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2016-07-06 06:36:39.657624+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an accelerated appeal from a judgment of the Williams County Court of Common Pleas which granted a default judgment to appellee, Potomac Insurance Company of Illinois and General Accident Insurance Company of America ("Potomac"). Because we find that the trial court erred in granting a default judgment to Potomac, we reverse. {¶ 2} The facts giving rise to this appeal are as follows. On April 29, 2002, Potomac filed a complaint for declaratory judgment naming appellant, Bernice Zehr, administrator of the estate of Daniel Whitely, as defendant. On June 3, 2002, appellant filed a "motion to change venue, stay the proceedings or, in the alternative, dismiss plaintiffs' complaint." Potomac filed a brief in opposition. On September 3, 2002, the court denied appellant's "motion to change venue, stay the proceedings or, in the alternative, dismiss plaintiffs' complaint." On November 22, 2002, Potomac filed a motion for default judgment. The trial court granted a default judgment to Potomac three days later on November 25, 2002. Appellant now appeals setting forth the following assignments of error: {¶ 3} "I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE'S MOTION FOR DEFAULT JUDGMENT WITHOUT FIRST PROVIDING NOTICE OF HEARING TO DEFENDANT-APPELLANT AS REQUIRED BY CIVIL RULE 55(A). {¶ 4} "II. THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO VACATE DEFAULT JUDGMENT." {¶ 5} Generally, the law disfavors default judgments. Suki v.Blume (1983), 9 Ohio App.3d 289. "Fairness and justice are best served when a court disposes of cases on the merits." DeHart v. Aetna Life Ins.Co. (1982), 69 Ohio St.2d 189. Pursuant to Civ.R. 55(A), "[i]f the party against whom judgment by default is sought has appeared in the action, he * * * shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application." Without the requisite notice and hearing under Civ.R. 55(A), a default judgment is void and shall be vacated upon appeal. AMCA Intern. Corp. v. Carlton (1984), 10 Ohio St.3d 88. {¶ 6} Ohio courts, in construing the notice provisions of Civ.R. 55(A), have liberally interpreted the term "appeared." See, e.g., Bainesv. Harwood (1993), 87 Ohio App.3d 345, (a telephone call is sufficient to satisfy the appearance requirement of Civ.R. 55); Hardware SupplyCo. v. Edward Davidson, M.D., Inc. (1985), 23 Ohio App.3d 145, (filing of motion to file answer instanter or motion for extension to plead constitutes appearance); AMCA Internatl. Corp. v. Carlton, supra, (filing notice of appeal with the common pleas court pursuant to R.C. 4123.519 constitutes appearance); Suki v. Blume, supra, (filing untimely answer without leave of court constitutes an appearance). {¶ 7} The Tenth District Court of Appeals has held that: "[T]he filing of a motion for a change of venue constitutes an `appear[ance]' for purposes of Civ.R. 55(A)." BancOhio Natl. Bank v. Mager (1988),47 Ohio App.3d 97. In the interest of deciding cases upon the merits, we agree with the reasoning of the Tenth District and conclude that appellant's filing of a motion to change venue constituted an "appearance" for purposes of Civ.R. 55. Therefore, appellant was entitled to the notice and hearing required under Civ.R. 55(A). It follows that the default judgment rendered in this case is void. Appellant's first assignment of error is found well-taken. Appellant's second assignment of error is moot. {¶ 8} On consideration whereof, the court finds that substantial justice has not been done the party complaining, and the judgment of the Williams County Common Pleas Court is reversed and remanded for proceedings not inconsistent with this decision. Costs assessed to appellee. JUDGMENT REVERSED. Mark L. Pietrykowski, J., Judith Ann Lanzinger, J., and Arlene Singer,J., concur.

2018-06-26 20:03:04.125023+00

http://www.pacourts.us/assets/opinions/Superior/out/Memorandum Affirmed 10359811539783904.pdf

J-S33026-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NYIVA K. MUINDE : : Appellant : No. 1626 EDA 2017 Appeal from the Judgment of Sentence Entered April 13, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007454-2015 BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E. MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 26, 2018 Nyiva Muinde appeals from the judgment of sentence entered on April 13, 2017, after the trial court found her guilty of driving under the influence of alcohol or controlled substance (“DUI”).1 Muinde contends that there was insufficient evidence to support the trial court’s guilty verdict. We affirm. The following evidence was presented at trial. On October 11, 2015, Officer Michael Golden was working for the Eddystone Borough Police Department. N.T., Trial, 4/13/17, at 7-8. By 2015, Officer Golden had eight years of experience as a police officer, ten years of experience as a part-time Emergency Medical Technician (“EMT”), and five years of experience as a Red Cross instructor in emergency medical services. Id. While on patrol on October ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 75 Pa.C.S.A. § 3802(a)(1). J-S33026-18 11, 2015, at around 11:20 p.m., he noticed a gray Honda sedan in a McDonald’s parking lot. Id. at 8-9. Traffic passes through the lot in one direction only. Id. at 9. The vehicle was parked across two parking spaces and was facing against the flow of traffic. Id. The operator of the vehicle, Muinde, was slumped over the steering wheel, with her head almost touching the steering wheel. Id. at 9. It looked to Officer Golden as though she was sleeping. Id. The vehicle was running with the transmission in “drive,” the headlights on, and the radio playing very loudly. Id. at 18. Officer Golden approached the vehicle and tried to wake Muinde up by first announcing himself and then reaching through the partially opened window to shake her. Id. at 9. Muinde abruptly awakened and told Officer Golden that she was going home. Id. Officer Golden asked Muinde to place the vehicle in “park.” Id. Muinde complied, and Officer Golden asked her multiple times to turn the radio down. Id. at 10. Muinde in response “would lean up almost like she was going to turn the radio down but then she would put her hand back down.” Id. She tried again but still did not turn the radio down. Id. Officer Golden asked Muinde for her identification and proof of insurance, which she fumbled to find for several minutes. Id. Officer Golden also detected an odor of alcohol coming from the vehicle. Id. Based on his observations of Muinde, Officer Golden asked Muinde to get out of her vehicle, on suspicion of driving under the influence. Id. -2- J-S33026-18 Lieutenant Pretti2 arrived on scene to conduct two field sobriety tests. Id. at 11. Muinde was asked to perform only two sobriety tests because she had a cast on her foot. Id. at 13. She failed both tests. Id. at 14-16. Lieutenant Pretti asked Muinde to perform the ABC’s test and instructed her to say the alphabet starting with the letter G. Id. at 22. Muinde was “unable to state from letter G to H and then J.” Id. at 15. Additionally, she continually asked Officer Golden, “What letter again?” Id. Next, Lieutenant Pretti asked Muinde to perform the fingertip test, in which she was to put her hand out and count from one to five while touching her fingertips with her thumb. Id. at 15-16. During this test, Muinde “kept asking [Officer Golden] to repeat the test and would not touch her fingers in the order that was told.” Id. at 16. Officer Golden also attempted to administer a portable breath test. Id. However, Muinde was not able to perform this test either. Officer Golden explained how a portable breath test works and why Muinde was unable to perform the test: Q: . . . What do you have to do to pass that test or to administer that test? A: You have to breathe into the tube for it to register. [Muinde] was instructed [to] breathe in the machine like you’re blowing up a balloon and she refused to do so and she kept asking how do you blow up a balloon. Q: And is that --- A: She would bite down --- I’m sorry. ____________________________________________ 2 Lieutenant Pretti’s first name does not appear in the record. -3- J-S33026-18 Q: I’m sorry. Go ahead. A: She would bite down on the straw. She would suck in when she was told to breathe out. Id. at 16-17. Muinde admitted to Officer Golden that she had drunk one beer and he found one unopened bottle of beer in her purse. Id. at 13-14. Overall, Officer Golden observed that Muinde had a strong odor of alcohol on her breath, her eyes were bloodshot and glassy, her speech was slurred, her pupils were constricted, and she was uncooperative. Id. Based on his observations, Officer Golden concluded that Muinde was not capable of operating the vehicle. Id. at 19. Muinde testified that she was a Type 1 diabetic and when her sugar level gets too high it causes her to go into a comatose-like state. Id. at 28, 30. She testified that she was parked in the McDonald’s parking lot because she could feel herself having symptoms of high-sugar level. Id. at 30-31. She did not recall when Officer Golden approached her vehicle but testified that she was having a diabetic attack when she was speaking with Officer Golden. Id. at 31. She also testified that she performed the field sobriety tests satisfactorily. Id. at 33. Officer Golden testified that he did not attribute any of his observations of Muinde to her diabetes based on his experience as an EMT and working for Red Cross. Id. at 23. The trial court found Muinde guilty of the above charge and sentenced her to five days to six months’ incarceration. She was ordered to pay a $300 fine and $100 in court costs, to complete a safe driving class program, and to -4- J-S33026-18 undergo a prescreening evaluation for DUI offenders, as well as drug and alcohol evaluations. This timely appeal followed. Muinde presents one issue for our review: I. Whether the evidence was insufficient to support the learned trial court’s verdict of guilty of the charge of driving under the influence of alcohol because the Commonwealth did not prove beyond a reasonable doubt that [Muinde] did drive, operate[,] or [was] in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that [Muinde] was rendered incapable of safely driving, operating[,] or being in actual physical control of the movement of [Muinde’s] vehicle? Muinde’s Br. at 6 (suggested answer omitted). Because Muinde raises a challenge to the sufficiency of the evidence, our standard of review “requires that we evaluate the record ‘in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.’” Commonwealth v. Rahman, 75 A.3d 497 , 500 (Pa.Super. 2013) (quoting Commonwealth v. Widmer, 744 A.2d 745 , 751 (Pa. 2000)). “Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d 1029 , 1032 (Pa.Super. 2005)). To support a conviction under Section 3802(a)(1), the Commonwealth must prove “the accused was driving, operating, or in actual physical control of the movement of a vehicle during the time when he or she was rendered -5- J-S33026-18 incapable of safely doing so due to the consumption of alcohol.” Commonwealth v. Teems, 74 A.3d 142 , 145 (Pa.Super. 2013) (quoting Commonwealth v. Segida, 985 A.2d 871 , 879 (Pa. 2009)). The type of evidence that may satisfy this burden includes but is not limited to: “the offender’s actions and behavior, including manner of driving and ability to pass field sobriety tests; demeanor, including toward the investigating officer; physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol, and slurred speech.” Segida, 985 A.2d at 879. Muinde contends that the Commonwealth’s evidence regarding her actual physical control of the vehicle was limited to “a sleeping driver with her car in park.” Muinde’s Br. at 12. Muinde claims “the record does not represent that [Muinde’s] vehicle was running” or contain “evidence of any lights on the car that were illuminated.” Id. This is a misrepresentation of the facts of this case.3 Contrary to Muinde’s assertions, Officer Golden’s trial testimony clearly reflects that Muinde’s vehicle was in “drive,” not “park” and that the officer asked her to place it in “park.” N.T., Trial, 4/13/17, at 18. Additionally, there was evidence that Muinde’s vehicle was running and that the headlights were on. Id. Thus, the record supports the trial court’s conclusion that “the Commonwealth proved the first element by eliciting uncontroverted testimony from Officer ____________________________________________ 3 Muinde also cites old case law, Commonwealth v. Byers, 650 A.2d 468 (Pa.Super. 1994), contending that it controls in this case. See Muinde’s Br. at 14. Our Supreme Court abrogated Byers in Commonwealth v. Wolen, 685 A.2d 1384 , 1386 n.4 (Pa. 1996). -6- J-S33026-18 Golden that he encountered [Muinde] seated in the driver’s seat of her vehicle with the engine running and in gear.” Trial Court Opinion, filed 1/24/18, at 2; see Commonwealth v. Williams, 871 A.2d 254 , 261 (Pa.Super. 2005) (holding that evidence was sufficient to prove actual physical control of vehicle where defendant was found in his car at 4 a.m., with his head on steering wheel, headlights on, radio on, engine running, and vehicle parked diagonally across two parking spots). Next, Muinde contends that the “impairment evidence offered by the Commonwealth [was] weak and boilerplate.” Muinde’s Br. at 15. Muinde claims that Officer Golden’s use of “magic words” such as glassy eyes and slurred speech, and her failure of two field sobriety tests was insufficient to support Muinde’s conviction, where Muinde “had been sleeping for an unknown period of time and her testimony about the onset of diabetic symptoms went unchallenged.” Id. This argument might be correct if we were to look at only a portion of the trial record. However, we must look at the record as a whole and consider the evidence that the trial court actually received. See Commonwealth v. Rodriguez, 673 A.2d 962 , 965 (Pa.Super. 1996) (concluding that when appellate court is presented with challenge to sufficiency of evidence, it must evaluate entire trial record and consider all evidence actually received). When we look at the whole record, the evidence was plainly sufficient. While there was no testimony presented to rebut Muinde’s testimony that she had diabetes, the trial court found Muinde’s testimony that she was having a -7- J-S33026-18 diabetic attack not credible. Trial Court Opinion, filed 1/24/18, at 3. Instead, the trial court found that the Commonwealth “presented overwhelming evidence that [Muinde’s] intoxicated state was created by her consumption of alcohol, and that, as a result, she was incapable of safely operating the vehicle which she controlled.” Id. The trial court found that Muinde’s impairment was evidenced by Officer Golden’s observations of Muinde’s glassy, bloodshot eyes; her slurred speech; the strong odor of alcohol on her breath; her vehicle being parked the wrong way; her uncooperative demeanor; and her failing both field sobriety tests. Id. Therefore, on this record, we cannot say that there was insufficient evidence to support the trial court’s guilty verdict. See Commonwealth v. Palmer, 751 A.2d 223 , 228 (Pa.Super. 2000) (concluding that evidence of defendant’s glassy, bloodshot eyes, odor of alcohol, difficulty walking, and failed field sobriety tests was sufficient to sustain conviction for DUI). Judgment of Sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/26/18 -8-

2016-07-06 06:36:39.037736+00

OPINION Defendant-appellant Chad Crum appeals his sentence entered by the Delaware County Court of Common Pleas on one count of aggravated robbery, in violation of R.C. 2911.01(A)(1) with a firearm specification pursuant to R.C. 2941.145, following appellant's entering a plea of guilty. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE CASE On October 10, 1997, the Delaware County Grand Jury indicted appellant on one count of aggravated robbery and four counts of theft. Each count was enhanced with a firearm specification. Two other individuals, Charles Hampton and Mike Bolin, were similarly indicted based upon the same conduct giving rise to appellant's charges. At his arraignment on October 14, 1997, appellant entered a plea of not guilty to all charges. Appellant ultimately entered into a plea agreement with the State. On December 22, 1997, the parties appeared before the trial court. At that time, the State advised the trial court on the record in open court of the agreement. After inquiring of appellant, the trial court permitted appellant to withdraw his plea of not guilty to aggravated robbery as set forth in Count One of the Indictment and enter a plea of guilty to the charge as well as the firearm specification. In exchange, the State agreed to dismiss the remaining counts of the Indictment. The trial court sentenced appellant to a term of imprisonment of three years for aggravated robbery and a mandatory term of three years on the firearm specification. The trial court ordered the mandatory term on the firearm specification be served consecutive and prior to the period of incarceration for the aggravated robbery count. Subsequently, in mid-1998, Charles Hampton, appellant's co-defendant, entered into a similar plea negotiation with the State. However, on July 7, 1998, Hampton filed a Petition to Vacate Judgment and Sentence, maintaining he was not guilty of aggravated robbery or the firearm specification because he had carried a toy gun during the robbery; therefore, he never admitted he brandished or possessed a firearm or used a firearm to facilitate the offense. The trial court conducted a hearing on October 1, 1998, and granted Hampton's petition. Hampton again entered into a plea negotiation with the State in which he agreed to enter a guilty plea to one count of robbery with a one year firearm specification, and the State agreed to dismiss the remaining counts of the indictment. The trial court accepted the plea and sentenced Hampton to a period of incarceration of two years for robbery and an additional one year mandatory term on the firearm specification. In light of what he believes to be a disparity between his sentence and Hampton's sentence, appellant sought leave to file a delayed appeal, which this Court granted on January 7, 2000. Appellant raises the following as his sole assignment of error: THE TRIAL COURT ERRED IN IMPOSING A THREE YEAR MANDATORY SENTENCE ON THE DEFENDANT UNDER THE SPECIFICATIONS OF R.C. 2941.145 WHEN R.C. 2941.141 WAS THE APPROPRIATE SECTION. I Herein, appellant maintains the trial court erred in its imposition of a three year mandatory sentence on the firearm specification. Appellant explains R.C. 2941.141 is the applicable section. Appellant submits his being sentenced to a three year mandatory term of imprisonment on the firearm specification constitutes a manifest injustice because the information disclosed during Hampton's plea hearing revealed the "gun" brandished by Hampton during the robbery and which was used to support the firearm specification in appellant's case was, in reality, a toy gun. In support of his position, appellant attaches the judgment entry granting Hampton's motion to withdraw plea; the written text of the Rule 11(F) negotiations between the State and Hampton; the judgment entry of Hampton's sentence; and an excerpt from the transcript of Hampton's plea hearing. On appeal, this Court's review is limited to those materials in the record which were before the trial court. State v. Ishmail (1978), 54 Ohio St. 2d 402. Because the aforementioned material was not part of the record in this matter when the trial court imposed appellant's sentence on December 22, 1997, this Court cannot consider such on direct appeal therefrom. Upon our review of the record as it existed before the trial court, we cannot find the trial court abused its discretion in imposing a three year mandatory sentence on the firearm specification. Appellant's sole assignment of error is overruled. The sentence of the Delaware County Court of Common Pleas is affirmed. ___________________ Hoffman, J. By: Gwin, P.J. and Reader, V.J. concur

2016-07-06 06:36:39.31328+00

DECISION AND JUDGMENT ENTRY {¶ 1} Gordon Proctor, Director of the Ohio Department of Transportation (ODOT), appeals a jury verdict awarding appellees $121,400 as compensation and damages in a land appropriation action. ODOT contends the trial court erred in allowing the jury to determine if a taking of Huck Thieken's access occurred as a result of a reduction in access arising from the installation of curbs and gutters in a preexisting right of way. Specifically, ODOT argues that the trial court lacked subject matter jurisdiction to determine if a taking of access occurred. We agree. In the present case, the trial court's jurisdiction was limited to determining the amount of compensation and damages for the "take" specified in the complaint for appropriation. Because the damages Thieken complains about relate solely to a taking that is not included in the complaint, the court lacked jurisdiction over this issue. {¶ 2} State Route 7 is the main east-west highway in Proctorville, Ohio. Huck Thieken is the owner of property located at the northwest corner of State Route 7 and State Route 775. The southern boundary of Thieken's property abuts Route 7 for a distance of about 135 feet. A concrete planter is located midway along the boundary, leaving 116 feet of usable access. The eastern boundary of Thieken's property abuts Route 775 for a distance of about 130 feet. Access along this boundary is unimpeded. {¶ 3} Thieken leases his property to the John W. Clark Oil Company, which operates a gas station and convenience store on the land. Clark Oil's convenience store faces Route 7 and has three fuel islands aligned parallel to Route 7. {¶ 4} As part of a highway improvement project, ODOT is installing curbs and gutters along Route 7 in Proctorville. ODOT plans to "round off" the corner between Route 7 and Route 775. In addition, ODOT plans to construct six-inch concrete curbs in the right of way along Route 7. While the curbs will not be located on Thieken's property, they will affect access to his property. The concrete curbs will limit access from Route 7 to a thirty-foot drive, as opposed to the current 116 feet of unimpeded access. {¶ 5} In May 2002, ODOT filed a complaint to appropriate .002 acres at the southeast corner of Thieken's property and a .023-acre temporary easement in Thieken's property along Route 7.1 Thieken responded by filing an answer and counterclaim. In July 2002, ODOT filed a motion to dismiss Thieken's counterclaim, arguing that R.C. Chapter 163 does not provide for the filing of counterclaims. Thieken voluntarily dismissed his counterclaim six months later. {¶ 6} Subsequently, Thieken filed a motion for partial summary judgment. In his motion, Thieken argued that the curbing along Route 7 substantially and unreasonably interferes with his right of access. He asked the court to rule that ODOT's limitation of his access is a compensable taking. In response, ODOT argued that the court lacked subject matter jurisdiction to determine if there has been an additional taking beyond that described in the complaint. Thieken subsequently filed a memorandum in reply. In the memorandum, Thieken argued that his motion merely sought a ruling that the limitation of access was a factor the jury could consider when determining damage to the residue. {¶ 7} The trial court ultimately ruled that the denial of access was an issue the jury could consider when assessing the compensation due Thieken. When the case proceeded to trial, the testimony focused, for the most part, on "the damage to the residue" caused by the reduction of access along State Route 7. The parties' experts both agreed that the highest and best use of the property before the curbing project was as a gas station and convenience store. The experts disagreed, however, on the highest and best use of the property after the project. ODOT's expert testified that the property could function as a gas station even after the curbing project. He testified that there was no damage to the residue of the property. Thieken's expert, on the other hand, testified that the property would not be able to function as a gas station and convenience store after the project. He testified that the curbing would damage the value of the residue. Thieken's expert valued the damage to the residue at $178,390. {¶ 8} At the close of the evidence, the trial court granted a directed verdict to ODOT concerning the compensation for the .002 acres ($1,307) and the .023-acre temporary easement ($3,093). Therefore, the only matter submitted to the jury for determination was the issue of damages to the residue of the property. Before sending the jury back to deliberate, the court instructed the jury on the law it was to apply. The court included the following instruction: "Damages are the loss in value to the residue of the property because of its severance from the property. In this particular case, Mr. Thieken and [Clark Oil] contend that construction of the concrete curbing around the residue substantially and unreasonably interferes with their right of access to the public streets and highways on which the land abuts. [ODOT] denies that the concrete curbing is a substantial and unreasonable interference with their right of access. I instruct you that an owner of a parcel of real property has a right to access public streets or highways on which the land abuts. Therefore, any governmental action that substantially or unreasonably interferes with this right constitutes a taking of private property within the meaning of Section 19, Article I of the Ohio Constitution and the Fifth Amendment to the United States Constitution. If you determine that the concrete curbing is a substantial or unreasonable interference with the right of access of Mr. Thieken and [Clark Oil], you will determine what the damages to the residue are. In order to establish a taking, an owner or tenant must demonstrate a substantial or unreasonable interference with a right of access. If you conclude that, after construction, the owner or tenant will have reasonable and substantial access to State Route 7, you will not compensate the owner or tenant for the damages to the residue." After the jury returned a verdict awarding $117,000 for damages to the residue of the property, ODOT appealed. On appeal, ODOT raises the following assignment of error: "The trial court erred to the prejudice of the Plaintiff-Appellant when it permitted expert testimony to the jury that there was a compensable taking of Defendant-Appellee Thieken's access to abutting State Route 7 without a determination that such access reduction was substantial or unreasonable." {¶ 9} In its sole assignment of error, ODOT argues that the trial court erred in allowing the jury to determine if a taking of Thieken's access occurred. ODOT argues that the question of whether a taking of access occurred is a legal question to be determined by the court. Before we can consider the merits of ODOT's argument, we must address a more fundamental question, namely, whether the trial court had jurisdiction to determine if a taking of access occurred. An owner of real property has a right to access public streets or highways upon which the land abuts. State ex rel. OTR v. Columbus, 76 Ohio St. 3d 203,1996-Ohio-411, 667 N.E.2d 8, syllabus. Any governmental action that substantially or unreasonably interferes with this right of access is a taking of private property. Id. {¶ 10} Although ODOT challenged the trial court's subject matter jurisdiction in the trial court, it did not pursue the argument on appeal. Nevertheless, subject matter jurisdiction cannot be waived and may be raised by this court sua sponte. SeeState ex rel. White v. Cuyahoga Metro. Hous. Auth.,79 Ohio St. 3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72; State ex rel. Bondv. Velotta Co., 91 Ohio St. 3d 418, 419, 2001-Ohio-91,746 N.E.2d 1071. During our preliminary review of this case, we became concerned about the trial court's jurisdiction to determine if there had been an additional taking beyond that described in the complaint for appropriation. Therefore, we asked the parties to address the issue at oral argument. Subsequently, we permitted the parties to submit supplemental briefs addressing the issue. With those briefs now before us, we proceed to consider the issue of the trial court's subject matter jurisdiction. {¶ 11} In its supplemental brief, ODOT argues that the trial court lacked subject matter jurisdiction to determine if the curbing along State Route 7 constituted a taking of Thieken's access. Specifically, ODOT argues that the trial court's jurisdiction in an appropriation action is limited to the "take" specified in the complaint for appropriation. Correspondingly, ODOT argues that the jury's assessment in an appropriation action is limited to compensation and damages for the "take" described in the complaint. Thieken, on the other hand, argues that he has a right to be compensated for the damage to the residue if ODOT's appropriation of his property hinders his access to the residue. He asserts that the real issue at trial and on appeal is "whether the denial of access was `substantial and material'." {¶ 12} Section 19, Article I of the Ohio Constitution provides: "Private property shall ever be held inviolate, but subservient to the public welfare. When taken * * * for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money * * *." Similarly, the Fifth Amendment to the United States Constitution provides that private property shall not "be taken for public use, without just compensation." See, also, Agins v. Tiburon (1980), 447 U.S. 255, 260,100 S. Ct. 2138, 65 L. Ed. 2d 106; Hawaii Hous. Auth. v. Midkiff (1984),467 U.S. 229, 231, 104 S. Ct. 2321, 81 L. Ed. 2d 186. {¶ 13} R.C. 163.01 to 163.22 govern the procedure by which ODOT may appropriate private property. See R.C. 5519.01. ODOT may commence appropriation proceedings only if it is unable to agree with the owner to a purchase of the property. See R.C. 163.04. See, also, Highland Cty. Bd. of Commrs. v. Fasbender (July 28, 1999), Highland App. No. 98CA24. {¶ 14} ODOT commences appropriation proceedings by filing a complaint for appropriation.2 R.C. 163.05. The complaint must contain seven essential allegations, including "[a] description of each parcel of land or interest or right therein sought to be appropriated * * *." R.C. 163.05. Upon service of the complaint, any owner may file an answer. R.C. 163.08. If an owner files an answer, the court must then fix a time for the assessment of compensation by a jury. R.C. 163.09(C). It is the jury's duty to assess the amount of compensation for the property appropriated and damages, if any, to the residue. See R.C.163.14. See, also, Section 19, Article I, Ohio Constitution (Stating that the compensation "shall be assessed by a jury * * *.") {¶ 15} In Thormyer v. Irvin (1960), 170 Ohio St. 276,164 N.E.2d 420, the Supreme Court of Ohio addressed the trial court's jurisdiction in an appropriation action brought by the Director of Highways. Specifically, the Court considered whether the necessity and extent of the taking could be determined in an appropriation action brought by the Director of Highways. SeeId. at 288. Concluding that those issues could not be determined in such an action, the Supreme Court of Ohio held: "In an appropriation proceeding by the Director of Highways of the state of Ohio for the purpose of taking property for highway purposes * * * the jurisdiction of the Court of Common Pleas islimited to a determination of the amount of compensation anddamages to which the landowner is entitled." Thormyer,170 Ohio St. 276, paragraph one of the syllabus. (Emphasis added.) {¶ 16} Three years later, the Supreme Court of Ohio decided the case of Preston v. Weiler (1963), 175 Ohio St. 107,191 N.E.2d 832. In Preston, the Court reaffirmed its holding inThormyer. See Preston, 175 Ohio St. 107, paragraph one of the syllabus. Additionally, the Court set forth the procedural devices available to property owners seeking to challenge anything other than compensation and damages: "The court has determined that, in instances where a property owner is of the opinion that there is no necessity for an appropriation, injunction is the proper remedy; that, in instances where theproperty owner is of the opinion that there is a `taking' of hisproperty and the proper authority has refused payment of justcompensation and has refused to institute appropriationproceedings, mandamus is a proper remedy; and that, where the Director of Transportation has, by resolution, designated a `taking' and brought an action for appropriation in the Common Pleas Court and made a deposit, the jurisdiction of the Common Pleas Court is limited to a determination of the amount of compensation and damages to which the landowner is entitled."Id. at 111-12 (Emphasis added.) {¶ 17} Although the Supreme Court of Ohio decided Thormyer and Preston before the enactment of R.C. Chapter 163,3 the General Assembly incorporated the Thormyer holding into R.C. 163.08. Thus, R.C. 163.08 provides: "Any owner may file an answer to such petition. Such answer shall be verified as in a civil action and shall contain a general denial or specific denial of each material allegation not admitted. The agency's right to make the appropriation, the inability of the parties to agree, and the necessity for the appropriation shall be resolved by the court in favor of the agency unless such matters are specifically denied in the answer and the facts relied upon in support of such denial are set forth therein, provided, whentaken * * * for the purpose of making or repairing roads, whichshall be open to the public, without charge, an answer may notdeny the right to make the appropriation, the inability of theparties to agree, or the necessity for the appropriation. * * *" (Emphasis added.) Moreover, Ohio courts continue to hold that mandamus is the appropriate action to compel public authorities to institute appropriation proceedings where the owner contends that an involuntary taking of private property is involved. SeeState ex rel. Preschool Dev., Ltd. v. Springboro,99 Ohio St. 3d 347, 349, 2003-Ohio-3999, 792 N.E.2d 721; State ex rel. Elsassv. Shelby Cty. Bd. of Commrs., 92 Ohio St. 3d 529, 533,2001-Ohio-1276, 751 N.E.2d 1032; State ex rel. BSW Dev. Group v.Dayton, 83 Ohio St. 3d 338, 341, 1998-Ohio-287, 699 N.E.2d 1271;State ex rel. Levin v. Sheffield Lake (1994),70 Ohio St. 3d 104, 108, 637 N.E.2d 319. See, also, Cincinnati EntertainmentAssn., Ltd. v. Hamilton Cty. Bd. of Commrs. (2001), 141 Ohio Ap.3d 803, 810, 753 N.E.2d 884; Hatfield v. Wray (2000),140 Ohio App. 3d 623, 627, 748 N.E.2d 612; Weir v. Kebe (1985),29 Ohio App. 3d 53, 57, 503 N.E.2d 177. {¶ 18} In Wray v. Goeglein (Dec. 2, 1998), Meigs App. No. 97CA9, we addressed an issue similar to the one presented here. In Goeglein, ODOT filed a complaint to appropriate property owned by the Pickens and the Goegleins. ODOT's complaint described the property being appropriated as "all right, title and interest in fee simple, including limitation of access, in the * * * property, excepting and reserving coal, minerals, and mining rights." Id. The property owners responded with an answer and counterclaim. The Pickens' counterclaim alleged that ODOT's appropriation of their surface estate amounted to a taking of their sub-surface estate since it would prevent mining of the coal. They sought judgment against ODOT for "the loss of the value of the surface of the real estate as well as the coal rights underlying the real estate * * *." Id. The Goegleins' counterclaim alleged that ODOT's appropriation would substantially interfere with "other ownership rights". Id. They sought compensation for the damage to those ownership rights. ODOT subsequently filed a motion to dismiss the counterclaims on the basis that the court lacked subject matter jurisdiction over them. The property owners opposed the motion, arguing that, at the least, their counterclaims should be construed as seeking damages for the residue of their surface estates. After a hearing on the motion, the trial court granted ODOT's motion to dismiss the counterclaims. The court concluded that it lacked jurisdiction to hear any compensation or damage issues relating to the property owners' sub-surface estates. Id. The property owners challenged this ruling on appeal. {¶ 19} In Goeglein, we concluded that the trial court acted properly when it dismissed the counterclaims for lack of subject matter jurisdiction. We began our analysis by reviewing the law of eminent domain. In doing so, we specifically noted the Supreme Court of Ohio's holdings in Thormyer and Preston. We then proceeded to consider the issue of compensation and damages. We noted that "[w]hen the director of transportation appropriates private property, the property owner is entitled to `just compensation'; that is, `compensation for the property actually taken and damages for injury to the property which remains after the taking.'" Goeglein, quoting Hurst v. Starr (1992),79 Ohio App. 3d 757, 762-63, 607 N.E.2d 1155. Finally, we reviewed the law relating to the appropriation of surface estates. In the end, we affirmed the trial court's judgment, stating: "In light of the foregoing principles, we conclude that the trial court did not err by dismissing appellants' counterclaims. Appellants' counterclaims asserted that they were entitled to be compensated for their mineral estates. It is clear, however, that ODOT effected a severance of the surface estate and the mineral estate. * * * Because ODOT did not `take' appellants' mineral estate, appellants are not, in this proceeding, entitled to `compensation' for the mineral estate. Nor are appellants entitled to `damages' to the mineral estates. `Damages' are awarded to compensate the landowner for injury to the portion of the estate not taken, i.e., the residue. In the case at bar, the residue consists of the portion of the surface estate that ODOT did not take. * * * As appellants' counterclaims did not address the issue of compensation for the estate taken or damages to the residual estates, the trial court properly dismissed the counterclaims. We hasten to add, however, that appellants are not left without a remedy to obtain compensation for their affected mineral estates. Appellants may seek compensation for their estates in a separate proceeding. We agree with the trial court and ODOT that if appellants believe that the taking of their surface estates will prevent them from enjoying their mineral estates, appellants should seek a writ of mandamus in a court of competent jurisdiction compelling ODOT to appropriate their mineral estates. * * *." Goeglein (Footnote and Citations omitted.) {¶ 20} Although the facts in Goeglein and the present case are quite different, the underlying issue is the same. In bothGoeglein and the present case, the property owners sought compensation and damages for an alleged taking beyond that described in the complaint for appropriation. In Goeglein, the property owners sought compensation and damages for an alleged taking of their mineral estates. In the present case, Thieken sought compensation and damages for an alleged taking of his easement of access. However, as our decision in Goeglein indicates, an appropriation action is not the proper forum in which to raise claims of additional takings. Rather, a property owner who believes there has been a taking of property beyond that described in the complaint must seek a writ of mandamus compelling ODOT to institute appropriation proceedings. SeeGoeglein. {¶ 21} ODOT's complaint only sought to appropriate .002 acres at the southeast corner of Thieken's property and a.023-acre temporary easement in the property along State Route 7. It did not seek to appropriate Thieken's easement of access. Moreover, the two specified appropriations do not have a direct impact on Thieken's access. Any adverse impact on Thieken's access resulted from work ODOT performed in its preexisting right of way, i.e., placing curbs in the right of way ODOT already owned. The trial court, however, permitted the jury to determine if there had been a taking of Thieken's access. A review of the jury instruction set forth above indicates that the court essentially instructed the jury to determine if the curbing along State Route 7 resulted in a taking of Thieken's access and to compensate Thieken accordingly. {¶ 22} We conclude the trial court acted outside its jurisdiction when it permitted the jury to determine if a taking of Thieken's access occurred. The court did not have jurisdiction to determine if there had been a taking beyond that described in the complaint for appropriation. See Goeglein. Rather, the trial court's jurisdiction in the present case was limited to a determination of the compensation and damages for the appropriation described in the complaint. See Thormyer,170 Ohio St. 276, paragraph one of the syllabus; Preston,175 Ohio St. 107, paragraph one of the syllabus. {¶ 23} Thieken, however, argues that the limitation of his access was a factor to be considered when determining the damage to the residue of his property. He states: "[I]f ODOT appropriates a portion of Appellee's real property and (substantially and materially) hinders his access to the residue, Appellee has a right to be compensated for such damage without the necessity of additional litigation." {¶ 24} In a partial takings case, the owner is entitled to receive compensation not only for the property taken but also for any damage to the residue as a result of the take. See Norwoodv. Forest Converting Co. (1984), 16 Ohio App. 3d 411, 415,476 N.E.2d 695; Englewood v. Wagoner (1987), 41 Ohio App. 3d 324,326, 535 N.E.2d 736. See, also, Knepper Frye, Ohio Eminent Domain Practice (1977) 268, Section 9.04. Damage to the residue is measured by the difference between the fair market values of the remaining property before, and after, the taking.Englewood. See, also Hurst v. Starr (1992),79 Ohio App. 3d 757,763,607 N.E.2d 1155. When determining the fair market value of the remaining property before and after the taking, those factors that would enter into a prudent businessperson's determination of value are relevant. Englewood, citingNorwood, 16 Ohio App.3d at 415. "Among the elements that may be important are * * * loss of ingress and egress * * * diminution in the productive capacity or income of the remainder area or the permanent loss of rental value thereof, and any other losses reasonably attributable to the taking." Knepper Frye at 271, Section 9.06. {¶ 25} The law makes clear that property owners in a partial takings case can recover compensation for any damage to the residue resulting from the appropriation. See Englewood,41 Ohio App.3d at 326 (Stating that property owner can recover "* * * compensation for any damage to the landowner's remaining property (the residue) as a result of the take."); Noble v.Flowers (1959), 108 Ohio App. 1, 3, 160 N.E.2d 383 (Stating that the owner is entitled to be compensated "* * * for the damage to the residue occasioned by the taking.") See, also, Knepper Frye at 268, Section 9.04 (Stating that just compensation to the owner involves "* * * damage to the residue resulting from the taking."); 4A Nichols, Eminent Domain (3 Ed. 2004) 14-31, Section 14.02[1][a] (Stating that the property owner may recover "* * * severance damages to the diminution in value of the remainder directly caused by the taking itself * * *.") Therefore, if a partial taking affects the property owner's access to the remainder of the property, that factor can be considered in determining damage to the residue. See Knepper Frye at 271, Section 9.07. However, that is not the case here. Thieken offered no evidence establishing that the taking of the southeastern corner of his property or the taking of a temporary easement in his property affected his access to the remainder of the property. Rather, the trial evidence indicates that it is the curbing in the preexisting right of way along Route 7 that affects access to Thieken's property. As already noted, Thieken's easement of access was not part of the "take" described in the complaint. Therefore, Thieken cannot, in this action, recover for damage to the residue caused by this loss of access. {¶ 26} Furthermore, the record indicates that the trial court treated Thieken's loss of access as more than just a factor to be considered in determining damage to the residue of the property. Basically, the trial court treated the loss of access as a potential taking. A review of the trial court's jury instructions indicates that the trial court informed the jury that any governmental action that substantially or unreasonably interferes with a property owner's right of access constitutes a taking of private property. The court then instructed the jury: "If youdetermine that the concrete curbing is a substantial orunreasonable interference with the right of access * * * you will determine what the damages to the residue are." (Emphasis added.) As this italicized language demonstrates, the trial court essentially instructed the jury to determine if a taking of Thieken's access occurred. {¶ 27} In his supplemental brief, Thieken states: "The real issue at trial and on appeal was whether the denial of access was `substantial and material'." However, such a consideration is only relevant when determining if a taking occurred. An appropriation action is not the proper proceeding in which to determine if a taking occurred. See, generally, Goeglein. In an appropriation action, the trial court's jurisdiction is limited to determining the compensation for the property appropriated and damage to the residue resulting from the appropriation. SeeThormyer, 170 Ohio St. 276, paragraph one of the syllabus;Preston, 175 Ohio St. 107, paragraph one of the syllabus. {¶ 28} We conclude the trial court did not have jurisdiction to determine if a taking of Thieken's access occurred. If Thieken believes that ODOT appropriated his easement of access without instituting appropriation proceedings, he can file a mandamus action. See State ex rel. Preschool Dev., Ltd.,99 Ohio St.3d at 349; State ex rel. Elsass, 92 Ohio St.3d at 533; State exrel. BSW Dev. Group, 83 Ohio St.3d at 341. It appears that Thieken can still pursue a mandamus action since the applicable statute of limitations in such cases is six-years.4 SeeState ex rel. R.T.G., Inc. v. State, 98 Ohio St. 3d 1, 7,2002-Ohio-6716, 780 N.E.2d 998. We recognize that the result in this case may not be the best use of judicial time and resources. It is, however, the result required by law. Accordingly, we are powerless to ignore it. {¶ 29} Having concluded that the trial court lacked subject matter jurisdiction to determine if an additional taking occurred, we must now determine the proper remedy. Our review of the trial transcript indicates that Thieken offered no evidence establishing that the take specified in the complaint resulted in damage to the residue of his property. Instead, the evidence at trial focused on the damage to the residue resulting from the reduction of access along Route 7. Moreover, the trial court's jury instructions linked the damage determination with this alleged taking of access. Specifically, the court instructed the jury: "If you determine that the concrete curbing is a substantial or unreasonable interference with the right of access of Mr. Thieken and [Clark Oil] you will determine what the damages to the residue are. * * * If you conclude that, after construction, the owner or tenant will have reasonable and substantial access to State Route 7, you will not compensate the owner or tenant for the damages to the residue." Given the evidence at trial and the court's jury instructions, we are forced to conclude that the jury's damage award pertains solely to the damage resulting from the alleged taking of access. Because the court did not have jurisdiction to determine if a taking of access occurred, we are forced to further conclude that the jury's damage award is void. We note that this ruling in no way affects the compensation awarded for the .002 acres and the .023-acre temporary easement. {¶ 30} Accordingly, we remand this matter to the trial court with instructions to vacate the jury's award. The court's directed verdict concerning the .002 acres and the.023 acre temporary easement remains in effect. Judgment affirmed in part, reversed in part, and cause remanded. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED and that Appellant and Appellees split costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, P.J. Abele, J.: Concur in Judgment and Opinion. 1 ODOT's complaint named Thieken, Clark Oil, Quaker State Corporation, the county treasurer, and the county auditor as defendants. ODOT subsequently dismissed Quaker State from the action based on Quaker State's stipulation that it had no interest in the property. Although Clark Oil participated in the case at the trial level, it is not a party to this appeal. 2 R.C. 163.04 refers to a "petition" for appropriation. However, Civ.R. 7(A) replaces the word "petition" with "complaint". See Knepper Frye, Ohio Eminent Domain Practice (1977) 301, fn.20, Section 10.07. 3 The General Assembly enacted R.C. 163.01 to 163.22 in 1965. The statutes took effect in January 1966. 4 If the alleged taking is an accomplished fact, Thieken must bring his mandamus action in Franklin County. See R.C. 5504.22;Certain v. Hurst July 3, 1991), Pickaway App. No. 90CA5. If, however, the alleged taking is not yet complete, Thieken can bring his mandamus action in the county where the property is located. R.C. 5504.22; Certain.

2016-07-06 06:36:39.344582+00

OPINION {¶ 1} Defendant-appellant, Eric J. Whyte, appeals the prison sentence imposed by the Butler County Court of Common Pleas for his convictions on two counts of trafficking in drugs. Judgment affirmed. {¶ 2} By plea agreement, appellant pled guilty to one count of trafficking in cocaine, a felony of the fourth degree, and a second count of trafficking in cocaine, which was charged as a felony of the third degree because of the weight of the cocaine sold. Appellant was sentenced to 12 months for Count One. Count Two required a mandatory prison term consistent with the statutory sentencing scheme under R.C. 2925.03(C)(4)(d). Appellant received a three-year prison term for Count Two, to be served concurrently with Count One. Appellant appeals the prison sentence imposed, presenting two assignments of error. {¶ 3} Assignment of Error No. 1: {¶ 4} "The trial court erred to the prejudice of the defendant/appellant in imposing a prison sentence on the appellant for count one." {¶ 5} Appellant argues that imposition of a 12-month sentence for the fourth-degree felony count was in error when the factors cited by the trial court were "non-existent." Appellant specifically asserts that none of the R.C. 2929.13(B) factors were present to permit the imposition of prison over an available community control sanction. R.C. 2929.13(B)(1)(a)-(i). {¶ 6} The trial court found on the record at the sentencing hearing that appellant "attempted to cause or make an actual threat of physical harm to a person and/or a prior conviction that caused physical harm to a person and that he was convicted of domestic violence in Hamilton County, and further * * * that the offenses were committed while the defendant was under probation, community control sanctions * * *, and that he was under a community control probation in Brown County and Hamilton County at the time the offense was committed." {¶ 7} A review of the record before this court indicates that none of those specific findings is supported by the record. However, even if the trial court did not find that any R.C.2929.13(B)(1) factors apply, a trial court still has the authority to impose a prison term if the court considers the seriousness and recidivism factors and finds that a prison sentence, rather than community control, is warranted. State v.Beckman, Butler App. No. CA2003-02-033, 2003-Ohio-5003, at ¶ 12-13; State v. Roseberry (Feb. 24, 2000), Mahoning App. No. 99-JE-13; State v. Brewer (Nov. 24, 2000), Hamilton App. No. C-000148; R.C. 2929.11; R.C. 2929.12; R.C. 2929.13. {¶ 8} The trial court indicated that it weighed the seriousness and recidivism factors and found that appellant had an extensive prior criminal record, that appellant had failed to respond favorably to sanctions in the past, and that appellant demonstrated a pattern of drug and alcohol abuse-related offenses and failed to "truthfully acknowledge" that pattern and seek treatment. The trial court found that trafficking in drugs for profit had serious societal consequences, and concluded that appellant was not amenable to available community control sanctions. {¶ 9} Despite the trial court's inclusion of additional findings that were not supported by the record, we find that there was sufficient evidence in the record upon which the trial court properly relied to impose a prison sentence on Count One. See R.C. 2929.11; R.C. 2929.12; R.C. 2929.13. {¶ 10} Appellant also argues that the trial court failed to make the statutory findings necessary to impose the maximum sentence for Count One. {¶ 11} The maximum sentence for Count One is 18 months, and therefore, appellant's sentence of 12 months was not the maximum sentence for the fourth-degree felony.1 Appellate counsel's confusion about the degree of felony was likely caused by a judgment of conviction, which indicated that Count One was a fifth-degree felony. That judgment entry was later corrected to accurately reflect that appellant was convicted of a felony of the fourth degree in Count One. {¶ 12} We reject the arguments set forth under this assignment of error. Any error in the imposition of a sentence for Count One was harmless where the sentence for that conviction is to be served concurrently with the longer sentence of another count. State v. Avery (1998), 126 Ohio App. 3d 36, 52; State v.Tomlinson, Cuyahoga App. No. 83411, 2004-Ohio-3295, at ¶ 50-51 (defendant can show no ill effects from failure to make statutory maximum findings where sentence to run concurrent with mandatory prison term for another offense); State v. Bailey, Montgomery App. No. 19736, 2004-Ohio-273 at ¶ 8 (18-month sentence {¶ 13} for vehicular assault is irrelevant as a practical matter where 18-month sentence running concurrent to eight-year sentence for involuntary manslaughter). {¶ 14} Accordingly, appellant's first assignment of error is overruled. {¶ 15} Assignment of Error No. 2: {¶ 16} "The trial court erred to the prejudice of the defendant/appellant when it imposed a sentence beyond the statutory minimum in violation of the sixth andfourteenth amendments to the united states constitution." {¶ 17} Relying upon Blakely v. Washington (2004),542 U.S. 296, 124 S. Ct. 2531, and its progeny, appellant argues that the findings required to impose more than the minimum prison term were neither admitted by appellant nor found by a jury. {¶ 18} Appellant's second assignment of error is overruled on the basis of State v. Combs, Butler App. No. CA2005-03-047, 2005-Ohio-1923 (imposition of sentence within Ohio's statutory range was constitutionally sound); State v. Farley, Butler App. No. CA2004-04-085, 2005-Ohio-2367, at ¶ 43, and State v. Botos, Butler App. No. CA2004-06-145, 2005-Ohio-3504, at ¶ 24. {¶ 19} Judgment affirmed. Walsh, P.J., and Bressler, J., concur. 1 The trial court made the statutory findings to impose more than the minimum prison term in this matter. R.C. 2929.14(B)(2).

2016-07-06 06:36:38.791498+00

Mauck

Charles P. Kircher filed his petition in the Court of Common Pleas against Knapp Co. and the Indemnity Insurance Company of North America, in which he sought to recover on a bond upon which Knapp Co. was principal and the Indemnity Insurance Company was surety. The bond had been entered into pursuant to the provisions of Section 8624-20, General Code. Issue was joined upon the petition, and trial had to a jury, which resulted in a verdict and judgment in favor of the plaintiff, and the Indemnity Insurance Company now seeks to reverse that judgment. No evidence was offered in the case except that of the plaintiff. The court instructed a verdict in the plaintiff's favor. The question raised by a motion for nonsuit and by exceptions to the instructions to the jury is whether or not under the admitted facts the plaintiff is entitled to recover upon the bond in question. Knapp Co. was a West Virginia corporation located at Parkersburg, West Virginia, doing a brokerage business. It maintained an agency in Athens county, in charge of C.E. Fisher. The plaintiff, Charles P. Kircher, was the holder of eight hundred shares of North American Trust shares of the issue of 1953, which he desired to change for like shares of the issue of 1956. He approached Mr. Fisher, who agreed to effect the change without compensation. These shares passed by delivery without endorsement and were handed to Fisher by the plaintiff. Fisher sent them to Knapp Co. at Parkersburg. Knapp Co. forwarded to the plaintiff a communication reading: "Confirmation. We confirm sale to you of the following to day: Dated March 28, 1932, 800 North American Trust Shares, 1956, at the price of two twenty-five per share for settlement of 29-32. Amount $1800.00." It further appears that if Knapp Co. bought the *Page 142 shares for plaintiff, as thus represented, it appropriated them to its own use; and that if it did not buy them it sold plaintiff's original shares and appropriated the proceeds thereof. Whether this state of facts brings the case within the terms of the bond is the question before us. Section 8624-20, General Code, provides as follows: "Such bonds shall be conditioned that the dealer or salesman, as the case may be, shall pay, satisfy and discharge any judgment or decree that may be rendered against him in a court of competent jurisdiction in a suit or action brought by a purchaser of securities in which it shall be found or adjudged that such purchaser was defrauded in the sale of such securities. "Any purchaser claiming to have been damaged by fraudulent misrepresentation in the sale of any security by such dealer or salesman may maintain an action at law against the dealer or salesman making such fraudulent misrepresentations; or against both the dealer and salesman where the salesman makes such fraudulent misrepresentations; and may join as parties defendant the sureties on the bonds hereinabove provided for." The defendant argues that no fraudulent misrepresentation was made to the plaintiff, and that for that reason this case does not come within the terms of the statute quoted. If the liability is measured only by the last sentence above quoted, this argument would be sound; but while the second sentence in terms provides for a recovery for damages occasioned by fraudulent misrepresentation in the sale of a security, the first sentence provides that a condition of the bond shall be that the surety will satisfy any judgment in an action "in which it shall be found or adjudged that such purchaser was defrauded in the sale of such securities." The statute as it now reads comes into the Code through a revision *Page 143 of the Securities Act made in 1929. 113 Ohio Laws, 216 et seq. Prior to that time the terms of a dealer's bond were fixed by Section 6373-3, General Code. The old section provided for liability in case the purchaser suffered a loss through misrepresentations; and such bonds were further conditioned upon the observance of all the provisions of the Securities Act. The provision of the statute law that the bond shall be so conditioned as to inure to the benefit of a purchaser "defrauded in the sale of such securities" is a new term, and it must be concluded that it was deliberately incorporated into the law by the revision of 1929 for the purpose of extending the liability of broker's sureties to any case where a purchaser was defrauded. We accordingly do not adopt the view that liability is limited to a case where false representations have been made, but hold that liability also arises in case a purchaser is in any other way defrauded by the broker in the sale of securities. That the plaintiff in this case was defrauded, under any definition of fraud, can hardly be disputed. All of his property was appropriated by the brokerage company to its own use. It is urged, however, that the fraud committed on the plaintiff was consummated in another state, and that the Ohio Securities Act cannot cover crimes committed outside of Ohio, nor apply to sales which involve interstate commerce where such sales are consummated outside Ohio. To this end Hall v. Geiger-JonesCompany, 242 U.S. 539, 37 S. Ct., 217, 61 L. Ed., 480, L.R.A., 1917F, 514, Ann. Cas., 1917C, 643, is cited. The case cited is not helpful on the point for which it is urged. In that case a domestic corporation sought to enjoin the enforcement of the law on the ground, among others, that its enforcement would be an interference with interstate commerce. This contention was not sustained, but the court pointed out that the Ohio law only sought to regulate business done within the *Page 144 state. The case at bar does not offend against this rule. This is not a criminal case. The fact that the actual embezzlement of plaintiff's property occurred without the state is not important. The gist of the case is not where the plaintiff was defrauded, but whether he was defrauded at all, by one who had given surety not to defraud him. He would not have been defrauded had not the defendant dealer maintained its agency in Ohio, and through that agency in Ohio had undertaken to contract with regard to the subject-matter of this action. The defendant dealer was a West Virginia corporation. It could only establish an Ohio agency by leave of the state, and had to come into the state on such terms as the state prescribed. Because the state required it, the dealer gave its bond to protect an Ohio customer who might be defrauded in the sale of securities. To read into the statute a provision that its terms should not apply to a transaction of which some part had been performed outside the state would destroy the statute. Necessarily, where, as in the instant case, the dealer is a nonresident, the order taken in Ohio is forwarded to West Virginia. When the order is filled the securities are shipped to Ohio and delivered to the purchaser. If the defendant's interpretation in this respect were sound, no liability would ever attach to the bond of a non-resident dealer although in terms foreign dealers and their transactions are specifically covered by the statute. The defendant dealer, being a foreign corporation, was enabled to establish an Ohio agency only by giving the bond, and it cannot question the regulations of the state whose hospitality it conditionally enjoys. 12 Ruling Case Law, 62. The bond protects any purchaser of securities, who in this state deals with it through its local agent, against any fraud of the dealer in a sale of securities, whether the fraud be consummated within or without the state, and regardless of whether or not it is contemplated that *Page 145 the securities sold shall thereafter be shipped across the state's frontier. A more difficult question arises, however, and that is whether or not the plaintiff is one of those protected by the bond. The law provides that such protection shall be extended only to "purchasers." A "purchaser" in the ordinary acceptance of that term is one who acquires property by the expenditure of money or its equivalent. In this particular instance the term manifestly relates to any one to whom a sale of securities is made. The term "sale" is constantly recurring in the act under consideration, and the act itself gives to the word a broad significance. The third paragraph of Section 8624-2, General Code, thus defines the word: "`Sale' shall have the full meaning of the term `sale' as applied by or accepted in courts of law or equity, and shall include every disposition, assignment, subscription, offer to sell, option to sell, solicitation or agreement to sell or exchange any security or an interest therein, directly or indirectly by agent, circular, pamphlet, advertisement or otherwise." The sale of a security, therefore, means, among other things an exchange of securities, and as one who acquires by sale is a purchaser, so is a purchaser one who acquires by an exchange of securities. There is another aspect of this particular case that justifies the view that in fact the plaintiff in this case was a purchaser, whether his negotiations with Fisher so indicated or not. We refer to the confirmation mailed him by Knapp Co., quoted above. By this instrument the broker informed him that there had been sold to him eight hundred North American Trust shares of the 1956 issue. It was doubtless true that when Fisher received from the plaintiff his trust certificates there was no way by which the broker could secure for him the different issue which he desired *Page 146 except by selling on the market those which he already held and buying on the market those which he desired. It is clear that the plaintiff did not know this and likely that Fisher did not. Knapp Co. evidently knew it, however, for it sold the plaintiff's shares and sent to the plaintiff the confirmation advising him that it had purchased for him the new shares which he desired. If the confirmation was true, what the dealer embezzled was not the old certificates, but the new ones, mentioned in the confirmation. The dealer, in fact, having told the plaintiff he was a purchaser, will not now be allowed to refute its own representation. We conclude, therefore, that both as a matter of law, generally, and as a matter of fact, in this particular case, the plaintiff was a purchaser of securities in this transaction and that the remedy on the bond is available to him. Judgment affirmed. BLOSSER, P.J., and MIDDLETON, J., concur.

2016-07-06 06:36:39.075008+00

Nahra

Plaintiffs, Shannon Gedeon and her parents, Richard and Kathleen Gedeon, appeal from the trial court's entry of summary judgment for defendants. For the reasons set forth below, we affirm. Plaintiffs filed a complaint for medical malpractice against Grant A. Leiby, M.D., Jim Liang, M.D., and Parma Community General Hospital on November 2, 1988. Plaintiffs had previously filed the same lawsuit and subsequently dismissed it pursuant to Civ.R. 41(A)(1)(a). Defendant Parma Hospital filed a motion for summary judgment on January 30, 1989. The motion was supported by the summary judgment motion and brief which had been filed in the previous case. Apparently the hospital's summary judgment motion was granted in that case, but was not entered before the judgment of dismissal pursuant to Civ.R. 41(A)(1)(a) had already been entered. Fifty days after Parma Hospital filed for summary judgment in the instant case, plaintiffs first moved for an extension of time for their response to the hospital's motion. Plaintiffs asserted that they had been unable to obtain an expert, but that they would secure one within thirty days. Plaintiffs did not set forth a date certain for their response. The court granted plaintiffs' motion for leave, without setting a due date for plaintiffs' response. Plaintiffs never filed a response. *Page 629 On June 13, individual defendants Leiby and Liang also filed motions for leave to file for summary judgment, with the motions for summary judgment attached. Leave was granted June 28. On July 12, plaintiffs filed a motion for an extension of time to respond to these motions, again asserting, inter alia, that they had not yet obtained an expert but would do so in the near future. The record does not reflect that the motion for extension was ruled on. The court conducted a hearing on August 1. At that time, the court granted plaintiffs sixty days to file their expert's report, and rescheduled the case management conference for October 6. Plaintiffs failed to file their expert's report by October 1, and also failed to request a continuance. On October 4, plaintiffs filed a document entitled "Agreed Entry." The entry stated that defendants were withdrawing their summary judgment motions; that plaintiffs would have until November 4 to submit their expert's report; and that "[p]laintiff's [sic] counsel anticipates withdrawing from this case if said expert report is not available by November 4, 1989." Plaintiffs' counsel signed defendants' counsel's names "per telephonic consent." On October 11, the court apparently made an entry stating as follows: "The proposed `Agreed Entry' submitted on 10-4-89 is not approved by the court due to plaintiffs' failure to respond to motions for summary judgment and prior orders of this court regarding discovery." (Emphasis sic.) The court granted all three defendants' summary judgment motions on the same date. Plaintiffs filed this timely appeal, asserting as their sole assignment of error: "The trial court erred when it granted defendants' motion [sic] for summary judgment against plaintiffs [sic] when the attorneys for defendants voluntarily withdrew their motions for summary judgment eight (8) days prior to the trial court's ruling on said motion [sic] for summary judgment." Appellants claim that the summary judgment motions were automatically withdrawn, upon filing of the agreed entry. Since the motions were no longer pending before the court, the court could not grant summary judgment. The parties have not cited, and we do not find, any rule or case authority regarding the procedure for the withdrawal of motions in Ohio. Case authority from other jurisdictions provides for the withdrawal of pretrial motions upon leave of court. The absolute right of withdrawal of pretrial motions has been allowed only prior to submission of the motions to the court; "submission" *Page 630 is defined as application for the court's consideration in whole or in part by the moving party. See, e.g., Kossoff v. SamsungCo., Ltd. (1984), 123 Misc. 2d 177, 474 N.Y.S.2d 180 (court refused to allow withdrawal of motion after it had been submitted for the court's consideration); Simers v. GreatEastern Clay Products Co. (1913), 82 Misc. 422, 143 N.Y.S. 1020 (defendant allowed to withdraw motion prior to court's deadline for submission of all papers in support of and opposing motion);Hoover v. Rochester Printing Co. (1896), 2 A.D. 11,37 N.Y.S. 419; Leader v. Leader (1957), 8 Misc. 2d 1015, 166 N.Y.S.2d 784;D'Addario v. McNab (1973), 73 Misc. 2d 59, 342 N.Y.S.2d 342;Wilcox v. Hedwall (1932), 186 Minn. 504, 243 N.W. 709; Jensen v.Barbour (1892), 12 Mont. 566, 31 P. 592; Kjellander v.Kjellander (1914), 92 Kan. 42, 139 P. 1013. According to these authorities, withdrawal would not have been proper in this case because the summary judgment motions had been "submitted," and because appellants failed to comply with the court's deadlines. The trial court also acted within its discretion in rejecting the entry because it attempted not only to withdraw appellees' summary judgment motions, but also attempted to further extend appellants' discovery deadline without approval of the court. Trial courts have discretion in regulating the discovery process. Stegawski v. Cleveland Anesthesia Group, Inc. (1987),37 Ohio App. 3d 78, 523 N.E.2d 902, paragraph three of the syllabus. Appellants failed to comply with the sixty-day deadline for their expert's report set at the August 1 hearing. Appellants also failed to move for a continuance prior to the expiration of the deadline, and had failed to comply with previous orders and deadlines. Therefore, the trial court did not err in refusing to approve the agreed entry and ruling on the pending summary judgment motions. Judgment affirmed. FRANCIS E. SWEENEY and SPELLACY, JJ., concur. *Page 631

2016-07-06 06:36:39.37954+00

Porter

Plaintiff-appellant, James H. Washington Insurance Agency, appeals from the partial summary judgment (on five counts) and directed verdict (on four counts) in favor of defendant-appellee, Nationwide Mutual Insurance Company ("Nationwide"), entered in the common pleas court below. The issues in this case arise out of the interpretation of Washington's exclusive Agent's Agreement ("Agreement") with Nationwide, effective January 1, 1987; Letters of Authority; and Nationwide's Agent Brokerage Policy. Specifically, the appeal involves Nationwide's right to cancel the Agreement any time, with or without cause, following written notice to Washington, and Nationwide's right to cancel deferred compensation and incentive credits ("DCIC") and extended earnings for breach of a noncompetition condition after Washington's termination. The termination occurred after Washington refused to cancel two licenses for other insurance companies, contrary to the exclusivity provision of his Agent's Agreement with Nationwide. Washington also claimed he was owed commissions on the Cleveland School Board and Garfield Heights Board of Education insurance business in 1985 and 1986, and was forced to accept high-risk fire insurance policies in 1979 to his detriment. For the reasons stated below, we affirm the lower court's decisions. *Page 579 Washington had been an independent agent with Nationwide since 1971. The January 1, 1987 Agent's Agreement provided that "[t]his Agreement shall be in force until cancelled by eitherparty." Paragraph 9 of the Agent's Agreement. The cancellation clause continued: "Further, due to the personal nature of our relationship you or the Companies [Nationwide] have the right to cancel this Agreement at any time after written notice has been delivered to the other or mailed to the other's last known address." There was no requirement that either Nationwide or Washington could cancel the Agent's Agreement only for good cause. Nationwide also required its agents to represent Nationwide exclusively, i.e., not to "solicit or write policies of insurance in [other] companies * * * either directly or indirectly without the written consent of [Nationwide]." Paragraph 4 of the Agent's Agreement. In 1989, Nationwide discovered that Washington had obtained licenses with Blue Cross Blue Shield ("BC BS") and Medical Life Insurance Company ("Medical Life"). On January 4, 1990, Nationwide sent a letter to Washington advising him that his two licenses with BC BS and Medical Life violated the terms of his Agent's Agreement. Failure to cancel those licenses in thirty days, Nationwide wrote, would give Nationwide no alternative but to terminate his contract. Washington failed to cancel the licenses. On May 24, 1990, Nationwide sent Washington written notice that his Agent's Agreement with Nationwide was canceled. The exclusive representation clause states in pertinent part: "It is agreed and understood that you will represent usexclusively in the sale and service of insurance. Such exclusive representation shall mean that you will not solicit or writepolicies of insurance in companies other than those parties tothis agreement, either directly or indirectly, without thewritten consent of these companies * * *." (Emphasis added.) Paragraph 9 of the Agent's Agreement. However, Washington claims he had obtained written consent from Nationwide to be licensed with BC BS and Medical Life, when he obtained signed Letters of Authority in 1981 and 1988. Thus, Washington argues that he did not violate the exclusivity feature of the Agreement and was not competing with Nationwide directly or indirectly within a twenty-five-mile radius of his Nationwide location during the first year following termination. Nationwide does not dispute that the Letters of Authority gave Washington permission to broker, through other agents or brokers, business Nationwide would not write. Nor does Nationwide contend that Washington could not accept commissions through these other agents. However, contrary to Washington's assertions, Nationwide argues that the Letters of Authority, which are governed *Page 580 by Nationwide's Agent Brokerage Policy, reinforce Nationwide's policy of exclusive representation and expressly prohibit Nationwide agents from being licensed with other companies. Paragraph A of Nationwide's Agent Brokerage Policy is entitled "DIRECTION — EXCLUSIVE NATIONWIDE AGENT," and provides: "The continuing and long-range intent is for the Nationwide agent to be an exclusive representative supported by the key products necessary to serve our policyholders and to significantly penetrate Nationwide markets for market share growth." Paragraph B, entitled "CONTRACT," quotes verbatim the exclusive representation clauses set forth in paragraph 4 of the Agent's Agreement and concludes that "all violations of the Agent's Agreement or Letter of Authority are a breach of contract." Paragraph C, entitled "BROKERAGE POLICY," defines the scope of an agent's authority to place coverage outside Nationwide. It permits the placement of business only "through other agents or brokers." There is no authorization to obtain a license with another company. "Career agents will be given written authority upon request to place through other agents or brokers that business which is unacceptable to, declined by, or canceled by the company." Nationwide contends that paragraphs A, B and C, construed as a whole together with paragraph 4 of the Agent's Agreement, clearly express the policy and intent that Nationwide agents who have obtained a Letter of Authority may place through other agents or brokers business Nationwide will not write, but these agents must remain exclusive Nationwide agents. To resolve any possible ambiguity Nationwide points to paragraph D, "PROHIBITED PRACTICES," of the Brokerage Policy, which states that Nationwide's Agents will be prohibited from: "1. Being licensed with another company unless required by law and with written approval." (Emphasis added.) Washington argues he comes within the exception because (1) he was required by law to be licensed to accept commissions from BC BS and Medical Life, and (2) his Letters of Authority constitute Nationwide's written approval. Nationwide contends that the exception does not apply and that Washington misconstrues the regulations governing the licensure of insurance agents in Ohio. Pursuant to Ohio Adm. Code3901-1-10(H)(1), an agent must be licensed with an insurer to receive direct payment and one hundred percent of his commissions. However, the very next section, Ohio Adm. Code 3901-1-1-(H)(2),1 permits a *Page 581 licensed agent to split commissions with agents duly licensed with other companies. Thus, according to Nationwide, Washington was not required by law to be licensed to accept commissions from BC BS and Medical Life. Nationwide claims Washington became licensed with BC BS and Medical Life in 1983 and 1987 to write directly for those carriers in order to maximize his commissions and to prevent splitting his commissions with a licensed BC BS or Medical Life agent. Washington testified that he earned $200,000 in 1989-1990 and projected earnings of $400,000 for 1990-1991, from renewal commissions on Washington's BC BS and Medical Life business. It is undisputed that Washington was licensed with other companies on the date of Nationwide's May 24, 1990 termination, and continued to be licensed with, and receive commissions from, BC BS and Medical Life for the year following termination. Washington was licensed to sell health insurance for Nationwide and sold health insurance for Nationwide prior to his termination. Furthermore, Nationwide also contends that, contrary to the Agent's Agreement, Washington did not return Nationwide's computer equipment, manuals and other supplies until February 1991. Nationwide claims Washington forfeited his right to continued DCIC and extended earnings because his conduct following termination explicitly violated paragraphs 11(f)(1) and (2) of the Agent's Agreement, which state: "f. Cessation of Agency Security Compensation. "All liability of the Companies for Agent Security Compensation provided for in paragraph 11 and its subparagraphs shall cease and terminate in the event any one or more of the following shall occur: "(1) You either directly or indirectly * * * engage in or be licensed as an agent, solicitor, representative, or broker or in anyway be connected with the fire, casualty, health, or life insurance business within one year following cancellation within a 25-mile radius of your business location at that time; or "(2) You fail to return in good condition, within ten days, all materials, records and supplies furnished to you by the Companies during the course of this Agreement * * *." *Page 582 Nationwide's May 24, 1990 termination letter warned Washington that these terms would be enforced and directed him to return Nationwide's property to the Agency Manager. Washington testified that he was familiar with these conditions, which were also described in Nationwide's cash manual. Despite the letter notice, Washington did not cancel his licenses with BC BS and Medical Life by June 3, 1990 and did not return Nationwide's equipment as requested. Thus, Nationwide claims Washington forfeited his right to continued DCIC and extended earnings under the terms of paragraphs 11(f)(1) and (2). Washington claims Nationwide was estopped from cancelling Washington's DCIC and extended earnings because Nationwide issued one check to Washington on June 29, 1990 for DCIC and extended earnings. Nationwide explained this was a safeguard in order that terminated agents who are following the company rules are not penalized. But if Nationwide determines the agent has committed one or more of the prohibited acts set forth in paragraph 11(f), then future payments are discontinued. Nationwide's benefits department learned on July 13, 1990 that Washington was in violation of paragraph 11(f)(2) of the Agent's Agreement because he had failed to return Nationwide's equipment and other materials ten days following cancellation of the Agent's Agreement. For that reason and breach of the noncompetition condition, Nationwide claims Washington was not entitled to any further payments. Nationwide also claimed that Washington was not entitled to commissions on the Cleveland School Board and Garfield Heights School Board business. The general rule regarding compensation of agents was set forth in the Agent's Agreement: "Compensation. It is agreed that we will pay you any and all original and renewal commissions earned by you * * * on business written by you while employed by us under our Agent's Employment Agreement." Paragraph 7 of the Agent's Agreement. Nationwide's standard policy was to award in-force renewal commissions to the agent who is currently and satisfactorily servicing the account. Special company policies with respect to school districts provide that the first two agents to apply for bids for a school contract are awarded the bids and the remaining agents do not receive a bid, but that if a customer wants a certain agent to service their account, the customer can write an official letter or "Agent or Record" letter and ask for a specific agent. Washington also claimed Nationwide forced him to accept high-risk fire insurance policies in 1979, which allegedly led to high losses and a two-year moratorium on Washington's fire insurance license. The trial court determined that there was insufficient evidence to support this claim and that Washington's damages were speculative and removed this issue from consideration by the jury. *Page 583 Standard of Review on Summary Judgment It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be reviewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317,327, 4 O.O.3d 466, 471-472, 364 N.E.2d 267, 273. Moreover, upon motion for summary judgment pursuant to Civ.R. 56, the burden of establishing that material facts are not in dispute and that no genuine issue of fact exists is on the party moving for summary judgment. Harless v. Willis Day WarehousingCo. (1978), 54 Ohio St. 2d 64, 66, 8 O.O.3d 73, 74,375 N.E.2d 46, 47-48. However, in that Civ.R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E.2d 489, paragraph seven of the syllabus. In other words, the motion for summary judgment "forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. AnchorMedia, Ltd. of Texas (1991) 59 Ohio St. 3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. However, bare allegations stated in conclusory fashion in an affidavit are insufficient standing alone to create genuine issues of fact. Stibora v.Greater Cleveland Bowling Assn. (1989), 63 Ohio App. 3d 107, 113,577 N.E.2d 1175, 1178-1179. With these standards in mind, this court is obliged to look at the record de novo to determine whether as a matter of law defendant was entitled to summary judgment below, dismissing Counts I through IV of the amended complaint. We shall address the defendant's assignments of error in the order in which they were asserted: "I. The trial court erred in granting Nationwide's motion for summary judgment where genuine issues of fact existed to demonstrate that Nationwide wrongfully terminated Washington's agency agreement and withheld commissions it owed to Washington." Washington argues that (1) Nationwide was required to prove that Washington breached the Agent's Agreement in order for Nationwide to lawfully terminate him; and (2) alternatively, that the Letters of Authority and Brokerage Policy permitted him to be licensed with other companies, thereby presenting a genuine issue of fact as to wrongful termination. *Page 584 A review of Washington's Agent's Agreement, Letters of Authority and Nationwide's Brokerage Policy demonstrates that the trial court committed no error in granting summary judgment on Count I of the amended complaint. The Agent's Agreement provided it could be cancelled "at any time after written notice has been delivered to the other * * *." Washington signed the Agent's Agreement and understood it required him to be an exclusive representative for Nationwide. This court has previously construed the identical language set forth in paragraph 9 of Washington's Agent's Agreement and determined its meaning is clear and unambiguous — either party can terminate the Agreement by giving written notice. Summary judgment was approved in those cases. Brodzinkski v. Nationwide Mut. Ins.Co. (Aug. 18, 1977), Cuyahoga App. No. 36055, unreported; Kezdiv. Nationwide Ins. Co. (Aug. 11, 1977), Cuyahoga App. No. 35683, unreported; see, also, Forcina v. State Auto Ins. Co. (Sept. 21, 1989), Cuyahoga App. No. 55731, unreported, 1989 WL 112406, to the same effect. It is undisputed Washington received written notice of his termination on May 24, 1990. Accordingly, under our earlier precedents, there is no issue of fact as to whether Washington was wrongfully terminated, since either party could cancel with or without cause on written notice. That was done here. We must affirm the trial court's summary judgment on Count I of the amended complaint. Insofar as Washington claims commissions for the Cleveland School Board business, we must again defer to the Agent's Agreement. Nationwide agreed to pay Washington "any and all original and renewal commissions earned by you, * * * on business written by you while employed by us under our Agent's Employment Agreement." Paragraph 7 of the Agent's Agreement. Washington argues that the October 30, 1985 "Agent of Record" letter from Harrison Dillard, business manager for the Cleveland schools, mandated that Nationwide pay Washington the one-month commission generated from this account in February 1986. However, Nationwide's evidence disclosed that Gregory Yasher was the first Nationwide agent to write business acceptable to the Cleveland schools and he obtained the business in 1984, effective February 1, 1985. Moreover, it is undisputed that Washington did not "write the business" for the Cleveland schools. Under the terms of his Agent's Agreement, he is not entitled to the commission, notwithstanding the Harrison Dillard letter of October 30, 1985. Because Nationwide's standard policy was to award in-force renewal commissions to the agent currently and satisfactorily servicing the account (Yasher), Nationwide did not honor Dillard's request. Because it appeared that Dillard's letter was not authorized by the school board, Nationwide requested that the board confirm its desire to name Washington as its exclusive agent. The *Page 585 board's insurance manager confirmed that Yasher had been the school district's agent for the past year and that a renewal quotation should be issued to him. Washington's affidavit in opposition to the foregoing facts simply stated the conclusory allegation that the statements in Nationwide's affidavit "speak for themselves in light of documentation provided by the defendant and plaintiff." This was not sufficient to prevent summary judgment. When the nonmoving party fails to respond with specific facts, the affidavits of the moving party are accepted as true. Stemen v. Shibley (1982),11 Ohio App. 3d 263, 268, 11 OBR 441, 447-448, 465 N.E.2d 460,466-467. Based on the evidence before it, the trial court properly determined there was no genuine issue of fact and that Washington was not owed commissions on the Cleveland School Board business. We affirm summary judgment on Counts II through V of the amended complaint. This assignment of error is overruled. "II. The trial court erred in granting Nationwide's motion for directed verdict where the evidence was sufficient for reasonable minds to believe that Nationwide withheld monies it owed to Washington." After the summary judgment rulings, the case proceeded to jury trial on the remaining Counts VI to IX of the amended complaint, involving the disputed Garfield Heights commissions and post-termination payments of DCIC and extended earnings under paragraphs 11(f)(1) and (2) of the Agent's Agreement. We find no error in the trial court's granting of a directed verdict at the close of plaintiff's case. The inquiry to be made by the trial court in ruling on a motion for a directed verdict during trial is equated with that used for summary judgment before trial: whether there is but one reasonable conclusion as to the verdict when the evidence is construed most strongly in the nonmoving party's favor. Andersonv. Liberty Lobby, Inc. (1986), 477 U.S. 242, 251-252,106 S. Ct. 2505, 2511-2512, 91 L. Ed. 2d 202, 213-214; Paul v. UniroyalPlastics Co. (1988), 62 Ohio App. 3d 277, 281, 575 N.E.2d 484,486-487; Hinkle v. Cornwell Quality Tool Co. (1987), 40 Ohio App. 3d 162,165, 532 N.E.2d 772, 775-776. Plaintiff must present substantial competent evidence in support of his case upon which reasonable minds might reach different conclusions in order for a directed verdict to be denied. Strother v. Hutchinson (1981),67 Ohio St. 2d 282, 284, 21 O.O.3d 177, 178-179, 423 N.E.2d 467,469. Regarding the Garfield Heights commissions, Washington argues that disputed issues of fact were created by Nationwide's award of commissions to Robert Butler, who allegedly did no work to obtain the business but presented a valid "Agent of Record" Letter. Washington argues that Nationwide can't have it both ways, i.e., Washington's October 30, 1985 "Agent of Record" letter did not *Page 586 entitle him to commissions on the Cleveland School Board business, but by the same token, Butler nevertheless got the Garfield Heights commissions solely because he had an "Agent of Record" letter. Washington and another Nationwide agent, Saul Obelenis, both submitted the first two requests for the Garfield Heights School Board quotes. According to Nationwide's policy, these were the only agents initially issued bids. However, neither agent received the contract. Rather, Butler was awarded the contract and commissions because Nationwide received an official letter from the Garfield Heights School Board Treasurer, informing Nationwide that the board members had appointed Butler as the agent they wanted servicing their account. Nationwide made the business judgment to honor Butler's "Agent of Record" Letter because it was clear on its face that it was authorized by the Garfield Heights School Board. In addition, although Washington and Obelenis had submitted bids, neither agent was currently servicing the Garfield Heights' account. The trial court concluded there was no evidence that Nationwide violated its own policy, or any other rule or regulation, in complying with the request made by the Garfield Heights School Board that the business be given to Butler. Accordingly, a directed verdict on Count VI of the amended complaint was proper and is affirmed. Washington testified he received high-risk fire insurance policies in 1979 from Nationwide's agency manager. These policies were not introduced into evidence and there was no testimony from the manager. Washington testified that these policies sustained substantial losses resulting in a two-year moratorium on his ability to sell fire insurance policies. No proof was provided of the claimed losses and no documents or other competent evidence was introduced showing that there was indeed a two-year prohibition on Washington selling fire insurance. When asked on direct examination what his losses were, Washington responded, "I don't know. Quite a bit. I couldn't write policies." Washington then claimed in the prior year, he earned $15,000 in commissions based on $400,000 in premiums on fire insurance. Washington then testified he lost $30,000 in commissions during his two-year moratorium. No other evidence was presented. The trial court found this evidence inadequate to establish causation or damages. "The general rule for the recovery of compensatory damages is that injury and the resulting damage must be shown with certainty and not be left to conjecture and speculation." Pietz v. Toledo Trust Co. (1989), 63 Ohio App. 3d 17,22, 577 N.E.2d 1118, 1122. Further, Washington argues to this court that his evidence creates a genuine issue of fact whether Nationwide acted in bad faith. However, there is no claim for breach of an implied covenant of good faith and fair dealing in the termination of at-will employment in Ohio. Fawcett v. G.C. Murphy Co. (1976), *Page 587 46 Ohio St. 2d 245, 250, 75 O.O.2d 291, 294, 348 N.E.2d 144,147-148; Anderson v. Minter (1972), 32 Ohio St. 2d 207, 213, 61 O.O.2d 447, 450, 291 N.E.2d 457, 461; Brandenburger v. Hilti,Inc., (1989), 52 Ohio App. 3d 21, 24, 556 N.E.2d 212, 216. See, also, Brodzinski v. Nationwide Mut. Ins. Co., (Aug. 18, 1977), Cuyahoga App. No. 36055, unreported (allegations of bad faith cannot invalidate the effects of the contract which he voluntarily entered into); Forcina v. State Auto Ins. Co. (Sept. 21, 1989), Cuyahoga App. No. 55731, unreported, 1989 WL 112406. We find that the trial court properly determined Ohio law does not recognize an implied covenant of good faith and fair dealing in the termination of an at-will agreement. Furthermore, Washington's testimony was insufficient without the policies, or Washington's books and records concerning these policies, or any other testimony connecting Washington's alleged damages resulting from servicing the 1979 policies. We affirm the directed verdict on Count VII of the amended complaint. The remaining issues are whether Washington was entitled to go to the jury on his claim for DCIC compensation and extended earnings. His right to receive those post-termination payments is determined by the terms of his Agent's Agreement.Brodzinski v. Nationwide Mut. Ins. Co. (Aug. 18, 1988), Cuyahoga App. No. 36055, unreported; White v. Bur. of Natl. Salesmen'sAssn. (Nov. 15, 1979), Cuyahoga App. No. 40121, unreported. Extended earnings would provide Washington with an amount equal to renewal commissions earned in the last twelve months of service following termination. Under DCIC, after Washington's fifth year of service, Washington received credit annually for a percentage of earnings on renewals and new policies, on certain types of insurance. Paragraph 11 of the Agent's Agreement. In addition to a "qualified cancellation," Washington's Agent's Agreement sets forth three conditions an agent must not violate in order to be eligible to continue to receive DCIC and extended earnings payments. "All liability of [Nationwide] for Agency Security Compensation provided for in paragraph eleven and its subparagraphs shall cease and terminate in the event any one or more of the following shall occur" (paragraph 11f): "(1) You either directly or indirectly * * * engage in or be licensed as an agent, solicitor, representative, or broker or in any way be connected with the fire, casualty, health, or life insurance business, within one year following cancellation within a 25-mile radius of your business location at that time; or "(2) You fail to return in good condition, within ten days, all materials, records and supplies furnished to you by the Companies during the course of this Agreement * * *." *Page 588 Washington admitted at trial that his office address remained 2000 Lee Road, Cleveland Heights, Ohio, as it was when he was Nationwide's agent. While working from that office during the one year following his termination, Washington was licensed as an agent or broker for two health insurance companies who were paying Washington renewal commissions — BC BC and Medical Life. The fact that Washington was not writing new policies is irrelevant. He was a licensed agent or broker for BC BS and Mutual Life and collected renewal commissions from these health insurance companies at that office. Paragraph 11(f)(1) expressly prohibits an agent from being "licensed as an agent" with another health insurance business "within one year following cancellation within a 25-mile radius of your business location at that time." It is also undisputed that Washington failed to return Nationwide's computer equipment, books and records within ten days following Washington's termination. Washington argues that paragraph 11(f)(1) is an unreasonable covenant not to compete and should not be enforced by this court. In the alternative, Washington argues he has "substantially" complied with paragraph 11(f) because "on several occasions * * * [he] encouraged policyholders to continue their business with Nationwide"; thus, he was not in direct competition with Nationwide. This court has previously reviewed in other Nationwide cases the reasonableness of the noncompetition clause set forth in paragraph 11(f)(1) of the identical Agent's Agreement and determined Nationwide's policy of preventing an agent from working for or representing another insurance company, following termination for one year and within twenty-five miles is valid and enforceable. Brodzinski v. Nationwide Mut. Ins. Co., andKezdi, supra. Specifically, this court determined Nationwide's prohibition against employment with other insurance companies protected legitimate business interests. Kezdi at 6. In addition, the "time and territory" restriction of one year and twenty-five miles was a reasonable restriction to protect Nationwide's interest. Brodzinski at 4. Last, the restriction imposed no undue hardships on an agent because the agent is free to work for another company outside the restricted area and receive renewal commissions, or work for another company within the restricted territory and forfeit renewal commissions.Kezdi at 6. The noncompetition provisions are not unreasonable or in illegal restraint of trade because Washington is not barred from practicing his profession. Rather, he is being denied a reward that is intended only for agents who are loyal to Nationwide. Kezdi at 6-7. Nationwide's conditions for cancelling DCIC and extended earnings have also been upheld by the Sixth Circuit Court of Appeals. Wolcott v. Nationwide Mut. Ins. Co. (C.A.6, 1989), 884 F.2d 245; (with regard to 11[f], the forfeiture provision of the Agent's Agreement, it is undisputed that Wolcott violated subsections [1] and [3]). Plazzo v.Nationwide Mut. Ins. Co. (C.A.6, 1989), 892 F.2d 79. *Page 589 This court's holdings in Brodzinski and Kezdi are consistent with the Ohio Supreme Court's recent rulings on the enforcement of covenants not to compete. Raimonde v. Van Vlerah (1975),42 Ohio St. 2d 21, 71 O.O.2d 12, 325 N.E.2d 544; Rogers v. Runfola Assoc. Inc. (1991), 57 Ohio St. 3d 5, 565 N.E.2d 540. InRogers, two court reporters signed noncompetition agreements with their employer that prevented them, after termination, from being employed as court reporters for two years within the limits of Franklin County, Ohio. Rogers, 57 Ohio St.3d at 5,565 N.E.2d at 541, fn. 1. The court balanced the legitimate business interest of the employer against the employees' projected hardships and modified the time and space restraints to one year within the city limits of Columbus, Ohio. The court expressly enforced the prohibition against the employees' "engaging in court reporting or public stenography as a business, as employees, or otherwise." Id. at 9, 565 N.E.2d at 544. Similarly, Nationwide's noncompetition clause prohibits Washington only from engaging in the insurance business for one year within a twenty-five-mile radius of Cleveland Heights. Moreover, the prohibition is not an absolute ban on employment. It is merely a condition to continued receipt of DCIC and extended earnings. According to the standards enunciated inRaimonde and Rogers and adopted by this court in Brozinski andKezdi, the noncompetition provision of Washington's Agent's Agreement must be enforced. It is undisputed that Washington violated paragraph 11(f)(1) when he was licensed with other health insurance companies through, at least, May 24, 1991 within the restricted area. It is also undisputed that Washington violated paragraph 11(f)(2) when he waited until February 1991 to return Nationwide's equipment and materials. Nationwide enforced the clear and unambiguous terms of paragraph 11(f) and properly discontinued Washington's DCIC and extended earnings. We affirm the trial court's directed verdict on Count IX of the amended complaint. This assignment of error respecting the directed verdict rulings is overruled. The judgment of the trial court is affirmed. Judgment affirmed. DYKE, C.J., and JOHN F. CORRIGAN, J., concur. 1 Ohio Adm. Code 3901-1-10(H)(2) states in pertinent part: "Payment of commissions by licensed agents of insurance companies other than life: Pursuant to §§ 3905.01 and 5729.07 of the Revised Code, only a licensed agent of an insurance company authorized to do business in this state may procure the insurance of risks * * * in other like companies authorized to do business in this state through a licensed agent of such company taking the risk and may receive the payment of any commission, consideration, money, or other thing of value only from said licensed agent of such company taking the risk." *Page 590

2016-07-06 06:36:45.692127+00

Gorman

Although I agree that Flahive deserves the prison term imposed by the trial court, I cannot accept the majority's analysis with respect to the applicability of *Page 36 R.C. 2929.13 (B) (1) (d). Because I cannot, unfortunately, find any other statutory sentencing factors applicable to Flahive's offenses, I must dissent. For Flahive to be eligible for a prison term, it is beyond dispute that he must satisfy the criteria in R.C. 2929.13 (B) (1) (d) or one or more of the other sentencing factors in R.C.2929.13 (B) (1) (a) through (h). The factor chosen by the trial court, and, indeed, the only one to arguably apply, is that contained in subsection (b) (1) (d), which requires either (1) that the offender held "a public office or position of trust," (2) that the offender held a position that obliged him to prevent the offense, or (3) that the offender's "professional reputation or position" facilitated the offense. The majority implicitly concludes that as a cashier or clerk, Flahive did not hold a public "position of trust" under the first of the three clauses of R.C. 2929.13 (B) (1) (d). I fully agree. The reason I agree is that I believe the word "public" modifies both "office" and "position of trust." Because a hotel or supermarket clerk holds neither a public office nor a "[public] position of trust," this factor clearly does not apply to him. I do not agree, however, with the majority's conclusion that Flahive's offense satisfies the language of the third clause of R.C. 2929.13 (B) (1) (d), which requires that the "offender's professional reputation or position" facilitated his crimes. Just as "public" modifies both "official" and "position" in the first clause, I believe that "professional" modifies both "reputation" and "position" in the third clause. Thus, in order for Flahive to satisfy this criterion, one would have to conclude that the job of supermarket or hotel clerk fits the definition of a "professional position" as that term is commonly defined. According to Black's Law Dictionary, a profession is "[a] vocation or occupation requiring special, usually advanced,education and skill; e.g., law or medical professions." (Emphasis supplied.) Black's Law Dictionary (5 Ed. 1979) 1089. Without impugning the merits of either job, I simply cannot find that a hotel or supermarket clerk meets this definition. Significantly, comparable language in R.C. 2929.12 (B) (5) requires that "[t]he offender's professional reputation or occupation, elected office, or profession was used to facilitate the offense" in order to find the offense more serious. While in artfully worded, I believe this language only underscores the legislative intent to make more serious an offense in which a member of a respected profession — such as a doctor or lawyer, accountant or broker — abuses the special nature of the professional relationship to facilitate a crime. Such an abuse of one's professional status would certainly make the crime more egregious. Under the majority's analysis, on the other hand, every crime made possible by one's occupation, no matter how lowly, becomes an imprisonable offense. Such a result *Page 37 runs directly counter to the intent of the General Assembly in R.C. 2929.13 (B) (1) (d), which was to limit, not expand, prison terms for fourth — and fifth-degree felonies.6 In State v. Wilson (1997), 77 Ohio St. 3d 334, 336,673 N.E.2d 1347, 1349, the Ohio Supreme Court set forth the following principle of statutory construction: "In looking to the face of a statute or Act to determine legislative intent, significance and effect should be accorded every word, phrase, sentence and part thereof, if possible." At the very least, the sentencing factor in R.C. 2929.13 (B) (1) (d) is ambiguous, as it applies generally to offenders holding a position of trust or using their occupation to facilitate a crime. In such a circumstance, R.C.2901.04 (A) provides that "penalties shall be strictly construed against the state, and liberally construed in favor of the accused." I find that the evidence is clearly and convincingly insufficient to support a finding under R.C. 2929.13 (B) (1) (d). Accordingly, because no other sentencing factors apply, Flahive was not legally eligible for imposition. of a prison sentence and was eligible only for one of the non-prison terms in R.C. 2929.15 through 2929.18 that is consistent with R.C. 2929.13 (B) (2) (b). See Anderson's Ohio Criminal Practice Procedure (3 Ed. 1997), Senate Bill 2 and Senate Bill 269 Outline, Sections V (A) (3), (B), and (C). 6 According to David Diroll, Director, Ohio Criminal Sentencing Commission, the goal of "truth in sentencing" is definite sentences; supervision after prison for those who most need to be watched or helped; "a broader continuum of non-prisonsanctions for less threatening felons; and bad time to helpmaintain orders in prisons." (Emphasis supplied.) Felony Sentencing under Senate Bill 2 and Senate Bill 269 (Aug. 1, 1996), Section II (B) (2).

2021-10-01 07:52:33.074402+00

Onion

OPINION On June 2, 1978, appellant waived his right to trial by jury and entered pleas of guilty to two separate indictments, each of which charged him with burglary of a vehicle. Punishment in each case was assessed at imprisonment for three years. Retained counsel has filed a brief in which he has concluded that the appeals are wholly frivolous. Upon our examination of the records, however, we have found error which calls for reversal and which shall be considered as unassigned error in the interest of justice under Article 40.09(13), Vernon's Ann.C.C.P. The certificate of the court reporter found in the records approved by the trial judge states, " . . . the above and foregoing pages . . . constitute a full, true, accurate and complete transcript of the Statement of Facts, of all proceedings had in" the instant causes. An examination of the transcription reveals that the trial court totally failed to give any admonishment as required by Article 26.13, Vernon's Ann.C.C.P. See Acts 1977, 65th Leg., p. 748, ch. 280, sec. 1, effective August 29, 1977, and in effect at the time appellant's guilty pleas were taken. Although dealing with Article 26.13, supra (Acts 1975, 64th Leg., p. 909, ch. 341, sec. 3, effective June 19, 1975), prior to the 1977 amendment of that statute, the case of Kelley v. State, 573 S.W.2d 28 (Tex.Cr.App., 1978, on rehearing), controls the disposition of the instant cases. In the instant cases there is no showing that appellant was advised of the range of punishment attached to the offense of burglary of a vehicle, nor was it determined that the pleas were freely and voluntarily made, etc., as required by Article 26.13, supra. Under these circumstances, we are not faced with a question of whether there was substantial compliance with that statute, but with a situation of no compliance. The judgments are reversed and the causes are remanded.

2016-07-06 06:36:39.447686+00

OPINION {¶ 1} Symonette Moore pled no contest in the Montgomery County Court of Common Pleas to escape, in violation of R.C. 2921.34(A)(1), based on her failure to report to her parole officer on December 16, 2005. Moore was on parole for an aggravated robbery conviction. The court found her guilty and sentenced her to a mandatory term of two years in prison. Moore *Page 2 appeals from her conviction, raising two assignments of error, both which assert that R.C. 2921.34 is unconstitutional. For the following reasons, Moore's conviction will be affirmed. {¶ 2} As an initial matter, Moore acknowledges that her trial counsel did not file any pre-trial motions and that her challenges to the constitutionality of R.C. 2921.34 were not formally raised before the trial court. Although the trial court stated during the plea and sentencing hearing that it was aware that Moore was "going to pursue an appeal based upon [her] thoughts about the escape statute," the court did not articulate Moore's specific objections to the statute or make any ruling about R.C. 2921.34's constitutionality. {¶ 3} Despite these procedural deficiencies, Moore argues that her trial counsel's failure to specifically raise the constitutionality issue should not be fatal to her appeal. She emphasizes that "it appears that trial counsel was formulating a constitutional appeal * * * which preserved the issue of the unconstitutionality of R.C. 2921.34 for appeal." Alternatively, she maintains that, "given the breath, application, and its potential incarceration of innocent people, R.C.2921.34 warrants this court[']s review of the constitutionality of R.C. 2921.34." {¶ 4} We disagree. As Moore herself states, an objection to the constitutionality of a statute must be raised before the trial court and state the specific ground for the objection. "Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." State v. Awan (1986), 22 Ohio St.3d 120, 489 N.E.2d 277, syllabus. See, also, State v. Bey, 85 Ohio St. 3d 487, 502,1999-Ohio-283, 709 N.E.2d 484. Although the trial court was apparently aware that Moore had a challenge to the statute, Moore made no specific objection *Page 3 before the trial court and the trial court made no ruling for this court to review. Accordingly, Moore waived any challenge to the constitutionality of R.C. 2921.34. {¶ 5} Even if Moore's challenges to the constitutionality of R.C.2921.34 had been preserved, we would find them without merit. In her first assignment of error, Moore asserts that R.C. 2921.34 violates theEighth Amendment to the United States Constitution, which provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In her second assignment of error, she claims that the escape statute violates her right to equal protection, because it bases the severity of the offense on the level of the offender's original conviction. She argues that, as a result, "persons committing the same crime, or even a worse version of the crime of escape, but who have committed a different underlying crime will be punished less severely for the exact same conduct." We addressed and rejected both of these arguments in State v. Myers, Montgomery App. No. 21612, 2007-Ohio-2602. {¶ 6} The judgment of the trial court will be affirmed. FAIN, J. and DONOVAN, J., concur. *Page 1

2016-07-06 06:36:39.534804+00

OPINION {¶ 1} Appellant appeals the sentence rendered, by the Licking County Court of Common Pleas, following his pleas of guilty to three counts of trafficking in cocaine, one count possession of cocaine, one count possession of crack cocaine and one count possession of marijuana. The following facts give rise to this appeal. {¶ 2} On November 21, 2002, the Licking County Grand Jury indicted appellant, on the above six counts, following an investigation into drug trafficking at a residence located in Newark, Ohio. With the use of a confidential informant, law enforcement officials made controlled buys of crack cocaine. Several of the sales occurred in the vicinity of children. {¶ 3} Thereafter, law enforcement officials obtained a search warrant and searched the residence where the sales occurred. During the execution of the search warrant, law enforcement officials discovered marijuana and money believed to have been generated from appellant's sales of illegal drugs. {¶ 4} Following his indictment, appellant entered a plea of not guilty. However, on June 4, 2003, appellant withdrew his not guilty plea and entered guilty pleas to each count of the indictment. The trial court sentenced appellant to a prison term of five years. In doing so, the trial court imposed the maximum sentence of five years for Count 4, possession of cocaine, and Count 5, possession of crack cocaine. {¶ 5} Appellant timely filed a notice of appeal. However, on June 17, 2004, counsel for appellant filed a brief, pursuant to Anders v.California (1967), 386 U.S. 738, on the basis that there is no meritorious issue for appeal. Counsel for appellant also sought leave to withdraw from the case. In response to the filing of the Anders brief, on August 31, 2004, appellant filed a brief, pro se, raising two assignments of error for our consideration. {¶ 6} Thereafter, in April 2005, this Court permitted appellant's counsel to withdraw and ordered the trial court to appoint new counsel to represent him in this matter. The trial court appointed new counsel on April 8, 2005. Both parties waived oral argument and submitted this matter for decision. We will address the assignments of error set forth in theAnders brief, in appellant's pro se brief and the brief filed by appointed counsel on June 27, 2005. These assignments of error are as follows: Assignment of Error is Anders Brief {¶ 7} "I. WHETHER THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE FOR CERTAIN OFFENSES UPON APPELLANT LEODITUS SMITH (SMITH) AFTER HIS GUILTY PLEA TO THE ENTIRE INDICTMENT." Assignments of Error in Pro Se Brief {¶ 8} "I. THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT TO THE MAXIMUM SENTENCE WITHOUT MAKING THE PROPER FINDINGS SUPPORTED BY THE UNDERLYING REASONS AND WITHOUT A JURY FINDING OF THE FACTORS IN OHIO RE. (SIC) CODE ANN. § 2929.12(B-E), AS REQUIRED BY BLAKELY V. WASHINGTON (2004), 542 U.S. (SIC) 124 S. CT. 2531. {¶ 9} "II. THE TRIAL COURT ERRED, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION, WHEN IT IMPOSED CUMULATIVE PUNISHMENT FOR THE SAME OFFENSE." Assignments of Error in Appointed Counsel's Brief {¶ 10} "I. THE TRIAL COURT ERRED WHEN IT IMPOSED SENTENCE, AS IT RELIED ON FACTORS OTHER THAN THE APPELLANT'S PRIOR CRIMINAL RECORD. {¶ 11} "II. THE TRIAL COURT ERRED WHEN IT IMPOSED A SENTENCE NOT CONSISTENT WITH SENTENCES RECEIVED BY OTHER INDIVIDUALS CHARGED WITH SIMILAR OFFENSES. I {¶ 12} The Anders Brief, the First Assignment of Error, in appellant's pro se brief, and the First Assignment of Error in appointed counsel's brief challenge the trial court's imposition of maximum sentences for Counts 4 and 5 of the indictment. The Anders brief concludes the record contains substantial evidence to support the trial court's decision to impose the maximum sentence. {¶ 13} However, in his pro se brief, appellant maintains the trial court did not make the required findings necessary to impose the maximum sentences on Counts 4 and 5. Appellant and appointed counsel also contend the imposition of maximum sentences violated the United States Supreme Court's decision in Blakely v. Washington (2004), 542 U.S. 296. We disagree with these arguments. {¶ 14} An appellate court reviews a felony sentence under a clear and convincing evidence standard of review. We may not disturb a sentence unless we clearly and convincingly find that the record does not support the trial court's findings or that the sentence is otherwise contrary to law. Clear and convincing evidence is that evidence "* * * which will produce in the mind of the trier of facts a firm belief or conviction as to the facts to be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. {¶ 15} Pursuant to R.C. 2929.14(B), a trial court is required to impose the shortest prison term, for an offense, unless the court makes one of the following findings: (1) the offender was serving a prison term at the time of the offense; (2) the offender has previously served a prison term; (3) the shortest prison term will demean the seriousness of the offender's conduct; (4) the shortest prison term will not adequately protect the public from future crime by the offender or others. {¶ 16} However, a trial court is not required to make these findings, under R.C. 2929.14(B), when a court imposes the maximum sentence for an offense. The Ohio Supreme Court explained this in State v. Evans,102 Ohio St. 3d 240, 2004-Ohio-2659, wherein the Court held that "R.C.2929.14(B) is inapplicable where a maximum sentence is imposed for a single offense, provided that the record reflects that the court based the sentence upon at least one R.C. 2929.14(C) criterion." Id. at syllabus. {¶ 17} In the case sub judice, pursuant to R.C. 2929.14(C), the trial court made the requisite findings in support of its decision to impose the maximum sentence for Counts 4 and 5 of the indictment. This statute provides: {¶ 18} "Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section." {¶ 19} At the sentencing hearing, the trial court essentially found that appellant posed the greatest likelihood of committing future crimes based upon his criminal history. The court stated as follows in response to a comment, by the prosecutor, informing the trial court that it needed to set forth its reasons, on the record, for imposing the maximum sentences: {¶ 20} "Okay. The — on that basis I would use Mr. Smith's record of prior convictions, which is — and prior arrests. His most recent felony conviction from 1999 with a one-year sentence; and his history of drug-related offenses, which would appear to date through an arrest in December of '94 for aggravated trafficking and drug abuse; February of 1995 for aggravated trafficking abuse; felony drug abuse from April of '97. {¶ 21} "And that includes a one-year term for possession of drugs from Franklin County, which commenced in April of 1999. And that would be my basis for the sentence." Tr. Sentencing Hrng., June 4, 2003, at 18. {¶ 22} Further, in a judgment entry filed on June 5, 2003, the trial court indicated that: {¶ 23} [I]t "* * * has considered the purposes and principles of sentencing set forth in R.C. 2929.11, and the recidivism and seriousness factors listed in R.C. 2929.12. In support of its decision to impose the maximum sentence, pursuant to R.C. 2929.14(C) the Court finds: " * * * {¶ 24} "X the defendant poses the greatest likelihood of committing future crimes; " * * *" {¶ 25} These findings, by the trial court, concerning appellant's prior criminal history support the court's conclusion that appellant poses the greatest likelihood of committing future crimes. Accordingly, we do not find, by clear and convincing evidence, the trial court erred when it sentenced appellant to the maximum sentence on Counts 4 and 5 of the indictment. {¶ 26} Appellant also maintains, under this assignment of error, the trial court's decision to impose the maximum sentence on two of the counts contained in the indictment violated the United State Supreme Court's decision in Blakely. The Blakely decision stands for the proposition that any fact extending the defendant's sentence beyond the maximum authorized by the jury's verdict would have been considered an element of an aggravated crime and therefore, the domain of the jury. If the sentence is increased beyond the maximum range allowed for the offense, then the facts to support that increase must be presented to a jury, under the beyond a reasonable doubt standard, regardless of whether the state labels such fact as a "sentencing factor" or an "element" of the offense. State v. Henry, Delaware App. No. 2004-CAA-06-047,2004-Ohio-6711, at ¶ 11. {¶ 27} This Court specifically rejected the argument made by appellant in State v. Iddings, (Dec. 3, 2004), Delaware App. No. 2004CAA06043. InIddings, we reviewed the Blakely decision and found it "do[es] not obviate entirely judicial discretion in sentencing a criminal defendant. Rather, the trial court's maintain discretion to select a sentence within the range prescribed by the legislature." Id. at ¶ 12. {¶ 28} This Court further explained, in Iddings, that: {¶ 29} "None of the factors set forth in either 2929.13(B) or 2929.14(B) subject an offender to a prison term in excess of what the law provides as the maximum sentence for a felony of the fourth or fifth degree. The Legislature has simply codified factors that sentences (sic) courts have always considered when deciding to sentence a defendant within the range permitted by statute. The fact that the legislature has chosen certain of the traditional sentencing factors and dictated the precise weight to be given those factors does not evade the requirements of the Fifth and Sixth Amendments. * * *." Id. at ¶ 20-¶ 21. {¶ 30} Accordingly, the assignment of error in the Anders brief, appellant's First Assignment of Error, in his pro se brief, and appointed counsel's First Assignment of Error are overruled. II {¶ 31} The Second Assignment of Error we will address is the Second Assignment of Error set forth by appellant in his pro se brief. Appellant contends the trial court erred, in violation of the double jeopardy clause, when it imposed cumulative punishment for the same offenses. We disagree. {¶ 32} In this assignment of error, appellant raises the issue of whether Counts 4 and 5 of the indictment are allied offenses of similar import. R.C. 2941.25(A) addresses multiple counts and provides as follows: {¶ 33} "Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." {¶ 34} Further, in State v. Rance, 85 Ohio St. 3d 632, 1999-Ohio-291, the Ohio Supreme court stated the test for determining whether crimes are allied offenses of similar import. The Court held as follows: {¶ 35} "If the elements of the crimes `correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import.'" [Citations omitted.] Id. at 636. {¶ 36} A review of the record in this matter establishes that appellant did not raise this issue before the trial court. In State v.Comen (1990), 50 Ohio St. 3d 206, the Ohio Supreme Court refused to address the issue of whether aggravated burglary and receiving stolen property were crimes of similar import because the defendant failed to object to the convictions or sentencing at the trial court level. Id. at 211. The Court stated that the defendant's failure to raise the issue in the trial court constituted a waiver of the claimed error. Id. For this same reason, in the case sub judice, we decline to address the argument raised by appellant. {¶ 37} Appellant's Second Assignment of Error, in his pro se brief, is overruled. III {¶ 38} In the Second Assignment of Error, in appointed counsel's brief, appellant contends the trial court imposed a sentence disproportionate to sentences received by other individuals for similar crimes. We disagree. {¶ 39} A review of the record indicates appellant did not raise this argument at the trial court level. Recently, in State v. Patterson, Cuyahoga App. No. 84803, 2005-Ohio-2003, the Eighth District Court of Appeals held that: {¶ 40} "* * * [I]n order to support a contention that his or her sentence is disproportionate to sentences imposed upon other offenders, a defendant must raise this issue before the trial court and present some evidence, however minimal, in order to provide a starting point for analysis and to preserve the issue for appeal. State v. Breeden, Cuyahoga App. No. 84663, 2005-Ohio-510, ¶ 80, citing State v. Woods, Cuyahoga App. No. 82789, 2004-Ohio-2700, ¶ 53-54. Appellant presented no such evidence to the trial court, and there is nothing in the record to indicate that this sentence is impermissibly disproportionate to sentences imposed on similar offenders with similar offenses." Id. at ¶ 12. {¶ 41} Accordingly, in the matter currently before the Court, since appellant failed to raise this argument before the trial court, the issue is waived for purposes of appeal. {¶ 42} Appellant's Second Assignment of Error, in appointed counsel's brief, is overruled. {¶ 43} For the foregoing reasons, the judgment of the Court of Common Pleas, Licking County, Ohio, is hereby affirmed. By: Wise, J. Farmer, J., concurs. Hoffman, P.J., concurs separately.

2021-10-01 07:52:36.909844+00

Robinson

Plaintiff, Billie Sue Gayler, instituted suit to set aside a ruling of the Industrial Accident Board awarding death benefits under the Workers' Compensation Act for the death of her son, Donald David Gayler. One-half of the total benefits was awarded to plaintiff Billie Sue Gayler; the remaining half was awarded to Donald Eugene Renfro, the deceased's father. Plaintiff sought recovery of the one-half benefits awarded the father. The trial court, in an interpleader suit by the insurance carrier, entered judgment that plaintiff take nothing and the father recover his one-half benefits. Plaintiff appeals. Affirmed. The evidence was stipulated to by the parties. The natural parents of the deceased are plaintiff, Billie Sue Gayler, and Donald Eugene Renfro. (Donald Eugene Renfro is defendant in interpleader and will be referred to in this opinion as defendant.) Plaintiff and defendant were divorced in 1953. Deceased did not see his father after the age of seven years. Deceased had never married. Deceased was killed on February 26, 1976. On April 26, 1976, the first claim for workers' compensation benefits was filed. This claim listed only Billie Sue Gayler under "names and addresses of beneficiaries." The final paragraph of the claim contained the recitation: "This claim for compensation, with respect to such injury and because of the death of the deceased, is made in behalf of and for each and all of the legal Beneficiaries of the deceased, as well as by and for the undersigned, he herein acting for himself and such legal Beneficiaries." It is stipulated that the claim was settled by a compromise settlement agreement. At the first pre-hearing conference on July 11, 1976, one-half of the total death benefits was awarded to plaintiff pursuant to the agreement. Above the endorsement on the check issued by the insurance company to plaintiff as payment under the settlement agreement was written: "Endorsement of this draft by the parties below does not waive any portion of any benefits as yet unpaid, if any, relating to said claim." *Page 913 On July 30, 1976, plaintiff filed the second claim for workers' compensation benefits. This claim listed Billie Sue Gayler and Donald Eugene Renfro as beneficiaries, but recited that it was filed only on behalf of Billie Sue Gayler. On January 28, 1977, the second pre-hearing conference was held and the Board ordered one-half of the total benefits be paid to Donald Eugene Renfro. This order was made final at the formal hearing. Plaintiff gave notice that she would not abide by the ruling of the Board, and filed suit against the insurance carrier to recover the one-half benefits ordered paid to defendant. The insurance carrier, the original defendant, filed an interpleader action and tendered the one-half of the benefits still in question into the registry of the court. Judgment was rendered for the insurance company on its interpleader suit. No complaint is made of that action. Plaintiff appeals from the portion of the judgment finding that defendant was the proper beneficiary of the disputed one-half of the benefits. Plaintiff contends that Donald Eugene Renfro failed to file a claim with the Industrial Accident Board within the required time. The workers' compensation statute requires that, where injury resulted in death of the employee, a claim for compensation must be filed by his beneficiaries within six months after his death. Tex.Rev.Civ.Stat.Ann. art. 8307, § 4a (Vernon 1967). A claim for compensation filed with the Industrial Accident Board, in the form prescribed by law, gives the Board full jurisdiction to determine all issues of fact and law arising on the claim and brings before the Board all statutory claimants. Commercial Standard Ins. Co. v. Austin, 128 S.W.2d 836, 838 (Tex.Civ.App.-Beaumont 1939, writ dism'd judgmt cor.); Traders General Ins. Co. v. Boysen, 123 S.W.2d 1016, 1027 (Tex.Civ.App.-Beaumont 1939, writ dism'd judgmt cor.). The statute does not require that each beneficiary file a claim; a claim filed by one beneficiary on behalf of himself and other beneficiaries is sufficient to invoke the jurisdiction of the Board. Pruitte v. Ocean Accident Guarantee Corp., 40 S.W.2d 254, 258 (Tex.Civ.App.- Texarkana), Rev'd on other grounds, 58 S.W.2d 41 (Tex.Comm'n App. 1933). The Board acquires jurisdiction over a beneficiary when two factors are satisfied: (1) knowledge by the Board of the beneficiary's existence, and (2) a timely claim filed on behalf of that beneficiary or on behalf of all beneficiaries. See Texas Employers' Ins. Ass'n v. Williams, 57 S.W.2d 218 (Tex.Civ.App.-Dallas 1933, no writ); Traders General Ins. Co. v. Boysen, supra; Federal Underwriters Exchange v. Walker, 134 S.W.2d 388 (Tex.Civ.App.-Austin 1939, writ dism'd by agr.). See also Security Union Ins. Co. v. Reed, 42 S.W.2d 494 (Tex.Civ.App.-Beaumont 1933, no writ); Consolidated Underwriters v. Adams, 140 S.W.2d 221 (Tex.Civ.App.-Texarkana 1940, writ dism'd judgmt cor.). In the case at bar the first claim was tendered on behalf of all the beneficiaries, the second informed the Board who the beneficiaries were. The jurisdictional requirements were satisfied. We overrule plaintiff's next contention that there is no evidence to support a finding that the defendant is entitled to one-half of the death benefits. Death benefits, under the workers' compensation statute, are paid to parents without regard to the question of dependency. Tex.Rev.Civ.Stat.Ann. art. 8306, § 8a (Vernon Supp. 1978-1979). It is undisputed that Donald Eugene Renfro was the natural father of deceased. There is another reason why plaintiff cannot recover. The execution, filing, and approval of the compromise agreement between plaintiff and Twin City Fire Insurance Company bars further recovery by her. It is well established that a compromise settlement agreement, when approved by the Board, is binding upon the parties to it unless and until the agreement is lawfully set aside. Moore v. Lumbermen's Mutual Casualty Co., 533 S.W.2d 171, 173 (Tex.Civ.App.-Amarillo *Page 914 1976, writ ref'd n.r.e.). The bar arose at the time the compromise was approved; therefore, we overrule the plaintiff's contention that the language written above her endorsement on the check pursuant to the settlement prevented the settlement from being a bar to future recovery. The foregoing holdings are dispositive of this appeal. We do not reach plaintiff's remaining points of error. The judgment of the trial court is affirmed.

2016-07-06 06:36:39.576456+00

Quillin

Defendant, Ingrid G. Pace, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations. Plaintiff, John W. Pace, has filed a cross-appeal. The trial court granted plaintiff-husband a divorce despite the fact that a Texas court had previously adjudged him an incompetent and had appointed defendant-wife as his guardian. Because the Texas judgment is entitled to full faith and credit, we reverse and remand. A court in El Paso County, Texas, found the plaintiff to be incompetent in April 1984. The Texas court appointed defendant as his legal guardian. This appointment presumably continued to be in effect throughout the entire period of these proceedings. On January 30, 1985, plaintiff brought suit for divorce in his own name in Franklin County, Ohio. Defendant moved to dismiss the action, contending that, as an incompetent, plaintiff could not maintain the action. Defendant also argued that the trial court could not make its own determination of competency but was bound to give full faith and credit to the Texas decree. The trial court overruled the motion to dismiss and held a hearing to determine plaintiff's competency. The trial court found plaintiff to be competent and, after a hearing on the merits, granted him a divorce. Defendant appeals from the trial court's having allowed the action to proceed and its failure to award her alimony should jurisdiction be proper. Plaintiff also filed a cross-appeal which challenges various substantive aspects of the divorce decree. Defendant's first three assignments of error read as follows: "I. The lower court erred in finding that the plaintiff was not incompetent. "II. The lower court erred in failing to accord full faith and credit to the Texas adjudication that plaintiff is incompetent. *Page 48 "III. The lower court erred in holding that it had in personam jurisdiction over the defendant and the plaintiff." In Ohio, an incompetent ward cannot maintain an action in his own name as long as the adjudication of incompetency continues but, instead, must be represented by his guardian. Murphy v.Murphy (1948), 85 Ohio App. 392, 40 Ohio Op. 254, 87 N.E.2d 102; 53 Ohio Jurisprudence 3d (1984) 66, Guardian and Ward, Section 62. For an example of a divorce action brought by a guardian, seeBoyd v. Edwards (1982), 4 Ohio App. 3d 142, 4 OBR 234,446 N.E.2d 1151. Nor may a ward sue his own guardian while the relationship continues. 53 Ohio Jurisprudence 3d, supra, Section 219, at 212. Defendant contends that the trial court erred by allowing plaintiff to maintain an action for divorce in light of the Texas court's adjudication of incompetency. We agree. The judgment of another state's court as to the imposition of a guardianship is entitled to full faith and credit under the Constitution of the United States. Toledo Trust Co. v. NationalBank of Detroit (1976), 50 Ohio App. 2d 147, 4 Ohio Op. 3d 125,362 N.E.2d 273. Therefore, the trial court erred in making its own determination of plaintiff's competency to bring the action. Accordingly, defendant's first three assignments of error are sustained. Defendant's fourth assignment of error reads as follows: "IV. If the lower court is found to have had jurisdiction, the lower court abused its discretion in not awarding alimony necessary for the support of the wife." Plaintiff asserts four assignments of error on cross-appeal (although not so designated), which read as follows: "I. The divorce decree was inequitable and unreasonable where the child support order exceeded the monthly expenses for the children, where the social security disability payments and the wife's income and earning ability were not given sufficient weight, where the wife was awarded all of the assets of the marriage and her attorney's fees as costs, where the court ordered a change of beneficiaries on the government life insurance policies, and the husband was a totally disabled veteran. "II. The trial [sic] erred in failing to make a complete distribution of property. "III. The lower court's order regarding the beneficiaries to his government insurance policies is contrary to federal law and the United States Constitution. "IV. The court exceeded its authority in ordering the Veterans Administration to withhold child support payment and in making orders regarding the payment of child support out of disability benefits." Both defendant's fourth assignment of error and all of plaintiff's cross-assignments of error deal with substantive aspects of the divorce decree and are rendered moot by our disposition of defendant's first three assignments of error and, therefore, are overruled. For the foregoing reasons, the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this opinion. Judgment reversed and cause remanded. MCCORMAC and NORRIS, JJ., concur. QULLLIN, J., of the Ninth Appellate District, sitting by assignment in the Tenth Appellate District. *Page 49

2016-07-06 06:36:40.784683+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. {¶ 1} 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). {¶ 2} Defendant-appellant, Estelle G. Cummings,1 appeals the judgment of the Hamilton County Juvenile Court granting permanent custody of her minor child to the plaintiff-appellee, Hamilton County Department of Jobs and Family Services (HCJFS). For the following reasons, we affirm the judgment of the juvenile court. {¶ 3} Cummings is the mother of Heavenli Cummings, who was born on January 12, 2000. Soon after Heavenli was born, HCJFS sought and obtained an order temporarily removing Heavenli from Cummings's home. In June 2001, HCJFS filed a motion for permanent custody based upon its investigation of Cummings's household, her psychological state, and the care that she had been providing to Heavenli. A hearing was held before a magistrate, and following a hearing on Cummings's objections, the juvenile court adopted the decision of the magistrate awarding permanent custody to HCJFS. {¶ 4} In her first assignment of error, Cummings initially argues that the evidence did not demonstrate that she had failed to remedy the conditions that had caused Heavenli to be removed from her care. In essence, she argues that the juvenile court erred in inquiring into concerns that arose after the initial complaint. We find no merit in this argument. The juvenile court was required to determine whether permanent custody was in the best interest of the child pursuant to R.C.2151.414(B)(1). In making this determination, the court was required "to consider all relevant factors."2 Therefore, we find no error in the court's inquiry into matters that came to the attention of HCJFS after the initial phase of the investigation. {¶ 5} Cummings also maintains that the juvenile court erred because, in ruling on her objections, it chose to hear additional evidence and did not consider the evidence adduced before the magistrate that contradicted the magistrate's findings. This argument is not persuasive. The juvenile court, in considering the objections to the magistrate's decision, did not receive additional evidence. Moreover, there is nothing in the juvenile court's judgment indicating that it had failed to weigh all of the evidence presented to the magistrate. {¶ 6} Cummings also argues that the evidence did not support the juvenile court's order terminating her parental rights. A finding that the termination of parental rights is in the best interest of the child must be supported by clear and convincing evidence.3 Clear and convincing evidence is more than a mere preponderance of the evidence; it is evidence sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.4 A judgment supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence.5 {¶ 7} In the case at bar, we hold that the trial court's determination was in accordance with the evidence. In February 2000, Cummings and Heavenli were residing with Cummings's mother. A representative of HCJFS discovered one-month-old Heavenli in dirty clothing and a soiled diaper, lying on a blanket on the kitchen floor. The oven door was open to provide heat. There was no furniture, except for a mattress on the floor where Cummings, her mother, and Heavenli slept. Heavenli was underweight, suffered from blisters due to diaper rash, and had not been seen by a physician since birth. {¶ 8} Cummings agreed to permit the juvenile court to award temporary custody to HCJFS. Accordingly, she was ordered to undergo psychological testing, to submit to urine screens, to find housing separate from her mother's residence and to complete parenting classes. Thereafter, HCJS worked with Cummings for two years pursuant to a plan for reunification. {¶ 9} During that period, Cummings was psychologically assessed as being mildly mentally retarded. According to the assessment, Cummings had a schizoid personality disorder and was excessively attached to her mother. Nonetheless, Cummings viewed her lifestyle as normal and did not see any reason to change it. She also did not appreciate the need to remove Heavenli from the home of her alcoholic grandmother. At least one psychologist opined that Cummings could not adequately parent Heavenli even if she had her own living accommodations. {¶ 10} Cummings argues that she complied with the reunification plan that HCJFS had formulated, but the record does not support her contention. Although Cummings cooperated with HCJFS in that she attended parenting classes, she was unable to complete the parenting program because the grandmother refused to permit in-home sessions. Cummings also failed to participate in outpatient substance-abuse treatment after a positive test for marijuana. Similarly, while Cummings regularly participated in supervised visitation with Heavenli, she arrived at a number of visits with alcohol on her breath. Finally, the record demonstrates that HCJFS worked with Cummings to find independent housing and to find regular, steady employment so that she could qualify for subsidized housing, but that Cummings had failed to follow through with the attempts to place her in either housing or employment. {¶ 11} Cummings also claims that the juvenile court should have taken into consideration the fact that she had remarried and no longer resided with her mother. But those facts did not come to the juvenile court's attention until the hearing on Cummings's objections to the magistrate's decision and then only by way of a representation by her counsel. Moreover, as we have already noted, there was evidence in the record that Cummings would not be a suitable parent even if she were to maintain a separate residence. Under these circumstances, we find no error in the trial court's conclusion that the termination of parental rights was in the best interest of the child, and the first assignment of error is overruled. {¶ 12} In her second assignment of error, Cummings contends that she was denied the effective assistance of trial counsel because counsel did not request that Cummings undergo an independent psychological evaluation. To establish ineffective assistance of counsel, the parent must show that counsel's performance was deficient and that the deficient performance resulted in prejudice.6 In the case at bar, Cummings cannot demonstrate prejudice, because there is no indication that an independent evaluation would have been favorable to her. The second assignment of error is overruled, and the judgment of the juvenile court is affirmed. {¶ 13} 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. Doan, P.J., Hildebrandt and Gorman, JJ. 1 Throughout this judgment entry, "Cummings" will denote Estelle Cummings. 2 R.C. 2151.414(D). 3 R.C. 2151.414(B)(1). 4 See In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368,481 N.E.2d 613. 5 See In re Harris, 1st Dist No. C-020512, 2003-Ohio-672. 6 In re Heston (1998), 129 Ohio App.3d 825, 827, 719 N.E.2d 93.

