007, wherein SERB characterized a duty as follows: "A `duty' or `duties of employment' as used in O.R.C. §4117.01(H) cannot be so broadly construed as to render obligatory what the parties in their contract specifically designated as optional. "When a collective bargaining agreement explicitly provides employees with the right of choice in respect to certain work, exercising that choice, regardless of what the choice may be, cannot be considered a violation of `the full, faithful and proper performance of the duties of employment' under O.R.C. § 4117.01(H), and hence is not a strike. In the case at issue, the collective bargaining agreement gives the regular operators the option to work overtime. Exercising this contractual option, whether by volunteering to work overtime or by refraining from doing so, complies with the duties of employment as agreed by the parties in their contract and, thus, cannot constitute a strike. "There were no allegations that the employees failed to report for their regular shifts nor that they performed their duties in less than an acceptable fashion. Their required duties were fully discharged and there was no `abstinence in whole or in part' from their regular assignments. "[The public employer] argued that even though overtime is voluntary under the contract, the absence of employees to work overtime constitutes a strike since it has been past practice for the drivers to sign up for overtime work. This argument is not well taken. Even if it has been past practice for the drivers to sign up for overtime work, it was always voluntary and done by choice. Thus, the element of choice, which includes the option not to sign up for overtime work, is as much past practice as the signing up. "To define the employees' exercise of choice as a strike action might result in committing them to perform optional overtime work or subjecting them to possible punishment for withholding a service they were under no obligation to give." The reasoning of W. Reserve is sound and, in light of the voluntary nature of the activities at issue herein, the common pleas court did not err in applying it to the instant case. Appellants have offered no persuasive reasoning to support their argument that W. Reserve is inapposite. Exercising the right to decline voluntary service is not a violation of the "full, faithful and proper performance of the duties of employment" within the meaning of R.C. 4117.01(H). An unauthorized strike is a concerted withholding of the performance of the duty. In this case, no duty to perform extracurricular driving exists. As such, the refusal to render such voluntary service cannot be construed as a strike. *Page 335 For the foregoing reasons, the trial court did not err in holding that the SERB decision was not supported by reliable, probative and substantial evidence and, as such, was not in accordance with law. Appellants' assignments of error are overruled. The judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. PEGGY BRYANT and LAZARUS, JJ., concur.

2016-07-06 06:42:27.12378+00

Sullivan

This cause comes into this court on error from the municipal court of the city of Cleveland, wherein a judgment was rendered for *Page 44 the defendant below, the defendant in error here, the B.R. Baker Company. An examination of the pleadings and record shows that the action is one for the recovery of damages for personal injuries by reason of the alleged willful acts of the defendant. It appears that plaintiff is an employe of the Wurlitzer Company, the rear of whose premises on Euclid avenue is adjacent to the rear of the store operated by the B.R. Baker Company, also located on Euclid avenue, and that on the morning of November 21, 1925, the plaintiff drove to work in a Ford coupe, together with another employe of the Wurlitzer Company. There is evidence tending to show that he parked his car immediately in the rear of the Wurlitzer Company's store, where he was employed, the same being the parking space used daily, and reserved for employes of that store. The alley is 30 feet wide, and is used generally for parking purposes for employes and others connected with the stores fronting on Euclid avenue. There is evidence tending to show that plaintiff discovered at the noon hour that the car had been removed from where he had left it in the morning, and, after a search, found it in the rear of the premises adjacent, known as the B.R. Baker Company's property, and about two doors west of the Wurlitzer store. Thereupon he entered his car on the right, started in reverse, and was halted by a violent jerk, which tore the steering wheel from his grasp and hurled him with violence against it. He claims that thereby he sustained severe injuries to his chest, ribs, and arm, and this evidence is not seriously contradicted by the record. Upon examination it was then and there discovered that a *Page 45 chain, the size of a tire chain, and some 22 feet in length, extended from his left front wheel up through the left-hand door of his car, and was wound twice around the steering wheel. This chain was securely padlocked. There is evidence tending to show that this chain and lock contrivance was the work of the servant of defendant company, performed under the authority and with the knowledge of certain officers of the company. Upon demand, the plaintiff was met with a refusal to release his car unless he paid a parking charge of $1, which was demanded, as was to be observed upon a movable sign to that effect erected to attract the attention of the employes of defendant's store. The car, however, was released late in the afternoon, and subsequently this action was begun on the theory that the injuries resulted from the willful tort of the defendant. It appears from the record that the plaintiff was unaware of the padlocking of his car and of the chain connecting the steering wheel with the left wheel of the car, until after the occurrence of the accident and infliction of the injuries, and that the existence of the chain and its purposes could not have been ascertained by the exercise of ordinary care. If the chain had been around the wheel or rim of the steering wheel, it is obvious that before use of the wheel a knowledge of its presence would have been inevitable, as it would be necessary for the hands to use the rim of the wheel in order to guide the machine, but it appears that the rim itself was free and clear of the chain, so that, unless the chain were seen, its presence could not have *Page 46 been ascertained by the ordinary use of the wheel in the operation of the car. One point seems clear from the record, and that is that the principle of self-preservation would have prevented operation of the car had the driver known of the contrivance connecting the steering wheel with the wheel of the car, and of the padlocking of the chain. There was also evidence tending to show that the alley was narrow and dark by reason of the high walls shutting out the light from the sky, which condition has some bearing upon the question whether plaintiff had knowledge of the presence of the chain in the car. Bearing upon this state of facts, the court, among other instructions, charged as follows: "But, if, on the contrary, you find from the evidence, if you can assume from the evidence that he placed the car there, or left it in a place on those premises, then they had a perfect right to put the chain and lock on there, providing they had notice there that it was private property and that they charged and would charge for parking their cars there they had a right to collect * * *. "Now, if you find from the evidence, as I say you have a right to do, if you find from the evidence that they have complied with the law in that regard, your judgment should be for the defendant in that event. On the other hand, if you find that he did not park his car there, as I have said, and that somebody unknown to him pushed his car in there, then you will go further and inquire as to whether or not he had knowledge of the chain having been placed upon that car, and, if you find that he did have knowledge, or in the exercise of ordinary *Page 47 care should have known that the chain and lock were placed there, then you would go no further, and you would have a right to return a verdict for the defendant. But, if you find that in the exercise of ordinary care he could not have seen that chain and lock there, and that he had no knowledge and no notice of it and he got in there and started his car, then you would be warranted in finding a judgment for the plaintiff." We think this instruction was erroneous and prejudicial to the rights of the plaintiff. That the defendant had a right to charge and collect the fee stipulated by it for parking privileges, there can be no question, and perhaps it had a right, in a reasonable way, to remove said car to the adjacent premises, inasmuch as it appears from the record that the defendant in error had some knowledge of a previous attempt of plaintiff to park his car on defendant's property, but to say that the defendant, in addition to above right, could imprison the car and deprive the owner of its use, without his consent, by the contrivance of the chain and padlock, and thus take possession and control of the property, as in the nature of a lien for the payment of the parking fee, or as a penalty because of the wrongful parking on private property, is to assume a position not tenable in the law, for without the consent of the owner of the car, or operation of the law, as where one who repairs a car has a lien for payment, this would be creating a bailment, which cannot be done in the absence of any notice or consent on the part of the owner. This principle, we think, is laid down in B. O. Rd. Co. v.Campbell, 36 Ohio St. 647 (38 Am. Rep., *Page 48 617), in the second proposition of the syllabus, as follows: "Words on a railroad ticket or baggage check limiting the liability of the carrier to a specific amount for loss of baggage are not binding on a passenger, unless, with knowledge of such limitation, he agrees to it." There is a similar holding in Union Depot Co. v. Ulrich, 22 N.P., (N.S.), 141, 29 O.D.N.P., 564, affirmed by the Court of Appeals of Franklin county. It is to be noted that the action with respect to the chain preceded any attempt to collect the parking fee, or any refusal to pay the same. The status for the application of the law must apply to the time when the car was chained to prevent its use or operation by the owner. With this view of the record, we are of the unanimous opinion that there is error prejudicial to the plaintiff in the instructions above quoted. It appears that the use and purpose of the chain, in the manner set forth in the record, was to take temporary possession and control of the car, and the method was in and of itself perilous to the owner of the car when undertaking to operate it without notice of the act of the defendant. We think that this situation makes the case of Payne, DirectorGeneral, v. Vance, 103 Ohio St. 59, 133 N.E. 85, applicable. The fourth proposition of the syllabus reads as follows: "When defendant's conduct amounts to wilfulness, and when injury is occasioned by his conscious wrongdoing, the plaintiff's negligence is no defense." To the same effect are C., C., C. L. Ry. Co. v. *Page 49 McLean, 1 C.C., 112, 1 C.D., 67, and Nypano Rd. Co. v. Blose etal., Admrs., 2 Ohio App. 284. The instructions given by the lower court, above quoted, with respect to contributory negligence, are, we think, under the record in this case, in direct conflict with these authorities. It must be noted that as to the use and purpose of the chain there is no conflict in the evidence, and thus it is not difficult to reach the conclusion, under the record, that the presumption of law makes the act a willful tort. Holding these views, it is the unanimous judgment of this court that the judgment of the lower court be, and the same hereby is, reversed, and the cause remanded for further proceedings according to law. Judgment reversed and cause remanded. LEVINE, P.J., and VICKERY, J., concur. *Page 50

2016-07-06 06:42:27.560898+00

Silbe

This is an appeal from a decision of the Board of Tax Appeals. Appellant assigns one error for our consideration: that "The finding of the Board of Tax Appeals that the statements made in [a] letter dated July 22, 1971, from The Youngstown Steel Door Company * * * to the Tax Commissioner were not verified under oath or affirmation was unlawful and unreasonable." On June 22, 1971, appellee issued a combined sales and use tax assessment against appellant. Within 30 days after *Page 278 notice of the assessment was received, and on July 22, 1971, appellant's agent sent a letter to the appellee (received July 23, 1971) requesting a hearing, setting out several grounds on which appellant wished to contest the assessment made, and closing with the following: "Under the penalties of perjury, I declare that I have been authorized by the above named corporation to make this petition, that to the best of my knowledge and belief the statements made therein are true and correct, and that I am an officer of the company." The letter was signed by Bernard H. Scheidler, treasurer of the appellant. Appellee refused to treat the letter as a petition, and returned it to the appellant along with a cover letter and what appellee considers the proper form for such a petition, which appellant duly filled out and resubmitted. The latter was disallowed as not being timely filed. On appeal the Board treated both of the alleged petitions as consolidated into one appeal and we will do likewise. For some tax purposes, the form of the letter would have been sufficient. Cf., R. C.5703.25. But R. C. 5739.13 provides, in material part, that "Unless the vendor or consumer * * * files within thirty days after service * * * a petition in writing, verified under oath by said vendor, consumer, or his authorized agent, having knowledge of the facts, setting forth with particularity the items of said assessment objected to, together with the reasons for such objections, said assessment shall become conclusive and the amount thereof shall be due and payable * * *." (Emphasis added.) The sole question presented is whether or not the form of the letter is sufficient — specifically, whether or not it can be treated as "verified under oath" where the letter was not notarized and it does not appear that it was signed in the presence of any person authorized to take oaths, or anyone else. We hold that it is not. At the outset it is well to note that a certain amount of confusion inures from the common association of the substance of a verification with one particular form of verification, viz.: the bar has become accustomed to using the term *Page 279 to refer to a separate legal paper incorporating and satisfying the requirements of code pleading. In fact the Code of Civil Procedure used the term more narrowly. R. C. 2309.46, since subplanted by the Civil Rules, and repealed. The common law understood it only as a statement that one was prepared to prove the truth of one's own declarations, and the term "to verify" means only to separately check or affirm the validity of what has been declared. Blackstone, Commentaries on the Laws of England (1771), Book III, ch. 20, 312; Oxford English Dictionary, v. 10, pt. 2, 128. We agree that no particular form attaches to the term "oath" and that an affirmation of the truth of one's declaration would be quite sufficient in a proper case. R. C. 3.20; R. C. 3.21. But the verification is to be made "under oath," language which must be construed as adding something to the meaning of the word "verified" standing alone. An oath is "[a] solemn or formal appeal to God * * * in witness of the truth of a statement, * * * a statement * * * corroborated by such an appeal * * *;" an affirmation, "[a] formal and solemn declaration, having the same weight and invested with the same responsibilities as an oath, by persons who conscientiously decline to take an oath." Oxford English Dictionary, v. 7, pt. 1, 7, and v. 1, pt. 1, 157. In general usage the phrase "under oath" connotes something of the notion that the declarant is first sworn, or at least, that the oath is administered by someone. That an oath is to be administered has been generally assumed. Cf., Warwick v.State (1874), 25 Ohio St. 21, State v. Jackson (1880), 36 Ohio St. 281, and State v. Townley (1902), 67 Ohio St. 21. The General Assembly has indulged that assumption in creating the office of notary public, and in empowering those who hold that office to "administer oaths required or authorized by law." R. C. 147.07. Generally, an oath falsely sworn is subject to punishment for perjury only if "lawfully administered." R. C.2917.25. We recognize that any false or fraudulent statement made in any document authorized or required to be filed with the Department of Taxation is subject to criminal sanctions. R. C.5703.26; R. C. 5703.99. But whether it is always *Page 280 necessary that an oath be administered by someone legally empowered to take oaths we need not now decide. In our view, what sets apart an oath or affirmation is its solemn contemporaneous publication, before God, or in temporal affairs, before one's fellow man. Verification itself requires a formal declaration. Verification under oath bespeaks some further formal act or presence calculated to bring to bear upon the declarant's conscience the full meaning of what he does.Cf., Anno., 51 A. L. R. 840. "A wide scope, a large liberty, is * * * given to the form of the oath, but some form remains essential. Something must be present to distinguish between the oath and the bare assertion."O'Reilly v. People (1881), 86 N.Y. 154, 159; cf., CincinnatiFinance Co. v. First Discount Corp. (Hamilton Co., 1938),59 Ohio App. 131. It was at least necessary that Mr. Scheidler call upon someone to bear witness to the fact of his declaration — that he do some public act indicative of his solemn purpose. The burden of proof fell to the appellant. But for all the record shows, Mr. Scheidler signed the letter as he would have signed any routine business communication. We do not even know that he mailed it personally. Appellant waived a hearing before the Board of Tax Appeals. Thus it did not avail itself of the opportunity to present evidence as to just what was done. Denying any party an opportunity to be heard is painful, at best. We do so only reluctantly. Due process generally requires that notice and a hearing be afforded whenever substantial rights may be affected. But the General Assembly has the responsibility and the power to set reasonable rules of procedure and jurisdictional prerequisites for such hearings. The state has a proper interest in the speedy and final determination of tax assessment questions. A requirement that a petition be verified under oath is not an unreasonable one. The chronology of events here is similar to that inLeiphart Lincoln-Mercury, Inc., v. Bowers (Lucas Co., 1958),107 Ohio App. 259. In that case appellant sent a letter to the Tax Commissioner within but toward the end of the *Page 281 thirty day statutory period setting out facts which the office manager and bookkeeper thought would clear up the "discrepancy" reflected by the assessment, and including a check for that portion of the assessment which was not contested. Appellee duly forwarded a copy of its form for a petition for reassessment with a cover letter indicating that it should be filled out and returned before the statutory period had expired. As in the case at bar, appellant filled out the form and returned it only after the thirty days had run. In his opinion, Judge Smith pointed out quite correctly that: "The Department of Taxation is an administrative agency and is a tribunal of limited jurisdiction. Administrative officers and agencies have no common-law or inherent powers other than have been granted to or conferred on them by law. As a creature of statute, * * * [appellee] is without power to exercise any jurisdiction beyond that conferred by statute. The applicable sections of the Revised Code set out above are statutory, jurisdictional prerequisites as to the time for doing an act, and without compliance therewith the administrative agency is without power or authority. The jurisdiction of such officialsand tribunals must be invoked in the manner prescribed bystatute, and their proceedings must be in accordance with validstatutory requirements. They * * * can not dispense with theessential forms of procedure which condition their statutorypowers, or have been prescribed for the purpose of investingthem with power to act." Id., 265; emphasis added; citations omitted. The court held that jurisdiction had not been established. As the court also noted, the appellant had been given ample notice of its right to a hearing, but disregarded the warnings given. The same is true here. Appellee's notice of assessment contained the following, set out conspicuously in upper-case type: "If this assessment is not paid or contested in the mannerprescribed by law within 30 days after service thereof, judgment will be entered in the court of common pleas and the claim certified to the attorney general for collection." (Emphasis added.) *Page 282 At the bottom of the page, under the bold-face, upper-case heading, "Pertinent Information," there appears the following: "If the assessee wishes to present evidence that all or a portion of the tax or delinquency charge assessment is erroneous, he must request a hearing by filing a Petition for Reassessment. This petition must be received by the TaxCommissioner within 30 days after the date of service of thisform. * * *. A Petition for Reassessment will be furnished uponrequest. "* * *. "Portions of the Ohio Revised Code which are pertinent to this assessment are reprinted on the reverse side of this sheet for your information." (All emphasis added.) The form as prescribed by the Tax Commissioner provides for a sworn verification before a notary public. Appellee does not here contend that a Petition for Reassessment is only valid if made upon the form prescribed by him. Nor does such a petition actually have to be delivered into the hands of the Department of Taxation within the thirty day period, provided it is posted by registered or certified mail within that time. State, ex rel.Sherrick, v. Peck (1952), 158 Ohio St. 122. Necessarily the instructions included on the notice of assessment had to be brief. Where they are perhaps not a full statement of the law, they err on the side of safety to the taxpayer. Appellant was notified that it had a right to a hearing. It was warned that it should file a petition seeking a hearing and should use a form which would be provided by the Department of Taxation. Had it done so, it would surely not now be in its present difficulty. Ordinary prudence would have dicated that it either follow the form prescribed or seek the assistance of counsel. If it decided it would act as its own counsel, and frame its own form of petition, it surely undertook the risk that it might fail to satisfy the formal requirements imposed by the statute. It has nowhere to look to assign blame but to itself. Appellant's assignment of error must be, and is overruled. *Page 283 The judgment of the Board of Tax Appeals is affirmed. Decision affirmed. KRENZLER and DAY, JJ., concur.

2016-07-06 06:42:27.650162+00

Mahoney

These cases are before this court upon an appeal by the state of Ohio, pursuant to Crim. R. 12(J). *Page 2 The trial court ordered the suppression of evidence seized, pursuant to two search warrants which the court found defective, as not having been "sworn to" before a judge, pursuant to Crim R. 41(C). They were, in fact, "sworn to" before a notary public. The state has appealed, contending that such a defect is only ministerial and may be cured by presenting testimony of the affiant, and the judge who issued the warrant, to the effect that the affiant swore to the same facts contained in the affidavit, before the judge, as well as before the notary public, and prior to the issuance of the warrant. The defendants (appellees) argue that Crim. R. 41(C) prohibits the state from presenting any additional testimony, unless it was recorded, transcribed, and made a part of the affidavit, as provided by Crim. R. 41(C). The protection afforded by the Fourth Amendment to the United States Constitution requires that a search warrant be issued only by a detached and neutral judge, after a determination of probable cause. See: Coolidge v. New Hampshire, 403 U.S. 443;Shadwick v. Tampa, 407 U.S. 345; and Nicholas v. Cleveland,125 Ohio St. 474. The federal courts have long permitted the supplementing of affidavits for search warrants by oral testimony before a judge or magistrate. See: Aguilar v. Texas, 378 U.S. 108;Spinelli v. United States, 393 U.S. 410. Such testimony, in effect, bolstered the affidavit and many times required post-seizure hearings to ascertain if there was sufficient testimony to establish probable cause under Fed.R.Crim.P. 41 (C). Many times, such testimony before a judge or magistrate was unrecorded. Courts have, generally, favored the validity of searches pursuant to a warrant because a contrary position might tend to discourage police officers from submitting their evidence to a judicial officer before acting. See: United States v.Ventresca, 380 U.S. 102. Crim. R. 41(C) is similar to Fed.R.Crim.P. 41(C), except for two important additional sentences: "Before ruling on a request for a warrant, the judge may require the affiant to appear personally, and may examine *Page 3 under oath the affiant and any witnesses he may produce. Such testimony shall be admissible at a hearing on a motion to suppress if taken down by a court reporter or recording equipment, transcribed and made part of the affidavit." The purpose of these two sentences is to eliminate post-seizure hearings at which oral evidence is introduced to bolster the affidavits that probable cause existed for the issuance of a warrant. They require that supplementing testimony be reduced to writing and made a part of the affidavit by attachment. In the instant cases, we are not dealing simply with the omission of a judge to affix his signature to the jurat of an affidavit. If we were, we would not permit the search to fail for want of this ministerial act. However, here the state asks that witnesses be sworn to show what was "sworn to" before the judge. This is more than a ministerial function. We cannot duplicate what was actually said to the judge. To permit testimony now as to what was said could only have, as its purpose, the bolstering of the "probable cause" necessary to the issuance of the warrant. If all that remained to be done would be the transcription of the recorded testimony, we would call it a "ministerial function," and permit it to be done. But here, we are asked to permit the taking of testimony, which is clearly prohibited by the rule. No written document or statement was presented to the judge for his signature, as is required by the rule, nor was the affiant's testimony recorded. Accordingly, we affirm the judgment of the trial court in suppressing the evidence seized pursuant to the defective warrants. We therefore remand this matter to the trial court for further proceedings according to law. Judgments affirmed and causes remanded. VICTOR, P. J., and HUNSICKER, J., concur. HUNSICKER, J., retired, assigned to active duty under authority of Section 6(C), Article IV, Constitution. *Page 4

2016-07-06 06:42:30.331669+00

Farmer

This matter began with the filing of a petition by sixteen of seventeen property owners with the Licking County Board of Commissioners (hereinafter "the commissioners"). The petition requested that approximately 1,067.2 acres of agricultural land in Lima Township, Licking County, Ohio, be annexed to the city of Reynoldsburg. A majority of the property owners proposed to be annexed signed the petition, although three of the original signers asked that their names be removed. Petitioners named appellant, Robert E. Albright, as their agent. On August 6, 1992, the commissioners heard the petition for annexation. At the hearing, proponents and opponents of the annexation presented evidence under oath and by affidavit. Proponents outlined what they thought would be the service advantages and disadvantages available to them if the property were to be annexed. Opponents offered evidence that they believed the services provided by Lima Township were superior to those Reynoldsburg claimed it could provide. On August 6, 1992, the commissioners denied the annexation. On August 24, 1992, appellant appealed to the Court of Common Pleas of Licking County, Ohio. Appellees, the Lima Township Board of Trustees and the Southwest Licking Community Water and Sewer District, were permitted to intervene. On April 5, 1993, the trial court upheld the commissioners' decision and entered judgment in favor of appellees. Appellant timely filed a notice of appeal, and this matter is now before this court for consideration. The assignments of error are as follows: "First Assignment of Error "The court of common pleas erred in finding the appellants failed to present sufficient credible evidence that the territory sought to be annexed was not unreasonably large. "Second Assignment of Error "The court of common pleas erred in finding that the appellants failed to present sufficient credible evidence that the general good of the territory sought to be annexed would be served if the annexation petitioner were granted." *Page 182 In his two assignments of error, appellant claims that the trial court erred in finding that the commissioners had sufficient credible evidence to deny the petition for annexation because the territory was unreasonably large and the general good of the territory would not be served by annexation. R.C. 709.033 establishes the procedure after a hearing on annexation is held: "After the hearing on a petition to annex, the board of county commissioners shall enter an order upon its journal allowing the annexation if it finds that: "(A) The petition contains all matter required in section709.02 of the Revised Code. "(B) Notice has been published as required by section 709.031 of the Revised Code. "(C) The persons whose names are subscribed to the petition are owners of real estate located in the territory in the petition, and as of the time the petition was filed with the board of county commissioners the number of valid signatures on the petition constituted a majority of the owners of real estate in the territory proposed to be annexed. "(D) The municipal corporation to which the territory is proposed to be annexed has complied with division (B) of section709.031 of the Revised Code. "(E) The territory included in the annexation petition is not unreasonably large; the map or plat is accurate; and the general good of the territory sought to be annexed will be served if the annexation petition is granted." After the hearing in the case sub judice, the commissioners by resolution denied appellant's request for annexation. The August 6, 1992 resolution cited the following reasons: "1. Uncertainty of Reynoldsburg to supply the services. "2. Questions of validity of Council's service resolution. "3. Failing to take the roads. "4. Failing to have an agreement with the City of Columbus to supply water to the area. "5. They cannot service 2/3 of the site with water and sewer by agreement with Columbus." The standard of review by which the opinion and judgment of the court of common pleas is to be judged by is clearly set out in Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202,207, 12 O.O.3d 198, 202, 389 N.E.2d 1113, 1117: *Page 183 "Thus, it is quite evident that the court of common pleas must weigh the evidence in the record, and whatever additional evidence may be admitted pursuant to R.C. 2506.03, to determine whether there exists a preponderance of reliable, probative and substantial evidence to support the agency decision. We caution, however, to add that this does not mean that the court may blatantly substitute its judgment for that of the agency, especially in areas of administrative expertise. The key term is `preponderance.' If a preponderance of reliable, probative and substantial evidence exists, the court of common pleas must affirm the agency decision; if it does not exist, the court may reverse, vacate, modify or remand." With these legal parameters established, we will review the decision of the trial court in affirming the commissioners' denial of appellant's application. Our review is limited to determining whether, as a matter of law, the finding is supported by a preponderance of reliable, probative and substantial evidence. In re Petition for Annexation of 941Acres (Jan. 11, 1993), Delaware App. No. 92-CA-E-06020, unreported, 1993 WL 34521. There is no dispute that the jurisdictional requirements of R.C. 709.033 were met. By judgment entry dated April 5, 1993, the trial court found in particular the following: "Using this standard, this Court must review the record to determine if there exists a preponderance of evidence which supports the commissioners' decision. With regard to the issue of whether the `general good' of the annexation area will be served, there was competent, reliable, and probative evidence which indicated that the services provided by the township are better [than] or as good as the services promised by the City of Reynoldsburg, the City of Reynoldsburg did not clearly demonstrate an ability to provide water and sewer services, and the evidence was conflicting as to who could provide better fire and police protection. It was also presented that the residents would be subject to an income tax which they are not now required to pay. The opposing evidence presented by the appellants was minimal and, at times, conflicting. "With regard to the specific reasons given by the Licking County Commissioners, this Court finds that all fall within the category of common good. The evidence was conflicting, at best, as to whether Reynoldsburg could supply necessary services to the area in a manner that Lima Township and Licking County were presently serving the needs of the residents. The resolution submitted from the City of Reynoldsburg agreeing to provide services was questioned as to its legal effect because it had been passed without the required number of votes. The petition failed to include certain abutting roads which left the burden on the township to maintain them but which allowed the taxes to go to the annexing municipality. And, the City of Reynoldsburg failed to demonstrate *Page 184 that [it] had an agreement with the City of Columbus or could otherwise provide water and sewer to one-half to two-thirds of the area in question. All of these concerns were legitimate and the evidence was such that the commissioners were more than justified in raising those objections in the resolution rejecting the petition. "* * * "This Court finds that the appellants failed to present sufficient, credible evidence that the annexation petition is not unreasonably large or that the general good of the area would be served if the annexation were granted. In fact, the evidence was just the opposite. As a result, this appeal must fail." I Appellant claims that the commissioners' resolution does not include a finding that the area to be annexed is "not unreasonably large" pursuant to R.C. 709.033(E). Our review of the resolution supports that argument. There is in fact no finding by the commissioners of "unreasonably large," nor does the language of the resolution imply that the area is unreasonably large. However, the trial court found from its review of the evidence that it was "unreasonably large." This independent interpretation by the trial court of evidence outside the record does not comply with the dictates ofDudukovich. Assignment of error one is sustained. II Appellant claims that the resolution does not find that the "general good of the territory sought to be annexed will be served if the annexation petition is granted." R.C. 709.033(E). Appellant argues that the resolution does not specifically find "no general good" to the area in question. While appellant is right that the magic words "general good" are not set forth in the resolution, the commissioners clearly stated that the petition was denied and enumerated their reasons. The uncertainty of services to the area, the issue of roads and maintenance, the failure to assure water supply and that two-thirds of the area will not be serviced by water and sewer are clearly issues bearing on the general good. The trial court, in its review of the record, which is governed by the burden of the preponderance of all the evidence regardless who produced it, found "the services provided by the township are better [than] or as good as the services promised as the City of Reynoldsburg," and "the City of Reynoldsburg did not *Page 185 clearly demonstrate an ability to provide water and sewer services." Judgment Entry dated April 5, 1993, at 4-5. Clearly, the trial court followed the dictates ofDudukovich and the standards of In re Petition for Annexation of941 Acres. Our review is whether, as a matter of law, these findings are supported by reliable, probative and substantial evidence. At the August 6, 1992 annexation hearing, Mr. Brems stated that the roads are not included in the annexation petition; that the area that is available for city of Columbus water is limited to four hundred sixty-three acres, leaving six hundred one acres unserved; and that police services would be approximately nine miles away from the annexed area. Mr. Schrader further presented a letter from Columbus which stated only that the city would review the request for extended water services. Schrader further argued that the township would remain responsible for the roads in the annexed area. Mr. Samuel stated, as representative of appellee Southwest Licking Community Water and Sewer District, that even if Columbus would agree to extend water service, its agreement (expiring November 25, 1993) does not cover service outside the Blacklick drainage basin. We conclude that the rebuttal to these objections by appellant were vague and conflicting. Appellant admitted that six hundred one acres would not be serviced by any Columbus water agreement. Appellant admitted that the township roads were not included in the proposed annexed area. Appellant further admitted that there was not an agreement at the time for extended Columbus water service, and he further stated it was but a political problem. Based upon the record, we find that, as a matter of law, although the trial court erred in finding the proposed area to be unreasonably large, the trial court did not err in dismissing the appeal and finding that by the preponderance of the evidence, the "general good" of the area would not be served by annexation. Assignment of error two is overruled. The judgment of the Court of Common Pleas of Licking County, Ohio, is hereby affirmed. Judgment affirmed. SMART, P.J., and GWIN, J., concur. *Page 186

2016-07-06 06:42:27.428359+00

OPINION {¶ 1} On March 24, 2000, appellant, Steven Endicott, was operating his bicycle when he was struck by a negligent motorist. Appellant sustained serious injuries. {¶ 2} At the time of the accident, appellant was employed with Armstrong Air Conditioning, Inc., a wholly owned subsidiary of Lennox International, Inc., insured under a business auto policy issued by appellee, Kemper Insurance dba/aka American Motorist Insurance Company (hereinafter "AMICO"). {¶ 3} On April 2, 2001, appellant filed a complaint against AMICO seeking underinsured motorists benefits.1 Both parties filed motions for summary judgment. By judgment entry filed January 28, 2003, the trial court found in favor of AMICO. {¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 5} "The Trial Court Erred In Denying The Plaintiff Summary Judgment And Granting The Defendant Summary Judgment And Finding That Ohio Law Does Not Apply To Determine The Rights Of The Parties Under The Amico Policy." II {¶ 6} "The Trial Court Erred In Denying The Plaintiff Summary Judgment And Granting The Defendant Summary Judgment And Finding That The Amico Policy Did Not Provide Under-insured Motorist Coverage." III {¶ 7} "The Trial Court Erred In Denying The Plaintiff Summary Judgment And Granting The Defendant Summary Judgment And Finding That The Employer Was A Self-insured." IV {¶ 8} "The Trial Court Erred In Denying The Plaintiff Summary Judgment And Granting The Defendant Summary Judgment And Finding That The Employer Validly Rejected Uninsured/under-insured Motorist Coverage." V {¶ 9} "The Trial Court Erred In Denying The Plaintiff Summary Judgment And Granting The Defendant Summary Judgment And Failing To Find That The Insured And Amico Voluntarily Contracted To Provide Underinsured Motorist Coverage." VI {¶ 10} "The Trial Court Erred In Denying The Plaintiff Summary Judgment And Granting The Defendant Summary Judgment And Finding That The Amico Policy Did Not Satisfy The Requirements Of Rc 3937.14 As To Specifically Identifying The Vehicles Subject To Uninsured/underinsured Motorist Coverage." I {¶ 11} Appellant claims the trial court erred in determining Texas law controlled the subject policy. We agree. {¶ 12} In Ohayon v. Safeco Ins. Co. of Illinois,91 Ohio St.3d 474, 477, 2001-Ohio-100, the Supreme Court of Ohio held the following: {¶ 13} "To resolve the choice-of-law issue, the Gries [SportsEnt., Inc. v. Modell (1984), 15 Ohio St.3d 284] court examined the factors in Section 188 of the Restatement. Section 188 provides that, in the absence of an effective choice of law by the parties, their rights and duties under the contract are determined by the law of the state that, with respect to that issue, has `the most significant relationship to the transaction and the parties.' Restatement at 575, Section 188(1). To assist in making this determination, Section 188(2)(a) through (d) more specifically provides that courts should consider the place of contracting, the place of negotiation, the place of performance, the location of the subject matter, and the domicile, residence, nationality, place of incorporation, and place of business of the parties." {¶ 14} In its judgment entry filed January 28, 2003, the trial court specifically found under Ohayon that Ohio law did not control based upon the following undisputed facts: {¶ 15} "Applying the above factors to the present case, results in a determination that Texas law governs AMICO's policy. For instance: 1) the place of contracting was Texas; 2) the place of negotiation of the contract was Texas; 3) the place of performance was nearly every state in the Union, as Lennox was a national corporation; 4) the principal location of the subject matter of the contract was not Ohio, as Lennox owned in excess of 5,000 vehicles in the United States on March 24, 2000, which were insured under the BAP, approximately 25 of those autos were registered or principally garaged in Ohio while many more were registered or principally garaged in other individual states, including Texas; and 5) the principal place of business of the parties was Texas (Lennox) and Long Grove, Illinois (AMICO)." {¶ 16} Appellant argues R.C. 3937.18 applies to all vehicles registered and principally garaged in Ohio. In support, appellant cites the case of Henderson v. Lincoln National Specialty Insurance Co. (1994), 68 Ohio St.3d 303, wherein the Supreme Court of Ohio answered the following question in the affirmative: {¶ 17} "Does Ohio Revised Code § 3937.18 apply to an automobile liability or motor vehicle liability policy of insurance covering vehicles registered and principally garaged in Ohio, when said policy was not delivered, or issued for delivery in Ohio by the insurer?" {¶ 18} We conclude this decision mandates that uninsured/underinsured motorists coverage be offered on any vehicle garaged in Ohio, but does not answer the question as to whether the rationale of Scott-Pontzer v. Liberty Mutual Fire Insurance Co.,85 Ohio St.3d 660, 1999-Ohio-292, applies to these vehicles. {¶ 19} In Moore v. Kemper Insurance Co., Delaware App. No. 02CAE04018, 2002-Ohio-5930, this court addressed the choice of law issue employing the Ohayon standard. We affirmed the trial court's decision finding the Ohayon factors present in the case favored Ohio law. The trial court sub judice reviewed almost the same fact scenario and found the Ohayon factors did not favor Ohio law. {¶ 20} We find the approach of the trial court in Moore to be more consistent with the Ohayon reasoning and therefore find the trial court sub judice erred in determining Texas law applied. {¶ 21} Assignment of Error I is granted. II {¶ 22} Appellant claims the trial court erred in finding the policy did not provide underinsured motorists coverage. We disagree. {¶ 23} The primary question is whether appellant is an "insured" under the policy. Appellant argues he is pursuant to Scott-Pontzer v.Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660, 1999-Ohio-292. It is undisputed that at the time of the accident, appellant was an employee of Armstrong Air Conditioning, Inc. and was operating a bicycle. {¶ 24} We note uninsured/underinsured motorist coverage arises by operation of law as the purported rejection fails to meet the requirements of Linko v. Indemnity Ins. Co. of N. Am., 90 Ohio St.3d 445,2000-Ohio-92. Therefore, we look to the liability portion of the policy. See, Szekeres v. State Farm Fire and Cas. Co., Licking App. No. 02CA00004, 2002-Ohio-5989. The liability portion of the policy defines an "insured" as follows: {¶ 25} "The following are `insureds': {¶ 26} "a. You for any covered `auto.' {¶ 27} "b. Anyone else while using with your permission a covered `auto' you own, hire or borrow except: {¶ 28} "1) The owner or anyone else from whom you hire or borrow a covered `auto.' This exception does not apply if the covered `auto' is a `trailer' connected to a covered `auto' you own. {¶ 29} "2) Your `employee' if the covered `auto' is owned by that `employee' or a member of his or her household. {¶ 30} "3) Someone using a covered `auto' while he or she is working in a business of selling, servicing, repairing, parking or storing `autos' unless that business is yours. {¶ 31} "4) Anyone other than your `employees,' partners (if you are a limited liability company), or a lessee or borrower or any of their `employees,' while moving property to or from a covered `auto.'" See, Section II(A)(1) of the Business Auto Coverage Form, attached to Appellant's Brief as Exhibit A16. {¶ 32} Pursuant to Scott-Pontzer, the "you" is Steven Endicott. However, the "you" is followed by the words "for any covered `auto.'" InEgelton v. United States Fire Insurance Co., Stark App. No. 2002CA00157,2002-Ohio-6176, ¶ 21, this court held the following: {¶ 1} "Assuming arguendo the trial court reviewed the correct definition of `Who Is An Insured,' the specific inclusion of `covered auto' into the definition of `you' as an insured places the definition outside the holding of Scott-Pontzer. Although the `you' may very well be an employee of the named insured, the `you' is only an insured when in a `covered auto.'" {¶ 1} The Declarations page of the policy under "Item Two: Schedule of Coverages and Covered Autos" identifies the "covered autos" as symbol "1." Said symbol corresponds to "any `auto'" in Section I(A) of the Business Auto Coverage Form. Therefore, Stephen Endicott, as the "you," is an insured for "any auto." Because appellant was operating a bicycle, we conclude appellant is not an insured under the policy. {¶ 2} Assignment of Error II is denied. III, IV, V, VI {¶ 3} The remaining assignments of error are moot. {¶ 4} The judgment of the Court of Common Pleas of Richland County, Ohio is hereby affirmed in part and reversed in part. By Farmer, J. and Boggins, J. concur. Hoffman, P.J. concurs in part and dissents in part. 1 Complaint was originally filed in the Court of Common Pleas of Cuyahoga County, Ohio. The case was transferred to the Court of Common Pleas of Richland County, Ohio on May 29, 2001.

2016-07-06 06:42:27.145862+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] DECISION AND JUDGMENT ENTRY This matter is before the court sua sponte. It has come to this court's attention that page three, line 2 of this court's opinion of July 16, 1999 incorrectly states that appellant's terms of imprisonment were ordered to be served consecutively. Accordingly, this court hereby issues this notice of errata and orders that the word "concurrently" replace the word "consecutively" on page 3, line 2 of the opinion. It is so ordered. Richard W. Knepper, J.

2016-07-06 06:42:27.18029+00

OPINION On December 19, 1996, Mabel E. Davis, as trustee of the Mabel Davis Trust ("Trust"), filed a complaint for a declaratory judgment against James A. Davis, her husband, Tyreen M. Davis, her daughter, and Sherry Ruais, Kathy Papageorge and Luana Monseur, James Davis's daughters and Mabel Davis's step-daughters. Mabel Davis sought various declarations concerning the Trust and the rights thereunder. Various counterclaims and cross-claims were filed. On November 18, 1998, the trial court filed a notice which indicated the court had been notified that the action had been settled. The trial court ordered counsel to prepare an appropriate entry within twenty days. No such entry or settlement agreement was filed. On February 16, 1999, Mabel Davis, trustee, filed a request that the trial court schedule a status conference in order to determine the status of the settlement agreement and the procedure necessary to "complete" the case. On March 15, 1999, all the defendants except for Tyreen Davis filed a motion to enforce the settlement agreement and requested an oral hearing on the matter. Various memoranda contra were filed. On March 23, 1999, a notice of suggestion of death was filed, indicating that Mabel Davis had died on March 20, 1999.1 A hearing on the motion to enforce the settlement agreement was held on May 17, 1999. The parties were ordered to file briefs on the issues. On July 29, 1999, the trial court journalized a judgment entry which stated that the motion to enforce the settlement agreement was granted. Tyreen Davis, individually and in her capacity as the executor of the estate of Mabel Davis, and Lucille Sandy, successor trustee, filed notices of appeal to this court from the trial court's July 29, 1999 judgment entry. This court subsequently dismissed the appeals stating that the claims of the parties remained pending and had not been dismissed or otherwise disposed of by the trial court and, therefore, there was no final, appealable order. In the meantime, the defendants (except for Tyreen Davis) had filed with the trial court a motion for civil contempt and specific performance against Tyreen Davis, individually, Tyreen Davis, as executor of the estate of Mabel Davis, and Lucille Sandy, successor trustee. The basis for the motion was the failure of Tyreen Davis and Lucille Sandy to comply with the terms of the settlement agreement. On November 24, 1999, the trial court journalized an entry which stated: It has come to this Court's attention that the appeal in this matter filed by Defendant Tyreen Davis and Plaintiff Lucille Sandy, Successor of Mabel E. Davis Trust, was dismissed by the Court of Appeals for lack of a final appealable order. The Appeals Court found that "the claims of the parties remain pending and have not been dismissed or otherwise disposed of by the Court." However, by virtue of the parties having entered into a settlement, which the Court found to be valid and enforceable on July 27, 1999, there are no claims remaining for trial. Accordingly, the action is hereby DISMISSED from the Court's docket. This entry constitutes a final appealable order. Tyreen Davis, individually and as executor of the estate of Mabel Davis, and Lucille Sandy, successor trustee, filed notices of appeal from the November 24, 1999 entry. On April 4, 2000, this court dismissed the appeal of Tyreen Davis, in her capacity as executor of the estate of Mabel Davis and Lucille Sandy, successor trustee for failure to file a brief. The appeal of Tyreen Davis, in her individual capacity, remained pending. On April 14, 2000, notice was given that a hearing on the October 8, 1999 motion for contempt and specific performance would be held before a magistrate, but only as to Tyreen Davis, executor of the estate of Mabel Davis, and Lucille Sandy, successor trustee, apparently due to Tyreen Davis's pending appeal. On September 29, 2000, this court rendered a memorandum decision in Tyreen Davis's appeal wherein we stated, in essence, that the trial court did not err in granting the motion to enforce the settlement agreement. On November 27, 2000, the magistrate rendered a decision on the motion for civil contempt and specific performance. The magistrate recommended that the motion for specific performance be granted and that the court enforce those terms of the settlement agreement that could be enforced. On January 10, 2001, an entry was journalized wherein the trial court adopted the magistrate's decision. On April 6, 2001, the trial court gave notice that a status conference would be held on April 24, 2001 as it had been informed that no action had been taken to comply with the January 10, 2001 entry. A status conference was held on April 24, 2001 and on this same date, the trial court filed an order to compel Lucille Sandy to transfer the funds in her possession to the trustee referenced in the settlement agreement and Exhibit A attached thereto by May 1, 2001, and ordering Tyreen Davis to execute a deed conveying to James Davis a life estate in the real property at issue by May 1, 2001. Tyreen Davis, in her individual capacity, and Lucille Sandy, successor trustee of the Trust, have filed notices of appeal with this court.2 Tyreen Davis set forth the following errors: 1. THE TRIAL COURT ERRED AND LACKED JURISDICTION TO ISSUE THE ORDER OF APRIL 24, 2001 OR ANY OTHER AFTER THE NOVEMBER 24, 1999 DISMISSAL ENTRY. 2. THE TRIAL COURT DENIED DEFENDANT-APPELLANT, TYREEN M. DAVIS DUE PROCESS OF LAW AND ERRED DENYING DEFENDANT THE OPPORTUNITY TO AN EVIDENTIARY HEARING ON APRIL 24, 2001. Lucille Sandy, successor trustee, assigns the following error for our review: THE TRIAL COURT WAS WITHOUT JURISDICTION TO ENTER ITS ORDER OF APRIL 24, 2001. At oral argument before this court, it was indicated that a notice of dismissal of Tyreen Davis's appeal would be forthcoming due to the death of James A. Davis (Tyreen Davis had been obligated under the settlement agreement and court order to convey a life estate to James Davis). On December 10, 2001, Tyreen Davis's appeal in case No. 01AP-605 was dismissed. All that remains now is Lucille Sandy's appeal in case No. 01AP-606. It was also indicated at oral argument that Ms. Sandy's obligations under the settlement agreement, as ordered by the trial court, had been satisfied. Therefore, we find Ms. Sandy's appeal moot. There being no further issues before this court, the appeal in case No. 01AP-606 is dismissed as moot. Appeal dismissed. DESHLER and BOWMAN, JJ., concur. 1 On July 28, 1999, an agreed entry was filed indicating that Lucille Sandy, successor trustee of the Trust, was being substituted for Mabel Davis, trustee, and that Tyreen Davis, executor of the estate of Mabel Davis, was being substituted for Mabel Davis in her individual capacity. 2 The appeals were consolidated on June 4, 2001.

2016-07-06 06:42:27.217836+00

OPINION {¶ 1} James R. Eubank, plaintiff-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the trial court granted the motion for summary judgment filed by the Ohio Adult Parole Authority ("APA"), defendant-appellee. {¶ 2} According to appellant's complaint for declaratory judgment, on July 19, 1985, appellant was convicted of two counts of involuntary manslaughter, one count of aggravated arson, and one count of arson, stemming from his role in setting a home on fire, which resulted in the death of two people. He was sentenced to 10 to 25 years imprisonment on each count, for an aggregate indeterminate sentence of 30 to 75 years and parole eligibility after seven years. In August 1991, appellant had his first parole hearing before the APA's Ohio Parole Board ("parole board") and was continued four years. In 1995, appellant had another parole hearing and was continued another five years. In June 2000, appellant had another parole hearing and was continued ten years. {¶ 3} In November 2003, the parole board rescinded appellant's ten-year continuance and, subsequently, held a rehearing on January 14, 2004. After the 2004 hearing, the parole board placed appellant in Category 11 and assigned a Risk Score of 2 pursuant to the APA's parole guidelines, resulting in a guidelines range of 210 to 270 months. As of this 2004 hearing, appellant had served 228 months of his sentence. The sentence was continued an additional 77 months, after which appellant would have served a total of 305 months. The parole board based its continuation in part upon the multiple victims of appellant's crime and criminal conduct for which he was not convicted. {¶ 4} On March 3, 2004, appellant filed a complaint for declaratory judgment, claiming the APA had placed him in the wrong parole guideline range. On September 20, 2004, appellant filed a motion for summary judgment. In October 2004, the APA filed a response and cross-motion for summary judgment. The trial court granted the APA's motion for summary judgment on February 16, 2005, and issued its judgment on March 14, 2005. Appellant appeals the judgment of the trial court, asserting the following two assignments of error: I. THE TRIAL COURT ERRED TO THE [DETRIMENT] OF THE APPELLANT IN DENYING SUMMARY JUDGMENT IN DETERMINING APPELLANT WAS IN HIS PROPER GUIDELINE CATEGORY IN ACCORDANCE WITH THE DICTATES OF LAYNE [V. OHIO ADULT PAROLEAUTH., 97 OHIO ST.3D 456, 2002-OHIO-6719]. II. THE TRIAL COURT ERRED TO THE [DETRIMENT] OF THE APPELLANT IN DETERMINING THAT THE OAPA STILL RETAINS DISCRETION TO CONSIDER ANY CIRCUMSTANCES [RELATING] TO THE OFFENSE. {¶ 5} In his first assignment of error, appellant argues that the trial court erred in denying his summary judgment motion, granting the APA's summary judgment motion, and determining that the parole board placed him in the proper guideline category. When reviewing a motion for summary judgment, courts must proceed cautiously and award summary judgment only when appropriate. Franks v. The Lima News (1996),109 Ohio App. 3d 408. Civ.R. 56(C) provides that, before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the non-moving party, that conclusion is adverse to the non-moving party. State ex rel. Howard v.Ferreri (1994), 70 Ohio St. 3d 587, 589. When reviewing the judgment of the trial court, an appellate court reviews the case de novo. Franks, supra. {¶ 6} In determining whether a party is entitled to declaratory relief, it must be demonstrated that: (1) a real controversy exists between the parties; (2) the controversy is justiciable in character; and (3) the situation requires speedy relief to preserve the rights of the parties. Burger Brewing Co. v. Liquor Control Comm. (1973),34 Ohio St. 2d 93, 97; see, also, Buckeye Quality Care Centers, Inc. v.Fletcher (1988), 48 Ohio App. 3d 150, 154. In other words, it must be demonstrated that there is a controversy "between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Peltz v. South Euclid (1967),11 Ohio St. 2d 128, 131. {¶ 7} The crux of appellant's argument is that the Ohio Supreme Court's decision in Layne v. Ohio Adult Parole Auth., 97 Ohio St. 3d 456,2002-Ohio-6719, and this court's decision in Ankrom v. Hageman, Franklin App. No. 04AP-984, 2005-Ohio-1546, require that he be placed in a guidelines category that has a minimum range that does not exceed the length of time he served before becoming statutorily eligible for parole. Appellant points out he was statutorily eligible for parole after seven years, but the guidelines range for a Category 11 inmate with a Risk Score of 2 is 210 to 270 months (17.5 years to 22.5 years). Appellant asserts that, because he was statutorily eligible for parole after seven years, at his 2004 parole hearing, the parole board should have placed him in the category that corresponds with this eligibility, or Category 8, Risk Score 2, which has a guidelines range of 84 to 108 months (seven to nine years). We disagree. {¶ 8} Neither Layne nor Ankrom stands for the proposition appellant urges. In Layne, the Ohio Supreme Court found that "meaningful consideration" for parole is denied when an inmate's offense of conviction is disregarded and parole eligibility is judged largely, if not entirely, on an offense category score that does not correspond to the offense or offenses of conviction set forth in the plea agreement. Id. at ¶ 27. In the present case, there can be no dispute that the parole board placed appellant in the correct category consistent withLayne. At the 2004 hearing, the parole board placed appellant in Category 11, which corresponds with appellant's conviction for two counts of involuntary manslaughter, one count of aggravated arson, and one count of arson. Therefore, appellant's parole hearing, in this respect, did not violate Layne. {¶ 9} With regard to Ankrom, in that case, this court held that, in addition to the circumstances outlined in Layne, inmates are denied "meaningful consideration" for parole under two other circumstances. One circumstance under which we found an inmate is denied meaningful consideration is when the inmate is assigned an offense category under the guidelines that nominally corresponds to the inmate's offense of conviction but which is "elevated" based upon the parole board's independent determination that the inmate committed a distinct offense for which he was not convicted. Id. at ¶ 21. Here, appellant does not argue that he was placed in an "elevated" category based upon any offenses for which he was not convicted. Therefore, the parole board's actions were consistent with Ankrom in this respect. {¶ 10} The second circumstance under which we found an inmate is denied meaningful parole consideration is when the inmate is placed within the proper guidelines category pursuant to the offense of conviction, but the lowest possible range on the guidelines chart for that category is beyond the inmate's earliest statutory parole eligibility date. Id. at ¶ 15. In the present case, appellant's general circumstances seem to fit within the circumstances outlined in Ankrom. However, according to appellant's complaint, appellant's initial date of statutory parole eligibility passed 14 years ago in 1991. Had the current guideline system been in place at that time, and had this court decidedAnkrom at that time, appellant may have been entitled to some relief, via the proper procedural vehicle, consistent with the dictates set forth inAnkrom. However, at the time of appellant's last parole hearing in 2004, appellant had already served 228 months, which was within the guidelines range he was placed in, 210 to 270 months. As of that time, appellant was beyond the period for which the tenet discussed in Layne could provide him any relief. Unlike the circumstances described in Ankrom, appellant was afforded "meaningful consideration" at his 2004 hearing because he had a real possibility for parole. Because he had already surpassed the minimum guideline range, it could not be said that the parole board was denying him parole merely because he had not yet reached the minimum guideline range, which is the fact we found negated "meaningful consideration" in Ankrom. Having had meaningful consideration for parole and having been denied parole, appellant is simply outside the situation we discussed in Ankrom. {¶ 11} In addition, even if appellant's circumstances were within those we outlined in Ankrom, Ankrom does not require the relief appellant seeks. Appellant claims that, because he was statutorily eligible for parole after seven years, he should have been placed in the category that corresponds with this eligibility, or Category 8, Risk Score 2, which has a guidelines range of 84 to 108 months (seven to nine years). In Ankrom, we did not suggest what actions the APA should take to remedy the deficiencies caused by the current system, and there is no evidence before this court as to how the APA intends to put the findings inAnkrom into effect. For these reasons, we find there remain no genuine issues of material fact. Reasonable minds can come only to the conclusion that the parole board placed appellant in the correct guidelines category at the 2004 hearing. Therefore, appellant's first assignment of error is overruled. {¶ 12} Appellant argues in his second assignment of error that the trial court erred in finding that the APA could consider any circumstances in making his parole determination. Specifically, appellant maintains that the United States Supreme Court's decision in Blakely v.Washington (2004), 542 U.S. 296, 124 S. Ct. 2531, prohibits the parole board from prolonging an inmate's time between the minimum and maximum sentence based upon offenses for which the inmate was not convicted or to which the inmate did not plead guilty. In Blakely, the Supreme Court reiterated its holding in Apprendi v. New Jersey (2000), 530 U.S. 466,120 S. Ct. 2348, 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." Blakely, at 2536, citing Apprendi, at 490. "Statutory maximum," for purposes of Apprendi, was defined as the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. See Blakely at 2537. {¶ 13} Blakely does not apply to the present circumstances. Blakely related only to a trial court's initial sentencing of a defendant and not to parole determinations. Further, even if the concepts in Blakely applied to the present case, Blakely prohibited the use of facts not found by a jury to increase a penalty beyond the maximum sentence. In the present case, appellant's parole has not been extended beyond the maximum sentence imposed by the trial court. The parole board did use factors outside of the crimes for which appellant was convicted to make its parole determination; however, as we reiterated in Ankrom, when considering an inmate for parole, the APA retains its discretion to consider any circumstances relating to the offense or offenses of conviction, including crimes that did not result in conviction, as well as any other factors it deems relevant. Id. at ¶ 21, citing Layne, at ¶ 28. For these reasons, we find there are no genuine issues of material fact, and reasonable minds could only conclude the parole board's determination did not violate Blakely. Therefore, appellant's second assignment of error is overruled. {¶ 14} Accordingly, appellant's two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. Klatt and McGrath, JJ., concur.