2016-07-06 06:36:40.872094+00

Defendant-appellant, Ronald Ledbetter, appeals a decision of the Clermont County Court of Common Pleas, Juvenile Division, denying him visitation with his son, Brandon. Appellant and plaintiff-appellee, Dena Richter, were ages seventeen and fifteen, respectively, when Brandon was born on March 23, 1989. The parties were never married. Initially the parties agreed to place custody of Brandon with appellee's parents. For approximately the first year of Brandon's life, appellant visited and kept in contact with Brandon and appellee. Appellant asserts that he was eventually denied access to Brandon and did not pursue visitation until he could afford a lawyer who filed a motion for visitation on January 19, 1995. On February 9, 1995, appellee filed a motion to have Brandon returned to her custody. An agreed entry transferring custody to appellee from her parents was filed the same date. On April 19, 1995, a hearing was held on appellant's motion for visitation. On July 11, 1995, the magistrate filed a report recommending that appellant's motion for visitation be denied and ordering an increase in child support. The magistrate found that appellant "had no contact with the child since he was approximately 10 months old" and also found that the "father has the burden of proving that visitation with the minor child is in the best interest of the child." The trial court adopted the magistrate's order and no appeal was taken from this decision. On July 9, 1996, appellant filed a motion for visitation and relief from the July 11, 1995 decision. A hearing was held and the magistrate denied appellant's motion for relief, but granted a hearing on the motion for visitation. Following a hearing, appellant's motion for visitation was denied by the magistrate, who found that "the best interests of the child mandates a continuation of the stable happy environment in which he finds himself without having the introduction of a stranger to complicate his life." Appellant filed objections to the magistrate's report. The trial court affirmed the magistrate's decision and appellant filed the instant appeal arguing three assignments of error. Assignment of Error No. 1: THE TRIAL COURT ERRED BY PLACING THE BURDEN ON APPELLANT TO SHOW A CHANGE IN CIRCUMSTANCES SINCE THE APRIL 1995 ORDER AND THAT A MODIFICATION OF THE PRIOR ORDER WOULD BE IN THE BEST INTEREST OF THE CHILD. Appellant sets forth two issues in his first assignment of error; (1) the trial court erred by not placing the burden of proof of best interest on the person opposing visitation and (2) for a modification of visitation there is no need to show a change of circumstances. Pursuant to R.C. 3109.12(A), a juvenile court has the authority to grant a man declared a father in a parentage action reasonable visitation and companionship rights. In determining whether to grant such rights, the court must determine what is in the best interest of the child. R.C. 3109.12(B). Therefore, the court is required to consider all relevant factors, including, but not limited to, the fifteen factors set forth in R.C.3109.051(D).1 A court is vested with broad discretion in determining the visitation rights of a nonresidential parent. Appleby v. Appleby (1986), 24 Ohio St.3d 39, 41. Accordingly, while a trial court's orders with respect to visitation must be just, reasonable and consistent with the best interest of the child, an appellate court must review a trial court's decision with respect to visitation with deference and will reverse only if the trial court abused its discretion. King v. King (1992), 78 Ohio App.3d 599. An abuse of discretion connotes more than an error of law or judgment and implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. A nonresidential parent's right of visitation with his children is a natural right and should be denied only under extraordinary circumstances. Pettry v. Pettry (1984), 20 Ohio App.3d 350,352. Extraordinary circumstances would include the unfitness of the noncustodial parent, or a showing by clear and convincing evidence that visitation presents a significant risk of serious emotional or physical harm to the child. Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 712-713. In his first issue, appellant argues that the trial court erred by not placing the burden of proof of best interest on the party opposing visitation. We agree. In the June 6, 1997 entry, the magistrate found that "the burden is on the defendant to show a (1) change in circumstances since the April 1995 order, (2) and that a modification of the prior order would be in the best interests of the child." The magistrate found that appellant did not meet these burdens and denied appellant's motion for visitation. Appellant argues that the burden of proof is on the party opposing visitation. Pettry v. Pettry, 20 Ohio App.3d 350. In Pettry, the mother and father were divorced and father was seeking to have visitation with his son enforced. The court in Pettry found that [t]he burden of proof is on the party contesting visitation privileges, and absent a showing of extraordinary circumstances, the trial court may fashion any just and reasonable visitation schedule. Id. at 352. On the contrary, appellee argues that In re Connolly (1975),43 Ohio App.2d 38, is persuasive authority that the burden of proof should be placed on the father. In re Connolly sets forth the proposition that the father of a child born out of wedlock is not entitled to visitation with such child over the objections of the mother, who has legal custody, unless he clearly establishes that such would be in the best interest of the child. We find no reason to impose a different burden of proof on a father who was never married to the mother of his child versus a father who was married to the mother of his child. Accordingly, we find the reasoning of Pettry to be compelling and adopt the holding that the burden of proof that visitation would not be in the child's best interest is on the person opposing visitation. We find that the trial court erred in placing the burden on appellant to show that visitation with Brandon would be in Brandon's best interest. In his second issue, appellant argues that the trial court erred in placing the burden on him to show that a change of circumstances had occurred since his last motion for visitation was denied. In Moore v. Moore (Dec. 29, 1997), Madison App. No. CA97-04-016, unreported, this court held that R.C. 3109.051 governs visitation and does not require proof of changed circumstances. R.C. 3109.051 requires only a showing that the modification of visitation would be in the child's best interest. R.C. 3109.051 provides throughout that it applies to visitation determinations made pursuant to R.C. 3109.051, R.C. 3109.11 or R.C. 3109.12. Accordingly, there is no requirement to show a change of circumstances in any request to change visitation rights. After carefully reviewing the evidence presented in this case, we find that the trial court abused its discretion in denying appellant's motion for visitation. The burden of proof that it would not be in Brandon's best interest to visit with his father should properly be placed with appellee. Furthermore, there is no requirement to show a change of circumstances regarding a request for modification of visitation. Therefore the trial court erred in denying appellant's motion for visitation. Appellant's first assignment of error is sustained. Assignment of Error No. 2: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT VISITATION WITH HIS SON AND PREVENTING APPELLANT FROM INTRODUCING EVIDENCE RELEVANT TO BOTH APPELLEE'S CREDIBILITY AND WHETHER OR NOT VISITATION SHOULD BE ALLOWED TO TAKE PLACE. Assignment of Error No. 3: THE DECISION OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Based on our decision in the first assignment of error, appellant's second and third assignments of error are moot and will not be addressed pursuant to App. R. 12 (A)(1)(C). Judgment reversed and remanded for hearing to be conducted in accordance with this decision. YOUNG, P.J., WALSH and POWELL, JJ., concur. 1 R.C. 3109.051 provides in pertinent part: In determining whether to grant companionship or visitation rights to a parent, grandparent, relative or other person pursuant to this section or section 3109.11 or 3019.12 of the Revised Code, in establishing a specific visitation schedule, and in determining other visitation matters under this section or section 3109.11 or 3109.12 of the Revised Code, the court shall consider all of the following factors: (1) The prior interaction and interrelationships of the child with his parents, siblings, and other persons * * *; (2) The geographic location of the residence of each parent and the distance between those residences * * *; (3) The child's and the parents' available time, including, but not limited to each parent's employment schedule, the child's school schedule, and the child's and the parents' holiday and vacation schedule; (4) The age of the child; (5) The child's adjustment to home, school, and community; (6) If the court has interviewed the child in chambers, * * * regarding the wishes and concerns of the child as to visitation by the parent who is not the residential parent * * *; (7) The health and safety of the child; (8) The amount of time that will be available for the child to spend with siblings; (9) The mental and physical health of all parties; (10) Each parent's willingness to reschedule missed visitation and to facilitate the other parent's visitation rights * * *; * * * (15) Any other factor in the best interest of the child.

2016-07-06 06:36:40.968003+00

OPINION Defendant-appellant, Donald L. Higgins, appeals the decision of the Clermont County Court of Common Pleas classifying him as a sexual predator pursuant to R.C. Chapter 2950. For the reasons that follow, we affirm the decision of the trial court. On July 16, 1992, appellant pled guilty to three counts of rape of a person less than thirteen years of age in violation of R.C.2907.02(A)(1)(b). The trial court sentenced appellant on each charge to an indefinite term of ten to twenty-five years in prison, to be served consecutively. On December 9, 1997, the Ohio Department of Rehabilitation and Correction filed a recommendation that the trial court adjudicate appellant to be a sexual predator. The trial court held an adjudicatory hearing on June 21, 1999. Assistant Prosecuting Attorney Gregory Chapman provided the trial court with transcripts of appellant's plea proceeding and sentencing hearing, and testified generally to the nature of the appellant's conduct with the victim. The victim was appellant's seven-year-old son. Appellant was forty-four years old at the time of the conduct. Appellant performed fellatio on his child twice and the child engaged in fellatio with appellant on one occasion. At the original plea hearing, the state noted that there were allegations that appellant had also engaged in sexual activity with his youngest son. Mrs. Higgins, appellant's wife and the victim's mother, apparently corroborated these allegations in a written victim impact statement that she submitted to the court. According to the record, Mrs. Higgins' statement was integrated into appellant's presentence investigation. On June 24, 1999, the trial court filed its decision finding that appellant is a sexual predator as defined by R.C. Chapter 2950. From the decision of the trial court, appellant appeals, raising two assignments of error. Assignment of Error No. 1: R.C. CHAPTER 2950 VIOLATES THE OHIO CONSTITUTION. In his first assignment of error, appellant contends that R.C. Chapter 2950, Ohio's "Megan's Law," denies him his inalienable rights under Article I, Section 1, of the Ohio Constitution. The Supreme Court of Ohio has found that the registration, verification, and notification provisions of R.C. Chapter 2950 are narrowly tailored to serve the legitimate purpose of the state's police powers, and that the provisions do not unreasonably infringe upon the rights of sexual predators. State v. Williams (2000), ___ Ohio St.3d ___, Ohio LEXIS 813 at *70. The first assignment of error is overruled. Assignment of Error No. 2: THE TRIAL COURT LACKED CLEAR AND CONVINCING EVIDENCE TO CLASSIFY APPELLANT A SEXUAL PREDATOR. In his second assignment of error, appellant argues that the state presented insufficient evidence for the trial court to find him a sexual predator. Appellant also maintains that the trial court inappropriately relied on the transcripts from his plea and sentencing hearings because the state did not properly place them into evidence during the adjudicatory hearing. In addition, appellant argues that the trial court erred by relying on the victim impact statement written by appellant's wife. In the context of a challenge to the sufficiency of the evidence, "sufficiency" is a term of art meaning that legal standard which is applied to determine whether the case may go the jury or whether the evidence is legally sufficient to support the [judgment] as a matter of law. * * * In essence, sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. When the evidence pertains to specific statutory findings which the trial court must make, the reviewing court must look to see whether the trial court followed the enumerated factors in making its determination, or whether the trial court abused its discretion by deviating from the statutory criteria. See In reWilliam S. (1996), 75 Ohio St.3d 95, 99. Pursuant to R.C. 2950.09(C)(2)(b), a determination that an offender is a sexual predator must be supported by clear and convincing evidence. 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, paragraph three of the syllabus. While clear and convincing evidence is "more than a mere preponderance" of the evidence, it is less than evidence "beyond a reasonable doubt." State v. Danby (1983), 11 Ohio App.3d 38, 41, citing Cross, 161 Ohio St. at 477. We must review the record to determine whether appellee presented evidence sufficient to meet its burden of production: clear and convincing evidence that the defendant is a sexual predator. In sexual predator adjudications, this review focuses on whether evidence was presented relating to the factors listed in R.C. 2950.09(B)(2). R.C. 2950.09(B)(2) states: In making a determination under divisions (B)(1) and (3) of this section as to whether an offender is a sexual predator, the judge shall consider all relevant factors, including, but not limited to, all of the following: (a) The offender's age; (b) The offender's prior criminal record regarding all offenses, including, but not limited to, all sexual offenses; (c) The age of the victim of the sexually oriented offense for which sentence is to be imposed; (d) Whether the sexually oriented offense for which sentence is to be imposed involved multiple victims; (e) Whether the offender used drugs or alcohol to impair the victim of the sexually oriented offenses or to prevent the victim from resisting; (f) If the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense, and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders; (g) Any mental illness or mental disability of the offender; (h) The nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; (i) Whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made one or more threats of cruelty; (j) Any additional behavioral characteristics that contribute to the offender's conduct. Neither party to a sexual predator classification hearing is required to present new evidence or call and examine witnesses. All that is required is that the parties are given the opportunity to do so. R.C. 2950.09(B)(1). The Ohio Rules of Evidence do not strictly apply to sexual predator adjudication hearings. State v. Cook (1998), 83 Ohio St.3d 404, 425. The trial judge may use reliable hearsay such as a presentence investigation report in making the sexual predator classification. Id. The trial court may also rely upon victim impact statements. See id. at 424; State v. Southerland (Dec. 30, 1999), Butler App. No. CA99-01-013, unreported; State v.Parker (Nov. 19, 1999), Columbiana App. No. 98-CO-76, unreported. After evidence is presented, the trial court is required to consider the factors enumerated in R.C. 2950.09(C)(2)(b) in making its determination. In reviewing these factors and any other relevant characteristics under R.C. 2950.09(B)(2)(j) the trial court may look into the defendant's past behavior. State v.Naegele (Jan. 12, 1998), Clermont App. No. CA97-04-043, unreported, at 5, affirmed, 84 Ohio St.3d 19. The trial court is not required to find that the evidence presented supports a majority of the factors listed in R.C. 2950.09(B)(2). State v.Fugate (Feb. 2, 1998), Butler App. No. CA97-03-065, unreported, at 7. In fact, the trial court may rely upon one factor more than another, depending upon the circumstances of the case. State v.Bradley (June 19, 1998), Montgomery App. Nos. 16662 and 16664, unreported. Furthermore, a single conviction may support a finding that a defendant is a sexual predator in certain cases. See State v. Nicholas (Apr. 6, 1998), Warren App. Nos. CA97-05-045, et al., unreported. Beginning with appellant's objections to the evidence presented at the classification hearing, we find that the trial court correctly considered the transcripts from appellant's plea and sentencing hearings, as well as the victim impact statement authored by his then wife. Although the Ohio Rules of Evidence do not strictly apply to this hearing, the state "offered" the transcripts to the court at the onset of the sexual predator hearing without comment or objection from appellant. The trial court also properly considered the victim impact statement not as proof of appellant's sexual conduct with his youngest son, but as relevant to the factors set forth in R.C. 2950.09(B)(2). Turning to the factors set forth in R.C. 2950.09(B)(2), there is sufficient evidence to support finding some of the statutory factors. At the time of the offence, appellee was forty-four years old and his victim was only seven years old. See R.C. 2950(B)(2)(a) and 2950(B)(2)(c). Appellant's victim was his own son, and may have also involved his youngest son. See R.C.2950.09(B)(2)(h) and (j). Appellant performed fellatio on his seven-year-old son at least twice and appellant's son engaged in fellatio with him. See R.C. 2950.09(B)(2)(h) and (j). After thoroughly reviewing the record, we find that there is clear and convincing evidence in the record to support the trial court's determination that appellant is a sexual predator. Appellant's second assignment of error is overruled. Judgment affirmed. YOUNG and WALSH, JJ., concur.

2016-07-06 06:36:41.078472+00

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: The State of Ohio ("State") appeals the decision of the Medina County Court of Common Pleas, which granted the defendant's, Terri Laird ("Defendant"), motion to suppress. For the reasons that follow, we reverse and remand for proceedings consistent with this opinion. I. On September 10, 2000, Deputy Shismenos of the Medina County Sheriff's Department observed a vehicle traveling in Harrisville Township, Medina County, Ohio with a malfunctioning rear license plate light, in violation of R.C. 4513.05. Defendant was a passenger seated in the rear of the vehicle. Deputy Shismenos proceeded to pull over the vehicle. Deputy England was in the area and assisted Deputy Shismenos with the traffic stop. As the deputies approached the vehicle, Deputy Shismenos and Deputy England observed, in plain view, open containers of alcoholic beverages in the vehicle. Deputy Shismenos asked all four occupants to step out of the car while he seized the open containers in plain view. Deputy Shismenos then brought his drug-sniffing canine, "Gator," over to the car. The trial court notes in its journal entry that this is the point where the testimony differs. Deputy Shismenos testified that Gator alerted to the odor of illegal drugs at both of the vehicle's front doors. Deputy Shismenos then opened the car door and led Gator to the interior of the vehicle, where Gator alerted to Defendant's purse lying on the rear seat. Defense witnesses testified that they could not recall seeing the dog walk around the vehicle. They stated the only time they observed Gator make an unusual movement was when they observed Deputy Shismenos pull on the dog's collar at one point during the search of the interior of the vehicle. A search of Defendant's purse revealed a crack pipe stem, or shortened cut straw, containing white residue and three glossy pieces of paper folded into bindles containing white powder. Defendant was subsequently charged with possession of cocaine, in violation of R.C.2925.11(A)(C)(4)(a). Defendant filed a motion to suppress, challenging the search of the motor vehicle and the search of her purse while it was in that vehicle. A hearing was held on June 1 and 4, 2001. The trial court granted Defendant's motion to suppress on June 14, 2001. The court found that it could not make a determination as to whether Gator alerted to the odor of illegal drugs on the vehicle, and therefore, the State failed to meet its burden of proof. This appeal followed. The State raises three assignments of error. II. Assignment of Error I. THE TRIAL COURT ERRED BY GRANTING DEFENDANT-APPELLEE'S MOTION TO SUPPRESS, WHERE SHERIFF'S DEPUTIES ALREADY HAD PROBABLE CAUSE TO SEARCH THE VEHICLE AND ANY CONTAINERS LOCATED THEREIN, INCLUDING DEFENDANT-APPELLEE'S PURSE, PURSUANT TO THE AUTOMOBILE EXCEPTION AFTER OBSERVING OPEN CONTAINERS OF ALCOHOLIC BEVERAGES IN PLAIN VIEW INSIDE THE VEHICLE. In the case sub judice, the State advances three theories pertaining to the legality of the search of Defendant's purse. In its first assignment of error, the State argues that the trial court erred in suppressing the evidence from Defendant's purse because the police already had probable cause to search the vehicle and any containers therein for contraband pursuant to the automobile exception to the warrant requirement. The State argues that the police then had probable cause to search Defendant's purse, which was located inside the vehicle, and the actions of the drug-sniffing dog are irrelevant. We begin by noting that an appellate court reviews a trial court's ruling on a motion to suppress evidence de novo. State v. Russell (1998), 127 Ohio App.3d 414, 416, citing Ornelas v. United States (1996), 517 U.S. 690, 699, 134 L.Ed.2d 911, 920. However, an appellate court reviews the findings of fact only for clear error, giving due deference to the trial court's findings of fact, because the trial court assumes the role of the trier of fact when ruling on a motion to suppress and therefore is in the best position to resolve factual questions and evaluate credibility of the witnesses. Id. The Fourth Amendment to the United States Constitution and Section 14, Article 1 of the Ohio Constitution prohibit unreasonable searches and seizures. State v. Kinney (1998), 83 Ohio St.3d 85, 87. Both generally require police officers to obtain a warrant based on probable cause before conducting a search. State v. Brown (1992), 63 Ohio St.3d 349,350. A warrantless search may nonetheless be valid if an exception to the warrant requirement applies. Once the defendant demonstrates that police conducted a warrantless search, the burden shifts to the State to prove probable cause to search and that an exception to the warrant requirement applies. State v. Moore (2000), 90 Ohio St.3d 47, 49. If the State fails to prove either of these elements, the evidence seized must be suppressed. Mapp v. Ohio (1961), 367 U.S. 643, 657, 6 L.Ed.2d 1081,1091; Moore, 90 Ohio St.3d at 49. One exception to the warrant requirement is the automobile exception, wherein a police officer may conduct a warrantless search of a vehicle if the officer has probable cause to believe that it contains contraband and exigent circumstances necessitate a search. State v. Mills (1992),62 Ohio St.3d 357, 367. Thus, "[o]nce a law enforcement officer has probable cause to believe that a vehicle contains contraband, he or she may search a validly stopped motor vehicle based upon the well-established automobile exception to the warrant requirement."Moore, 90 Ohio St.3d at 51. Furthermore, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." U.S. v. Ross (1982), 456 U.S. 798, 825, 72 L.Ed.2d 572,594. The scope of the search extends to a passenger's belongings in the vehicle, such as a purse. Wyoming v. Houghton (1999), 526 U.S. 295, 302,143 L.Ed.2d 408, 416. In this case, Deputy Shismenos testified that he observed open containers of alcoholic beverages in the vehicle in which Defendant was traveling. Having an open container of an alcoholic beverage is a violation of R.C. 4301.62(B)(4). Thus, we find that Deputy Shismenos had probable cause to search the interior of the vehicle for additional open containers. The probable cause to search extends to containers within the vehicle. However, the scope of the search would be limited to containers that may conceal open containers of alcohol. The items Defendant sought to suppress were discovered in her purse. The trial court's journal entry is void of any finding of fact as to whether Defendant's purse could conceal an open container of alcohol. However, we find that the State did not present any evidence to meet its burden in proving probable cause to search the purse pursuant to this theory. Once a defendant demonstrates a warrantless search, the burden shifts to the State to prove the police had probable cause to search and that an exception to the warrant requirement applies. See Moore,90 Ohio St.3d at 49. In this case, Defendant proved the warrantless search of the purse. Moreover, the State did not contest that a warrantless search occurred. Thus, the burden shifted to the State to prove probable cause to search and that an exception to the warrant requirement applied. Defendant admitted her purse into evidence. However, the State failed to present any evidence concerning the size of the bottles of alcohol or whether they could be concealed in Defendant's purse, nor did the State admit any of the bottles into evidence. Thus, the trial court had no evidence before it to prove the State's theory that the search of Defendant's purse was valid because the deputy had probable cause to search the vehicle and any containers therein that could conceal additional open containers of alcohol, and that Defendant's purse was a container that could conceal such contraband. The State's first assignment of error is therefore overruled. Assignment of Error II. THE TRIAL COURT ERRED BY GRANTING DEFENDANT-APPELLEE'S MOTION TO SUPPRESS, WHERE THE DRUG-SNIFFING CANINE DIRECTLY ALERTED TO THE ODOR OF ILLEGAL DRUGS CONCEALED IN HER PURSE AFTER BEING ALLOWED INSIDE THE VEHICLE BY THE SHERIFF'S DEPUTY. In its second assignment of error, the State argues that the officer had probable cause to search Defendant's purse after the drug-sniffing dog alerted to the presence of illegal drugs in the purse. If a vehicle is lawfully detained, an officer does not need a reasonable suspicion of drug-related activity in order to conduct a dog sniff of the vehicle. State v. Carlson (1995), 102 Ohio App.3d 585,594. The United States Supreme Court has stated that a canine sniff issui generis and does not constitute a search under the Fourth Amendment of the United States Constitution. See U.S. v. Place (1983), 462 U.S. 696,707; 77 L.Ed.2d 100, 120-121. Moreover, "[t]he use of a dog inside a car to sniff the interior is `no more intrusive than the use of [a] dog to sniff the outside of the car,' because a dog is able to smell the presence of contraband without disturbing the possessions of the car's owner and occupants." State v. Napier (May 27, 1998), Medina App. No. 2671-M, unreported, at 9, quoting State v. Palicki (1994),97 Ohio App.3d 175, 181. Once a trained drug-sniffing dog alerts to the presence of illegal drugs, the officer has probable cause to search that container for contraband. Palicki, 97 Ohio App.3d at 181; Carlson,102 Ohio App.3d at 600. In this case, Deputy Shismenos was within his authority when he led the drug-sniffing dog through the interior of the car, because the deputy himself had probable cause to search the interior of the vehicle for contraband due to the presence of the open containers of alcohol. Moreover, the canine sniff of the interior of the vehicle was not a search as contemplated by the Fourth Amendment. Probable cause to search Defendant's purse existed if the drug-sniffing dog alerted to the presence of illegal drugs in Defendant's purse during the canine sniff of the interior of the vehicle. However, even though there is conflicting evidence on the point, the trial court's journal entry is void of any finding of fact as to whether Gator alerted to the odor of illegal drugs in the purse during a valid dog sniff of the interior. Without such a finding, we cannot determine if the search of the purse was prohibited by the Fourth Amendment and whether the evidence discovered within must be suppressed. Therefore, we sustain the State's second assignment of error and reverse the decision of the trial court granting Defendant's motion to suppress, and we remand the matter for further proceedings consistent with this opinion. Assignment of Error III. THE TRIAL COURT'S FAILURE TO FIND THAT THE DRUG-SNIFFING CANINE "HIT," OR ALERTED TO THE ODOR OF ILLEGAL DRUGS, ON THE EXTERIOR OF THE VEHICLE WAS CLEARLY ERRONEOUS. In its final assignment of error, the State asserts that the trial court's failure to find that the drug-sniffing dog alerted to the odor of illegal drugs on the exterior of the automobile was clearly erroneous. We disagree. On appeal of a trial court's decision regarding a motion to suppress, we review the findings of fact only for clear error, giving due deference to the trial court's findings of fact. State v. Dunlap (1995),73 Ohio St.3d 308, 314. This is because the trial court assumes the role of the trier of fact when ruling on a motion to suppress and therefore is in the best position to resolve factual questions and evaluate credibility of the witnesses. Id. In this case, Deputy Shismenos and Deputy England testified for the State. Deputy England testified that he did not observe the actions of the drug-sniffing canine. At the time of the canine sniff, Deputy England's attention was focused upon the four occupants of the car while he monitored their actions and the surroundings for his and the other officer's safety. Deputy Shismenos testified that he worked with Gator for a period of five years and eight months. He further testified to his and Gator's training and certifications. Deputy Shismenos stated that Gator was trained for "aggressive alert," meaning that an alert to the odor of illegal drugs consists of "a scratching or possibly unusual biting effort of the dog." Deputy Shismenos recalled Gator alerted on the exterior of the vehicle by scratching at the passenger side and driver's side front door seams. Deputy Shismenos also testified that when Gator does alert to the odor of illegal drugs, it does not always consist of a lot of movement. Heather Parker ("Parker") testified for the defense. Parker was a passenger in the same vehicle as Defendant. She testified that when the officer had the dog inside the car, she saw the officer tug on the dog's chain, pulling the dog's head down and back. On cross-examination, she testified that she was lined up with the others, away from the vehicle, when Deputy Shismenos brought the dog to the car. She stated she did not see the dog walk around the vehicle. Defendant also testified at the hearing. She testified that she could not see the dog's actions on the passenger side of the vehicle because she was standing on the driver's side, near the rear of the vehicle. She stated that she was standing outside the car, near the rear seat where she had been sitting, during the dog sniff of the vehicle's interior. She testified that she watched the officer jerk on the dog's leash when the dog was in the area surrounding her purse. In this instance we are presented with a slightly different scenario than that addressed in our discussion of the previous assignment of error, where the journal entry was void of any finding of fact as to whether Gator alerted on the purse. Here, the trial court stated that it could not determine whether Gator alerted on the car or not and therefore, it made no finding of fact on that issue. The court went on to find that the State failed to meet its burden in proving that issue. We cannot say that this finding was clearly erroneous. The trial court had conflicting testimony before it, however, as previously noted, the trial court is in the best position to resolve factual questions and evaluate credibility of the witnesses during suppression hearings. See Dunlap,73 Ohio St.3d at 314. Thus, we cannot say that the trial court clearly erred when it chose to believe certain witnesses over others. The State's third assignment of error is overruled. III. Having sustained the State's second assignment of error, we reverse the decision of the trial court and remand for proceedings consistent with this opinion. Judgment reversed, and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellee. Exceptions. BATCHELDER, P.J., WHITMORE, J. CONCUR.

2016-07-06 06:36:41.128331+00

OPINION On May 23, 1997, Betty Jones was indicted on one count of involuntary manslaughter, in violation of R.C. 2903.04, and one count of endangering children, in violation of R.C. 2919.22. She entered a plea of "not guilty" to each count at arraignment. She initially was represented by private counsel. Pre-trial discovery was pursued and the trial date which was initially set for September 5, 1997, was delayed so the parties could obtain additional information, especially medical information contained in grand jury transcripts. A second trial date was set for November of 1997 and then a third date was assigned for January of 1998. A fourth trial date was set for February of 1998 and the case proceeded to trial at that time. The case was tried to a jury and Ms. Jones was ultimately convicted of both charges. The trial judge ordered preparation of a presentence investigation report before sentencing. A large amount of private correspondence was also provided to the judge before sentencing, and is now present in the record before us. After considering the information before him, the trial judge sentenced Ms. Jones to a term of seven years of incarceration and merged the two offenses for purposes of sentencing. New counsel was appointed to represent Ms. Jones on appeal. On March 16, 1999, a panel of this court reversed the convictions and remanded the case for a new trial. Appellate counsel was then permitted to withdraw and the Office of the Franklin County Public Defender was appointed to represent Ms. Jones. The Franklin County Public Defender had served as guardian ad litem for the child Betty Jones was accused of killing, so new counsel was appointed on August 27, 1999. The second trial was then continued from the scheduled date of September 22, 1999 to November 29, 1999. On November 30, 1999, new defense counsel entered an appearance as co-counsel. A second jury trial was conducted and that jury also found Ms. Jones guilty of both charges. The trial judge again sentenced Ms. Jones to seven years of incarceration. New appellate counsel has been appointed and a second direct appeal has been perfected. Three assignments of error are presented for our consideration: FIRST ASSIGMENT OF ERROR: It was an abuse of discretion for the Court to refuse Defendant-Appellant a continuance when her counsel had only met with her less than a week before trial at the earliest, and had not meaningfully attempted to find an expert for trial. SECOND ASSIGNMENT OF ERROR: It was reversible error for the Court to permit cross-examination by the State of the Appellant when the "testimony" obtained was recitation of impermissible testimony from the prior trial of the case. THIRD ASSIGNMENT OF ERROR: Performance of Appellant's counsel deprived Appellant of her constitutionally protected right to effective assistance of counsel. In the first assignment of error, counsel for Ms. Jones asserts that the trial court abused its discretion when it failed to grant a continuance of the trial date when the request was made on the morning of trial. The reason asserted for the request was that new counsel had been retained to assist in representing Ms. Jones and that attorney needed time to be fully prepared for trial. "The term `abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157, citing Steiner v. Custer (1940),137 Ohio St. 448. See, also, State v. Filiaggi (1999), 86 Ohio St.3d 230 . Trial courts generally have broad discretion in deciding whether to grant a continuance. Determining whether the trial court has abused its discretion in denying a continuance "depends upon the circumstances, `particularly * * * the reasons presented to the trial judge at the time the request is denied.'"State v. Powell (1990), 49 Ohio St.3d 255, 259, quoting Ungar v.Sarafite (1964), 376 U.S. 575, 589. The record indicates that the newly retained attorney sought only to co-counsel the case with the attorney who had previously been appointed to represent Ms. Jones. The previously appointed counsel asserted that he was prepared to proceed to trial. New counsel was permitted to assist in the defense and to participate in the trial. Given the long delays which had already occurred and the fact that an attorney represented to the court his readiness to proceed with trial, we cannot say that the trial court abused its discretion in refusing another continuance, especially one presented on the morning of trial. Because appellant has not demonstrated an abuse of discretion, we overrule the first assignment of error. Turning next to the third assignment of error, appellant asserts that Ms. Jones received ineffective assistance of counsel at trial. The standard we are to apply in determining whether counsel rendered ineffective assistance is set forth inStrickland v. Washington (1984), 466 U.S. 668. To find the existence of ineffective assistance of counsel, an appellate court must find both that counsel's performance was so deficient that the attorney was not functioning as counsel and that the deficient performance prejudiced the defense. Neither prong of theStrickland test has been demonstrated here. Both defense counsel prepared for the second trial with the benefit of a full transcript of the testimony of the first trial. The issue was fundamentally the same — who beat Tahtijuana Moore, age twenty-one months, so severely that she died. Ms. Jones asserted that she had not beaten the child and that the injuries must have been inflicted while Tahtijuana was participating in family visitation at a Franklin County Children Services ("FCCS") office the day before she died. The facts surrounding the visitation made this assertion most unlikely. The visitation occurred in the presence of the child's biological parents, maternal grandmother and three brothers. A caseworker and other employees of FCCS were in and out of the visitation room. A caseworker drove the child to Betty Jones's home after the visitation and noticed no injuries during the time the child was being transported. While the facts surrounding the visitation made Betty Jones's assertions unlikely, the medical evidence presented made her assertions seem utterly impossible. Elizabeth Gilles, M.D., a pediatric neurologist, testified that the child's injuries were so severe that Tahtijuana would not have been able to eat, chew, swallow, walk or talk after the injuries the child sustained. Patrick Fardal, M.D., identified ten separate areas of injuries to the child's head and various injuries to other parts of the child's body. Appellate counsel suggests that trial counsel was ineffective for failing to find an expert to counter the overwhelming medical testimony indicating that Tahtijuana was beaten less than two hours before she was hospitalized — a time when Betty Jones was the only adult present. Nothing in the record before us demonstrates that a competent, credible medical expert exists who would testify that the injuries were inflicted the day before. Counsel cannot be ineffective by failing to discover what may not exist. No other purported lapses of counsel, as alleged on appeal, could arguably have affected the trial's outcome. The third assignment of error is overruled. Finally, the second assignment of error presents the question of whether or not the trial court erred in permitting the state of Ohio to use portions of Ms. Jones's testimony in her first trial to cross-examine her when she chose to testify in her second trial. In reviewing evidentiary rulings, an appellate court is generally bound by an abuse of discretion standard. We have addressed the meaning of "abuse of discretion" above. We cannot say that the trial court abused its discretion in permitting Ms. Jones's previous sworn statements to be used. Specifically, Ms. Jones had testified under oath "I have been taught by the Bible that there's nothing wrong with it, using the rod" and "I think I said I have spanked my child before." These statements were used to test the credibility of Ms. Jones's own testimony and the testimony of her children as to her conduct in disciplining children. The cross-examination was appropriate. In Ms. Jones's first appeal, this court reversed because the state of Ohio had violated Crim.R. 16 which requires that prior statements of a defendant be provided when discovery is demanded. We were concerned about the state of Ohio failing to disclose a statement in its possession until the trial was almost over and then using the statement to cross-examine an accused defendant at a time when the defense theory could not be changed. However, Ms. Jones was clearly aware of the prior statement and her prior testimony when she took the witness stand the second time. Our previous ruling did not bar future use of the challenged statements. Having found no abuse of discretion, the second assignment of error is overruled. All three assignments of error having been overruled, the judgment and sentence of the trial court are affirmed. LAZARUS and DESHLER, JJ., concur.

2016-07-06 06:36:46.257016+00

OPINION {¶ 1} Shawn G. Marcum, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court found him guilty, pursuant to a plea of guilty, of burglary, in violation of R.C. 2911.12, which is a second-degree felony; and theft, in violation of R.C. 2913.12, which is a fifth-degree felony. {¶ 2} On July 10, 2007, appellant broke a rear window at the residence of Kelli McCray and entered through a back door. Appellant and McCray had been involved in an "on-again-off-again" relationship and have a four-year-old child together. McCray was *Page 2 home at the time and fled the residence. Witnesses observed appellant taking a videogame console and television from the residence. This incident resulted in a burglary charge. Later that day, appellant was arrested for breaking into an automobile and stealing a radio. This later incident resulted in a theft charge. Afterwards, appellant called McCray and told her where she could find the videogame console, and he threatened to kill her when he was released from jail. This incident resulted in a charge for intimidation of a crime victim or witness. {¶ 3} Appellant was indicted for burglary, a second-degree felony; intimidation of a crime victim or witness, a third-degree felony; and theft, a fourth-degree felony. On September 18, 2007, appellant pled guilty to burglary, as charged in the indictment, and a reduced charge of theft, a fifth-degree felony. On November 1, 2007, appellant was sentenced to terms of imprisonment of seven years on the burglary count and ten months on the theft count, the terms for which were to be served consecutively. After the sentencing hearing, appellant requested the court reconsider the sentence, claiming that, at the time of the incident, he was living with McCray at the residence into which he entered and that the stolen property belonged to him. Appellant appeals the judgment and sentence of the trial court, asserting the following assignment of error: The trial court erred in accepting Appellant's guilty plea in violation of Crim. R. 11 and due process guarantees under the state and federal Constitutions. {¶ 4} Appellant argues in his assignment of error that the trial court erred when it accepted his guilty plea in violation of Crim. R. 11 and due process. Appellant presents several arguments to support his claim that his guilty plea was not given knowingly, voluntarily, and intelligently. Appellant maintains that the trial court did not make a full *Page 3 inquiry into appellant's understanding of the nature of the charges and possible defenses, his trial counsel did little to nothing to investigate his defenses and failed to request discovery, and appellant acknowledged the court's questions with only one word responses without indicating any meaningful comprehension of the rights involved. {¶ 5} A waiver of defendant's constitutional right to trial must be knowing, intelligent, and voluntary. State v. Engle (1996),74 Ohio St. 3d 525, 527. Crim. R. 11(C) provides: Pleas of guilty and no contest in felony cases * * * (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved * * *. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. {¶ 6} A trial court must strictly comply with Crim. R. 11 as it pertains to the waiver of federal constitutional rights. Boykin v.Alabama (1969), 395 U.S. 238, 243-244, 89 *Page 4 S.Ct. 1709. These constitutional rights include the right to trial by jury, the right of confrontation, and the privilege against self-incrimination. Id. However, substantial compliance with Crim. R. 11(C) is sufficient when waiving non-constitutional rights. State v.Nero (1990), 56 Ohio St. 3d 106, 108. The non-constitutional rights that a defendant must be informed of are the nature of the charges with an understanding of the law in relation to the facts; the maximum penalty; and that, after entering a guilty plea or a no contest plea, the court may proceed to judgment and sentence. "Substantial compliance" means that, under the totality of the circumstances, the defendant subjectively understands the implications of his plea and the rights he is waiving. Id. {¶ 7} In the present case, there is nothing to suggest that appellant did not understand the nature of the charges or that his plea was defective in any other manner. The 19-page transcript from the plea hearing indicates that appellant was fully informed of all of the pertinent information pursuant to Crim. R. 11. Initially, we note that, at the hearing, in the presence of appellant, the State of Ohio ("state"), plaintiff-appellee, summarized the facts, explicitly identifying the location and address of the burglary as the victim's home, as well as stating that it occurred at "her residence at 2800 Vanderburg." Thus, appellant was well aware that the residence at which he committed the burglary was presumed to be the victim's residence and not his own. At the hearing, appellant also acknowledged he signed his plea of guilty, he had "plenty" of time to discuss his plea of guilty with his lawyer, his lawyer was available to answer his questions about his rights and penalties, and he understood all of the material in the guilty plea form. The trial court also fully explained the nature of the charges. The court explained appellant was pleading guilty to burglary and theft, the terms of possible confinement for both crimes, the right to *Page 5 subpoena witnesses, his rights of appeal, the terms of post-release control, the presumption of imprisonment for the burglary offense, and the possible fines. Appellant indicated that he understood the court's statements. The trial court also informed appellant that he had a right to trial by jury, he had the right to confront witnesses, that the state had the burden of proof, and he had the right against self-incrimination. Appellant's defense counsel also represented to the court that she believed appellant's plea was knowing, voluntary, and intelligent. Thereafter, the trial court determined the plea was knowing, voluntary, and intelligent. {¶ 8} Appellant argues that the fact he acknowledged the court's questions with only simple responses, such as "yes, your honor," and "no, your honor," failed to demonstrate he understood the nature of the charges with any depth. However, we cannot conclude that answering questions with simple "yes" and "no" responses is sufficient to invalidate a guilty plea. To be sure, it is not unusual for defendants to respond to a trial judge's questions during the plea discourse with a simple "yes," and "no," and we cannot assume that these defendants actually desired to say something else. State v. Davis, Franklin App. No. 07AP-356, 2008-Ohio-107, at ¶ 19 (noting the trial court's comment that hundreds of defendants have answered the court's questions at plea hearings with a simple "yes, sir" and "no, sir," and the court cannot assume that these defendants actually wanted to tell the court something else). {¶ 9} Many courts have held that a trial court is required to conduct a "meaningful colloquy" with a criminal defendant before accepting a plea. See, e.g., State v. McCullough, Fayette App. No. CA2001-10-015, 2002-Ohio-5453 (court of appeals permitted the defendant to withdraw his guilty plea because the trial court failed to enter *Page 6 into a meaningful colloquy). Here, the dialogue between appellant and the trial court was meaningful. At the commencement of the dialogue, the trial court asked appellant his level of education, clearly intending to gauge appellant's ability to understand his plea and the following proceedings. As explained above, the trial court then asked appellant over two dozen questions aimed at assuring that appellant understood the nature of the charges, along with his other constitutional rights. This court has found substantially similar colloquies between trial courts and defendants meaningful and adequate to determine whether the defendants understood the nature of the charges and constitutional rights. See, e.g., State v. Darks, Franklin App. No. 05AP-982,2006-Ohio-3144; State v. Chapman, Franklin App. No. 02AP-666, 2003-Ohio-2415; and State v. Brooks, Franklin App. No. 02AP-44, 2002-Ohio-5794. {¶ 10} We also note that appellant signed a written plea agreement that explicitly stated he was entering his plea voluntarily. A written waiver is presumptively voluntary, knowing, and intelligent. State v.Fitzpatrick, 102 Ohio St. 3d 321, 2004-Ohio-3167, at ¶ 37. The present record provides no reason to question whether appellant's written guilty plea was voluntary, knowing, and intelligent, and appellant fails to indicate any evidence that would rebut those presumptions. {¶ 11} Additionally, as a general rule, this court has determined that a guilty plea is made with an understanding of the nature of the charges when: (1) a defendant is addressed in court and informs the court that he understands what he is pleading guilty to; (2) his signed guilty plea states that he has reviewed the law and the facts with his counsel; and (3) counsel advises the court that he has reviewed the facts and the law with his client and that his client has read the plea form. SeeState v. Cantrell (Mar. 26, 2002), *Page 7 Franklin App. No. 01AP-818, citing State v. Ellis (June 20, 1996), Franklin App. No. 95APA10-1399. In this case, appellant stated he understood he was pleading guilty to theft and burglary, he signed and understood the guilty plea forms, and his counsel reviewed the guilty plea form with him. Appellant's trial counsel represented to the court that she had plenty of time to investigate the case and she was satisfied professionally that appellant was making a knowing, intelligent, and voluntary change in his plea. {¶ 12} We also note that appellant asserts his trial counsel did little to investigate and prepare for trial and failed to conduct discovery. This allegation is apparently an attempt to demonstrate that appellant did not have all of the facts before him in order to make a voluntary, knowing, and intelligent waiver of his rights. However, any failure or ineffectiveness on behalf of his counsel is not subject to review in the present appeal, as this assertion must necessarily be supported by evidence outside the sentencing record and is not included as an assignment of error herein. Furthermore, this argument has no effect on whether the trial court complied with the requirements of Civ. R. 11, as there was no allegation made before the trial court at the sentencing hearing regarding any deficiencies of appellant's trial counsel for the trial court to consider. Notwithstanding, we would also note that appellant specifically indicated to the trial court that he had had "plenty" of time to discuss the case so that his counsel could answer his questions about his rights, his right to a trial, and the possible penalties. Thus, appellant admitted he had the opportunity to discuss his trial counsel's preparation and any discovery issues before the trial court accepted his plea. Therefore, this argument is without merit, insofar as it applies to the present appeal. *Page 8 {¶ 13} For these reasons, based upon the totality of the circumstances, we conclude that appellant entered his plea voluntarily and the trial court properly assured itself of such through a meaningful dialogue with appellant. The trial court's dialogue with appellant was thorough, and, by all indications, appellant, who was represented by counsel, understood the implications of his plea, the nature of the charges, and the rights he was waiving. The trial court clearly complied with the mandates of Crim. R. 11(C). Therefore, appellant's assignment of error is overruled. {¶ 14} Accordingly, appellant's single assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. McGRATH, P.J., and BRYANT, J., concur. *Page 1

2016-07-06 06:36:50.13004+00

OPINION {¶ 1} This is an appal from a trial court's refusal to remit an entire bond previously ordered forfeited when a defendant fled while being tried. {¶ 2} On November 18, 2003, Gary Akbar, representing Safety National Casualty Company posted a bond in the amount of $20,000 for Zachery Thornton who was charged with felonious assault in the Montgomery County Common Pleas Court. Thornton appeared for the first day of his trial but fled thereafter. He was convicted in his absence and the trial court ordered the bond forfeited on June 2, 2004. Through the efforts of Akbar and Dayton Police, Thornton was arrested on June 29, 2004 and sentenced to prison. On November 15, 2004, Safety filed a motion to vacate the bond forfeiture and a hearing was conducted shortly thereafter. {¶ 3} Akbar testified that he and his company had no reason to believe that Thornton was a flight risk despite the fact that he was charged with a serious offense, was unmarried, and was unemployed. Akbar said the co-signers on the bond were employed. Akbar said he located Thornton on June 29, 2004 in west Dayton and called the police. Akbar said four or five police officers responded and apprehended Thornton. At the conclusion of the hearing, the trial court remitted 40% of the $20,000 to Safety. In granting the partial remission the trial court noted the following in support of its decision: {¶ 4} "Mr. Akbar's testimony revealed little, if any, investigation regarding Mr. Thornton's background before the bond was posted on Mr. Thornton's behalf. Mr. Akbar talked to Mr. Thornton's girlfriend, but he acknowledged she was unable to provide significant information. Mr. Akbar did not talk to Mr. Thornton until the bond was posted. Mr. Akbar did testify to some investigation and approval by the `home office,' but, when pressed, he could not testify to the nature and extent of the purported investigation. {¶ 5} "This completes the factual recitation. These facts reveal Safety National is, certainly, not entitled to vacation of the forfeited recognizance. The analysis, therefore, will focus upon the reasoning for the forty percent (40%) remission. {¶ 6} "Revocation pursuant to O.R.C. § 2935.40 is simply not applicable. The statutory procedures creating the ability to forfeit the recognizance were followed, and the surety did not produce Mr. Thornton for the forfeiture hearing on May 5, 2004. Accordingly, the forfeiture was properly ordered on June 2, 2004. "Remission {¶ 7} "Safety National secondly argues that remission is proper under O.R.C. § 2937.39. This provision allows a court to remit to the surety some, or all, of a forfeited bond. This issue rests with the court's discretion, but there are some appellate decisions concerning how this discretion should be administered. The competing concerns are Mr. Akbar's undoubted efforts to locate and secure the arrest of Mr. Thornton versus Safety National's lackluster efforts to gauge whether Mr. Thornton intended to fulfill his appearance obligation. {¶ 8} "This latter concern is an appropriate factor to weigh when considering a remittance. State v. Hardin, 2003-Ohio-7263 (Lucas Cty.); State v. American Bail Bond Agency (1998),129 Ohio App. 3d 708, 719 N.E.2d 13. Both of these Courts stated, though correctly recognizing the `costs and inconvenience in regaining custody {¶ 9} . . .' are important factors in the remittance decision, `the public also has an interest in insuring bail companies devote sufficient time and resources to the posting of bail bonds for persons accused of committing serious crimes'[,] such as felonious assaults, a second degree felony. State v.Hardin at ¶ 11, quoting State v. American Bail Bond Agency at 715. These Courts further stated `[H]olding bail bond companies harmless when an accused fails to appear . . . would encourage bond companies to post bonds without considering whether an accused person intends to fully fulfill his or her bond obligations.' State v. Harding at ¶ 11 quoting State v.American Bail Bond Agency at 715. {¶ 10} "It is concluded that Safety Nation, through Mr. Akbar and the so-called home office, did not adequately consider whether Mr. Thornton intended to fully fulfill his appearance obligations, and, given this, Safety National, though successful in its efforts to secure Mr. Thornton's apprehension, is not entitled to a full remission. It is further concluded, when considering all pertinent factors, a significant, but less than fifty percent (50%), remittance is warranted. It is, accordingly, ordered that the surety, Safety National, is granted a remittance in the amount of $8,000.00 representing forty percent (40%) of the forfeited $20,000.00 recognizance." {¶ 11} In three related assignments of error, Safety argues that the trial court abused its discretion in remitting only 40% of the $20,000 bond posted on Thornton's behalf. Safety argues that the trial court abused its discretion because the State presented no evidence that it incurred any expense or inconvenience because Thornton failed to appear and because the trial court improperly found that Safety had not adequately evaluated Thornton's flight risk. Safety also argues that the trial court's actions were particularly unfair in that another common pleas judge in the same courthouse one day earlier remitted a $50,000 forfeiture to $1500 under a similar factual scenario. See, State v. Hunter, 2004 CR 00661 (Montgomery Cty. Common Pleas, February 7, 2005). {¶ 12} The State, for its part, argues that it was inconvenienced because four or five police officers had to be employed to arrest Thornton and return him to the court for sentencing. {¶ 13} R.C. 2937.39 provides that if the accused appears or surrenders the trial court may remit, in whole or in part, the forfeiture of the bail bond. The disposition of a motion to remit a forfeited bail bond is a matter within the discretion of the court. State v. Patton (1989), 60 Ohio App. 3d 99. In Patton, the Lucas County Court of Appeals held that in determining whether to set aside a revocation of bail, the court should consider the appearance of the defendant as well as the timing of such appearance as grounds for remittance. The court held that other factors to consider include the inconvenience and delay to the prosecutor, the expense involved, the wilfulness of the violation as well as any other mitigating circumstances. The court noted that regardless of the circumstances under which the forfeiture is declared, it may be set aside if it appears that justice does not require its enforcement. {¶ 14} In State v. Duran (2001), 143 Ohio App. 3d 601, the Wood County Court of Appeals held that remittance of only $18,750 on a bail bond of $75,000 was proper, although the bondsman expended effort in finding the defendant, where defendant's failure to appear did not affect the State's proof at trial, where defendant's reappearance was involuntary, state was prejudiced by delay and inconvenience, and bond company was not instrumental in securing the defendant's appearance. In Duran, the defendant did not appear for a suppression hearing and was apprehended by New York City police three months later. {¶ 15} In Hoover, the defendant failed to appear at the final pre-trial and he was later apprehended through the efforts of the surety. The trial court remitted all of the $50,000 bond except for $1,500 which the court found was expended for counsel expenses when new counsel had to be appointed to represent the defendant. {¶ 16} We agree with the appellant that it is difficult to reconcile the trial court's actions with that of the trial court in Hoover one day earlier. However, we agree with the State that the appellant must demonstrate that the trial court abused its discretion in remitting only 40% of the bond posted in this matter. There is evidence to support the trial court's finding that Safety conducted a rather minimal investigation of Thornton's flight risk. Safety collected a premium for the possibility Thornton might flee. Although Safety located Thornton, it was the police who took him into custody for sentencing purposes. There appears, however, to have been little inconvenience or cost to the State when Thornton did not appear for his trial. We therefore find the trial court's forfeiture of 60% of the bond posted was excessive and an abuse of discretion. The assignment of error is sustained. Judgment Reversed and Remanded for further proceedings consistent with this opinion. Fain, J., concurs.

2016-07-06 06:36:41.168241+00

OPINION {¶ 1} Defendant, Austin Newell, appeals from his convictions for having weapons under disability, R.C. 2923.13(A)(2), and possession of crack cocaine, R.C. 2925.11(A), and the sentences imposed for those offenses pursuant to law, which were entered on pleas of no contest which Defendant entered after the trial court had overruled Defendant's Crim.R. 12(C)(3) motion to suppress evidence. {¶ 2} The evidence Defendant sought to suppress was seized by police from Defendant's home in a search conducted pursuant to a warrant. The affidavit submitted in support of the application for a warrant relied on facts obtained by police on October 24, 2004, following a dispatch to Defendant's home on a call that three armed men were inside, shooting up the residence. {¶ 3} When officers arrived at Defendant's home they found Defendant standing in a neighbor's yard. He said that he didn't know whether the three men were yet inside the house. The officers told Defendant they would check his home for the culprits. {¶ 4} Three officers, Fuller, Clark and Kraker, entered Defendant's home through an open rear door. While searching for the culprits, the officers observed a set of scales covered with cocaine and a box of baggies, in plain view. In an open closet, the officers observed an open gun safe containing assault rifles and a shotgun. They then notified a fourth officer, Sharp, who had remained outside with Defendant, to detain him for investigation in connection with what they had observed. No other persons were found inside Defendant's house. {¶ 5} Officer Sharp placed Defendant in the rear of her police cruiser and then entered his house to verify what she'd been told. She made the same observations of the contraband and guns in plain view. Officer Sharp emerged and advised Defendant of his Miranda rights, after which she questioned him about the report concerning the three men that were inside his home, but not about the contraband and guns that police had found inside. {¶ 6} Detectives from the drug task force subsequently arrived and entered Defendant's home. Detective Mullins observed the same contraband and guns, and subsequently obtained a warrant to search the home and seize those articles. In executing the warrant, police found numerous guns and drugs throughout the home that they also seized. {¶ 7} Defendant was indicted on four counts of having weapons while under disability, R.C. 2923.13(A)(2), one count of possessing crack cocaine in an amount exceeding ten grams but less than twenty-five grams, R.C. 2925.11(A), two counts of possessing crack cocaine in an amount less than one gram, R.C.2925.11(A), and three counts of possessing cocaine, not crack, in an amount less than five grams, R.C. 2925.11(A). Defendant filed a motion to suppress the evidence recovered from his home. Following a hearing, the trial court overruled Defendant's motion to suppress on January 9, 2006. The court found that the initial warrantless police entry into Defendant's home was justified by exigent circumstances, and that the contraband was initially observed in plain view and subsequently seized pursuant to a valid search warrant. {¶ 8} Pursuant to a plea agreement, Defendant entered a plea of no contest to having weapons while under a disability, possessing crack cocaine in an amount between ten and twenty-five grams, and possessing crack cocaine in an amount less than one gram. In exchange, the State dismissed the other pending charges. The trial court found Defendant guilty and sentenced him to prison terms totaling two and one-half years. {¶ 9} Defendant timely appealed to this court. The trial court stayed execution of the sentences it had imposed and continued Defendant's pretrial bond as an appeal bond. ASSIGNMENT OF ERROR {¶ 10} "ASSUMING ARGUENDO THAT THE INITIAL POLICE ENTRY INTO THE DEFENDANT'S HOME TO DETERMINE IF ANY SUSPECTS WERE STILL PRESENT AT HOME WAS CONSTITUTIONAL WERE THE SUBSEQUENT OBSERVATIONS OF THE POLICE OFFICERS SHARP, PONICHTERA, CONLEY, KRAKER AND MATTHEWS, AFTER THE HOUSE HAD ALREADY BEEN CLEARED, MERELY TO OBTAIN INFORMATION TO OBTAIN A SEARCH WARRANT CONSTITUTIONALLY VALID?" {¶ 11} Defendant concedes, and we agree, that the initial warrantless entry into his home by police was reasonable for Fourth Amendment purposes because it was justified by a well-recognized exception to the warrant requirement: exigent or emergency circumstances. Under that exception to the Fourth Amendment warrant requirement, police may make a warrantless entry into a structure, including a private home, when they reasonably believe that immediate action is necessary to either protect that property or assist persons inside who may be in danger or in need of immediate aid. State v. Berry,167 Ohio App.3d 206, 2006-Ohio-3035. Police may also enter to check for any victims or suspects that may be inside the premises. Minceyv. Arizona (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290;State v. Upton (March 10, 2006), Hamilton App. No. C-050076,2006-Ohio-1107; State v. Burgess (November 4, 1999), Licking App. No. 99CA00035. {¶ 12} The report the officers received that three armed men had entered Defendant's home and were shooting, and his inability to say whether the armed intruders were still inside his home, gave rise to emergency circumstances that posed a potential danger to the safety of the officers and others that justified an immediate warrantless entry into Defendant's home to search for the suspects. Mincey; Upton. Accordingly, the initial warrantless entry by police into Defendant's home did not violate Defendant's Fourth Amendment rights. {¶ 13} Nevertheless, a warrantless emergency entry by police must be strictly circumscribed by the exigency that initially justified it, and once the emergency has been alleviated, further intrusion must be sanctioned by a warrant. Mincey; State v.Burchett (June 10, 2004), Montgomery App. No. 20167,2004-Ohio-3101. Defendant argues in this appeal that, notwithstanding the lawfulness of the initial warrantless entry by police into his home, once police had determined that there were no victims or suspects inside Defendant's home, there was no ongoing emergency or threat to anyone's safety including the police officers, and therefore the subsequent entries into Defendant's home by Officer Sharp and Detective Mullins, absent a warrant, violated his Fourth Amendment rights. Defendant citesThompson v. Louisiana (1985), 469 U.S. 17, 105 S.Ct.409,83 L.Ed.2d 246, in support of his contention. {¶ 14} In Thompson, police officers arrived at the home in response to a report by Thompson's daughter of a homicide at that location. Thompson's daughter let police inside the home, where they discovered Thompson's husband, dead of a gunshot wound, and Thompson unconscious from an apparent drug overdose. The officers transported Thompson to a hospital and secured the scene. Thirty-five minutes later, two homicide detectives arrived, entered the residence, and conducted a two-hour general exploratory search for evidence of a crime. During that search police discovered evidence that was later admitted during Thompson's trial for murdering her husband. The United States Supreme Court held that the warrantless search for evidence violated Thompson's Fourth Amendment rights. {¶ 15} During the course of legitimate emergency activities, such as searching for victims in need of aid or suspects who pose a threat to the safety of the officers or others, police may seize any evidence that is in plain view. Mincey, supra;Thompson, supra. In Thompson, the evidence at issue was not observed by police in plain view during their legitimate emergency activities, while they were assisting Thompson or searching the home for other victims or suspects. Id., at 22. Rather, the evidence was discovered and seized during a later warrantless search, well after the emergency had passed. {¶ 16} Unlike Thompson, in this case the police did observe a scale covered with crack cocaine residue and several firearms in plain view during their brief emergency search of Defendant's home for the shooting suspects. Their observation of this evidence was contemporaneous with the legitimate emergency search by the police. Upton; Burgess. Although police had the right to immediately seize that evidence they observed in plain view,Mincey, they did not do so in this case, but rather used their plain view observations to portray probable cause for a search warrant that they obtained before either searching Defendant's home for or seizing any evidence, including that observed in plain view. Thus, Thompson does not control the outcome of this case. {¶ 17} When Officer Sharp and Detective Mullins entered Defendant's home after police had completed their initial emergency search of the home for the armed intruders, their purpose was to verify or corroborate reports of what the other officers had observed in plain view inside the home. Their entries were not in response to any emergency. Had Sharp and Mullins then seized the evidence they saw, or searched for other evidence, the exigent circumstances exception to the warrant requirement would not apply. However, all of the evidence police in fact seized, including the evidence that was observed in plain view by the officers who had initially entered Defendant's home to search for the armed intruders, was seized pursuant to the search warrant that Detective Mullins obtained. Accordingly, the determinative issue in this case is the validity of that search warrant and whether it was supported by probable cause. Crim.R. 41. {¶ 18} In State v. Nathan (November 16, 2001), Montgomery App. No. 18911, 2001-Ohio-1826, we observed: {¶ 19} "In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, the task of the issuing magistrate is simply to make a practical, common sense decision whether, given all of the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates (1983), 462 U.S. 213;State v. George (1989), 45 Ohio St.3d 325. {¶ 20} "When reviewing the sufficiency of probable cause in a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit submitted in support of the search warrant establishes probable cause. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Great deference should be accorded to the magistrate's probable cause determination, and doubtful or marginal cases should be resolved in favor of the warrant. Id." {¶ 21} Had the affidavit submitted in support of the application for the search warrant relied exclusively on the observations of Officer Sharp and Detective Mullins during their subsequent entries into Defendant's home, the illegality of their warrantless entry would have tainted the evidence on which the issuing judge necessarily relied, undermining the validity of the warrant and the seizure of evidence Defendant sought to suppress. Detective Mullins did state in his affidavit that his own observations corroborated the reports of the other officers concerning contraband and drugs that were in plain view. As and for a showing of probable cause, however, Mullins' affidavit recited the observations of the other officers when they first entered Defendant's home in response to the emergency before them. {¶ 22} In the affidavit for this search warrant the affiant, Detective Mullins avers in paragraph B that Officers Fuller, Clark and Kraker initially entered Defendant's home to check for the armed intruders, and though no suspects were found, these officers had observed in an upstairs bedroom, in plain view, a large scale with a heavy coating of cocaine residue, a box of baggies, and other drugs in an open drawer of a night stand next to the bed. {¶ 23} In paragraph C, Detective Mullins avers that these same officers also observed in plain view in that same bedroom an open gun safe located in an open closet. Inside that open gun safe these officers observed a shotgun and assault rifles. {¶ 24} In paragraph E, Detective Mullins avers that in the basement near a microwave oven, these same officers observed in plain view three glass jars with spoons inside that had a white cocaine residue on them. {¶ 25} In paragraph G, Detective Mullins avers that a field test conducted by Officer Kraker on the residue observed on the scales found in the bedroom was positive for cocaine. {¶ 26} In paragraph H, Detective Mullins avers that when he arrived at the home he saw the same items in plain view that the initial entering officers had observed. {¶ 27} These averments in the affidavit for the warrant provide a substantial basis for the issuing judge's conclusion that there was a fair probability that contraband or evidence of a crime would be found inside 710 Sunnyview Avenue. Gates,George. Hearsay information may be relied upon by the officer providing an affidavit for a search warrant if the officer reasonably believes the information to be true. Franks v.Delaware (1978), 438 U.S. 154, 165, 98 S.Ct. 2674,57 L.Ed.2d 667; State v. Taylor (August 20, 1992), Montgomery App. No. 12860. The basis of knowledge and the veracity of the person supplying hearsay information are circumstances that must be considered in determining the value of the information and whether probable cause exists. George; Taylor. The question is whether the totality of the facts and circumstances presented to the issuing magistrate are sufficient to support a determination that probable cause exists. Id. {¶ 28} The totality of the facts and circumstances of the observations of other officers which are set forth in Detective Mullins' averments in his affidavit for the search warrant constitute sufficient probable cause to search 710 Sunnyview Avenue. Accordingly, the search warrant is valid. Even if the observations of Officer Sharp and Detective Mullins after the other officers had already completed their initial emergency sweep of the home for the armed intruders were problematic because they were not in response to any emergency, those observations do not invalidate the probable cause established by the prior independent observations of the other officers who had earlier lawfully entered Defendant's home to search for the armed suspects. Franks v. Delaware. Defendant's Fourth Amendment rights were not violated. {¶ 29} At oral argument, Defendant further contended that because his wife had refused to consent to the subsequent entries of their home by Officer Sharp, or perhaps Detective Mullins, their entries were not consensual under the rule of Georgia v.Randolph (2006), ___ U.S. ___, 126 S.Ct. 1515, 164 L.Ed.2d 208. That decision was rendered on March 22, 2006, after the trial court had denied Defendant's motion to suppress on January 9, 2005, and so he could not have relied on Randolph for authority when his motion to suppress was heard. Nevertheless, Defendant could have raised the legal issue involved, and his failure to do so waives any error. In any event, his wife's denial of consent does not invalidate the earlier entry of Defendant's home by the three officers in response to an emergency, from which probable cause for the search warrant was obtained, as we have held. {¶ 30} The assignment of error is overruled. The judgment of the trial court will be affirmed. Fain, J. and Donovan, J., concur.

2016-07-06 06:36:41.363419+00

OPINION {¶ 1} Appellant Ohio Department of Job Family Services ("ODJFS") appeals the January 24, 2005 Judgment Entry of the Stark County Court of Common Pleas, which granted default judgment in favor of appellee Kylie McVeen, and reversed the September 23, 2004 Administrative Appeal Decision of the Director of ODJFS, which had affirmed the September 1, 2004 State Hearing Officer Decision. STATEMENT OF THE CASE AND FACTS {¶ 2} On October 18, 2004, appellee filed a Notice of Appeal, challenging the aforementioned decisions issued in a matter concerning child care benefits which appellee had received and which the Stark County Department of Job and Family Services had approved.1 Via Judgment Entry filed November 1, 2004, the trial court set forth the case schedule. The judgment entry provided, "[a]ny transcript or other documents or record in the within matter shall be filed with the Court on or beforeNOVEMBER 25, 2004." Pursuant to statutory requirements, ODJFS filed a certified record with the trial court on November 1, 2004. ODJFS did not, however, file a transcript of the hearing before the State Hearing Officer. There was no hearing before the Director. {¶ 3} On January 21, 2005, appellee filed a Motion for Default Judgment, asserting ODJFS failed to comply with the trial court's November 1, 2004 Judgment Entry. Three days later, without ODJFS having an opportunity to respond, the trial court granted appellee's motion via Judgment Entry filed January 24, 2005. {¶ 4} It is from this judgment entry ODJFS appeals, raising the following assignment of error: {¶ 5} "I. The common pleas court committed prejudicial error when it granted kylie mcveen's motion for default judgment against the Ohio department of job and family services." I {¶ 6} In its sole assignment, ODJFS contends the trial court committed prejudicial error in granting appellee's motion for default judgment. ODJFS asserts five grounds upon which it bases its argument. First, ODJFS submits it reasonably understood the language of the November 1, 2004 Judgment Entry as not requiring a hearing transcript. Next, ODJFS argues default judgments pursuant to Civ. R. 55 are inappropriate in administrative appeals. Additionally, ODJFS asserts the trial court erred in granting judgment against it based upon the absence of an item from the record when ODJFS timely filed the certified record and appellee was not prejudiced. Further, ODJFS maintains the trial court erroneously granted default judgment without providing it at least seven days' notice of hearing on the motion as required by Civ. R. 55. Finally, ODJFS alleges the trial court erred because appellee failed to establish her claim or right to relief as required by Civ. R. 55(D). {¶ 7} In Knapp v. Edwards Labs. (1980), 61 Ohio St.2d 197,199, the Ohio Supreme Court held: "The duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See State v.Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d 1355. This principle is recognized in App.R. 9(B), which provides, in part, that `* * * the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record * * *.' When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." (Footnote omitted). We find Knapp to be instructive. {¶ 8} Appellee maintains her Notice of Appeal to the trial court specifically indicated there were factual disputes regarding the State Hearing Officer's Decision which ordered her to repay monies related to child care expenses; therefore, a transcript was necessary. We disagree. We find the transcript of the State Hearing Officer's hearing was not necessary for the trial court to resolve the matter before it. Despite her attempt to appeal the merits of the State Hearing Officer's Decision to the trial court, appellee was prohibited from doing so. The only issue on appeal was the Director's finding appellee failed to timely request an administrative appeal. The decision of the Director was based solely on the jurisdictional issue and did not go to the merits of the claim. The transcript of the hearing would not assist the trial court in evaluating the Director's decision regarding the timeliness of appellee's request. Accordingly, we find the trial court erred in granting default judgment against ODJFS. {¶ 9} ODJFS's sole assignment of error is sustained. {¶ 10} The judgment of the Stark County Court of Common Pleas is reversed, and the matter remanded to that court for further proceedings consistent with this Opinion and the law. Hoffman, J., Gwin, P.J. and Farmer, J. concur. JUDGMENT ENTRY For the reason stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas is reversed, and the matter is remanded to the trial court for further proceedings consistent with our Opinion and the law. Costs assessed to appellee. 1 The Stark County Department of Job and Family Services was named as a party in the underlying action, but was subsequently dismissed.

2016-07-06 06:36:41.652018+00

DECISION. *Page 2 {¶ 1} Cameron McGlothin appeals his convictions for murder with specifications, having a weapon under a disability, aggravated robbery with specifications, and robbery with specifications. His assignments of error do not have merit, so we affirm the judgment of the trial court. {¶ 2} On August 21, 2005, Anthony Chastain was robbed and fatally shot. At trial, the state's witnesses testified that McGlothin had arranged for the robbery of Chastain. Randall Patterson testified that McGlothin had told him that Chastain had money and had asked him to help rob Chastain. Patterson refused. Timothy Ridley testified that he was in McGlothin's house on the night of the shooting. Ridley stated that McGlothin had tried to talk him and Kevin Short into robbing Chastain. According to Ridley, McGlothin knew that Chastain, who was a drug dealer, had a large amount of money, and McGlothin needed money to buy crack cocaine. McGlothin was also motivated to rob Chastain because he and Chastain had had an argument about a local prostitute. Ridley testified that he had not wanted to participate in the robbery, but that Short had. {¶ 3} Miranda Kramer, who lived across the street from McGlothin, saw the robbery and shooting. According to Kramer, in the early morning hours of August 22, Chastain arrived in a car in the front of McGlothin's house. McGlothin came out of his house and spoke with Chastain. Then Kevin Short ran up to Chastain, pointed a gun at him, and told him to remove his clothing. Short shot at Chastain, and McGlothin went to the ground. When Chastain ran away, Short chased him and continued to shoot at him. McGlothin got up, got into Chastain's car, and took the keys to the car. Kramer then saw McGlothin and other individuals searching *Page 3 Chastain's car. Gerald Akins testified that he had also seen McGlothin in Chastain's car. {¶ 4} After running away from Short, Chastain broke into a house that was a short distance from McGlothin's house. When the police arrived to investigate a report of a breaking and entering at that house, they found Chastain dead in the bathroom of the house. {¶ 5} McGlothin's neighbor, Charles Moore, testified that McGlothin had asked him to tell police that McGlothin had stayed at his house on the night of the robbery and shooting. {¶ 6} At the conclusion of the trial, the jury found McGlothin guilty of murder with specifications, having a weapon under a disability, aggravated robbery with specifications, and robbery with specifications. The trial court sentenced him to 15 years to life for the murder; three years for one of the specifications to the murder; one year for having a weapon under a disability; nine years for the aggravated robbery; and seven years for the robbery. The sentences for the murder, the specification, having a weapon under a disability, and the aggravated robbery were to be served consecutively, but were otherwise made concurrent with the sentence for the robbery. The aggregate sentence was 28 years to life. Amendment of Indictment {¶ 7} For ease of discussion, we consider McGlothin's assignments of error in the order that the issues arose during the trial. In his first assignment of error, McGlothin asserts that the trial court erred when it allowed the state to amend the indictment. *Page 4 {¶ 8} Before the trial started, the state moved to amend the indictment to reflect that McGlothin was a complicitor, rather than the principal, in the crimes and to change the felony underlying the murder from felonious assault to aggravated robbery. After closing arguments, the state again moved to amend the indictment to change the date of the offenses from August 21 to August 22. The court granted both requests to amend the indictment. {¶ 9} "The court may at any time before, during, or after a trial amend the indictment * * *, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged."1 The amendments of the indictment in this case did not change the name or the identity of any of the crimes. Because the substance of the indictment was changed by the amendments, McGlothin had the right to request that the jury be discharged or that a continuance be granted.2 But he made no such request. And even if he had requested the discharge of the jury or a continuance, it would not have been error to deny the request, as McGlothin would not have been able to prove that he was misled or prejudiced by the amendments. The first assignment of error is overruled. Jury Issues {¶ 10} McGlothin claims in his second assignment of error that the trial court erred when it did not dismiss a prospective juror for cause. A prospective juror who discloses that he cannot be fair and impartial or that he will not follow the law may *Page 5 be challenged for cause.3 We review a trial court's refusal to remove a potential juror for cause to determine whether it was an abuse of discretion.4 {¶ 11} During voir dire, prospective juror Taylor revealed that he was a retired police officer, and that he knew one of the police officers who would be testifying. Taylor stated that, despite his acquaintance with the police officer, he would be fair and impartial. Upon questioning by McGlothin's attorney, Taylor stated that he probably had a natural bias in favor of police officers, but that he could put aside that bias if he was selected as a juror. He also said that he generally believed that defense attorneys clogged the justice system, but that he did not know McGlothin's attorneys well enough to have formed an opinion of them. He reiterated that he would keep an open mind if he were a juror. The trial court denied McGlothin's request that Taylor be excused for cause. McGlothin later used one of his peremptory challenges to remove Taylor from the jury. {¶ 12} We conclude that the trial court did not abuse its discretion in refusing to remove Taylor for cause. Taylor was honest about his preconceptions about attorneys and police officers but repeatedly stated that he could put aside those preconceptions if he was a juror. The trial court believed him. Also, Taylor did not indicate that he would refuse to apply the applicable law. The second assignment of error is overruled. {¶ 13} Because it also concerns an issue with the jury, we next consider the eighth assignment of error. In it, McGlothin claims that the trial court erred when it *Page 6 did not declare a mistrial when a jury member revealed that she may have known one of McGlothin's witnesses. {¶ 14} McGlothin called Desiree Dozier on his behalf. The state had alleged that McGlothin and Chastain had gotten into an argument over Dozier, a prostitute. McGlothin's counsel attempted to contradict testimony about ill will between McGlothin and Chastain by having Dozier testify that she was not aware of a fight between them. {¶ 15} After Dozier testified, a juror told the court's bailiff that she believed that she may have known Dozier and her family eight years earlier. The court and the attorneys questioned the juror in chambers. The juror told the court that when Dozier was called as a witness, she had realized that her last name sounded familiar. According to the juror, she knew unfavorable information about the family and Desiree, and that information could have affected her evaluation of Dozier's credibility. But the juror said that she was not sure that Dozier was the same person whom she knew about, that she could put aside what she potentially knew about Dozier, and that she had told no other juror about what she knew. The trial court asked the juror not to discuss the matter with other jurors. {¶ 16} To succeed on his motion for a mistrial, McGlothin had to show that there had been juror misconduct and that the misconduct had materially affected his substantial rights.5 The trial court's refusal to declare a mistrial is subject to an abuse-of-discretion review.6 Here, McGlothin did not demonstrate juror misconduct. The juror came forward with the information without having discussed it with fellow jurors. And the juror was not even certain that Dozier was the same *Page 7 person whom she had known. There was no evidence that the juror had concealed her potential knowledge about Dozier during voir dire. Finally, the court was in the best position to weigh the juror's credibility when she stated that she could remain fair and impartial. We conclude that the court did not abuse its discretion when it refused to declare a mistrial. The eighth assignment of error is overruled. Prosecutorial Misconduct {¶ 17} The third assignment of error is that McGlothin was denied his due-process rights because the prosecutor engaged in conduct that deprived McGlothin of a fair trial. {¶ 18} McGlothin called Short to testify on his behalf. Before taking the stand in front of the jury, Short asserted his right not to incriminate himself and refused to testify. McGlothin claimed that Short was refusing to testify because he had been intimidated by the assistant prosecutor. Prior to calling Short, McGlothin's attorneys informed the court that the assistant prosecutor had told Short's counsel that if Short testified, he would receive no consideration in the pending case against him. The trial court questioned Short's counsel to understand what had happened. Short's counsel stated that his understanding was that "[the assistant prosecutor] was certainly not going to recommend any deal if [Short] testified, not that he couldn't testify." He also told the court that the assistant prosecutor had not advised him that Short should refuse to testify. It is clear from the record that the assistant prosecutor was referring to case consideration that had been offered to Short had he testified on behalf of the state. But because the assistant prosecutor did not believe Short to be credible, he had decided not to call Short as a witness. The assistant prosecutor's statements to Short's counsel made clear that any previously offered consideration *Page 8 was off the table. And Short's counsel stated that, aside from the conversation that he had had with the assistant prosecutor, he did not believe that it was in Short's best interest to testify. We conclude that the record does not support McGlothin's assertion that Short had been intimidated from testifying by the assistant prosecutor. {¶ 19} McGlothin also asserts that the assistant prosecutor engaged in misconduct during closing arguments by vouching for the credibility of the state's witnesses and by calling McGlothin a liar. We must review the assistant prosecutor's statements to determine "whether [they] were improper and, if so, whether they prejudicially affected substantial rights of the defendant."7 {¶ 20} During closing argument, the prosecutor and defense counsel are not permitted to express their personal beliefs as to a witness's credibility, but they are "free to comment on what the evidence has shown and on the reasonable inferences that might be drawn from the evidence."8 {¶ 21} McGlothin's claim that the assistant prosecutor improperly vouched for the credibility of the state's witnesses is not borne out by the record. During closing argument, McGlothin's counsel repeatedly stated that Ridley, Akins, and Patterson were liars. In the second part of his closing argument, the prosecutor commented on facts in evidence in response to the attacks on the credibility of the state's witnesses. Such argument was not improper.9 {¶ 22} At two points during his closing argument, the assistant prosecutor stated that McGlothin had lied. He said, "I know in his statement he lied all over the place." And he later said, "The defendant lied. He has lied so many times in this *Page 9 case. `I don't know who committed the offense.'" These statements were based upon McGlothin's statements to police investigators, which had been offered into evidence during the trial by McGlothin. {¶ 23} McGlothin gave two taped statements to police investigators. In the first, he denied that he knew Short and Ridley, that he had abused drugs, that he had known Chastain had money, and that he had known who was involved in the robbery. In the second statement, McGlothin agreed with the investigators that he had lied to them, and he stated that Short was the shooter. Stating that the defendant has lied is not necessarily prosecutorial misconduct. The Ohio Supreme Court has held that a prosecutor who called a defendant a "liar" was entitled to attack the defendant's credibility.10 Here, the assistant prosecutor's statements were not expressions of his personal beliefs about McGlothin's credibility. Rather, the statements were fair comments based on what had been heard in McGlothin's statements to investigators. We conclude that the assistant prosecutor's statements were not improper, and we, therefore, overrule the third assignment of error. Sequestration Violations {¶ 24} McGlothin's sixth assignment of error is that the trial court erred when it failed to correct a sequestration violation. Before the trial started, the court ordered all witnesses who were scheduled to testify to leave the courtroom and not to discuss their testimony with any other witnesses. During cross-examination, Ridley stated that he had gone to lunch with state's witnesses Patterson, Akins, and Moore during the trial. Patterson stated that he had provided transportation to court to Chastain's mother, Moore, and Akins. But neither Ridley nor Patterson said that he *Page 10 had discussed his testimony with other witnesses. We conclude that McGlothin did not demonstrate that there had been any violation of the court's sequestration order. The sixth assignment of error is overruled. Evidentiary Issues {¶ 25} McGlothin's seventh assignment of error is that the trial court erred when it permitted the admission of other-acts evidence and hearsay testimony. {¶ 26} "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."11 McGlothin argues that the trial court improperly allowed the admission of evidence of his other crimes, wrongs, or acts on three occasions. {¶ 27} Akins testified during cross-examination that McGlothin had tried to induce McGlothin's son into robbing Akins. Any error in the admission of this evidence was invited error, as the statement was made in response to a question by McGlothin's attorney. {¶ 28} The other two statements to which McGlothin now objects were statements by Patterson and another witness that McGlothin had used drugs regularly. McGlothin's attorneys objected to neither statement, so we review the admission of the testimony under a plain-error analysis.12 Plain error exists only where, but for the error, the outcome of the trial would clearly would have been different.13 We conclude that even if these statements had not been admitted, the result of the trial would not have changed. The seventh assignment of error is without merit. *Page 11 Weight of the Evidence {¶ 29} In his ninth assignment of error, McGlothin asserts that his convictions were against the manifest weight of the evidence. When reviewing whether a judgment is against the manifest weight of the evidence, we sit as a thirteenth juror to determine whether the trier of fact clearly lost its way and created a manifest miscarriage of justice.14 {¶ 30} McGlothin argues that the state did not prove that he was complicit with Short in the robbery and shooting of Chastain. According to McGlothin, the witnesses who tied McGlothin to the planning and execution of the robbery were not credible. But the jury was in the best position to weigh the witnesses' credibility. McGlothin also argues that Short stated that he had acted alone. But that statement was not introduced at trial and was therefore not before the jury for its consideration. Having reviewed the record, we conclude that the jury's verdicts of guilt were not against the manifest weight of the evidence. The ninth assignment of error is overruled. Ineffective Assistance of Counsel {¶ 31} McGlothin claims in his fifth assignment of error that he was denied the effective assistance of counsel. To prevail on his claim that his counsel was ineffective, McGlothin must demonstrate that his counsel's performance was deficient and that, absent his counsel's errors, the result of the trial would have been different.15 Our review of counsel's performance must be "highly deferential."16 *Page 12 {¶ 32} According to McGlothin, his trial attorneys were unprepared for trial. McGlothin contends that his attorneys' lack of preparation was evidenced by their request for a continuance twenty days before the trial began, their failure to timely request the testing of a bullet, their failure to disclose witnesses, and their failure to secure a witness, Pam Ray, for trial. But McGlothin has not demonstrated how the outcome of the trial would have differed had his counsel taken the actions that he now cites. {¶ 33} McGlothin also asserts that his attorneys were deficient because they did not object to the amendment of the indictment. We have already determined that the court did not err when it amended the indictment as requested by the state, so we are unable to conclude that attorneys' performance was deficient when they did not object. Nor are we persuaded that counsel was deficient for failing to object to the prosecutor's comments during closing argument, because we have determined that the prosecutor's comments were not improper. Finally, we have already determined that the outcome of the trial would not have differed had McGlothin's counsel objected to evidence that he was a drug user. {¶ 34} The fifth assignment of error is overruled. Motion for New Trial {¶ 35} McGlothin's fourth assignment of error is that the trial court erred when it overruled his motion for a new trial. Prior to the sentencing hearing, McGlothin filed a motion for a new trial or a judgment of acquittal. Attached to the motion was Short's affidavit in which Short stated that he had acted alone, that McGlothin had not encouraged him to rob Chastain, and that Short had been told to lie by Patterson. After a hearing, the trial court denied the motion. *Page 13 {¶ 36} Under Crim.R. 33(A)(6), the trial court may grant a new trial "[w]hen new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at trial." We review the trial court's denial of a motion for a new trial based on newly discovered evidence under an abuse-of-discretion standard.17 {¶ 37} "To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence."18 {¶ 38} Courts have split on whether the newly available testimony of a codefendant who has previously invoked his Fifth Amendment privilege against self-incrimination qualifies as "newly discovered evidence" for purposes of determining whether a new trial should be granted. Although never faced squarely with the issue in terms of a motion for a new trial, this court has considered whether an affidavit of a codefendant offered after a trial in which a codefendant had invoked his Fifth Amendment privilege against self-incrimination was sufficient for the defendant to obtain leave to file a delayed motion for a new trial under Crim.R. 33(B). Under that provision, if a defendant does not file a motion for a new trial within 120 days of the jury's verdict, he must seek leave to file a motion for a new trial. To obtain leave, the defendant must demonstrate clearly and convincingly that he was unavoidably *Page 14 prevented from discovering the evidence within the 120-day period.19 In State v. Mathis,20 we concluded that where an affiant had refused to testify during the defendant's trial, the defendant had not demonstrated clearly and convincingly that he had been unavoidably prevented from discovering the evidence offered in the affidavit within the allotted time. {¶ 39} Less than five years later, we faced a similar issue inState v. Condon.21 In that case, Condon sought leave to file a motion for a new trial a year and a half after his convictions for eight counts of gross abuse of a corpse. Included with his motion was an affidavit from his codefendant, who had invoked his Fifth Amendment rights during Condon's criminal trial. The affidavit, which had been filed in a civil case, exculpated Condon from the abuse of one of the corpses. This court concluded that the trial court had abused its discretion when it denied Condon's motion for leave to a file a delayed motion based on the affidavit and overruled Mathis to the extent that it held otherwise.22 {¶ 40} In arriving at our conclusion, this court cited favorably a decision from the First Circuit Court of Appeals in which the court had held that "newly discovered" in the corresponding federal rule, Fed.R.Crim.P. 33, encompassed newly available evidence.23 In concluding that Condon had met his burden of showing that he had been unavoidably prevented from discovering the evidence, this court acknowledged that equating "newly discovered" with "newly available" was a minority view.24 *Page 15 {¶ 41} The majority view, as explained by the Third Circuit Court of Appeals in United States v. Jasin, is that, given the clear language of Fed.R.Crim.P. 33, "`newly available evidence' is not synonymous with `newly discovered evidence.'"25 To consider the testimony of a codefendant after he has been sentenced as newly discovered evidence "would encourage perjury to allow a new trial once co-defendants have determined that testifying is no longer harmful to themselves."26 We agree with the reasoning of the Third Circuit that the majority view "establish[es] a straightforward bright-line rule, [and] is anchored in the plain meaning of the text."27 Accordingly, we adopt the majority view. To the extent that State v. Condon held otherwise, we overrule it. {¶ 42} In the case before us, application of the majority view leads us to conclude that the evidence offered in Short's affidavit was not newly discovered. McGlothin's attorneys knew about the testimony during the trial. That is precisely why they called Short to testify at McGlothin's trial. McGlothin was unable to meet the second prong ofPetro — that the evidence had been discovered since the trial. The trial court did not abuse its discretion in denying the motion. We, therefore, overrule the fourth assignment of error and affirm the trial court's judgment. Judgment affirmed. HENDON, J., concurs. PAINTER, P.J., concurs in part and dissents in part. 1 Crim.R. 7(D). 2 Id. See, also, State v. O'Brien (1987), 30 Ohio St.3d 122,508 N.E.2d 144. 3 R.C. 2313.42(J). 4 Berk v. Matthews (1990), 53 Ohio St.3d 161, 559 N.E.2d 1301, syllabus; State v. Albert, 10th Dist. No. 06AP-439, 2006-Ohio-6902. 5 Crim.R. 33(A)(2). See, also, State v. Taylor (1991),73 Ohio App.3d 827, 598 N.E.2d 818. 6 Taylor, supra, at 833. 7 State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883. 8 State v. Bevins, 1st Dist. No. C-050754, 2006-Ohio-6974, at ¶27. 9 Id. at ¶ 29. 10 State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160,840 N.E.2d 1032; State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235,818 N.E.2d 229. 11 Evid.R. 404(B). 12 See Evid.R. 103(A) and Crim.R. 52(B). 13 State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph two of the syllabus. 14 State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52,678 N.E.2d 541. 15 See State v. Bradley (1989), 42 Ohio St.3d 136, 142,538 N.E.2d 373; Strickland v. Washington (1984), 466 U.S. 668, 687,104 S.Ct. 2052. 16 Strickland, supra, at 689. 17 State v. Scheibel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54, paragraph one of the syllabus. 18 State v. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370, syllabus. 19 Crim.R. 33(B). 20 (1999), 134 Ohio App.3d 77, 730 N.E.2d 410. 21 157 Ohio App.3d 26, 2004-Ohio-2031, 808 N.E.2d 912. 22 Condon, supra, at ¶ 20. 23 U.S. v. Montilla-Rivera (C.A.1, 1997), 115 F.3d 1060, 1066. InCondon, the court incorrectly referred to the deciding court inMontilla-Rivera as the 11th Circuit Court of Appeals. See, also,State v. Barber (1982), 3 Ohio App.3d 445, 445 N.E.2d 1146. 24 Condon, supra, at ¶ 18. 25 (C.A.3, 2002), 280 F.3d 355, 368. See, also, United States v.Glover (C.A.6, 1994), 21 F.3d 133; United States v. Freeman (C.A.5, 1996), 77 F.3d 812; United States v. Theodosopoulos (C.A.7, 1995),48 F.3d 1438. 26 United States v. Reyes-Alvarado (C.A.9, 1992), 963 F.2d 1184,1188. 27 Jasin, supra, at 368.

2016-07-06 06:36:41.691896+00

DECISION AND JUDGMENT ENTRY This is an appeal from an Athens County Common Pleas Court judgment overruling a motion filed by Demetrios Prokos, defendant below and appellant herein, to dismiss the criminal charge against him on grounds that continued prosecution thereof would violate his right(s) to be free from "double jeopardy."1 On February 10, 2000, we ordered the parties to file memoranda addressing whether the denial of that motion constituted a final order such that this Court would have jurisdiction to entertain the appeal pursuant to Section 3 (B) (2), Article IV of the Ohio Constitution and R.C. 2501.02. The parties appropriately filed those memoranda and the matter is now properly before us for review. Our analysis begins with the case of State v. Crago (1990),53 Ohio St.3d 243, 559 N.E.2d 1353, wherein the Ohio Supreme Court held that "[t]he overruling of a motion to dismiss on the ground of double jeopardy is not a final appealable order." Id. at the syllabus. In so holding, the Court reasoned that the denial of such motion did not meet "any one of the three prongs of R.C. 2505.02" so that it could be classified as a final order. Id. at 244, 559 N.E.2d at 1355.2 The Supreme Court has consistently reiterated the same position in various cases sinceCrago, see e.g. State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335,338, 686 N.E.2d 267, 269; Wenzel v. Enright (1993)68 Ohio St.3d 63, 623 N.E.2d 69, at paragraph one of the syllabus;State v. Broughton (1991), 62 Ohio St.3d 253, 262,581 N.E.2d 541, 549, at fn. 8, and that ruling has been relied on by numerous appellate courts as well. See e.g. State v. Leonhardt (Sep. 25, 1996), Hamilton App. Nos. C-950193, C-950194, C-950258 C-950259, unreported; State v. Matteson (Dec. 6, 1993), Jackson App. No. 715, unreported; State v. Mitchell (Oct. 29, 1990), Delaware App. No. 90-CA-25, unreported. However, in 1998 the Ohio General Assembly amended R.C.2505.02 and expanded the classifications of final appealable orders. See Sub.H.B. No. 394, 4 Baldwin's Ohio (1998) Legislative Service. The new version of the statute now provides, in pertinent part, as follows: "(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: * * * (4) An order that grants or denies a provisional remedy and to which both of the following apply: (a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. (b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action."3 (Emphasis added.) A "provisional remedy" is defined by the statute as a "proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, or suppression of evidence." Id. at (A) (3). An "ancillary proceeding" is one that is auxiliary to the primary proceeding and is maintained as an aid thereto. See Black's Law Dictionary (7th Ed. 1999) 1448. Appellant asserts in his memorandum in support of jurisdiction that a denial of a motion to dismiss on double jeopardy grounds should now be considered a final appealable order "subject to immediate review" under new Section (B) (4) of R.C. 2505.02. He essentially argues that Crago and its progeny were legislatively superseded by Sub.H.B. No. 394 and that such precedent is no longer binding on this Court. Although appellant makes a compelling argument, and while we would agree that the Supreme Court may wish to revisit this issue in light of the new statutory amendments, we ultimately disagree with him and come to the conclusion that the overruling of his motion to dismiss does not constitute a final appealable order. First, the identical argument that appellant advances in the case sub judice was considered and rejected by our colleagues in the Seventh District Court of Appeals who reasoned that such orders did not fall under the "provisional remedy" section of R.C.2505.02 for the following reasons: "Appellant in this case would not be denied a meaningful or effective appeal on the issue of double jeopardy, along with any other trial issue which may develop, should he be required to wait until conviction and sentence before an appeal is taken. Moreover, appellant may still be acquitted at trial, rendering such issue moot. We find that a motion to dismiss on the grounds of double jeopardy is not a provisional remedy as defined by the revised statute. There is nothing in the statute itself, or in the legislative history to the revised statute, which leads this court to believe that it was the legislature's intent to depart from existing law and permit an immediate appeal from the overruling of a motion to dismiss on double jeopardy grounds." State v. Hubbard (Nov. 8, 1999), Jefferson App. No. 99-JE-32, unreported. We find this reasoning highly persuasive. The well settled law in Ohio has been that a judgment denying a motion to dismiss on grounds of double jeopardy is neither final nor appealable.Crago, supra, at the syllabus; Wenzel, supra, at paragraph one of the syllabus. The Ohio General Assembly was presumably aware of those decisions when it enacted Sub.H.B. No. 394. See State v.Glass (1971), 27 Ohio App.2d 214, 218, 273 N.E.2d 893, 896; Statev. Berry (1966), 8 Ohio App.2d 72, 74, 220 N.E.2d 671, 673. Had the legislature intended to supersede the extensive body of caselaw on this issue then, surely, more explicit language to that effect would have been used in the legislation. Appellant also urges us to construe the statutory amendments to R.C. 2505.02 in light of the decision in Abney v.United States (1977), 431 U.S. 651, 659-661, 52 L.Ed.2d 651, 659-661,97 S.Ct. 2034, 2040-2041, wherein the United States Supreme Court held that adverse rulings on motions to dismiss for violation of double jeopardy are subject to immediate appellate review under Section 1291, Title 28, U.S. Code. He argues that it would be fundamentally unfair to force him to "run the gauntlet" of a second trial without first enjoying a "meaningful appellate review" of the claimed violation of his double jeopardy rights. Although appellant raises some valid points, we are not persuaded. Those same points have been considered and rejected by a majority of the Ohio Supreme Court. See Wenzel, supra at 66-67, fn. 1, 68-70 (Wright, J. Dissenting), 623 N.E.2d at 72 73-74. Again, without some firm indication that the Ohio General Assembly intended to supersede the Ohio Supreme Court's pronouncements on this issue, we must adhere to and follow that Court's judgments. Appellant also cites Walters v. The Enrichment Ctr. ofWishing Well, Inc. (1997), 78 Ohio St.3d 118, 123,676 N.E.2d 890, 894, at fn. 2, wherein a unanimous Ohio Supreme Court suggested modifying R.C. 2505.02 to bring it into conformity with its federal counterpart at Sections 1291-1292, Title 28, U.S. Code. Be that as it may, we find nothing in Sub.H.B. No. 394 to suggest that the Ohio General Assembly intended to implement a similar statutory scheme. For these reasons, we find no reason to deviate from the well established law that a judgment denying a motion to dismiss on grounds of double jeopardy does not constitute a final appealable order. Thus, this Court is without jurisdiction to review the instant appeal and it must be dismissed. See Prod.Credit Assn. v. Hedges (1993), 87 Ohio App.3d 207, 210, 621 N.E.2d 1350 [621 N.E.2d 1360], 1362, at fn. 2; Kouns v. Pemberton (1992), 84 Ohio App.3d 499, 501, 617 N.E.2d 701, 702. JUDGMENT ENTRY It is ordered that the appeal be dismissed and that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, P.J., Harsha, J., Abele, J.: Concur For the Court ____________________________ Peter B. Abele, Judge. 1 The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. This protection is applicable to the states through theFourteenth Amendment Due Process Clause, see North Carolina v. Pearce (1969), 395 U.S. 711, 717, 23 L.Ed.2d 656, 664,89 S.Ct. 2072, 2076; Benton v. Maryland (1969), 395 U.S. 784, 794,23 L.Ed.2d 707, 716, 89 S.Ct. 2056, 2062, and similar protections are afforded by Section 10, Article I of the Ohio Constitution. See State v. Gustafson (1996), 76 Ohio St.3d 425, 432,668 N.E.2d 435, 441. 2 The version of R.C. 2505.02 in effect at the time of the Crago decision defined final orders as those which either (1) affected a substantial right and determined the action or prevented a judgment, (2) affected a substantial right made in a special proceeding or upon a summary application after judgment or (3) vacated or set aside a judgment or granted a new trial. 3 The "three prongs" of the previous version of R.C.2505.02, referred to by the Supreme Court in Crago, supra, are now re-codified at Sections (B) (1)-(3) of the new statute.

2022-09-09 23:54:31.649313+00

Stark

¶ 1. STARK, P.J. Leroy and Roger Jones (collectively, Jones) appeal an order granting summary judgment to Gemini Capital Group, LLC. Gemini filed the instant lawsuit in attempt to recover a deficiency-judgment against Jones. Jones argues the circuit court improperly granted summary judgment in Gemini's favor because: (1) Gemini failed to establish its ownership of the debt; (2) Gemini failed to prove the collateral at issue was sold in a commercially reasonable manner, as required by Wis. Stat. § 425.209(1) (2015-16);1 and (3) a material issue of fact exists as to whether Gemini's complaint was timely filed, pursuant to the applicable statute of limitations. ¶ 2. We conclude Gemini failed to make a prima facie case for summary judgment with respect to the first two issues raised by Jones, and a genuine issue of material fact exists regarding the third issue. We therefore reverse the order granting summary judgment to Gemini and remand for further proceedings. BACKGROUND f 3. In July 2007, Jones purchased a 2004 Ford Ranger from Timber Ford Mercury of Hayward, Inc. To finance the purchase, Jones entered into a "Motor Vehicle Consumer Simple Interest Installment Sale and Security Agreement" with Timber Ford Mercury. It is undisputed that Jones made some of the payments due under this agreement, but he eventually stopped making payments. In March 2009, HSBC Auto Finance, Inc., filed a small claims lawsuit against Jones in Sawyer County, seeking to repossess the vehicle. That lawsuit resulted in a default judgment against Jones, and the vehicle was subsequently repossessed and sold. f 4. On March 23, 2015, Gemini filed the present lawsuit in attempt to recover a deficiency judgment against Jones. In its complaint, Gemini alleged it had "purchased the deficiency amount owed on the [Motor Vehicle Consumer Simple Interest Installment Sale and Security Agreement]" and was "the successor-in-interest for the HSBC Serv Auto Loan." ¶ 5. Gemini ultimately moved for summary judgment. As relevant to this appeal, Gemini relied on an affidavit of Roger Neustadt to establish its ownership of Jones' debt. In his affidavit, Neustadt averred: I am a custodian of records for [Gemini] and the facts recited herein are based upon my personal knowledge of the electronic business records of the account in question, which are part of [Gemini's] regular business records. These records are kept by [Gemini] in the regular course of business, and it was the regular course of business of [Gemini] or its predecessor in interest for an employee or representative of [Gemini] or its predecessor in interest, with knowledge of the act or event recorded, to make the record or to transmit information thereof to be included in such record, and the record was made at or near the time or reasonably soon thereafter. ¶ 6. Neustadt averred that Jones entered into a Motor Vehicle Consumer Simple Interest Installment Sale and Security Agreement with Timber Ford Mercury on or around July 12, 2007, and, "[a]s indicated on the contract," Timber Ford Mercury assigned Jones' debt to "HSBC." Neustadt further averred that, on or about November 9, 2009, HSBC "transferred the contract and the rights therein to Santander Consumer USA Inc." Neustadt next averred that, on or about September 7, 2012, Santander "sold the contract and the rights therein to Main Street Acquisition Corp." Finally, Neustadt averred that, on or about July 16, 2014, Main Street "sold the contract and the rights therein" to Gemini. Neustadt averred Gemini is "the current holder and owner of [Jones'] contract and the rights therein." Various documents were attached to Neustadt's affidavit in support of these averments. f 7. Jones filed a brief and affidavits in opposition to Gemini's summary judgment motion, but he did not submit any evidence disputing Gemini's claim that it was the current owner of Jones' debt. Instead, Jones argued the evidence Gemini submitted was insufficient to make a prima facie showing regarding Gemini's ownership. ¶ 8. The circuit court granted summary judgment in Gemini's favor. Addressing Jones' argument that Gemini had failed to establish its ownership of the debt, the court stated Gemini had presented a "logical.. . step by step . . . from the point the vehicle was purchased, was financed by HSBC all the way up to Gemini." The court observed that, while Jones was critical of Neustadt's affidavit, he had "not necessarily challenged the affidavit with any counter affidavits." ¶ 9. The circuit court also rejected Jones' argument that Gemini was not entitled to summary judgment because it had failed to show that the vehicle was disposed of in a commercially reasonable manner, as required by Wis. Stat. § 425.209(1). The court reasoned further proceedings were not necessary on that issue because Jones had never alleged or presented any evidence to indicate that the sale of the vehicle was not commercially reasonable. Stated differently, the court concluded Jones had failed to show the existence of a genuine issue of material fact regarding the reasonableness of the sale. f 10. Finally, the circuit court concluded there was no "issue" regarding the statute of limitations. The court explained, "[T]he deficiency became due in mid 2009 and [Gemini] began this action in early 2015 under the six-year statute of limitations, so that does not forego or prohibit the action." ¶ 11. Jones now appeals, arguing the circuit court erred by granting Gemini summary judgment. STANDARD OF REVIEW ¶ 12. We independently review a grant of summary judgment, using the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶ 6, 306 Wis. 2d 513, 743 N.W.2d 843. "Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented." Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). If so, we then examine the moving party's submissions to determine whether they establish a prima facie case for summary judgment. Id. If the moving party has made a prima facie showing, we examine the opposing party's affidavits to determine whether a genuine issue exists as to any material fact. Id. ¶ 13. In this case, it is undisputed that Gemini's complaint stated a claim for a deficiency judgment, and that Jones' answer raised several material factual issues. The parties' arguments instead pertain to whether Gemini made a prima facie case for summary judgment and, if so, whether Jones established the existence of a genuine issue of material fact. See id. DISCUSSION I. Ownership of the debt ¶ 14. Jones first argues the circuit court erred by granting Gemini summary judgment because Gemini failed to make a prima facie showing that "it is the real party in interest [,] as it lacks standing to seek a deficiency judgment against [Jones]." The parties appear to agree that, under either a standing analysis or a real-party-in-interest analysis, the critical question is whether Gemini presented sufficient evidence to make a prima facie showing that it owns Jones' debt.2 f 15. Gemini argues the documents attached to Neustadt's affidavit establish its ownership of the debt.3 Gemini contends these documents show the "step-by-step process" by which the debt was transferred from Timber Ford Mercury to HSBC, from HSBC to Santander, from Santander to Main Street, and, finally, from Main Street to Gemini. We conclude, however, that the documents attached to Neustadt's affidavit are insufficient to establish Gemini's ownership. With the exception of the initial assignment from Timber Ford Mercury to HSBC,4 none of the documents attached to Neustadt's affidavit specifically reference Jones' debt. ¶ 16. As the basis for his averment that ownership of Jones' debt was transferred from HSBC to Santander on or about November 9, 2009, Neustadt referenced a November 2, 2010 document entitled "Santander Consumer USA Inc. Secretary's Certificate," which was attached to his affidavit. In that document, Santander's "chief legal officer and secretary" certified that, pursuant to an "Asset Purchase Agreement" and "Servicing Agreement" dated November 9, 2009, Santander was "the assignee/servicer of [HSBC's] auto loan portfolio." However, nothing in the November 2, 2010 certificate specifically indicates that Jones' loan was part of that portfolio. Neither the "Asset Purchase Agreement" nor the "Servicing Agreement" referred to in the certificate was attached to Neustadt's affidavit. ¶ 17. Neustadt also averred that, on or about September 7, 2012, Santander "sold the contract and the rights therein to Main Street Acquisition Corp." In support of that averment, Neustadt cited an attached document entitled "Bill of Sale and Assignment," which stated that, pursuant to the terms and conditions of a "Purchase & Sale Agreement" dated September 7, 2012, Santander assigned to Main Street "all rights, title and interest... in and to those certain receivables, judgments or evidences of debt described in the 'Purchase and Sale Agreement' and 'Data File' attached hereto and made part hereof for all purposes."5 The "Bill of Sale and Assignment" indicated Santander had assigned 153,062 "accounts" to Main Street, but it did not specifically reference any individual accounts or debts. Neither the "Purchase and Sale Agreement" nor the "Data File" referenced in the "Bill of Sale and Assignment" was attached to Neustadt's affidavit. ¶ 18. Finally, Neustadt relied on a "Bill of Sale and Assignment," dated July 16, 2014, in support of his averment that Main Street "sold the contract and the rights therein" to Gemini. The July 16, 2014 "Bill of Sale and Assignment" states that, pursuant to a "Purchase and Sale Agreement" of the same date, Main Street transferred and assigned to Gemini all of Main Street's "rights, title and interest in and to the Accounts and any claims arising out of the Accounts described in the Agreement and contained in the electronic file provided to [Gemini] on even date herewith." Once again, this "Bill of Sale and Assignment" did not reference any individual accounts or debts, and neither the "Purchase and Sale Agreement" nor any electronic file listing specific accounts or debts was attached to Neustadt's affidavit.6 ¶ 19. We believe it is self-evident that, in order to make a prima facie showing that it is the owner of Jones' debt, Gemini must present evidence indicating that it owns that specific debt. Gemini must present evidence showing that Jones' specific debt was transferred from HSBC to Santander, from Santander to Main Street, and finally from Main Street to Gemini. Merely demonstrating that multiple, unspecified debts or accounts were transferred between these entities is insufficient to make a prima facie showing that Gemini currently owns Jones' debt, such that it is the real party in interest and has standing to obtain a deficiency judgment against Jones. Cases from several other jurisdictions support this conclusion. See In re Kendall, 380 B.R. 37, 46 (Bankr. N.D. Okla. 2007); Hutto v. CACV of Colo., LLC, 707 S.E.2d 872, 875 (Ga. Ct. App. 2011); Arrow Fin. Servs., LLC v. Guiliani, 32 A.3d 1055, 1058 (Me. 2011); Premier Capital, L LC v. Baker, 972 N.E.2d 1125, 1134 (Ohio Ct. App. 2012); Kenny v. Portfolio Recovery Assocs., LLC, 464 S.W.3d 29, 33-34 (Tex. App. 2015); see also Jonathan Sheldon et al., Collection Actions: Defending Consumers and Their Assets § 4.3.4.2.2 (3d ed. 2014) (stating a "debt buyer's documentation of an assignment must reference the specific account at issue" and collecting cases in support of that proposition). ¶ 20. Gemini asserts a recent Georgia Court of Appeals case "held that the type of affidavit relied on by Gemini [in the instant case] was sufficient to prove it was the real party in interest." See Rutledge v. Gemini Capital Grp., LLC, 757 S.E.2d 893 (Ga. Ct. App. 2014). In Rutledge, however, each "Bill of Sale" memorializing the transfer of multiple accounts from one entity to another was accompanied by "a single-line-item attachment" that "listed [the debtor's] personal information, account balance, and the last four digits of his account number." Id. at 894. Gemini did not submit any similar evidence in this case indicating that Jones' specific debt was transferred from HSBC to Santander, from Santander to Main Street, and from Main Street to Gemini. Rutledge is therefore distinguishable. ¶ 21. Gemini argues that, even if the documents attached to Neustadt's affidavit are insufficient to make a prima facie showing that Gemini owns Jones' debt, Neustadt's averments alone are sufficient to make that showing. As discussed above, Neustadt averred that HSBC transferred Jones' debt to Santander on or about November 9, 2009, that Santander "sold the contract and the rights therein" to Main Street on or about September 7, 2012, and that Main Street "sold the contract and the rights therein" to Gemini on or about July 16, 2014. Gemini asserts these averments establish that Jones' debt "was assigned various times until finally being assigned to Gemini." ¶ 22. We do not agree that Neustadt's aver-ments, standing alone, establish a prima facie showing that Gemini owns Jones' debt. Affidavits in support of summary judgment "shall be made on personal knowledge." Wis. Stat. § 802.08(3). Affidavits "made by persons who do not have personal knowledge" are insufficient to support summary judgment "and will be disregarded." Leszczynski v. Surges, 30 Wis. 2d 534, 538, 141 N.W.2d 261 (1966). f 23. Neustadt averred in the first paragraph of his affidavit that he had "personal knowledge of the facts stated herein." He subsequently averred that he is a custodian of records for Gemini, and that the "facts recited herein are based upon [his] personal knowledge of the electronic business records of the account in question, which are part of [Gemini's] regular business records." However, despite these averments, nothing in Neustadt's affidavit reasonably implies that Neustadt, as a records custodian for Gemini, would have had personal knowledge of the prior assignments of Jones' debt from HSBC to Santander and from Santander to Main Street based on any source other than the documents attached to his affidavit. We have already concluded those documents are insufficient to make a prima facie showing that Jones' debt, specifically, was transferred between the listed entities. Because the documents themselves are insufficient to make a prima facie showing that Gemini owns the debt, Neustadt's averments based on those documents are also insufficient. ¶ 24. Our decision in Palisades Collection LLC v. Kalal, 2010 WI App 38, 324 Wis. 2d 180, 781 N.W.2d 503, is instructive on this point. The primary issue in Palisades was whether account statements attached to the affidavit of a Palisades employee were admissible under the hearsay exception for records of regularly conducted activity. Id., ¶ 1; see also Wis. Stat. § 908.03(6). We concluded the account statements were inadmissible because the affidavit "present [ed] no facts that show[ed] [the affiant] ha[d] personal knowledge of how the account statements were prepared and whether they were prepared in the ordinary course of [the original creditor's] business." Palisades, 324 Wis. 2d 180, ¶ 23. We then stated: Because the affidavit does not set forth facts that would make the account statements admissible in evidence, the averment in the affidavit on the balance due is not admissible. Nothing in the affidavit shows that [the affiant] has personal knowledge of the amount owed if the account statements are inadmissible to prove the amount. Id. Similarly, in this case, there is nothing in Neustadt's affidavit to show that, without the attached documents, Neustadt would have personal knowledge that Jones' debt was transferred from HSBC to Santander and from Santander to Main Street. Simply declaring he has personal knowledge of these events does not make it so. In other words, nothing in the affidavit "reasonably implies" that Neustadt would have any personal knowledge regarding those transfers absent the documents attached to his affidavit. See id., ¶ 24. ¶ 25. Because neither the averments in Neustadt's affidavit nor the attached documents establish a prima facie showing that Gemini owns Jones' debt, the circuit court erred by granting Gemini summary judgment. We therefore reverse and remand for further proceedings. Although our reversal based on Jones' first argument technically makes it unnecessary for us to address his remaining arguments, see Turner v. Taylor, 2003 WI App 256, ¶ 1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716, we choose to address those arguments in the interest of judicial efficiency because they are likely to arise again on remand, see State v. Temby, 108 Wis. 2d 521, 527, 322 N.W.2d 522 (Ct. App. 1982). II. Wisconsin Stat. § 425.209(1) ¶ 26. Jones' second argument on appeal is that the circuit court erred by granting Gemini summary judgment because Gemini failed to establish that Jones' vehicle was sold in a commercially reasonable manner, as required by Wis. Stat. § 425.209(1). f 27. As a threshold matter, we observe that Gemini argues Jones forfeited this argument by raising it for the first time during the hearing on Gemini's summary judgment motion. Gemini apparently believes that, in order to preserve this argument for appeal, Jones was required to raise it in his brief in opposition to Gemini's motion. However, the single, unpublished case Gemini cites in support of that proposition simply restates the well-established principle that a party forfeits its right to raise an argument on appeal by failing to first raise that argument in the circuit court. See Peterson v. Stevens, No. 2013AP709, unpublished slip op. ¶ 16 (WI App Oct. 24, 2013) (citing Shadley v. Lloyds of London, 2009 WI App 165, ¶ 25, 322 Wis. 2d 189, 776 N.W.2d 838). The record here indisputably shows that Jones raised his argument regarding Wis. Stat. § 425.209(1) in the circuit court. Although Gemini noted during the summary judgment hearing that Jones had not raised § 425.209(1) in his brief, Gemini did not argue Jones had forfeited that argument and did not request additional time to brief and address the issue. Gemini cites no authority supporting its assertion that raising an argument during a motion hearing in the circuit court is insufficient to preserve that argument for appeal. We therefore reject Gemini's forfeiture argument. f 28. Turning to the merits, Wis. Stat. § 425.209(1) provides: This section applies to a deficiency on a consumer credit sale of goods or services and on a consumer loan in which the lender is subject to defenses arising from sales (s. 422.408); a customer is not liable for a deficiency unless the merchant has disposed of the goods in good faith and in a commercially reasonable manner. [7] (Emphasis added.) This court has previously held that a merchant's "failure to dispose of the goods as required under [§ 425.209(1)]" is not an affirmative defense that must be raised and proved by the customer. See Shoeder's Auto Center, Inc. v. Teschner, 166 Wis. 2d 198, 200, 479 N.W.2d 203 (Ct. App. 1991). Rather, "it is the merchant's duty to prove as part of its prima facie case that it disposed of the goods in a commercially reasonable manner before it is entitled to recover a deficiency judgment." Id. ¶ 29. Jones asserts Gemini "has not provided any evidence . . . that would prove the vehicle for which it seeks a deficiency judgment has been sold in a commercially reasonable manner." Gemini does not dispute this assertion.8 Instead, Gemini argues it was merely required, under Shoeder's Auto Center, to prove as part of its prima facie case that Jones' vehicle was sold before Gemini filed suit. We disagree. Although the court in Shoeder's Auto Center initially framed the issue on appeal as whether, "under sec. 425.209(1), a merchant must dispose of the goods before it is entitled to recover a deficiency judgment," Shoeder's Auto Center, 166 Wis. 2d at 199, in resolving that issue the court ultimately concluded "it is the merchant's duty to prove as part of its prima facie case that it disposed of the goods in a commercially reasonable manner before it is entitled to a deficiency judgment," id. at 200. Consistent with Shoeder's Auto Center, we conclude that, in order to make a prima facie case for summary judgment, Gemini was required to present evidence demonstrating that Jones' vehicle was disposed of in a commercially reasonable manner. Because it is undisputed Gemini failed to present any evidence on that issue, we agree with Jones that the circuit court erred by granting Gemini summary judgment.9 III. Statute of limitations ¶ 30. Finally, Jones argues the circuit court erred by granting Gemini summary judgment because a disputed issue of material fact exists regarding whether Gemini's complaint was timely filed. The parties agree the applicable statute of limitations is Wis. Stat. § 893.43(1), which provides that an "action upon any contract, obligation, or liability. . . shall be commenced within 6 years after the cause of action accrues or be barred." The parties further agree that "[a] partial payment on the contractual obligation made before the statute of limitations has run tolls the statute and sets it running from the date of payment." See Liberty Credit Servs., Inc. v. Quinn, 2004 WI App 202, ¶ 6, 276 Wis. 2d 826, 688 N.W.2d 768. The disputed issue is whether the evidence shows that a partial payment was made on Jones' debt within six years before Gemini filed this lawsuit—that is, at any time after March 23, 2009. ¶ 31. In opposition to Gemini's summary judgment motion, Jones filed affidavits averring that he "did not make a payment for the truck in question in 2009." In support of that averment, Jones submitted his banking records from January 1, 2009, through June 30, 2009. Jones contends these records show that he did not make any payment toward the debt during that time period. ¶ 32. Gemini, however, asserts a partial payment was made toward Jones' debt on July 29, 2009. Gemini relies on an account statement from Santander, dated August 17, 2015, which shows a July 29, 2009 payment of $249.90. The account statement provides two descriptors regarding that payment: "User allocated payment" and "Gap Insurance Cancellation/Refund."10 ¶ 33. Jones asserts the July 29, 2009 payment shown on the August 17, 2015 account statement was likely an insurance refund and was not a payment made by Jones himself. However, citing St. Mary's Hospital Medical Center v. Tarkenton, 103 Wis. 2d 422, 427, 309 N.W.2d 14 (Ct. App. 1981), Gemini asserts that the six-year statute of limitations for a contract claim is tolled "based on a payment made by someone other than a debtor if made on behalf of the debtor." Gemini contends: Here, [Jones'] testimony that [he] did not personally make a payment in 2009 failed to raise a genuine dispute as [he] did not also testify that [he has] personal knowledge that no one else made a payment on [his] behalf. In fact, [Jones'] brief admits there was a July 29, 2009 payment by someone else that was credited towards the loan, likely associated with insurance. Under St. Mary's, the payment from the insurance company tolled the statute of limitations. ¶ 34. St. Mary's involved a hospital's attempt to collect unpaid medical bills from Tarkenton, a former patient. Id. at 423-24. At the time of his hospitalization, Tarkenton was insured against some hospitalization costs under a policy issued by Republic National Life Insurance Company. Id. at 423. On July 18, 1972, Tarkenton "authorized Republic to pay the benefits due him under that policy to St. Mary's." Id. Republic subsequently made nine payments to St. Mary's, the last of which occurred on October 31, 1972. Id. Just under six years later, on October 24, 1978, St. Mary's sued Tarkenton seeking to recover the remainder of his unpaid medical bills. Id. ¶ 35. On appeal, we concluded Republic's October 31, 1972 payment to St. Mary's qualified as a partial payment on Tarkenton's debt and therefore tolled the six-year statute of limitations on St. Mary's claim. Id. at 427. We noted that, in order for a partial payment to "operate as a new promise and avoid the bar of the statute of limitations," it must "be made under such circumstances as to warrant a clear inference that the debtor recognized the debt as an existing liability, and indicated his [or her] willingness, or at least an obligation, to pay the balance." Id. at 426 (quoting Davison v. Hocking, 3 Wis. 2d 79, 86, 87 N.W.2d 811 (1958)). We reasoned that, in Tarkenton's case, the undisputed facts showed Tarkenton "recognized his obligation to pay St. Mary's and consented to the manner in which that obligation was partially paid"—i.e., through Republic's direct payment of Tarkenton's insurance benefits to St. Mary's. Id. at 427. ¶ 36. In this case, the record indicates that some type of insurance payment was applied to Jones' debt on July 29, 2009. However, unlike in St. Mary's, there is no evidence here that Jones authorized any insurer to make payments toward the debt on his behalf. The record contains no evidence regarding who purchased the insurance policy under which the July 29, 2009 payment was made, or what terms that policy contained regarding how or under what circumstances the insurer would make refund payments. If Jones did not purchase the policy or someone did not purchase it on his behalf with Jones' knowledge and agreement, it is difficult to comprehend how any refund payment to a creditor under the policy could be said to have been made with Jones' consent. If Jones did take out the policy, one would expect that any refund would have been paid directly to Jones. If the policy instead required that any refund be paid to a creditor, an argument could be made that Jones consented to that procedure by accepting the policy's terms. Under those circumstances, a refund made to a creditor under the policy might be sufficient to trigger the partial payment doctrine. Here, though, there is no evidence that the policy under which the July 29, 2009 payment was made contained such a requirement. ¶ 37. Under these circumstances, we conclude there is a genuine issue of material fact as to whether Jones consented to the July 29, 2009 payment being made on his behalf, such that the payment triggered operation of the partial payment doctrine and therefore tolled the statute of limitations. Accordingly, the circuit court erred by concluding, as a matter of law, that Gemini's claim against Jones was timely filed. By the Court.—Order reversed and cause remanded for further proceedings. All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted. See Wells Fargo Bank, N.A. v. Alexander, No. 2012AP2236, unpublished slip op. ¶ 13 (WI App Aug. 15, 2013) (explaining the difference between "standing" and "real party in interest" and noting that, although they are distinct legal concepts, both are "used to designate a plaintiff who possesses a sufficient interest in the action to entitle him [or her] to be heard on the merits" (quoted source omitted)). Gemini spends a considerable portion of its respondent's brief on appeal arguing that the assignment documents attached to Neustadt's affidavit are admissible, either because: (1) they fall under the hearsay exception for records of regularly conducted activity, see Wis. Stat. § 908.03(6) and Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶ 11, 324 Wis. 2d 180, 781 N.W.2d 503; or (2) they are not hearsay, pursuant to Bank of America NA v. Neis, 2013 WI App 89, ¶ 49, 349 Wis. 2d 461, 835 N.W.2d 527, and Lyon Financial Services, Inc. v. Dr. Manelle Fernando Medical Clinic, Inc., No. 2011AP222, unpublished slip op. ¶ 19 (WI App Nov. 10, 2011). However, Jones does not argue the documents Gemini offered to show its ownership of the debt are inadmissible. Rather, Jones argues those documents fail to make a prima facie showing that Gemini owns the debt. We therefore assume, without deciding, that the documents are admissible, and we limit our analysis to whether the documents are sufficient to establish a prima facie case regarding Gemini's ownership of the debt. A copy of the Motor Vehicle Consumer Simple Interest Installment Sale and Security Agreement between Jones and Timber Ford Mercury was attached to Neustadt's affidavit. Gemini contends this document "shows the assignment of the contract to HSBC." However, the copy of the document in the record is of such poor quality that the section entitled "Assignment" is illegible. The same is true of the copy included in the appendix to Jones' brief. Nevertheless, Jones conceded in the circuit court that HSBC "provided the financing" for the purchase of the vehicle. Consistent with that concession, and absent any appellate argument to the contrary by Jones, we assume the Motor Vehicle Consumer Simple Interest Installment Sale and Security Agreement shows that Jones' loan was assigned from Timber Ford Mercury to HSBC. As one treatise explains: In the typical debt buyer case, the actual assignment of ownership will be accomplished by the creation of three separate documents. First is a signed "forward flow" agreement, that is a lengthy document that will set out the terms of sale of debt in general between the creditor and debt buyer. When a particular portfolio of debt (typically thousands of accounts) are sold between those parties, the parties execute a bill or [sic] sale or other short assignment document. That document will reference the portfolio and the forward flow agreement for the terms of the sale. That short assignment document will be accompanied by a "sale data file" or "final data file" which is an electronic spreadsheet that lists the specific consumer accounts being transferred, which will typically be numbered in the thousands. Jonathan Sheldon et al., Collection Actions: Defending Consumers and Their Assets § 4.3.4.2.1 (3d ed. 2014). In response to Gemini's summary judgment motion, Jones' attorney submitted an affidavit, attached to which were several pages, each of which appears to contain a single line from a spreadsheet. Jones' attorney described these pages as "a true and accurate copy of a spreadsheet provided by [Gemini] to [Jones]." The spreadsheet pages refer to Jones by name, list the "original product" as "HSBC Serv Auto Loan," and list the "seller" as "Main Street Acquisition Corp." However, aside from Jones' attorney's averment that Jones received the spreadsheet pages from Gemini, there is nothing in the record to indicate which company prepared the spreadsheet or the reason for which it was prepared. There is no evidence indicating that this spreadsheet is the "electronic file" referenced in the July 16, 2014 "Bill of Sale and Assignment" from Main Street to Gemini. It is undisputed that Wis. Stat. § 425.209(1) applies to this lawsuit. Gemini notes on appeal that Jones' vehicle was sold for $5,400. Gemini does not, however, develop any argument that the sale of the vehicle was "commercially reasonable." Jones appears to assert that, if he prevails on appeal with respect to his argument regarding Wis. Stat. § 425.209(1), he is entitled to the remedies set forth in Wis. Stat. § 425.305. However, the issue of remedies is premature. We merely conclude in this opinion that Gemini failed to demonstrate as part of its prima facie case for summary judgment that Jones' vehicle was disposed of in a commercially reasonable manner. On remand, further proceedings will be necessary to determine whether the sale of the vehicle was, in fact, commercially reasonable. In addition to the August 17, 2015 account statement, Gemini relies, in part, on Neustadt's averment that "[t]he last payment made by or on behalf of [Jones] occurred on July 29, 2009, in the amount of $249.90." However, Neustadt's affidavit does not indicate that averment is based on anything other than the attached account statement. We therefore focus our analysis on whether the account statement shows that a partial payment was made on July 29, 2009.