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JUDGMENT ENTRY This appeal is considered on the accelerated calendar under App. R. 11.1(E) and Loc. R. 12, and this Judgment Entry shall not be considered an Opinion of the Court pursuant to S.Ct. R.Rep.Op. 3(A). In a single assignment of error, defendant-appellant Mario Williams appeals the trial court's judgment convicting him of two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), two counts of robbery in violation of R.C. 2911.02(A)(2), and accompanying firearm specifications. For the following reasons, we affirm. On March 17, 2003, at approximately 11:35 p.m., Stevonne Spivery and George Tubbs were talking in front of Spivery's home when several men in a white car pulled up beside them. Two men got out of the car and approached the couple. One of the men, described by the victims as the "tall and skinny one" with braids, pointed a gun at Tubbs, while the other man, later identified as Williams, pointed a gun at Spivery and told her to "get the fuck on the ground." In response, Spivery began to back away from Williams. Facing Williams, she almost walked across the street before she went to the ground face-down. At that point, Williams searched her jacket and took her cellular phone. Williams eventually left with his accomplice in Tubbs's car. At the scene, a police officer obtained descriptions of the suspects from Tubbs and Spivery. They described the suspect who approached Tubbs as a black male wearing a hat, about 6 feet tall and 170 pounds. The suspect who approached Spivery, later identified as Williams, was described as a shorter, heavier black man, approximately five feet eight-inches, and 200 pounds, wearing a dark jacket that had some color on it. Spivery testified that as she was walking backward facing Williams, she made eye contact with him and had a full view of his face. She testified that he was only five feet from her, and that there was enough light emanating from two street poles and the nearby church parking lot to see Williams's face. On March 18, 2003, police officers arrested Williams for the robberies after spotting him driving Tubbs's stolen car. He initially fled from the police, but they were able to apprehend him after a short car chase. Two days after the robberies, Spivery identified Williams from a photograph lineup presented to her. She testified that the detective showing her the pictures told her to look over the two composites and to determine whether she recognized anyone as the person who had robbed her and Tubbs. She identified Williams. A jury trial followed, and Williams was convicted and sentenced accordingly. Williams now appeals. In a single assignment of error, Williams maintains that the trial court erred in convicting him of the crimes charged following an unfair jury trial that violated his due-process rights. Under this assignment, Williams argues that he was denied the effective assistance of counsel in violation of the Sixth Amendment, and he also contests the sufficiency and weight of the evidence underlying his convictions. With respect to Williams's claim of ineffective assistance of counsel, he asserts errors in the following respects: defense counsel's failure to move to suppress evidence of an eyewitness identification; defense counsel's admission to the jury that this was his first jury trial; defense counsel's failure to object to the admission of photographs of the defendant containing height bars in the background, as well as other prejudicial evidence. In order to establish ineffective assistance of counsel, Williams must show that his trial counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by counsel's performance.1 We note that the burden is on Williams to prove the ineffectiveness of his counsel in light of the Ohio Supreme Court's holding that a properly licensed attorney is presumed to be competent.2 Williams claims that defense counsel should have moved to suppress Spivery's eyewitness identification because it was tainted by improper police procedure. Williams maintains that it was improper for Detective Chris Bihl to tell Spivery that the police might have had a suspect involved in the robbery before she viewed the two photo arrays. But after reviewing the record, we hold that even if defense counsel should have filed a motion to suppress the identification testimony, it did not constitute ineffective assistance because Williams was not prejudiced by this failure. To warrant suppression of identification testimony, the accused bears the burden of showing that the identification procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" and that the identification itself was unreliable under the totality of the circumstances.3 Thus, even if a pretrial identification is impermissibly suggestive, an in-court identification is permissible where the prosecution establishes by clear and convincing evidence that the witness had a reliable independent source based on prior independent observations made at the scene of the crime.4 Here, Spivery's identification was reliable. She had at least one minute to view Williams's face in a lighted area at a close range. Her description of Williams's actual height, weight, coloring and hair was a fair approximation, and she identified him immediately from a photo array within two days after the robbery. Further, on the day he was arrested, Williams was wearing the coat that Spivery had described. Next, Williams says that it was improper for defense counsel to inform the jury that this was his first jury trial. We hold that the conduct did not fall below a reasonable standard of representation. It can simply be viewed as a trial tactic to persuade the jury to have some leniency toward the defendant. Williams also argues that his defense counsel failed to object to the admission of the photo arrays that contained height markers indicating some type of previous criminal activity. Even if defense counsel should have objected, we hold that Williams suffered no prejudice from this failure. Williams testified at trial that he had previous criminal convictions. Further, it is apparent from the record that the photograph of Williams was taken the day of his arrest for the subject robberies, and that was understood by the jury. Thus, the photos did not necessarily imply that Williams had a criminal history.5 Finally, Williams maintains that defense counsel's failure to object to the introduction of hearsay testimony and the leading of witnesses by the state, as well as defense counsel's questioning of Williams about his criminal history, was prejudicial in light of the fact that the state's two key witnesses, Spivery and Tubbs, contradicted each other's testimony. Williams argues that Spivery made an in-court identification of him, but that Tubbs testified that Williams was not one of the perpetrators. But Williams misconstrues Tubbs's testimony. Tubbs did not testify that Williams was not one of the robbers, but merely indicated that he was unable to be certain that Williams was one of the robbers. Thus, Tubbs did not say that Williams was not the robber. In fact, it is reasonable that Tubbs could not identify Williams in court as one of the robbers because during the crime Williams was facing Spivery and not Tubbs. Tubbs was preoccupied with the other robber, who had stolen his car and pistol-whipped him. Because we are not persuaded that Williams was prejudiced by any of defense counsel's actions or lack thereof, we hold that Williams has not met his burden of proving that there was a reasonable probability that the result of his trial would have been different but for the actions of his counsel. Under this assignment of error, Williams also contests the sufficiency and the weight of the evidence underlying his convictions. To reverse a conviction for insufficient evidence, we must be persuaded, after viewing all the evidence in the light most favorable to the prosecution, that no rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.6 After reviewing the record, we hold that there was sufficient evidence to convict Williams of the crimes charged. The state presented evidence that Williams had displayed a gun while stealing Spivery's cellular phone and Tubbs's car.7 Both Tubbs and Spivery testified that both robbers had a firearm in their possession, and Spivery identified Williams as the man who had robbed her and Tubbs. Williams was apprehended the next day driving Tubbs's car and wearing the jacket that Spivery had described to the police. We also hold that Williams's convictions were not against the weight of the evidence, as the jury did not lose its way in resolving any conflicts in the evidence so as to create a manifest miscarriage of justice. Accordingly, the single assignment of error is overruled and the judgment of the trial court is affirmed. Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App. R. 27. Costs shall be taxed under App. R. 24. Winkler, P.J, Hildebrandt and Gorman, JJ. 1 See Strickland v. Washington (1984), 466 U.S. 668,104 S. Ct. 2052; State v. Bradley (1989), 49 Ohio St. 3d 136,538 N.E.2d 373. 2 See State v. Smith (1985), 17 Ohio St. 3d 98, 100,477 N.E.2d 1128. 3 Neil v. Biggers (1972), 409 U.S. 188, 199, 93 S. Ct. 375;State v. Lott (1990), 51 Ohio St. 3d 160, 555 N.E.2d 293. 4 See State v. Hurt (1972), 30 Ohio St. 2d 86,282 N.E.2d 578; State v. Sherls, 2nd Dist. No. 18599, 2002-Ohio-939. 5 See State v. Carney (1990), 67 Ohio App. 3d 736,588 N.E.2d 872. 6 State v. Thompkins, 78 Ohio St. 3d 380, 386, 1997-Ohio-52,678 N.E.2d 541. 7 R.C. 2911.01(A)(1) provides that "no person, in attempting or committing a theft offense * * * shall do any of the following: (1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it."

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OPINION Appellant, Thomas L. Mitchell, appeals from a judgment entered by the Trumbull County Court of Common Pleas on June 27, 2000. Appellant was found guilty by a jury of failure to comply with order or signal of a police officer in violation of R.C. 2921.331(B), a third degree felony as a result of the findings pursuant to subsection (C)(5)(a)(ii). Appellant was sentenced to serve four years in the Lorain County Correctional Institution. The following facts are undisputed. On March 23, 2000, around 3:20 a.m., Donald Walker, a trooper with the State Highway Patrol in Trumbull County, observed a red, four door, 1988 Pontiac Bonneville proceeding eastbound on State Route 422 in Weathersfield Township, Ohio. After noticing the vehicle go left of center twice, Trooper Walker activated his lights and siren to stop it. The driver ignored Trooper Walker's signals, and led Trooper Walker on a high-speed chase. At times the chase reached speeds nearing ninety m.p.h. in a twenty-five m.p.h. zone. The vehicle committed several other traffic violations during the chase including running red lights, going left of center, and forcing vehicles to the left of the roadway. The chase lasted about six miles and went from Weathersfield Township, through Girard, Ohio, and into Youngstown, Ohio. Once the chase entered Youngstown, a Youngstown patrol car joined the pursuit. The chase ended on Delaware Street in Youngstown, when the suspect jumped from the vehicle, leaving it in gear. The Youngstown officer chased the vehicle to stop it. Meanwhile, Trooper Walker followed the suspect in his patrol car. The suspect ran between two houses, and Trooper Walker got out of his car and chased him on foot. The suspect jumped over a fence and entered backyards, at which time Trooper Walker heard dogs barking and stopped the chase. Trooper Walker searched the car and discovered that it belonged to Byrant Battles. Trooper Walker then returned to his post. About five minutes later, Trooper Walker received a call from Mr. Battles. Mr. Battles came down to the post and spoke with Trooper Walker. Trooper Walker stated that Mr. Battles did not look like the suspect. Mr. Battles informed Trooper Walker that he worked at MCI Worldcom in Niles, Ohio. Mr. Battles has not been seen since, and attempts to serve him with a subpoena to testify in this case were unsuccessful. The next evening Trooper Walker went with Sgt. Sam Esposito and a Niles police officer to MCI Worldcom in Niles.1 Trooper Walker asked the security guard to get appellant. Trooper Walker then issued the traffic citations from the previous night to appellant. The only contested issue in this case is whether or not the appellant was the driver of the vehicle. The state contends that Trooper Walker got two close looks at the suspect's face when the suspect was fleeing on foot. One of these looks was from the patrol car, and the other was during the foot pursuit from about ten feet when the suspect turned and looked behind. Trooper Walker positively identified the appellant as the suspect when he issued the citations. Trooper Walker again identified appellant as the suspect from the witness stand at appellant's trial. The state further contends that the suspect was wearing distinctive rose-colored, gold-rimmed glasses on the night in question, and appellant is known to wear these glasses, although he was not wearing them the next day at work or during any of the proceedings in this case. Appellant contends that Trooper Walker's descriptions of the suspect's height vary from 5'8" to 6'0" to 6'3". Appellant also asserts that the gold-rimmed glasses are not unique. Appellant contends he was at home during the events, and his mother testified as an alibi witness stating that she had to unlock the door for appellant about 2:00 a.m. on the night in question. Appellant's only assignment of error is: "The appellant's conviction is against the manifest weight of the evidence." 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: "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." (Citations omitted). State v. Tompkins (1997), 78 Ohio St. 3d 380, 387 Here, we do not see that the jury lost its way, nor do we consider this the exceptional case in which the evidence weighs heavily against a conviction. Trooper Walker testified at trial as to the description of the suspect, and that he identified appellant as the suspect the very next day. He again identified appellant as the suspect at trial. Further evidence in support of appellant being the suspect was provided by Robert O'Mally,2 who testified that the appellant wore the gold-rimmed glasses regularly. The state also showed the jury videotape of the police chase. Appellant also produced evidence at trial. Appellant's mother testified that he was home on the night in question because she had to let him in. Appellant also showed that Bryant Battles essentially disappeared, as service of a subpoena was ineffective. Another contention of appellant that was raised during trial is that Trooper Walker's descriptions of the suspect were inconsistent, and his identifications of appellant were inaccurate. Both sides presented evidence favorable to their case. It is well settled that "[i]n either a criminal or civil case the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio St.2d 230, 231. It was up to the jury to determine the weight of the evidence at trial. It was also up to the jury to determine how credible both Trooper Walker and appellant's mother were. These determinations made by the jury, about which witnesses to believe or not to believe, will only be disturbed if we find that the jury clearly lost its way or created a manifest miscarriage of justice. That is not the case here. This is not the exceptional case that would justify this court reversing the judgment of the trial court. Here the evidence did not weigh heavily against a conviction. There was adequate evidence provided by the prosecution for the jury to convict appellant. Further, the evidence in defense was not overwhelming enough to show us that the jury clearly lost its way in convicting appellant. We hold that appellant's assignment of error is without merit. Judgment affirmed. ___________________________________________ PRESIDING JUDGE WILLIAM M. O'NEILL FORD, J., CHRISTLEY, J. concur. 1 The transcript of the trial does not indicate how the officers learned that appellant worked at MCI Worldcom. 2 Mr. O'Mally was appellant's probation officer. This fact was withheld from the jury due to its prejudicial nature.

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DECISION AND JUDGMENT ENTRY On September 30, 1995, appellants Daniel Perry and Denise Batdorf were riding on a motorcycle when they were struck from behind by motorist, appellee Sharon Whitaker. Specifically, Perry and his passenger Batdorf were on the motorcycle stopped at a red light when Whitaker's vehicle struck them from behind at an approximate speed of ten m.p.h. Perry was able to keep his motorcycle from falling to the ground on impact. Neither Perry nor Batdorf sought medical treatment immediately following the accident. On October 29, 1998, appellants filed a personal injury complaint against appellee.1 Appellants alleged that as a result of the accident they suffered injury and pain to their necks and backs. Following a jury trial on the issue of damages only, the jurors signed a general verdict form which stated: "We, the jury, being duly impaneled, find in favor of the plaintiffs, Daniel Perry and Denise [Batford], and against the defendant, Sharon Whitaker. We further award damages as follows: Daniel Perry Denise [Batford] 1. medical expenses past $5,425.90 $7,000 future $0 $0 2. Lost income $0 $0 3. Pain and suffering $0 $0 4. Loss of normal $0 $0 enjoyment of life and ability to perform usual activities Total of lines 1 through 4 $5,425.90 $7,000" On May 26, 2000, appellant's filed a motion for a new trial alleging that the jury awarded inadequate damages. The trial court denied the motion and appellants now appeal that judgment setting forth the following assignments of error: "I. THE COURT ERRED IN DENYING PLAINTIFFS' MOTION FOR NEW TRIAL. "II. THE COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR PROTECTIVE ORDER, DENYING PLAINTIFFS THE OPPORTUNITY TO DEPOSE DR. SANDERS. "III. THE COURT ERRED IN DENYING PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF DR. SANDER WHERE THE DOCTOR DID NOT EXAMINE PERRY, GAVE NO PRIOR NOTICE OF HIS TESTIMONY REGARDING PERRY, AND PROVIDED NO REPORT REGARDING HIS EXAMINATION OF PERRY'S RECORDS." In their first assignment of error, appellants contend the court erred in denying their motion for a new trial. "Absent a clear determination that the trial court abused its discretion in not granting a new trial pursuant to Civ.R. 59(A)(6), this court cannot disturb the trial court's determination." Youseff v. Parr, Inc. (1990), 69 Ohio App.3d 679. The Supreme Court of Ohio has stated: "`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.'" Statev. Lowe (1994), 69 Ohio St.3d 527, 532 quoting State v. Adams (1980),62 Ohio St.2d 151, 157. Dr. Jonathan Rohrs, appellant Batdorf's family physician, testified in a deposition that he treated Batdorf for back and neck injuries she sustained in the September 1995 accident. Dr. Rohrs prescribed anti-inflammatory medication and muscle relaxants for her pain and referred her to a neurosurgeon. When asked if he thought Batdorf's injuries were permanent, Dr. Rohrs responded: "Probably. She has ongoing pain from what I understand, * * * this all basically started from the motor vehicle accident." Neurosurgeon Dr. Thomas O'Hara testified in a deposition that he first saw Batdorf in December 1995. Dr. O'Hara testified that in his opinion, Batdorf suffered "whiplash-type injuries" to her neck and back as a result of the September 1995 accident. He further testified "[T]he muscle injuries are most likely going to have some degree of permanence to them. The reason I would have that opinion is because they have continued on for such a long period of time." Neurologist Dr. James Sanders testified that he conducted an independent medical examination of Batdorf at the request of appellee. As a neurologist, Dr. Sanders testified he treats disorders of the central nervous system. Dr. Sanders first saw Batdorf in November 1997. In preparation for his exam, Dr. Sanders reviewed her emergency room record, her electrodiagnostic study report and her radiology reports. He conducted a physical exam and a detailed neurological exam. Dr. Sanders testified that in his opinion, Batdorf's suffered a soft tissue strain injury to her neck and lower back as a result of the accident. Such injuries, Dr. Sanders opined, are "virtually all healed within four to six weeks." Dr. Sanders further testified that based on his review of Batdorf's MRI films, he believes that she suffers from a degenerative condition in her spine which antedated the September 1995 accident. At trial, Batdorf testified that she continues to suffer back and neck pain as a result of the accident. Dr. Daniel J. Sullivan testified in a deposition that he is an orthopedic surgeon with fellowship training in the spine. As part of his fellowship at the State University of New York in Buffalo, he was trained to interpret MRI films. Dr. Sullivan testified that he treated appellant Perry in November 1995 for back pain. Based on his own examination of Perry as well as his interpretation of Perry's MRI films, Dr. Sullivan concluded that Perry suffered from a disk herniation and compression fracture as a result of the September 1995 accident. In the course of his treatment, Dr. Sullivan prescribed a back brace for Perry. Dr. Sullivan testified that the purpose of the brace was to immobilize part of his spine so his fracture could heal and the inflammation could be reduced. Dr. Sullivan testified that patients who suffer from the same kind of injury as Perry's tend to suffer from an "aching-type of arthritic pain" for the rest of their lives unless they choose to have surgery. Some patients continue to suffer pain even after surgery. Dr. Sanders also reviewed Perry's MRI films at the request of appellee. Dr. Sanders testified that in his opinion, Perry did not have a herniated disk. Perry testified at trial that he continues to experience intermittent back pain. Civ.R. 59(A)(4) provides that a trial court may grant a new trial on the ground of an excessive or an inadequate award of damages which appears to have been given under the influence of passion or prejudice. This rule codifies case law in Ohio which holds that a jury verdict may be set aside only where the award of damages is so excessive or so inadequate that it appears that the award was made under the influence of passion or prejudice. Toledo, Columbus Ohio River Rd. Co. v. Miller (1923), 108 Ohio St. 388 . See, also, Hancock v. Norfolk WesternRailway Co. (1987), 39 Ohio App.3d 77, 85; Litchfield v. Morris (1985),25 Ohio App.3d 42, 44; Carter v. Simpson (1984), 16 Ohio App.3d 420,423; Hermann v. Peters Cafeteria, Inc. (1937), 24 Ohio Law Abs. 290, 291. Case law also permits the setting aside of a jury verdict where the amount awarded is so manifestly against the weight of the evidence as to show a misconception by the jury of its duties. Id. Under this latter standard, a new trial is warranted on the ground of the inadequacy of damages where it appears from the record that the jury failed to consider some of the elements of the damages. Toledo Railways Light Co. v.Mason (1910), 81 Ohio St. 463, paragraph one of the syllabus. See, also,Baum v. Augenstein (1983), 10 Ohio App.3d 106, 108. In this case, appellants were awarded a combined total of $12,425.90 for their past medical expenses, the total amount of their medical bills. This amount is not so grossly inadequate as to imply, in and of itself, a finding that the jury was influenced by passion or prejudice. See Larrissey v. Norwalk Truck Lines, Inc. (1951), 155 Ohio St. 207,222. See, also, Pearson v. Cleveland Acceptance Corp. (1969),17 Ohio App.2d 239, 245. The question remains, however, as to whether the jury's verdict is supported by the evidence offered at trial. Specifically, appellants contend that the jury, in awarding damage awards for their medical bills, ignored the fact that appellants sought medical treatment because they suffered pain. A personal injury award of damages generally cannot be mathematically computed, but, rather, is a composite of the opinion of the jury. Benderv. Berbec (Aug. 24, 1990), Lucas App. No. L-89-228, unreported, citingHermann v. Peters Cafeteria, Inc. (1937), 24 Ohio Law Abs. 290, 291. Thus, there is no specific yardstick for determining the amount of damages to be awarded for pain and suffering. Carter, supra, at 423. Due to this fact, a reviewing court is usually reluctant to substitute its judgment for that of the trier-of-fact. Hancock, supra, at 85;Litchfield, supra, at 44. Nevertheless, where pain and consequent suffering has, to some extent, been indicated through medical reports, the testimony of the plaintiff, and/or the testimony of expert medical witnesses, appellate courts have found jury awards inadequate. ToledoRailways Light Co., supra. In Vanbuskirk v. Pendleton (Jan. 18, 1980), Crawford App. No. 3-79-14, unreported, a plaintiff appealed a verdict awarding him damages for medical expenses incurred as a result of injuries he sustained in a car accident. The plaintiff argued that the damages award was inadequate because it only compensated him for the exact amount of his medical expenses and not for any pain and suffering. In reversing the trial-court's judgment, the appellate court agreed with the plaintiff stating: "While the jury could have by virtue of issues of credibility and conflicting testimony eliminated many other bases for damage it is impossible to eliminate the necessity of a finding of some even though minimal amount of pain as a predicate for this medical treatment." Other Ohio appellate courts have followed the reasoning of the Vanbuskirk court in holding that damage awards representing undisputed special damages, without an award for pain and suffering, are against the manifest weight of the evidence. See, Miller v. Irvin (1988), 49 Ohio App.3d 96; Popsonv. Pennington (Aug. 14, 2000), Clinton App. No. CA99-05-013, unreported;Vieira v. Addison (Aug. 27, 1999), Lake App. No. 98-L-054, unreported;Krauss v. Daniels (June 30, 1999), Wood App. No. WD-98-076, unreported;Boldt v. Kramer (May 14, 1999), Hamilton App. No. C-980235, unreported;Farkas v. Detar (Mar. 25, 1998), Summit App. No. 18271, unreported; andCrosby v. Lenart (Apr. 19, 1995), Wayne App. No. 2896, unreported. In the present case, appellants testified they experienced pain as a result of the accident. Appellants also offered expert medical testimony of physicians who explained that they treated appellants for pain sustained in the September 1995 accident. The physicians further testified that appellants will likely experience ongoing pain because of their injuries. It follows that the jury failed to consider an element of the damages, i.e., pain and suffering, thereby rendering a judgment that is not supported by the weight of the evidence.2 While this court will not speculate as to what amount is due appellants for their pain and suffering, they should have received some compensation for that aspect of their claim for damages. Accordingly, the trial court erred in not granting appellants' motion for a new trial. Appellant's first assignment of error is found well-taken. In their second assignment of error, appellants contend the trial court erred in granting appellee's motion to quash appellants' subpoena of Dr. Sanders. Appellants filed a "notice of deposition" on February 18, 2000 stating that appellants would take Dr. Sanders' deposition on March 15, 2000. The notice further stated "[I]n lieu of Dr. Sanders' appearance, he may forward to plaintiffs' counsel on or before said date, the following documents: Any and all records and/or reports that Dr. Sanders has issued to or on behalf of Allstate Insurance Company or Doyle, Lewis Warner, in the past ten (10) years when asked to evaluate a litigant in a personal injury action." In a later "amended notice of deposition" filed by appellants', they added: "[I]n lieu of Dr. Sanders' appearance, he may forward to plaintiffs' counsel on or before said date, the following documents: "* * * "(2) Any and all billing records for independent medical examinations, insurance medical examinations and/or defense medical examinations Dr. Sanders has performed for the last five (5) years. "(3) Any and all bills for services rendered to Allstate Insurance Company for the last five (5) years. "(4) Any and all bills for services rendered to Doyle, Lewis and Warner for the past five (5) years." Appellee asked the court to quash the subpoena alleging that the information sought was "undiscoverable" and/or "overly broad, unduly burdensome." Under Civ.R. 45(C)(3), a court may quash a subpoena if it subjects a party to an undue burden. Furthermore, the rule provides that when a party moves the court to quash a subpoena, the court shall do so unless the party requesting the subpoena shows a substantial need for the material that cannot be met otherwise without undue hardship and assures that the person under subpoena will be reasonably compensated. Appellants sought documentation which they believed would show Dr. Sanders to be unfairly biased towards appellee and appellee's counsel. However, appellants failed to show that their need for the material could not be met through other less burdensome means. Moreover, appellants' counsel cross-examined Dr. Sanders at his deposition regarding his payment arrangement with appellee's counsel. Accordingly, the trial court did not abuse its discretion in quashing appellants' subpoena. Appellants' second assignment is found not well-taken. In their third assignment of error, appellants contend that the trial court erred in admitting the testimony of Dr. Sanders. The admission or exclusion of evidence rests in the trial court's sound discretion. State v. Sage (1987), 31 Ohio St.3d 173, 180. 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. Appellants contend that Dr. Sanders was not qualified to render an opinion on the condition of appellant Perry. Specifically, Dr. Sanders was not qualified to testify as an expert on bone fractures. Dr. Sanders testified that as a practicing neurologist since 1980, he specializes in disorders of the brain and spinal cord. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the testimony of Dr. Sanders, and appellants' third assignment of error if found not well-taken. The judgment of the Wood County Court of Common Pleas is reversed in part and affirmed in part. This cause is remanded to said court for a new trial on the issue of appellants' damages only. Cost assessed to appellee. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. ________________________ Melvin L. Resnick, JUDGE James R. Sherck, J. and Richard W. Knepper, J. CONCUR. 1 Appellants originally filed suit against appellee on August 23, 1996. The case was dismissed without prejudice with the right to refile. 2 The dispositive issue of this assignment of error is whether or not the jury's verdict was supported by the weight of the evidence. It is not, as appellee urges, the issue of whether or not the jury returned an inconsistent verdict.

2016-07-06 06:42:27.85024+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of conviction on a jury verdict for felony domestic violence issued by the Wood County Court of Common Pleas. For the reasons that follow, we affirm appellant's conviction and sentence. {¶ 2} Appellant, Larry D. Parson, and his wife, Kim, lived with appellant's mother in her North Baltimore, Ohio home. Accordingly to Kim Parson, on July 7, 2004, appellant accosted her in a laundromat near their home, demanding that she turn over money to him. Kim Parson testified that when she refused, appellant ordered her not to return home. Notwithstanding appellant's order, Kim Parson returned home, put the couple's child to bed and herself went to sleep. {¶ 3} According to Kim Parsons, near midnight appellant returned home. He had been drinking. Appellant awakened his wife and ordered her to configure the videotape player to show a pornographic tape. Kim Parsons testified that, after the tape began to play, appellant shoved her to the bed and began hitting her in the head. He then grabbed her hair with one hand, while punching her in the face with the other. He also bit her arm and repeatedly slammed her head into the wall. When appellant's mother came into the bedroom, Kim escaped, running across the street to a neighbor's house. The neighbor called North Baltimore police who responded within minutes. {¶ 4} Police found Kim Parsons bruised and disheveled. When police questioned appellant, he told them that Kim had "lost it and began to bang her head and face against the wall * * *." {¶ 5} Police arrested appellant. On July 21, 2004, a Wood County Grand Jury indicted him on a single count of domestic violence, a violation of R.C. 2919.25. The indictment specified two prior domestic violence convictions, making the offense a third degree felony, pursuant to R.C.2919.25(D)(4). Appellant pled not guilty and the matter proceeded to a trial before a jury. {¶ 6} At trial, the principal witness against appellant was Kim Parsons. Appellant's wife testified to the events of July 7. Police and neighbors also testified to the surrounding events. Appellant presented no defense. Following closing arguments and instructions, the jury retired, returning 90 minutes later with a guilty verdict. The trial court entered judgment on the verdict and sentenced appellant to a five year term of incarceration, the maximum available for a third degree felony. {¶ 7} From this judgment of conviction and sentence, appellant now brings this appeal. Appellant sets forth the following five assignments of error. {¶ 8} "I. The trial court erred in denying defendant-appellant's motion to continue trial. {¶ 9} "II. The defendant-appellant's conviction was against the manifest weight of the evidence. {¶ 10} "III. The trial court erred in imposing the maximum five year prison term upon the defendant-appellant in that it did not comply with the requirements of the Ohio Revised Code Section 2929.11 et seq. {¶ 11} "IV. The trial court erred when it failed to properly advise defendant-appellant of the reasons for the imposition of the maximum sentence of five years. {¶ 12} "V. The counsel's representation of defendant-appellant was so deficient as to deny him effective assistance as guaranteed by the constitutions of the United States and Ohio." I. Denial of Continuance. {¶ 13} Trial for this matter was set for September 28, 2004. On September 23, 2004, appellant, through counsel, moved to continue the trial date to an unspecified future time. As justification for this continuance, the motion stated: "In support, counsel has been ordered by the defendant to locate several witnesses material to the above cause. [A]dditional time [is required] to locate the above witnesses * * *." The state responded with a memorandum in opposition, noting that the trial date had been set since August 5, providing ample time to obtain any witnesses, considering that the only direct witnesses to the offense except appellant, were his wife and his mother. The trial court denied the motion. {¶ 14} On appeal, appellant asserts, the trial court abused its discretion in denying his motion for continuance. {¶ 15} The decision whether or not to grant a continuance resides in the sound discretion of the court. State v. Jordon, 101 Ohio St.3d 216,224, 2004-Ohio-783, at ¶ 45, and will not be disturbed absent an abuse of that discretion. State v. Jones, 91 Ohio St.3d 335, 342, 2001-Ohio-57. An abuse of discretion is more than a mistake of law or an error of judgment, the term connotes that the court's attitude is arbitrary and unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151,157. Whether a denial of a continuance is so arbitrary as to violate due process is dependant on the specific circumstances presented, State v.Unger (1981), 67 Ohio St.2d 65, 67, "* * * particularly in the reasons presented to the trial judge at the time the request is denied." Id., quoting Unger v. Sarafite (1964), 376 U.S. 575, 589. Of specific interest is whether the motion states a legitimate purpose or if it is "dilatory, purposeful or contrived." Id. {¶ 16} In this matter, trial was set for Tuesday, September 28, 2004. On Thursday, September 23, 2004, appellant interposed motions to continue the case and to disqualify the prosecutor. At this point, subpoenas and a jury call had already been issued. Unquestionably, the rescheduling of the trial three business days before trial would have involved some degree of inconvenience for the court, the witnesses and the venire panel. Balanced against this is the single assertion that appellant had ordered defense counsel to find witnesses whom appellant apparently deemed material. Given this vagueness, we cannot say that the court acted arbitrarily or unreasonably in denying this motion. Accordingly, appellant's first assignment of error is not well-taken. II. Manifest Weight {¶ 17} In a criminal context, a verdict or finding may be overturned on appeal if it is either against the manifest weight of the evidence or because there is an insufficiency of evidence. In the former, the appeals court acts as a "thirteenth juror" to determine whether the trier of fact lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered. State v.Thompkins (1997), 78 Ohio St.3d 380, 387. In the latter, the court must determine whether the evidence submitted is legally sufficient to support all of the elements of the offense charged. Id. at 386-387. Specifically, we must determine whether the state has presented evidence which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The test is, viewing the evidence in a light most favorable to the prosecution, could any rational trier of fact have found the essential elements of the crime proven beyond a reasonable doubt. Id. at 390 (Cook, J., concurring); State v. Jenks (1991),61 Ohio St.3d 259, paragraph two of the syllabus. See, also, State v.Eley (1978), 56 Ohio St.2d 169; State v. Barns (1986), 25 Ohio St.3d 203. {¶ 18} In this matter, appellant does not contend that there was insufficient evidence, only that the evidence presented against him was not credible; specifically, the testimony of his wife. {¶ 19} On the trial of a case, the weight to be given to the evidence and the credibility of witnesses are primarily for the trier of facts.State v. DeHass (1967), 10 Ohio St.2d 230, at paragraph one of the syllabus. Appellant's wife testified that he grabbed her by the hair and beat her. Impartial witnesses saw her running from the house and testified to the bruises on her face and the bite marks on her body. Appellant's explanation was that his wife had "lost it" and began banging her own head against the wall. {¶ 20} We have carefully examined the entire record in this matter and find no suggestion that the jury lost its way or that appellant's conviction might be characterized as a manifest miscarriage of justice. Accordingly, appellant's second assignment of error is not well-taken. III. Sentencing {¶ 21} In his third and fourth assignments of error, appellant contends that the court's imposition of the maximum sentence upon him was inconsistent with the requirements of the sentencing statute. {¶ 22} R.C. 2929.11(A) articulates the purpose of felony sentencing in Ohio as: "* * * to protect the public from future crime by the offender and others and to punish the offender." The sentence imposed shall be reasonably calculated to achieve those purposes and be "commensurate with and not demeaning to the seriousness of the offender's conduct * * *." R.C. 2929.11(B) {¶ 23} R.C. 2929.12 enumerates a number of factors which the court should consider in determining whether an offense is more or less serious than the norm and whether an offender is more or less likely to repeat criminal behavior. {¶ 24} In his third assignment of error, appellant argues that the sentencing court's silence as to the specific R.C. 2929.11 considerations indicates that the court did not consider them as required. This argument fails for two reasons: first, there is no statutory requirement that the court employ magic words or, for that matter, any words related to R.C. 2992.11 or R.C. 2929.12. State v. Arnette, 88 Ohio St.3d 208, 215,2000-Ohio-302. Our review goes to whether, within a broad range, the sentence accomplishes the statutory purposes, not whether a formulaic statement is made. Compare State v. Comer, 99 Ohio St.3d 463, 465,2003-Ohio-4165 at ¶ 20-21. Secondly, the record shows that the court did, indeed, make reference to having considered the R.C. 2929.11 purposes by reciting parts of the statute, nearly verbatim. {¶ 25} Appellant makes much the same argument with respect to the R.C. 2929.12 seriousness and recidivism factors, but adds that one of the court's seriousness factor findings is unsupported in the evidence and that some run afoul of Blakely v. Washington (2004) 542 U.S. 296. {¶ 26} With respect to Blakely, this court has held that the case does not apply to Ohio's sentencing statute. State v. Curlis, 6th Dist. No. WD-04-032, 2005-Ohio-1217, at ¶ 18-20. {¶ 27} The unsupported seriousness factor appellant references was that the victim's physical or mental injury was "exacerbated because of her mental condition." Candidly, we are not certain of the court's basis for this finding. Given the remainder of the court's findings, however, even if this finding is without support, the error is harmless beyond a reasonable doubt. Crim.R. 52(A). {¶ 28} In his fourth assignment of error, appellant insists that the sentencing court's findings were insufficient to justify the imposition of a maximum sentence. {¶ 29} R.C. 2929.14(C) provides that a court may impose the maximum sentence on an offender only if it finds that the offender committed the worst form of the offense or he or she poses the greatest likelihood of committing future crimes. If such a term is imposed, the court must state its reasons for doing so. R.C. 2929.19(B)(2)(d); State v. Edmonson (1999), 86 Ohio St.3d 324, 328. {¶ 30} In this matter, the court found that appellant poses the greatest likelihood of committing future crimes. Antecedent to this finding, the court stated: "In reviewing the recidivism factors, the court will review the criminal records as reflected by the PSIs: 1982, open container in North Baltimore; in 1983, receiving stolen property, a misdemeanor level of the Bowling Green Municipal Court; a 1984 breaking and entering which resulted in a prison term; in 1985, burglary which also resulted in a prison term; a 1989 misdemeanor assault; 1989, unlawful restraint; 1992, disorderly conduct; 1993, disorderly conduct; a 1993 two counts of domestic violence and one of witness intimidation; 1993, public intoxication; 1995 domestic violence; 1995, assault; 1995, vandalism, resulted in a prison term; a 1997 assault; a 1997 disorderly conduct; a 1997 telephone harassment and unauthorized use of a vehicle; a 1998 telephone harassment and menacing by stalking; a 1999 domestic violence and assault which resulted in a prison term; 2001, menacing by stalking which resulted in a prison term. Therefore the court will note the prior history of criminal convictions. * * * [B]ased upon Mr. Parsons['] prior criminal records, the court finds that Mr. Parsons poses the greatest likelihood of committing future crime." {¶ 31} This recitation of appellant's lengthy record of prior convictions for violence and domestic violence is a sufficient statement of reason to satisfy R.C. 2929.19(B)(2)(d) and supports the finding itself. Accordingly, appellant's third and fourth assignments of error are not well-taken. IV. Ineffective Assistance of Counsel {¶ 32} In his remaining assignment of error, appellant contends that his trial counsel provided ineffective assistance of counsel. {¶ 33} "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction * * * has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. * * * Unless a defendant makes both showings, it cannot be said that the conviction * * * resulted from a breakdown in the adversary process that renders the result unreliable."Strickland v. Washington (1984), 466 U.S. 668, 687. Accord, State v.Smith (1985), 17 Ohio St.3d 98, 100. {¶ 34} Scrutiny of counsel's performance must be deferential.Strickland v. Washington at 689. In Ohio, a properly licensed attorney is presumed competent and the burden of proving ineffectiveness is the defendant's. State v. Smith, supra. Counsel's actions which "might be considered sound trial strategy," are presumed effective. Strickland v.Washington at 687. "Prejudice" exists only when the lawyer's performance renders the result of the trial unreliable or the proceeding unfair. Id. Appellant must show that there exists a reasonable probability that a different verdict would have been returned but for counsel's deficiencies. See Id. at 694. See, also, State v. Lott (1990),51 Ohio St.3d 160, for Ohio's adoption of the Strickland test. {¶ 35} The basis of appellant's assertion of ineffective counsel is that his trial counsel omitted the presentation of additional evidence of prosecutorial bias during a hearing on appellant's motion to disqualify the prosecutor. There is nothing in the record to suggest that, had additional evidence been presented at the disqualification hearing, the result would have been different. Moreover, there is nothing in the record to suggest that, had the prosecutor been disqualified, the outcome of the trial would have been different. Accordingly, appellant's fifth assignment of error is not well-taken. {¶ 36} On consideration whereof, judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Wood County. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Handwork, J., Singer, P.J., Parish, J. Concur.

2016-07-06 06:42:28.087098+00

DECISION AND JUDGMENT ENTRY {¶ 1} This administrative appeal is before the court following the November 15, 2005 judgment of the Lucas County Court of Common Pleas. That court affirmed the decision of the Nuisance Abatement Housing Appeals Board ("NAHAB") which ruled that part of appellant's property constituted a nuisance. For the reasons that follow, we affirm the judgment of the trial court. {¶ 2} The relevant facts of the case are as follows. On August 4, 2004, Merle Abbott, owner of the property located at 580 Palmwood, Toledo, Ohio, was served with a notice that her property was in violation of Toledo Municipal Code 1726.01. Abbott rents the property to appellant, Blondell Dixon. The notice stated that the property was classified as a nuisance as the yard contained tall grass and weeds, junk, debris, trash and litter, and Abbott was ordered to immediately correct the condition. {¶ 3} On August 11, 2004, Dixon responded to the notice by appealing to the NAHAB.1 On September 2, 2004, the NAHAB held a hearing at which appellant claimed the grasses at issue were ornamental grasses and herbs. Following the hearing, the NAHAB ruled that the side and rear of the property constituted a nuisance. {¶ 4} Appellant appealed the NAHAB ruling to the Lucas County Court of Common Pleas, in which she challenged section 1726.01 of the Toledo Municipal Code as being unconstitutionally vague. On November 15, 2005, the Lucas County Court of Common Pleas issued an opinion and judgment entry affirming the decision of the NAHAB and upholding the constitutionality of Toledo Municipal Code 1726.01. This appeal followed. {¶ 5} On appeal, appellant raises one assignment of error: {¶ 6} "1. The lower court erred in concluding that the nuisance ordinance gave adequate notice of what behavior or practice is forbidden" {¶ 7} The nuisance ordinance at issue, section 1726.01 of the Toledo Municipal Code states in relevant part: {¶ 8} "(a) `Public nuisance' means * * * any fence, wall, shed, deck, house, garage, building, structure or any part of any of the aforesaid; or any tree, pole, smokestack * * * or any lot, land, yard, premises or location which in its entirety, or in any part thereof, by reason of the condition in which the same is found or permitted to be or remain, shall or may endanger the health, safety, life, limb or property, or cause any hurt, harm, inconvenience, discomfort, damage or injury to any one or more individuals in the City, in any one or more of the following particulars: {¶ 9} "(1) By reason of being a menace, threat and/or hazard to the general health of the community. {¶ 10} "(2) By reason of being a fire hazard. {¶ 11} "(3) By reason of being unsafe for occupancy, or use on, in, upon, about or around the aforesaid premises. {¶ 12} "(4) By reason of lack of sufficient or adequate maintenance of the structure, location and/or premises * * * which depreciates the enjoyment and use of property in the immediate vicinity to such an extent that it is harmful to the community in which such structure, location or premises is situated or such condition exists." {¶ 13} Appellant argues that the statute is vague in that it does not specifically contain any reference to vegetation or weeds. Appellant contends that this vagueness renders it impossible for a property occupant to be put on notice of what conduct is prohibited, and, therefore, her due process rights were violated. {¶ 14} The standard of review for an appellate court in an administrative appeal is narrow in scope and requires that the common pleas court's decision be affirmed unless we find, as a matter of law, that the decision is not supported by a preponderance of reliable, probative, and substantial evidence.Smith v. Granville Twp. Bd. of Trustees (1998),81 Ohio St.3d 608, 613. "The fact that the court of appeals * * * might have arrived at a different conclusion than did the administrative agency is immaterial. Appellate courts must not substitute their judgment for those of an administrative agency or a trial court absent the approved criteria for doing so." Lorain City Bd. ofEdn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261. {¶ 15} In weighing a constitutional challenge to a law, a court must "adhere to the oft-stated rule that a court's power to invalidate a statute `is a power to be exercised only with great caution and in the clearest of cases.'" Buckley v. Wilkins,105 Ohio St.3d 350, 2005-Ohio-2166, at ¶ 18, quoting Yajnik v. AkronDept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, at ¶ 16. "Laws are entitled to a `strong presumption of constitutionality and any party challenging the constitutionality of a law `bears the burden of proving that the law is unconstitutional beyond a reasonable doubt.'" Id. {¶ 16} The court in Buckley further stated that "`[t]he due process clause of the Constitution provides the foundation for the void for vagueness doctrine.'" Id. at ¶ 17, quoting ColumbiaNatural Resources, Inc. v. Tatum (C.A.6, 1995), 58 F.3d 1101,1104. "[A] `civil statute that is not concerned with the First Amendment is only unconstitutionally vague if it is "`"so vague and indefinite as really to be no rule [or standard] at all"' or if it is `"substantially incomprehensible."'" (Citations omitted.) Id. at ¶ 19. {¶ 17} The present case is analogous to the situation presented in City of Bowling Green v. Schabel, 6th Dist. No. WD-15-013, 2005-Ohio-6522. In Schabel, appellant argued that a noise ordinance was unconstitutionally vague and did not give fair notice to an ordinary person as to the conduct that was prohibited. Id. at ¶ 20. Upon review, we held that the language of the statute at issue therein was not vague, specifically allowing a "catch-all" provision that incorporates a reasonable person standard to circumvent any vagueness. Id. at ¶ 22. Additionally, where words were left undefined in the statute, we attached a plain meaning, construing them "according to the rules of grammar and common usage." Id. at ¶ 19. {¶ 18} We apply the same principles found in Schabel to the present case. The wording of the statute defines a public nuisance as "any * * * yard * * * which * * * endanger[s] the health [of] * * * or cause[s] * * * inconvenience * * * to any * * * individuals in the City * * * [b]y reason of lack of sufficient or adequate maintenance of the * * * premises * * *." It is clear that a reasonable person would believe the deeply overgrown grasses and other vegetation would, at the very least, cause inconvenience to those near the property. It is also not unreasonable to believe that those passing by would be inconvenienced or possibly harmed due to the dense vegetation. Additionally, there was no need for the statute to define the terms "vegetation" or "weed" because the statute includes a person's yard as a part of the area qualifying for a public nuisance. Accordingly, we hold that appellant had adequate notice she could be held in violation of the statute, and the statute is not void for vagueness. Appellant's assignment of error is not well taken. {¶ 19} The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. Handwork, J. Pietrykowski, J. Skow, J. concur. 1 As the person who has charge, care of, or control of the premises, Dixon has standing to bring this action. Toledo Municipal Code 1726.01(b)(2)(c)(1).

2016-07-06 06:42:28.209783+00

OPINION Defendant-appellant, Jacques Smith, appeals his convictions in the Clermont County Court of Common Pleas for Trafficking in Drugs, in violation of R.C. 2925.03(A)(1), and Corrupting Another with Drugs, in violation of R.C.2925.02(A)(4)(a). Following a thorough review of the record, we affirm the trial court's decision in part and reverse in part. Appellant's legal relationship with Teeya Doggett ("Teeya"), a juvenile, is unclear from the record. However, it appears that at a minimum, appellant was given a power of attorney to make decisions regarding Teeya's education. At all times pertinent to this appeal, appellant and Teeya lived on a farm in the City of Milford, in Clermont County. The record reveals that Teeya often had friends visit her at the farm. Through testimony elicited at trial, it was revealed that appellant frequently shared drugs, specifically marijuana, with several of Teeya's friends, all juveniles, when they visited the farm. For example, one of Teeya's friends, Jessie, testified that once while she was visiting Teeya at the farm, "Jack [appellant] packed the bowl and we passed it around and smoked it." At least three other juveniles testified similarly at trial, stating either that appellant personally offered them marijuana, or retrieved it from his person in their presence and proceeded to pass it around. Contrary to this testimony, however, in a voluntary statement given to the Milford police, appellant emphatically denied ever providing drugs to juveniles. Instead, appellant claimed he was attempting to gain the juveniles' confidence in order to infiltrate a drug ring and stop their use of illegal drugs. Additionally, at trial, Teeya testified that appellant had never furnished her with marijuana, and that she had purchased her marijuana from dealers in the area. On October 9, 1996, a Clermont County Grand Jury returned a twenty-eight count indictment against appellant. The first sixteen counts, excluding Count 9, charged trafficking in marijuana, in violation of former R.C. 2925.03(A)(1). Because the ninth count alleged that the trafficking occurred on or about August 1996, it was charged under the revised version of R.C.2925.03(A)(1), which became effective July 1, 1996. Counts 17 and 18 charged aggravated trafficking in Lysergic Acid Diethylamide ("LSD"), in violation of former R.C. 2925.03(A)(1). All of the first eighteen counts included a specification that the alleged violations occurred within one hundred feet of a juvenile or within the view of a juvenile. Counts 19 through 28 charged appellant with corrupting another with marijuana under former R.C. 2925.02(A)(4)(a). Each of the final ten counts included a specification that the offenses were committed within one thousand feet of a school. Two months prior to trial, appellant filed a Motion to Dismiss in which he contended that he had been wrongfully indicted. On June 3, 1997, the matter was argued to the court. On June 11, 1997, finding appellant's contentions not well-taken, the trial court overruled appellant's Motion to Dismiss. On June 30 and July 1, 1997, the case was tried to the bench. Five counts were dismissed upon the state's motion and eleven additional counts were dismissed pursuant to a Motion for Acquittal. On July 2, 1997, the trial court announced its decision, finding appellant not guilty on three additional counts, but guilty on seven counts of trafficking (Counts 1, 2, 5, 9, 11, 14 and 15) and two counts of corrupting (Counts 19 and 26). Following a presentence investigation, appellant was sentenced to serve two-year terms of incarceration on six of the seven trafficking counts (1, 2, 5, 11, 14 and 15), one sixteen-month term on the ninth trafficking count1 and two one-year terms on the corrupting counts (Counts 19 and 26). Appellant timely appeals, asserting five assignments of error. Assignment of Error No. 1: BY WRONGFULLY WITHHOLDING SUCH THINGS AS GRAND JURY TRANSCRIPTS, INTERVIEW STATEMENTS, LETTERS INDICATING POTENTIAL BIAS OF WITNESSES, AND A 45 MINUTE TAPE WHEREIN A THIRD PARTY ADMITS TO COMMITTING THE ILLEGAL ACT ALLEGED IN ALL 28 COUNTS, TO THE PREJUDICE OF THE DEFENDANT AND IN VIOLATION OF CRIMINAL RULE 16(B) AND MARYLAND V. BRADY, [sic] THE PROSECUTION EVISCERATED JACQUES SMITH'S RIGHTS TO DUE PROCESS OF LAW AND HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE CONSTITUTION OF THE STATE OF OHIO. Pursuant to Brady v. Maryland (1963), 373 U.S. 83, 87,83 S.Ct. 1194: [t]he suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. In this assignment of error, appellant contends that the prosecution violated the principles set forth in Brady by withholding exculpatory evidence. Specifically, appellant contends that the prosecution did not produce certain exculpatory evidence until it was either ordered to do so by the trial court, or at trial. Appellant contends that he suffered prejudice as much of the evidence withheld pertained to certain juveniles who testified against him at trial, but was not turned over until after these particular juveniles had testified. Conversely, the prosecution contends that the rule set forth in Brady only applies to situations involving the discovery, after trial, of material information which had been known to the prosecution but unknown to the defense. Appellant asserts four violations of Brady, alleging that the prosecution did not timely disclose: (1) grand jury transcripts of two juveniles involved, (2) written statements which had been provided to the police, (3) a tape of Teeya's interview with police and (4) police notes which contained a list of students who claimed to have seen appellant smoking marijuana at a party held at the farm. In State v. Wickline (1990), 50 Ohio St.3d 114, the Ohio Supreme Court held that Brady applies only in situations where information known to the prosecution, but unknown to the defense, is discovered after trial. Id. at 116. A review of the record reveals that the material alleged to be exculpatory was disclosed either prior to, or during the trial. The grand jury transcripts were disclosed pursuant to a court order after a pretrial conference, the written statements were revealed at trial, the taped statement was provided to the defense pursuant to court order during the trial, and the juveniles' statements were disclosed to the defense during trial. Accordingly, because all alleged Brady materials were revealed either prior to or during the trial, this court does not find a violation of Brady which would require a reversal or new trial. Accordingly, appellant's first assignment of error is overruled. Assignment of Error No. 2: THE FINDING AND JUDGMENT OF THE TRIAL COURT WAS BASED UPON INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION THAT JACQUES SMITH WAS GUILTY OF PROVIDING OR FURNISHING MARIJUANA TO TEEYA DOGGETT, WHERE MS. DOGGETT TESTIFIED THAT DEFENDANT NEVER PROVIDED/FURNISHED HER MARIJUANA AND WHERE THERE WAS INSUFFICIENT EVIDENCE OTHERWISE TO SUPPORT A CONVICTION. Appellant asserts that the evidence was insufficient as a matter of law to convict him on Counts 14, 15 and 26 which specifically relate to providing or furnishing marijuana to Teeya. The proper standard of review for a sufficiency of the evidence claim was articulated in the second paragraph of the syllabus in State v. Jenks (1991), 61 Ohio St.3d 259: 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. Thus, it is a test of "whether the state has met its burden of production at trial." State v. Thompkins (1997), 78 Ohio St.3d 380,390 (Cook, J., concurring). In Counts 14 and 15, appellant was charged with trafficking marijuana under the former R.C. 2925.03(A)(1).2 In Count 26, appellant was charged with corrupting another with marijuana under the former R.C. 2925.02(A)(4)(a).3 Because Teeya testified that appellant had never furnished nor supplied her with marijuana, appellant contends there was insufficient evidence to support his convictions with respect to these particular counts. However, having thoroughly reviewed the record before this court, we find appellant's contentions without merit. Several juveniles who smoked marijuana at the farm with Teeya and appellant testified that appellant was the one who furnished the marijuana. In light of this testimony, we find the prosecution put forth sufficient evidence which would, if believed, support the convictions on the above referenced counts. Accordingly, appellant's second assignment of error is overruled. Assignment of Error No. 3: THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A FELONY CONVICTION FOR THE SALE OF MARIJUANA WHERE THE RECORD DEMONSTRATES ALL TRANSFERS WERE MADE BY "GIFT". A careful examination of the language contained in Ohio's trafficking statute, R.C. 2925.03, is required in order to properly analyze this assignment of error. Specifically, R.C.2925.03(A)(1) prohibits a person from "sell[ing] or offer[ing] to sell a controlled substance." Pursuant to R.C. 3719.01(CC),4 a "sale" of controlled substances includes "delivery, barter, exchange, transfer, gift or offer thereof." See, also, Ohio v. Sway (1984), 15 Ohio St.3d 112, 113. Thus, we note that for purposes of conviction, it is irrelevant whether these exchanges of controlled substances were "sales" in the traditional sense, or "gifts," as either satisfies the legal requirement necessary to convict an individual of a trafficking in a controlled substance. However, for purposes of sentencing, whether these exchanges were properly categorized as "sales" or "gifts" is an important distinction. If they are "sales," then pursuant to R.C. 2325.03 (E)(1)(b),5 appellant should be sentenced for third degree felonies. If they are "gifts," then pursuant to R.C.2325.03(E)(7),6 appellant should be sentenced for third degree misdemeanors. The classification of these exchanges of marijuana as "sales" or "gifts," involves difficult and mixed questions of fact and law. Appellant contends that the trial court's determination was based upon evidence that was "insufficient as a matter of law." As noted above, the proper standard of review for a sufficiency of the evidence claim is "a test of adequacy," Thompkins at 386, or a question of "whether the state has met its burden of production at trial." Thompkins at 390 (Cook, J., concurring). When questioning whether appellant's provisions of marijuana to the juveniles were "sales" or "gifts," the trial court concluded that consideration existed. Specifically, the court stated that the consideration was "the big buddy, fagonistic, the dickens-type where he has a group of followers and people that would look up to him as being, quote, unquote, the record indicate[s] cool, * * *." The court further stated: the consideration was being part of the crowd, being lead — trying to — being a pied piper for these children into the area of the drug culture, being someone who wanted to impress these children that he was, as he indicated, cool, hip, with it, whatever terminology you want to use from whatever generation. And it was part of keeping this group together and keeping him as the titular head, so to speak, of this small little click [sic] that occurred in this area. Thus, upon finding consideration, the trial court categorized these exchanges of marijuana as "sales," and convicted appellant of felonies rather than misdemeanors. "[C]onsideration may be either a detriment to the promisee or a benefit to the promisor." Mooney v. Green (1982), 4 Ohio App.3d 175,177. In the instant case, the trial court concluded that appellant had received a benefit. However, this court has reviewed the record and finds that it is devoid of any evidence that appellant received a benefit, either actual, implied, or otherwise. The record simply does not contain evidence to support the trial court's determination that appellant was bestowed with an allegedly "cool," "hip," or "pied piper" status. Because appellant did not testify, no evidence of such benefit was presented by appellant. Additionally, the prosecution did not elicit such testimony from the juveniles that testified that they had actually bestowed a "cool," "hip" or "pied piper" status on appellant. Furthermore, this court has reviewed the two taped statements that appellant gave to the Milford police, that were admitted into evidence at trial, in an effort to discover evidence which supports the trial court's finding of consideration. On the tapes, appellant repeatedly states that his reasons for providing marijuana to the juveniles were to prevent them from getting hurt or hurting others, and to learn from where these juveniles were obtaining their drug supply. Appellant says nothing of being motivated to gain an elevated status with the juveniles involved in this case. We further note that the prosecution did not believe consideration existed in these exchanges. In his opening statement, the prosecutor stated, "All involved gifts essentially of marijuana to juveniles. There is no indication, Judge — I don't expect any evidence to come forth today that the Defendant was selling this in exchange for money or any type of favors." (Emphasis added.) When asked by the prosecution whether appellant had ever requested money or sought favors in exchange for the marijuana provided, each juvenile that testified responded in the negative. After viewing the record in its entirety, and the audio tapes of appellant's statements to police, we find no evidence to support the trial court's determination that consideration existed for these exchanges. In fact, the evidence in the record actually supports the notion that these provisions of marijuana were intended to be gifts. A gift has been defined as "an immediate, voluntary and gratuitous transfer of his personal property by one to another. It is essential to its validity that the transfer be executed, for the reason that there being no consideration therefor, [sic] no action will lie to enforce it." Bolles v. Trust Co. (1936),132 Ohio St. 21, 26-27. Thus, a gift is voluntary, immediate, and without consideration. In order for a gift to be valid, there must be (1) intention on the part of the donor to immediately transfer the property, (2) delivery of the property to the donee, and (3) acceptance of the gift by the donee. Id. A review of the record reveals all of the above elements in these exchanges. This court finds the record devoid of any evidence, let alone sufficient evidence, that consideration was present in these exchanges. Appellant's provision of marijuana to these juveniles was nothing more than a gift in every sense of the definition. Accordingly, appellant's third assignment of error is well-taken; this cause is therefore reversed and remanded for sentencing in accordance with R.C. 2925.03(E)(7). Assignment of Error No. 4: THE TRIAL COURT DENIED JACQUES SMITH HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL WHEN IT OVERRULED HIS PRETRIAL MOTION TO DISMISS THE SIXTEEN COUNTS IN THE INDICTMENT BECAUSE THEY WERE MISCLASSIFIED AS FELONIES RATHER THAN AS MISDEMEANORS. Prior to trial, appellant filed a Motion to Dismiss contenting that he had been wrongly indicted on felony charges when he should have been indicted on the misdemeanor charges (see discussion of R.C. 2925.03[E][1][b] and R.C. 2925.03[E][7] above). In the motion, appellant alleged that because he had been wrongfully indicted on felony charges, his trial proceedings would be so unfairly and prejudicially tainted that his entire indictment should be dismissed. When considering whether to dismiss counts in a criminal indictment, a trial court should only look to the face of the charging instrument. State v. Daily (Jan. 15, 1998), Lorain App. No. 97CA25, unreported, at 4. "[A] motion to dismiss * * * an indictment tests the sufficiency of the indictment, without regard to the quantity or quality of evidence that may be produced by either the state or the defendant." State v. Patterson (1989), 63 Ohio St.3d 91, 95 (emphasis added). Thus, prior to trial, it is premature for a trial court to consider questions of fact. Instead, a trial court's examination of the indictment should be limited to questions of law. In the instant case, it appears from the record that the parties argued the merits of the motion, and that the trial court determined questions of fact in overruling appellant's Motion to Dismiss.7 As discussed above, such action was improper. "The proper determination was whether the allegations contained in the indictment made out offenses under Ohio criminal law." Id. Any other determination made in advance of trial was premature. However, upon a review of the indictment, we find the indictment did indeed state offenses valid under Ohio criminal law. Consequently, appellant's pretrial Motion to Dismiss should have been overruled. In as much as appellant's Motion to Dismiss was overruled, albeit improperly, we find the ultimate result in the instant case was proper. Accordingly, any error committed by the trial court in considering questions of fact was harmless. Crim.R. 52(A). Accordingly, appellant's fourth assignment of error is overruled. Assignment of Error No. 5: THE FACTS IN THIS CASE REVEAL THAT TRAFFICKING IN MARIJUANA IN VIOLATION OF SECTION 2925.03 (A)(1) AND CORRUPTING ANOTHER WITH DRUGS IN VIOLATION OF SECTION 2925.02(A)(4)(a) ARE ALLIED OFFENSES OF SIMILAR IMPORT AND THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY CONVICTING JACQUES SMITH TO [sic] BOTH OF THESE OFFENSES. Appellant argues that his convictions on Counts 19 through 26, corruption of another with marijuana, for which he was sentenced to consecutive one-year terms, were allied offenses of similar import to his trafficking convictions under Counts 1, 4, 6, 7, 10, 12, 13 and 14, and should have been merged accordingly. R.C. 2941.25 provides that: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictments or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of similar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. In determining whether two offenses are allied under R.C. 2541.25, the Ohio Supreme Court has developed a two-step analytical framework. Newark v. Vazirani (1990), 48 Ohio St.3d 81. The first step requires this court to compare the elements of the offenses to determine whether the elements correspond so substantially that the commission of one offense necessarily results in the commission of the other. Id. at 83. If the offenses so correspond, they are allied offenses of similar import, and this court must proceed to the second step of the analysis. Id. The second step requires this court to review appellant's conduct to determine whether the offenses were committed separately or with a separate animus to each. Id. If the court finds that the crimes were committed separately or that there was a separate animus for each crime, appellant may be convicted of both offenses. Id.; R.C. 2941.25(B). Using this framework, we begin by comparing the elements of trafficking in marijuana and corruption of another with marijuana to determine whether they are allied offenses of similar import. (See R.C. 2925.03[A] and R.C. 2925.02[A][4][a] provided in footnotes two and three above.) Having thoroughly reviewed the record in the case at bar, it appears that these offenses may indeed be allied offenses of similar import as each addresses the sale or furnishing of controlled substances. Unfortunately, this court finds that the relationship between the offenses cannot be determined from undisputed facts in the record. "Where the record suggests that multiple offenses, to which a defendant has plead guilty [or has been convicted] may be allied offenses of similar import, but the relationship between the offenses cannot be conclusively determined from the face of the record," it is proper for the trial court to hold a hearing to determine whether the offenses are allied offenses of similar import. State v. Schultz (Mar. 23, 1994), Miami App. No. 93CA25, unreported, at 27. Thus, the trial court should have held a hearing to determine whether the charges of trafficking in marijuana and corruption of another with marijuana were allied offenses of similar import. Accordingly, appellant's fifth assignment of error is well-taken and this cause is reversed and remanded so that the trial court may hold the requisite hearing. In conclusion, the first, second and fourth assignments of error are overruled. The third and fifth assignments of error are sustained. This cause is reversed and remanded for a determination of whether any of the offenses of which appellant was convicted are allied offenses of similar import, and for sentencing on the trafficking convictions consistent with R.C.2325.03(E)(7). KOEHLER and WALSH, JJ., concur. 1 The ninth count alleged that the trafficking took place on or about August, 1996, mandating the imposition of sentence pursuant to the current version of R.C. 2925.03(A)(1), which went into effect July 1, 1996. 2 R.C. 2925.03(A)(1)provides: (A) No person shall knowingly * * *: (1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount. 3 R.C. 2925.02(A)(4)(a)provides: (A) No person shall knowingly * * *: (4) By any means, do any of the following: (a) Furnish or administer a controlled substance to a juvenile who is at least two years his junior, when the offender knows the age of the juvenile or is reckless in that regard. 4 R.C. 3719.01 is the definitional section of the Revised Code's Controlled Substances Statute. 5 R.C. 2925.03(E)(1)(b) provides: (E) If the drug involved is marijuana, whoever violates this section is guilty of trafficking in marijuana. (1) Where the offender has violated (A)(1) of this section, trafficking in marijuana is a felony of the fourth degree, except that trafficking in marijuana is a felony of the third degree, if any of the following apply: * * * (b) The offender commits the offense within one hundred feet of any juvenile or within the view of any juvenile, * * *. (Emphasis added.) 6 R.C. 2325.03(E)(7) provides: * * * if the offense involves a gift of twenty grams or less of marijuana and the offense involves a violation of division (A)(1), * * * that was committed within one hundred feet of any juvenile or within the view of any juvenile * * * trafficking in marijuana is a misdemeanor of the third degree. (Emphasis added.) 7 The trial court's entry overruling appellant's Motion to Dismiss indicates that this matter was argued before the trial court; however no transcript of the actual proceeding was provided to this court on appeal.

2016-07-06 06:42:28.237406+00

OPINION {¶ 1} Plaintiff-appellant Sylvia Jane Himes appeals from the October 1, 2002, Amended Qualified Domestic Relations Order issued by the Tuscarawas County Court of Common Pleas, Domestic Relations Division. STATEMENT OF THE FACTS AND CASE {¶ 2} On June 28, 1991, appellant Sylvia Jane Himes filed a complaint for divorce against appellee Kenneth Himes. As memorialized in a Judgment Entry/Decree of Divorce filed on August 18, 1992, the parties were granted a divorce. The parties' Separation Agreement, which was incorporated into the Divorce Decree, provided in paragraph 6 as follows: {¶ 3} "6. Pension Rights. The Parties acknowledge that the Husband is a participant in The Timken Company hourly employees' pension plan. The parties agree that the Husband's pension rights acquired through said pension plan shall be divided 75% to the Husband and 25% to the Wife. The Wife shall have the right to file a Qualified Domestic Relations Order transferring into the name of the Wife, the rights to receive 25% of the Husband's pension benefits, and the parties confer upon the court continuing jurisdiction to enforce by court order the agreement of the parties as to the division of Husband's pension rights as set forth hereinabove." {¶ 4} Thereafter, a Qualified Domestic Relations Order signed by the trial court and counsel for both parties was filed on September 21, 1992. However, there is no indication in the record that the Qualified Domestic Relations Order was accepted by the plan administrator. {¶ 5} Subsequently, on October 1, 2002, an Amended Qualified Domestic Relations Order, which was signed by appellee's counsel and the trial court, was filed.1 The same had been submitted to, but not approved by, appellant's former counsel. Appellant did not learn of the Amended Qualified Domestic Relations Order until a copy was served upon her after the order was filed. {¶ 6} It is from the October 1, 2002, Amended Qualified Domestic Relations Order that appellant now appeals, raising the following assignment of error: {¶ 7} "The trial court erred in approving an amended qualified domestic relations order without service of process or prior notice to the alternate payee thereby violating the alternate payee's fundamental rights to due process pursuant to amendments V and XIV of the Constitution of The United States and Section 1, Article 1, Section 16, Article I and Section 19, Article I, of the Constitution of Ohio." I {¶ 8} Appellant, in her sole assignment of error, argues that the trial court violated her right to due process by approving the Amended Qualified Domestic Relations Order "without service of process or prior notice" to her. We agree. {¶ 9} Generally, due process requires that "a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.' " Cleveland Bd. of Educ.v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct. 1487, (citing Mullanev. Central Hanover Bank Trust Co. (1950), 339 U.S. 306, 313,70 S.Ct. 652). At a minimum, due process of law requires notice and opportunity for a hearing, that is, an opportunity to be heard. Mathewsv. Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893. See also McGeorge v.McGeorge (May 22, 2001), Franklin App. No. 00AP-1151. {¶ 10} In the case sub judice, the original Qualified Domestic Relations Order, which was signed by counsel for both parties and by the trial court, was never approved by the plan administrator. Thereafter, approximately ten years later, without any motion having been filed or any prior notice to appellee, the trial court approved the Amended Qualified Domestic Relations Order prepared by and submitted to the trial court by appellee's counsel. As is stated above, the same had been submitted to, but never approved by, appellant's former counsel. Appellant now argues that while the original Qualified Domestic Relations Order granted her 25% of appellee's pension and 25% of his 401(K) plan, the amended order "totally deleted the provision of the original QDRO granting her 25% of her Husband's 401(K) Plan . . ." Appellant also notes that while the original Qualified Domestic Relations Order referred to "The Timken Company Bargaining Unit and Voluntary Investment Plan," the Amended Order refers to the "Timken Company Bargaining Unit Pension Plan." According to appellant, "[f]rom the record, it is not possible to tell whether the Order and Amended Order apply to the same plan." {¶ 11} We find that the trial court's ex-parte Amended Qualified Domestic Relations Order denied appellant her due process protections guaranteed by the Ohio and United States Constitutions. See McClarren v.McClarren (Nov. 18, 1991), Morrow App. No. Ca 755. Since appellant's property interests were at stake, appellant should have had the opportunity to contest whether the Amended Qualified Domestic Relations Order substantively changed the terms of the original Qualified Domestic Relations Order that was signed by counsel for both parties. Appellant, however, never had such an opportunity. {¶ 12} For the foregoing reasons, appellant's sole assignment of error is sustained. {¶ 13} Accordingly, the judgment of the Tuscarawas County Court of Common Pleas, Domestic Relations Division, is reversed and this matter is remanded to the trial court for further proceedings. By Edwards, J., Hoffman, P.J. and Wise, J. concur. In Re: DR/QDRO — No service of process. 1 The Amended Qualified Domestic Relations Order was submitted to the trial court via a cover letter dated September 25, 2002.

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This is an appeal from a judgment of the Fulton County Court of Common Pleas. Appellant, Earl Scheib of Ohio, Inc., appeals the trial court's grant of summary judgment to appellee, Joyce A. Wade, and sets forth the following assignments of error: "The trial court erred in awarding compensation to the claimant because Wade's injuries were not received in the course of his employment." "The trial court erred in awarding compensation to the claimant because Wade's injuries did not arise out of his employment." "The trial court erred by failing to address both prongs of R.C. 4123.01 (C)." "The trial court's judgment in favor of claimant was against the manifest weight of the evidence." The decedent, Gary C. Wade, was a Paint Shop Manager employed by appellant in its Canton, Ohio paint and body shop. 1996, Wade applied for and obtained the position of Internal Auditor with the company. Appellant required each employee who was selected to be an Internal Auditor to attend a one to two week training session prior to starting his or her new position. this instance, Wade was to attend a training session in Chicago, Illinois. Earl Scheib of Ohio, Inc. paid for Wade's accommodations in Chicago and was to pay his airplane fare or reimburse him for mileage if he decided to drive to Chicago. On the morning of April 7, 1996, Wade left his home in Austintown, Ohio, driving his own motor vehicle. Near Delta, Ohio, approximately forty miles from the Indiana line, Wade's car went off the Ohio Turnpike, hit a guardrail, then a bridge pillar and began to roll. Wade was thrown from the vehicle and died at the scene. Wade's widow, Joyce A. Wade, filed for workers' compensation death benefits. Her claim was allowed by the District Hearing Officer. After the Ohio Industrial Commission refused to hear its appeal, appellant filed a timely notice of appeal in the Fulton County Court of Common Pleas. Appellant moved for summary judgment. Appellee filed a cross-motion for summary judgment. On May 14, 1998, the common pleas court granted the motion for summary judgment filed by appellee and denied appellant's motion. We shall first address appellant's fourth assignment of error. In that assignment, appellant contends the trial court's judgment is "against the manifest weight of the evidence." Decisions of the industrial commission concerning the right of an employee to participate in the state's workers' compensation fund may be appealed to a court of common pleas under R.C. 4123.512. Such appeals are governed by the Ohio Rules of Civil Procedure. See R.C. 4123.512 (E). They are subject to de novo review by the common pleas court. Zuljevic v. Midland-Ross (1980), 62 Ohio St.2d 116,118; State ex rel. Federated Dept. Stores, Inc. v.Brown (1956), 165 Ohio St. 521, paragraph two of the syllabus. Thus, if the common pleas court enters summary judgment in this situation, an appellate court employs a de novo standard of review. Jones v. Multi-Color Corp. (1995), 108 Ohio App.3d 388;Jennings v. Trimble (Nov. 2, 1995), Jackson App. No. 94CA754, unreported. Therefore, we do not review the judgment in the present case under a "manifest weight" standard. Accordingly, appellant's fourth assignment of error is found not well-taken. Appellant's remaining three assignments of error are interrelated and shall be considered together. The standard of review and the substantive law applicable to this case is as follows. In applying the de novo standard, we review the trial court's grant of summary judgment independently and without reference to the trial court's determination. Brown v. Sciotov. Bd. of Comm'rs. (1993), 87 Ohio App.3d 704,711. Summary judgment is appropriate when: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds construing the evidence in favor of the nonmoving party could reach but one conclusion and that conclusion is adverse to the nonmoving party. Civ.R. 56(C). An employee's injury is compensable under the state worker's compensation fund only when it is "received in the course of, and arising out of, the injured employee's employment." R. C. 4123.01(C). Both prongs of the formula must be satisfied before compensation will be allowed. Fisher v. Mayfield (1990), 49 Ohio St.3d 275,277. As a general rule, the workers' compensation statute must be "liberally. construed in favor of employees." R.C. 4123.95;Fisher v. Mayfield, 49 Ohio St.3d at 278. This rule of construction applies to the phrase "in the course of, and arising out of." Id. The term "in the course of employment" is associated with the time, place and circumstances of the injury while the "arising out of element" contemplates a causal connection between the injury and the employment. Id. at 277. Appellant contends that it offered specific facts showing that appellee's claim is subject to the "coming and going" rule. The "going and coming rule" has, in the past, been applied to determine that an employee who worked at a fixed situs was not injured during the course of his or her employment and/or his or her injury did not arise out of the employment relationship if that injury was incurred either when the employee was traveling to or coming from the work site. Ruckman v. Cubby Drilling, Inc. (1998),81 Ohio St.3d 117, 119. The "going and coming rule" has also been addressed by the Ohio Supreme Court with regard to employment involving "variable fixed sites." See, i.g., Ruckman. In discussing the meaning of "course of employment" within the context of applying the "going and coming" rule, theRuckman court determined that an injury sustained by an employee occurs during the course of employment if that employee was engaged in activity that is consistent with the contract for hire and logically related to the employer's business. Ruckman v. Cubby Drilling, Inc.,81 Ohio St.3d at 120. The court held that entitlement to workers' compensation, did not require a worker to be injured in the actual performance of work for his or her employer. Id. at 120, quoting Sebek v. Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693, paragraph three of the syllabus. 49 Ohio St.3d at 277. Here, the undisputed facts1 demonstrated that the decedent was required to attend the training session by his employer before he could assume the duties of his new position. The training session was part of his "contract for hire" and related to the employer's business. Accordingly, no question of fact existed as to whether Wade was acting in the course of his employment at the time he was injured. Appellant insists that in determining whether Wade's injury arose out of his employment for the purposes of the "going and coming" rule, the trial court was required to apply the factors found Lord v. Daugherty (1981), 66 Ohio St.2d 441. These factors are: " (1) the proximity of the scene of the accident to the place of employment, (2), the degree of control the employer had over the accident, and (3) the benefit the employer received from the injured employee's presence at the scene of the accident." Id. at the syllabus. In applying these factors, it must be conceded that the undisputed facts show the accident did not occur within the proximity of Wade's "place of employment" and that appellant had no control over the place of the accident. Wade was, however, on his way to the training session at the behest of his employer and that training session was for his employer's benefit. That is, Wade was to be trained for an internal auditor position which would significantly benefit appellant when Wade assumed that position. More importantly, theRuckman court emphasized that a causal connection between the injury and the employment sufficient to meet the "arising out of" prong of the statute depends on a totality of the facts and circumstances surrounding the accident. Ruckman v. CubbyDrilling, Inc., 81 Ohio St.3d at 122, citing Fisher v.Mayfield, 49 Ohio St.3d at 279. If not for his employment, Wade would not have been at the site of this fatal accident. SeeBrown v. Bernen's Medical (Nov. 19, 1997), Clermont App. No. CA97-06-058, unreported; The Midwestern Indemn. Co. v. VideoFeatures, Inc. (Nov. 2, 1994), Hamilton App. No. C-930401, unreported. Furthermore, in Ruckman, at 123-125, the Ohio Supreme Court recognized that the "special hazard" exception to the "going and coming" rule (as applied only to determining the existence of a causal connection) encompassed a variety of factors. Under the "special hazard" exception, an employee's injury that is suffered as he or she is either coming or going to work, arises out of his or her employment if the risk taken in the commute is "distinctive in nature or quantitatively greater than the risk common to the public." MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 68, 69. The factors recognized by theRuckman court were the remoteness and temporary nature of the work site, the necessity of interstate travel and the distance traveled. Id. at 124-125. Because of the nature of these factors, the court found that the' employees in that case established a risk quantitatively greater than risks to the general public. Id. at 125. In the present case, Wade was required to travel a relatively long distance interstate to a temporary location as an incident of his employment. Thus, the risks faced were quantitatively different than those of the general public and the trial court could have found, as a matter of law, that the special hazard exception applied to this case. For the foregoing reasons, there was no question of fact that a causal connection existed between the injury and the decedent's employment. Accordingly, the trial court did not err in determining that reasonable minds could only conclude that Wade's injury was compensable under R.C. Chapter 4123 as a matter of law. Appellant's first and second assignments of error are found not well-taken. Appellant's third assignment of error asserts that the trial court failed to address the "arising out of" prong of the test in R.C. 4123.01 (C). While the trial court's judgment entry never expressly sets forth the two parts of the test provided by R.C.4123.01 (C), the court's discussion of the issues raised is sufficient to establish that the court found that the trip to Chicago was part of Wade's employment contract (the "in course of" employment prong) and was causally connected (the arising out of" employment prong). Therefore, appellant's third assignment of error is found not well-taken. The judgment of the Fulton County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App. R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Peter M. Handwork, P.J. ---------------------------- JUDGE Melvin L. Resnick, J. ---------------------------- JUDGE Richard W. Knepper, J. CONCUR. ---------------------------- JUDGE 1 Appellant argues that Wade was not required to take the internal auditor's position, that he could have opted to take the training session at another time and that he could have taken an airplane to Chicago. These are not material facts sufficient to create a question of fact on any of the dispositive issues in this case. Rather, they are mere speculation on the part of appellant.

2016-07-06 06:42:28.75706+00

OPINION Plaintiff Billie Jean Priest appeals a judgment of the Court of Common Pleas, Domestic Relations Division, of Licking County, Ohio, which sustained some of the parties' objections to the magistrate's decision, overruled some, and sua sponte revised the distribution of the pension belonging to defendant Irwin L. Priest, Sr. Appellant assigns two errors to the trial court: ASSIGNMENTS OF ERROR ASSIGNMENT OF ERROR NO. 1: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO AWARD TO PLAINTIFF A JUDGMENT FOR TEMPORARY CHILD SUPPORT ARREARAGES ACCUMULATED TO THE DATE OF THE FINAL HEARING. ASSIGNMENT OF ERROR NO. 2: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO MAKE AN EQUITABLE DIVISION OF A MARITAL PENSION OF THE PARTIES. The record indicates the parties had been married for 27 years, and had 4 children, 3 of whom were emancipated at the time of the final hearing. The matter was referred to a magistrate, who entered a decision on September 27, 2000. The portions of the decision relevant to this appeal concern the issues of child support and an equitable division of one of the primary marital assets, appellee's pension. The magistrate determined the pension was a marital asset as defined by R.C. 3105.171, earned during the marriage, and because of this, it should be divided equally. The magistrate did not rule on the appellant's request to reduce the temporary child support arrearages to judgment, but found appellee had custody and ordered appellant to pay child support. Appellant filed objections to the magistrate's decision, but did not provide the trial court with a transcript of the proceedings from the hearing before the magistrate. We note the record now contains the transcript, filed after the notice of appeal. Because the transcript of proceedings was not available to the trial court, we will not consider it for our purposes herein. I In her first assignment of error, appellant urges during the time she had custody of the minor child, appellee was to pay her $280 per month in the form of child support. Appellee did not pay the child support, and appellant requested the court to adjust its orders accordingly. The trial court filed an opinion on January 21, 2000, to dispose of the various objections to the magistrate's decision. The court sustained appellant's objection to the order to pay appellee child support, finding the child received adequate income in Social Security benefits derived from appellee's retirement status. The court found no support should be exchanged between the parties. Concerning the non-payment of temporary support by appellee to appellant, the court found without a transcript, it could not determine the basis for the magistrate's decision. The court overruled the objection, noting it would not enter an order based on conjecture. The record showed the child sometimes lived with appellant and at other times with appellee. Here, the court found it was inappropriate for appellee to pay any child support given that the child received an adequate amount in Social Security benefits from his father's retirement. See Williams v. Williams (2000), 88 Ohio St.3d 441. Finally, Civ. R. 53 provides any objection to a finding of fact made by the magistrate must be supported by a transcript of evidence submitted to the magistrate relevant to that fact, or, in the alternative, with an affidavit alleging the transcript is unavailable. The rule provides that a party may 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 the finding as provided by the rule. Our review of the limited record before us leads us to conclude the trial court properly disposed of the issue of temporary child support arrearages. The first assignment of error is overruled. II In her second assignment of error, appellant urges the trial court abused its discretion when it altered the division of appellee's pension. Neither party filed an objection to the magistrate's disposal of the pension, but the trial court sua sponte examined the matter and reapportioned the division. The trial court should review a magistrate's report and independently analyze it, see Garcia v. Tillack (1983), 9 Ohio App.3d 222. The parties did not object to the magistrate's decision regarding the pension, and the trial court did not have before it a transcript of proceedings. For this reason, the trial court could review the magistrate's decision and alter it only if it finds an error of the face of the decision or an error of law. The trial court's opinion filed January 4, 2001, sets forth the trial court's reasoning. The court found it would be inequitable to divide the pension equally because of the relative employment status of the parties. The court found if the pension were divided equally, as the magistrate recommended, then appellant would have an income of $20,682 per year while the appellee would have an income of $17,556 per year. The court noted appellee would be eligible for cost of living increases on Social Security retirement and appellant would be eligible for pay increases from her employment. The court further found a more equitable division of the pension would result if appellee paid to the appellant $180 per month from the pension, because appellee's income would be $19,876 per year and appellant's would be $18,362 per year. The court found the minor difference between these amounts is warranted because of appellee's tax applications. In general, the Supreme Court has applied an abuse of discretion standard to trial courts' determinations in domestic relations cases, seeBooth v. Booth (1989), 44 Ohio St.3d 142, 144. The Supreme Court made the abuse of discretion standard specifically applicable to marital property divisions in Martin v. Martin (1985), 18 Ohio St.3d 292. The Supreme Court has frequently defined the term abuse of discretion as implying the court's attitude is unreasonable, arbitrary, or unconscionable, Blakemorev. Blakemore (1983), 5 Ohio St.3d 217. We find the trial court did not err in reviewing the distribution of appellee's pension, and fashioning an order intended to divide the property more equitably. While there was no factual issue before the trial court, it nevertheless properly reviewed the facts as presented by the magistrate's decision, and applied its knowledge of the law to them. We find the trial court did not err. The second assignment of error is overruled. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas, Domestic Relations Division, of Licking County, Ohio, is affirmed. Costs to appellant. Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. concur.

2016-07-06 06:42:28.984155+00

DECISION Zachary P. Bowman, defendant-appellant, appeals a decision of the Franklin County Court of Common Pleas finding him guilty for failure to stop after an accident, a violation of R.C. 4549.02. On July 17, 2000, an accident occurred on Arnsby Road in Franklin County, Ohio. Tanya Cordial, a witness, testified during appellant's trial stating she saw Harold Sayre hit his head on the pavement after he attempted to climb out of a pick-up truck being driven by appellant. Cordial testified she saw the truck come to a rolling stop after she heard Sayre say "I want out of here." Cordial also testified Sayre had "his hands on the side of the bed of the truck and with his foot up on the bed like he was going to jump out" when she saw the truck speed up. Cordial stated Sayre "flipped and fell backwards and hit the road." Cordial also stated the truck did not initially stop, but instead "just kept going down to the end of the road and then they stopped." Cordial further testified the "truck stayed at the end of the road * * * for about five minutes and then came back up for not even a minute * * *." According to a statement made to the police, Cordial stated the driver of the truck said "[w]hy in the hell did he jump out for." Cordial wrote that the driver then said "I have to go get [Sayre's] mom," but never returned. Cordial wrote down the truck's license plate number and gave it to the police. Sergeant Staggs, a sergeant with the Franklin County Sheriff's Office, testified the police were able to contact the owner of the truck through Cordial's description of the truck and the license plate number. According to Staggs, the owner of the truck told the police she had loaned the truck to appellant. Staggs testified he then contacted appellant and appellant told him: That he never intended for anyone to get hurt. He thought that he was going to be in a lot of trouble and that he was not the one that caused * * * the victim, to fall out of the truck, and he hid the vehicle because he thought that he would get caught and go to jail. After appellant told the police where the truck was located, the police found the truck hidden on a logging trail in Perry County, Ohio. Appellant was indicted by a grand jury for not remaining at the scene of an accident until he had provided his name, address, vehicle registration number, and name and address of the vehicle's owner. Appellant waived his right to a trial by jury and was found guilty by the trial court for violating R.C. 4549.02, a fifth-degree felony. The court found that "the victim jumped from the truck while the truck was moving and would not have sustained the injuries but for moving the truck." The trial court imposed a five-year period of community control supervision on appellant and a fine and/or financial sanction of $2,009.87. Appellant appeals his conviction and presents the following single assignment of error: THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF VIOLATING R.C. § 4549.02, FAILURE TO STOP AFTER AN ACCIDENT, BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH A CONVICTION. Appellant argues in his assignment of error that insufficient evidence was presented to support his conviction. Appellant argues he was not required to stop his vehicle pursuant to R.C. 4549.02 because Sayre voluntarily jumped out of the truck. Appellant also argues because of Sayre's actions, the accident was not "due to the driving or operation" of the truck pursuant to R.C. 4549.02. "Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the jury verdict." State v. Smith (1997), 80 Ohio St.3d 89, 113, certiorari denied (1998),523 U.S. 1125, 118 S.Ct. 1811. "When reviewing a claim of insufficient evidence, the relevant inquiry is whether any rational factfinder, after viewing the evidence in a light most favorable to the state, could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Clemons (1998), 82 Ohio St.3d 438, 444, certiorari denied 525 U.S. 1077, 119 S.Ct. 816. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. Id. R.C. 4549.02 states: In case of accident to or collision with persons or property upon any of the public roads or highways, due to the driving or operation thereon of any motor vehicle, the person so driving or operating such motor vehicle, having knowledge of such accident or collision, shall immediately stop his motor vehicle at the scene of the accident or collision and shall remain at the scene of such accident or collision until he has given his name and address and, if he is not the owner, the name and address of the owner of such motor vehicle, together with the registered number of such motor vehicle, to any person injured in such accident or collision or to the operator, occupant, owner, or attendant of any motor vehicle damaged in such accident or collision, or to any police officer at the scene of such accident or collision. In the event the injured person is unable to comprehend and record the information required to be given by this section, the other driver involved in such accident or collision shall forthwith notify the nearest police authority concerning the location of the accident or collision, and his name, address, and the registered number of the motor vehicle he was operating, and then remain at the scene of the accident or collision until a police officer arrives, unless removed from the scene by an emergency vehicle operated by a political subdivision or an ambulance. If such accident or collision is with an unoccupied or unattended motor vehicle, the operator so colliding with such motor vehicle shall securely attach the information required to be given in this section, in writing, to a conspicuous place in or on said unoccupied or unattended motor vehicle. "Pursuant to R.C. 4549.02, the relevant elements of the offense [failure to stop] are as follows: failing to stop and give name and address after operating a motor vehicle that is involved in [an accident or] collision on a public road." State v. Kyser (Aug. 10, 2000), Mahoning App. No. 98 CA 144, unreported. A review of R.C. 4549.02 shows one of the purposes of the statute is to require individuals involved in traffic accidents to give sufficient information to allow law enforcement officials to contact that individual if an investigation is conducted of the accident. In the present case, there is no question among the parties that appellant failed to stop and give his name and address after the incident occurred. Additionally, appellant stipulated during trial that "this was an accident." Therefore, the central question is whether sufficient evidence was presented to show an accident or collision occurred "due to the driving or operation thereon of any motor vehicle." Appellant claims the evidence presented at trial demonstrated Sayre voluntarily attempted to jump out of the truck appellant was driving and that appellant's actions had no bearing on Sayre's death. A review of the testimonies given by Leisha White, Brandi Franklin, Marshall Hutchinson, and Brandon Malone, all testifying on behalf of appellant, support appellant's version of the events. However, a review of Cordial's testimony shows it supports the theory that Sayre's death was caused by appellant accelerating at the time Sayre was attempting to jump out of the truck. Cordial testified she saw the truck slow down until it was "barely rolling down the street." She also testified when Sayre was attempting to jump out, "the truck sped up." During cross-examination, Cordial restated that Sayre "flipped off the side of the truck as the truck accelerated down the street." Accordingly, after having reviewed the evidence in a light most favorable to the state, we find sufficient evidence was presented to support appellant's conviction. Based upon Cordial's testimony, a rational factfinder could have found proven beyond a reasonable doubt Sayre's injuries were due to appellant's operation of the motor vehicle. Therefore, appellant's assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. BOWMAN and PETREE, JJ., concur.

2016-07-06 06:42:29.04531+00

DECISION AND ENTRY This appeal is before the court for disposition upon the merits. For the reasons that follow, we conclude that we are without jurisdiction to consider this appeal, for lack of a final appealable order. This problem was brought to the attention of the parties at the oral argument of this appeal on February 28, 2000, and both parties were asked if they wished to file memoranda on the question of whether the order from which this appeal is taken is a final appealable order. Both parties declined. This appeal was brought by plaintiff-appellant Kenneth Cox against defendant-appellee Greene Memorial Hospital, Inc., in negligence. In his complaint, Cox alleges that Greene Memorial, having assumed his care and treatment, was negligent when it left him unrestrained, with the guardrails on his hospital bed down, and that as a direct and proximate result of that negligence, Cox was injured. Subsequently, the Health Care Finance Administration was added as a party plaintiff. HCFA alleged that it had become subrogated to Cox's right of recovery against Greene Memorial, to the extent of certain monies paid by it for Cox's benefit. Various continuances of the trial date were sought and obtained by Cox and HCFA. The last scheduling order in the case, filed June 25, 1999, set a trial date of August 30, 1999, and a final pretrial conference date of August 5, 1999. It set a discovery deadline of thirty days prior to pretrial, and a deadline for the disclosure of experts of two months prior to the discovery deadline. The result of this order was that the disclosure of experts was required to be made by not later than May 5, 1999, a deadline preceding the date that the order establishing this deadline was entered. Cox and HCFA disclosed their experts on June 11, 1999. Greene Memorial moved to exclude them. This motion was ultimately granted, excluding all of the expert witnesses that Cox and HCFA proposed to call. In the order of the trial court from which this appeal was taken, the trial court included the following paragraph: The Court FINDS that the its [sic] orders concerning discovery the exclusion of plaintiff's expert witnesses and treating physicians affect a substantial right and "in effect determines the action and prevents a judgment." O.R.C. § 2505.02. These are, therefore, final appealable orders. Cox and HCFA appealed from this order, contending that the trial court erred by excluding their expert witnesses. R.C. 2505.02(A)(B) provides, in pertinent part, as follows: An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: (1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; . . . The order from which this appeal is taken is an order excluding expert witnesses, entered as a sanction for the failure to comply with the trial court's pre-trial order requiring the disclosure of expert witnesses by a certain date. We recognize that, as a practical matter, the exclusion of the plaintiffs' experts may have doomed their cause of action. However, we are not satisfied that an order excluding testimony, no matter how dire, is a final appealable order. An example of an order that, in effect, determines an action and prevents a judgment may be found in Yonkings v. Wilkinson (1999), 86 Ohio St.3d 225. In that case, the plaintiff, who had been incarcerated as a result of certain criminal convictions, had moved to hold certain officials having responsibility for his incarceration in contempt for their failure to comply with a declaratory judgment that he had obtained concerning the length of his sentence. The trial court denied the contempt motion, but did order the defendant officials to correct the plaintiff's record regarding his sentence. The Supreme Court held this to be a final appealable order, reasoning as follows: In this case, the trial court ordered appellee to correct appellant's sentence, thus affecting a substantial right. The order also determined the action because it answered the only question presented by the action: whether appellant's sentence must be changed in accordance with its order. Finally, the order prevented a judgment an appellee's favor declaring that former RC 2929.41(E)(2) affected only the minimum term of incarceration. Therefore, the denial of the motion of contempt in this case was a final appealable order. Id., at 229. In Yonkings, the trial court had answered the only question that was before it. In our case, the question is whether Greene Memorial is liable to the plaintiffs in negligence. Although the plaintiffs' chances of obtaining a favorable answer to that question may have disappeared as a result of the exclusion of their expert witnesses, we cannot say that the question of liability has actually been answered by the trial court. Another example that comes to mind of an order that in effect determines the action and prevents a judgment would be an order dismissing a cause of action for failure to state a claim upon which relief can be granted, pursuant to Civ.R. 12(B)(6). In that case, no judgment would have been rendered, but the dismissal of the complaint for failure to state a claim upon which relief can be granted would in effect determine the action, and would prevent a judgment upon the complaint. In the case before us, we understand the trial court's reason for concluding that its order excluding the plaintiff's experts in effect determines the action. Because the plaintiff's theory of recovery is that Greene Memorial breached its standard of care, we understand the present state of the law to require expert testimony concerning the standard of due care for a health care provider. We also understand that the present state of the law would likely require expert testimony on the issue of proximate cause. Of course, litigation sometimes results in changes in the law. It is not inconceivable that this case, were it ultimately to reach the Ohio Supreme Court, might result in a relaxation of the rule requiring expert testimony concerning the proper standard of care for a health care provider, or, for that matter, concerning proximate cause of physical injuries. We are loathe to open the door to the possibility of piecemeal appeals where litigants are frustrated by orders involving discovery. We conclude that the better reasoning is that an order excluding evidence, no matter how draconian, even though it may, in effect, pre-determine the outcome of an action, does not determine the action. At oral argument we suggested to the parties that, if we were to dismiss this appeal for lack of a final appealable order, a futile trial could be avoided by the plaintiffs filing a stipulation that they are unable to prove their case without the testimony of the experts who have been excluded. The trial court could then render a judgment in favor of Greene Memorial upon the plaintiffs' complaint, based upon the plaintiffs' stipulation that they are unable, as the result of the trial court's order excluding evidence, to prove their case. This judgment could then be appealed, and the plaintiffs could then assign, as error, the exclusion of the expert witnesses. One advantage of this approach is that there would then be an actual judgment in the trial court. If the outcome of the appeal were be an affirmance, there would then be a final judgment in Greene Memorial's favor upon the plaintiffs' complaint. Otherwise, there would be the possibility, however slight, that the plaintiffs might elect to proceed to trial on their complaint, even after an affirmance of the order excluding the expert witnesses, in the hope of changing the law requiring expert testimony, or in the hope of otherwise being able to procure a favorable judgment. This situation has an analogy in the criminal law. The State is entitled to appeal from an order suppressing evidence pursuant to Crim.R. 12(J), provided that the State certifies that the order suppressing evidence is fatal to the prosecution. An affirmance of the suppression order then bars prosecution of the defendant for the same offense, pursuant to the final paragraph of Crim.R. 12(J). That provision has the evident purpose of avoiding piecemeal appeals. Similarly, a civil action should not be deemed to be concluded, for purposes of appeal, merely because a ruling excluding evidence has made it overwhelmingly unlikely that the aggrieved party can prevail. This appeal is hereby DISMISSED for lack of a final appealable order. SO ORDERED. GRADY, Presiding Judge, BROGAN, Judge, FAIN, Judge

2016-07-06 06:42:29.240713+00

OPINION {¶ 1} Defendant, Cindy Kingsolver, appeals from a summary judgment for the State on Kingsolver's petition for post-conviction relief. {¶ 2} On July 26, 2001, Defendant was indicted on one count of welfare theft. R.C. 2913.02(A)(3). Pursuant to a negotiated plea agreement, Defendant entered a plea of guilty to the charge. In exchange, the State recommended community control with restitution. On December 6, 2001, the trial court sentenced Defendant to five years of community control and ordered her to pay restitution. {¶ 3} On April 10, 2002, Defendant filed a petition for post conviction relief alleging ineffective assistance of trial counsel. On May 22, 2002, Defendant moved for summary judgment. On June 14, 2002, the State filed its response to Defendant's post-conviction petition and a motion to dismiss/motion for summary judgment. {¶ 4} Defendant objected to the untimeliness of the State's response. On July 5, 2002, the trial court granted the State's motion for leave to file its motion to dismiss/motion for summary judgment. On August 14, 2002, the trial court granted the State's motion to dismiss/motion for summary judgment. The trial court concluded that Defendant had failed to submit evidentiary documents containing sufficient operative facts to demonstrate substantive grounds for relief, on her claim of ineffective assistance of counsel. {¶ 5} Defendant timely appealed to this court from the trial court's judgment entry denying her petition for post conviction relief. FIRST ASSIGNMENT OF ERROR {¶ 6} "Does the trial court commit plain error in failing to enforce the statutory provisions set out in Section 2953.21 as to the dead lines placed upon the state in which it must answer, respond or move for summary judgment." {¶ 7} Defendant complains that the trial court committed plain error and violated her right to due process when it allowed the State to file its response/answer to Defendant's petition outside the time limits in R.C. 2953.21. Paragraph (D) of that section provides, in relevant part: {¶ 8} "Within ten days after the docketing of the petition, or within any further time that the court may fix for good cause shown, the prosecuting attorney shall respond by answer or motion." {¶ 9} A defendant is not entitled to a default judgment in post conviction proceedings. State v. Skelnar (1991), 71 Ohio App.3d 444;State v. Lovely (September 12, 1997), Greene App. No. 96CA142. The State is not required to file a response to a post conviction petition, and the trial court is not required to consider the State's response, if any, before ruling on the petition. State v. Hansbro (June 14, 2002), Clark App. No. 2001-CA-88. Moreover, the time provided in R.C. 2953.21(D) for the State to respond to Defendant's post conviction petition is directory only, not mandatory. Lovely, supra; Hansbro, supra. {¶ 10} The record demonstrates that the trial court granted the State's request for leave to file its answer/response to Defendant's petition beyond the time limits provided by R.C. 2953.21, and beyond the extension granted by the court to May 21, 2002, due to a heavy caseload. In granting the State's request, the trial court acted within the discretion conferred upon it by R.C. 2953.21(D). We see no error, much less plain error. {¶ 11} This assignment of error is overruled. SECOND ASSIGNMENT OF ERROR {¶ 12} "Does the trial court abuse its discretion when the court finds that no sufficient operative facts exist demonstrating ineffective assistance of counsel where counsel's investigation of the facts of the case did not extend to the time line contained within the indictment as there does exist discrepancies as to the dates of when benefits were received from the state and federal agencies?" THIRD ASSIGNMENT OF ERROR {¶ 13} "The trial court erred to the prejudice of the appellant in failing to find that counsel's performance did not fall below the objective standard of reasonable representation, in inducing appellant to enter a plea of guilty to the crime charged, without first providing an adequate investigation of the facts and law relevant to all plausible options available to appellant, where counsel failed to investigate the appellant's medical history, medication prescribed, mental culpability at the time of the offense, counsel's failure to move during the pre trial stage of the case for a physical and psychological evaluation for said same, evidencing counsel's ineffectiveness, rendering appellant's plea involuntary, unintelligent and unknowing, rendering her conviction void or voidable under the Sixth and Fourteenth Amendments to the United States Constitution, as well as Article One, Section's Ten and Sixteen of the Ohio State Constitution." {¶ 14} In these assignments of error Defendant argues that the trial court erred in finding that she had failed to set forth sufficient operative facts to demonstrate ineffective assistance of trial counsel. {¶ 15} In Strickland v. Washington (1984), 466 U.S. 668,104 S.Ct. 2052, the United States Supreme Court set forth the standard for judging claims of ineffective assistance of trial counsel: {¶ 16} "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. {¶ 17} "The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. {¶ 18} "With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Syllabus, 2. Accord: State v.Bradley (1989), 42 Ohio St.3d 136. {¶ 19} The charge to which Defendant pled guilty specified thatbetween November 1, 1998 and December 1, 2000, Defendant knowingly obtained property or services by deception. More specifically, Defendant was charged with welfare theft because she received public assistance benefits during this time period based upon her report that her son's social security benefits had been terminated, when in fact that was false. {¶ 20} Defendant claims that her counsel performed deficiently because he failed to investigate and discover discrepancies between the dates of the offense alleged in the indictment and the evidence/proof in this case. Specifically, Defendant claims that she did not receive any public assistance benefits during November 1998 because she was employed at that time, and therefore this offense could not have been committed during November as alleged in the indictment. Defendant's claim, even if true, does not demonstrate her innocence or provide her with a defense to the charge. {¶ 21} The indictment states that the offense occurred between November 1, 1998, and December 1, 2000. Defendant does not argue that she did not receive public assistance benefits during 1999 and 2000, time periods clearly covered by this indictment. The documents submitted by Defendant in support of her post conviction petition reveal that she did receive social security benefits during January-April 1999, and that she also received public assistance benefits during 1999 and 2000. Accordingly, there is no fatal variance between the dates of the charged offense and the proof/facts in this case. Defendant has failed to set forth sufficient operative facts to demonstrate that her counsel performed deficiently in failing to investigate this charge and the facts, much less any resulting prejudice sufficient to impair the knowing, voluntary character of Defendant's guilty plea. State v. Capper (November 13, 1998), Clark App. No. 97CA94. {¶ 22} Defendant additionally claims that her counsel performed deficiently because he failed to investigate her medical history including the numerous prescription medications she was taking. The evidence in this case fails to demonstrate that defense counsel even knew, or was ever made aware by Defendant or any other source of information, of any medical problems, much less whether those conditions existed at the time of the offense and were of such a nature and character as to impair Defendant's mental capacity to act "knowingly," the culpable mental state required to commit this offense. {¶ 23} Defendant claims that the presentence investigation report, which has not been included in the record presently before this court, demonstrates that before sentence was imposed defense counsel became aware of her medical condition. Defendant argues that her counsel performed deficiently because he failed, before sentencing, to move to withdraw Defendant's guilty plea, presumably because the effects of her medications impaired her ability to enter a knowing, voluntary plea. We disagree. {¶ 24} The record of Defendant's guilty plea proceeding affirmatively refutes her claim. State v. Jackson (1980),64 Ohio St.2d 107; State v. Kapper (1983), 5 Ohio St.3d 36. When Defendant entered her plea she told the trial court that she was not under the influence of alcohol or any drugs, that she had not ingested any such substances in the past seven days, that she understood her guilty plea petition and the plea proceedings, and that she was satisfied with defense counsel's representation. On this record no valid basis for withdrawing Defendant's guilty plea has been demonstrated. Hence, counsel's failure to raise that issue does not constitute ineffective assistance. {¶ 25} Defendant has failed to meet her burden of submitting evidentiary documents containing sufficient operative facts to demonstrate substantive grounds for relief, i.e. ineffective assistance of counsel. State v. Jackson, supra; State v. Calhoun, 86 Ohio St.3d 279,1999-Ohio-102. Defendant's own self-serving assertions and conclusions regarding the lack of competent counsel is insufficient to warrant an evidentiary hearing. {¶ 26} These assignments of error are overruled. The judgment of the trial court will be affirmed. FAIN, P.J. and BROGAN, J., concur.