2016-07-06 06:36:39.618386+00

Batchelder

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 492 This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellants, Peter and his wife Tanya Goldauskas and the law firm of Berger Zevesky Co., L.P.A.,1 appeal the judgment of the Lorain County Court of Common Pleas. We modify the trial court's judgment. I. In 1995, Mr. Goldauskas began working at the Elyria Foundry Company, Incorporated, appellee, a metal foundry and casting plant. His job involved pulling casings out of the foundry pit, breaking apart molds, and loading the castings for shipment. The castings and molds were often tall, and therefore, were often placed in a deep pit in the foundry. In order to accomplish his job, Mr. Goldauskas was required to attach a chain from a crane to the top of the mold or casting. The only way to access the top of the molds was, apparently, by riding the chains of the cranes as no ladders were provided. On June 30, 1998, Mr. Goldauskas was, apparently, instructed to ride the chain to the top of a twenty-five foot tall casting flask so that he could disassemble it. However, the crane malfunctioned and did not stop lifting at the appropriate time; rather, it lifted Mr. Goldauskas higher and higher. Finally, the crane reached its limit switch, which sheared off a pin and sent Mr. Goldauskas and the chains on which he was riding plummeting to the floor, some thirty feet below. Momentarily, Mr. Goldauskas landed atop the mold onto which he was planning to attach the chain that he had been riding. However, he was knocked off the mold by falling debris. Mr. Goldauskas was injured as he fell from the top of the mold, landing upon the concrete floor far below. At that point, a block broke free from the crane and plummeted to the ground. It landed atop Mr. Goldauskas' leg, severing it from his body. An ambulance was immediately summoned; however, despite medical care, Mr. Goldauskas' leg had to be amputated. *Page 493 Mr. Goldauskas retained Friedman, Domiano Smith Co., L.P.A. ("the Friedman firm") on or about July 2, 1998, as counsel to pursue an action in tort against Elyria Foundry for the injuries that he had suffered in his fall. The Friedman firm filed a complaint on his behalf in the Lorain County Court of Common Pleas on December 4, 1998. The firm filed interrogatories and requests for the production of documents on the same day. The Friedman firm pursued discovery in the following months. Depositions were taken of Lowell Morrow, a supervisor in the area in which Mr. Goldauskas worked and witness to the accident, Floyd Baum, vice-president of Elyria Foundry, Tod Blair, safety manger at Elyria Foundry, and Duane Warner, night shift supervisor for shakeout,2 among other depositions and interviews. Mr. Goldauskas then terminated his relationship with the Friedman firm and retained Berger Zavesky Co., L.P.A. ("the Berger firm") in November 1999. The Berger firm continued the discovery process, moving for additional time to produce expert reports on November 24, 1999. The trial court granted additional time on December 2, 1999. On May 5, 2000, Elyria Foundry moved for summary judgment. The Berger firm filed its brief in opposition to summary judgment on May 31, 2000 and attached numerous depositions and expert reports. A number of these documents were produced in part or in toto through the efforts of the Berger firm, after the Friedman firm had been discharged. Among these was that of Richard E. Harkness, who prepared an expert report detailing the causal chain leading up to the accident, Gerald C. Rennell, who provided an expert report on the safety conditions and procedures at Elyria Foundry, Scott Shamblin, a crane operator at Elyria Foundry, Rodney Coker, a crane operator at Elyria Foundry, and Jeff Lauren, an employee at Elyria Foundry. However, the Berger firm also used the deposition of Tod Blair, safety manager at Elyria Foundry, the deposition of Greg Fretch, a night supervisor at Elyria Foundry, which had been produced solely through the efforts of the Friedman firm, and a discovery deposition taken by Elyria Foundry during Mr. Goldauskas' representation by the Friedman firm. Further, Mr. Harkness and Mr. Rennell had both been originally retained by the Friedman firm, and hence, had begun work on their reports prior to the Friedman firm's dismissal and the Berger firm's entry into the case. The motion for summary judgment was not ruled upon, however, as the Berger firm settled Mr. Goldauskas' claim for a sealed3 amount prior to the *Page 494 trial court's ruling. The trial court was notified of the settlement on June 13, 2000. In a conference between Mr. Domiano of the Friedman firm and Mr. Zavesky of the Berger firm, Mr. Domiano "asked [Mr. Zavesky] if [he] would protect [the Friedman firm's] interest, and [Mr. Zavesky] told [Mr. Domiano] that [he] would, and [Mr. Zavesky] asked [Mr. Domiano] to please send [Mr. Zavesky] a letter." Later, on March 16, 2000, the Friedman firm sent a letter to the Berger firm stating that "[m]y firm is seeking to recover $25,077.33 quantum meruit [sic]." Further, on March 31, 2000, the Friedman firm mailed the Berger firm a document entitled "Notice of Charging Lien" in regard to the services rendered by the Friedman firm. On June 30, 2000, the Friedman firm filed a motion to declare and enforce the charging lien on the settlement proceeds and documents in support of the motion in the Lorain County Court of Common Pleas. The Berger firm filed a brief and exhibits in opposition on July 7, 2000. Numerous depositions were taken and discovery was had. On August 10, 2000, Mr. Goldauskas and Elyria Foundry filed a motion to dismiss the cause between them with prejudice. The trial court dismissed the cause between those parties on August 14, 2000. The matter of the division of attorney fees was heard by the trial court on, inter alia, October 26, 2000 and November 22, 2000. On December 1, 2000, the trial court entered judgment in favor of the Friedman firm in the amount of three hundred thousand dollars, fees and costs inclusive, with the balance of the contingency fee going to the Berger firm. This appeal followed. II. The Berger firm asserts three assignments of error. We will address each in due course, consolidating the Berger firm's first two assignments of error to facilitate review. A. First Assignment of Error THE TRIAL COURT ERRED BY NOT ESTOPPING THE FRIEDMAN FIRM FROM CLAIMING AN AMOUNT OF QUANTUM MERUIT [sic] IN EXCESS OF THE AGREED UPON FEE. Second Assignment of Error THE TRIAL COURT ERRED IN DENYING APPELLANTS['] MOTION FOR A DIRECTED VERDICT. The Berger firm avers that the trial court erred in that its decision was contrary to the evidence presented and applicable law. Essentially, the Berger firm argues that the Friedman firm was estopped from demanding more than the amount stated in its March 16, 2000 letter and that the trial court abused its *Page 495 discretion in awarding the Friedman firm three hundred thousand dollars in attorney fees. We find that the Friedman firm was not estopped, but agree that the trial court acted unreasonably in determining the fee in quantum meruit and modify its holding. We will first address the Friedman firm's estoppel argument and then pass upon the award of fees in quantum meruit. "The purpose of equitable estoppel is to prevent actual or constructive fraud and to promote the ends of justice." Ohio State Bd. of Pharmacy v. Frantz (1990),51 Ohio St. 3d 143, 145. Further, [t]he party claiming the estoppel must have relied on conduct of an adversary in such a manner as to change his position for the worse and that reliance must have been reasonable in that the party claiming estoppel did not know and could not have known that its adversary's conduct was misleading. Id. The Berger firm argues that it relied upon the representations of the Friedman firm regarding the appropriate fee in quantum meruit to its detriment. However, an offer to settle must be transmitted by an attorney to the client, and it is the client's decision whether the settlement should be accepted. E.C. 7-7 and 7-8;Paxton v. Dietz (May 28, 1985), Franklin App. No. 84AP-972, unreported, 1985 Ohio App. LEXIS 7938, *7 ("[T]he decision to accept or to make settlement offers is one for the client rather than the attorney[.]"); Rizzo v. Haines (1989), 520 Pa. 484, 500-01 (holding that "[i]t was incumbent upon [the attorney], as a matter of law, to communicate all settlement offers to his client" and that it is "the client's choice to accept or reject a settlement offer"). Further, the attorney fee herein, pursuant to the fee agreements, is a fixed percentage of the amount recovered. Hence, it mattered not at all to the client, in terms of the amount he was to receive, what portion of that fee amount was demanded by the Friedman firm. Accordingly, we conclude that the Berger firm could not have ethically refused to settle the cause in the hopes of obtaining a higher verdict or settlement offer because the Friedman firm was demanding a large portion of the fee in quantum meruit; this decision is for the client. Therefore, we can find no reasonable detrimental reliance on the part of the Berger firm under either sufficiency or manifest weight review. Next, the Berger firm challenges the trial court's determination of attorney fees in quantum meruit. A trial court called upon to determine the reasonable value of a discharged contingent-fee attorney's services in quantum meruit should consider the totality of the circumstances involved in the situation. The number of hours worked by the attorney before the discharge is only one factor to be considered. Additional relevant considerations include the recovery sought, the skill demanded, the results obtained, and the attorney-client agreement itself. *Page 496 Reid, Johnson, Downes, Andrachik Webster v. Lansberry (1994), 68 Ohio St. 3d 570, paragraph three of the syllabus. "Other factors to be considered will vary, depending on the facts of each case." Id. at 576. DR 2-106(B) gives guidance in determining the reasonableness of attorney fees stating "* * * Factors to be considered as guides in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent." Id., at fn. 3. "Because the factors to be considered are based on the equities of the situation, those factors, as well as the ultimate amount of quantum meruit recovery by a discharged attorney, are matters to be resolved by the trial court within the exercise of its discretion." Id. at 577. An abuse of discretion means more than an error of judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Freeman v. Crown City Mining, Inc. (1993), 90 Ohio App. 3d 546, 552. In determining whether the fee awarded was appropriate and what the appropriate fee was, we will consider the factors enumerated in DR 2-106 and the factual and legal background of this matter as we find it to be relevant, as the "[o]ther factors to be considered will vary, depending on the facts of each case." Lansberry, 68 Ohio St.3d at 576. Mr. Goldauskas' claim was one in intentional tort against his employer, Elyria Foundry. Both the Berger firm and the Friedman firm agree that such a cause of action is difficult to maintain and prevail upon. Further, the evidence adduced below indicated that *Page 497 the Friedman firm undervalued Mr. Goldauskas' claim. Mr. Goldauskas testified that the Friedman firm explained to him that his case was only worth about one hundred thousand dollars. Further, Mr. John Meros, Esq., the Friedman firm's expert, testified that he had seen an estimate of the value of Mr. Goldauskas' claim in the Friedman firm's file of one hundred thousand dollars. Mr. Domiano testified that he valued the case at between seven hundred and fifty thousand and one million dollars after a jury trial. Hence, the Friedman firm would clearly have recommended that Mr. Goldauskas settled the matter for less than that amount rather than face the risk of a defense verdict at trial. Further, summary judgment is also highly risky in the estimation of both the Friedman firm and the Berger firm. Accordingly, to avoid such risk at summary judgment and upon trial by jury, a lower settlement amount would have been attractive prior to the trial court's ruling on summary judgment. It was the Berger firm that, marshaling additional depositions and full scale expert reports, battled against Elyria Foundry's motion for summary judgment and, in doing so, obtained a settlement far in excess of the amount the Friedman firm expected to recover after trial. As the trial court noted, "[t]he negotiating of a settlement has to * * * be given a premium." Accordingly, the trial court awarded the Friedman firm three hundred thousand dollars quantum meruit. However, upon review of the record, we find this amount to be unreasonable as discussed below. Pursuant to the contingent fee agreement the Friedman firm has with Mr. Goldauskas, the Friedman firm's contingent fee was to be forty percent. Accordingly, in the Friedman firm's estimation, the fee would have been between three hundred thousand dollars and four hundred thousand dollars after trial. The testimonies of the parties and their experts clearly show that the Friedman firm would have recommended settling the claim for less than that amount prior to trial and especially prior to summary judgment, which all believe is highly risky. Hence, we find the trial court's determination of attorney fees to be unreasonable as it gave the Friedman firm the same amount as if, by its own estimation, it had pursued the cause through the perils of summary judgment and trial. We further take into consideration the contract that the Friedman firm entered into with Mr. Goldauskas. Although questions as to its validity were raised during the proceedings below, no copy signed by any attorney at the Friedman firm was produced as is mandated by R.C. 4705.15. Further, some weight must be given to Mr. Domiano's own quantification of the quantum meruit figure prior to the Berger firm's settlement of the case for an amount far in excess of the Friedman firm's valuation of the matter. Mr. Domiano indicated that his quantum meruit recovery was valued at $25,077.33 in March of 2000. Further, the testimony of the Berger firm's expert, Mr. Robert F. Linton, Esq., indicated that this amount was "value billing" in which the total value of the work is taken into account as all *Page 498 members of the firm, including both legal and non-legal staff, are billed at two hundred and fifty dollars per hour. Hence, we must determine what amount is appropriate in quantum meruit. The Friedman firm estimated the value of the cause of action to be between seven hundred and fifty thousand and one million dollars. Taking the higher end of this amount and multiplying it by the forty percent contingent fee amount yields a fee of four hundred thousand dollars. Mr. Domiano, in a letter dated June 26, 2000, stated that his firm was entitled to fifty percent of the fee obtained in quantum meruit. Fifty percent of four hundred thousand is two hundred thousand dollars. Hence, we find this amount to be the appropriate amount iN quantum meruit. The trial court judge is highly experienced, observed the witnesses and had the opportunity to adjudge their credibility, and has experience in this area of law from his time in private practice. However, we must conclude that the award of three hundred thousand dollars in attorney fees quantum meruit is unreasonable. Accordingly, we modify the trial court's entry of judgment lowering the amount to be received by the Friedman firm from three hundred thousand dollars to two hundred thousand dollars, fees and expenses in the amount of $8,139.83 to be included in this amount. The balance of the contingent fee shall be distributed to the Berger firm.4 The Berger firm's first and second assignments of error are sustained in part and, in remaining part, are overruled. B. Third Assignment of Error THE TRIAL COURT ERRED IN DENYING APPELLANTS' MOTION FOR A JURY TRIAL. The Berger firm abandoned this argument during oral arguments before this court. Accordingly, we do not pass upon this assignment of error. III. The Berger firm's first and second assignments of error are sustained in part and overruled in part. The judgment of the Lorain County Court of Common Pleas is modified accordingly. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to both parties equally. Exceptions. ____________________________ WILLIAM G. BATCHELDER SLABY, J., CONCURS. 1 The law firms of Berger Zavesky Co., L.P.A. and Friedman, Domiano Smith Co., L.P.A. are the real parties in interest. The dispute both below and in this appeal centers on the division of the contingent fee between the two firms. 2 At one point in the process of casting metal, removing it from the mold, and disassembling the mold, it becomes necessary to shake the sand from the mold, hence the term shakeout. 3 The record contains the amount but, as it was sealed at the parties' request, this court will not mention the settlement amount in this opinion although we have reviewed that document in reaching our opinion. 4 As the Indiana Supreme Court held in Galanis v. Lyons Truitt (Ind. 1999), 715 N.E.2d 858, 863, quoting Saucier v. Hayes DairyProducts, Inc. (La. 1979), 373 So. 2d 102, 108, "[O]nly one contingency fee should be paid by the client, the amount of the fee to be determined according to the highest ethical contingency percentage to which the client contractually agreed [and] * * * that fee should in turn be allocated between or among the various attorneys involved in handling the claim in question * * *." (Alterations original). *Page 499

2016-07-06 06:36:40.81505+00

Carpenter

The Probate Court denied an application to admit to probate the will of Elizabeth H. Fisher on the ground that the evidence failed to establish its due execution. From this order the proponent took this appeal on questions of law. In company with her brother-in-law, who was her *Page 7 attorney and had prepared the will for her, and who was a beneficiary under it, Mrs. Fisher went to the home of a friend, Helen D. Pilliod, who, with her mother, signed the paper as witnesses. They both testified that she asked them in substance: "Will you be a witness to my will?" and the attorney produced the paper and asked her in the presence of both witnesses: "Is this your will?" and she said "This is my will." Neither saw her signature on the paper, but one of them said she saw some writing, "not printing," on it. The instrument they signed was entirely typewritten except the three signatures. In brief, this was the only evidence the Probate Court considered. Section 10504-3, General Code, tells us how a written will must be made, as follows: "Such will shall be signed at the end by the party making it, or by some other person in his presence and by his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge his signature." In McWilliams v. Central Trust Co., 51 Ohio App. 246,200 N.E. 532, the judges of this court sitting in Hamilton county, said that in a proceeding to probate a will, it is mandatory upon the court to admit the will when a prima facie case is made, and that it is not the duty of the court to weigh the evidence further than to determine that substantial evidence has been presented on the facts necessary for the probate of the will. Did the evidence considered by the court meet that requirement? Whether it had been signed by Elizabeth H. Fisher when the witnesses signed it, might be questioned. Whether the writing one of the witnesses saw was her signature is uncertain. If it was, the acknowledgment of it as described by the attesting witnesses was sufficient to make the prima facie case. The law does not prescribe the form in which such an *Page 8 acknowledgment must be made. Raudebaugh v. Shelley, 6 Ohio St. 307,316; Haynes v. Haynes, 33 Ohio St. 598, 31 Am. Rep., 579;Eggleston v. Gardner, 16 C.C. (N.S.), 455, 31 C.D., 627. It is urged that these decisions are not applicable now because the last two words of the above-quoted section were then "the same" instead of "his signature." This is a distinction without a difference — the words "the same" referred to the testator's subscription. The statute was in its present form when Blagg v. Blagg,55 Ohio App. 518, 9 N.E.2d 991 (motion to certify overruled March 24, 1937), was decided. The testator had signed the will before he presented it to the witnesses. To one he merely said "Will you put your signature on this paper?" That person did not know and was not told what the paper was, nor did he recall whether the testator's signature was on it. The other witness, the second to sign, knew the paper was a will and saw testator's signature on it, but to her he merely said "Will you witness this?" Neither witness saw him sign, nor did he expressly acknowledge to either it was his signature. This was held to be sufficient evidence of execution and acknowledgment, and theRaudebaugh and Haynes cases were cited in support of the ruling. In the case at bar the proponent offered the testimony of her attorney who had previously prepared the instrument for the deceased. He testified fully and was cross-examined and then the court struck all of his testimony from the record. He told of two conversations with Mrs. Fisher the evening the witnesses signed, one at his home and later when he went with her to the home of her friends, the witnesses. His version of what she said there is much more specific as to her acknowledgment of her signature. Lawyer-like, in the presence of the witnesses, he told her to tell the witnesses what the paper was and whether the signature *Page 9 was hers, and she said: "This is my will, I want you to be witnesses to. I have already signed it, and I got bawled out for it, and that is my signature at the end of it." After this testimony was given, it was stricken out as incompetent by the court "on the authority of Collins v.Collins," evidently referring to 110 Ohio St. 105,143 N.E. 561, 38 A.L.R., 230, wherein the witness was the attorney for the testator and a beneficiary under the will, and both relationships to the matter are discussed in the opinion. The decision was that the witness was incompetent. The record in the instant case does not disclose whether the court's ruling on the competency of this witness was based on the fact he was a beneficiary or the attorney for the testatrix and disqualified by Section 11494 (1), General Code, because his communications with her were confidential. As the Collins case, supra, expressly does not decide the question as to the beneficiary relationship, it would seem the trial court's allusion to that case had reference to the attorney feature. In the Collins case, revivor of a revoked codicil to a will was sought to be established by the testimony of the one witness who was the testator's attorney but was not an attesting witness to the codicil in question. His professional conversations with the testator were not in the presence of a third person and were therefore confidential and privileged. Communications between an attorney and client in the presence of a third party are not confidential, hence not privileged. Whigham v. Bannon, Admr.,21 Ohio App. 496, 506, 153 N.E. 252. In Foley v. Poschke, 137 Ohio St. 593, 31 N.E.2d 845, this "general rule" is recognized but it is there said it does not apply when the "third person is the agent of either the client or the attorney." The conversation had with Mrs. Fisher at the Pilliod home was not confidential and hence not privileged. The very purpose of going there was to give publicity *Page 10 to the formality of the execution of the will, and that there be present witnesses who could testify as to what was done and said. The rejection of this evidence was prejudicial error. In the ordinary case a reviewing court cannot base its judgment on evidence erroneously stricken out in the trial court, but can only order a new trial that such evidence may be presented and weighed with other evidence by the fact-finding tribunal. Section 10504-18, General Code, which says what witnesses may be heard by the court, does not permit the introduction of evidence by the opponents of probate (In re Hathaway, 4 Ohio St. 383), and all the proponents need to do is make a prima facie case. With the competent testimony of the attorney, which was stricken out, all of the facts necessary to admit the will to probate were before the court and a prima facie case was made and it was the mandatory duty of the court to grant the application. In the face of this rather unusual situation, it would be an idle ceremony to remand this cause for a new trial. Accordingly, the judgment is reversed and the judgment of this court is that the will be admitted to probate. Judgment reversed and final judgment for appellant. OVERMYER and LLOYD, JJ., concur. *Page 11

2016-07-06 06:36:40.907241+00

Doan

Plaintiff-appellant Richard Halegua Fantastic Things, Inc. ("Fantastic Things"), a comic art dealership, filed a complaint against defendant-appellee Crum Forster Commercial Insurance ("Crum Forster") which sought $31,125 in damages. Both parties filed motions for summary judgment. The trial court granted Crum Forster's motion for summary judgment and denied the motion filed by Fantastic Things. Fantastic Things then filed this appeal. *Page 392 On appeal, Fantastic Things contends, in a single assignment of error, that the trial court erred in granting Crum Forster's motion for summary judgment and in denying its motion for summary judgment. We find no error, and, therefore, we affirm the judgment of the trial court. In December 1988, Richard Halegua, owner of Fantastic Things, purchased some art work from two different sources. He subsequently sold the pieces to several clients. In March 1989, Halegua received a telephone call from the director of the Museum of Cartoon Art in New York informing him that some of the art he had purchased in December had been stolen from the museum by Sherman Krisher. At the time Halegua purchased the pieces, he had no knowledge that they had been stolen from the museum. A short time later, Halegua was contacted by an FBI agent who indicated that Krisher's family was willing to buy any pieces of the stolen art in an effort to help their son receive a lesser sentence. Halegua then contacted an attorney in New York to help him with this situation. The attorney confirmed that Krisher's family was willing to buy some of the stolen art to make restitution to the museum. Halegua began buying back the stolen art that he had previously sold to several of his clients. After recovering two of the stolen items, Halegua's attorney contacted Krisher's attorney. Krisher's attorney informed Halegua's attorney that the family was not willing to buy only two of the stolen items in attempting to make restitution to the museum for their son. However, Krisher's attorney requested that Halegua continue looking for the stolen property. By October 1989, Halegua had recovered all the stolen pieces of art that he had sold to his clients. Halegua's attorney contacted Krisher's family to inform them that the property had been recovered. The next day, police officers confiscated the stolen art that had been recovered by Halegua. Halegua then filed a claim with his insurance company, Crum Forster, to cover his loss occasioned by the confiscation of the stolen art purchased by him. Crum Forster denied coverage under Halegua's insurance policy. In Phillips v. Cincinnati Ins. Co. (1979), 60 Ohio St.2d 180, 14 O.O.3d 413, 398 N.E.2d 564, the Supreme Court of Ohio dealt with the issue of whether a person had an insurable interest in a stolen motor vehicle which was then stolen from him. The court in Phillips noted that other jurisdictions had considered this issue, with a marked division of authority. The court then stated as follows: "One view holds that, since even a bona fide purchaser cannot acquire good title from a thief, such a buyer has no insurable interest in the vehicle. However, a contrary theory bases an insurable interest on the economic interest a purchaser has in protecting his investment in the vehicle, or on the insured's right to *Page 393 possession of the vehicle against all the world, except the true owner. Primarily on public policy grounds, to discourage trading in stolen property, these latter courts have usually required that the insured be an innocent, bona fide purchaser of the stolen vehicle." (Footnotes omitted.) Id. at 181-182, 14 O.O.3d at 414-415, 398 N.E.2d at 565-566. The Phillips court agreed with the reasoning of the courts holding that an insurable interest is based upon the economic interest of the purchaser in the stolen property. The court inPhillips went on to hold that "[a]n innocent, bona fide purchaser of a stolen motor vehicle, possessing an Ohio certificate of title, valid on its face, has an insurable interest in that vehicle." Id. at syllabus. In the case before this court, Halegua was not an innocent, bona fide purchaser of property. Instead, he was aware of the fact that the art was stolen property prior to purchasing it back from his clients. Although his motives in recovering the stolen property for Krisher's family may have been well intentioned, the fact remains that Halegua knew that he was purchasing stolen property. Because Halegua was not an innocent, bona fide purchaser of the property, we hold that he did not have an insurable interest in the property. See Phillips, supra. Without an insurable interest in the confiscated property, Halegua had no right to recover his loss under his insurance policy. See Milano v.Cincinnati Equitable Ins. Co. (Apr. 9, 1992), Cuyahoga App. No. 62239, unreported, 1992 WL 74293. Furthermore, we note that at the time Halegua filed his claim for insurance, the true owner of the stolen art had challenged Halegua's right to possession. The police confiscated the art on behalf of the true owner, the New York Museum of Cartoon Art. When the art was confiscated, Halegua lost his right to possession of the stolen items, and, therefore, he also lost any insurable interest he arguably might have had in the property. See Phillips, supra. Because no genuine issues of material fact remain to be litigated and because Crum Forster is entitled to judgment as a matter of law, we hold that the trial court properly entered summary judgment for Crum Forster and properly refused to enter summary judgment for Fantastic Things. See Civ.R. 56(C). The single assignment of error is, therefore, overruled. The judgment of the trial court is affirmed. Judgment affirmed. SHANNON, P.J., and M.B. BETTMAN, JJ., concur. *Page 394

2016-07-06 06:36:41.016368+00

Quillin

Plaintiff-appellant, George Laguta, an inmate at the Marion Correctional Institution, acting pro se, sued defendant-appellee, John Serieko, for breach of an alleged partnership agreement. The trial court notified Laguta that a pretrial hearing, in accordance with Loc. R. 8 of the Court of Common Pleas of Summit County, General Division, would be held in eleven days and that "[f]ailure to attend the pretrial conference may result in sanctions being imposed, including adverse judgment for failure to prosecute or defend." Laguta filed an affidavit of indigency and a motion to be transported to the courthouse for the pretrial conference. As expected, Laguta failed to appear at the pretrial conference and the court dismissed his action with prejudice for failure to prosecute. Civ. R. 41(B)(1). Laguta appeals. On appeal, Laguta contests the trial court's dismissal with prejudice for failure to prosecute. We hold that the trial court abused its discretion in imposing the severest of all sanctions, dismissal with prejudice, without first considering other alternatives which would lead to a resolution on the merits. It is within the inherent powers of the court to dismiss an action sua sponte for failure to prosecute. Link v. Wabash RR.Co. (1962), 370 U.S. 626. Pursuant to Civ. R. 41(B)(1), notice of the intended dismissal must be given to the plaintiff. Perotti v.Ferguson (1983), 7 Ohio St.3d 1, 7 OBR 256, 454 N.E.2d 951;Pembaur v. Leis (1982), 1 Ohio St.3d 89, 1 OBR 125,437 N.E.2d 1199. Such notice permits the plaintiff an "opportunity to comply with the order, correct the defect, or proceed before dismissal * * *." Perotti, supra, at 3, 7 OBR at 257, 454 N.E.2d at 952. Here, Laguta asked to be transported *Page 267 to the courthouse to comply with the notice. In situations where, as here, the plaintiff is unrepresented by counsel and incarcerated, the federal courts have ruled that trial courts should pursue avenues other than dismissal for want of prosecution in order to ensure that those claims so deserving be adjudicated on their merits. Poole v. Lambert (C.A. 11, 1987),819 F.2d 1025; Palmer v. Decatur (C.A. 7, 1987), 814 F.2d 426;Reynolds v. Foree (C.A. 8, 1985), 771 F.2d 1179; Sisk v. UnitedStates (C.A. 7, 1985), 756 F.2d 497; Holt v. Pitts (C.A. 6, 1980), 619 F.2d 558; Heidelberg v. Hammer (C.A. 7, 1978),577 F.2d 429. If the risks and expense involved in transporting the prisoner to the courthouse are prohibitive, these courts have suggested a number of other alternatives to dismissal including a bench trial in the prison, trial by depositions, appointment ofpro bono counsel to assist the plaintiff, postponement of proceeding if the plaintiff's release is imminent, or dismissal without prejudice leaving open the possibility of the plaintiff's refiling his case at a later date. We too recognize that civil actions filed by pro se prisoners provide peculiar problems to our already overburdened trial courts. We therefore borrow from our federal counterpart in urging trial courts to be "imaginative and innovative" in dealing with such cases. Poole, supra, at 1029. It must always be kept in mind that the main objective of justice is to decide cases on their merits. See Perotti, supra, at 3-4, 7 OBR at 258, 454 N.E.2d at 953 (C. Brown, J., concurring). Thus, the trial court must consider whether lesser sanctions would best serve this interest.Dukes v. Cole (1985), 23 Ohio App.3d 65, 23 OBR 110,491 N.E.2d 374. Upon receiving notice of the intended dismissal if he failed to appear at the pretrial conference, Laguta asked the trial court to transport him to the courthouse. The next communication Laguta received was a judgment entry informing him that his case was dismissed with prejudice. We hold that the trial court's dismissal with prejudice of Laguta's claim without first reviewing lesser sanctions and determining that their application would not further the interests of justice was an abuse of discretion. We, therefore, reverse and remand for further proceedings. Judgment reversed and cause remanded. BAIRD, P.J., and GEORGE, J., concur. *Page 268

2016-07-06 06:36:41.044403+00

Nader

OPINION Appellant, Drillex, Inc., appeals two decisions of the Lake County Court of Common Pleas granting partial summary judgment to appellee, the Lake County Board of Commissioners ("Lake County"). The combined judgment entries completely granted summary judgment to Lake County. Appellant, an Ohio corporation solely owned by Edward H. Tresger, owns 351.38 acres of underdeveloped and undeveloped property in Painesville Township, within the Greater Mentor Sub-District of the Lake County Regional Sewer District. Appellant's property was formerly held by Edward H. Tresger, Inc. ("Tresger") and/or Fairway Pines Development Company, appellant's predecessors in interest. In 1977, Tresger and Painesville Joint Venture, an Ohio partnership, petitioned Lake County to extend a sanitary sewer main in Painesville Township. In this petition, Tresger and Painesville Joint Venture waived objections and consented to being assessed approximately seventy percent of the construction cost. This petition, which was accompanied by a signed acknowledgment and consent form, *Page 387 contained total tentative assessments totaling $527,150. Lake County's estimated contribution of $73,000.61 was to cover the cost to over-size a portion of the sewer line. The assessments were in accordance with the special benefits conferred to the parties; Tresger's estimated assessment was $392,358.16 and Painesville Joint Venture's was $61,791.23. Appellant has fully paid its actual assessment of $438, 447.13. On February 14, 1977, Lake County accepted the petition and passed a Resolution of Necessity recognizing the need to extend the sewer line known as Sanitary Sewer Improvement Project No. 108-S ("108-S"). On March 25, 1977, Lake County passed a resolution to proceed with 108-S. Subsequently, the sewer line was constructed. On July 22, 1999, appellant filed a complaint in the Lake County Court of Common Pleas alleging a governmental tort, taking without compensation, breach of contract, and seeking injunctive relief. On August 16, 1999, appellee filed both an answer and a motion for summary judgment asserting that: it was entitled to sovereign immunity; no taking occurred; and, no written agreement or board resolution constituting a contract existed. On January 24, 2000, the court granted appellee partial summary judgment as to the governmental tort and breach of contract claims. On January 27, 2000, Lake County passed a resolution whereby it resolved that appellant was "guaranteed 1.4 million gallons per day of average daily flow for its property located within Sanitary Improvement Project No. 108-S." On February 10, 2000, appellee filed a supplemental motion for summary judgment arguing that appellant's remaining claims were not ripe. On May 1, 2000, appellant filed a motion requesting that the trial court reconsider its January 24, 2000 judgment entry. On May 26, 2000, the trial court denied appellant's motion for reconsideration and granted appellee's supplemental motion for summary judgment. Appellant now appeals the judgment entries filed by the trial court on January 24, 2000, and May 26, 2000 and assigns the following as error: "[1] The lower court erred when it determined that Drillex did not have a valid cause of action for breach of contract against Lake County. "[2.] The lower court erred when it failed to reconsider the granting of summary judgment after Lake County passed its January 27, 2000 Resolution acknowledging its contract with Drillex. "[3.] The lower court erred when it ruled without explanation that Drillex failed to show that Lake County had reduced any special benefits on Drillex without compensation." In its first assignment of error, appellant argues that the trial court erred in determining that a contract did not exist between the parties. Appellant *Page 388 contends that the requirements of R.C. 305.25 were met by its introduction of Lake County's Resolution of Necessity and documents incorporated by reference therein. Thus, appellant has demonstrated its right, by contract, to 1.4 million gallons per day of average daily flow for its property located within 108-S. Appellee argues that appellant has not met the strict procedural requirements enumerated in R.C. 305.25 and no contract exists. R.C. 305.25, which governs the validity of contracts, provides: "[n]o contract entered into by the board of county commissioners, or order made by it, shall be valid unless it has been assented to at a regular or special session of the board, and entered in the minutes of its proceedings by the county auditor or the clerk of the board." "The Ohio General Assembly has consistently emphasized that contractual arrangements with a county's board of commissioners are only valid if the contract has been assented to at a `regular or special session' and `entered in the minutes' of its proceedings by a duly authorized agent * * *." Knox Electrical Constr., Inc. v. Huron Cty. Landfill (June 30, 1993), Huron App. No. H-92-045, unreported, 1993 WL 235821, at 2. In the instant case, the record is devoid of minutes by Lake County assenting to a contract with appellant or its predecessors in interest. "If a county contract has not jumped through these procedural hoops, then the contract is void." Id., citing Buchanan Bridge Co. v. Cambell (1899),60 Ohio St. 406, 420 (holding contracts made in violation or disregard of statutes are void). Appellant failed to demonstrate the procedural requirements set forth in R.C. 305.25. Thus, the trial court did not err in finding that no contract existed and, consequently, appellant has no breach of contract claim. Additionally, R.C. 5705.41 "declares void every contract or order involving the expenditure of money by a subdivision or taxing unit unless there is an attached certificate that the amount appropriated is in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances." Pincelli v. Ohio Bridge Corp. (1996), 5 Ohio St.2d 41, 46. The record is devoid of an auditor's certificate. Thus, assuming arguendo, a contract existed, it would be void under R.C. 5705.41, due to the nonexistence of an auditor's certificate. Further, Lake County's January 27, 2000 resolution, guaranteeing appellant a reserve capacity of 1.4 million gallons per day of average daily flow for its property, does not alter this finding. The resolution does not acknowledge that a prior contact existed between the parties. The resolution merely states that appellant paid an assessment for sewer capacity. There is no indication that appellee has breached the guarantee set forth in the January 27, 2000 resolution; i.e., the record is silent as to any indication that appellee cannot, did not, or will *Page 389 not provide appellant with the promised reserve capacity. For the foregoing reasons, appellant's first assignment of error lacks merit. In appellant's second assignment of error, it argues that the trial court erred in denying its motion for reconsideration, filed pursuant to Civ.R. 54(B). "Civ.R. 54(B) allows for a reconsideration or rehearing of interlocutory orders. The rule, when discussing interlocutory orders, states, in pertinent part, that they are `subject to revision at any time before the entry of judgment adjudicating the claims and the rights and liabilities of all the parties.' Therefore, a motion for reconsideration would be the proper procedural vehicle for obtaining relief after interlocutory orders." Pitts v. Dept. of Transp. (1981), 67 Ohio St.2d 378, 379, fn. 1. In support of its motion for reconsideration, appellant argued that the January 27, 2000 resolution acknowledged the existence of a contract between the parties. Appellee argues that the resolution does not acknowledge a contract. The January 27, 2000 resolution provides that Lake County guarantees appellant 1.4 million gallons of average daily flow for its property located within 108-S. The resolution does not acknowledge a prior contract, or a current contract, but is merely a written commitment by Lake County to provide specific sewer line capacity to appellant. The trial court did not err in denying appellant's motion to reconsider its decision granting summary judgment against appellant on the claim of breach of contract. Appellant's second assignment of error is without merit. In its third assignment of error, appellant argues that appellee reduced its special benefits1 without compensation and the court erroneously found this claim to be not ripe. It argues that allowing non-assessed property owners to tap into 108-S reduces appellant's special benefit without compensation, thus, constituting a taking. In support of its argument, appellant points to evidence showing that one non-assessed property owner, Atfab, was permitted to tap into the 108-S sewer line. Appellant also argues that "[b]y paying one hundred percent (100%) of the assessment, Drillex was entitled to one hundred percent (100%) of the benefit. Appellee argues that appellant's claim is not ripe because there is no evidence that appellant's special benefit, the enhancement of his property due to the sewer line, has in fact been reduced. *Page 390 The Supreme Court of Ohio has stated that "[t]he ripeness doctrine is motivated in part by the desire `to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies * * *.'" State ex.rel.Elyria Foundry Co. v. Indust. Comm. (1998) 82 Ohio St.3d 88, 89 quotingAbott Laboratories v. Gardner (1967), 387 U.S. 136, 148. Having determined that no contract exists between the parties to this dispute, we begin our analysis with R.C. Chapter 6117, which governs county sewers and sewer districts. Pursuant to R.C. Chapter 6117, a county's board of commissioners is authorized to construct, maintain and operate a public water and sewer system. "The powers granted to the county commissioners include the authority to assess property benefited by the improvement." ConcernedBusinessmen of Catawba Island Twp. v. Ottawa Cty. Bd. of Commrs. (1996),115 Ohio App.3d 437. "R.C. 6117.30 provides the mechanism by which a county may levy assessments on landowners for the costs of constructing a sewer." McCann v. Madison Cty. Commrs. (Nov. 20, 2000), Madison App. No. CA99-12-032, unreported, 2000 WL 1725413. In addition, "[w]henever the owners of all the lots and lands to be benefited by, and to be assessed for, any sewer improvement * * *, by petition in writing, request the board of county commissioners to provide for the construction, maintenance, and operation of any such improvements, describing the improvements desired and the lots and lands owned by them respectively to be assessed to pay the cost and maintenance of such improvements, and consenting that their said lots and lands may be assessed to pay the cost of such improvements and of maintenance and operation as provided in such sections, and waive notice and the publication of all resolutions and legal notices provided for in such sections, the board shall prepare the necessary plans, specifications, and estimates of cost of construction, maintenance, and operation thereof, and a tentative assessment. * * *" R.C. 6117.28. A special assessment for the cost and expense of the construction of a main, branch or intercepting sewer shall be in proportion to the special benefits resulting from the improvement. R.C. 6117.30. In the case sub judice, appellant's predecessor petitioned Lake County for the sewer, waived objections, and paid its entire assessment, in 1978. However, appellant cites Cincinnati, L. N. Ry. Co. v. City ofCincinnati (1900), 62 Ohio St. 465, for the proposition that if a "`if a sum is exacted in any instance, in excess of the value of the special benefits conferred, it is, as to such excess, in *Page 391 that instance, private property unjustly taken for public use without compensation to the owner.'" Id. at 474, quoting Chamberlain v.Cleveland (1878), 34 Ohio State 551. Review of the record reveals that appellant has not demonstrated that a "sum has been exacted in excess of the value of special benefits conferred" upon it. Appellant argues that permitting one property owner, Atfab, to tap-in to 108-S, without paying an assessment, while appellant paid significant assessment fees to tap-in to 108-S, constitutes a taking. The argument that such action constitutes a taking is without merit. In its May 26, 2000 judgment entry, the trial court found that one property owner:2 had agreed that an equivalent property located inside the 108-S boundary would not be permitted to tap-in; was not assessed tap-in fees for 108-S; and, was assessed tap-in fees for the 73-S and 92-S sewer lines. The law of Ohio does not require that a county board of commissioners charge subsequent property owners a tap-in fee to utilize a fully constructed sewer line. "Governmental authorities have broad discretion in establishing fees and rates and in maintaining financing schemes to support sewer systems. Such fees and rates must be reasonable with the methods and manner of financing such systems left largely with the authorities." Haymes v. Holzemer (1981), 3 Ohio App.3d 377, paragraph two of the syllabus. Given the broad discretion afforded to governmental authorities in establishing financing plans to support sewer systems, we conclude that Lake County did not abuse its discretion in the instant case. Appellant also argued to the trial court that if Atfab and others were permitted to tap into 108-S, appellee will be unable to provide the capacity required by appellant. These claims are not ripe because the record demonstrates that 108-S currently contains the 1.4 million gallons per day of reserve sought by appellant. Appellant has not alleged any decrease in its property value or decrease it in its use and enjoyment of its property within 108-S. For the foregoing reasons, appellant has failed to demonstrate a reduction in its special benefits. Appellant's third assignment of error lacks merit. The evidence, taken in a light most favorable to appellant, demonstrates that reasonable minds could come to only one conclusion, a conclusion which is adverse *Page 392 to appellant. The trial court correctly granted appellee's motions for summary judgment, as a matter of law. Based on the foregoing analysis, the judgment of the trial court is affirmed. ____________________________ JUDGE ROBERT A. NADER FORD, P.J., CHRISTLEY, J., concur. 1 The enhancement in the value of property that results from a public improvement is the special benefit that will support an assessment against that property to pay for the improvement. Such enhancement in value of such property is a benefit to its owner that accrues to him and not to the public or to the rest of the community." Schiff v. Columbus (1967), 9 Ohio St.2d 31, paragraph four of the syllabus. 2 While the trial court's May 26, 2000 judgment entry does not identify the non-assessed property owner, both parties herein identify the party as "Atfab" or "ATFAB."

2016-07-06 06:36:41.492881+00

Abood

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 32 This is an appeal from a judgment of the Lucas County Court of Common Pleas, Juvenile Division, which permanently terminated the parental rights of Tyra Fleming and appellant, Roosevelt Riley, and granted permanent custody of Barbara Fleming to appellee, the Lucas County Children Services Board (LCCSB). Appellant has appealed, setting forth the following assignments of error: "1. The trial court violated appellant's due process rights by the delay in issuing a decision on CSB's motion for permanent custody. "2. The trial court did not have clear and convincing evidence on which to base its finding that Barbara Fleming was a child without adequate parental care and would continue to be without adequate parental care." The facts which are relevant to the issues raised in this appeal are as follows. On September 11, 1987 appellee filed a complaint pursuant to R.C. 2151.03(B)(C), 2151.031(B) and2151.04(C), which claimed that Barbara (born June 22, 1987) was dependent, neglected and abused and requested that it be granted temporary custody of Barbara for placement and planning. In its complaint appellee alleged the following: it had been involved with the minor mother, Tyra Fleming, prior to the birth of her twins in order to assist her in locating appropriate housing; that on June 22, 1987 the twins were born two months premature and anemic and remained in the hospital for two weeks; that upon their release the twins were placed with their paternal grandmother, Mrs. Eaton, and that Mrs. Eaton, Tyra and appellant each completed apnea monitor training, which was necessary for both twins; that on August 12, 1987, when Mrs. Eaton took the twins to the hospital for a check-up, Barbara was found to be in good health, but Beverly was admitted the next day for failure to thrive; that on August 29, 1987 Beverly was released to Mrs. Eaton; that on September 11, 1987 appellee was contacted by Toledo Hospital and informed that Beverly had been brought to the hospital the previous evening and was dead upon arrival; and that the circumstances surrounding her death were under investigation and that neither Mrs. Eaton nor the parents had informed appellee of her death. Appellee alleged that neither Tyra nor appellant was capable of independently caring for Barbara and requested temporary custody for placement and planning. On the same day the complaint was filed an emergency detention hearing was held, and the court found Barbara to be in imminent danger of physical and emotional harm if left in the *Page 33 custody of her mother. On September 22, 1987, a judgment entry was filed which granted appellee temporary custody pending adjudication and appointed guardians ad litem for the mother and child. On January 8, 1988 adjudicatory and dispositional hearings were held, at which time the parties agreed to the facts as set forth in the complaint except that the parents claimed that they had notified appellee of Beverly's death. At the conclusion of the hearings a judgment entry was filed which found Barbara to be a dependent child and awarded temporary custody of Barbara to appellee for placement and planning. On February 17, 1988 comprehensive reunification plans ("CRP") were filed for both Tyra and appellant. Pursuant to this plan, appellant was required to have frequent and regular consultation with his caseworker and frequent and regular visitation with Barbara, to cooperate in all respects with the caseworkers and other LCCSB staff, to sign release forms for confidential information, to attend a sudden infant death syndrome support group, to attend counseling to work through the grieving process of Beverly's death, to attend medical appointments, to begin parenting classes at the Cummings-Zucker Center for fathers and to notify the case-worker of any significant changes at home or in his personal life which would affect Barbara's reunification with her family. On February 27, 1989 appellee filed a motion to terminate temporary custody without protective supervision, stating that Barbara was with Tyra in her home. In support of its motion appellee indicated that Tyra had had Barbara with her since November 23, 1988, had more or less minimally complied with her comprehensive reunification plan, had demonstrated an ability to parent Barbara, and had provided appropriate housing for herself and the child. As to appellant, however, appellee indicated that he had not participated in any of the activities listed on his CRP, had refused to cooperate with the caseworker or the case plan and had attended only a few visits or parenting classes, which was less than minimal compliance. On March 3, 1989 the guardian ad litem for Barbara filed a motion in opposition to appellee's motion to terminate, alleging that terminating temporary custody would be contrary to Barbara's best interest. In support of the motion the guardian ad litem stated that Tyra had unilaterally terminated her parenting classes through the teen family enrichment program in October 1988 and that she had indicated that she felt unable to establish a close bond with Barbara and believed that it was in Barbara's best interest to be returned to the foster parents who had cared for her from age three to eighteen months. On April 7, 1989 appellee filed a motion to remove Barbara from the home, stating that Tyra had informed it that she no longer wanted Barbara and had failed to follow her case plan since Barbara had been returned to her in November 1988. On April 17, 1989 a judgment entry was filed indicating that Tyra was to obtain psychological evaluation and participate in parenting classes and *Page 34 that temporary custody of Barbara was to be continued with appellee pending a hearing on appellee's motion to terminate. On June 6, 1989 appellee filed a motion to change disposition, requesting permanent custody of Barbara. In support of its motion appellee stated that, although Tyra had complied with her CRP and Barbara had been returned to her, she had declined further services and her relationship with Barbara had deteriorated, resulting in Tyra finally indicating that she believed it was in Barbara's best interest to be returned to her foster home. Appellee also indicated that appellant had failed to comply with his CRP, had not cooperated with appellee in order to gain custody of Barbara and was currently incarcerated. Appellee alleged that Barbara was without adequate parental care and that it was in her best interest to permanently terminate the parental rights of Tyra and appellant. On September 18, 1989, October 25, 1989 and November 1, 1989 hearings were held on appellee's motion for permanent custody.1 While appellant was present on each day, Tyra did not appear until the second day of the hearings. Testifying at the hearings were Lori Kraus and Rebecca Battles, both caseworkers with CSB, Shelly Falkenberger, the coordinator for the teen family enrichment program at St. Vincent's Medical Center, Fanny Effler, Barbara's guardian ad litem, Clodde Eaton, appellant's mother, appellant, and Tyra Fleming. Battles testified that she had received the case at its inception in June 1987. As to appellant's involvement, she testified that, although he did express a genuine interest and desire for custody, he had exhibited only sporadic and minimal compliance with his CRP. She indicated that he attended only some of the visits and parenting classes, stating to her that he felt that he had had sufficient experience caring for his nieces and nephews and therefore did not need to attend the services required by his CRP. Battles testified that appellant was encouraged to return to high school and to get a job, but had made no progress, and was not stabilized enough to obtain custody of Barbara. Kraus testified that she had received the case from Rebecca Battles in January 1989 and had not come into contact with appellant until July 1989, at which time she told him that he must follow his CRP for there to be a reunification with Barbara. Kraus also testified that appellant had expressed no interest in parenting classes or counseling and, while he wanted Barbara, had attended only fourteen out of thirty-three visits from January 1988 to the date of the hearing, although he had been incarcerated for a good part of that time. Finally, Kraus indicated that Barbara had never been at home with appellant and that his visits with her had only been at LCCSB. *Page 35 Effler testified that her only contact with appellant was that he had called her from prison to suggest that Barbara go to relatives in Minnesota. Effler stated that she believed that the foster home was best for Barbara, indicating that appellant lived with his mother, with whom Barbara had no bond. Finally, Effler testified that she felt it was in Barbara's best interest for appellee to have permanent custody. Appellant testified that he had often helped Tyra with Barbara and Beverly and now with their new baby and that, although he didn't think that he needed them or that he was required to attend them, he had attended parenting classes, going when he felt like it and had transportation. Appellant also testified that he was currently living with his mother and had no job prospects but did odd jobs for money. Finally, appellant testified that he had never legally established his paternity of Barbara and had never paid support for her, but that he did give Tyra money occasionally for Pampers, milk and food. Falkenberger testified that appellant and Tyra were referred to her parenting program in August 1987. She stated that, although appellant attended twelve out of fifteen classes, when he was there he did not feed, play with, or care for Barbara, but expected Tyra to do everything, and showed little progress. Eaton testified that appellant resided with her along with five of her other children and some of her grandchildren and that he was a good father and had good interaction with Barbara and Tyra's new baby. Tyra testified that she did not want Mrs. Eaton to have Barbara and that at first she did not want appellant to have Barbara but now felt that he treated the babies well and had helped with them. Tyra also testified that after Barbara came back she had become quiet and distant and often sat alone unless there were other children around. She stated that she felt Barbara had bonded to her foster parents and wasn't happy with her and that she had decided to return Barbara to her foster parents after she had been told that she could attend counseling to help her with bonding. Tyra testified further that she had now changed her mind and wanted Barbara back, but also wanted what was in Barbara's best interest. As to her relationship with appellant, Tyra testified that they are not married and do not live together but that he sometimes stays with her and comes and goes as he pleases. She also stated that appellant sometimes gives her a little money. On July 17, 1990 the referee issued his report, which contained extensive findings of fact and recommended that permanent custody of Barbara Fleming be awarded to appellee for adoptive placement and planning and that the parents be divested of all parental rights, privileges and obligations. On July 31, 1990 appellant filed objections to the referee's report, and on August 22, 1990, a hearing was held before the trial court on the objections. Although at *Page 36 the conclusion of the hearing the trial court told the parties that it would render its decision within seven days, it did not file its final judgment entry until October 16, 1990. In its final judgment entry the trial court found appellant's objections not well taken and affirmed and adopted the findings and recommendations of the referee. It is from that decision that appellant has filed his appeal. In his first assignment of error appellant asserts that the trial court violated his right to due process by its delay in issuing its final decision on appellee's motion for permanent custody. Specifically, appellant states that there was a delay of approximately nine and one-half months between the conclusion of the dispositional hearings and the filing of the referee's findings and recommendations, and almost two months between the hearing on his objections to the referee's report and the entry of the trial court's final judgment on October 16, 1990. In considering this assignment of error, this court must address the seven-day time requirement of both Juv.R. 34(C)2 and R.C. 2151.35(B)(3),3 due to the date of the filing of appellee's motion for permanent custody and the provisions of R.C. 2151.4134 and 2151.414.5 In so doing, this court must address *Page 37 the issue of the application of that seven-day requirement in light of our previous decisions in In re Hogan (Nov. 16, 1990), Lucas App. No. 89-259, unreported, and In re Rodgers (Nov. 30, 1990), Lucas App. No. 90-115, unreported, which conflict in their determination as to whether that rule is mandatory or directory. In Hogan the appellant raised as error several violations by the trial court of the procedural requirements set forth in R.C. Chapter 2151, as amended effective January 1, 1989, and the Juvenile Rules, including a violation of the seven-day requirement set forth in R.C. 2151.35(B)(3) and Juv.R. 34(C). InHogan, the adjudicatory and dispositional hearings, which were held before a trial judge, concluded on July 14, 1989, and the trial judge issued his final judgment on August 11, 1989. InHogan, this court found that the seven-day requirement set forth in both R.C. 2151.35(B)(3) and Juv.R. 34(C), as applicable therein, was mandatory. The Hogan court reversed the final judgment of the trial court on the basis of the trial court's failure to comply with that and other mandatory procedural requirements and remanded the case for new adjudicatory and dispositional hearings. Custody was ordered to remain in Lucas County Children Services Bureau pending those hearings. In Rodgers, the appellant raised as error the failure of the trial court to observe the requirements of R.C. 2151.35(B)(3). There the dispositional hearing was held before a referee and concluded on November 13, 1989. The referee's report was filed on December 15, 1989, and on December 29, 1989 and January 3, 1990 objections to the report were filed. On February 7, 1990 the trial court held a hearing on the objections and on February 27, 1990 issued its final judgment entry. In Rodgers, this court determined that it was a "virtual impossibility" for a referee to review all of the evidence, prepare the findings and recommendations required by Juv.R. 40(D) and submit those to the trial judge for final decision, all within seven days. This court found in that case that, upon examination of the evidence and the record, the three-month delay in issuing final judgment was not prejudicial to appellant. It is obvious from the foregoing that the court should reexamine its decisions in Hogan and Rodgers and review and reconsider the question of *Page 38 whether the seven-day provision of Juv.R. 34(C) and R.C.2151.35(B)(3) is mandatory or merely directory. While the Juvenile Rules were enacted pursuant to Article IV of the Ohio Constitution to establish a uniform procedure for the courts of Ohio, they do not affect the jurisdiction of the juvenile courts as established by statute. Linger v. Weiss (1979), 57 Ohio St.2d 97, 11 O.O.3d 281, 386 N.E.2d 1354; Juv.R. 1(A). The stated purpose of R.C. Chapter 2151 is, among other things, to provide for the care, protection, and mental and physical development of children and to provide judicial procedures in which the parties are assured of a fair hearing and of having their constitutional and other legal rights enforced. R.C. 2151.01(A) and (D). Preliminarily we note that in both R.C. 2151.35(B)(3) and Juv.R. 34(C), the word "shall" is used in reference to the seven-day requirement. Appellant urges this court to find the seven-day requirement in Juv.R. 34(C) mandatory while appellee urges this court to find that requirement to be merely directory. The word "shall" is usually interpreted to make the provision in which it is found mandatory, while the word "may" is generally construed as optional, permissive or discretionary.Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102,107, 56 O.O.2d 58, 60, 271 N.E.2d 834, 837. Ordinarily, the two words are not used interchangeably or synonymously. Id. In order to determine and give effect to legislative intent it is sometimes necessary to give those words as used in a statute meanings different from those given them in ordinary usage.Id. In order for one to have the meaning of the other, however, such intent must appear from a general view of the particular statute involved. Id. at 108, 56 O.O.2d at 61,271 N.E.2d at 838. When reviewing the specific language of R.C. 2151.35(B)(3), we find that it is clear and definite in its meaning and that it is unnecessary to resort to any construction or interpretation to ascertain if the word "shall" was really intended by the legislature to mean "may." See, generally, Sears v. Weimer (1944), 143 Ohio St. 312, 28 O.O. 270, 55 N.E.2d 413; Wingate v.Hordge (1979), 60 Ohio St.2d 55, 14 O.O.3d 212, 396 N.E.2d 770. Upon consideration thereof, this court finds that the seven-day time requirement of R.C. 2151.35(B)(3) is clearly mandatory and must be applied as stated. For the same reason we find that the corresponding provision of Juv.R. 34(C) is also clear and definite and mandates compliance with its seven-day time limit. *Page 39 Even assuming, for the sake of argument, that some ambiguity existed in the statutory provision as to the meaning to be accorded to the word "shall," thus requiring interpretation and determination of the legislative intent, it is clear from our review of R.C. Chapter 2151, as amended, that the intent of the legislature was to expedite all stages of these proceedings by imposing strict temporal requirements where none had existed previously, with the exception of Juv.R. 34(C). The imposition of such rigid time requirements surely is consistent with the important rights involved in these proceedings, specifically, parental rights, the emotional and physical well-being of children, and the need for expeditious resolution in order to stabilize the child's environment, especially crucial where permanent termination of parental rights is sought for adoptive purposes. Clearly, there is no view of the statute that supports the conclusion that the legislature intended the seven-day requirement of R.C. 2151.35(B)(3) to be merely directory despite the use of the word "shall." Finally, R.C. 1.47(D) provides: "In enacting a statute, it is presumed that: "* * * "(D) a result feasible of execution is intended." It is the province of the legislature and those involved in enacting statutory provisions, and by the same token the Supreme Court of Ohio and those involved in adopting the Juvenile Rules of Procedure, to determine what is or is not feasible or possible. A court may not rewrite a particular provision on the basis that it is improving that provision, but, rather, it is limited to the application of the plain language thereof, or construction or interpretation only where necessary. See, generally, 85 Ohio Jurisprudence 3d (1988) 166, Statutes, Section 176 to 198; Seeley v. Expert, Inc. (1971), 26 Ohio St.2d 61, 55 O.O.2d 120, 269 N.E.2d 121. In light of all of the foregoing, and upon reevaluation of our decisions in Hogan and Rodgers, we conclude that the seven-day requirement set forth in R.C. 2151.35(B)(3) and Juv.R. 34(C) is clearly mandatory and must be applied as such and not relaxed or eliminated by this court. By determining in Rodgers that application of a seven-day requirement was a "virtual impossibility," and by applying, instead, a subjective standard of determining what time frame was reasonable depending upon the particular facts of that case, we clearly were invading the province of the legislature and, in fact, rewriting the provision. Upon consideration of the foregoing, we hereby overrule that part of our decision in Rodgers which is inconsistent with our decision herein. After *Page 40 careful consideration, we also find that the seven-day rule can be applied consistently with Juv.R. 40(D), which mandates the preparation and filing of findings of fact and recommendations by the referee, provides an allowance of fourteen days from the filing of the referee's report for the filing of objections by the parties, and provides for a hearing on the objections. Specifically, our interpretation of Juv.R. 34(C) and R.C.2151.35(B)(3) in this regard is as follows. When the dispositional hearing is conducted before a referee, the referee has seven days from the time the case becomes decisional in which to issue his findings of fact and recommendations. At the expiration of the fourteen-day period for filing objections, if no objections are filed, the case is decisional and the trial court has seven days to issue its final judgment. If objections are filed pursuant to Juv.R. 40 and a hearing is held, the judge has seven days from the conclusion of the hearing to enter its final judgment. Where, as in Hogan, the dispositional hearing is held before the trial judge, the trial judge has seven days from the conclusion of that hearing to issue its final judgment. Having determined, therefore, that the seven-day requirement set forth in R.C. 2151.35(B)(3) and Juv.R. 34(C) is mandatory, we must now determine whether or not reversal of the trial court's decision in this case is required as a result of its failure to comply with that requirement. Upon consideration thereof, this court finds that (1) while the trial court did err in not complying with R.C. 2151.35(B)(3) and Juv.R. 34(C), that error did not result in a denial of appellant's right to due process of law; (2) the trial court's failure to meet the mandatory time requirement of R.C.2151.35(B)(3) and Juv.R. 34(C) does not deprive it of jurisdiction to enter a final determination even though rendered outside of those time requirements, Weiss, supra; and (3) reversal of the trial court's final judgment is not the proper remedy. To the extent that our decision in Hogan, supra, is inconsistent with this ruling, in that we did reverse the trial court's decision and remand the case for new adjudicatory and dispositional hearings, that decision is also overruled.6 This court finds further that the proper remedy in cases *Page 41 such as this, where a trial court fails to meet the seven-day requirement imposed by R.C. 2151.35(B)(3) and/or Juv.R. 34(C), would be for counsel for the parents or counsel for LCCSB to file, upon expiration of the seven-day time period, a petition for a writ of procedendo with this court requesting us to direct the trial court to comply immediately with those requirements and proceed to final judgment, and this court will as expeditiously as possible fully consider such request. Accordingly, appellant's first assignment of error is found not well taken. In his second assignment of error appellant asserts that the trial court did not have clear and convincing evidence upon which to base its finding that Barbara Fleming was without adequate parental care. Although some of the language used by the trial court, and the parties, suggests that they may have been proceeding under the old statute, the evidence and the findings of fact herein are not inconsistent with the factors set forth in R.C.2151.414, amended effective January 1, 1989, which is applicable herein and which provides in pertinent part: "(B) The court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: "(1) The child is not abandoned or orphaned and the child cannot be placed with either of his parents within a reasonable time or should not be placed with his parents; "* * * "(D) In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code, the court shall consider all relevant factors, including, but not limited to, the following: "(1) The reasonable probability of the child being adopted, whether an adoptive placement would positively benefit the child, and whether a grant of permanent custody would facilitate an adoption; "(2) The interaction and interrelationship of the child with his parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; "(3) The wishes of the child, as expressed directly by the child or through his guardian ad litem, with due regard for the maturity of the child; "(4) The custodial history of the child; *Page 42 "(5) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency. "(E) In determining at a hearing held pursuant to division (A) of this section or for the purpose of division (A)(4) of section 2151.353 of the Revised Code whether a child cannot be placed with either of his parents within a reasonable period of time or should not be placed with his parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either of his parents within a reasonable time or should not be placed with his parents: "(1) Following the placement of the child outside his home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly for a period of six months or more to substantially remedy the conditions causing the child to be placed outside his home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. "(2) The severe and chronic mental illness, severe and chronic emotional illness, severe mental retardation, severe physical disability, or chemical dependency of the parent makes the parent unable to provide an adequate permanent home for the child at the present time and in the foreseeable future; "(3) The parent committed any abuse as described in section2151.031 of the Revised Code against the child, caused the child to suffer any neglect as described in section 2151.03 of the Revised Code, or allowed the child to suffer any neglect as described in section 2151.03 of the Revised Code between the date that the original complaint alleging abuse or neglect was filed and the date of the filing of the motion for permanent custody; "(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child; "* * * *Page 43 "(8) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect." Clear and convincing evidence is that proof which establishes in the mind of the trier of fact a "firm conviction in the facts sought to be proved." Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118, paragraph three of the syllabus. Upon review of all of the evidence that was before the trial court and as summarized above and each of the factors set forth in R.C. 2151.414, as well as all other factors relevant to the determination of what was in Barbara's best interest, this court finds that the standard of proof required by R.C. 2151.414 has been met and that the trial court did not err in granting permanent custody of Barbara to appellee. Accordingly, appellant's second assignment of error is found not well taken. On consideration whereof, the court finds that substantial justice has been done the party complaining, and the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Court costs assessed to appellant. Judgment affirmed. HANDWORK, P.J., and MELVIN L. RESNICK, J., concur. 1 The record indicates that further hearings were held on December 11, 1989; however we have no transcript before us of any proceedings held on that date. 2 Juv.R. 34(C) provides: "(C) Judgment. After the conclusion of the hearing, the court shall enter an appropriate judgment within seven days. A copy of the judgment shall be given to any party requesting such copy. In all cases where a child is placed on probation, the child shall receive a written statement of the conditions of probation. If the judgment is conditional, the order shall state the conditions. If the child is not returned to his own home, the court shall determine which school district shall bear the cost of his education and may fix an amount of support to be paid by the responsible parent, or to be paid from public funds." 3 R.C. 2151.35(B)(3), effective January 1, 1989, provides in pertinent part: "(3) After the conclusion of the dispositional hearing, the court shall enter an appropriate judgment within seven days and shall schedule the date for the hearing to be held pursuant to section 2151.415 of the Revised Code. The court may make any order of disposition that is set forth in section 2151.353 of the Revised Code. A copy of the judgment shall be given to each party and to the child's guardian ad litem. If the judgment is conditional, the order shall state the conditions of the judgment." 4 R.C. 2151.413(A), effective January 1, 1989, provides: "(A) A public children services agency or private child placing agency that, pursuant to an order of disposition under division (A)(2) of section 2151.353 of the Revised Code or under any version of section 2151.353 of the Revised Code that existed prior to the effective date of this amendment, is granted temporary custody of a child who is not abandoned or orphaned or of an abandoned child whose parents have been located may file a motion in the court that made the disposition of the child requesting permanent custody of the child if a period of at least six months has elapsed since the order of temporary custody was issued or the initial filing of the case plan with the court if the child is an abandoned child whose parents have been located." 5 R.C. 2151.414, effective January 1, 1989, provides in pertinent part: "(A) Upon the filing of a motion pursuant to section 2151.413 of the Revised Code for permanent custody of a child by a public children services agency or private child placing agency that has temporary custody of the child, the court shall schedule a hearing and give notice of the filing of the motion and of the hearing, in accordance with section 2151.29 of the Revised Code, to all parties to the action and to the child's guardian ad litem. * * * The court shall conduct a hearing in accordancewith section 2151.35 of the Revised Code to determine if it isin the best interest of the child to permanently terminateparental rights and grant permanent custody to the agency thatfiled the motion. The adjudication that the child is an abused, neglected, or dependent child and the grant of temporary custody to the agency that filed the motion shall not be readjudicated at the hearing and shall not be affected by a denial of the motion for permanent custody." (Emphasis added.) 6 We note, however, that in Hogan the trial court's final decision was reversed and remanded also based upon that court's failure to follow the mandatory procedures set forth in 2151.419 requiring that certain determinations be made at the adjudicatory hearing and that written findings of fact setting forth these determinations be filed. In determining in this case that reversal and remand of the trial court's final judgment for failure to comply with the seven-day requirement for entering final judgment is not the proper remedy, and reversing Hogan on those grounds, we are not reversing our decision in Hogan as to the other issues involved therein.

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Brogan

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 116 Defendant-appellant and cross-appellee, Nationwide Mutual Insurance Company ("Nationwide"), appeals from the judgment of the Montgomery County Court of Common Pleas in favor of plaintiff-appellee and cross-appellant, Westfield Insurance Company ("Westfield"). This case arises from a declaratory judgment action filed by Westfield seeking a determination of its rights and obligations regarding claims made by Daniel *Page 117 Fish arising out of an auto accident which occurred on March 21, 1991. Nationwide was named as a defendant and the trial court was also asked to determine the rights and obligations of Nationwide with respect to the accident involving Daniel Fish. The underlying facts and procedural history of the case are as follows. On March 21, 1991, Daniel Fish, then age fourteen, resided within the geographic boundaries of the West Carrollton City School District Board of Education ("the Board"). Beginning on March 4, 1991, Daniel was placed in Youth Partial Hospitalization ("YPH") pursuant to an Individualized Education Program. Daniel was referred to YPH because of a severe behavioral handicap. Daniel was transported to YPH by a Regional Transit Authority ("RTA") bus. RTA bus tokens were purchased by West Carrollton and provided to Daniel's parents so that Daniel could obtain transportation to YPH. On March 21, 1991, Daniel was struck by an uninsured motorist as he exited an RTA bus on his way home from YPH. On the date of the accident Westfield had in effect a policy of insurance with Daniel's father, Kenneth Fish. Daniel is an insured under the Westfield policy because he is a family member. The policy provides underinsured motorist bodily injury limits of $100,000 each accident. The policy further provides that "any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance." On the date of the accident Nationwide had in effect a policy of insurance with West Carrollton. The policy provides, in its coverage form, automobile liability limits of $1,000,000 only for "specifically described autos." The policy further provides that "for any covered `auto' you don't own, the insurance provided by this coverage form is excess over any other collectible insurance." On June 2, 1992, Westfield filed a complaint for a declaratory judgment in the Montgomery County Court of Common Pleas. Westfield sought a determination of its rights and responsibilities with respect to the claims of Daniel. Nationwide answered and denied any responsibility for coverage of Daniel's potential claims arising from the auto accident. Following discovery, both parties filed motions for summary judgment on February 24, 1993. The trial court issued its entry and final judgment on March 15, 1993. The trial court granted Westfield's motion for summary judgment on the issue of Nationwide's obligation to provide coverage and accordingly denied Nationwide's motion for summary judgment. However, the trial court overruled Westfield's motion for summary judgment to the extent that the motion sought to impose primary coverage upon Nationwide based upon the language of Nationwide policy. Nationwide filed its notice of appeal on April 14, 1993 and Westfield filed its notice of cross-appeal on April 23, 1993. *Page 118 Nationwide advances the following assignments of error: "(1) the trial court erred in deciding that an insured policyholder's express selection of certain vehicles for uninsured motorists coverage was not an express rejection of coverage for other vehicles; (2) the trial court erred in finding that a Regional Transit Authority bus was hired by the insured policyholder of the defendant-appellant through the purchase of tokens; (3) the trial court erred holding that the defendant-appellant's policy provides coverage for the alleged hiring of an RTA bus; and (4) the trial court erred in deciding that each party owes a pro rata share of the total loss where the defendant-appellant's policy provides excess coverage only." Westfield advances one assignment of error in its cross-appeal: "(1) the trial court erred when it found that Westfield was obligated to provide coverage for the claims of Daniel Fish on a pro rata basis with Nationwide. Instead, the language of the Nationwide Policy imposes upon Nationwide the primary obligation to provide coverage for the claims of Daniel Fish. The language of the Westfield Policy imposes upon Westfield only the obligation of excess coverage." In its first assignment, Nationwide contends that the trial court erred by not determining that West Carrollton's selection of certain autos for uninsured motorist coverage constituted an express rejection of uninsured motorist coverage for hired and/or nonowned autos covered under its fleet insurance policy. Westfield, on the other hand, argues that West Carrollton never expressly rejected uninsured motorist coverage under its fleet insurance policy and, thus, uninsured motorist coverage is effective as a matter of law. Ohio requires automobile liability policies issued in Ohio to contain an uninsured motorist provision. R.C. 3937.18. Such provision can be eliminated "only by the express rejection of that provision by the insured."Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St.2d 161, 51 O.O.2d 229, 258 N.E.2d 429, at paragraph two of the syllabus. The express rejection rule applies to both personal and commercial policies of automobile insurance. Atwood v.Internatl. Ins. Co. (Dec. 10, 1991), 1991 WL 268346, 1991 Ohio App. LEXIS 6030, Franklin App. No. 91AP-521, unreported. Without an express rejection of uninsured motorist coverage by the insured, "coverage afforded by the `uninsured motorist' provision is provided to the insured by operation of law." Abate, supra, at paragraph two of the syllabus. Nationwide argues that "choosing certain vehicles for coverage in writing and not choosing other vehicles for coverage is an `express rejection' under R.C. 3937.18(C)." We disagree. We think Westfield is correct that express acceptance of such coverage for certain vehicles is not relevant to the issue. A listing of certain vehicles for uninsured motorist coverage is merely an acceptance of uninsured motorist coverage for those particular vehicles, not an express rejection of such coverage for any other type of vehicle covered under West Carrollton's *Page 119 fleet insurance policy. Instead, we believe Nationwide has the burden to show an express rejection of uninsured motorist coverage for any auto for which coverage was offered or described in the language of both the application and policy. See R.C. 3937.18(C). The trial court specifically found that West Carrollton never expressly rejected uninsured motorist coverage for any auto covered under the fleet policy. In our careful review of the record we have found nothing to indicate otherwise. Thus, we agree with the trial court that no genuine issue fact exists as to whether there was an express rejection of uninsured motorist coverage by West Carrollton, and that such coverage is therefore provided by operation of law. Accordingly, Nationwide's first assignment is overruled. In its second assignment of error, Nationwide argues that the trial court erred when it found that the RTA bus in which Daniel was riding was "hired" by West Carrollton through the purchase of bus tokens. The trial court found that the term "hired auto" contained in Nationwide's policy was unambiguous with respect to its application to the RTA bus. The court further found that even if the term was ambiguous, such ambiguity must be construed against the insurer and in favor of coverage. We believe the trial court was correct in its determination. The Nationwide policy states as follows: "A. Description of Covered Auto Designation Symbols "1 = Any `Auto.' "* * * "8 = Hired `Autos' Only. Only those `autos' you lease, hire, rent, or borrow. This does not include any `open auto' you lease, hire, rent or borrow from any of your employees or partners or members of their households." Words and phrases used in an insurance policy must be given their natural and commonly accepted meaning. Gomolka v. StateAuto. Mut. Ins. Co. (1982), 70 Ohio St.2d 166, 167-168, 24 O.O.3d 274, 275-276, 436 N.E.2d 1347, 1347-1348. The word "hire" generally means "to get the services of a person or the use of a thing in return for payment." Webster's World Dictionary (1986) 665. In the present case, West Carrollton engaged the services of RTA to transport Daniel to YPH through the issuance of purchase orders for RTA bus tokens which were given directly to Daniel's mother for Daniel's use. Accordingly, since West Carrollton obtained the use of the RTA bus for Daniel in return for payment, we agree that no genuine issue of fact remains as to whether Daniel occupied an auto "hired" by the insured, West Carrollton. *Page 120 Accordingly, Nationwide's second assignment is overruled. In its third assignment of error, Nationwide contends that even if the RTA bus was a "hired auto" within the meaning of the policy language, the trial court erred in finding that Nationwide's policy provides coverage for the hiring of an RTA bus. Nationwide states that a determination of whether Daniel is an "insured" under the Nationwide policy because he had been "occupying" an "auto" "hired" by West Carrollton must necessarily derive from a finding that the purchase of the RTA bus tokens constituted a "contractual hiring" of the bus rather than a mere reimbursement. Nationwide further argues that coverage under the policy would extend to Daniel only if the agreement between West Carrollton and the RTA was within the scope of the definition of "insured contract" in the Nationwide policy. The language Nationwide refers to provides that an "insured contract": "* * * does not include that part of any contract or agreement: "b. That pertains to the loan, lease or rental of an `auto' to you or any of your employees, if the `auto' is loaned, leased or rented with a driver." We think that the record amply supports the conclusion that coverage was available under the Nationwide policy if a contract existed between RTA and West Carrollton for Daniel's transportation and if West Carrollton paid for the transportation. Westfield argues that West Carrollton had a written contract with RTA to provide transportation for Daniel and other children through the purchase orders for the bulk purchase of bus tokens. The purchase orders represented West Carrollton's agreement to purchase bus tokens from RTA for Daniel's transportation and West Carrollton in fact paid for the tokens. West Carrollton made the tokens available to Daniel specifically to fulfill its statutory obligation to provide him with transportation to YPH. R.C. 3323.01. We think that this is more than sufficient to support a finding that West Carrollton's purchase of the bus tokens constitutes a "contractual hiring" and not a mere reimbursement.1 Nationwide argues that even if such an agreement existed between West Carrollton and the RTA, such agreement does not fall within the definition of an "insured contract" since such definition does not include the hiring, rental or lease of a vehicle which is supplied with a driver. Westfield counters that the *Page 121 language of the Nationwide policy's "insured contract" section does not specifically and expressly exclude "hired" autos which are supplied with a driver, but only expressly excludes those autos which are "loaned, leased or rented with a driver." West Carrollton clearly did not "lease or rent" the RTA bus to transport Daniel. Neither was the RTA bus "loaned" or borrowed. As we have already determined, the RTA bus was "hired" by West Carrollton. Either purposely or by oversight, Nationwide did not choose to exclude "hired" autos from the definition of "insured contract" even though it must have realized that such vehicles were included in the descriptions of hired and/or nonowned autos in the policy. The terms of a policy of insurance must be strictly construed against the insurer and in favor of coverage. See Edmondson v.Motorists Mut. Ins. Co. (1976), 48 Ohio St.2d 52, 2 O.O.3d 167,356 N.E.2d 722. We conclude that Westfield is entitled to judgment as a matter of law that Nationwide's policy does cover the contractual hiring of an RTA bus. Accordingly, Nationwide's third assignment is overruled. Nationwide's final assignment of error presents the same issue as Westfield's cross-appeal. Therefore, we will consider them together. Both Westfield and Nationwide argue that the trial court erred in deciding that each insurance company owes a pro rata share of Daniel's total loss where each insurance company's policy provides for excess coverage only. The trial court found that both policies provide that they are excess over other coverage when the injury does not arise from the insured's own vehicle. Hence, the trial court concluded, because Daniel's injury did not arise from the insured's own vehicle, each insurance company owes a pro rata share of the total loss, not exceeding the higher policy limit. Westfield contends that the trial court failed to recognize an ambiguity present in the Nationwide excess clause which renders that clause inoperative. The Nationwide policy provides that its coverage is excess for "any covered `auto' you don't own." Nationwide's policy defines nonowned vehicles as "only those `autos' you do not own, lease, hire, rent or borrow that are used in connection with your business." Westfield would have us interpret this clause to apply only to vehicles not owned, not leased, not hired or not borrowed by West Carrollton. Accordingly, Westfield contends, since West Carrollton "hired" the RTA bus, such bus should be considered an "owned" vehicle which would be covered by the primary coverage of the Nationwide policy. Even in the face of the inartful drafting of Nationwide, we decline to give such an obviously absurd interpretation to the policy language. We recognize *Page 122 the general rule that ambiguities in insurance contracts must be construed strictly against the insurer. See King v. NationwideIns. Co. (1988), 35 Ohio St.3d 208, 519 N.E.2d 1380. We conclude, however, that the Nationwide policy language must be read so as to give it its obvious and intended meaning. We think it is clear that the intended definition of "nonowned" autos is only those autos which are not owned, and those autos which are leased, hired or borrowed by West Carrollton. This is the only interpretation which does not render the meaning of the policy language completely ridiculous. The only issue that remains is to determine how to resolve the conflicting "excess" coverage clauses in both insurance policies. In spite of the parties' arguments, the trial court was correct in observing that both policies appear to cancel each other out with respect to nonowned vehicles. Westfield's "other insurance" provision is a "pro rata" excess provision in all respects except as to nonowned vehicles where it expressly states the policy is "excess over any other collectible insurance." Nationwide's "other insurance" provision is "excess" in all respects, including with respect to nonowned vehicles. Accordingly, the trial court did not err in apportioning to both Westfield and Nationwide a pro rata share of the total loss, not exceeding the higher policy limit. SeeBuckeye Union Ins. Co. v. State Auto. Mut. Ins. Co. (1977),49 Ohio St.2d 213, 3 O.O.3d 330, 361 N.E.2d 1052 (liability will be prorated according to the respective policy amounts where there are conflicting excess coverage clauses), and Continental Cas.Co. v. Buckeye Union Cas. Co. (C.P.1957), 75 Ohio Law Abs. 79, 91, 143 N.E.2d 169, 179-180 (since there can be primary insurance of the risk where there are conflicting excess clauses, the excess clauses a fortiori cannot be a valid means of establishing only secondary liability). Accordingly, both Nationwide's final assignment and Westfield's sole assignment are overruled. In light of the foregoing, the judgment of the Montgomery County Court of Common Pleas will be affirmed. Judgment affirmed. WOLFF and FREDERICK N. YOUNG, JJ., concur. 1 We think reimbursement within the meaning of R.C. 3327.01 contemplates the school board paying money to a parent to purchase some type of transportation for the child. As the statute expressly states, this payment is "in lieu of providing such transportation." Here, West Carrollton took it upon itself to provide bus tokens to Daniel's mother for his transportation to YPH. Accordingly, West Carrollton was responsible for "providing" the transportation to Daniel. *Page 123

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JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff-appellant David Nigro ("appellant") appeals from the decision of the City of Parma, Ohio Board of Zoning Appeals (the "BZA") denying his request for a multi-family dwelling variance. Having reviewed the arguments of the parties and the pertinent law, we affirm the lower court's decision. I {¶ 2} Appellant applied to the BZA for a use variance to permit multi-family residential use of his single-family residential zoned property. Appellant requested his use variance pursuant to the Parma Codified Ordinances ("PCO"), Section 1153.02, requesting a new multi-family dwelling variance in a single-family housing district. Section 1153.02 states the following: "Within any Single-Family House District, no building or premises shall be erected, used, arranged or designed to be used, in whole or in part, for other than single-familydetached dwellings." (Emphasis added.) {¶ 3} Appellant's property abuts the west side of State Road, south of Sassafras Drive and north of Pleasant Valley Road, in Parma. The permanent parcel numbers are 454-12-013 and 454-12-014. {¶ 4} The BZA held a public hearing on August 10, 1999. There were individuals appearing at the hearing in appellant's favor, including appellant's attorney Ed Kasputis and Engineer Dan Neff of Neff and Associates. In addition to the people present on behalf of the appellant, there were contiguous neighbors of the property in dispute present at the hearing. The BZA heard presentations from Mr. Neff, Mr. Kasputis, and 15 residents of the area. The BZA denied appellant's use variance to permit multi-family residential use of his property. Appellant then filed an appeal of the BZA's ruling to the Cuyahoga County Common Pleas Court, pursuant to R.C. 2506. The trial court affirmed the BZA's decision denying appellant's request. Appellant is now appealing the trial court's decision. II {¶ 5} Appellant's first assignment of error states: "The trial court erred as a matter of law in affirming the Parma Board of Zoning Appeals' decision to deny appellant's use variance request because the board's decision was not supported by a preponderance of substantial, credible, reliable, and probative evidence." (Emphasis in original.) {¶ 6} Appellant's second assignment of error states: "The trial court erred as a matter of law in affirming the Parma Board of Zoning Appeals' decision to deny appellant's use variance request because appellant's use variance request was supported by a preponderance of substantial, credible, reliable, and probative evidence." (Emphasis in original.) {¶ 7} Due to the interrelation between appellant's first and second assignments of error and for the sake of judicial economy, we will address both assignments of error together. {¶ 8} The standard of review regarding an administrative appeal is whether the decision is supported by a preponderance of reliable, probative, and substantial evidence in the record. "In determining whether the standard of review prescribed by R.C. 2506.04was correctly applied by the court of common pleas, both this court [theSupreme Court] and the court of appeals have a limited function. Id. Inan R.C. Chapter 2506 administrative appeal of a decision of the board ofzoning appeals to the common pleas court, the court, pursuant to R.C.2506.04, may reverse the board if it finds that the board's decision isnot supported by a preponderance of reliable, probative and substantialevidence. An appeal to the court of appeals, pursuant to R.C. 2506.04, ismore limited in scope and requires that court to affirm the common pleascourt, unless the court of appeals finds, as a matter of law, that thedecision of the common pleas court is not supported by a preponderance ofreliable, probative and substantial evidence." (Emphasis added.) Kisilv. Sandusky (1984), 12 Ohio St.3d 30. {¶ 9} Appellant claims in his brief that the denial of the use variance is an unnecessary hardship. The determination of whether an unnecessary hardship exists is one of fact entrusted to the board's discretion. Shoemaker v. First Natl. Bank of Ottawa (1981),66 Ohio St.2d 304. The mere fact that property can be put to a more profitable use does not, in itself, establish a necessary hardship where less profitable alternatives are available within the zoning classification. Consolidated Mgt., Inc. v. Cleveland (1983),6 Ohio St.3d 238 at 242. {¶ 10} Where a purchaser of commercial property acquires the premises with knowledge of the zoning restrictions, he has created his own hardship and generally cannot thereafter apply for a zoning variance based on such hardship. Consolidated Mgt., Inc. v. Cleveland (1983),6 Ohio St.3d 238 at 242. {¶ 11} We now apply the standards above to the case sub judice. In the case at bar, one parcel was purchased by appellant's family more than 10 years earlier and the other nearly 30 years earlier. The property was purchased without a multi-family residential use variance permit. Appellant cannot now claim that the single-family variance the property was purchased with creates a hardship. {¶ 12} Appellant argues that, because of the BZA's denial, he will not be able to fully develop his property, thus causing an unnecessary hardship. However, this is not entirely accurate because the land isalready developed as single residential property. In fact, the property is already constructed and is being utilized as rental property. Moreover, appellant states that he will not be able to develop the property, and because he is not able to develop the property, "the cost of the land, the real estate, and the property he [appellant] has at hand would never yield anything."1 There is no requirement that the owner receive the highest and best economic return on his property; appellant only has the ability and privilege of developing the property within the approved zoning classification. {¶ 13} In addition, appellant argues that there are multi-family dwellings located very close to his property. However, these multi-family zoned parcels are located in districts that are currently zoned asmulti-family parcels, not single-family zoned parcels. The mere fact that appellant's property is located in the vicinity of property that is classified in a different manner does not justify changing appellant's property variance. {¶ 14} In an appeal of a zoning determination, the common pleascourt must act under the presumption that the determination of the boardof zoning appeals is valid. The burden of overcoming this presumption and showing invalidity rests upon the party opposing the determination. The test to be applied by the common pleas court is not whether any legal justification exists, but whether the ordinance bears a reasonablerelationship to the public health, safety, welfare, or morals. BP OilCo. v. Dayton Bd. of Zoning Appeals (1996), 109 Ohio App.3d 425. The decision of the common pleas court is appealable to the court of appeals on questions of law. R.C. 2506.04. However, as previously stated, the appeal court's standard of review is more limited than that of the commonpleas court. An appellate court's standard of review is whether, as a matter of law, the decision of the common pleas court is not supported by a preponderance of reliable, probative, and substantial evidence. BP OilCo., supra. {¶ 15} Based on the above, we find a preponderance of reliable, probative, and substantial evidence to support the lower court's decision upholding the BZA's denial of appellant's multi-family variance request. {¶ 16} Appellant's first and second assignments of error are denied. {¶ 17} The judgment is affirmed. Judgment affirmed. It is ordered that appellees recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Kenneth A. Rocco, A.J. and Patricia A. Blackmon, J. concur. 1 See appellant's brief and assignments of error, filed June 9, 2003, page 6.

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OPINION This matter is the result of allegations of sexual abuse made by defendant's niece and daughter. Erica Darthard, defendant's niece, testified that defendant sexually assaulted her on numerous occasions while she was between the ages of seven and eleven. The assaults usually took place while defendant was babysitting her while her mother and defendant's wife played bingo. Similar allegations of abuse were made by Tracie Jennings, defendant's daughter. In June 1999, defendant was charged with one count of felonious sexual penetration, thirteen counts of rape, four additional counts of rape with specification, thirteen counts of sexual battery, four additional counts of sexual battery with specification, and fifteen counts of gross sexual imposition. Defendant was subsequently convicted of four counts of gross sexual imposition and sentenced to a seven-year term of incarceration. Thereafter, defendant was adjudicated a sexual predator, and this appeal followed. Defendant now raises the following ten assignments of error. I. The court erred in admitting "other acts" evidence. II. The court erred in not severing unrelated counts for separate trials. III. The combination of admitting unrelated "other acts" evidence, and not severing unrelated counts, was plain error. IV. The court erred in admitting expert testimony. V. The Appellant was denied due process by prosecutorial misconduct. VI. The "guilty" verdicts were against the manifest weight of the evidence. VII. The Appellant was denied due process in the "sexual predator" proceedings. VIII. The court abused its discretion by an excessive sentence. IX. The Appellant's right to due process was denied by ineffective assistance of counsel. X. The cumulative effect of multiple errors denied a fair trial. In his first assignment of error, defendant maintains the trial court erred when it admitted evidence that defendant's adopted daughter, Kimberly Jennings, had made prior allegations of sexual abuse by defendant. A conviction will not be reversed on the basis of the admission or exclusion of evidence, unless the defendant is able to demonstrate that the trial court abused its discretion. Decisions concerning the admission or exclusion of evidence lie within the discretion of the trial court, and will not be reversed on appeal absent an abuse of discretion. O'Brien v. Angley (1980),63 Ohio St.2d 159, 163. An abuse of discretion constitutes more than an error of law or a decision which might later be considered unwise. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Rather, it entails an action which is clearly unreasonable, arbitrary, or unconscionable under the circumstances. Id. We are cognizant of the general rule that evidence of previous or subsequent acts, wholly independent of the charges for which an accused is on trial, is inadmissible. State v. Hector (1960), 19 Ohio St.2d 167. See, also, Evid.R. 404(B), which provides that evidence of a defendant's other crimes, wrongs, or acts is not admissible to prove his character in order to show that he acted in conformity therewith. However, such evidence is clearly admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Smith (1990), 49 Ohio St.3d 137, 140. This is such a case. We have determined on several prior occasions that evidence going to the issue of delayed reporting by children, relatives, or other persons living with or having consistent contact with the accused is relevant and probative, and when properly presented, is not offered to show that the defendant acted in conformity therewith. For example, in State v. Jackson (Feb. 20, 2001), Franklin App. No. 00AP-183, unreported, we determined that prior instances of sexual contact between the accused and his fifteen-year-old stepdaughter was relevant, not because of the nature of the contact, but because it helped to explain why the victim delayed reporting subsequent abuse. Specifically, the victim testified that she told her mother about defendant's actions; however, she did not believe that her mother believed her or took appropriate action in light of her claims. We explained that when a victim is subjected to prolonged or escalating abuse, a jury may reasonably question why the victim did not immediately report earlier instances of abuse. See, also, State v. Daniel (1994), 97 Ohio App.3d 548, 565-566; State v. Pennington (July 30, 1991), Franklin App. No. 91AP-13, unreported; and State v. Poe (Oct. 24, 2000), Franklin App. No. 00AP-300, unreported. In such a situation, evidence of this nature is not offered to prove defendant's bad character or his action in conformity therewith, but is offered to explain why the victim did not immediately report or take other action concerning the indicted offense. Jackson, supra. At trial, Erica testified that she entered into an agreement with Kimberly not to disclose her abuse because Kimberly's mother had been unsupportive of Kimberly's previous allegations, and had told Kimberly to lie about, and later recant those allegations. The evidence of Kimberly's previous allegations was presented in relatively general terms and was accompanied by several limiting instructions. Upon review, we believe that it was properly admitted, not to show defendant's bad character or his action in conformity therewith, but to address the issue of Erica's delayed reporting of defendant's abuse. The testimony also provided necessary background information explaining why Erica ultimately decided to come forward with her allegations. According to the testimony given at trial, Erica and Kimberly agreed that they would not speak of their abuse unless and until defendant either died, or until Erica or Kimberly learned that defendant had abused someone else. Evidence of the agreement and the reason therefore was necessary to explain Erica's delayed reporting to the jury. At trial, Kimberly testified that she immediately contacted Erica when she learned of Tracie's sexual abuse. The two then confronted defendant's wife, who took no action, and later Erica's mother, who notified the authorities. A thorough investigation of the allegations of all three girls followed. Having carefully reviewed defendant's argument, we are unable to find that the trial court acted in a clearly unreasonable, arbitrary or unconscionable manner when it allowed limited testimony from and about Kimberly Jennings. Blakemore, supra. As noted by defendant, the question of credibility was extremely important in this case. Without the testimony concerning Kimberly, certain aspects of Erica's testimony may have, as highlighted by defendant, seemed implausible. Evidence of the circumstances surrounding Kimberly's allegations of abuse helped explain why Erica did not come forward earlier. Accordingly, defendant's first assignment of error is overruled. In his second assignment of error, defendant argues the trial court erred when it failed to try the counts pertaining to Erica and Tracie separately. Ohio law favors the joining of multiple criminal offenses for trial. State v. Franklin (1991), 62 Ohio St.3d 118, 122. See, also, Crim.R. 8(A), which provides for the joinder of two or more criminal offenses where they are of the same or similar character, or are based upon acts that are connected with or constitute part of a common scheme or course of conduct. A defendant may move to sever the trial of multiple offenses if their consolidation will prejudice his or her rights. Crim.R. 14. However, according to State v. Torres (1981), 66 Ohio St.2d 340, a defendant claiming error following a refusal to allow separate trials, must show that his or her rights were prejudiced, that at the time of his or her motion he furnished the trial court with sufficient information to make the determination, and finally, that the trial court abused its discretion in refusing to grant the motion. Because defendant did not move to sever trial of the counts pertaining to the two victims in this case, he has waived all but plain error. State v. Miller (1995), 105 Ohio App.3d 679, 691; State v. Strobel (1988), 51 Ohio App.3d 31; and State v. Owens (1975), 51 Ohio App.2d 132. However, even assuming that he had moved to sever, defendant was charged with engaging in sexual misconduct, of a similar nature and in a similar manner, with two young children, who were both related to defendant, and who both spent a considerable amount of time with defendant in his home. Having carefully considered the arguments presented in support of this assignment of error, we are unable to conclude that the trial court committed plain error, or that it abused its discretion in trying these charges together. As such, defendant's second assignment of error is overruled. In his third assignment of error, defendant contends that the combination of the alleged errors argued in his first and second assignments, when combined, amount to plain error justifying reversal. Crim.R. 52(B) provides that plain error may be noticed although not brought to the attention of the trial court, when that error affects the substantial constitutional rights of the accused. However, in order to prevent unscrupulous conduct, reversals premised upon plain error must be made with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. Miller, supra, at 691. "The plain error test requires that, but for the existence of the error, the result of the trial would have been otherwise." State v. Wiles (1991),59 Ohio St.3d 71, 86. Defendant's third assignment is overruled for the reasons set forth in our discussion of defendant's first and second assignments of error. In his fourth assignment of error, defendant asserts that it was wrong for the trial court to admit the testimony of Dr. Johnson, an expert in the area of child sexual abuse. Specifically, defendant attacks the credibility of what he refers to as "stealth" "child sexual abuse accommodation syndrome." As with the decision to admit or allow other types of evidence, the decision to admit or reject expert testimony will not be overturned absent a showing that the court abused its discretion. State v. Biros (1997), 78 Ohio St.3d 426, 452; Blakemore, supra. While the value of "child sexual abuse accommodation syndrome" may be debatable, expert testimony about the general behavioral characteristics observed in sexually abused children is admissible under the Rules of Evidence. See State v. Stowers (1998), 81 Ohio St.3d 260, wherein the Ohio Supreme Court held that "an expert witness' testimony that the behavior of an alleged child victim of sexual abuse is consistent with behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence." Id. at 261. See, also, State v. Nemeth (1998),82 Ohio St.3d 202, and State v. Bidinost (1994), 71 Ohio St.3d 449 . Moreover, expert testimony concerning the characteristics of sexually abused children need not be specifically tied to one particular victim. See State v. Daniel (1994), 97 Ohio App.3d 548, 563. Defendant's fourth assignment of error is overruled. In his fifth assignment of error, defendant accuses the assistant prosecutor of engaging in misconduct which deprived him of constitutional due process. This claim is premised upon defendant's belief that the prosecutor misstated evidence during opening statement and to the trial court while discussing in limine motions before the start of trial. "[T]he touchstone of due-process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." State v. Hill (1996), 75 Ohio St.3d 195, 203, quoting Smith v. Phillips (1982), 455 U.S. 209, 219. Therefore, in order to justify the reversal of a conviction on the basis of prosecutorial misconduct, a defendant must prove that the prosecutor's comments were improper, but more importantly, that they prejudicially affected defendant's constitutional rights. State v. Smith (1984),14 Ohio St.3d 13, 14. The Ohio Supreme Court has established that considerable latitude is permitted in the context of the adversarial process, and that the determination of whether the boundary lines have been crossed lies in the first instance with the discretion of the trial court. State v. Maurer (1984), 15 Ohio St.3d 239, 269. Finally, in analyzing whether defendant was constitutionally deprived of a fair trial, the court must determine whether the jury would have found defendant guilty absent the improper conduct. Id. Defendant's declarations to the contrary, we are unable to find either that the prosecutor engaged in misconduct, or, assuming that the instances cited by defendant did traverse the bounds of acceptable advocacy, that the result of defendant's trial would have been different. Defendant's fifth assignment of error is therefore overruled. Defendant argues in his sixth assignment of error that his conviction stands against the manifest weight of the evidence. Defendant supports this argument with several instances of inconsistent statements given during testimony. In order for this court to reverse the judgment of the trial court on the basis that the verdict is against the manifest weight of the evidence, we must unanimously disagree with the fact finder's resolution of the conflicting testimony. State v. Thompkins (1997),78 Ohio St.3d 380, 387. In reaching this determination, we review the entire record, weigh the evidence and all reasonable inferences to be drawn therefrom, consider the credibility of the witnesses as best we are able from the face of the transcript, and determine whether in resolving the conflicts in the evidence, the jury clearly lost its way thereby creating such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. We are cognizant that the weight to be given the evidence and the determination of the credibility of witnesses are primarily issues to be decided by the trier of fact. We also recognize that our discretionary authority to order a new trial should be exercised only in the most exceptional case in which the evidence weighs heavily against defendant's conviction. Id. As required, we have carefully reviewed the entire record paying close attention to those instances of inconsistent testimony cited by defendant. Having done so, we believe the record contains evidence which, if believed, would permit reasonable minds to find defendant guilty beyond a reasonable doubt. As noted, defendant was convicted of four counts of gross sexual imposition. At trial, Erica testified that appellant had sexually assaulted her on numerous occasions by fondling her vagina with either his hands or penis. Erica also testified that defendant urinated on her pubic region, after which he would rub his penis about her vagina. Similarly, Tracie testified that over a period of approximately three years, defendant engaged in various sexual activities with her, including fondling her breasts and vagina. Having carefully reviewed the trial transcript, we do not believe the jury clearly lost its way, or created such a manifest miscarriage of justice that we are required to reverse defendant's conviction. Defendant's sixth assignment of error is overruled. In his seventh assignment of error, defendant claims that it was "fundamentally unfair" to conduct a sexual predator hearing, and further, that R.C. 2929.19 and 2950.09 are unconstitutionally vague. In support of this argument, defendant argues that the interplay between R.C. 2929.19 and 2950.09 prevent a person of average intelligence from ascertaining whether he is at risk of being declared a sexual predator for offenses committed prior to 1997. Defendant therefore opines that a reasonable person is unable to determine whether his or her conduct is criminal under Ohio law. First, the Ohio Supreme Court has already determined that R.C. Chapter 2950 is not void for vagueness. State v. Williams (2000),88 Ohio St.3d 513. Moreover, defendant's line of reasoning completely ignores the fact that sexual predator hearings and determinations are civil and not criminal in nature. Defendant also maintains that it was improper to hold a sexual predator hearing on any offense which could have been committed prior to January 1, 1997. However, R.C. 2950.09 clearly provides for hearings as a result of offenses committed prior to this date. This contention is therefore without merit. In another claim, defendant maintains that R.C.2950.09(B)(3) prevents a trial court from considering the testimony given at trial. This contention is also without merit. See State v. Lewis (May 9, 2000), Franklin App. No. 99AP-752, unreported. In his second-to-last claim, defendant argues that the trial court "violated R.C. 2950.09(B)(3) by ruling based on evidence that was not clear and convincing." While the trial court was required to find, by clear and convincing evidence, that defendant is a sexual predator, there is no requirement that each piece of evidence it relies upon be proven by clear and convincing evidence. Moreover, the court explained the reasons supporting its determination in detail as follows: I agree with the prosecution that the age of the victims; the manner in which the offenses that the defendant was convicted of took place; the relationship of the victims to the offender are extremely relevant in making a determination. *** I can find, and do find, that there was abuse of the specific nature and specific time periods. *** Now, given the fact of the relationship of the victims in this case. *** We're talking about a time period of 1983 through 1998, over which the offenses were committed by the defendant, involving three different minor children, who were related either by marriage or blood to the defendant. I can think of very few circumstances where that time period, that relationship, those ages, would not be — I can think that, I can think of no circumstances under which that would not be considered a pattern of abuse. And so, I do find. And so I do find 2950.09B to, H that the defendant's conduct constituted a pattern of abuse, in my view. And I think the case law is clear, this kind of conduct involving family members in the circumstances under which it was committed and over the period of time it was committed indicates a strong compulsion, or when it comes to children, a compulsion which is likely to reoccur. And therefore, I find by clear and convincing evidence that the state has proven to this court that the defendant is a person who was convicted of, or plead guilty to committing a sexually-oriented offense, and is likely to engage in the future in one or more sexually- oriented offenses. [Tr. 2115-2116.] Finally, defendant contends the trial court erred when it considered the trial testimony during the course of the sexual predator determination. However, this contention is also without merit. Lewis, supra. Defendant's seventh assignment of error is overruled. In his eighth assignment of error, defendant maintains the trial court imposed an excessive sentence. In support of this argument, defendant states merely that a sentence should not be unduly influenced by passion, and in this case, that the judge's words "reveal his passion." Ohio law provides trial courts with broad discretion when sentencing within the statutory guidelines. State v. Cassidy (1984),21 Ohio App.3d 100, 102. In order to lawfully impose consecutive sentences, a trial court must comply with the requirements of R.C.2929.14(E)(4), which provides: If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. In passing sentence in this matter, the court explained: *** The acts that you have committed and have been found guilty of have severely harmed the two individuals, Erica Darthard and Tracie Jennings, your own daughter. What you have been convicted of doing to them and what they have suffered, they will have to live with for the rest of their lives. No sentence that I can pass in this case can adequately make up for that. In my view, there are few crimes that are more serious and more reprehensible than sexual abuse of children, in this case, your niece and your own natural daughter. Those acts are reprehensible. [Tr. 2160.] In regard to the counts committed against Erica, the court found: I hereby sentence you to the maximum term of imprisonment of two years on each count. In imposing this sentence, I note that offenses were committed against the child of eight to ten years old, who was a relative, and perhaps even more important under your care and supervision at the time of the commission of the offenses. I consider these to be aggravating circumstances, supporting the imposition of the maximum sentence on each count. I have heard no mitigating circumstances since these are separate and distinct offenses committed at separate times with a separate animus ***. [Tr. 2161.] In regard to the counts committed against Tracie, the court found: I further find that Tracie Jennings suffered serious psychological harm as a result of the commission of theses offenses and that your relationship with Tracie Jennings facilitated the offenses. *** I further find that in imposing the shortest term of imprisonment, six months on each count would demean the seriousness of these offenses. It would not protect the public from future criminal activity. In my view, Mr. Jennings, you have committed the worst form of these offensive [sic] gross-sexual imposition, in that the victim was your own daughter. *** I order that these terms be served consecutively, and that the harm caused to Tracie Jennings and other members of your family and the circumstances under which it was caused where you were in the care and custody of Tracie Jennings was so great, that a single term of 18 months would not adequately reflect the seriousness of your conduct. [Tr. 2162- 2163.] As set forth above, the trial court gave adequate findings and support for the sentence imposed upon defendant. Defendant's eighth assignment of error is overruled. Defendant argues in his ninth assignment of error that he was denied his constitutional right to effective counsel. In order to establish that he has been denied the effective assistance of counsel, defendant must show that trial counsel's performance fell below an objective standard of reasonable representation, and that he was prejudiced by such performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus, and Strickland v. Washington (1984), 466 U.S. 668. To establish prejudice, defendant must demonstrate that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Id. The United States Supreme Court has explained: *** First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 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, supra, at 687.] In Strickland, the United States Supreme Court also cautioned that counsel will be "strongly presumed" to have rendered adequate representation, and that "the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689. In State v. Frazier (1991), 61 Ohio St.3d 247, the Ohio Supreme Court explained: *** [T]he Strickland court strongly cautioned courts considering the issue of ineffective assistance of counsel that "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. *** Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" [Id. at 253, quoting Strickland, supra, at 689.] While defendant makes many general claims, each of which we have carefully examined and discussed in our discussion of defendant's preceding assignments of error, we are unable to conclude that the performance of defendant's trial counsel fell below an objective standard of reasonable representation, or that defendant was materially prejudiced by counsel's alleged substandard performance. As to counsel's alleged failure to demand an "in limine" hearing concerning the "other acts" evidence, counsel filed a motion in limine regarding this issue which was first addressed in chambers and then on the record. After the court's adverse ruling, counsel properly noted defendant's objection. As for Dr. Johnson's testimony, there was no error in failing to object, as that testimony was properly admitted. Again, as to counsel's failure to object to the sexual predator hearing as "fundamentally unfair," we find no error. Finally, as for defendant's general claims regarding counsel's trial preparation and procedure, we again find no error. Defendant's ninth assignment of error is therefore overruled. In his tenth and final assignment of error, defendant attempts to garner his preceding allegations in support of a claim that the cumulative effect of the errors committed in this case denied him a fair trial. While it is true in certain unique cases that multiple harmless errors, when considered together, may violate a defendant's right to a fair trial, this is not one of those cases. Cf. State v. DeMarco (1987), 31 Ohio St.3d 191. Defendant's tenth assignment of error is also overruled. Having overruled all ten of defendant's assignments of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas. TYACK and DESHLER, JJ., concur.

2016-07-06 06:36:42.556288+00

{¶ 1} Plaintiff-appellant/cross-appellee, Video Shack, Inc., and defendants-appellees/cross-appellants, James Smith, Sr. and James Smith, Jr., appeal from a judgment of the Columbiana County Common Pleas Court delineating the parties' property lines on adjacent parcels of property and finding no merit in the Smiths' other claims. {¶ 2} A restatement of the facts set out in the trial court's July 19, 2001 judgment entry is helpful in understanding the background of this case. The parties own abutting parcels of land in Lisbon, Ohio. Smith owns two parcels known as the "white house" property and the "grange" property. Video Shack owns what is known as the "Video Shack" property. The Video Shack property is in the shape of an inverted "L" going along the east and north sides of the grange/white house property. The area where the two properties abut is covered in gravel and used mostly as a driveway for Video Shack. A large walnut tree sits in the disputed area. Marty Heckathorn, Jr. owns the house next to Video Shack. Marty Heckathorn, Sr. runs Video Shack, a small business renting videos and selling bait. {¶ 3} An old fence line runs behind the grange/white house property with a corner post in line with the walnut tree. The fence line continues toward a creek behind the white house. At one time, a shed sat on this line. {¶ 4} In 1991, an opportunity arose for Smith to have a free well drilled for his property. Smith discussed the location of the well with Heckathorn. The well was drilled inside the fence line. In 1995, Heckathorn had a survey done of the Video Shack property. The survey revealed that the walnut tree and the well were within the Video Shack property with the well sitting eight feet inside that line. Smith disputes this survey. Video Shack and Smith began to share the well. A line was run to Video Shack for a toilet and a sink. {¶ 5} Video Shack also began to use the water line to fill its fish tanks, which it drained and filled weekly. The water from the tanks drained into the gravel area. Smith began to experience a wet basement. He further noticed that his electric bill was increasing. Smith had a french drain installed between Video Shack and his building and a line was run to Video Shack for its downspouts. Heckathorn then began to drain his fish tanks into the downspouts. {¶ 6} A dispute arose between Smith and Heckathorn because of Smith's increased electric bill. Eventually, Smith cut off the well by turning off the electricity. Smith also believed that the drainage from the fish tanks was responsible for his wet basement. The relationship between the Smiths and the Heckathorns deteriorated. Smith eventually installed a new driveway and drainage system on the west side of his house between the white house and his building. Before this time, Smith had allowed parking for Video Shack in front of his building. But he blocked the area off, preventing further parking. {¶ 7} On December 30, 1999, Video Shack filed a complaint against Smith seeking to quiet title to its property and for certain injunctive relief. Smith then counterclaimed for, among other things, adverse possession and injunctive relief and joined the Heckathorns as party-defendants. The case proceeded to a bench trial. The trial court issued its judgment entry on July 19, 2001, finding Smith established ownership of the property between the survey line and the fence line on the northern side of his property and in the northeast corner of the property by adverse possession. However, it found Smith did not establish ownership by adverse possession on the eastern portion of the property. The trial court then ordered certain injunctive relief. Finally, the trial court found Smith did not establish by a preponderance of the evidence his remaining counterclaims. {¶ 8} Both Video Shack and Smith timely filed notices of appeal from the trial court's July 19, 2001 judgment. Subsequently, Video Shack filed a motion in this court for a limited remand in order for the trial court to rule on a motion for clarification of the July 19, 2001 judgment entry. This court granted a limited remand for clarification for 60 days. The trial court ruled on the motion for clarification in a December 27, 2001 judgment entry. But the court found it erred in its original judgment entry and modified the July 19th order to correct that error. Additionally, the court entered this judgment after the limited remand expired. Neither party filed a notice of appeal from the December 27, 2001 journal entry. {¶ 9} Before addressing the merits of the parties' alleged errors, we must determine whether the trial court's December 27th judgment is properly before this court. {¶ 10} An appellate court is vested with the jurisdiction to reverse, affirm, or modify a judgment from which a party has filed a proper notice of appeal. R.C. 2505.02(B); App.R. 12(A)(1)(a). Once the appellant files a notice of appeal, the trial court retains all jurisdiction not inconsistent with the reviewing court's jurisdiction to reverse, affirm, or modify the judgment. Howard v. Catholic Social Serv.of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 146. {¶ 11} Video Shack filed a proper notice of appeal on August 16, 2001. Where a party files a timely notice of appeal from a final order, this action divests the trial court of jurisdiction to alter the order.Stewart v. Zone Cab of Cleveland, 8th Dist. No. 79317, 2002-Ohio-335, citing Harkai v. Scherba Industries, Inc. (2000), 136 Ohio App.3d 211,215; Yee v. Erie Cty. Sheriff's Dept. (1990), 51 Ohio St.3d 43, 44; In reKurtzhalz (1943), 141 Ohio St. 432. At this point, the trial court was divested of jurisdiction to do anything that might interfere with this court's jurisdiction to reverse, affirm, or modify the July 19, 2001 judgment. {¶ 12} In issuing the limited remand for clarification of the July 19th judgment, we vested the trial court with jurisdiction to clarify its judgment. Additionally, we gave it 60 days within which to do so. In issuing its December 27th judgment, the trial court failed to clarify its July 19th judgment. Instead, the court modified part of its July 19th judgment. In doing so, the trial court overstepped its jurisdictional bounds. A trial court does not have jurisdiction to change its rulings on issues that are complained of on appeal. Kovac v. Whay Corp. (Oct. 20, 1994), 8th Dist. No. 65469. Furthermore, it did so after the 60-day time limit had expired. Thus, the trial court had no jurisdiction to enter the December 27th judgment. Not only did the trial court fail to act within the remand time we prescribed, but it also stepped on our jurisdictional feet in modifying a judgment that was on appeal to this court. "Where the trial court enters an order without jurisdiction, its order is void and a nullity. Cashelmara [Condominium Unit Owners v. Cashelmara Co. (July 15, 1993), Cuyahoga App. No. 63076]. A void judgment puts the parties in the same position they would be in if it had not occurred. Id., citing Romitov. Maxwell, Warden (1967), 10 Ohio St.2d 266, 267." Stewart, 8th Dist. No. 79317. For these reasons, the December 27th judgment is a nullity. {¶ 13} The parties were not required to file a new notice of appeal from the December 27th judgment. Had this court not ordered the limited remand, the trial court would not have issued another judgment. When we grant a limited remand for clarification, the trial court's clarification order is part of the original appeal. The trial court is clear in its December 27th judgment that it is entering its judgment perthe referral from the Court of Appeals. As long as this court grants a remand and the trial court is clear in its judgment that it is responding to this court's remand, there is no reason to require a separate notice of appeal as the jurisdiction of this court has already been properly invoked. {¶ 14} We now turn to the parties' assignments of error. Video Shack raises one assignment of error, which states: {¶ 15} "THE TRIAL COURT ERRED IN FINDING THAT APPELLEE MET HIS BURDEN OF PROOF AND ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE HIS ADVERSE POSSESSION CLAIM TO PROPERTY OWNED BY THE APPELLANT AND THUS THE TRIAL COURT'S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 16} Video Shack's assignment of error deals with the northern boundary of the grange/white house property. It contends Smith did not prove the elements of adverse possession. It points to Patricia Freeman's testimony for support. Ms. Freeman, who was involved in a land contract deal to buy part of the property, testified on cross-examination that she kept chickens and ducks and that she gave the Heckathorns eggs to use their property. (Tr. 119). Video Shack contends this testimony breaks the continuous chain of adverse possession. It also contends that the court's finding that Ms. Freeman believed the corner post and the fence line made up the property line was inconsistent with the evidence. If this statement was true, Video Shack contends, the shed on the property would have been bisected by the property line. {¶ 17} "To acquire title by adverse possession, a party must prove, by clear and convincing evidence, exclusive possession and open, notorious, continuous, and adverse use for a period of twenty-one years."Grace v. Koch (1998), 81 Ohio St.3d 577, syllabus. In order to establish the necessary twenty-one year period, a party may add to his own term of adverse use any period of adverse use by prior succeeding owners in privity with one another. Zipf v. Dalgarn (1926), 114 Ohio St. 291, syllabus. Clear and convincing evidence is that proof which establishes in the minds of the trier of fact a firm conviction as to the allegations sought to be proved. Cross v. Ledford (1954), 161 Ohio St. 469, 477. Where a party must prove a claim by clear and convincing evidence, a reviewing court must examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof. State v. Schiebel (1990), 55 Ohio St.3d 71, 74. {¶ 18} Failure of proof on any of the elements of adverse possession results in failure to acquire title by adverse possession.Grace, 81 Ohio St.3d at 579. "A successful adverse possession action results in a legal titleholder forfeiting ownership to an adverse holder without compensation. Such a doctrine should be disfavored, and that is why the elements of adverse possession are stringent." Id., at 580, citing 10 Thompson on Real Property (Thomas Ed. 1994) 108, Section 87.05. {¶ 19} It is the visible and adverse possession with an intent to possess which constitutes the adverse character of the occupancy. Grace,81 Ohio St.3d at 581, citing Humphries v. Huffman (1878), 33 Ohio St. 395,402. In other words, "`there must have been an intention on the part of the person in possession to claim title, so manifested by his declarations or his acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment or a surrender of his claim.' (Emphasis sic.)" Grace, 81 Ohio St.3d at 581, quoting Lane v. Kennedy (1861), 13 Ohio St. 42, 47. Courts do not require the title owner of the property receive actual notice of adverse possession as long as that owner is charged with knowledge of adverse use when one enters into open and notorious possession of the land under a claim of right. Vanasdal v. Brinker (1985), 27 Ohio App.3d 298, 299. The adverse occupancy of the land must be sufficient to notify the real owner of the extent of the adverse claim. Humphries, 33 Ohio St. at 404. {¶ 20} In order to establish adverse possession of the area between the survey line up to the fence line north of the white house, Smith presented his testimony along with that of previous property owners. According to that testimony, Carl Pennell owned that property from 1952 until 1973 when he sold it to some unidentified person. Gary Griffith acquired the property and sold it to Ms. Freeman on a land contract in 1989. Ms. Freeman continued with the land contract sale until 1995 when the Griffiths were unable to make the payments to the bank. Griffith then sold the property to Smith in 1995. {¶ 21} Video Shack bases its argument that Smith failed to establish adverse possession of this portion of the disputed property upon Ms. Freeman's testimony. A large shed was built on the back of the white house property along the property line. That shed was not built by Pennell or Ms. Freeman and Ms. Freeman assumed Griffith built it. The north side of the shed was near the northern fence line between the white house property and Video Shack property. Ms. Freeman knew that although the shed was inside the fence line, the property line actually ran through the middle of the shed. Ms. Freeman testified, "I just — I just knew [some of the land the shed was on] wasn't ours, but nobody never said nothing. You know." (Tr. 121). Ms. Freeman used the shed, her children played in the area up to the fence line, and she mowed that area. Ms. Freeman also testified that she and her fiancé gave chicken and duck eggs to the Heckathorns so that they would continue to allow her to use the shed, which she knew was on their property. (Tr. 128). {¶ 22} Ms. Freeman's use of the shed and maintenance of the area between the shed and the fence line could manifest to others that Ms. Freeman believed she owned the property up to the fence line. But as Ms. Freeman's testimony demonstrates, she never intended to claim title to that area between the actual property line and the fence line. Because Ms. Freeman did not intend to claim the land as her own, her possession was not adverse to the title owner's claim to the property. See Grace, supra; Humphries, supra. Because Ms. Freeman's possession was not adverse to that of the title owner, the trial court could not find Smith owned the property via adverse possession. Thus, Video Shack's sole assignment of error has merit. {¶ 23} Smith raises two assignments of error, the first of which states: {¶ 24} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION WHEN AFTER RENDERING ITS DECISION FINDING ADVERSE POSSESSION TO A FENCE LINE, IN AN ATTEMPT TO `CLARIFY ITS DECISION', THE COURT REVERSED ITS OPINION ON THE VERY PROPERTY BEING DISPUTED." {¶ 25} This assignment of error deals with the western boundary of the grange/white house property. In its July 19th judgment, the trial court found that Smith did not prove adverse possession because he could not prove that he used the property along the western boundary of his land exclusively. Smith's argument focuses on adverse possession and demonstrating that he proved at trial that his use of the disputed property, or that of his predecessors, was continuous, open, adverse, and hostile for 21 years. {¶ 26} As we have already stated, the trial court's December 27th judgment is void. This resolves any argument that the court erred in changing its July 19th judgment. {¶ 27} Accordingly, Smith's first assignment of error is moot. {¶ 28} Smith's second assignment of error states: {¶ 29} "THE TRIAL COURT ABUSED ITS DISCRETION, WHEN AFTER HEARING SUBSTANTIAL PROBATIVE EVIDENCE AND TESTIMONY IN SUPPORT OF DEFENDANT'S CLAIM OF BEING DAMAGED BY PLAINTIFF'S ACTS, IN DIVERTING A WATER COURSE ONTO DEFENDANT'S PROPERTY AND INTO DEFENDANT'S HOME AND OR THE HARASSMENT OF DEFENDANT BY PLAINTIFF AND HIS CHILDREN; BY FINDING LACK OF PREPONDERANCE OF EVIDENCE TO PROVE DEFENDANT'S CLAIMS." {¶ 30} Smith argues the trial court erred because he proved his other counterclaims by a preponderance of the evidence. A trial court's decision is against the weight of the evidence if it is not supported by competent, credible evidence. State ex rel. Shady Acres Nursing Home,Inc. v. Rhodes (1983), 7 Ohio St.3d 7, 8. {¶ 31} Smith made four claims against Video Shack and the Heckathorns in addition to his claim for adverse possession. First, he claimed the Heckathorns filled in a permanent waterway which overflowed its natural boundaries. Second, he claimed they allowed Video Shack's customers to block his driveway. Third, he claimed they installed a faulty sewage system on Video Shack's property which leaked onto his property. Finally, he claimed they threatened him. He alleged each of these acts caused him both physical and emotional damage. {¶ 32} In his first counterclaim Smith contended the Heckathorns filled a permanent waterway. A creek ran across Smith's property from Video Shack's property. Near the street, Smith built a culvert to direct the stream into a drain pipe. A couple of times, that stream flooded in the area near the culvert. After the flooding, Smith examined the drain area and found scrap metal acting as a grate. However, Smith introduced no evidence that the scrap metal caused the flooding. Furthermore, Smith introduced no evidence that the Heckathorns were the ones who put the scrap metal in the culvert. There is no evidence tying the Heckathorns to the flooding. {¶ 33} Smith's second counterclaim alleged the Heckathorns allowed Video Shack's customers to park in his driveway, blocking his way out which caused him to build a new driveway. However, on cross-examination, Smith admitted he told the Heckathorns he did not care if cars parked there and never told them otherwise "[t]o this day." (Tr. 229). Thus, the Heckathorns never knew Smith did not want their customers to park in the driveway. The Heckathorns were only doing what Smith had given them permission to do. {¶ 34} In his third counterclaim, Smith contended the Heckathorns installed a faulty sewage system on Video Shack's property which caused water to leak onto his property. The evidence showed the only sewage system installed by the Heckathorns on Video Shack's property was a french drain placed between the two properties, which was jointly installed by the parties. Smith argues the Heckathorns used this improperly which caused water to enter his basement. But as the trial court stated, while "there is some circumstantial evidence" the water was leaking into the Grange's basement due to the Heckathorns' actions "it is just as likely or probable that it is due to the lack of gutters on the roof and the fact that the basement is a hand dug basement where none existed before." (July 19th judgment entry). Once again, there is no evidence tying the Heckathorns' actions to Smith's wet basement other than Smith's speculations. {¶ 35} In his final counterclaim, Smith asserted the Heckathorns harassed him by shooting bullet holes into his trailer and lawn furniture and by leaving deer carcasses on Video Shack's property. Although there is evidence that the Heckathorns did skeet shoot on Video Shack's property, Smith never saw the Heckathorns shoot in the direction of his property. In addition, there is no evidence that the Heckathorns left the deer carcass on their property to harass Smith. Furthermore, there is no evidence on the record demonstrating the amount of damages Smith may have suffered as a result of the Heckathorns' alleged acts. {¶ 36} In summing up Smith's second assignment of error, the trial court properly denied Smith's counterclaims because competent, credible evidence does not exist in the record to support those claims. Thus, the trial court's decision was not against the weight of the evidence and Smith's second assignment of error is without merit. {¶ 37} For the reasons stated above, the trial court's decision is hereby reversed as to that part of the trial court's July 19, 2001 order with regard to Smith's counterclaim for adverse possession of the northern boundary of the disputed property. The northern boundary shall be as set out in the Edwin Browne survey. The remainder of the decision is hereby affirmed. Vukovich, J., concurs. DeGenaro, J., concurs in part and dissents in part; see concurring in part and dissenting in part.