2016-07-06 06:42:29.2803+00

DECISION AND JUDGMENT ENTRY {¶ 1} Appellants, Josh Drouard, Laura Drouard, John Hayes and Carol Hayes, appeal from a decision by the Lucas County Court of Common Pleas granting summary judgment in favor of appellee, United Services Automobile Association ("USAA"). For the reasons that follow, we affirm the decision of the trial court. *Page 2 {¶ 2} Appellants brought the instant action against USAA, asserting a cause of action for bad faith in connection with USAA's handling of a homeowner's insurance claim submitted by Josh and Laura Drouard.1 The Drouards and Hayeses filed the subject claim after a fire substantially damaged the Drouards' home.2 At the time of the fire, the Drouards were insured under a homeowner's insurance policy issued by USAA. The policy provided replacement cost coverage for the home and its contents, as well as additional living expense. {¶ 3} Immediately after the May 9, 2003 fire, the Drouards hired SMB Construction Company, Inc. to restore their property.3 SMB began work on July 7, 2003. In September 2003, as the result of a disagreement between the Drouards and SMB, SMB was dismissed from the job site. That same month, the Drouards retained Cousino Construction to complete the restoration. {¶ 4} While the restoration was in progress, a dispute arose between the Drouards and USAA regarding the amount of the loss. To resolve this dispute, the Drouards initiated proceedings in accordance with the appraisal process set forth in the homeowner's policy. As stated in the policy: *Page 3 {¶ 5} "If you and we do not agree on the amount of the loss, either party can demand that the amount of the loss be determined by appraisal. If either makes a written demand for appraisal, each will select a competent, independent appraiser and notify the other of the appraiser's identity within 20 days of the receipt of the written demand. {¶ 6} "The two appraisers will then select a competent, impartial umpire. If the two appraisers are not able to agree upon the umpire within 15 days, you and we can ask a judge of a court of record in the state where the residence premises is located to select an umpire. {¶ 7} "The appraisers will then set the amount of loss. If they submit a written report of any agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree within a reasonable time, they will submit their differences to the umpire. Written agreement signed by any two of these three will set the amount of the loss. Each appraiser will be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire will be equally paid by you and us." {¶ 8} The matter was submitted for appraisal under this provision on November 12, 2003. The Drouards selected Michael Cousino as their appraiser; USAA selected Mike Turocy as its appraiser; and George W. Van Doren was selected as the umpire. The appraisal was completed, and the amount of the loss awarded, on March 1, 2004. Immediately thereafter, USAA paid the amount of loss as determined by the appraisers in full. The Drouards accepted this payment. *Page 4 {¶ 9} On August 14, 2006, the trial court, relying upon the above-stated facts, granted summary judgment in favor of USAA and dismissed all of appellants' claims against it. Appellants timely appealed the trial court's judgment, raising the following assignment of error: {¶ 10} "THE COMMON PLEAS COURT COMMITTED PREJUDICIAL AND SUBSTANTIAL ERROR WHEN IT GRANTED SUMMARY JUDGMENT TO APPELLEE." {¶ 11} An appellate court reviewing a trial court's granting of summary judgment does so de novo, applying the same standard used by the trial court. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Civ.R. 56(C) provides: {¶ 12} "* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as considered in this rule. * * *" {¶ 13} Summary judgment is proper where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) when the evidence is viewed most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, a conclusion adverse to the nonmoving *Page 5 party. Ryberg v. Allstate Ins. Co. (July 12, 2001), 10th Dist. No. 00AP-1243, citing Tokles Son, Inc. v. Midwestern Indemnity Co. (1992),65 Ohio St.3d 621, 629. {¶ 14} The moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of fact as to an essential element of one or more of the non-moving party's claims.Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Once this burden has been satisfied, the non-moving party has the burden, as set forth at Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. {¶ 15} Appellants argue that the trial court erred in granting summary judgment, because a material issue of fact existed with respect to their bad faith claim. In Ohio, an insurer has a duty to act in good faith in handling the claims of its insured. Hoskins v. Aetna Life Ins. Co. (1983), 6 Ohio St.3d 272, paragraph one of the syllabus. "An insurer fails to exercise good faith in the processing of a claim of its insured where its refusal to pay the claim is not predicated upon circumstances that furnish reasonable justification therefore." Zoppo v. HomesteadIns. Co., 71 Ohio St.3d 552, at paragraph one of the syllabus. {¶ 16} We note that the duty of good faith extends beyond those scenarios involving an outright denial of payment for a claim. TOLAviation v. Intercargo Ins. Co., 6th Dist. Nos. L-05-1308, L-06-1050,2006-Ohio-6061, ¶ 50. Thus, even in cases where a claim is ultimately paid, "the insurer's foot-dragging in the claims-handling and evaluation process could support a bad-faith cause of action." Unklesbay v.Fenwick, 2d *Page 6 Dist. No. 2005-CA-108, 2006-Ohio-2630, ¶ 15; see also, Mundy v.Roy, 2d Dist. No. 2005-CA-28, 2006-Ohio-993 (finding a "refusal to pay" where insurer had disputed insured's alleged damages, rejected his settlement demands, and compensated him only after a jury rendered a verdict against it). {¶ 17} An insurer lacks reasonable justification for denying a claim when its refusal to pay is based upon an arbitrary or capricious belief that the insured is not entitled to coverage. Hoskins, supra, at 277. However, summary judgment is properly granted in an insurer's favor where the record is devoid of evidence tending to show a lack of good faith on the part of this insurer. Reece v. Grange Guardian Ins.Co., 6th Dist. No. L-03-1290, 2004-Ohio-5668, ¶ 31. {¶ 18} In support of their assertion that USAA handled their claim in bad faith, appellants point to evidence that in June of 2003, USAA adjuster John O'Donoghue contested several aspects of an estimate generated by the Drouards' first contractor, SMB. We initially note that O'Donoghue's objections (which were contained in a letter to SMB estimator Frank Reitmeier) were made months before the Drouards initiated the appraisal process described in the homeowner's policy, and, thus, were of questionable relevance, except to the extent that they demonstrated the disagreement between appellants and USAA regarding the amount of the loss. {¶ 19} We further note that while O'Donoghue's objections may have brought the original SMB estimate down, and while the resultant SMB estimate may have been lower than the amount that was ultimately awarded following the three-party formal appraisal *Page 7 process, there is no evidence to suggest that the stated objections were without reasonable justification, or were otherwise made in bad faith. Broadly stated opinion evidence by appellants' expert, Mike Cousino, that the estimates prepared by SMB and USAA were insufficient, is itself insufficient to establish a genuine issue of material fact regarding appellants' claim for bad faith. {¶ 20} Next, appellants point to evidence demonstrating that after the appraisal process got underway, USAA failed to make additional efforts — outside of the process — to resolve those matters in dispute. We reject appellants' suggestion that such a failure could reasonably be construed as evidence of a lack of good faith on the part of USAA. {¶ 21} Finally, our own review of the record reveals no evidence that would suggest a lack of good faith on the part of USAA in the processing of the Drouards' claim. Accordingly, summary judgment was properly granted in favor of USAA and against appellants in this case. Appellants' sole assignment of error is found not well-taken. {¶ 22} For all of the foregoing reasons, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County. JUDGMENT AFFIRMED. *Page 8 A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. Mark L. Pietrykowski, P.J. JUDGE Arlene Singer, J. JUDGE William J. Skow, J. JUDGE CONCUR. 1 Appellants' complaint also asserted causes of action for breach of contract, negligence, intentional infliction of emotional distress, and breach of fiduciary duty. But because none of these other claims are relevant to the current appeal, they will be given no additional consideration herein. 2 The Hayeses hold the first mortgage on the Drouards' home. 3 We note that SMB Construction Company, Inc. is both a defendant and counterclaimant in the underlying action. *Page 1

2016-07-06 06:42:29.310648+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellants, CMK, Ltd. and Riverside Development, Inc. (collectively referred to as "Petitioners"), appeal from the decision of the Lorain County Court of Common Pleas which affirmed the ruling of the Board of Commissioners of Lorain County (the "Board"). We affirm. I. {¶ 2} On October 25, 2001, Petitioners submitted a petition for annexation to the Board to annex approximately 53 acres of land from Columbia Township (the "Township") to the City of Strongsville ("Strongsville"). Petitioners are the sole owners of the 53 acres. The proposed annexation would result in the creation of four peninsulas of land remaining in the Township which would be bordered by Strongsville on three sides. The Board held a public hearing on January 17, 2002. The Board subsequently denied Petitioners' proposed annexation, finding that the territory was unreasonably large, and that the general good of the territory would not be served if the petition was granted. Petitioners appealed the Board's decision to the Lorain County Court of Common Pleas, which affirmed the denial of the annexation. {¶ 3} Petitioners appealed the trial court's decision to this Court. CMK, Ltd. v. Bd. of Cty. Commrs., 9th Dist. No. 02CA008185,2003-Ohio-4388. We found that the evidence necessary to review Petitioners' assignments of error was not included in the record on appeal. Id. at ¶ 12-13. Consequently, this Court presumed regularity in the trial court. Id. at ¶ 13. Petitioners filed a motion for reconsideration, arguing that the trial court failed to transmit the record to the clerk of the court of appeals. On September 5, 2003, this Court granted Petitioners' motion for reconsideration, vacated the prior decision, and reinstated the appeal. {¶ 4} Petitioners assert two assignments of error. We will address the assignments of error together to facilitate review. II. First Assignment of Error "The Trial Court's Affirmative Of The Majority Of The Lorain County Board Of Commissioners' Denial Of The Annexation Petition Filed By The Sole Owners Of The Property To Be Annexed, Which Property Consisted Of Only 53 Acres And Shares A 1240 Feet Contiguous Border With The City Of Strongsville. As A Matter Of Law, Constitutes An Abuse Of Its Discretion, And Is Contrary To The Manifest Weight Of The Evidence." [sic] Second Assignment of Error "The Trial Court's Affirmance Of The [Board] Of Commissioners' 2-1 Denial Of Sole Owners' Annexation Petition Is Error Because [Such Denial Is Not Supported] By A Preponderance Of Reliable Substantial And Probative Evidence In The Record." {¶ 5} In their first assignment of error, Petitioners assert that the trial court's decision to affirm the Board's denial of the annexation petition constitutes an abuse of discretion as a matter of law and is against the manifest weight of the evidence. In their second assignment of error, Petitioners assert that the trial court's decision is not supported by a preponderance of reliable, substantial and probative evidence in the record. We disagree. {¶ 6} An order denying a petition to annex a property may be appealed pursuant to R.C. 2506.01. Smith v. Granville Twp. Bd. ofTrustees (1998), 81 Ohio St.3d 608, 612. The scope of review by a court of such an administrative order is defined in R.C. 2506.04, which states: "The court may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body appealed from with instructions to enter an order, adjudication, or decision consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law as provided in the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code." {¶ 7} The administrative ruling is initially appealed to the court of common pleas, which weighs the evidence in the record and may consider new or additional evidence. Smith, 81 Ohio St.3d at 612, citingDudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 207. The decision of the court of common pleas may then be appealed to an appellate court on questions of law. Smith, 81 Ohio St.3d at 613. An appellate court's function, however, does not involve a determination as to the weight of the evidence. In re Annexation of 1,544.61 Acres, (1984), 14 Ohio App.3d 231, 233. This Court's inquiry is limited to a determination of whether we can say, as a matter of law, that the decision of the common pleas court is not supported by a preponderance of reliable, probative and substantial evidence. Kisil v. Sandusky (1984),12 Ohio St.3d 30, 34; see, also, Dudukovich, 58 Ohio St.2d at 208. {¶ 8} The applicable statute governing annexations provides that the board of county commissioners shall hold a hearing on the petition to annex and allow the annexation if it finds that: "(A) The petition contains all matter required in section 709.02 of the Revised Code. "(B) Notice has been published as required by section 709.031 [709.03.1] of the Revised Code. "(C) The persons whose names are subscribed to the petition are owners of real estate located in the territory in the petition, and as of the time the petition was filed with the board of county commissioners the number of valid signatures on the petition constituted a majority of the owners of real estate in the territory proposed to be annexed. "(D) The municipal corporation to which the territory is proposed to be annexed has complied with division (B) of section 709.031 [709.03.1] of the Revised Code. "(E) The territory included in the annexation petition is not unreasonably large; the map or plat is accurate; and the general good of the territory sought to be annexed will be served if the annexation petition is granted." R.C. 709.033.1 {¶ 9} The statute provides that, before an annexation petition may be granted, the board must make all of the prescribed findings. In the present case, the Board found that the territory is unreasonably large and the general good of the territory will not be served if the petition is granted. Consequently, the Board denied the petition. General Good of the Territory {¶ 10} In determining the general good of the territory to be annexed, the choice of the property owner is a key factor. Smith,81 Ohio St.3d at 614. "Whether the proposed annexation will serve the general good of the inhabitants and owners of the territory sought to be annexed is a factual determination within the discretion of the board of county commissioners." Middletown v. McGee (1988), 39 Ohio St.3d 284,288. However, when considering a sole property owner annexation, it is important not to do a comparison of services to determine what is for the general good of the territory. Smith, 81 Ohio St.3d at 615, citing Smithv. Granville Twp. Bd. of Trustees (Oct. 8, 1996), 5th Dist. No. 96CA98. Unless it is shown that the city is unable to provide adequate services, the board may not use services as a justification to deny annexation. Id. {¶ 11} In support of its finding that the general good of the territory would not be served by granting the annexation, the Board found that (1) although sewers were not available outside of Strongsville at the time the petition was filed, there are negotiations for the availability of sewers in the Township; (2) the zoning the Petitioners seek will soon be available in the Township; (3) Petitioners will have to obtain rezoning once annexed into Strongsville; (4) a recent annexation involving different parties did not result in the preferred zoning, and those landowners now wish to come back into the Township; and (5) the Township will offer zoning that is closest to what the Petitioners seek. {¶ 12} The factors cited by the Board compare the zoning and services of the Township with that of Strongsville. Given that this is a sole property owner annexation, it was improper for the Board to compare services to determine what is for the general good of the territory. See Smith, 81 Ohio St.3d at 615. Upon review of the evidence, we find that, as a matter of law, the Board's decision that the general good of the territory would not be served by annexation is not supported by a preponderance of reliable, probative and substantial evidence. Kisil,12 Ohio St.3d at 34. Unreasonably Large {¶ 13} Although the Board erred in finding that the general good of the property would not be served by annexation, the Board also based its decision to deny the annexation on the finding that the territory was unreasonably large. When considering whether an area to be annexed is unreasonably large, a board should consider the following: "(1) the geographic character, shape, and size of the territory to be annexed in relation to the territory to which it will be annexed, and in relation to the territory remaining after the annexation is completed; (2) the ability of the annexing city to provide the necessary municipal services to the added territory; and (3) the effect on remaining township territory if annexation is permitted." In re: The Proposed Annexation of222.71 Acres (Sept. 12, 2001) 9th Dist. No. 20563, citing In re:Annexation of 1,544.61 Acres (1984), 14 Ohio App.3d 231, 233. {¶ 14} The first factor requires us to consider the geographic character, shape and size of the territory as it relates to both Strongsville and the Township. In support of its finding that the territory was unreasonably large, the Board found that the "zigzag shape" of the territory, due to the creation of four peninsulas, would have a detrimental impact upon the territory to be annexed due to the following reasons: (1) difficulty controlling surface water drainage; (2) confusion in the provision of emergency services; (3) unnecessary duplication in the installation of utility services and the creation of disputes regarding those services; and (4) complexity in addressing houses. {¶ 15} The Board also addressed the third factor in determining whether a territory is unreasonably large, and found that the portions of the territory which remained in the Township after annexation would suffer the same problems described above. {¶ 16} The evidence regarding surface water drainage included testimony from Mr. Carney, the Sanitary Engineer for Lorain County. Mr. Carney testified that the county departments would be able to handle any storm water issues in the Township after annexation. Philip Degrout, a civil engineer who specializes in hydrology and water resources, testified that annexing this land to Strongsville would likely cause more flooding and erosion in the Township. {¶ 17} An appellate court's function does not involve a determination as to the weight of the evidence. In re Annexation of 1,544.61 Acres, 14 Ohio App.3d at 233. Given this Court's very limited review, we cannot say, as a matter of law, that the Board's decision was not supported by a preponderance of reliable, probative and substantial evidence. {¶ 18} The trial court did not err in finding that the Board's decision that the territory was unreasonably large was supported by a preponderance of reliable, probative and substantial evidence. Consequently, Petitioners' assignments of error are overruled. III. {¶ 19} Petitioners' assignments of error are overruled, and the judgment of the Lorain County Court of Common Pleas is affirmed. Judgment affirmed. SLABY, P.J., BAIRD, J. 1 The current version of R.C. 709.033 was effective October 26, 2001. Petitioners filed their petition on October 25, 2001; therefore, we apply the previous version of the statute.

2016-07-06 06:42:29.341238+00

DECISION. {¶ 1} Defendant-appellant Billy Earls appeals his conviction for having a weapon while under a disability, a violation of R.C.2923.13(A)(2). In his single assignment of error, Earls challenges the constitutionality of the statute, claiming that it is overbroad because it allows a juvenile adjudication of delinquency to establish the disability element of the offense. We affirm. {¶ 2} In November 2003, police officers responded to reports of gunshots and observed Earls lay a silver pistol on the ground. Earls was arrested and charged with violating R.C. 2923.13(A)(2), which criminalizes having a weapon while under a disability. Earls's disability was a previous juvenile adjudication for robbery. {¶ 3} The statute states, "Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence." {¶ 4} Under the Revised Code, a juvenile adjudication can serve as a disability under R.C. 2923.13(A)(2). Not only is that clearly what R.C. 2923.13(A)(2) states, but R.C. 2151.358(H) allows a juvenile adjudication to be entered into evidence. That statute states, "Evidence of a judgment rendered and the disposition of a child under that judgment is not admissible to impeach the credibility of the child in any action or proceeding. Otherwise, the disposition of a child under the judgmentrendered or any evidence given in court is admissible as evidencefor or against a child in any action or proceeding in any courtin accordance with the Rules of Evidence and also may be considered by any court as to the matter of sentence or to the granting of probation." (Emphasis added.) {¶ 5} In State v. Bonner,1 the Twelfth Appellate District affirmed the defendant's conviction under R.C.2923.13(A)(2) and held that the state could use the defendant's prior delinquency adjudication to prove that the defendant was under a disability. The Tenth Appellate District came to the same conclusion in State v. Kelly,2 where it rejected the defendant's argument that it was ineffective assistance of counsel for his trial attorney not to challenge the state's use of a juvenile adjudication as the predicate disability under R.C.2923.13(A)(2). {¶ 6} Thus, a juvenile adjudication is admissible and can serve as the predicate offense for a disability under R.C.2923.13(A)(2). But Earls claims that his case is distinguishable from Bonner and Kelly. He contends that, in those cases, the defendants challenged the use of the juvenile adjudications only as an evidentiary matter. Earls apparently is not challenging the admission into evidence of his juvenile adjudication, but is instead challenging the constitutionality of R.C. 2923.13(A)(2). He claims that it is overbroad because it prohibits activities that are constitutionally protected. {¶ 7} Earls argues that our legal system treats the behavior of a juvenile differently than that of an adult. As part of the difference, juvenile records of adjudication are sealed.3 Once sealed, the adjudications are treated as if they never occurred. Earls argues that people with juvenile adjudications are not on notice that they have a disability that can later be used as a predicate offense under R.C. 2923.13(A)(2), should they choose to carry a weapon. Thus, he argues, the constitutionally protected behavior of carrying a weapon is prohibited for some people, even though it is innocent conduct. {¶ 8} While Earls claims that R.C. 2923.13(A)(2) is unconstitutional because it is overbroad, we note that similar challenges to this statute have been made in other cases. In some cases, the defendants have argued that the statute is overbroad, and in other cases, the defendants have claimed that because they did not have notice that they were under a disability, a conviction under R.C. 2923.13(A)(2) violated their Fourteenth Amendment rights to due process. But despite different framings of the argument, all the challenges contend, just as Earls does here, that without notice of the underlying disability, the defendant's conviction under R.C. 2923.13(A)(2) is unconstitutional. {¶ 9} The Ohio Supreme Court has expressly declined to address the issue of whether a defendant is entitled to notice of his disability status.4 But Ohio appellate courts have repeatedly held that notice of disability status is not an essential element of R.C. 2923.13(A)(2).5 In reading the statute, the courts have noted that it does not require proof that the defendant had knowledge of his underlying personal disability. Rather, the statute requires only that the defendant "knowingly" acquired, had, carried, or used a firearm or dangerous ordnance while such a disability existed. Thus, a defendant need only have knowledge as to the possession element of the offense and not knowledge of a disability. {¶ 10} Because the plain language of the statute does not support the contention that notice to the defendant of his disability status is an essential element of the offense, there is no constitutional violation when the defendant claims that he did not receive notice that he was under a disability. The courts have repeatedly held that ignorance of the law is no defense to a criminal prosecution, and that any previous indictment or criminal conviction should alert a defendant to potential restrictions upon his normal activity.6 {¶ 11} We agree and conclude that this reasoning is valid regardless of whether the defendant's disability is due to a previous indictment, a criminal conviction, or a juvenile adjudication of delinquency. The type of disability does not matter, because the plain language of the statute does not require that the defendant have knowledge that he is under a disability, just that he is under a disability while he knowingly acquires, has, carries, or uses a weapon. {¶ 12} In State v. Conwell,7 the Ninth Appellate District held that even though the defendant's juvenile record had been sealed, his juvenile adjudication for felonious assault still placed the defendant under a disability. The court affirmed his conviction under R.C. 2923.13(A)(2), holding that the state was not required to prove that the defendant had knowledge of his disability. The court then stated in dicta that the only manner of relieving a disability was set forth in R.C. 2923.14. The sealing of a juvenile's record is not listed under R.C. 2923.14 as relieving the disability. {¶ 13} We conclude that R.C. 2923.13(A)(2) is not unconstitutional on the grounds of being overbroad or for violating a defendant's due-process rights. In this case, because the state was allowed to admit into evidence Earls's previous adjudication of delinquency, and because R.C. 2923.13(A)(2) did not require the state to give Earls any notice that he was under a disability, Earls's conviction was not unconstitutional. Therefore, we overrule his assignment of error and affirm the trial court's judgment. Judgment affirmed. Doan, P.J., and Gorman, J., concur. 1 See State v. Bonner (Mar. 28, 1994), 12th Dist. No. CA93-09-176. 2 See State v. Kelly (Aug. 22, 2000), 10th Dist. No. 99AP-1302. 3 R.C. 2151.358(C). 4 See State v. Taniguchi, 74 Ohio St.3d 154, 156,1995-Ohio-163, 656 N.E.2d 1286, fn. 1. 5 See State v. Smith (1987), 39 Ohio App.3d 24, 25,528 N.E.2d 1292; State v. Frederick (July 17, 1989), 12th Dist. Nos. CA88-07-111 and CA88-07-118; State v. Toddy (Mar. 30, 2001), 11th Dist. No. 2000-A-0004; State v. Schilling (Sept. 19, 2000), 5th Dist. No. 2000AP040034; State v. Gibson (Nov. 21, 1991), 8th Dist. No. 59541; State v. Gabriel (Dec. 28, 1994), 7th Dist. Nos. 92CA114 and 93CA5; State v. Russell (Jun. 30, 1998), 4th Dist. No. 97CA37; State v. Quiles (Feb. 3, 1993), 9th Dist. No. 92CA005316; State v. Jackson (Oct. 20, 1993), 9th Dist. No. CA16086; State v. Wooden (Feb. 11, 1998), 9th Dist. No. 18448. 6 Id. 7 See State v. Conwell (Apr. 12, 2000), 9th Dist. No. 19482.

2016-07-06 06:42:29.929027+00

OPINION Defendant-appellant Douglas McDaniel appeals his conviction and sentence in the Delaware County Court of Common Pleas on one count of involuntary manslaughter with a gun specification. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE On January 6, 1997, appellant was drinking and smoking marijuana with his cousin, Shane Gale; the decedent, Marissa Griffin; and Matt Long. Von Lewis was also present, but did not partake of the marijuana and alcohol. They were gathered in the living room of a house at 119 North Union Street in Delaware, Ohio. During the party, Gale produced a twelve gauge shotgun, which he had borrowed from a friend. Gale allegedly told appellant the gun was unloaded. Appellant took the gun and proceeded to pump it, which caused the weapon to discharge. A bullet struck Marissa Griffin above the right eye, and passed through her head. Griffin died as a result of this wound. Appellant, Gale, Long, and Lewis were taken to the Delaware City Police Department. Appellant submitted to a blood alcohol test. The results revealed a BAC level of .026 percent. The police performed no tests to determine whether other drugs were present in appellant's system. During an interview with appellant, officers asked him to describe how "high" he felt. Appellant indicated he felt he was intoxicated at a level of 8, on a scale of 1 to 10. On January 24, 1997, the Delaware County Grand Jury indicted appellant on one count of involuntary manslaughter, in violation of R.C. 2903.04, with a firearm specification, pursuant to R.C.2941.141(A). The indictment also charged appellant with one count of negligent homicide, in violation of R.C. 2903.05 Appellant's trial began on June 16, 1997. During the course of the trial, Shane Gale testified he was unable to remember the events of January 6, 1997. Gale further testified he had been truthful before the Grand Jury, but was unable to recall the questions he had been asked and the answers he had given. The State moved to have Gale's grand jury testimony read into the record pursuant to Evid.R. 803(5), as a past recollection recorded. Defense counsel objected. The trial court overruled the objection. Thereafter, the court reporter read the testimony into the record. When the State recalled Gale to the stand two days later, he remained unable to recollect his grand jury testimony. Gale again testified he was truthful in his testimony to the Grand Jury. Defense counsel then cross-examined Gale. The State also introduced evidence of the combined effects of marijuana and alcohol. Detective Leatherman testified the combined effects of marijuana and alcohol might produce an intoxication level higher than that revealed by a BAC test. Defense counsel objected to this evidence. The trial court overruled the objection. At the close of evidence, the trial court instructed the jury on the applicable law. The trial court further instructed the jury not to consider the charge of negligent homicide unless they found appellant not guilty of involuntary manslaughter. After deliberations, the jury found appellant guilty of involuntary manslaughter with a firearm specification.1 On August 22, 1997, the trial court sentenced appellant to four years in prison on the involuntary manslaughter charge, and one year on the gun specification. The court ordered these terms to run consecutively. This verdict and sentence were memorialized in judgment entries dated June 19, 1997, and August 22, 1997, respectively. It is from these judgment entries appellant prosecutes this appeal, raising the following two assignments of error: I. THE TRIAL COURT ERRED IN ADMITTING SHANE GALE'S GRAND JURY TESTIMONY. II. THE TRIAL COURT ERRED IN PERMITTING TESTIMONY ABOUT THE CUMULATIVE EFFECTS OF ALCOHOL AND MARIJUANA. I In his first assignment of error, appellant argues the trial court erred in admitting Shane Gale's grand jury testimony. Appellant predicates his argument on Gale's inability to verify the accuracy of the testimony, and defense counsel's lack of opportunity to cross-examine Gale. Under Evid.R. 803(5), testimony may be introduced into the record if it is a past recollection which is recorded. Evid.R. 803 states, in pertinent part: The following are not excluded by the hearsay rule, even though the declarant is available as a witness. * * * (5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. We first address appellant's argument regarding Gale's inability to verify the accuracy of his grand jury testimony. In order for a memorandum to be introduced into evidence under Evid.R. 803(5), the witness whose testimony it contains must confirm its accuracy. State v. Scott (1972), 31 Ohio St.2d 1,6. In State v. Davis (Dec. 10, 1993), Lake App. No. 92-L-089, unreported, the Eleventh District Court of Appeals held the trial testimony of a witness affirming his statements before the Grand Jury were truthful is sufficient to satisfy the requirements set forth in Scott, supra. Id. In the instant action, Gale testified at trial on two separate occasions he was truthful before the Grand Jury. Tr. Vol. III, pp. 437, 443. In accordance with Davis, supra, we find Gale's testimony regarding the truthfulness of his grand jury testimony, despite his inability to recall the testimony, is sufficient to satisfy the requirement a witness must vouch for the accuracy of his testimony as set forth in Scott, supra. Because Gale's grand jury testimony was admissible under Evid.R. 803(5), which exception applies whether the declarant is available or unavailable, we find it unnecessary to address appellant's argument the testimony was inadmissable under Evid.R. 804(B)(1) because Gale was unavailable. Appellant's first assignment of error is overruled. II In appellant's second assignment of error, he maintains the trial court erred in admitting testimony of the cumulative effects of marijuana and alcohol. Appellant contends the legislature did not intend for the cumulative effects of drugs and alcohol to be considered in charges relating to the use of a firearm while intoxicated pursuant to R.C. 2923.15. Appellant explains an analysis of the language of R.C. 2923.15 reveals this intention. R.C. 2923.15 reads, in pertinent part: (A) No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordinance. * * * Appellant argues the phrase "alcohol or any drug of abuse" excludes the presentation of evidence of the combined effects of drug and alcohol (Emphasis added). This Court previously had the opportunity to consider this issue in State v. Van Almen (Oct. 29, 1980), Stark App. No. 5391, unreported. While the Van Almen appellant did not specifically assign as error the presentation of evidence of the combined effects of drugs and alcohol, this Court held it was proper for the jury to weigh evidence of the combined effects of drugs and alcohol in cases charged under R.C. 2923.15. Id. at 506. Upon review, we adhere to Van Almen and conclude the trial court did not err in admitting evidence of the combined effects of drugs and alcohol in the case sub judice. Appellant's second assignment of error is overruled. The judgment of the Delaware County Court of Common Pleas is affirmed. By: Hoffman, J., Gwin, P.J. and Wise, J. concur. For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed to appellant. 1 The negligent homicide charge was subsequently dismissed.

2016-07-06 06:42:27.471147+00

McCormac

Plaintiff-appellant, Jayne Miles, was a passenger in a 1978 General Motors Corporation motor home which collided with a guardrail, causing the gas tanks to rupture. The gasoline, which escaped, caught fire. While attempting to leave from the only exit door in the motor home, plaintiff received severe burns. Plaintiff originally joined General Motors Corporation ("GMC"), the manufacturer; George Byers Sons, Inc. ("Byers"), the original seller of the motor home; General Tire Rubber Co. ("GTR"), the manufacturer of the tires used on the motor home; and BCJ Corporation ("BCJ"), the lessor of the motor home, as defendants. The primary thrust of plaintiff's claims was that the GMC motor home was defective in its design, since the only exit door was located directly over the gasoline tanks, and that the tires placed on the motor home were overloaded and not appropriate for that type of vehicle. At the close of plaintiff's opening statement, the trial court directed a verdict in favor of BCJ. GTR and Byers received directed verdicts at the conclusion of plaintiff's case. The jury returned a verdict in favor of plaintiff against defendant GMC in the amount of $60,000. Plaintiff subsequently executed covenants not to sue with GMC, GTR and Byers. This appeal is against BCJ only. Plaintiff has asserted the following assignments of error: "1. The Trial Court erred in directing a verdict in favor of Defendant, BCJ, Inc., after Plaintiff's amended opening statement. "2. The Trial Court erred in excluding the General Tire Rubber Co. recall letters. "3. The Trial Court erred in permitting Officer Jenis to testify that Axel Baudach (the driver of the motor home) told him in the emergency room, `I may have dozed off for a second.'" In her complaint, plaintiff alleged that *Page 188 BCJ is an Ohio corporation with its principal place of business in Columbus and that it was formed for the purpose of leasing motor homes, including the motor home involved in this case. BCJ answered, admitting those allegations. Plaintiff also alleged that the motor home was defectively designed because of the location of the only exit door from the motor home over the gas tanks, and that tires were installed on the vehicle which were overloaded and likely to rupture. Plaintiff further alleged that defendants knew of these defects and failed to give notice to the lessee. BCJ denied the allegations of defects and failure to warn. Plaintiff gave a lengthy opening statement to the jury where the nature of the motor home and its alleged defects were described in detail. The only reference to BCJ was that it leased the motor home to plaintiff's parents, who were also occupants at the time of the crash and fire. Following the opening statement, BCJ moved for a directed verdict, which was granted, and BCJ was dismissed from the case. The trial court gave no reason for the directed verdict nor was any reason requested on the record. The primary issue is whether the trial court erred in directing a verdict against plaintiff in favor of BCJ based upon the allegations of the opening statement. From the opening statement and pleadings, it must be assumed that BCJ is a commercial entity whose business is leasing motor homes and that it leased a motor home that was defectively designed to plaintiff's parents for her use also and that, as a result of the defective design or overloading of the tires, plaintiff was proximately injured. The size or volume of BCJ's business as a commercial entity leasing motor homes was not before the trial court when it granted a directed verdict on the opening statement. As recently stated by the Ohio Supreme Court: "A trial court should exercise great caution in sustaining a motion for a directed verdict on the opening statement of counsel; it must be clear that all the facts expected to be proved, and those that have been stated, do not constitute a cause of action * * * and the statement must be liberally construed in favor of the party against whom the motion has been made." Brinkmoeller v. Wilson (1975), 41 Ohio St. 2d 223 [70 O.O.2d 424], syllabus. A directed verdict can only be sustained if a lessor of motor homes has no responsibility for injuries caused by the defective design of a motor home commercially leased by it. In Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317 [4 O.O.3d 466], paragraph one of the syllabus, the Supreme Court held that there is a cause of action in strict liability against one who sells a product in a defective condition unreasonably dangerous to the user or consumer for physical harm thereby caused if the seller is engaged in the business of selling such a product which is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.Temple was predicated upon Section 402A of Restatement of Torts 2d. In paragraphs one and two of the syllabus of Leichtamer v.American Motors Corp. (1981), 67 Ohio St. 2d 456 [21 O.O.3d 285], the Supreme Court adopted Section 402A for design defects as follows: "1. A cause of action for damages for injuries caused or enhanced by a product design defect will lie in strict liability in tort. (Temple v. Wean United, Inc., 50 Ohio St. 2d 317 [4 O.O.3d 466], approved and followed.) "2. A product is in a defective condition unreasonably dangerous to the user or consumer if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." See, also, Knitz v. *Page 189 Minster Machine Co. (1982), 69 Ohio St. 2d 460 [23 O.O.3d 403]. BCJ argues that Temple, Leichtamer and Knitz apply only to sellers and manufacturers and do not apply to lessors even though the lessor may be in the business of leasing the product. Plaintiff concedes that the consumer expectation test for strict liability for design defects has not specifically been extended to lessors in Ohio, but argues that such extension should be made in accordance with the trend in other jurisdictions and the weight of authority. There is no logical reason to distinguish commercial lessors from manufacturers or sellers for the application of strict liability for dangerously defective goods. Commercial lessors, like manufacturers and sellers, regularly introduce potentially dangerous products into the stream of commerce and similarly are in a better financial and technical position than lessees to insure against the risk of injuries from defectively designed products. Commercial lessors are also better able to analyze the potential danger of a product than lessees since they deal regularly with the product. See Brimbau v. Ausdale Equip. RentalCorp. (R.I. 1982), 440 A.2d 1292. Jurisdictions which have held that commercial lessors should be held strictly liable for leasing defective products are as follows: Bachner v. Pearson (Alaska 1970), 479 P.2d 319; Lechuga, Inc. v. Montgomery (1970),12 Ariz. App. 32, 467 P.2d 256; Price v. Shell Oil Co. (1970),2 Cal. 3d 245, 466 P.2d 722; McClaflin v. Bayshore Equip. RentalCo. (1969), 274 Cal. App. 2d 446, 79 Cal. Rptr. 337; Martin v.Ryder Truck Rental, Inc. (Del. 1976), 353 A.2d 581; Stewart v.Budget Rent-A-Car Corp. (1970), 52 Haw. Hawaii, 470 P.2d 240;Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272,274 N.E.2d 178; Crowe v. Public Building Comm. of Chicago (1978), 74 Ill. 2d 10, 383 N.E.2d 951;Perfection Paint Color Co. v. Konduris (1970), 147 Ind. App. 106, 258 N.E.2d 681; Gabbard v.Stephenson's Orchard, Inc. (Mo.App. 1978), 565 S.W.2d 753;Cintrone v. Hertz Truck Leasing Rental Service (1965), 45 N.J. 434, 212 A.2d 769; Stang v. Hertz Corp. (1972), 83 N.M. 730,497 P.2d 732; Nastasi v. Hochman (1977), 58 A.D.2d 564,396 N.Y.S.2d 216; Dewberry v. LaFollette (Okla. 1979),598 P.2d 241; Fulbright v. Klamath Gas Co. (1975), 271 Ore. 449,533 P.2d 316; Tillman v. Vance Equip. Co. (1979), 286 Ore. 747,596 P.2d 1299; Francioni v. Gibsonia Truck Corp. (1977), 472 Pa. 362,372 A.2d 736; Nath v. National Equip. Leasing Corp. (1981), 497 Pa. 126, 439 A.2d 633; Brimbau v. Ausdale Equip. Rental Corp.,supra; Rourke v. Garza (Tex.Civ.App. 1974), 511 S.W.2d 331;George v. Tonjes (D.C. Wis. 1976), 414 F. Supp. 1199. The trial court erred in directing a verdict for BCJ because there was a reasonable basis to hold BCJ, a commercial lessor, liable to plaintiff, a user, for injuries sustained from use of the motor home that was alleged to be in a defective condition because of design. Furthermore, plaintiff should have been accorded the opportunity to show that BCJ was aware that the tires supplied with the motor home were inadequate for its load as a basis for liability, and that it failed to warn plaintiff of that defect, since the opening statement gave rise to a possible claim against BCJ and not all evidence supporting the claim need be stated. BCJ argues that even if strict liability principles are held to include commercial rental and lease transactions, occasional or isolated transactions should not be included. That rule may be applicable to non-commercial, occasional lessors, see Bachner v.Pearson, supra, but that distinction should not be drawn based upon the amount of activity of a corporation formulated for the purpose of engaging in the business of leasing the product involved. Instead, the inquiry should be whether the lessor is in the business of leasing the product in the same sense as a *Page 190 seller of a product is in the business of manufacturing, selling or retailing the product. See Price v. Shell Oil Co., supra;Nastasi v. Hochman, supra. BCJ also argues that if there was error it was not prejudicial to plaintiff. This argument is predicated upon the fact that plaintiff recovered a jury verdict against GMC in the sum of $60,000, which as stated would include all damages that plaintiff would be entitled to even had the judgment been joint and several against GMC and BCJ. However, there is no evidence before this court that the judgment has been fully satisfied. The effect of plaintiff's judgment against GMC is a matter that may be explored by the trial court upon remand. Plaintiff next asserts that the trial court erred in excluding the GTR recall letter. BCJ was not involved in this ruling because BCJ had been dismissed as a party-defendant after the opening statement and before the attempted introduction of this evidence. However, plaintiff asserts the error in order to avoid a claim that the trial court's ruling establishes the law of the case for future trials if the claimed error was not asserted on appeal and for the purposes of judicial economy in the event that this issue arises in a future trial. GTR recalled the radial tires used on the GMC motor home involved herein sometime after the accident on the basis of their determination that the tires "when used in conjunction with a GMC motor home contain a defect which relates to motor vehicle safety * * *." The issue, as far as BCJ is concerned for future litigations, is whether the recall letter is admissible to prove a defect in the motor home by being equipped with insufficient tires. The recall letter is not admissible against BCJ. It is hearsay designed to prove the truth of the matter stated therein, which is that "defective" tires were used on the GMC motor home. There is no exception to the hearsay rule that is applicable to BCJ. Hence, the recall letter is not admissible against BCJ. Plaintiff's second assignment of error is overruled. Plaintiff finally asserts that the trial court erred in permitting Officer Jenis to testify that Axel Baudach, the driver of the motor home, told him in the emergency room that "I may have dozed off for a second." Axel was a seventeen-year-old German exchange student who was driving the vehicle at the time that it collided with the guardrail. He was taken to the hospital where he was questioned by Jenis while being treated for injuries sustained in the accident. At the hospital, Jenis had already concluded that the accident occurred because the driver had fallen asleep. The officer asked Axel if he had fallen asleep, and Axel stated that he had not. Jenis then testified that he stated his reasons to Axel as to why he felt that Axel had fallen asleep and that Axel then said, "Well, I may have dozed off for a second." The trial court admitted Officer Jenis' statement as an exception to the hearsay rule pursuant to Evid. R. 803(2), entitled "Excited utterance." To be an excited utterance, it must be "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Considerations that are to be taken into account to determine whether an utterance qualifies as an excited utterance under the exception to the hearsay rule are: "* * * (a) the lapse of time between the event and the declaration, (b) the mental and physical condition of the declarant, (c) the nature of the statement and (d) the influence of intervening circumstances." See Staff Note, Evid. R. 803(2). There is discretion on the part of the trial court in weighing these factors. However, the testimony shows that the response was not a spontaneous excited utterance but a considered answer in *Page 191 response to questions. While it may qualify as a statement against interest pursuant to Evid. R. 804(B)(3), if the circumstances required by that rule can be established, it was not properly admitted as an excited utterance. Also, assuming that the proper foundation was established, as required by Evid. R. 613(B), the statement could be admissible as extrinsic evidence of a prior inconsistent statement of a witness. The foundation laid at trial was initially insufficient, as the witness was only asked if he had testified to what he told the police officer without being asked specifically about the claimed statement. However, in rebuttal, Axel was permitted to explain the circumstances and he denied making the statement. The error, if any, of the trial court was not prejudicial since the statement was not admitted against BCJ, which had previously been dismissed from the case. Plaintiff's third assignment of error is overruled. Plaintiff's first assignment of error is sustained and plaintiff's second and third assignments of error are overruled. The judgment of the trial court, as respects BCJ, is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. Judgment reversed and case remanded. WHITESIDE, P.J., and MOYER, J., concur.

2016-07-06 06:42:27.911065+00

Nichols

Sarah Pitzer brought her action in the Common Pleas Court of Trumbull county against Sears, Roebuck Company, praying damages for personal *Page 36 injuries received by her on December 17, 1937, at about 12:30 p.m., when she stepped to the sidewalk from an automobile parked in front of defendant's store and immediately fell over a keg of sand, which she claims defendant had placed on the sidewalk a few inches inside the curb. In her petition, plaintiff alleges that defendant was "negligent" in the following respects, to wit: "First: In placing and permitting an obstacle and obstruction on the sidewalk and street in front of the defendant's store at No. 155 South Park avenue, Warren, Ohio, with knowledge of the placement and maintenance of said obstacle and obstruction, and of the volume of pedestrians and traffic at said point. "Second: In failing to have any warning, signal or other notice of the existence of said obstruction and obstacle to persons including this plaintiff using said sidewalk at the times herein named. "Third: In failing to exercise ordinary care by placing upon the sidewalk said tub or bucket of sand which this plaintiff had no means or way of seeing as she alighted from her automobile. "Fourth: That the defendant placed said bucket or tub of sand on said dedicated public sidewalk in a dangerous and careless place and manner." For its answer, defendant admitted that on the date alleged it was doing business in the state of Ohio, and was operating a store at No. 155 South Park avenue, in the city of Warren, and that at or near the time and place alleged in the petition plaintiff fell and sustained injuries, but denied that plaintiff was injured in the manner or to the extent alleged, and denied that it was guilty of any negligence directly and proximately causing her injuries. The further allegations of the petition are denied and the answer alleges that the injuries and damages sustained by plaintiff were caused by her own negligence. Plaintiff's reply denies that she was guilty of any *Page 37 act of negligence whatsoever directly and proximately contributing to her injuries and damages. The trial resulted in a verdict of the jury in favor of plaintiff in the sum of $750. Judgment having been entered on the verdict in favor of plaintiff, the defendant prosecutes appeal to this court on questions of law, a number of grounds of error being set forth for the reversal of the judgment below, and it being the further claim of defendant that it was entitled to final judgment upon the several motions made by it for directed verdict and for judgment notwithstanding the verdict. Defendant's motions for directed verdict and for judgment notwithstanding the verdict, made in the trial court, and its claim for final judgment in this court are based upon two propositions: First, it is claimed that plaintiff's action is one founded upon negligence as distinguished from nuisance, because in the petition the pleader has chosen to say that defendant "negligently" caused the tub or bucket over which plaintiff fell to be placed on the sidewalk and allowed the same to remain thereon, and it is contended by defendant that the evidence establishes that this tub was placed on the sidewalk by an independent contractor for whose negligence defendant is not responsible; and second, it is claimed that the evidence is insufficient to warrant the trial court submitting the issue to the jury upon the ground of negligence. With neither of these contentions are we able to agree. The mere fact that plaintiff in describing the conduct of the defendant alleged that it was "negligent" does not limit the action to one for negligence because plaintiff has alleged in her petition that the defendant placed and permitted "an obstacle and obstruction on the sidewalk and street" in front of defendant's store in Warren "in a dangerous and careless place and manner." These quoted allegations clearly allege facts constituting a nuisance, especially in view of Section 13421, General *Page 38 Code, which provides that "whoever obstructs or incumbers, by fences, buildings, structures or otherwise, a public ground, highway, street or alley of a municipal corporation, shall be fined * * *." It cannot be doubted that the sidewalk is that portion of the street usually devoted to pedestrian travel, but the sidewalk is, nevertheless, a part of the street. If the defendant placed an obstruction upon the sidewalk which was in fact, as alleged in the petition, dangerous and therefore likely to cause injury and damage to one in the lawful use of the street, it cannot be said otherwise than that the defendant is liable for such nuisance to one injured thereby. Whether the bucket over which plaintiff fell was such a dangerous obstruction of the sidewalk as to constitute a nuisance was a question of fact for the jury under proper instructions of the court as to what constitutes a nuisance. We are not here concerned with any question as to whether plaintiff's action would abate upon her death under the Code provision that an action for nuisance abates with the death of the party injured thereby. In submitting the issues to the jury, plaintiff requested that certain instructions be given before argument, which clearly show an intention upon the part of plaintiff to base her claim against defendant for the creation and maintenance of a nuisance in a public highway. Liberal construction must be given to the petition, and we think it sufficient as basing liability upon the ground of nuisance. It is, perhaps, unnecessary now to determine whether the record in this case discloses the relationship of independent contractor, for the reason that the defendant, by the employment of an independent contractor, is not relieved of liability for the creation and maintenance of a nuisance in the public street. We deem it proper, however, to say upon this subject that we have not been able to bring ourselves into accord with the claim of defendant that the relationship of independent *Page 39 contractor has been established. The facts disclosed by the record show that the defendant purchased and paid a nurseryman for certain trees to be furnished in tubs and placed on the sidewalk as a part of the Christmas decoration of the streets of the city of Warren, and authorized the nurseryman to place the tubs containing the trees upon the sidewalk. While the evidence does not disclose that defendant gave any instructions to the nurseryman as to the place or manner of putting the tubs with the trees therein on the sidewalk, it is quite clear from the evidence that the defendant had complete control of this matter and could have directed the nurseryman to place the tubs containing the trees wherever it desired. It is not the fact of control but the right of control which determines the relationship between the defendant and the nurseryman; nor is it decisive of the issue whether the tub with the tree in it would not constitute a nuisance upon the street. The question is whether the tub, after the tree was removed, constituted such dangerous obstruction of the street as was reasonably likely to cause injury and damage to one lawfully using the sidewalk. Upon this proposition the record shows that evidence was offered upon the trial from which reasonable minds could arrive at different conclusions, and the issue was therefore one for the jury under proper instructions. There was no error in the trial court overruling the motions for directed verdict or the motion for judgment notwithstanding the verdict. The further claim is made by defendant that plaintiff, by her own testimony, acknowledged that she did not see the tub on the sidewalk until the instant she fell over it, and that therefore she was guilty of negligence as a matter of law which directly contributed to her injury. With this contention we do not agree. The question of contributory negligence of plaintiff was properly submitted to the jury under the evidence *Page 40 shown by the record, it being plaintiff's claim that when she alighted from the automobile parked in front of defendant's store, the door of the automobile swung forward and obscured the tub located on the sidewalk, and that she had no opportunity to see the obstruction until she had fallen over it. Whether plaintiff was negligent under the circumstances was a question for the jury, this court not being in accord with the claim of the defendant that the mere fact that plaintiff failed to see the obstruction on the sidewalk in broad daylight would defeat her recovery. It was the province of the jury to determine under the particular circumstances shown by the evidence whether plaintiff acted as a reasonably prudent person would act under the same or similar circumstances. Defendant contends that the trial court erred in giving to the jury certain special requests to charge before argument. We find no error in this respect except as to request No. 2, which is as follows: "2. The court says to you as a matter of law that a pedestrian on a duly dedicated sidewalk of a municipal corporation has a right to assume that said sidewalk is free and clear of all obstructions, and if you find from the evidence that the defendant, or its officers, agents or employees placed or caused to be placed said bucket or tub on the sidewalk, and that the same was a nuisance, and if you further find that the plaintiff while in the exercise of ordinary care was injured thereby, the plaintiff is entitled to recover." This request to charge omits, after the word "assume," the further necessary words, "in the absence of knowledge to the contrary." It is only in the absence of knowledge to the contrary that a pedestrian may assume that the sidewalk is free and clear of obstructions. This being a request to charge before argument, it was required that the charge state the law correctly. Defendant further contends that the trial court erred *Page 41 in refusing to give three certain requests submitted by defendant before argument, as follows: "3. If the tub of sand over which the plaintiff claims to have fallen was plainly visible and if the fall occurred in broad daylight, then the plaintiff would not be entitled to recovery and this is true irrespective of whether or not the defendant itself was guilty of any negligence upon the occasion alleged in the petition." "5. The court says to you as a matter of law that if the plaintiff, Sarah Pitzer, took a step either forward or backward without seeing where she was walking, then she was guilty of negligence; and if any such failure on her part operated in the slightest degree to cause her fall or the injuries of which she complains, she cannot recover; and this is true whether or not the defendant, Sears, Roebuck Co., was guilty of any negligence." "7. The court says to you as a matter of law that you cannot find the defendant guilty of negligence unless: "1. Its officers or agents or employees placed the tub upon the sidewalk without a tree, or having placed the tub upon the sidewalk removed the tree; or "2. Its officers or agents knew that the tub was standing upon the sidewalk in front of its store without a tree; long enough before the accident to have removed the tub in the exercise of ordinary care; or "3. The tub was standing upon the sidewalk without a tree for so long a time that the officers or agents or employees of defendant in the exercise of ordinary care should have seen it and removed it. "In determining this question you cannot hold defendant responsible for the acts of an independent contractor not in its employ; nor can you conclude from the fact that the tub was on the sidewalk without a tree at the time Mrs. Pitzer fell that it had been *Page 42 there in that condition for any length of time unless you have other evidence to support your conclusion." We find no error in the refusal of the court to give these requests to charge, or any of them. For their authority that the trial court should have given requests No. 3 and No. 5, counsel for defendant rely upon the case of Village of Conneaut v. Naef,54 Ohio St. 529, 44 N.E. 236, wherein it is said that: "One who goes voluntarily upon an accumulation of ice on a walk of a village cannot maintain an action against such village for a personal injury resulting to him, if the source of danger is plainly visible." It is a matter of common knowledge that ice accumulated on a walk of a village is slippery and likely to cause one who voluntarily goes upon it to fall. The word "voluntarily" assumes that one going upon the ice thus accumulated knows that it is dangerous for him so to do and imports an assumption of the risk. The case is clearly distinguishable from that now under review. Defendant's request No. 7 is based solely upon the theory of negligence as distinguished from nuisance and would for that reason be misleading to the jury. In the general charge of the court to the jury, the trial court defined "nuisance" as follows: "Now, a nuisance is defined in law as that which causes hurt, inconvenience, annoyance or damage to the rights of another or the public." The court had theretofore told the jury that if it found "by the greater weight of the evidence that the defendant had the tub placed and maintained it on the public sidewalk and in such location and position that a dangerous condition amounting to a nuisance was created and permitted on the public sidewalk, and that as a direct and proximate result thereof plaintiff sustained injuries," then the verdict should be for the plaintiff, providing she was free from negligence which directly and proximately contributed to cause her own *Page 43 injuries. It follows that the trial court instructed the jury that if it found the defendant, by its agents or servants, had placed the tub on the sidewalk, and that this tub was an inconvenience or annoyance to plaintiff in the lawful use of the sidewalk, and she was at the time free from negligence directly contributing to her injuries, she was entitled to recover. It is difficult to see how plaintiff under these instructions could fail to obtain a verdict at the hands of the jury, provided only that they should find from the evidence that the defendant, through its agents or servants, had placed the tub on the sidewalk, it not having been denied by defendant that plaintiff fell over this tub on the sidewalk. The mere fact that plaintiff fell over the tub would be sufficient for the jury to find that the tub on the sidewalk caused plaintiff inconvenience or annoyance. The charge of the court wherein the term "nuisance" was defined was based upon certain general language of the Chief Justice in the opinion in the case of Selden v. City of Cuyahoga Falls,132 Ohio St. 223, 6 N.E.2d 976. We are of opinion that the Chief Justice did not, by the language used, intend to define the term "nuisance" as applicable to an action of the nature here under review. The language is not carried into the syllabus, it being merely stated in the opinion that "It has been said that * * * a nuisance is that which causes hurt, inconvenience, annoyance or damage to the rights of another or the public." Doubtless it is true that in certain actions for damages caused by the creation of a nuisance, the definition would be applicable; for example, where the defendant is charged with maintaining a slaughter house in a residential section of a city and so near to the premises of plaintiff as to be obnoxious, thereby causing annoyance to one in the lawful use of his own premises. Many other examples might be given. The language of the Chief Justice in Selden v. Cuyahoga *Page 44 Falls, supra, was simply a deduction on his part of the distinction between negligence and nuisance, and did not purport to be a statement to a jury as to the meaning of the word for purposes of defining their functions in the lawsuit. Accurate though it was, so far as it went, we do not believe that it adequately presents to the jury the question involved, and we are of opinion that the definition as given by the court to the jury in the case under review would affirmatively mislead the jury as to the questions which were being submitted to them and amounted to a failure to properly define the issues. For the error in the general charge of the court to the jury in defining the term "nuisance," and for error in giving to the jury before argument plaintiff's special written request No. 2, the judgment of the trial court must be reversed, it appearing that such errors are prejudicial to the rights of the defendant, whereby substantial justice has not been done it. The judgment is reversed and the cause remanded for further proceedings according to law. Judgment reversed and cause remanded. CARTER and PHILLIPS, JJ., concur.