2016-07-06 06:36:42.564004+00

{¶ 1} I agree with the majority's decision in all respects except one. The majority concludes that the trial court's December 27, 2001 judgment entry is a void judgment since the trial court did not have jurisdiction to enter that judgment. But we do not have the jurisdiction to address the propriety of the trial court's actions since the parties have not filed a notice of appeal from that judgment. Since that judgment is not in the record before this court, it is not subject to review in this appeal. {¶ 2} The majority concludes we can review the December 27 entry since we previously remanded the case back to a trial court. The majority notes that our jurisdiction was invoked by the notice of appeal from the July 17 entry, that we remanded the case so the trial court could rule on a motion to clarify its judgment, and that the trial court clearly stated that its December 27 entry was issued in response to that remand. The majority then states that an appeal from the December 27 entry is a mere continuation of the appeal from the July 17 entry. Accordingly, it concludes the parties did not need to file a notice of appeal from the December 27 entry. Simply stated, it is the majority's position that we invited any error the trial court may have made and that we should, therefore, address that error. This position is flawed. {¶ 3} We can only decide whether a trial court's judgment is correct when we have subject matter jurisdiction over that judgment. A notice of appeal as of right from a judgment must be filed with the clerk of the trial court within thirty days of the judgment or final order from which the appeal is taken. App.R. 3(A); App.R. 4(A). This requirement is jurisdictional and the lack of a timely notice of appeal from a judgment deprives this court of the authority to proceed to judgment. SerentityRecovery Homes, Inc. v. Somani (1998), 126 Ohio App.3d 494, 497; see, also, Donmofrio v. Amerisure Ins. Co. (1990), 67 Ohio App.3d 272, 276, citing Moldovan v. Guyahoga Cty. Welfare Dept. (1986), 25 Ohio St.3d 293;Didick v. Didick, 7th Dist. No. 01 APO 760, 2002-Ohio-5182. We have the obligation to examine whether we have subject matter jurisdiction over an issue since subject matter jurisdiction cannot be waived, cannot be conferred upon a court by agreement of the parties, may be raised for the first time on appeal, and may be the basis for sua sponte dismissal. Foxv. Eaton Corp. (1976), 48 Ohio St.2d 236, 238, overruled on other grounds by Manning v. Ohio State Library Bd. (1991), 62 Ohio St.3d 24, Civ.R. 12(H). {¶ 4} As we recently stated, an appeal is from a trial court's judgment. In re Beck, 7th Dist. No. 00 BA 52, 2002-Ohio-3460, ¶ 21. A new judgment necessitates a new appeal. Id. This is because anything filed in the trial court after the notice of appeal is not part of the record on appeal. The record on appeal consists of the original papers and exhibits filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries. App.R. 9(A). The clerk must prepare and transmit that record to us within the time provided by App.R. 10(A), unless such time is extended. App.R. 10(B). The December 27 entry is not part of the record transmitted to us because it was filed after Appellant's notice of appeal. We are bound by the record and may not consider facts extraneous to it. Paulin v. Midland Mut. Life Ins. Co., (1974), 37 Ohio St.2d 109,112. {¶ 5} In this case, the trial court altered the rights and obligations of the parties when issuing its second judgment entry. In doing so, the trial court created an entirely new judgment. That new judgment is not a part of the record in the instant appeal. Accordingly, we must resolve the issues raised by the parties as if the second entry did not exist. We cannot address the propriety of the trial court's actions by issuing that new judgment. {¶ 6} This is virtually the identical jurisdictional situation we addressed in Didick. In that case, the appellant filed a Civ.R. 60(B) motion before the notice of appeal was filed, but the trial court did not rule on that motion until after the notice of appeal was filed and we remanded the case to the trial court for that purpose. The appellant did not file a notice of appeal from the trial court's decision denying the Civ.R. 60(B) motion, but tried to argue the trial court erred in denying the motion in it's appellate brief. We held that we did not have jurisdiction to address the alleged error in the trial court's judgment on remand. The majority should have concluded likewise here. Merely because we remanded the case to the trial court so it could rule on a pending motion does not mean we have the jurisdiction to correct any error the trial court may have committed on remand. {¶ 7} The majority places a great deal of emphasis on the fact that we remanded this case to the trial court and mentions that it did not rule on the motion within the time for the limited remand. But as the majority correctly notes at ¶ 10, the trial court retains all jurisdiction not inconsistent with our jurisdiction to reverse, modify, or affirm the judgment even though Appellant filed the notice of appeal.Yee v. Erie Cty. Sheriff's Dept. (1990), 51 Ohio St.3d 43, 44. For instance, a trial court may execute judgment in the absence of a stay of proceedings. Similarly, a trial court has the jurisdiction to clarify its judgment while an appeal is pending even in the absence of a limited remand. See Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301,2002-Ohio-4398, ¶ 8-10. Accordingly, the trial court had jurisdiction to rule on the motion to clarify even without a limited remand. It is irrelevant that we remanded this case and it is equally irrelevant that the trial court ruled on the motion outside the time of limited remand. If the trial court had merely clarified its judgment, then we could consider the clarified order since the trial court did not change that order. But as both parties noted in their briefs, the trial court changed the order with regard to one of the boundaries between the parties. Because the change to the judgment creates a new judgment, we do not have jurisdiction to review the trial court's actions. {¶ 8} I can understand the majority's desire to address this issue now in order to save the parties the time and expense of litigating it in the future. But just because we wish to address an issue does not mean we have the jurisdiction to do so. The December 27 judgment is not in the record before this court because the parties have not appealed that judgment. Accordingly, I dissent from the portion of the majority's decision which addresses the propriety of that judgment.

2016-07-06 06:36:42.625312+00

OPINION This appeal arises from a decision of the Belmont County Common Pleas Court to affirm a liquor permit revocation order issued by the Ohio Liquor Control Commission. Appellant, FOE Aerie 0995, comes to this Court to further contest its liquor license revocation. For the following reasons, we affirm the decision of the lower court and liquor commission herein. On November 15th and 16, 1995, apparently pursuant to an informant's tip, agents from the Department of Public Safety went to Appellant's private club located in Bridgeport, Ohio, to investigate complaints of gambling within the liquor permit premises. On November 15th, a non-club member liquor agent rang the bell to the club and was admitted without question to the premises. While inside, the agent observed various tip tickets, tip boards and gambling pools, each with its own money container. The agent purchases an amount of tip tickets but did not win on his tickets. He did observe the barmaid check on winning numbers for various patrons in her payout record book. The next day, another liquor agent was admitted to the club, again without question. This agent identified herself as such to the manager and explained that a search was to take place. She and two other agents cleared the premises of patrons and removed from the establishment tip tickets, tip boards and tip cards, football spot sheets, football pools, 50/50 drawing tickets, private lottery tickets, raffle tickets and daily and weekly drawings. The agents also obtained payoff records for a wide assortment of these games. The manager confirmed both the games and the payoff records and amounts to the liquor agents. While it appears this search was purported to be conducted by means of a search warrant, no time-stamped or dated search warrant appears on the record. Appellant was cited for violating a Liquor Control Commission's Regulation § 4301:1-1-53, known as Regulation 53. Prior to the May 7, 1996 hearing on the violation before the commission, Appellant filed a motion to suppress. This motion was overruled by the commission. At hearing, Appellant denied the charges but stipulated to certain evidence presented, including the agents' reports in two of the four cases filed before the commission which arose out of these two agent visits. The other two cases were dismissed. Based on the record, the commission revoked Appellant's liquor license on June 5, 1996. The matter was taken before the common pleas court on an administrative appeal. The lower court upheld the commission's decision and Appellant filed a timely appeal to this Court. Appellant raises three assignments of error before us. In the first assignment of error, Appellant argues: "THE DECISION OF THE COMMISSION AND THE LOWER COURT IS NOT SUPPORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE AND IS NOT IN ACCORDANCE WITH LAW IN THAT THE ENTRY, SEARCH AND SEIZURE OF PROPERTY BY THE DEPARTMENT VIOLATED APPELLANT'S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION." In this first assignment, Appellant argues that the entries of the agents on November 15, 1995 and on November 16, 1995 constitute invalid warrantless searches. Thus, all evidence obtained on both of these days should have been suppressed and the charges dismissed. Both this Court and the Supreme Court of Ohio have recently ruled on this very issue. Inasmuch as these decisions are unfavorable to Appellant, Appellant's arguments here must fail. R.C. § 119.12 sets out the standard of review which the lower court must utilize in an administrative appeal: "The court may affirm the order of the agency complained of in the appeals if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. * * * [A] ppeal by the agency shall be taken on questions of law relating to the constitutionality, construction, or interpretation of statutes and rules of the agency, and in such appeal the court may also review and determine the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative, and substantial evidence in the entire record." Thus, the statute sets out a two-prong test. First, a common pleas court must determine whether the order appealed from is supported by reliable, probative and substantial evidence. An overwhelming amount of such evidence is not required. A court need only have some evidence of the required nature to sustain the commission's decision. Pushay v. Walter (1985), 18 Ohio St.3d 315,316. Secondly, the order appealed must comply with the law. On further review in an administrative appeal, an appellate court must determine whether the lower court abused its discretion in upholding the administrative order. Pons v. OhioSt. Med. Bd. (1993), 66 Ohio St.3d 619, 621. Abuse of discretion connotes, ". . . more than mere error of law or judgment . . . it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Cedar Bay Constr., Inc. v. Fremont (1990),50 Ohio St.3d 19, 22. Appellant was cited for violating Regulation 53, which states, in pertinent part: "(B) No person authorized to sell alcoholic beverages shall have, harbor, keep, exhibit, possess or employ or allow to be kept, exhibited or used in, upon or about the premises of the permit holder any gambling device as defined in division (F) of section 2915.01 of the Revised Code which is or has been used for gambling offenses as defined in division (G) of section 2915.01 of the Revised Code." With respect to the facts of the instant matter, R.C. § 2915.01(F) defines a "gambling device" as: "(3) A deck of cards, dice, gaming table, roulette wheel, slot machine, punch board, or other apparatus designed for use in connection with a game of chance; (4) Any equipment, device, apparatus, or paraphernalia specially designed for gambling purposes. R.C. § 2915.01(E) next defines a "game of chance" as, "poker, craps, roulette, a slot machine a punch board, or other game in which a player gives anything of value in the hope of gain, the outcome of which is determined largely or wholly by chance." R.C. § 2915.01(G)(1) provides that a "gambling offense" is any violation of R.C. § 2915.02, which states: "(A) No person shall do any of the following: "* * * "(2) Establish, promote, or operate or knowingly engage in conduct that facilitates any scheme or game of chance conducted for profit; "* * * "(5) With purpose to violate division (A) * * * (2) * * * acquire, possess, control or operate any gambling device." In its first assignment, Appellant argues that irrespective of the evidence found, the commission and the trial court erred as a matter of law. Absent a valid search warrant (which appears to be the case here) and absent actual consent for a search, Appellant claims that the agents in this matter conducted an invalid search and all of the evidence should have been suppressed and the case dismissed. Appellant is correct in arguing that the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution protect against unreasonable search and seizure. In order for a warrantless search to be upheld, it must fall within a recognized exception to the warrant requirement. Katz v. United States (1967), 389 U.S. 347 and State v. Penn (1991),61 Ohio St.3d 720. Administrative searches are such exceptions to the warrant requirement so long as the purpose of the search is not to charge an offender with a criminal violation but merely an administrative one. Stone v. Stow (1992), 64 Ohio St.3d 156,164. Appellant seeks to have a "knock and announce" standard imposed on administrative searches. Appellant argues that, as a private club which is not open to the general public, entry is unlawful without actual consent by the owners of that club. Consent may only be given, argues Appellant, if the agents knock and announce their identities as liquor agents and their purpose in entering. Appellant relies on various decisions of other appellate districts that deceptive practices to gain entry into a private club will result in an invalid warrantless search. This matter does not involve deceptive entry into Appellant's club. Here, the agents twice rang the buzzer and were admitted to the club with no questions asked. No one asked for an identification card or club membership. No one challenged the agents' right to be in the club and no agent made affirmative misrepresentations. In fact, a very similar warrantless search was made in this very establishment in March of 1995, also resulting in liquor violations. That search was upheld by the Court as a valid exception to the warrant requirement for administrative purposes. FOE Aerie 0995 Bridgeport v. LiquorControl Comm. (Sept. 4, 1998), Belmont App. No. 97 BA 14, unreported. As we noted in the earlier case, the Supreme Court of Ohio decisively put an end to Appellant's arguments in the syllabus of AL Post 763 v. Ohio Liquor Control Comm. (1998),82 Ohio St.3d 108 when it stated: "1. The reasonable expectation of privacy in liquor permit premises is minimal because permit holders, regardless of permit class, consent to inspection of the premises by authorized agents through the provisions of the Liquor Control Act and accompanying administrative rules and regulations. "2. When conducting a warrantless administrative search pursuant to constitutionally valid statutory inspection program, peace officers and authorized agents or employees of the Department of Liquor Control need not identify themselves prior to gaining entry to the permit premises." Thus, Appellant's argument as to the first issue must fail. In its second assignment of error, Appellant states: "THE LOWER COURT ERRED IN FINDING THAT THE DECISION OF THE COMMISSION WAS SUPPORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE BECAUSE THE RECORD FAILS TO ESTABLISH SUFFICIENT EVIDENCE OF A VIOLATION OF REGULATION 53." Appellant argues in his second assignment that the lower court erroneously believed that Appellant was cited for possessing and operating poker machines, which in this matter it was not. Appellant then argues that the evidence uncovered by the agents amounts only to possession of gambling devices and mere possession does not trigger a violation of Regulation 53. In so doing, Appellant fails to acknowledge the effect of its stipulations to the commission. We have earlier stated both the provisions of Regulation 53, which requires that the device, ". . . is or has been used for gambling offenses . . ." and the definitions of "gambling device" and "game of chance". Appellant acknowledges in its brief that the club was in possession of materials which can be classified as gambling devices. Appellant argues, however, that there is no proof the devices were or had been used to gamble and relies on a clerical error of the lower court to claim that the court based its decision on the mistaken belief that poker machines are involved in the present violations and that possession of these devices has been dealt with as "far more serious" violations than certain others, Appellant's brief at p. 15. We note that the lower court did include a passing reference to poker machines in its decision herein. This is apparently due to the fact that Appellant had earlier violations for allowing operation of such devices. See FOE Aerie 0995 Bridgeport v.Liquor Control Comm. (Sept. 4, 1998), Belmont App. No. 97 BA 14, unreported. This reference is only in passing, however, and appears to be nothing more than a mere clerical error. It is included into a lengthy discussion by the court of the evidence which was, in fact, seized at the club, as evidenced by Appellant's stipulations in this matter. Appellant cannot support its contention that poker machines are a "more serious" form of gambling device than the tip cards, raffle tickets and pool material seized at its establishment. Indeed, R.C. § 2915.01(F) makes no distinction in levels of "seriousness" of gambling devices. Appellant concedes the apparatus seized are, in fact, such devices as defined by statute. Appellant claims, however, that the record supports only possession of the devices which does not amount to a violation of Regulation 53. As we held earlier in FOE Aerie 0995 Bridgeport,supra, mere possession will not establish such a violation. The Ohio Supreme Court has held that a showing of profit is as necessary to prove an administrative violation as to prove a criminal violation. VFW Post 8586 v. Ohio Liquor Control Comm. (1998), 83 Ohio St.3d 79, 81. In the present matter, Appellant neglects to recognize the effect of its stipulation to certain evidence before the commission. While it denied the charges before the commission, Appellant did stipulate to the agents' reports. Such a stipulation relieves the Ohio Department of Liquor Control of any need to place additional evidence on the record. Krawu, Inc. v.Liquor Control Comm. (1976), 46 Ohio St.2d 436. Thus, Appellant has stipulated to those portions of the reports which state that the manager acknowledged and explained the various gambling devices and acknowledged that the payoff ledger seized was, in fact, just that. She also explained the entries contained within it to the agents and that they did denote payoffs. Further, the agents themselves reported that various patrons were advised by the barmaid as to winning numbers in gambling pools. Thus, the commission and the court had in front of them some reliable, probative and substantial evidence on which to base a decision that the gambling devices on Appellant's premises were or had been used to gamble. The facts support a conclusion that not only did the wagers by patrons of the club occasionally result in payoff to the patron of a winning ticket or pool, but Appellant was profiting by running these pools and selling the tickets. Evidence established that profit was guaranteed to Appellant. Losing tickets outnumber winning tickets, which assures that purchase money for these is greater than payout. Thus, Appellant's arguments as to assignment of error number two must fail. In its last assignment, Appellant argues: "THE LOWER COURT ERRED IN ITS FAILURE TO MODIFY THE PENALTY OF REVOCATION IMPOSED BY THE LIQUOR CONTROL COMMISSION." This assignment provides a specious argument, at best. Appellant argues that an administrative penalty can be modified by a common pleas court on review. It relies primarily on a Supreme Court decision found in Henry's Cafe v. Board of LiquorControl (1959), 170 Ohio St. 233, 236. While we agree with Appellant that, under certain factual patterns, a lower court undertaking an administrative review may modify the administrative penalty, it is axiomatic that the court is notrequired to do so. As we have earlier stated that we may review the common pleas court under an abuse of discretion standard,Pons v. Ohio St. Med. Bd., supra, we will not disturb a lawful use of that discretion. In the matter before us, we have already stated that the evidence on the record fully supports the commission and the lower court. Thus, the penalty given for the clear violation of Regulation 53, revocation of the liquor permit, will not be disturbed on review. For all of the foregoing, the assignments of error advanced by Appellant are overruled and the decision of the lower court to uphold the license revocation by the Liquor Commission is affirmed. Donofrio, J., Concurs., Cox, P.J., concurs. APPROVED: _________________________________ CHERYL L. WAITE, JUDGE

2016-07-06 06:36:42.671386+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff-appellant the State of Ohio appeals from the judgment of the trial court that dismissed the escape charge against defendant-appellee Darrell Thompson. For the reasons that follow, we affirm. {¶ 2} The December 11, 2002 escape charge at issue arose from post-release control sanctions placed upon defendant by the Ohio Adult Parole Authority following the service of his sentence in Case No. CR-391973. Defendant moved to dismiss the escape charge asserting that post-release control was not part of his sentence in Case No. CR-391973. The trial court granted the dismissal and the State appeals assigning the following error: {¶ 3} "I. The trial court erred in dismissing the escape charge as it was contrary to law." {¶ 4} The State claims that defendant waived the ability to challenge the imposition of post-release control by not raising the issue on direct appeal in Case No. CR-391973. Thus, the State argues the escape charge must stand1 {¶ 5} In Woods v. Telb (2000), 89 Ohio St.3d 504, the Ohio Supreme Court held that R.C. 2967.28 was constitutional to the extent that it does not violate the separation of powers doctrine or the due process clause. The court emphasized, however, that in order to be considered constitutional the offender must be given notice of the post-release control at the time of the original sentence. Id. at 513. Specifically, the trial court must inform the offender "at sentencing or at the time of a plea hearing" that post-release control is part of the offender's sentence. Id. {¶ 6} After the Ohio Supreme Court's pronouncement in Woods, we addressed the propriety of various trial court rulings on motions to dismiss escape charges for failure to properly advise an offender of post-release control in the underlying case. See State v. Dunaway (Sept. 13, 2001), Cuyahoga App. No. 78007; State v. Woods (Sept. 13, 2001), Cuyahoga App. No. 78458; State v. Walker (Sept. 6, 2001), Cuyahoga App. Nos. 78283 and 78284. In each instance, we directed the trial court to review the proceedings in the underlying cases to ascertain compliance with Woods. Id. {¶ 7} We have before us the transcript of defendant's plea and sentencing hearing in Case No. CR-391973. The trial court did not advise the defendant that post-release control could or would be part of his sentence. Post-release control is not mentioned at all. Likewise, the sentencing journal in Case No. CR-391973 does not include post-release control as part of the sentence. We find it unreasonable to place the burden upon the defendant to appeal a provision of his sentence of which he is not aware of through either the plea or sentencing hearing or the sentencing journal entry. In this instance, it was the State that should have appealed that component of the sentence which was clearly not included as part of defendant's sentence and could or should have been under the law.2 {¶ 8} Plaintiff's sole assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Kenneth A. Rocco, A.J., and Michael J. Corrigan, J., concur. 1 The State relies upon State v. Swinney (Apr. 26, 2001), Cuyahoga App. No. 78020, while defendant relies upon State v. Mickey (Apr. 5, 2001), Cuyahoga App. No. 77889. We find the instant case distinguishable from both Swinney and Mickey. In Swinney, the defendant challenged the constitutionality of R.C. 2967.28 and the opinion is silent as to whether the trial court mentioned post-release control to the defendant at hearing or included it in the sentencing journal in the underlying case. In Mickey, the record indicated that the defendant was advised of post-release control during his plea hearing in the underlying case but it was not made part of his sentence because it was not included in the trial court's sentencing journal entry. In this case, it is undisputed that the court never advised defendant of post-release control at hearing and did not include it in the sentencing journal entry. 2 We are aware that the Ohio Supreme Court is addressing the appropriate manner of rectifying the failure of a trial court to properly impose mandatory post-release control in State v. Finger,99 Ohio St.3d 1470, 2003-Ohio-3801. Finger, however, involved a direct appeal by a defendant who sought to vacate the post-release control portion of his sentence because it was not imposed in accordance with the law. This Court is split as to whether that portion of the sentence must be vacated entirely or simply remanded for proper imposition of post-release control. Thus, the resolution of Finger will not resolve the problem here, that is, whether an escape charge emanating from purported post-release control from a prior conviction can stand where the court did not properly impose post-release control in that prior sentence and which sentence defendant has already served.

2016-07-06 06:36:42.724017+00

OPINION Defendant-appellant Frank A. Warren appeals the November 18, 1998 Judgment Entry of the Stark County Court of Common Pleas which dismissed his Motion to Vacate and Set Aside Conviction and Sentence (hereinafter "Petition") filed September 28, 1998. The State of Ohio is plaintiff-appellee. STATEMENT OF THE CASE Appellant was arrested on June 23, 1995. Subsequently, the Stark County Grand Jury indicted appellant on one count of kidnapping [R.C. 2905.01(A)], one count of felonious assault [R.C.2903.11(A)], one count of rape [R.C. 2907.02(A)(2)], and one count of felonious sexual penetration [R.C. 2907.12(A)(2)]. Appellant pleaded not guilty to the charges at his arraignment. The trial court scheduled a jury trial for September 21, 1995. Attorney Tammi Johnson of the Stark County Public Defender's Office was appointed to represent appellant. On September 12, 1995, nine days before the scheduled trial, Attorney Johnson filed a motion to withdraw as appellant's attorney because of a conflict of interest. At an oral hearing conducted on September 13, 1995, the trial court granted the motion to withdraw, and appointed Attorney Jeff Jakmides to represent appellant. On September 18, 1995, three days before the scheduled trial, the trial court filed its judgment entry granting Attorney Johnson's motion to withdraw and appointing Attorney Jakmides as appellant's new counsel of record. On September 20, 1995, the day before the scheduled trial, Attorney Jakmides requested a continuance of the trial in order to prepare appellant's defense. Specifically, Attorney Jakmides indicated he had not had an opportunity to interview key witnesses because some were incarcerated in a penitentiary in Pennsylvania. Attorney Jakmides also explained the serious nature of the charges required additional preparation on his part. Appellant personally objected to the continuance. The trial court granted counsel's request for a continuance, and journalized the continuance by Judgment Entry filed on October 2, 1995. Prior to trial, Attorney Jakmides was permitted by the trial court to withdraw as appellant's counsel as appellant had privately retained Attorney Steven LoDico. On October 30, 1995, while being represented by Attorney LoDico, appellant entered into a plea arrangement with the State. In exchange for the dismissal of the rape and felonious sexual penetration charges, appellant plead no contest to the kidnapping charge. The trial court, upon accepting appellant's no contest plea and finding him guilty of the kidnapping charge, sentenced appellant to an indeterminate term of incarceration of three to fifteen years. Appellant appealed his conviction to this Court, and raised one assignment of error in the appeal. We reviewed the assignment of error, overruled the same, and affirmed appellant's conviction and sentence. State v. Warren (March 10, 1997), Stark App. No. 1995-CA-00386, unreported. Appellant subsequently attempted to file a delayed appeal with the Ohio Supreme Court from our decision. The Supreme Court, however, dismissed appellant's delayed appeal on June 2, 1997. State v. Warren (1997), 79 Ohio St.3d 1459. Appellant also attempted to seek further appellate review of his conviction and sentence through an App. R. 26(B) Application for Reopening, wherein appellant challenged the effectiveness of appellate counsel. Via Judgment Entry filed July 31, 1998, this Court denied the application as untimely filed. On September 28, 1998, appellant filed his first post-conviction relief motion. The State filed its response, seeking a summary dismissal of the petition and summary judgment. Appellant filed a reply thereto. The trial court dismissed the petition both on the merits as well as on timeliness grounds in a Judgment Entry of Dismissal filed November 18, 1998. Appellant did not file an immediate appeal from this judgment entry. Instead, on February 25, 1999, appellant filed his second petition for post-conviction relief, which the trial court again dismissed upon response from the State. The trial court ruled in its Judgment Entry filed March 11, 1999: Upon review of said Motion, the Court finds that on November 18, 1998, this Court ruled on Defendant-Petitioner's Motion for Post Conviction Relief and summarily dismissed same without a hearing. Therefore, this motion is moot. This Court finds Defendant's motion not well taken and hereby overrules same. On April 2, 1994, appellant filed the instant appeal. The notice recites appellant is appealing the trial court's November 18, 1998 Judgment Entry, and claims he did not receive service of a copy of that judgment entry until March 5, 1999. However, appellant attached to the notice of appeal a copy of the March 11, 1999 Judgment Entry. The docketing statement indicates the November 18, 1998 Judgment Entry as the judgment entry from which appellant appealed. Appellant assigns as error: I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION THEREBY DEPRIVING PETITIONER DUE PROCESS OF LAW WHEN IT DISMISSED ["WITHOUT A HEARING"] PETITIONER'S FOR POST CONVICTION RELIEF. II. WHETHER THE TRIAL COURT DEPRIVED PETITIONER OF CONSTITUTIONAL DUE PROCESS FUNDAMENTAL FAIRNESS WHEN IT FAILED TO ISSUE AN ORDER DIRECTING THE PRODUCTION OF TRANSCRIPT AND OTHER CRITICAL EVIDENTIARY DOCUMENT(S) NECESSARY FOR BOTH A COMPLETE AND ACCURATE UNDERSTANDING OF THE CONSTITUTIONAL CLAIMS RAISED, AND TO PROVE THE TRUTH OF [THE] ALLEGATIONS THEREBY ESTABLISHING THE RIGHT TO RELIEF. III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REJECTING PETITIONER'S [SIXTH AMENDMENT] CLAIM, WHERE THE FACTUAL ALLEGATIONS IF PROVEN, WOULD CONSTITUTE INEFFECTIVE OF COUNSEL. SEE: STATE V. COLE (CITATION OMITTED). In its November 18, 1998 Judgment Entry, the trial court summarily dismissed appellant's Petition finding such was not timely filed pursuant to R.C. 2953.21 because more than 180 days had elapsed since the transcript was filed (September 30, 1996). Upon review of appellant's three assignments of error, appellant does not argue or allege error in the trial court's dismissing the Petition as being untimely. Accordingly, we find it unnecessary to address the merits of appellant's arguments inasmuch as the trial court's finding the Petition was untimely filed is an independent ground warranting dismissal of appellant's Petition. Appellant's three assignments of error are overruled. The judgment of the Stark County Court of Common Pleas is affirmed. By: Hoffman, J. Wise, P.J. and Gwin, J. concur

2016-07-06 06:36:43.907096+00

JOURNAL ENTRY AND OPINION {¶ 1} The appellants, Max and Mary Schindler, et al., appeal from the judgment of the Berea Municipal Court, which found in favor of the appellee, Columbia-Brook Park Management, LLC, and ordered the release of rents held in escrow with the lower court. {¶ 2} The appellants are all tenants in a manufactured home community known as Columbia Park, located in Olmsted Township, Ohio. The appellee is the operator/landlord of Columbia Park. In July 2001, the appellee notified all of its month-to-month tenants that the rent would be increased as of September 2001, allegedly to reduce the number of rent classifications within the park and to more accurately reflect the comparable rents in the area. Additionally, the appellee offered all of its month-to-month tenants a one-year lease, which reflected the anticipated rental increase. {¶ 3} In response to the rent increase, the month-to-month tenants of Columbia Park served on the appellee a Notice to Correct, pursuant to R.C. 3733.12.1 The Notice to Correct utilized by the appellants was a mass duplicated form which alleged numerous defects and/or deficiencies at Columbia Park. Thereafter, and in accordance with R.C. 3733.12(B)(1), approximately 500 month-to-month tenants filed with the lower court an Application by Tenant to Deposit Rent with the Clerk along with each tenant's monthly rent. In response to the appellants' actions, the appellee filed an Application for Release of Rent, pursuant to R.C. 3733.122(c) and a Complaint for Damages, Costs and Attorneys' Fees.2 {¶ 4} As the matter proceeded and discovery occurred, the appellants dismissed all of their claims under the Notice to Correct with the exception of the allegation that the rent increase was "unconscionable," and the appellee dismissed its claim for damages, attorney's fees, and costs. Thereafter, evidence and testimony were presented to the Berea Court Magistrate by the parties, and at the conclusion of the proceedings, the trial court adopted the decision of the magistrate, which held that the rent deposit statute was the legal tool to challenge the conscionability of the rent increase, the rent increase at Columbia Park in September 2001 was not unconscionable, and ordering the release of the rent being held by the clerk of courts to the appellee. {¶ 5} It is from this order that the appellants now appeal citing six assignments of error for this court's review. For the following reasons, we believe the first assignment is dispositive of the instant appeal. The appellants' first assignment of error states: {¶ 6} "I. The trial court erred in retaining the consolidated cases through disposition notwithstanding an absence of subject matter jurisdiction." {¶ 7} In reviewing the record, the appellee filed an Application for Release of Rent, pursuant to R.C. 3733.122(c), and a Complaint forDamages, Costs and Attorneys' Fees. (Emphasis added.) The complaint for damages, costs and attorneys' fees sought damages in excess of $25,000 from each appellant alleging bad faith by the appellants. {¶ 8} Accordingly, pursuant to R.C. 1901.17, a municipal court has jurisdiction only in cases where the amount claimed by any party is not in excess of $15,000. Clearly, the appellee's complaint for damages was in excess of the jurisdictional amount delineated in R.C. 1901.17. Therefore, the court had no jurisdiction to hear this cause and erred in not dismissing it immediately upon the filing of the complaint. {¶ 9} In State ex rel. National Employee Benefit Services, Inc.v. Court of Common Pleas Cuyahoga, et al. (1990), 49 Ohio St.3d 49, 50, the Ohio Supreme Court addressed the issue of whether the municipal court has the jurisdiction to decide the merits of the case when a supplemental complaint was filed which increased the prayer amount over the jurisdictional limit set by R.C. 1907.17. The court held "the municipal court had no jurisdiction under R.C. 1907.17 to decide the merits of the case once the supplemental complaint was filed." In addition, the court held a dismissal of the case is the proper course of action when a pleading seeks relief beyond the statutory authority. Id. Additionally, the court found that, pursuant to Civ. R. 13(J), the municipal court did not have to certify the case to another tribunal; the court's only option was to dismiss the case. Id. {¶ 10} Therefore, as soon as the complaint for damages, costs and attorneys' fees was filed alleging damages in excess of $25,000, the court lost jurisdiction to hear the case on the merits. The court was under an explicit duty to dismiss the case thereby allowing either party to file its claim in the court of common pleas as an original action. See, also, Sports Systems, Inc. v. Mr. T Painting Co., Inc. (Oct. 3, 1996), Cuyahoga App. No. 69341. The fact that the appellants later dismissed their claim for damages has no bearing on the undisputed fact that the court lost jurisdiction to proceed by virtue of the prayer amount at the point of filing and, as such, should have entered an order dismissing the matter in its entirety. {¶ 11} In accordance, the appellants' remaining assignments of error are hereby rendered moot, and the judgment of the trial court is hereby vacated and the matter is dismissed. {¶ 12} The judgment is vacated and the matter is dismissed. ANNE L. KILBANE, P.J., and DIANE KARPINSKI, J., concur. 1 {¶ a} R.C. 3733.12 Effect of operator's noncompliance with rental agreement or statutes; remedies of resident. {¶ b} (A) If a park operator fails to fulfill any obligation imposed upon him by section 3733.10 of the Revised Code or by the rental agreement, or the conditions of the premises are such that the resident reasonably believes that a park operator has failed to fulfill any such obligations, or a governmental agency has found that the premises are not in compliance with building, housing, health, or safety codes which apply to any condition of the residential premises that could materially affect the health and safety of an occupant, the resident may give notice in writing to the park operator specifying the acts, omissions, or code violations that constitute noncompliance with such provisions. The notice shall be sent to the person or place where rent is normally paid. {¶ c} (B) If a park operator receives the notice described in division (A) of this section and after receipt of the notice fails to remedy the condition within a reasonable time, considering the severity of the condition and the time necessary to remedy such condition, or within thirty days, whichever is sooner, and if the resident is current in rent payments due under the rental agreement, the resident may do one of the following: {¶ d} (1) Deposit all rent that is due and thereafter becomes due the park operator with the clerk of court of the municipal or county court having jurisdiction in the territory in which the residential premises are located; {¶ e} (2) Apply to the court for an order directing the park operator to remedy the condition. As part thereof, the resident may deposit rent pursuant to division (B)(1) of this section, and may apply for an order reducing the periodic rent due the park operator until such time as the park operator does remedy the condition, and may apply for an order to use the rent deposited to remedy the condition. In any order issued pursuant to this division, the court may require the resident to deposit rent with the clerk of court as provided in division (B)(1) of this section. 2 R.C. 3733.122(C) If the court finds that there was no violation of any obligation imposed upon the park operator by section 3733.10 of the Revised Code or by the rental agreement, or by any building, housing, health, or safety code, or that the condition contained in the notice given pursuant to division (A) of section 3733.12 of the Revised Code has been remedied, or that the resident did not comply with the notice requirement of division (A) of section 3733.12 of the Revised Code, or that the resident was not current in rent payments at the time the resident initiated rent deposits with the clerk of court under division (B)(1) of section 3733.12 of the Revised Code, the court shall order the release to the park operator of rent on deposit with the clerk, less costs.

2016-07-06 06:36:43.36338+00

OPINION *Page 2 {¶ 1} On June 26, 2008, Attorney Brian Benbow filed a brief on behalf of his client pursuant to Anders v. California (1967), 386 U.S. 738. In said brief, Attorney Benbow set forth possible errors that could be raised, but concluded there was no legal basis for same. Attorney Benbow certified he had reviewed the entire file and found no basis for an appeal. Contemporaneous with the filing of the Anders brief, counsel filed a motion to withdraw. {¶ 2} The Anders court established five criteria which must be met before a motion to withdraw by appellate counsel may be granted. The five criteria are: (1) a showing that appellant's counsel thoroughly reviewed the transcript and record in the case before determining the appeal to be frivolous; (2) a showing that a motion to withdraw by appellant's counsel was filed; (3) the existence of a brief by appellant's counsel raising any potential assignments of error that can be argued on appeal; (4) a showing that appellant's counsel provided a copy of the brief which was filed to the appellant; and (5) a showing that appellant's counsel provided appellant adequate opportunity to file a pro se brief raising any additional assignments of error appellant believes the court should address. Anders at 744. The Anders court further explained the following at 744: {¶ 3} "[T]he court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not *Page 3 frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." {¶ 4} According to the certificate of service attached to hisAnders brief, Attorney Benbow complied with the procedures set forth inAnders and served a copy of his Anders brief and his motion to withdraw upon his client (June 26, 2008). His client was also advised of her right to file a pro se brief on her own behalf, but to date has not done so. See, Notice to Court, Notice of Appellant's Right to Respond filed July 10, 2008. {¶ 5} We note in In the Matter of Diamond S., Guernsey App. No. 03-CA-24, 2004-Ohio-611, this court extended the principles ofAnders to cases involving the termination of parental rights. {¶ 6} On March 8, 2007, appellee, Muskingum County Children Services, filed a complaint for permanent custody of Konner McBrayer born July 25, 2006, alleging the child to be abused, neglected, and dependent (this complaint was a re-filing). Mother of the child is appellant, Paula Joswick McBrayer; father is David McBrayer. At the age of four months, Konner was diagnosed as suffering from "shaken baby syndrome" and will spend the rest of his life in a vegetative state. {¶ 7} On March 19, 2008, a criminal court sentenced Mr. McBrayer to eight years in prison after he pleaded guilty to two counts of child endangering in violation of R.C. 2919.22 regarding Konner's injuries. {¶ 8} An adjudicatory and dispositional hearing was held on March 31, 2008. Appellant and Mr. McBrayer were both represented by counsel. At the very beginning of the hearing, appellant stipulated to a finding of abuse and permanent custody to *Page 4 appellee. The hearing continued as to Mr. McBrayer. By judgment entry filed April 3, 2008, the trial court granted permanent custody of the child to appellee. {¶ 9} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 10} "THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE." II {¶ 11} "THERE WAS NOT CLEAR AND CONVINCING EVIDENCE FOR THE TRIAL COURT TO FIND THAT THE MINOR CHILD SHOULD NOT BE PLACED WITH APPELLANT AND THAT IT WAS IN THE MINOR CHILD'S BEST INTEREST TO BE PLACED IN THE PERMANENT CUSTODY OF MUSKINGUM COUNTY CHILDREN'S SERVICES." III {¶ 12} "MOTHER/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STRICKLAND V. WASHINGTON (1984), 466 U.S. 668, 80 L. ED.2D 674, 104 S.CT. 2052." I, II, III {¶ 13} Appellant claims the trial court's decision to grant permanent custody of the child to appellee was against the manifest weight and sufficiency of the evidence, *Page 5 and was not in the best interests of the child. Appellant also claims she was denied the effective assistance of counsel. {¶ 14} Pursuant to Anders, this court has conducted an independent review of the record and finds no errors occurred that would require this court to reverse the trial court's decision. {¶ 15} Appellant was re-appointed counsel on March 14, 2007, so she was represented by counsel throughout the proceedings and during the hearing. The trial court thoroughly explained to appellant all of her rights, including the fact that her appeal rights would be very limited if she stipulated to a finding of abuse and permanent custody to appellee. T. at 2-5. Appellant stated she understood. T. at 4. The trial court addressed appellant's counsel to make sure appellant "understands and comprehends" what was explained to her and the consequences of her stipulation. T. at 5. Appellant's counsel stated, "Yes Your Honor * * * [w]e have discussed those resolutions several different times through out the course of this case." Id. Thereafter, the trial court found the child to be abused and as far as appellant was concerned, the child would be placed in appellee's permanent custody. Id. Appellant and her counsel then left the courtroom. T. at 6. {¶ 16} On March 26, 2007, a psychological evaluation conducted by H. A. Beazel, Psy. D., was filed. Dr. Beazel opined the following: {¶ 17} "Considerable caution is also recommended prior to placing the child with her [appellant] as her repeated denial or functional negation of the severity of the infant's injuries (and her refusal to even consider the possibility that her husband may have caused the injuries) reflects a level of psychological denial that is extraordinarily *Page 6 pathological, and does not bode well for her ability to provide adequate levels of monitoring/attention, care or treatment." {¶ 18} On May 10, 2007, appellant's counsel filed a motion for court appointed psychologist and evaluation "for purposes of determining competency, mental health illness and the effects of the same and intellectual capabilities." Appellant's counsel stated the evaluation would assist him "in determining her capability of making intelligent and informed decisions regarding very important matters concerning this case including, but not limited to trial strategy and waiver of rights in this case." The trial court granted the motion on May 14, 2007, and appellant underwent another psychological evaluation conducted by court appointed psychologist, David Tennenbaum, Ph.D. In his evaluation filed July 18, 2007, he opined the following: {¶ 19} "In my opinion, Paula at this point does evidence sufficient present ability to consult with her lawyer with a reasonable degree of rational understanding, and a rational as well as factual understanding of the proceedings against her. {¶ 20} "The much more difficult issues here are attempting to appreciate how this lady's chronic mental illness impacts, and recognizing that the Court must address Konner's best interests, it seems somewhat simplistic, rather na Ï ve to suggest that with the extensively documented history, and her presentation currently, clinically and through testing, that Paula evidences the ability to provide for her son." {¶ 21} On February 20, 2008, appellee filed a motion for expedited annual review hearing and reasonable efforts hearing. A hearing was held on March 5, 2008. By entry filed March 10, 2008, the trial court found "[r]easonable efforts have been made to eliminate the continued removal of the child from the home, or to return home *Page 7 safely." The trial court concluded, "[t]hese services have not enabled the child to return home due to the father's incarceration for two counts of felony child endangering, and the mother's psychological evaluations indicating her inability to provide day-to-day care for the medically fragile child." {¶ 22} On March 19, 2008, Mr. McBrayer pled guilty to two counts of child endangering regarding his role in Konner's injuries, and received a sentence of eight years in prison (Case No. CR2007-0030). Said case was affirmed by this court on appeal. See, State v. McBrayer (August 13, 2008), Muskingum App. No. CT2008-0015. {¶ 23} On March 31, 2008, the guardian ad litem filed her report and opined the following: {¶ 24} "Konner McBrayer is a medically fragile child with no hope of meaningful interactions with his environment. His condition was caused by David McBrayer. Paula McBrayer either did not try or was unable to protect Konner from the harm caused by David McBrayer. Today Paula McBrayer does not have the capability to provide for Konner's needs and it is still doubtful that she could protect him. Konner has been fortunate to be placed in a home with people who have a great capacity for love, in addition to skill in providing and arranging for his care. It would appear that unless an adoptive placement is arranged, Konner will be able to remain with his foster family permanently." {¶ 25} The record in this matter contains sufficient, competent and credible evidence to support the trial court's decision. *Page 8 {¶ 26} For these reasons, after independently reviewing the record, we agree with Attorney Benbow's conclusion that no arguably meritorious claims exist upon which to base an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the trial court's judgment. {¶ 27} The judgment of the Court of Common Pleas of Muskingum County, Ohio, Juvenile Division, is hereby affirmed. Farmer, J., Hoffman, P.J. and Wise, J. concur. *Page 9 JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Muskingum County, Ohio, Juvenile Division, is affirmed. Attorney Brian Benbow's motion to withdraw as counsel for appellant, Paula McBrayer, is granted. *Page 1

2016-07-06 06:36:49.848529+00

OPINION This matter presents a timely appeal from a judgment rendered by the Jefferson County Common Pleas Court, finding defendant-appellant, Jenabu Christian, aka Jay Christian, guilty of aggravated burglary, in violation of R.C. 2911.11, and guilty of aiding and abetting aggravated murder, in violation of R.C. 2903.01(B) and 2923.03(A), along with his subsequent sentencing thereon. On January 30, 1996, appellant was in an apartment with Michael White (White) when White received a telephone call indicating that his sister, Tiffany White (Tiffany), had her arm broken by Eulis "Punchy" Curenton (Eulis). (Tr. 112). White became increasingly angered and allegedly took possession of a gun and concealed it on his person. (Tr. 119). Appellant and White secured a car from Lisa Phillips (Phillips), and together with Shannon White (Shannon) proceeded to Tiffany's home, with appellant driving. (Tr. 119, 207) Appellant, White and Shannon were joined by another vehicle carrying Roddell Fuqua (Fuqua), Roland Cook (Cook), Sante Cook (Sante) and Shauntain White (Shauntain), and both vehicles proceeded to follow the ambulance which was transporting Tiffany to the hospital. (Tr. 193). Appellant drove the first vehicle and during the course of the journey, appellant stopped following the ambulance to the hospital and drove the vehicle to the home of Andre "Tree" Curenton (the decedent), who was the brother of Eulis. (Tr. 190-191). The other vehicle followed appellant to this new destination. (Tr. 191) Upon arriving at the decedent's home, the group, including appellant, broke down the door and entered the premises. (Tr. 210). An argument ensued and White allegedly shot the decedent three times, killing him. (Tr. 211). After the shooting, appellant drove away from the crime scene with White and Shannon. (Tr. 211). Appellant then fled from Jefferson County with White and both were eventually arrested in Florida. (Tr. 376-377) Appellant was subsequently charged with aggravated burglary and aiding and abetting aggravated murder. Both charges included attendant gun specifications. During the trial, plaintiff-appellee, State of Ohio, called all of the parties who were present the night in question as witnesses, except for White and appellant. Defense counsel made many inappropriate comments during his cross-examination of appellee's witnesses. After appellee rested, appellant's counsel began to give his opening statement and then abruptly rested his case, stating that appellee did not prove all of the necessary elements of its case. (Tr. 393-394). Following deliberation, the jury returned a verdict finding appellant guilty of both aggravated burglary and aiding and abetting aggravated murder. The jury found appellant not guilty of the attendant firearm specifications. Appellant was sentenced to an indefinite incarceration term of not less than five nor more than twenty-five years for aggravated burglary, and an indefinite incarceration term of not less than twenty years nor more than life for aiding and abetting aggravated murder. These sentences were to be served concurrently. This appeal followed. Appellant sets forth six assignments of error on appeal. Appellant's first assignment of error alleges: "The defendant's constitution (sic) right to testify and/or present witnesses in his own behalf was denied when his trial counsel rested for the defense and defendant's consent was not placed on record by either his trial counsel and/or the trial court." Appellant argues that when a defendant wants to waive a constitutional right, such waiver must be clearly established.McMann v. Richardson (1970), 397 U.S. 759. Appellant further argues that the right to compulsory attendance was established by the United States Supreme Court in Washington v. Texas (1967),388 U.S. 14. Furthermore, in State v. Pennycooke (C.A.3, 1995),65 F.3d 9, the court held that the trial court had a duty to advise a defendant of his right to testify on his own behalf, if the trial court believed that defense counsel was frustrating a desire to testify. Appellant contends that these cases illustrate the significance of a constitutional waiver. Appellant argues that he was prevented from testifying in the present case which violated his constitutional right to compulsory attendance. Appellant asserts that his waiver of this right was not clear in the record. Furthermore, appellant maintains that the trial court should have had a duty to advise appellant of his right to testify on his own behalf. In failing to so advise, appellant alleges that the trial court committed reversible error. Appellant's reliance on his right to compulsory attendance of witnesses is misplaced in the present case. In Washington, supra, the United States Supreme Court held that a defendant cannot be prevented from putting on a defense, if such a defense is desired. Furthermore, compulsory attendance of witnesses underWashington, supra, also means that witnesses called by a defendant must appear when required to do so by subpoena. Appellant's reliance on Pennycooke, supra, is also misplaced. In Pennycooke, supra, the court held that a trial court must advise a defendant of his right to testify if it appears that defense counsel is overcoming defendant's desire to testify. There is nothing in the record indicating appellant's desire to testify in his own behalf. Furthermore, this case is similar to State v. Morrison. (Oct. 7, 1993), Franklin App. No. 91 AP-1326, unreported, in which the court held that the trial court did not have a duty to advise a defendant of his right to testify. The court in Morrison, supra, found that the defense counsel made a tactical decision to dissuade the defendant from testifying, as the defendant would otherwise have opened the door for the prosecutor to present evidence of prior offenses. The same tactical decision was present in this case. The issue of whether appellant would testify as to his good character arose during pretrial motions and continued during the trial when the prosecutor stated: "MR. BECKER: The only thing I'd bring up to the Court at this time is, Your Honor, if the Defendant is going to be called, I want to make sure that if — if his character for — if his good character is put in issue or his character for violence or nonviolence is brought into issue, I want it to be understood, and I think the Court's already ruled, but we can introduce his conviction from juvenile court, which certainly tends to dissipate his good character and also the offenses, sexual battery and under the Revised Code that's an offense of violence. So, if he says he's not a violent person or if he says he's a good person, I think pursuant to State versus Marinski, we're entitled to cross-examine him on that conviction. I just want to make sure that's understood for the record." (Tr. 391-392). Given that defense counsel did not overcome appellant's desire to testify, but instead used a defense tactic motivated by a desire to discourage prior acts from being introduced to the jury, the trial court did not have a duty to obtain a recorded waiver of appellant's right to testify. Appellant's first assignment of error is found to be without merit. Appellant's second assignment of error alleges: "The trial court erred in not instructing the jury on lesser included offenses and/or inferior degrees of the crimes charged as required by law based on the evidence presented." Appellant states that a trial court must instruct the jury on a lesser-included offense if the jury could determine that the greater offense has not been proven beyond a reasonable doubt, but the facts support the elements of a lesser-included offense.State v. Mabry (1982), 5 Ohio App. 3d 13. Appellant further cites the two step process put forth in State v. Kidder (1987), 32 Ohio St. 3d 279,281, wherein the Ohio Supreme Court stated: "`* * * [I]f all the elements of a separate offense are present with others in an offense charged in an indictment, such separate offense is a lesser included offense; or, where all the elements of an offense are included among the elements of a charged offense, the former is a lesser included offense. But to warrant a conviction of such lesser included offense, another limitation must be taken into consideration. A court may not charge upon, and a defendant may not be found guilty of, a lesser offense, unless the evidence tends to support each of the necessary elements of such offense.'" Furthermore, a trial court may only instruct the jury on a lesser-included offense if such offense is a crime of a lesser degree than the charged offense. Kidder, supra. Appellant further states that a trial court commits reversible error when it refuses to instruct on a lesser-included offense which is supported by the facts. State v. Loudermill (1965), 2 Ohio St. 2d 79. Involuntary manslaughter is a lesser-included offense of aggravated murder, as is voluntary manslaughter. State v.Williams (1996), 74 Ohio St. 3d 569; State v. Benge (1996),75 Ohio St. 3d 136. Further, murder is a lesser-included offense of aggravated murder. State v. Tyler (1990), 50 Ohio St. 3d 24. Appellant argues that in this case, it was possible the prosecutor did not prove every element of aiding and abetting aggravated murder. Appellant additionally argues that the facts supported a finding of the lesser-included offenses of involuntary manslaughter, voluntary manslaughter or murder. Appellant argues that the trial court did not instruct the jury on any of these lesser-included offenses and thereby, committed reversible error. Loudermill, supra. A trial court may choose to instruct on a lesser-included offense only when requested by an attorney. In the present case, defense counsel did not request any lesser-included offense instructions. The failure to object to a jury instruction constitutes a waiver of any claim of error thereto. State v. Long (1978), 53 Ohio St. 2d 91. Therefore, reversal of the trial court's decision may only occur if it appears that the trial court's failure to instruct on the lesser-included offenses constituted plain error under Crim.R. 52(B). An error does not constitute plain error unless the outcome of the trial would clearly have been different, but for the error. State v. Cooey (1989), 46 Ohio St. 3d 20. Plain error should be applied with caution and only in exceptional circumstances. Long, supra. There was sufficient evidence in this case to find appellant guilty of aiding and abetting aggravated murder. Furthermore, defense counsel stated during his opening that appellee did not prove every element of the crime. Therefore, defense counsel presumably did not request any lesser-included offense instructions based on this belief, so that appellant could obtain a full acquittal as opposed to a conviction on one of the lesser-included offenses. Therefore, the trial court did not commit any error, upon which to base a claim of plain error, in not instructing the jury on lesser-included offenses. Appellant's second assignment of error is found to be without merit. Appellant's third assignment of error alleges: "The trial court erred in failing to instruct the jury as required by law under O.R.C. 2923.03(D) when alleged accomplices of the defendant-appellant testified against him." Appellant states that he requested an instruction be given to the jury regarding accomplice testimony in accordance with R.C.2923.03(D). Appellant requested such instruction because there were many accomplices to the crime who testified against him. R.C. 2923.03(D) states: "If an alleged accomplice of the defendant testifies against the defendant in a case in which the defendant is charged with complicity in the commission of or an attempt to commit an offense, an attempt to commit an offense, or an offense, the court, when it charges the jury, shall state substantially the following: "`The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution. "It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth.'" Appellant asserts that the trial court did not comply with the instruction set forth in R.C. 2923.03(D). R.C. 2923.03(D) expressly permits substantial compliance with the accomplice testimony instruction. Therefore, a trial court does not commit error if it does not literally comply with the statute. The trial judge substantially complied with R.C. 2923.03(D), when it instructed: "You have heard testimony from other persons who pleaded guilty to the crime of the same circumstances in this case and of others. These persons are said to be accomplices. An accomplice is one who assists another in the commission of a crime. Whether these four persons separately considered were accomplices and the weight to give to each of their testimony are matters for you to determine. "Now, testimony of a person who you find to be an accomplice should be viewed with grave suspicion and weighed with great caution. (Tr. 438-439). Since the trial judge substantially complied with R.C.2923.03(D), it did not err when it instructed the jury about accomplice testimony. Appellant's third assignment of error is found to be without merit. Appellant's fourth assignment of error alleges: "The defendant-appellant was deprived of effective assistance of counsel, a fair trial, and due process by the conduct of his counsel at trial, and the numerous prejudicial errors committed by him." The United States Supreme Court provided a standard for determining ineffective assistance of counsel in Strickland v.Washington (1984), 466 U.S. 668. In order to demonstrate ineffective assistance of counsel, appellant must first show that his defense counsel was deficient. Strickland, supra. This requires that appellant show that his defense counsel's performance fell below an objective standard of reasonableness.Strickland, supra. The second part of the Strickland test requires that appellant prove that he was prejudiced by defense counsel's deficiency. To demonstrate prejudice, an appellant must "show that there is a reasonable probability that, but for [defense] counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra. The Ohio Supreme court adopted the Strickland test in State v.Bradley (1989), 42 Ohio St. 3d 136. In the present case, there were many instances of unreasonable and unprofessional conduct by defense counsel. Such inappropriate actions of defense counsel began during voir dire. Defense counsel referred to O.J. Simpson during voir dire, stating that O.J. Simpson had money and was able to "get off", but that he was appellant's third attorney and was appointed by the trial court. (Tr. 48). Defense counsel's unprofessional actions continued and nearly violated ethical considerations when he attempted to pass out his business cards to the potential jurors during voir dire. (Tr. 48). Defense counsel's unreasonable conduct did not end in voir dire, but continued during trial. Defense counsel's remarks to police officers and witnesses during cross-examination were used to attempt to establish a conspiracy against appellant, but such remarks were highly unprofessional. Furthermore, defense counsel was unreasonable and unprofessional, when he began his opening statement and abruptly rested his case, stating: "Mr. CARPINO: Thank you, Judge. I'd like to use their chart. Jay, would you help me with this. Put it over here. "Ladies and Gentlemen of the Jury, apparently they took their — they took their chart out. "All right. Well, this is my opening statement and they had a whole bunch of stuff up there. Maybe it's back here. Yes, it is. "I intend to prove that he didn't travel to Youngstown. I don't think there's any testimony on their part he traveled to Youngstown. "Yeah, Tiffany White, yeah, she got hurt. Well, you can read some of this, especially this one. You didn't see anything about that. They didn't prove any one of those. "All these places he's supposed to be with, I intend to prove he wasn't with Michael White. He was arrested with him in Florida. I intend to prove that Michael White — as soon as Jay Christian could get separated he did. He didn't waive extradition. Michael White went earlier. "You got to be an exorcist to do this. I intend to prove that or maybe I did prove, when I had Shauntain stand up here, you couldn't see Michael White behind him. I think you saw that. "I don't think they proved their case and I think I'm going to rest. I rest." (Tr. 393-394). This statement was nothing more than an unintelligible array of confusion. Furthermore, defense counsel stated that he was going to prove several details, even though he apparently thought that appellee did not prove every element its case. This was unreasonable because defense counsel not only failed to prove any of the details which he stated he would prove, by abruptly ending his case, but he also failed to realize that appellant sat innocent until proven guilty beyond a reasonable doubt. Therefore, defense counsel did not have to prove anything if appellee failed to prove every element of its case. This matter presents the closest case of ineffective assistance of counsel that this court has considered to date, and this court would find ineffective assistance except for the fact that appellant was not prejudiced by defense counsel's actions, under the standard for prejudice set forth in Strickland, supra. When the prosecution puts forth its case demonstrating a defendant's guilt, the defense counsel has two means by which to attack the case. The defense counsel may cross-examine the prosecution's witnesses, or the defense counsel can present its own witnesses. In this case, defense counsel thoroughly cross-examined appellee's witnesses. Furthermore, these witnesses consisted of those parties who were present on the night in question, other than appellant and White. As stated in appellant's first assignment of error, defense counsel's decision not to call appellant as a witness was a tactical decision which prevented testimonial evidence regarding prior offenses committed by appellant from reaching the jury. Furthermore, defense counsel did not believe the prosecutor proved every element of its case. Therefore, appellant did not have to present any witnesses to be found not guilty, as a defendant is innocent until proven guilty beyond a reasonable doubt. Moreover, although the jury might have been confused when defense counsel stated that he would prove certain details of the case, only to then rest his case, the trial judge told the jury that the opening statement was not evidence. Therefore, considering all of the actions of defense counsel, such actions were clearly deficient, but nonetheless just barely passed the prejudice test set forth in Strickland, supra, as there was no reasonable probability that but for defense counsel's deficient action, the proceeding would have been different. Although appellant did not receive ineffective assistance of counsel under the Strickland standard, it is noted that defense counsel was appointed by the trial court. Given the deficient and unprofessional conduct of defense counsel, this court recommends that defense counsel not be appointed to any future capital cases. Appellant's fourth assignment of error is found to be without merit. Appellant's fifth assignment of error alleges: "Defendant-appellant was convicted on insufficient evidence in that the mens rea required to convict him was not proven beyond a reasonable doubt, and thus the verdict rendered against him was against the manifest weight of the evidence." In State v. Thompkins (1997), 78 Ohio St. 3d 380, 387, the Ohio Supreme Court discussed the issue of manifest weight of the evidence, stating: "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a "`thirteenth juror'" and disagrees with the factfinder's resolution of the conflicting testimony. * * * ("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.')." Moreover, the Ohio Supreme Court, in State v. Jenks (1991),61 Ohio St. 3d 259, paragraph two of the syllabus, stated: "* * * The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Furthermore, it is the obligation of the trier-of-fact to evaluate the credibility of the witnesses and determine the weight of the evidence. State v. DeHass (1967), 10 Ohio St. 2d 230. Appellant argues that appellee did not prove the necessary intent to find him guilty of aiding and abetting aggravated murder beyond a reasonable doubt. Appellant states that mere association with a person who commits a crime does not make that person an accomplice. State v. Coleman (1988), 37 Ohio St. 3d 286. In the syllabus of State v. Lockett (1976), 49 Ohio St. 2d 48, (overruled on other grounds), the Ohio Supreme Court held: "4. If a conspired robbery, and the manner of its accomplishment, would be reasonably likely to produce death, each person engaged in the common design to commit the robbery is guilty with the principal killer as an aider and abettor in the homicide although not actually present at the time of the homicide, and a purposeful intent to kill by the aider and abettor may be found to exist beyond a reasonable doubt under such circumstances." Furthermore, in Lockett, supra, the defendant was engaged in a common plan of robbing a victim. The defendant in Lockett, supra, had knowledge that a gun would be used to effectuate such plan. The Ohio Supreme Court found that the facts in Lockett, supra, provided sufficient evidence of a purpose to kill although the defendant was not physically present during the shooting. The present case is similar to Lockett, supra, because there was a common plan, which was to commit aggravated burglary against the decedent. Appellant had knowledge that White had a gun on his person while committing the aggravated burglary. (Tr. 119). Furthermore, appellant was in a position to witness White's anger over his sister's broken arm. (Tr. 119). Appellant was physically present during the shooting of the decedent and further, absconded with White after the shooting. (Tr. 211). Appellant further had knowledge that White shot the decedent because, "He had to do what he had to do." (Tr. 212). Furthermore, the trier-of-fact in the present case, the jury, was able to determine the credibility of the witnesses. DeHass,supra. Therefore, under Lockett, supra, and viewing the evidence in a light most favorable to appellee, a reasonable trier-of-fact could have found appellant guilty of aiding and abetting aggravated murder beyond a reasonable doubt. Jenks, supra. Appellant's fifth assignment of error is found to be without merit. Appellant's sixth assignment of error alleges: "The trial court committed error by failing to grant the defendant-appellant's motions for judgment of acquittal." Crim.R. 29 provides: "(A) Motion for Judgment of Acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case." Since appellant's conviction was proved by sufficient evidence and was not against the manifest weight of the evidence, as stated in appellant's fifth assignment of error, there was no basis for the trial court to have granted appellant's motion for acquittal. Therefore, the trial court did not err in dismissing appellant's motion for acquittal. Appellant's sixth assignment of error is found to be without merit. The judgment of the trial court is affirmed. VUKOVICH, J., concurs. See concurring opinion. WAITE, J., concurs. __________________________________ EDWARD A. COX, PRESIDING JUDGE

2016-07-06 06:36:49.925117+00

JOURNAL ENTRY AND OPINION {¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Defendant-appellant Timothy Henderson appeals from his conviction for carrying a concealed weapon, receiving stolen property, and having a weapon under disability. His single assignment of error is that the trial court erred in denying his motion to suppress in violation of his constitutional rights. We agree, and for the reasons set forth below, we reverse the decision of the trial court in this matter. {¶ 2} Shortly after 5:00 a.m. on September 12, 2005, Officer Littell of the Cleveland Police Department observed the appellant, Timothy Henderson, run a red light in a high crime area. The officer pursued the vehicle and observed it speeding and going through three stop signs before he was able to catch up with it. Upon catching up to the vehicle, the officer turned on his overhead lights at which time the vehicle immediately pulled over and stopped. The officer pulled his service revolver as he approached the car and ordered appellant out of the vehicle. He restrained him in handcuffs, patted him down and placed him in the back of the police car. The officer stated his reasons for using these procedures were because of appellant's erratic driving and the high crime nature of the area. {¶ 3} Upon questioning the driver, the officer learned that he was a 53-year-old male who was in a rush to help his wife open their store before going on to his *Page 4 6:00 a.m. appointment for dialysis. The officer verified these facts with appellant's wife. However, before verifying the story, the officer searched the interior "reach area" of the vehicle and found a loaded gun in the center console. {¶ 4} At the suppression hearing, the officer testified that whenever he removes somebody from a vehicle, it is his standard practice to search the "reach area" of the vehicle before allowing the person back in because, the officer stated "I need to make sure that I'm going to be safe doing so." He stated that this type of a search was a "Terry" search. {¶ 5} The officer is mistaken in his understanding of the search parameters authorized by Terry v. Ohio (1968), 392 U.S.1, 88 S. Ct. 1868,20 L. Ed. 2d 889. Terry does not authorize a police search, even a limited "reach area" search, of a vehicle for weapons every time a police officer orders a person out of a vehicle incident to a traffic stop. Under Terry, a limited protective search of the detainee's person for concealed weapons is justified only when the officer has reasonably concluded that "the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others * * *." Id. at 24, 88 S.Ct. at 1881,20 L.Ed.2d at 908. The test is whether the officer can reasonably conclude, based upon the totality of the circumstances, that the person detained is armed and that a protective search is necessary for his safety and the safety of others. State v. Bobo (1988), 37 Ohio St. 3d 177, 524 N.E.2d 489, paragraph two of the syllabus. *Page 5 {¶ 6} It is uncontested that appellant violated the traffic laws by running a red light, speeding, and ignoring more than one stop sign in the early morning hours in an area deemed to be a high crime area. However, those factors alone are insufficient to justify the search of his vehicle. There is nothing in the record to show that the officer had a reasonable, articulable suspicion at any time during the traffic stop that appellant was armed and dangerous and that a search of the vehicle for weapons was necessary to protect him from danger. A police officer is not permitted to conduct a search merely for convenience, or as part of his normal routine or practice. State v. Lozada, 92 Ohio St. 3d 74,77, 2001-Ohio-149, 748 N.E.2d 520. Therefore, the search of appellant's vehicle was invalid, and the weapon found as a result of that search should have been suppressed. Consequently, we reverse the court's order denying the motion to suppress, vacate the sentence as to the no contest plea, and remand for further proceedings. It is, therefore, ordered that said appellant recover of said appellee his costs herein taxed. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MARY EILEEN KILBANE, P.J., and ANN DYKE, J., CONCUR *Page 1

2016-07-06 06:36:50.191815+00

OPINION At 3:10 a.m. on January 6, 2000, an employee of the Newcomerstown truck stop, who identified herself as Jamie Ickes, called the Newcomerstown Police Department and reported that a white Honda automobile was parked at the truck stop. She told the dispatcher that a beer and another drink in a shot glass were on the lid of the trunk. The employee further reported that the four occupants of the vehicle were in the truck stop, and all were intoxicated. The dispatcher relayed this information to Sergeant Rod Miller of the Newcomerstown Police Department. Although she did not relay the name of the caller, the dispatcher did tell Sergeant Miller that an employee of the truck stop had called. Sergeant Miller went to the truck stop, and observed the vehicle, including the beer bottle and the shot glass. No one was around the vehicle at this time. Sergeant Miller continued his patrol duties to the motel near the truck stop. As he was leaving the motel, he saw the white Honda operating on the street adjacent to the truck stop. The beer bottle and shot glass were gone from the trunk lid, and the car had four occupants. As the report he had received stated that the truck stop employee thought all four people associated with the Honda were intoxicated, Sergeant Miller stopped the vehicle without observing any traffic violations. Sergeant Miller testified that alcohol offenses were not uncommon at the truck stop, and the police department regularly gets complaints from the truck stop. After stopping the car, Sergeant Miller arrested and charged appellee C. Jai Ungurean with driving under the influence of alcohol. Appellee filed a motion to suppress, which the court granted. The Village of Newcomerstown appealed, filing the required certification that the appeal was not being taken for purposes of delay, and the judgment rendered the prosecution's proof on the charged offense so weak that any reasonable possibility of effective prosecution has been destroyed. The Village assigns a single error on appeal: ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN SUPPRESSING THE FRUITS OF A TRAFFIC STOP WHICH WAS BASED UPON A REPORT OF AN IDENTIFIED COMPLAINANT CONCERNING INTOXICATION OF THE VEHICLE OCCUPANTS, CORROBORATED BY THE POLICE OFFICER'S INDEPENDENT OBSERVATIONS. Initially, a magistrate heard the motion to suppress, and recommended that the motion be overruled. Upon objections, the court sustained the motion to suppress. The court found that the tip of the truck stop employee must be categorized as anonymous, as the dispatcher did not give the name of the tipster to the officer, even though the dispatcher had this information. The court concluded that the officer did not sufficiently corroborate the tip, and therefore lacked a reasonable suspicion of criminal activity to justify stopping the vehicle. The court erred in concluding that the failure of the dispatcher to relay the name of the employee to the officer rendered the tip anonymous. A police officer need not always have knowledge of the specific facts justifying a stop, and may rely upon a dispatch. Maumee v. Weisner (1999),87 Ohio St. 3d 295, 297. This principle is rooted in the notion that effective law enforcement cannot be conducted unless officers can act on information transmitted by one officer to another, and that officers, who must often act quickly, cannot be expected to cross-examine their fellow officers about the foundation of the transmitted information. Id. The admissibility of evidence uncovered during a stop does not rest upon whether the officers relying upon a dispatch were themselves aware of the specific facts which led the colleagues to seek their assistance, but turns instead upon whether the officer who issued the dispatch possessed a reasonable suspicion to make a stop. Id., citing United States v. Hensley (1985), 469 U.S. 221, 231. Thus, if the dispatch has been issued in the absence of a reasonable suspicion, then a stop in objective reliance upon it violates the Fourth Amendment. Id. The State must therefore demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity. Id. at 298. Where the information possessed by the police before the stop was solely from an informant's tip, the determination of reasonable suspicion will be limited to an examination of the weight to be given the tip and the reliability of the tip. Id. at 299. Courts have generally identified three classes of informants: the anonymous informant, the known informant from the criminal world who has provided previous reliable tips, and the identified citizen informant. Id. at 300. An identified citizen informant may be highly reliable, and therefore a strong showing as to other indicia of reliability may be unnecessary. Id. Thus, courts have routinely credited the identified citizen informant with greater reliability. Id. Given the greater degree of reliability typically accorded the identified informant, the issue in this case thus becomes whether the informant should be considered identified or anonymous. Courts have been lenient in their assessment of the type and amount of information needed to identify a particular informant. Id. at 301. Viewing the information provided in this case, the trial court erred in classifying the informant as anonymous rather than identified. The caller identified herself to the dispatcher both by name, and by place of employment. The police department was familiar with the place of employment, having received prior complaints of intoxicated patrons at the truck stop. The C.A.D. incident report, which the officer testified is prepared at time of the dispatch, includes the address of the truck stop where the caller was employed. The information provided was sufficient to remove her from the category of the anonymous caller, and identify her as a citizen informant. Having resolved this issue, we must next determine from the totality of the circumstances whether the tip is reliable, weighing in favor of the informant's reliability and veracity. Id. at 302. Typically, a personal observation by an informant is due greater reliability than a second-hand description. Id. In the instant case, the informant had personally observed the four occupants arrive in the vehicle, and noticed the beer can and shot glass on the lid of the trunk of the car. The persons were in the restaurant as she made the call, and she had observed that they all appeared to be intoxicated. Her knowledge of the circumstances was all first hand, and the tip was therefore due significant weight. The only remaining issue is whether the tip itself was sufficient to justify a reasonable suspicion of criminal activity, allowing the officer to stop the vehicle in reliance on the dispatch. The tip stated that the vehicle had a beer and a shot glass on the trunk. The tipster further stated that all four occupants of the car were in the restaurant, and all were intoxicated. Based on this information, when the officer observed the vehicle first with the objects on the trunk, and later in operation, he had a reasonable suspicion that the driver of the vehicle was intoxicated. Sergeant Miller was therefore entitled to stop the car for the purpose of investigation. The assignment of error is sustained. The judgment of the Tuscarawas County Court granting appellee's motion to suppress is vacated. This cause is remanded to that court for further proceedings according to law. By GWIN, P.J., FARMER, J., and WISE, J., concur

2016-07-06 06:36:50.23261+00

OPINION {¶ 1} Defendant-appellant, Becton Dickinson Co. ("Becton") appeals from a judgment of the Franklin County Court of Common Pleas granting certification of a class action pursuant to Civ.R. 23(A) and (B) in favor of plaintiff-appellee, Vicki L. Grant, the proposed class representative. {¶ 2} This matter is before us for the second time on the certification issue. The facts and posture of the case were extensively developed in our prior decision, Grant v. BectonDickinson Co., Franklin App. No. 02AP-894, 2003-Ohio-2826 ("Becton I"), and will not be unnecessarily reiterated here. {¶ 3} Becton is a manufacturer and marketer of syringe needles and other hollow-bore needle devices used in medical treatment for injection or blood collection. The devices at issue in the present case do not incorporate a mechanism or design to protect or sheath the exposed needle immediately after use. This omission, which is remedied in certain more recent lines of comparable products, allegedly creates an unreasonably high risk of "secondary" needle sticks to the healthcare professional utilizing the unprotected device. The plaintiff class as originally proposed included healthcare workers who had suffered accidental needle sticks with any of the many varieties of unprotected "syringe needles or other fixed exposed hollow-bore needle devices" manufactured by Becton, had been exposed thereby to risk of contamination by patients' blood or bodily fluids, had required testing for possible disease transmission, but had not in fact contracted a transmissible disease. {¶ 4} While in Becton I we upheld most of the trial court's analysis and conclusions addressing the prerequisites of Civ.R. 23 as applied by the Supreme Court of Ohio in Hamilton v. OhioSav. Bank (1998), 82 Ohio St. 3d 67, we found that including all varieties of Becton products without distinction in a common class created too broad a variance within the class and between product types for which the risk/benefit analysis of alternative feasible designs would vary. We held that this variance precluded the proposed class from meeting the requirement of commonality under Civ.R. 23 and Hamilton. Becton I, at ¶ 42-45. We accordingly, after affirming the majority of the trial court's determinations under the Hamilton factors, remanded the matter to the court of common pleas "for a determination, within the trial court's discretion, of whether the class can be separated into appropriate subclasses, limited to a class of persons using devices comparable to that which injured Grant, otherwise redefined in accordance with this opinion, or whether the action must be dismissed." Id. at ¶ 67. {¶ 5} The trial court has now entered an order certifying a class that attempts to comply with our decision in Becton I by creating six groups of Becton products to permit individualized risk/benefit analysis as to various product designs and intended uses. Becton has timely appealed and brings the following sole assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING PLAINTIFF'S RENEWED MOTION FOR CLASS CERTIFICATION. {¶ 6} The trial court has broad discretion in determining whether a class action may be maintained. Marks v. CP ChemicalCo. (1987), 31 Ohio St. 3d 200, syllabus. That determination will not be reversed without a showing that the trial court abused its discretion in certifying the class. Id. The trial court, however, must scrupulously apply the class action requirement set forth in Civ.R. 23 and conduct a full analysis into whether the prerequisites of the rule are met. Hamilton, supra, at 70. Civ.R. 23(A) specifies four prerequisites to a class action: One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defense of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Civ. R. 23(B) further sets forth the types of class actions that may be maintained once the prerequisites of Civ.R. 23(A) are met: An action may be maintained as a class action if the prerequisites of subdivision (A) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (a) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interest of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a class action. {¶ 7} The Supreme Court of Ohio, in Hamilton, summarized the requirements to maintain a class action under Civ.R. 23, as follows: The following seven requirements must be satisfied before an action may be maintained as a class action under Civ.R. 23: (1) an identifiable class must exist and the definition of the class must be unambiguous; (2) the named representatives must be members of the class; (3) the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interest of the class; and (7) one of the three Civ.R. 23(B) requirements must be met. Civ.R. 23(A) and (B); Warner v. Waste Mgt., Inc. (1988),36 Ohio St. 3d 91, 521 N.E.2d 1091. Id. at 71. {¶ 8} In the present case, plaintiffs seek to certify the class under Civ.R. 23(B)(3), requiring that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." {¶ 9} Our prior decision reversed in part the trial court's certification of a class because we found that this action involved appreciably different product types "presenting a wide variation in risks and benefits" that did not satisfy the commonality requirement of Civ.R. 23(A)(2) or the predominance requirement of Civ.R. 23(B)(3). We otherwise found that the other arguments raised by Becton in opposition to certification of the class did not demonstrate an abuse of discretion on the part of the trial court, and that the other elements of Hamilton and Civ.R. 23(A) and (B) were met. Our decision was not appealed to the Supreme Court of Ohio, and therefore stands as the law of the case both with respect to those aspects of the trial court's initial class certification that we affirmed, and those that we reversed. {¶ 10} Upon remand, the trial court has again certified essentially the identical class, excluding only one type of blood collection device ("butterfly" needles) and classifying the balance of Becton's many different device types into six "groups." {¶ 11} We find that the trial court has not addressed in its re-certification of the class any of the concerns raised in our prior decision. The range of blood-collection and injection devices manufactured and marketed by Becton is not appreciably narrowed by the exclusion of "butterfly" needles. The separation of the remaining device types into six "groups," collectively still represented by the same counsel and the same class representative, does nothing to alleviate the commonality and typicality concerns raised in our prior decision: * * * While Becton's experts disputed the availability or practicality of these [device safety] improvements, we do find that there was sufficient evidence from which the trial court could conclude that needle safety devices existed, at least in design or prototype, for all of the various devices described. However, this is only one aspect of the risk/utility test. The cost and feasibility of incorporating these proposed safety devices into the different Becton products at issue would vary widely, all experts agreed, depending upon the different functions and applications of the various hollow-bore needle products, and the necessarily different designs and intended conditions of utilization involved therewith. Thus, the question of whether there was a "practical and technically feasible alternative design" that "would have prevented the harm," R.C.2307.75(F) would become an excessively individualized question varying from product to product in the present case. It is not the simple existence of safer designs, but their effect for each product on the risk/benefit test, that is determinative. Becton I, at ¶ 43. {¶ 12} The trial court on remand, however, has not addressed our concerns regarding the varying risk/benefit analysis for different types of hollow-bore needle devices, undermining both the commonality of questions presented by the claims of class plaintiffs suffering sticks from different types of devices and the typicality of the proposed class representative, who was injured using a single type of syringe. Instead, the trial court has reverted to its prior determination finding commonality based upon the simple fact that all included Becton products present a hollow-bore needle that is unprotected after use. The trial court's latest decision, therefore, presents an abuse of discretion both because it reincorporates the same objectionable class characteristics and disregards the clear law of the case as set forth by this court in Becton I. {¶ 13} We therefore find that the trial court's decision certifying the class in this case must again be reversed, and Becton's sole assignment of error is sustained to the extent that the trial court has failed to address the grounds for reversal set forth in our prior decision. To the extent that Becton attempts to reargue in this appeal various other grounds under which the proposed class fails to meet requirements for a class action, e.g., proximate causation of injury, commonality of damages, availability of individualized defenses, and all other aspects of the class action requirements that were examined in our prior decision, the assignment of error is overruled. The judgment of the Franklin County Court of Common Pleas is reversed, and this matter is remanded to that court for further proceedings in accordance with our prior decision in Becton I and this decision. Judgment affirmed in part, reversed in part, and causeremanded. BRYANT and FRENCH, JJ., concur.

2016-07-06 06:36:42.886351+00

OPINION This appeal is taken from a final judgment of the Portage County Court of Common Pleas. Appellant, Michael S. Sharpless, appeals from: the trial court's decision not to apply State v. Childs (2000),88 Ohio St.3d 194; the court's application of res judicata; the court's denial of his motion for relief from conviction; and, the sentence imposed by the trial court. The following procedural history is relevant to this appeal. On February 13, 1997, appellant was indicted on one count of conspiracy to commit aggravated murder, in violation of R.C. 2903.01 and 2923.01. After a guilty verdict was returned by the jury, the court sentenced appellant to a term of nine years in prison. Appellant appealed, challenging his sentence and conviction; we affirmed both. State v.Sharpless (Dec. 18, 1998), Portage App. No. 97-P-0065, unreported, 1998 Ohio App. LEXIS 6162. The Supreme Court of Ohio declined jurisdiction.State v. Sharpless (1999), 85 Ohio St.3d 1457. On August 3, 1999, appellant1 filed a petition for postconviction relief and a motion for recusal. The trial court found that the petition was untimely and dismissed appellant's petition without a hearing on August 11, 1999. Appellant timely filed his notice of appeal from this judgment. On September 7, 1999, appellant filed a second petition for postconviction relief and filed a motion to amend his petition on November 23, 1999. On December 2, 1999, appellant filed another motion for recusal of the trial court judge. On December 13, 1999, the trial court denied appellant's motions for recusal and dismissed appellant's second petition. Appellant filed a second notice of appeal, challenging this judgment. This court, sua sponte, consolidated both appeals. On February 9, 2001, we affirmed the judgments of the trial court. On April 3, 2000, appellant filed a third petition for postconviciton relief or, in the alternative, a motion for a new trial and to vacate the judgment and sentence. On June 12, 2000, the trial court denied, without a hearing, appellant's third petition. From this judgment, appellant presents the following assignments of error for our review: "[1] Defendant was denied due process of law when the common pleas court failed to apply a controlling supreme court decision to defendant's case. "[2] Defendant was denied due process of law when the court mechanically applied res judicata to these proceedings. "[3] Defendant was denied due process of law when he was not granted relief from a conviction which was based on a void indictment. "[4] Defendant was denied due process of law when he was sentenced on an indictment which did not charge an offense." In appellant's first assignment of error, he argues that he was denied due process of law when the trial court failed to apply a recent decision of the Supreme Court of Ohio. Appellant argues that pursuant to the Supreme Court's decision in State v. Childs (2000), 88 Ohio St.3d 194, the indictment is void and as such he is entitled to relief. Appellee argues that appellant misstates the law; Childs is not controlling in the instant case; and, Childs is distinguishable from the case at bar. In Childs, supra, at 199, the court held that an indictment for conspiracy to commit aggravated trafficking pursuant to R.C. 2923.01, must allege some specific, substantial, overt act committed in furtherance of the conspiracy for the indictment to be valid. As this is appellant's third petition for postconviction relief, R.C.2953.23 governs. R.C. 2953.23(A) provides that a court may not entertain a second petition or successive petititons filed pursuant to R.C. 2953.21, unless both of the following apply: "(1) Either of the following applies: "(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief. "(b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right. "(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonble factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence." R.C. 2953.23(A)(1)(b) requires that the petitioner show that the United States Supreme Court has, since petitioner's last petition, recognized a new federal or state right that applies retroactively. The alleged right upon which appellant bases his argument was recognized by the Supreme Court of Ohio, not the United States Supreme Court, as R.C.2953.23(A)(1)(b) mandates. See, e.g., State v. Johnson (Jan. 5, 1998), Clinton App. No. CA97-07-006, unreported, 1998 Ohio App. LEXIS, at *10. Consequently R.C. 2953.23(A)(1)(b) does not apply. Moreover, appellant made no attempt to argue that R.C. 2953.23(A)(1)(a) had any application to the instant case. Appellant has not shown the requisite criteria in R.C. 2953.21(A)(1). Thus, the trial court did not err in dismissing appellant's third petition without an evidentiary hearing. Appellant's first assignment of error is without merit. Even if appellant's petition had been properly filed, his claims are now barred by res judicata. The doctrine of res judicata precludes a defendant from raising an issue in a petition for postconviction relief that could have been raised on direct appeal. State v. Szefcyk (1996),77 Ohio St.3d 93, 96. While Childs had not yet been decided at the time of appellant's direct appeal, the issue contained therein, that an indictment for conspiracy which fails to allege an overt act in furtherance of the conspiracy is fatally defective, was previously raised by appellant's argument that the indictment's failure to specify either the object of the conspiracy or the overt act in furtherance thereof denied him of his constitutional right to know the `nature and cause' of the accusation against him. Sharpless, 1998 Ohio App. LEXIS 6162, at *29. Thus, the trial court did not err in finding that appellant's arguments are barred by res judicata. Appellant's second assignment of error lacks merit. In appellant's third assignment of error, he argues that he was denied due process when he was not granted relief from his conviction. Appellant has failed to comply with the procedural requirements of R.C.2953.23(A). He has not shown that he was unavoidably prevented from discovery of facts upon which he relies in his claim for postconviction relief or that the United States Supreme Court has recognized a new right that applies retroactively. R.C. 2953.23(A)(1)(a) and (b). Thus, appellant's third assignment of error is without merit. In appellant's fourth assignment of error, he argues that, due to an alleged deficiency in the indictment, it did not charge an offense; therefore, he was denied due process when he was convicted and sentenced. Appellant previously raised the issue of the indictment's alleged inadequacies on appeal to this court, Sharpless, 1998 Ohio App. LEXIS 6162, at *29, and is now barred by res judicata. Appellant's fourth assignment of error lacks merit. Based on the foregoing analysis, the judgment of the trial court is affirmed. ____________________________ JUDGE ROBERT A. NADER FORD, P.J., GRENDELL, J., concur. 1 Appellant acted pro se during his first and second petitions for postconviction relief.

2016-07-06 06:36:42.917013+00

JOURNAL ENTRY AND OPINION Petitioner-appellant Carla. Nelson, Sr. (appellant) appeals from the denial of his petition for post-conviction relief without hearing. Appellant assigns the following errors for review: I. THE TRIAL COURT COMMITTED PREJUDICIAL REVERSIBLE ERROR BY HOLDING APPELLANT'S POSTCONVICTION RELIEF PETITION OF SEPTEMBER 17, 1996, IN ABEYANCE FOR APPROXIMATELY THREE (3) YEARS UNTIL APPELLANT FILED A PETITION FOR WRIT OF MANDAMUS IN CASE NO. 76862, AND THEN PROCEEDING TO JUDGMENT ON SEPTEMBER 14, 1999, WITH AN ABSURD AND ERRONEOUS FINDINGS OF FACT AND CONCLUSIONS OF LAW IN ORDER TO HAVE SAID MANDAMUS DISMISSED AS BEING MOOT, THEREBY, CREATING AND COMPELLING APPELLANT TO PURSUE A PIECEMEAL APPEAL NOT BASED UPON A FACTUAL RECORD, WHICH DENIED APPELLANT TO A FAIR AND IMPARTIAL CONSIDERATION WHEN THE TRIAL COURT DISMISSED SAID POSTCONVICTION BASED UPON THE GROUNDS OF RES JUDICATA, AND FURTHER ADDED TO THAT PREJUDICE BY NOT SPECIFYING IN ITS JUDGMENT EXACTLY WHICH PORTIONS OF THE FILES AND RECORDS ESTABLISHED THE BAR OF RES JUDICATA, FURTHER ADDED TO THAT PREJUDICE BY NOT CONSIDERING THE EVIDENCE ATTACHED TO THE POSTCONVICTION PETITION WHICH DEHORS THE TRIAL RECORD AND OF WHICH PRESENTED PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PROSECUTORIAL MISCONDUCT, BEING THAT THE PROSECUTOR WITHHELD EXCULAPATORY EVIDENCE AND KNOWINGLY PRESENTED UNCORRECTED AND/OR PERJURED TESTIMONY AT APPELLANT'S CRIMINAL TRIAL IN COMMON PLEAS CASE NO. 212590. ADDITIONALLY, THE TRIAL COURT COMMITTED PREJUDICIAL REVERSIBLE ERROR AND ABUSED ITS DISCRETION IN NOT CARRYING OUT ITS STATUTORILY IMPOSED DUTY AS MANDATED BY OHIO REVISED CODE 2953.21(C), THEREBY, DENYING APPELLANT OF DUE PROCESS AND EQUAL PROTECTION AS GUARANTEED TO APPELLANT BY ARTICLE 1 SECTION 2 AND 16 OF THE OHIO CONSTITUTION ALSO SEC. 10 AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. II. APPELLANT CONTINUES TO BE DEPRIVED OF HIS LIBERTY BECAUSE THE TRIAL COURT COMMITTED PREJUDICIAL REVERSIBLE ERROR AND ABUSED ITS DISCRETION, THEREBY, DENYING APPELLANT OF DUE PROCESS AND EQUAL PROTECTION WHEN THE TRIAL COURT FAILED TO CONSIDER AND/OR TO PROCEED TO JUDGMENT ON APPELLANT'S PRO S.E. EX PARTE MOTION SEEKING OUT AT STATE'S EXPENSE, COURT-APPOINTED EXPERT FOR THE DNA TESTING OF STATE'S EXHIBIT-17 (ALLEGE VICTIMS UNDERWEAR), WHEN IN FACT DNA IS NEWLY DISCOVERED AND JUDICIALLY ACCEPTED SCIENTIFIC TECHNOLOGY WHICH WAS NOT AVAILABLE IN 1985, WHEN THE ALLEGED CRIME OCCURRED, NOR AT THE TIME THAT APPELLANT WENT TO TRIAL ON OCTOBER 19, 1987, AND SAID DNA EXPERT AND DNA TESTING OF STATE'S EXHIBIT-17, AND THE RESULTS THEREOF, WOULD HAVE SUPPORTED APPELLANT'S POSTCONVICTION CLAIM NO.III, AND WOULD HAVE PRESENTED NEWLY DISCOVERED EVIDENCE DEHORS THE TRIAL RECORD AND WENT DIRECTLY TO APPELLANT'S ALIBI DEFENSE AND INNOCENCE CLAIM. THE TRIAL COURT'S INACTIONS TO CONSIDER AND/OR PROCEED TO JUDGMENT VIOLATES APPELLANT'S RIGHTS SECURED BY ARTICLE I SECTION 2, 10, 16 OF THE OHIO CONSTITUTION AND SECTION I OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. I. On October 21, 1987, a jury convicted appellant of three counts of rape and one count of kidnapping. This court affirmed appellant's conviction in State v. Nelson (Mar. 27, 1989), Cuyahoga App. No. 54791, unreported. On October 24, 1989, appellant filed a motion for a new trial, claiming the state withheld exculpatory evidence showing he was at his place of employment during the time his co-defendant testified appellant had fled with him to avoid prosecution. Appellant further alleged that defense counsel was in cahoots with the prosecutor, preventing the presentation of this exculpatory evidence at trial. Therefore, appellant contended he received ineffective assistance of counsel. The trial court denied appellant's motion for a new trial as being untimely. This court refused to entertain a delayed appeal on the judgment. On September 17, 1996, appellant filed a motion for expert assistance, asking for funds to pay the costs of a DNA expert to test the victim's clothing. Appellant wished to use the DNA evidence in support of his post-conviction relief petition filed on the same day. In his petition, appellant raised claims of ineffective assistance of counsel. Appellant averred his attorney was ineffective because he did not fully investigate appellant's alibi defense or object to the prosecutor's failure to disclose this exculpatory evidence. Appellant further argued his lawyer did not object to certain testimony at trial or file a timely motion for a new trial. Appellant stated he was working at the time the victim and her family claimed to have met him and when the prosecution stated he was in another state to avoid apprehension. Appellant pointed out inconsistencies in testimony admitted at trial. Appellant also disputed that the photo array introduced into evidence at trial was used during the police investigation. Appellant argued that some defense witnesses were not credible and that some medical records were missing. Appellant raised another claim in which he contended his conviction was not supported by DNA evidence. Appellant averred that, if DNA testing were done, he would be exonerated. Appellant's last claim asserted that his sentence was disproportionate to those sentenced under Senate Bill 2. Appellant attached an affidavit of verity in support of his petition. Although appellant mentions other evidence, none is attached to the petition in the file before this court. On September 19, 1999, the trial court denied appellant's petition for post-conviction relief without hearing. The trial court filed findings of fact and conclusions of law. II. In his first, rather lengthy, assignment of error, appellant challenges the denial of his post-conviction relief petition for a variety of reasons. First, appellant argues that the trial court waited too long before ruling on the petition. Because appellant has not shown the result of the judgment would have been otherwise, no prejudice has been demonstrated warranting reversal. Appellant raises a number of other issues which will be addressed below. R.C. 2953.21(A) provides: Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which imposed sentence, stating the grounds for relief upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief. A petition for post-conviction relief will be granted only where the denial or infringement of constitutional rights is so substantial as to render the judgment void or voidable. Relief is not available when the issue has been litigated by appeal or upon a motion for a new trial. State v. Walden (1984), 19 Ohio App.3d 141, 146. The claim must depend on factual allegations which cannot be determined by an examination of the files and records of the case. State v. Milanovich (1975),42 Ohio St.2d 46, paragraph one of the syllabus. Constitutional issues which could have been raised on appeal but were not will be barred by res judicata. State v. Perry (1967), 10 Ohio St.2d 175. Appellant raised a claim of ineffective assistance of counsel. The doctrine of res judicata bars a claim of ineffective assistance of counsel when a defendant is represented by new counsel on direct appeal and the issue could have been determined without resort to evidence de hors the record. State v. Cole (1982), 2 Ohio St.3d 112, syllabus. Competent, relevant, and material evidence de hors the record may defeat the application of res judicata. This evidence must demonstrate that the petitioner could not have appealed the constitutional claim by use of information found in the original record. State v. Lawson (1995),103 Ohio App.3d 307. The petitioner must submit evidentiary documents which contain sufficient operative facts to demonstrate that counsel was not competent and that the defense was prejudiced by the ineffectiveness. State v. Jackson (1980), 64 Ohio St.2d 107. If the petitioner fails to meet this burden, the trial court may dismiss the petition for post-conviction relief without a hearing. Id. As stated above, the petition in the record before this court only has appellant's affidavit of veracity attached in support. When assessing whether or not to grant a hearing, the trial court should examine the contents of the affidavits offered in support of the petition. A trial court may discount self-serving affidavits from the petitioner or his family members, identical affidavits, or affidavits which rely on hearsay as not being credible. State v. Moore (1994), 99 Ohio App.3d 748. Although a trial court should give deference to affidavits filed in support of a post-conviction relief petition, it may exercise its discretion when assessing the credibility of the affidavits. State v. Calhoun (1999), 86 Ohio St.3d 279, paragraph one of the syllabus. Appellant's only evidence in support of his petition for post-conviction relief was an extremely brief affidavit of verity in which appellant merely averred that the representations in the petition were true. This evidence may be discounted because it is not proof which is adequate to support a post-conviction relief petition. Because appellant really offered no evidence along with his petition, the trial court correctly denied appellant's petition for post-conviction relief. Appellant also argues that the findings of fact and conclusions of law filed by the trial court were inadequate. When a trial court denies a petition for post-conviction relief without a hearing, the trial court must issue findings of fact and conclusions of law. R.C. 2953.21(C). Those findings of fact and conclusions of law should be explicit enough to give the appellate court a clear understanding of the basis of the trial court's decision and to enable it to determine the grounds on which the trial court reached its decision. State v. Lester (1975),41 Ohio St.2d 51, at paragraph two of the syllabus. The findings of fact and conclusions of law are detailed enough to provide this court with an understanding of the basis of the trial court's decision. Appellant's first assignment of error is overruled. III. In his second assignment of error, appellant contends he is being deprived of his liberty because the trial court did not consider his motion for the appointment of an expert to conduct DNA testing. Basically, appellant asserts that this technology was not available at the time of his 1987 trial but could prove his innocence now. Appellant argues this scientific technology would exonerate him of the crime for which he was convicted. A petition for post-conviction relief is a collateral civil attack of a judgment and not an appeal of a criminal conviction. Calhoun, supra. As such, a trial court may deny a hearing on a claim raised in a post-conviction relief petition asserting that an error was made after the original conviction. State v. Combs (1994), 100 Ohio App.3d 90. The error must have occurred at the time the petitioner was tried and convicted of the criminal offense. State v. Powell (1993),90 Ohio App.3d 260. Appellant asked the trial court to appoint an expert to conduct a DNA analysis of evidence admitted at his criminal trial. A petitioner for post-conviction relief has no statutory right for the appointment of an expert. See State v. Trummer (Dec. 16, 1998), Columbiana App. No. 96 CO 97, unreported. In State v. Constant (June 26, 1998), Lake App. No. 97-L-097, unreported, the Eleventh District Court of Appeals was presented with the exact argument as appellant raises in the instant case. The court rejected the claim because the alleged error did not occur at the time of the trial. Appellant's argument also must be denied for the same reason. The statute for post-conviction relief applies to alleged errors occurring at the time of the original trial. The fact that subsequent scientific techniques or technologies may have aided a defendant in presenting his defense are not grounds for a trial court to grant a petition for post-conviction relief. Appellant's second assignment of error is overruled. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The Defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. ________________________ LEO M. SPELLACY, JUDGE DIANE KARPINSKI, P.J. and JAMES D. SWEENEY, J. CONCUR.

2016-07-06 06:36:42.964506+00

OPINION Appellant, Carl R. Frohman, appeals a decision of the Trumbull County Court of Common Pleas, Domestic Relations Division, in a divorce case filed by appellee, Shirley L. Frohman. The following facts are relevant to a determination of this appeal. The parties were married in Girard, Ohio on July 1, 1981. They had two daughters as a result of their marriage. On August 6, 1996, appellee filed a complaint for divorce in the Trumbull County Court of Common Pleas, Domestic Relations Division. The matter proceeded as a contested divorce action. Four days of hearings were conducted by Magistrate Anthony Natale. On December 31, 1997, in a written entry, trial court Judge Richard L. James granted the parties a divorce. Sometime between that date and January 7, 1998, the magistrate filed his decision, which does not include a date and is not time-stamped. It is not clear to this court how the trial court judge's decision granting the parties a divorce preceded the filing of the magistrate's decision. On January 7, 1998, appellant filed a timely request for findings of fact and conclusions of law, which had not been included in the magistrate's decision. The next day, January 8, 1998, Judge James filed a judgment entry adopting the magistrate's decision in its entirety. Then, on January 9, 1998, Judge James entered a judgment ordering counsel for both parties to submit proposed findings of fact and conclusions of law within thirty days. Counsel for both parties complied with the trial court's request. On February 24, 1998, Judge James adopted the findings of fact and conclusions of law submitted by appellee in their entirety. No findings of fact or conclusions of law were even entered by the only judge or magistrate to actually hear the evidence, Magistrate Anthony Natale. From the trial court's decision, appellant filed a notice of appeal. This appeal was subsequently dismissed by this court, however, due to the fact that the judgment entry did not specifically state the amount of child support arrearages owed to appellee by appellant. Eventually, the issue surrounding the child support arrearage was cleared up and a timely notice of appeal was filed. Appellant now asserts the following assignments of error: "1. The trial Court erred to the prejudice of Appellant by adopting the findings of fact and conclusions of law when the Magistrate who actually heard the case during trial did not file an amended Magistrate's Order with Findings of Fact and Conclusions of Law, as required by Ohio Civil Rule 52 and requested by the Appellant. "2. The trial court erred to the prejudice of Appellant when it failed to adequately and properly review the proposed findings of fact and conclusions of law, said findings and conclusions were not proper, neglected to settle significant issues, and, in fact, the trial court adopted the findings and conclusions submitted by counsel for Plaintiff verbatim. "3. The trial Court abused its discretion when it defined `during the marriage' differently for different items of property for the purpose of valuing such property. "4. The trial court abused its discretion in failing to utilize the date the plaintiff filed her complaint for divorce, or the separation of the parties, as the termination date of the marriage. "5. The trial court abused its discretion and erred to the prejudice of the appellant when it awarded a parcel of real property to the Appellee that was acquired after and was not found to have been given only to the Appellee by clear and convincing evidence." In the first assignment of error, appellant contends that the trial court erred by adopting the findings of fact and conclusions of law submitted by appellee when the magistrate who actually heard the case never filed findings of fact and conclusions of law as required by Civ.R. 52, and as requested by appellant. Civ.R. 52 provides that a party has seven days after notice is provided of the court's announcement of its decision to file a request for findings of fact and conclusions of law. When such a request is made, the court must comply with the request. Civ.R. 53(E)(2) provides that if a magistrate's report does not include findings of fact and conclusions of law, and they are requested pursuant to Civ.R. 52, the magistrate must include the findings of fact and conclusions of law in an amended magistrate's decision. Such procedure was not followed in the instant case. This court has recently stated: "Civ.R. 53 contemplates that the magistrate's decision will include a statement of the basis of his or her findings and recommendations in order to provide the trial court with sufficient information to make its own independent analysis of the decision's validity. * * * Without the decision, the trial court is barred from adopting the recommendation as an order of the court because there is, then, a lack of information upon which it can perform an independent analysis of the questions of law. * * * Finally, the failure to comply with Civ.R. 53 will permit an appellate court to reverse the judgment of the trial court in situations where there was a deviation from the rule and the deviation prejudiced the appellant. (Citations omitted.) In re Bortmas (Oct. 15, 1999), Trumbull App. No. 98-T-0147, unreported, at 5-6. In Bortmas, a hearing was conducted by a magistrate, but no magistrate's decision was ever filed. Additionally, there was no indication that the trial court judge received any recommendations from the magistrate or that the judge ever received a transcript from the hearing. Further, the trial court did not conduct its own hearing. This court held that the complete failure to abide by Civ.R. 53 warranted a reversal. The trial court could not possibly have made an independent analysis of the magistrate's recommendations and, thus, the appellant was prejudiced. While the facts of the present case are slightly different from the Bortmas case, the same logic is applicable. In the casesub judice, the magistrate never filed findings of fact or conclusions of law despite appellant's request to do so. Thus, without having had the benefit of hearing any of the evidence or seeing any of the witnesses, and without the opportunity to review any findings by the magistrate, since none existed, the trial court judge came up with his own findings of fact and conclusions of law with the help of appellee's counsel. This is unacceptable. It is crucial that at some point in the proceedings, a neutral magistrate actually hear the evidence, determine the credibility of the witnesses, and render findings of fact and conclusions of law. That did not happen in this case. Until that happens, this court has nothing to review. Based upon the foregoing analysis, the trial court erred in entering findings of fact and conclusions of law when the trial court judge did not hear the evidence, and the magistrate never filed findings of fact or conclusions of law that would have enabled the trial court judge to conduct an independent analysis. Hence, appellant's first assignment of error is sustained. Additionally, we note that counsel for appellee appeared at oral argument before this court and conceded that the trial court erred based upon this court's decision in Bortmas, supra. Counsel agreed that this needed to be reversed and remanded on this issue. Until Civ.R. 53 is properly complied with, it would be premature to address any of appellant's other assignments of error. The judgment of the trial court is hereby reversed and the matter remanded for further proceedings consistent with this opinion. ________________________ JUDGE WILLIAM M. O'NEILL FORD, P.J., NADER, J., concur.

2016-07-06 06:36:42.991111+00

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Michael P. Carson appeals the sentence imposed by the Summit County Court of Common Pleas pursuant to Carson's guilty plea to the charge of felonious assault. I. On January 20, 2000, Michael P. Carson was indicted on one count of felonious assault. Carson allegedly attacked a 91 year-old woman in her home on December 26, 1999. The crime charged was a second-degree felony. Upon advice of his counsel, Carson agreed to plead guilty. Pursuant to a plea agreement, the prosecution recommended a six-year sentence. At the plea hearing, the trial court advised Carson that there was no guarantee about the length of his sentence, which could be as long as eight years. With defense counsel present, Carson told the court that he understood he could be sentenced to the maximum of eight years. Carson advised the court that his plea was knowingly and willingly made. At the sentencing hearing, the judge imposed the maximum sentence of eight years in prison because she determined that Carson committed the worst form of the offense and that Carson posed the greatest risk of recidivism. Carson filed a timely notice of appeal. However, his court-appointed counsel determined that there was no meritorious issue to brief and filed a brief pursuant to Anders v. California (1967), 386 U.S. 738,18 L.Ed.2d 493. This court ordered counsel to file a merit brief, but counsel failed to do so. This court dismissed the first appellate counsel and appointed new counsel, who likewise filed an Anders brief. This court reviewed the entire trial court file, identified two issues that were arguably non-frivolous, and ordered counsel to brief these two issues and any others that counsel might discover. Pursuant to this court's order, Carson's appellate counsel assigned the two issues as errors for our review, but chose to argue only one. II. ASSIGNMENT OF ERROR NO. 1: THE TRIAL COURT ERRED WHEN IT FAILED TO ALLOW APPELLANT OR HIS ATTORNEY AN OPPORTUNITY TO COMMENT ON THE SUMMARY OF THE CONTENTS OF APPELLANT'S CHILDREN SERVICES BOARD RECORDS AS REQUIRED BY 2951.03(B)(3) OF THE OHIO REVISED CODE. The court allowed defense counsel to review the presentence investigation ("PSI") report filed with the court, which counsel described as "fair and accurate." The PSI report contained a summary of Carson's juvenile and adult criminal history, as well as a summary statement from the senior probation officer who prepared the PSI that Carson "has a history of assaulting elderly people; mainly, his grandmother." Carson's own statement in the PSI report indicated there had been violence in both his mother's home and his grandmother's home, where he lived as a teenager. However, Carson claimed that he was the victim of the violence. After hearing from the victim, the prosecutor, and defense counsel, the court allowed Carson to address the court on his own behalf. However, after Carson addressed the court, the judge stated that in addition to the PSI report she had reviewed Carson's records from the Children Services Board which indicated that as a juvenile Carson had attacked his own grandmother. The judge said that she had gone beyond the PSI report, stating: "Now, I went to the extra effort and I went through your CSB (Children Services Board) records. "You know, everybody in life has problems. You had an alcoholic mother, but also when I read through the CSB records, you know what else I found? I found that you had a grandmother who loved you, and I also found out that you used violence on your grandmother on several occasions when she tried to take care of you and keep you in her home so you wouldn't have to go into a state custody. You even abused her." Carson's counsel did not object to the court's reference to the CSB reports without prior notice and without the opportunity for Carson to respond. This court recently reviewed a sentencing wherein the trial court refused to release confidential portions of the PSI report, and then failed to allow the defendant to comment on the court's summary of the withheld portions of the PSI, as provided for in R.C. 2951.03(B). Statev. Phares (Sept. 20, 2000), Summit App. No. 19884, unreported, at 5. InPhares, this court remanded the case for resentencing because the trial court relied upon information in a PSI report that the court did not permit defense counsel to view and then failed to permit the defendant to comment on. The matter at issue in the CSB reports, namely Carson's violence toward his grandmother, was also identified in the PSI report. Defense counsel had an opportunity to review the PSI before sentencing, and he found it to be "fair and accurate." Thus, Carson knew that before imposing sentence the trial court might consider the allegations of his attacks on his grandmother. Because Carson was aware of the allegation of violence that his counsel found to be "fair and accurate," any error in the trial court's failure to allow Carson to comment on the CSB reports was harmless error. The first assignment of error is overruled. III. ASSIGNMENT OF ERROR NO. 2: THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BROAD CONDITION OF PROBATION. The trial court sentenced Carson to eight years in prison, sentenced him to a mandatory term of post-release control, and also ordered him to refrain from any contact, direct or indirect, with the victim or her family. This court asked Carson's appellate counsel to brief the issue of an unreasonable condition of probation. Counsel declined to argue this issue because the court's order is not a condition of probation. Counsel further argued that even if it is construed as a condition of probation, it is reasonably related to the crime, it is intended to rehabilitate Carson and it relates to conduct which is criminal or is reasonably related to future criminality. SeeState v. Brillhart (1998), 129 Ohio App.3d 180, 183-184, quoting Statev. McLean (1993), 87 Ohio App.3d 392, 396. Because counsel has declined to argue this matter, we will not address this assignment of error, pursuant to App.R. 12(A)(2). IV. Having overruled appellant's assignments of error, we affirm the decision of the trial court. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the County of Summit, Court of Common Pleas, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to appellant. Exceptions. WILLIAM R. BAIRD, CARR, J., WHITMORE, J. CONCURS.