2016-07-06 06:42:27.945592+00

Williams

Mary Helen Tiedman, the plaintiff below, brought an action in the common pleas court against Henry Bender and John S. Counter, as defendants, to recover for injuries sustained in an automobile collision, which took place at 7:30 p.m., March 5, 1926, at the junction of Madison and Woodruff avenues in the city of Toledo. Upon trial of the case in the common pleas court, the jury *Page 491 returned a verdict in favor of the plaintiff for $1,000 against the defendant John S. Counter, and in favor of the defendant Henry Bender. Judgment was entered on such verdict, and this proceeding in error is brought by John S. Counter, as plaintiff in error, seeking a reversal of the judgment of the court below. Henry Bender, who is joined as a defendant in error in this proceeding, has filed in this court a motion for an order dismissing the petition in error as to him. We think this motion should be sustained. Plaintiff below might have filed a motion for a new trial as against the defendant Henry Bender, and upon the overruling of the motion, and the entering of judgment in favor of the defendant Bender, the plaintiff below might have prosecuted error, or filed a cross-petition in error in this proceeding. Such action was not taken. The defendants, if both liable, were jointly and severally liable as joint tort-feasors, and the plaintiff in error cannot complain because a verdict was returned in favor of a joint tort-feasor, with whom he was sued jointly. The petition in error will therefore be dismissed as to the defendant Henry Bender, and the service of summons in error made upon him is quashed, vacated, and set aside. One of the claimed grounds of error is that the verdict is manifestly against the weight of the evidence. We think the contention of the plaintiff in error in this respect is not well founded. There remains for us to consider the other alleged ground of error, which is that the court erred in his charge to the jury. We quote the parts of the charge complained of: *Page 492 "Section 6310-33. Drivers shall have a clear and unobstructed view to the front and to both sides of their vehicles and shall have a clear view to the rear of their vehicles by direct view or by mirror." "And if you find from the evidence that these automobiles, one driven by Henry Bender, and the other driven by John Counter, approached this street intersection at or about the same time, and in such manner as would indicate that in the exercise of ordinary care one would have yielded the right of way to the other, and that their relative situation and circumstances were in other respects equal, then and under such circumstances John Counter, by virtue of the terms of the law that I have read to you, had the right of way. * * * "If you find the truth to be that the automobile of John Counter, driven by himself, and the automobile of Henry Bender, driven by himself, approached the intersection of Woodruff avenue and Madison avenue at or about the same time, and that the situation of the defendant Bender and of the defendant Counter and the circumstances were such that in the exercise of ordinary care Counter, driving his automobile, would have yielded the right of way to the automobile driven by the defendant Bender, then, under such circumstances, Bender had the right of way. But if, under the law and the evidence, you do not so find the facts to be, and do find that Counter was upon Woodruff avenue at its intersection with Madison avenue, and the circumstances were such, and the relative situation at said time of the defendant Bender operating his automobile and of Counter operating his automobile was such, that Bender in the exercise of ordinary care *Page 493 would have permitted and allowed Counter, so operating his automobile, to proceed at said intersection, then in such case Counter, operating his automobile, would have had the right so to proceed." The evidence discloses that Woodruff avenue in the city of Toledo runs east and west, and that Madison avenue, running somewhat west of a northwesterly direction, terminates at its northwesterly end in a junction with Woodruff avenue, at an angle of about 35 degrees. At the time in question the plaintiff was sitting in a car headed east on Woodruff avenue, and one Southern was the driver thereof. The car driven by Counter was going west on Woodruff avenue, and that driven by Bender approached Woodruff avenue from Madison avenue, and turned from Madison avenue onto Woodruff, going along Woodruff in a westerly direction. The cars of Counter and Bender collided in Woodruff avenue at about the west side of the junction. Thereupon the car of Bender was thrown into the car in which plaintiff was riding, causing injuries to her. We think it was not prejudicial to the rights of plaintiff in error for the court to read to the jury Section 6310-33, as above quoted, as there is nothing in the charge explanatory of this section. The plaintiff in error claims there was no issue upon which the section could have a bearing. Even so, the plaintiff in error could not be prejudiced by a mere reading thereof to the jury, in the light of the whole charge. It is contended that the other portions of the charge of the court above quoted constitute prejudicial error, for the reason that due weight is not *Page 494 given to Sections 6310-28 and 6310-28a, General Code. It will be observed, however, that under Section 6310-28 right of way means the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving, in preference to another vehicle approaching from a different direction into its path. The evidence shows that the automobiles of the two defendants below were going in the same direction. The statute was, therefore, not applicable. As to Section 6310-28a, we hold that it only gives the right of way to a vehicle approaching from the right, where the paths of the two vehicles intersect. There is no intersection of paths, or of streets, unless such paths or streets cross each other. Atwood v. Connecticut Co.,82 Conn. 539, 74 A. 899, 901; Godfrey v. City of New York,104 App. Div. 357, 93 N.Y.S., 899, 903. Section 6310-28a, therefore, has no bearing upon the case at bar. On the whole, we think that the charge was more favorable to the plaintiff in error than he had a right to expect. There is, however, no error in the charge prejudicial to the rights of the plaintiff in error. The judgment will be affirmed. Judgment affirmed. RICHARDS and LLOYD, JJ., concur. *Page 495

2016-07-06 06:42:28.124694+00

Ross

This case is presented to this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for the plaintiff insurance company. The action was brought by the Western Southern Life Insurance Company against the Provident Savings Bank Trust Company praying for judgment for the total amount of fourteen checks, which it is alleged were wrongfully paid by the bank upon forged signatures of indorsers, and charged against the deposit of the insurance company in the bank. The amended petition contains fourteen causes of action, each based upon an individual check. *Page 262 The evidence shows that the insurance company had in its employ an agent by the name of Sadler, who in every case resulting in the drawing of the checks in question perpetrated a fraud upon the insurance company in the following manner: A policy-holder for one reason or another ceased making payments upon his or her policy of life insurance. Sadler, the agent, made the payments of premiums to the company without disclosing the fact either to the policyholder or to the company. He by some artifice secured possession of the policies. He then made out the necessary proofs of death, including the affidavit of physicians and undertakers, whose signatures, with those of the beneficiary claimant, he forged. The papers were forwarded through the superintendent of the Evansville, Indiana, office of the company, and the checks in payment of the same were returned through this superintendent, who was induced by Sadler to turn them over to him for the beneficiaries under the policies. Sadler, the agent, then forged the names of the beneficiaries, who were persons then living, and secured payment of the checks from the Evansville Bank, which bank transmitted them to The First National Bank of Cincinnati, which bank in turn presented them to the Provident Savings Bank Trust Company, where they were paid and charged to the account of the insurance company. In no case had the insured died, and in some cases more than one loss was reported in a family. All of the policyholders fraudulently represented as deceased lived in Evansville, Indiana. The negligence of the superintendent of the insurance company in Evansville is so gross as to *Page 263 almost justify an inference of collusion on his part with Sadler, the agent. The following stipulation was made by counsel for the parties to the action: "It is stipulated by and between counsel for both parties as follows: When the checks which have been referred to in the testimony and introduced in evidence reached the drawee bank, namely, the defendant Provident Savings Bank and Trust Company, that Bank took the following steps with respect to said checks. It ascertained, first, that the drawer was one of its depositors; second, that the drawer had on deposit a sufficient sum to cover the checks; third, that the checks were not postdated and that signatures purporting to be the endorsements of the payee or payees appeared on the reverse side thereof. "It is further stipulated and agreed that the Provident Savings Bank and Trust Company made no inquiry or investigation as to the genuineness of the signatures of the payees on said checks, but as to the genuineness of said endorsements relied entirely upon the guarantee of the genuineness thereof of the First National Bank, Cincinnati, from which it received the checks, and the other banks through which said checks cleared in the ordinary course of business before arriving at the defendant bank, such reliance on the part of the Provident Bank being in accordance with established banking custom generally, and the custom and practices of the Cincinnati Clearing House in particular." Immediately after the reading of the stipulation into the record, the plaintiff insurance company rested, whereupon the bank sought to introduce evidence *Page 264 of the negligence of the insurance company. The court refused to permit it so to do, and instructed a verdict for the insurance company. In so doing, the court committed no error prejudicial to plaintiff in error. The stipulation recites that the bank relied entirely upon the guaranty of the First National Bank of Cincinnati from which it received the checks, having indorsed the same. The bank, having stipulated this to be a fact, could not introduce evidence that it had relied on anything else. Negligence alone on the part of the depositor is not enough. It must be such negligence as is the proximate cause of the bank's action in paying the check, acts constituting negligence upon which it relied to its damage. The law in support of this rule is fully set out in a decision by this court in the case of Fourth Central Trust Company ofCincinnati v. Johnson, etc., 24 Ohio App. 129, 156 N.E. 462. The finding of this court in that case was not disturbed by the Supreme Court. The judgment of the court of common pleas of Hamilton county is affirmed. Judgment affirmed. HAMILTON and CUSHING, JJ., concur. *Page 265

2016-07-06 06:42:28.609761+00

Per Curiam

These causes came to be heard upon appeals from the Court of Common Pleas of Hamilton County. The two appeals were consolidated. Defendant-appellant, Ronald Whiting, was convicted of a felony drug abuse offense. He now brings this timely appeal in which his counsel asserts four assignments of error.1 The record reveals that Whiting was indicted for the commission of acts prohibited by R.C. 2925.03(A)(2). The indictment further states that the drug involved was a Schedule II controlled substance. At trial, the state offered testimony of police officers who observed a transaction between Whiting and co-defendant James Robinson. Using binoculars, the officers observed Whiting hand Robinson three pills and Robinson hand Whiting an undetermined amount of cash. Both men were arrested soon after the transaction. In his first assignment of error, Whiting asserts that the jury verdict was insufficient to sustain a sentence for a second- or third-degree felony. We agree and emphasize that the assignment does not contend the verdict is not supported by sufficient evidence. The statute violated, R.C. 2925.03, as drafted, lends itself to imprecision in terminology. This court addressed the problem in detail in State v. Jones (June 6, 1984), Hamilton App. No. C-830608, unreported. In Jones, we held that, depending on the drug involved, a defendant may be guilty of any of three distinct crimes by the commission of any of the eight specific acts prohibited by R.C. 2925.03(A). If the drug is a Schedule I or II controlled substance, the defendant is guilty of "aggravated trafficking," R.C. 2925.03(C). If the drug is a Schedule III, IV, or V controlled substance, the defendant is guilty of "trafficking in drugs," R.C. 2925.03(D). If the drug involved is marijuana, the defendant is guilty of "trafficking in marihuana," R.C. 2925.03(E). In the case sub judice, Whiting was indicted for an offense constituting aggravated trafficking with the specification of a prior conviction for a felony drug abuse offense. The verdict form, however, finds Whiting guilty of trafficking in drugs and specifies a prior conviction for trafficking in drugs.2 The discrepancy between the indictment and the verdict form is sufficient to cast doubt upon the jury's verdict and create the need for a new trial because, under the facts of the case on review, trafficking in drugs cannot be a lesser included offense of aggravated trafficking. The appellant's first assignment of error is sustained. In his second assignment of error, Whiting asserts that the trial court erred in admitting into evidence a syringe that was in the possession of the co-defendant James Robinson when Robinson was arrested. We agree. It was incumbent upon the state to prove that Whiting prepared for shipment, shipped, transported, delivered, prepared for distribution, or distributed a controlled substance, when he knew or had reasonable cause to *Page 109 believe that such drug was intended for sale or resale by himself or another. R.C. 2925.03(A)(2). The fact that Robinson had a syringe in his possession when he was arrested has no probative value in establishing any of the elements in R.C. 2925.03(A)(2) in the state's case against Whiting. It was error for the trial court to allow the syringe into evidence. In his third assignment of error, Whiting asserts that the trial court erred in failing to grant his motion for a view of the premises from which the officers observed the transaction between Whiting and Robinson. The test, upon review, is whether the trial court abused its discretion in denying the request.Calloway v. Maxwell (1965), 2 Ohio St.2d 128, 31 O.O. 2d 196,206 N.E.2d 912; State v. Harris (Apr. 4, 1984), Hamilton App. No. C-830488, unreported. After reviewing the record, we find no reason to believe that the jury was handicapped or had its task made more difficult because they were not able to view the scene of the transaction. The trial court did not abuse its discretion in denying Whiting's motion; consequently, Whiting's third assignment of error is overruled. Pembaur v. Leis (1982), 1 Ohio St.3d 89,91, 1 OBR 125, 127, 437 N.E.2d 1199, 1201. Whiting contends, in his fourth assignment of error, that his conviction was against the weight of the evidence. We have reviewed the evidence in this case excluding the evidence erroneously admitted. We do not find that, in resolving the conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice. State v. Martin (1983), 20 Ohio App.3d 172, 20 OBR 215, 485 N.E.2d 717. Whiting's fourth assignment of error is overruled. The judgment of the trial court is reversed and the cause is remanded for a new trial. Judgment reversed and cause remanded. KLUSMEIER, P.J., SHANNON and HILDEBRANDT, JJ., concur. 1 We note that Whiting filed a brief in this action pro se. We will not address Whiting's assignments of error separately as they are subsumed in our response to counsel's assignments. 2 All "trafficking in drugs" convictions are felony drug abuse offenses as contrasted with the general term "trafficking offenses," which may be either felonies or misdemeanors.

2016-07-06 06:42:28.725537+00

Doyle

This is an action in tort by one who was in a retail food store to make a purchase, to recover compensation for injuries sustained by slipping and falling on the floor of the store. Her testimony was that she went to the store to buy two pounds of peas, and, as she walked over the floor, in the process of making a purchase, she slipped on a piece of lettuce and some "black stuff" (the "black stuff" is not further identified); she noticed nothing on the floor before she fell, but when she "got up" she saw the material by her heel "stuck on the floor"; she was the only customer at the time, and the business was attended by a manager and a clerk, both of whom were present. There is no evidence of negligence on the part of the *Page 303 defendant. It is well established in this state that, in order to impose liability for injury to an invitee because of a dangerous condition of the premises resulting from a foreign substance on the floor, the condition must have been known to the owner or occupant, or have existed for such a time that it was the duty of the owner or occupant to know of it. There is no evidence in this case as to how the material got onto the floor, nor is there any evidence as to how long it had been there. There is no evidence that the employees knew of its existence. For aught that appears, the plaintiff herself could have carried it into the store from outside. The case is governed by the law as applied to the facts inKroger Grocery Baking Co. v. McCune, 46 Ohio App. 291,188 N.E. 568. Other Ohio cases pronouncing the same principles are:Sweet v. Big Bear Stores Co., 158 Ohio St. 256,108 N.E.2d 737 (customer slipping on spinach on floor); Boles v.Montgomery Ward Co., 153 Ohio St. 381, 92 N.E.2d 9 (slipping on wet and slippery floor occasioned by water and slush tracked in from outside by patrons); Johnson v. Wagner ProvisionCo., 141 Ohio St. 584, 49 N.E.2d 925 (slipping caused by jar of mayonnaise dropped on floor by another customer);Hardgrove v. Isaly Dairy Co., 139 Ohio St. 641,41 N.E.2d 862 (slipping caused by water dripped on floor from bottle carried by another customer); J. C. Penny Co., Inc., v. Robison,128 Ohio St. 626, 193 N.E. 401, 100 A. L. R., 705 (customer slipped and fell on oiled floor); S. S. Kresge Co. v. Fader,116 Ohio St. 718, 158 N.E. 174, 58 A. L. R., 132 (floor made damp and slippery by customers carrying in water and moisture on umbrellas, clothing and feet). The rule "res ipsa loquitur" cannot be applied to the facts of this case. It is a rule of evidence and cannot be "expanded into a rule of liability." Sherlock *Page 304 v. Strouse-Hirshberg Co., 132 Ohio St. 35, 4 N.E.2d 912. It is as reasonable to infer that another customer or the injured lady herself caused the lettuce to be deposited on the floor as to infer that the defendant company, through its servants, or employees, caused it to be there deposited. The action of the trial court in directing a verdict for the defendant and entering its judgment thereon was proper in every respect, and the judgment will be affirmed. Judgment affirmed. STEVENS, J., and HUNSICKER, J., concur.

2016-07-06 06:42:29.143582+00

Vickery

We gather, from the record, that the Trumbull Cliffs Furnace Company, plaintiff in *Page 523 error, was a corporation, and employed more than five workmen, and had complied with the requirements of the Workmen's Compensation Law of Ohio, by either paying into the fund, or carrying its own insurance, as permitted by the law. We believe that it had paid into the insurance fund, as provided for by law in Ohio. We learn that the Truscon Steel Company was likewise a corporation which employed more than five workmen, and it too had complied with the Workmen's Compensation Law by paying into the fund. It seems that the Trumbull Cliffs Furnace Company had a general contract, and part of the work, to wit, that of erecting steel on a building which was being erected by the Trumbull Cliffs Furnace Company, was let out to a subcontractor, the Truscon Steel Company, and that Joseph Shackovsky, the defendant in error, was an employee working by virtue of a contract with the Truscon Steel Company, who, while thus employed by the Truscon Steel Company, and while working for it, received very serious permanent injuries, rendering him a cripple for life, by reason of being crushed by an overhead traveling electric crane, owned, maintained, and negligently operated by plaintiff in error; that is by the Trumbull Cliffs Furnace Company, the principal contractor. The record shows that defendant in error received compensation from the Truscon Steel Company — that is, from the compensation fund which had been contributed to by the Truscon Steel Company — after which he brought his action to recover damages by reason of the negligent act of the Trumbull *Page 524 Cliffs Furnace Company, and, upon trial of the case, recovered a judgment for $10,000, to reverse which judgment this error proceeding is prosecuted here. We have listened to a very lengthy and somewhat involved argument of the plaintiff in error's counsel, and he seems to predicate his right to reverse this judgment entirely upon his interpretation of paragraph 3 of Section 1465-61, General Code of Ohio. That paragraph reads: "Every person in the service of any independent contractor * * * who has failed to pay into the state insurance fund the amount of premium determined and fixed by the Industrial Commission of Ohio for his employment or occupation, or to elect to pay compensation direct to his injured and to the dependents of his killed employees, as provided in Section 1465-69, General Code, shall be considered as the employee of the person who has entered into a contract, whether written or verbal, with such independent contractor unless such employees, or their legal representatives or beneficiaries elect, after injury or death, to regard such independent contractor as the employer." Just how the plaintiff in error can extract any hope from this statute, it is quite difficult to understand. The defendant in error was working for the independent or subcontractor, and the subcontractor had complied with the compensation law by paying the premiums into the fund, and while so working the defendant in error was injured, without any negligence apparently upon the part of his immediate employer, the independent contractor, but, of course, under the law, he was entitled to compensation, and made application for it and received the same. He *Page 525 then brought this action against the Trumbull Cliffs Furnace Company, the general contractor, and this statute is cited to us to show that the general contractor was the employer of the defendant in error. It seems to us that the language of this statute is so plain that there cannot be any two constructions applied to it, and the only reasonable construction that one can put upon it is that, inasmuch as the Truscon Steel Company, the subcontractor, had complied with the requirements of the compensation law, and had paid into the fund, then necessarily, from the very wording of the statute, the Trumbull Cliffs Furnace Company was not the injured party's employer. A reading of the statute will convince one that it is only in the event of the subcontractor or independent contractor not having complied with the law, and paid into the compensation fund, that the injured employee shall be deemed to be the employee of the general contractor, unless he recognizes the subcontractor as his employer. That surely eliminates the principal contractor, under the circumstances in this case, from being considered as the employer of the defendant in error, even if the Truscon Steel Company had not complied with the statute and paid into the compensation fund. The record shows that the employee, the defendant in error, considered the Truscon Steel Company his employer, and filed his claim, and as a matter of fact received his compensation. By reason of both of these conditions in this statute that is relied upon, plaintiff clearly could not get compensation as an employee of the general contractor. So now, having eliminated the question as to *Page 526 whether or not the general contractor was the employer of defendant in error by coming to the conclusion that he was not, this question then arises: If a person is injured in the course of his employment, in such a way that he is entitled to compensation, and he makes application to the Industrial Commission of Ohio, and is awarded compensation which is charged up to his employer, can he bring an independent action against a third party, a stranger in the transaction, and recover for the negligence? Now if, between the principal contractor and the employee of the subcontractor there is no relation of master and servant, or of employer and employee, then what is the relation between the principal contractor and the injured person? Manifestly there can be none. He is either the employer or else he is not the employer, and, if that relation does not exist, there is no relation existing between them except that of strangers. We think that the law is well settled in Ohio that, if a person is injured at such a time and in such a manner by the negligence of a third person, while engaged in an occupation for which he would be entitled to compensation against his employer, he may still sue and recover against the third party who causes the injury. Now that is all there is to this lawsuit. In the case of Brunk, Admx., v. C., C., C. St. L. Ry. Co., 20 N.P. (N.S.), 360, 28 O.D. (N.P.), 320, the court of common pleas of Clark county held that: "The court is convinced that the compensation provided by the Workmen's Compensation Act is in the nature of occupational insurance, and that the *Page 527 same rule which is applicable to general insurance is applicable to the payment of compensation under the act; the act being silent on this point." The syllabus of that case reads: "The compensation provided by the Workmen's Compensation Law of Ohio to injured employees or the representatives of those who are killed in the course of their employment is in the nature of occupational insurance, and like general insurance cannot be deducted or treated as an offset to a claim for damages for wrongful injury or death; and it follows that it is not error to exclude from consideration by a jury, in an action for damages for injury or death against a tort-feasor, the fact that compensation has been accepted from the state insurance fund." See Kenning, Admx., v. Interurban Ry. T. Co., 30 O.D. (N.P.), 446, 18 N.P. (N.S.), 526, and there are a great many nisi prius cases in Ohio holding the same proposition. In the case of Vayto v. River Terminal Ry. Co., 18 N.P. (N.S.), 305, at page 319, 28 O.D. (N.P.), 401, the court made use of the following language: "The act or law [referring to the Compensation Law] does not provide for full compensation; and, even if it did, to-hold that a third person might negligently injure a man while that man was in the course of his master's business, and escape liability merely because the man's employer was a contributor to the state insurance fund, would inevitably lead to wanton destruction of limb and life. To so hold would be tantamount to holding that, because a man has ample insurance upon his life, another may negligently kill him, or, if he has an accident *Page 528 policy, another may wantonly injure him, and plead the payment of the insurance as a defense to an action for the injury or death. It has been so uniformly held that this cannot be done that it would be useless and unnecessary to cite authorities in support of the proposition." See, also, Davis v. Guarnieri, 45 Ohio St. 470, 15 N.E. 350, 4 Am. St. Rep., 548. We think that the law is well settled in this state that, where a person is injured while engaged in occupation for his master, under circumstances such that he would be entitled to compensation and receive his compensation from the state fund, he is not deprived of his right to maintain a suit against a third person who has wrongfully injured him, and the third person can neither plead a set-off nor any defense to the injured person's right to recover. As we have already said, the relation in the present case between the injured person and the plaintiff in error was that of strangers, and the action was predicated upon a plain act of negligence of the plaintiff in error, and, following the authorities, we are constrained to come to the conclusion that the injured person, defendant in error in this action, had the right to recover. It is not urged that the verdict is excessive. In fact, the only point that has been argued to us was that the judgment was contrary to law because of the statute above referred to. We, therefore, upon a perusal of the record, think that this judgment should be affirmed. Judgment affirmed. SULLIVAN and LEVINE, JJ., concur. *Page 529

2016-07-06 06:42:30.004354+00

OPINION Appellant, Thomas S. Harrison, appeals from the judgment of the Willoughby Municipal Court. Appellant was cited for violating R.C.4511.19(A)(1), operating a motor vehicle while under the influence of alcohol, and R.C. 4511.19(A)(3), operating a motor vehicle with a prohibited breath alcohol concentration. Appellant filed a motion to suppress evidence, which was denied. Appellant subsequently entered a plea of no contest to violating R.C. 4511.19(A)(1), preserving his right to appeal under Crim.R. 12(H). Defiance v. Kretz (1991), 60 Ohio St.3d 1, syllabus. The charge under R.C. 4511.19(A)(3) was dismissed. On appeal, appellant challenges whether there was reasonable suspicion to warrant the initial stop and whether the state demonstrated that his BAC test was conducted within two hours of his alleged commission of the offense, as required by R.C. 4511.19(D)(1). Officer Parker, of the Kirtland Police Department, was on routine patrol at 11:23 p.m. when he drove by a local residence and noticed a car he did not recognize parked at the end of the driveway. The officer was familiar with the cars driven by the residents. All of the house lights were off. The car was largely concealed by two large bushes on either side of the end of the driveway. This particular residence had recently been burglarized and the police had a "special watch" on the house due to the burglary and some other "special situation." The car's lights were out, and the officer saw a single male occupant in the driver's seat of the car talking on his cell phone. Officer Parker activated his overhead lights, turned around, and pulled in the driveway behind the car. Appellant exited his vehicle and approached the officer. He explained that he had run out of gas and that he was just talking with his wife on the phone, arranging a resolution to the problem. The officer detected a strong odor of alcohol and a slight slurring of speech. The officer asked appellant if he had been drinking, and appellant replied that he had drunk four beers. The officer administered field sobriety tests. The officer noted numerous signs of impairment and placed appellant under arrest. Upon inventorying the car subsequent to the arrest, the keys were found in the ignition. The officer never got an exact statement from appellant regarding how long appellant had been stuck in the driveway prior to the officer's arrival. The officer testified that appellant had stated he was on his way home from a friend's house where he had watched the baseball all-star game. The officer testified that "he said he'd just broken down." It was 11:23 p.m. when the officer pulled up behind appellant's vehicle. The B.A.C. test was begun at 12:29 a.m. of the next day, one hour and six minutes after the officer initiated the stop. The test result indicated a prohibited amount of alcohol (.109). Appellant was cited for operating a motor vehicle while under the influence of alcohol and for operating a motor vehicle with a prohibited breath alcohol concentration. Appellant filed a motion to suppress, and a hearing was conducted. Pursuant to Crim.R. 12(E), the trial court made findings of fact. The court concluded the officer had articulated specific facts which, taken together with reasonable inferences and other information, warranted the officer's initial investigation. The court also found that the officer's testimony had established a sufficient correlation between the time of appellant's operation of the motor vehicle to the initial "confrontation" with the officer, thereby rendering the B.A.C. test admissible as evidence. Specifically, the court found that when the officer first saw appellant, he was on his cell phone, and that he admitted he was calling his wife for assistance. The court's finding was based on the inference that appellant did not wait fifty-four minutes before seeking assistance, rather, he contacted his wife shortly after running out of gas. From this judgment, appellant timely filed this appeal, assigning the following error: "[1]. The trial court erred in overruling appellant's motion to dismiss the charges and/or suppress the evidence obtained during his stop." In evaluating an appeal from the denial of a motion to suppress evidence, our standard of review is bifurcated with respect to factual and legal issues. We review "the trial court's findings of facts * * * only for clear error and with due weight given to inferences the trial judge drew from the facts." State v. Searls (1997), 118 Ohio App.3d 739, 741, citing State v. Mills (1992), 62 Ohio St.3d 357, 366. "The court of appeals is bound to accept factual determinations of the trial court made during the suppression hearing so long as they are supported by competent and credible evidence." Id. To the extent an appeal is directed at a trial court's findings of fact, we review these findings to determine only whether the findings were against the manifest weight of the evidence. Id. In contrast, an appellate court reviews the trial court's application of law to those facts de novo. Id., citing Ornelas v. United States (1996), 517 U.S. 690. An appellate court "must independently determine whether the facts meet the appropriate legal standard." Id. The law regarding reasonable suspicion is well established. In evaluating the propriety of an investigative stop, a reviewing court must consider the totality of the circumstances surrounding the stop as "viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold." State v. Andrews (1991), 57 Ohio St.3d 86, 87-88. An officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant stopping a person. Terryv. Ohio (1968), 392 U.S. 1, 21. Based upon the facts articulated by the officer at the suppression hearing, the requisite reasonable suspicion was presented, justifying the investigatory stop. The house had been recently burglarized and was under watch. It was late at night and the house was dark. An unknown vehicle, which the officer did not recognize as one belonging to the residents, was parked at the end of the driveway and largely concealed. These facts, taken with the consequent rational inferences, warranted an investigative stop by the officer. Upon approaching appellant and observing signs of intoxication, the officer formed a new reasonable suspicion, namely, that appellant was intoxicated. These observations justified a further investigation for D.U.I. State v. Jennings (Mar. 3, 2000), Trumbull App. No. 98-T-0196, unreported, 2000 Ohio App. LEXIS 800, at *9. Appellant's first issue presented for review is without merit. In appellant's second issue presented for review, he contends that the state failed to meet its burden of proving beyond a reasonable doubt that the B.A.C. test was administered within two hours of appellant's operation of the vehicle. In order to obtain a conviction under R.C.4511.19(A)(3), it is necessary for the state to prove that the B.A.C. test was administered within two hours of the defendant's operation of the vehicle. Cincinnati v. Sand (1975), 43 Ohio St.2d 79, paragraph two of syllabus. However, appellant was charged for violating R.C.4511.19(A)(1), operating a motor vehicle while under the influence of alcohol, as well as violating R.C. 4511.19(A)(3), operating a motor vehicle with a prohibited breath alcohol concentration. To obtain a conviction under R.C. 4511.19(A)(1), it is not necessary for the state to present evidence constituting a chemical test. State v. Moine (1991),72 Ohio App.3d 584. While the admissibility of the test was essential for a conviction under R.C. 4511.19(A)(3), the test was not necessary for a conviction under R.C. 4511.19(A)(1). Consequently, even were we to agree with appellant's contention that the trial court erred in deeming the test admissible, such a conclusion would not necessarily provide a basis for overturning the trial court's judgment with respect to the violation of R.C. 4511.19(A)(1). The facts presented were that: appellant was in a car; the keys were in the ignition; he displayed classic indicia of alcohol consumption; he admitted to drinking four beers; and, he failed the roadside sobriety tests. For purposes of R.C.4511.19, sitting in the driver's seat of a car with the keys in the ignition constitutes "operation" of the vehicle. State v. Gill (1994), 70 Ohio St.3d 150. Appellant pled no contest to violating R.C. 4511.19(A)(1). The charge for violating R.C. 4511.19(A)(3) was dismissed. There was sufficient evidence in the record, without the B.A.C. test, to support the trial court's finding of guilty with respect to the R.C. 4511.19(A)(1) violation. Appellant's second issue presented for review is without merit. The judgment of the trial court is affirmed. CHRISTLEY, J., NADER, J., concur.

2016-07-06 06:42:30.081473+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Communication Workers of America, Local No. 4546 ("the Union"), appeals the judgment of the Summit County Court of Common Pleas, which vacated an arbitrator's award in favor of Renee Scott and against appellee, Summit County Children Services Board ("CSB"). This Court affirms. I. {¶ 2} The Union and CSB were parties to a collective bargaining agreement ("CBA"), which was effective from April 1, 2000 until March 31, 2003. The CBA included a grievance procedure, which culminated in final and binding arbitration. {¶ 3} Renee Scott was employed by CSB as a Front Desk Clerical Specialist, who worked evenings and weekends. CSB investigated her for violations of certain agency work rules, including violations of Group II, work rule #1, leaving agency premises during scheduled work hours without notice or permission; Group III, work rule #5, falsifying an employee's own time card; and Group III, work rule #6, falsifying personnel or other records. The matter was heard before a neutral administrator, who found that Ms. Scott violated the work rules. The neutral administrator, under authority of the CBA, made a recommendation regarding discipline. The recommendation was for a seven-day suspension. Notwithstanding that recommendation, CSB terminated Ms. Scott on May 21, 2002, and Scott filed a grievance the same day. {¶ 4} The matter proceeded to binding arbitration on June 16, 2004. The parties agreed that this was a proper matter for arbitration. In addition, the parties stipulated that, if the arbitrator were to uphold the grievance, then CSB's liability for payment of past wages would run from May 21, 2002 (the date of Scott's termination) until July 22, 2003 (the date originally scheduled for the arbitration hearing). The parties did not, however, stipulate that CSB had any liability as a threshold matter. {¶ 5} The Union proposed that the issue be stated as, "Whether the discharge of Grievant was for good cause, and if not, what should the remedy be?" CSB proposed to state the issue as, "Was the termination of Renee Scott for admitted, repeated violations of Group III offenses and a Group II violation for just cause under the Labor Agreement?" The parties agreed that the arbitrator should ultimately formulate the issue, which he stated as, "Did the Employer violate the collective bargaining agreement on May 21, 2002 when it discharged the Grievant, and if so, what should be the remedy?" {¶ 6} Section 404.01 of the CBA stated: "No employee shall be reduced in pay or position, suspended or discharged, except for good cause, nor shall the Employer take any form of corrective action against any employee except for good cause." {¶ 7} Section 404.03 of the CBA stated, in pertinent part: "The Employer shall administer all corrective actions in a progressive manner. Corrective actions must be based on good cause, be uniformly applied, and be consistent with the Employer's Table of Discipline governing such actions, except that the Employer may apply a lesser penalty from the recommended standard penalties." Accordingly, when determining whether CSB violated the CBA on May 21, 2002, when it discharged Scott, the arbitrator necessarily must determine whether good cause existed. {¶ 8} On September 10, 2004, the arbitrator issued his opinion and award. The arbitrator sustained Scott's grievance regarding the alleged violation of Group II, work rule #1, and Group III, work rule #6, finding that Scott did not violate those rules and could, therefore, not be disciplined in regard to them. In regard to the alleged violation of Group III, work rule #5, however, the arbitrator found the following: "The Grievant has admitted claiming, on time cards, that she was at work when she was not. The validity of the rule is not challenged, nor is there any doubt that the Grievant ought to have been aware of it. The Employer investigated the matter, and based its conclusion on undisputed documentary evidence, so there is no doubt in my mind that the investigation was fair. There is no evidence that other employees have been treated more leniently when they falsified their time cards." The arbitrator then applied the seven elements of "just cause" established by arbitrator Carroll Daugherty in Enterprise WireCo., 46 Lab. Arb. (BNA) 359 (1966) to the issue of discipline and determined that the seventh element could not be established to find good cause to support Scott's termination. Accordingly, the arbitrator sustained, in part, Scott's grievance and ordered that the extent of the discipline for the violation of Group III, work rule #5, should be limited to a seven-day suspension without pay. {¶ 9} On September 27, 2004, CSB filed a complaint and application to vacate, modify or correct the arbitration award in the common pleas court. CSB alleged, in part, that the arbitrator exceeded his powers pursuant to statute. On October 26, 2004, the Union filed its response and a motion to confirm the arbitration award. The parties submitted the matter to the trial court on briefs. On April 20, 2005, the trial court issued a judgment entry, wherein it found that the arbitrator exceeded his powers, ordered that the arbitrator's award be vacated, and denied the Union's motion to confirm the award. Appellant Union timely appeals, setting forth five assignments of error for review. Because the second, third, fourth and fifth assignments of error address interrelated issues, this Court addresses them together. In addition, we address the consolidated second, third, fourth and fifth assignments of error first, because they are dispositive of this appeal. II. SECOND ASSIGNMENT OF ERROR "THE TRIAL COURT ERRED IN FINDING THAT THE APPELLEE HAD AN ABSOLUTE, UNFETTERED, AND `PER SE' MANAGEMENT RIGHT TO DISCHARGE SCOTT." THIRD ASSIGNMENT OF ERROR "THE TRIAL COURT ERRED IN SUBSTITUTING ITS JUDGMENT FOR THAT OF THE ARBITRATOR AND BY DISAGREEING WITH FACTUAL DETERMINATIONS MADE BY HIM." FOURTH ASSIGNMENT OF ERROR "THE TRIAL COURT ERRED BY SUBSTITUTING ITS INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT FOR THAT OF THE ARBITRATOR AND THEREBY EFFECTIVELY NEGATING MATERIAL PROVISIONS THEREIN." FIFTH ASSIGNMENT OF ERROR "THE TRIAL COURT ERRED IN VACATING THE AWARD OF THE ARBITRATOR SINCE THE ARBITRATOR WAS ACTING WITHIN THE SCOPE OF HIS AUTHORITY AND BASED THE AWARD ON ISSUES THAT THE PARTIES VOLUNTARILY SUBMITTED FOR RESOLUTION." {¶ 10} In these assignments of error, appellant Union argues that the trial court erred by substituting its own judgment for that of the arbitrator. In addition, appellant argues that the trial court erred by finding that the arbitrator exceeded his powers by adding mitigating factors to the definition of just cause in regard to the determination of appropriate discipline. This Court disagrees. {¶ 11} R.C. 2711.15 states that "[a]n appeal may be taken from an order confirming, modifying, correcting, or vacating an award made in an arbitration proceeding or from judgment entered upon an award." This Court's review, however, is limited to a review of the trial court's order. Warren Edn. Assn. v. WarrenCity Bd. of Edn. (1985), 18 Ohio St.3d 170, 174. {¶ 12} R.C. 2711.10 provides, in pertinent part: "In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if: "* * * "(D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." {¶ 13} An arbitrator exceeds his powers when the award fails to draw its essence from the collective bargaining agreement.Carrollton Exempted Village School Dist. Bd. of Edn. v. OhioAssn. of Public School Emp., 7th Dist. No. 03CA795,2004-Ohio-1385, at ¶ 19. "An arbitrator's award draws its essence from a collective bargaining agreement when there is a rational nexus between the agreement and the award, and where the award is not arbitrary, capricious or unlawful." Communications Workersof America, Local #4546 v. Summit Cty. Children Servs. Bd. (Mar. 31, 1999), 9th Dist. No. 19122, quoting Mahoning Cty. Bd. ofMental Retardation v. Mahoning Cty. TMR Edn. Assn. (1986),22 Ohio St.3d 80, 84. Where the arbitrator has arguably construed the contract, the trial court must affirm his opinion. Clevelandv. Fraternal Order of Police, Lodge No. 8 (1991),76 Ohio App.3d 755, 758, citing Summit Cty. Bd. of Mental Retardation Developmental Disabilities v. Am. Fedn. Of State, Cty. and Mun.Emp. (1988), 39 Ohio App.3d 175. The reasoning behind this is because the parties have bargained for the arbitrator's determination. Fraternal Order of Police,76 Ohio App.3d at 758. {¶ 14} As a necessary corollary, "An arbitrator's award departs from the essence of a collective bargaining agreement when: (1) the award conflicts with the express terms of the agreement, and/or (2) the award is without rational support or cannot be rationally derived from the terms of the agreement." Cambridge v. AFSCME, Ohio Council 8, AFL-CIO,Local 2316 (Apr. 4, 2000), 5th Dist. No. 1999CA30, quoting OhioOffice of Collective Bargaining v. Ohio Civ. Serv. Emp. Assn.,Local 11, AFSCME, AFL-CIO (1991), 59 Ohio St.3d 177, syllabus. Accordingly, where the arbitrator's award conflicts with the terms of the CBA and/or is not rationally supported, the arbitrator has exceeded his authority, mandating vacation of the award. Id. {¶ 15} "An arbitrator is confined to interpreting the provisions of a CBA as written and to construe the terms used in the agreement according to their plain and ordinary meaning."Internatl. Assn. of Firefighters, Local 67 v. Columbus (2002),95 Ohio St.3d 101, 103, citing Ohio Office of CollectiveBargaining, 59 Ohio St.3d at 180. In Internatl. Assn. ofFirefighters, the Ohio Supreme Court vacated an arbitration decision, where the arbitrator looked outside the CBA for a definition of "other disabilities." The CBA provided that firefighters shall receive paid injury leave "for injuries orother disabilities determined by the Finance Department Director * * * as caused or induced by the actual performance of his or her position." (Italics in original.) Id. at 102. The CBA authorized the finance director to make necessary rules, and those rules defined the term "other disabilities." Id. at 103. The CBA itself, however, did not define the term "other disabilities." The Supreme Court held: "Even though the CBA does not define what is meant by the term `other disabilities,' this does not give the arbitrator the authority to rely on the city's own definition of that term. Instead, since the CBA is silent on this point, the term `other disabilities' must be given its ordinary meaning." Id. The Supreme Court then looked to Black's Law Dictionary for a definition of the term, found that it did not comport with the finance director's definition, and vacated the arbitrator's decision based on his having exceeded his powers. {¶ 16} In this case, the issue before the arbitrator was whether CSB violated the CBA, when it terminated Ms. Scott. Accordingly, the arbitrator had to determine whether CSB had "good cause" to take any corrective action and, if so, whether the type of corrective was based on "good cause." The CBA does not define "good cause." Therefore, the arbitrator must have given that term its ordinary meaning. Black's Law Dictionary (7 Ed. 1999) 213 defines "good cause" as "[a] legally sufficient reason." Black's further notes that "[t]he term is often used in employment-termination cases." Id. {¶ 17} Rather than using the ordinary meaning of "good cause," the arbitrator stated: "I accept the Union's approach to the question of whether the Employer had `good cause' to fire the Grievant, by asking whether each finding of a rule infraction meets the seven elements of `just cause' established by Arbitrator Carroll Daugherty." The arbitrator then found that CSB did not have good cause under the seventh element, which states: "Was the degree of discipline reasonably related to the seriousness of the employee's proven offense and his/her record of service with the employer (mitigating circumstances)?" Pursuant to the CBA, however, there is no requirement that CSB based any corrective actions on the employee's record of service or other mitigating circumstances. Section 404.03 merely requires that: "The Employer shall administer all corrective actions in a progressive manner. Corrective actions must be based on good cause, be uniformly applied, and be consistent with the Employer's Table of Discipline governing such actions, except that the Employer may apply a lesser penalty for the recommended standard penalties." {¶ 18} The arbitrator in this case ignored the plain language of the CBA, relied on a definition of "good cause" outside the terms of the CBA, and created a contract of his own "by imposing additional requirements not expressly provided for in the agreement." See Internatl. Assn. of Firefighters,95 Ohio St.3d at 104. The trial court found the same. Specifically, the arbitrator here required that CSB consider Scott's service record and other mitigating circumstances before the agency might have good cause to impose the harshest form of discipline, i.e., termination. "[A] CBA is limited to the provisions bargained for and an arbitrator may not apply extraneous rules to the agreement, where those rules were not bargained for and are contrary to the plain terms of the agreement itself." Id. {¶ 19} This Court finds that, by applying the extraneous definition of "good cause" as formulated by Arbitrator Daugherty's seven elements of good cause, the arbitrator imposed additional requirements on CSB before the agency might exercise its rights under the CBA, including, but not limited to the right to "manage and direct its employees, including the right to select, * * *, reprimand, suspend, discharge, reward or discipline for cause, and to maintain discipline among employees[.]" Accordingly, we find that the arbitrator's opinion is not rationally derived from the terms of the CBA and the arbitrator exceeded his powers as proscribed in R.C. 2711.10(D). This Court, therefore, finds that the trial court did not err in vacating the arbitrator's opinion and award on that basis. Appellant's second, third, fourth and fifth assignments of error are overruled. FIRST ASSIGNMENT OF ERROR "THE TRIAL COURT ERRED IN VACATING THE ARBITRATOR'S AWARD, FOR THE REASON THAT THE APPELLEE IS ESTOPPED TO DENY THE AUTHORITY OF THE ARBITRATOR OVER THE SUBJECT MATTER SUBMITTED." {¶ 20} Because our decision regarding the second, third, fourth and fifth assignments of error is dispositive, we decline to address appellant Union's first assignment of error. III. {¶ 21} Appellant's second, third, fourth and fifth assignments of error are overruled. This Court declines to address the first assignment of error. The judgment of the Summit County Court of Common Pleas, which vacated the opinion and award of the arbitrator, 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. Whitmore, P.J. Moore, J. concur. (Reece, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.)

2016-07-06 06:42:29.101964+00

OPINION Appellant Amy Condos appeals the decision of the Stark County Court of Common Pleas, Juvenile Division, that granted custody of her three minor children to the Stark County Department of Job Family Services ("Department.") The following facts give rise to this appeal. On February 11, 1999, the Department filed a complaint alleging abuse and seeking temporary custody of appellant's three minor children: Demarcus, Brooklyn and Desmond Redrick. The complaint alleged that appellant's boyfriend and other friends abused the children. On April 22, 1999, the trial court found Brooklyn to be dependent and Demarcus and Desmond to be abused. Appellant stipulated to these findings. The trial court awarded temporary custody of the children to the Department and placed the children in foster care. Thereafter, appellant was provided with a case plan. On November 17, 1999, appellant pled guilty to three counts of misdemeanor child endangering stemming from the facts of this case. The trial court placed appellant on probation for two years. On December 16, 1999, the Department filed a motion for permanent custody. Appellant filed a motion for change of legal custody, of the three minor children, to their maternal grandmother Deborah Austin. The trial court conducted the permanent custody trial on April 25, 2000. On May 24, 2000, the trial court filed Findings of Fact and Conclusions of Law granting the Department's motion for permanent custody. Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration: I. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO HOLD THE BEST INTEREST PHASE OF THE PERMANENT CUSTODY TRIAL BEFORE GRANTING PERMANENT CUSTODY TO THE STARK COUNTY DEPARTMENT OF HUMAN SERVICES. II. THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING APPELLANTS (SIC) MOTION FOR A CHANGE OF LEGAL CUSTODY WITHOUT CONSIDERING THE BEST INTERESTS OF THE CHILDREN. III. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO BASE ITS FINDINGS OF FACTS ON THE EVIDENCE PRESENTED AT TRIAL. IV. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. V. THE DECISION OF THE TRIAL COURT OVERRULING APPELLANTS (SIC) MOTION FOR A CHANGE OF LEGAL CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. I In her First Assignment of Error, appellant contends the trial court erred when it failed to conduct the best interest phase of the permanent custody trial before granting permanent custody of her three minor children to the Department. We agree. The record indicates that the trial court conducted a hearing on the Department's motion for permanent custody on April 25, 2000. On May 24, 2000, the trial court filed a notice of hearing for the best interest phase of the trial, to be conducted on August 2, 2000. However, on this same date, May 24, 2000, the trial court also filed its judgment entry granting permanent custody of the children to the Department. We have previously addressed this issue in the cases of In Re Lewis Children (June 15, 1998), Stark App. No. 1997CA00251, unreported and In Re Wallace Children (Dec. 30, 1997), Stark App. No. 1997CA00033, unreported. In both of those cases, we held that "* * * based upon a reading of R.C.2151.414, a trial court must conduct the hearing provided for in section (A) of the statute before it can terminate parental rights and grant permanent custody to the Agency." Lewis at 2, citing Wallace at 5. Accordingly, appellant's First Assignment of Error is sustained. We will not address appellant's Second, Third, Fourth and Fifth Assignments of Error as they are moot based on our disposition of appellant's First Assignment of Error. For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby reversed and remanded for proceedings consistent with this opinion. Upon remand, the trial court shall conduct the best interests hearing, issue a judgment entry and make its determination regarding the termination of parental rights and grant of permanent custody based upon the status of the evidence presented at the permanent custody hearing and best interests hearing. By: Wise, J. Gwin, P.J., concurs. Hoffman, J., concurs separately.

2016-07-06 06:42:28.890441+00

OPINION R. Martin West appeals from his conviction in the Darke County Municipal Court of making a prohibited right turn on red and driving while under suspension. Matt Collett, a police officer for the City of Greenville testified he was on duty on October 29, 1999 at 12:18 p.m. when he observed the appellant make a right turn with his automobile at a stop light where it was prohibited to make a right turn between 7:30 a.m. and 3:30 p.m. Collett said he had a clear view of the violation from a block away. Collett testified he stopped the appellant and explained why he was conducting the traffic stop. Collett said the defendant told him he hadn't noticed the sign at the light restricting right turns during certain hours. (Tr. 7). The appellant testified the light was green when he proceeded through the traffic light. (Tr. 8). Mario Lanham testified he was a passenger in appellant's car when appellant was stopped by Officer Collett. Lanham testified he wasn't paying much attention at the time the appellant turned right. He testified he didn't observe the color of the light or see the warning sign as appellant make made the right turn. Lanham said the appellant did not completely stop his vehicle at the light. (Tr. 12). On the driving while under suspension charge, Officer Scott Drew of the Greenville Police Department testified he observed appellant driving his car on East Main Street in Greenville at 11:43 a.m. Since Drew knew that the appellant's license had been suspended and his driving privileges limited to occupational purposes, he followed the appellant's vehicle. Drew testified he observed the appellant drop a female passenger off at the Warner Cable office. Drew said the appellant observed him following him and asked what Drew wanted. Drew said he asked appellant if he was driving his car on business and the defendant admitted he wasn't. (Tr. 25). Drew said the appellant said he gave a friend a ride to Warner Cable and was going to return home., Appellant testified he was on business when he was cited for driving while under suspension by Officer Drew. Appellant testified he is self-employed selling direct television to businesses and he was on his way to Dayton. Appellant said Mario Lanham was with him as a passenger and he was training Lanham in the business. (Tr. 40). Lanham testified he was with the appellant when Officer Drew cited appellant for the driving while under suspension violation. Lanham said his friend, Roxanne, asked for a ride to Time Warner Cable. Lanham said appellant and he were headed to the bank to get money for gas and therefore they gave the girl a ride to Time Warner Cable after they left the bank. Lanham said he heard the defendant deny he was heading home after dropping off Roxanne. In finding the defendant guilty of driving while under suspension, the trial court stated the following: THE COURT: So going to the bank is clearly something that people have to do in the operation of the business, and I disagree with Mr. Amick. You have that right. Getting gas for your car to operate is another thing that you need to do in operating your business. So I disagree with Mr. Amick on that aspect. However, dropping off Roxanne at Warner Cable is not part of your business. That's where you diverted from going to work, from work, and in the course of your employment unless you are a taxi service; and you are not. You did not have that right to give her any type of favor. She either had to walk or get off when you stopped at the bank or when you stopped at the gas station. But when you drove her from that gas station or the bank, and I got confused about which was latter, then you diverted from your authority. The Court said to, from, and during the course of your employment only. The trial court imposed a suspended thirty day jail term and fined appellant $100., Appellant contends the judgment of the trial court should be reversed because he did not commit the traffic violations and the Greenville Police Department was merely harassing him in issuing the citations. It is fundamental that the weight to be given the evidence and the credibility of the witnesses is primarily for the trier of the facts. State v. DeHass (1967), 10 Ohio St.2d 230. See also,State v. Thompkins (1997), 71 Ohio St.3d 380 [78 Ohio St.3d 380]. In this case the trial judge assessed the credibility of the defendant and that of Officer Collett and concluded that Collett saw the defendant violate the statute precluding turns on a red light during prohibited hours. The court also concluded that appellant's giving a ride to Mario Lanham's friend was an excursion outside the parameters of appellant's occupational driving privileges. Both findings are supported by the evidence and the law and thus we must affirm the trial court's judgment. The assignment of error is overruled. Judgment of the trial court is Affirmed. __________________________ BROGAN, J. WOLFF, J., and YOUNG, J., concur.

2016-07-06 06:42:29.019111+00

OPINION. *Page 2 {¶ 1} In five assignments of error, defendant-appellant Terry Mizell claims that he was improperly convicted of child endangerment and felonious assault.1 We reject these claims and affirm the judgment of the trial court. Baby Receives Severe Injuries {¶ 2} On July 20, 2006, DaJawana Martin left for work at 5:45 AM and left her children in the care of Mizell. She had known Mizell for four months, and he had been living with her for two months. At the time she left for work, her two-month-old son, Skylan, was healthy. {¶ 3} At some point in the morning, Skylan suffered a significant brain injury. Mizell claimed, in a subsequent statement to police, that the child had fallen from a bed (which was approximately 24 inches — at most — high) and had landed on the hard floor. Mizell said that he had performed CPR on the child because the child was unresponsive. {¶ 4} Mizell sent a text message to Martin later in the day, telling her that Skylan had fallen from the bed. The two sent messages back and forth for the next hour. Mizell did not give details about the incident to Martin, including the fact that he had performed CPR on the infant. The two eventually decided that Mizell should take Skylan to the emergency room. At no point did Mizell call 911. {¶ 5} Martin had to take the bus from her worksite to meet Mizell at the hospital. The bus ride took over an hour, and when she arrived, Mizell and Skylan were not there. According to Martin, Skylan appeared lifeless when he arrived at the hospital. *Page 3 While it is not entirely clear from the record, several hours seem to have passed between the time of the injury and Skylan's arrival at the emergency room. {¶ 6} Emergency-room personnel immediately began to administer CPR and other life-saving measures. The infant was then taken into emergency surgery to relieve pressure from his brain. Because of the significant delay, Skylan's injuries had become more serious. While Skylan survived, he is developmentally delayed and has cerebral palsy and a reduced brain size. His brain will remain undersized for the rest of his life. He continues to receive treatment. The Road to Conviction {¶ 7} Mizell was charged with child endangerment, in violation of R.C. 2919.22(A), under case number B-0606897. Mizell entered a plea of guilty on February 8, 2007. After the trial court reviewed presentence information and determined that it would not sentence Mizell to community control, Mizell was allowed to withdraw the plea on April 9, and the case was set for trial on June 4. {¶ 8} On May 9, the Hamilton County Grand Jury returned a one-count indictment against Mizell for felonious assault, in violation of R.C. 2903.11(A)(1), under case number B-0704314. The indictment alleged that Mizell had knowingly caused serious physical harm to Skylan. {¶ 9} On June 4, Mizell failed to appear for his trial and a capias was issued. He was arrested ten days later. {¶ 10} The two cases were joined and were set for trial on August 13. On that date, counsel asked for a continuance and a competency evaluation because Mizell was not assisting in his defense. A hearing was held on September 18, Mizell was deemed competent, and the case was set for trial on October 9. *Page 4 {¶ 11} On the date set for trial, Mizell informed the trial court that he was not satisfied with his attorney and wanted new counsel. The attorney he had was the second attorney that had been appointed for him, the first having withdrawn in November 2006. The trial court denied his request. Mizell continued to argue with the trial court, becoming increasingly uncooperative and repeatedly ignoring the trial court's instructions to calm down. He then briefly struggled with one deputy until others were called to restrain him. {¶ 12} Because of his conduct, deputies requested that they be allowed to place Mizell in a stun belt. A hearing was held immediately after Mizell was placed in the belt, during which the trial court gave its reasons for ordering the use of the belt. {¶ 13} At this point, Mizell asked to represent himself and sought a continuance so that he could review the medical records. The trial court allowed Mizell to represent himself, with his appointed attorney as standby counsel, and told Mizell that he could have a few hours to review the records. But the request for a continuance was denied. {¶ 14} Acting as his own counsel, Mizell repeatedly informed the prospective jurors that he was representing himself because the trial court would not give him a new lawyer. The trial court informed him that these comments were improper. In response, and in an attempt to show the jurors the conditions under which he was operating, he told them that "the Court has gotten irate and threatening [sic] with me with various things." He showed them the stun belt and told them, "I have an electronic shock around my waist that if I say anything or do anything that the Court disagrees with, that officer there will push a button and 50,000 volts of electricity will come through me." The trial court instructed the jury not to speculate on the reasons that the belt was being used, nor was it to consider its use as evidence against him. *Page 5 {¶ 15} After the state gave its opening statement, Mizell was asked to give his. Instead, he repeatedly asked the trial court for a continuance so that he could prepare his case. The trial court denied the request. Mizell's opening statement consisted mainly of the argument that everyone involved in the case knew that his crimes were not serious because he had been offered probation as part of the plea process. The trial court sustained the state's objections to this, and it was ordered stricken from the record. {¶ 16} The state called Martin to testify. But Mizell kept talking and interrupting, which prevented the prosecutor from hearing Martin's responses to his questions. Mizell was warned to be quiet. When questioning resumed, Mizell continued to disrupt the proceedings. When the trial court again admonished Mizell, he continued to respond that he needed "to get the evidence I requested." When he was told that he would be removed if he did not stop, he continued. After Mizell was removed, the prosecutor told the trial court that Mizell had told corrections officers in the jail that "he was going to get his continuance today no matter what he had to do." Standby counsel was returned to his role as primary counsel, and the case proceeded. {¶ 17} Mizell was allowed to return to the trial on the second day of the proceedings. After the state rested, Mizell tried to call two witnesses who were going to testify that Mizell had been offered probation, but the trial court refused to allow the testimony. {¶ 18} The trial concluded, and the jury found Mizell guilty of both counts. For the child-endangerment count, the trial court imposed the maximum sentence of five years "because you didn't take the child to the hospital. Maybe if you had taken the child to the hospital sooner, he wouldn't have been as bad." For the felonious-assault count, the trial court imposed the maximum sentence of eight years "because it's clear that you *Page 6 shook this baby, injured it initially." The trial court ordered Mizell to serve the sentences consecutively. Use of Stun Belt {¶ 19} In his first assignment of error, Mizell argues that the trial court abused its discretion by ordering him to wear a stun belt during the trial. We disagree. {¶ 20} As this court has noted, "[a] stun belt may be used only under `unusual circumstances' and only as a `last resort.' A court may order a stun belt only when the record shows that restraints are justified `by an essential state interest specific to each trial,' and when, upon consideration of `the [defendant's] actions both inside and outside the courtroom, as well as his demeanor while court is in session,' the court finds that the stun belt is necessary to advance that state interest."2 {¶ 21} In this case, Mizell's conduct prior to the trial court's decision to order the use of the stun belt amply justified the decision to do so. He had demonstrated that he would not listen to the instructions of the court, and that he was not above becoming physical to show his displeasure with the proceedings. The evidence supported the conclusion that the use of the stun belt was necessary to advance an essential state interest — an orderly proceeding. {¶ 22} Even if the record did not so support the conclusion, we would find no reversible error. The Ohio Supreme Court has held that a defendant waives any error relating to the use of a stun belt by failing to object.3 Since Mizell failed to object at trial, he would have to show prejudicial plain error to prevail on appeal.4 *Page 7 {¶ 23} The record does not indicate that Mizell was made uncomfortable by the belt or that it impeded his ability to represent himself or to assist counsel. Therefore, the only way that Mizell could show prejudice would be if the jury was made aware of it.5 While the jury did know that he was wearing the belt, the jurors only knew this because Mizell himself showed it to them during voir dire. Thus, any error in this regard would have been invited. {¶ 24} Mizell's first assignment of error is overruled. The Motions for a Continuance and New Counsel {¶ 25} In his second assignment of error, Mizell contends that the trial court abused its discretion when it denied his motion for the appointment of a new attorney. He also challenges the denial of the continuance he sought to review the records and to prepare his defense. {¶ 26} The right to counsel does not include a right to a peaceful and meaningful relationship between counsel and the defendant.6 "[T]o discharge a court-appointed attorney, the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel. The term of art `actual conflict' refers not to a personality conflict but to a conflict of interest. The Sixth Amendment does not guarantee `rapport' or a `meaningful relationship' between client and counsel."7 Thus, "[h]ostility, tension, or personal conflict between an attorney and a client that do not interfere with the preparation or presentation of a competent defense are insufficient to justify the *Page 8 withdrawal of appointed counsel."8 Under the relevant analysis, the right to counsel must be balanced against the court's authority to control its docket, as well as its awareness that a "demand for counsel may be utilized as a way to delay the proceedings or trifle with the court. "9 {¶ 27} In evaluating a motion for a continuance, the trial court should consider (1) the length of the requested delay; (2) whether other continuances have been granted; (3) the inconvenience to the litigants, witnesses, opposing counsel, and the court; (4) whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; (5) whether the defendant has contributed to the circumstance that gives rise to the request for a continuance; and (6) other relevant factors of each case.10 {¶ 28} This case had been pending in the trial court for many months, and it was not until the day of trial that Mizell claimed that he needed a new attorney. Throughout the proceedings, Mizell's conduct was disrespectful and disruptive. The trial date had been continued several times, once because Mizell failed to appear and once because his refusal to cooperate with counsel rose to the level of bringing his competence into question. His behavior made it clear that he would have done whatever it took to derail the proceedings. The trial court did not abuse its discretion when it reached this conclusion. Therefore, the decision not to continue the case or to appoint *Page 9 new counsel was not an abuse of discretion. Mizell's second assignment of error is overruled. Right to Self-Representation {¶ 29} In his third assignment of error, Mizell argues that the trial court improperly infringed on his constitutional right to represent himself by removing him from the courtroom due to his disruptive behavior and by allowing standby counsel to represent him during his absence. We disagree. {¶ 30} The right to self-representation is not absolute.11 At times, the government's interest in ensuring the integrity and efficacy of the trial will outweigh the defendant's interest in acting as his own lawyer.12 Further, standby counsel may participate in the trial proceedings, even without the express consent of the defendant, as long as that participation does not "seriously undermine" the "appearance before the jury" that the defendant is representing himself.13 {¶ 31} We hold that when a defendant elects to represent himself at trial in a criminal proceeding, and that defendant's conduct, following a warning to desist, is so disruptive that it threatens the integrity and efficacy of the trial, he has forfeited his right to self-representation.14 The trial court may remove the defendant from the proceedings and allow standby counsel to represent the defendant.15 In its discretion, the court may *Page 10 allow the defendant to return and resume his self-representation when it is satisfied that the defendant no longer poses a risk of future disruption. {¶ 32} In this case, Mizell's continued disruptive behavior threatened to undermine the integrity and efficacy of the trial. His outbursts during the state's direct examination of Martin were distracting to the jury and prevented the prosecutor from hearing her responses to his questions. Mizell was warned repeatedly that continuing on that course would result in his removal from the proceedings. His continued disruptive behavior resulted in the forfeiture of his right to self-representation. The trial court did not abuse its discretion when it ordered Mizell to be removed. Nor did it abuse its discretion when it ordered standby counsel to resume his role of representing Mizell until the court became satisfied that Mizell could return and resume self-representation. {¶ 33} Within this assignment of error, Mizell claims that appointed counsel was ineffective during the time he stood in Mizell's place. He argues, without citation to the record, that "he allowed the prosecutor to completely lead all of the State's witnesses," that "[h]e allowed the State's witnesses to offer hearsay statements and offer opinions of third parties without objection," and that "[h]e allowed Ms. Martin to parade the child in front of the jury." {¶ 34} The failure to object to leading questions does not constitute ineffective assistance.16 As for the complaints regarding hearsay and third-party opinions, Mizell has not cited the specific instances of allegedly ineffective assistance in the record, nor has he demonstrated how he was prejudiced by any such transgressions.17 Finally, *Page 11 Mizell fails to argue how allowing the jury to see the victim in this case was ineffective assistance.18 {¶ 35} Mizell's third assignment of error is overruled. Pre-Indictment Delay and Speedy Trial {¶ 36} In his fourth assignment of error, Mizell claims that the trial court committed plain error when it failed to dismiss the felonious-assault charge due to pre-indictment delay and a violation of his right to a speedy trial. We disagree. {¶ 37} We addressed nearly the identical argument in State v.Maddox, 19 and the holding in that case is controlling here. InMaddox, the defendant faced two separate indictments, filed two years apart, arising from the same course of conduct. This court noted the recent Ohio Supreme Court decision in State v. Blackburn20 and concluded that "there were numerous delays occasioned by Maddox before the issuance of the 2006 indictment, and there was no assertion that the speedy-trial time had expired with respect to the 2004 charges. UnderBlackburn, the delays attributable to Maddox under the 2004 indictment applied also to the 2006 charges, and the later charges were therefore brought to trial within the deadline imposed by the speedy-trial statute." *Page 12 {¶ 38} In this case, there was no claim that the speedy-trial time had expired with respect to the child-endangerment charge in the case numbered B-0606897; therefore any delays in that case did not work in Maddox's favor in the prosecution of the separately numbered felonious-assault charge. The felonious-assault charge was brought to trial within the deadline imposed by the speedy-trial statute. {¶ 39} The Maddox decision also addressed the issue of pre-indictment delay. In that case, this court rejected the argument regarding pre-indictment delay because the defendant had failed to show prejudice.21 This court held that even though the state may have had all the information necessary to include the additional charges in the original indictment, the defendant had to show that prejudice had resulted from the delay.22 {¶ 40} In this case, Mizell argues that he was prejudiced because "the Felonious Assault charge was much more significant [than] the Endangering charge, plus Appellant was subject to consecutive sentences for each charge, which again, significantly increased his potential prison sentence." But this argument only relates to how Mizell may have been prejudiced in a general sense by being charged with felonious assault, and it has no bearing on any prejudice he may have suffered as a result of the pre-indictment delay. When a defendant points to no particularized loss of evidence or witnesses as a result of pre-indictment delay, and when nothing in the record demonstrates such a loss, no actual prejudice is shown.23 *Page 13 {¶ 41} Mizell also argues that counsel was ineffective for failing to raise these issues below. But since the arguments would have been without merit had they been raised, counsel was not ineffective for failing to raise them. Mizell's fourth assignment of error is overruled. Sufficiency and Manifest Weight of the Evidence {¶ 42} In his last assignment of error, Mizell claims that his convictions were based upon insufficient evidence and were against the manifest weight of the evidence. We disagree. {¶ 43} In a challenge to the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt.24 In a challenge to the weight of the evidence, we must review the entire record, weigh the evidence, consider the credibility of the witnesses, and determine whether the trier of fact clearly lost its way and created a manifest miscarriage of justice.25 {¶ 44} To convict Mizell of child endangerment, the state had to prove that, while acting in loco parentis, he had created a substantial risk to the health or safety of Skylan by violating a duty of care, protection, or support.26 To convict Mizell of felonious assault, the state had to prove that he had knowingly caused serious physical harm to Skylan.27 {¶ 45} The evidence demonstrated that Mizell had been charged with the care of Skylan on July 20, 2006. While Mizell was watching the child, he suffered a *Page 14 significant injury that Skylan's treating doctor testified could not have been the result of a fall from a bed, as Mizell had claimed in his statement to police. The doctor testified that the "only mechanism" for such injuries was "a violent shaking type of episode that happens to these babies." The doctor also testified that the significant delay between the onset of the injury and the initial treatment made the condition worse since "the quicker that we can catch this type of bleeding and monitor these children and provide, if needed, surgical intervention, the better the prognosis." {¶ 46} Mizell claims that he did not violate a duty of care owed to Skylan because Skylan accidentally fell from a bed, he performed CPR and monitored the child, the child was responsive and he believed the child would be fine, and he took the child to the hospital. But his account of how the injury occurred was directly contradicted by the medical evidence presented. His claim that the child improved after CPR was contradicted by the testimony that "Skylan would have manifested some type of symptoms soon after his injury and over time would have deteriorated in his condition." Finally, he admitted that he did not call 911 because "like I said, I'm thinking this little boy can't die in my custody. This little boy can't die on my watch." This admission, coupled with a previous comment that he had wanted to wait until Martin returned home, could easily have led the jury to conclude that Mizell had purposefully delayed seeking treatment in an attempt to avoid responsibility for his actions, to the great detriment of the infant Skylan. {¶ 47} Based upon the record before us, a rational trier of fact could have found all the essential elements of child endangerment and felonious assault beyond a reasonable doubt. Additionally, we have reviewed the entire record, weighed the evidence, and considered the credibility of the witnesses. In our view, the trier of fact *Page 15 did not lose its way and create a manifest miscarriage of justice. Mizell's fifth assignment of error is overruled. Conclusion {¶ 48} For the foregoing reasons, we overrule Mizell's five assignments of error. The judgment of the trial court is affirmed. Judgment affirmed. SUNDERMANN, P.J., and HENDON, J., concur. 1 R.C. 2919.22(A) and 2903.11(A)(1). 2 State v. Leonard, 1st Dist. No. C-061025, 2007-Ohio-7095, at ¶ 6 (citations omitted). 3 State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404,858 N.E.2d 1144, at ¶ 247. 4 Id. 5 See Johnson, 112 Ohio St.3d 210, at ¶ 248. 6 State v. Henness, 79 Ohio St.3d 53, 65, 1997-Ohio-405,679 N.E.2d 686. 7 Id. 8 State v. Crew, 8th Dist. No. 86943, 2006-Ohio-4102, at ¶ 17, quoting State v. Dykes, 8th Dist. No. 86148, 2005-Ohio-6636. 9 Id., citing United States v. Krzyske (C.A.6, 1988), 836 F.2d 1013,1017; see, also, State v. Murphy, 91 Ohio St.3d 516, 523, 2001-Ohio-112,747 N.E.2d 765. 10 State v. Hillis, 162 Ohio App.3d 280, 2005-Ohio-3591,833 N.E.2d 344, at ¶ 10, citing State v. George, 1st Dist. No. C-030216,2004-Ohio-2868, at ¶ 49, and State v. Unger (1981), 67 Ohio St.2d 65,423 N.E.2d 1078. 11 Martinez v. Court of Appeal of California (2000), 528 U.S. 152,161, 120 S.Ct. 684. 12 Id. 13 Martinez, 528 U.S. at 162, citing McKaskle v. Wiggins (1984),465 U.S. 168, 187, 104 S.Ct. 944. 14 See United States v. Young (S.D.Ohio 2001), 199 F.Supp.2d 697 (the trial court may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct), citingUnited States v. Brock (C.A.7, 1998), 159 F.3d 1077. 15 See Young, 199 F.Supp.2d at 702 ("Based upon the foregoing, the Court revokes the Defendant's right of self-representation. As a consequence, the Court removes Charles A. Smiley, Jr., as Defendant's legal advisor, and reappoints him as counsel of record for the Defendant."). 16 State v. Jefferson, 2nd Dist. No. 2002 CA 26, 2002-Ohio-6377, at ¶ 9, citing State v. Jackson, 92 Ohio St.3d 436, 449, 2001-Ohio-1266,751 N.E.2d 946. 17 See Strickland v. Washington (1984), 466 U.S. 668, 687,104 S.Ct. 2052; see, also, State v. Wharton, 9th Dist. No. 23300, 2007-Ohio-1817, at ¶ 43 (when a defendant does not provide specific citations to the record, law, or argument related to ineffective assistance, it is not the court's duty to scour the record for evidence to support the claim), discretionary appeal not allowed, 115 Ohio St.3d 1412, 2007-Ohio-4884,873 N.E.2d 1316. 18 See State v. Kemp (Oct. 31, 1997), 1st Dist. No. C-960478 (a trial court acts within its discretion in permitting the jury to see a victim's scars because no unfair prejudice, as required by Evid. R. 403, results therefrom). 19 1st Dist. Nos. C-070482 and C-070483, 2008-Ohio-3447. 20 Maddox, 2008-Ohio-3477, at ¶ 15, citing State v. Blackburn,118 Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, syllabus ("In calculating the time within which a criminal defendant must be brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by the defendant in a previous case also apply in a subsequent case in which there are different charges based on the same underlying facts and circumstances as the previous case."). 21 Id. at ¶ 17-18. 22 Id. at ¶ 18. 23 See State v. Neeley (2001), 143 Ohio App.3d 606, 633-634,758 N.E.2d 745, discretionary appeal not allowed (2001), 93 Ohio St.3d 1427,755 N.E.2d 35. 24 State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. 25 State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52,678 N.E.2d 541. 26 R.C. 2919.22(A). 27 R.C. 2903.11(A)(1). *Page 1

2016-07-06 06:42:29.36836+00

OPINION Defendant-appellant, Newcome Corp. ("Newcome"), appeals from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of plaintiff-appellee, TLG Electronics, Inc. ("TLG"), in TLG's action for payment on an account for goods Newcome ordered pursuant to a purchase order. Newcome assigns a single error: THE TRIAL COURT ERRED IN SUSTAINING APPELLEE'S MOTION FOR SUMMARY JUDGMENT. According to the evidence presented in the trial court in connection with TLG's summary judgment motion, on January 9, 1992, the parties entered into a written agreement. According to its terms, TLG agreed to supply Newcome with different types of computer cables of various lengths bearing Newcome's name and telephone number. The agreement also included the following language: Because these items require a min [sic] order quantity and are purchased specifically for your company we need you to return this letter signed. Your commitment to TLG is to purchase this proprietary inventory from TLG, in the event you no longer require this inventory for any reason, this inventory will be considered to be inactive after 90 days of non usage by Newcome Electronics. After 90 days TLG will present an invoice to Newcome for existing inventory, Newcome will pay for such inventory under normal TLG terms and advise TLG of disposition of these inventories. The agreement was signed by authorized agents of TLG and Newcome. In late 1997 or early 1998, Newcome advised TLG of its intent to change its cable supplier. On February 5, 1998, TLG sent Newcome a letter indicating TLG had in stock a considerable amount of cable purchased exclusively for Newcome, and it expected Newcome to honor its commitment to purchase the inventory. On October 2, 1998, TLG followed up with a letter to Newcome stating that "no substantial movement of this inventory" had taken place during the previous eight months. Pursuant to the agreement, TLG (1) requested Newcome issue a purchase order for TLG's remaining inventory, and (2) stated TLG was "willing to work out payment terms and keep the material at [TLG's] facility for a period of 12 months at no charge to [Newcome] for warehousing." On or about May 7, 1999, Newcome issued purchase order number 38882 ("PO #38882") ordering $34,786.80 of cable. The delivery date for the order was written as "TBD." TLG attempted delivery of the goods, but Newcome accepted and paid for only $5,510 in cable; it refused delivery on the remaining cable worth $29,276.80. On May 31, 2000, TLG filed a complaint against Newcome alleging breach of contract, quantum meruit, quantum valebant and a cause of action on account for Newcome's refusal to accept and pay for the remainder of the cable encompassed in PO #38882. TLG followed the complaint with a motion for summary judgment, seeking judgment as a matter of law on the account. (See May 7, 2001 Decision, 1-3.) The trial court found PO #38882 to be a binding contract between the parties and granted TLG summary judgment. On June 5, 2001, TLG dismissed all of its remaining claims against Newcome. With no additional issues remaining, the trial court entered judgment for TLG on June 13, 2001, awarding TLG not only $29,276.80, but also charges for TLG's storage of the cable goods from October 2, 1999, twelve months after TLG's follow-up letter to Newcome, plus statutory interest and costs in the action. On appeal, Newcome asserts genuine issues of material fact precluded the trial court's finding that PO #38882 was a binding contract. Newcome contends the material issues of fact are (1) whether the purchase order was a contract, by which defendant was bound to purchase all of TLG's excess cable inventory, rather than an expression of Newcome's willingness to merely consider the purchase of cable from TLG if and when it was practicable, (2) whether the "TBD" shipping term on the purchase order reflected Newcome's intent not to bind itself to a contract to purchase all the cable, (3) whether Newcome's purchase of some cable pursuant to the purchase order was sufficient to demonstrate Newcome's intent to purchase all cable referenced on the purchase order, and (4) whether Newcome properly rejected nonconforming goods. Summary judgment shall not be rendered unless the moving party demonstrates that (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, with the non-moving party being entitled to have the evidence construed most strongly in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183. Appellate review of summary judgment motions is de novo. Motorists Mut. Ins. Co. v. Natl. Dairy Herd Improvement Assn., Inc. (2001), 141 Ohio App.3d 269,275. Accordingly, we stand in the shoes of the trial court and conduct an independent review of the record. A valid contract requires that the parties have a meeting of the minds. Noroski v. Fallet (1982), 2 Ohio St.3d 77, 79. The "meeting of the minds" is normally manifested by an offer on the one side and acceptance on the other. Nilavar v. Osborn (2000), 137 Ohio App.3d 469, 484; Dalicandro v. Morrison Rd. Dev. Co., Inc. (Apr. 17, 2001), Franklin App. No. 00AP-619, unreported. However, a liberal definition governs the formation of sales contracts under R.C. 1302.07, which provides that "[a] contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract." American Bronze Corp. v. Streamway Products (1982), 8 Ohio App.3d 223, 227. "[A]n offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances[.]" R.C. 1302.09(A)(1). See, also, Leaseway Distribution Centers, Inc. v. Ohio Dept. of Adm. Serv. (1988),49 Ohio App.3d 99, 105 (an offer is "the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it"). "[C]onduct sufficient to show agreement, including performance, is a reasonable mode of acceptance." Central Transport, Inc. v. Cleveland Metallurgical Supply Co. (July 15, 1993), Cuyahoga App. No. 63055, unreported, citing American Bronze, supra, paragraph two of the syllabus. Generally, the submission of a purchase order may be deemed an offer to be accepted or rejected by the seller. Id., paragraph one of the syllabus; Central Transport, supra. See, also, Dyno Const. Co. v. McWane, Inc. (C.A.6, 1999), 198 F.3d 567, 572 (a buyer's purchase agreement is deemed an offer). Here, the evidence presented to the trial court establishes that Newcome submitted to TLG a purchase order, signed by an authorized person, to purchase stated quantities of designated types and lengths of cable at specific unit prices for each type and length of cable specified in the purchase order. Apparently, the quantities stated on the purchase order reflect the entire inventory of cable TLG then stocked for Newcome, as Newcome presented no evidence otherwise. Newcome's written purchase order constituted an "offer" which invited TLG's acceptance. American Bronze; Central Transport, supra. Newcome nevertheless contends the purchase order could not form the basis for a contract because it did not set a specific date for delivery; the purchase order instead reflected a shipping date of "TBD," which the parties agree means "to be determined." "Even though one or more terms are left open[,] a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy." R.C.1302.07(C). A promise to buy and a promise to sell certain quantities of goods at specified prices is sufficient for the formation of a contract. Davis Laundry Cleaning Co. v. Whitmore (1915), 92 Ohio St. 44, syllabus. The delivery time is not an essential term of a contract where the parties do not specify it. Id. Accordingly, where an agreed time for delivery of goods is absent, R.C. 1302.22(A) provides it shall be a "reasonable time." Alliance Wall Corp. v. Ampat Midwest Corp. (1984),17 Ohio App.3d 59, 64. The missing term may be supplied by factual implication. Nilavar, supra, at 487, citing Mr. Mark Corp. v. Rush, Inc. (1983), 11 Ohio App.3d 167, 169. Accordingly, the failure of the purchase order to include a delivery date did not preclude formation of a contract. According to the evidence before the trial court, TLG delivered four batches of cable pursuant to the purchase order; Newcome accepted delivery and made payment on some of the cable. TLG's beginning performance by delivering the goods served as an acceptance of the written purchase order, and constituted formation of the contract. R.C. 1302.09, commentary; Alliance Wall, supra. The omission of a specific delivery date did not prevent the formation of a contract; instead the delivery time merely became a "reasonable time." R.C. 1302.22(A). Newcome further asserts its purchase of some of the cable pursuant to the purchase order was insufficient to demonstrate its intent to purchase all the cable referenced in the purchase order. Newcome's argument is unavailing because the contract was formed and became valid according to its terms upon TLG's performance by beginning delivery of the cable Newcome ordered in the purchase order, resulting in TLG's acceptance of the offer in the form of a purchase order. R.C. 1302.09. Moreover, Newcome admitted it accepted and paid for a portion of the cable delivered pursuant to the purchase order. The parties' conduct thus demonstrates TLG and Newcome both recognized the existence of a contract. Alliance Wall, supra, at 62 (holding that although there is disagreement regarding the delivery date, a contract is established when both parties partially perform, as when the goods are shipped and received and the price is partially paid). Thus, under R.C. 1302.10(C), the terms of the contract consisted of the terms agreed upon by the parties together with the "reasonable time" for delivery as supplied by R.C. 1302.22(A). Id. at 63. Under the stated terms of the contract, Newcome accordingly was obligated to purchase the quantities of cable expressly stated in the purchase order TLG accepted by beginning its performance on the contract. Newcome finally claims the trial court erred in finding it did not properly reject nonconforming goods. Pursuant to R.C. 1302.60, a buyer may reject non-conforming goods, in whole or in part, "if the goods or the tender of delivery fail in any respect to conform to the contract." However, as the court noted in Alliance Wall: The buyer must reject goods "within a reasonable time after their delivery or tender." R.C. 1302.61(A). If the buyer does not reject the goods in a timely fashion, it is considered to have accepted them. R.C. 1302.64(A)(2). The period of time in which the buyer must act is measured by the buyer's right to a reasonable opportunity to inspect the goods. R.C. 1302.64. Id. at 63. (Footnotes omitted.) In addition, "[t]he buyer's failure to state in connection with rejection a particular defect which is ascertainable by reasonable inspection precludes him from relying on the unstated defect to justify rejection or to establish breach[.]" R.C. 1302.63(A). "The burden is on the buyer to establish any breach with respect to the goods accepted." R.C. 1302.65(D). Here, based on the record before the trial court, the first time Newcome alleged nonconformance of goods was in an affidavit attached to its April 10, 2001 memorandum contra TLG's motion for summary disposition. Specifically, Newcome's chief operating officer avers in the affidavit: Newcome Corp. paid for certain items which were received pursuant to [purchase order number 38882]. Materials received by Newcome Corp. from TLG pursuant to this purchase order were subsequently rejected as being defective and/or not in conformance with certain quality standards required of TLG. (Affidavit of James Fisher, paragraph 7.) As the trial court correctly noted, the record contains no evidence that Newcome, as the buyer, notified TLG, the seller, of any defect in the cable, let alone a "particular defect." (See Decision Granting Summary Judgment, 6.) Moreover, Newcome's averment it had received allegedly nonconforming goods was made almost two years after Newcome last accepted shipment of goods from TLG. As a matter of law, Newcome's attempt to reject the goods as nonconforming was ineffective due to lack of timeliness and lack of specificity. R.C. 1302.61(A), 1302.63(A). See Alliance Wall, supra, at 63 (holding buyer's notice to seller of alleged defects twenty-five days after delivery was untimely). Accordingly, Newcome is deemed to have accepted the goods where it failed to make an effective rejection. R.C. 1302.64. Viewing the evidence in a light most favorable to Newcome, the trial court did not err in granting summary judgment to TLG on its action on account. Newcome's single assignment of error is overruled and judgment of the trial court is affirmed. Judgment affirmed. PETREE and PAINTER, JJ., concur. PAINTER, J., of the First Appellate District, assigned under authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:42:29.470151+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from an Athens County Common Pleas Court judgment that granted the motion to suppress evidence filed by Jeremy Ulery, defendant below and appellee herein. {¶ 2} Appellant, the State of Ohio, raises the following assignment of error for *Page 2 review: "THE TRIAL COURT ERRED BY SUPPRESSING ULERY'S STATEMENT." {¶ 3} On May 14, 2007, the Athens County Grand Jury returned an indictment charging appellee with gross sexual imposition in violation of R.C. 2907.05(A)(4). Appellee entered a not guilty plea. Subsequently, appellee filed a motion to suppress statements and evidence obtained during police questioning. Appellee claimed that law enforcement officers violated the rule set forth in Miranda v. Arizona (1966),384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 by failing to inform him that a lawyer would be provided to him before questioning at no cost. The particular version of the warnings at issue in this case provide: "You have the right to remain silent. Anything you say, can and will be used against you in a court of law. You have the right to a lawyer and to have him with you while you are being questioned. If you cannot afford a lawyer, one may be appointed to represent you, if you wish. You can decide at any time to exercise these rights and not answer questions or make any statements." {¶ 4} The trial court concluded that the warnings failed to comply with Miranda. Thus, the court granted appellee's motion to suppress statements made during the custodial interrogation. The court determined that although the warnings advised appellee of his right to have counsel present during questioning, the warnings (1) did not advise appellee of his right to consult with counsel before questioning began; and (2) failed to adequately convey to appellee his right to appointed counsel. The court noted that the warnings stated that a lawyer "may be appointed to represent [appellee]" *Page 3 and that the use of the word "may" conveyed to appellee "that if he cannot afford a lawyer, it is possible that one will be appointed to represent him if he wishes." The use of the word "may," the court concluded, did not "adequately convey the requirement that a lawyer must, or will, be appointed prior to questioning for an indigent defendant who so requests." This appeal followed. {¶ 5} In its sole assignment of error, appellant asserts that the trial court erred by granting appellee's motion to suppress evidence. In particular, appellant contends that the law enforcement officers adequately advised appellee of his Miranda rights. We agree with appellant. {¶ 6} Our analysis begins with the well-settled premise that appellate review of a trial court's decision on a motion to suppress involves mixed questions of law and fact. See, e.g., State v. Book,165 Ohio App.3d 511, 847 N.E.2d 52, 2006-Ohio-1102, at ¶ 9; State v. Long (1998),127 Ohio App.3d 328, 332, 713 N.E.2d 1. In hearing such motions, trial courts assume the role of trier of fact and are in the best position to resolve factual disputes and to evaluate witnesses credibility. See, e.g., State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71,2003-Ohio-5372, at]}8; State v. Mills (1992), 62 Ohio St.3d 357, 366,582 N.E.2d 972. Appellate courts must accept a trial court's factual findings so long as competent and credible evidence supports those findings. See, e.g., State v. Metcalf (1996), 111 Ohio App.3d 142, 145,675 N.E.2d 1268; State v. Harris (1994), 98 Ohio App.3d 543, 546,649 N.E.2d 7. Appellate courts then independently review whether the trial court properly applied the law to the facts. See, e.g., Book, supra at ¶ 9; State v. Williams (1993), 86 Ohio App.3d 37, 41, 619 N.E.2d 1141. We recognize, however, that in the case sub judice the applicable facts are largely uncontroverted. With these principles in mind, we turn to the case at bar. *Page 4 {¶ 7} "Statements made by a defendant in response to interrogation while in police custody are not admissible unless the defendant has first been [apprised] of the constitutional right against self-incrimination and has validly waived this right." Id. (citingMiranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). To protect an accused's right against self-incrimination, "prior to any questioning" law enforcement officers must inform an accused "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id. at 479. {¶ 8} When a court considers the sufficiency of a Miranda warning, "[t]he overarching concern * * * is whether it is given in a manner that effectuates its purpose of reasonably informing a defendant of his rights. The words themselves are not magical and are not curative of interrogation mistakes that occur before it is given: `Just as "no talismanic incantation [is] required to satisfy [Miranda's] strictures,"California v. Prysock, 453 U.S. 355, 359 [101 S.Ct. 2806,69 L.Ed.2d 696] (1981) (per curiam), it would be absurd to think that the mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance. "The inquiry is simply whether the warnings reasonably `conve[y] to [a suspect] his rights as required byMiranda.'" Duckworth v. Eagan, 492 U.S. 195, 203 [109 S.Ct. 2875,106 L.Ed.2d 166] (1989) (quoting Prysock, supra, at 361 [101 S.Ct. 2806,69 L.Ed.2d 696]).' Missouri v. Seibert (2004), 542 U.S. 600, 611,124 S.Ct. 2601, 159 L.Ed.2d 643." State v. Farris, 109 Ohio St.3d 519,849 N.E.2d 985, 2006-Ohio-3255, at ¶ 17-18. Thus, "[r]eviewing courts * * * need not examine Miranda warnings as if construing a will or defining the terms of an easement." *Page 5 Prysock, 453 U.S. at 361. As the court explained in State v. Foust,105 Ohio St.3d 137, 823 N.E.2d 836, 2004-Ohio-7006, at]}68: "The Supreme Court has never insisted that Miranda warnings be given in the exact form described in that decision. Instead, the court has stated that `"the `rigidity' of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant," and that "no talismanic incantation [is] required to satisfy its strictures."' Duckworth v. Eagan (1989), 492 U.S. 195, 202-203, 109 S.Ct. 2875, 106 L.Ed.2d 166, quoting California v. Prysock (1981), 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696. `Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably "conve[y] to [a suspect] his rights as required by Miranda.'" Duckworth at 203, 109 S.Ct. 2875, 106 L.Ed.2d 166, quoting Prysock at 361, 101 S.Ct. 2806, 69 L.Ed.2d 696." {¶ 9} Law enforcement officers satisfy theMiranda warning requirements when `"prior to the initiation of questioning, * * * [they] * * * fully apprise the suspect of the State's intention to use his statements to secure a conviction, and * * * inform him of his rights to remain silent and to "have counsel present * * * if [he] so desires.'""State v. Dailey (1990), 53 Ohio St.3d 88, 90-91,559 N.E.2d 459, quoting Moran v. Burbine (1986),475 U.S. 412, 420, 106 S.Ct. 1135, 1140,89 L.Ed.2d 410. Thus, for example, in Duckworth the court determined that the following warnings adequately complied with Miranda: `"that [the suspect] had the right to remain silent, that anything he said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had "this right to the advice and presence of a lawyer even if [he could] not afford to hire one," and that he had the "right to stop answering at any time until [he] talked to a lawyer.'"" State v. Dailey (1990),53 Ohio St.3d 88, 90-91, 559 N.E.2d 459, quotingDuckworth, 492 U.S. at 203. {¶ 10} In Dailey, the Ohio Supreme Court held that Miranda warnings were *Page 6 adequate, even though the warnings failed to explicitly refer to the "appointment of counsel." The Dailey warning form stated: "Before you are asked any questions you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. You have the same right to the advice and presence of a lawyer even if you cannot afford to hire one. If you decide to answer questions now without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer." Id. at 89. In holding the warnings adequate, the court stated: "The warnings read to the defendant clearly apprised him of the state's intention to use his statement to secure a conviction, informed him of his right not to answer questions and to have counsel present even if he could not afford to hire one." Id. at 91. {¶ 11} In Foust, supra, at ffl|69-70, the Ohio Supreme Court explained other situations in which courts have upheld Miranda warnings: "Police do not have to provide additional warnings to a suspect beyond what Miranda requires. Indeed, in State v. Edwards (1976), 49 Ohio St.2d 31, 39-41, 3 O.O.3d 18, 358 N.E.2d 1051, we found that Miranda warnings were adequate even though the defendant was not explicitly asked whether he wanted an attorney. * * * * Federal courts have also rejected challenges to the adequacy of Miranda warnings based on the absence of additional warnings. See, e.g., United States v. Ricks (C.A.6, 1993), 989 F.2d 501, unpublished opinion, 1993 WL 78781 (suspect need not be informed that he has the right to stop answering questions at any time); United States v. Lares-Valdez (C.A.9, 1991), 939 F.2d 688 (suspect need not be advised of the right to have questioning stopped at any time, of the option to answer some questions but not others, or that some questions may call for *Page 7 incriminating responses); United States v. Caldwell (C.A.8, 1992), 954 F.2d 496, 501-504 (suspect need not be explicitly advised of his right to counsel before and during questioning); United States v. DiGiacomo (C.A.10, 1978), 579 F.2d 1211, 1214 (no express requirement under Miranda to advise suspects of the right to terminate questioning). {¶ 12} In the case at bar, we believe that theMiranda warnings at issue sufficiently apprised appellee that he had the right to remain silent (the warnings stated, "You have the right to remain silent"), that anything he said could be used against him in a court of law (the warnings stated, "Anything you say, can and will be used against you in a court of law"), that he had the right to the presence of an attorney (the warnings stated, "You have the right to a lawyer and to have him with you while you are being questioned"), and that if he could not afford an attorney, one will be appointed for him prior to any questioning if he so desires (the warnings stated, "If you cannot afford a lawyer, one may be appointed to represent you, if you wish"). The warnings further advised appellee that he could "decide at any time to exercise these rights and not answer questions or make any statements." Considered as a whole, we believe that the warnings collectively, reasonably and adequately conveyed to appellee his constitutional rights as provided for under Miranda.Prysock. Although we agree with the trial court that the warning did not explicitly track the language of Miranda, courts have universally held that law enforcement agencies need not parrot the exact language of Miranda (even though we agree, it may be the better practice to do so). See, e.g.,Prysock; Duckworth; Foust. {¶ 13} We also disagree with appellee's argument that the use of the word *Page 8 "may" when referring to the appointment of counsel means that he did not understand that he had a right to the appointment of counsel. First, the warnings explicitly and unquestionably advised appellee that he had the right to have an attorney present with him during questioning. The use of the word "may" when referring to appointed counsel does not, we believe, convey the impression that appellee could not exercise his right to counsel or to do so would have been futile or somehow involve a discretionary act by the police officers. Furthermore, even though the warnings did not specifically and explicitly advise appellee that he had the right to talk with an attorney before any questioning began, we believe that the warnings, as a whole, sufficiently advised appellee of his right to consult with an attorney at any time. Thus, we agree with appellant that the trial court erroneously granted appellee's motion to suppress evidence. {¶ 14} We recognize, however, that the issue in the case sub judice was difficult to decipher and to decide. The wording of this particular warning creates some degree of uncertainity when none should exist.[ Thus, we welcome further scrutiny in this matter. {¶ 15} Accordingly, based upon the foregoing reasons, we hereby sustain appellant's sole assignment of error, reverse the trial court's judgment and remand the matter for further proceedings consistent with this opinion. JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. *Page 9 JUDGMENT ENTRY It is ordered that the judgment be reversed and this cause remanded for further proceedings consistent with this opinion. Appellant shall recover of appellee the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Athens 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. Abele, P.J Kline, J.: Concur in Judgment Opinion Harsha, J.: Dissents *Page 1

2016-07-06 06:42:29.599473+00

OPINION. Defendant-appellant Aaron Dockery has taken the instant appeal from his conviction, following a jury trial, for failure to comply with the order or signal of a police officer, in violation of R.C. 2921.33(B). He advances on appeal four assignments of error. Because our review of the appellant's fourth assignment of error requires supplementation of the record on appeal, we remand this case to the common pleas court for that limited purpose. The appellant contends in his fourth assignment of error that the trial court erred in permitting the prosecution to exercise a peremptory challenge in a racially discriminatory manner. The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination in the exercise of a peremptory challenge to excuse a juror on account of his race. See Batson v. Kentucky (1986),476 U.S. 79, 89, 106 S.Ct. 1712, 1719; State v. Hernandez (1992),63 Ohio St.3d 577, 581, 589 N.E.2d 1310, 1313, certiorari denied (1992),506 U.S. 898, 113 S.Ct. 279. The United States Supreme Court has promulgated a three-step procedure for evaluating a claim that racial discrimination has motivated the exercise of a peremptory challenge: First, the party opposing the peremptory challenge must establish a prima facie case of purposeful discrimination in the exercise of the challenge. If a prima facie case has been established, the burden of production shifts to the proponent of the challenge to tender a race-neutral explanation. The trial court must then determine whether the challenge's opponent has carried its ultimate burden of proving purposeful discrimination. See Hernandez v. New York (1991), 500 U.S. 352,358-359, 111 S.Ct. 1859, 1866-1867; State v. Hernandez, supra at 581-582, 589 N.E.2d at 1313 (citing Batson, supra at 96-98,106 S.Ct. at 1723-1724); State v. Walker (2000), 139 Ohio App.3d 52, 742 N.E.2d 1173. A determination that the challenge's opponent has failed to prove purposeful discrimination will not be reversed on appeal unless that determination can be said to have been "`clearly erroneous.'" State v.Hernandez, supra at 582-583, 589 N.E.2d at 1313-1314 (quoting Hernandezv. New York [1991], 500 U.S. 352, 369, 111 S.Ct. 1859, 1871). In the proceedings below, the ultimate composition of the appellant's petit jury was determined by the defense's exercise of peremptory challenges to strike two prospective jurors and the prosecution's peremptory strikes against prospective juror Wright and a second prospective juror, who (we may presume from defense counsel's Batson argument) was not African-American. In the course of the voir dire examination, the only significant exchange between the prosecution and the prospective jurors was prompted by the prosecution's inquiry into the prospective jurors' prior dealings with law enforcement officials. Wright, in response, disclosed that, eight years earlier, her son had been convicted in Clermont County, Ohio, of a criminal offense, the nature of which Wright declined to disclose, but for which her son remained incarcerated at the time of the appellant's trial. Upon further questioning, Wright denied that that experience had, "in any way, created any type of perception on [her] part of the prosecutor's office [or] police officers * * * ." When the prosecution exercised its first peremptory challenge against Wright, defense counsel offered a prompt and specific objection to the challenge, with the following explanation: The effect of that peremptory [challenge] is to remove from the jury the only African-American juror. This is a case where the state's witnesses will all be Caucasian, the defense witnesses will all be African-American. On that basis, counsel requested that the trial court either disallow the challenge or declare a mistrial and resume the proceedings with a new venire. The court summarily denied the request without calling upon the prosecution to provide a race-neutral explanation and replaced Wright on the panel with a juror who (again, we may presume) was not African-American. The proponent of a peremptory challenge that excludes from a jury a member of a cognizable racial group assumes the burden of providing a race-neutral explanation for the challenge only if the challenge's opponent has established a prima facie case of purposeful racial discrimination in the exercise of the challenge. To establish a prima facie case, the opponent of the challenge must demonstrate (1) that the challenge was used to strike a member of a cognizable racial group, and (2) that this fact and other relevant circumstances raise an inference that the challenge was used to exclude the juror on account of his race. See State v. Johnson (2000), 88 Ohio St.3d 95, 116, 723 N.E.2d 1054,1073, certiorari denied (2000), 531 U.S. 889, 121 S.Ct. 212. In endeavoring to raise the requisite inference of racial discrimination, the opponent of the challenge may "rely on the * * * [indisputable] fact that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.'" Batson, supra at 96, 106 S.Ct. at 1723 (quoting Averyv. Georgia [1953], 345 U.S. 559, 562, 73 S.Ct. 891, 892, and quoted inState v. Hernandez, supra at 582, 589 N.E.2d at 1313). The determination of whether the requisite initial showing has been made turns upon this fact and other "relevant circumstances," including questions and statements by the proponent of the strike during the voir dire examination and in the exercise of the challenge, and the emergence of a "`pattern' of strikes" against venire members. See id. at 96-97,106 S.Ct. at 1723; Hicks v. Westinghouse Materials Co. (1997),78 Ohio St.3d 95, 98, 676 N.E.2d 872, 876. But, "[u]nlike the ultimate issue of discriminatory intent, which as a factual question is entitled to deferential review * * *, the preliminary question of whether a prima facie case has been shown presents a mixed question of law and fact * * * which the appellate courts should review de novo." Mahaffey v. Page (C.A.7, 1998) 162 F.3d 481, 484, certiorari denied (1999), 526 U.S. 1127,119 S.Ct. 1786.1 In the proceedings below, the trial court's conduct in summarily denying the appellant's Batson claim without first soliciting from the prosecution a race-neutral explanation suggests that the court had effectively concluded that an inquiry into the prosecution's motives was not required because the appellant had failed to make a prima facie case. We conclude, to the contrary, that the relevant facts and circumstances, including the absence of any African-American on the appellant's jury, the prospect that prosecution and defense witnesses would be divided along racial lines, and Wright's statement that her son's experience with the criminal-justice system had not predisposed her against law enforcement authorities, were sufficient, as a matter of law, to give rise to an inference that the prosecution had exercised its peremptory challenge to exclude Wright on account of her race. The state argues in its brief that "Wright['s] obvious negative experience with her son's contacts with the criminal justice system and her evasiveness belie any inference that her strike was racially motivated." There is some authority for the proposition that the presence in the record of an "apparent" or "obvious" race-neutral reason for a peremptory challenge might either preclude the establishment of a prima facie case or provide a basis for affirming the denial of a Batson claim. See, e.g., Johnson v. Campbell (C.A.9, 1996), 92 F.3d 951, 953-954 (holding that the presence in the record of an "obvious" reason for a peremptory challenge, along with the absence of any showing that the juror's sexual orientation was the reason for the challenge, was "sufficient to convince" the reviewing court that the plaintiff had failed to establish a prima facie case); Capers v. Singletary (C.A.11, 1993), 989 F.2d 442, 446-447 (holding that a reviewing court could consider neutral reasons for the exercise of a peremptory challenge that were apparent on the record of voir dire to determine whether a prima facie case had been established); United States v. Dennis (C.A.11, 1986), 804 F.2d 1208, 1210-1211 and fn. 22, certiorari denied (1987),481 U.S. 1037, 107 S.Ct. 1973 (holding that, although the trial court had failed to make a clear determination regarding the prima facie case, a remand was unnecessary, because a determination by the trial court of aBatson violation would have constituted reversible error, when the record reflected obvious reasons for the exercise of the challenges and an absence of circumstances suggesting discrimination). But we believe that to do so would be to operate outside the analytic framework established by the Supreme Court in Batson. The Equal Protection Clause proscribes only "purposeful" discrimination in the exercise of a peremptory challenge. Thus, the analysis adopted in Batson contemplates an inquiry into the actual, rather than the supposed, intent of the strike's proponent by shifting the burden of production to the proponent to put forth a nondiscriminatory explanation for the strike. That explanation may then be subjected to a challenge by the strike's opponent on the ground that it is pretextual, and the credibility of the explanation must then be assessed by the trial court before it ultimately determines whether the strike was discriminatory. See Hardcastle v. Horn (E.D.Pa. 2001), ___ F. Supp. ___ ("Given Batson's emphasis on the prosecutor's intent, reliance on apparent or potential reasons is objectively unreasonable because they do not shed any light on the prosecutor's intent or state of mind when making the challenge."); see, also, Mahaffey, supra at 483-484 (holding that, when the trial court had prevented the prosecutor from articulating his neutral reasons at trial, the state could not, on appeal, rely upon "apparent," as opposed to "actual," reasons for the strike in support of the trial court's denial of a Batson claim). Having thus determined in this case that the appellant had established a prima facie case of purposeful discrimination by the prosecution in its exercise of its peremptory challenge to strike Wright from the jury, we hold that the trial court erred, as a matter of law, in failing to call upon the prosecution to provide a race-neutral explanation for the strike and to then determine whether the appellant had sustained his ultimate burden of proving discrimination. Accordingly, we remand this case to the common pleas court for the limited purpose of conducting a hearing on the appellant's Batson claim in accordance with the law and this Opinion. The trial court shall, within thirty days of this Opinion, by means of a supplemental record, transmit and certify to this court its findings and the record of the proceedings from which they derive.2 Thereafter, a date will be set for reargument. See, e.g., Batson, supra at 100,106 S.Ct. at 1725 ("Because the trial court flatly rejected the objection [to the peremptory challenge] without requiring the prosecutor to give an explanation for his action," the Court "remand[ed] th[e] case for further proceedings," and ordered that the petitioner's conviction be reversed if the prosecutor failed to provide a race-neutral explanation); Jackson,supra (which was before this court following our remand to the trial court "for the limited purpose of permitting the trial court to conduct an evidentiary hearing to determine whether * * * the prosecution violated the standard set forth in Batson * * * in exercising its peremptory challenges"); see, also, Mahaffey, supra at 486 (in which the Seventh Circuit, upon its determination that the defendant had made a prima facie case, ordered that a writ of habeas corpus be issued unless the state trial court held a hearing in accordance with Batson). Cause remanded with instructions. Gorman, P.J., and Winkler, J., concur Raymond E. Shannon, retired, from the First Appellate District, sitting by assignment. 1 We recognize that the adoption of a de novo standard of review represents the minority position among the federal circuits. See Tolbertv. Page (C.A.9, 1999), 182 F.3d 677, 684-685 (and cases from the First, Third, Fourth, Fifth, Eighth and Eleventh Circuits cited therein, which hold that the question whether defendant has made a prima facie showing is essentially a factual one, and the trial court's determination is to be reviewed deferentially on appeal for clear error). But in State v.Jackson (Mar. 29, 1989), Hamilton App. Nos. C-840680 and C-880021, unreported, this court, while purporting to decline de novo review, nevertheless applied a legal-sufficiency standard to review the trial court's determination that the defendant had failed to establish a prima facie case. And we agree with the Seventh Circuit in Mahaffey that the policy-based analysis outlined by the United States Supreme Court inOrnelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657, compels the conclusion that an appellate court can perform its proper function of expounding the law and assuring the law's uniform application only by reviewing the trial court's prima facie decision de novo. See Ornelas,supra at 697-699, 116 S.Ct. at 1661-1663 (in which the Supreme Court rejected the clear-error standard and adopted the de novo standard to review Fourth Amendment probable-cause determinations, after examining its past practice, the need for appellate courts to ensure a unitary system of law, the fact that the legal principles at issue acquired their content only through their application to fact patterns, and the tendency of de novo review to unify precedent); Mahaffey, supra at 484 ("The question of whether an inference of discrimination may be drawn from a set of undisputed facts relating to the racial makeup of the jury venire and the prosecutor's exercise of peremptory challenges is, like the probable cause question before the Court in Ornelas, one over which the appellate courts should exercise a degree of control that a clear error standard would not afford. * * *. As in Ornelas, factual scenarios will recur in this context, and de novo review would allow for a measure of consistency in the treatment of similar factual settings, rather than permitting different trial judges to reach inconsistent conclusions about the prima facie case on the same or similar facts."); see, also,Tolbert, supra at 686 (in which McKeown, J., dissenting, proposed a two-tiered standard of review: "[W]hile giving deference to the trial court's factual findings concerning the elements of the prima facie case, [an appellate court] should review de novo whether the challenging party has raised a sufficient inference of discrimination to shift the burden of production"). 2 In State v. Brock (1996), 110 Ohio App.3d 656, 672-673,675 N.E.2d 18, 28, the Third Appellate District noted that, although the Supreme Court in Batson had expressly declined to formulate particular procedures to be followed when a prima facie case has been made but the prosecutor has failed to explain, Ohio courts have been guided by the Court's disposition in Batson. The Tenth Appellate District in State v.Tuck (1992), 80 Ohio App.3d 721, 725, 610 N.E.2d 591, 594, upon its determination that the defendant had made a prima facie case, reversed the judgment of conviction and remanded the case to the trial court for an inquiry into the prosecutor's reason for the strike, a determination of whether discrimination was proven, a new trial if discrimination was then proven, and reinstatement of the judgment of conviction, "subject to any appeal," if discrimination was not proven. Accord State v. Robertson (1993), 90 Ohio App.3d 715, 630 N.E.2d 422. To avoid any uncertainty regarding the appellant's right to appellate review of the proceedings resulting in his conviction, we elect instead to follow the precedent set in Jackson, supra, and to remand this case only for diminution of the record of the proceedings over which we retain jurisdiction.