2016-07-06 06:36:43.035573+00

JOURNAL ENTRY AND OPINION Defendant-appellant Victor Sanchez, pro se, appeals from an order of the trial court denying his pro se petition for post-conviction relief (R.C. 2953.21) without a hearing. Defendant claims the trial court erred in not holding a hearing where the defendant alleged ineffective assistance of counsel arising from conflicts of interest by his trial counsel in the representation of defendant and co-defendants at his 1991 trial. We find no error and affirm. Defendant's contentions on this appeal relate to his claims that he was ineffectively represented by defense counsel, Jamie Serrat, who also formally represented his co-defendant brother, Jose Sanchez, at their joint trial for major drug offenses. Prior to the commencement of trial, and on the record, the trial court questioned defendant and his brother concerning a possible conflict of interest in their joint defense. Defendant and his brother chose to be represented by the same attorney and waived any claim of conflict of interest. However, defendant's primary contention on this appeal is that, at the time of his trial, his attorney Serrat was also secretly or "off the record" representing yet another co-defendant, Jose Luis Perez-Pina, who was the major figure or drug lord/king-pin involved in the illicit drug running scheme in which they were all involved. Defendant essentially claims that, although Serrat was formally his trial counsel, Serrat's primary interest was in representing Perez-Pina from whom he received money and sacrificing defendant's interest in the process. Defendant attaches to his petition an affidavit of Perez-Pina which indicates that Perez-Pina paid Serrat $15,000 as a retainer to represent him in the case. Said affidavit states that Serrat brought in another attorney, David Lambros, Esq., to represent Perez-Pina while Serrat represented the Sanchez brothers. Defendant contends these circumstances resulted in ineffective assistance of counsel depriving him of his constitutional rights. These issues were already discussed by this Court in defendant's direct appeal in which this Court affirmed his convictions and denied his contentions in State v. Sanchez (June 9, 1994), Cuyahoga App. No. 62796, unreported ("Sanchez I") to which reference is made for a full exposition of the facts. In denying defendant's post-conviction petition for relief, the trial court found that the claims were barred by res judicata and defendant failed to submit any evidentiary quality documents to support the claim of ineffective assistance of counsel. We will discuss the defendant's assignments of error together as the issues they raise are closely interrelated. I. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN THAT DURING TRIAL DEFENSE COUNSEL ACTIVELY REPRESENTED CONFLICTING INTERESTS WHICH ADVERSELY AFFECTED COUNSEL'S REPRESENTATION OF APPELLANT. II. THE TRIAL COURT PREJUDICIALLY ERRED BY DISMISSING APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING TO DETERMINE THE TRUTH OF HIS ALLEGATIONS OF INEFFECTIVE ASSISTANCE OF COUNSEL, DUE TO COUNSEL REPRESENTING CONFLICTING INTERESTS. It is well settled that a hearing is not automatically required to be held whenever a petition for post-conviction relief is filed. State, ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450 . The pivotal concern in determining whether to grant a hearing on a motion for post-conviction relief is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavits, and the files and records of the case. State v. Swortcheck (1995), 101 Ohio App.3d 770,772; State v. Strutton (1988), 62 Ohio App.3d 248. The post-conviction remedy statute, R.C. 2953.21 (C), states in pertinent part: *** Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. The court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. Pursuant to R.C. 2953.21 (C), the trial court herein dismissed defendant's post-conviction petition and issued findings of fact and conclusions of law on each issue raised in the petition. (Findings of Fact and Conclusions of Law filed January 21, 1999). As the statute makes clear, "Courts are not required to hold a hearing on all post-conviction cases." McMonagle, supra, at 451, citing R.C. 2953.21 (C). This Court stated the test to be applied in determining the necessity of a hearing in State v. Pariseau (Dec. 15, 1994), Cuyahoga App. No. 67496, unreported at 4-5: A petition for post-conviction relief may be dismissed without a hearing when the petitioner fails to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107. The test to be applied is "whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case." State v. Strutton (1988), 62 Ohio App.3d 248, 251. A petitioner satisfies his initial burden by submitting evidence outside the record sufficient to avoid dismissal. See State v. Williams (1991), 74 Ohio App.3d 686, 692. We find that defendant's assignments of error are barred by the doctrine of res judicata. Because post-conviction petitions are quasi-civil, any claim that was or could have been raised at trial or on appeal is barred by the doctrine of res judicata. The Ohio Supreme Court has held: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. Furthermore, a petition for post-conviction relief alleging ineffective assistance of trial counsel may be dismissed without a hearing based on res judicata where the petitioner had new counsel on direct appeal and the claim of ineffective assistance of counsel could have been raised on direct appeal without resorting to evidence outside of the record. See State v. Lentz (1994).,70 Ohio St.3d 527, 530, citing State v. Cole (1982), 2 Ohio St.3d 112, at syllabus. Competent, relevant, and material evidence de hors the record may defeat the application of res judicata. State v. Lawson (1995), 103 Ohio App.3d 307. However, this evidence must demonstrate that the petitioner could not have appealed the constitutional claim by use of information found in the original record. Id. Defendant contends herein that a conflict of interest existed in the legal representation provided by attorney Serrat, and due to this conflict, he received ineffective assistance of counsel. He claims that Serrat secretly represented co-defendant Perez-Pina. However, this allegation is contrary to the trial court's record which shows that attorney Lambros represented co-defendant Perez-Pina and that Serrat represented defendant and his brother, Jose Sanchez, at trial. The issues of ineffective assistance of counsel due to this alleged conflict of interest were previously raised on appeal in Sanchez I and are now barred by the doctrine of resjudicata. The same is true of defendant's claim that Serrat also represented Perez-Pina. This Court stated as follows on these very points in Sanchez I: In order to establish a Sixth Amendment claim of ineffective assistance of counsel, "A defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan (1980), 466 U.S. 335, 348; State v. Manross (1988), 40 Ohio St.3d 180, 182; State v. Torres (May 21, 1992), Cuyahoga App. No. 60387, unreported at 1-2. The Supreme Court in Manross further explained its position stating: "The term `conflict of interest' bespeaks a situation in which regard for one duty tends to lead to disregard of another. The obvious example of this is representation of clients with incompatible interests." Goitia v. United States (C.A.1, 1969), 409 F.2d 524, 527. A lawyer represents conflicting interests when, on behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose. Columbus Bar Assn. v. Grelle (1968), 14 Ohio St.2d 208, 43 O.O.2d 305, 237 N.E.2d 298. There is no conflict where the two defenses did not result in one assigning blame to the other and where both defendants had a common interest in attacking the credibility of the prosecution witnesses. Kaplan v. Bombard (C.A.2, 1978), 573 F.2d 708. In the case sub judice the evidence does establish that appellant's brother, Jose, had a more significant involvement with the drug enterprise. However, appellant was not merely guilty by association. Ortiz testified that appellant had a general involvement with the group for over six months. Further, Tomasi related several specific instances where appellant prepared, possessed, or was responsible for drugs and the proceeds of their sale. The differing degrees of culpability of appellant and his brother is insufficient to establish an actual conflict of interest. See Manross, supra, at 183. At best, this is merely basis for speculation. Furthermore, evidence concerning appellant's trial counsel's representation of another member of the drug enterprise was not before the jury. Accusations concerning his fee were not authenticated or presented to the jury either. Although appellant claims that his attorney and the former client he represented would have been able to testify as to his lack of involvement in the drug enterprise, such claim is purely speculative. Under Manross it does not establish an "actual conflict." The evidence presented clearly demonstrates appellant's significant involvement in the drug enterprise. It is clear that the defendant raised both the issue of a conflict with his brother's counsel as well as Perez-Pina's counsel in his direct appeal in Sanchez I. Furthermore, defendant's own Statement of Facts (Aplt's Brf. at 2) acknowledges that Perez-Pina's name and telephone number were listed in a notebook along with Jaime Serrat's name and telephone number. The State intended to introduce "the book to show that Attorney Serrat had previously represented other individuals in the alleged drug enterprise and that he had been paid through the proceeds of cocaine sales." Thus, it was known that Serrat represented other co-defendants before defendant's case was ever tried. This representation was not a "secret" but known to defendant, defense counsel and the trial court. Accordingly, it is barred by res judicata. See Statev. Scudder (1998), 131 Ohio App.3d 470, 475: "`"Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except on appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment."'" (Emphasis added.) State v. Szefcyk (1996), 77 Ohio St.3d 93, 95, 671 N.E.2d 233, 235, quoting State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus. A petition for postconviction relief may be dismissed without a hearing, based upon the doctrine of res judicata, when the trial court finds that the petitioner could have raised the issues in his petition at trial or on direct appeal without resorting to evidence which is beyond the scope of the record. State v. Mullins (1995), 104 Ohio App.3d 684, 662 N.E.2d 1142. Even assuming arguendo that the doctrine of res judicata is inapplicable to defendant's claim, he has still failed to show that he received ineffective assistance of counsel. This Court described the standard of review to make a showing of ineffective assistance of counsel in Lakewood v. Town (1995), 106 Ohio App.3d 521,525-26: The standard of review for ineffective assistance of counsel requires a two-part test and is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, also, State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. "[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland at 687-688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must also prove 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." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Furthermore, when determining whether counsel's performance was deficient "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland v.Washington (1984), 466 U.S. 668, 689. A defendant's failure to satisfy either of the two Strickland tests is sufficient to dismiss the claim of ineffective assistance of counsel. "In order to satisfy a Sixth Amendment claim of ineffective assistance of counsel, appellant must demonstrate that an actual conflict of interest adversely affected his counsel's performance."State v. Keith (1997), 79 Ohio St.3d 514, 535, citing Cuyler v.Sullivan (1980), 446 U.S. 335, 348, 100 S.Ct 1708, 64 L.Ed.2d 333. A reviewing court cannot presume that the mere possibility of a conflict of interest resulted in ineffective assistance of counsel. A possible conflict of interest is simply insufficient to challenge a criminal conviction. State v. Manross (1988), 40 Ohio St.3d 180;Cuyler, supra. Defendant does not establish with any particularity either the conflict of interest or the adverse effect on Serrat's performance. The evidence presented by defendant in support of his petition was insufficient to support this ineffective assistance claim. Defendant submitted an affidavit signed by co-defendant Perez-Pina with a copy of a $3,000 check numbered 1723, and printed on the check was "Serrat Maso," "AOLTA Account." In this affidavit, Perez-Pina states that he contacted Serrat and that they agreed that Serrat would represent him on the criminal indictment for $15,000. Perez-Pina states that after he paid $8,000 to Serrat as a retainer, he realized that he had overpaid and that they agreed that Serrat would return the $3,000. Perez-Pina further states in his affidavit that he received several visits from Serrat while incarcerated and during such visits, Serrat would advise him of "all progress concerning the proceedings against me and discussed various strategies and lines of defense." He states that during one such visit, Serrat brought Lambros and informed him that Lambros would be his attorney of record. Defendant asserts that this evidence establishes the existence of a conflict of interest. Even if we construe Perez-Pina's affidavit as true, this evidence still does not establish that an actual conflict of interest occurred. "When determining whether there are substantive grounds for post-conviction relief that would warrant a hearing, the affidavits offered in support of the petition should be accepted as true." State v. Swortcheck (1995),101 Ohio App.3d 770, 772. Defendant claims that Serrat favored Perez-Pina in actively exploring the possibility of a plea bargain and that Serrat never mentioned any plea bargain negotiations with defendant. However, this is insufficient as it is mere speculation as to the possibility of an actual conflict of interest. "A lawyer represents conflicting interest when, on behalf of one client, it is his duty to contend for that which duty to another client requires his to oppose." Sanchez, supra, citing Columbus Bar Assn.v. Grelle (1968), 14 Ohio St.2d 208. As discussed above, we cannot presume that the mere possibility of a conflict of interest resulted in ineffective assistance of counsel. A possible conflict of interest is insufficient. Under Keith, supra, defendant must establish that an actual conflict of interest adversely affected his counsel's performance. We find that there is no support in the record that defendant would have fared better if Serrat did not also represent Perez-Pina. Defendant offers no proof that the outcome of the trial would have been different or his role minimized had he a different or "independent" counsel. Even if Serrat jointly represented defendant, his brother and Perez-Pina at trial, there is still nothing in the record which establishes an actual conflict in Serrat's representation of defendant or that such a conflict adversely affected his representation. Accordingly, we find that defendant has failed to present sufficient evidence to support his post-conviction ineffective assistance of counsel claim. Defendant also contends that he should be allowed an opportunity for discovery to further prove out his speculative theories. However, this Court in State v. Lott (Nov. 3, 1994). Cuyahoga App. Nos. 66388/66389/66390, found no error in the trial court's dismissal of Lott's petition without affording him an opportunity to conduct discovery pursuant to Civ.R. 56 (F) setting forth its reasoning as follows: [A]lthough a post-conviction relief proceeding under R.C. 2953.21 is civil in nature, the extent of the trial court's jurisdiction is set forth by the statute, and the power to conduct and compel discovery under the civil rules is not included within the trial court's statutorily-defined authority. * * * We agree and conclude that appellant was not entitled to conduct discovery under the rules of civil procedure in a post-conviction relief proceeding. It must be emphasized that a post-conviction proceeding under R.C. 2953.21 does not grant power to the trial court to authorize discovery under the Rules of Civil Procedure. A post-conviction relief proceedings is not a civil re-trial of appellant's conviction. Id. at 12; see, also, State v. Josso (Aug. 22, 1996), Cuyahoga App. Nos. 70350-70352, unreported at 4. We therefore find that the defendant was not entitled to further discovery prior to the trial court's dismissal of his petition for post-conviction relief. Given the foregoing discussion, we find no error in the trial court's denial of defendant's petition for post-conviction relief without a hearing. Assignments of Error I and II are overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, A. J., and TIMOTHY E. McMONAGLE, J., CONCUR. _____________________________ JAMES M. PORTER, JUDGE DETAILS (clarity deficiencies as necessary, items tested and test results) First Inspection: Reinspection Company representative: ___________ Company representative: _____________ (signed) (signed) ___________ _____________ (printed) (printed) Date: ___________ Date: ____________ Franchisee/Manager: ___________ Franchisee/Manager: ____________ (signed) (signed) ___________ ____________ (printed) (printed) Date: ___________ Date: ____________ [EDITORS' NOTE: THE SIGNATURES IS ELECTRONICALLY NON-TRANSFERRABLE.]

2016-07-06 06:36:43.104398+00

OPINION This appeal presents the novel question of whether a complaint, filed within one year of the Civ.R. 41(A)(1)(a) voluntary dismissal of an earlier complaint, which names a different party defendant than was named in the earlier complaint, should be treated as if it were a Civ.R. 15(C) amendment of the earlier complaint, so as to defeat the statute of limitations defense of the party defendant first named in the later complaint. We conclude that the answer to this question is no, and thus affirm the action of the trial court in dismissing International Fraternity of Phi Gamma Delta (also "International") as a party defendant. The record on appeal is sparse. The following factual and procedural background is not, we believe, in dispute. Ann Devine is the personal representative of the estate of her deceased son, Eric Devine, by appointment of a Florida court. Her son was killed in an automobile accident September 3, 1995, after he and the driver had become intoxicated at a party at the Phi Gamma Delta fraternity house at Wittenberg University in Springfield, Ohio. Mrs. Devine brought a wrongful death action against Phi Gamma Delta Fraternity, Wittenberg University Chapter (also "the Chapter"), and several other defendants, on September 1, 1997. This case was numbered 97-CV-0707. Mrs. Devine filed the action pro se but retained counsel as of February 19, 1998. International Fraternity of Phi Gamma Delta was not a named defendant in 97-CV-0707. 97-CV-0707 was voluntarily dismissed May 13, 1999. On August 5, 1999, Mrs. Devine filed another wrongful death action on account of Eric's death, this time naming as defendants Phi Gamma Delta Fraternity, Wittenberg University Chapter, and International Fraternity of Phi Gamma Delta. International moved to dismiss, asserting that the two-year statute of limitations had run against it and, because it had not been a party defendant in 97-CV-0707, Mrs. Devine could not avail herself of savings statute — R.C. 2305.19 — to make International a party defendant. The trial court dismissed the action as to International, and certified the dismissal for immediate appeal pursuant to Civ.R. 54(B). Mrs. Devine's single assignment of error asserts: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF WHEN IT DISMISSED THE INTERNATIONAL FRATERNITY OF PHI GAMMA DELTA FINDING THAT THE INTERNATIONAL FRATERNITY OF PHI GAMMA DELTA WAS A NEW PARTY TO THE LAWSUIT WHEN, IN FACT, IT WAS ONLY A NAME CHANGE. Mrs. Devine first contends that her complaint in 97-CV-0707 should have been held to a "less stringent standard" because she filed it pro se, citing Weaver v. Carson (1979), 62 Ohio App.2d 99. This contention fails. Although the court in Weaver did refer to a more lenient approach to pro se pleadings (which nevertheless failed to salvage Weaver's pro se complaint), Weaver was concerned with whether Weaver's complaint stated a justifiable claim. A "less stringent standard" simply has no application to this situation, where the complaint in 97-CV-0707 failed to name International as a party defendant and the subsequent complaint naming International was filed after the statute of limitations had run as to International. It is one thing to provide a liberal reading to a pro se complaint in determining whether it states a claim upon which relief may be granted. It is quite another thing to read a pro se complaint to include a party which admittedly is not named in the complaint. As a corollary contention, Mrs. Devine asserts that as a pro se litigant, she should not have been expected to distinguish between a national organization and its local chapter, and that International has furnished no evidence that it and the Chapter are separate entities. If International and the Chapter are separate entities, Mrs. Devine's pro se status cannot absolve her of her failure to make International a party defendant in her complaint in 97-CV-0707 or by amendment to her complaint in that case. Civ.R. 15(C). If, indeed, the Chapter and International are not separate entities, there can be no prejudice to Mrs. Devine occasioned by the dismissal of International, because the Chapter remains a party defendant in the trial court. Mrs. Devine has cited no authorities which support what she has sought to do here: subject a party in whose favor the statute of limitations has run to liability in a second lawsuit after dismissing an earlier lawsuit in which that party was neither originally named as a party defendant nor made so by amendment. Underwriters Adjusting Company, et al. v. City of Youngstown, et al. (Oct. 6, 1976), Mahoning App. No. 76CA55, unreported; Morgan, et al. v. Bayview Hospital (1959), 82 Ohio L. Abs. 499; and Estes v. Starnes (1999), 732 So.2d 251 all deal with the propriety of permitting or forbidding amendment of the original complaint after the statute of limitations has run to substitute a different party for the party earlier named in the complaint. As noted above, this is not what happened here. Mrs. Devine did not seek to amend her original complaint, either to add International before the statute of limitations ran as to International, or to substitute International for the Chapter. See Dobbelaere v. Cosco, Inc. (1997), 120 Ohio App.3d 232, discretionary appeal not allowed (2000), 90 Ohio St.3d 1406, construing Civ.R. 15(C). Simply stated, Civ.R. 15(C) does not apply to the procedural situation presented in this case. Furthermore, even if Civ.R. 15(C) somehow applied to this case, it could not be used to add International where the Chapter continues to be a named defendant. Kraly v. Vannewirk (1994),69 Ohio St. 627, syllabus, para. 1. The assignment of error is overruled. ____________ WOLFF, P. J. FAIN, J. and GRADY, J., concur.

2016-07-06 06:36:43.221824+00

OPINION This timely appeal arises from an order of the Mahoning County Court of Common Pleas granting summary judgment in favor of William Gross ("Appellee") and holding Kevin Fizet ("Appellant") personally liable for five commercial promissory notes held by Appellee. This is the second time this matter has been before this Court. On March 31, 1999, we issued an opinion affirming an earlier common pleas decision in part and remanding the matter to the trial court to determine whether and the extent to which Appellant had discharged the debts reflected on five promissory notes held by Appellee. Gross v. Fizet (March 31, 1999), Mahoning App. No. 98 CA 68, (unreported) ("Gross I"). The facts underpinning this case were detailed at length in this Court's initial opinion. Much of this case's history concerns issues previously addressed and resolved by this Court and they are not pertinent to the instant appeal. Accordingly, the facts of this case are reiterated here only to the extent that they are implicated in the issues we have been asked to address. Based on the record presented, this Court now affirms the trial court's summary judgment order. In December of 1988, the parties formed a company known as Compost Wholesalers, Inc., making themselves the principal shareholders. Appellant was president and treasurer of the company and oversaw the day-to-day operations of the business. Between December 19, 1988 and October 1, 1990, Appellant executed five promissory notes relevant here to cover operating expenses ("notes A, B, C, D, and E") as follows: Note Date Face Amount Due Date A December 19, 1988 $15,000.00 March 19, 1990 B June 18, 1990 $15,000.00 September 17, 1990 C September 10, 1990 $10,000.00 December 10, 1990 D September 17, 1990 $14,850.41 December 17, 1990 E October 1, 1990 $10,000.00 December 21, 1990 (Affidavit of William Gross, Exhibits A-E). Appellant signed notes A-E, guaranteeing them individually and in his capacity as president of Compost Wholesalers. The notes reflected in Exhibits A, C, D, and E have all been stamped "paid by renewal." Note B lacks such a stamp. According to Appellee, two of the notes received partial payment in the aggregate amount of $4,149.59. On November 4, 1992, Appellee purchased these notes from the Mahoning National Bank for $20,063.56. (Affidavit William Gross, Exh. G). The bank consequently assigned its interest in the notes to Appellee. (Affidavit William Gross, Exh. H). On May 19, 1997, Appellee filed an action against Appellant to recover the money he spent purchasing the promissory notes from the bank. Appellee claimed that he was entitled to $20,063.56 plus 8% interest per annum accruing from November of 1992. Appellant answered and countersued seeking reimbursement for business and other financial expenditures. Cross motions for summary judgment were filed and granted and Appellee sought review of the decision in this Court. On March 31, 1999, this Court entered an order affirming in part and reversing in part the trial court's decision. In so holding, this Court concluded that summary judgment should not have been granted with respect to Appellee's claims on the promissory notes depicted in Exhs. A — E because there existed a genuine issue of material fact with respect to Appellant's continuing liability. Gross I at p. 10. This Court then remanded the matter for the trial court to ascertain whether Appellant could establish that his obligation under the promissory notes had been canceled or otherwise discharged. Id. On remand, the matter was set for trial and continued several times before Appellee filed a motion for summary judgment which mirrored the one he filed when the matter had last been in the trial court prior to the first appeal. Appellee attached to the motion his affidavit, six promissory notes (only five of which are relevant to this appeal), a copy of his check in the amount of $20,063.56, and a document from the bank assigning its interest in the debt to Appellee. Appellant responded only by arguing that summary judgment was inappropriate in this case and that the matter should go to trial. Appellant failed to attach a single affidavit or exhibit in support of his opposition to summary judgment. On October 24, 2000, the trial court entered an order sustaining the motion. In so doing, the trial court concluded that, "[Appellant] did not produce any evidence in the response [to Appellee's motion for summary judgment] which would create a genuine issue of fact for trial. Specifically, [Appellant] has not introduced or supplied this Court with any evidence to establish discharge." (Oct. 24, 2000, Judgment Entry). The trial court subsequently ordered Appellant to pay judgment in the amount of $20,063.56 plus 8% interest from November 4, 1992. (Oct. 31, 2000, Judgment Entry). Appellant filed a notice of appeal from both orders on November 7, 2000. In his first assignment of error, Appellant maintains that, "The trial court erred as a matter of law when it granted summary judgment to Appellee and determined that there was no genuine issue of material fact for trial and that Appellee was entitled to judgment as a matter of law." Appellant complains that in light of this Court's ruling in Gross I, this matter was not properly disposed of on a motion for summary judgment. In Gross I this Court resolved, among other things, that the words "paid by renewal" did not mean that a debt was discharged unless there was additional evidence to establish that the parties to the transaction intended such a discharge as contemplated under R.C. §1303.69 of the Uniform Commercial Code. Appellant contends that Appellee, therefore, should not have prevailed on a motion for summary judgment in the absence of evidence establishing what the words "paid by renewal" meant in this case. While accurately noting this Court's reasoning in Gross I, Appellant has grossly misconstrued our decision to mean that he was relieved of his obligation to respond to a second motion for summary judgment in the wake of that decision. This Court subjects the trial court's decision to grant summary judgment to de novo review. Smiddy v. The Wedding Party, Inc. (1987),30 Ohio St.3d 35, 36. In other words, this Court applies the same standard on review of a motion for summary judgment as the trial court did when it granted the motion. Lorain National Bank v. SaratogaApartments (1989), 61 Ohio App.3d 127, 129. Summary judgment proceedings are governed by Civ.R. 56. Under Civ.R. 56, summary judgment is appropriate only where the movant demonstrates that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Civ.R. 56(C); Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Civ.R. 56(C) provides that before summary judgment may be granted, the trial court must determine 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 only one conclusion, and viewing the evidence most strongly in favor of the non-movant, the conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 327, quoting Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Once a motion for summary judgment is introduced and supported in accordance with Civ.R. 56(E), the responding party is obliged to rebut it with, "specific facts showing that there is a genuine issue for trial." Reliance merely upon the pleadings is insufficient when the motion states facts negating an essential element for which the respondent carries the burden of proof. Civ.R. 56(E); Green v. B.F. Goodrich Co. (1993),85 Ohio App.3d 223, 227; citing, Celotex Corp. v. Catrett (1986),477 U.S. 317, 323. Consequently, "a motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. ofTexas (1991), 59 Ohio St.3d 108, 111. In the instant case, when Appellee filed his summary judgment motion he appended his affidavit and other materials tending to prove that Appellant was indebted to him in the amount of $20,063.56. In response, Appellant merely stated that if the case went to trial he would show that when the bank stamped "paid by renewal" on the promissory notes, it intended to discharge Appellant's debt. (Defendant's Response to Motion for Summary Judgment of Plaintiff, August 28, 2000, at p. 4). But Appellant failed to append even one piece of evidence in that regard. In fact, Appellant failed to support his argument with even his own affidavit to document such a claim. This case is virtually identical to Mechanics and Farmers Savings Bankv. Smith (1992), Conn. Super. LEXIS 2469. Though clearly not binding on this Court, the case raises questions similar to those presented here. As in the case at bar, the plaintiff in Mechanics and Farmers Bank sought summary judgment in an action to recover funds and interest due pursuant to a promissory note signed by the defendants. In response, the defendants argued that since the notes reflecting their debt were marked "paid by renewal," a genuine issue of fact existed with respect to plaintiff's intent to collect on the debt sufficient to preclude summary judgment. Id. at p. 2. Noting the complete lack of evidence supporting the factual predicate for defendants' claim, the court granted plaintiff's motion for summary judgment. In so ruling, the court speculated that the defendants' failure to submit an affidavit in support of their defense was, "undoubtably because they [could] not claim in good faith that they either paid the note in question, or signed a renewal not extinguishing their liability with respect to the note in question." Id. Given that the instant case has the same factual scenario, this Court is inclined to similar speculation. We remanded this matter explicitly to give Appellant the opportunity to demonstrate that his obligation under the notes had been discharged in accordance with Uniform Commercial Code provisions. If the notes had been discharged as Appellant maintains, Appellant was required and should have been able to provide some documentation of that fact. Appellant's failure to provide even an affidavit stating that he or someone else had paid the notes doomed him to failure on summary judgment. See, Uniontown Savings Loan Assoc. v.Enany (1980), 15 Pa. D. C.3d 22 (a party seeking to establish that a renewal note was intended to discharge and to substitute for an earlier note must overcome the presumption that the original note is valid by introducing some evidence of mutual assent to the purported novation). Appellant also attempts to argue that this Court should reconsider its holding in Gross I. In Gross I, this Court undertook to determine the legal implications of the words "paid by renewal." In that case, Appellant (who was the appellee at the time) insisted that this phrase meant that the debt had been paid. In contrast, Appellee (then the appellant) argued that the phrase only meant that the debt had been renewed. Unfortunately, neither party could muster legal authority to support their respective positions. Since the phrase includes both the words "paid" and "renewal," this Court opined that a reasoned construction of the phrase "paid by renewal" might prove more complicated than that proposed by either party. Gross I, at p. 7. Prior to Gross I, no Ohio court had defined the phrase "paid by renewal." Accordingly, this Court looked to other jurisdictions for guidance. Relying on a case entitled Gullete v. Federal Deposit InsuranceCorp. (1986), 231 Va. 486, we concluded that the phrase "paid by renewal" could mean both that a note was discharged or that it was simply renewed, depending on other factors. Gross I, at p. 10. This Court also analyzed the phrase in conjunction with the requirements of the Uniform Commercial Code under R.C. § 1303.69, establishing the manner in which obligations are properly discharged. R.C. § 1303.69 provides for the discharge of obligations by cancellation or renunciation as follows: "(A) A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument in either of the following ways: "(1) By surrender of the instrument to the party, destruction, mutilation, or cancellation of the instrument, cancellation or striking out of the party's signature, the addition of words to the instrument indicating discharge, or any other intentional voluntary act; "(2) By agreeing not to sue or otherwise renouncing rights against the party by a signed writing." After examining the promissory notes involved here, we concluded that the obligations they represented had not been canceled as contemplated by R.C. § 1363.69. Appellant's entreaties notwithstanding, nothing has occurred sinceGross I to undermine this Court's confidence in the validity of that decision. Moreover, additional research undertaken since Gross I was decided substantiates the conclusions we reached in that case. Under Kentucky law, for example, it has been held that, "a renewal note does not necessarily extinguish an existing obligation . . . The determination of whether a later note is a renewal of an earlier one depends on the intent of the parties." Clare v. First National Bank (In re Cooley) (6th Cir. 1980), 624 F.2d 55, 57. Similarly, in In re McQueen et al.(D.Vt. 1983), 27 B.R. 717, the court noted that even when certain notes had been stamped "paid by renewal," if the bank retains those notes, it evidences an intention to hold them as outstanding until payment of the new note is made. Id. at 722. Under the circumstances, this Court declines Appellant's invitation to revisit its holding in Gross I and Appellant's first assignment of error is overruled. In his second assignment of error, Appellant maintains as follows: "The trial court erred as a matter of law when it permitted Appellee to file a Motion for Summary Judgment without first obtaining prior leave of the Court." Appellant argues here that the trial court erred when it allowed Appellee to file his motion for summary judgment without prior leave of court. Appellant states that under Civ.R. 56(A), a motion for summary judgment cannot be filed without leave of court once the matter has been set for trial. The record indicates that this matter was set for trial and continued on several occasions. Therefore, Appellant contends, Appellee's motion was not properly filed without leave. According to Appellant, allowing a party to file a motion for summary judgment at any time without leave defeats the reason for having the rule in the first place. This assignment of error simply has no merit. Appellant correctly notes that Civ.R. 56(B) provides that a party may ask for leave of court when filing a motion for summary judgment after the action has been set for pretrial or trial. Nevertheless, the trial court has discretion to waive this requirement. Indermill v. UnitedSavings (1982), 5 Ohio App.3d 243, 244. Leave of court may be express or implied by the action of the court. Stewart v. Cleveland ClinicFoundation (1999), 136 Ohio App.3d 244, 259. Any claims of abuse of the trial court's discretion for granting leave of court after an action is set for trial must show that the court's order was unreasonable, arbitrary, or capricious. Paramount Supply Co. v. Sherlin Corp. (1984),16 Ohio App.3d 176, 179. In its order granting summary judgment, the trial court expressly waived the necessity of requesting leave of court. (10/24/2000 Judgment Entry, p. 2). In the absence of evidence to suggest that the trial court's decision allowing Appellant to file his motion without prior leave was unreasonable, arbitrary, or capricious, this assignment of error must be overruled. In his third assignment of error, Appellant argues that, "The trial court erred as a matter of law in the judgment entry of October 31, 2000, when it entered judgment in favor of Appellee in the amount of Twenty Thousand Sixty-Three and 56/100 Dollars ($20,063.56) plus interest at 8% per annum from November 4, 1992." Appellant maintains that there was no evidence to support Appellant's claim for the monetary damages awarded in this case. Appellant relies onGross I to support his argument that this Court found that he did not owe any monies toward the final promissory note because he did not sign that note in his individual capacity. Appellant states that Appellee failed to introduce any evidence to support his claim that he was entitled to judgment in the amount of $20,063.56, particularly after we absolved Appellant of liability on the sixth promissory note in Gross I. Once again, Appellant's assignment of error does not have merit. At the outset, this Court notes that Appellant had an opportunity to present evidence in the trial court to rebut Appellee's supported claim that he was entitled to $20,063.56. Appellant inexplicably opted to forego that opportunity. He is, therefore, not in a position now to complain that the amount of the judgment was too high. In any event, as Appellee points out, the amounts reflected on the five promissory notes attached as Exhibits A — E, far exceed the $20,063.56 that Appellant sought and the trial court awarded. Those notes reflect the following amounts: Note A — $15,000.00; Note B — $15,000.00; Note C — $10,000.00; Note D — $14,850.41; Note E — $10,000.00. Each of those notes was signed by Appellant as an individual. In total they present an aggregate debt of $64,850.41. Appellee presented evidence to the trial court that he was owed $20,063.56. Appellant presented no evidence of any kind. Appellant had a duty to provide at least some evidence to withstand summary judgment, and plainly failed in this regard. Under the circumstances, and given the record now before this Court, the award in this case was entirely proper. The trial court awarded Appellee judgment based upon the evidence submitted to the court on summary judgment. A judgment rendered by a court of general jurisdiction raises a presumption that the court had before it proper and sufficient evidence to support its judgment.Makranczy v. Gelfand (1924), 109 Ohio St. 325, 335. Our review of the record reflects nothing which would overcome this presumption, nor has Appellant directed this Court to anything in the record pertinent to this issue. Thus, Appellant's third assignment of error is overruled. As we have overruled all three of Appellant's assignments of error the trial court's decision to grant summary judgment in this case is hereby affirmed. Donofrio, J., concurs. Vukovich, P.J., concurs.

2016-07-06 06:36:44.104826+00

OPINION {¶ 1} Plaintiff-appellant, Jeffrey W. Aldrich, the administrator of the estate of Daniel C. Aldrich, appeals from a Columbiana County Common Pleas Court decision granting summary judgment in favor of defendant-appellee, American Manufacturers Mutual Insurance Company. {¶ 2} On June 12, 1999, 18-year-old Daniel C. Aldrich was traveling on Township Road 55 in Liberty Township, Hardin County. The vehicle he was driving collided with a vehicle operated by defendant, Patrick O'Connell. Daniel and his two passengers were killed as a result of the collision. It is undisputed that at the time of the accident, Daniel was operating his personal vehicle and was not within the scope of his employment. See Appellant's Brief, p. 4. {¶ 3} Appellant filed a complaint against Patrick O'Connell, William O'Connell, Pacific Indemnity Company, and a John Doe Insurance Company asserting claims on behalf of Daniel's estate for Daniel's bodily injuries and for wrongful death damages suffered by appellant, in his personal capacity as Daniel's father, and by Daniel's mother and siblings. Appellant subsequently amended the complaint to name appellee as a defendant via Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660. At the time of the accident, Daniel, his mother, and his father were all employed by Sterling China. Appellee had issued two business automobile policies and a commercial general liability policy to Sterling China. {¶ 4} Appellant settled with the O'Connells. Their insurer paid the policy limits to several individuals who made claims against them resulting from the accident. Appellant received $70,000 of those funds. {¶ 5} On November 26, 2001, appellee filed a motion for summary judgment alleging that an "other owned auto" exclusion precluded all of appellant's claims for UIM benefits. Appellant filed a competing motion for summary judgment asserting the "other owned auto" exclusion was ambiguous and therefore unenforceable. On March 12, 2002, the trial court granted appellee's summary judgment motion and overruled appellant's motion. The trial court ruled that the "other owned auto" exclusion clearly barred any recovery by appellant. {¶ 6} Appellant had one remaining claim regarding a commercial general liability policy, which he later dismissed, making the summary judgment order final and appealable. The trial court entered a judgment to that effect on April 14, 2003. Appellant filed his timely notice of appeal on May 8, 2003. {¶ 7} Appellant raises one assignment of error, which states: {¶ 8} "The trial court erred in ruling that the insurance policy American issued to Sterling China contained an `other owned auto' exclusion that clearly and unambiguously excluded the underinsured motorist claims of the decedent, his parents and his siblings." {¶ 9} Appellant's arguments presume he, his wife, and Daniel were all insureds via Scott-Pontzer, supra, as the deceased and his parents were all employees of Sterling China. {¶ 10} On November 19, 2003, this court issued a journal entry notifying the parties that the Ohio Supreme Court's recent decision in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,2003-Ohio-5849, potentially affected this case. We instructed the parties to file any supplemental authority as to why we should or should not dispose of this case in accordance with Galatis. Appellee subsequently filed a supplemental brief arguing thatGalatis controlled and the trial court's decision should be affirmed. Appellant did not file any supplemental authority. Additionally, on December 23, 2003, we issued a journal entry informing the parties that while oral argument had been requested, the request preceded the Galatis decision. Since we believed Galatis was possibly fully determinative of the merits of this case, we notified the parties that oral argument was considered waived and the matter was submitted for decision unless one of the parties filed a request for oral argument within ten days. We received no request from either party. {¶ 11} Per the Ohio Supreme Court's recent decision inGalatis, UM/UIM coverage does not extend to Daniel or his parents from their employer's policy ("Absent specific language to the contrary, a policy of insurance that names a corporation as an insured for uninsured or underinsured motorist coverage covers a loss sustained by an employee of the corporation only if the loss occurs within the course and scope of employment." Id. at paragraph two of the syllabus.) nor does it extend to Daniel's siblings ("Where a policy of insurance designates a corporation as a named insured, the designation of `family members' of the named insured as other insureds does not extend insurance coverage to a family member of an employee of the corporation, unless that employee is also a named insured." Id. at paragraph three of the syllabus). {¶ 12} Since coverage does not exist for Daniel, his parents, or siblings, the trial court's decision is hereby affirmed. Vukovich, J., concurs. DeGenaro, J., concurs.

2016-07-06 06:36:43.722053+00

OPINION {¶ 1} Defendant-appellant, Robert B. Smith, Jr., appeals from his conviction in the Butler County Court of Common Pleas for obstruction of justice. {¶ 2} The statute for the offense of obstruction of justice, as applicable here, states that no person, with purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment of another for a crime, shall communicate false information to any person. See R.C. 2921.32. {¶ 3} Appellant was charged in this case based upon allegations that when police *Page 2 were attempting to ascertain the identity of one of his employees, appellant told police that his employee's last name was Williams when it was Martin, and told officers that this same employee had left shortly before the employee was found by police still inside the building. Authorities would later discover that there was a felony charge pending against the employee in another county. {¶ 4} Appellant's case was tried to a jury, which returned a guilty verdict. Appellant filed this appeal, presenting three assignments of error, which we will address out of sequence. {¶ 5} Appellant argues under his third assignment of error that his conviction should be overturned because the prosecutor committed misconduct in closing arguments. {¶ 6} When reviewing the statements a prosecutor makes during closing argument for prosecutorial misconduct, prosecutors are given a certain degree of latitude in summation. State v. Smith (1984),14 Ohio St. 3d 13; State v. Robinson, Jefferson App. No. 05 JE 8, 2007-Ohio-3501, ¶ 80. {¶ 7} A prosecutor may comment upon the testimony and suggest the conclusions to be drawn from it, but a prosecutor cannot express his personal belief or opinion as to the credibility of a witness or as to the guilt of the accused, or go beyond the evidence which is before the jury when arguing for a conviction. Smith at 14 (prosecutor's duty in closing arguments is to avoid efforts to obtain a conviction by going beyond the evidence that is before the jury). {¶ 8} The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether the remarks prejudicially affected substantial rights of the defendant. State v.Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, ¶ 62. {¶ 9} The state's closing argument is reviewed in its entirety to determine whether the allegedly improper remarks were prejudicial.State v. Treesh, 90 Ohio St. 3d 460, 466, 2001-Ohio-4. *Page 3 We will not deem a trial unfair if, in the context of the entire trial, it appears beyond a reasonable doubt that the jury would have found the defendant guilty even without the improper comments. Smith at 15. {¶ 10} A review of the record in the case at bar indicates that appellant testified at trial that he worked for his mother-in-law at her small used car business, Let's Make a Deal. Appellant indicated that they may sell four or fewer cars a month. Appellant testified that he did not communicate false information about the employee's last name to hinder police because the employee provided the name of Williams and produced an Ohio identification card with the same name. In addition, appellant testified that he believed the employee left the office area before police attempted to enter the building and did not know the employee had reentered the building. Appellant admitted that he had two previous drug "cases," on his record, including a recent case in Florida. {¶ 11} Appellant's trial counsel told the jury in his closing remarks that appellant admitted that the car business was not lucrative, but he believed the prosecutor's cross-examination on that subject was "haught[y]." Appellant's counsel also told the jury about his experience as a youth working to overcome a regional accent so that he could be understood by others. The statements were made to support trial counsel's argument that appellant's diction may have been difficult to understand and, due to his level of education, he might have been confused by or slow to respond to the prosecutor's questions. {¶ 12} The prosecutor in final or rebuttal closing argument told the jury that he would also "share with you a little about [my upbringing], okay." "I grew up and my dad, the entire span of my life growing up was a used car salesman, okay. He worked on these little [car] lots like Let's Make a Deal all the time. And they were called hot lots. That's what he called them and they had nothing to do with cars they were selling because my dad also struggled with drugs and still does to this day in Florida of all places. These little lots are not *Page 4 businesses. They are fronts. And so you get a little piece of blacktop and you throw a bunch of cruddy cars out there and you may sell one or two, but that's not really your business. Let's Make a Deal is not a bad car business. It's a good front." {¶ 13} Appellant's counsel objected and at a conference at the bench, the trial court stated to the prosecutor, "You're putting yourself on a slippery slope [toward misconduct] calling it a front," and instructed the prosecutor to "not go any further than that." No instruction was given to the jury at that time. {¶ 14} The prosecution argues that even if the comments by the prosecutor were an improper introduction of matters outside the record, they were brief, made in response to defense arguments, and did not result in prejudice to appellant. We disagree. {¶ 15} For the offense of obstruction of justice, the jury was charged with the responsibility of determining appellant's purpose when he provided the information to police, his knowledge of the facts or a mistake in facts, and his credibility when he testified on his own behalf. {¶ 16} We see in the record no evidence or defense argument justifying the prosecutor's remarks that appellant's car business was a "front," after implicating these types of businesses as fronts for illegal activity. {¶ 17} The prosecutor's comments went beyond the evidence to improperly introduce an element of additional wrongdoing in a case in which appellant's purpose for providing the information to police, and his credibility in his denial of culpability were essential to a determination of guilt. {¶ 18} We note that the trial court instructed the jury that arguments of counsel are not evidence, but no curative instruction was requested or given immediately after the prosecutor's comments were made, and in fact, the prosecutor continued with his closing as provided in several additional pages of transcript. See State v. Smith, 14 Ohio St.3d at 15 *Page 5 (where improper insinuations and assertions of personal knowledge by prosecution are apt to carry great weight against the accused when they should properly carry none, some more definite guidance in the form of specific, curative instructions from the court was required). {¶ 19} We have reviewed the record before us and find that the prosecutor's remarks were improper and prejudicially affected the substantial rights of the defendant. Appellant's third assignment of error is sustained. {¶ 20} Appellant argues under his second assignment of error that his conviction should be overturned because his trial counsel was ineffective for failing to file a motion to suppress evidence and for failing to request a curative instruction or move for a mistrial following prosecutorial misconduct in closing arguments. {¶ 21} In Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052, the United States Supreme Court established a two-prong test in addressing a claim of ineffective assistance of counsel wherein a defendant must show that counsel's performance was deficient and that such deficient performance resulted in prejudice. {¶ 22} We have already established that the prosecutor's remarks in closing argument were improper and prejudiced appellant. Appellant's trial counsel objected to the comments and counsel and the trial court discussed the issues at a sidebar conference. However, appellant's counsel did not request an immediate curative instruction to the jury or make a motion for a mistrial. The comments, therefore, were left unchallenged before the jury. We find that the performance of appellant's trial counsel was deficient and that performance resulted in prejudice to appellant. {¶ 23} Appellant argues that his trial counsel should have filed a motion to suppress evidence of the seizure of the employee at the office because police searched the office in violation of appellant's constitutional rights. Appellant's assertion is without merit. {¶ 24} It is easy for a defendant to second-guess his counsel after conviction and for a *Page 6 court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. State v. Griffin, Cuyahoga App. No. 82979, 2004-Ohio-2155, ¶ 8, citing Strickland. However, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Strickland at 689. {¶ 25} The failure to file a suppression motion does not constitute per se ineffective assistance of counsel. State v. Adams,103 Ohio St. 3d 508, 2004-Ohio-5845, ¶ 31. "Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another." Id., citing Strickland at 693. {¶ 26} We see nothing in the record to indicate that trial counsel's decision was anything other than trial strategy, particularly considering the emphasis by appellant's counsel on the assertions that appellant permitted police to enter the building, cooperated with police when he understood their purpose in entering the building, and had nothing to hide. {¶ 27} Accordingly, appellant's second assignment of error is sustained in part and overruled in part. {¶ 28} Appellant argues under his first assignment of error that the evidence was insufficient to sustain the guilty verdict and the verdict was against the manifest weight of the evidence. {¶ 29} Based upon our decision to sustain appellant's third assignment of error, appellant's first assignment of error is rendered moot. {¶ 30} Judgment reversed and remanded to the trial court for further proceedings consistent with law and this opinion. YOUNG, P.J., and POWELL, J., concur.

2016-07-06 06:36:43.786768+00

OPINION Michael Sanders, a juvenile, appeals a judgment of the Court of Common Pleas, Juvenile Division, of Stark County, Ohio, which found him delinquent by reason of possession of cocaine in violation of R.C. 2925.11 and unruly by reason of curfew violation in violation of R.C. 2151.022. Appellant assigns three errors to the trial court: ASSIGNMENTS OF ERROR ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT'S FINDING OF GUILTY OF POSSESSION OF COCAINE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT'S DENYING LEAVE TO FILE AN OBJECTION TO THE MAGISTRATE'S FINDING CONSTITUTED A DENIAL OF DUE PROCESS AND THE RIGHT TO COUNSEL. ASSIGNMENT OF ERROR NO. 3 EVIDENCE OF MONEY TAKEN FROM DEFENDANT ON JULY 14, 1998 WITH TRACE OF COCAINE WAS IRRELEVANT TO CHARGE ON JUNE 27, 1998 AND THEREFORE SHOULD HAVE BEEN EXCLUDED. ADMISSION OF SAID EVIDENCE RESULTED IN A DENIAL OF DUE PROCESS FOR DEFENDANT. The record indicates two Canton Police Officers observed two persons standing together on Second Street and Belden Avenue in Canton, Stark County, Ohio. When the two individuals saw the police car, one began to walk away. As this person walked away, the officers observed him throw a brown paper bag over a fence. The officer approached the individual, who was later identified as the appellant, and asked him for some identification. Appellant allegedly told the officer his name was Jimmy or Jerry Washington, and that he did not have any identification. Appellant then ran away. One officer gave chase, but was unable to catch the appellant, while the other officer retrieved the brown bag that had been thrown over the fence. The contents of the bag tested positive for crack-cocaine. The officers spoke with the other individual observed standing with appellant, and that person identified the suspect as Jerry. The officers were then called to a shots-fired call in the same area. A witness there identified appellant as the person who threw the bag over the fence. After responding to the call, the officers went back to the station house and found appellant's picture in a yearbook. The officers admitted they never looked for Jerry or Jimmy Washington in the yearbook or anywhere else. The officers obtained an arrest warrant for appellant a few days after the incident. On July 14, 1998, one of the officers who had encountered appellant on June 22, made a traffic stop and recognized appellant as the driver of the vehicle. Appellant was arrested, and $425.00 was taken from him at the time. The money later tested positive for traces of cocaine. I In his first assignment of error, appellant argues the court's finding he was delinquent because of the possession of cocaine was against the manifest weight an sufficiency of the evidence. In State v. Thompkins (1997), 78 Ohio St. 3d 380, the Ohio Supreme Court explained the similarities and distinctions drawn between concepts of manifest weight and sufficiency of the evidence. The Supreme Court noted the distinctions are both qualitative and quantitative in nature. The concept of sufficiency of the evidence refers to the legal standard which the trial court applies to determine whether the evidence is legally sufficient to support a verdict as a matter of law, Thompkins at 386, citations deleted. Even if a judgment is sustained by sufficiency of the evidence, it may nevertheless be against the weight of the evidence, because weight of the evidence concerns the amount of credible evidence offered in a trial in support of one side of the issue, Thompkins at 387, citations deleted. Sufficiency of the evidence is a question of law for the trial court and weight of the evidence is a question of fact for the jury. Appellant characterizes the two officers' testimony as inconsistent, and thus the credibility and reliability of their testimony is in question. Appellant also presented an alibi that he was not in the area of Second and Belden N.E. at the time of the incident on June 27, 1998. We have reviewed the record, and we find the trial court's verdict was not contrary to the sufficiency and weight of the evidence. Although appellant presented a strenuous defense, nevertheless there was competent and credible evidence presented from which the trial court could find appellant was the person who had possession of the paper bag containing cocaine on the day in question. The first assignment of error is overruled. II In his second assignment of error, appellant argues the trial court erred when it overruled appellant's motion for leave to file an objection to the magistrate's finding. At the time the magistrate filed his judgment, appellant was represented by a private attorney. On August 3, 1998, the court appointed the Stark County Public Defender's office to represent the juvenile further. On August 6, 1998, the Public Defender's office filed a motion to withdraw, citing a conflict of interest. The court sustained the motion to withdraw on August 12, 1998. New counsel was not appointed to represent appellant until August 20, 1998, and on that same day, the new counsel filed a motion for a leave to file an objection. Pursuant Juv. R. 40, appellant had fourteen days to file his objection to the magistrate's decision, and the fourteen days had already passed. The court overruled the motion for leave to file the objections. Appellant argues he was unrepresented from the time between August 12 and August 20 through no fault of his own. He had counsel from August 3, when the magistrate filed his decision, until August 12 when counsel was permitted to withdraw. When appellant acquired new counsel on August 20, he immediately moved for leave to file an objection. Appellant asks us to hold the time he was left without representation, due to no fault of his own, and at a critical stage of the proceedings, should not be counted in computing the time to file the objection. This case represents a very unusual set of circumstances. We hold on the very specific and unusual facts of this case, the time for filing the objection was tolled during the time appellant was unrepresented through no fault of his own. Accordingly, we find the trial court should have permitted counsel leave to file the objections, particularly given the motion was made the same day counsel was appointed. The second assignment of error is sustained. III In his third assignment of error, appellant urges the trial court should have excluded evidence he was carrying money with traces of cocaine on it on July 14, because it was irrelevant to the charge of possession of cocaine on June 27. The State points out appellant did not object to the admission of the exhibit. For this reason, we may review this assignment of error only under the doctrine of plain error. Pursuant to Crim. R. 52(B), we may only take notice of plain error if it affects the substantial rights of the defendant. The Supreme Court has held we may only take notice of plain error if the alleged error is outcome determinative, see State v.D'Ambriosio (1993), 67 Ohio St. 3d 185. In other words, we cannot find plain error unless we believe that, but for the error, the outcome of the trial would clearly have been otherwise, see Statev. Biros (1997), 78 Ohio St. 3d 426. We cannot say in this case we are convinced appellant would have been acquitted if this evidence had not been admitted. Even setting aside this evidence, there was sufficient competent and credible evidence from which the court could find appellant delinquent. Accordingly, we find the trial court did not commit plain error in admitting this evidence. The third assignment of error is overruled. For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, of Stark County, Ohio, is affirmed in part and reversed in part, and the cause is remanded to that court for further proceedings in accord with law and consistent with this opinion. By Gwin, J., Wise, P.J., and Farmer, J., concur. ______________________________ ______________________________ ______________________________ JUDGES WSG:clw 0125 JUDGMENT ENTRY CASE NO. 1998-CA-0235 For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas, Juvenile Division, of Stark County, Ohio, is affirmed in part and reversed in part, and the cause is remanded to that court for further proceedings in accord with law and consistent with this opinion. Costs split between the parties. ______________________________ ______________________________ ______________________________ JUDGES

2016-07-06 06:36:42.819228+00

Gorman

This appeal presents a single issue: whether the personal-injury claim of the plaintiff-appellant, Adrienne Sherman, filed in the Hamilton County Court of *Page 72 Common Pleas, was a compulsory counterclaim which she was required to assert in the Hamilton County Municipal Court in the landlord's earlier action against her for forcible entry and detainer and rent. We hold that the common pleas court correctly held in its written decision that, under Civ.R. 13(A), Sherman's personal injury claim was a compulsory counterclaim, and therefore summary judgment for the landlord was properly granted. I Sherman, a tenant in a second-floor apartment, alleged that on November 15, 1992, she sustained personal injuries from a fall on stairs in a common area of her landlord's apartment building. Forty-nine days later, on January 3, 1993, her landlord filed an action against her in the municipal court for forcible entry and detainer and for rent. On February 1, 1993, the municipal court issued a writ of restitution to the landlord. On March 1, 1993, the municipal court entered default judgment against Sherman for rent on the landlord's second count. On August 25, 1994, the municipal court journalized an entry of satisfaction of the judgment. On November 10, 1994, Sherman filed in the court of common pleas a complaint against the landlord for damages caused by her fall on the stairs, which she alleged were negligently maintained. On February 7, 1995, the common pleas court granted the landlord's motion for summary judgment because of Sherman's failure to assert the personal injury claim as a counterclaim in her landlord's previous action for forcible entry and detainer and for rent. II The Ohio Landlord and Tenant Act, specifically R.C.5321.04(A)(3), provides that a landlord can institute an action in forcible entry and detainer for breach of the tenant's obligations contained in the parties' rental agreement. Forcible entry and detainer is an action at law based on contract.Behrle v. Beam (1983), 6 Ohio St.3d 41, 6 OBR 61,451 N.E.2d 237, paragraph one of the syllabus. It is subject to a counterclaim by the tenant. Jemo Assoc., Inc. v. Garman (1982),70 Ohio St.2d 267, 24 O.O.3d 358, 436 N.E.2d 1353. Counterclaims in Ohio are governed by Civ.R. 13, which provides: "(A) A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction * * *." In defining what transactions constitute a compulsory counterclaim, the Ohio Supreme Court has adopted the "logical relation" test. Rettig Ent., Inc. v. *Page 73 Koehler (1994), 68 Ohio St.3d 274, 626 N.E.2d 99. The purpose behind the test is "to avoid multiplicity of actions and to achieve a just resolution by requiring in one lawsuit the litigation of all claims arising from common matters." Id. at 278, 626 N.E.2d at 103. To this end, in determining whether claims arise from the same transaction or occurrence, i.e., involve "common matters," Ohio courts employ a liberal construction favoring compulsory counterclaims under Civ.R. 13(A), as do their federal counterparts under Fed.R.Civ.P. 13(a).Maduka v. Parries (1984), 14 Ohio App.3d 191, 192, 14 OBR 209, 211, 470 N.E.2d 464, 466. Although one of many different standards employed by courts to determine whether a counterclaim is compulsory, the logical-relation test is recognized to be the most flexible in its approach. "Unlike [the other tests], under the [logical-relation test] * * * the principal consideration in determining whether a counterclaim is compulsory rests on the efficiency or economy of trying the counterclaim in the same litigation as the main claim. As a result, the convenience of the court, rather than solely the counterclaim's relationship to the facts or issues of the opposing claim, will be controlling in counterclaim classification. The hallmark of this approach, therefore, is flexibility. Although the [logical-relation] test has been criticized for being overly broad in scope and uncertain in application, it has by far the widest acceptance among the courts." Friedenthal, Civil Procedure (1985) 352, Section 6.7. Emphasizing the flexibility afforded by the logical-relation test, the court in Rettig noted: "`"Transaction" is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship. * * * That they are not precisely identical, or that the counterclaim embraces additional allegations * * * does not matter. To hold otherwise would be to rob this branch of the rule of all serviceable meaning, since the facts relied upon by the plaintiff rarely, if ever, are, in all particulars, the same as those constituting the defendant's counterclaim.' Moore v.New York Cotton Exchange (1926), 270 U.S. 593, 610,46 S.Ct. 367, 371, 70 L.Ed. 750, 757." Rettig, supra,68 Ohio St.3d at 278-279, 626 N.E.2d at 103. Sherman principally argues that because her claim for damages sounds in tort, it clearly has no "logical relation" to her landlord's previous action for entry and detainer and for rent, which arises out of contract. In response to this argument we note initially that Sherman's claim for damages does not sound entirely in tort. Her claim is based upon her landlord's alleged failure to maintain a stairwell in a common area of the premises. The complaint sets forth *Page 74 two separate counts. The first count is based in common-law negligence. The second count, however, is a claim for damages alleging a breach of R.C. 5321.04(A)(3), the section of the Landlord and Tenant Act which expressly requires a landlord who is a party to a rental agreement to "[k]eep all common areas of the premises in a safe and sanitary condition." Under R.C.5321.12, a party has a statutory remedy for damages for the breach of any duty imposed under the Act. It is therefore inaccurate to characterize Sherman's personal injury claim as purely a tort claim. However, even if Sherman's claim for damages had sounded entirely in tort, as she argues, the difference between the nature of her action and that of her landlord would not be dispositive of the issue before us. As this court has previously pointed out, a tort claim may be a compulsory counterclaim in a contract action. Koukios v.Marketing Dynamics, Inc. (Sept. 7, 1994), Hamilton App. No. C-920913, unreported, 1994 WL 481769. In Koukios, a tort claim for conversion of trade secrets was held to be a compulsory counterclaim in an action for breach of contract. The difference in the nature of the actions is not paramount; rather, the issue is whether the two claims have a sufficient legal or factual nexus to satisfy the "logical-relation" test. To determine if there is a sufficient connection between her landlord's previous action and Sherman's claim for damages, it is important to note the extent to which the Landlord and Tenant Act changed the previous common-law relationship of landlords and tenants. As the Ohio Supreme Court recognized in Shroades v.Rental Homes (1981), 68 Ohio St.2d 20, 23, 22 O.O.3d 152, 154,427 N.E.2d 774, 776, common-law tort immunities for landlords not in possession had historically made it difficult for tenants to recover for injuries sustained because of defective rental premises. Compounding the difficulty was the torpid pace with which courts had come to recognize implied warranties of habitability. The Ohio Landlord and Tenant Act negated the common-law immunities and in their stead imposed upon the landlord a series of specific statutory duties which arise as a matter of law whenever the parties enter into a rental agreement. As we have seen, one of these legislatively enacted duties is to "[k]eep all common areas of the premises in a safe and sanitary condition." The Act not only imposes specific duties but provides a statutory remedy for damages. R.C.5321.12. While the Act's statutory remedies have been deemed "cumulative" to those that existed at common law, id. at 25, 22 O.O.3d at 155, 427 N.E.2d at 777, the landlord's duties set forth in the Act nonetheless have a decided bearing upon a tenant's negligence action since their breach constitutes negligence per se. Id. See, also, Anderson v. Ceccardi (1983),6 Ohio St.3d 110, 6 OBR 170, 451 N.E.2d 780. While sounding in tort, a negligence action brought against a landlord for defective rental premises relies heavily upon evidence of the landlord's noncompliance *Page 75 with the Landlord and Tenant Act and the duties that arise from the rental agreement. It is disingenuous, therefore, to suggest that simply because her landlord's action for forcible entry and detainer and for rent was a contract action, and Sherman's claim for damages contained a component of common-law negligence, the two actions do not have any nexus. The rental agreement upon which the landlord had earlier sued gave rise to the landlord's statutory duty to keep the common area safe, which in turn provided Sherman with a separate claim for damages based upon a breach of the Landlord and Tenant Act. Furthermore, Sherman's negligence action depends upon evidence that her landlord tortiously breached the statutory duties that the Landlord and Tenant Act attaches to the rental agreement. The Landlord and Tenant Act, specifically R.C. 5321.03(B), expressly provides that the landlord's action against the tenant "does not prevent the tenant from recovering damages for any violation by the landlord of the rental agreement." Under R.C. Chapter 1923, any defense relating to forcible entry and detainer may be asserted at trial and a counterclaim may be interposed. R.C. 1923.06(B). For these reasons, we hold that there was a distinct "logical relation" between Sherman's action for damages and her landlord's previous action. Both actions involved rights and duties arising from the rental agreement. Accordingly, the logical-relation test for a compulsory counterclaim, rather than merely a permissive counterclaim, is satisfied. See McCormac, Ohio Civil Rules Practice (2 Ed. 1988) 199, Section 8.04. Our holding in this regard is in accordance with the decision of the Cuyahoga County Court of Appeals in Maduka, supra,14 Ohio App.3d 191, 14 OBR 209, 470 N.E.2d 464, wherein the court upheld the dismissal of the tenant's suit upon the basis that her claims, including a tort claim for personal injury, were precluded as compulsory counterclaims to the landlord's previously filed and pending action for eviction and damages. As the court in Maduka stated in applying the logical-relation test: "It is logical to require the plaintiff to raise her claims in the present case as counterclaims in the Housing Court. For analysis of her contention reveals that all, including those sounding in tort, arise from complaints stemming from the landlord tenant relationship." Id. at 192, 14 OBR at 211,470 N.E.2d at 466. A similar result was also reached in Lujan v. Smith (Nov. 11, 1983), Lucas App. No. L-83-197, unreported, 1983 WL 6990, in which it was held that a landlord's claim for rent was a compulsory counterclaim to a tenant's claim for damages stemming from the landlord's failure to provide natural gas services to the rental premises. The court in Lujan stated that a logical relationship existed *Page 76 between the two claims because they both "arose out of the same transaction, i.e., the rental lease agreement, as appellee became a landlord, with all attendant duties, and appellant became a tenant, with all attendant obligations, by virtue of entering into such an agreement." We disagree with Sherman's argument that it is an absurdity to bar her claim for personal injuries upon the basis of her landlord's previous action for possession and unpaid rent given their essential differences. Civ.R. 13(A) contemplates that the interests of judicial economy and fairness will be served. Sherman's alleged injuries occurred well in advance of the action brought by her landlord. She waited almost a year to file her claim. At the beginning of that year, she was involved in litigation with her landlord involving the action for forcible entry and detainer and for rent. It was not until that action was fully concluded and she had satisfied the judgment against her that she brought her present personal injury claim. Although Sherman argues that because the amount of her counterclaim exceeded the municipal court's monetary jurisdiction, her claim for damages from personal injuries was not the subject of a compulsory counterclaim under Civ.R. 13(A), we find no merit in this position. In Behrle v. Beam,6 Ohio St.3d at 45, 6 OBR at 64, 451 N.E.2d at 240, fn. 1, the Ohio Supreme Court said that "[i]f a party has a compulsory counterclaim and its amount is over the monetary jurisdiction of the municipal court, it still must be pleaded in the responsive pleading." The remedy is to certify the compulsory counterclaim to the court of common pleas pursuant to Civ.R. 13(J). The policy of deciding all claims arising from the parties' obligations under the rental agreement, including those that result as a matter of law from their relationship under the Landlord and Tenant Act, is in furtherance of judicial economy. Sherman's claim for damages based upon the landlord's alleged failure to maintain the premises and the landlord's previous action to oust Sherman from possession have a common source — the rental agreement and the obligations and duties which the Landlord and Tenant Act imposes as a consequence of the agreement. Therefore, in view of the liberal construction given to Civ.R. 13(A) in favor of compulsory counterclaims, they should have been litigated together. The judgment of the court of common pleas is affirmed. Judgment affirmed. HILDEBRANDT, J., concurs. PAINTER, J., dissents. *Page 77

2016-07-06 06:36:43.069203+00

Black

Effective March 16, 1983, the Ohio General Assembly amended the provisions of R.C. 4507.16 relating to the suspension or revocation of the driver's licenses of persons who are convicted of or plead guilty to certain listed offenses. The amendment added a provision for the "permanent" revocation of a driver's license in the event he committed a vehicular homicide while under the influence of alcohol, a drug of abuse or a combination of them. The single question is whether that added provision for "permanent" revocation is applicable to and may be imposed on an offender whose offense was committed prior to the effective date of the amendment (March 16, 1983), and whose trial was held after that date. We answer that question in the negative. Defendant, Gary R. Smith, was charged with recklessly causing the death of another on October 4, 1982, while defendant was operating a vehicle, in violation of R.C. 2903.06. On June 20, 1983, the court found him guilty as charged, a jury having been waived, and in addition, the court found that he was under the influence of alcohol at the time of the offense. He was sentenced on August 11, 1983, at which time, his license was revoked under R.C. 4507.16(C), effective March 16, 1983, in addition to other penalties.1 An objection was duly made to the revocation. Prior to March 16, 1983, R.C. 4507.16 read in pertinent part: "The trial judge of any court of *Page 115 record shall, in addition to, or independent of all other penalties provided by law or by ordinance, suspend for not lessthan thirty days nor more than three years or revoke the license of any person who is convicted of or pleads guilty to any of the following: "(A) Homicide by vehicle; "(B) Operating a motor vehicle while under the influence ofalcohol or any drug of abuse; "(C) Perjury or the making of a false affidavit under sections4507.01 to 4507.39 of the Revised Code, or any other law of this state requiring the registration of motor vehicles or regulating their operation on the highway; "(D) Any crime punishable as a felony under the motor vehiclelaws of this state or any other felony in the commission of whicha motor vehicle is used;" (Emphasis added.) After March 16, 1983, R.C. 4507.16 read in pertinent part: "(A) The trial judge of any court of record, in addition to or independent of all other penalties provided by law or by ordinance, shall suspend for not less than thirty days nor morethan three years or revoke the operator's or chauffeur's license or permit or nonresident driving privileges of any person who is convicted of or pleads guilty to any of the following: "* * * "(2) Any crime punishable as a felony under the motor vehicle laws of this state or any other felony in the commission of which a motor vehicle is used; "* * * "(7) A violation of section 2903.06 or 2903.07 of the Revised Code, unless the jury or judge as trier of fact in the case findsthat the offender was under the influence of alcohol or any drugof abuse at the time of the commission of the offense. "* * * "(B) Except as otherwise provided in this section, the trial judge of any court of record, in addition to or independent of all other penalties provided by law or by ordinance, shall revokethe operator's or chauffeur's license or permit or nonresident operating privilege of any person who is convicted of or pleadsguilty to a violation of section 4511.19 of the Revised Code orsuspend the license, permit, or privilege as follows: [Here follow provisions for various suspensions: (1) sixty days to three years if no prior violation of R.C. 4511.19 within five years; (2) one hundred twenty days to five years if one prior violation of R.C. 4511.19 within five years; and (3) one hundred eighty days to ten years, if more than one violation of R.C.4511.19 within five years.] "(C) The trial judge of any court of record, in addition to or independent of all other penalties provided by law or by ordinance, shall permanently revoke the operator's or chauffeur's license or permit or nonresident operating privileges of any person who is convicted of a violation of section 2903.06 or2903.07 of the Revised Code if the jury or judge as trier offact in the case in which the person is convicted finds that theoffender was under the influence of alcohol or any drug of abuse,or the combined influence *Page 116 of alcohol or any drug of abuse, at the time of the commission ofthe offense." (Emphasis added.) For purposes of simplicity, we shall refer to the foregoing as the 1983 amendment. R.C. 4511.19 prohibits the operation of any vehicle if the driver is under the influence of alcohol or a drug of abuse or any combination of them, or if he has a concentration of alcohol in his blood, breath or urine in excess of certain measurements. The changes in R.C. 4511.19 and the 1983 amendment, all of which were in an Act that became effective on March 16, 1983, make clear beyond a doubt the legislative intent to strengthen the laws against "driving under the influence" (to use the common term) and to impose greater penalties on violators. Relying on the words chosen by the legislature and the design of the 1983 amendment, we hold that while R.C. 4507.16 continues to give the court discretion about revoking or suspending the driver's licenses of certain violators listed in division (A), it imposed in division (C) a mandatory revocation2 of the driver's license of any person who caused the death of another while operating his vehicle under the influence of alcohol or any drug of abuse or any combination of them. This mandatory provision did not exist at the time of defendant's offense. The imposition of the mandatory revocation was error, for two reasons. First, the application of the 1983 amendment to this defendant violated the Ex Post Facto Clause of Section 10, Article I of the United States Constitution3 and the retroactive laws provision of Section 28, Article II of the Ohio Constitution.4 The substitution of a mandatory revocation of license, removing the possibility of any exercise of discretion by the sentencing court, changed the legal consequences of causing a death by driving while drunk, and made those consequences more onerous. It enhanced the penalty. As applied to an offense committed before the 1983 amendment, it violated theex post facto laws prohibition against enhancement of penalties. Cf. Weaver v. Graham (1981), 450 U.S. 24 (it is a violation to reduce the rate of "good time" or "gain time" that shortens a convicted person's term of imprisonment for good behavior, by an enactment subsequent to sentence); State, ex rel. Corrigan, v.Barnes (1982), 3 Ohio App.3d 40 (it is a violation to deny a felon the right to hold public office under a statute enacted after the commission of the offense); In re Flora (App. 1938), 27 Ohio Law Abs. 355 (it is a violation to change the place of imprisonment from a reformatory to a penitentiary under a law enacted after sentencing). The second reason the court erred is that the proper construction of the 1983 *Page 117 amendment is that it is prospective in operation and does not affect penalties incurred prior thereto. R.C. 1.48 requires that the 1983 amendment shall be applied prospectively, because the statute is not expressly made retrospective.5 R.C. 1.58(A)(3) does not allow the 1983 amendment to affect any penalty or punishment incurred prior to the amendment.6 These two statutes may be said to embody the overall legislative intention, applicable to all its enactments, about how statutes shall be interpreted and applied. The single assignment of error has merit. We reverse those parts of the judgment below that imposed the sentence on defendant and then suspended it on certain conditions, without disturbing the finding of guilt of violation of R.C. 2903.06, and we remand this cause for resentencing.7 Judgment reversed in part and cause remanded. SHANNON, P.J., and DOAN, J., concur. 1 The judgment entry sentenced defendant to imprisonment for two to five years and ordered him to pay costs; it then suspended the imprisonment and placed defendant on probation for four and one-half years on condition that he comply with the general conditions of probation, serve one hundred eighty days in the Community Correctional Institute, and pay restitution of $3,400. The court's intent to impose the mandatory revocation of driver's license required under R.C. 4507.16(C), as effective March 16, 1983, is demonstrated beyond a doubt by the following notation in the judgment entry: "Drivers [sic] license permanently revoked. (ORC 4507.16[C])." This can refer only to the amendment of March 16, 1983, because only that amendment contains provisions for "permanent" revocation. In addition, the court expressly set forth in the record of the proceedings its determination that the statute as amended March 16, 1983 was applicable to defendant's violation and that the court permanently revoked the license under that amendment. 2 For the purposes of this decision, we need not determine the meaning of "permanently" in the 1983 amendment. It may, or may not, have a significance for a future application for a license made by a driver whose license has been revoked under R.C. 4507.16(C), but we are not presented with that issue. The word "permanently" seems to us to enforce our conclusion that division (C) imposes a mandatory revocation. 3 In pertinent part, Section 10 reads: "No State shall * * * pass any * * * ex post facto law * * *." 4 In pertinent part, Section 28 reads: "The general assembly shall have no power to pass retroactive laws * * *." It is clear beyond cavil that this prohibits ex post facto laws, which are defined as those criminal statutes that make punishable what was innocent at the time committed, or make a crime more serious than it was when committed, or inflict a punishment greater than when committed, or eliminate a defense available when committed. 5 R.C. 1.48 reads in full: "A statute is presumed to be prospective in its operation unless expressly made retrospective." 6 The pertinent parts of R.C. 1.58 read: "The reenactment, amendment, or repeal of a statute does not, * * *: "* * * "(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal;" 7 Upon resentencing, the court must abide by the law as effective on the date of the aggravated vehicular homicide. R.C.4507.16 as then effective gave the court discretion about revocation of defendant's license, and an appellate court has no authority to exercise that discretion for the trial court. This is all the more significant when the trial court exercised discretion at the original sentencing by suspending imprisonment and placing defendant on probation for a certain period under selected conditions. *Page 118

2016-07-06 06:36:43.1446+00

Nichols

The state of Ohio prosecutes this appeal on questions of law from the judgment of the Common Pleas Court of Cuyahoga county, wherein *Page 408 that court sustained a demurrer to the first and third counts of an indictment returned by the grand jury against David Brunswick, appellee herein, purporting to charge appellee with the crime of blackmail under Section 13384, General Code. The demurrer was sustained by the lower court on the ground that no offense punishable under the laws of Ohio was stated in either count. Upon call of this appeal for hearing upon oral arguments, on November 24, 1941, counsel for appellee interposed an oral motion to dismiss the appeal for failure of appellant to file a brief as provided in Section 13459-3, General Code, it being contended by appellee "that the Court of Appeals loses jurisdiction in a criminal case if the appellant does not file his brief within the statutory period" and "that jurisdiction can not be waived." It is conceded by appellant that its brief was not filed with the certified transcript of the record prepared by the clerk. The judgment of the lower court was entered June 9, 1941, the notice of appeal being filed within thirty days from that date, and the assignment of errors was filed July 9, 1941, but the brief of appellant was not filed until November 21, 1941. If the requirement of Section 13459-3, General Code, with reference to the filing of a brief by appellant, is a jurisdictional requirement, then the motion of appellee must be sustained, as we agree that jurisdiction can not be waived or conferred by agreement of parties. It is stated orally by counsel for appellant that the recognized practice in the Court of Appeals for the Eighth Appellate District of Ohio has established the rule that appellant's brief may be filed at any time up to the date of assignment of the appeal for oral argument. Rule X of the Rules of Practice of the Courts of Appeals of Ohio, as amended and effective under the Appellate *Page 409 Procedure Act passed in 1935 (50 Ohio App., xlix, liii), provides: "The judges of the several districts may adopt such rules upon questions of practice or as to the time of filing briefs, as they may deem expedient." It thus appears that the practice established in the Eighth Appellate District should not be disturbed by the judges of this Seventh Appellate District court, sitting in the Eighth Appellate District by assignment of the Chief Justice, unless we find that the failure to file briefs in accordance with the provision of Section 13459-3, General Code, deprives this court of jurisdiction to hear the appeal. Concededly, the language of Section 13459-3, General Code, unrelated to other provisions of the Appellate Procedure Act passed in 1935, is mandatory in form, in that it is stated therein that: "The brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in such appeal." (Italics ours.) It is claimed by appellee that where the Legislature has so fixed the time for filing the brief no rule of the court can alter the same. In our opinion, such claim fails to give consideration to other provisions of the Appellate Procedure Act, which clearly indicate to this court that no appeal which has been duly instituted by the filing of the required notice of appeal should be dismissed upon purely technical grounds unless prejudice to the adverse party appears, such prejudice or lack thereof to be determined by the court in the exercise of sound discretion. It is contended that our views upon this subject are at variance with the decisions of other courts of appeals, and we are referred to certain cases as being so in conflict with our decision upon this subject as to require certification of this case to the Supreme Court on the ground of such conflict. The cases referred to will be analyzed after calling attention to such related *Page 410 provisions of the Appellate Procedure Act as, in our opinion, require us to find that the requirement of Section 13459-3, General Code, is not jurisdictional and that the seeming mandatory provision of this section as to the filing of brief by appellant is in fact directory only, resting the matter of filing a brief in criminal cases within the sound discretion of the court. This has been the rule adopted by the Seventh Appellate District Court of Appeals in both civil and criminal cases. In our opinion many sections of the Appellate Procedure Act, other than those referred to in the "comment" following Section 13459-3, Page's Ohio General Code, apply equally to criminal and civil cases, and, in giving construction to any particular section, the whole act (116 Ohio Laws, 104 et seq.) must be considered. We quote certain provisions of the act, italicizing such portions as emphasize the application of the act to both criminal and civil cases: Section 12223-49. "This act shall become effective on the first day of January, 1936, and shall apply to the proceedings in anyaction where the final order or judgment appealed from is rendered after that date." Section 12223-1. "1. The word `appeal' as used in this act shall be construed to mean all proceedings whereby one courtreviews or retries a cause determined by another court, an administrative officer, tribunal, or commission. "2. The `appeal on questions of law' shall be construed to mean a review of a cause upon questions of law including the weight and sufficiency of the evidence and shall include all theproceedings heretofore and otherwise designated in the GeneralCode as proceedings in error. * * *" Section 12223-3. "Every final order, judgment or *Page 411 decree of a court * * * may be reviewed as hereinafter provided, unless otherwise provided by law * * *." Section 12223-4. "The appeal shall be deemed perfected whenwritten notice of appeal shall be filed with the lower court * **. After being duly perfected, no appeal shall be dismissed without notice to the appellant, and no step required to be takensubsequent to the perfection of the appeal shall be deemed to bejurisdictional." Section 12223-5. "The notice of appeal shall designate the order, judgment, or decree appealed from and whether the appeal shall be on questions of law or questions of law and fact. In said notice the party appealing shall be designated the appellant, and the adverse party, the appellee, and the style of the case shall be the same as in the court of origin. The failure to designate the type of hearing upon appeal shall not be jurisdictional and the notice of appeal may be amended by the appellate court in the furtherance of justice for good cause shown." Section 12223-21. "1. Appeals taken on questions of law shall be heard upon assignments of error filed in the cause or set out in the briefs of the appellant before hearing. Errors not argued by brief may be disregarded, but the court, in its discretion, may consider and decide errors which are not assigned or specified. Failure to file such briefs and assignments of error within the time prescribed by the court rules shall be cause for dismissal of such appeal. All errors assigned shall be passed upon by the court * * *." Section 12223-27. "A judgment rendered or final order made by a Court of Common Pleas, * * * may be reversed, vacated or modified upon an appeal on questions of law by the Court of Appeals having jurisdiction in the county wherein the common pleas or other court of record is located, for errors appearing on the record." *Page 412 Sections 13459-1 and 13459-2, General Code, relating to criminal cases, remain as before the adoption of the Appellate Procedure Act which was passed in 1935. Section 13459-3, General Code, provides that "the proceedings to review such judgment or final order" in a criminal case "shall be by appeal which shall be instituted by filing notice of appeal with the court rendering such judgment or order and with filing a copy thereof in the appellate court where leave to appeal must be obtained. Upon filing the notice of appeal there shall be filed in the appellate court the transcript prepared by the clerk and any original papers received by him * * * The brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in such appeal. Within fifteen days thereafter, the appellee shall file its brief. All of such proceedings to review such judgments shall have precedence of all other cases in said reviewing court, and shall stand for hearing on the trial docket of said court from day to day until heard and submitted; provided that any special statutes regulating appeals in particular cases shall not be affected in any wise by this section." Section 13459-4, General Code, provides: "Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment such appeal may be filed only by leave of the court or two of the judges thereof." From the language of the last-quoted section, it clearly appears that the Court of Appeals has very broad discretion as to time in which appeal in a criminal case may be prosecuted; even two judges of the Court of Appeals may grant leave to file such appeal at any time after thirty days from sentence and judgment. It is not conceivable to this court that the *Page 413 Legislature intended by the language used in Section 13459-3, General Code, to limit the power of the court to extend the time for filing briefs in criminal cases and, in the same legislative enactment, to provide that the court, or two judges thereof, could grant leave to prosecute an appeal in a criminal case at any time after thirty days from sentence and judgment. Surely the greater power would include the lesser. There would seem to be no logic in requiring the appeal to be dismissed for failure to file brief with the transcript, in view of the fact that the court, or two judges thereof, could immediately grant leave to file a new appeal in this case. If Sections 12223-1, 12223-3, 12223-4, 12223-5, 12223-21, 12223-27 and 12223-49, General Code, do not apply to criminal cases, then the provisions of the General Code dealing with criminal cases are strangely silent with reference to the matters contained in these sections. If any one of these sections applies to criminal cases, then no argument exists in favor of excluding the provisions of any of them to criminal cases. Keeping in mind the definitions of the words "appeal" and "appeal on questions of law," as set forth in Section 12223-1, General Code, how can it be said that the provisions of Section 12223-21 do not apply to both criminal and civil cases? So applying the provisions of this section to criminal cases, it is seen that the appeal on questions of law in a criminal case shall be heard upon assignments of error filed in the cause or set out in the briefs of appellant before hearing; that errors not argued by brief may be disregarded by the court, but the court, in its discretion, may consider and decide errors which are not assigned or specified; and that failure to file such briefs and assignments of error within the time prescribed by the rules ofthe court shall be cause for dismissal of such appeal. We call attention to the fact that Section 13459-3, *Page 414 General Code, does not provide that the court shall dismiss the appeal for failure of appellant to file briefs as therein set forth; nor does any other provision of the General Code require the appeal to be dismissed for such failure or prescribe that the filing of the brief with the transcript in a criminal case is jurisdictional. Surely it must be conceded that since the Court of Appeals, in its discretion, may consider and decide errors which are not assigned or specified, it can not reasonably be claimed that failure to file a brief at any particular time prescribed either by rule of court or by statute shall necessarily work a dismissal of the appeal, especially in view of the provision of Section 12223-4, General Code, that "no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional." Nor is there any reason why less liberality shall be indulged in in an appeal where the life or liberty of a person is involved than in one where civil or property rights are concerned; yet the contruction we are requested by appellee to give to Section 13459-3, General Code, would render impotent an appeal by one convicted of an offense punishable by death or imprisonment, for such convicted person, in order to suspend execution of sentence, must file his notice of appeal, then, if strict application of the provision of the act is to be applied, he must file with his notice of appeal the transcript prepared by the clerk and with the transcript his brief. Of course, his bill of exceptions will not be available at that time, and every lawyer knows that a brief prepared before opportunity to examine the bill of exceptions is practically worthless. That time for preparation of the bill of exceptions is necessary has been recognized by the Legislature, since by Section 13445-1, General Code, thirty days is fixed as the limit of time for filing the same in a criminal case, and by Section 11572, General Code, the *Page 415 notice of appeal, transcript and other papers may be filed without waiting to perfect the bill of exceptions, whereupon an accused may secure a stay of execution. In Long v. State,109 Ohio St. 77, 141 N.E. 691, the Supreme Court held that the provisions of Section 11572a, General Code, apply to criminal cases. Certainly the appeal can not be heard until the bill of exceptions is perfected and filed. By statute (Section 13445-1, General Code) the bill of exceptions must be filed in the trial court within thirty days, and by rule of the Court of Appeals may be filed in the Court of Appeals within fifty days or at such later time as leave may be granted by the appellate court. Construing all the applicable provisions of the Appellate Procedure Act passed in 1935, we hold that the requirement of Section 13459-3, General Code, with reference to the filing of a brief by appellant is not jurisdictional and that this court in the exercise of sound discretion may grant additional time to file such brief, and further that this court may consider the brief of appellant filed in this case in accordance with the rule established in the Eighth Appellate District of Ohio. The cases cited as being in conflict with our decision on this point are: State v. Jarcho, 65 Ohio App. 417, 30 N.E.2d 444;State v. Parnell, 56 Ohio App. 77, 10 N.E.2d 18; State v.Bell, 52 Ohio App. 11, 2 N.E.2d 786; In re Arrasmith,54 Ohio App. 391, 7 N.E.2d 826; State v. Jones, 33 Ohio Law Abs., 330, 34 N.E.2d 990; State v. Link, 28 Ohio Law Abs., 101; State v. Carmen, 31 Ohio Law Abs., 330. In not one of the cases cited has the Court of Appeals held that the failure to file brief as prescribed in Section 13459-3, General Code, deprives the court of jurisdiction to hear and determine the appeal. It is true that in the case of State v.Jarcho, supra, the Court of Appeals held that the provisions of Section 13459-3, General Code, are mandatory, and, in the *Page 416 opinion of Judge Hornbeck, it is said that the motion of the prosecuting attorney to dismiss the appeal will be sustained because the brief of appellant was not filed with the transcript. This statement as to the mandatory character of the language of that section and the power of the court to dismiss for failure to comply therewith is far from holding that because of such mandatory requirement the court had no jurisdiction of the appeal and had no other course than to dismiss it for failure. Indeed, the court in that case proceeded to hear the appeal, "examined this testimony in the light of the errors assigned," and became "convinced that no error prejudicial to the appellant is to be found in the proceedings." To so find the court must necessarily have considered the brief of appellant, though not filed in accordance with the provisions of Section 13459-3, General Code. Such action of the court conclusively shows that the court did not find that the failure to comply with that section deprived the court of jurisdiction and is not consistent with any claim that the court may not, in the exercise of its sound discretion, determine the appeal on its merits. And this means, of course, that although the language of the section is in form mandatory, the requirement as to briefs is in fact directory only. No one disputes the power of the court, in the exercise of the discretion reposed therein, to dismiss the appeal for failure to comply with the provisions of the section relating to the filing of briefs, and we understand that certain of the Courts of Appeals, sitting in the cases above cited, have adopted the practice of dismissing the appeals in all cases where the briefs are not so filed, and other courts have adopted the same practice in civil cases where the briefs are not filed in accordance with Rule VII of the Rules of Practice in the Courts of Appeals (50 Ohio App., XLIX). Some cases refer to the practice as a *Page 417 rule of "stare decisis" in the particular court. State v. Jones,supra. But in that case the court "examined the several assignments of error, the bill of exceptions and briefs," and in fact only held as in State v. Jarcho, supra, "that failure to comply with the section was a sufficient ground for the dismissal of the appeal." To the same effect see State v. Smith, 33 Ohio Law Abs., 612, 35 N.E.2d 968. The Court of Appeals of the Seventh Appellate District has just as consistently held that it will dismiss no appeal for failure to file briefs in accordance with rule or statute unless prejudice has resulted to the adverse party, and we think that is just what the Legislature intended when it was provided that no step in the proceeding after perfecting the appeal by the filing of the required notice of appeal shall be deemed jurisdictional. State v. Parnell, supra, merely holds that the appeal may be dismissed for non-compliance with the rule fixed by Section 13459-3, General Code. The same is true as to the case of State v. Bell, supra, the court expressly stating that it is not dismissing the appeal for failure to file brief in accordance with Section 13459-3, General Code. The case of In re Arrasmith, supra, does not involve the matter of filing briefs. In State v. Link, supra, the court did not dismiss the appeal for failure to file briefs in accordance with the section, but examined the questions urged, read the record, became "satisfied that there is no prejudicial error to the appellant to be found therein," and affirmed the judgment. The matter of filing briefs is not considered in State v.Carmen, supra. The motion of appellee to dismiss the appeal is overruled, and the application for certification on the ground of conflict is denied. *Page 418 Coming now to consider the merits of this appeal, do the first and third counts of the indictment returned by the grand jury of Cuyahoga county against appellee set forth indictable offenses under the laws of the state of Ohio? The first count of the indictment is as follows: "That David Brunswick on or about the 16th day of October, 1940, at the county aforesaid, unlawfully orally menaced and threatened Michael L. Osborne to do an injury to the property and the person of said Michael L. Osborne with intent to compel said Michael L. Osborne to do an act against his will, to wit: to refrain from constructing a building at 10828 Carnegie avenue, Cleveland, Ohio, and to refrain from opening, conducting and operating a floral business in said building at 10828 Carnegie avenue, Cleveland, Ohio, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio." It will be noted that the counts of the indictment are in identical language except as to the date of the commission of the alleged offense. Section 13384, General Code, under which the counts of the indictment were framed, reads as follows: "Whoever, with menaces, orally or by written or printed communication, sent or delivered by him, demands of another a chattel, money or valuable security, or accuses, or knowingly sends or delivers a written or printed communication, with or without a name, or with a letter, mark or designation, accusing or threatening to accuse, another of a crime punishable by law, or of immoral conduct, which, if true, would tend to degrade and disgrace such person, or threatening to expose or publish any of his infirmities or failings, or to subject him to the ridicule or contempt of society, or to do any injury to the person or property of another, with intent to extort or gain from him a chattel, *Page 419 money or valuable security or a pecuniary advantage, or, with intent to compel him to do an act against his will, may be fined not more than one thousand dollars and shall be imprisoned in the penitentiary not less than one year nor more than five years." Counsel for appellee have given in brief and oral argument a very learned dissertation upon the rules of construction claimed to apply to the language of this statute, and therefrom summarize that "the indictment charges that the defendant: (1) `orally menaced' and (2) threatened injury to the person and property of Michael L. Osborne with intent to compel him to do an act against his will." We find that to be a fair construction of the language used in the indictment. The question then is: Does such language state a crime embraced by the statute? The appellee contends that to be guilty of a crime by reason of oral menaces or threats within the meaning of the section, the defendant must have demanded of Osborne "a chattel, money or valuable security," and since the indictment does not so allege no crime is charged therein, it being reasoned that the word "demand" is a verb and that the objects demanded must be "a chattel, money or valuable security"; that the word "orally" as used is an adverb and the expression "with menaces orally" qualifies only the words "demands a chattel, money, or valuable security." With this reasoning we do not agree, but hold that the use of the disjunctive word "or" as used in the statute requires the construction that the expression "with menaces orally," qualifies as well the words "with intent to compel him to do an act against his will." Given this construction and deleting such portions of the language used in this section as are clearly inapplicable to the situation attempted to be stated in the indictment, the statute reads: "Whoever, with menaces, orally * * * threatening *Page 420 to * * * do any injury to the person or property of another * * * with intent to compel him to do an act against his will, may be fined not more than one thousand dollars and shall be imprisoned in the penitentiary not less than one year nor more than five years." Can this language be intelligently interpreted so as to definitely apprise the accused that he is charged with conduct prescribed by the Legislature as constituting a crime, it being conceded that there are no common-law crimes in Ohio? A "menace," as defined by Webster, is the show of an intention to inflict evil. "Menace" is generally regarded as synonymous with "threat." Lynch, v. People, 33 Colo. 128, 79 P. 1015. "`To menace' is `to act in a threatening manner.' Any overt act of a threatening character, short of an actual assault, is a `menace.'" Cummings v. State, 99 Ga. 662, 665, 27 S.E. 177. See, also, Rossi v. State, 7 Ga. App. 732, 734, 68 S.E. 56;Price v. State, 137 Ga. 71, 75, 72 S.E. 908; Worley v. State,136 Ga. 231, 235, 71 S.E. 153. We hold that the words "with menaces" and "threatening" are equivalent to the single word "threatens," whereby the clear meaning of the applicable portion of this statute becomes as follows: "Whoever threatens orally to do any injury to the person or property of another with intent to compel him to do an act against his will, may be fined." Thus we construe the language used in this indictment as stating identically as construed by counsel for appellee, differing only from such counsel in our conclusion that the word "orally" applies not only to threats by one who "demands of another a chattel, money or valuable security," but also applies to threats by one "to do any injury to the person or property of another * * * with intent to compel him to do an act against his will." *Page 421 As contrary to the views herein expressed, we are cited by appellee to the following cases: Elliott v. State, 36 Ohio St. 318; Mann v. State, 47 Ohio St. 556, 26 N.E. 226, 11 L.R.A., 656; Ditzler v. State, 4 C.C., 551, 2 C.D., 702; Jones v. State, 14 C.C., 363, 7 C.D., 716. In Elliott v. State, supra, we find nothing to support the claim of appellee, other than the following excerpt taken from the opinion: "If this was a charge of `threatening to accuse,' the words of the statute would seem to require that it should be in writing * * *." This statement was mere obiter, not necessary to a decision of the case and, of course, was not carried into the syllabus; and in our opinion is not binding upon any court. In Ditzler v. State, supra, the Circuit Court was unable to see why the Supreme Court should give such construction to the statute, but felt in duty bound to follow it, evidently losing sight of the rule that nothing said in the opinion of the Supreme Court or even in the syllabus to a case is to be deemed binding unless necessary to a decision of the case in light of the facts. 11 Ohio Jurisprudence, 798, Section 145. No one doubts the right to adopt the logic of any statement of the Supreme Court, but we confess ourselves unconvinced of any logic in the quoted statement, especially in view of the subjunctive clause which reads: "but where accusation is directly made with the unlawful intent, whether verbally or in writing, the crime is complete." The word "orally" was not used in the section at the time of the decision in Elliott v. State, supra, although the court evidently understood that the Legislature meant by the use of the word "verbally" to imply oral as distinguished from written threats. It is quite clear that verbal threats, meaning threats made *Page 422 by the use of words rather than by a show of force, may consist of either oral or written words. The amendment to the statute, substituting the word "orally" for the word "verbally," indicates an intention upon the part of the Legislature to clarify the statute as embracing threats made by word of mouth or in writing with intent to cause another to part with a chattel, money or valuable security, as well as threats by word of mouth to do injury to the person or property of another with intent to compel him to do an act against his will. And in our opinion, it is logical that the Legislature should so intend. We find nothing in Mann v. State, supra, which can possibly be construed as approving anything said by the court in Elliott v.State, supra, as to necessity of any threat made with the prescribed intent being in writing. The case of Jones v. State, supra, is, to say the least, doubtful authority upon the question here involved, as shown by the evident confusion of the court in attempting to interpret the language of the indictment and the unsatisfactory wording of the section under which it was drawn. As to the indictment in that case the court states that it "is very long and involved in its language, and in some respects it is difficult to know exactly what it means — stripped of much of its verbiage, we understand its substance to be about this: * * *." In the statement of the court as to what it understood the substance of the indictment "to be about," reference is made only to certain written instruments, to wit, a filed affidavit and a copy of a warrant issued thereon. So it appears that the question of the sufficiency of an oral demand, accusation or threat was not involved. The court further stated: "The statute on which this indictment is founded, Section 6830, Rev. Stats., is certainly very unskillfully drawn, and it is *Page 423 exceedingly difficult to form an opinion as to the proper construction to be placed on some of its provisions. It attempts to define what shall constitute the crime of blackmailing, and it is clear from its language that it may be done in different modes, and by different acts and with the different intents, as stated in the section." The court states its conclusion that "there are two ways here pointed out by either of which the crime may be committed," and proceeds to point out two such ways, but further states: "It may be that such is not the grammatical construction of the language used, but we think it must have been the intention of the Legislature so to provide." The court held the indictment good, in that the written affidavit filed with the mayor accused Mrs. Urton with the crime of murder and was made with the intent stated. The court further found that certain special requests of defendant to charge the jury should have been given, the failure to charge such being prejudicial error, for which the court decided to reverse the judgment "if insisted upon by plaintiff in error." From the opinion it is impossible to determine whether there was, in fact, a reversal. We find nothing in this opinion which justifies the conclusion that to be guilty under the General Code provision as it now reads one must make menacing threats in writing, as distinguished from oral threats, to do injury to the person or property of another with intent to cause him to do an act against his will. In the case of McFarland v. State, 14 Ohio Law Abs., 267, it is held in the third paragraph of the syllabus: "An indictment for extortion charging the accused with saying to a person mentioned in the indictment that if he acquiesced in the demand of the accused he would not be bothered, plainly implies an intention to *Page 424 compel the person named to do an act against his will." (Italics ours.) The facts recited in the opinion clearly indicate that the defendant had made oral threats to certain barbers to the effect that their property and business would be damaged unless they joined a pretended organization of barbers, and thus were made with intent to compel the barbers to do an act against their will. Conviction was sustained. "A threat which is a necessary element of the crime of blackmail has been defined as a menace of destruction or injury to person, character, or property. It may be made orally or in writing * * *. It may be done by innuendo or suggestion. Any language which conveys a threat with adequate clearness is sufficient. In some instances to ascertain whether language conveys a threat, it must be taken with the circumstances under which it is spoken, and the relations between the parties must be considered." 18 Ohio Jurisprudence, 916, Section 16. It is observed that the indictment charges the accused with orally threatening to do an injury to the person or property of Osborne with intent to compel him to do an act against his will, but the indictment goes further and describes the act sought to be compelled as being "to refrain from constructing a building * * * and to refrain from opening * * * a floral business in said building * * *." (Italics ours.) Although not urged by counsel for appellee as rendering the indictment on that ground insufficient, this court has been concerned with the proposition as to whether threats to compel another to "refrain" from doing certain things are sufficient to constitute a threat to compel another to do an act against his will. In one aspect of the language of this indictment, it would seem that the threats charged were merely with the *Page 425 intent to cause Osborne not to act rather than to do an act. We have concluded, however, that when one is compelled by threats of injury to his person or property to do otherwise than he wills to do except for such threats, he is thereby compelled to do an act against his will. The indictment was sufficient to charge the defendant with the crime of blackmail under Section 13384, General Code, and it follows that the Common Pleas Court erred in sustaining the demurrer to the indictment, to the prejudice of the state of Ohio, for which error the judgment is reversed and the cause remanded for further proceedings according to law. Judgment reversed and cause remanded. PHILLIPS, J., concurs. CARTER, P.J., concurs in the judgment. CARTER, P.J., PHILLIPS and NICHOLS, JJ., of the Seventh Appellate District, sitting by designation in the Eighth Appellate District.

2016-07-06 06:36:43.270281+00

Brown

This is an appeal from a summary judgment in favor of defendant Balconi and Smith, Inc., operators of the Sands Motel, arising out of an action by the plaintiff, a motel guest, who fell while descending an exterior stairway from a second floor motel room. The stairway was in a slippery and dangerous condition as the result of a natural accumulation of ice and snow. The stipulation of facts by the parties, considered in reaching a summary judgment, contained, inter alia, the following facts: "1. The only means of ingress and egress to plaintiff's motel unit consisted of two exterior stairways, of metal construction, located at opposite ends of the motel unit. "2. Both exterior stairways were in a slippery and dangerous condition due to a failure on the part of the *Page 227 motel to remove snow and ice that accumulated thereon. This slippery and dangerous condition had existed for three or more days prior to plaintiff's being assigned to his room. The accumulated ice and snow on these exterior stairways was made dangerous and slippery by virtue of the fact that it had been subjected to traffic by other persons and the surface had thereby become packed and hard. "3. Plaintiff became aware of the dangerous and slippery condition upon first ascending the stairs to enter the motel room which had been assigned to him. Plaintiff immediately phoned the motel desk and complained of the dangerous condition of the stairs and asked that it be remedied. "4. Plaintiff considered all other possible means of egress but there were none other than the two exterior stairways. Using great care, on the morning of January 22, 1970, plaintiff descended the stairway. Plaintiff again complained to the motel desk clerk of the condition of the stairways. "5. In all it was on the fifth trip on the same stairs on January 22, 1970, that plaintiff fell. "6. On all occasions on which the plaintiff used the stairway, plaintiff used great care for his own safety, on all occasions using the hand rails, moving very slowly and watching very carefully where he was going. On his last descent from his motel unit, plaintiff's foot slipped from underneath him, causing him to fall and to sustain an injury to his leg. At the time plaintiff fell, he had hands on both hand rails, was moving cautiously, and was carefully watching where he was going. "7. Plaintiff had been a guest of the motel on several other previous occasions during the winter months. On all these prior occasions the motel had removed ice and snow from the stairways." The plaintiff-appellant sets forth two assignments of error as follows: "1. The trial court erred in finding that there is no duty upon a motel operator to remove natural accumulations of snow within a reasonable time from the exterior stairways *Page 228 providing the only means of ingress and egress to the second floor occupants of the motel. "2. The trial court erred in finding that the occupant of a second story motel who uses the only means of ingress and egress to his motel room, knowing that said means of ingress and egress is slippery, is charged with assuming the risk as a matter of law." By granting summary judgment for defendants-appellees, the trial court, by implication, concluded that as a matter of law plaintiff was not entitled to recover for one or both of two reasons, namely: that reasonable minds could come to but one conclusion (1) that there was no duty owing by defendant to plaintiff concerning the accumulation of ice and snow on the exterior metal stairway where plaintiff fell and was injured, and, therefore, no negligence of defendant arose, and (2) plaintiff voluntarily assumed the risk of the snowy and icy conditions of the exterior metal stairway which precipitated plaintiff's fall and consequent injuries. Stated another way, the trial court, by rendering a summary judgment for defendant, determined that pursuant to Civ. R. 56(C) there was no genuine issue as to any material fact concerning defendant's negligence — there being no negligence — or concerning plaintiff's assumption of the risk with regard to the snowy and icy condition of the exterior metal stairway — that as a matter of law plaintiff voluntarily assumed the risk and, therefore, defendant was entitled to a judgment in his favor. A resolution of the question of whether there was a genuine issue of fact concerning defendant's negligence and the existence of plaintiff's voluntary assumption of the risk requires an analysis of the controlling judicial precedents applicable to this case. Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St. 2d 38, and Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, upon which defendants rely, define the obligations of an occupier of premises to a business invitee and stand for the following legal propositions: 1. Where the owner or occupier of business premises *Page 229 is not shown to have notice, actual or implied, that the natural accumulation of snow and ice on his premises has created there a condition substantially more dangerous to his business invitees than they should have anticipated by reason of their knowledge of conditions prevailing generally in the area, there is a failure of proof of actionable negligence. 2. The mere fact standing alone that the owner or occupier has failed to remove natural accumulations of snow and ice from private walks on his business premises for an unreasonable time does not give rise to an action by a business invitee who claims damages for injuries occasioned by a fall thereon. 3. An occupier of premises is under no duty to protect a business invitee against dangers which are known to such inviteee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himselfagainst them. 4. The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of premises may reasonably expect that a business invitee on his premises will discover those dangers and protect himself against them, and such occupier has no duty to his business invitee to remove natural accumulations of snow and ice from private walks and steps of his premises. Even if, for the sake of argument, plaintiff is placed in the same status as the plaintiffs in the Debie and Sidle cases, the first two legal propositions set out above are not applicable. In the present case, unlike Debie and Sidle, defendants did have actual notice that the ice and snow on the stairway created a condition substantially more dangerous to plaintiff than plaintiff should have anticipated by reason of his knowledge of conditions prevailing generally. Moreover, the failure of defendants as occupiers to remove the natural accumulations of snow and ice does not stand alone. The third and fourth numbered propositions of law stated above, extracted from the Sidle case, raise genuine *Page 230 issues when applied to the record in this case, for these reasons. The obvious and apparent danger of the snowy, icy stairway to plaintiff, as a business invitee, was not, as a matter of law, a danger that he might "reasonably be expected to protect himself against," because the exterior stairways were the only means of ingress and egress from his motel room. Plaintiff sought protection unsuccessfully by asking the motel manager to remedy the icy condition. Plaintiff's only other alternative for protecting himself, too absurd to suggest as a practical remedy, was to stay in his motel room until the spring thaws melted the snow and ice. As a minimum, reasonable minds should determine whether or not plaintiff should have protected himself in this or some other way. Therefore, summary judgment cannot be predicated upon the legal propositions contained in the Debie and Sidle cases. Further, both Debie and Sidle distinguish and explain with approval Oswald v. Jeraj (1946), 146 Ohio St. 676, as a case which involves a landlord-tenant situation. Oswald is more closely akin to the factual situation and legal relationship of plaintiff as a motel guest of the defendants. The obligation of a landlord to his tenant, or of an innkeeper to his guests, to keep stairways, entrances and hallways in a reasonably safe condition, does not arise expressly from the lease between landlord and tenant, or from the contract between the innkeeper and guest, but is implied because the use of stairways is necessary to gain access to the premises or to the guest's room, for which he contracted. It is stated in 29 Ohio Jurisprudence 2d 494, Inns Restaurants, Section 20, that: "Concerning the duty imposed by law upon an innkeeper to furnish safe premises to his guests and patrons * * * the innkeeper, who is not an insurer, must exercise reasonable care under the circumstances, his liability resting upon the same principles applicable in other cases where persons enter upon premises at the invitation of the owner or occupant and are injured in consequence of the dangerous condition of the premises." Prosser, Torts (4th ed. 1971), page 407; annotation *Page 231 49 A. L. R. 3d 387, 394; Degraff, Snow and Ice, 21 Cornell L. Q. 436, 447-453 (1936); cf. Roth v. Trakas (1930), 36 Ohio App. 136 and Beaney v. Carlson (1963), 174 Ohio St. 409, 411 (Shopping Centers); 29 Ohio Jurisprudence 2d, supra. The Restatement of the Law 2d Torts, Para. 496E, has a comment on the necessity of voluntary assumption. The headnote reads: "1. A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk. "2. The plaintiff's acceptance of a risk is not voluntary if the defendant's tortious conduct has left him no reasonable alternative course of conduct in order to (a) advert harm to himself or another, or (b) exercise or protect the right or privilege of which the defendant has no right to deprive him." A motel guest's acceptance of a risk is not to be regarded as voluntary where the innkeeper's tortious conduct has forced upon him a choice of courses of conduct which leaves him no reasonable alternative to taking his chances. An innkeeper who, by his own wrong, has constrained the motel guest to choose between two evils cannot be permitted to say that the guest is barred from recovery because he made the wrong choice. The same is also true where the guest is compelled to accept the risk in order to exercise or protect a right or a privilege of which the innkeeper has no right or privilege to deprive him. A motel guest does not assume the risk of his innkeeper's negligence in maintaining a common passageway when it is the only exit from the premises.2 A motel guest cannot be said as a matter of law to assume the risk voluntarily, though he knows the danger *Page 232 and appreciates the risk, if at the time he was acting under such exigency or such urgent call of duty, or such constraint of any kind as in reference to the danger deprives his act of its voluntary character.3 In some cases the course of danger may be so extreme as to be out of all proportion to the value of the interest to be protected and the plaintiff may be charged with contributory negligence in his own unreasonable conduct. Prosser, supra at 452. A basic element in assumption of the risk is venturousness. In the present case, we cannot conclude that merely because plaintiff Charles Mizenis going back and forth on the icy stairway to his motel room that he was being venturous. However, there may be an element of contributory negligence in his conduct upon which reasonable minds could differ, and thus a jury question of contributory negligence exists. This also raises a jury question as to whether or not defendant, as an innkeeper, acted in a way a reasonably prudent person would have acted; thus, a jury issue of negligence of the defendant arises.4 Accordingly, both assignments of error are well taken and the judgment of the Court of Common Pleas is reversed and this cause is remanded. Judgment reversed and cause remanded. WILEY and POTTER, JJ., concur. 2 Ritter v. Norman (1913), 71 Wash. 563, 129 P. 103 (hotel guest suing proprietor of hotel); Cumming v. Allied Hotel Corp. (Mo.App., 1940), 144 S.W.2d 177 (guest's action against hotel); cf. Dollard v. Roberts (1891), 130 N.Y. 269,29 N.E. 104 (tenant's action against landlord); cf. English v.Amidon (1903), 72 N. H. 301, 56 A. 548 (employee-employer);Brandt v. Thompson (Mo., 1952), 252 S.W.2d 339 (landlord-tenant); Conroy v. Briley (Fla.App., 1966),191 So. 2d 601 (landlord-tenant). 3 English v. Amidon, supra note 2. 4 Kindler v. Edwards (1955), 126 Ind. App. 261,130 N.E.2d 491; Abt v. Leeds Lippincott Co. (1932), 109 N. J. Law 311;162 A. 525; Hunn v. Windsor Hotel Co. (1937), 119 W. Va. 215,193 S.E. 57; Prosser, Torts (4th ed. 1971), 451; 40 American Jurisprudence 2d 972, Hotels, Motels, Etc., Section 99; Annotation 58 A. L. R. 2d 1178, 1196; cf. Buck v. Del City Apts.Inc. (Okla. 1967), 431 P.2d 360. *Page 233

2016-07-06 06:36:43.691087+00

Matthews

This is an appeal from a judgment of the Municipal Court of Cincinnati. The appeal is by The Republic Light Furniture Company. Its codefendant did not appeal from the judgment against it. The appeal was, in form, on questions of law and fact and an appeal bond was given. On motion, the appeal was reduced to one on questions of law. The plaintiff alleged in his bill of particulars or petition that he had purchased a Norge electric refrigerator from the defendant The Republic Light Furniture Company and had given his note for $282.25 therefor, secured by a chattel mortgage thereon; that as an inducement to said purchase The Republic Light Furniture Company represented that the refrigerator had a freezing compartment capable of holding and freezing 35 to 40 pounds of foodstuff; that when he commenced to use it, he discovered that it would not freeze any food in the compartment; and that upon *Page 386 making such discovery, he elected to rescind the contract and demanded that the seller accept return of the refrigerator and restore the status quo. The plaintiff alleged also that the note and mortgage were in the possession of Welfare Finance Company, upon whom he had made demand that the note and mortgage be cancelled, to which demand it had refused to accede. The plaintiff prayed that "his rescission of the sale be absolute; that the said note and mortgage * * * be cancelled." No other relief was sought. The Republic Light Furniture Company answered, admitting the sale and denying all other allegations. Welfare Finance Company, by answer, admitted it was the holder of the note and chattel mortgage and denied all other allegations. By cross-petition, it alleged its ownership of the note and that it had acquired it before maturity in the regular course of business for a valuable consideration without notice of any defect, and that the note was due and unpaid. It prayed for judgment for $282.25, the amount of the note. There was no prayer for a foreclosure of the mortgage. The plaintiff's reply placed the affirmative allegations of the answer and cross-petition in issue. The case went to trial on these pleadings. Upon conclusion of the trial, the court found on the issues raised by the plaintiff's petition in favor of the plaintiff and declared the sale rescinded. On consideration of the cross-petition, the court found also for the plaintiff and granted "judgment for the plaintiff Nelson Conner on said cross-petition at the costs of the defendants." The Republic Light Furniture Company filed a motion for a new trial, which was overruled. Thereupon, it filed its notice of appeal on questions of law and fact and gave its appeal bond. *Page 387 At no time before, at, during, or after the trial did either defendant challenge the jurisdiction of the court to hear and determine this action. It was not until the first call of this appeal in this court that the question of the trial court's jurisdiction was raised with the result that the appeal was reduced to one on questions of law only because of the conclusion of this court that the Municipal Court did not have jurisdiction under Section 1594, General Code, of an action in which the only relief sought was rescission and cancellation of a contract and that, therefore, the appeal could be on questions of law only. (1) The defendant The Republic Light Furniture Company now asserts on this appeal for the first time that the entire judgment is beyond the jurisdiction of the court, and, for that reason, void. That contention is based on subdivision (C) of Section 1594, General Code, which reads: "(C) In any action at law based on contract, the court shall have jurisdiction to determine, preserve, and enforce all rights, legal and equitable, involved therein, and to decree an accounting, reformation, or cancellation of the contract, and to bear [hear] and determine all legal and equitable remedies necessary or proper for a complete determination of the rights of the parties thereto." It will be noted at once that the jurisdiction conferred is limited to actions at law, based on contract. In such actions broad power is conferred upon Municipal Courts to grant full relief, including equitable relief, even reformation and cancellation of the contract upon which the action is based. But to clothe the court with this power, the action not only must be legal in its nature but must also be ex contractu. That is, the action remains one at law, notwithstanding incidental equitable relief may be granted. A reference to the allegations and prayer of the *Page 388 petition in this case is sufficient to disclose that it presents no such cause and seeks no such relief. It alleges a cause of action disaffirming the contract and prays for no legal relief. The only relief sought is equitable, that is the rescission and cancellation of the contract. So, had the jurisdiction of the court been raised by a demurrer or other attack on the petition on the ground that the court had no jurisdiction of the cause, the court would have sustained the contention. Whether it could have been cured by amendment at that stage, we need not stop to consider. Instead of raising the issue the defendant saw fit to answer, raising issues of fact which have been tried and judgment rendered. That presents a different situation. The defendant Welfare Finance Company filed a cross-petition asking for a money judgment upon the note which was one of the written instruments the plaintiff sought to have cancelled. Jurisdiction over actions for judgments for money not exceeding $2,000 is expressly conferred by Section 1593, General Code. It is a familiar rule that a defective petition may be aided by the allegations of an answer or other pleading. 31 Ohio Jurisprudence, 625, Section 78. Under this rule, jurisdictional facts may be supplied by other pleadings. Gerend v. Akron,137 Ohio St. 527, 30 N.E.2d 987; 41 American Jurisprudence, 498, Section 301. This rule, it seems to us, bears an analogy to the situation here presented. Where, by other pleadings, relief in due form is invoked within the court's jurisdiction, such relief is not withheld because of the failure of the prior ineffective attempt. By its cross-petition, the Welfare Finance Company prayed for relief which was within the power of the court to grant. The decision was adverse. Its prayer for a money judgment was denied, but no appeal was taken by it. Had Welfare Finance Company *Page 389 succeeded in obtaining the judgment for which it prayed, neither its codefendant nor the plaintiff could have been heard to say that the court had no jurisdiction. And so long as the judgment remained unreversed, it would be conclusive as to the ownership of the note and mortgage and their validity. A contrary judgment is equally conclusive. We find that on the state of the pleadings at the time of trial, to determine the issues raised and to give the appropriate relief, required the court to exercise the jurisdiction conferred by subdivision (C) of Section 1594, General Code. This appeal is by The Republic Light Furniture Company. It is trite to say that for it to secure a reversal of this judgment, it must show that its rights were prejudiced thereby. Now assuming error, was The Republic Light Furniture Company prejudiced thereby? It certainly was not prejudiced by the failure of Welfare Finance Company to obtain a judgment on the note. As it had endorsed the note without recourse, it was not prejudiced by the order directing its cancellation, or at least no prejudice has been shown. Furthermore, as already indicated, we are of the opinion that on the state of the pleadings at the time of trial, the court had full jurisdiction under Section 1594, General Code, to decide that the note and mortgage should be cancelled and to so adjudge. For these reasons, the judgment is affirmed. Judgment affirmed. ROSS and HILDEBRANT, JJ., concur. *Page 390

2016-07-06 06:36:43.75901+00

Sherick

A.R. Navorska, who was the defendant below, appeals this cause to this court, and the issue presented by the pleadings and the evidence is formulated by the following facts: On and prior to August 1, 1924, the plaintiff, J.A. Burns, for a considerable number of years had been engaged in the retail meat business in a storeroom known as No. 608 Sixth street, N.W., Canton, Ohio. During such period he used as his trade name the words "Burns Meat Market." On the date mentioned, Burns sold his business to Eichler Wagner. They received from Burns an assignment of his term of lease, and entered into a short written agreement which provided in substance that he sold them his business, known as the Burns Meat Market, and *Page 314 agreed to stay out of business for a period of two and a half years within a radius of five miles of Canton. Thereafter, on October 13, 1924, Eichler Wagner sold and assigned their interest in the lease, and their business equipment, and good will to the appellant, Navorska. From that date to shortly before the commencement of this action in December, 1931, the appellant operated and conducted a meat business in that location, when he removed his market to a room immediately adjoining the premises previously occupied, and adopted the name "Burns Quality Market," the change in the trade-name being due to the fact that Navorska had taken on a line of special merchandise in addition to his meat business. Immediately upon his vacation of room No. 608, the plaintiff re-entered the meat business under the trade name and style, "J.A. Burns, Himself, Meat Market." The location and the similarity of names of these mercantile establishments naturally tended to and did lead to confusion among the patrons of both merchants. The plaintiff in his petition charges that the defendant wrongfully uses the family name of the plaintiff, and seeks an injunction restraining Navorska from the use of the word "Burns." The answer of the defendant denies the claim of the plaintiff, and further pleads and proves, as a matter of defense, facts establishing a long, continued and knowing acquiescence of the plaintiff in the known use by Navorska of the generic word "Burns." The defendant asks for no affirmative relief. The defendant advances four reasons why the plaintiff is not entitled to the relief prayed for. It is first said that the plaintiff does not come into this court of equity with clean hands. We doubt the propriety of this equitable maxim to the situation developed in this case. The defendant's second reason, as assigned, is that the defendant, by reason of the purchase of this market, has thereby acquired the use and the *Page 315 right to the tradename. We have previously stated that the contents of the instrument of sale, entered into between Burns and Navorska's grantors, do not show that Burns conveyed to his grantees the good will of the business, nor does the instrument recite that he conveyed away to his purchasers the right of user in the business of the family name of Burns. Burns' grantees could therefore not convey to the defendant a right which they did not have. It is stated in Nims on Unfair Competition and Trade-Marks (3d Ed.), 58, Section 19, that the presumption is that no one intends to part with the right to use his own name, and it is equally true that a presumption will not be indulged that he intended to convey it away in the absence of express language to that effect, and it must be clearly shown that it was the intention of the grantor, the possessor of the name, to part with his right thereto. The third theory advanced by the defendant is that the plaintiff is estopped by his conduct to now claim an exclusive right to the use of the trade-name Burns. The fourth claim of the defendant is that the plaintiff has unfairly competed with the defendant, and this rather dovetails into what we are about to say concerning the claim of estoppel. We find that it is proved by the evidence in the case that Burns, at the time of his sale, remained in the store with his grantees for a period of a month. He knew that his purchasers were continuing the use of the word Burns in their business. He also knew of the subsequent sale by his grantees to the defendant, Navorska, and he knew that the appellant, Navorska, continued the use of the word, and that he also used the stationery and billheads that bore the trade-name "Burns Meat Market;" that the same name continued upon the window of the place of business and upon the delivery truck or trucks used in the business; that the telephone number was continued under this name; that Navorska *Page 316 collected some few accounts for Burns, and that Burns purchased meats of Navorska at intervals during Navorska's seven or eight years of continuance of the business under the name of "Burns Meat Market." Burns made no objection to the use of his name, and during all of said period tacitly consented to its use, well knowing that the defendant, Navorska, was spending time and money in the advancement of his business and in the advertising of the name "Burns Meat Market." Under this state of facts we hold the view that there is merit in the contention that the plaintiff, by his silence and conduct, is estopped to now claim the relief prayed for. We recognize that the cases uniformly hold that there is no exclusive use to, or in, a proper name. The right to use one's own name in business is subject to the general rules in regard to unfair competition, and it may be noted that there is nothing in the facts shown in this case indicative of any bad faith or purposeful interference by Navorska with the business of Burns, but the confusion that now results is caused by the use by both places of business of the name Burns and the close proximity of one to the other. We have been cited to numerous cases pertaining to some feature of the question presented, but, as suggested by counsel, both we and they have been unable to find any case exactly parallel to the instant case. We, therefore, in a determination of the question presented, must and do content ourselves with the statement of a general proposition of law taken from the case ofR.L. Bennett Sons v. Farmers' Seed Gin Co., (C.C.A.), 288 F., 365, which seems to us to be sound in principle and reason to the particular facts presented in this case. Therein the court held that, if the proprietor of a name or mark has stood by and allowed others to use it under such circumstances and for such a time that his consent, or at least a continued attitude of noninterference on his part, may reasonably *Page 317 be inferred, he may not cause others who have acted upon the strength of his silence and inaction to lose the result of the work and money expended on the assumption that he consented thereto. We further direct attention to the case of Bellows v. Bellows,24 Misc. Rep., 482, 53 N.Y.S., 853. It is therein held that, where it plainly appears that the right to use a trade-name has been abandoned, the court will not restrain the use of such name by another person, especially if he has spent time and money in building up its reputation. The case of Harris v. Brown, 202 Pa., 16, 51 A. 586, 90 Am. St. Rep., 610, is of note. Therein it is held that, where defendant purchased a business and continued to use the firm name after nearly four years, and expended large sums of money, with knowledge and consent of the plaintiff, plaintiff could not enjoin the use of the name by defendant. Being of the opinion that the question of estoppel is applicable in this case and helpful in its solution, we feel constrained to discuss briefly a further proposition suggested in argument. It is contended by the plaintiff that this is an action which has its basis in unfair competition, and we recognize the principle advanced by plaintiff in that he cannot be charged with laches in this case, which would estop him from the right to the relief claimed, and we must well recognize that this is true by reason of the fact that plaintiff cannot be chargeable with laches until after the time of his re-entry into the business; for, as pointed out, there can be no unfair competition until there is actual competition. However, this question is not, and should not be, decisive of the question of estoppel. We conceive it to be proper in a certain case for one not in competition to properly object to the use of his name by another. The latter might deceive the public by the use of such name, and obligate *Page 318 one by so doing, which one would have a perfect right to avoid in a proper action in equity. Independent of the question of laches, we therefore reach the conclusion that the silence and conduct of the plaintiff must preclude him from the relief which he now seeks. Searching the substance, and not the form, we advance the thought that the plaintiff knew or must have known that the confusion complained of would follow his re-entry into business in the same locality under the same name, and he is therefore partially responsibile for the situation developed. Decree may be entered in favor of the defendant, the injunction is dissolved, and the petition is dismissed at plaintiff's costs. Decree for defendant. LEMERT and MONTGOMERY, JJ., concur.

2016-07-06 06:36:43.826926+00

DECISION AND JUDGMENT ENTRY {¶ 1} Terry L. Koueviakoe appeals the Gallia County Court of Common Pleas' entry that overruled his motion to suppress. Koueviakoe argues that the trial court erred when it overruled his motion to suppress the cocaine and crack cocaine obtained from a search of his person and vehicle. He claims that the officer did not have reasonable suspicion of other criminal activity to detain him at the scene of the traffic stop until a drug-sniffing dog could arrive. We agree because, after applying the law involving reasonable suspicion to the trial court's findings of fact, we find after viewing the totality of the circumstances that the trooper lacked reasonable suspicion to continue the stop to investigate other criminal activity. We further find that the trial court resolves credibility issues and on remand must decide if the information given by the confidential informant was credible or not credible. Accordingly, we reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion. I {¶ 2} A Gallipolis police detective received information from a confidential informant that Koueviakoe and Beverly Hisle were transporting cocaine into Gallia County. The detective passed this information, along with a description of the vehicle, to Trooper Robert J. Jacks of the Ohio State Highway Patrol. {¶ 3} Trooper Jacks testified that he located the vehicle driven by Koueviakoe as it entered Gallia County on State Route 35. Hisle was a front seat passenger. The trooper observed the vehicle cross the middle line on three separate occasions. The vehicle, an Oldsmobile minivan, had license plates that came back to a 1991 Pontiac. Because of the marked lane violations and further because the license plate did not match the minivan, he stopped the vehicle. Other officers arrived as well. {¶ 4} Trooper Jacks approached the vehicle on the driver side and talked to Koueviakoe. A deputy sheriff went to the passenger side. Trooper Jacks noticed a strong odor of an air freshener coming from inside the vehicle and that Koueviakoe and Hisle were very nervous. He learned that Hisle had just purchased the vehicle that day and that Koueviakoe had a valid driver's license. {¶ 5} Trooper Jacks advised Koueviakoe that he would give him a warning for a marked lane violation and a ticket for a seat belt violation. He then talked to Koueviakoe and Hisle separately. They said that they were dating each other and going to Gallipolis. However, one said that they were going to see Hisle's mother and the other said Hisle's friend. One said that they would leave on Saturday to return to Columbus and the other said that they would leave on Sunday. In addition, Hisle did not know how to pronounce her boyfriend's last name, i.e. "Koueviakoe." {¶ 6} Instead of allowing Koueviakoe and Hisle to leave, Trooper Jacks began talking to Hisle while waiting for the drug-sniffing dog's arrival. Trooper Jacks testified that he kept them at the scene 10 to 20 minutes before the drug-sniffing dog came. The dog raised its paw or paws and scratched a couple of times, which is an indicator that narcotics were in the vehicle. {¶ 7} The officers searched the vehicle, Koueviakoe and Hisle. They found the cocaine and crack cocaine, which resulted in charges of (1) possession of cocaine and (2) possession of crack cocaine against Koueviakoe. Koueviakoe entered not guilty pleas to the two felony offenses and filed a motion to suppress the cocaine and crack cocaine obtained from the search. {¶ 8} The trial court found that the confidential informant was not pivotal to this case because of other indicators leading to probable cause. Specifically, the trial court found that the officers had probable cause to search because of "[1] the nervousness of the occupants of the vehicle, [2] the registration of the license plates to another vehicle, [3] the discrepancies in the stories told by the occupants, [4] the strong odor of an air fragrance and [5] the `hit' by the drug dog." The trial court did not state at what point during the traffic stop that the trooper had reasonable suspicion of other criminal activity. Moreover, the court did not indicate which of the above five factual findings were necessary before the trooper had reasonable suspicion of other criminal activity. {¶ 9} After Koueviakoe entered a no contest plea, the trial court found him guilty of both felony drug offenses and sentenced him accordingly. {¶ 10} Koueviakoe appeals, asserting the following assignment of error: "The trial court committed reversible error when it failed to grant defendant/appellant Terry Koueviakoe's motion to suppress the drugs that were confiscated during the traffic stop on November 15, 2002, in Gallia County, Ohio." II {¶ 11} Koueviakoe argues that the trooper did not have reasonable suspicion of other criminal activity so that he could detain him until the drug-sniffing dog arrived. The state argues that the trooper had reasonable suspicion to search from the moment he stopped the vehicle. Even though the trial court did not make a factual finding that the "knowledge from the confidential informant" was one of the factors that the trooper could consider for probable cause to search, the state in its argument included it as one of the factors leading to reasonable suspicion of other criminal activity. The state in its argument does not address or dispute that the trooper detained Koueviakoe while waiting on the drug-sniffing dog to arrive. {¶ 12} The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution give "[t]he right of the people to be secure * * * against unreasonable searches and seizures[.]" A search or seizure conducted without a prior finding of probable cause by a judge or magistrate is per se unreasonable, pursuant to the Fourth Amendment, subject to a few specific and well-delineated exceptions. California v.Acevedo (1991), 500 U.S. 565; State v. Kessler (1978),53 Ohio St. 2d 204, 207. The prosecution has the burden of establishing the application of one of the exceptions to this rule designating warrantless searches as per se unreasonable. Id., citations omitted. One exception to the rule is that police officers may search an automobile without a warrant when they have probable cause that it contains contraband Carrol v. United States (1925), 267 U.S. 132. A court must exclude any evidence obtained in violation of that person's Fourth Amendment rights. Mapp v.Ohio (1961), 367 U.S. 643, 655. The purpose of this exclusionary rule is to remove any incentive to violate the Fourth Amendment and, thereby, deter police from unlawful conduct. State v.Jones (2000), 88 Ohio St. 3d 430, 435. {¶ 13} Our review of a decision on a motion to suppress presents mixed questions of law and fact. State v. Hatfield (Mar. 11, 1999), Ross App. No. 98CA2426, citing State v.McNamara (Dec. 23, 1997), Athens App. No. 97 CA 16, citingUnited States v. Martinez (C.A. 11, 1992), 949 F.2d 1117, 1119. At a suppression hearing, the trial court is in the best position to evaluate witness credibility. State v. Dunlap (1995),73 Ohio St. 3d 308, 314. Accordingly, we must uphold the trial court's findings of fact if the record supports them by competent, credible evidence. Id. We then conduct a de novo review of the trial court's application of the law to the facts.State v. Anderson (1995), 100 Ohio App. 3d 688, 691. {¶ 14} Here, Koueviakoe does not contest that competent, credible evidence supports the factors found by the trial court to show probable cause for the search, i.e. "[1] the nervousness of the occupants of the vehicle, [2] the registration of the license plates to another vehicle, [3] the discrepancies in the stories told by the occupants, [4] the strong odor of an air fragrance and [5] the `hit' by the drug dog." Therefore, the issue is whether the trial court's first four factual findings are enough to establish reasonable suspicion of other criminal activity so that the trooper could detain Koueviakoe until the drug-sniffing dog arrived. {¶ 15} The United States Supreme Court has identified three categories of police-citizen contact: the consensual encounter, the investigatory detention and a custodial arrest. See Floridav. Royer (1982), 460 U.S. 491, 501-507; United States v.Mendenhall (1980), 446 U.S. 544, 553. The investigatory detention is relevant here. {¶ 16} An investigative detention, or "Terry stop," constitutes a seizure that implicates the Fourth Amendment.State v. Taylor (1995), 106 Ohio App. 3d 741, 751. A "seizure" occurs under the Fourth Amendment only when, in view of all the circumstances surrounding the incident, the police officer restrains the person's liberty, either by physical force or by show of authority, such that a reasonable person would not feel free to decline the officer's request and walk away. State v.Williams (1990), 51 Ohio St. 3d 58, 61. {¶ 17} When a seizure occurs, the officer must have a reasonable suspicion, based upon specific and articulable facts, that criminal behavior has occurred or is imminent. Terry v.Ohio (1968), 392 U.S. 1, 21; see, also, State v. Chatton (1984), 11 Ohio St. 3d 59, 61. "The investigative detention is limited in duration and purpose and can only last as long as it takes a police officer to confirm or dispel his suspicions."Taylor, supra, at 748. See State v. Robinette (1997),80 Ohio St. 3d 234, paragraph one of the syllabus. "The lawfulness of the initial stop will not support a `fishing expedition' for evidence of crime." State v. Gonyou (1995), 108 Ohio App. 3d 369, 372, quoting State v. Smotherman (July 29, 1994), Wood App. No. 93WD082, citing State v. Bevan (1992), 80 Ohio App. 3d 126, 130. {¶ 18} We determine reasonable suspicion by considering the totality of the circumstances. State v. Bobo (1988),37 Ohio St. 3d 177, paragraph one and two of the syllabus; State v.Ramos, 155 Ohio App. 3d 396, 2003-Ohio-6535; State v. Heard, Montgomery App. No. 19323, 2003-Ohio-1047. We evaluate those circumstances "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. {¶ 19} Here, Trooper Jacks testified that he relied on five indicators to support probable cause, i.e. (1) the knowledge received from the confidential informant, i.e. Koueviakoe and Hisle were transporting cocaine into Gallia County, (2) a strong odor of air freshener, (3) the differences in their stories, (4) Hisle could not pronounce Koueviakoe even though she said that they had been dating for a couple of months (the trial court apparently could not pronounce it either because he asked for permission at the beginning of the hearing to call him "Mr. K" and did not include this problem as an indicator for probable cause) and (5) the dog alerted. These five indicators are different than the trial court's factual findings leading to probable cause. {¶ 20} As we stated earlier, the state does not address or dispute Koueviakoe's claim that the trooper detained Koueviakoe longer than reasonably necessary to write a warning for the marked lane violation and a ticket for the seatbelt violation. For the reasons that follow, we find that the first four factual findings of the trial court did not give the trooper reasonable suspicion to detain Koueviakoe until the drug-sniffing dog arrived. {¶ 21} Trooper Jacks testified that Koueviakoe and Hisle were very nervous. The trial court made this indicator its first factual finding to support probable cause. However, despite the trial court's factual finding, the trooper did not include nervousness as one of the indicators he relied on for probable cause for the search when he testified on cross-examination at the motion to suppress hearing. {¶ 22} The second factual finding by the trial court as an indicator of probable cause was "the registration of the license plates to another vehicle[.]" Trooper Jacks quickly investigated this problem and was satisfied when he discovered that Hisle had just bought the vehicle that day. He did not cite anyone for fictitious tags and did not include this problem in his testimony as one of his indicators that he relied on for probable cause for the search. Instead, it was one of the two reasons that he initially stopped the vehicle. {¶ 23} The third factual finding by the trial court as an indicator of probable cause for the search was "the discrepancies in the stories told by the occupants[.]" Trooper Jacks did testify that the "differences in their stories" was one of the reasons that he used to support probable cause. The main difference in their stories was that one said that they were going to Hisle's mother's house and the other said that they were going to Hisle's friend's house. This is a minor discrepancy (especially if Hisle considers her mother her friend). The other difference in their stories is that one said that they were going to go back to Columbus on Saturday and the other said Sunday. Again, we consider this difference minor. {¶ 24} The fourth factual finding by the trial court as an indicator of probable cause for the search was "the strong odor of an air fragrance[.]" This is an indicator because one of its uses is to mask the odor of drugs. {¶ 25} However, although these four factual findings by the trial court could lead Trooper Jacks to suspect that something was amiss, we find that these indicators are not specific and articulable facts that support a reasonable suspicion that Koueviakoe's vehicle contained drugs. Hence, Trooper Jacks did not have a legal basis to detain Koueviakoe until a drug-sniffing dog could arrive and confirm or dispel his suspicions. See, e.g.,Ramos, supra; State v. Byczkowski (Nov. 16, 2001), Greene App. No. 2002CA31, 2001 WL 1468903. Consequently, after reviewing the totality of the circumstances, we find that the four factual findings by the trial court do not support a conclusion that the trooper had reasonable suspicion of criminal activity so that he could detain Koueviakoe until the drug-sniffing dog arrived. Therefore, the trial court erred when it did not suppress the cocaine and crack cocaine that was found in the vehicle and on Koueviakoe. {¶ 26} We must now decide if we can consider whether the confidential informant gave credible information that the officer could consider as a factor leading to reasonable suspicion of other criminal activity. The most hotly disputed fact in the trial court was whether this information was credible. Yet, the trial court concluded that it did not have to consider this evidence or resolve this dispute. {¶ 27} At a suppression hearing, the trial court is in the best position to evaluate witness credibility. Dunlap, supra, at 314. We then uphold the trial court's findings of fact if the record supports them by competent, credible evidence. Id. However, a reviewing court cannot consider evidence that was not considered by the trial court because it would exceed its role and in effect become a trial court. See, e.g., Murphy v.Reynoldsburg (1992), 65 Ohio St. 3d 356, 360; State v. Cookson (Sept. 25, 2001), Washington App. No. 00CA53, at 4, 2001-Ohio-2587. Hence, we cannot consider whether the information given by the confidential informant is credible or not credible because we would exceed our role. Consequently, on remand, the trial court must resolve this credibility dispute. {¶ 28} Because we find that the trooper detained Koueviakoe for an unreasonable length of time when we consider the trial court's first four factual findings, we need not address his remaining arguments under his assignment of error. Accordingly, we sustain Koueviakoe's assignment of error, reverse the judgment of the trial court and remand this cause to the trial court for further proceedings consistent with this opinion. Judgment reversed and cause remanded. Harsha, J.: Concurs with Concurring Opinion. Abele, J.: Dissents with Dissenting Opinion.

2016-07-06 06:36:43.447613+00

JOURNAL ENTRY AND OPINION {¶ 1} David Lee Hines has filed an application for reopening pursuant to App.R. 26(B). Hines is attempting to reopen the appellate judgment that was rendered by this court in State v.Hines, Cuyahoga App. No. 84218, 2005-Ohio-4421. We decline to reopen Hines' original appeal. {¶ 2} As required by App.R. 26(B)(2)(b), Hines must establish "a showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment" which is subject to reopening. The Supreme Court of Ohio, with regard to the ninety-day deadline as provided by App.R. 26(B)(2)(b), has recently established that: We now reject Gumm's claim that those excuses gave him good cause to miss the 90-day deadline in App.R. 26(B). The rule was amended to include the 90-day deadline more than seven months before Gumm's appeal of right was decided by the court of appeals in February 1994, so the rule was firmly established then, just as it is today. Consistent enforcement of the rule's deadline bythe appellate courts in Ohio protects on the one hand the state'slegitimate interest in the finality of its judgments and ensureson the other hand that any claims of ineffective assistance ofappellate counsel are promptly examined and resolved. Ohio andother states "may erect reasonable procedural requirements fortriggering the right to an adjudication," Logan v. ZimmermanBrush Co. (1982), 455 U.S. 422, 437, 102 S.Ct 1148,71 L.Ed 2d 265, and that is what Ohio has done by creating a 90-day deadlinefor the filing of applications to reopen. Gumm could have retained new attorneys after the court of appeals issued its decision in 1994, or he could have filed the application on his own. What he could not do was ignore the rule's filing deadline. * * * The 90-day requirement in the rule is "applicable to allappellants," State v. Winstead (1996), 74 Ohio St. 3d 277,278, 1996 Ohio 52, 658 N.E.2d 722, and Gumm offers no soundreason why he — unlike so many other Ohio criminal defendants —could not comply with that fundamental aspect of the rule. (Emphasis added.) State v. Gumm, 103 Ohio St. 3d 162, 2004-Ohio-4755,814 N.E.2d 861, at 163. {¶ 3} See, also, State v. Lamar, 102 Ohio St. 3d 467,2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey,73 Ohio St. 3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick,72 Ohio St. 3d 88, 1995-Ohio-249, 647 N.E.2d 784. Herein, Hines is attempting to reopen the appellate judgment that was journalized on September 6, 2005. The application for reopening was not filed until December 9, 2005, more than ninety days after journalization of the appellate judgement in State v. Hines, supra. Hines has failed to establish "a showing of good cause" for the untimely filing of his application for reopening. Statev. Klein (Apr. 8, 1991), Cuyahoga App. No. 58389, reopening disallowed (Mar. 15, 1994), Motion No. 49260, affirmed (1994),69 Ohio St. 3d 1481; State v. Trammell (July 24, 1995), Cuyahoga App. No. 67834, reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis (Apr. 5, 1990), Cuyahoga App. No. 56825, reopening disallowed (Nov. 2, 1994), Motion No. 51073, affirmed (1995), 72 Ohio St. 3d 317. {¶ 4} Accordingly, the application for reopening is denied. Gallagher, J., Concurs. McMonagle, J., Concurs.

2016-07-06 06:36:43.500353+00

OPINION Appellant Gary Summers is appealing the decision of the Tuscarawas County Court of Common Pleas that found him to be a "sexual predator" as defined in R.C. 2950.01(E). The following facts give rise to this appeal. On May 1, 1995, appellant plead guilty to a charge of gross sexual imposition. On November 29, 1995, the trial court granted appellant probation and suspended an eighteen-month sentence. The terms of appellant's probation required him to spend thirty days in jail, complete all counseling and have no contact with the victim or his family. Appellant's probation officer filed a motion to revoke appellant's probation on April 4, 1996. The trial court conducted the probation revocation hearing on July 1, 1996. Following the hearing, the trial court revoked appellant's probation and imposed the eighteen-month sentence. Appellant served his sentence and was released from prison on March 9, 1997. Prior to his release, on February 25, 1997, the trial court scheduled a hearing for April 8, 1997, to determine if appellant should be classified a "sexual predator". Following the hearing in this matter, the trial court issued a judgment entry on August 19, 1997, designating appellant a "sexual predator" and therefore, subject to the registration requirements of R.C. Chapter 2950. Appellant timely filed his notice of appeal and sets forth the following assignment of error for our consideration: 1. THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY LAW. 1. THE COURT'S DECISION DOES NOT SET FORTH ANY FACTS UPON WHICH IT CONCLUDES MR. SUMMERS IS REQUIRED TO REGISTER. 2. THE FACTS AS SET FORTH IN THE RECORD CLEARLY SHOW THAT O.R.C. 2950.04 IS NOT APPLICABLE TO MR. SUMMERS. 3. O.R.C. 2950.04 DID NOT BECOME EFFECTIVE UNTIL AFTER MR. SUMMERS SERVED THE ENTIRETY OF HIS SENTENCE AND WAS RELEASED FROM PRISON. I Appellant contends, in support of his sole assignment of error, that only those persons whose cases are pending after the effective date of R.C. 2950.04 can be subject to the registration requirement. We agree, but find the trial court properly designated appellant a "sexual predator" under R.C. 2950.09(C)(1). R.C. 2950.04(A) addresses the duty to register and sets forth each class of offender that is required to register. The effective date of this statute was July 1, 1997. This statute provides, in pertinent part: (A) Each offender who is convicted of or pleads guilty to, or has been convicted of or pleaded guilty to, a sexually oriented offense and who is described in division (A)(1), (2), or (3) of this section shall register at the following time and with the following official: (1) Regardless of when the sexually oriented offense was committed, if the offender is sentenced for the sexually oriented offense to a prison term, a term of imprisonment, or any other type of confinement and if, on or after the effective date of this section, the offender is released in any manner from the prison term, term of imprisonment, or confinement, * * *. (2) Regardless of when the sexually oriented offense was committed, if the offender is sentenced for a sexually oriented offense on or after the effective date of this section and if division (A)(1) of this section does not apply, * * *. (3) If the sexually oriented offense was committed prior to the effective date of this section, if neither division (A)(1) nor division (A)(2) of this section applies, and if, immediately prior to the effective date of this section, the offender was a habitual sex offender who was required to register under Chapter 2950 * * *. We find none of the above subsections of R.C. 2950.04(A)(1) through (3) applicable to appellant. The trial court sentenced appellant prior to the effective date of the statute and reimposed the original eighteen-month sentence prior to the effective date of the statute. The record also indicates appellant was released from prison before the effective date of the statute. This precludes the application of R.C.2950.04(A)(1) and (2). We also find R.C. 2950.04(A)(3) inapplicable because appellant was not found to be a habitual sex offender prior to the effective date of this statute. Pursuant to R.C. 2950.04(A)(3), appellant could have been classified a habitual sex offender prior to his release from prison, and therefore, subject to the registration requirements of the statute. The state failed to attempt to have appellant classified a habitual sex offender prior to his release on March 9, 1997. Therefore, we find the trial court cannot impose upon appellant a duty to register pursuant to R.C. 2950.04. However, we do find appellant can be classified a "sexual predator" under R.C.2950.09, which addresses the sexual predator classification procedure. The effective date of this statute was January 1, 1997. R.C. 2950.09(C)(1) applies to appellant. The applicable subsection provides: (C)(1) If a person was convicted of or pleaded guilty to a sexually oriented offense prior to the effective date of this section, if the person was not sentenced for the offense on or after the effective date of this section, and if, on or after the effective date of this section, the offender is serving a term of imprisonment in a state correctional institution, prior to the offender's release from the term of imprisonment, the department of rehabilitation and correction shall determine whether to recommend that the offender be adjudicated as being a sexual predator. (Emphasis added.) The record, in the case sub judice, indicates by judgment entry dated February 25, 1997, that the department of rehabilitation and correction recommended that appellant be adjudicated a sexual predator. This recommendation occurred prior to appellant's release from prison in March 1997. The fact that the trial court did not conduct the hearing and designate appellant a sexual predator prior to his release is immaterial. Based on our interpretation of R.C. 2950.09, we find subsection (C)(1) only requires the department of rehabilitation and correction make its recommendation prior to the offender's release. There is no requirement that an offender be designated a "sexual predator" prior to release from prison. However, as explained above, appellant is not required to register pursuant to R.C.2950.05(A)(1), (2), or (3). Therefore, we find the trial court properly designated appellant a "sexual predator". However, appellant is not subject to the registration requirement of R.C.2950.04. Appellant's assignment of error is overruled. For the foregoing reasons, the judgment of the Court of Common Pleas, Tuscarawas County, Ohio, is hereby affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. By: Wise, P. J. Hoffman, J., and Farmer, J., concur.

2016-07-06 06:36:43.5342+00

OPINION {¶ 1} Defendant-appellant, Brad Isbell, appeals the decision of the Butler County Court of Common Pleas denying his petition for postconviction relief. We affirm the decision of the trial court. {¶ 2} Pursuant to a negotiated plea agreement, appellant pled guilty to aggravated murder, aggravated robbery, and witness intimidation. As a result, the state agreed that appellant would be sentenced to 30 years to life in prison on the aggravated murder charge. The state also agreed that any sentence for the witness intimidation charge would be served concurrent to the life sentence. No agreement was made with regard to the sentence for aggravated robbery. The trial court accepted appellant's plea after completing a thorough Crim.R. 11(C) colloquy. {¶ 3} Appellant was convicted on all counts and sentenced to 30 years to life in prison on the aggravated murder conviction, a four-year consecutive prison term on the aggravated robbery conviction, and a three-year concurrent prison term on the witness intimidation conviction. Although reversing an order that appellant pay appointed counsel costs, this court affirmed appellant's convictions and prison sentences on appeal. SeeState v. Isbell, Butler App. No. CA2002-07-160, 2003-Ohio-4751. {¶ 4} In April 2003, appellant filed a petition for postconviction relief alleging that his trial counsel was ineffective and that the aggravated murder conviction was not supported by sufficient evidence. The state filed a motion to dismiss the petition on res judicata grounds. In a thorough decision granting the motion to dismiss, the trial court considered each of appellant's grounds for relief and made findings of fact and conclusions of law with regard to each. Appellant appeals the dismissal of his petition. Although not succinctly articulated in his brief, the crux of appellant's appeal is that the trial court erred by dismissing his petition for postconviction relief without a hearing. {¶ 5} In support of this contention appellant raises four arguments. His first three arguments allege that his trial counsel was ineffective. Because they involve related issues, these three arguments will be addressed together. They are: {¶ 6} "1.) Counsel scared the appellant into his guilty plea. By telling the appellant to plea guilty or else he was going to get the death penalty. {¶ 7} "2.) Counsel worked a plea agreement with the prosecutor's office for twenty years to life, and all sentences was [sic] to run concurrent to each other. This was promised to the appellant by his counsel. {¶ 8} "3.) Counsel therefore told the appellant to lie in court and say that `Nothing was promised to him for his guilty plea.' Were [sic] in fact the appellant was promised a sentence of twenty (20) year [sic] to life, and all other sentences to be ran [sic] concurrent to each other." {¶ 9} A criminal defendant who seeks to challenge his conviction through a petition for postconviction relief is not automatically entitled to an evidentiary hearing. State v.Calhoun, 86 Ohio St. 3d 279, 282, 1999-Ohio-102. "Pursuant to R.C. 2953.21(C), a trial court properly denies a defendant's petition for postconviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief." Id. at paragraph two of the syllabus. In addition, before a hearing is warranted, the petitioner must demonstrate that the claimed errors "resulted in prejudice." Id. at 283. A trial court's decision to grant or deny the petitioner an evidentiary hearing is left to the sound discretion of the trial court. See id. at 284 (stating that the postconviction relief statute "clearly calls for discretion in determining whether to grant a hearing"). {¶ 10} To establish a claim of ineffective assistance of counsel, appellant must show that counsel's actions were outside the wide range of professionally competent assistance and that he was prejudiced as a result of counsel's actions. Strickland v.Washington (1984), 466 U.S. 668, 689, 104 S. Ct. 2052, 2065. Therefore, "the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness." State v. Jackson (1980), 64 Ohio St. 2d 107, syllabus. In the context of a guilty plea, prejudice will not be found unless a defendant demonstrates there is a reasonable probability that, if not for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 59,106 S. Ct. 336, 370. {¶ 11} Appellant first alleges that his trial counsel was ineffective for "scaring" him into accepting the plea agreement because he would otherwise face the death penalty. We agree with the trial court's conclusion that trial counsel's statement "would not establish that [his] plea was coerced because such a statement was factually accurate." Appellant was charged with a capital offense, punishable by death. He has produced no evidence that his plea was anything other than a reasonable choice since he would face a possible death sentence if the matter proceeded to trial. Further, review of the transcript of the plea hearing reveals that appellant twice told the trial court that no one had forced or threatened him into accepting the plea agreement. {¶ 12} Appellant's second and third arguments allege that trial counsel was ineffective because the sentence imposed was contrary to the plea agreement as appellant understood it. Appellant asserts that pursuant to the plea agreement, he was to be sentenced to concurrent prison terms on all counts, and that the prison sentence on the aggravated murder charge would be 20 years to life in prison. {¶ 13} Contrary to appellant's assertions, review of the transcript of the plea hearing reveals that the trial court informed appellant at least four times that he faced a minimum sentence of 30 years to life in prison. Each time appellant indicated that he understood and indicated that no other promises had been made to him. The record of the plea hearing has greater probative value than appellant's self-serving, contradictory affidavit standing alone. See State v. Kuyper (1997),121 Ohio App. 3d 158, 161. {¶ 14} We further note that, in general, self-serving affidavits submitted by a defendant in support of his claim for postconviction relief are insufficient to trigger the right to a hearing or to justify granting the petition under R.C. 2953.21.State v. Kapper (1983), 5 Ohio St. 3d 36, 38; State v.Williams (1991), 74 Ohio App. 3d 686, 699. The only evidence submitted by appellant which supports his ineffective assistance of counsel claim is his own affidavit in which he makes several self-serving statements which attempt to impugn trial counsel's performance. This evidence by itself is insufficient to mandate a hearing or to justify granting the petition for postconviction relief. Kapper at 38; Williams at 699. {¶ 15} Appellant's fourth argument alleges that "[t]he murder conviction is not supported by any evidence." This contention fails for two reasons. {¶ 16} First, appellant's guilty plea constituted "a complete admission of [his] guilt." Crim.R. 11(B)(1). By entering the plea, appellant waived the right to require the state to prove his guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c). Consequently, there is no evidence to consider, and the trial court was not required to determine whether a factual basis existed to support the guilty plea, prior to entering judgment on that plea. See State v. Caldwell (2001), Butler App. No. CA99-08-144, citing State v. Wood (1976), 48 Ohio App. 2d 339,344. Appellant's plea provides the necessary proof of the elements of the crime and sufficient evidence to support the conviction. {¶ 17} Second, arguments challenging the sufficiency of evidence to support a criminal conviction are claims that can be raised on direct appeal, and therefore are barred by res judicata for purposes of collateral proceedings, such as a postconviction relief proceeding. See State v. Szefcyk, 77 Ohio St. 3d 93, 96,1996-Ohio-337 (citations omitted). {¶ 18} For the foregoing reasons, we overrule appellant's assignment of error and affirm the trial court's decision dismissing appellant's motion for postconviction relief without a hearing. {¶ 19} The judgment is affirmed. Judgment affirmed. Young, P.J., and Powell, J., concur.

2016-07-06 06:36:43.603641+00

This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas, oral arguments and the briefs. In 1988, defendant Barbara Pettis pleaded guilty to theft and trafficking in food stamps. The court suspended a one-year prison term and ordered defendant to serve three years probation. The court also ordered defendant to pay $20,396 in restitution. In 1998, after completing her probation, defendant filed a motion pursuant to R.C. 2953.32 asking the court to seal the record of her conviction. The state objected and, citing to our decision in State v. Wainwright (1991), 75 Ohio App. 3d 793, argued that defendant failed to pay complete restitution as required by her sentence because she had a $15,108 balance on the restitution owed. Defendant told the court she paid $250 a month for three years (the term of her probation) and believed the restitution applied only to her probationary period — that once she completed the three years probation she did not believe she owed any more money. The court, noting defendant signed a cognovit note at the time of her sentencing, determined that defendant made complete restitution and granted the motion to seal the record. This appeal followed. An offender may have a record of conviction sealed three years "after the offender's final discharge if convicted of a felony." See R.C. 2953.32 (A) (1). An offender is not finally discharged until she has served any sentence previously imposed by the court. See Willowick v. Langford (1984), 15 Ohio App. 3d 33,34. The sentence imposed by the court includes the terms of probation. R.C. 2951.02(C) provides in part: In the interests of doing justice, rehabilitating the offender, and insuring his good behavior, the court may impose additional requirements on the offender, including * * * requiring an offender to make restitution * * * for all or part of the value of the property that is subject to any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, that he committed. Compliance with the additional requirements shall also be a condition of the offender's probation or other suspension. (emphasis added). Since defendant had not fully paid restitution as ordered by the terms of her probation, the court could not seal the record of her conviction pursuant to R.C. 2953.32 because she had not been "finally discharged" as required by the statute. In Wainwright, supra, we addressed an identical fact situation. The trial court sentenced Wainwright to probation and ordered him to pay restitution. When Wainwright applied to have the record of his conviction sealed less than three years after completing full restitution, the trial court granted Wainwright's motion to seal the record of his conviction. We reversed, finding that Wainwright had not been finally discharged until he paid full restitution and that the trial court erred by granting the motion to seal the record of Wainwright's conviction less than three years after making full restitution. Id. at 795. The added wrinkle in this case is that defendant signed a cognovit note for the amount of restitution at the time she was sentenced. The record suggests this is the practice in the Welfare Department, and the court, having otherwise noted our decision in Wainwright, apparently thought the cognovit note a sufficient promise of payment to find that full restitution had been made at the time of sentencing. The flaw with the court's position is that a promissory note cannot be considered "payment in full" sufficient to constitute a final discharge under R.C. 2953.32. A promissory note is nothing more than the promise to pay in the future — by definition, the holder of a promissory note is not paid until the holder actually receives payment pursuant to the terms of the note. Until the holder of a note actually has payment in hand, the debt cannot be considered to be discharged. The court's error in construing the cognovit note as full payment of restitution is demonstrated by defendant's own admissions. Defendant did not initially remember signing a note, so the court continued the hearing and asked a representative from the probation department to determine whether defendant did sign a note. When the hearing reconvened, the representative from the probation department told the court: "I did call the Welfare Department and they indicated that [defendant] had signed a cognovit note because that was the procedure at the time and I believe it still is to this day and they also indicated that her starting restitution amount was $20,000 and she has a remaining balance of approximately $15,000 to this date." The probation department representative's statement should have been a red flag to the court because defendant candidly told the court that she considered restitution complete upon expiration of her probation. Defendant's statement was clearly in error because at no point had the court formally vacated the restitution order. By defendant's own reckoning, nearly ten years had passed since her conviction and she had not paid any amount of restitution for more than seven years. Restitution can be an integral part of an offender's sentence, not only as punishment, but for rehabilitation as well. In Kelly v. Robinson (1986), 479 U.S. 36, the United States Supreme Court stated: "The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment 'for the benefit of' the victim, the context in which it is imposed undermines that conclusion. * * * 'Unlike an obligation which arises out of contractual, statutory or common law duty, here the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.' " Citing In re Pellegrino (1984), 42 B.R. 129, 133. Under the circumstances, it appears that defendant's "promise" to pay restitution as part of her sentence was an empty one because by her own admission, she had no intention of making any further payments. Until such time as the restitution order is paid in full, defendant cannot be considered to have completed the terms of her sentence, and hence cannot be considered "finally discharged" for purposes of having the record of her conviction sealed.1 The assigned error is sustained. Judgment reversed. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their 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. _______________________________ JAMES M. PORTER, ADMINISTRATIVE JUDGE _______________________________ TERRENCE O'DONNELL, JUDGE _______________________________ JOHN T. PATTON, Judge N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). 1 We note that restitution orders imposed by state criminal courts as part of a criminal sentence are preserved from discharge in bankruptcy pursuant to Section 523 (a) (7) of Chapter 7 of the United States Bankruptcy Code. Kelly v.Robinson, 479 U.S. at 362-363; Pennsylvania Dept. of PublicWelfare v. Davenport (1990), 495 U.S. 552.

2016-07-06 06:36:43.6518+00

OPINION {¶ 1} Appellant, David M. Tuttle ("Tuttle"), appeals the November 15, 2005 judgment entry of the Willoughby Municipal Court denying his motion to suppress. {¶ 2} On September 17, 2005, Tuttle was issued five citations for violations of Willoughby Ordinances ("WO") as follows: operating a vehicle while under the influence of alcohol or drug abuse ("OVI"), in violation of WO 434.01(A)(1); operating a vehicle with a prohibited concentration of breath alcohol; in violation of WO 434.01(A)(8); driving while under suspension, in violation of WO 436.07(A); operating a vehicle with no operator's license; in violation of WO 436.01(A)(1), all misdemeanors of the first degree; and driving left of center, in violation of WO 432.06(A), a minor misdemeanor. On October 13, 2005, Tuttle filed a motion to suppress evidence based upon a lack of probable cause for the OVI arrest. {¶ 3} At the hearing on the motion to suppress, Lieutenant Jack Poshe ("Officer Poshe"), of the Willoughby Police Department, testified as follows: at approximately 3:30 a.m. on September 17, 2005, he was on duty and driving westbound, behind a minivan, on Pelton Road in Willoughby. A vehicle driven by Tuttle made a wide left turn onto Pelton Road from Lost Nation Road, crossing over onto the lane occupied by the minivan. The minivan was forced to brake suddenly in order to avoid the vehicle driven by Tuttle. Officer Poshe turned around and followed Tuttle's car traveling eastbound on Pelton Road. Tuttle's car went left of center, and then Tuttle drove off the road onto the right of way. Officer Poshe activated his overhead lights to perform a traffic stop. Tuttle pulled over to a stop in the parking lot of the Willoughby Shredder Plant. Tuttle exited his vehicle, almost fell down, stumbled and fell back on the car. Officer Poshe then approached Tuttle and observed that Tuttle smelled heavily of alcohol and had glassy eyes. Officer Poshe further observed that Tuttle's head was swaying and that Tuttle showed problems focusing, had signs of slurred speech, and admitted that he had been at a bar. Officer Poshe did not perform field sobriety testing. He arrested Tuttle for operating a vehicle while under the influence of alcohol. About ten minutes later, two additional police officers arrived at the scene. {¶ 4} After booking, Tuttle was tested for Breath Alcohol Content ("BAC"), and was charged with prohibited BAC, when the results indicated a reading of .292. {¶ 5} On November 15, 2005, the trial court denied Tuttle's motion to suppress.1 In its judgment entry, the court found that Officer Poshe's "specific personal observations" of Tuttle supported a finding of "probable cause to arrest * * * without the field sobriety test results." It is from that judgment that Tuttle filed a timely appeal raising the following assignments of error: {¶ 6} "[1.] The officer lacked probable cause to make a warrantless arrest of the defendant-appellant. {¶ 7} "[2.] The trial court erred in denying defendant-appellant's motion to suppress as the totality of the circumstance does not warrant his arrest when the lieutenant failed to conduct field sobriety tests. {¶ 8} "[3.] The trial court erred in denying defendant-appellant's motion to suppress because there were not exigent circumstances wherefore the field sobriety tests could not be performed." {¶ 9} We shall address Tuttle's assignments of error together as they relate to the court's denial of Tuttle's motion to suppress based upon probable cause to arrest in the absence of field sobriety testing. {¶ 10} At a hearing on a motion to suppress, the trial court functions as the trier of fact. Accordingly, the trial court is in the best position to weigh the evidence by resolving factual questions and evaluating the credibility of witnesses. State v.Mills (1992), 62 Ohio St. 3d 357, 366; State v. Smith (1991),61 Ohio St. 3d 284, 288. On review, an appellate court must accept the trial court's findings of fact if they are supported by competent and credible evidence. State v. Retherford (1994),93 Ohio App. 3d 586, 592. After accepting the factual findings as true, the reviewing court must independently determine, as a matter of law, whether the applicable legal standard has been met. Id. at 592. See, also, State v. Swank (2002), 11th Dist. No. 2001-L-054, 2002-Ohio-1337. {¶ 11} In the case sub judice, Tuttle does not argue that the initial traffic stop was not justified based upon Officer Poshe's observations. Rather, Tuttle specifically asserts that Officer Poshe lacked reasonable suspicion to justify the investigative stop, beyond that for a traffic violation. {¶ 12} The Fourth Amendment of the United States Constitution, as well as Article One, Section Fourteen, of the Ohio Constitution, guarantees "`the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' When a police officer stops an automobile and detains its occupants, a `seizure' is committed within the meaning of the Fourth andFourteenth Amendments of the United States Constitution." Statev. Wojtaszek, 11th Dist. No. 2002-L-016, 2003-Ohio-2105, at ¶ 15, citing Delaware v. Prouse (1979), 440 U.S. 648, paragraph two of the syllabus. "It is well established that an officer may stop a motorist upon his or her observation that the vehicle in question violated a traffic law." State v. Boczar, 11th Dist. No. 2004-A-0063, 2005 Ohio 6910, at ¶ 11, citing Dayton v.Erickson, 76 Ohio St. 3d 3, 11-12, 1996-Ohio-431. Moreover, this court has repeatedly held that when a police officer witnesses a traffic violation, he or she is warranted in making a stop to issue a citation. Village of Waite Hill v. Popovich, 11th Dist. No. 2001-L-227, 2003-Ohio-1587, at ¶ 14. However, because any further detention is a greater invasion into an individual's liberty interests, an officer may not request a motorist to perform field sobriety tests unless the request is separately justified by a reasonable suspicion based upon articulable facts that the motorist is intoxicated. State v. Evans (1998),127 Ohio App. 3d 56, 62, citing State v. Yemma (Aug. 9, 1996), 11th Dist. No. 95-P-0156, 1996 Ohio App. LEXIS 3361. A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold. Popovich, supra, at ¶ 11; State v. Dye, 11th Dist. No. 2001-P-0140, 2002-Ohio-7158, at ¶ 18. {¶ 13} Here, the trial court relied on Officer Poshe's testimony, and found that in the operation of his vehicle, Tuttle made a turn that "crossed over onto the land operated by the minivan," subsequently "went left of center," and then "went off the right of way." These facts support a finding that Tuttle committed traffic violations and that Officer Poshe possessed probable cause to stop the vehicle. {¶ 14} These facts are further sufficient for a finding that Officer Poshe possessed a reasonable, articulate suspicion that Tuttle's driving was impaired. Further, Officer Poshe testified that upon the stop, Tuttle immediately got out of his car, on his own, almost fell, and stumbled. Tuttle argues that his stumbling did not provide additional facts upon which Officer Poshe could rely for an investigative stop, because a reasonable person could have assumed that given the early morning time of the stop, Tuttle may have only been extremely tired. We disagree. {¶ 15} Based upon the totality of the circumstances, including the time of the incident, Tuttle's erratic driving, and his actions of stumbling and falling, Officer Poshe possessed a reasonable, articulate suspicion on which to conduct a further investigatory stop, on the basis that Tuttle was committing or about to commit a crime, namely driving while under the influence of alcohol. {¶ 16} Next, Tuttle argues that the state failed to prove probable cause for his OVI arrest. {¶ 17} In determining if a police officer had probable cause to arrest an individual for driving under the influence, a court must consider whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence. Beck v. Ohio (1964), 379 U.S. 89, 91; State v.Homan, 89 Ohio St. 3d 421, 427, 2000-Ohio-212. To make this determination, a court must examine the totality of facts and circumstances surrounding the arrest. Homan at 427. {¶ 18} Tuttle first argues that Officer Poshe was required to administer the field sobriety test before his arrest, pursuant to this court's holding in Wickliffe v. Gutauckas (1992),79 Ohio App. 3d 224. {¶ 19} We do not construe our holding in Gutauckas as standing for the proposition that where, based on all the information available to the officer, a police officer has probable cause to believe that an individual is guilty of OVI, he is required to conduct field sobriety tests before he may arrest the individual. {¶ 20} In the Gutauckas decision, we held that there was no probable cause to arrest where no erratic driving was observed, and no field sobriety tests were performed before the arrest. Unlike the case at bar, in Gutauckas, the unlawful arrest was based solely upon an observation that the defendant was intoxicated one hour before the stop and the smell of alcohol at the time of the stop. {¶ 21} Tuttle next argues that based upon the Supreme Court's ruling in Homan, field sobriety tests must be administered in strict compliance with standardized procedures, and that probable cause (absent exigent circumstances) must be based on a suspect's performance on one or more of these tests. In his argument, Tuttle suggests that the failure of the officers to perform field sobriety testing, amounts to an improper attempt to circumvent the strict compliance holding of the Homan Court. Tuttle's argument is unpersuasive for two reasons. {¶ 22} First, Tuttle incorrectly sets forth the test to be applied in cases where field sobriety testing is conducted. R.C.4511.19(D)(4)(b) effectively superseded Homan for offenses committed after April 9, 2003 and established a "substantial compliance" standard for the admissibility of field sobriety tests for purposes of probable cause to arrest. State v. Cross, 11th Dist. Nos. 2005-L-030 and 2005-L-031, 2006-Ohio-1679, at ¶22; State v. Miracle, 12th Dist. Nos. CA2003-11-275 and CA2003-11-283, 2004-Ohio-7137, at ¶ 18. {¶ 23} Further, relevant to this appeal, the Homan Court stated, "* * * probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect's poor performance on * * * these tests. The totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered * * * [.]" {¶ 24} Thus, probable cause is not lacking simply because Officer Poshe, or the other responding officers, failed to perform field sobriety tests. {¶ 25} We now address whether the totality of the facts and circumstances, other than field sobriety test results, supports a finding of probable cause for this arrest pursuant to Beck andHoman. {¶ 26} Between the initial stop and the decision to arrest Tuttle, Officer Poshe testified that he observed the following facts. "Tuttle exited the car before [Officer Poshe] even got his own car door open. [Tuttle] almost fell down, grabbed onto the door, finally righted himself, * * * started stumbling around and fell back onto the car[.]" Officer Poshe observed a "heavy odor" of alcohol, and that Tuttle's eyes were "extremely glassy" and his head was "swaying * * * [.]" Officer Poshe further testified that Tuttle had a "problem focusing on [Officer Poshe]." When Officer Poshe asked Tuttle "what he was doing," Tuttle responded that he had been at a bar and exhibited slurred speech. Officer Poshe further testified that he helped hold Tuttle in an upright position because he "was afraid that [Tuttle] was going to fall down." At that time, Officer Poshe placed Tuttle under arrest for driving under the influence. {¶ 27} This court has consistently held that a police officer's observations of a strong odor of alcohol, bloodshot and glassy eyes, and slurred speech can form the basis of probable cause to arrest for DUI. State v. Tripi, 11th Dist. Nos. 2005-L-030 and 2005-L-131, 2006-Ohio-1687, at ¶ 24, citing,State v. Hancock, 11th Dist. No. 2004-A-0046, 2005-Ohio 4478, at ¶ 17; State v. Rendina, 11th Dist. No. 98-L-129, 1999 Ohio App. LEXIS 6269, at 16-17. {¶ 28} We conclude that based upon the totality of the circumstances, at the moment of Tuttle's arrest, Officer Poshe had reasonable grounds to believe that Tuttle had been driving under the influence. {¶ 29} Accordingly, appellant's first, second, and third assignments of error are without merit and the judgment of the Willoughby Municipal Court is affirmed. William M. O'Neill, J., Diane V. Grendell, J., concur. 1 Tuttle subsequently changed his plea from not guilty to no contest on all charges. The trial court found Tuttle guilty of all charges and imposed sentence. Tuttle's sentence has been stayed pending appeal.

2016-07-06 06:36:50.703829+00

OPINION {¶ 1} Plaintiff-appellant Mark Hiner appeals from the January 18, 2005, Judgment Entry of the Stark County Court of Common Pleas denying his Motion for a New Trial. STATEMENT OF THE FACTS AND CASE {¶ 2} On January 26, 2001, appellant Mark Hiner's grandmother, Ann Hiner, was killed in an automobile accident. At the time of the accident, appellant had an automobile liability insurance policy with appellee Nationwide Mutual Insurance Company which contained underinsured motorist coverage in the amount of $12,500.00 per person. {¶ 3} On January 23, 2004, appellant filed a complaint against appellee, alleging that he was entitled to "the $12,500.00 underinsured motorist coverage for the wrongful death of Ann E. Hiner." Appellant specifically sought damages under R.C. 2125.02, the wrongful death statute. A jury trial commenced on October 13, 2004, to determine appellant's damages. {¶ 4} At trial, appellant's mother, Jane Hiner, testified that Ann Hiner [hereinafter "the decedent"] was her mother-in-law and that after her husband, the decedent's son, was injured in an accident twenty four years earlier and was permanently and totally disabled, the decedent "stepped up to be like she was like a second mother to my children, and she was there when I couldn't be because of all the rehab and stuff that my husband experienced." Transcript at 159. At the time of his father's accident, appellant was twelve years old. According to Jane Hiner, after the accident, the decedent would cook for her grandchildren and counsel them and would take them to school events and church. Jane Hiner further testified that her mother-in-law planned her grandchildrens' weddings and gave them money to purchase their first homes and was very close to her great grandchildren. {¶ 5} During direct examination, Jane Hiner further testified that the decedent was the matriarch of the family and that the family frequently got together for birthdays and holidays. When asked about the decedent's relationship with appellant, Jane Hiner testified that appellant, who was the first born grandchild, was the decedent's favorite grandchild and that the decedent spoiled him and would always give him money. At trial, Jane Hiner was also questioned about her mother-in-law's health. Jane Hiner testified that the decedent had a mastectomy three years prior to the accident that killed her and that "the cancer had returned with a vengeance and she was undergoing chemotherapy." Transcript at 165. According to Jane Hiner, the cancer had spread to the decedent's lungs and brain, and at the time of her death, the decedent was still undergoing chemotherapy. The following testimony was adduced when Jane Hiner was asked whether the decedent was still there for her grandchildren at the time of her illness: {¶ 6} "A. Oh yes, all the time. She would, uh, have me bring them over — well, they live on a lake so that was an incentive, you know, especially in the warm weather, they had the beach and stuff. She always went on picnics, and she like, she liked, uh — Christmastime was her favorite. You know, she would decorate a bulb for each grandchild or child and — she was definitely the hub of the family." Transcript at 166-167. Hiner further testified that appellant took the decedent to chemotherapy four times a week and was the decedent's handyman. {¶ 7} At trial, Jane Hiner testified that the decedent had left for Florida on November 15, 2000, to stay with her daughter for a few months and that, in January of 2001, she and her husband flew down to Florida to pick the decedent up and bring her home. The decedent was killed instantly due to an accident on the way home from the airport. The following testimony was adduced when Jane Hiner was asked what impact the decedent's death had on appellant: {¶ 8} "A. Well, most certainly, um, it was, it was a dual tragedy for everybody, you know, to lose somebody that fought so gallantly to live, um, and then almost lose his parents,1 too. He was a little bit out of control for a while even though he tried to be brave and, and help and, and show — cause I was hurt pretty bad and he had to take over a lot at the farm and, um — we could not let him go to the trial of fellow that — of the fellow that hit us because we were afraid he would physically — there would be a physical altercation and, um —." Transcript at 176-177. {¶ 9} On cross-examination, Jane Hiner testified that the decedent was treated for cancer while she was in Florida and that the doctors in Florida had told the decedent that she could not receive radiation again. According to Jane Hiner, the decedent would typically spend the entire winter in Florida and would return to Ohio in March or April, so it was unusual for her to return to Ohio in January. {¶ 10} Appellant also testified at trial. Appellant testified that he lived approximately two and a half miles away from the decedent's house and that the decedent, his grandmother, was like a mother to him and was always there, physically and mentally, for him if he had a problem or needed money. Appellant testified that he was "very, very close" to his grandmother. While appellant would borrow money from his grandmother, he was not dependent on her for financial support and tried to pay the money back. When asked, appellant testified that he was not making a claim for financial support. Appellant further testified that he went to his grandmother approximately seventy percent of the time for advice and guidance since his mother was always busy and that his grandmother gave him "good, solid advice." Transcript at 187. The following testimony was adduced when appellant was asked whether he was still going to his grandmother for advice even though she had cancer: {¶ 11} "A. Oh yeah. Yeah, she, she was coming to the end of her life, and it's part of what I missed is when she was coming home, uh, she was coming home — I, I didn't get my family history on her side and a lot of things that, that I didn't — I didn't even get to tell her good-bye or anything. Or hello when she was coming back, you know. {¶ 12} "Q. You knew eventually that she was going to die from the cancer? {¶ 13} "A. Yeah. To, to me that made the possible years she had left of life worth much more than anybody could ever put on it, you know. It's uh — I don't know." Transcript at 187-188. {¶ 14} Appellant further testified that his grandmother, who was teaching him to paint, was a major part of his life and that she was his friend. After hearing of his grandmother's death, appellant "almost flipped out" and "felt lost right away." Transcript at 190, 191. Appellant further testified that his grandmother's death left a big hole in his heart and that he was still not over her death. {¶ 15} On cross-examination, appellant testified that he was married and that the decedent was not living with him at the time of her death. Appellant also testified that the decedent went down to Florida because she knew that she was close to dying and wanted to see her family down in Florida and to get her affairs in order. Appellant further testified that his parents occasionally loaned money to him and that he was not making a claim for loss of services due to his grandmother's death. When asked, appellant testified that he did not receive an inheritance from his grandmother. {¶ 16} At the conclusion of the evidence and the end of deliberations, the jury, on October 13, 2004, returned with a verdict in favor of appellee. The jury's verdict was memorialized in a Judgment Entry filed on October 20, 2004. {¶ 17} Thereafter, on October 27, 2004, appellant filed a Motion for Judgment Notwithstanding the Verdict and/or Motion for a New Trial, arguing that he was entitled to judgment as a matter of law and that the jury verdict was against the manifest weight of the evidence. Pursuant to a Judgment Entry filed on January 18, 2005, the trial court overruled appellant's motions, stating, in relevant part, as follows: {¶ 18} "The evidence showed that the Plaintiff knew that his grandmother, Ann Hiner was terminally ill with cancer, and that she was returning from temporary residence in the State of Florida, to her daughter's residence in Carroll County, Ohio, to prepare for her death. {¶ 19} "Under these circumstances, the jury did not find that the Plaintiff had proved proximate cause of damages to himself, which was a determination they were permitted to make under the instructions given by the court and the verdicts and interrogatories submitted to them." {¶ 20} Appellant now raises the following assignments of error on appeal: {¶ 21} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING A MOTION [SIC] TO A NEW TRIAL BECAUSE THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 22} "II. THE TRIAL COURT ABUSED ITS DISCRETION BY OMITTING EVIDENCE IN A WRONGFUL DEATH CASE THAT THE DECEDENT WAS KILLED BY A DRUNK DRIVER. {¶ 23} "III. THE JURY INSTRUCTION THAT DID NOT INCLUDE AN INSTRUCTION AS TO PROXIMATE CAUSE WAS PLAIN ERROR WHERE THE TRIAL COURT'S CURATIVE INSTRUCTION WAS CONFUSING." I {¶ 24} Appellant, in his first assignment of error, argues that the trial court erred in overruling his motion for a new trial because the jury's verdict was against the manifest weight of the evidence. We disagree. {¶ 25} Appellant specifically alleged that he was entitled to a new trial pursuant to Civ.R. 59(A)(6) and (A)(7). Civ. R. Rule 59 states, in relevant part, as follows: {¶ 26} "(A) Grounds {¶ 27} "A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: . . . {¶ 28} "(6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case; {¶ 29} (7) The judgment is contrary to law . . ." {¶ 30} The granting of a new trial rests in the sound discretion of the trial court. Civ.R. 59. See also Brooks v.Wilson (1994), 98 Ohio App. 3d 301, 648 N.E.2d 552. We cannot substitute our judgment for that of the trial court unless, when considering the totality of the circumstances, the trial court abused its discretion. Holcomb v. Holcomb (1989),44 Ohio St. 3d 128, 541 N.E.2d 597. In order to find an abuse of discretion, we must determine that 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 217,450 N.E.2d 1140. {¶ 31} When considering a Civ.R. 59(A)(6) motion, the trial court must weigh the evidence and pass on the credibility of the witnesses. The trial court's consideration of weight and credibility is not the same as that employed by the jury, but in a more restricted sense of whether it appears to the trial court that manifest injustice has been done and that the verdict is against the weight of the evidence. Rohde v. Farmer (1970),23 Ohio St. 2d 82, 262 N.E.2d 685, paragraph three of the syllabus. A trial judge should "`abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result.'" Bland v. Graves (1993), 85 Ohio App. 3d 644,651, 620 N.E.2d 920. {¶ 32} Further, "[i]t is the function of the jury to assess the damages, and generally, it is not for a trial or appellate court to substitute its judgment for that of the trier-of fact."Betz v. Timken Mercy Med. Ctr. (1994), 96 Ohio App. 3d 211, 218,644 N.E.2d 1058. {¶ 33} Appellant, in his first assignment of error, initially argues that the jury verdict is contrary to law and that, therefore, he is entitled to a new trial in accordance with Civ.R. 59(A)(7). Appellant specifically contends that the verdict is contrary to law since defense counsel admitted during closing argument that appellant suffered damages as a result of the death of his grandmother. {¶ 34} During closing argument, defense counsel stated, in relevant part, as follows: {¶ 35} "If you believe that there is some mental anguish suffered by Mark Hiner as a result of the loss of his grandmother, I think the evidence — I would suggest to you that the evidence supports only sort of the typical emotion, and I don't mean to denigrate it but, the typical emotion, the, the typical sort of grieving that you would feel for the loss of a grandparent, um, and supports nothing in addition to that. {¶ 36} "Uh, and if you consider that, I think fair compensation — and this is why — and this is difficult because we don't have any numbers to work with. We don't have any support numbers. We don't have any loss of services number. We don't have any prospective inheritance numbers. We don't have any numbers. But I would suggest to you that based upon the evidence that a fair evaluation of this loss of typical grieving for the loss of a grandparent would be $1,000. And I would ask if you feel thathe's met his burden and demonstrated that he has sustained thatloss that that would be a fair evaluation of that injury." Transcript at 219-220. (Emphasis added). Furthermore, during opening statements, defense counsel indicated to the jury that "the evidence ultimately will show that this is a normal grief following the loss of a grandparent, um, and nothing beyond that." Transcript at 152. {¶ 37} Based on the foregoing, we find that defense counsel did not stipulate that appellant had suffered damages as a result of the decedent's death. Rather, from our review of the record, it is clear that appellee stipulated that the only issue to be presented to the jury was the amount of damages. {¶ 38} As is stated above, appellant was seeking damages pursuant to R.C. 2125.02, the wrongful death statute. Such statute states, in relevant part, as follows: {¶ 39} "(B) Compensatory damages may be awarded in a civil action for wrongful death and may include damages for the following: {¶ 40} "(1) Loss of support from the reasonably expected earning capacity of the decedent; {¶ 41} "(2) Loss of services of the decedent; {¶ 42} "(3) Loss of the society of the decedent, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education, suffered by the surviving spouse, dependent children, parents, or next of kin of the decedent; {¶ 43} "(4) Loss of prospective inheritance to the decedent's heirs at law at the time of the decedent's death; {¶ 44} "(5) The mental anguish incurred by the surviving spouse, dependent children, parents, or next of kin of the decedent." {¶ 45} Furthermore, R.C. 2125.02(A)(3) also states, in relevant part, as follows: {¶ 46} "(b)(i) In determining the amount of damages to be awarded, the jury or court may consider all factors existing at the time of the decedent's death that are relevant to a determination of the damages suffered by reason of the wrongful death." {¶ 47} In the case sub judice, appellant did not seek damages for loss of support or loss of services or for loss of prospective inheritance. Rather, appellant sought damages for loss of society and mental anguish pursuant to R.C. 2125.02(B)(3) and (5). As is stated above, appellant, an adult married male, testified at trial that the decedent, his grandmother, had been like a second mother to him since he was approximately thirteen years old, that her death caused him mental anguish and that he suffered from the loss of her companionship, guidance, advice and caring. {¶ 48} However, to mitigate damages in a wrongful death action, the defendant may offer evidence into the record which tends to prove that the decedent would only have lived a short period of time had his or her death not been accelerated by the tortious act. Larrissey v. Norwalk Truck Lines, Inc. (1951),155 Ohio St. 207, 98 N.E.2d 419, paragraph two of the syllabus;Taylor v. C. Lawrence Decker, M.D., Inc. (1986),33 Ohio App. 3d 118, 514 N.E.2d 754. See also Freeman v. Univ. of Cincinnati (April 5, 1990), Franklin App. No. 89AP-876, 1990 WL 40039. {¶ 49} In the case sub judice, testimony was adduced at trial that appellant's grandmother, at the time of her death, was terminally ill with cancer that had spread to her brain and lungs. Appellant himself testified that his grandmother returned to Ohio early from Florida since "she knew she was close to getting her affairs in order — in order because she was close to passing." Transcript at 193-194. Furthermore, while appellant claimed that he suffered mental anguish, there was no evidence that he received any type of counseling from a counselor, minister, psychologist or psychiatrist as a result of his grandmother's death. {¶ 50} Based on the foregoing, we find that the trial court did not abuse its discretion in overruling appellant's motion for a new trial. We cannot say that the trial court's decision was arbritrary, unconscionable or unreasonable based on the evidence adduced at trial. {¶ 51} Appellant's first assignment of error is, therefore, overruled. II {¶ 52} Appellant, in his second assignment of error, argues that the trial court abused its discretion in omitting evidence that the decedent, his grandmother, was killed by a drunk driver. We disagree. {¶ 53} The admission or exclusion of evidence rests in the sound discretion of the trial court. State v. Sage (1987),31 Ohio St. 3d 173, 180, 510 N.E.2d 343. Therefore, we will not disturb a trial court's evidentiary ruling unless we find the trial court abused its discretion. "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." See Blakemore, supra. {¶ 54} As a general rule, all relevant evidence is admissible. Evid.R. 402. However, Evid.R. 403(A) reads: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." As an appellate court, we will not interfere with a trial court's balancing of probativeness and prejudice "* * * unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby." State v. Slagle (1992),65 Ohio St. 3d 597, 602, 605 N.E.2d 916. {¶ 55} At trial, appellant sought to introduce evidence that his grandmother, the decedent, had been killed by a drunk driver, arguing that "[m]ental anguish is impacted by the way in which Ann Hiner was killed and being killed by a drunk driver as to the mental anguish of the next of kin . . ." Transcript at 7. The trial court, however, refused to allow in such evidence, finding that the probative value was outweighed by the danger of unfair prejudice to appellee. {¶ 56} We find that the trial court did not abuse its discretion in omitting such evidence since the trial court's decision was not arbitrary, unconscionable or unreasonable. As noted by appellee, since liability for the accident was not at issue in this case, only damages,2 whether or not appellant's grandmother was killed by a drunk driver is irrelevant. Furthermore, assuming, arguendo, that such evidence is probative, we find that the trial court did not abuse its discretion in finding that any probative value would be outweighed by the danger of unfair prejudice to appellee. If the jury knew that appellant's grandmother had been killed by a drunk driver, the jury might be more inclined to award damages to appellant out of moral outrage. Finally, we concur with appellee that any probative value was outweighed by the danger of confusion of issues and misleading of the jury. As noted by appellee in its brief, "[h]ow was the jury to draw this fine, complex legal distinction between offering evidence that the tortfeasor may have been under-the-influence of alcohol only applied to the `mental anguish' of the appellant and was not to be considered when awarding damages?". {¶ 57} Appellant's second assignment of error is, therefore, overruled. III {¶ 58} Appellant, in his third assignment of error, argues that the trial court's jury instructions were confusing and constituted plain error. We disagree. {¶ 59} Implementation of the plain error doctrine is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Reichert v.Ingersoll (1985), 18 Ohio St. 3d 220, 223, 480 N.E.2d 802. The plain error doctrine permits correction of judicial proceedings where error is clearly apparent on the face of the record and is prejudicial to the appellant. Id. Although the plain error doctrine is a principle applied almost exclusively in criminal cases, the Ohio Supreme Court has stated that the doctrine may also be applied in civil cases, if the error complained of would have a material adverse affect on the character and public confidence in judicial proceedings. Id. at 223, citing Schade v.Carnegie Body Co. (1982), 70 Ohio St. 2d 207, 209,436 N.E.2d 1001. {¶ 60} In the case sub judice, after the trial court instructed the jury, appellant's counsel indicated to the trial court, and defense counsel agreed, that there was no definition of proximate cause in the jury instructions. The trial court then read the jury an instruction defining preponderance of the evidence. After being advised by counsel that it had failed once again to give a proximate cause instruction, the trial court instructed the jury as follows: {¶ 61} "THE COURT: Again, I read to you proximate cause. As with the prior reading, this is not to be given any more importance than any other instruction that I've given. {¶ 62} "A party who seeks to recover for injury or damage must prove not only that the other party was negligent but also that such negligence was a proximate or direct cause of injury or damages. {¶ 63} "Proximate cause is an act or failure to act which in the natural and continuous sequence directly produces, uh, injury, physical harm, damages, and without which it would not have occurred. Cause occurs when harm, physical harm, injury, damages is the natural and foreseeable result of the act or failure to act. {¶ 64} "There may be more than one proximate cause. When the negligent act or failure to act of one party continues and combines with and joins — and/or joins the negligence of another to produce the injury, damage — or damage, the negligence of each or both is a cause. It is not necessary that the negligence of each occur at the same time, place nor that there be a common purpose or action." Transcript at 248-249. When asked, appellant's counsel indicated to the trial court that the proximate cause instruction that was given was sufficient. {¶ 65} We find that, once advised of its omission, the trial court correctly defined proximate cause for the jury. We cannot say that, as a whole, the jury instructions were confusing or that there has been a miscarriage of justice. {¶ 66} Appellant's third assignment of error is, therefore, overruled. {¶ 67} Accordingly, the judgment of the Stark County Court of Common Pleas is affirmed. Edwards, J. Boggins, P.J. and Hoffman, J. concur JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to appellant. 1 Jane Hiner and her husband also were injured in the accident. 2 Specifically, the issue at trial was whether appellant was entitled to $12,500.00 underinsured motorist coverage under his insurance policy.

2016-07-06 06:36:50.845358+00

OPINION Appellant, Robert Balaban, appeals a decision of the Lake County Court of Common Pleas. On August 1, 1984, the grand jury indicted him on three counts of rape, in violation of the R.C. 2907.02, felonies of the first degree; three counts of kidnapping, in violation of R.C. 2905.01, felonies of the second degree; four counts of gross sexual imposition, in violation of R.C. 2907.05, felonies of the third degree; and three counts of sexual battery, in violation of R.C. 2907.03, felonies of the third degree. On October 25, 1984, appellant was convicted on all thirteen counts and was sentenced to serve life imprisonment. On November 7, 1984, he filed a motion for a new trial, which was overruled by the trial court. Appellant filed an appeal with this court from the entry denying his motion for a new trial. However, this court affirmed the judgment of the trial court on April 25, 1988. A sexual predator hearing was scheduled for April 22, 1998. Prior to the hearing, appellant filed a motion to dismiss asserting various constitutional challenges, and he filed a motion for public payment of an expert to complete a psychiatric evaluation. Both motions were denied. On August 19, 1998, a hearing was held to determine whether appellant should be adjudicated a sexual predator under R.C. 2950.09(C). In an entry dated August 31, 1998, the trial court found by clear and convincing evidence that appellant was a sexual predator, and he was notified of his registration obligations. Appellant timely filed the instant appeal and assigns the following assignments of error: "[1.] R.C. 2950.09 constitutes a denial of due process and must be held unconstitutional under strict scrutiny because * * * appellant's fundamental rights have been impaired. "[2.] R.C. 2950.09(C) is unconstitutionally vague, thus denying [appellant] due process of law. "[3.] R.C. 2950.09(C) is sufficiently punitive in nature to constitute cruel and unusual punishment. "[4.] R.C. 2950.09(C) is unconstitutional on the basis of double jeopardy. "[5.] The finding that [appellant] is a sexual predator is against the manifest weight of the evidence. "[6.] The trial court erred to the prejudice of [appellant] when it denied him the opportunity to be evaluated by the Lake County Psychiatric Clinic in preparation for the sexual predator determination hearing." In the first four assignments of error, appellant raises four different challenges to the constitutionality of R.C. 2950.09, Ohio's version of New Jersey's Megan's Law. With regard to appellant's constitutional arguments, each of them has been considered and rejected by the Supreme Court of Ohio. See State v. Williams (2000), 88 Ohio St. 3d 513; State v. Cook (1998), 83 Ohio St. 3d 404. Appellant's first assignment of error concerns the Due Process and Equal Protection Clause. Specifically, appellant contends that R.C. Chapter 2950 constitutes a denial of due process and must be held unconstitutional under strict scrutiny because it impairs one's fundamental rights to liberty and privacy. Within this assignment of error, appellant also argues that the statute denies him equal protection of the law. Appellant's argument regarding fundamental rights has been expressly rejected by the Supreme Court of Ohio in Williams, where the Court held that Ohio's sexual predator laws do not improperly impinge upon an offender's natural law rights of privacy, the ability to pursue an occupation, the enjoyment of a favorable reputation, or the acquisition of property. Id. at 525. The Williams decision also rejected the argument raised by appellant that the sexual predator laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Id. at 529-531. Hence, appellant's first assignment of error is without merit. Under the second assignment of error, appellant maintains that R.C. Chapter 2950 is unconstitutionally vague as it gives the trial court virtually no guidance as to which party has the burden of proof nor how strong of a showing is required for a defendant to be adjudicated a sexual predator. In Williams, the Supreme Court rejected these arguments and concluded that Chapter 2950 is not "impermissibly vague" because the statutes provide sufficient guidelines by which a trial court can decide whether the state has established, by clear and convincing evidence, that the defendant is a sexual predator. Id. at 533. The Supreme Court also made it clear that the state has the burden of proof. Id. As a result, appellant's second assignment of error is meritless. In his third assignment of error, appellant contends that R.C. 2950.09(C) amounts to cruel and unusual punishment under the federal and state constitutions as registration requirements traditionally have been viewed as punitive in nature. In Cook, 83 Ohio St.3d at 423, the Supreme Court of Ohio held that the registration and notification provisions of R.C. Chapter 2950 are not punitive but, rather, remedial in nature. In light of this characterization, this court has held that the prohibition against cruel and unusual punishment has no application to the sexual offender laws.State v. Nahrstedt (Dec. 29, 2000), Lake App. No. 98-L-236, unreported, 2001 WL 20549, at 1; State v. Wheeler (July 28, 2000), Lake App. No. 99-L-095, unreported, 2000 WL 1041444, at 3. Thus, appellant's third assignment of error lacks merit. With respect to the fourth assignment of error, appellant submits that R.C. Chapter 2950 is unconstitutional on the basis that it violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Supreme Court of Ohio also rejected this argument due to its conclusion that R.C. Chapter 2950 is neither "criminal," nor a statute that inflicts punishment, thus, R.C. Chapter 2950 does not violate the Double Jeopardy Clauses of the United States and Ohio Constitutions. Williams, 88 Ohio St.3d at 528; see, also, Cook,83 Ohio St. 3d 404 . Appellant's fourth assignment of error is not well-founded. Under the fifth assignment of error, appellant argues that the trial court's sexual predator determination was against the manifest weight of the evidence and that the court failed to use the clear and convincing standard when determining whether appellant was a sexual predator. R.C. 2950.01(E) defines a sexual predator as "a person who has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." The trial court must determine by clear and convincing evidence that the offender has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses before adjudicating him a sexual predator. R.C. 2950.09(C)(2)(b). In making such analysis, the judge must consider all relevant factors, including, but not limited to, all of the following: (a) the offender's age; (b) prior criminal record; (c) the age of the victim of the sexually oriented offense; (d) whether the sexually oriented offense involved multiple victims; (e) whether the offender used drugs or alcohol to impair the victim or prevent the victim from resisting; (f) if the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense, and if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sex offenders; (g) any mental illness or mental disability of the offender; (h) the nature of the offender's sexual conduct, contact, or interaction in a sexual context with the victim was part of a demonstrated pattern of abuse; (i) whether the offender, during commission of the offense, displayed cruelty or threatened cruelty; and, (j) any additional behavioral characteristics that contribute to the offender's conduct. R.C. 2950.09(B)(2)(a) through (j). In determining whether an offender should be classified as a sexual predator, the trial court may use reliable hearsay such as a presentence investigation report or victim impact statement as the Ohio Rules of Evidence do not strictly apply to sexual predator adjudication hearings.Cook, 83 Ohio St.3d at 425. This court stated in State v. King (Dec. 29, 2000), Geauga App. No. 99-G-2237, unreported, 2001 WL 20720, at 3, that: "[t]he trial court is not required to find that a majority of the factors set forth in R.C. 2950.09(B)(2) apply to an offender before it can determine that he is a sexual predator. * * * Furthermore, R.C. 2950.09 does not preclude a trial court from relying on one factor more than another in its determination that an offender qualifies as a sexual predator. * * * Although not specifically mandated by the statute, if, after consideration of the relevant factors, the court determines that the defendant should be classified as a sexual predator, it should declare that the defendant `is likely to engage in the future in one or more sexually oriented offenses,' the quintessential purpose in labeling an offender a `sexual predator.' R.C. 2950.01(E)." (Citations omitted.) Pursuant to State v. Eppinger (2001), 91 Ohio St. 3d 158, 166, the Supreme Court of Ohio has stated that there are three objectives in a sexual offender classification hearing. First, the Supreme Court explained that "it is critical" that "a clear and accurate record of what evidence or testimony was considered should be preserved * * * for purposes of any potential appeal." Id. Second, an expert may be required to assist the trial court in determining whether an offender is likely to engage in a sexually oriented offense in the future. Id. Finally, the Supreme Court indicated that the trial court should consider the statutory factors listed in R.C. 2950.09(B)(2), and it should discuss, on the record, the evidence and factors upon which it relies in making its determination as to the likelihood of recidivism. Id. Moreover, when reviewing a claim that a judgment is against the manifest weight of the evidence, an appellate court must review the entire record, weigh both the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts, the trier of fact lost its way and created a miscarriage of justice. State v. Martin (1983), 20 Ohio App. 3d 172, 175. See, also,State v. Thompkins (1997), 78 Ohio St. 3d 380, 387. In the case sub judice, the record includes clear and convincing evidence that several of the factors set forth in R.C. 2950.09(B)(2), which the trial court considered, apply to appellant. At appellant's adjudication hearing, the court specifically found that: "* * * [Appellant's] age at the time of the offense was 38 and that the age of the victim was 10 years of age. "And that there was a [familial] relationship between the victim and the offender and that is that the offender is the victim's father and there were multiple occurrences over a period of time which demonstrate a pattern of abuse and whenever a family member visits upon another family member a sex offense this Court considers it to be abusive and since it occurred several times over a period of time the Court considers it to be a demonstrated pattern of abuse. "Again since [appellant] is a parent of the victim the Court finds also that there was a display of cruelty. Whenever a parent again has a demonstrated pattern of abuse that is certainly cruelty and cruelty was brought about by the demonstration of threat. "Therefore, the Court finds [appellant to be] a sexual predator under [R.C.] 2950.09." Further, in the judgment entry adjudicating appellant a sexual predator, the trial court lists the factors from R.C. 2950.09(B)(2) it considered in determining appellant was a sexual predator. Specifically, the trial court stated that: (1) appellant was thirty-eight at the time of the offense; (2) the victim was ten at the time; (3) appellant's sexual conduct or interaction included multiple acts of anal penetration against the victim, which demonstrates a pattern of abuse; and (4) appellant was the natural father of the victim and the acts in the context of that relationship amount to cruelty. Therefore, based upon a review of the record, we cannot conclude that the trial court erred by classifying appellant as a sexual predator. Appellant's fifth assignment of error has no merit. Lastly, in his sixth assignment of error, appellant claims that the trial court abused its discretion when it failed to provide him an expert psychological evaluation. The state maintains the court did not abuse its discretion in failing to appoint an expert. In Eppinger, 91 Ohio St.3d at 162, the Supreme Court held that: "* * * an expert witness shall be provided to an indigent defendant at an R.C. 2950.09(B)(1) sexual offender classification hearing if the court determines, within its sound discretion, that such services are reasonably necessary to determine whether the offender is likely to engage in the future in one or more sexually oriented offenses within the meaning of R.C. 2950.01(E)." As the court stated in Cook, supra, a sexual predator hearing is similar to a sentencing hearing and the classification by the court is not considered punishment. Therefore, the decision of whether psychological expert assistance must be provided at the sexual predator hearing is left to the discretion of the trial court for determination on a case by case basis. Here, appellant filed a motion for a psychiatric expert prior to the sexual predator hearing, and the trial court denied his request. Appellant has failed to state with any specificity how the appointment of a psychological expert would have assisted the trial court in making its determination during the hearing. In State v. Russell (Apr. 22, 1999), Cuyahoga App. No. 72796, unreported, 1999 WL 236680, at 4, citing State v. Watts (May 29, 1998), Montgomery App. No. 16738, unreported, 1998 WL 272142, the appellate court held that there was no entitlement to a psychiatric expert evaluation at the state's expense prior to a sexual predator hearing: "* * * an expert's conclusion is not mandated under the sexual predator statute. Consequently, R.C. 2950.09 does not mandate the appointment of an expert for an indigent. However, if need is shown then an indigent is entitled to a state expensed expert." In State v. Broom (1988), 40 Ohio St. 3d 277, 283, the Supreme Court of Ohio, interpreting AKE v. Oklahoma (1985), 470 U.S. 68, and Caldwell v. Mississippi (1985), 472 U.S. 320, held that in order for an indigent to show need for an expert, there must be a showing of "`more than a mere possibility of assistance from an expert.'" In the case at hand, appellant has not demonstrated even a "mere possibility" of assistance from an expert. Thus, it is our view that the trial court did not abuse its discretion in determining that an expert witness was not reasonably necessary to determine whether appellant was likely to engage in the future in one or more sexually oriented offenses within the meaning of R.C. 2950.01(E). Appellant's sixth assignment of error is overruled. For the forgoing reasons, appellant's assignments of error are not well-taken. The judgment of the Lake County Court of Common Pleas is affirmed. PRESIDING JUDGE DONALD R. FORD, CHRISTLEY, J., NADER, J., concur.

2016-07-06 06:36:51.053091+00

Plaintiff's first assignment of error asserts that the trial court improperly granted a directed verdict because her prima facie case contained evidence sufficient to establish that defendant acted intentionally under the test defined by the Supreme Court in Fyffe v.Jeno's, Inc. (1991), 59 Ohio St. 3d 115: [I]n order to establish "intent" for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. Fyffe, 59 Ohio St. 3d 115 at paragraph one of the syllabus. The trial court granted a directed verdict based upon its conclusion that the plaintiff had "failed to establish that prior to plaintiff's decedent's injury, the defendant knew of the existence of a dangerous process, procedure, equipment, or condition within its facility that was substantially certain to cause harm to plaintiff's decedent or any other employee" and had thus presented insufficient evidence on the second prong of the Fyffe test. Judgment Entry at **1-2. But see Fyffe,59 Ohio St. 3d 115, paragraph two of the syllabus. Similarly, the majority now sustains that directed verdict based upon its conclusion that plaintiff's decedent "has failed to raise even the inference" that he was required to engage in a dangerous task, and has thereby failed to present sufficient evidence on the third prong of the Fyffe test. Majority Opinion, ante at *9. Upon review of the evidence in this case, I am convinced that neither claim is entirely accurate, and accordingly, I respectfully dissent. With regard to the first two prongs of the Fyffe test, there is significant evidence in the record that defendant knew that the extruder line was dangerous and that harm to employees as a result of that danger was a substantial certainty. Plaintiff's safety expert James McCarthy visited the defendant's plant, examined the manufacturing line, reviewed defendant's OSHA file and also the depositions of defendant's employees. At trial, Mr. McCarthy stated his expert opinion that Mike Gibson's injury and subsequent death "was a result of lack of de-energization and lockout of an extruder system there at the plant." Transcript at *270. Mr. McCarthy also indicated that the defendant's failure to de-energize and failure to comply with lockout-tagout procedures was not in compliance with OSHA regulations, did not meet the standard of practice in the machinery industry and was not in compliance with defendant's own written policy. See id. at **280-300. He further testified that in his opinion that it was a "100 percent" certainty that molten plastic would spray from an open end of the line as soon as the cold plastic plugging the line became hot enough, e.g., id. at *276-77, and that this known risk was substantially certain to result in serious injury to an employee. See id. at 304. He also offered his expert opinion that if defendant had complied with lockout-tagout and de-energization procedure that Mike Gibson would not have been injured. See id. at *308. Finally, he testified that the risk posed a substantial certainty of harm to not just one of defendant's employees, but all of them. See id. at 306-07. Mr. McCarthy described as a "hazard" the "hot plastic material that exploded out of the system and sprayed and * * * ultimately killed Mr. Gibson." Id. at * 273. He indicated that in safety analysis terms a "risk" is the probability of exposure to a hazard, and noted that "the methodology to analyze the risk is essentially how do you minimize the hazard coming into play, the method for that, to accomplish that. In other words, to keep the plastic from exploding out because it's going to burst through a plug that happens to be in there in a cooled section with hot plastic behind it. * * * * That is done by de-energizing the system, all power systems to it and locking out and tagging out the system."Id. at *274. Mr. McCarthy noted that defendant was aware of the hazard posed by the plastic and was aware of the proper procedures necessary to neutralize that hazard. Mr. McCarthy also observed that it was just a matter of time before an employee was injured by the employer's failure to utilize those procedures: Q: * * * * Let's assume that I let's assume that I want to fix a machine and I take, I open this pipe up and there's a plug at the end of 4 to 5 feet. A: Okay. * * * * Q: [A]ssuming that there is a plug, 4 to 5 feet of solidified plastic which behind it has molten plastic which is about 500 degrees or so, when you calculate this risk, in light of, in light of the fact that this part was de-energized and this part was not de-energized, could you give us your assessment of that risk? A: As soon as the heat melts the plastic plug, it's going to blow out. There's no question of that. It's just, it's 100 percent it's going to blow out. It's not something if it's going to do it, it's just a function of when it's going to do it. It's going to blow out that plug. Id. at **275-76. Mr. McCarthy analogized the mechanism to "putting a snowball in a pipe and running hot water behind it. Eventually, you're going to move that snowball, you're going to dissipate that snowball, and you're going to have in that analogy hot water shooting out." Id. at *277. He repeatedly characterized the likelihood of danger in defendant's plant from the failure to de-energize and lockout the extruder line as "100 percent." E.g., id. at *278. "It's a substantial certainty that that's going to go and the danger is going to be, is going to be such that it's going to explode if somebody is in the vicinity."Id. Mike Gibson's foreman John Meggitt admitted that he knew at the time of the accident that if there was a solidified plastic plug that formed "that the molten plastic that's up against the inner edge of the plug is going to melt the plug," and also admitted that anyone who had worked around the plastic manufacturing machine for "awhile" would have known that turning off only some of the heaters would form a hot spot that would eventually spray plastic. See Transcript at *133-34. He also stated that he felt that prior to the accident he had not been properly trained, and that proper training would have included instruction on de-energizing the entire manufacturing line when conducting repairs. See Transcript at **123-25. Finally, he acknowledged that the company had changed its procedures since plaintiff's decedent was injured, and it was now the practice to shut down the entire line and shut off all heaters when conducting repairs. See Transcript at *130. Similarly, Robert Hughes, who was in charge of safety at the defendant's plant, admitted that it was a "virtual certainty" that given a long enough period of time molten plastic would break through the plug and a person standing in the front of the plugged pipe would be injured. See id. at **44-45. Mr. Hughes also specifically testified that he was aware that a "lockout-tagout" plan and procedures were necessary for the safety of plant employees: Q: And so Products Drainage, Inc. [sic] knew that they were being asked to prepare this written plan and to implement this written plan to protect and keep safe the life and well-being of the employees; is that correct? A: Yes. Q: This plan was very important, wasn't it? A: Yes Q: They were telling you that, look, you violate this plan, you're going to injure or kill people that work for you, isn't that true? A: Yes. Q: You knew that, didn't you? A: Yes. Id. at **28-9. Considering John Meggitt's testimony that anyone who had worked around the machinery would have known that a plastic plug could melt under such circumstances and his testimony that he had not been properly trained, as well as the evidence from plaintiff's expert as to the existence of the hazard of spraying plastic at defendant's plant and the expert's testimony that both the OSHA regulations and defendant's own policy implementing them required the entire line to be shut down, I must conclude that there is substantial credible evidence upon which a rational trier of fact could conclude that the defendant knew that the manufacturing line was dangerous and that harm was substantially certain to occur if defendant failed to comply with the "lockout-tagout" procedure when conducting repairs of the manufacturing line. In granting the directed verdict, the trial court appears to have misapplied the second prong of the Fyffe test. Whether or not an event is "substantially certain" to occur can often only be shown by circumstantial evidence. Cf. Hannah v. Dayton Power Light Co. (1998),82 Ohio St. 3d 482, 485, citing Adams v. Aluchem, Inc. (1992),78 Ohio App. 3d 261, 264; Fyffe, 59 Ohio St. 3d 115 at paragraph two of the syllabus. While the trial court correctly observed that "there has to be some notice to [the second prong of the Fyffe test]," that notice need not take the form of a previous workplace incident. The substantial certainty test does not establish a "one free bite" rule, and accordingly it was not necessary for the Plaintiff to show that plastic had blown out of the extruder in the same location on a previous occasion. Rather, I believe plaintiff established a question for the jury on these facts by showing that the defendants knew of the risk of the extruder spraying molten plastic, knew why plastic might spray out of the extruder, knew that there were safety procedures associated with the operation of the extruder to prevent the spraying of plastic, and knew that the failure to utilize the safety procedures carried a serious risk of danger that could result in injury or death to their employees but still disregarded those safety procedures. For these reasons, the trial court's decision to grant a directed verdict based upon the second prong of the Fyffe test was improper. Apparently recognizing that the trial court's analysis was erroneous, the majority has nevertheless sustained the trial court's judgment, based instead on the third prong of the Fyffe test. The majority correctly observes that the plaintiff produced no testimony that Mike Gibson was expressly directed to assist Tim Jewell in the repair of the extruder pipe.However, the leading case interpreting the third prong of Fyffe does not require such an express direction. In Hannah v. Dayton Power LightCo. (1998), 82 Ohio St. 3d 482, a member of a power plant's volunteer emergency rescue squad suffered an attack of hypothermia and died while attempting a vertical rescue of two men stranded at the four-hundred-fifty foot level of a nine-hundred foot smokestack. The trial court granted summary judgment in favor of the defendant employer on an intentional tort claim, but the Supreme Court reversed: Additionally, sufficient evidence was presented to create an issue of fact whether DP L required the decedent to perform the rescue. DP L contends that this requirement is not satisfied because DP L never ordered the decedent to climb up the ladder to rescue the stranded men. However, under the third element of Fyffe, DP L did not have to expressly order the decedent to make the rescue. Instead, to overcome a motion for summary judgment, an opposing party can satisfy this requirement by presenting evidence that raises an inference that the employer, through its actions and policies, required the decedent to engage in that dangerous task. Here, former plant manager Fred Southworth testified that DP L expected the rescue squad to respond to an emergency, and to do so in a safe manner. Thus, when DP L sounded the alarm and summoned its own rescue squad into action, reasonable minds could differ as to whether DP L required the squad to make the rescue. Id. at 487 (emphasis added). The Supreme Court's decision in Hannah establishes that if the plaintiff presents evidence showing that an employer expects an employee to perform a job in a way that is substantially certain to cause harm, the plaintiff has satisfied her burden on the third prong of the Fyffe test. Moreover, the Supreme Court has previously "reject[ed] the proposition that a specific intent to injure is necessary to a finding of intentional misconduct." Jones v. VIPDevelopment Co. (1984), 15 Ohio St. 3d 90, 95 (emphasis added). The majority opinion cites previous cases from this Court in support of proposition that "in order to satisfy the third prong of the Fyffe test, the injured employee must have been compelled, as a condition of employment, to participate in the dangerous task." Majority Opinion,ante at *10, citing Myers v. Oberlin Processing, Inc. (Sept. 27, 1996), Seneca App. No. 13-96-20, unreported, 1996 WL 547920, and Paxton v.Hench (July 22, 1992), Allen App. No. 1-92-36, unreported, 1992 WL 180095. However, this position was rejected by the Supreme Court in theHannah case. The employee in that case was a volunteer member of an emergency rescue squad, and died as a result of attempting a dangerous rescue. He was not required to be a member of the squad, nor was he instructed to perform the specific rescue that led to his death. SeeHannah, 82 Ohio St.3d at 485-86; id. at 488-89 (Moyer, C.J., dissenting). Notwithstanding these facts, the Supreme Court determined that the plaintiff had presented sufficient evidence on the third prong of Fyffe even though the employee was merely expected, not compelled, to participate in the dangerous task. Id. at 487. Although it is undisputed that Mike Gibson was not directly ordered to assist Tim Jewell, several witnesses testified that it was expected that employees would assist each other in performing job tasks. Specifically, Tim Jewell testified that when he had previously worked as a mixer (the job held by plaintiff's decedent on the day of the accident), it was expected for employees to assist in performing other tasks. See Transcript at *104-05. Robert Hughes testified in both his deposition and at trial that there would have been times in the course plaintiff's decedent's employment that he was "expected to find other work." Transcript at *72. Moreover, it is perhaps more important to note that Mr. Hughes testified that if Mike Gibson ran out of work, he would have beenrequired to ask his foreman for another assignment: Q: Now Mike Gibson, I think you told us, didn't do a single thing wrong, did he? A: He left his protected work area. Q: Did you tell us that your employees were expected to got out and find a job to do if they run out of work? * * * * A: They were to find work in their own area such as sweep the area, possibly grind scrap material. Q: Did you ever tell Mike not to leave the area where he was working? A: No. * * * * A: Company policy is to clean your area if you do not have anything else to do. Q: What if your area is clean, then what are you supposed to do? A: There is a possibility of grinding scrap. He should have checked with his supervisor to find out if there was anything the supervisor needed him to do. * * * * Q: [I]sn't that what Mike did, walk over and say, "Can I help you out?" A: Yes. Q: Isn't that what you'd expect of your good employees? A: He was to ask his supervisor. * * * * Q: Wasn't John Meggitt his supervisor? A: Yes. John Meggitt wasn't in the plant from the time the question was asked from my — * * * * Q: [Mike Gibson] went over to the exact spot where his Supervisor was and said, "Can I help out?" [Mike] didn't know his supervisor wasn't there, did he? * * * * A: I don't know if he knew he was there or not. Transcript, at **45-7 (emphasis added). The majority, however, contends that "the record indicates that Gibson remained standing in the area, apparently merely observing the repairs, for approximately two to five minutes before the accident occurred." Majority opinion, ante at *10. Both the majority and the defendant seem to argue that this evidence is sufficient to defeat the plaintiff's claim as a matter of law. I am not persuaded. The two-to-five minute time frame relied upon by the majority appears to come from plaintiff's safety expert, who testified he had obtained that information from reading pre-trial depositions. Trial Transcript at **364-66. However, Tim Jewell's trial testimony indicates that the time frame may have been much shorter: Q: Now Mike came up and said, "Do you need any help?" A: (Witness nods head.) Q: You have to answer out loud. A: Yes. Q: When Mr. Bullinger came in, what did he have to say? A: As Randy walked up, if I remember correctly, that's when the accident happened. Q: Do you recall how long Randy was there before the accident happened? A: No, I don't. Q: Did Mr. Bullinger ever say anything to you when he walked up like, is this machine locked out? A: No. Q: Did he ask you any questions about it? A: No, not that I remember. But if I do remember correctly, as he walked up, though, he was still walking up to me, that's when the accident happened. Q: Now, before the accident happened, did you hear a noise? A: Yes. I heard like a popping sound, a pop. Q: Did you hear a hiss at all before the pop? A: Yes. Q: This all took place in, what, how long? A: A couple seconds. Transcript, at **105-106. It is undisputed that John Meggitt had left the area of the extruder to locate bolts immediately prior to Mike Gibson's approach, and the defendant presented no evidence to refute the foregoing testimony. Based on the testimony of Tim Jewell and Robert Hughes, a jury could reasonably determine either that Mike Gibson had been in the area in an attempt to find John Meggitt to get more work as Mr. Hughes asserted that he was required to do, or to directly offer assistance with the problem as Tim Jewell indicated he was expected to do. Either determination would satisfy the plaintiff's burden on the third prong of Fyffe. Cf. Hannah, 82 Ohio St.3d at 485-86. Taken together with all the other evidence as to plaintiff's decedent's duties, I believe that the foregoing evidence presents a disputed issue of fact upon which reasonable minds could differ as to the third prong of the Fyffe test, and should have precluded a directed verdict in this case. Because I believe that the plaintiff has presented sufficient evidence to survive a motion for directed verdict under Civ.R.50, I would reverse the judgment of the Paulding County Court of Common Pleas and remand this case for further proceedings.

2016-07-06 06:36:51.122955+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Lynn Muter ("Wife"), appeals the judgment of the Summit County Court of Common Pleas, Domestic Relations Division, which dismissed her complaint for divorce from John Muter ("Husband"). This Court reverses. I. {¶ 2} Wife filed a complaint for divorce from Husband in the Summit County Court of Common Pleas, Domestic Relations Division, on October 10, 2007. In her complaint, she prayed for a divorce, as well as designation as the residential parent of the parties' minor children, child support, spousal support, and the equitable division of property. Also on October 10, 2007, Wife filed a motion for temporary orders, addressing issues, including, but not limited to, spousal support, child custody and child support. On November 27, 2007, Husband filed an answer and counterclaim for divorce. In his counterclaim, he prayed for an absolute divorce, as *Page 2 well as an award of child custody, child support, and an equitable division of property. Wife filed an answer to Husband's counterclaim. {¶ 3} On December 26, 2007, the magistrate issued temporary orders, ordering, among other things, that Husband pay child support and spousal support to Wife, that Husband pay attorney fees and consulting fees to Wife, granting Husband companionship time with the children, and referring the parties to mediation regarding parental rights and responsibilities. On January 3, 2008, Husband filed a motion to set aside the temporary orders of the magistrate. Wife responded. {¶ 4} On January 8, 2008, Husband filed an amended counterclaim, again praying for an absolute divorce, an award of custody of the minor children, child support and an equitable division of property. Wife filed an answer to the amended counterclaim. {¶ 5} On January 30, 2008, Husband filed a motion to stay implementation of the temporary orders. Wife responded in opposition. On February 27, 2008, the magistrate denied the motion to stay. On May 21, 2008, Wife filed a motion for contempt, premised, among other things, on Husband's failure to pay spousal support, an unpaid portion of medical expenses and attorney fees and expenses. {¶ 6} On May 23, 2008, Husband filed a motion to dismiss the pending divorce action for lack of jurisdiction because an absolute divorce had been granted to the parties out of North Carolina. On May 19, 2008, the General Court of Justice, District Court Division, in Johnston County, North Carolina, issued a judgment of absolute divorce regarding the parties. The District Court granted Husband an absolute divorce from Wife, but further ordered that "[a]ll pending motions and claims, other than the absolute divorce, are and shall hereby be reserved for later determination by this court." Wife filed a memorandum in opposition to the motion to *Page 3 dismiss, arguing that the North Carolina judgment was not entitled to full faith and credit, divesting the Summit County Domestic Relations Court of jurisdiction to address outstanding issues including child custody, child support and spousal support. On June 27, 2008, the trial court granted Husband's motion to dismiss for lack of jurisdiction, finding that the North Carolina judgment was properly accorded full faith and credit. Wife timely appeals, raising one assignment of error for review. II. ASSIGNMENT OF ERROR "THE TRIAL COURT ERRED IN DISMISSING THE PLAINTIFF'S COMPLAINT BASED UPON THE NORTH CAROLINA DECREE OF DIVORCE." {¶ 7} Wife argues that the trial court erred in dismissing her complaint for lack of jurisdiction because it was error to accord full faith and credit to the North Carolina judgment of absolute divorce. This Court agrees. {¶ 8} The Full Faith and Credit Clause of the United States Constitution requires states to accord full faith and credit to final judgments of other states. "In applying full faith and credit to the judgments of a sister state, Ohio courts give these judgments the same effect as they would have in the courts of the state where the adjudication was had." Barnett v. Barnett (1993), 85 Ohio App. 3d 1, 4, citing Armstrong v. Armstrong (1927), 117 Ohio St. 558, 561; Speyer v.Continental Sports Cars, Inc. (1986), 34 Ohio App. 3d 272, 276; 63 Ohio Jurisprudence 3d (1985) 121, Judgments, Section 350. Because "[t]he decision to give full faith and credit to another state's court decisions is a legal question[,]" this Court reviews that decision de novo, independent of, and without deference to, the lower court's decision. Rice v. Flynn, 9th Dist. No. 22416, 2005-Ohio-4667, at ¶ 28. *Page 4 {¶ 9} The Court of Appeals of North Carolina has held that a judgment of absolute divorce which reserves the remaining issues in the cause for later determination is not a final judgment within the meaning of N.C. Gen.Stat. § 7A-27(c)(1995). Stafford v. Stafford, 133 N.C.App. 163, 164 (1999). The North Carolina court reasoned that the judgment is not final because it "does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Id., quoting Veazey v. City of Durham, 231 N.C. 357, 362,57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Accordingly, the Stafford court held such an order to be interlocutory in nature, rather than final. Id. at 164. {¶ 10} The judgment of absolute divorce in this case grants only a divorce to the parties. It reserves all other pending issues for later hearing and determination. Accordingly, the North Carolina judgment of absolute divorce, on the authority of Stafford, is not a final judgment. Therefore, the domestic relations court erred when it accorded full faith and credit to the North Carolina judgment of absolute divorce and, thereafter, dismissed Wife's complaint. Wife's assignment of error is sustained. III. {¶ 11} Wife's sole assignment of error is sustained. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is reversed and the cause remanded for further proceedings consistent with this opinion. Judgment reversed, and cause remanded. The Court finds that there were reasonable grounds for this appeal. *Page 5 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 Appellee. MOORE, J., SLABY, J., CONCUR *Page 1

2016-07-06 06:36:44.385009+00

OPINION This is an appeal of a judgment of the Geauga County Court of Common Pleas in which the court denied the motion to marshal assets of appellants, Jeffrey P. Johnson and Christine A. Johnson, Appellants obtained a $300,000 judgment against Renato Cromaz in the Cuyahoga County Court of Common Pleas. They had a certified copy of the judgment recorded as a lien in the Geauga County Court of Common Pleas. Appellants then instituted an action to execute their lien in a pleading styled "Complaint in Foreclosure" upon residential property owned and occupied by Renato and Annette Cromaz, located in Chesterland, Ohio. All other lien holders of record were joined in the action. Technically, this was not a foreclosure but an execution upon a judgment lien, although so styled by the trial court due to appellant's attorney's labeling. After the Cromazes failed to answer, appellants filed a motion for default judgment, pursuant to Civ.R. 55, which was granted. Appellants obtained a $300,000 default judgment against Renato Cromaz and Annette Cromaz.1 Following entry of the default judgment, the trial court issued a decree of judgment in foreclosure ordering that all valid liens be marshaled and the property sold at sheriff's sale. Prior to the sheriff's sale, Renato Cromaz declared bankruptcy and stayed the sale. No motion to marshall the assets was made. Subsequently, the bankruptcy court issued an order terminating the stay and abandoning the property. Accordingly, appellants moved to resume the sale. The property was sold, through a nominee, to appellants for $127,000. The Cromazes moved to participate in the proceeds of the sheriff's sale. The court denied their motion and confirmed the sale. The Cromazes filed an appeal to this court. We affirmed in part, reversed in part, and remanded for the trial court to address appellee's claim that she was entitled to one-half of the remaining proceeds following payment of all court costs and taxes, and the satisfaction of all sums due on two bank mortgages. On remand, appellants moved the court to marshal the assets. The motion was denied. The court marshaled the liens and ordered distribution of the proceeds of the sheriff's sale. Review of the judgment entry reveals that the trial court ordered that the proceeds be distributed as follows: $78,929.53 to the Cromazes' senior creditors, to whom Annette and Renato are jointly and severally liable; $23,699.26 to Renato's individual creditors; $24,146.89 to appellee; and, $224.32 to appellants. Specifically, the joint creditors' distributions were as follows: Geauga County Treasurer: $4,105.42, for court costs; Geauga County Treasurer: $19,637.05, for real estate taxes; Charter One Bank: $8,608.08; Bank One Cleveland: $46,355.67; and State of Ohio Department of Taxation: $223.31. Appellants present the following assignment of error: "[1.] The trial court erred in denying plaintiff's motion to marshal assets." Essentially, appellants contend that if appellee's one-half of the proceeds were exhausted by the Cromazes' senior creditors, there would be more money left for distribution to the junior creditors, including appellants. In response, appellee argues that appellants' motion to marshal assets was untimely and contends that, with the exception of the mortgages, the remaining claims are judgment liens against Renato Cromaz to which the doctrine of marshaling assets is inapplicable. The doctrine of "law of the case" precludes a litigant from attempting to rely on new arguments, on remand, which were fully pursued, or were available to be pursued, in a first appeal. See City of Hubbard ex rel.Creed v. Sauline (Jan. 31, 1996), 74 Ohio St.3d 402, 404-405. "New arguments are subject to issue preclusion." Id. at 405. Thus, appellants are precluded from raising the issue of marshaling assets on remand, since they failed to do so during the first appeal before this court. The rule of marshaling assets is an equitable doctrine based on: "* * * [T]he equitable principle that a party having two funds to satisfy his demands shall not, by his election, disappoint a party who has only one of the funds upon which to rely, thus preventing him from exercising his right of recourse against the property or assets in question in an unreasonable manner or as to satisfy his claim to the exclusion of such to other claimants." Homan v. Michles (1963), 118 Ohio App. 289, 291. The determination of whether to marshal assets lies in the discretion of the trial court. Toledo Blank, Inc. v. Pioneer Steel Serv. Co. (1994), 98 Ohio App.3d 109. Thus, the decision of the trial court will not be disturbed, absent a finding of abuse of discretion. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary or unconscionable. See, Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In support of their argument, appellants rely on Cactus Capital Co. v.Mekong Market, Inc., (Apr. 15, 1997), Franklin App. Nos. 96APE08-1031 and 96APE09-1250, unreported, 1997 Ohio App. LEXIS 1443. In Cactus, the court marshaled assets: the senior creditors and holders of a mortgage were paid first by exhausting the wife's funds; a junior creditor of the husband received the remaining funds; and, the wife received nothing. However, while a trial court ordinarily marshals liens and determines the distribution of proceeds, the doctrine of marshaling assets is rarely applied. The rule of marshaling assets is an equitable doctrine and it is fundamental that he who comes into equity must come with clean hands. See State ex. re. Mallory v. Public Employees Retirement Board (June 24, 1998), 82 Ohio St.3d 235, 244. The appellants did not come into this action with clean hands. As we noted the trial court was apparently led astray by an affidavit submitted by appellant's attorney in which the attorney averred that the $300,000 judgment was against both Renato and Annette. Johnson v. Cromaz (Dec. 27, 1999), Geauga App. No. 98-G-1251, unreported, 1999 Ohio App. LEXIS 6240. Appellants, through their counsel, submitted an inaccurate affidavit to obtain a judgment against Annette. Equity cannot help those with unclean hands. Based on the foregoing, we conclude that the trial court's decision to deny appellants' motion to marshal assets did not constitute an abuse of discretion; the record is devoid of any evidence that the trial court's attitude was unreasonable, arbitrary or unconscionable. The judgment of the trial court is affirmed. JUDGE ROBERT A. NADER, FORD, P.J., CHRISTLEY, J., concur. 1 The judgment entry "granted judgment by default against Defendants Renato Cromaz and Annette Cromaz in the amount of $300,000.00 plus interest in the amount of 10% from November 16, 1993, plus costs and attorney's fees in the amount of $6,000." The court's error in entering judgment against Annette appears to be due to an affidavit submitted by appellant's attorney. In his affidavit, appellant's counsel averred that appellants had obtained the Cuyahoga County judgment against both Renato and Annette Cromaz.

2016-07-06 06:36:44.416494+00

JOURNAL ENTRY AND OPINION Plaintiff-appellant, Valerie Mason, appeals the judgment of the Cuyahoga County Court of Common Pleas granting the motion to dismiss of defendant-appellee, GFS Leasing and Management, a/k/a Altercare of Forest Hills. For the reasons that follow, we affirm. In August 1998, appellant was discharged from her employment with Forest Hills Nursing Home, also known as Altercare of Forest Hills. In February 1999, after a hearing, the Ohio Unemployment Compensation Review Commission issued a decision finding that appellant was discharged from her employment for just cause and disallowing her application for benefits. On March 18, 1999, in Case No. 380387, appellant filed a pro se administrative appeal from the decision of the Unemployment Compensation Review Commission in the Cuyahoga County Court of Common Pleas. On October 4, 1999, the trial court issued an order affirming the decision of the Unemployment Review Commission and dismissing appellant's case. On November 2, 1999, appellant filed a notice of appeal regarding the trial court's decision. Appellant's appeal was dismissed by this court on September 18, 2000, due to her failure to file a brief conforming with the appellate rules. Mason v. Forest Hills Nursing Homes (Sept. 18, 2000), Cuyahoga App. No. 77204, unreported. On August 17, 1999, while her administrative appeal was pending, appellant filed a pro se complaint against appellee. In her complaint, appellant set forth claims for wrongful termination, defamation and failure to provide a safe working environment. The case was assigned Case No. 389759 and assigned to another Common Pleas Court judge. On May 5, 2000, appellee filed a motion to dismiss, asserting that appellant's complaint was barred by the doctrine of res judicata because the final judgment in Case No. 380387 precluded appellant from asserting any other claims arising out of her termination against her employer. On May 17, 2000, the trial court entered an order dismissing appellant's case, stating: Defendant's motion to dismiss (filed 5-5-00) is granted. The court hereby finds that pursuant to the doctrine of res judicata plaintiff's complaint herein must be dismissed. Plaintiff may continue to pursue her claims in the first-filed lawsuit 380387, through the appeal. Appellant did not appeal the trial court's decision. Instead, on June 8, 2000, appellant filed another pro se complaint against appellee, again asserting claims for defamation and failure to provide a safe working environment, and including a claim for infliction of emotional distress. The case was assigned Case No. 409342 and assigned to a third Common Pleas Court judge. On February 1, 2001, appellee filed a motion to dismiss, asserting that appellant's claims were barred by the doctrine ofres judicata. On March 30, 2001, the trial court entered an order granting appellee's motion to dismiss, stating, "Plaintiff's complaint is barred by res judicata." This appeal followed. The doctrine of res judicata encompasses two related concepts: claim preclusion (traditionally referred to as res judicata) and issue preclusion (traditionally referred to as collateral estoppel). Grava v.Parkman Twp. (1995), 73 Ohio St.3d 379, 381. The Supreme Court of Ohio has adopted an expansive definition of claim preclusion: "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."1 Id. at syllabus. Stated differently, "an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit. Holzemer v. Urbanski (1999),86 Ohio St.3d 129, 133 quoting Rogers v. Whitehall (1986),25 Ohio St.3d 67, 69; Natl. Amusements, Inc. v. Springdale (1990),53 Ohio St.3d 60, 62; Grava, supra at 382. Appellee contends that all three of appellant's lawsuits involve a challenge to her termination from employment and, therefore, all claims which she could have asserted regarding her discharge should have been brought in her first suit. Accordingly, appellee asserts, the claims asserted in this suit are barred by the doctrine of res judicata. We agree that appellant's claims in this suit, which like the claims in her second suit arise out of her termination from employment by appellee, are barred by res judicata. We note, however, that appellant's first suit was limited to an administrative appeal of the denial of her application for unemployment benefits. Appellant made no other claims in that suit against her employer. Indeed, the trial court entry dismissing Case No. 380387 clearly demonstrates that the only claim decided in that case was whether the decision of the Unemployment Review Commission regarding appellant's eligibility for benefits was correct. The trial court order dismissing appellant's case stated: This court finds that the decision of the Unemployment Compensation Review Commission was not unlawful, unreasonable or against the manifest weight of the evidence and is hereby affirmed. Thus, the order makes clear that the trial court judgment in Case No. 380387 was not dispositive of any claims or issues other than the propriety of the decision of the Unemployment Compensation Review Commission. Contrary to appellee's assertion, appellant was not required to assert all potential claims against her employer stemming from her termination in her administrative appeal. An appeal from the decision of the Unemployment Review Commission to the court of common pleas is a special statutory procedure set forth in R.C. 4141.28(N). The Supreme Court of Ohio has stated that the common pleas court is not authorized to receive evidence in an administrative appeal brought pursuant to this section and "the appeal shall be heard upon such record certified by the Board."Hall v. American Brake Shoe Co. (1968), 13 Ohio St.2d 11. Moreover, the role of the common pleas court in an administrative appeal is strictly "limited to determining whether the board's decision is supported by evidence in the record." Angelkovski v. Buckeye Potato Chips Co. (1983),11 Ohio App.3d 159, 161. Significantly, R.C. 4141.28(N) makes no provision for the trial court to determine any claims in an administrative appeal other than the claimant's appeal of the decision of the commission. Accordingly, contrary to appellee's argument, appellant's complaint in Case No. 389759, in which she alleged wrongful termination, defamation and failure to provide a safe working environment, was not barred by the doctrine of res judicata. The trial court's judgment in Case No. 380387 affirming the decision of the Unemployment Review Commission in appellant's administrative appeal did not preclude appellant's assertion of other claims against her employer in a separate lawsuit. Accordingly, the trial court erred in granting appellee's motion to dismiss on the basis of res judicata in Case No. 389759.2 Appellant did not appeal the trial court's erroneous judgment, however. Accordingly, pursuant to the doctrine of res judicata, the final judgment in Case No. 389759 bars the assertion of appellant's claims in the instant case, Case No. 409342. The claims set forth in this case either were or could have been asserted in Case No. 389759 and, therefore, the claims are barred. The trial court's judgment is therefore affirmed. It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANK D. CELEBREZZE, JR., J. and JAMES J. SWEENEY, J., CONCUR. 1 Although not pertinent to this appeal, the doctrine of issue preclusion, also known as collateral estoppel, holds that a fact or a point that was actually or directly at issue in a previous action, and was passed upon and determined by a court of competent jurisdiction, may not be drawn into question in a subsequent action between the parties or their privies, whether the cause of action in the two actions be identical or different. Fort Frye Teachers Assoc. v. State EmploymentRelations Bd. (1998), 81 Ohio St.3d 392, 395. 2 The trial court order erroneously stated that appellant could pursue her claims in Case No. 380387 even though that case had already been dismissed by the time the trial court entered its order in Case No. 389759.

2016-07-06 06:36:44.445828+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ACCELERATED OPINION This is an accelerated calendar appeal from a judgment of the Geauga County Court of Common Pleas denying the petition for a writ of habeas corpus of petitioner-appellant, Donald McGee. On February 26, 1998, seventy-seven year old Henry Roth swore out a "complaint affidavit" before Florida law enforcement officer, Sergeant Richard Nunn, in Volusia County, Florida. He claimed appellant presented himself as a registered nurse and offered to care for Mr. Roth for the rest of his life if Mr. Roth would transfer ownership of his home to appellant. Mr. Roth alleged that he transferred ownership of his home to appellant, but appellant did not perform the nursing services he promised. Also on February 26, 1998, a circuit judge in Volusia County, Florida, reviewed Mr. Roth's "complaint affidavit" and, based on the allegations in it, issued a felony arrest warrant charging appellant with exploitation of an elderly adult, in violation of Fla.Stat. 825.103(1) and (2). On April 10, 1998, upon the request of Assistant State Attorney Christopher Kelly, Florida's Governor Lawton Chiles requested the extradition of appellant from Ohio's Governor George Voinovich. Governor Chiles's request stated that appellant was charged with the crime of exploitation of an elderly adult in violation of the laws of the state of Florida, that the offense was committed in the state of Florida, that appellant was present in the state of Florida at the time of the offense, and that appellant had taken refuge in the state of Ohio. The request was accompanied by the affidavit of Attorney Kelly detailing the facts underlying the charge, a copy of Mr. Roth's complaint affidavit, a copy of the felony arrest warrant, a photograph of appellant, and certification of the authenticity of the documents. On April 13, 1998, Governor Voinovich granted Governor Chiles's request and issued a governor's warrant for appellant's arrest. On April 17, 1998, appellant was arrested on the governor's warrant. Appellant was held in the Geauga County jail in lieu of $60,000 cash or surety bail set by the Chardon Municipal Court. On April 22, 1998, appellant filed a petition for a writ of habeas corpus in the Geauga County Court of Common Pleas. He claimed he was wrongfully detained because the documents in support of Governor Chiles's extradition request were deficient on their face primarily in that they did not contain a copy of an indictment or information. Sometime after the petition was filed, appellant posted bond. A hearing was held on the petition, at which appellant was present. No evidence was presented at the hearing, but the attorneys for each party made arguments in support of their contentions. On May 22, 1998, appellant's petition was denied, and the trial court ordered him to report to the jail for immediate extradition. That same day, the trial court granted appellant's motion for a stay of the extradition order during the pendency of this appeal. Appellant claims the following as error: "The trial court erred to the prejudice of Petitioner-Appellant in denying his application for a Writ of Habeas Corpus." * * * Appellant claims error in the trial court's decision to deny his petition for a writ of habeas corpus.1 Specifically, appellant contends R.C. 2963.03 requires that a copy of the indictment or information charging him with a crime in the state of Florida be attached to the request for extradition. He also claims that a copy of the statute he is alleged to have violated must accompany the request for extradition. He contends these deficiencies result in a lack of proof that appellant was charged with a crime in Florida, and, resultantly, he should be granted the relief requested. Before addressing the particular issue(s) raised by appellant, it would be instructive to review extradition procedures generally. The Supreme Court of Ohio has held that when interstate extradition is sought based upon an allegation that an individual committed a felony in the demanding state and has fled to an asylum state, federal law, both constitutional and statutory, is controlling. In re Rowe (1981), 67 Ohio St.2d 115,117. See, also, Michigan v. Doran (1978), 439 U.S. 282, 288. Article IV, Section 2, of the United States Constitution provides: "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." To implement this provision of the Constitution, Congress passed 18 U.S.C. § 3182, which has remained essentially constant since its initial passage in 1793. It provides: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear." To further delineate procedures to be used in extradition matters, the Uniform Criminal Extradition Act was promulgated and was adopted by Ohio's General Assembly in 1937. Am. H.B. No. 108, 117 Ohio Laws 588, codified at G.C. 109, et seq., recodified at R.C. 2963.01, et seq. The language of R.C. 2963.02 mirrors the language of both Article IV, Section 2 of the United States Constitution and of 18 U.S.C. § 3182. "Subject to [the procedures enumerated in] sections 2963.01 to 2963.27, inclusive, of the Revised Code, the constitution of the United States and all acts of congress enacted in pursuance thereof, the governor shall have arrested and delivered to the executive authority of any other state of the United States, any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state." To effectuate extradition, the act requires the following prerequisites to be attached to or included in the demand of the executive of the demanding state: "No demand for the extradition of a person charged with a crime in another state shall be recognized by the governor [of Ohio] unless the demand is in writing alleging * * * that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and unless the demand is accompanied by: "(A) A copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; * * *." R.C. 2963.03. Once the asylum state grants the request of the demanding state and issues a governor's warrant, a presumption arises that all constitutional and statutory requirements have been met. Doran,439 U.S. at 288-289; Rowe, 67 Ohio St.2d at 120. The extradition may then be challenged by filing a petition for a writ of habeas corpus. R.C. 2963.09. The habeas corpus petitioner would have the burden to rebut the presumption of regularity by proof beyond a reasonable doubt, and his challenges to the extradition would be limited to the following: (1) whether the extradition documents are in order on their face; (2) whether the petitioner has been charged with a crime in the demanding state; (3) whether the petitioner is the person named in the extradition request; (4) whether the petitioner is a fugitive; and (5) whether the extradition is an attempt to enforce a civil liability. Doran,439 U.S. at 289; Carpenter v. Jameson (1982), 69 Ohio St.2d 308; In reHarris (1959), 170 Ohio St. 151. Moreover, in reviewing a challenge to a governor's warrant on extradition, a trial court may not delve into the innocence or guilt of the petitioner. Rowe, 67 Ohio St.2d at 120. The review is summary and limited to a review of the documents. In re Terry, (1988), 51 Ohio App.3d 133, 134. Appellant only challenges one aspect of the extradition proceedings, that the extradition documents are facially deficient. He claims the extradition request must be accompanied by a copy of the information or indictment charging him with a crime in the demanding state. This is simply not so. Relevant to this case, the statute requires submission of one of three alternative documents, depending on the stage of the proceedings against a defendant in the demanding state: (1) a copy of the indictment; (2) a copy of the information supported by an affidavit; or (3) a copy of an affidavit made before a magistrate of the demanding state along with a copy of any warrant issued on the the affidavit. R.C. 2963.03(A). The state of Florida utilized the third alternative in seeking appellant's extradition. A copy of a complaint affidavit sworn before a law enforcement officer, along with a copy of a felony arrest warrant issued by a judge in reliance on the affidavit, were included in the extradition documents before Governor Voinovich. In Florida, a law enforcement officer may administer an oath for purposes of an affidavit. Fla.Stat. 117.10. Moreover, any judicial officer, including a circuit court judge, is a "committing magistrate" who may issue an arrest warrant for an offense committed within his or her jurisdiction. Fla.Stat. 901.01; Fla.R.Crim.Pro. 3.120. A circuit court judge has exclusive jurisdiction over felonies allegedly committed in the county in which he or she sits. Fla.Stat. 26.012. Mr. Roth's properly sworn affidavit provided the basis for the circuit judge, the committing magistrate, to determine whether reasonable grounds existed for an arrest warrant for the crime of exploitation of an elderly adult. The offense, a felony, was allegedly committed in Volusia County, and the arrest warrant was issued by a Volusia County circuit judge. These documents, which appear valid on their face and after careful review of the relevant Florida laws, were sufficient to support the extradition. R.C. 2963.03; Hanson v. Smith (1990), 67 Ohio App.3d 420. Appellant has consequently failed to rebut the presumption of regularity that arose by virtue of Governor Voinovich's execution of the governor's warrant. Moreover, there is no additional requirement in Article IV, Section 2 of the United States Constitution, in 18 U.S.C. § 3182, or in Revised Code Chapter 2963, that the extradition documents also contain a copy of the statute allegedly violated. Its absence from this packet does not render the extradition documents facially deficient, especially when the felony warrant recites the facts underlying the charge and cites the relevant statutory provision.2 Appellant's assignment of error is without merit, and the judgment of the court of common pleas is affirmed. JUDGE ROBERT A. NADER FORD, P.J., CHRISTLEY, J., concur. 1 The assigned error is unartfully styled. The purpose of a writ of habeus corpus is merely to produce the body of the defendant at the hearing. R.C. 2725.12. If the court determines that the defendant was unlawfully restrained of his liberty, the court is to order that the defendant be discharged. R.C. 2725.17. In this case appellant's request for the issuance of a writ of habeus corpus was made moot by his voluntary appearance at the hearing. What the trial court actually denied was his request for an order of discharge and dismissal of the extradition proceedings. 2 The fact that the Florida Constitution, Article I, Section 15, prohibits a felony trial without an indictment or information is not dispositive of the issue(s) before this court. This case is concerned with extradition, not the guilt or innocence of the accused.