2016-07-06 06:42:29.690972+00

JOURNAL ENTRY AND OPINION Plaintiff-appellant the State of Ohio (State) appeals from the judgment of the trial court which, after a hearing, determined defendant-appellee Richard Baron (defendant) to be a sexually oriented offender rather than a sexual predator. For the reasons set forth below, we remand the case for a determination consistent with law and this opinion. The defendant was indicted on May 7, 2001 on eight counts stemming from his involvement with three minor girls. The indictment charged him with two counts of rape in violation of R.C. 2907.02, two counts of gross sexual imposition in violation of R.C. 2907.05, one count of intimidation in violation of R.C. 2921.04, and three counts of illegal use of a minor in nudity-oriented matter/performance in violation of R.C. 2907.323. After further investigation, the defendant was re-indicted on October 17, 2001 for two counts of rape, two counts of gross sexual imposition, one count of intimidation and fourteen counts of illegal use of a minor in nudity-oriented matter/performance. The defendant pleaded not guilty to all counts of the indictment, but later retracted that plea and pleaded guilty to one count of illegal use of a minor in nudity-oriented matter/performance, a felony of the second degree, as charged in count thirteen of the indictment. The matter proceeded to a hearing, pursuant to R.C. 2950.09 (B)(1) on December 3, 2001. At the hearing, the state presented testimony of Cynthia Fritz, mother of minor Monique, an alleged victim, who was sixteen years old at the time of the hearing. Ms. Fritz identified nude photos of her daughter which revealed Monique's vagina and breasts. She testified that the photos had been sent to an Ohio prison. Ms. Fritz testified that she had seen her daughter in the company of a white male on more than one occasion. She identified him as the defendant. Ms. Fritz further testified that Monique was coming home with material goods which were not hers. On one occasion, Monique brought a leather jacket home, but when questioned about it, claimed it belonged to her friend Markita. When Ms. Fritz initially questioned Monique about the defendant, Monique responded that the defendant was someone's uncle. Ms. Fritz testified that when she was made aware of the pictures, she knew the defendant was responsible for taking them. She stated that when she confronted Monique about the pictures, Monique lied and told Ms. Fritz that her boyfriend had taken the pictures. Ms. Fritz then called the police. The state also presented the testimony of Taquanna, a fifteen year old who also knew the defendant through Markita. She testified that Markita said the defendant was a nice person and would give you stuff just to give you things. (T. 89) Taquanna knew that Markita had received clothes from the defendant. Taquanna testified that the defendant contacted her to let her know that he had picked up some things at the mall for her and invited her over to his house. He picked her up at the corner of her street and drove her to his house. At that time, he asked Taquanna to pose nude for him. Taquanna testified that she did not agree to pose nude at first because she was nervous. She stated that the defendant repeated his requests and eventually she posed for nudie pictures. Taquanna stated that a few days after this incident, the defendant gave her a pager, a pair of jeans and a shirt. Taquanna testified that she did not tell her parents about the defendant and chose to keep him a secret. She further testified that her mom eventually found out about the photos and called the police. The state presented the testimony of Misty. She stated that she has known the defendant for approximately a year. She testified that the defendant frequently paid for babysitters and diapers for her children, paid to rent a car for her and even gave her a car to use. Misty stated that, in exchange for his favors and at his request, she would allow the defendant to perform oral sex on her. Misty testified that on one occasion when the defendant was in her new home and she was out of the room, the defendant violated her four year old daughter. Specifically, Misty testified that her daughter told her that the defendant had promised to buy her ice cream and gummy bears. Misty also stated that her daughter told her a couple of days later that the defendant had touched her butt and licked her thing. Misty immediately called the police. While she waited for the police to arrive, she contacted the defendant to ask what he had done to her daughter. Misty stated that the defendant denied doing anything to her, but eventually admitted to Misty If I did anything, I should have did it to you. (T. 116). Lastly, the state presented testimony of James, Misty's nephew who corroborated Misty's testimony with regard to Misty's daughter. The state attempted to present the testimony of a detective regarding the execution of a search warrant that uncovered additional nude photos involving another victim. The defense objected and the trial court sustained the objection, prohibiting the introduction of any additional evidence. The trial court then determined that the defendant was a sexually oriented offender and sentenced him to four years incarceration. It is from this ruling that the State now appeals, asserting three assignments of error for our review. I. The trial court erred by refusing to allow the state to present evidence and call and examine witnesses pursuant to R.C. 2950.09 (B)(1). In its first assignment of error, the state contends that the trial court erred in refusing to allow the state to present additional testimony regarding another victim of illegal use of a minor in nudity-oriented material. We agree with this contention. It is well-settled that the trial court has broad discretion in determining the admissibility of evidence. State v. Sage (1987),31 Ohio St.3d 173, paragraph two of the syllabus. Therefore, we will not disturb the trial court's ruling absent an abuse of discretion. The term `abuse of discretion' connotes more than 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 this standard of review, an appellate court must not substitute its judgment for that of the trial court. State v. Reiner (2001), 93 Ohio St.3d 601, citing Berk v. Matthews (1990),53 Ohio St.3d 161, 169. Rather, reversal on appeal is warranted only when the trial court has exercised its discretion unreasonably, arbitrarily or unconscionably. Id. citing State v. Adams (1980), 62 Ohio St.2d 151. A sexual predator determination hearing is similar to a sentencing hearing, where it is well-settled that the rules of evidence do not strictly apply. State v. Cook (1998), 83 Ohio St.3d 404, 425. As long as the evidence sought to be admitted meets the minimum standard of reliable hearsay, the evidence is admissible. State v. Reed (May 16, 2001), 2001-Ohio-3271, 7th District No. 00 JE 22. Further, several appellate courts have found that evidence of uncharged sexual assaults is admissible at a sexual predator hearing. Reed, supra. citing State v. Burgess (July 10, 2000), Fayette App. No. CA99-08-21; State v. Pryce (June 28, 2000), Summit App. No. 19888; State v. McGavin (Feb. 16, 1999), Warren App. No. CA98-08-92; State v. Bedinghaus (July 31, 1998), Hamilton App. No. C-970833. In this case, the trial court refused to allow the State to present photos discovered by police while executing a search warrant. The photos allegedly indicated that there existed yet another victim that had been subjected to the defendant's sexual abuse. The admission of such photos would have demonstrated the defendant's propensity to photograph nude photos of minor girls, and would have been beneficial for the purpose of determining whether the defendant was a sexual predator. We therefore find that the trial court abused its discretion by not allowing the photos into evidence for purposes of the sexual predator determination hearing and sustain this assignment of error. II. The trial court's adjudication that the appellee is not a sexual predator is against the manifest weight of the evidence. We agree with the state's contention that the trial court's adjudication is against the manifest weight of the evidence. With regard to procedure, we note that the State may appeal as a matter of right the trial court's determination regarding the defendant's sexual predator status pursuant to R.C. 2950.09 (B)(4). In determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the 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. Martin (1983), 20 Ohio App.3d 172, citing Tibbs v. Florida (1982), 457 U.S. 31. The court should consider whether evidence is credible or incredible, reliable or unreliable, certain or uncertain, conflicting, or fragmentary. State v. Mattison (1985), 23 Ohio App.3d 10. The credibility of a witness is primarily an issue for the trier of fact, who observed the witness in person. State v. Antill (1964),176 Ohio St. 61; State v. DeHass (1967), 10 Ohio St.2d 230. Regarding the process employed in sexual predator determination hearings, the Supreme Court has stated: In making a determination as to whether an offender is a sexual predator, the judge must consider all relevant factors, including, but not limited to, all of the following: the offender's age; prior criminal record; the age of the victim of the sexually oriented offense; whether the sexually oriented offense involved multiple victims; whether the offender used drugs or alcohol to impair the victim or prevent the victim from resisting; if the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense, and if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sex offenders; any mental illness or mental disability of the offender, the nature of the offender's sexual conduct with the victim and whether that contact was part of a demonstrated pattern of abuse; whether the offender, during commission of the offense, displayed cruelty or threatened cruelty; and any additional behavioral characteristics that contribute to the offender's conduct. R.C. 2950 (B)(2)(a) through (j). State v. Cook, supra. In this case, the defendant was fifty-two years old. The victim of the crime to which he pleaded guilty was fifteen years old. Further, the other victims of abuse at the hands of the defendant as alleged in the nineteen count indictment were four years old and sixteen years old. There were multiple victims in this case. According to the testimony presented at the hearing, the defendant demonstrated a pattern of abuse in which he manipulated his victims with the promise of material goods, such as ice cream, gummy bears, jeans, or a leather jacket in exchange for sexual gratification, including photographing his victims in lewd poses. Lastly, the State had in its possession photographs of another alleged victim, which the trial court improperly excluded. In light of the foregoing factors which the trial court failed to properly consider, the trial court's determination that the defendant was not a sexual predator was against the manifest weight of the evidence. We therefore remand the case for a new hearing pursuant to R.C. 2950 (B)(1). We find it troubling that the trial court, in finding that the defendant is not a sexual predator, placed the blame for these crimes for which the defendant was indicted on the victims themselves, implying that the victims had prostituted themselves into this situation. While one of the alleged victims was not a minor and may have been able to decide whether to allow the defendant to perform oral sex on her in exchange for material goods, the defendant pleaded guilty to a sex crime against a different victim, a minor child. The defendant lured this impressionable girl to his home with the promise of gifts. Her naivete in accepting the defendant's invitation can hardly be labeled prostitution. The victim should not be made to blame because she fell prey to the defendant's wile. In finding that the trial court's finding is against the manifest weight of the evidence, we find that the State's third assignment of error is moot and remand the case for a new hearing. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE, A.J. AND JAMES D. SWEENEY, J. CONCUR.

2016-07-06 06:42:29.856369+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G) (1). Plaintiffs-appellants Sandra K. Shockey and her son, Jeffrey Scott Shockey, appeal from the judgment of the trial court holding that their claim for medical malpractice against the defendants-appellees was barred by res judicata. We affirm the judgment of the trial court. This is the second action to come before this court for review of the trial court's denial of relief in connection with essentially the same acts of malpractice. In the first action, Sandra Shockey and Jeffrey Shockey sued defendant-appellants for medical malpractice, claiming that the negligence of the hospital and the attending nurse had caused Jeffrey to suffer brain damage. The Shockeys' expert witness testified that Jeffrey's injuries arose from prenatal asphyxiation and were compounded by untreated post-natal apneic episodes, both of which were due to the negligence of the hospital and the nurse. A jury returned a verdict in the defendants' favor, and the Shockeys appealed. While the case was on appeal, the Supreme Court of Ohio decided Roberts v. Ohio Permanente MedicalGroup, Inc.,1 in which it recognized a cause of action for loss of chance of survival when the injured party has less than a fifty-percent chance of survival. The Shockeys claimed on appeal that the trial court had, in light of Roberts, given an erroneous jury instruction that prevented recovery on a loss-of-chance-of-survival theory. The Shockeys requested that the cause be remanded for litigation of the Roberts theory of recovery. Although recognizing that some other courts had retroactively applied Roberts to those cases in which the plaintiffs had unsuccessfully attempted to raise a loss-of-chance-of-survival claim, this court held, "The reason that Shockey's argument ultimately fails, however, is that her claim as presented at trial did not state a cause of action for loss of chance of recovery."2 Because the facts adduced at trial would not have supported a jury instruction consistent with a Roberts cause of action, this court held that a remand was not appropriate and accordingly affirmed the judgment of the trial court. Subsequently, the Shockeys filed a second action against the same defendants, this time alleging a loss-of-chance-of-recovery theory. However, on defendants' motion for summary judgment, the trial court held that the suit was barred by res judicata. The Shockeys have appealed that ruling. In their first assignment of error, the Shockeys claim that because the Supreme Court of Ohio recognized a new cause of action subsequent to the jury's verdict in the first suit, resjudicata does not bar subsequent litigation on that new cause of action. We find this argument to be without merit. In Grava v. Parkman Township Bd. of Zoning Appeals,3 the Supreme Court of Ohio stated, "A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." The court specifically adopted the reasoning of the Restatement of Judgments, Section 24(1), which states in part that "the claim extinguished [by a prior judgment] includes all rights of the plaintiff to remedies against the defendant with respect to any part of the transaction, or series of connected transactions, out of which the action arose," even if "a number of different legal theories casting liability on an actor may apply to a given episode."4 In this case, the Shockeys claim that res judicata should not bar their claim because it is a claim that could not have been brought in the prior proceeding; that is, the loss of chance of survival was not recognized as a cause of action until after the initial trial. However, a change in the decisional law applicable to a case generally does not prevent the application ofres judicata.5 In National Amusements, the Supreme Court of Ohio stated, "Generally, a change in decisional law which might arguably reverse the outcome in a prior civil action does not bar the application of the doctrine of res judicata," because, otherwise, "`any unsuccessful litigant [would] attempt to reopen and relitigate a prior adverse final judgment simply because there has been a change in controlling case law.'"6 The Shockeys argue that the Grava court recognized that, in some cases, "changed circumstances" might prevent the application of res judicata. While we agree with this general proposition, the case law demonstrates that the term "changed circumstances" ordinarily refers to some change in the factual posture of a case, and that the exception has been invoked most commonly in cases involving zoning issues, when the passage of time and changes in other circumstances render res judicata principles inapposite.7 Here, the Supreme Court of Ohio created a new cause of action for the identical conduct complained of in the Shockeys' first suit against the defendants. This change in the law is not the type of changed circumstances contemplated by Grava. Exceptions to the rules of res judicata exist. InNational Amusements v. Springdale,8 the Supreme Court of Ohio recognized that the strict application of res judicata might frustrate the objectives of the judicial system. The court stated, however, that "`it is important to note that although a number of cases may speak in terms of allowing an exception as being in the "public interest" or because it avoids "injustice," these generally are overstatements. * * * [E]xceptions to resjudicata most commonly and properly are invoked only in specialized situations in which a specific policy is deemed to outweigh judicial economy concerns.'"9 The court continued, "Generally, a change in decisional law which might arguably reverse the outcome in a prior civil action does not bar the application of the doctrine of resjudicata."10 Thus, we hold that the trial court did not err in dismissing the Shockeys' complaint based on res judicata principles. We reject also the Shockeys' argument that application of res judicata to their complaint deprives them of their constitutional right to redress an injury. The proper application of res judicata or other procedural devices such as forum non conveniens or the statute of limitations to dispose of a claim does not violate the constitutional right to redress expressed in Section 16, Article I of the Ohio Constitution.11 Therefore, the judgment of the trial court is af-firmed. Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. Hildebrandt, P.J., Painter and Shannon, JJ. Raymond E. Shannon, retired, of the First Appellate District, sitting by assignment. To the Clerk: Enter upon the Journal of the Court on November 17, 1999, per order of the Court _______________________________. Presiding Judge 1 Roberts v. Ohio Permanente Medical Group, Inc. (1996),76 Ohio St.3d 483, 668 N.E.2d 480. 2 See Shockey v. Our Lady of Mariemont (June 25, 1997), Hamilton App. No. C-960492, unreported. 3 Grava v. Parkman Township Bd. of Zoning Appeals (1995),73 Ohio St.3d 379, 653 N.E.2d 226, syllabus. 4 See id., 73 Ohio St.3d at 382, 653 N.E.2d at 229. 5 See LaBarbera v. Batsch (1967), 10 Ohio St.2d 106, 110-111,227 N.E.2d 55, 62; National Amusements, Inc. v. Springdale (1990),53 Ohio St.3d 60, 558 N.E.2d 1178, syllabus. 6 See id. at 61, 558 N.E.2d at 1180. 7 See, e.g., Set Products, Inc. v. Bainbridge Twp. Bd. ofZoning (1987), 31 Ohio St.3d 260, 510 N.E.2d 373, paragraph two of the syllabus; Wade v. Cleveland (1982), 8 Ohio App.3d 176, 178,456 N.E.2d 829, 832. 8 National Amusements, Inc., supra, 53 Ohio St.3d at 62,558 N.E.2d at 1180. 9 See id. at 62-63, 558 N.E.2d at 1180-1181, quoting Sanders v.United States (1963), 373 U.S. 1, 83 S.Ct. 1068. 10 See National Amusements, 53 Ohio St.3d at 62,558 N.E.2d at 1180. 11 See Chambers v. Merrell-Dow Pharmaceuticals, Inc. (1988),35 Ohio St.3d 123, 132, 519 N.E.2d 370, 378; Watson v. Driver Mgt.,Inc. (1994), 97 Ohio App.3d 509, 514, 646 N.E.2d 1187, 1190.

2016-07-06 06:42:31.03046+00

OPINION {¶ 1} Plaintiff-appellant Glee Smith appeals from the December 30, 2002, Decision, the January 2, 2003, Amended Decision, and the March 21, 2003, Judgment Entry and Decree of Divorce of the Muskingum County Court of Common Pleas, Domestic Relations Division. STATEMENT OF THE FACTS AND CASE {¶ 2} Appellant Glee Smith and appellee John Smith were married on December 29, 1968. On March 13, 2001, appellant filed a complaint for divorce against appellee in the Muskingum County Court of Common Pleas, Domestic Relations Division. After appellee filed an answer and counterclaim, the matter proceeded to trial before a Magistrate on January 14, 2002. {¶ 3} At dispute in the case sub judice is the status of two parcels of real estate. While one of the parcels consists of approximately 182 acres in Glenford, Ohio, the other parcel consists of approximately 201 acres on State Route 204 in Mt. Perry. The parties, at trial, agreed that their principal dispute concerned whether the two parcels were separate or marital property. {¶ 4} At the trial in this matter, testimony was adduced that appellee's father owned a 437 acre farm. After his father died when appellee was fourteen years old, appellee, his mother and his brother inherited the farm. In 1994, appellee began conducting some 1031 tax-free exchanges1 on his portion of the inheritance. In three separate 1031 transactions, appellee exchanged his portion of the farm for three separate parcels of real estate. In addition to the two parcels mentioned above, the third parcel is a 50 acre farm located in Roseville, Ohio. {¶ 5} The closing for the property located on State Route 204 in Mt. Perry occurred in May of 1994. The deed to such property, which was prepared by appellee's attorney, was placed in both appellee's and appellant's names. When asked whether she had a discussion with appellee prior to the closing for such property about the ownership of this parcel of real estate, appellant responded that "[w]e didn't talk about ownership . . ." Transcript at 18. According to appellant, appellee called his attorney on the day prior to the closing and told his attorney that he wanted to "get this finalized" and to put the parcel in both of their names. Transcript at 18. Appellant further testified that, at the real estate closing, she asked appellee before signing the papers if he was sure that he wanted to put appellant's name on the deed. Appellant testified that appellee answered affirmatively. Both parties signed a note2 to Farm Credit Services that was secured by a mortgage on the Mt. Perry property. {¶ 6} At the trial, testimony was also adduced that the 182 acres in Glenford was part of the 1031 exchange and that the September 8, 1994, deed to the same,3 which was prepared by appellee's attorney also was put in both appellee's and appellant's names. The following testimony was adduced when appellant was asked whether she ever had a discussion with appellee about putting the property in both of their names: {¶ 7} "A. About putting it in both names? {¶ 8} "Q. (Nods affirmatively.) {¶ 9} "A. No, I don't recall ever discussing having it put in both names, no. {¶ 10} "Q. Okay. Did he ever tell you that it was his intention that that was his separate property, or his belief that that was his separate property? {¶ 11} "A. No. No. {¶ 12} "Q. Did he always treat it as joint property? {¶ 13} "A. Treated it as joint property, talked about it as ours." Transcript at 23. {¶ 14} The June 28, 1994, deed to the third parcel, which is the 50 acre farm in Roseville, Ohio, was only in appellee's name. At the closing for such parcel, appellant "made the comment that it was just in [appellee's] name," but never asked appellee why. Transcript at 24. Appellant testified that appellee never told her that any of the three parcels was his separate property but rather that he "always made me feel like they were ours." Transcript at 28-29. {¶ 15} During cross-examination, appellant testified that, "to this day", she had no idea why her name was placed on the two deeds and that she assumed that the deeds were put in both of their names because they were married. Transcript at 48-49, 70. Appellant also testified that while appellee told his attorney to put appellant's name on the first deed to the 201 acres on State Route 204 in Mt. Perry, "[w]e never discussed putting it on any other deed." Transcript at 50. Appellant further admitted that appellee never told appellant that appellee was giving her a one half interest in the 201 acres and that the two of them never discussed why her name was placed on the two deeds. {¶ 16} At trial, appellee testified that he never told anyone how the three properties that were subject to 1031 exchanges were to be deeded and that he never told his attorney, who prepared the deeds, to put only his name or both his and appellant's name on any of the deeds. The following testimony was adduced when appellee was asked whether it was his intention to give appellant a one half interest in any of the three 1031 properties: {¶ 17} "A. No. {¶ 18} "Q. Was there ever a discussion between you and her about giving her a half interest in either one of these properties? {¶ 19} "A. No. Transcript at 84. {¶ 20} Appellee further testified that he did not pay much attention to whose names were on the deeds since he "just wanted to get the deal done." Transcript at 85. {¶ 21} Pursuant to a Magistrate's Decision filed on April 8, 2002, the Magistrate concluded that the two parcels that were placed in both parties' names were marital property rather than appellee's separate property. Subsequently, appellee filed objections to the Magistrate's Decision, arguing that the two parcels were his separate property. As memorialized in a Decision filed on December 30, 2002, the trial court stated as follows: {¶ 22} "The Court upon review of the evidence presented finds that the plaintiff [appellant] did not by clear and convincing evidence show a donative intent on the part of the defendant [appellee] when the plaintiff's [appellant's] name was placed on the two parcels of land in question. Therefore this Court modifies the magistrate's decision to state that these two parcels are now marital property and are therefore the sole property of the defendant [appellee]. All other aspects of the magistrate's decision are affirmed." {¶ 23} An Amended Decision was filed on January 2, 2003, changing the word "now" underlined above to "non". Thereafter, A Judgment Entry and Decree of Divorce was filed on March 21, 2003. {¶ 24} Appellant filed a Notice of Appeal from the December 30, 2002, Decision and the January 2, 2003, Amended Decision (Case No.CT2003-0008) and a separate Notice of Appeal from the March 21, 2003, Judgment Entry and Decree of Divorce (Case No. CT2003-0020). Pursuant to a Judgment Entry filed on June 26, 2003, this Court granted appellant's motion to consolidate the two cases. {¶ 25} Appellant now raises the following assignment of error on appeal: {¶ 26} "Separate real property is converted into marital property by transmutation when it is deeded in both names and the evidence establishes a present intention to gift an interest in it to the other spouse." I {¶ 27} Appellant, in her sole assignment of error, argues that the trial court erred in holding that the 183 acres in Glenford, Ohio and the 201 acres on State Route 204 in Mt. Perry were appellee's separate property rather than marital property. We disagree. {¶ 28} In the case sub judice, there is no dispute that appellee exchanged his separate, premarital4 property for the two parcels of real estate. As is stated above, appellee exchanged his portion of his inheritance of the family farm for the Glenford and State Route 204 properties. Thus, the issue becomes whether appellee, through his actions, converted such separate property into marital property. {¶ 29} A spouse can convert separate property into marital property by making an inter vivos gift to his or her spouse.Helton v. Helton (1996), 114 Ohio App.3d 683, 685,683 N.E.2d 1157, 1159. To prove that an inter vivos gift has been made, the following elements are required: {¶ 30} "(1) an intention on the part of the donor [husband] to transfer the title and right of possession of the particular property to the donee [wife] then and there and (2), in pursuance of such intention, a delivery by the donor to the donee of the subject-matter of the gift to the extent practicable or possible, considering its nature, with relinquishment of ownership, dominion and control over it." Id. at 685-686. {¶ 31} "The donee has the burden of showing by clear and convincing evidence that the donor made an inter vivos gift." Id. at 686.5 Clear and convincing evidence is that evidence "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established."Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus. {¶ 32} Thus, the issue becomes whether appellee had the requisite donative intent to transfer a possessory interest in the two properties to appellant. While both parties' names appear on the deeds for the Glenford and State Route 204 properties, such fact is not determinative of whether the property is marital or separate property. See R.C. § 3105.171(H)6 andMcFarland v. McFarland (Sept. 19, 1994), Richland App. No. 94-CA-12. However, such evidence may be considered on the issue of whether the property is marital or separate. Id. {¶ 33} At the trial in this matter, appellee testified that he never intended to give appellant a one half interest in the two subject properties, that he never told anyone how to deed the property, and that he never directed his attorney to put only his own name or both names on the deeds. Appellant herself testified that she did not have any discussions with appellant about the ownership of the two parcels and that appellant never told her why he was putting her name on the two deeds. When questioned, appellant testified that appellee never indicated to appellant that appellee was giving appellant a half interest in the subject property.7 {¶ 34} In short, we concur with the trial court that appellant "did not by clear and convincing evidence show a donative intent" on the part of appellee when appellant's name was placed on the two deeds in question. We find, therefore, that the trial court did not err in holding that the properties in Glenford, Ohio, and on State Route 204 in Mt. Perry were appellee's separate property rather than marital property. {¶ 35} Appellant's sole assignment of error is, therefore, overruled. {¶ 36} Accordingly, the judgment of the Muskingum County Court of Common Pleas, Domestic Relations Division, is affirmed. Edwards, J., Gwin, P.J. and Farmer, J. concur. 1 In 1031 exchanges, real property is exchanged for real property. 2 The note was for approximately $119,000.00. 3 The closing for such property occurred on a different date than the closing for the State Route 204 property. 4 As is stated above, appellee was fourteen years old when his father died. 5 The parties, at the oral hearing in this matter, agreed that the clear and convincing evidence standard applies. 6 R.C. 3105.171(H) states that "[e]xcept as otherwise provided in this section, the holding of title to property by one spouse individually or by both spouses in a form of co-ownership does not determine whether the property is marital property or separate property." 7 In contrast, in Helton, supra., the wife testified that her husband told her that he wanted her to have a half interest in the subject property.

2016-09-29 09:16:22.752439+00

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2016-07-06 06:42:33.342112+00

OPINION AND JOURNAL ENTRY {¶ 1} On June 23, 2006, Relator Kevin B. Todd filed a "Complaint/Petition for Writ of Mandamus" seeking an order to compel Respondents to canvas signatures contained in a petition to dissolve the Village of New Waterford, and to provide for a special election for that purpose, pursuant to R.C. 703.20. Respondents include the mayor, members of the village council, and other officeholders of the Village of New Waterford. {¶ 2} On May 31, 2006, the petition was delivered to the village's fiscal officer and clerk. The petition purports to contain the signatures of more than forty percent of the duly qualified electors of the village. The petition was kept in the possession of the fiscal officer and clerk for eight days. During that time the petition was open for public inspection and copies were provided upon request. {¶ 3} On June 7, 2006, the New Waterford Village Council ("Council") held a special meeting and discussed the petition. The village solicitor was of the opinion that the petition was defective for not complying with R.C. 731.32, which deals with voter initiatives to propose municipal legislation. Based on the solicitor's opinion and on its review of the sufficiency of the signatures on the petition, Council rejected the petition. Accordingly, the fiscal officer and clerk did not forward the petition to the Columbiana County Board of Elections and the village took no action to fix a date for a special election. {¶ 4} On June 23, 2006, Relator filed with this Court a Complaint/Petition for Writ of Mandamus. Relator requested an order requiring the village to review the petition to determine if the signatures were sufficient to satisfy R.C. 703.20. Relator *Page 3 also requested that, if the signatures were found to be sufficient, that the village be compelled to hold a special election under R.C. 703.20 to determine if the village should surrender its corporate powers. {¶ 5} Both Relator and Respondents filed motions for summary judgment. On November 6, 2006, the parties stipulated to certain facts. On January 31, 2007, we issued an Opinion overruling both motions for summary judgment. We provided the parties an additional thirty days to file supplemental motions for summary judgment addressing whether the petition contained signatures of at least forty percent of the electors of the village, determined by the number of people who voted at the most recent regular municipal election. {¶ 6} On February 9, 2007, Relator filed a supplemental motion for summary judgment. Attached to that motion was the affidavit of Lois Gall, the Director of the Columbiana County Board of Elections. She averred that 384 votes were cast in the last village election, and that forty percent of that number would be 154. She averred that the petition "contains 183 signatures, which constitutes at least 40% of the votes cast in the Village as determined by the number voting at the last regular municipal election." It is Relator's supplemental motion for summary judgment that is now before us. {¶ 7} A writ of mandamus is an extraordinary remedy. Mandamus is a writ, issued in the name of the state, ordering an inferior tribunal, corporation, board, or person, to perform an act that there is a legal duty to perform. R.C. 2731.01. For a writ of mandamus to issue, the relator must demonstrate that: 1) the relator has no *Page 4 plain and adequate remedy at law; 2) the respondent is under a clear legal duty to perform some act or acts; and 3) relator has a clear legal right to the relief prayed for. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 451 N.E.2d 225. {¶ 8} Under Civ.R. 56, summary judgment is only proper when the movant demonstrates that, viewing the evidence most strongly in favor of the non-movant, reasonable minds must conclude no genuine issue as to any material fact remains to be litigated and the moving party is entitled to judgment as a matter of law. Doe v. Shaffer (2000),90 Ohio St.3d 388, 390, 738 N.E.2d 1243. "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion,and identifying those portions of the record which demonstrate theabsence of a genuine issue of fact on a material element of thenonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St.3d 280,296, 662 N.E.2d 264. The nonmoving party has the reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293, 662 N.E.2d 264. {¶ 9} The issue to be determined is whether Respondents are under a legal duty to perform some act pursuant to R.C. 703.20, which states: {¶ 10} "Villages may surrender their corporate powers upon the petition to the legislative authority of the village of at least forty per cent of the electors thereof, to be determined by the number voting at the last regular municipal elecion [sic], and by an affirmative vote of a majority of such electors at a special election, which shall be provided for by the legislative authority, and conducted, canvassed, and the result certified and made known as at regular municipal elections. If the result of the *Page 5 election is in favor of such surrender, the village clerk shall certify the result to the secretary of state and the county recorder, who shall record it in their respective offices, and thereupon the corporate powers of such village shall cease." {¶ 11} We have previously dealt with a very similar situation involving R.C. 703.20. In State ex rel. Christopher v. Gaia (2000), 138 Ohio App.3d 527, 741 N.E.2d 914, we were called upon to determine whether a writ of mandamus should issue to the village council of Craig Beach Village after a petition had been submitted pursuant to R.C.703.20. It was undisputed that a petition to hold a special election was submitted to village council with 313 signatures. The petition was forwarded to the Mahoning County Board of Elections, which verified 205 of the signatures. It was undisputed that this was a sufficient number of signatures for the issue to be placed on the ballot in a special election. The petition was returned to village council, which voted not to hold a special election. We held: {¶ 12} "The Ohio Revised Code details the affirmative duties placed upon village officials when petitioned by the electorate concerning surrender of its corporate powers. The village council must canvas the petitions to determine whether the signatures are sufficient. Upon presentation of a petition to the council for such election, it is the duty of the council, before taking action thereon, to satisfy itself that it contains the names of the requisite number of qualified petitioners, and for that purpose it may refer the same to a committee to make the necessary examination. Where a petition calling for a special election bears the requisite *Page 6 number of signatures, it is the mandatory duty of the mayor and council to fix a date for special election." (Citations omitted.) Id. at 531. {¶ 13} In the instant case, the Columbiana County Board of Elections has verified that there are 183 signatures on the petition. This is a somewhat curious conclusion, since Relator only submitted 182 signatures, and we previously established that there are 182 signatures. See State ex rel. Todd v. Felger, 7th Dist. No. 06 CO 38, 2007-Ohio-731, ¶ 20. Regardless of the total number of signatures on the petition, it is clear that there are more than 154 signatures, and this is the number that the Columbiana County Board of Elections determined was required by R.C. 703.20. {¶ 14} A question does remain about those signatures. Although Lois Gall averred that the board of elections verified the signatures, it is not clear that the verification represented a canvassing of those who signed the petition to determine if each person who signed the petition is a qualified elector in the Village of New Waterford. It would appear that the verification by the board of elections was simply a verification of the raw number of potentially valid signatures, i.e., legible signatures, dated, with corresponding addresses. {¶ 15} Although Respondents have stipulated that village council rejected the petition based, in part, on a review of the sufficiency of the signatures on the petition, there is no stipulation that village council would have accepted the petition based on the sufficiency of the signatures. Thus, it is not clear that anyone has actually verified the signatures in the sense of canvassing those who signed the petition. As we *Page 7 stated in Gaia, "it is the duty of the council, before taking action thereon, to satisfy itself that it contains the names of the requisite number of qualified petitioners[.]" Id. {¶ 16} In Gaia, we ordered the mayor and village council of Craig Beach Village to canvas the petition, determine the sufficiency of the signatures, and, if the signatures were found to be sufficient under R.C. 703.20, to fix a date for the special election. Id. at 532. This is the same remedy that is appropriate in the instant mandamus action. {¶ 17} Relator has established its right to relief in mandamus. It is hereby ordered, adjudged, and decreed that the mayor and village council of New Waterford canvas the petition and determine the sufficiency of the signatures. If the signatures are found to be sufficient and otherwise in compliance with R.C. 703.20, the mayor and village council shall fix a date for a special election concerning the surrender of corporate powers of the village. {¶ 18} Judgment accordingly. Costs taxed against Respondents. Final order. Clerk to serve notice as provided by the Civil Rules. DeGenaro, P.J., dissents; see dissenting opinion. Waite, J., concurs. Donofrio, J., concurs. *Page 8

2016-07-06 06:42:33.347214+00

{¶ 19} I concur with the majority on much of its opinion and analysis, but I must respectfully disagree on a single point, the relief we should be granting. The majority has ordered that the Mayor and Village Council of New Waterford canvas the petitions and determine the sufficiency of the petitions. I believe that the evidence shows that this has already been done and, therefore, that we should be ordering a special election instead. {¶ 20} In this case, Relator introduced evidence showing that there were 384 votes cast in the November 2005 election. Forty percent of that number is 154. He also introduced the petitions themselves, which state that they have been signed by "duly qualified electors of the Village of New Waterford, Ohio." Those petitions contain 182 signatures. Finally, the stipulations submitted by both parties states that the Respondents reviewed the sufficiency of the petitions. Accordingly, Relator has born his burden of "identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt (1996),75 Ohio St.3d 280, 296. {¶ 21} The Respondents have the burden of demonstrating a material issue about these facts. Accordingly, they attached an affidavit of William Mullarkey, one of the Respondents, which states that the Village did not actually review the sufficiency of the petitions. Instead, he avers that Respondents only compared "the signatures on each petition" to "a list of registered voters for the Village of New Waterford." He *Page 9 then states that the review of the petitions showed that there were issues with eighteen of those petitions. {¶ 22} Mullarkey's statement that Respondents did not actually review the sufficiency of the petitions is inconsistent with the stipulation agreed to by the parties that they had reviewed the sufficiency of the petitions. When inconsistencies exist between statements in self-serving affidavits attached to memoranda opposing summary judgment and statements contained in Civ.R. 56(C) evidence supporting a motion for summary judgment, and the affidavit neither suggests the affiant was confused nor offers a reason for the contradictions, the affidavit does not create a genuine issue of fact which would preclude summary judgment. Fifth Third Bank v. Jones-Williams, 10th Dist. No. 04AP-935,2005-Ohio-4070, at ¶ 25. Since there is no explanation offered for this inconsistency, we will use the facts in the stipulation, i.e., that Respondents reviewed the sufficiency of the petitions, rather than the self-serving facts contained in the affidavit. {¶ 23} Accordingly, Respondents have rebutted Relator's evidence of 182 signatures of "duly qualified electors" by showing a genuine issue regarding whether 18 of those signatures are valid. However, this means that, when the evidence is viewed in the light most favorable to Respondents, there is not a genuine issue of material fact regarding 164 of those signatures, which is more than forty percent of the people who voted at the last regular municipal election. {¶ 24} For the purposes of this motion for summary judgment, we must conclude that the petitions Relator has filed constitute more than forty percent of the *Page 10 electors in the Village, which triggers the Village Council's statutory duty to provide for a special election to determine whether the Village's corporate powers should be surrendered. Relator has no adequate remedy in the ordinary course of law to force the Village Council to exercise that duty. Accordingly, this court should order Respondents to provide for a special election in order to determine whether the Village of New Waterford's corporate powers should be surrendered in accordance with R.C. 703.20. *Page 1

2016-07-06 06:42:30.127283+00

McKee

This is an appeal by defendants-appellants, Richard Stewart (case No. CA-2704) and Phillip J. Hammond, Jr. (case No. CA-2707), from their convictions and sentences for rape and felonious assault. The defendants' cases were consolidated for trial in the Court of Common Pleas of Licking County, and were also consolidated for purposes of appeal. Both of the defendants herein were prisoners in the Licking *Page 148 County Jail on January 27 and January 28, 1980. The victim of the crimes for which defendants were convicted was a fellow prisoner on the second floor of such jail. At approximately 11:00 p.m. on January 27, 1980, both of the defendants herein, together with the victim and a fourth prisoner, who is not a party to this action, were locked in the same cell in the jail. Following such lock-in, the victim testified that both of the defendants participated in beatings upon his person and further forced the victim to perform anal and oral sex with both of the defendants as well as with the fourth prisoner. The victim further testified that several of the beatings immediately preceded the acts of anal and oral sex, and that some of the beatings upon his person were after such sex had been completed. The victim further testified that, after completion of an act of oral sex upon each of the other three prisoners, he was thrown upon the floor of the cell and kicked by the prisoners until he passed out. Both of the defendants herein took the stand and denied that any beatings or rapes took place within the cell as described by the victim. The jury, upon consideration of the evidence, found each defendant guilty of one count of rape in violation of R. C.2907.02, and of one count of felonious assault in violation of R. C. 2903.11. Based upon the verdict of guilty, the trial court sentenced each defendant to seven to twenty-five years upon the count of rape, and to five to fifteen years upon the count of felonious assault, and ordered both sentences to run consecutively. The court further granted credit for the time that both defendants had been incarcerated in the Licking County Jail awaiting trial of the charges. After pronouncing the sentence, the trial judge did comment that, in determining the sentence, he had considered the course of conduct involved in the offenses, and that, further, the court believed that the defendants had deliberately and intentionally lied in the testimony presented to the jury. Defendant Richard Stewart assigns the following errors: "Assignment of Error No. 1 "The offenses of rape and felonious assault, contained in the indictment, constitute allied offenses of a similar import under Section 2941.25 Ohio Revised Code, and the failure of the trial court to sustain a motion requiring the state to elect *Page 149 which count in the indictment upon which to proceed and dismiss the other count constitutes error. "Assignment of Error No. 2 "The trial court violated appellant's right to due process by improperly considering the court's personal opinion that appellant intentionally and deliberately lied in his testimony on the merits of the case and by increasing the penalty imposed upon appellant because of such belief." (Emphasis sic.) Defendant Phillip J. Hammond, Jr., assigns substantially the same two alleged errors. As the assignments of error for both defendants are identical in substance, if not in form, the same will be considered together. As to the first assignment of error, the defendants claim that the rape and felonious assault convictions violate R. C.2941.25 in that the same are allied offenses of similar import. This court need not consider or decide such claim; as to support such a claim, the defendants must also show that the prosecution relied upon the same conduct to support both offenses. State v.Logan (1979), 60 Ohio St.2d 126. In determining whether the same conduct supports a conviction for both offenses, it is proper to consider whether the conduct was prolonged, whether the actions of the defendants were substantial, and whether the actions of the defendants subjected the victim to substantial risk of harm, separate and apart from the rapes. The record establishes that the conduct of the defendants was, in fact, prolonged and that a separate animus clearly existed with respect to the brutal assaults upon the victim and the separate anal and oral rapes. Further, the evidence in the record establishes that the assaults upon the victim were far in excess of those required to force the victim to submit to the sexual acts. See State v. Roberts (1980),62 Ohio St.2d 170, certiorari denied (1980), 449 U.S. 879. In the second assignment of error, the defendants indicate that had the trial judge not articulated his reasons for sentence, and had he not indicated with candor his beliefs as to the defendants' testimony, that there would be no basis to consider the sentences which were imposed. The defendants do submit, however, that since the trial judge did express his beliefs as to the defendants' testimony, the cases must be remanded for resentencing, in light of R. C. 2929.12 and the *Page 150 court's decision in State v. Jeffers (1978), 57 Ohio App.2d 107. R. C. 2929.12 sets forth the factors that a trial judge may consider in imposing sentence for a felony. These factors include "* * * the nature and circumstances of the offense, the history, character, and condition of the offender and his need for correctional or rehabilitative treatment, * * *." R. C.2929.12(A). In State v. Jeffers, supra, the Court of Appeals for Hamilton County, on May 31, 1978, remanded a case for resentencing based upon R. C. 2929.22(F) which provides that a fine imposed should not work an undue hardship on an indigent defendant. The case before that court involved a misdemeanor, for which the maximum fine was imposed, and the case was primarily remanded upon such basis. In that case, also, the sentencing judge had stated that he did not believe the defendant's testimony. The act of such trial judge was assigned as additional error and was found to be improper by the Court of Appeals in that the court adopted the logic of the federal cases of Scott v. United States (C.A.D.C., 1969), 419 F.2d 264, and Poteet v. Fauver (C.A. 3, 1975),517 F.2d 393. Not available to the Court of Appeals on such date was the decision of the United States Supreme Court in UnitedStates v. Grayson (1978), 438 U.S. 41, decided June 26, 1978. In that case, the Supreme Court considered the sentencing practice of a federal judge in which the judge, anticipating the possible consequences of the decisions in Scott and Poteet, specifically said that one of the elements he was considering in sentencing was that he felt the defense was fabricated. The Supreme Court, in considering the background of sentencing, the tradition with regard thereto, and the purposes of sentencing, rejected the logic in the Scott and Poteet cases and reversed the decision of the Court of Appeals, which had vacated the District Court's sentence. The court noted that it has long been proper that the "* * * sentencing authority * * * consider * * * evidence heard during [the] trial, as well as the demeanor of the accused. * * *"Grayson, supra, at 50. The court further recognized that the defendant's truthfulness, or lack thereof, while testifying on his own behalf, is "* * * probative of his attitudes toward society and [his] prospects for rehabilitation * * *." Id. Truthfulness, or the lack thereof, is, therefore, *Page 151 relevant in sentencing; and, the judge should consider, or could consider, the same where he finds that the defendant's testimony is wilfully and materially false. Under the applicable sections of the Ohio Revised Code, e.g., R. C. 2929.12, evidence which is relevant toward the defendant's attitude toward society or his prospects for rehabilitation are to be considered by the trial judge in sentencing. The Supreme Court further addressed the reasoning that considering the defendant's conduct might have a chilling effect upon his option as to whether to testify on his own behalf. The court properly noted that the defendant is guaranteed "* * * the right to testify truthfully in accordance with * * * [his] oath * * *" id., at 54, that no constitutional right exists to permit the defendant to lie on the stand, and that there is no chilling effect as to his option. It is appropriate to note that the law should and does encourage candor on the part of the trial judge, rather than promote hypocrisy by leaving unsaid the elements which should be and are considered in pronouncing a sentence. Accordingly, the defendants' second assignment of error is overruled. For the reasons set forth, the assignments of error of both appellants are each overruled. No error prejudicial to appellants appearing, the sentences and judgments of the Court of Common Pleas of Licking County are affirmed. Judgments affirmed. PUTMAN, P. J., and RUTHERFORD, J., concur. *Page 152