2016-07-06 06:36:44.49913+00

DECISION AND JUDGMENT {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas that found appellant guilty of one count of aggravated murder in violation of R.C. 2903.01(A). For the following reasons, the judgment of the trial court is affirmed. {¶ 2} Appointed counsel Daniel H. Grna has submitted a request to withdraw pursuant to Anders v. California (1967), 386 U.S. 738. In his brief filed on appellant's *Page 2 behalf, appointed counsel sets forth two proposed assignments of error. In support of his request to withdraw, counsel for appellant states that, after reviewing the record of proceedings in the trial court, he was unable to find any appealable issues. {¶ 3} Anders, supra, and State v. Duncan (1978), 57 Ohio App.2d 93, set forth the procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue. InAnders, the United States Supreme Court held that if counsel, after a conscientious examination of the case, determines it to be wholly frivolous he should so advise the court and request permission to withdraw. Id. at 744. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Counsel must also furnish his client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters that he chooses. Id. Once these requirements have been satisfied, the appellate court must then conduct a full examination of the proceedings held below to determine if the appeal is indeed frivolous. If the appellate court determines that the appeal is frivolous, it may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements or may proceed to a decision on the merits if state law so requires. Id. {¶ 4} In the case before us, appointed counsel for appellant has satisfied the requirements set forth in Anders, supra. *Page 3 {¶ 5} Accordingly, this court shall proceed with an examination of the potential assignment of errors proposed by counsel and the entire record below to determine if this appeal lacks merit and is, therefore, wholly frivolous. {¶ 6} The facts relevant to the issues raised on appeal are as follows. On September 6, 2007, appellant was indicted on one count of aggravated murder in violation of R.C. 2903.01(A) with a firearm specification and one count of murder in violation of R.C. 2903.02 with a firearm specification. Appellant entered pleas of not guilty and the matter was set for trial on March 24, 2008. On the second day of trial, after two witnesses had testified, appellant changed his plea to guilty of one count of aggravated murder. In exchange for the plea, the murder charge and the two firearm specifications were dismissed. On March 25, 2008, the trial court accepted appellant's plea and found him guilty of aggravated murder. Appellant was sentenced to a term of life imprisonment with parole eligibility after 20 years. {¶ 7} As the first potential assignment of error, appointed counsel suggests that appellant was denied effective assistance of counsel when counsel failed to conduct meaningful voir dire, failed to object to the definition of reasonable doubt offered by the prosecution in voir dire and failed to file a motion to dismiss the aggravated murder charge. As to a claim of ineffective assistance of counsel, we note that appellant entered a guilty plea, which effectively waived all appealable errors which may have occurred at trial, unless such errors are shown to have precluded the defendant from voluntarily *Page 4 entering his plea pursuant to Crim. R. 11. This was explained to appellant before his plea was accepted. See State v. Fitzpatrick (2004),102 Ohio St.3d 321, ¶ 78. {¶ 8} Upon examination of the transcript of voir dire and the first day of trial, we are unable to find that, during the brief proceedings prior to appellant's decision to plead guilty, any errors transpired which prevented him from voluntarily entering that plea. Further, when questioned by the trial court, appellant acknowledged that he was satisfied with counsel's advice and competence as an attorney. {¶ 9} Accordingly, appellant's first proposed assignment of error is without merit. {¶ 10} As his second proposed assignment of error, counsel suggests that appellant did not admit to each element of the crime of aggravated murder. First, we note that Crim. R. 11(B)(1) provides that a guilty plea "is a complete admission of the defendant's guilt." See, also, State v.Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 11. {¶ 11} The record reflects that, in order to be sure that appellant understood the nature of the charge to which he was about to tender his plea, the trial court explained to appellant that the indictment charged that he "purposely caused the death of another with prior calculation and design * * *." The trial court asked appellant if he understood the nature of the charge to which he was tendering his plea of guilty and appellant answered that he did. Further, the trial court explained to appellant that the effect of his guilty plea was to admit that he committed the offense of aggravated murder by purposely causing the death of another with prior calculation and design. Appellant stated that he understood that was the effect of his plea. *Page 5 {¶ 12} Based on the foregoing, appellant's second proposed assignment of error is without merit. {¶ 13} Upon our own independent review of the record, we find no other grounds for a meritorious appeal. Accordingly, this appeal is found to be without merit and is wholly frivolous. Appellant's counsel's motion to withdraw is found well-taken and is hereby granted. The decision 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. Arlene Singer, J., William J. Skow, P.J., Thomas J. Osowik, J., CONCUR. *Page 1

2016-07-06 06:36:44.527331+00

DECISION This is an appeal by defendant-appellant, Travis L. Golden, from a judg-ment of the Franklin County Court of Common Pleas following a jury trial in which defendant was found guilty of murder and improperly discharging a firearm. On July 20, 2000, defendant was indicted on one count of aggravated murder, in violation of R.C. 2903.01, and one count of improperly discharging a firearm at or into a habitation or a school, in violation of R.C. 2923.161. The indictment arose out of the shooting death of Erskine James Hamber, on June 29, 2000. The matter came for trial before a jury beginning February 13, 2001. The first witness for the state was William B. Huff, Jr. In June 2000, Huff resided at the Berwick Court Apartments, Apartment K, on East Livingston Avenue. On June 29, 2000, at approximately 4:00 p.m., Huff, who resided in a second-floor apartment, came home from work and was inside his apartment when he heard someone knocking on the door of his neighbor, Hamber, who resided in Apartment J. The individual knocking on Hamber's door said, "let me in," but Hamber told him to "[g]o away." (Tr. at 34.) Approximately five minutes later, Huff heard footsteps coming down the stairs and then he heard a gunshot. Huff fell to the floor and waited about five or ten minutes before getting up to look out the window. Huff observed defendant and another individual walking across the courtyard toward an opening leading to the nearby Colonial Village Apartments. Defendant was "[l]ooking back up towards the apartment and putting his hand back in his shirt and put his shirt down and walked away, him and the other gentleman he was with." (Tr. at 38.) A few minutes later, Huff opened the door and went outside. A lady was standing at the door and told him to dial 9-1-1 because someone had been shot. At the time, Huff did not know the woman, who was identified at trial as Deborah Yvonne Adams. Huff later observed Adams walk across the courtyard in the same direction defendant walked. Huff phoned for assistance, and he then looked inside his neighbor's apartment and saw blood on the floor. Prior to the shooting, Huff had seen defendant on a few occasions, and he knew defendant by the nickname "T-Bird." (Tr. at 37.) Columbus Police Officer Jimmy Harrell testified that on June 29, 2000, he and his partner, Officer Shearer, were dispatched to 3686 Livingston Avenue at approximately 4:30 p.m. When they arrived at the scene, a woman told them that "her son was inside and somebody * * * shot her son, * * * and that somebody had jumped out the back bedroom window." (Tr. at 61.) The officer entered Apartment J and observed a black male lying on the floor, near the door, in a pool of blood. The woman told the officers that "she was lying inside the bedroom, somebody came through the bedroom, jumped out the back window, and she came out to see what was going on. She heard this bang and there her son lay." (Tr. at 61.) Medical personnel arrived a short time later and pronounced the victim dead. Officer Harrell noticed evidence of drug usage, including a crack pipe, inside the apartment. At the time of the incident, Willie Hodges was a resident of the Colonial Village Apartments, and he was an acquaintance of the shooting victim. Hodges also knew defendant, who he referred to by his nickname, T-Bird. On the day of the shooting, Hodges was at the Berwick Apartments putting tires on his vehicle. Hodges later went to Hamber's apartment and asked to use the restroom. Hamber invited him to have some beer. A woman named "Mousie" and a man named Matt were also in the apartment. Hodges later learned that Hamber's mother was also in a back bedroom of the apartment. Hodges subsequently heard a knock on the door, and he then heard defendant's voice talking to Hamber. Defendant was asking Hamber about a shirt. Hamber told defendant, "[m]an, I got your shirt." (Tr. at 79.) Defendant was then given a shirt and left the apartment. Matt and Mousie left the apartment approximately two or three minutes after defendant. Approximately fifteen minutes later, defendant returned to the apartment. Hamber said to defendant, "[w]ell, what is wrong now? I gave you the damn shirt." (Tr. at 80.) Defendant responded, "I didn't like the way you talked to me." (Tr. at 80.) Hamber then asked, "[w]hat you going to do, are you going to shoot me? Go ahead and shoot me." (Tr. at 80.) Hodges testified that, "[t]he next thing I know I hear a shot and I left." (Tr. at 80-81.) Hodges jumped out of a bedroom window, explaining that, "I thought maybe I would get shot too to keep from being a witness or whatever, so I jumped out of the window." (Tr. at 82.) Columbus Police Detective Phillip Walden collected evidence at the crime scene, including a 9mm shell casing that was found on the first-floor level of the apartment in the courtyard. Lee Gill, currently an inmate, testified on behalf of the state. Gill stated that he met defendant in the "early '90s" through a friend. (Tr. at 133.) On December 8, 2000, Gill was in the Franklin County Jail at the same time defendant was being detained there. Defendant recognized Gill and they conversed. During one of their conversations, defendant related facts about the shooting. Defendant told Gill that he and another individual, James Hamber, were feuding about a crack house. Defendant told Gill that he wanted to go to Hamber's apartment to get some clothes, and that he also "wanted to go serve a hit, which is service somebody some crack as he used it." (Tr. at 137.) When defendant arrived, Hamber did not let him inside the apartment because there were other individuals inside at the time. Gill then gave the following testimony: So at that point they had words. Travis said he walked down the steps. He said something, dude said something to him, James said something to him. He's like "What you say?" Dude said, "We ain't got much to talk about". Travis said, "Yes, we do. You still owe me money". At that point I guess the guy said something else. He said he whipped out his gun. That's when he headed back to the house and he reached up and shot him. [Tr. at 137-138.] According to Gill, Hamber was aware that defendant had a weapon, because "[t]he gun was slipping out of Travis' crotch area and James said, `Are you going to shoot me?' T-Bird is like, `I don't need to shoot you. I can work.'" (Tr. at 138.) Defendant had a girlfriend named Angel, and defendant told Gill that, after the shooting he went to the nearby residence of Angel's aunt, who he identified as Aunt Debbie. Defendant "didn't know if he shot the guy James or if he had hit him or not, so he sent her Aunt Debbie over to the guy's house to see what was going on." (Tr. at 139.) Debbie went over to the apartment and the door was cracked; she noticed the body on the floor, and came back and told defendant that, "the dude got hit." (Tr. at 139.) Defendant later learned that an individual named Matt had been in Hamber's apartment on the date of the incident. Defendant also indicated to Gill that someone named Willie was in the apart-ment during the shooting, and defendant heard that Willie supposedly jumped out the window during the incident. Defendant told Gill that he was going to give the weapon "to some dude to take to Detroit to get rid of it." (Tr. at 142.) Gill thought defendant was referring to defendant's brother. Defendant told Gill that the weapon was a 9mm semi-automatic. Defendant also told Gill that he did not think that a shell casing that was found at the apartment was from his weapon because it was found on the other side of the courtyard from where the shooting occurred. Gill further testified that he observed defendant at the jail with a witness list, and that defendant was "looking through the phone books trying to get their telephone number." (Tr. at 147.) Defendant told Gill that he had contacted "Matt's people." (Tr. at 147.) Someone at Matt's house told defendant that Matt was out of town. Defendant also showed Gill and other inmates discovery photos of the crime scene. Based upon one of the conversations Gill had with defendant during that time, Gill had the impression that the weapon used in the shooting might be in the trunk of a car. Matthew Williams was a friend of the shooting victim, Hamber. Williams and Hamber had smoked "dope" together in the past. (Tr. at 170.) Williams also knew defendant, and he had previously purchased crack cocaine from defendant. On June 29, 2000, Williams was at Hamber's residence "[g]etting high with James." (Tr. at 172.) Willie Hodges, Mousie, and Hamber's mother were also at the apartment. Mousie eventually left the apartment. Later, defendant knocked on the door, and he and Hamber began arguing about a shirt. Hamber would not let defendant inside, but Hamber told Williams to get the shirt for defendant, which he did. Williams then left the apartment and went across the courtyard to a nearby apartment of an individual named Rob. Rob and "a couple of other people" were in the apartment, including a woman named Debbie. (Tr. at 174.) Williams heard what appeared to be defendant and Hamber arguing. Debbie also heard them arguing, and she "jumped up and tried to get out of the house to try to calm him [defendant] down." (Tr. at 176.) Williams heard Debbie say, "T-Bird," but "by the time we got to the door a shot rang off, and by the time we got out there T-Bird was walking down towards my left." (Tr. at 175.) Debbie went outside and ran up to defendant and they "started to walk the opposite way." (Tr. at 176.) Williams went up to Hamber's apartment and attempted to open the door, but he could not push it open. Defendant told Debbie to go to Hamber's apartment and "see what was going on." (Tr. at 178.) Williams testified that he initially did not tell police officers the truth about the incident because of "[l]ife threatening situations." (Tr. at 182.) Williams stated that he was "scared of being around that area and the guys that know him that would harm me or my people." (Tr. at 182.) Williams further stated that defendant once placed a phone call from the jail and left a message with Williams' mother or stepfather that made Williams feel threatened. Dr. Patrick Fardal, an employee with the Franklin County Coroner's Office, conducted an autopsy of Hamber on June 30, 2000. Hamber suffered a gunshot wound in the center of his forehead, approximately three inches down from the top of the forehead. Dr. Fardal stated that the wound had a "peculiar squared-off appearance to it which is kind of unusual for gunshot injuries." (Tr. at 202.) Dr. Fardal recovered a "copper-jacketed slug" from the victim's skull. According to Dr. Fardal, the bullet was "conformed in some way to cause this peculiar squared-off area." (Tr. at 203.) Dr. Fardal, who visited the crime scene, noted that there was a bullet hole through the door, and he stated that a bullet "could be deformed by passing through the door," thereby accounting for the peculiar appearance. (Tr. at 204.) Dr. Fardal testified that the victim "died solely and exclusively as a result of a gunshot wound to his head with perforations of his skull and brain." (Tr. at 206.) Mark Hardy is a criminalist with the Columbus Division of Police. Hardy opined that a bullet fragment recovered from the victim's body was fired from a "Highpoint" 9mm weapon. (Tr. at 227.) Thomas Reed is currently an inmate in an out-of-state institution on a drug-related charge. Prior to his current incarceration, Reed spent time in the Franklin County Jail in a cell with a number of other individuals, including defendant. During this time, defendant told Reed he was involved in a shooting. Defendant told Reed that an individual owed him some money. According to Reed, defendant "went there to get it, and he said that when he knocked on the door that the guy seen he had a gun down his side. He said the guy tried to shut the door, and he said that he fired twice up like this and then he took off." (Tr. at 248-249.) Defendant indicated that "he fired up like this * * * aiming towards the head." (Tr. at 253-254.) Defendant later learned that the victim had died, "and that's when he was like he didn't give an F, that it was God calling him, it was his time to go." (Tr. at 249-250.) Defendant told Reed that he used a 9mm Highpoint weapon during the incident. Defendant indicated that he had given the weapon to his brother to sell, but that he was going to "tell him to take it apart and get rid of it." (Tr. at 249.) The sole witness for the defense was Columbus Police Detective Steven Eppert. Detective Eppert was involved in the investigation of Hamber's shooting. Detective Eppert testified that one shell casing was found at the crime scene, in the courtyard area of the apartments on a metal grate. The jury was charged as to the elements of both aggravated murder and murder. Following deliberations, the jury returned verdicts finding defendant guilty of the lesser-included offense of murder. The jury also found defendant guilty of discharging a firearm at or into a habitation. On appeal, defendant sets forth the following two assignments of error for review: ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED WHEN IT ENTERED JUDG-MENT AGAINST THE DEFENDANT, WHEN THE EVI-DENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTIOIN AND WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE. ASSIGNMENT OF ERROR II APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMEND-MENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10 ARTICLE ONE OF THE OHIO CON-STITUTION, BY TRIAL COUNSEL'S FAILURE TO REQUEST A LESSER INCLUDED JURY INSTRUCTION ON INVOLUNTARY MANSLAUGHTER, IT WAS ALSO PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO INCLUDE SAID INSTRUCTION IN ITS CHARGE TO THE JURY. Under his first assignment of error, defendant challenges both the weight and sufficiency of the evidence presented to support his conviction. At the outset, we note the separate standards of review for sufficiency and weight of the evidence. In State v. Martin (Apr. 19, 2001), Franklin App. No. 00AP-836, unreported, this court stated: * * * In determining the sufficiency of the evidence, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." * * * However, "[u]nlike a challenge to the sufficiency of the evidence, which attacks the adequacy of the evidence presented, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented." * * * When reviewing the manifest weight of the evidence, an appellate court sits as a thirteenth juror; the reviewing court weighs the evidence and all reasonable inferences, considers the credibility of all witnesses and determines whether, in resolving conflicts, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. * * * Further, "[t]he discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." * * * Defendant argues that there were no witnesses who actually saw defendant fire a shot through the door of the victim's apartment. Defendant further argues that two of the state's witnesses, Hodges and Williams, had been smoking crack that day, and that neither witness initially came forward with evidence. Defendant maintains that, although the jury obviously believed the "jail-house opportunists" who testified against defendant at trial, there was insufficient evidence to show intent to kill. Specifically, defendant argues that shooting through a door and striking someone in the head is a "fluke," and that, although the victim was tall, the bullet hole, high in the door, more logically weighs in favor of an intent not to hit anyone in the house. Finally, defendant maintains that the greater weight of the evidence supports a conviction for involuntary manslaughter. In the present case, defendant was convicted of murder, which is defined under Ohio law as purposely causing the death of another. R.C.2903.02. At trial, the state presented a number of witnesses who placed defendant at the victim's apartment. Willie Hodges testified that defendant came to Hamber's door asking about a shirt. According to Hodges, defendant left with the shirt, but returned a few minutes later because he did not like the way Hamber spoke to him. Hamber asked, "[w]hat are you going to do, are you going to shoot me?" (Tr. at 80.) Shortly thereafter, Hodges heard a shot fired. Matthew Williams had also been at Hamber's apartment that day when defendant first came to Hamber's door requesting a shirt. Williams, who had left Hamber's apartment prior to the shooting, was at a nearby apartment when he heard arguing. A female acquaintance of defendant, who was at the apartment with Williams, also heard the arguing and she "jumped up and tried to get out of the house to try to calm him [defendant] down * * * [b]ut the gun went off * * * before we could get there." (Tr. at 176.) After the shot was fired, Williams saw defendant walking away with the female. William Huff, a neighbor of Hamber, was in his apartment at the time of the shooting. Huff heard a shot fired, and he later observed defendant walking from the area, "[l]ooking back up towards the apartment and putting his hand back in his shirt." (Tr. at 38.) Lee Gill and Thomas Reed, both inmates who spent time with defendant in the Franklin County Jail following the incident, testified that defendant admitted to the shooting. According to Gill, defendant related to him that, after initially arguing with Hamber, defendant started walking down the stairs, but when further words were exchanged defendant "whipped out his gun" and "headed back to the house and reached up and shot him." (Tr. at 138.) Reed also testified as to what defendant told him while in jail. According to Reed, when defendant went to the door, the victim saw that defendant had a weapon and he tried to shut the door. Defendant related to Reed that he "fired up like this * * * aiming towards the head." (Tr. at 253-254.) Evidence sufficient to support a criminal conviction may be "direct, circumstantial or both." State v. Davis (Sept. 24, 1998), Franklin App. No. 98AP-192, unreported. Under Ohio law, "[c]ircumstantial and direct evidence possess the same probative value," and "[w]hen the state relies on circumstantial evidence to prove the essential elements of its case, there is no need for such evidence to be irreconcilable with any reasonable theory of defense in order to support a conviction." Id., citing State v. Jenks (1991), 61 Ohio St.3d 259. Further, direct evidence is not necessary to prove intent; rather, intent can "be deduced from `all the surrounding circumstances, including the instrument used to produce death, its tendency to destroy life if designed for that purpose, and the manner of inflicting a fatal wound.'" State v. Robinson (1999),132 Ohio App.3d 830, 838. Finally, an individual is "`presumed to intend the natural, reasonable and probable consequences of his acts.'" Id. Reviewing the evidence in a light most strongly in favor of the state, as we must in considering a sufficiency claim, we find that there was sufficient evidence to support the jury's conclusion that defendant was guilty of murder beyond a reasonable doubt. We reject defendant's characterization of the act of shooting through a door and hitting someone in the middle of the forehead as merely a "fluke." In Robinson, supra, at 839, the court held that a defendant's act of firing shots through a door, "knowing someone was standing on the other side, provided a strong indication that [defendant] intended to kill someone" (even if not necessarily the person defendant shot). Thus, in Robinson, there was sufficient circumstantial evidence for the trier of fact to find that defendant acted purposely. In the present case, there was evidence that, if believed, indicated that defendant thought he was aiming at the victim's head as he shot toward the door, and under the facts presented a jury could have found that defendant acted with purpose to kill. In challenging his conviction as against the manifest weight of the evidence, defendant argues that the witnesses who were at the apartment on the date of the shooting were either intoxicated or under the influence of drugs. Defendant also assails the reliability of the testimony of Gill and Reed, who both related that defendant confessed to the shooting during defendant's pretrial detention in the Franklin County Jail. However, while defendant attacks the credibility of the state's witnesses, the jury was able to observe these witnesses and determine whether they were believable. Such assessment of credibility was within the province of the trier of fact. State v. DeHass (1967),10 Ohio St.2d 230, paragraph one of the syllabus. See, also, State v. Nields (2001), 93 Ohio St.3d 6, 28 (credibility of jailhouse "snitch" was a question for the trier of fact to determine). Here, we cannot conclude that the jury lost its way in reaching its verdict, and we decline to substitute our judgment for that of the trier of fact. Defendant also contends that the facts of this case more properly support a conviction for involuntary manslaughter rather than murder. We note that no request was made by defendant at trial for a jury instruction on involuntary manslaughter and, thus, this court's review is under a plain error standard. Involuntary manslaughter is defined as causing the "death of another * * * as a proximate result of the offender's committing or attempting to commit a felony." R.C. 2903.04(A). Defendant, noting that he was also convicted of discharging a firearm into a habitation, argues that the greater weight of the evidence indicates a killing occurring as a proximate result of the commission of a felony. In the present case, as noted by the state, the defense sought to attack the identification testimony of the witnesses and, thus, defendant's trial strategy was to convince the jury that he was not the shooter. Consequently, the defense did not attempt to prove that whoever fired the shot, which struck the victim in the middle of the forehead, did not act in a purposeful manner. Here, an instruction on involuntary manslaughter would have conflicted with defendant's theory that he did not fire the weapon. See State v. Thaxton (June 25, 1993), Montgomery App. No. 13589, unreported (where there was no evidence of accident or self-defense, and defendant argued there was evidence to find he did not fire fatal shot, instruction on involuntary manslaughter would have been improper; if jury concluded defendant did not fire fatal shot, they could not also reasonably convict defendant of involuntary manslaughter which requires proof of an act proximately resulting in death). Finally, "the mere possibility that the jury might have reached a different conclusion is not sufficient to sustain the plain error standard." State v. Carr (Aug. 23, 2001), Franklin App. No. 00AP-1235, unreported. Under the facts of this case, an instruction on involuntary manslaughter would have conflicted with the defense theory, and defendant cannot show plain error by the trial court's failure to provide an instruction on that lesser-included offense. Accordingly, we conclude that there was sufficient evidence to support defendant's conviction and, further, that the conviction was not against the manifest weight of the evidence. Based upon the foregoing, defendant's first assignment of error is without merit and is overruled. Under his second assignment of error, defendant raises a claim of ineffective assistance of trial counsel. In order for a criminal defendant to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test set forth by the United States Supreme Court in Strickland v. Washington (1984),466 U.S. 668. Under the first prong, "[c]ounsel'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[.]" State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. Under the second prong of the test, defendant is required to establish prejudice arising from trial counsel's performance. Id. In the present case, defendant contends that his trial counsel was ineffective in failing to request an instruction on involuntary manslaughter. Thus, in order to meet the Strickland standard, defendant "must show both that the failure to request the instruction constitutes an unprofessional error on the part of counsel, and in the absence of such error there is a reasonable probability that the outcome of the trial would have been different." Carr, supra. Ohio courts have held that the decision of trial counsel not to request an instruction on a lesser-included offense can be "a matter of trial strategy and does not deprive a defendant of effective assistance of counsel." State v. Wheeler (Feb. 7, 2001), Cuyahoga App. No. 66923, unreported. See, also, State v. Griffie (1996), 74 Ohio St.3d 332, 333. ("Failure to request instructions on lesser-included offenses is a matter of trial strategy and does not establish ineffective assistance of counsel.") As noted under the first assignment of error, defendant's strategy was to discredit the identification testimony of the state's witnesses in an effort to show that defendant was not the shooter. In light of the defense that someone other than defendant shot the victim, a request by defense counsel for an instruction on involuntary manslaughter would have been inconsistent with the defense strategy. Stated otherwise, it would be inconsistent for defendant to claim he did not commit the act giving rise to the charged offense, but then to claim he was entitled to an instruction on a lesser-included offense, which could only be found if defendant actually was the shooter. See, e.g., State v. McKinzie (June 5, 2001), Franklin App. No. 00AP-1182, unreported (trial counsel's decision not to request instruction on voluntary manslaughter that would conflict with theory presented at trial was a matter of reasonable trial strategy; an instruction on voluntary manslaughter would have been completely inconsistent with defense theory and forced appellant's counsel to argue both that his client did not commit the murder but, if he did, he had been provoked into a sudden fit of rage by the victim). Here, where seeking a lesser-included instruction would have been inconsistent with the defense theory, the failure of counsel to request such an instruction did not constitute ineffective assistance of counsel. Accordingly, defendant's second assignment of error is without merit and is overruled. Based upon the foregoing, defendant's first and second assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. TYACK and LAZARUS, JJ., concur.

2016-07-06 06:36:44.673527+00

OPINION *Page 2 {¶ 1} Defendant-appellant, Dennis J. Lapso appeals his conviction and sentence from the Ashland County Municipal Court on one count of speeding, a minor misdemeanor in violation R.C. 4511.21(D) (2). The plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶ 2} On September 20, 2007, Trooper Matthew Dowller of the Ohio State Highway Patrol, Ashland Post was stationary in his patrol vehicle watching northbound traffic on I-71. (T. at 8). The posted speed limit for northbound traffic is 65 M.P.H. Trooper Dowller noticed a vehicle in the far left passing lane that appeared to be traveling faster than the speed limit. (T. at 8). The Trooper estimated the speed of that vehicle was 79 M.P.H. (Id. at 8-9). He then activated a laser speed device and clocked the vehicle's speed at 79 M.P.H. (T. at 13). Trooper Dowller made a traffic stop of the vehicle that was driven by appellant. When the Trooper approached the vehicle and requested information, appellant refused to roll down his window, saying that his attorney told him not to. (T. at 14). Trooper Dowller opened the door and asked appellant to step out of the vehicle. (T. at 14). The Trooper indicated that he had stopped appellant for a speed violation. Appellant refused to provide a driver's license or any identification claiming that there are no speed limits in Ohio. (T. at 15). Trooper Dowller informed appellant that if he did not identify himself, the Trooper would have to place him under arrest. At that time appellant provided his social security number. (Id.). Trooper Dowller issued appellant a citation for speeding in violation of R.C. 4511.21(D) (2). *Page 3 {¶ 3} The matter proceeded to a bench trial on October 19, 2007. At the conclusion of the evidence appellant was found guilty. The trial court sentenced appellant to a fine of $75.00 and court costs. {¶ 4} Appellant filed his Notice of Appeal on November 16, 2007; he filed an amended notice on November 19, 2007. On February 22, 2008, this Court dismissed appellant's appeal for failure to prosecute. This Court granted appellant's motion to reopen his appeal by Judgment Entry filed March 25, 2008. {¶ 5} Appellant does not set forth specific assignments of error with respect to each argument contained in his brief. He has set forth four arguments, which we interpret as follows: {¶ 6} "I. ALL EVIDENCE GATHERED BY TROOPER MATTHEW DOWLLER SHOULD BE STRICKEN FROM THE RECORD, BECAUSE IT WAS GATHERED UNDER THREAT, DURESS AND COERCION IN VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, SEC 10 OF THE OHIO CONSTITUTION. {¶ 7} "II. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO GRANT APPELLANT'S REQUEST TO CONTINUE THE TRIAL DATE. {¶ 8} "III. THE TRIAL COURT ERRED WHEN IT ADMITTED TESTIMONY CONCERNING THE SPEED OF APPELLANT'S VEHICLE AS DETERMINED BY THE CUSTOM SIGNAL PRO LASER II DEVICE. {¶ 9} "IV. THE STATE FAILED TO PROVE AN ESSENTIAL ELEMENT OF THE CRIME OF SPEEDING, I.E. THAT APPELLANT'S SPEED WAS UNREASONABLE AND UNSAFE FOR THE CONDITIONS." *Page 4 I. {¶ 10} In his first assignment of error, appellant argues that all evidence should be stricken from the record because it was gathered in violation of his Fifth Amendment right against self-incrimination. We disagree. {¶ 11} No motion to suppress evidence secured by Trooper Dowller was ever filed pursuant to Crim. R. 12. In State v. F.O.E. Aerie 2295 (1988), 38 Ohio St. 3d 53, 526 N.E.2d 66, the Ohio Supreme Court stated: {¶ 12} "Failure to file a pretrial motion to suppress evidence pursuant to Crim. R. 12(B) (3) precludes a challenge to its admission at trial. In this regard, Crim. R. 12(G) provides that: {¶ 13} "`Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (C), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver.' {¶ 14} "In State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362,373 N.E.2d 1244, this court considered the failure of a criminal defendant to file a motion to suppress evidence prior to trial. Paragraph three of the syllabus states: {¶ 15} "The failure to move within the time specified by Crim. R. 12(C) for the suppression of evidence on the basis of its illegal obtainment constitutes a waiver of the error. (Crim. R. 12[G].)' {¶ 16} "Accord State v. Moody (1978), 55 Ohio St. 2d 64, 66,9 O.O.3d 71, 72,377 N.E.2d 1008, 1010." 38 Ohio St.3d at 54-55,526 N.E. 2d at 67. *Page 5 {¶ 17} Inasmuch as the evidence considered by the trial court was not the subject of a timely motion to suppress, any error regarding its admissibility was waived. Id. at 56, 526 N.E. 2d at 68. {¶ 18} Appellant's first assignment of error is overruled. II. {¶ 19} In his second assignment of error, appellant argues that the trial court erred when it failed to continue the trial so that appellant could answer the State's request for discovery. We disagree. {¶ 20} A reviewing court analyzes a denial of a continuance in terms of whether the court has abused its discretion. Ungar v. Sarafite (1964), 376 U.S. 575, 589, 84 S. Ct. 841. {¶ 21} In denying the appellant's motion to continue made on the day of trial, the trial court stated: {¶ 22} "You requested a continuance . . . [b]asically because you had not responded to the State's request for discovery . . . I checked with the law director's office; they were not terribly concerned about that. That's why I did not grant your continuance . . ." (T. at 4). {¶ 23} In the case at bar, appellant failed to provide the trial court with any indication of the expected nature or relevancy of the information, or how he would be prejudiced if the continuance were not granted. State v. Mills, 5th Dist. No. 01-COA01444, 2002-Ohio-556; State v. Komadina, 9th Dist. No. 02-CA-008104, 2003-Ohio-1800. On appeal, appellant fails to articulate any specific fact to indicate that he was prejudiced by the denial. *Page 6 {¶ 24} Therefore, based upon the record before this court, we find that appellant has failed to show prejudice and we cannot say that the trial court abused its discretion when it denied appellant's motion for a continuance. {¶ 25} Appellant's second assignment of error is overruled. III. {¶ 26} In his third assignment of error appellant argues that the trial court erred when it admitted testimony concerning the speed of appellant's vehicle as determined by the Custom Signal Pro Laser II device. We disagree. {¶ 27} The admissibility of readings from stationary radar devices was considered by the Supreme Court of Ohio in City of East Cleveland v.Ferrell (1958), 168 Ohio St. 298, 154 N.E.2d 630. In that case, the Court acknowledged that the principles of the Doppler Effect, which underlie the operation of stationary radar devices, had been long established. Id. Additionally, the Supreme Court of Ohio concluded that "readings of a radar speed meter may be accepted in evidence, just as we accept photographs, X-rays, electroencephalographs, speedometer readings, and the like, without the necessity of offering expert testimony as to the scientific principles underlying them." Id. at 302-303, 154 N.E. 2d 630. See also City of Cincinnati v. McDaniel, 1st Dist. No. C-070034, 2008-Ohio-703 at ¶ 6. {¶ 28} In the case at bar, Trooper Dowller testified that he was stationary at the time he activated the laser speed-measuring device. (T. at 13). He further testified that he utilized a Custom Pro Signal Laser II to record appellant's speed. (Id.). At trial, the prosecutor asked the judge to take judicial notice of the reliability of the laser device. The trial court responded: *Page 7 {¶ 29} "All right. The record should reflect that a copy of the case of the State of Ohio versus Bradley A. Walker has been provided to the Defendant in which this court heard expert testimony. The expert was qualified to testify, qualified as an expert, and convinced the Court that the Custom Pro-Signal Pro Laser II is a scientifically reliable speed-measuring device. I am going to mark this as Court's Exhibit 1, and admit it on the Court's motion." (T. at 12-13). {¶ 30} The taking of judicial notice is governed by Evid. R. 201. Under Evid. R. 201(B), "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." The scientific reliability of a laser device is the type of fact that a trial court may judicially notice.Cincinnati v. Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, at ¶ 8, citing Columbus v. Dawson (Mar. 14, 2000), 10th Dist. No. 99AP-589. {¶ 31} "Establishing the reliability of a speed-measuring device can be accomplished for future cases by (1) a reported municipal court decision; (2) a reported or unreported case from the appellate court; or (3) the previous consideration of expert testimony about a specific device where the trial court notes it on the record." Levine, supra, at ¶ 10. (Citations omitted.). State v. Kress, Trumbull App. No. 2007-T-0075, 2008-Ohio-1658 at ¶ 11-12. {¶ 32} We find that the trial court did not err or abuse its discretion in taking judicial notice of the laser device used in the present case. Our review of the record reveals that the court specifically noted that it had previously heard expert testimony on *Page 8 the particular laser device and that it had subsequently taken judicial notice of the reliability and limitations of the Custom Pro-Signal Pro Laser II. {¶ 33} Even if judicial notice were improper, as stated in State v.Dawson, 5th Dist. No. 03-COA-061, 2004-Ohio-2324 at ¶ 23, "Ohio law is clear that an officer's testimony that, based upon his visual observation, a vehicle is speeding is in and of itself sufficient to support a conviction for speeding." {¶ 34} Trooper Dowller testified that prior to activating the laser device he made a visual estimate of appellant's speed. (T. at 8-9). Accordingly, any error in the admissibility of testimony concerning the speed of appellant's vehicle as determined by the Custom Signal Pro-Laser II device was harmless beyond a reasonable doubt. {¶ 35} Appellant's third assignment of error is overruled. IV. {¶ 36} In his fourth assignment of error, appellant contends that the State failed to prove an essential element of the crime of speeding. Appellant contends that the State failed to prove that his speed was unreasonable and unsafe for the conditions. We disagree. {¶ 37} Appellant was cited for a violation of R.C. 4511.21(D) which states, in relevant part, "[n]o person shall operate a motor vehicle upon a street or highway as follows: (2) At a speed exceeding sixty-five miles per hour upon a freeway as provided in division (B) (13) of this section except as otherwise provided in division (D) (3) of this section." {¶ 38} In State v. Dennis, Knox App. No. 2003-CA-000039,2004-Ohio-3329, at ¶ 11-13, this Court interpreted R.C. 4511.21, holding in part: *Page 9 {¶ 39} "R.C. 4511.21 (C) contains two separate and distinct components. The first component is that "[i]t is prima facie unlawful to exceed any of the speed limitations" contained in Subdivision (B). The second component states `[i]t is unlawful for any person to exceed any of the speed limitations in Division (D) of this section [.] * * *' {¶ 40} "Although it is prima faci[e] unlawful to exceed the posted speed limit pursuant to the first branch of 4511.21(C), it is clear the State legislature has determined in the second branch that this rebuttable presumption of speed does not apply above the maximum speeds set forth in Subsection (D). In other words it is a per se speeding violation." {¶ 41} Other courts have similarly held that, where a defendant is charged under the provisions of R.C. 4511.21(D), the issue whether the defendant's speed was unreasonable under the circumstances is not relevant. See, Columbus v. Conley, Franklin App. No. 05AP-1332,2006-Ohio-4625 at ¶ 12. {¶ 42} Accordingly, whether appellant's speed was unreasonable under the conditions was not relevant to the trial court's determination. Upon review of the record presented, including unchallenged testimony that appellant was driving in excess of 65 M.P.H., there was sufficient evidence presented upon which a rational trier of fact could have found that appellant violated R.C. 4511.21(D)(2). {¶ 43} Appellant's fourth assignment of error is overruled. *Page 10 {¶ 44} For the foregoing reasons, the judgment of the Ashland County Municipal Court is hereby affirmed. Gwin, J., Hoffman, P.J., and Farmer, J., concur *Page 11 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Ashland County Municipal Court is hereby affirmed. Costs to appellant. *Page 1

2016-07-06 06:36:44.701241+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, Merlin Watts, appeals from his convictions in the Wayne County Municipal Court. This Court affirms. I. {¶ 2} On September 5, 2004, Appellant, his daughter, Shannon Watts, and her boyfriend, Macs Shuff, arrived at the home of Symontee and Stacy Martin ("Mr. and Mrs. Martin"). Mrs. Martin was standing in her front yard when Appellant arrived. Soon after Appellant arrived, Mr. Martin pulled up to the residence and parked his car in front of his home. Mr. Martin and Appellant began to argue about an incident involving Appellant's son. At some point during the parties' interaction, Appellant punched Mr. Martin in the face two times and Mr. Martin then retreated into his house to find a weapon with which he could defend himself. {¶ 3} The parties dispute the remaining facts. Shannon Watts contends that while she, her father (Appellant) and her boyfriend were attempting to flee the scene, Mr. Martin threw a metal scooter at Appellant which struck him in the head. Both Appellant and his daughter testified that after Appellant was struck by the scooter, Macs Shuff jumped out of the vehicle and proceeded to bash out the window of one of the Martins' vehicles. {¶ 4} The Martins contend that when Mr. Martin retreated into his home to obtain a weapon, Appellant retrieved the metal scooter from the Martins' front yard which he then used to bash the windows of the Martins' two vehicles. Appellant, Shannon Watts and Macs Shuff then fled the Martin residence. {¶ 5} Shortly thereafter, Wooster Police Officer Waddell responded to a complaint of criminal damaging at the Martin residence. Upon arrival at the residence, Officer Waddell spoke with the alleged victim, Mr. Martin. While at the scene, Officer Waddell observed damage to both a car parked in the driveway and a car parked on the street in front of the house. Tracy Boorman, a witness to the incident, provided Officer Waddell with the license plate number of the vehicle he observed fleeing the Martin residence. Officer Waddell checked the license plate number and discovered that the plate was registered to the Watts family. Officer Waddell then proceeded to the Watts residence where he spoke with Appellant and his daughter, Shannon Watts. Officer Waddell observed an abrasion on Appellant's right shoulder and a small cut to his head. {¶ 6} On September 21, 2004, Appellant was charged with one count of disorderly conduct, a violation of R.C. 2917.11, and one count of criminal damaging, in violation of R.C. 2909.06. The case proceeded to a bench trial on February 10, 2005. The trial court found Appellant guilty on both charges. The trial court ordered a pre-sentence investigation and then sentenced Appellant to thirty days in jail, a $100.00 fine on the disorderly conduct conviction, a $200.00 fine on the criminal damaging conviction and three years of community control. In addition, Appellant was ordered to pay $5,478.43 in restitution and was prohibited from contacting the victims. Appellant timely appealed his convictions, raising one assignment of error for our review. II. ASSIGNMENT OF ERROR "THE STATE FAILED TO INTRODUCE SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT THE OFFENSES OF DISORDERLY CONDUCT AND CRIMINAL DAMAGING WERE COMMITTED AND SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 7} In his first assignment of error, Appellant contends that his convictions for disorderly conduct and criminal damaging were against the manifest weight of the evidence. Appellant also argues that these convictions were not supported by sufficient evidence. Appellant's assignment of error lacks merit. {¶ 8} Sufficiency of the evidence and manifest weight of the evidence are distinct legal concepts. State v. Shirley (Jan. 2, 2002), 9th Dist. No. 20569, at *1; State v. Thompkins (1997),78 Ohio St.3d 380, paragraph two of the syllabus. A manifest weight challenge requires an appellate court to examine whether the prosecution met its burden of persuasion, while a challenge to the sufficiency of the evidence requires the court to determine whether the prosecution met its burden of production. Thompkins,78 Ohio St.3d at 390 (Cook, J., concurring). {¶ 9} At the outset, we note that Appellant failed to move for acquittal at the trial court level as required by Crim.R. 29(A). To preserve the right to appeal the sufficiency of the evidence upon which a conviction is based, an appellant must move for acquittal as provided under Crim. R. 29. Shirley, supra, at *2. "It is a fundamental principal of appellate review that a court will not consider an error than an appellant was aware of, yet failed to bring to the attention of the trial court." State v. Stearns, 9th Dist. No. 03CA008343, 2004-Ohio-2244, at ¶ 7, citing State v. Taylor, 9th Dist. No. 21307, 2003-Ohio-2025, at ¶ 21; see State v. Awan (1986), 22 Ohio St.3d 120, 122. A defendant waives the right to challenge the sufficiency of the evidence on appeal when he fails to make a Crim. R. 29 motion. Shirley, supra, at *2. Appellant has waived any right to challenge the sufficiency of the evidence on appeal and we therefore decline to address this portion of Appellant's assignment of error. {¶ 10} We can, however, address Appellant's contention that his conviction was against the manifest weight of the evidence. When a defendant asserts that his conviction is against the manifest weight of the evidence, "an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Otten (1986),33 Ohio App.3d 339, 340. This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id. {¶ 11} R.C. 2917.11 governs disorderly conduct and provides: "(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: "(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior[.]" R.C. 2909.06 proscribes criminal damaging and states: "(A) No person shall cause, or create a substantial risk of physical harm to any property of another without the other person's consent: "(1) Knowingly, by any means; "(2) Recklessly, by means of fire, explosion, flood, poison gas, poison, radioactive material, caustic or corrosive material, or other inherently dangerous agency or substance." R.C. 2901.22(c) provides the following definition for "reckless" behavior: "[a] person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature." {¶ 12} Appellant contends that the State failed to establish that he damaged either vehicle and therefore failed to prove the elements of R.C. 2917.11 and R.C. 2909.06. Although the trial court heard an abundance of conflicting testimony regarding the events at issue, we are persuaded that the State introduced sufficient evidence to establish that Appellant damaged at least one of the vehicles, and therefore acted knowingly and recklessly in causing harm to another person's property without consent. {¶ 13} The trial court heard testimony from Officer Waddell, Mr. and Mrs. Martin and Mr. Boorman that Appellant and Macs Shuff bashed the windows of the Martins' two vehicles. In addition, the court reviewed photographs of the vehicles taken by Officer Waddell shortly after the incident at issue which reflected serious damage to the windows of both vehicles. Notably, one of the pictures reflects a metal pipe lodged in the windshield of the vehicle. {¶ 14} Appellant and his daughter testified that only Macs Shuff accompanied them to the Martin residence on September 5, 2004. Although Appellant and his daughter testified that Macs Shuff damaged the vehicle in the driveway, neither one could explain the damage to the other vehicle. No one testified that the windows were damaged prior to the incident at issue. Furthermore, no one testified that Shannon Watts ever left the van or that any person other than Appellant and Macs Shuff caused damage to the vehicles. {¶ 15} We can find no reason for Shannon Watts to mistakenly incriminate her boyfriend by testifying that he damaged one of the vehicles. We are therefore persuaded that the trial court could have reasonably concluded that Appellant damaged at least one of the Martins' vehicles. We find that the act of striking a window with an object, whether it be a body part or a metal item, reflects indifference to the consequences of one's actions and therefore constitutes reckless behavior. Because we find that the court could reasonably conclude that Appellant acted recklessly and without consent in causing harm to Appellant's vehicles, we find that the State met its burden of proving the elements of criminal damaging and disorderly conduct. Consequently, we conclude that Appellant's convictions for criminal damaging and disorderly conduct were not against the manifest weight of the evidence. III. {¶ 16} Appellant's assignment of error is overruled, and the judgment of the Wayne County Municipal Court is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Wayne County Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. Exceptions. Slaby, P.J., Reece, 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 06:36:44.984659+00

OPINION {¶ 1} C.M. appeals from the judgment of the Montgomery County Juvenile Court, wherein the court found him delinquent for raping his half-brother, T.L., age 5 years. C.M. was 14 years of age at the time of the rape. {¶ 2} At the trial, T.L. testified that in the summer of 2005, C.M. went into his room, took down his pants, and inserted his penis into T.L.'s anus. T.L. told a friend of his sister's, his mother, a doctor, and the police about the incident. A visit to Children's Medical Center on or about June 22, 2005 resulted in no finding of abuse by the doctor. However, T.L. complained to his father of great discomfort to his anus. {¶ 3} At trial, T.L. repeatedly insisted that he was asleep during the assault and made an additional allegation that C.M. raped him a second time on July 3. C.M. was in the Juvenile Detention Center on July 3. {¶ 4} C.M. denied that he raped T.L. but offered no explanation for why T.L. might lie. To explain how five-year-old T.L. would have knowledge of anal sex, C.M. said that C.M. found a pornographic video of his mother's and T.L. watched it. C.M. admitted that T.L. has never before lied about C.M. or anyone else raping him. {¶ 5} In a single assignment of error, C.M. contends the trial court's judgment was against the manifest weight of the evidence. He argues that his half-brother's testimony was simply unbelievable. He notes that T.L. claimed he was sexually assaulted while he slept and that he did not wake up. He also notes that the physician who examined T.L. at the Children's Medical Center could find no evidence that T.L. was sexually assaulted. {¶ 6} The State argues that the judgment is not against the manifest weight of the evidence because T.L. told the same story consistently to four people, that he knew about anal sex, that he complained of anal discomfort to his father, and that C.M. admitted T.L. had never made up such stories about anyone before. Lastly, the State argues that since T.L. was five at the time of the incident, he could be confused about the dates of when they occurred. {¶ 7} The following is a portion of T.L.'s testimony on direct examination by the prosecuting attorney: {¶ 8} "Q. Right. Okay. But, when you said that he stuck his privates in your butt, were you looking away from him? {¶ 9} "A. Away from him. {¶ 10} "Q. And he was behind you? Away from him? {¶ 11} "A. He was behind me while I was sleeping. And I was facing that way. {¶ 12} "Q. Okay. And did C.M. say anything to you while he did this? {¶ 13} "A. No. I was asleep. {¶ 14} "Q. You were asleep? Well, were you awake when it happened? {¶ 15} "A. No. {¶ 16} "Q. Were you asleep before he came into the room? {¶ 17} "A. No. I was full — fully asleep. {¶ 18} "Q. You were falling asleep? Okay. But, when he came in and he put his penis in your butt, you were awake? {¶ 19} "A. No. Sleeping. {¶ 20} "Q. You were asleep? Okay. When you say you were asleep, do you mean you were just tired, or do you mean that you were completely asleep? {¶ 21} "A. Completely asleep. {¶ 22} "Q. You were completely asleep when he put his penis in your butt? {¶ 23} "A. Yeah. {¶ 24} "Q. Okay. Then how do you know that that's what he did? {¶ 25} "A. Because I told mom. {¶ 26} "Q. Because you told mom? Okay. So, is it the truth when you say that C.M. put his penis in your butt — or his privates, I'm sorry? {¶ 27} "A. Yeah. {¶ 28} "Q. It is the truth? {¶ 29} "A. Oh-huh. {¶ 30} "Q. Okay. Well, can you explain to the Judge why you would say you were asleep? {¶ 31} "A. Yeah. {¶ 32} "Q. How do you know you weren't dreaming? {¶ 33} "A. I was dreaming. {¶ 34} "Q. You were dreaming? Okay. So, when this happened, was it a dream, or did it really happen, T.L.? We need for you to tell us the truth. {¶ 35} "A. It really happened." {¶ 36} T.L. admitted on cross-examination that after C.M. was taken from his house he told his brother, Ryan, age six, that C.M. never did what he alleged and that he lied because he didn't want C.M. to live with him. T.L. testified he lied to his brother Ryan because "it did happen." (T. 28). T.L. also admitted he told his father that C.M. did the same thing to him the night before July 4th. {¶ 37} T.L.'s father testified that C.M. was in juvenile detention on July 4, 2005. (The docket and journal entries indicate C.M. was charged on June 23, 2005 and was in detention until July 20, 2005.) {¶ 38} He also placed a date on the alleged incident as June 22, 2005. T.L.'s father said he took T.L. that same day to the Dayton Children's Hospital when T.L. complained of great discomfort with his anus but the doctor could find no evidence that T.L. had been abused. (T. 37). {¶ 39} C.M. testified in his own defense and denied ever abusing his brother. He said he had no idea why his brother would say he sexually abused him. He said his brother had watched a pornographic movie his mother had borrowed from a friend. He admitted that when he was interviewed by the police detective, he did not make eye contact, but he said he didn't because he was trying to figure out why his brother would think up something like that because "I have never done anything to that kid." (T. 44). {¶ 40} At the conclusion of the adjudication hearing, the trial judge stated he believed T.L.'s testimony beyond a reasonable doubt and found C.M.'s testimony "not believable." (T. 46). {¶ 41} C.M. argues that the court's delinquency finding was against the manifest weight of the evidence because T.L.'s testimony was not credible. The credibility of witnesses and the weight to be given to their testimony is a matter for the trier of facts to resolve. State v. DeHass (1967), 10 Ohio St.2d 230,227 N.E.2d 212. "Because the fact-finder, be it the jury or, as in this case, the trial judge, has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the fact-finder's determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the fact-finder, who has seen and heard the witness." State v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288. An appellate court should not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03. {¶ 42} The term "manifest weight of the evidence" concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. State v. Thompkins (1997), 78 Ohio St.3d 380, 387,678 N.E.2d 541. Weight is not a question of mathematics, but depends on its effect in inducing belief. Id. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a "thirteenth juror" and disagrees with the fact-finder's resolution of the conflicting testimony. Id. 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 fact-finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. {¶ 43} A review of the entire trial reveals a lack of overall coherence in the alleged victim's testimony. Not only is this a case involving a child of tender years, age five, but there is a lack of substantial credible evidence. The child testified that I was "fully asleep" and "I was dreaming." {¶ 44} There is a complete lack of physical evidence and no expert testimony that the child exhibits behavior that is consistent with abuse. The fact finder's burden to assess the credibility of a young child is particularly important and arduous in sex abuse cases like this one, where the lack of physical evidence and eyewitness testimony necessitates a credibility contest. {¶ 45} Where the State's case is so heavily dependent on the credibility of a child victim, the record should minimally demonstrate the child is not only credible, but competent. Although not raised by counsel as an assigned error, the competency evaluation of this child is not recorded. Certainly, in a situation where a child asserts he was "dreaming" there should be a record that substantiates the child can distinguish between fantasy and reality. We do not have the benefit of a voir dire that demonstrates this five-year-old is capable of receiving just impressions of facts and relating them truthfully. We recognize that the judge apparently conducted a competency hearing in chambers and served as fact finder, but the record does not demonstrate this child can receive just impressions. {¶ 46} In fact, in early questioning, this child provided wrong answers to simple preliminary questions, misidentified the prosecutor and merely acknowledged the judge talked to him about truth vs. lies: {¶ 47} "Q. Do you remember me? {¶ 48} "A. Yeah. {¶ 49} "Q. We have talked before? {¶ 50} "A. Yeah. {¶ 51} "Q. Do you remember what my name is? {¶ 52} "A. Lori. {¶ 53} "Q. Is it Jennifer? {¶ 54} "A. Yes. {¶ 55} "Q. Who do you live with? {¶ 56} "A. Sarah and Ryan and Dad and Mom. {¶ 57} "Q. Okay and do you have any other brothers or sisters? {¶ 58} "A. No. {¶ 59} "Q. Do you have a brother named [C.M.]? {¶ 60} "A. Yeah. {¶ 61} "Q. Now did the Judge talk to you about the difference between the truth and a lie, right." {¶ 62} "A. Yeah." {¶ 63} This child's testimony is undercut by other material deficiencies as well. He told his older brother that he lied about the abuse because he didn't want C.M. to live with him. He acknowledged that he told his father that C.M. did the same thing to him the night before July 4th, a physical impossibility since C.M. was in juvenile detention on July 3. Standing alone, a "wrong" date may be insignificant particularly with a witness who is only five years old, but in this case, we cannot overlook other major flaws in the testimony. {¶ 64} As we noted in State v. Jones (1996),114 Ohio App.3d 306, "the manifest weight analysis departs from the sufficiency-of-the-evidence standard in two subtle but significant respects. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563, unreported, 1996 WL 501470. First, a manifest-weight claim requires the court to consider not only the sufficiency of the evidence if believed, but also the believability of the evidence. Id. at 6. Thus, a verdict may be supported by sufficient evidence, yet be against the manifest weight of the evidence. Accordingly, we must look not only at the amount of evidence presented, but also at the evidence's capacity to persuade. Second, when conducting the manifest-weight analysis, we do not construe the evidence "in the light most favorable to the prosecution"; rather, "`[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed.'" Id. at 9, quoting State v. Martin (1983), 20 Ohio App.3d 172. {¶ 65} Sitting as a thirteenth juror, we reverse this adjudication of delinquency for rape as against the manifest weight of the evidence. The first assignment of error is sustained. {¶ 66} In his second assignment, C.M. argues that the State never provided any evidence of when the alleged delinquent act occurred. The complaint alleged that the delinquent act occurred between June 13, 2005, and June 22, 2005. While T.L. did not testify concerning the actual date of the sexual conduct, his father testified that he took T.L. to the hospital because he complained of discomfort in his anus on June 22, 2005. The trier of fact could reasonably infer the alleged assault took place shortly before that date. {¶ 67} The date of an offense is not an element of the offense. State v. Ahedo (1984), 14 Ohio App.3d 366. The date of the offense may be important to provide an adequate notice to the defendant for due process purposes. A defendant is not prejudiced by the failure of an indictment to specify the dates and times upon which the charged offenses allegedly occurred if such failure does not impose a material detriment to the preparation of a defense. State v. Barnecat (1988), 44 Ohio App.3d 149. The State presented evidence that the delinquent act occurred shortly before June 22, 2005. The appellant's second assignment is overruled. {¶ 68} The judgment of the trial court is reversed. Pursuant to App.R. 12(D), the case is remanded to the Juvenile Court for further proceedings. Grady, P.J., concurs.

2016-07-06 06:36:45.718159+00

DECISION AND JUDGMENT ENTRY {¶ 1} This matter comes before the court on appeal from the Lucas County Court of Common Pleas wherein appellant, Troy A. Ames, received maximum, consecutive sentences for the offense of kidnapping and the offense of possessing criminal tools. For the reasons that follow, this court affirms the judgment of the trial court. {¶ 2} On May 17, 2002, a man wearing women's clothing attempted to abduct a six year old girl from the backyard of her residence. The child's mother, who was inside the home, heard a child screaming. She went to the door where she saw the man attempting to force her daughter into a car. The mother ran to the car, pushed the man away and retrieved her daughter. The man apologized and drove away. The child's mother recorded the license plate number of the man's car. The car was registered to appellant. When the police arrived at appellant's home, appellant confessed that he had forcibly removed the child from her yard. {¶ 3} On September 23, 2002, appellant entered a guilty plea to one count of kidnapping, a violation of R.C. 2905.01 and a felony of the first degree. He also entered a guilty plea pursuant to North Carolinav. Alford (1970), 400 U.S. 25, to one count of possessing criminal tools, a violation of R.C. 2923.24 and a felony of the fifth degree. Appellant was found guilty and sentenced consecutively to ten years in prison for kidnapping and one year in prison for possessing criminal tools. Appellant now appeals setting forth the following assignments of error: {¶ 4} "I. The trial court erred in imposing a maximum prison term upon appellant for the offenses of kidnapping and possessing criminal tools." {¶ 5} "II. The trial court erred in imposing consecutive prison terms." {¶ 6} In his first assignment of error, appellant contends that the court erred in sentencing appellant to maximum prison terms for the offenses of kidnapping and possessing criminal tools. Specifically, appellant contends that the record does not support a finding that appellant committed the worst forms of the offenses or that appellant possesses the greatest likelihood of committing future crimes. {¶ 7} R.C. 2929.14(C) states in pertinent part: {¶ 8} "* * * the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section." In addition, R.C. 2929.19(B) requires the trial court to "make a finding that gives its reasons for selecting the sentence imposed," and if that sentence is the maximum term allowed for that offense, the judge must set forth "reasons for imposing the maximum prison term." In State v.Edmonson, (1999), 86 Ohio St.3d 324, 329, the Ohio Supreme Court held that in order to lawfully impose a maximum prison sentence, the record must reflect that the trial court found the defendant satisfied at least one of the criteria set forth in R.C. 2929.14(C). It is not necessary for the trial court to use the exact language of R.C. 2929.14(C), as long as it is clear from the record that the court made the required findings.State v. Hollander (2001), 144 Ohio App.3d 565. {¶ 9} Appellant first contends that the record does not support a finding that he committed the worst forms of the offenses of kidnapping or possessing criminal tools. Appellant focuses on the trial judge's comment on the record that "* * * based upon your use of [women's clothing] as the way to disguise yourself that this clearly was the worst form of the offense * * *" Appellant contends that this is the trial judge's only justification for imposing maximum prison terms. To accept appellant's contention is to ignore the transcript of appellant's sentencing hearing in its entirety. {¶ 10} "The sentencing statutes do not put an obligation upon the lower court to provide the statutory findings and its reasons in such close proximity on the record in order for the reasons to be of effect."State v. Kessler, 8th Dist. No. 82956, 2003-Ohio-6052, citation omitted. In concluding that a defendant has committed the worst form of an offense, a trial judge must engage in a reasoning process which considers the totality of the circumstances. State v. Garrard, (1997),124 Ohio App.3d 718. "The concept of the `worst forms of the offense' obliges a judge to conceive of a hierarchy of seriousness within any legal category, although the top of the hierarchy need not be the most abhorrent imaginable to qualify as a worst form." Griffin Katz, Ohio Felony Sentencing Law (2003 Ed.) at 762. {¶ 11} It is clear from a review of the sentencing transcript in this case that the trial judge considered far more facts than appellant's disguise in sentencing him to maximum prison terms. The judge noted that appellant "* * * chose to prey upon a small child who was in her [fenced] back yard." * * * The trial judge further stated: {¶ 12} "We put fences up * * * to protect that which is behind the fence from that which is outside that fence, whether it is to keep out predators, whether it is to keep in our loved ones, including our pets. But it certainly is to protect small children. You violated those boundaries, Mr. Ames. * * * You chose your prey. You selected that child, and you grabbed her, and that little girl screamed out. Thank God she did. And what did you do? Your intention was not to just let her go when she screamed out because this child was yelling help. She was yelling. She was screaming. It didn't deter you. * * * And what you did was you threw that child over the fence. And as a result [her tooth was knocked out]. That wasn't enough, Mr. Ames. Your mission was still in force. You picked that child up and proceeded to try to get her into that motor vehicle. The motor vehicle was a means to exit and take that child for whatever purpose you had. And as you try to get the child in, she's struggling, and her little legs are injured as a result of you pushing on the car door * * * you stopped when you were confronted and knew that that child was going to be taken back by her mom." {¶ 13} Our review of the sentencing transcript shows that the trial judge concluded appellant had committed the worst forms of the offenses after considering appellant's disguise, his boldness, his lack of empathy, the child's age and the child's physical as well as psychological injuries. The record in this case supports the trial judge's finding that appellant committed the worst forms of the offenses. {¶ 14} Appellant next contends that the record does not support the trial court's finding that appellant poses the greatest likelihood of committing future crimes. In support, appellant cites his sparse criminal record which contains one misdemeanor conviction for petty theft. However, the trial court is not limited to a defendant's history of convictions when determining whether or not the defendant is likely to commit future crimes. R.C. 2929.12(D); see State v. Boshko (2000),139 Ohio App.3d 827, 837. {¶ 15} At appellant's sentencing hearing, the judged explained that she was in possession of a 1999 police report wherein appellant was found dressed in woman's clothing and hiding in someone's basement. The judge stated: "[W]e note that this behavior back in May was not unique. It happened before. You were in counseling. You've received treatment, and nothing dissuaded, it only escalated." Based on the foregoing, we conclude that the trial court's finding that appellant poses that greatest likelihood of committing future crimes is supported by the record. Appellant's first assignment of error is found not well-taken. {¶ 16} In his second assignment of error, appellant contends that the trial judge made inadequate findings to support consecutive prison terms. Pursuant to R.C. 2929.14(E)(4), a trial court may impose consecutive terms of imprisonment if it makes three findings. First, the trial court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. R.C. 2929.14(E)(4). Second, the consecutive terms must not be disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Id. Finally, the trial court must also find that one of the additional factors listed in R.C. 2929.14(E)(4)-(a) through (c) applies: {¶ 17} "(a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. {¶ 18} "(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct. {¶ 19} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." {¶ 20} When imposing consecutive sentences, the trial court must make the statutorily enumerated findings and give reasons supporting those findings at the sentencing hearing. State v. Comer,99 Ohio St.3d 463, paragraph one of the syllabus. R.C. 2929.14(E)(4) does not require the trial court to recite the exact words of the statute in a talismanic ritual to impose consecutive sentences upon an offender. Statev. Kelly (2001), 145 Ohio App.3d 277. {¶ 21} In sentencing appellant to consecutive sentences, the trial judge stated that the sentences "were necessary to fulfill the purposes under 2929.11 and not disproportionate to the seriousness of the defendant's conduct or the danger the defendant poses, and the court further finds clearly the harm caused was great and unusual." {¶ 22} This court has held: "[A]lthough the court need not always use the `magic words' of the statute, substantial compliance is required. * * * Substantial compliance may be found where there are sufficient findings on the record to support the trial court's sentence."State v. Cole, (Dec. 17, 1999), Wood App. No. WD-99-007, citing State v.Estrada, (Sept. 18, 1998), Sandusky App. No. S-98-006 and State v.Edmonson, supra. {¶ 23} This court has reviewed the entire record of proceedings before the trial court and, upon consideration thereof and the law, finds that the trial court used the appropriate "magic words" in sentencing appellant, and the record contains sufficient evidence to support the trial court's sentence in this case. Appellant's second assignment of error is found not well-taken. {¶ 24} On consideration whereof, the court finds that substantial justice has been done the party complaining, and the judgment of the Lucas County Common Pleas Court is affirmed. Costs assessed to appellant. JUDGMENT AFFIRMED. Peter M. Handwork, P.J., Judith Ann Lanzinger, J. and Arlene Singer, J., Concur.

2016-07-06 06:36:45.474139+00

OPINION {¶ 1} Defendant-appellant Charles E. Wilson appeals from his conviction and sentence in the Stark County Court of Common Pleas on one count of possession of cocaine and one count of aggravated possession of drugs. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶ 2} On August 15, 2002, at approximately 3:00 A.M., Officers Nixon and Redleski of the Canton City Police Department were in route to a "trouble call" in Canton, Ohio. As they were driving, they observed appellant walking in the street. Appellant was naked. They turned their cruiser around to observe appellant more closely. They noted that appellant had lacerations and streaks of blood on his body. Officer Nixon observed appellant with a cream colored object in his right hand which he saw appellant throw into a yard behind a tree. Officer Redleski, who was driving the cruiser, did not see appellant throw anything. At some point, a video camera in the cruiser was activated by one of the officers. {¶ 3} Appellant walked over to the officers. Appellant was naked, dazed and "zombie-like". The officers placed appellant in the back of the cruiser uncuffed. Officer Nixon then climbed over a fence and retrieved the object that he had seen appellant throw. The item retrieved was a pair of shorts (pants) with blood and flakes of a leafy green substance on them. The shorts had seven pockets. Officer Nixon went through each of the pockets and found a bag containing 29.60 grams of crack cocaine, a vile containing 1.24 grams of PCP and some marijuana. No identification or driver's license was found in the shorts. The officers observed that no one else was on the street. {¶ 4} The officers then continued on to the trouble call. An ambulance was called for appellant when he appeared unresponsive. {¶ 5} Subsequently, on September 11, 2002, appellant was indicted on one count of burglary, in violation of R.C.2911.12(A)(1), one count of possession of cocaine, in violation of R.C. 2925.11(A)(C)(4)(e), and one count of aggravated possession of drugs, in violation of R.C. 2925.11(A)(C)(1)(a). At an arraignment held on September 13, 2002, appellant pled not guilty. On September 18, 2002, appellant filed a request for discovery. After a change of counsel, a new request for discovery was filed on September 26, 2002. {¶ 6} On October 7, 2002, appellant filed a motion for a transcript of the preliminary hearing. The trial court granted the motion that same day. {¶ 7} On October 31, 2002, a motion was made to change appellant's plea to not guilty by reason of insanity. A hearing was held and a sanity evaluation was ordered. In support of his motion, appellant attached a copy of the preliminary hearing transcripts. {¶ 8} The transcript of the preliminary hearing revealed that the police officers had videotaped portions of the arrest of appellant. The response from the State to appellant's discovery request did not reveal the presence of a videotape. The record shows that there was no motion made to preserve the videotape by appellant but rather, appellant sent an informal letter to the State on November 4, 2002, requesting that the State supplement discovery with the videotape. Transcript of Proceedings, Vol. 1, pg. 114. {¶ 9} The matter proceeded to a jury trial beginning January 13, 2003. On the day of the trial, the State indicated that the videotape was not available because it was either "recycled or it was used in another case . . ." Transcript of Proceedings, Vol. 1, pg. 111. In response to the State's claim, appellant's counsel requested an opportunity to voir dire the officers involved to determine what happened to the videotape. {¶ 10} Thus, after opening statements of the parties and outside the presence of the jury, a voir dire of Officers Nixon and Redleski was conducted. Officer Nixon testified that the video equipment in the cruiser was activated just prior to appellant's arrest. Officer Nixon testified that the videotape revealed appellant walking naked towards the cruiser but it did not reveal appellant throwing any objects. Officer Nixon testified that because it did not reveal appellant throwing any objects, he took no special precautions to preserve the tape for evidence. Officer Nixon claimed that when he was informed that the videotape would be needed, he went to a supervisor and attempted to locate it. He testified that he was unsuccessful in locating it. Transcript of Proceedings, Vol. I, page 137. Thus, neither the State nor appellant had viewed the videotape. {¶ 11} After the voir dire of the officers, the trial court recessed to allow the State to make another attempt to locate the videotape. When the trial resumed, the State reported that it had obtained the log sheets for the cruiser and learned that the videotape was removed from the vehicle on August 16, 2002, and placed back in the cruiser on December 20, 2002, after being erased. Transcript of Proceedings, Vol. I, pg. 171. The trial court recessed until the next morning to allow the parties to submit legal arguments before making a decision on the relevance of the missing videotape and what affect, if any, it would have on appellant's trial. {¶ 12} The next day, on January 14, 2003, appellant filed a Motion to Suppress and Dismiss for the State's destruction of the videotape. During the arguments of counsel, it was revealed that appellant knew of the existence of a videotape on August 23, 2002. Transcript of Proceedings, Vol. II, pg. 188. {¶ 13} Ultimately, the trial court overruled appellant's motion to dismiss, finding that appellant had not demonstrated that the videotape contained "materially exculpatory" evidence. Further, that the trial court held that there was no bad faith on the part of the State. {¶ 14} The jurors then returned to the court room and the trial proceeded. The State called witnesses, including Officers Nixon and Redleski. Appellant called no witnesses and introduced no exhibits. {¶ 15} The jury was instructed on the elements of the crimes of possession of cocaine and aggravated possession of drugs. However, the State dismissed the burglary charge. Transcript of Proceedings, Vol. I, pg. 9. After receiving the instructions from the trial court, the jury found appellant guilty of the charges of possession of cocaine and aggravated possession of drugs. {¶ 16} The trial court proceeded to sentencing immediately. Noting that appellant had a prior criminal record consisting of four felony convictions, the trial court sentenced appellant to seven years of imprisonment on the count of possession of cocaine and six moths of imprisonment on the count of aggravated possession of drugs, to be served concurrently. {¶ 17} Thus, it is from this conviction and sentence that appellant appeals, raising the following assignments of error: {¶ 18} "I. The appellant's [sic] was deprived of a fair trial pursuant to the constitution by virtue of the state's destruction of evidence following a motion to preserve. {¶ 19} "II. The appellant's conviction was against the manifest weight of the evidence." I {¶ 20} In the first assignment of error, appellant contends that the State deprived appellant of a fair trial when it destroyed evidence, namely a cruiser videotape that filmed some of the events on the night of appellant's arrest. We disagree. {¶ 21} In Arizona v. Youngblood (1988), 488 U.S. 51,109 S. Ct. 333, 102 L. Ed. 2d 281, the United States Supreme Court addressed the issue of whether a criminal defendant is denied due process of law by the State's failure to preserve evidence. The United States Supreme Court stated the following: {¶ 22} "The Due Process Clause of the Fourteenth Amendment, as interpreted in [Maryland v. Brady (1963), 373 U.S. 83,83 S. Ct. 1194, 10 L. Ed. 2d 215], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant . . . We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 57-58. {¶ 23} Thus, the Youngblood Court established two tests: one that applies when the evidence is "materially exculpatory" and one when the evidence is "potentially useful." If the State fails to preserve evidence that is materially exculpatory, the defendant's rights have been violated. However, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. State v. Johnson (1988), 39 Ohio St. 3d 48,529 N.E.2d 898, paragraph five of the syllabus. Stated in other words, "To be materially exculpatory, `evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' [citations omitted]" State v. Colby, Portage App. No. 2001 CR 0096, 2004-Ohio-343. This court has consistently held that the burden of proof is on the defendant to show the exculpatory nature of the destroyed evidence. See State v.Birkhold, (April 22, 2002), Licking App. No. 01CA104, 2002 WL 727154; State v. Hill (March 8, 1999), Stark App. No. 1998CA00083, 1999 WL 174921; State v. Blackshear (June 19, 1989), Stark App. No. CA-7638, 1989 WL 66650. {¶ 24} If, on the other hand, the State fails to preserve evidence that is potentially useful, the defendant's rights have been violated only upon a showing of bad faith. The term "bad faith" generally implies something more than bad judgment or negligence. "It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another."State v. Franklin, Montgomery App. No. 19041, 2002-Ohio-2370. {¶ 25} In this case, the trial court found that the videotape was not shown to be materially exculpatory. Rather, the trial court found that the videotape was potentially useful to the defense. We agree. {¶ 26} During the voir dire, the two police officers involved in the incident testified concerning the circumstances of the arrest and the videotape. Officer Redleski testified that he could not recall whether there was a camera in the cruiser the officers drove that night nor could he recall actually activating the camera that night. The most that Officer Redleski could testify to is that if there were a camera, he would generally be the officer to activate the camera and that generally it would have been running at the time the officers came upon appellant. In addition, Officer Redleski testified that he did not see appellant throw anything from his person. {¶ 27} Officer Nixon testified that there was a camera in the cruiser they drove that night and that the camera was activated after he saw appellant throw the shorts. Officer Nixon further testified that he reviewed the videotape and that the videotape did not reveal appellant throwing any objects. {¶ 28} Based upon a review of the record, we conclude that the evidence was not shown to be materially exculpatory but merely potentially helpful to the defense. Accordingly, this court must determine whether there was a showing of bad faith. {¶ 29} Upon review, we find that there was no showing of bad faith. Officer Nixon testified that he turned the camera on that night but did so only after he saw appellant throw something. He further testified that he reviewed the tape and saw that the videotape revealed nothing. Officer Redleski could not be specific as to when the videotape was running. Further, Officer Redleski, who was driving the cruiser that night, testified that he did not see appellant throw anything. Thus, only Officer Nixon saw appellant throw something and Officer Nixon acknowledged that the videotape did not show appellant throwing anything. Thus, Officer Nixon did not claim that the videotape supported his testimony. Likewise, Officer Redleski's testimony did not support Officer Nixon's testimony. Upon review, we see no showing of bad faith, although Officer Nixon's failure to preserve the videotape could be considered poor judgment. However, that is not enough to establish a showing of bad faith. {¶ 30} Since appellant did not make a showing of bad faith, appellant's assignment of error must fail. Accordingly, appellant's first assignment of error is overruled. II {¶ 31} In the second assignment of error, appellant contends that his conviction was against the manifest weight of the evidence. Specifically, appellant contends that because he was in a "zombie" like state, he could not have knowingly possessed the drugs. Further, appellant contends that the contradictory testimony, as to whether appellant threw the shorts that contained the cocaine and PCP, could not establish that appellant possessed the shorts or the drugs. Therefore, the jury was left with only the evidence that appellant was in the proximity of the drugs. Appellant argues that his mere proximity to the drugs was insufficient to support a finding that he was in possession of the drugs. {¶ 32} Our standard of review for manifest weight in criminal matters is stated as follows: "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder 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, 175,485 N.E.2d 717; See also State v. Thompkins (1997), 78 Ohio St. 3d 380,678 N.E.2d 541. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175, 485 N.E.2d 717. {¶ 33} Appellant was convicted of possession of cocaine and aggravated possession of PCP. In order to be convicted, the jury had to find that appellant knowingly possessed the illegal drugs. The culpable mental state of "knowingly" is defined as follows: "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B). {¶ 34} Whether a person acts knowingly can only be determined, absent a defendant's admission, from all the surrounding facts and circumstances, including the doing of the act itself." State v. Huff (2001), 145 Ohio App. 3d 555, 563,763 N.E.2d 695. (Footnote omitted.) Thus, "[t]he test for whether a defendant acted knowingly is a subjective one, but it is decided on objective criteria." State v. McDaniel (May 1, 1998),Montgomery App. No. 16221, (citing State v. Elliott (1995),104 Ohio App. 3d 812, 663 N.E.2d 412). {¶ 35} Although Officer Redleski testified that he did not see appellant throw anything, Officer Nixon testified that he saw appellant throw something cream colored into a yard behind a tree. Officer Nixon retrieved a cream colored pair of shorts which contained crack cocaine and PCP. Appellant was naked at the time. Appellant had multiple lacerations and was bleeding. The cream colored pants had what appeared to be blood on them. {¶ 36} Obviously, the jury believed Officer Nixon's testimony that he saw appellant throw something cream colored. From that evidence it was reasonable for the jury to infer that the pair of cream colored shorts found by Officer Nixon was the cream colored object he saw appellant throw. Likewise, since appellant was naked and bleeding, it was reasonable for the jury to conclude that the shorts with blood on them belonged to appellant. Those shorts contained cocaine and PCP. Although the record does not reflect that appellant was zombie like due to ingesting drugs or alcohol, it was reasonable for a jury to conclude that at some point, appellant placed those drugs in his shorts. See State v.Baker, Franklin App. No. 02AP-627, 2003-Ohio-633. Upon review, we find that the jury did not lose its way when it weighed the evidence, determined the credibility of the witnesses and determined any conflicts in the evidence. Accordingly, appellant's second assignment of error is overruled. {¶ 37} The judgment of the Stark County Court of Common Pleas is affirmed. Edwards, J., Farmer, P.J. and Wise, J. concur

2016-07-06 06:36:45.537492+00

OPINION {¶ 1} Citizens National Bank of Southwest Ohio (hereinafter "Citizens") is appealing the judgment of the Montgomery County Common Pleas Court, which granted summary judgment to National City Bank (hereinafter "National"). {¶ 2} In early 2002, Roger and Beverly Cook decided to refinance the mortgage on their property. The Cooks' original mortgage was held by Citizens, who arranged for them to contact Equity Land Title Association ("ELTA") for refinancing. The Cooks signed a promissory note payable to Citizens and in exchange Citizens issued two cashier's checks payable to ELTA in the amount of $500,000 and $34,552.60. ELTA simultaneously issued six checks payable to Citizens drawn on ELTA's National City account for $532,995.45. The cashier's checks were deposited in ELTA's business account at National on March 27, 2002. At this time, National issued a provisional credit to ELTA's account for $534,552.60. {¶ 3} However, ELTA's owner, Steve Clayton had been involved in an illegal check-kiting scheme to inflate balances in ELTA's accounts with four banks, including National but not Citizens. Due to the fact that Clayton was a longtime personal friend of Citizens' senior vice president of lending, Citizens learned of this scheme during the wee hours of the morning of March 28th and that ELTA would be going out of business. On March 28th, Citizens stopped payment on the cashier's checks, waiting for the six ELTA checks to clear. Also that day, National placed a hold on ELTA's account, not allowing any money to leave the account. National claims that this hold was placed on the account at 10:00 a.m. National returned the six ELTA checks for insufficient funds. National has demanded payment from Citizens, but Citizens has refused. National claims that when it had to reverse the credit on the account it suffered a $534,522.60 loss on the account. Overall, National had a $1,300,683.95 shortfall on the ELTA account. {¶ 4} National City filed this complaint for the dishonor of the cashier's check. After a period of discovery, Citizens filed motions for summary judgment and to amend its complaint to add claims for unjust enrichment and restitution. National filed a motion for summary judgment. The trial court granted National's motion and denied Citizens' motions because it found that National was a "holder in due course". Citizens appeals, raising the following assignments of error. {¶ 5} "[1.] The trial court erred to the prejudice of defendants-appellants in granting plaintiff national city bank's motion for summary judgment. {¶ 6} "[2.] The trial court erred to the prejudice of defendant in denying plaintiff's motion to amend complaint and/or granting summary judgment to the plaintiff on defendant's proposed counterclaim for unjust enrichment/restitution. {¶ 7} "[3.] The court below erred in failing to grant summary judgment to citizens." {¶ 8} Our review of the trial court's decision to grant summary judgment is de novo. Helton v. Scioto Cty. Bd. ofCommrs. (1997), 123 Ohio App. 3d 158, 162. Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Grady v.State Emp. Relations Bd. (1997), 78 Ohio St. 3d 181, 183,1997-Ohio-221; Harless v. Willis Day Warehousing Co. (1978),54 Ohio St. 2d 64, 65-66. {¶ 9} Appellant's First Assignment of Error: {¶ 10} Citizens argues that the trial court erred in granting summary judgment to National when it determined that National was a holder in due course and thus not subject to Citizens' defenses for dishonoring the cashier check because National had not given value for the check and had notice that there were valid outstanding claims to the funds in the account. We find that summary judgment was proper because Citizens had no defenses to dishonoring the cashier's check and thus do not reach the question of whether National was a holder in due course. {¶ 11} O.R.C. 1303.52, which is the adoption of the Uniform Commercial Code ("UCC") 3-412, provides that "[t]he issuer of a * * * cashier's check * * * is obliged to pay the instrument in accordance with either of the following: {¶ 12} "(A) According to its terms at the time it was issued or, if not issued, at the time it first came into possession of a holder • * *." R.C. § 1303.52. {¶ 13} Although R.C. 1304.32(A) provides that a customer has a right to have a stop payment made on his account, Comment 4 to this statute clarifies that this provision of the code does not apply to cashier's checks, stating "a customer purchasing a cashier's check * * * has no right to stop payment of such a check under subsection (a). If a bank issuing a cashier's check * * * refuses to pay the check as an accommodation to its customer or for other reasons, its liability on the check is governed by Section 3-411." {¶ 14} UCC section 3-411, which addresses the refusal to pay cashier's checks, was adopted by the Ohio legislature in O.R.C.1303.51. Official Comment 1 to this section states, "A debtor using any of these types of checks [cashier's checks, teller's checks, and certified checks] has no right to stop payment. Nevertheless, some banks will refuse payment as an accommodation to a customer. [This section] is designed to discourage this practice." Moreover, if a bank wrongfully refuses to pay a cashier's check, "the person asserting the right to enforce the check is entitled to compensation for" expenses, loss of interest, and consequential damages. R.C. 1303.51(B). {¶ 15} Generally, Ohio cases have stated that a bank may not stop payment on a cashier's check except when fraud is involved in the procurement of the cashier's check or if there is failure of consideration. Thompson v. Lake County National Bank, (1975), 47 Ohio App. 2d 249, 252-253; Johnson v. Dollar Bank (Dec. 10, 1999), Geauga App. No. 98-G-02177; Dayton Area Sch.EFCU v. Nath (Sept. 4, 1998), Montgomery County App. No. 16956;Gallaher v. Fryman (June 23, 1986), Warren App. No. CA85-11-089. {¶ 16} The defense of failure of consideration cannot be asserted in a situation where the bank received full consideration for the issuance of the cashier's check. Nath, supra (holding that the signing of a promissory note amounts to consideration for issuing a cashier's check). Moreover, a bank can only assert the defenses of fraud or failure of consideration against the party responsible for the failure to pay for the cashier's check — the purchaser of the check. Leo Syntax AutoSales, Inc. v. Peoples Bank Sav. Co. (1965), 6 Ohio Misc. 226,227. {¶ 17} National argues that Citizens cannot utilize either the defense of fraud or failure of consideration as justification for its stop payment on the cashier check in this situation. National argues that since fraud can only be raised against the purchasers of the cashier's check, fraud is not a defense for Citizens against National. Therefore, Citizens can only raise the defense of failure of consideration. Since a bank can only assert a failure of consideration defense against the purchaser of the check, National argues Citizens can only raise this defense against the Cooks. Moreover, National points out that Citizens received full consideration for the issuance of the cashier's checks by the Cooks' signing of a promissory note. {¶ 18} On appeal, Citizens states that it has defenses based on fraud and failure of consideration, however it does not specify in its brief how the failure of consideration or fraud occurred. A review of the record demonstrates that before the trial court, Citizens illustrated how the defense of failure of consideration was available to itself. Citizens argued that Citizens itself was the purchaser of the checks — not the Cooks. Describing the transaction, Citizens stated that it provided to ELTA over $1,000,000, including cashier's checks and a $500,000 promissory note, in exchange for ELTA facilitating the closing on the refinancing of the property and returning approximately $500,000 to Citizens. Citizens argues that the consideration for the cashier check failed when National stopped payment for insufficient funds on the six checks issued by ELTA for Citizens. {¶ 19} However, as National pointed out below, this ignores the fact that the Cooks are clearly identified on the cashier's check as the remitters of the check. Moreover, it would be an illogical transaction for Citizens to be the drawer, drawee, and remitter of the cashier's check. Citizens has admitted that it is both the drawer and the drawee of the cashier's check. Revised Code 1303.01(A)(13) defines a remitter as "a person who purchases an instrument from its [drawer] if the instrument is payable to an identified person other than the purchaser." Therefore, Citizens cannot be both the remitter and the drawer as this would require it to purchase the cashier's check from itself. {¶ 20} As stated earlier, a bank may only raise the defense of failure of consideration against the purchaser of the cashier's check. Leo Syntax, supra. Since the Cooks are the purchasers of the cashier's check, the defense of failure of consideration can only be asserted against them — not National. Further, the Cooks paid valuable consideration for the cashier's check in the form of a signed promissory note to Citizens. Therefore, we agree with National that Citizens has no failure of consideration defense for its stop payment on the cashier's check. {¶ 21} Further, we see no manner in which Citizens can raise a defense of fraud to justify its stop payment of the checks. As stated above, the defense of fraud may only stand if one can demonstrate that there was fraud in the procurement of the cashier's check. Citizens has pointed to no instance of fraud in the Cooks' purchase of the cashier's check. Therefore, the defense of fraud is not available to Citizens as justification for its stopping payment on the cashier's check. {¶ 22} Additionally, a bank may only assert the claims of its customer if they are joined in the lawsuit. R.C. 1303.35(C) (UCC 4-403). In this matter, Citizens failed to join the Cooks in this lawsuit. As a result, Citizens cannot now raise any of the arguments or defenses the Cooks would have had available to them. {¶ 23} Thus, Citizens has no defenses to its stop payment of the cashier's check. As such, summary judgment in favor of National is proper. Although the trial court used different reasoning to reach this conclusion, we see no error in the grant of summary judgment for National. Citizens's first assignment of error is without merit and is overruled. {¶ 24} Appellant's second assignment of error: {¶ 25} Citizens argues that the trial court erred in denying Citizens motion to amend its complaint to add claims for equitable remedies based on its determination that National was a holder in due course and therefore that Citizens could not bring its equitable remedies claims against National. We disagree. {¶ 26} In Ohio, motions for leave to amend may generally be denied if there is a finding of bad faith, undue delay, or prejudice. Peterson v. Teodosio (1973), 34 Ohio st.2d 161, 175. Additionally, the denial of a motion to amend may be denied if the amendment of the complaint would be futile. Central MotorsCorp. v. City of Pepper Pike (1983), 9 Ohio App. 3d 18, 20-21, citing Forman v. Davis (1962), 371 U.S. 178, 182; Western Ins.Co. v. Lumbermans Mut. Ins. Co. (1985), 26 Ohio App. 3d 137, 138. {¶ 27} The Ohio Supreme Court has stated that when the Ohio legislature has "codified the law on a subject, such statutory provisions are to govern to the exclusion of the prior non-statutory law unless there is a clear legislative intention expressed or necessarily implied that the statutory provisions are merely cumulative." Bolles v. Toledo Trust Co. (1944),144 Ohio St. 195, 197; see also Baggott v. Piper Aircraft Corp. (S.D. Ohio 1999), 101 F. Supp. 2d 556, 561 (stating that when the general assembly has codified the law on a particular subject, the statute governs to the exclusion of the common law unless clear legislative intent is demonstrated that the statute is merely duplicative). Based on this statement, absent "clear legislative intent that the UCC is merely cumulative to the common law, the UCC governs to the exclusion of the common law." Amzee Corp. v.Comerica Bank — Midwest, Franklin App. No. 01AP-465, 2002-Ohio-3084, ¶ 46 (finding that where a company's employee forged company checks to pay her personal charge account at a bank, the company could not sue the bank on common law claims for conversion, negligence, and unjust enrichment because the UCC governed the transaction). {¶ 28} In Amzee, the Tenth District explained that strong policy reasons favor following the UCC requirements rather than common law. Id. ¶ 47. In order for the UCC to be effective, it must provide remedies that the parties can rely on being upheld. Id. We agree with the Tenth district that if parties are permitted to plead common law causes of action and thereby avoid the UCC, it will lose its reliability, uniformity, and certainty. Id ¶ 48. As a result, the objectives of creating a uniform code governing commercial transactions will be eliminated. Id. Thus, if the UCC with its numerous provisions governing rights and liabilities does not contain a provision that would provide relief to a party, the party may not avoid the UCC's limitations by raising a common law claim. {¶ 29} Relying on Amzee, National argues Citizens cannot raise common law equity claims because this area of the law has been usurped by the UCC. Thus, National asserts that like the plaintiff in Amzee, Citizens' only recourse must be found in the UCC. Since the UCC does not provide Citizens relief, Citizens cannot raise principles of equity to find the relief it seeks. Therefore, National asserts that the trial court was correct in refusing to allow Citizens to amend its complaint to add claims for equitable relief based on the common law. In contrast, Citizens attempts to distinguish Amzee because the appellate court noted in Amzee that the equities did not favor the plaintiff despite its attempt to raise equitable claims, whereas Citizens asserts that the rules of equity would favor it in this case. {¶ 30} However, we do not agree with Citizens that theAmzee court reached its conclusion that one cannot raise equitable remedies when the UCC does not provide him with relief simply because the plaintiff in Amzee would not recover under theories of equity. Therefore, we do not find Amzee distinguishable from this case, but rather that it is persuasive in this matter. We agree with Amzee that the UCC gains its value from creating a uniform, reliable system of commercial remedies upon which businesses can rely. If parties to commercial transactions are permitted to raise claims based on common law equity principles rather than the remedies provided in the UCC then the reliability of the UCC is lost. As a result, we cannot agree with Citizens that a party can still bring common law equitable claims so long as that claim is not expressly prohibited by the UCC. If the UCC has spoken on an area of law then the common law equity claims for that area of law are superceded Unfortunately for Citizens, it has been unable to point to any provision of the UCC that would grant it relief from having to honor the cashier's check to National. Therefore, Citizens cannot raise equitable remedies in an attempt to avoid the provisions in the UCC. The denial of Citizens' motion to amend its complaint is proper as any claims by Citizens for equitable relief would be futile as these claims cannot be raised where the UCC has already governed. Citizens' second assignment of error is without merit and is overruled. {¶ 31} Appellant's third assignment of error: {¶ 32} Citizens argues that the trial court should have granted its motion for summary judgment. We disagree. {¶ 33} As stated above, we found that summary judgment in favor of National was proper, and thus, we do not agree with Citizens that its motion for summary judgment should have been granted. The third assignment of error is without merit and is overruled. {¶ 34} Additionally, Citizens has filed a motion with this Court to strike portions of National's brief that refer to the deposition of Deirdre Mosley. However, as we did not rely on this deposition in reaching our conclusion, the argument is moot and the motion is denied. Also, National filed a motion to strike portions of Citizens' reply brief that it argues were not raised at the trial court level. However, as with Citizens' motion, we did not rely on the disputed portions of Citizens' reply brief in reaching our conclusion in this matter, and thus, the arguments are also moot. National's motion is also denied. {¶ 35} The judgment of the trial court is affirmed. Fain, P.J. and Wolff, J., Concur.

2016-07-06 06:36:45.570338+00

DECISION AND JUDGMENT ENTRY {¶ 1} Appellant, Marvin Cole, appeals his conviction and sentence from the Lucas County Court of Common Pleas. On February 12, 2003, appellant was indicted for rape, a first degree felony and a violation of R.C.2907.02(A)(2). On March 26, 2003, appellant was arraigned and he entered a plea of not guilty. On March 31, appellant was indicted for six separate counts of passing bad checks, felonies of the fifth degree and violations of R.C. 2913.11(A). {¶ 2} On April 9, 2003, appellant was arraigned for the six counts of passing bad checks and entered a plea of not guilty. On May 14, 2003, appellant withdrew his plea of not guilty to the rape charge and entered a plea of no contest to the lesser included offense of sexual battery, a third degree felony and a violation of R.C. 2907.02(A)(1). Appellant also withdrew his plea of not guilty to the charges of passing bad checks and entered a plea of no contest as to each count. {¶ 3} On June 4, 2003, the court convicted appellant of sexual battery and six counts of passing bad checks. Immediately thereafter, the court proceeded to the sentencing hearing and sentenced appellant to a term of one year for each of the six counts of passing bad checks, the sentences ordered to run concurrent to each other. A one-year sentence is the maximum for a felony of the fifth degree pursuant to R.C. 2929.14(A)(5). An order of restitution was also entered in the amount of $4,500. For the sexual battery conviction, the court sentenced appellant to five years in prison, also the maximum sentence for the offense pursuant to R.C.2929.14(A)(3). The five year sentence for sexual battery was ordered to run consecutively to the sentence imposed for passing bad checks. For both convictions, appellant was further ordered to pay all costs of prosecution and any fees permitted pursuant to R.C. 2929.18, and ordered to reimburse Lucas County and the state of Ohio for costs of "supervision, confinement, assigned counsel, and prosecution as authorized by law." {¶ 4} Appellant sets forth the following assignments of error: {¶ 5} "First Assignment of Error: Defendant-Appellant's sentences should be reversed as the trial court failed to comply with the mandates of R.C. 2919.14 and they are not supported by the record. {¶ 6} "Second Assignment of Error: The trial court erred to the detriment of the defendant-appellant when it ordered the defendant appellant to pay court costs, court appointed counsel fees, and unspecified fees." {¶ 7} In his first assignment of error, appellant asks this court to find error in the trial court's failure to comply with the sentencing statute requirements. Two facets of appellant's sentencing warrants review: the imposition of consecutive terms and the imposition of the maximum terms for both offenses. {¶ 8} An appellate court may not disturb a sentence unless it finds by clear and convincing evidence that the sentence is not supported by the record or is contrary to law. R.C. 2953.08(G)(2). Clear and convincing evidence "will produce 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, at paragraph three of the syllabus. We are neither to substitute our judgment for that of the trial court nor defer to the trial court's discretion. State v. Altalla, 10th Dist. No. 03AP-1127, 2004-Ohio-4226, at ¶ 7. The record to be examined by a reviewing court includes the presentence investigative report, the trial court record, and any sentencing hearing statements. R.C.2953.08(F)(1)-(3). See, also, State v. Boshko (2000),139 Ohio App. 3d 827, 835. {¶ 9} Turning first to the consecutive aspect of the sentences, trial courts "may not impose consecutive sentences for multiple offenses unless it `finds' three statutory factors." State v. Comer (2003),99 Ohio St. 3d 463, 466, discussing R.C. 2929.14(E)(4). "First, the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. Second, the court must find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Third, the court must find the existence of one of the enumerated circumstances in R.C. 2929.14(E)(4)(a) through (c)." Id., internal citations omitted. The circumstances listed in R.C. 2929.14(E)(4) provide: {¶ 10} "(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. {¶ 11} "(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct. {¶ 12} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." R.C. 2929.14(E)(4). {¶ 13} Additionally, a trial court must comply with R.C. 2929.19(B) in order to impose consecutive sentences. 99 Ohio St.3d at 467. This statute governs requirements for sentencing hearings. A trial court must not only orally state the findings and its reasons on the record at the sentencing hearing, but the duty to make the findings is separate and distinct from the duty to give reasons for selecting consecutive sentences. Id. at 467 and paragraph one of the syllabus. {¶ 14} At appellant's sentencing hearing, the trial court stated, "The court finds as regards the consecutive sentence that the harm caused was great or unusual, and that defendant's criminal history requires a consecutive sentence as regards the two separate cases [sic]. * * * The court further finds pursuant to Revised Code 2929.11 that the defendant's criminal history requires consecutive sentences as between this case [sexual assault] and the concurrent sentences [for passing bad checks]." These were the only statements made with respect to the consecutive aspect of the sentences. {¶ 15} We have carefully reviewed the sentencing hearing transcript and we find that these statements are clearly and convincingly insufficient to impose consecutive sentences. Not only is there no mention of the applicable statute, R.C. 2929.14(E)(4), or the conditions contained therein, but there are no statements which approximate a "finding" that would support the conditions had they been stated. Appellant's first assignment of error is well-taken with respect to the imposition of consecutive sentences for these convictions. {¶ 16} Ohio's statutory scheme disfavors maximum sentences generally.State v. Edmonson (1999), 86 Ohio St. 3d 324, 325. Pursuant to the sentencing statutes, trial courts must "record findings that give its reasons for selecting the maximum" for any offense. Id.; R.C.2929.19(B)(2)(d). The trial court found that appellant had served a previous prison term. Therefore, R.C. 2929.14(C) applies, and requires the court to have found that one of the four listed conditions applied to appellant. R.C. 2929.14(C) prohibits a court from imposing the maximum sentence except for offenders who "committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section." A trial court must state that at least one of the conditions exists. See State v. Seitz (2001),141 Ohio App. 3d 347. Appellant argues that the court did not place any required findings on the record. {¶ 17} First we will examine the maximum sentence for passing bad checks. At the sentencing hearing, the court stated that it had considered the record, the oral statements, the victim impact statement, the presentence report prepared, and the principles and purposes of sentencing pursuant to R.C. 2929.11. The court also stated that it had balanced the seriousness and recidivism factors pursuant to R.C. 2929.12. However, since the trial court did not place at least one of the required findings on the record pursuant to R.C. 2929.14(C), the imposition of the maximum sentence is in error. The court neither mentioned R.C. 2929.14(C), nor did the court use any of the language of the applicable factors in that statute. As in State v. Kessinger (Sept. 14, 2001), 6th Dist. No. E-00-055, the trial court "did not use any words even vaguely referring to the applicable statute and the required findings." Id. at 7. This is also contrary to what was sufficient in State v. Davis, 6th Dist. No. L-03-1387, 2003-Ohio-5977, where the trial court's statements were identical to those in this case. Davis' maximum sentence was upheld, however, because the court's additional statements regarding facts relating to recidivism and seriousness satisfied the requirements of R.C. 2929.14(C). Such additional statements relating to or supporting the required conditions of the statute are lacking here. Accordingly, the trial court did not comply with R.C. 2929.14(C) in imposing the maximum sentence upon appellant for passing bad checks. Appellant's first assignment of error with respect to the maximum sentence for passing bad checks is well-taken. {¶ 18} With respect to the conviction for sexual battery, the same analysis of R.C. 2929.14(C) applies. At the sentencing hearing, as noted above, the court stated that it had engaged in the analysis balancing the seriousness and recidivism factors pursuant to R.C. 2929.12. The court additionally stated in regard to the sexual battery conviction that the "defendant poses the greatest likelihood of recidivism" before imposing the maximum sentence. Clear and convincing evidence was presented to support the finding of recidivism, specifically appellant's non-favorable response to sanctions previously imposed for criminal convictions. Further, the record supports the court's consideration of seriousness of the offense, by the testimony of physical and psychological harm to the victim and the relationship that appellant had with the victim that facilitated the offense. Thus, appellant's first assignment of error with respect to the imposition of the maximum sentence for sexual battery is not well-taken. {¶ 19} In his second assignment of error, appellant argues that the trial court erred in ordering him to pay the costs of prosecution and other costs. The trial court had twice found him to be indigent for the purpose of appointing counsel. Appellant also argues that the trial court erred in not providing a basis for its finding that appellant is "expected to have or reasonably may be expected to have the means to pay all or part of" the costs. {¶ 20} A conflict among appellate courts regarding assessment of costs against indigent defendants was resolved in State v. White (2004),103 Ohio St. 3d 580. An indigent defendant may be held responsible for court costs imposed pursuant to R.C. 2947.23 when convicted for a felony. Id., paragraph one of the syllabus. A trial court may, in its discretion, waive those costs for the indigent defendant, but is not required to do so. Id. at 582; R.C. 2949.092. Therefore, the trial court correctly assessed court costs, which include the costs of prosecution, to appellant. {¶ 21} Appellant was also ordered to pay any fees permitted by R.C.2929.18(A)(4) and the costs of "supervision, confinement, [and] assigned counsel." R.C. 2929.18(A) permits financial sanctions, and, as it existed at the time of appellant's sentencing hearing, states in relevant part: {¶ 22} "(4)(a) Reimbursement by the offender of any or all of the costs of sanctions incurred by the government, including the following: {¶ 23} "(i) All or part of the costs of implementing any community control sanction; {¶ 24} "(ii) All or part of the costs of confinement under a sanction imposed pursuant to section 2929.14 or 2929.16 of the Revised Code, provided that the amount of reimbursement ordered under this division shall not exceed the total amount of reimbursement the offender is able to pay as determined at a hearing and shall not exceed the actual cost of the confinement. {¶ 25} "(b) If the offender is sentenced to a sanction of confinement pursuant to section 2929.14 or 2929.16 of the Revised Code that is to be served in a facility operated by a board of county commissioners, a legislative authority of a municipal corporation, or another local governmental entity, if, pursuant to section 307.93, 341.14, 341.19,341.23, 753.02, 753.04, 753.16, 2301.56, or 2947.19 of the Revised Code and section 2929.37 of the Revised Code, the board, legislative authority, or other local governmental entity requires prisoners convicted of an offense other than a minor misdemeanor to reimburse the county, municipal corporation, or other entity for its expenses incurred by reason of the prisoner's confinement, and if the court does not impose a financial sanction under division (A)(4)(a)(ii) of this section, confinement costs may be assessed pursuant to section 2929.37 of the Revised Code. In addition, the offender may be required to pay the fees specified in section 2929.38 of the Revised Code in accordance with that section." {¶ 26} Appellant argues that a presumption of indigency exists after the finding of indigency for appointing counsel and that, therefore, the trial court was required to hold a hearing in order to determine appellant's ability to pay and overcome that presumption. However, trial courts are not "required to conduct a separate hearing to determine appellant's present and future ability to pay the amount of his sanction or fine. R.C. 2929.18(E); State v. Caudill, 5th Dist. No. 03-COA-031, 2004-Ohio-2803; State v. Fuller, 6th Dist. Nos. L-02-1387, 1388, 1389, and 1390, 2004-Ohio-2675. There must, however, be some evidence in the record that the court considered the defendant's present and future ability to pay the sanction imposed. Id. at ¶ 8, citing State v.Fisher, 12th Dist. No. CA98-09-190, 2002-Ohio-2069, State v. Holmes, 6th Dist. No. L-01-1459, 2002-Ohio-6185." State v. Riegsecker, 6th Dist. No. F-03-022, 2004-Ohio-3808, at ¶ 11. {¶ 27} As in Riegsecker, the trial court stated that it had reviewed appellant's pre-sentence investigation report. That report contained information about appellant's family history, employment history, educational history, and his physical and mental health. Additionally, the trial court stated at the sentencing hearing and in the judgment entry that appellant was "found to have, or reasonably may be expected to have, the means to pay all or part of" the applicable costs of supervision, confinement, and prosecution. Having reviewed the record as a whole, there was sufficient evidence to support the trial court's finding of future ability to pay and the assessment of costs allowed pursuant to R.C. 2929.18. {¶ 28} However, these do not include the costs of assigned defense counsel. "Only pursuant to R.C. 2941.51 can a trial court order a criminal defendant to pay his appointed counsel's fees." State v.Holmes, 6th Dist. No. L-01-1459, 2002-Ohio-6185, at ¶ 20. We have held that an indigent defendant may be ordered to pay the costs of appointed defense counsel if there is a finding on the record that the defendant will have the ability to pay. "The court must then enter a separate civil judgment for the attorney fees or any part thereof that the court finds the defendant has the ability to repay. The court may not imprison the defendant in order to compel him to pay the civil judgment of the attorney fees." State v. Brown (Nov. 19, 1999), 6th Dist. No. L-97-1332, at 7-8. See, also, State v. Golladay (Dec. 29, 2000), 6th Dist. Nos. L-00-1092, L-00-1093, L-00-1094; State v. Miller (Mar. 1, 2002), 6th Dist. No. L-01-1265. We reiterate that the trial court found appellant is expected to have the future ability to pay, and the record supports that finding. Appellant's second assignment of error is therefore not well-taken. {¶ 29} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas is reversed as to the imposition of the maximum sentence for passing bad checks and the imposition of consecutive sentences. The judgment is affirmed as to the imposition of the maximum sentence for sexual battery and as to the imposition of costs. This matter is remanded to said trial court for resentencing in accordance with this decision. Costs to appellee pursuant to App.R. 24. Judgment reversed, in part, and affirmed, in part. Handwork, J. Pietrykowski, J., Singer, P.J., Concur.

2016-07-06 06:36:45.644799+00

OPINION *Page 2 {¶ 1} Appellants, Gholamreza and Lois Vahdati'bana (individually "Gholamreza" and "Lois" and collectively "appellants"), have filed this appeal seeking reversal of a judgment by the Franklin County Court of Common Pleas granting summary judgment to appellees, Scott R. Roberts Associates Co., L.P.A. ("the Roberts firm"), Scott R. Roberts ("Roberts"), and Peggy Maguire ("Maguire") (collectively "appellees"). For the reasons that follow, we affirm the trial court's judgment. {¶ 2} The relevant facts are as follows. Appellants hired the Roberts firm to represent them in a personal injury action arising from an automobile accident that occurred on April 12, 2001 in which a motor vehicle driven by Gholamreza was struck from behind by another vehicle driven by Scott Downin. Damage to Gholamreza's vehicle was relatively light, but Gholamreza had to be treated at the scene and was transported to the hospital. {¶ 3} Gholamreza and Roberts signed a fee agreement regarding the representation. Lois did not sign the agreement, although she was subsequently named as a plaintiff in the lawsuit that was ultimately filed. Initially, representation in the case was assigned to Jennifer Langlois, an associate of the Roberts firm, but ultimately Maguire, another associate of the firm, took over the representation. {¶ 4} In the underlying personal injury action, appellants filed a motion for summary judgment on the issues of liability, proximate causation, and the reasonableness and necessity of the medical bills in the case. The defendants in that action filed a motion seeking an extension of time to respond to the summary judgment *Page 3 motion, pursuant to Civ.R. 56(F), which was denied by the trial court, resulting in the motion being unopposed. The trial court granted appellants' motion for summary judgment, finding that appellants had met their initial burden for summary judgment purposes on those issues, and that the defendants had failed to meet their reciprocal burden due to their failure to file a response to the motion. The trial court found that there were genuine issues of material fact regarding the defense of contributory negligence defendants had asserted in their answer to the complaint. {¶ 5} On February 23, 2004, the personal injury case proceeded to trial, with Maguire acting as trial attorney for appellants. Roberts and Maguire each stated that their understanding at that point was that, given the trial court's grant of summary judgment on the issues of liability and proximate cause, the trial would be conducted solely on the issue of damages. However, for reasons that are unclear from the record before us, the trial court allowed the trial to proceed on the issue of proximate cause, and the defendants argued at trial that Gholamreza's injuries were related to a pre-existing injury. Appellants offered testimony from Drs. Korby and Higgins, each of whom had treated Gholamreza after the accident. Each gave as their opinion that Gholamreza's injuries were proximately caused by the April 12, 2001 accident. The jury found the defendants liable, but awarded no damages. Appellants filed a motion seeking a new trial, which was denied by the visiting judge who presided over the trial. {¶ 6} On June 17, 2005, appellants filed a complaint naming as defendants Roberts and the Roberts firm. The complaint essentially alleged legal malpractice as the cause of action, alleging that Roberts and the Roberts firm were professionally negligent *Page 4 in the manner in which they represented appellants in the underlying personal injury case. Roberts and the Roberts firm filed an answer and counterclaim seeking recovery for expenses advanced as part of the personal injury litigation from appellants, as well as appellants' counsel personally.1 Roberts and the Roberts firm later filed a third-party complaint against Maguire, after which appellants filed a cross-claim against Maguire. {¶ 7} On February 23, 2007, Roberts and the Roberts firm filed a motion for summary judgment seeking dismissal of appellants' legal malpractice claim. Maguire then filed her motion for summary judgment on February 27, 2007.2 On March 7, 2007, appellants filed a motion seeking an extension of time to file their memorandum contra the motions for summary judgment pursuant to Civ.R. 56(F). In the Civ.R. 56(F) motion, appellants' counsel argued that he had just received the transcript of Roberts' deposition, that Maguire's deposition had not yet been scheduled, and that this made it impossible to formulate a response to the motions for summary judgment. Counsel further argued that additional time was necessary to allow appellants to obtain an affidavit or deposition from Dr. Miner, the surgeon who had treated Gholamreza's back both before and after the accident, and to allow appellants' expert witness regarding legal malpractice to review all of the depositions. The motion did not specify a time frame in which appellants' memorandum contra would be filed, but in an affidavit attached to the Civ.R. 56(F) motion, appellants' counsel stated that approximately 45 days would be required. *Page 5 {¶ 8} The trial court never issued a ruling on appellants' Civ.R. 56(F) motion. On May 21, 2007, the trial court's staff attorney held a status conference at which appellants' counsel was apparently directed to file a memorandum contra by May 25, 2007. The trial court did not issue an entry journalizing the May 25 deadline. {¶ 9} The trial court signed a judgment entry granting appellees' motions for summary judgment. The entry included an ink stamp stating that the entry terminated the case and constituted a final appealable order. The termination stamp was dated June 5, 2007, but the date stamp from the clerk of courts indicates that the entry was not filed until June 20, 2007. In the entry, the trial court stated that, "[t]his Court directed Plaintiffs at the Final Pretrial Conference to respond for [sic] the Motions for Summary Judgment but the Plaintiffs did not do so in the time requested by the Court. Therefore, as the Motions for Summary Judgment remain unopposed, there is no genuine issue of material fact, and Defendants are entitled to judgment as a matter of law." The trial court then dismissed the case with prejudice. {¶ 10} On June 7, 2007, appellants filed their memorandum contra appellees' motions for summary judgment, without ever having sought the court's permission to file untimely. On June 12, 2007, appellants' counsel, apparently having been made aware that the trial court had granted appellees' motions for summary judgment even though the entry had not yet been filed, filed a motion asking the trial court to reconsider its decision granting the motions. Also on June 12, 2007, Roberts and the Roberts firm filed a notice voluntarily dismissing their counterclaim for recovery of costs advanced during the underlying personal injury case pursuant to Civ.R. 41(A). *Page 6 {¶ 11} Appellants filed this appeal, alleging six assignments of error: ASSIGNMENT OF ERROR NO. I: The Trial Court erred as a matter of law when it granted Defendants' Motions for Summary Judgment on the grounds that they were unopposed even though Defendants' Motions were insufficient to sustain such a ruling. ASSIGNMENT OF ERROR NO. II: The Trial Court erred as a matter of law when it failed to consider all pleadings and court filings including the deposition of Plaintiff when granting Defendants' Motions for Summary Judgment on the grounds that they were unopposed. ASSIGNMENT OF ERROR NO. III: The Trial Court erred as a matter of law and to the prejudice of the Plaintiffs when it failed to give Plaintiffs notice of when it was going to rule on Defendants' Motions for Summary Judgment thereby precluding the Plaintiffs an opportunity to timely file their Memorandum Contra Motions for Summary Judgment. ASSIGNMENT OF ERROR NO. IV: The Trial Court violated Local Rules and failed to record said Judgment in a timely fashion with the Clerk's Office. ASSIGNMENT OF ERROR NO. V: The Trial Court failed to properly rule on Plaintiffs' Civ.R. 56(F) motion and failed to journalize an Entry establishing a date for the filing of responsive memoranda to the Defendants' Motions for Summary Judgment. ASSIGNMENT OF ERROR NO. VI: The Trial Court erred to Plaintiffs' prejudice when it failed to rule on Plaintiffs' Motion for Reconsideration prior to the filing of the Entry dismissing Plaintiffs' case. {¶ 12} For ease of discussion, we will address appellants' assignments of error out of order. In their fourth assignment of error, appellants argue that the trial court violated *Page 7 local rules by failing to file the judgment entry granting appellees' motions for summary judgment in a timely fashion. Sup.R. 7(A) provides that a judgment entry "shall be filed and journalized within thirty days of the verdict, decree, or decision." {¶ 13} In this case, the date on which the trial court issued its decision granting appellees' motions for summary judgment is not clear. The parties assume the date of the trial court's decision was June 5, 2007, the date written on the termination stamp that was placed on the entry. The date on the termination stamp is placed there for purposes of the trial court's case reporting requirements as set forth in Sup.R. 37, and therefore does not necessarily reflect the date on which the trial court rendered its decision. Regardless of the precise date on which the trial court rendered its decision, it is clear that the decision was rendered some time between May 21, 2007, the date of the court's status conference, and June 20, 2007, the date the entry was filed with the clerk of courts. Therefore, the trial court did not fail to record the judgment in this case in a timely fashion. Accordingly, appellants' fourth assignment of error is overruled. {¶ 14} In their sixth assignment of error, appellants argue that the trial court erred when it failed to issue a ruling on their motion for reconsideration prior to the date on which the judgment entry was filed and journalized by the clerk of courts. When a trial court enters judgment prior to ruling on a pending motion, that motion is considered to have been implicitly denied. Akron v. Molyneaux (2001),144 Ohio App. 3d 421, 760 N.E.2d 461. Consequently, the failure to rule on the motion is not, by itself, a basis for us to reverse the trial court's judgment. {¶ 15} Moreover, in this case, the motion in question was a motion for reconsideration. Generally, a trial court's interlocutory decisions are subject to *Page 8 reconsideration, either sua sponte or on motion, before final judgment is entered in a case. See Pitts v. Ohio Dept. of Transp. (1981),67 Ohio St. 2d 378, fn. 1, 21 O.O.3d 238, 423 N.E.2d 1105. However, once the trial court's decision became final upon its filing and journalization by the clerk of courts, the court no longer had the authority to reconsider its decision. {¶ 16} Consequently, the trial court did not err in failing to rule on appellants' motion for reconsideration, and appellants' sixth assignment of error is overruled. {¶ 17} Appellants' third and fifth assignments of error are interrelated, and will therefore be addressed together. In their fifth assignment of error, appellants argue that the trial court failed to rule on their Civ.R. 56(F) motion, and erred in failing to issue an order setting forth the date by which appellants were required to file their memorandum contra appellees' motions for summary judgment. In their third assignment of error, appellants argue that the trial court failed to give proper notice of the date upon which it would issue its ruling on the motions for summary judgment, thus depriving appellants of their opportunity to file their memorandum contra. {¶ 18} The Ohio Supreme Court has held that a trial court is not required to notify the parties of the deadline for filing a response to a motion for summary judgment, if a local rule provides adequate notice of the date. Hooten v. Safe Auto Ins. Co., 100 Ohio St. 3d 8,2003-Ohio-4829, 795 N.E.2d 648. Loc.R. 21.01 of the Franklin County Court of Common Pleas provides that the party opposing a motion must serve an answer brief responding to the motion on or before the 14th day after the date of service of the motion. The rule further provides that the motion is deemed submitted to the court for decision on the 28th day after the motion was filed. Since Loc.R. 21.01 provided adequate notice of *Page 9 the date by which appellants were required to submit their memorandum contra the motions for summary judgment, and the date upon which the motion would be deemed submitted for decision, the trial court was not required to provide additional notice regarding when a decision on the motion would be rendered. {¶ 19} The trial court never ruled on appellants' Civ.R. 56(F) motion to extend the time in which to respond to appellees' motions for summary judgment. Consequently, we must consider the motion to have been denied.Akron v. Molyneaux, supra. Generally, a trial court's decision to grant or deny a Civ.R. 56(F) motion is reviewed under the abuse of discretion standard. Singleton v. Ohio Concrete Resurfacing, Inc., Franklin App. No. 06AP-991, 2007-Ohio-2012. Abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 5 OBR 481, 450 N.E.2d 1140. {¶ 20} We cannot say the trial court abused its discretion in the manner in which it dealt with appellants' Civ.R. 56(F) motion because, although we must deem the motion as having been denied because it was never ruled on, as a practical matter appellants did receive significant additional time within which to file their memorandum contra the motions for summary judgment. In an affidavit attached to their Civ.R. 56(F) motion, appellants' counsel stated that a response to the motions could be formulated in approximately 45 days. The trial court did not rule on the motions for summary judgment until well over 45 days after appellants filed their Civ.R. 56(F) motion. Consequently, if appellants had filed their memorandum contra within the time frame set forth in their *Page 10 motion, the memorandum contra would have been part of the record at the time the trial court considered the motions for summary judgment. {¶ 21} Appellants also argue that the trial court erred when it failed to issue an order journalizing the May 25, 2007 deadline for filing a memorandum contra that was set during the May 21, 2007 status conference. The better practice would have been for the trial court to issue and journalize a case scheduling order memorializing the deadline communicated at the status conference. However, the facts remain that the trial court had not ruled on appellants' Civ.R. 56(F) motion, and the time for filing a memorandum contra as called for under the local rules had passed. Furthermore, under the case scheduling order that had been issued at the time the case was filed, which had not been amended, the case was scheduled to go to trial on June 18, 2007. Thus, even in the absence of an order journalizing the May 25, 2007 deadline, appellants' counsel should have been aware of the possibility that the trial court would be rendering a decision on the motions, and should have taken steps to ensure that appellants' response would be considered timely filed. {¶ 22} Consequently, appellants' third and fifth assignments of error are overruled. {¶ 23} In their first and second assignments of error, appellants argue that the trial court erred in granting appellees' motions for summary judgment on the grounds that the motions were unopposed, without properly considering whether appellees had met their burden under Civ.R. 56(C), and without properly considering all evidentiary materials in the record. {¶ 24} We review the trial court's grant of summary judgment de novo.Coventry Twp. v. Ecker (1995), 101 Ohio App. 3d 38, 654 N.E.2d 1327. Summary judgment is *Page 11 proper only when the party moving for summary judgment demonstrates: (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 could come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, when the evidence is construed in a light most favorable to the nonmoving party. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd.,78 Ohio St. 3d 181, 183, 1997-Ohio-221, 677 N.E.2d 343. We construe the facts in the record in a light most favorable to appellant, as is appropriate on review of a summary judgment. We review questions of law de novo.Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St. 3d 107,108, 1995-Ohio-214, 652 N.E.2d 684, citing Ohio Bell Tel. Co. v. Pub.Util. Comm. (1992), 64 Ohio St. 3d 145, 147, 593 N.E.2d 286. {¶ 25} Under summary judgment motion practice, the moving party bears an initial burden to inform the trial court of the basis for its motion, and to point to portions of the record that indicate that there are no genuine issues of material fact on a material element of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St. 3d 280, 1996-Ohio-107,662 N.E.2d 264. Once the moving party has met its initial burden, the nonmoving party must produce competent evidence establishing the existence of a genuine issue for trial. Id. {¶ 26} Consequently, in this case the trial court erred when it granted appellees' motions for summary judgment solely on the ground that they were unopposed, without reviewing appellees' motions to determine whether they had met their initial burden under Civ.R. 56(C). However, because our standard of review is de novo, if summary judgment was appropriate based upon our own review of the record, we must still affirm the trial *Page 12 court's judgment, even if the grounds upon which it based its decision were incorrect. See Gouhin v. Giant Eagle, Franklin App. No. 07AP-548,2008-Ohio-766. {¶ 27} In their complaint against Roberts and the Roberts firm, appellants asserted that Roberts and the Roberts firm were negligent in their trial preparation and presentation and were negligent in their training and supervision of associates Maguire and Langlois, that Roberts failed to participate in the trial in spite of appellants' expectation that he would, that Roberts failed to file an appeal on appellants' behalf, and that Roberts represented appellants in spite of the existence of a conflict of interest arising from the fact that the firm had previously represented the defendant driver in the underlying personal injury case in other litigation. In their cross-claim that was ultimately filed against Maguire, appellants asserted that Maguire was negligent in the manner in which she represented appellants in the preparation and trial of the underlying personal injury case. Specifically, appellants argue that Maguire was negligent in failing to call another witness during the underlying personal injury trial, Dr. Miner, who could have provided testimony that Gholamreza's back surgery after the car accident was not related to the earlier back injury for which Gholamreza had undergone surgery. {¶ 28} In their complaint, appellants alleged as their cause of action a claim of legal malpractice. In order to prevail on a claim for legal malpractice based on negligent representation, a plaintiff must establish: (1) that the attorney owed a duty or obligation to the plaintiff; (2) that the attorney breached that obligation and failed to conform to the standard required by law; and (3) that there is a causal connection between the conduct complained of and the resulting damage or loss. Goldberg v. Mittman, Franklin App. No. *Page 13 07AP-304, 2007-Ohio-6599; Vahila v. Hall, 77 Ohio St. 3d 421,1997-Ohio-259, 674 N.E.2d 1164. {¶ 29} In support of their motion for summary judgment, Roberts and the Roberts firm argued that appellants could not establish that either Roberts or Maguire breached the obligation owed to appellants and failed to conform to the standard of conduct required by law. Specifically, Roberts and the Roberts firm argued that Maguire's failure to call Dr. Miner as a witness was reasonable trial strategy given that two other expert witnesses, Drs. Korby and Higgins, were called and testified that Gholamreza's injuries were related to the car accident. Roberts and the Roberts firm further argued that Maguire's conduct of the trial was reasonable in light of the fact that, until the day of the trial, the understanding was that the issue of proximate cause had already been decided in appellants' favor by way of their motion for summary judgment, thus resulting in counsel being surprised when the trial was held on more than simply the issue of damages. {¶ 30} In support of their motion for summary judgment, Roberts and the Roberts firm attached an affidavit executed by Roberts. In the affidavit, Roberts outlined the circumstances regarding the underlying personal injury trial, and stated that, "[a]t all times my conduct met the appropriate standard of care for an attorney licensed to practice law in the State of Ohio with regard to the handling of [appellants'] case. Also, it is my opinion that Peggy Maguire's conduct met the appropriate standard of care with regard to [appellants'] case." Roberts affidavit, at ¶ 11. In her motion for summary judgment, Maguire echoed the arguments raised by Roberts and the Roberts firm in their motion. *Page 14 {¶ 31} A defendant in a legal malpractice action may testify as to whether he or she met the applicable standard of care, and independent expert testimony on that issue is therefore not required. Roselle v.Nims, Franklin App. No. 02AP-423, 2003-Ohio-630. Roberts' affidavit, in which he stated that his conduct in appellants' case met the appropriate standard of care, and that Maguire's conduct also met the appropriate standard of care, was sufficient to carry appellees' initial burden under Civ.R. 56(C). Consequently, under Dresher, supra, the burden shifted to appellants to point to materials in the record that demonstrated the existence of genuine issues of material fact. {¶ 32} As discussed in our disposition of appellants' third and fifth assignments of error, appellants' memorandum contra was not timely filed. Because the memorandum contra was not timely filed under Civ.R. 56(C) or Loc.R. 21.01, we decline to consider the evidentiary materials attached to the memorandum in conducting our review. {¶ 33} Appellants argue that Gholamreza's deposition testimony, a transcript of which was timely filed with the trial court, is sufficient by itself to show the existence of genuine issues of material fact regarding whether appellees' conduct fell below the required standard of care. Generally, in legal malpractice cases, expert testimony is required to prove that an attorney's conduct breached the duty that the attorney owed to the plaintiff, unless the claimed breach is "well within the common understanding of * * * laymen * * *."Goldberg, supra, quoting McInnis v. Hyatt Legal Clinics (1984),10 Ohio St. 3d 112, 113, 10 OBR 437, 461 N.E.2d 1295. {¶ 34} In this case, the conduct complained of involved Maguire's failure to call Dr. Miner as an additional witness in the underlying personal injury case to support appellants' claim that Gholamreza's injuries from the car accident were not related to his *Page 15 prior back injury, Roberts' failure to supervise Maguire's preparation for the trial and failure to be sufficiently involved in the conduct of the trial, and Roberts' representation of appellants in spite of the existence of a possible conflict of interest stemming from the prior representation in separate litigation of the defendant driver in the personal injury case. We cannot say that these issues are sufficiently within the common understanding of laymen such that appellants were not required to provide expert testimony as to whether appellees' conduct fell below the appropriate standard of care. See Goldberg, supra. Consequently, Gholamreza's deposition testimony regarding appellees' conduct of the underlying personal injury trial was not sufficient to meet appellants' reciprocal burden for purposes of the summary judgment motions. {¶ 35} Appellees have assumed for purposes of their motions for summary judgment and on appeal that appellants' complaint included a claim against Roberts and the Roberts firm for negligent supervision separate from the claim for legal malpractice. Appellants' complaint contained headings labeled "Count One" and "Count Two," with the first count setting forth Gholamreza's claims and the second count setting forth Lois' claims. Under the first count, the complaint states, "Defendants' [sic] herein were negligent in their trial preparation and trial presentation on behalf of Plaintiff which proximately resulted in an adverse jury verdict to Plaintiffs. In addition, Defendants were negligent in their training and supervision of Jennifer Langlois and Maguire and allowing an inexperienced attorney to try this complex personal injury case." Complaint, at ¶ 9. Although it is not clear from the wording of the complaint whether appellants intended to set forth a separate claim for negligent supervision, or whether their claim regarding Roberts and the Roberts firm's training and supervision of Maguire and Langlois was part *Page 16 of their claim for legal malpractice. It is at least arguable under liberal notice pleading rules that appellants' complaint did set forth a claim for negligent supervision separate from their legal malpractice claim. Therefore, we will consider whether summary judgment is appropriate on such a claim. {¶ 36} The elements of a claim for negligent supervision are: (1) the existence of an employment relationship, (2) incompetence of the employee, (3) the employer's actual or constructive knowledge of the employee's incompetence, (4) an act or omission by the employee that caused damage to the plaintiff, and (5) negligent retention of the employee by the employer that proximately caused the plaintiff's injuries. Payton v. Receivables Outsourcing, Inc., 163 Ohio App. 3d 722,2005-Ohio-4978, 840 N.E.2d 236. {¶ 37} The Roberts affidavit attached to the motion for summary judgment addressed itself to the elements of negligent supervision as well as to the elements of legal malpractice. In the affidavit, Roberts stated that he held monthly meetings to determine whether any of his associates needed help with cases assigned to them, and further stated that, in his opinion, Maguire was competent to handle appellants' personal injury case, and was not negligent in her conduct of the case. Roberts affidavit, at ¶ 10-11. This affidavit was sufficient to meet appellees' burden on summary judgment as to the elements of the employee's competence and the employer's actual or constructive knowledge regarding the employee's competence. Consequently, appellants' failure to point to any timely filed materials in the record pointing to genuine issues of material fact regarding the issue of negligent supervision made summary judgment appropriate. *Page 17 {¶ 38} Consequently, appellants' first and second assignments of error are overruled. Having overruled all of appellants' assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. McGRATH, P.J., and FRENCH, J., concur. 1 The trial court subsequently granted a motion to dismiss the claims against appellants' counsel. 2 Appellants point out that Maguire filed her motion for summary judgment after the date set as the cutoff for filing dispositive motions in the court's case scheduling order, and argue that her motion should not have been considered. However, appellants neither filed a timely motion to strike the motion for summary judgment, nor filed a timely response to the motion, and consequently failed to preserve the issue of whether the motion should have been considered. See Cheap Escape Co.,Inc. v. Tri State Const, 173 Ohio App. 3d 683, 2007-Ohio-6185,880 N.E.2d 122. *Page 1