2016-07-06 06:42:30.175797+00

Per Curiam

Appellant appeals a Wood County Court of Common Pleas jury award of $22,095.50 granted to appellee for injuries received in an auto accident. Appellant failed to object to appellee's medical expert's videotaped trial deposition during its taking. Appellant asserts that the trial court erred when it found appellant waived his objections by failing to timely make them. Similarly, appellant asserts the videotaped deposition should have been excluded from evidence in its entirety because the expert failed to link appellee's *Page 625 injury with the specific auto accident involving appellant. Appellant also contends that certain medical bills were admitted into evidence without foundation. Appellant's assignment of errors are without merit. We affirm the decision and verdict of the trial court. Appellee has filed a cross-appeal asserting the trial court erred in denying appellee/cross-appellant prejudgment interest without an evidentiary hearing. Because we find that such a hearing is not mandatory, we find appellee's cross-appeal not well taken. In the early morning hours of October 31, 1987, a car driven by appellee, Sandra L. Novak, with her college roommate, Susan Toohey, as a passenger, was stopped at a traffic light in Bowling Green when it was struck in the rear by a car driven by appellant, Aaron M. Lee. The force of the impact collapsed the rear of appellee's car and pushed the car forward into a third vehicle. Appellant was removed from the scene by ambulance. Both appellant's and appellee's cars were towed from the scene. Police took appellee and her roommate to their college dormitory. After returning to the dormitory, both women decided to go to the emergency room at a local hospital. There, appellee complained of neck, shoulder and back pain. Appellee was examined, provided with a cervical collar and released. Twice during the next two weeks appellee entered the University's Student Health Center complaining of the same kind of pain. Analgesics were prescribed. Some weeks later when the pain had not subsided, appellee consulted with a Cleveland physician who prescribed a muscle relaxant and anti-inflammatory drugs. More than a year later, appellee went to a second Cleveland doctor who again prescribed muscle relaxants and a different anti-inflammatory drug. Finally, appellee consulted with a third Cleveland physician, Dr. Hritz, an orthopedic surgeon. Dr. Hritz performed a series of evaluative tests on appellee and diagnosed her as suffering from chronic neck sprain with spasms and bursitis. The doctor prescribed a regimen of physical therapy in conjunction with an anti-inflammatory medicine. On March 27, 1989, appellee filed a negligence complaint against appellant. In August 1989, the trial court issued a pretrial order setting deadlines for various aspects of the case, including a May 8, 1990 trial date and a May 1, 1990 objection-to-admissibility deadline. Dr. Hritz's trial deposition was held on February 16, 1990. At the deposition appellant was represented by counsel who cross-examined the doctor, but failed to object to any testimony offered during direct examination. *Page 626 At trial appellant admitted negligence, but denied that his negligence was a proximate cause of appellee's injuries. Prior to voir dire, appellant attempted to raise objections, "basically on a hearsay basis," to questions and answers in the videotaped trial deposition of Dr. Hritz. The trial court ruled that appellant's failure to raise such objections contemporaneous to the taping of the deposition constituted a waiver of such objections. The trial court also overruled appellant's motion to exclude Dr. Hritz's videotaped testimony in its entirety. Appellant made this motion based on Dr. Hritz's testimony that appellee's injuries were "secondary" to the accident rather than primarily the result of the accident. Appellant's objection to the admission of certain medical bills because their necessity had not been established was also overruled by the trial court in part. The trial proceeded with the videotaped deposition of Dr. Hritz being the only medical testimony presented. Appellant rested without presenting any witnesses. The jury found in favor of appellee, awarding her $22,095.50. Appellant moved for a new trial. Appellee moved for prejudgment interest. The trial court denied both motions and entered judgment on the verdict. From this judgment appellant appeals and appellee assigns a cross-appeal. Appellant presents three assignments of error: "I. ASSIGNMENT OF ERROR NO. 1 "The trial court erred when it did not permit counsel for defendant to object to the testimony of Dr. Hritz prior to the presentation of the videotaped deposition at the trial on the merits of this matter. "II. ASSIGNMENT OF ERROR NO. 2 "The trial court erred in allowing into evidence the videotaped deposition of Dr. Hritz at the trial on the merits of this matter. "III. ASSIGNMENT OF ERROR NO. 3 "The trial court erred in admitting into evidence certain medical expenses without testimony that the medical expenses were necessary as the result of the accident which was the subject of the trial on the merits in this matter." I Appellant sought to object to portions of appellee's expert witness's videotaped trial deposition immediately prior to the beginning of the trial. While prospective jurors were waiting to be impanelled, appellant's counsel addressed the court: "* * * there are certain items where objection would * * * be properly made, basically on a hearsay basis as opposed to the form of the question or the form of the answer." The trial court overruled appellant's objections as having been waived. The court referred to a local rule which *Page 627 required objections to be made at the conclusion of the question-and-answer exchange during the deposition. Objections to testimony elicited during a videotape trial deposition are subject to several layers of rules. The first of these are the Civil Rules governing all depositions: "(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. "(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition." Civ.R. 32(D)(3)(a) and (b). There are additional rules governing videotaped depositions: "(15) Objections at Trial. Objections should be made prior to trial and all objections must be made before actual presentation of the videotape at trial. If an objection is made at trial which has not been waived pursuant to Civil Rule 32(D)(3) or previously raised and ruled upon, such objection shall be made before the videotape deposition is presented. The trial judge shall rule on such objections prior to the presentation of the videotape. If an objection is sustained, that portion of the videotape containing the objectionable testimony shall not be presented." C.P.Sup.R. 12(A)(15). See, also, Vargo v. TravelersIns. Co. (1987), 34 Ohio St.3d 27, 32, 516 N.E.2d 226, 231. The Wood County Court of Common Pleas has also issued local rules relative to videotaped depositions: "(F) Ruling on Objections. Objections must be at the conclusion of the question and answer only. Counsel may state the basis for the objection and read citations into the record at this time. Any objection made prior to the completion of an answer may, in the Court's discretion, be considered overruled. "The Court will rule on the objections prior to the date set for the trial of the action and will notify the officer and the parties of his rulings and his instructions as to editing. The editing shall be done prior to date of trial and shall reflect the rulings of the trial judge and shall remove all references to the objections. The officers shall then cause the videotape to be edited in accordance with the Court's instructions and shall cause both the original *Page 628 videotape recording and any edited version of that recording, each clearly identified, to be filed with the clerk of the trial court. "The effectiveness of a videotape deposition is greatly increased when all of the objections have been ruled upon prior to the time of trial. if, however, an objection is made at the time of trial, which objection has not previously been waived or previously raised and ruled upon, such objection shall be made before the videotape deposition is presented and will be ruled upon by the Court in advance of that presentation. If such objection is sustained, that portion of the videotape deposition containing the objectional testimony shall not be presented to the jury." Loc.R. 4.11(F), Court of Common Pleas of Wood County. Since appellant failed to proffer any basis for its objection to Dr. Hritz's testimony other than that portions of it were hearsay, other objections appellant may have had were not before the trial court. Therefore, they are not before this court.Inner City Wrecking Co. v. Bilsky (1979), 51 Ohio App.2d 220,226, 5 O.O.3d 357, 360, 367 N.E.2d 1214, 1218. In Ohio, "[c]ourts may adopt additional rules concerning local practice in their respective courts which are not inconsistent with the [rules of superintendence]." Article IV, Section 5(B), Ohio Constitution. In the same section, the Supreme Court is given the authority to promulgate rules governing practice in all state courts so long as these rules do not "abridge, enlarge, or modify any substantive right." Id. When objection to testimony in a videotaped trial deposition must be raised is a procedural issue not affecting a substantive right. The Wood County Court of Common Pleas may, therefore, make a rule that requires that objections in videotaped deposition be made at the conclusion of the question and answer only. Considering the time-consuming task of altering a videotaped deposition when an objection has been sustained, there is ample reason for the court to make a contemporaneous objection rule and to adhere to it. Were there not such a rule, the court could be faced frequently with the choice of delaying a trial or excluding the videotape deposition in its entirety. Choosing the former creates a waste of judicial resources. Choosing the latter could unfairly prejudice the party presenting the deposition. Appellant's first assignment of error is found to be without merit and not to be well taken.1 *Page 629 II Appellant's second assignment of error is based on Dr. Hritz's testimony that appellee's injuries were "caused secondary to a motor vehicle accident." Appellant first argues that the doctor's use of the word "secondary" requires the jury to speculate as to whether "secondary" means the same as "direct and proximate." Appellant put forth much the same argument before the trial court, proposing that the use of the word "secondary" would mean that there is an intervening cause before the injury that is secondary to the accident. According to appellant, this means that there is not a direct or proximate causal relationship between an injury and an accident if that injury is "secondary" to the accident. However, we take note that "secondary" is defined as "immediately derived from something original, primary, or basic." Webster's 9th New Collegiate Dictionary (1990) 1060. It would appear, therefore, that appellee's injury was immediately derived from a motor vehicle accident. Appellant also places emphasis on Dr. Hritz's reference to "a" motor vehicle accident rather than "the" or "this" accident as the cause of appellee's injuries. This phraseology, according to appellant, does not clearly trace appellee's injuries to the particular accident involving appellant. The doctor may have been referring to some other accident. The phrase which appellant points to occurs during appellee's direct examination of the doctor. Viewing the deposition as a whole, it is clear that Dr. Hritz was referring to the accident that occurred on "10-31-87," as the doctor testified to that on cross-examination. Therefore, appellant's second assignment of error is without merit and not well taken. III Finally, appellant asserts the trial court erred in admitting statements for medical expenses without testimony as to the medical necessity of the treatment. Appellant raised the same question at trial and a thorough discussion was had before the trial court. Following the discussion, the trial court allowed into evidence the expenses related to Dr. Hritz's treatment of appellee, as well as the expense statements for medication prescribed by other treating physicians which Dr. Hritz testified were necessary to treat appellee's condition. The court denied admission of the statement of expenses of two treating physicians prior to Dr. Hritz, but allowed appellee to testify to the cost of her emergency room treatment. Appellant would have us differentiate between a treating physician's testimony that he ordered tests and therapy for treatment and, citing Detunno v. Shull (1957), 166 Ohio St. 365, 2 O.O.2d 281, 143 N.E.2d 301, modified by *Page 630 Wagner v. McDaniels (1984), 9 Ohio St.3d 184, 9 OBR 469,459 N.E.2d 561, testimony that such tests and therapy are medically necessary. However, there are no magic words a physician must say to establish the treatment ordered by him is medically necessary. It is sufficient that the physician testifies that a procedure was ordered in the course of treatment to establish an inference of necessity. If the opposing party has evidence to the contrary, the opportunity for introduction of such evidence exists. Even though there was no testimony as to the necessity of appellee's emergency room treatment, it is within the realm of common knowledge that an occupant of a vehicle involved in a violent crash sufficient to disable the vehicle may reasonably desire to seek examination and treatment. Where the causal relationship of treatment is a matter of common knowledge, no expert testimony as to necessity is required. Wood v. Elzoheary (1983), 11 Ohio App.3d 27, 29, 11 OBR 40, 42, 462 N.E.2d 1243,1245. Appellant's final assignment of error is also without merit and found not to be well taken. IV Appellee has filed a cross-appeal with a single assignment of error: "The trial court committed prejudicial error by denying cross-appellant's motion for pre-judgment interest without first conducting an evidentiary hearing." Appellee/cross-appellant asserts that an evidentiary hearing is mandated where a motion for prejudgment interest on a tort award has been filed. Since appellee/cross-appellant failed to request a hearing, her assignment must fail unless an evidentiary hearing is mandated by the statute. R.C. 1343.03(C) provides: "(C) Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct * * * 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." It has been held that where there is a hearing under R.C.1343.03(C), it must be evidentiary in nature. King v. Mohre (1986), 32 Ohio App.3d 56, 58, 513 N.E.2d 1366, 1369. This, however, is not dispositive of whether such a hearing is mandated. *Page 631 There is a substantial diversity of opinion as to whether the statute requires a hearing to be held whenever prejudgment interest is sought. A number of courts have held that the language of the statute mandates such a hearing. Dalton-Robinsonv. Stark (Dec. 21, 1989), Cuyahoga App. No. 57628, unreported, 1989 WL 154879; Pecek v. Carlton (Jan. 10, 1985), Cuyahoga App. No. 37893, unreported, 1985 WL 7429; Cleveland v. Selvey (Aug. 29, 1986), Seneca App. No. 13-85-8, unreported, 1986 WL 9660;Rininger v. Kitchen Termite Pest Control (May 20, 1987), Fairfield App. No. 44-CA-86, unreported, 1987 WL 11793;Marshall Ent. v. Ackley (Dec. 29, 1988), Franklin App. No. 88AP2-87, unreported, 1988 WL 142081. Other courts hold that R.C. 1343.03(C) makes holding a hearing discretionary with the trial court. Bognar v. ZayreCorp. (N.D. Ohio 1988), 702 F. Supp. 151, 155-156; Akron PrecisionStriping v. Conley (Oct. 17, 1990), Summit App. No. 14619, unreported, 1990 WL 163878; Christopher v. Cleveland Bldrs.Supply (Mar. 2, 1989), Cuyahoga App. No. 55069, unreported, 1989 WL 18957. A third major branch of opinion is that the statute requires a hearing, but that hearing need not be an oral hearing. The determination as to whether an oral hearing should be held is within the discretion of the trial court. Wilson v. Alside,Inc. (Apr. 10, 1985), Summit App. No. 11667, unreported, 1985 WL 10679; Wallace v. Warren Bd. of Edn. (Dec. 7, 1990), Trumbull App. No. 89-T-4297, unreported, 1990 WL 199109; Laverick v.Children's Hosp. (1988), 43 Ohio App.3d 201, 540 N.E.2d 305. As the diversity of opinion above suggests, the language of the statute is ambiguous as to whether a hearing is mandatory and automatic whenever a party files a motion for pretrial judgment interest. We do not believe that the statute clearly mandates such a hearing where it is not anticipated prejudgment interest will be awarded. Instead, the decision to grant such a hearing is in the discretion of the trial court. The trial court following a trial certainly possesses enough information about a case to make a threshold determination as to whether a motion for prejudgment interest might succeed. The court has had the opportunity to view the pleadings, observe the parties, and examine the evidence. If it appears to the trial court that there may be grounds for awarding prejudgment interest, then the court must hold an evidentiary hearing. If it appears no award is likely, the court, in its discretion, may decline to hold such a hearing. Should the party requesting prejudgment interest believe there is a compelling reason in favor of the motion, that party may by memorandum and affidavit bring the reason to the attention of the court. *Page 632 The advantage of this approach is that judicial resources are preserved by avoiding what may frequently be a perfunctory or meaningless hearing on a prejudgment interest motion. At the same time, a party's right to a hearing before prejudgment interest is granted is preserved. In the case at bar, the appellee/cross-appellant was not awarded prejudgment interest; therefore, we find a hearing was not mandated by the statute. The decision to forgo a hearing was within the discretion of the court, and there is nothing in the record to suggest that the court abused its discretion in this matter. Accordingly, appellee/cross-appellant's assignment of error is not well taken. On consideration whereof, the court finds that substantial justice has been done the parties complaining, and the judgment of the Wood County Court of Common Pleas is affirmed. It is ordered that appellant pay costs of this appeal. Judgment affirmed. GLASSER, MELVIN L. RESNICK and SHERCK, JJ., concur. 1 It should also be noted that appellant failed to make his objection to the admissibility of Dr. Hritz's testimony prior to the May 1, 1990 deadline established in the court's pretrial order.

2016-07-06 06:42:33.379414+00

Collier

The appellant, David Bundy, on December 9, 1953, was convicted of a criminal offense in the Municipal Court of the city of Ironton, Ohio, and the judgment was affirmed by the Common Pleas Court of Lawrence County. The original affidavit charging the alleged offense reads as follows: "David Bundy did unlawfully fail to obey an officer in line of his duty, one, Officer Robert Griffith. Contrary *Page 417 to the ordinance in such case made and provided and against the peace and dignity of the city of Ironton. (Signed) Robert Griffith." The defendant, appellant herein, objected to the sufficiency of this affidavit and thereupon the city solicitor moved to amend the affidavit in the following manner: "That David Bundy did unlawfully fail to comply with the lawful order and a lawful signal of a police officer, contrary to Chapter 9, Article 1, Section 4 of the Code of the City of Ironton, Ohio." The trial court sustained this motion and allowed the affidavit to be amended in the manner above set forth. The amended affidavit was not verified. To all of which the defendant objected and saved his exceptions to the ruling of the court as a matter of record. The question presented is whether, in the trial of a criminal case, the court has authority to allow the affidavit charging the offense to be amended without verification by the individual preferring the charges. This question has been before the reviewing courts of Ohio on several occasions and the ruling is definitely established that courts have no such authority. It is held in the syllabus in the case of Diebler v. State, 43 Ohio App. 350,183 N.E. 84: "A court or magistrate is without authority to amend or change an affidavit in a criminal action without a new verification by the affiant, or to force an accused to trial upon an affidavit so amended or changed." See, also, Snyder v. State, ex rel. McCoy, 53 Ohio App. 370,4 N.E.2d 993; and City of Toledo v. Harris, 56 Ohio App. 251, 10 N.E.2d 454. Section 2941.30, Revised Code (Section 13437.29, General Code), expressly provides authority for amendment of indictments and informations, but nowhere in our statutes is there given power to amend *Page 418 an affidavit. There are no common-law crimes in Ohio. They are all purely statutory, and all criminal statutes must be strictly construed. Likewise, criminal procedure in Ohio is prescribed by statute and, in the absence of statutory authority to amend an affidavit, no such authority exists. An indictment is a written, legal accusation made against one and presented by a grand jury; an information is a charge or accusation made by a court or some officer thereof; and an affidavit is a charge made and preferred by an individual. The court may exercise control over its own pleadings such as an indictment or information but has no authority to change a sworn statement contained in an affidavit made by an individual without verification by the affiant. In the instant case the defendant was tried upon an unsworn charge and it is a statutory requirement in a criminal action that the affidavit must be sworn to by the individual preferring the charges. We, therefore, conclude that the Municipal Court was without authority to proceed to trial upon the unverified amended affidavit and we do not find it necessary to consider the record to determine whether or not the evidence is sufficient to establish the defendant's guilt. The judgment of the Common Pleas Court affirming the judgment of the Municipal Court finding the defendant guilty is reversed. Judgment reversed. GILLEN, P. J., and McCURDY, J., concur. *Page 419

2016-07-06 06:42:31.155038+00

Vukovich

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 254 OPINION {¶ 1} Defendants-appellants Canfield Township and its duly elected trustees (collectively known as Township) appeal the judgment of the Common Pleas Court granting a permanent injunction for plaintiff-appellee Citizens Word. The dispositive issue before this court is whether the Township's May 31, 2000 resolution violated Article VIII, Section 6 of the Ohio Constitution. Specifically, we are asked to decide whether a township can expend its own monies on the installation of water lines on township property that will be used primarily by a private residential developer. Answering this question in the affirmative, we hereby reverse the decision of the trial court. STATEMENT OF FACTS {¶ 2} In 1998, Chris Abraham, representing T.C. Quality Homes, Inc., a private developer of residential subdivisions, contacted the Township about developing a 99.8 acre parcel of land it owned on Gibson Road, Canfield Township, Ohio. Abraham contacted the Township inquiring whether it would have the ability to provide utilities for a development consisting of 140 homes. If it did not, the developer would explore annexation procedures to the Village of Canfield. At that time, Gibson Road was a country dead-end road under the jurisdiction of Mahoning County consisting of approximately 27 houses. No water lines or sewer lines existed down this road. {¶ 3} The Township, eager to keep township land from being annexed into the Village of Canfield, began to explore its options in attempting to provide utilities to Gibson Road. The Township made an agreement with Mahoning County for the Township to assume control over Gibson Road. The Mahoning County Planning Commission directed that Gibson Road be improved to enable it to handle the anticipated increase in traffic. The improvements were also needed to ensure that fire and emergency personnel could adequately access the properties along this road, if the need arose for such services. {¶ 4} The Township agreed to pay the cost of installing the water lines as long as it was guaranteed total reimbursement. The developer agreed that the property being developed, the residential subdivision, would not be annexed to *Page 255 the Village of Canfield. The Township passed the March 31, 2000 resolution ordering improvements to Gibson Road. The resolution stated that Gibson Road would be widened, and maintenance would be provided during construction of the water lines. It is undisputed that the installation of the water lines is primarily for the use of the future residents of the development. {¶ 5} Township Trustee Judy Bayus agreed to approve a resolution allowing for the construction of water lines at the Township's expense as long as three conditions were met. First, the funds for the extension of the water lines would be totally reimbursed to the Township. Second, reimbursement would occur within six years. Third, the Township would receive a sufficient guarantee of payment. However, a few months after the March 31, 2000 resolution, the remaining trustees passed a resolution that the Township would be reimbursed within 20 years. {¶ 6} As a result of these resolutions, Citizens Word (Citizens Wanting Only Responsible Development) filed a complaint against the Township and its duly elected representatives requesting a permanent injunction. Bayus filed an answer and a counterclaim against the remaining trustees based on the later resolution. The case proceeded to a hearing. At the hearing, Bayus and the remaining trustees resolved their problem concerning the resolution. The Township would be reimbursed within six years and the reimbursement would come from tap in fees. (Tr. 14). As such, the only issue that remained was whether the May 31, 2000 resolution violated Article VIII, Section 6 of the Ohio Constitution. The trial court held that the actions of the Township violated that provision of the Ohio Constitution since it was lending its credit to a private entity. The Township timely appeals from that decision. {¶ 7} Since the trial court's decision, the developer, using its own money, paid for the installation of the water lines. As a result of that action, Citizens Word claims this appeal is moot. Prior to addressing the Township's assignments of error, we will address whether installation of the water lines at the developer's expense renders this appeal moot. MOOTNESS {¶ 8} It is a basic principle of law that courts ordinarily will not entertain jurisdiction over moot issues. Carver v. Deerfield Twp. (2000), 139 Ohio App.3d 64, 77. However, courts are vested with the jurisdiction to address moot issues when such issues are capable of repetition, yet evade review. State ex rel. Plain Dealer Publishing Co.v. Barnes (1988), 38 Ohio St.3d 165, paragraph one of the syllabus. Courts are also vested with jurisdiction to address moot issues when those issues concern an important public right or a matter of great public or general interest. In re Appeal of Huffer *Page 256 (1989), 47 Ohio St.3d 12, 14. We find that both reasons are applicable in the matter before us. {¶ 9} A developer wanting to build a residential community may go forward with installing the water lines at its own cost, rather than waiting for the completion of the appeals process. Accordingly, the issue is one that might evade review. Furthermore, and maybe even more importantly, the issue before us is a matter of great public interest. Providing water to residents of a political subdivision is a traditional activity for which public funds may be expended. Any court ruling which finds that an expenditure of this type is constitutional or unconstitutional involves a matter of great public interest. Consequently, we will now address the Township's assignments of error. ASSIGNMENT OF ERROR NO. ONE {¶ 10} "The trial court erred in finding that construction of the water improvement at public expense violated Article VIII, Section 6 of the Ohio Constitution." {¶ 11} The Township states it did not raise money, lend its credit, or enter into a joint venture with the developer for the construction of water lines down Gibson Road, and thereby, it did not violate Article VIII, Section 6 of the Ohio Constitution. The Township furthers this argument by claiming that the trial court's reliance on the Ohio Supreme Court case, C.I.V.I.C. Group v. Warren, 88 Ohio St.3d 37,2000-Ohio-265, is misplaced. Citizens Word argues that the Township's action in the case at hand is similar to the city's action in C.I.V.I.C. As such, according to Citizens Word, the trial court correctly relied onC.I.V.I.C. in concluding that the Township violated Article VIII, Section6 of the Ohio Constitution. {¶ 12} R.C. 505.705 and 6103.031 grant a township the authority to expend monies on the construction of water lines on its property. However, in constructing water lines, the township is not permitted to violate Article VIII, Section 6 of the Ohio Constitution, which provides in relevant part, as follows: {¶ 13} "No laws shall be passed authorizing any * * * township, by vote of its citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or loan its credit to, or aid of, any such company, corporation, or association: * * *." Article VIII, Section 6 of the Ohio Constitution. {¶ 14} The purpose behind Article VIII, Section 6 of the Ohio Constitution is to prohibit private interests from tapping into public funds at the taxpayers' expense. C.I.V.I.C., 88 Ohio St.3d at 40. In the early days of statehood, Ohio's fertile soil and abundance of water provided many opportunities, yet Ohioans lacked the efficient means to get their products to *Page 257 market. Id. at 39-40. Thus, Ohio and its subdivisions undertook the financing of railroad and canal companies by lending credit to and purchasing stock in aspiring new ventures. Id.; Grendell v. Ohio EPA (2001), 146 Ohio App.3d 1, 7-8. When many of these private interests failed, public debt soared and heavy taxation followed. Grendell, supra. As a result, Article VIII, Section 6 was made a part of the Ohio Constitution. Id. In general, Article VIII has been said to be an expression of concern with placing public tax dollars at risk to aid private enterprise. State ex rel. Petroleum Underground Storage TankRelease Comp. Bd. v. Withrow (1991), 62 Ohio St.3d 111, 114. {¶ 15} In 2000, the Ohio Supreme Court addressed whether a city's action of providing financial support to a private residential development violated Article VIII, Section 6 of the Ohio Constitution.C.I.V.I.C., 88 Ohio St.3d 37. It held that when "a city contributes to the payment for and financing of a residential subdivision development project, the city is taking action `to raise money for,' and `loan its credit to, or in aid of,' private corporation in violation of Section 6, Article VIII of the Ohio Constitution." Id. at syllabus. Therefore, inC.I.V.I.C. the city was directly financing the improvements to the property of the residential development. C.I.V.I.C. Group v. Warren (Oct. 9, 1998), 11th Dist. No. 98-T-0001. The question not answered inC.I.V.I.C., however, is whether a governmental entity can constitutionally finance an improvement on its own property where that improvement would be of benefit to a private developer. {¶ 16} We hold that a governmental entity can improve its own property regardless of whether it will benefit a private developer. Citizens Word's contention and the trial court's reasoning thatC.I.V.I.C. is identical to the situation at hand is incorrect. We consider the ownership and control of the lands to be improved to be the critical factor which distinguishes the case sub judice from C.I.V.I.C. In C.I.V.I.C. the city was lending its credit to a developer by constructing improvements on the developers land and only receiving reimbursement for 80 percent of its costs. C.I.V.I.C.,88 Ohio St.3d at 40. Here, the improvements to be financed by the government were on the Township's land, and not on the land of a private developer. Thus, the Township was acting under its authority to place water lines on property under its control. See R.C. 505.705; R.C. 6103.031. {¶ 17} Assuming arguendo that a Township wanted to place water lines down a road under its control, and that no residential development was being built adjacent to this road — little could be done to prevent the Township from placing water lines down this road. Accordingly, if a residential development is built at the same time the water lines are constructed and the tap in fees will reimburse the Township for its construction of the water lines, the result does not change. *Page 258 The Township still has the authority to construct water lines on its own property that will be under its control. Therefore, the Township's action of placing a water line down Gibson Road did not result in it raising money or lending its credit to the developer. {¶ 18} Additionally, and although not as critically as important as the ownership of the property, the Township was to be reimbursed within six years for the amount it expended on the construction of the water lines on its own property. The only fees that the Township would not recoup would be paying for the advertising costs, permit fee costs, legal expenses, and portions of the engineering costs. The guaranteed reimbursement indicates that the Township neither lent its credit nor raised money for private investment. See Springfield ex rel. Burton v.Springfield (June 23, 2000), 2d Dist. No. 2000-CA-0014 (questioning the applicability of the C.I.V.I.C. case when the developer would reimburse the city 100% for improvements in residential areas and 90% for improvements in non-residential areas where the reimbursement was guaranteed with liens upon the land). {¶ 19} Therefore, the trial court's reliance on C.I.V.I.C. is misplaced as the facts in the case sub judice are distinguishable from the facts in C.I.V.I.C. Accordingly, we hold that the Township neither lent its credit nor raised money for the developer. The trial court erred in granting a permanent injunction based upon that reasoning. {¶ 20} Furthermore, we disagree with the trial court's finding that the Township entered into a joint venture with the developer. The language "joint venture" is not used in Article VIII, Section 6 of the Ohio Constitution. Grendell, 146 Ohio App.3d at fn. 4 (stating only a few courts have considered a "joint venture" in regards to Section 6, citingState ex rel. Tomino v. Brown (1989), 47 Ohio St.3d 119, 121-122; Lazarusv. Hamilton Cty. Bd. of Commrs. (C.P. 1966), 6 Ohio Misc. 254, 260; Stateex rel. Eichenberger v. Neff (1974), 42 Ohio App.2d 69 (using the word "venture" only in its unofficial syllabus and not in the text of the opinion)). However, it has been held that Section 6 prohibits "joint business ventures." Tomino, 47 Ohio St.3d at 121-122. {¶ 21} A joint business venture is defined as: {¶ 22} "[A]n association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business adventure for joint profit, for which purpose they combine their efforts, property, money, skill and knowledge, without creating a partnership, and agree that there shall be a community of interest among them as to the purpose of the undertaking, and that each coadventurer shall stand in the relation of principal, as well as agent, as to each of the other coadventurers * * *." Al Johnson Constr. Co. v. Kosydar (1975), *Page 259 42 Ohio St.2d 29, paragraph one of the syllabus, quoting Ford v.McCue (1955), 163 Ohio St. 498, paragraph one of the syllabus. {¶ 23} A joint business venture requires that each party has the authority to equally direct and control the other with respect to all aspects of the alleged enterprise. Clifton v. Van Dresser Corp. (1991),73 Ohio App.3d 202, 211; Ford, supra. In the case at hand, the developer was to have no control over the water lines; it would be owned solely by the Township for the Township's benefit. As such, equal control did not exist, therefore, a joint venture did not occur and Section 6 was not violated. This assignment of error has merit. ASSIGNMENT OF ERROR NOS. TWO AND THREE {¶ 24} "The trial court erred in enjoining enforcement of the resolution of March 31, 2000, since the parties stipulated that appellant could lawfully proceed with construction of the road improvements which were authorized under that resolution." {¶ 25} "The trial court erred in granting counsel for appellee Citizens Word leave to file a motion for attorney fees pursuant to R.C.309.13." {¶ 26} Our disposition of the first assignment of error renders both of these assignments of error moot. {¶ 27} For the foregoing reasons, the decision of the trial court is hereby reversed. It was not a violation of the Ohio Constitution for the Township to install water lines on its own property, regardless of whether the primary benefit was for a private developer. Waite, P.J., and Reader, J., concur. *Page 260

2016-07-06 06:42:31.06123+00

DECISION AND JUDGMENT ENTRY This is an appeal from: (1) a "JOURNAL ENTRY OF CONVICTION" filed in the Williams County Court of Common Pleas on February 14, 2000, in which the trial court accepted jury verdicts finding appellant, Jeffrey P. Corbett, guilty of four counts of sexual battery (violations of R.C.2907.03(A)(6)); and (2) a judgment entry filed on April 5, 2000, in which the Williams County Court of Common Pleas designated appellant a sexually oriented offender and sentenced appellant to concurrently serve prison terms of four years for each of the first three convictions and one-and-one-half years for his fourth conviction. Appellant has presented the following three assignments of error for consideration on appeal: "Assignment of Error No. 1: THE TRIAL COURT COMMITTED ERROR AND VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS WHEN IT PERMITTED THE STATE TO USE STATEMENTS HE MADE TO INVESTIGATORS. "Assignment of Error No. 2: APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO MAKE A TIMELY MOTION TO SUPPRESS. "Assignment of Error No. 3: APPELLANT WAS PREJUDICED AND DENIED A FAIR TRIAL WHEN THE STATE MADE REFERENCE TO SEXUAL MISCONDUCT IT COULD NOT PROVE AND DID NOT ATTEMPT TO PROVE." Before we consider the arguments presented related to these assignments of error, we will first review the facts and procedure in this case. The record shows that this case began on September 15, 1999, when the grand jury sitting in Williams County, Ohio, filed an indictment charging appellant with five counts of sexual battery and two counts of attempted sexual battery. On October 8, 1999, appellant entered not guilty pleas to all of the charges. On January 21, 2000, the court entered a Nolle Prosequi on one count of attempted sexual battery, because the former inmate who alleged the attempted sexual battery that was the subject of that count was identified as a homicide victim. The case proceeded to trial on the remaining counts on February 7, 2000. After the jury was selected, the prosecutor made an opening statement outlining the evidence he expected to present as to five counts of sexual battery. He explained to the jury that appellant was a former corrections supervisor at CCNO and that appellant was charged with engaging in sexual conduct with some former female inmates while he was working as a corrections supervisor and they were inmates at CCNO. The prosecutor then made the following statements without any objection raised by appellant's trial counsel: "There is one additional charge in the Indictment and it is simply attempted sexual battery, attempting sexual battery. And the victim in that case is a girl by the name of Alicia Kern. And there is one count. I will tell you right now, I don't know if we are going to have any evidence on that case or not, on this one here. I can't find her. We may be able to tonight or something, but I'm just telling you I may not have any evidence on this one here, the attempted one. But these other three are sexual battery cases." When appellant's trial counsel presented an opening statement he made the following remarks relating to the charge the prosecutor indicated might not be pursued: "The missing potential victim, Alicia Kern, indicated that her incident took place after supper and later that night that Mr. Corbett came back into the dormitory again at 7:30 or so and in fact Mr. Corbett never worked that shift." The state then began presenting witnesses, including the three former female inmates who testified that appellant forced them at various times to engage in either fellatio or vaginal intercourse. The state also called two former guards from CCNO and the investigator from CCNO who was assigned to check into the charges against appellant when they surfaced. At the close of the testimony, the state indicated to the trial court that it would not object to a judgment of acquittal as to the charge relating to the alleged victim Alicia Kern and that it would not present any evidence relating to that charge. The testimony presented by witnesses called by the state spanned two days of trial. At the beginning of the second day of trial, appellant's trial counsel presented a motion in limine to the trial court. In the motion in limine, appellant's trial counsel asked the trial court to prevent the state from asking the investigator from CCNO about three statements appellant made to the investigator. Appellant's trial counsel argued that appellant's statements could not be used against appellant at trial because the statements were coerced. Appellant argued that the statements were coerced because he was a public employee when he made the statements, and he was subject to a contract provision that specified that he would be charged with insubordination and could lose his employment if he refused to answer direct questions related to his alleged wrongdoing while on the job. The state argued in response that appellant's motion in limine was in actuality a motion to suppress that was not timely, since it was not raised before trial as required by Crim.R. 12. The state said that appellant had waived his right to challenge the use of the statements in question by not filing his motion in a timely manner. The state said that the statements were critical to its case against appellant, and that by filing the motion mid-trial, appellant was attempting to prevent the state from making an immediate appeal, pursuant to Crim.R. 12(J), from the trial court's ruling if the trial court chose to grant appellant's motion to suppress his statements. In the alternative, the state argued that appellant's statements were not coerced in this case because while appellant was given his Miranda warnings at the beginning of each interview to warn him that his statements could be used against him at trial, he was never warned that if he failed to answer the questions asked he would be charged with insubordination which could lead to his termination as an employee at CCNO. The trial court denied the motion filed by appellant's trial counsel on the basis that the motion was actually an untimely motion to suppress. During the direct examination of the inspector from CCNO, the state did ask the inspector some questions relating to the statements appellant made to the investigator. The trial court admitted the inspector's answers over the continuing objection of appellant. After the state rested, appellant presented a defense. First, he called another former guard at CCNO who testified about the patterns and practices appellant followed at work and why she believed appellant could not have committed any of the acts for which he was charged. Next, appellant took the stand to testify on his own behalf. He denied all the allegations made against him. On cross-examination, the state questioned appellant regarding some of the statements appellant made to the investigator at CCNO before criminal charges were filed against him. At the close of appellant's defense, the trial court presented the case to the jury for deliberation, after dismissing the count relating to allegations raised by Alicia Kern. The jury returned verdicts finding appellant guilty of four counts of sexual battery, and not guilty of one remaining count of sexual battery. The trial court accepted the verdicts and subsequently sentenced appellant for his four convictions of sexual battery. Appellant then brought this appeal. Appellant states that his first and second assignments of error are interrelated, and he presents his arguments in support of those assignments of error together. Likewise, appellee presents its responding arguments together. Accordingly, we will consider the first two assignments of error together. In support of his first and second assignments of error, appellant first argues that the trial court erred when it allowed the state to use his statements made to the investigator at CCNO during trial. He contends that when existing precedent from the United States Supreme Court,Garrity v. New Jersey (1967), 385 U.S. 493, and from Ohio state courts, see, e.g. Jones v. Franklin County Sheriff (1990), 52 Ohio St.3d 40; andState v. Sess (1999), 136 Ohio App.3d 689, are applied to the facts in this case, it is clear that his statements were coerced and should have been excluded from evidence in any criminal proceedings brought against him. Appellant says that in the above cited cases, the courts consistently ruled that public employees can be required to answer potentially incriminating questions, as long as they are not asked to surrender their constitutional privilege against self-incrimination. However, appellant says, if a public employee is forced to answer potentially incriminating questions or face discipline and dismissal from employment, the statements made by the employee cannot be used against the public employee in a criminal trial. Appellant says he was faced with such a dilemma in his case. He says that each time he was questioned by the CCNO investigator he was given his Miranda warnings, so he knew "that what he said could be used against him and [was] told that he did not have to answer questions." Appellant then asserts in his brief: "However, he also knew that as a public employee and pursuant to his union contract, he could be terminated for not answering questions. Thus, he was faced with the choice between, on the one hand, surrendering up his right against self-incrimination and, on the other hand, risking loss of his job." In the alternative, appellant presents a second argument in support of his first and second assignments of error that he received ineffective assistance of trial counsel when his trial counsel failed to file a timely motion to suppress his statements. First, he says that the representation he received at trial fell below an objective standard of reasonable representation because no competent defense counsel would be unaware of the requirements of Crim.R. 12(B) that a motion to suppress be filed before trial. Second, he says that his trial counsel's failure to make a timely motion to suppress was prejudicial to his case and was "of constitutional dimension." He says that the prejudice is clear since the motion brought by his trial counsel was denied as untimely, and since the evidence that was therefore admitted at trial was "vital to the success of the State's case." In support of that assertion, he points to the representations to that effect that were made by the prosecutor to the trial court during argument about the motion in limine. The state responds that appellant's arguments about ineffective assistance of counsel are moot and should not be reached, because the trial court did not err in this case when it permitted the state to use "small parts" of appellant's three statements to the CCNO investigator during trial. The state acknowledges that appellant was given hisMiranda warnings before he made each of his three statements to the investigator at CCNO. However, the state asserts that there is nothing in the record to support appellant's assertion that he knew that as a public employee he could be subject to discharge for failing to answer the questions posed by the investigator. The state says appellant never testified to or proffered any evidence to show that he knew he could be disciplined or discharged if he refused to answer the investigator's questions or that he thought he was faced with a choice of losing his employment or waiving his Miranda rights. The state acknowledges that there was a provision in appellant's employment contract with the state that specified that he could be required to answer direct questions about allegations of misconduct on the job. However, the state says that nothing in the record shows that appellant was ever told about that provision, or that the provision was ever applied to appellant in this case. The state says that the provision would not be triggered until appellant refused to answer questions and the investigator then warned appellant that he could be charged with insubordination and then discharged. The state says since appellant voluntarily waived his Miranda rights and answered all the questions asked him by the investigator, appellant was never warned that his failure to answer questions could result in charges or dismissal. Further, the state says that the provision in appellant's employment contract contained language that required the state to inform appellant that if he was required to answer the questions or face disciplinary action, the statements he made could not be used against him in a court of law. The state says that since appellant was never ordered to answer the questions, he was never faced with a choice between losing his employment or waiving his constitutional right to refuse to make a self-incriminating statement. The state says, therefore, that the cases cited by appellant, that stand for the proposition that statements made by a state employee faced with the choice of losing employment or making self-incriminating statements must be barred from any subsequent criminal prosecution of the employee, do not apply in this case. In the alternative, the state argues that appellant's assertion that he received ineffective assistance of trial counsel is not supportable. The state says that appellant's trial counsel ably represented appellant. The state further says that appellant's trial counsel probably concluded that a motion to suppress would be unsuccessful. The state notes that appellant's trial counsel did proffer the contract provision that could have been triggered to place appellant in a dilemma of losing employment or of making self-incriminating statements, but says appellant's trial counsel was unable to proffer any evidence to show that appellant was aware of that contract provision when appellant was being questioned by the CCNO investigator. The state opines that since no such evidence existed, appellant's trial counsel chose to "spring" the objection during trial as a motion in limine in hope that the true nature of the motion would slip by the court and the court would exclude the statements on the assumption, without any specific testimony to that effect from appellant, that appellant was placed in a dilemma when he was questioned by the CCNO investigator. The state asserts, therefore, that appellant's trial counsel's actions were reasonable trial strategy. The state also argues that the introduction of the statements did not prejudice appellant's trial. The state says that there was other sufficient evidence to support the convictions of appellant in this case for sexual battery. The state says that the jury only heard "a tiny portion" of appellant's statements to the investigator and that appellant has not shown how those portions prejudiced his case. We begin by noting that the trial court never reached the merits of the arguments relating to whether appellant's statements made during the investigation were coerced or voluntary. Instead, the trial court concluded that the motion to exclude the statements made during trial was not a motion in limine, but was instead an untimely motion to suppress. On that basis, the trial court concluded that the motion to suppress must be denied. Appellant has not directly challenged the trial court's ruling on that basis as being in error. He has not argued that his motion was not a motion to suppress, that his motion was timely, or that the trial court abused its discretion when it denied his motion as untimely, implicitly ruling that he had waived any constitutional arguments relating to whether or not his statements were voluntary or coerced. Instead, he has argued that he would have prevailed on the merits if his counsel had only filed the motion to suppress in a timely manner, so he received ineffective assistance of trial counsel. Therefore, this court finds appellant's first assignment of error, which alleges that the trial court erred and violated appellant's constitutional rights when it permitted the state to use statements at trial that appellant made during the CCNO investigation, not well-taken. We next focus our attention upon the arguments relating to whether appellant received ineffective assistance of trial counsel. The Supreme Court of Ohio has ruled: "Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.)" State v. Bradley (1989), 42 Ohio St.3d 136, 137, paragraph two of the syllabus. Because the Supreme Court of Ohio has specifically followed the ruling of the United States Supreme Court in Strickland v. Washington (1984),466 U.S. 668, we are also guided by the reasoning discussed in that case. In Strickland v. Washington the United States Supreme Court indicated that when a court reviews counsel's performance "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. In addition, due deference must be given by the reviewing court to legitimate trial strategy decisions. Id. Keeping these guidelines in mind, we have reviewed the arguments that were presented regarding whether appellant received ineffective assistance of counsel. Even if we assume arguendo that the representation appellant received from trial counsel fell below an objective standard of reasonable representation when his trial counsel waived appellant's right to argue that his statements could not be used at trial because they were coerced, appellant has still not met the test for ineffective assistance of counsel until he can show that the waiver of his right prejudiced his case. Appellant has argued that if his motion had been presented to the trial court in a timely manner, he would have prevailed on the merits. The state has responded that appellant would not have prevailed on the merits because the cases cited by appellant do not support his argument that appellant's statements were coerced. The seminal case cited by appellant in support of his proposition that his statements should have been barred from evidence as coerced isGarrity v. New Jersey (1967), 385 U.S. 493. In that case, several police officers were questioned about fixing traffic tickets as part of an investigation. The United States Supreme Court explained: "Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office." Id. at 494. (Emphasis added). The police officers answered the questions that were asked, and their answers were subsequently used against them when they were brought to trial on criminal charges. The officers objected to the introduction of their answers at trial, arguing that their statements were coerced. Id. at 495. On appeal, the United States Supreme Court agreed with the officers that their statements were coerced. The United States Supreme Court said: "The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, 384 U.S. 436, 464-465, is `likely to exert such pressure upon an individual as to disable him from making a free and rational choice.' We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions." Id. at 497-498. The United States Supreme Court announced: "We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic." Id. at 500. The two cases from the state of Ohio cited by appellant, Jones v.Franklin County Sheriff (June 20, 1990), 52 Ohio St.3d 40; and State v.Sess (1999), 136 Ohio App.3d 689, also involved public employees who were clearly told that they would lose their employment if they refused to answer questions during investigations into allegations that they engaged in misconduct. In the case decided by the Supreme Court of Ohio, a Deputy Sheriff from the Franklin County Sheriff's Department was investigated for being involved with vigilante activity while she was off-duty. Jonesv. Franklin County Sheriff, 52 Ohio St.3d at 40. The Supreme Court of Ohio specified that one of two pertinent questions before it in that case was: "[M]ust a police officer answer questions that relate specifically and narrowly to the performance of her official duties when the questions are asked in an Internal Affairs Division hearing and when the officer is guaranteed that the answers cannot be used against her in any subsequent criminal prosecution?" Id. at 42. The Supreme Court of Ohio answered its own question in the affirmative. In the text of the opinion, the court said: "The United States Supreme Court has consistently held that a public employee many not be forced to choose between making incriminating statements and facing dismissal, since such a choice would effectively negate the Fifth Amendment privilege against self-incrimination. D'Acquisto v. Washington (1986), 640 F. Supp. 594, 622, citing Lefkowitz v. Cunningham, supra; Gardner v. Broderick, supra. Yet, public employees can be required to answer potentially incriminating questions, so long as they are not asked to surrender their constitutional privilege against self-incrimination. Lefkowitz v. Cunningham, supra, at 806, citing Gardner v. Broderick, supra, at 278-279. "The privilege against self-incrimination is preserved because a statement by investigators that nothing said at the hearing can be used at a subsequent criminal proceeding effectively immunizes that testimony from later use by a prosecutor. Since use of these statements by the prosecution is barred, by definition no statement made in the hearing can be incriminatory. Thus, it has been held that the employee must answer these specific, narrowly tailored questions or face a possible dismissal for insubordination. Gardner v. Broderick, supra; Erwin v. Price (C.A.11, 1985), 778 F.2d 668, Donohoe v. Franklin Cty. Sheriff (June 7, 1988), Franklin Cty.App. No. 87AP-648, unreported; Hobbie v. Medina (1985), 29 Ohio App.3d 306, 29 OBR 405, 505 N.E.2d 276." Id. at 44. The Supreme Court of Ohio affirmed the trial court's ruling removing the deputy from office for refusing to answer the questions she was asked during the internal affairs investigation. Id. at 45. The second Ohio case cited by appellant was decided by the First Appellate District Court of Ohio in 1999. State v. Sess (1999),136 Ohio App.3d 689. In the State v. Sess case, the state appealed a ruling by the trial court suppressing the statements the police officer defendant made during an internal affairs investigation. The officer had first asserted his Miranda rights. However, he later signed a document that contained provisions explaining that he was required to answer the questions or face dismissal from his employment, but that his answers could not be used against him in any subsequent related criminal proceeding. Id. at 691. The First District Court of Appeals said: "It is well settled that coerced statements are not admissible in a criminal prosecution. As recognized by the Supreme Court of the United States in Garrity v. New Jersey, n6 if a public employee is forced to make the Hobson's choice of answering questions that may incriminate him or of forfeiting his job, statements made pursuant to such questioning are not voluntary and cannot be used in a subsequent prosecution against the public employee. The prohibition against the use of statements in such cases is properly based, therefore, not upon the doctrine of immunity, but rather upon the firmly entrenched constitutional doctrine that coerced statements cannot be used against a defendant in a criminal case." Id. at 692. The First District Court of Appeals affirmed the ruling of the trial court granting the police officer's motion to suppress his statements made during the internal affairs investigations. The transcripts of the statements made by appellant during the investigation at CCNO were not admitted into evidence and are not part of the record on appeal. However, this court is able to confirm that appellant was given his Miranda warnings when he gave the statements because the CCNO investigator testified to that at trial. Furthermore, this court is able to confirm that a provision in appellant's employment contract did address a situation where he could be compelled to answer direct questions during an investigation, because the contract provision was admitted into evidence. The contract provision reads: "Before an employee may be charged with insubordination for failure to answer questions or for failure to participate in an investigation, he shall be advised that such conduct, if continued, may be the basis for such a charge that could lead to termination. If an employee is compelled to answer questions concerning allegations of wrongdoing upon penalty of termination for failure to answer, the employee must be informed that information provided as a result of such an order will not be used in a criminal proceeding. Failure to truthfully answer questions after such a warning may result in discipline, up to and including termination." Our careful review of the record confirms the state's assertions that there is no evidence to show that appellant was ever aware of the above-quoted contract provision when he was being questioned by the investigator at CCNO or that he was ever faced with a "Hobson's choice" of losing his employment or waiving his Miranda rights. Neither appellant nor the investigator from CCNO ever testified that appellant refused to answer questions after he was given his Miranda warnings or that the investigator then advised appellant that if he refused to answer questions he could be disciplined and possibly discharged, but his statements then could not be used against him in a criminal proceeding. We agree with the state, therefore, that the cases cited by appellant are not directly on point, since the record in this case fails to show that appellant was ever placed in a position where he was forced to waive his constitutional right not to make self-incriminating statements or to face dismissal from his employment. We also agree with the state that the facts available to this court in the current record do not support a finding that appellant's statements were coerced, since there is no evidence to show that he was ever told that if he refused to answer questions he would be subject to discipline and possible discharge. SeeMartin v. Maryland (1996), 113 Md. App. 190, 686 A.2d 1130; and Maine v.Graves (1994), 638 A.2d 734. Accordingly, based upon the record available to us, we cannot find that appellant was prejudiced by his trial counsel's failure to file a timely motion to suppress, and appellant's second assignment of error is not well-taken and is denied. In support of his third assignment of error, appellant alleges that his case was prejudiced when the prosecutor referred, in his opening statement, to a count for attempted sexual abuse which the state never offered any evidence to prove. Specifically, appellant says he was prejudiced by the prosecutor's reference to the count based upon the allegations of Alicia Kern. He says that the jury could have used the reference to the unproved count to support a theory that "where there's smoke there's fire" and could have decided that the testimony they heard from the other alleged victims must be true, since another victim also existed who made similar allegations. He says that as a result of the prosecutor's remarks, he was denied a fair trial. The state responds that the remarks made during the prosecutor's opening statement did not deprive appellant of a fair trial. The state points out that the jury was instructed more than once by the trial court that statements made during opening were not evidence. Furthermore, the state argues that this issue was waived for appeal because appellant did not object when the statements were made at trial. Finally, the state says that the jury verdicts show that the jury followed its instructions carefully, and were not swayed improperly by non-evidence presented through opening statements, since the jury found appellant not guilty of a count of sexual battery even though the prosecutor outlined the allegations supporting that count in great detail during opening, and the alleged victim took the stand and testified at trial. Appellant's failure to object to the prosecutor's opening statements at trial waived all but plain error under Crim.R. 52(B) for purposes of appeal. See State v. Houseman (June 29, 2000), Belmont App. No. 98 BA 4, unreported. A plain error is an: "Obvious error prejudicial to a defendant, neither objected to nor affirmatively waived by him, which involves a matter of great public interest having substantial adverse impact on the integrity of and the public's confidence in judicial proceedings. The error must be obvious on the records, palpable, and fundamental, and in addition it must occur in exceptional circumstances where the appellate court acts in the public interest because the error affects `the fairness, integrity or public reputation of judicial proceedings.'" State v. Craft (1977), 52 Ohio App.2d 1, 7, 367 N.E.2d 1221 (quoting United States v. Atkinson (1936), 297 U.S. 157, 160, 80 L.Ed. 555, 56 S.Ct. 391. We find that the circumstances in this case do not rise to the level of plain error, since we agree with the state that there is nothing in the record to indicate that the jury failed to follow its instructions to consider only evidence presented at trial, and not to consider the opening statements of counsel as evidence. See State v. Houseman (June 29, 2000), Belmont App. No. 98 BA 4, unreported. Appellant's third assignment of error is not well-taken and is denied. After reviewing the record and the arguments presented on appeal, we conclude that appellant was not denied a fair trial. The judgment of the Williams County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. ________________________ Peter M. Handwork, JUDGE James R. Sherck, J. and Richard W. Knepper, J. CONCUR.