2016-07-06 06:36:45.757843+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendants-appellants1 appeal from various evidentiary rulings made by the trial court; from the judgment entered upon the jury's verdict; and from the denial of defendants' post-trial motions. For the reasons that follow, we must affirm. {¶ 2} Kafantaris is the sole shareholder of MDK, which owns several Denny's franchises in Northeast Ohio. Plaintiff first interviewed with Kafantaris for employment in July 1998. Kafantaris offered plaintiff an assistant manager position, which plaintiff declined. In October 1998, plaintiff requested another interview with Kafantaris, who again offered plaintiff the assistant manager position. Plaintiff accepted and began his employment with MDK in November 1998. {¶ 3} Defendants made certain accommodations for plaintiff, which included not scheduling plaintiff for work on Sundays at his request. None of MDK's other managers had this type of schedule. In addition, plaintiff occasionally stayed at a hotel due to the distance of his home from work and defendant paid some, if not all, of that expense. There was no evidence to suggest that MDK did this for any other employee. {¶ 4} Throughout the extensive record, the witnesses consistently testified that plaintiff was a "good manager." The dispute arises over the reason behind his termination. Defendants maintain that plaintiff repeatedly engaged in sexual harassment of young female servers. Plaintiff maintains that defendants concocted false allegations of sexual harassment to conceal the racial animus behind his termination. We have derived the following facts from the record: {¶ 5} In early 1999, two female servers reported that plaintiff had interacted with them in inappropriate ways. One reported that plaintiff, among other things, stuck his tongue down her throat. The other server maintained that plaintiff made certain comments that made her feel uncomfortable and that he touched her inappropriately. Both servers were under the age of 18 at the time these events allegedly occurred. Both of these witnesses testified at trial consistent with the complaints they filed with MDK. {¶ 6} MDK investigated the complaints. While plaintiff denied the specific allegations made by the complainants, he acknowledged touching them on the shoulder to reassure them during training. For that, plaintiff wrote them a letter of apology.2 However, neither of the servers complained about plaintiff touching their shoulders. In the letter of apology, plaintiff wrote that he "ha[d] not had these problems in [his] past record." (Pltfs. Ex. 7). At trial, plaintiff clarified that he meant in his past record with Denny's as he admitted to having been accused of sexual harassment in previous employment. {¶ 7} Following the investigation, MDK transferred plaintiff to a different location with the understanding that he would be terminated in the event of any further complaints. {¶ 8} Plaintiff presented the testimony of certain of his former co-workers at Denny's through videotape. Defendants objected to the presentation of video in lieu of live testimony. The court overruled that objection. One of these witnesses testified that she resigned in February 1999 due to Kafantaris' alleged racial prejudice and the fact that she heard him use the term "nigger." This witness testified that defendants were "trying to falsely accuse [plaintiff] of sexual harassment." She stated that her manager Mary Lynn told her that two girls were going to "falsely write a sexual harassment against [plaintiff]." And, she claimed when she complained about this to another manager, Frank, he told her that Kafantaris told him "[w]hatever it takes to get rid of the nigger" referring to plaintiff. Both of the referenced managers and Kafantaris denied the above claims made by this witness. {¶ 9} Another female server testified that in June or July 1999, Kafantaris asked her whether plaintiff had sexually harassed her. When she said no, Kafantaris offered her $250.00 "to fill out a statement." She declined the offer. {¶ 10} Another witness for plaintiff testified that in September 1999 he overheard Kafantaris allegedly state at a meeting in the restaurant that he "did not need any more nigger managers working in a restaurant." Defendants presented evidence indicating that the alleged meeting and the alleged statement never occurred. {¶ 11} Plaintiff testified that he had terminated a subordinate employee on two different occasions for calling him a "nigger." Each time, that employee was re-hired. Plaintiff claimed defendants re-hired that employee while defendants state that plaintiff did. Defendants presented evidence to suggest that plaintiff never communicated to them that the employee made racial slurs. Defendants maintained that plaintiff only cited insubordination as the reason for termination. Plaintiff disagreed. {¶ 12} In October 1999, someone slashed the tires on plaintiff's car in the restaurant parking lot. At the time, plaintiff suspected an irate customer. However, a former Denny's employee, Carlton Starkey, subsequently admitted that he had committed that crime. The parties were unable to locate Starkey at the time of trial. The jury was presented with Starkey's videotaped deposition testimony. {¶ 13} Starkey claimed that he went to Denny's looking for his job back and spoke with a manager named Gary. Gary allegedly told him that Kafantaris was trying to get rid of an employee who was giving him "trouble." That employee was plaintiff. Gary allegedly told Starkey that Kafantaris gave him $500 to find someone to cut plaintiff's tires. Although Starkey knew plaintiff, he accepted the offer and cut plaintiff's tires with his pocket knife. Gary then allegedly gave him the $500 and a card with Kafantaris' number on it. {¶ 14} Gary testified that he quit his job at Denny's because he was angry with how he was being treated. Gary opened his own restaurant. At trial, Gary said that Starkey was lying and denied Starkey's accusations against the defendants entirely. {¶ 15} On October 28, 1999, a third female server, also under the age of 18, complained to MDK management that plaintiff had sexually harassed her at work. MDK's Human Resource Manager investigated the complaint. The HR Manager had observed plaintiff and the server on the night in question and it was his opinion that she was telling the truth. The server's trial testimony was consistent with her statement to MDK. Plaintiff denied these allegations of sexual harassment as well. {¶ 16} During MDK's investigation of the October complaint, plaintiff was placed on leave. Ultimately, MDK learned that plaintiff misrepresented the extent of his education and experience on his resume. MDK also learned that plaintiff had allegedly sexually harassed three other of its servers: Leah Vandercook, Michelle Robb, and Kara Myers. The parties dispute whether defendants learned of these allegations before or after plaintiff was terminated. Regardless, defendants' witnesses unequivocally testified that plaintiff's termination was based solely upon the three initial complaints. The court prohibited the defendants from introducing evidence of the additional claims made by Vandercook, Robb, and Myers and defendants did not proffer their testimony at trial. {¶ 17} Plaintiff introduced testimony that defendants paid the three female servers to falsely accuse plaintiff of sexually harassing them. All of the women and defendants denied this. {¶ 18} The court granted plaintiff's motion in limine to preclude the introduction of evidence of other charges of sexual harassment lodged against the plaintiff by coworkers during his employment elsewhere. Again, there was no proffer of this evidence at trial. Defendants further objected to the court's ruling to exclude the testimony of two African American employees of MDK who had no personal knowledge of the facts surrounding plaintiff's claims. The record, however, includes evidence that defendants employed other African Americans besides plaintiff, including MDK's Haitian HR Manager, Wes Petit-Frere. Petit-Frere testified at the trial. {¶ 19} Defendants moved for a directed verdict at the close of both plaintiff's and defendants' case. The court denied both motions. The jury returned a verdict in favor of plaintiff awarding him $100,000 in compensatory damages and $500,000 in punitive damages plus attorney fees, which the parties subsequently stipulated to in the amount of $90,000. The court further denied defendants' motion for judgment notwithstanding the verdict, for a new trial, and for remittitur. {¶ 20} Defendants have asserted five assignments of error, which we will address together where appropriate for discussion. {¶ 21} "I. The trial court erred as a matter of law when it excluded the testimony of three critical witnesses, all of whom appellee sexually harassed while they were employed by MDK, which evidence was directly relevant to supporting appellants' legitimate business reason for appellee's termination as well as rebutting appellee's claim that his interaction with his co-employees was innocent. {¶ 22} "II. The trial court erred when it excluded the testimony of three other critical witnesses who would have testified about appellee's sexual harassment both before and after his employment with appellants since such evidence was directly relevant to appellee's claim that his interactions with co-employees was innocent." {¶ 23} Both of these assignments challenge the propriety of the trial court's decision to exclude evidence. A trial court's decision to exclude evidence is not grounds for reversal unless the record clearly demonstrates that the trial court abused its discretion and that the complaining party has suffered a material prejudice. Columbus v. Taylor (1988), 39 Ohio St. 3d 162, 164. An abuse of discretion connotes more than an error of law or judgment, it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Tracy v. Merrell-DowPharmaceuticals, Inc. (1991), 58 Ohio St. 3d 147, 152. {¶ 24} Plaintiff maintains that defendants failed to proffer the substance of the testimony in the record as required by Evid.R. 103(A)(2), thus barring a review on the merits of these assigned errors. {¶ 25} A motion in limine is a preliminary ruling. Pena v.Northeast Ohio Emergency Affiliates, Inc. (1995), 108 Ohio App. 3d 96, 108; Defiance v. Kretz (1991),60 Ohio St. 3d 1, 4. Thus, the trial court is free to change its ruling on the disputed evidence in its actual context at trial. Id. Accordingly, a proper objection must be raised at trial to preserve any claimed error.Collins v. Storer Communications, Inc. (1989), 65 Ohio App. 3d 443; Statev. Grubb (1986), 28 Ohio St. 3d 199. "A proponent who has been temporarily restricted from introducing evidence by virtue of a motion in limine, must seek the introduction of the evidence by proffer or otherwise at trial in order to enable the court to make a final determination as to its admissibility and to preserve any objection on the record for purposes of appeal." Id. {¶ 26} Here, defendants did not renew their objection during trial nor did they attempt to introduce or proffer the evidence they sought to introduce. Defendants argue that a proffer was unnecessary because they contend that the substance of the excluded evidence is apparent from the record. Evid.R. 103(A). Defendants rely on this Court's decisions inHissa v. Hissa, Cuyahoga App. Nos. 79994 and 79996, 2002-Ohio-6313 andSchoonover v. Cleveland Metro. Gen. Hosp. (July 16, 1987), Cuyahoga App. No. 52329. {¶ 27} Hissa involved the trial court's exclusion of an expert report in a divorce proceeding. The record in that case included a version of the expert report that was filed with the trial court as well as a version submitted for trial that was included in the record as an exhibit. Thus, this court had the excluded evidence which enabled it to make an independent review. {¶ 28} In Schoonover, this Court felt "sufficiently apprised of the nature of the evidence to consider the objection" notwithstanding the absence of a proffer. During Shoonover's case-in-chief, she sought to introduce a written prescription to challenge the defendant doctor's contention on cross-examination that he had not prescribed medication to the patient after a certain date. The evidence was excluded because it was not properly authenticated. On rebuttal, plaintiff again attempted to introduce similar evidence which the court prohibited. Although this Court opted to address the merits of the exclusion, it held that the court did not abuse its discretion and any error in so ruling was harmless error "at best" since the evidence involved the collateral issue of the credibility of the defendant. {¶ 29} The evidence under our consideration here is quite different from that examined in either Hissa or Schoonover. Defendants complain about the exclusion of a myriad of witnesses. Yet, defendants failed to reassert their objections at the appropriate time during the trial and failed to proffer the testimony of any of the identified witnesses at trial. Even if we were to look beyond the trial transcript, the record is similarly devoid of the substance of the excluded evidence. With the exception of the testimony of Vandercook, we are unable to sufficiently ascertain the substance of the excluded evidence to allow any meaningful review on the merits of the ruling. Plaintiff filed Ms. Vandercook's videotaped deposition on December 4, 2001. Otherwise, defendants rely upon the affidavit and deposition of MDK's HR manager purporting to establish what the remainder of the witnesses would have said at trial. {¶ 30} In both Hissa and Schoonover the court was able to garner the substance of the actual evidence from the record and did not rely on a hearsay summary of the evidence from a representative of the party seeking to introduce it. We do not feel the excluded evidence is sufficiently discernable from the record so as to overcome the proffer required by Evid.R. 103(A). {¶ 31} That leaves the sole videotaped deposition of Vandercook that was filed on December 4, 2001 by plaintiff. Vandercook alleged that plaintiff repeatedly propositioned her at work to have sex with him in exchange for money; ultimately offering her $1,000. Vandercook worked at the Brunswick Denny's between March and June 1999, when she was terminated by plaintiff. She never filed any complaints against plaintiff during her employment. Over a year after her termination, she learned of plaintiff's lawsuit against defendants through a newspaper article in 2000, which prompted her to make a written statement about plaintiff's earlier sexual propositions to her. {¶ 32} The trial court granted plaintiff's motion in limine to exclude the testimony of Vandercook, among other witnesses, because it involved allegations which defendants did not cite as reasons for terminating plaintiff. However, the parties agreed that such evidence could become admissible as the trial progressed for reasons such as plaintiff "opening the door" on those issues. (Tr. 24). Although defendants objected to the preliminary ruling, defendants did not seek to introduce this evidence by proffer or otherwise at trial as required by law to allow the trial court to make a final determination as to its admissibility and to preserve this issue for appeal. Ibid. {¶ 33} We do note defendants' heavy reliance on Tasin v. SifcoIndustries, Inc. (Nov. 10, 1988), Cuyahoga App. No. 54498. In Tasin, the court reviewed the admission of evidence under the abuse of discretion standard. Here, we would be required to review the exclusion of such evidence under the same standard. Tasin does not stand for the proposition that the exclusion of this type of evidence is necessarily an abuse of discretion as a matter of law but only that its admission is not. Nonetheless, it is improvident for us to reach the merits of the exclusion since these errors are overruled on the previously stated grounds. {¶ 34} Assignments of Error I and II are overruled. {¶ 35} "III. The trial court erred as a matter of law when it denied appellants' motion for directed verdict and motion for jnov since appellee had failed to prove that appellants had a discriminatory animus toward him and that the reason for his termination was mere pretext for discrimination." {¶ 36} A directed verdict should be granted if the movant is entitled to judgment as a matter of law when the evidence is construed most strongly in favor of the non-movant. Sanek v. Duracote Corp. (1989), 43 Ohio St. 3d 169, 172. A jury should consider a plaintiff's claim only if the probative evidence, if believed, would permit reasonable minds to come to different conclusions as to the essential issue of the case. Id. If substantial evidence exists in support of plaintiff's claim, the motion must be overruled. Pariseau v. WedgeProducts, Inc. (1988), 36 Ohio St. 3d 124, 127. {¶ 37} In deciding whether to grant a motion for a directed verdict, the trial court does not weigh evidence or consider the credibility of the witnesses, but rather, reviews and considers the sufficiency of the evidence as a matter of law. Ruta v. Breckenridge-RemyCo. (1982), 69 Ohio St. 2d 66; O'Day v. Webb (1972), 29 Ohio St. 2d 215. Because a motion for a directed verdict presents a question of law, an appellate court must conduct a de novo review of the trial court's judgment. Howell v. Dayton Power Light Co. (1995), 102 Ohio App. 3d 6,13. {¶ 38} The test to be applied by the trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict.Posin v. A.B.C. Motor CourtHotel (1976), 45 Ohio St. 2d 271;Cunningham v. Hildebrand (2001),142 Ohio App. 3d 218, 224. {¶ 39} Plaintiff bears the initial burden of establishing a prima facie case of racial discrimination by establishing the following: (1) the plaintiff belongs to a racial minority; (2) was discharged; (3) was qualified for the position; and (4) was replaced by, or the discharge permitted the retention of, a person who was not a member of the protected class. See Plumbers Steamfitters Joint Apprenticeship Commt. v.Ohio Civ. Rights Comm. (1981), 66 Ohio St. 2d 192, 197; see, also, TexasDept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 252-53, citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802. {¶ 40} The burden then shifts to the defendant employer to articulate some legitimate, nondiscriminatory reason for the employee's discharge. Id. Upon this showing, the burden shifts back to the plaintiff to rebut the articulated reason for discharge by demonstrating that it was a mere pretext for impermissible race discrimination by a preponderance of the evidence. Id. {¶ 41} Defendants argue that plaintiff's discrimination claim must fail because it is based only upon "stray remarks." We are bound to view the evidence in a light most favorable to the plaintiff. As set forth previously herein, at least two witnesses testified that they heard Kafantaris refer to plaintiff as a "nigger" and that he would do whatever it took to get rid of him. In addition, another witness reported hearing Kafantaris say he did not need any more nigger managers. A third witness testified that he was paid indirectly by Kafantaris to slash plaintiff's tires. Those are not stray remarks but were identified as specific statements about plaintiff and were probative of defendants' attitude towards plaintiff. {¶ 42} Kafantaris denied these allegations and defendants did, in fact, present a legitimate, non-discriminatory reason for plaintiff's termination; that being the repeated complaints that plaintiff sexual harassed young female servers. Plaintiff rebutted this reason by offering evidence that defendant paid these women to fabricate the allegations against plaintiff. {¶ 43} Defendants question why Kafantaris would twice offer plaintiff a job only to fire him in an elaborate scheme of racial discrimination. That was, however, a question facing the jury. We are not at liberty to weigh the evidence. The record contains conflicting evidence on nearly every material issue as we have summarized in some detail above. It matters not what version of the evidence we would have believed but only that the record contains some evidence that, if believed, would support plaintiff's claim. The record does contain such evidence and for that reason we find that the trial court did not err in overruling defendants' motions for directed verdict and for judgment notwithstanding the verdict. {¶ 44} Assignment of Error III is overruled. {¶ 45} "IV. The trial court erred as a matter of law when it denied appellants' motion for a new trial, or alternatively for remittitur." {¶ 46} The granting of a motion for new trial rests largely in the sound discretion of the trial court. A reviewing court will not disturb the trial court's ruling unless there is an abuse of discretion. Verbonv. Pennese (1982), 7 Ohio App. 3d 182, 7 Ohio B. 229. {¶ 47} Defendants generally assert that they were entitled to a new trial pursuant to the grounds contained in Civ.R. 59(A)(1), (4), (5), (6) and (7). {¶ 48} Defendants first claim that the trial court's exclusion of various witnesses was an abuse of discretion which denied them a fair trial. Civ.R. 59(A)(1). Consistent with our disposition of the previous assignment of error concerning the trial court's exclusion of this evidence, we find that the trial court did not err in denying defendants' motion for new trial on this ground. {¶ 49} Defendants also believe the jury awarded excessive compensatory and punitive damages entitling them to a new trial under Civ.R. 59(A)(7). The jury awarded plaintiff $100,000 in compensatory damages and $500,000 in punitive damages. {¶ 50} Defendants cite to the trial court's observation of the "paucity of the testimony on these elements." Indeed, the record is sparse as to the defendants' debts and assets and overall net worth. Plaintiff did establish, however, that Kafantaris was the sole shareholder of various corporations which owned certain real estate and restaurant franchises. Defendants failed to submit any evidence concerning their financial status until the post-trial proceedings when they submitted an unnotarized sheet of paper detailing some of defendants' alleged debts. {¶ 51} Civ.R. 59(A)(4) allows the trial court to grant a new trial in the event of "excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice." This court has recognized that the "[f]actors to be assessed in reviewing the exercise of discretion by the trial court under this provision include the excessive nature of the verdict, consideration by the jury of incompetent evidence, improper argument by counsel, or other improper conduct which can be said to have influenced the jury. Fields v. Dailey (1990),68 Ohio App. 3d 33, 39. To support a finding of passion or prejudice, it must be demonstrated that the jury's assessment of damages was so overwhelmingly disproportionate as to shock reasonable sensibilities.Pena v. Northeast Ohio Emergency Affiliates (1995), 108 Ohio App. 3d 96. The burden is on the moving party to demonstrate that passion and prejudice played a role in the jury's determination. Knor v. Parking Co.of Am. (1991), 73 Ohio App. 3d 177. A reviewing court should be particularly circumspect about attributing passion or prejudice to a jury's determination of damages as that is a matter peculiarly in their province. Kluss v. Alcan Aluminum Corp. (1995), 106 Ohio App. 3d 528, 539. After all, passion and prejudice are not proved by the size of the verdict. Id."Santoli v. Marbuery (May 14, 1998), Cuyahoga App. No. 72110. {¶ 52} Having thoroughly reviewed the record, we do not find that the trial court abused its discretion in denying the motion for new trial on this ground. There is no contention that the jury heard incompetent evidence or that it was influenced by any improper conduct. The jury's assessment of damages was not so overwhelmingly disproportionate to the evidence that it would shock reasonable sensibilities. Similarly, it does not appear to have been the result of passion or prejudice. We do not find that the trial court abused its discretion in rejecting defendants' position under Civ.R. 59(A)(4). {¶ 53} When a judgment is not sustained by the weight of the evidence, a new trial may be granted under Civ.R. 59(A)(6). In determining whether a new trial is warranted, the trial court "must weigh the evidence and pass upon the credibility of the witnesses, not in the substantially unlimited sense that such weight and credibility are passed on originally by the jury but in the more restricted sense of whether it appears to the trial court that manifest injustice has been done and that the verdict is against the manifest weight of the evidence." Rohde v.Farmer (1970), 23 Ohio St. 2d 82, paragraph three of the syllabus. {¶ 54} We, as an appellate court, are to "view the evidence favorably to the trial court's action rather than to the original jury's verdict." Id. at 94. This is because "the trial judge is better situated than a reviewing court to pass on questions of witness credibility and the `surrounding circumstances and atmosphere of the trial.'" Malone v.Courtyard by Marriott L.P. (1996), 74 Ohio St. 3d 440, 448, quoting Rohdev. Farmer, 23 Ohio St.2d at 94. {¶ 55} As set forth previously herein, the jury's verdict is supported by both competent and credible evidence. While there is a significant amount of totally contradictory evidence in this record, the verdict is not against the manifest weight of the evidence as a whole. The trial court did not abuse its discretion in denying defendants' motion for new trial on this ground. {¶ 56} While defendants contend that the judgment was contrary to law under Civ.R. 59(A)(7), defendants failed to submit any substantive argument or law to us in this regard. {¶ 57} Lastly, we address the trial court's denial of defendants' alternative motion for remittitur. Defendants essentially argue that the trial court abused its discretion by not reducing the jury's damages award. "Low compensatory damages and high punitive damages assessed by a jury are not in and of themselves cause to reverse the judgment or to grant a remittitur, since it is the function of the jury to assess the damages and, generally, it is not for the trial or appellate court to substitute its judgment for that of the trier of fact. A large disparity, standing alone, is insufficient to justify a court's interference with the province of the jury." Villella v. Waikem Motors,Inc. (1989), 45 Ohio St. 3d 36, 40. "The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct."Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St. 3d 638,651. Given the nature of the evidence in the record, the trial court did not err in denying defendants' alternative motion for remittitur. {¶ 58} Assignment of Error IV is overruled. {¶ 59} "V. The trial court erred when in permitted appellee to present to the jury the videotaped discovery depositions of Sheila Davis, Carleton Starkey, and Rachel Petrey without making the requisite demonstration of unavailability pursuant to Evidence Rule 804(A)5." {¶ 60} Defendants maintain that the trial court's admission of certain videotaped depositions in lieu of calling live witnesses violated Evid.R. 804(A)(5) absent a showing of unavailability. Plaintiff responds that he did attempt to secure the subject witnesses attendance through subpoenas but was unsuccessful. Nonetheless, plaintiff argues that Civ.R. 32(A)(3)(b), rather than Evid.R. 804, should control the disposition of this error. {¶ 61} A trial court has broad discretion in the admission or exclusion of evidence at trial. Ibid. We review such determinations under the abuse of discretion standard. Ibid. {¶ 62} Evid.R. 804(A)(5) provides in relevant part as follows: {¶ 63} "`Unavailability as a witness' includes any of the following situations in which the declarant: {¶ 64} "* * * {¶ 65} "(5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance * * * by process or other reasonable means." {¶ 66} Civ.R. 32 governs the use of depositions in court proceedings and provides in relevant part as follows: {¶ 67} "(A) Use of depositions. {¶ 68} "Every deposition intended to be presented as evidence must be filed at least one day before the day of trial or hearing unless for good cause shown the court permits a later filing. {¶ 69} "At the trial * * * any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any one of the following provisions: {¶ 70} "(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: * * * (b) that the witness is beyond the subpoena power of the court in which the action is pending or resides outside of the county in which the action ispending unless it appears that the absence of the witness was procured bythe party offering the deposition * * * or (d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena * * *." (Emphasis added). {¶ 71} Defendant relies upon In re Story (1967), 159 Ohio St. 144;In re Carter (1997), 123 Ohio App. 3d 523 and Karst v. Goldberg (1993),88 Ohio App. 3d 413. None of these cases involved the admission or use of a person's videotaped deposition testimony in lieu of their live testimony. None of those cases implicate or address the use of deposition testimony at trial or the provisions of Civ.R. 32. {¶ 72} Defendants do not contend that plaintiff or his counsel engaged in any wrongdoing to prevent any of these three witnesses from attending or testifying at trial. At the time each deposition was taken, defendants were represented by counsel who was present at the deposition of these witnesses and who engaged in cross-examination of these witnesses. Both Davis and Petrey resided outside Cuyahoga County at the time of trial and the whereabouts of Starkey was unknown. Plaintiff filed both the written and videotaped depositions of Starkey, Petrey, and Davis with the trial court well before the day of trial. And, the record confirms that plaintiff subpoenaed each of these witnesses for trial. {¶ 73} The court allowed plaintiff to present the videotaped depositions to the jury during his case-in-chief. However, the court further stated that defendants could call the witnesses live in their case. (R. 100). Defendants did not do so nor is there any reflection in the record that the trial court denied any attempt by defendants to call any of these witnesses. {¶ 74} In light of these facts and the provisions of Civ.R. 32, we find that the trial court did not abuse its discretion in permitting plaintiff's use of the Starkey, Petrey and Davis videotaped depositions at trial. {¶ 75} Assignment of Error V is overruled. {¶ 76} The judgment is affirmed. Judgment affirmed. ANNE L. KILBANE, P.J., and FRANK D. CELEBREZZE, JR., J., concur. It is ordered that appellee recover of appellants his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. 1 Michael Kafantaris and MDK Food Service, Inc. (collectively "defendants" and "Kafantaris" and "MDK" individually). 2 During his testimony, plaintiff intimated that defendants coerced him into writing the apology.

2022-09-09 23:54:31.735681+00

Stark

f 1. STARK, R J. Lang Vang appeals from a divorce judgment terminating his marriage to Seng Xiong. Vang argues the circuit court erred by granting a judgment of divorce because he and Xiong were never validly married. Vang alternatively argues that, even if the parties' marriage was valid, the circuit court erroneously exercised its discretion with respect to property division and maintenance. ¶ 2. We conclude that, under the facts of this case, the circuit court properly determined the parties had a legally recognizable putative marriage, pursuant to our prior decision in Xiong ex rel. Edmondson v. Xiong, 2002 WI App 110, 255 Wis. 2d 693, 648 N.W.2d 900. We further conclude the court properly exercised its discretion in dividing the parties' property and awarding maintenance to Xiong for an indefinite duration. We therefore affirm. BACKGROUND ¶ 3. Xiong petitioned for divorce from Vang in May 2014. Her petition alleged the parties were married in September 1980 at Ban Vinai, a refugee camp in Thailand.1 Vang subsequently moved to dismiss Xiong's divorce petition, contending the parties were never legally married. f 4. On January 23 and July 6, 2015, the circuit court held evidentiary hearings regarding the validity of the parties' marriage. During the hearings, Xiong testified that she and Vang were married on September 24, 1980, in a wedding ceremony performed by her uncle. She testified a separate "strings ceremony" was performed three days after the wedding.2 Xiong explained she did not want to marry Vang, but she was pressured or "forced" to do so by her family.3 f 5. A number of photographs were introduced into evidence during the July 6, 2015 hearing. Xiong testified one of those photographs—Exhibit 6—was taken in October 1980 and showed her and Vang wearing Hmong wedding clothing. Xiong testified Exhibits 7, 8, 37, 38, and 39 were photographs of the "strings ceremony" that took place three days after the wedding. Handwriting on the back of Exhibits 37, 38, and 39 indicated these photographs were taken on September 27, 1980, and depicted "Lang and Seng's wedding." Xiong identified this handwriting as Vang's. Xiong also testified that two other photographs, marked as Exhibit 40, showed her wearing wedding clothes four days after the marriage ceremony, when she and Vang went to visit her family. ¶ 6. Xiong testified she and Vang came to the United States together in 1983. Over the next five years, they had four children together. Xiong cared for the parties' children so that Vang could go to engineering school. Xiong testified she learned in 2005 that Vang had a "girlfriend," and she and Vang stopped living together in December 2008. When asked why she waited until 2014 to file for divorce, Xiong responded, "Because at the time my kids [were] in school, in college, and I don't want this ... to affect them. And then I—at the same time I was . . . having hope against hope that he still love us, his kids and me during that time." ¶ 7. Several of Xiong's family members corroborated her testimony that she and Vang were married in Thailand in September 1980. Xiong's uncle, Ga Cheng Xiong, testified he was the leader of the Xiong clan in the Ban Vinai refugee camp at that time and was involved in "marriage negotiations" leading up to Xiong and Vang's wedding. Ga Cheng Xiong confirmed that Xiong initially refused to marry Vang, and after two days of unsuccessful negotiations Vang approached Ga Cheng Xiong asking for help. Ga Cheng Xiong conceded that Xiong was ultimately coerced or "indirect [ly] forc[ed]" to marry Vang. He testified Vang paid four silver bars "for the dowry" and fifteen silver coins "for the fees." Ga Cheng Xiong subsequently performed a marriage ceremony between Xiong and Vang, in accordance with all Hmong marriage rituals, during which Vang agreed to be Xiong's husband. Ga Cheng Xiong confirmed that a separate "string ceremony" was performed three days later. ¶ 8. Ga Cheng Xiong's wife, Bao Vang, testified Vang and his relatives "came to [her] house and beg[ged] or ask[ed] [her] husband to go with them and to plea with [Xiong] so that maybe [Xiong] . . . would marry [Vang]." Bao Vang testified she cooked food for the subsequent wedding ceremony, which was performed by her husband. She heard her husband declare Vang and Xiong to be husband and wife during the ceremony. ¶ 9. Xiong's older brother, Nao Tou Xiong, testified he first met Vang when Vang approached Xiong's family seeking to marry her. Nao Tou Xiong testified the subsequent marriage negotiations lasted three days, and Xiong was ultimately forced to marry Vang. Nao Tou Xiong confirmed that Vang paid a bride price in order to marry Xiong, and a wedding ceremony was subsequently performed according to Hmong marriage traditions. ¶ 10. Nao Tou Xiong clarified that the Hmong do not have marriage certificates, and marriages are instead "recorded" in the oral tradition. He denied that "cohabitation ceremonies" are a part of traditional Hmong culture and testified there is "no acceptance for cohabitation in Hmong life, Hmong society." He further explained that sex outside of marriage is "not appropriate in the Hmong culture" and is viewed as disrespecting or dishonoring "the family,. . . the girl, and . . . the culture." f 11. In addition to the testimony summarized above, Xiong introduced several documents at the evidentiary hearings that referred to Vang as her husband. For instance, Xiong introduced her United States immigration file, which included multiple documents listing Vang as her "husband" or "spouse." Xiong testified Vang filled out several of these documents. Xiong also introduced a quit claim deed, dated November 28, 2012, by which "LANG C. VANG and SENG XIONG, husband and wife," transferred property to two of their children. f 12. Vang denied during his testimony at the evidentiary hearings that he and Xiong were ever married. He testified he and Xiong met in 1980, were "friend[s]," and went on a few dates. According to Vang, the Hmong elders in the Ban Vinai refugee camp felt that Vang and Xiong's relationship was "makfing] them lose face," so they forced Vang and Xiong to live together. Vang testified he did not want to live with Xiong, and she did not want to live with him. He further testified he never intended to become married to Xiong, and, to the best of his knowledge, she did not intend to become married to him. ¶ 13. Vang conceded a ceremony took place in September 1980 involving "dinners and food," but he testified it was merely a "cohabitation" ceremony, rather than a wedding. Vang denied that any "string ceremony" was performed. He further testified he never filed for a marriage license in Thailand, Laos, or the United States. ¶ 14. Vang acknowledged that he and Xiong ultimately immigrated to the United States together and lived together until 2005. However, he asserted that, after "liv[ing] together for that long with misery life," they mutually decided to separate. Vang testified he subsequently married his current wife, Patty Vang. He contended he never gave Xiong any reason to believe she was his legal wife because they "never married legally" and "never registered in any register office from Thailand or from the United States." Although Vang acknowledged he and Xiong had filed joint income tax returns "as husband and wife," he asserted they had "no choice" but to do so "because there's no . . . statement in the filing instructions saying that if I don't have a legal marriage, I cannot file." ¶ 15. Vang also relied on the testimony of two expert witnesses in support of his position that he and Xiong were never legally married. First, Suwatchai Samakkasetkorn, a family law attorney who had practiced in Thailand since 2007, testified Vang and Xiong were considered illegal immigrants under Thai law while they resided in the Ban Vinai refugee camp.4 Samakkasetkorn testified that, under Thai law, illegal immigrants are not permitted to "obtain and have a recognized marriage in the nation of Thailand." Sa-makkasetkorn further testified that, for a marriage to be considered valid under Thai law, both parties "have to go to register the marriage at the register office." ¶ 16. Vang also presented the testimony of Yang Thai Vang, a Ph.D. student at the University of Wisconsin-Madison studying cultural anthropology, with a focus on Hmong language and culture.5 Yang Thai Vang testified he has participated in or witnessed hundreds of Hmong marriages. Contrary to Xiong's testimony, he opined that the photograph marked as Exhibit 6 did not depict traditional Hmong wedding clothing because, unlike the clothes shown in that photograph, Hmong wedding clothes must be "brand new." He further opined that Exhibits 6 and 40 did not depict a wedding consistent with Hmong marriage traditions because the marriage negotiators were not included in those photographs. Yang Thai Vang also testified that the Hmong do not recognize forced marriages. ¶ 17. After considering the evidence presented by the parties, the circuit court concluded it was "not completely clear . . . whether Thailand would or would not recognize" Vang and Xiong's marriage. Stated differently, the court concluded the testimony was "ambiguous, at best" as to whether Vang and Xiong were validly married under Thai law. The court therefore proceeded to consider whether the parties' relationship qualified as a putative marriage under Xiong. In that case, we explained that a putative marriage is "a marriage which has been solemnized in proper form and celebrated in good faith by one or both parties, but which, by reason of some legal infirmity, is either void or voidable." See Xiong, 255 Wis. 2d 693, ¶ 22 (quoting Christopher L. Blakesley, The Putative Marriage Doctrine, 60 Tul. L. Rev. 1, 6 (1985)). ¶ 18. In applying this standard, the circuit court found that the "most credible evidence in this case tells me that there was a ceremony," and that ceremony "involved wedding clothing." The court rejected Yang Thai Vang's opinion that the clothes shown in Exhibit 6 were not wedding clothes, instead finding that, "for these particular individuals, the clothing that they were [wearing] in those photographs [was] culturally significant for them." The court further found there was "a celebrant of this ceremony," and "a marriage occurred that was appropriate to" Hmong culture. ¶ 19. The circuit court next found that, although it was undisputed Xiong did not want to marry Vang, "the most credible testimony" presented to the court indicated that Vang "did want to enter into this relationship and wanted it to be a wedding." The court found that both Vang and Xiong understood the September 24, 1980 ceremony was a marriage ceremony, and they "didn't understand that this was simply going to be a friendship." While the court acknowledged Vang's testimony that neither he nor Xiong believed they were married, it explained: I'm satisfied that the most credible testimony that was offered here to me today . . . [was] that both of these parties believed they were married and they were venturing forth together on this life of matrimony; and as verification or what helped strengthen my conviction of that is all of these documents that were submitted to me, particularly the documents in [Xiong's immigration file], which were largely prepared by [Vang], indicating that the two of them were married. He was representing that they were. His testimony was that once he got to the United States, he really was unsure as to what they should do, and that's why the—the documents showed up with the two of them as married. I, frankly, don't find that testimony to be credible whatsoever. I find that. .. testimony to be incredible, in that the reality is when the parties arrived here in this country, they arrived representing that they were married, they behaved as if they were married, they behaved as if they were married because they believed it. They signed real estate deeds. They signed tax returns. I'm satisfied that they behaved in every respect like a married couple did because they believed they were married. ¶ 20. Based on these findings, the circuit court concluded the parties had a putative marriage that should be accorded recognition under Wisconsin law. The court therefore denied Vang's motion to dismiss Xiong's divorce petition. ¶ 21. The circuit court ultimately entered a judgment of divorce on June 6, 2016. As relevant to this appeal, the court equally divided the parties' divisible property. The court treated as divisible property a home that Vang purchased in 2008, following his purported marriage to Patty Vang, and awarded that home to Vang. In order to offset that award, the court assigned to Vang approximately $44,000 in student loan debt, which Xiong had incurred during the parties' marriage by cosigning a student loan for one of their children. The court also ordered Vang to pay Xiong $2,708.33 per month in maintenance for an indefinite duration. Vang now appeals. DISCUSSION I. Validity of the parties' marriage ¶ 22. Vang argues the circuit court erred by determining he and Xiong had a legally recognizable marriage. In reviewing the circuit court's ruling on this issue, we will not set aside the court's factual findings unless they are clearly erroneous. See Wis. Stat. § 805.17(2). A finding of fact is clearly erroneous when it is against the great weight and clear preponderance of the evidence. Phelps v. Physicians Ins. Co., 2009 WI 74, ¶ 39, 319 Wis. 2d 1, 768 N.W.2d 615. Whether the facts fulfill the legal requirements for a valid marriage is a question of law that we review independently. See Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 88, 596 N.W.2d 417 (1999) (stating the application of facts to a legal standard is a question of law). f 23. As a general matter, "whether a marriage is valid is controlled by the law of the place where the marriage is contracted." Xiong, 255 Wis. 2d 693, ¶ 14. "Marriages valid where celebrated are valid everywhere, except those contrary to the law of nature and those which the law has declared invalid upon the ground of public policy." Id. (quoting Campbell v. Blumberg, 260 Wis. 625, 631, 51 N.W.2d 709 (1952)). ¶ 24. It is undisputed that the purported marriage ceremony between Vang and Xiong was performed at a refugee camp in Thailand. Vang submitted evidence in the circuit court indicating that he and Xiong could not legally marry under Thai law because they were considered illegal immigrants. Vang argues on appeal that, because the marriage was not valid in Thailand, where it was celebrated, it is also invalid in Wisconsin. Vang asserts this conclusion disposes of all other issues in this case. ¶ 25. In response, Xiong concedes the Hmong were "designated illegal aliens in Thailand" and therefore were "not permitted to marry under Thai law." However, Xiong argues Thai law is "irrelevant as to the validity of this marriage" because, even though the marriage was performed in a refugee camp in Thailand, she and Vang "remained domiciliaries of Laos." Xiong therefore argues that "Hmong rules of marriage, as accepted in Laos, their country of domicile [,] were in force." Xiong notes that Vang's own expert, Yang Thai Vang, testified the Hmong "[brought] their legal system" to the Bin Vinai refugee camp, including the ability of clan leaders to perform marriages. ¶ 26. There are two main problems with Xiong's argument. First, as noted above, Wisconsin law states that the validity of a marriage is controlled "by the law of the place where the marriage was contracted." Id. (emphasis added). Here, the purported marriage was contracted in Thailand. Even accepting Xiong's claim that she and Vang were "domiciliaries of Laos"6 at that time, Xiong cites no legal authority in support of the proposition that the law of the parties' country of domicile should determine the validity of their marriage, rather than the law of the country where the marriage occurred. Second, although Xiong asserts that Hmong "rules of marriage" are "accepted in Laos," she cites no legal authority in support of that proposition. There is nothing in the record that would permit us to determine whether the marriage at issue here would be considered valid under Laotian law. ¶ 27. Due to these deficiencies in Xiong's argument, we decline to hold that Vang and Xiong were legally married because their marriage was valid under the laws of Laos, their country of domicile. We instead conclude that, based on the facts found by the circuit court, their relationship should be accorded legal recognition as a putative marriage. f 28. The putative marriage doctrine was first recognized in Wisconsin in Xiong. That case involved a wrongful death lawsuit brought by the children of Mai Xiong against their father, Nhia Lue Xiong, after Mai was killed while a passenger in a vehicle driven by Nhia. Xiong, 255 Wis. 2d 693, ¶¶ 1—2. The circuit court dismissed the children's claim on the grounds that, under Wisconsin's wrongful death statute, any wrongful death claim stemming from Mai's death belonged to Nhia, as her surviving spouse. Id., f 2. The children, however, contended Nhia did not qualify as a surviving spouse because his marriage to Mai was invalid. Id. ¶ 29. It was undisputed that Nhia and Mai had "participated in a traditional Hmong marriage ceremony in Laos." Id., ¶ 6. Nhia testified he and Mai both believed they were married following that ceremony. Id., ¶ 9. However, they did not file any papers in Laos validating their marriage. Id., ¶ 7. They subsequently fled to Thailand, where they remained in a refugee camp for five years, and they did not attempt to validate their marriage in any way during that time. Id., f 8. Nonetheless, when they later immigrated to the United States, they represented to immigration authorities that they were married. Id., ¶ 9. ¶ 30. Nhia and Mai's children cited evidence indicating that their parents' marriage was not valid under Laotian law, and Nhia presented no evidence to dispute that proposition. Id., ¶¶ 15, 18. Nonetheless, we concluded Nhia and Mai's relationship "should be accorded recognition under Wisconsin law" as a "putative marriage," that is, "a marriage which has been solemnized in proper form and celebrated in good faith by one or both parties, but which, by reason of some legal infirmity, is either void or voidable." Id., ¶ 22 (quoting Blakesley, supra, at 6). We relied on Leong v. Leong, 27 F.2d 582 (9th Cir. 1928), in support of this conclusion, observing: The parties [in Leong], who were Chinese, were married in Hawaii in 1884 "all in accordance with Chinese customs, but without a license, as required by the laws of Hawaii." Id. They immediately assumed and maintained, for the next thirty-five years, the relations of husband and wife. Id. The wife bore thirteen children and performed the domestic duties of a housewife. Id. In 1920, the husband ceased to recognize the marriage as valid because no license had been obtained as required by Hawaiian law. Id. The Ninth Circuit Court of Appeals, recognizing the contractual nature of marriage, observed that "equity protects relationships and vindicates rights not recognized in a court of law .. . ." Id. at 585. The court held that the "putative wife" was entitled to the rights of a legal wife. Id. Xiong, 255 Wis. 2d 693, ¶ 21. ¶ 31. We agree with the circuit court that, under the circumstances of this case, Vang and Xiong's relationship qualifies as a putative marriage and, as such, should be accorded recognition under Wisconsin law.7 The first requirement of a putative marriage is that it was "solemnized in proper form." Id., ¶ 22 (quoting Blakesley, supra, at 6). The circuit court found that Vang and Xiong took part in a marriage ceremony, which was conducted in accordance with traditional Hmong marriage rituals. These findings are not clearly erroneous. Xiong and three of her relatives testified the September 24, 1980 ceremony was a marriage ceremony. In addition, both Xiong's uncle—the clan leader who performed the ceremony—and Xiong's older brother confirmed that the ceremony was performed in accordance with Hmong marriage traditions. f 32. Vang asserts the September 1980 ceremony was "merely a 'cohabitation ceremony,' something significantly short of a wedding." However, Xiong's older brother expressly testified that there is no such thing as a cohabitation ceremony in traditional Hmong culture and that Hmong culture does not tolerate cohabitation or sex outside of marriage. Vang presented no evidence, beyond his own testimony, indicating that cohabitation ceremonies are a recognized part of Hmong culture. Under these circumstances, and in light of the significant testimony by Xiong and her relatives that the September 1980 ceremony was a marriage ceremony, the circuit court was not required to accept Vang's alternative characterization. "When the [circuit] court acts as the finder of fact, it is the ultimate arbiter of the credibility of the witnesses and the weight to be given to their testimony." Plesko v. Figgie Int'l, 190 Wis. 2d 764, 775, 528 N.W.2d 446 (Ct. App. 1994).8 ¶ 33. Vang also asserts that, instead of accepting the testimony of Xiong and her relatives that a wedding ceremony took place, the circuit court should have given more weight to the testimony of Vang's expert witness, Yang Thai Vang. Vang emphasizes Yang Thai Vang's testimony that: (1) the clothes depicted in Exhibit 6 were not wedding clothes because they did not appear to be "new"; (2) Exhibits 6 and 40 did not depict a wedding because the marriage negotiators were not included in those photographs; and (3) the Hmong do not recognize forced marriages. ¶ 34. A fact finder is not required to accept an expert witness's opinion testimony. Krueger v. Tappan Co., 104 Wis. 2d 199, 203, 311 N.W.2d 219 (Ct. App. 1981). Here, the circuit court specifically rejected Yang Thai Vang's testimony that the clothes shown in Exhibit 6 were not wedding clothes, finding instead that those clothes qualified as wedding clothes because they were "culturally significant" for the parties. The court's finding in that regard is consistent with Xiong's testimony and is therefore not clearly erroneous. In addition, while Yang Thai Vang testified Exhibits 6 and 40 did not depict a wedding because the marriage negotiators were not included in those photographs, Xiong never claimed that those photographs depicted her wedding ceremony. Instead, she testified Exhibit 6 was taken sometime in October 1980 and Exhibit 40 was taken four days after the ceremony. ¶ 35. Moreover, although Yang Thai Vang testified the Hmong do not recognize forced marriages, Xiong's uncle testified "indirect forcing" of marriages occurs in Hmong culture. Xiong's brother similarly testified that forced marriages are accepted in Hmong culture and are "typical" in Laos. Again, the circuit court was not required to accept Yang Thai Vang's testimony, particularly in the face of countervailing evidence. See id. f 36. The second requirement for a putative marriage is that the marriage was "celebrated in good faith by one or both parties." Xiong, 255 Wis. 2d 693, ¶ 22 (quoting Blakesley, supra, at 6). In other words, the court must find that "either or both parties believed in good faith that the marriage was valid." Id. The circuit court found that the "most credible testimony" in this case indicated "that both of these parties believed they were married and they were venturing forth together on this life of matrimony." This finding is supported by the documents in Exhibit 44—Xiong's United States immigration file—in which Vang represented that he was Xiong's husband. The circuit court rejected as incredible Vang's testimony that he listed himself as Xiong's spouse on the immigration documents because he did not know what else to do. The court also noted Vang and Xiong had signed a real estate deed as "husband and wife" in 2012 and had submitted joint income tax returns as a married couple. ¶ 37. In addition, Xiong's uncle and brother both testified that Vang approached their family because he wanted to marry Xiong, and a traditional Hmong marriage ceremony took place following several days of negotiations. Xiong testified the photographs marked as Exhibits 37, 38, and 39 contained notations in Vang's handwriting indicating that they depicted "Lang and Seng's wedding." This evidence amply supports the circuit court's finding that both Vang and Xiong believed they were married following the September 24, 1980 ceremony. ¶ 38. For the reasons set forth above, the circuit court properly found that Vang and Xiong's marriage was solemnized in proper form—that is, a traditional Hmong marriage ceremony—and was celebrated in good faith by both parties. Based on these findings, the court correctly concluded the parties' relationship qualified as a putative marriage under Xiong. See id. ¶ 39. Vang argues the putative marriage doctrine adopted in Xiong is inapplicable in this case for four reasons. First, Vang contends Xiong is inapplicable because it was a wrongful death lawsuit, rather than a family court action. We disagree. Nothing in Xiong indicates that our adoption of the putative marriage doctrine in that case was limited to the context of wrongful death lawsuits. In fact, Xiong relied heavily on Leong—a case involving the division of property between putative spouses—in support of its decision to adopt the putative marriage doctrine. See Xiong, 255 Wis. 2d 693, ¶ 21. Moreover, the putative marriage doctrine arose in equity, see Leong, 27 F.2d at 585, and divorce actions are equitable in nature, see Caulfield v. Caulfield, 183 Wis. 2d 83, 90, 515 N.W.2d 278 (Ct. App. 1994). ¶ 40. Vang asserts that applying the putative marriage doctrine in divorce actions will validate common-law marriages. This concern is unfounded. Prior to January 1, 1918, Wisconsin recognized common-law marriages "entered into by competent parties without witness or ceremony of any kind whereby the parties agreed to take each other for husband and wife and the agreement was consummated by cohabitation and by holding themselves out to the public as married." Vargo v. Buban, 68 Wis. 2d 473, 483, 228 N.W.2d 681 (1975). Unlike common-law marriages, putative marriages require that the parties solemnized their marriage in proper form, and that at least one of the parties believed they were validly married. Xiong, 255 Wis. 2d 693, ¶ 22. Because these distinct requirements must be fulfilled in order for a putative marriage to be recognized under Wisconsin law, applying the putative marriage doctrine in divorce cases will not, as Vang claims, validate common-law marriages in this state. ¶ 41. Second, Vang argues the Xiong court's ruling that a putative marriage existed depended on its finding that the parties in that case had lived for three years in Pennsylvania, which at that time recognized common-law marriage. See id., ¶ 24. We do not, however, read Xiong as requiring residence in a common-law marriage jurisdiction in order for a relationship to qualify as a putative marriage. Although we noted in Xiong that the parties' prior residence in a common-law marriage state was "another reason to recognize their marital relationship," our conclusion that a putative marriage existed was not dependent on that factor. See id. ¶ 42. Third, Vang argues Xiong is distinguishable because the parties in that case "were married in Laos, their home country, which recognizes marriages of its own citizens." Be that as it may, it was undisputed in Xiong that the parties' marriage was invalid under Laotian law because it was not "solemnized by the District Officer, Taseng." See id., f 15. If the parties' marriage in Xiong had been recognized under Laotian law, a putative marriage analysis would have been unnecessary. Moreover, our ultimate decision in Xiong that the parties had a putative marriage was in no way based on the fact that the marriage ceremony took place in their home country of Laos. ¶ 43. Fourth, Vang asserts Xiong is inapt because "there was no controversy about whether the parties in Xiong participated in a marriage ceremony," whereas the parties in this case dispute whether a marriage ceremony occurred. This argument is unavailing. Although Vang testified the ceremony at issue here was merely a cohabitation ceremony, the circuit court rejected his testimony and expressly found that a traditional Hmong marriage ceremony occurred. As discussed above, the court's finding in that regard is supported by ample evidence and is not clearly erroneous. See supra, ¶¶ 31-35. Nothing in Xiong indicates the putative marriage doctrine can only apply when both parties agree that a marriage ceremony took place. . f 44. For all the foregoing reasons, we conclude the circuit court properly determined that Vang and Xiong's relationship qualified as a putative marriage and should therefore be accorded recognition under Wisconsin law. We caution, however, that our decision in this case should not be read to indicate that all marriages performed according to Hmong cultural traditions, or the traditions of other cultures, are per se valid in Wisconsin. Rather, each purported marriage must be analyzed on its own facts to determine whether it qualifies as a putative marriage, based on the factors set forth in Xiong. See id., f 22. II. Property division and maintenance ¶ 45. Having determined that Vang and Xiong had a legally recognizable putative marriage under Xiong, we now turn to Vang's arguments that the circuit court erred with respect to property division and maintenance. The division of property and the determination of maintenance at divorce are entrusted to the circuit court's discretion and will not be disturbed on appeal absent an erroneous exercise of discretion. LeMere v. LeMere, 2003 WI 67, ¶ 13, 262 Wis. 2d 426, 663 N.W.2d 789. A court properly exercises its discretion when it examines the relevant facts, applies a proper standard of law, and uses a rational process to reach a reasonable conclusion. Id. ¶ 46. Our review of a circuit court's discretionary decisions may involve underlying questions of law and fact. See Covelli v. Covelli, 2006 WI App 121, ¶ 13, 293 Wis. 2d 707, 718 N.W.2d 260. We review any questions of law independently, but we will not disturb the circuit court's factual findings unless they are clearly erroneous. See id. A. Property division ¶ 47. Wisconsin Stat. § 767.61 governs the division of property at divorce. First, the statute provides that certain property of the divorcing parties is not subject to division—specifically, property acquired by gift, by reason of another's death, or with funds from either of those sources—unless refusal to divide the property will create a hardship on the other party or on the children of the marriage. Sec. 767.61(2). Second, the statute sets forth a presumption that all other property of the parties should be divided equally. Sec. 767.61(3). Third, the statute provides that a court may deviate from an equal division after considering thirteen enumerated factors. Sec. 767.61(3)(a)-(m). ¶ 48. The circuit court here recognized that, given the lengthy delay between the parties' separation and the filing of Xiong's divorce petition, the majority of the parties' divisible property had been dissipated or otherwise disposed of. With respect to the remaining assets, the court acknowledged the presumption of equal division set forth in Wis. Stat. § 767.61(3). After considering the factors listed in § 767.61(3)(a)-(m)., the court declined to deviate from that presumption. ¶ 49. Vang concedes on appeal that the circuit court's ruling regarding property division was largely "fair" under the circumstances. However, he asserts there is one "glaring inequity" in the court's decision. Specifically, he argues the court erred by treating as divisible property a home he purchased on Richbor-ough Road in Green Bay in December 2008, after his purported marriage to Patty Vang.9 The court determined the Richborough Road residence had an equity value of $48,398 and awarded it to Vang. In order to offset that award and thereby maintain an equal property division, the court assigned Vang approximately $44,000 in student loan debt that Xiong incurred during the parties' marriage by cosigning a student loan for one of their children.10 Vang argues this resulted in Xiong receiving a "significant windfall" because she "had absolutely nothing to do with the purchase, upkeep, or mortgage payments relative to" the Richborough Road residence, and she also "found herself clear of obligation regarding student debt[] for the education of their child." ¶ 50. Vang's main argument on appeal appears to be that the circuit court erred by concluding the Richborough Road residence was subject to division.11 He argues the court should have concluded the parties were putatively divorced on March 15, 2005. He contends, "Upon the separation of the parties, the division of assets, and certainly the marriage of [Vang] to another woman, surely one or both of the parties truly believed that their 'marriage' had ended." Because the Richborough Road residence was acquired after the date of the parties' putative divorce, Vang argues it was not subject to division. f 51. This argument fails for two reasons. First, Vang does not cite any authority—from this jurisdiction or any other—recognizing the existence of "putative divorce" as a legal concept. In fact, Vang concedes putative divorce is "not a recognized legal principle." We need not consider arguments that are unsupported by citation to legal authority. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). ¶ 52. Second, Vang's putative divorce argument fails as a factual matter. In rejecting Vang's argument, the circuit court noted that Vang and Xiong had filed a joint income tax return for the year 2005. The court observed the "determination date" for purposes of filing a joint income tax return "is December 31st of the year of the tax return, which would indicate that when these two people signed that 2005 1040, they were representing to the United States government that on December 31 of 2005, they were husband and wife." The court also observed that, in November 2012, Vang and Xiong executed a deed "as husband and wife" transferring property to two of their adult children. Moreover, the court expressly found incredible Vang's testimony that he did not believe the parties were married. Based on these findings, the court properly rejected Vang's argument that at least one of the parties believed their marriage had ended as of March 15, 2005. ¶ 53. To the extent Vang also intends to argue that the circuit court erroneously exercised its discretion by equally dividing the parties' property, his argument in that regard is undeveloped. Vang contends the court's treatment of the Richborough Road residence was unfair because Xiong neither paid for nor helped to maintain that property. However, Vang does not relate his argument to the factors set forth in Wis. Stat. § 767.61(3)(a)-(m)., which a court must consider before deviating from an equal property division. Although Vang argues the circuit court's property division was unfair under the circumstances, he does not develop any argument that the court's decision was based on an erroneous view of the facts or law, or that it was not the product of a rational decision-making process. See LeMere, 262 Wis. 2d 426, ¶ 13. We need not address undeveloped arguments. See Pettit, 171 Wis. 2d at 647. ¶ 54. Furthermore, Xiong argued in her respondent's brief that the circuit court properly exercised its discretion by equally dividing the marital estate based on two considerations: (1) Vang's failure to disclose significant assets on his financial disclosure statement; and (2) Vang's improper disposal of $83,000 after Xiong filed for divorce. Vang failed to file a reply brief, and, as such, he has not refuted these assertions. We therefore deem Xiong's argument that the circuit court properly exercised its discretion conceded. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). B. Maintenance ¶ 55. Vang's final argument on appeal is that the circuit court erred by awarding Xiong maintenance for an indefinite duration. Maintenance awards are governed by Wis. Stat. § 767.56, which provides that a court may grant an order at divorce "requiring maintenance payments to either party for a limited or indefinite length of time." Sec. 767.56(lc). The statute sets forth ten factors a court should consider when deciding whether to award maintenance. Sec. 767.56(lc)(a)-(j). These factors reflect and are designed to further two distinct but related objectives in the award of maintenance: to support the recipient spouse in accordance with the needs and earning capacities of the parties (the support objective) and to ensure a fair and equitable financial arrangement between the parties in each individual case (the fairness objective). LaRocque v. LaRocque, 139 Wis. 2d 23, 33, 406 N.W.2d 736 (1987). ¶ 56. The circuit court discussed each of the factors set forth in Wis. Stat. § 767.56(lc) before awarding Xiong maintenance of $2,708.33 per month for an indefinite duration. Five of the statutory factors were particularly relevant to the court's decision. First, the court found that the parties had a long-term marriage of "almost 36 years." See § 767.56(lc)(a) (directing courts to consider the length of the parties' marriage when determining maintenance). The court reasoned, "[I]t's not unreasonable to start at an equal division of income when doing an analysis in a long[-]term marriage." ¶ 57. Second, the circuit court found that Xiong had no formal education and had "minimal" English language skills. See Wis. Stat. § 767.56(lc)(d) (directing courts to consider the educational level of each party at the time of the marriage and at the time the divorce action was commenced). The court acknowledged Xiong had experience "running the Sunrise Oriental Market," an Asian grocery store she at one point co-owned with Vang. However, the court stated it was not satisfied Xiong "gained any appreciable business acumen" through that experience that "would translate into something like getting a management position at Festival Foods." The court conceded Xiong could "probably" obtain some type of employment at an Asian market, but it stated "that's a very narrow field." On the other hand, the court found that Vang had earned a bachelor's degree during the marriage and was employed as an engineer. ¶ 58. Third, the circuit court observed that Xiong's earning capacity was "very limited." See Wis. Stat. § 767.56(lc)(e) (directing courts to consider the earning capacity of the party seeking maintenance). Consistent with the opinion of Xiong's vocational expert, the court found Xiong had an annual earning capacity of $15,080. In comparison, the court found that Vang had annual income of $88,757. ¶ 59. Fourth, the circuit court found that it was not feasible Xiong would, at any point, become self-supporting at a standard of living reasonably comparable to that she enjoyed during the marriage. See Wis. Stat. § 767.56(lc)(f). The court indicated its finding in that regard was based on Xiong's educational level, her language skills, and her age. ¶ 60. Fifth, the circuit court emphasized that Vang had earned his bachelor's degree during his marriage to Xiong, while she "stayed home with the children, kept the house and also participated in this Oriental market." The court found that Vang "was able to progress in his career" because of Xiong's contributions, and it indicated that finding "weighted] quite heavily" in its decision regarding maintenance. See Wis. Stat. § 767.56(lc)(i) (directing courts to consider the contribution by one party to the education, training, or increased earning power of the other). ¶ 61. Ultimately, after considering each of the statutory factors, the circuit court concluded the "fairest" course was "to equalize the [parties'] incomes." Given Vang's annual income of $88,757 and Xiong's earning capacity of $15,080, the court determined "the equalizing number on an annual basis is $32,500, which translates into $2,708.33 a month from [Vang] to [Xiong]." ¶ 62. Vang argues the circuit court erroneously exercised its discretion in three respects. First, Vang asserts the court erred by attributing to Xiong an earning capacity of only $15,080. However, in making that finding, the court relied on the report of Xiong's vocational expert, John Birder. f 63. Birder noted that, during the previous fifteen years, the only work Xiong had performed outside the home was "at Sunrise Grocery],] which was an Asian grocery store she jointly owned with [Vang]." Birder observed Xiong "was essentially the only worker" in the store, aside from her children, and her duties "consisted of managing the daily operations such as stocking merchandise, ordering merchandise (using pictures with the salesmen), cleaning the premises, checking out customers (no scanning was performed), and using the register to determine change." Birder indicated Sunrise Grocery was a "small scale operation serving mostly the Asian population." He opined that, given Xiong's limited English language, skills, it was "highly unlikely she would be able to perform similar work in the general labor market." Birder therefore concluded Xiong's future employment opportunities were limited to "unskilled manual labor." He opined that, if Xiong were to acquire employment, "she would probably earn close to the 2016 minimum wage of $7.25 per hour and $15,080 annually." In light of Birder's report, the circuit court's finding regarding Xiong's earning capacity is not clearly erroneous. ¶ 64. Vang next argues the circuit court erroneously exercised its discretion by concluding it was not feasible that Xiong would, at any point, become self-supporting at a standard of living reasonably comparable to that she enjoyed during the marriage. Once again, however, Vang's argument on this point merely asserts that the court underestimated Xiong's earning capacity. We have already concluded the court's finding regarding Xiong's earning capacity is not clearly erroneous. f 65. Finally, Vang argues the circuit court erred by determining the parties were married for thirty-six years. He again asserts the court should have determined the parties were putatively divorced in 2005. We reject that argument for the reasons explained above at ¶¶ 51-52. ¶ 66. Vang also asserts that, "when considering the true length of the 'marriage,' one would have to consider that the parties separated in 2008, at the latest." However, the circuit court acknowledged during its oral ruling that the parties had been separated for a period of time before Xiong filed for divorce. The court stated, "I've weighed [that factor], and it's played in my decision." Ultimately, however, the court determined after weighing all of the statutory factors that it was nevertheless appropriate to equalize the parties' income and award Xiong maintenance for an indefinite period. "[T]he weight to be given to the relevant factors under the maintenance statute is committed to the [circuit] court's discretion." Metz v. Keener, 215 Wis. 2d 626, 640, 573 N.W.2d 865 (Ct. App. 1997). In this case, the circuit court did not erroneously exercise its discretion by determining that other factors— particularly Xiong's limited earning capacity and her contributions to Vang's education and career— outweighed the fact that the parties were separated for several years before Xiong filed for divorce. By the Court.—Judgment affirmed. Both Xiong and Vang are Hmong. We have previously explained that the Hmong are an indigenous ethnic minority that in the mid-twentieth century resided in the mountain regions of Southeast Asia, primarily northern Laos. See Chou Ly, The Conflict Between Law and Culture: The Case of the Hmong in America, 2001 Wis. L. Rev. 471, 473. Prior to their migration to Southeast Asia, the Hmong are believed to have resided in China as far back as five thousand years. Id. at 473 n.20. Hmong society was organized around extended families and large clans to which one owed great allegiance. Id. at 474. "For the most part, the Hmong were able to remain independent from the controlling Laotian government ...." Id. The Hmong are recognized as having their own unique cultural identity, language and customs. Although they existed within the geo-political boundaries of Laos, they had their own unique traditions. See id. Xiong ex rel. Edmondson v. Xiong, 2002 WI App 110, ¶ 4, 255 Wis. 2d 693, 648 N.W.2d 900. Xiong was apparently referring to a "baci" ceremony, which is "a ceremony to celebrate a special event, whether a marriage, a homecoming, a welcome, a birth, or [an] annual festival." See Lao Heritage Foundation, The Baci Ceremony, http://www. laoheritagefoundation.org/ceremonies/baci.jsp (last visited Sept. 27, 2017). The ceremony involves, among other things, tying strings around a person's wrist. See id. One of Vang's expert witnesses explained that the Hmong "borrow[ed]" the baci ceremony from Laotian culture after becoming involved in the Vietnam War. According to Xiong's divorce petition, Xiong was seventeen at the time of the marriage, and Vang was eighteen. Xiong objected to Samakkasetkorn's testimony, arguing it was inadmissible under the Daubert standard set forth in Wis. Stat. § 907.02 (2015—16). See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The circuit court reserved ruling on Xiong's objection and permitted Samakkasetkorn to testify. It appears the court never made a formal ruling on Xiong's objection. However, the court discussed Samakka-setkorn's testimony during its oral ruling on Vang's motion to dismiss and referred to him as an "expert." This suggests the court implicitly overruled Xiong's objection. All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted. Despite their shared surname, Yang Thai Vang confirmed that he is not closely related to Vang. The term "domiciliary" is defined as "[s]omeone who resides in a particular place with the intention of making it a principal place of abode; one who is domiciled in a particular jurisdiction." Domiciliary, Black's Law Dictionary (10th ed. 2014). Xiong asserts in her appellate brief that, rather than concluding the parties had a putative marriage, the circuit court should have simply determined they had a legally valid "cultural marriage" because their wedding ceremony was performed in accordance with "[t]he Hmong cultural tradition." We reject this argument for two reasons. First, Xiong cites no authority supporting the proposition that Wisconsin recognizes "cultural marriages" as legally valid. Second, Xiong's argument is inconsistent with our holding in Xiong. In that case, it was undisputed the parties took part in a marriage ceremony that "fully complied with Hmong traditional marriage rites." Xiong, 255 Wis. 2d 693, ¶ 6. However, rather than simply holding the parties' marriage was legally valid as a "cultural marriage," we determined their relationship should be accorded legal recognition under the putative marriage doctrine. Id., f 22. The circuit court expressly acknowledged during its oral ruling that the parties had offered "contradictory" testimony. The court therefore stated, "[M]y decision here today is based largely on my assessing the credibility of the witnesses, my watching their testimony, my assessing what they say and comparing it to what I'm reading in the documents." The deed in the record indicates the Richborough Road residence was purchased by "Lang C. Vang, a married individual," in December 2008. Patty Vang represented to the circuit court that she and Vang were married in 2005. The court concluded the student loan debt was a "marital debt" because it was incurred during the parties' marriage. Vang concedes on appeal that the student loan debt was "the responsibility of both parents." This is a question of law that we review independently. See Chen v. Chen, 142 Wis. 2d 7, 12, 416 N.W.2d 661 (Ct. App. 1987). We observe that, in treating the Richborough Road residence as the divisible property of Vang and Xiong, the circuit court failed to account for any interest Patty Vang may have in that property. However, Vang does not develop any argument on appeal that the court erred by failing to consider Patty Vang's potential interest. The circuit court denied Patty Vang's motion to join and/or interplead, and she did not appeal from that order.

2016-07-06 06:36:44.79915+00

Per Curiam

This is an appeal on questions of law from a judgment of the Municipal Court of Cincinnati in favor of defendant on his cross-petition and against plaintiff, appellant herein, on his petition. The plaintiff predicated his right to recover principally upon a written contract. The defendant claimed this contract was subject to amplification, interpretation, and explanation. *Page 49 The effect of the parol evidence admitted is to materially change the whole picture as far as the purchase price is concerned. The contract provided for payment of a price of $750 for fixtures listed in detail and $4,100 for various items of merchandise in a store owned by plaintiff and sold to defendant. The claim of the defendant is that, prior to executing the contract, it was orally agreed that the inventory price was tentative and that if the defendant, upon examination of the stock, found the inventory out of line, it would be corrected by plaintiff and adjustment made of price of merchandise. It is the claim of the defendant that the inventory, instead of showing $4,100, showed a value of only $3,009.83. It is the conclusion of the court that the value of the fixtures and the merchandise in the store were agreed upon in writing, and that the trial court erred in permitting the introduction of parol evidence to vary the definite terms of the contract, especially since such evidence related to conversations occurring prior to the execution of the contract in which such matters were integrated. As to the sale price — the agreed price was $4,850, of which the defendant paid $2,800 in cash, and gave a note for $200. The balance of $1,850 was to be taken out in trade by the plaintiff. In the contract, it is provided "balance of $1,850 (eighteen hundred and fifty dollars) to be taken out in purchases from the store in paints and wallpapers. When the above amount of $1,850 has been taken out in trade, the complete agreed purchase price will be paid in full. The $1,850 will carry 6 per cent interest per annum on the unpaid balance each month." Again, in the agreement it is provided: "(B) The balance of eighteen hundred and fifty *Page 50 ($1,850) dollars to be credited against purchases of merchandise which Anthony Marino agrees to make from time to time from the said R. G. Reidel in amounts of approximately one hundred ($100) dollars per month. Anthony Marino's account for purchases made shall be charged by the said R. G. Reidel at prevailing painters prices. Interest at six (6%) per cent per annum shall be payable on the unpaid balance until credit in the entire amount of eighteen hundred and fifty ($1,850) dollars shall have been given to Anthony Marino in the manner as herein provided." There is a conflict in the evidence as to whether such "painters prices" was wholesale price plus 10 per cent or retail price less 10 per cent, and the evidence is in conflict as to the quantity and quality of merchandise taken by the plaintiff. There is also some dispute as to the amount to be credited on the note of $200, executed by the defendant. For these reasons, the judgment of the trial court is reversed, and, as the evidence is conclusive that as a matter of law the parties had a specific contract covering the value of fixtures and merchandise, and as the evidence is also conclusive on the payment of $2,800 and the giving of a note for $200, the only matters open which the court cannot here determine are the quantity and value of the merchandise taken out by the plaintiff (which, in view of the language of the contract, "painters prices" will require evidence to identify), the amount of interest due upon the balance, and what credit defendant is entitled to on the $200 note. The cause is remanded to the trial court, solely for such determination. Judgment reversed. MATTHEWS, P. J., ROSS and HILDEBRANT, JJ., concur. *Page 51

2016-07-06 06:36:44.953021+00

Lynch

Defendant, appellant herein, filed a motion to permit the correction of the bill of exceptions by appending thereto excerpts from the closing argument of the prosecuting attorney, which included the following statement: "I believe that the defendant is guilty," to which counsel for defendant objected. Plaintiff, appellee herein, filed a motion to permit the filing of a complete bill of exceptions, because defendant had only filed a partial bill of exceptions consisting of part of the closing argument of the prosecuting attorney. Defendant contends that the above statement of the prosecuting attorney is per se prejudicial, while the prosecuting *Page 83 attorney contends that such statement should be considered in connection with the entire record. The statement of the prosecuting attorney to the jury on closing argument expressing his personal opinion or belief in the guilt of the accused in such a manner that the jury may understand that such opinion or belief is based on information or an investigation outside the evidence is misconduct highly prejudicial to the accused and is reversible error. State v.Thayer, 124 Ohio St. 1, 75 A. L. R. 48. However, if no objection is made to such statement, it is too late to raise the question for the first time in an appellate court. Where such court does not have before it the arguments to the jury of defendant and his counsel as well as the argument about which complaint is made for the first time in the Court of Appeals, such appellate court is not in position to say that it affirmatively appears from the record that the accused was prejudiced thereby, or was prevented from having a fair trial under the provisions of Section 2945.83, Revised Code. State v.Nevius, 147 Ohio St. 263. In the instant case, the record indicates that the prosecuting attorney based his opinion on the guilt of the accused solely on the evidence presented in the case, and counsel for defendant made timely objection thereto. The issue, then, is the propriety of such a statement under these circumstances. There is a division of authority as to the propriety of the prosecuting attorney expressing his personal opinion or belief as to the guilt of the accused when such opinion or belief is based solely on the evidence. The general rule is that it is permissible for the prosecuting attorney to argue or express his opinion or belief that the accused is guilty where he states, or it is apparent, that such opinion or belief is based solely on the evidence. Abney v. State, 20 Ohio Law Abs. 296; Jones v.State, 11 Ohio App. 441; Straub v. State, 5 C. C. (N.S.) 529, at pages 536-537, 27 C. D. 50; 23A Corpus Juris Secundum 195, Criminal Law, Section 1104; 50 A. L. R. 2d 775. *Page 84 However, there are Ohio Court of Appeals decisions that state that a prosecuting attorney is not entitled to express his personal belief in the guilt of the accused. State v. Young,7 Ohio App.2d 194, at page 197; State v. Cloud, 112 Ohio App. 208; Weitz v. State, 48 Ohio App. 421. The members of this court are inclined to follow the general rule, that it is permissible for the prosecuting attorney to argue or express his opinion or belief that the accused is guilty where he states, or it is apparent, that such opinion is based solely on the evidence. However, in view of the present situation of Ohio law on this issue, we hold that where the prosecuting attorney makes a statement to the jury on closing argument expressing his personal opinion or belief in the guilt of the accused based solely on the evidence presented in the case, an examination of the entire record in the case, including the closing argument of the counsel for accused, must be made to determine whether such statement is prejudicial. The motions of defendant and plaintiff as to supplemental bill of exceptions are sustained. Motions sustained. O'NEILL and JOHNSON, JJ., concur. *Page 85

2016-07-06 06:36:45.332404+00

Ross

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, affirming a judgment of the Municipal Court of Cincinnati, in favor of the plaintiff. The plaintiff, a corporation engaged in the business of owning and operating an elaborate jewelry store in the heart of the business district of the city of Cincinnati, accepted a check drawn by the defendant in payment of a thirty-dollar purchase and gave the person presenting and endorsing the check $119.25, the difference between the amount of the purchase, plus tax, and $150, the face value of the check. When the check was presented through channels to the drawer's bank for credit it was found that payment had been stopped by the drawer. The plaintiff now brings this action against the drawer of the check to recover the sum of $150, plus interest and costs. The answer was essentially a general denial. It appears from the evidence that the defendant was induced to give the check in question to a person who represented herself to be "Sarah McMillan," who was accompanied by another woman. Shortly after such person with her companion had left with the check it was discovered that the consideration for the check did not exist and that the representations made by the women inducing the defendant drawer to part with the check were wholly false and fraudulent. The check was given to the woman representing herself to be "Sarah McMillan" at the request of her companion, late Friday afternoon after banking hours. Payment was stopped on the check by the defendant drawer at the opening of the drawee bank on Saturday *Page 469 morning, the next day following. That same Saturday afternoon, after the close of banking hours, two women entered the store of the plaintiff and made a purchase of a pen priced at $30. One of the women represented to the saleslady that she was "Sarah McMillan" and tendered the defendant's check for $150 to the saleslady in payment of her purchase, endorsing the check in the latter's presence, "Sarah McMillan, William H. Taft Road." It is admitted by all concerned that the person so endorsing the check and tendering it as "Sarah McMillan" was not the person to whom the check was given by the drawer, as "Sarah McMillan." Nor was such endorser present when the check was given to "Sarah McMillan." The payee of the check receiving the check from the drawer defendant, understood by the drawer to be "Sarah McMillan" in no way resembled the endorser of the check from whom the plaintiff's employee received the check. This endoser identified herself to the saleslady by presenting a "billfold," containing a photograph, a driver's license, containing the signature "Sarah McMillan," and "other documents." The "billfold" and its contents were taken to the manager of the store, who authorized acceptance of the check after examination of its contents, and glancing at the endorser. No other attempt was made by the plaintiff's employees to ascertain whether the person, to whom was given the merchandise and the balance of the amount of the check, was the actual payee intended by the drawer. The trial court found as a fact that the companion of the payee at the time the check was delivered by the drawer was the companion of the person who represented herself to be "Sarah McMillan" to the plaintiff's employees, and who endorsed the check, but that *Page 470 the recipient of the check from the drawer was not present in plaintiff's store at the time plaintiff made payment thereon. In other words, the companion of the real payee was also the companion of the endorser of the check who received the value of the check in merchandise and cash from plaintiff's employees. There was other evidence introduced indicating that this "companion" was present at other times and places when other checks given by the drawer defendant to the payee "Sarah McMillan," coincident with delivery of the $150 check herein involved, were cashed by storekeepers, but that these women impersonating the payee were different in each case. If the plaintiff had paid value upon the endorsement of the actual payee of the check, it would have been protected as a holder in due course. 10 Corpus Juris Secundum, 1089, Bills and Notes, Section 494 b; 8 American Jurisprudence, 314, Bills and Notes, Section 602. See Continental-American Bank Trust Co. v. United States,161 F.2d 935; Schweitzer v. Bank of America, 42 Cal. App. 2d 536, 109 P.2d 441. The fact remains that the plaintiff did not pay to the actual intended payee of the check, who may have been an impostor. Nothing that the drawer did can be construed as an act misleading the plaintiff into paying to a person other than the real payee. It is almost inconceivable that astute persons engaged in business, daily dealing with the public, conscious of the prevalence of persons who prey upon the credulity of citizens, could pay a woman entirely unknown, the proceeds of a check, presented after banking hours when it was impossible to check the validity of the instrument presented, and with but a cursory examination of papers, easily forged, which *Page 471 might or might not identify such person. The presence of signs in many establishments upon which is stated "No checks cashed here" indicates that not all persons engaged in business are so credulous. The law requiring payment to the actual person, whom the drawer intends and designates in a check as payee is well established.Beattie v. National Bank of Illinois, 174 Ill. 571,51 N.E. 602, 66 Am. St. Rep., 318, 43 L.R.A., 654. In this case it is stated at pages 575 and 576: "Nothing is better settled than that a forged indorsement does not pass title to commercial paper negotiable only by indorsement, and does not justify the payment of such paper. Here, whether the indorsement of the payee's name was technically a forgery, or was merely a spurious and false indorsement, in either case it was inoperative to change the title to the instrument. (Graves v. American Exch. Bank, 17 N.Y. 205.) InGraves v. American Exch. Bank, supra, it was held that the drawee of a bill of exchange is bound to ascertain that the person to whom he makes payment is the genuine payee, or is authorized by him to receive it; that it is no defense against such a payee that the drawee, in the regular course of business with nothing to excite suspicion, paid the bill to a holder in good faith and for value under an indorsement of a person bearing the same name as the payee. There it was said by the court: `The defendants, on whom the draft was drawn, paid it upon the indorsement of another Charles F. Graves, residing at or near La Salle, who wrongfully took it from the post-office at Mendota. Such a payment, although made in good faith, did not divest or impair the title of the owner who had not seen or indorsed the paper.' In Mead v. Young, 4 T.R., 28, the action was brought by *Page 472 the indorser of a bill of exchange against the acceptor, the bill having been drawn by one Christian on the defendant in London, payable to Henry Davis or order; and having been put into the foreign mail, inclosed in a letter from Christian, it got into the hands of another Henry Davis than the one in whose favor it was drawn. The defendant accepted the bill, and it was discounted by the plaintiff. It was held that it was competent for the defendant to prove that the person who indorsed to the plaintiff was not the real payee, though he was of the same name, and though there was no addition to the name of the payee on the bill; and it was also held that if a bill of exchange payable to A or order got into the hands of another person of the same name with the payee, and such person, knowing that he was not the real person in whose favor it was drawn, indorsed it, he was guilty of a forgery. In that case Ashhurst, J., said: `In order to derive a legal title to a bill of exchange, it is necessary to prove the handwriting of the payee, and therefore, though the bill may come by mistake into the hands of another person, though of the same name with the payee, yet his indorsement will not confer a title.' In the same case Buller, J., said: `I am of opinion that it is incumbent on a plaintiff who sues on a bill of exchange, to prove the indorsement of the person to whom it is really payable. * * * Now, here it is clear that the indorsement was not made by the same H. Davis to whom the bill was made payable, and no indorsement by any other person will give any title whatever.'" In Cohen v. Lincoln Savings Bank of Brooklyn, 275 N.Y. 399, at pages 405 and 406, 10 N.E.2d 457, 112 A.L.R., 1424, it is stated: "The rule that the payee of the check is the particular *Page 473 person who was intended by the drawer to be the payee can hardly be questioned. The name by which he is designated is merely the tag by which the intended person may be identified. A person, though bearing that name, if not the person intended, has no title to the check and cannot indorse or transfer title to it.(Graves v. American Exchange Bank, 17 N.Y. 205.) When an instrument is made `payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable,' the instrument is payable to bearer. (Negotiable Instruments Law, Section 28, subd. 3.) Even before the Negotiable Instruments Law was adopted, a bill payable to a fictitious payee was payable to bearer without being indorsed by the maker or the person to whom it was delivered. (Plets v. Johnson, 3 Hill, 112;Central Bank of Brooklyn v. Lang, 1 Bosw., 202; Irving Nat. Bank v. Alley, 79 N.Y. 536.) When the instrument is payable to the order of a fictitious or nonexistent person, and the person making it so payable has been induced to believe that he is describing an existing person as payee, no other person can acquire any right or title to the instrument. (United CigarStores Co. v. American Raw Silk Co., 184 A.D. 217; affd.,229 N.Y. 532; Shipman v. Bank of State of New York, 126 N.Y. 318. ) "Every valid instrument which is not payable to bearer must be payable to a determinate payee and where it appears that the maker intended a particular person to be the payee, the payee so intended even though designated by a wrong name and even though he induced the maker to deal with him through fraudulent misrepresentation as to his responsibility, character or name, is the real payee and can by indorsement transfer title to the instrument. `Although one *Page 474 may be deceived as to the name of the man with whom he is dealing, if he dealt with and intended to deal with the visible person before him the check may properly be indorsed by the impostor.' (Halsey v. Bank of New York Trust Co., supra, p. 139.)" We are concerned here with a payer of a check asserting that it is a holder in due course, but upon an admittedly forged endorsement. The endorser of the check was not the actual payee of the check intended by the drawer to be such payee. In such case, where a person other than the actual payee of a check endorses the same, even though bearing rightfully the name of the payee, the endorsement is ineffective to pass title to a payer and constitute him a holder in due course. In 8 American Jurisprudence, 319, "Bills and Notes," Section 605, it is stated: "Thus, where a bill is payable to the order of a person, and another person of the name of the payee obtains possession of it and indorses it to a party who takes it in good faith and for value, such party acquires no title to the bill. If the indorsement so made by a person who is not the real payee, but has the same name as the real payee, is made by such person with full knowledge that he is not the real payee, and with intent to perpetrate a fraud, his indorsement cannot be regarded otherwise than as a forgery." In Home Indemnity Co. v. State Bank of Fort Dodge, 233, Iowa, 103, at page 157, 8 N.W.2d 757, it is stated: "As noted in American Sash Door Co. v. Commerce Trust Co.,supra, 332 Mo., 98, 121, 56 S.W.2d 1034, 1044, checks put in circulation often pass through many hands, and the drawer is not expected to verify the endorsements. `On the other hand, the bank by *Page 475 the simple expedient of requiring the last indorser to be identified and responsible, can protect itself.' The bank may require that the holder furnish it security or guaranties to protect it from any loss. As said in Hays v. Lowndes Sav. Bk. Tr. Co., 118 W. Va. 360, 366, 190 S.E. 543, 545 [quoting fromCitizens Nat. Bk. v. Reynolds, 72 Ind. App. 611, 615,126 N.E. 234, 236]: "`For its own protection the bank may go further. It may refuse payment until the stranger brings in a person whom the bank knows to be financially responsible and who is willing to become an indorser.' "Section 9483 of the 1939 Code is simply a statutory embodiment of a rule of the `law merchant' evidenced by judicial decisions from the early English courts down through the years. In Tatlock v. Harris, 3 T.R., 174, 181, Lord Kenyon said: "`* * * there is no doubt, but that the endorsee of a bill of exchange, payable to order, must in deriving his title, prove the hand-writing of the first endorser.' "A forged endorsement nullifies the instrument as to all parties against whom the forgery is committed. The doctrine of bona fides does not apply to such a holder. He acquires no interest in it, although he may be ignorant of the forgery. The moment such a draft or check is paid by the drawee, the holder becomes liable as for money had and received. As a corollary to this rule, the holder of a check payable to order must trace his title through genuine endorsements, including that of the payee. See 8 American Jurisprudence, Bills and Notes, 318, 319, Sections 604, 605; Citizens Nat. Bk. v. City Nat. Bk., supra, 111 Iowa 211,216, 82 N.W. 464; annotation, 67 A.L.R., 1535 et seq." In 10 Corpus Juris Secundum, 1087, "Bills and Notes," Section 494, it is stated: *Page 476 "One acting on an indorsement must ascertain its genuineness at his own risk; and, where indorsement is essential to recovery, there can be no recovery if it was forged. So forgery of the payee's name is a defense in a holder's action against the payee, maker, or drawer; and a payee whose name has been forged may in proper circumstances recover from the drawer, drawee, or indorsee." See, also, c at page 1090, Id.; and Midland Acceptance Corp. v.Saunders, 50 Ohio App. 123, 197 N.E. 589. It is true the drawer through negligence may mislead the payer and in such case the drawer is liable to the payer, even though the endorsement may be a forgery by a person bearing the same name as the payee. See Weisberger Co. v. Savings Bank, 84 Ohio St. 21,95 N.E. 379, 34 L.R.A. (N.S.), 1100. This case is cited in 10 Corpus Juris Secundum, 1090, supra. In no way did the drawer in the instant case lead the payer to believe that the endorser who forged the payee's name had any right to so endorse the check or attempt to pass title thereto. The Common Pleas Court sustained its conclusion affirming the judgment of the Municipal Court in favor of plaintiff upon the basis of conspiracy, and authority in the endorser to sign for the real payee, and the "one of two innocent persons" rule. It must be remembered that as far as the actual payee is concerned, the evidence is silent as to what became of her. It requires the employment of conjecture to account for the presence of the check in the hands of the endorser accepted by plaintiff. It is true the "companion" was present, but how, or by what means she secured the check from the actual payee may be only surmised. There is no evidence of either conspiracy *Page 477 or authority. Were the loss to be thrown upon the defendant drawer, it would seem that the gross negligence of the plaintiff in paying such an amount as is herein involved to two strange women on the slightest identification, after banking hours on Saturday afternoon, to a person not the actual payee, would do violence to all the rules applicable to negotiable instruments. Certainly, the use of customary care in requiring introduction and identification of the endorser by a mutual acquaintance, as before noted, would have, to some degree at least, indicated care tending to secure the plaintiff from loss. The absence of the actual payee from this drama is a matter of speculation. The record in this case fails to show any ground for relief in the plaintiff under the provisions of Section 8128 of the Ohio Code of Negotiable Instruments. This section provides: "When a signature is forged or made without authority of the person whose signature it purports to be, it is wholly inoperative. No right to retain the instrument, give a discharge therefor, or to enforce its payment against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority." The "one of two innocent persons" rule has no application to these facts. This rule is based upon estoppel. The drawer did nothing to induce the payer to accept a forged endorsement, as has been said hereinbefore. That action was predicated entirely upon the credulity of the plaintiff payer, who failed to use the necessary precaution available to it. An examination of the record shows no evidence upon which the plaintiff was entitled to recover, and the judgment of the trial court should have been rendered *Page 478 for the defendant in response to the motion of the defendant made at the conclusion of all the evidence. Judgment may be here rendered for the defendant. Judgment reversed. MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur in the syllabus, opinion and judgment.

2016-07-06 06:36:45.508133+00

CbaweoRD

Plaintiff, appellant herein, filed his petition in the Municipal Court of Miamisburg pursuant to Section 4511.191(F), Revised Code, to avoid the suspension, *Page 161 by the Registrar of Motor Vehicles, of his license to drive, for refusing to take a chemical test for alcohol. The petition alleges that the arresting officer failed properly to advise him pursuant to statute regarding the test. His particular complaint is that he was not advised, as provided in Section 4511.19, of his right to have a physician, technician, chemist, registered nurse, or other qualified person of his own choosing administer an additional chemical test or tests. In the judgment appealed from the court found: that the plaintiff was not advised of this right; but that he had failed, as required in Division (G) of Section 4511.191, Revised Code, to show error in one or more of the matters set forth in Division (F) of that statute. The court ordered his license suspended. The prosecuting attorney concedes that the result of a test, conducted without the accused person being advised of his right to an additional test as provided in Section 4511.19, would be suppressible upon his prosecution for driving while intoxicated, but he contends that this requirement is not applicable in the matter of the registrar's revocation of the accused's license. This distinction is, in our opinion, untenable. If the result of the test is not to be used, why give it? Sections 4511.19 and4511.191, Revised Code, are in pari materia. The right to be advised, as provided by Section 4511.19, is stated in absolute terms and is not to be taken away by Section 4511.191. The commendable purpose of all this legislation is the prosecution and punishment of drunken drivers. We have heretofore observed that the only proper use of the chemical test is to discover and prove the truth of a driver's suspected intoxication or his sobriety; and that the test is not the end and object of the statute. Groff v. Rice (1969), 20 Ohio App. 2d 309. The revocation of a license by the registrar is the imposition of a penalty, without the requirement of a conviction in court. The double standard contended for by the registrar would give him wider power than the courts. *Page 162 It is not our purpose to declare these statutory provisions unconstitutional. But in order for us to avoid holding them invalid, it is necessary to reconcile them with each other and to give effect to all. If the person under arrest is to be held to have refused to submit to the test mentioned in Section4511.191(F), he must have refused knowingly and intelligently, after being advised of his right to have a physician, etc., of his own choosing administer an additional test or tests as provided in Section 4511.19. In a case similar to this, Bores v. Rice, Registrar (1969),17 Ohio Misc. 163, at page 164, the court said: "The court finds that Mr. Bores' right to be advised of and to have his own physician administer a sobriety test is mandatory withn the meaning of Section 4511.19, Revised Code. The court further finds that this question can be raised at this hearing although not one of the grounds listed in Section4511.191, Revised Code. The only manner in which the court can enforce police compliance of a defendant's rights under Section4511.19, Revised Code, is to order restoration of his license when there is noncompliance. To hold otherwise would, in effect, deny a defendant remedy for a violation of his rights." The judgment will be reversed, and the cause remanded to the Municipal Court with instructions to enter judgment for the plaintiff. Judgment reversed. KERNS, P. J., and SHERER, J., concur. *Page 163

2016-07-06 06:36:45.608831+00

Palmer

Defendant-appellant, Ronald Gingell, was indicted on May 19, 1981, by a Hamilton County Grand Jury *Page 365 on three counts of rape of a child less than thirteen years of age in violation of R.C. 2907.02(A)(3), for a series of incidents in which defendant was alleged to have engaged in sexual conduct, as defined in R.C. 2907.01(A), with his eight-year-old stepdaughter, Tracy. More particularly, count one of the indictment averred that during the period December 1, 1979 to May 31, 1980, defendant purposely compelled Tracy by force or threat of force to submit to sexual activity. Similarly, count two recited the identical offense, but averred that this offense occurred sometime between May 31 and September 30, 1980; and, finally, count three averred that the offending sexual activity was committed sometime between October 1, 1980 and February 3, 1981. In response to defendant's subsequent motion for a bill of particulars, the state further disclosed that the evidence at trial would demonstrate that the respective time periods set forth in each count corresponded to the times during which defendant lived at three separate residences, all within Hamilton County, and that at each such residence defendant purposely compelled his stepdaughter to submit to oral and vaginal intercourse, as well as certain other sexual contact. Defendant's timely motion to dismiss the indictment on the grounds that the inexactitude in times and dates of the alleged offenses violated his constitutional rights to a fair trial by failing to provide adequate notice was overruled, and the cause proceeded to trial before the court upon his plea of not guilty. Following an extensive voir dire examination of Tracy, the court concluded that she was competent to testify at trial, following which Tracy described on direct examination, credibly and graphically, several instances of sexual activity with defendant at each of the locations. For his part, defendant denied the accusations, stating specifically that he had never been in the bedroom of any of the residences alone with Tracy, a defense that was generally corroborated by defendant's wife. On rebuttal, the state presented the testimony of Tracy's seven-year-old brother who contradicted the testimony of defendant by asserting that defendant had, in fact, been in the bedroom with Tracy on several occasions at each residence while his mother was at work. Following closing arguments, the court found defendant guilty of each count charged in the indictment, sentenced him to serve three consecutive terms of four to twenty-five years in the state penitentiary and entered judgment accordingly. From this judgment, defendant has taken this timely appeal in which he asserts two assignments of error. In his first assignment of error, defendant contends that the judgment of the trial court was against the manifest weight of the evidence. In this regard, defendant challenges the verdict on the specific ground that it was based in large measure on the uncorroborated testimony of the child-victim. We disagree. In the first instance, there exists no requirement, statutory or otherwise, that a rape victim's testimony be corroborated as a condition precedent to conviction. See, e.g., State v. Tuttle (1903), 67 Ohio St. 440; Butler v. State (App. 1926), 4 Ohio Law. Abs. 236; State v. Moore (C.P. 1956), 74 Ohio Law. Abs. 116. Moreover, it is apparent that key circumstantial corroboration of the victim's evidence was in fact presented by the state in the testimony of the victim's younger brother. Thus, the record in the instant case clearly reveals that the court had before it substantial and credible evidence of probative value from which it could reasonably conclude beyond a reasonable doubt that defendant had, on three separate occasions, engaged in sexual conduct with a child under thirteen years of age, as charged in the indictment and in contravention of R.C. 2907.02(A)(3). See,e.g., State v. Collins (1977), 60 Ohio App. 2d 116 [52 Ohio Op. 97]; *Page 366 State v. Phillips (1951), 90 Ohio App. 44 [46 Ohio Op. 343]. Under such circumstances, it is quite clear that it is not the province of this court to disturb that finding by substituting its judgment for that of the finder of fact. E.g., State v. Eley (1978), 56 Ohio St. 2d 169 [10 O.O.3d 340]; State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O.2d 366]. The first assignment of error is without merit and is accordingly overruled. In his second assignment of error, presenting the principle challenge of this appeal, defendant disputes the trial court's refusal to dismiss the indictment on the grounds that neither it nor the bill of particulars sufficiently alerted defendant to the specific dates and times upon which the charged offenses were alleged to have occurred. Specifically, defendant contends that while neither Crim. R. 7(B) nor R.C. 2941.08(B) mandates that precise time averments be contained in an indictment, the failure to provide such exactitude under the instant facts deprived him of his constitutional rights to due process of law under theSixth and Fourteenth Amendments to the United States Constitution as well as Section 10, Article I of the Ohio Constitution. For the reasons stated herein, we disagree. At the outset, it must be noted that this court has very recently reaffirmed the time-honored and well-established principle enunciated in Tesca v. State (1923), 108 Ohio St. 287, that averments of the exact time and date of an alleged offense are unessential to an indictment. See State v. Elliott (Oct. 6, 1982), Hamilton App. No. C-810685, unreported. In Elliott, this court affirmed the conviction of a defendant charged with several counts of rape, despite the fact that the indictment had been amended to enlarge the time period during which the crimes were allegedly committed, on the dual grounds that the accused failed to request a bill of particulars demanding temporal specificity and that such amendment did not in any event offend the applicable statutory authority contained in Crim. R. 7(B) and R.C. 2941.08(B). In the instant case, a somewhat different question is posed. Unlike Elliott, we are not presented with a question as to the appropriateness of an amendment to an indictment or a challenge predicated upon purely statutory grounds. Moreover, defendant in the instant case moved for and received a bill of particulars from the state, a fact of some consequence to the Elliott court. We are rather presented with the question of whether, under the instant circumstances, the accused was denied his constitutional rights to due process of law when compelled to stand trial on the basis of an indictment and bill of particulars which averred merely that the alleged offenses occurred during broadly specified intervals over a fourteen-month period. Under the respective provisions of the Ohio and United States Constitutions, an individual accused of a felony is entitled to an indictment setting forth the "nature and cause of the accusation." See, e.g., Wong Tai v. United States (1927),273 U.S. 77; State v. Davis (1978), 60 Ohio App. 2d 355 [14 O.O.3d 315]; Dinsmore v. Alvis (1950), 88 Ohio App. 32 [43 Ohio Op. 397]. These provisions are designed to compel the government to aver all material facts constituting the essential elements of the offense so that the accused may not only have adequate notice and an opportunity to defend, but also to protect himself from any future prosecution for the same offending conduct. E.g., Harris v. State (1932), 125 Ohio St. 257; State v. Hearn (1926),115 Ohio St. 340; State v. Joseph (1926), 115 Ohio St. 127; Furman v.State (1918), 10 Ohio App. 157. It is not, however, necessary that an indictment contain a recitation of the evidence supporting the various facts; it is enough that the indictment contains language sufficient to alert the person named therein that certain generally specified conduct constitutes a violation of an existing statute. E.g., State v. *Page 367 Yudick (1951), 155 Ohio St. 269 [44 Ohio Op. 269]; State v. Hahn (1938), 59 Ohio App. 178 [11 Ohio Op. 560]. See, also, State v.Zaras (1947), 81 Ohio App. 152 [35 Ohio Op. 460]. Under this rubric, then, an averment of the precise date and time of an offense generally need not be included in an indictment, since, generally, precise times or dates are not essential elements of offenses. As the United States Supreme Court noted in Glasser v. United States (1942), 315 U.S. 60, 66: "The particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy for which petitioners contend is not essential to an indictment." See, also, White v. Maxwell (1963), 174 Ohio St. 186 [22 O.O.2d 141]; Tesca v. State, supra; State v. Porcaro (1956), 102 Ohio App. 128 [2 O.O.2d 122]. Thus, while it may (under circumstances hereinafter discussed) become mandatory for the state at some appropriate point to give specific times or dates where it is necessary in order to permit an accused to prepare an adequate defense or to put the accused on notice of which particular act is alleged to constitute the charged offense, failure to provide dates and times in an indictment does not, of itself, provide a basis for dismissal of the charges. Rather, as the Glasser court noted, securing such specificity of detail, where necessary or desirable, falls more appropriately to the role occupied in our practice by the bill of particulars. Glasser, supra, at 66. See, also, White v. Maxwell, supra, at 187-188; State v. Porcaro,supra, at 132. It is, therefore, to the sufficiency of this supplementary document which we now direct our attention. A bill of particulars is designed to provide the accused, upon proper demand, with greater detail concerning the nature of the offense charged and of the criminal conduct alleged to constitute the offense, and is appropriately supplied where the indictment, although legally sufficient in describing the elements of the charged offense, is so general in nature that the accused is not given a fair and reasonable opportunity to prepare his defense.E.g., State v. Petro (1947), 148 Ohio St. 473 [36 Ohio Op. 152];State v. DeRighter (1945), 145 Ohio St. 552 [31 Ohio Op. 194]; State v. Clay (1972), 29 Ohio App. 2d 206 [58 O.O.2d 364], affirmed (1973), 34 Ohio St. 2d 250 [63 O.O.2d 391]. It is elementary that averments in a bill of particulars may not be used to cure fundamental defects in an indictment; on the contrary, it is granted by the trial court, in the exercise of its sound discretion, for the limited purpose of elucidating or particularizing the conduct of the accused alleged to constitute the charged offense. E.g., State v. Halleck (1970), 24 Ohio App. 2d 74 [53 O.O.2d 195]; State v. Dinsio (1964), 4 Ohio App. 2d 309 [27 O.O.2d 353]; State v. Coterel (1953), 97 Ohio App. 48 [54 Ohio Op. 38]. Like an indictment, however, a bill of particulars is not designed, and ought not to be used, to provide the accused with specifications of evidence or to serve as a substitute for a proper demand for discovery of the state's evidence. E.g., State v. Wilson (1972), 29 Ohio St. 2d 203 [58 O.O.2d 409]; State v.Clay, supra; State v. Cron (1967), 14 Ohio App. 2d 76 [43 O.O.2d 201]. See, also, State v. Chaffin (1972), 30 Ohio St. 2d 13. Thus, an accused is entitled to a bill of particulars when the facts of a particular case, as they impinge upon his ability to conduct his defense, require it, and then need only be directed toward the conduct of the accused as it is understood by the state to have occurred. Ordinarily, specifications as to date and time would not be required in a bill of particulars since such information does not describe particular conduct, but only when that conduct is alleged to have occurred, knowledge of which — as we have seen — is generally irrelevant to the preparation of a defense. Nevertheless, even though such temporal information is generally irrelevant in preparing a defense, we think the rule should be that the state ought to supply *Page 368 specific dates and times where it possesses such information, and probably when it is requested by a bill of particulars, but certainly when it is demanded in discovery procedures. No door, however remote and uncertain, ought to be closed to an accused engaged in the task of preparing a defense to a criminal charge. Clearly it is wisest to err on the side of openness and disclosure. The real problem arises in cases, like the present, where the state is simply unable to comply with times and dates more specific than those found in the instant indictment. With all the best will in the world, information more specific and particular about when the incident occurred cannot be secured. The circumstance is not by any means unusual: it may arise when a decayed body is discovered in a woods, obviously dead of criminal agency but with no forensic or other means of discovering the precise date or time of death; it may arise, as here, because the only witnesses to the event are of tender years, unsophisticated or unlearned in applying a calendar date to an observed or experienced event. Criminal acts are commonly hidden, surreptitious, disguised, and come ultimately to light adventitiously and incompletely revealed. Experience and common sense tell us that a certain degree of inexactitude of averments,where they relate to matters other than elements of the offense, is not per se impermissible or necessarily fatal to a prosecution. Such unavoidable inexactitude may indeed prove fatal to a prosecution, but that depends, it seems to us, upon a determination of whether the absence of specifics truly prejudices the accused's ability fairly to defend himself. An example may serve the point: Suppose, in the instant case, that the child Tracy had been twelve years old, verging on thirteen, instead of her actual eight years. Under such circumstances, specific dates of sexual conduct might well have become critical to the accused's ability to prepare a defense, since sexual conduct toward one thirteen years of age or older would not constitute the offense of rape as defined in the charged section of the criminal code, R.C. 2907.02(A)(3). Or, suppose that the defendant had been imprisoned or was indisputably elsewhere during part but not all of the intervals of time set out in the indictment. Again, under such circumstances, the inability of the state to produce a greater degree of specificity would unquestionably prejudice the defense. While it seems that such prejudice would usually become manifest, at the earliest, at the conclusion of the defendant's case and under a Crim. R. 29 motion for dismissal, rather than at the indictment or bill of particulars stage, the particular point is unnecessary to decide. Where, however, the inability to produce a specific time or date when the criminal conduct occurred is, as would be the more usual case, without material detriment to the preparation of a defense, the omission is without prejudice, and without constitutional consequence. Applying these principles to the instant case, we note that the indictment charged defendant with three separate acts of rape, alleged to have occurred during a fourteen-month period at three separate residences in Hamilton County. Upon timely and proper demand, the state provided defendant with a bill of particulars which averred further that in each of these locations defendant compelled his eight-year-old stepdaughter to engage in sexual activity, such conduct alleged to consist of defendant securing the victim in his bedroom, removing her clothing, and forcing her into bed, where, on various occasions, he inserted his fingers into her rectum, and forced her to submit to oral and vaginal intercourse. As can be seen, the indictment was clearly sufficient in that it charged defendant with conduct which, if proved, would constitute the offense. In similar fashion, the bill of particulars quite properly provided *Page 369 a description of the particular conduct constituting the charged acts of sexual abuse. Thus, defendant was informed of the nature of the offense and conduct of the accusation. Nothing more is contemplated by the statutes and criminal rules of this state. Moreover — and directly to the point raised by appellant — a careful reading of the record reveals nothing growing out of the time intervals set out in the indictment which could be said to have violated or prejudiced defendant's ability to defend himself. The instant case is not one akin to the examples above, in which the nature of the accused's defense made critical the date and time of the alleged criminal conduct. We conclude, therefore, that no constitutional rights of defendant to due process of law and to a fair trial were transgressed in the instant proceedings. Having thus been afforded an adequate and fair opportunity to defend the charges against him and to protect himself against any future prosecution for the same conduct, we overrule the second assignment of error. The judgment is accordingly affirmed. Judgment affirmed. DOAN and KLUSMEIER, JJ., concur.

2016-07-06 06:36:45.832042+00

OPINION Plaintiffs-appellants Martin S. Goldberg, Martin S. Goldberg Co., L.P.A., Albert J. Ortenzio, Asher Zeev Rabinowitz, M.D., Richard Alan Ginsburg, D.D.S., Stanley H. Bushkoff, M.D., Orthopedic Associates of Pittsburgh, Inc., and Profit Sharing Plan of Stanley H. Bushkoff, M.D. (collectively known as appellants) appeal the decision of the Mahoning County Common Pleas Court granting defendants-appellees' James H. Cohen, Michele Cohen, Kassko, Inc., T.M.C. Investors II, T.M.C. Investors, III, T.M.C. Investors, IV, and T.M.C. Investors, V (collectively known as appellees) motion to dismiss the complaint pursuant to Civ.R. 12(b)(6). This court is asked to determine whether the statute of limitations enumerated in R.C. 2305.09 or the statute of limitations enumerated in R.C. 1707.43 applies to the claims raised by appellants. Appellants claim that appellees provided false and misleading prospectuses and made false and misleading oral statements that appellants relied on in purchasing limited partnership units and common stock in appellees corporation and limited partnerships. We hold that the statute of limitations in R.C.1707.43 applies, not the statue of limitations in R.C. 2305.09. As such, the decision of the trial court is affirmed. FACTS James Cohen was the president and sole shareholder of Kassko, Inc. Kassko, Inc. is the general partner in T.M.C. Investors II, T.M.C. Investors, III, T.M.C. Investors, IV, and T.M.C. Investors, V (collectively known as T.M.C.). Between 1985 and 1992, each appellant purchased differing quantities of limited partnership units in T.M.C. for differing prices. This amounted to the purchase of almost 21 limited partnership units in T.M.C. for $387,838.01. James Cohen is also the director and controlling shareholder of T.M.C. T.M.C. was in the process of producing a super computer and artificial intelligence. In 1991, three appellants, Martin S. Goldberg, Stanley H. Bushkoff, M.D., and Albert J. Ortenzio, each purchased 1,000 shares of T.M.C. common stock for $25,000. Appellants claim that prior to the purchase of the units and stocks, appellees supplied them with misleading prospectuses. Appellants claim appellees made false and misleading oral statements regarding the units and stocks. Appellants claim they were told that the limited partnerships were formed for the sole purpose of investing in T.M.C. and were going to invest solely in T.M.C. They also claim they were told that T.M.C. was going to go public immediately and it was making tremendous progress. Appellants claim all these false statements were used to induce them to buy the units and stocks. In August 1994, T.M.C. filed for bankruptcy. Appellants filed their complaint on December 6, 1996. Appellees filed a Civ.R. 12(b)(6) motion to dismiss claiming that the statute of limitations had expired on the claims presented. On February 21, 2001, the trial court applying the statute of limitations set forth in R.C. 2305.09, granted the motion to dismiss based upon the expired statute of limitations in R.C. 2305.09. This timely appeal followed. ASSIGNMENTS OF ERROR Appellants raise two assignments of error. These assignments of error will be addressed together since both are predicated on which statute of limitations is applicable to the claims asserted. These assignments contend: "WHETHER THE TRIGGERING EVENT FOR STATUTE OF LIMITATIONS DISCOVERY RULE PURPOSES MUST BE CAUSED BY THE UNDERLYING MISCONDUCT." "WHETHER THE STATUTORY SECURITIES FRAUD STATUTE OF LIMITATIONS IN R.C. 1707.43 APPLIES TO OTHER CLAIMS WHICH ARE NOT BROUGHT UNDER R.C. CHAPTER 1707." An appellate court reviews a motion to dismiss de novo. Greeley v.Miami Valley Maintenance Constr., Inc. (1990), 49 Ohio St. 3d 228, 230. Dismissal of a claim pursuant to Civ.R. 12(B)(6) is appropriate only where it appears beyond a doubt that the plaintiff can prove no set of facts in support of his/her claim that would entitle him/her to relief.In Defense of Deer v. Cleveland Metroparks (2000), 138 Ohio App. 3d 153,160, citing O'Brien v. Univ. Community Tenants Union, Inc. (1975),42 Ohio St. 2d 242, syllabus; York v. Ohio State Hwy. Patrol (1991),60 Ohio St. 3d 143, 144. In reviewing the complaint, the court must presume all factual allegations contained in the complaint to be true and make all reasonable inferences in favor of the nonmoving party. Mitchellv. Lawson Milk Co. (1988), 40 Ohio St. 3d 190, 192. Affirmative defenses such as statute of limitations are generally not properly raised in a Civ.R. 12(B)(6) motion because they usually require reference to material outside the complaint. Steiner v. Steiner (1993),85 Ohio App. 3d 513, 518. However, an exception to the general rule exists when the bar is apparent from the face of the complaint. Id.; Helman v.EPL Prolong, Inc. (2000), 139 Ohio App. 3d 231, 241; Velotta v. PetronzioLandscaping, Inc. (1982), 69 Ohio St. 2d 376, 379; State ex rel Edwardsv. Toledo City Sch. Dist. Bd. of Educ. (1995), 72 Ohio St. 3d 106, 109;Hughes v. George F. Mary A. Robinson Memorial Portage Cty. Hosp. (1984), 16 Ohio App. 3d 80; Sizemore v. Smith (1983), 6 Ohio St. 3d 330,336. To conclusively show that the action is time barred, the complaint must demonstrate both (1) the relevant statute of limitations, and (2) the absence of factors which would toll the statute, or make it inapplicable. Helman, 139 Ohio App.3d at 241, citing Tarry v. FechkoExcavating, Inc. (Nov. 3, 1999), 9th Dist. No. 98-CA-7180. R.C. 2305.09 OR R.C. 1707.43 In general, claims based on common-law fraud are governed by the four year statute of limitations set forth in R.C. 2305.09. However, the Ohio General Assembly has carved out an exception applicable to allegations of fraud predicated upon a sale made in violation of R.C. Chapter 1707.Hater v. Gradison Div. of McDonald (1995), 101 Ohio App. 3d 99, 113, citing Katz v. Genniger (Jan. 31, 1985), 1st Dist. No. C-840219. R.C.1707.43 states: "No action for recovery of the purchase price as provided for in this section, and no other action for any recovery based upon or arising out of a sale or contract for sale made in violation of Chapter 1707. of the Revised Code, shall be brought more than two years after the plaintiff knew, or had reason to know, of the facts by reason of which the actions of the person or director were unlawful, or more than four years from the date of such sale or contract for sale, whichever is the shorter period." (Emphasis added). Therefore, if a complaint alleging common-law fraud is predicated on the a sale of securities, the applicable statute of limitations is found in R.C. 1707.43, not R.C. 2305.09. Ferritto v. Alejandro (2000),139 Ohio App. 3d 363; Helman, 139 Ohio App. 3d 231; Lynch v. Dean WitterReynolds, Inc. (1999), 134 Ohio App. 3d 668; Kondrat v. Morris (1997),118 Ohio App. 3d 198; Hater, 101 Ohio App.3d at 112; The Ohio Co. v.Stambaugh (June 12, 1998), 2nd Dist. No. 97CA96. In order to determine if a complaint is predicated on the sale of securities, we must look at the actual nature or subject matter of the case rather than the form in which the action is pleaded. Lawyers Coop. Publishing Co. v. Muething (1992),65 Ohio St. 3d 273; Helman, 139 Ohio App. 3d 231 (determining whether the common-law statute of limitations for contracts applies or whether the statute of limitations in R.C. 1707.43 applies). Appellants' complaint alleges that they were told T.M.C. would be going public immediately, T.M.C. was making tremendous progress in developing the super computer and artificial intelligence, and the limited partnerships were formed solely for the purpose to invest in T.M.C. Appellants' complaint further states that these statements were false and misleading. Appellants claim that these statements were used to induce them to buy units in the limited partnerships and common stock in T.M.C. While the complaint does not state that the statements were a violation of R.C. Chapter 1707, the complaint states that the units appellants were induced to buy are securities as defined in R.C. Chapter 1707. Appellants attempt to argue that R.C. 1707.43 is not meant to replace the remedies provided by common-law fraud actions, and as such the statute of limitations in R.C. 2305.09 is applicable. Appellants claim that R.C. 1707.40, read in conjunction with R.C. 1707.41, does not restrict common law liabilities for fraud. R.C. 1707.40 states: "Sections1707.01 to 1707.45 of the Revised Code create no new civil liabilities, and do not limit or restrict common law liabilities for deception or fraud other than as specified in sections 1707.41, 1707.42, and 1707.43 of the Revised Code * * *." R.C. 1707.41 is the civil liability of seller for fraud statute. This statute provides that in addition to other liabilities imposed by law, any person who provides a written or printed prospectus to a potential buyer and the buyer relies on that prospectus may be liable. However, when a claim is grounded in common-law fraud arising from a sale in violation of R.C. Chapter 1707, the statute of limitations governing the claim is R.C. 1707.43. Katz, 1st Dist. No. C-840219. Accordingly, we hold that the claims asserted by appellants arise from the sale of securities and therefore those claims fall within the ambit of R.C. 1707.43, rather than R.C. 2305.09. See Hater,102 Ohio App. 3d 99; Stambaugh, 2nd Dist. No. 97CA96; Lynch,134 Ohio App. 3d 668; Helman, 139 Ohio App. 3d 231. In Helman, we were faced with claims cloaked in common-law contract. Id. at 231 (determining whether the trial court appropriately granted appellee's motion to dismiss). Among many other claims, including specific allegations of violating R.C. Chapter 1707, appellants claimed they were induced to purchase the stock subscriptions based on fraudulent misrepresentations (contract claim). We concluded that the claims were multiple violations of R.C. Chapter 1707, including a violation of R.C.1707.44(B)(4). Id. In that case, we stated that regardless of whether appellants would have to prove that appellees violated a specific provision, their claim is still based upon and inextricably interwoven with a fraudulent sale of securities. Id. at 245. In Hater, the First District Court of Appeals dealt with a similar situation and held that the common-law fraud claim asserted by the plaintiffs fell within the ambit of R.C. 1707.43. Id. at 112 (determining whether the trial court appropriately granted summary judgment for the defendant). In Hater, the limited partnership collapsed financially. The plaintiffs, investors, claimed that the defendant, broker-dealer, had undercapitalized the partnership. Plaintiffs' claim sounded in negligence, breach of contract, common-law fraud, and securities fraud. The common-law fraud claim asserted was that broker-dealer fraudulently misrepresented the financial condition of the partnership in a circular and other printed materials. The trial court stated that this claim arose essentially from, and thus was predicated upon, a sale of securities and therefore R.C. 1707.43 applied. Id. The court of appeals agreed. Id. Additionally, the Second District Court of Appeals has explained that the language of R.C. 1707.43 concerns not only the claims involving the sale of securities but also those claims that arise out of the sale of securities. Stambaugh, 2nd Dist. No. 97CA96 (determining whether the trial court's grant of summary judgment for appellee was correct). InStambaugh, appellants claimed that they made investments based upon the misrepresentations of appellee. The appellate court held that securities sales induced by misrepresentations fall within the "arising out of a sale of securities" language in R.C. 1707.43. Id. (stating "Since the Stambaughs' overarching complaint is that they made their investments based on Berg's misrepresentations, any action they would choose to pursue would necessarily fall within the scope of the § 1707.43 statute of limitations."). Therefore, the limitations of R.C. 1707.43 applied. Id. In Lynch, the claims were styled as breach of contract, but the trial court and the Second Appellate District stated that in reality the claims were for fraud in the sale of securities and thus fell under the limitations of R.C. 1707.43. Id. at 668 (deciding whether the trial court appropriately granted the motion to dismiss). The Second District reasoned that because the allegations related to representations, among other things, on which the investors relied in deciding whether to purchase the securities, this arose out of the sale or the contract for the sale of the securities. Id. at 671. However, one case in Ohio has determined that a common-law fraud claim involving securities did not fall under R.C. 1707.43. In Ferritto, policyholders brought an action against an insurer. Id. at 363. Policyholders gave money to the insurer to invest. Rather than investing all of the money, insurer pocketed part of the money and invested the rest of the money. Policyholders sued based on common-law fraud. The Ninth District Court of Appeals held that the limitations under R.C.2305.09 applied rather than the limitations under R.C. 1707.43. Id. at 368. That appellate court stated that the statute of limitations in R.C.1707.43 applies only if a violation of R.C. Chapter 1707 has occurred. The court reasoned that a violation of R.C. Chapter 1707 had not occurred because the fraud did not arise out of the purchase of the securities, but rather arose from the statements made by the insurer to induce the policyholders to give him money so that he could pocket the funds rather then investing the funds. Id. Furthermore, policyholders' claims were not based upon the securities that were actually purchased but rather upon the money that was not used to purchase securities. Id. (reasoning that policyholders did not seek the purchase price of the securities, but rather sought damages for the false statements that the securities were purchased). We hold that the allegations set forth in appellants' complaint are similar to the allegations in the above cited cases, excluding Ferritto, and as such fall within the ambit of R.C. 1707.43. Additionally, the case at hand is distinguishable from the Ferritto ruling. The Ferritto claims did not arise from the sale of securities, unlike the case before this court. The complaint clearly states that appellants were induced to purchase the units and stocks due to the statements and prospectuses made by appellees. Those statements fall under a violation of R.C. 1707.44(B)(4) and R.C. 1707.41. As the Hater court stated, "Despite counsel's best efforts to portray them as something else, the allegations of fraud are inextricably interwoven with the sale of the partnership units, and thus we hold that the trial court did not err when it found that they were controlled by the limitations period contained in R.C. 1707.43." Id. at 113. Therefore, R.C. 1707.43 applies. APPLICATION OF R.C. 1707.43 Even though we found that R.C. 1707.43 governs the statute of limitations for the claims presented in this case, the complaint may not be automatically dismissed. Helman, 139 Ohio App.3d at 245. For dismissal to be appropriate, the record must reflect that there are no factors which would toll the statute of limitations or make it inapplicable. Id. Appellants have alleged no facts that would indicate that equitable estoppel would apply. Furthermore, appellants have alleged no facts to toll or make the statute of limitations inapplicable. As such the time limits of R.C. 1707.43 strictly apply. R.C. 1707.43 limits the time a cause of action can be brought under this statute to no more than two years after the plaintiff knew or had reason to know of the violation of R.C. Chapter 1707, or no more than four years from the date of such sale, whichever is the shorter period. The stocks and units were purchased between 1985 and January 7, 1992, the majority were purchased in the middle and late 80s. The complaint was filed December 6, 1996. In August 1994, appellees filed for bankruptcy, and appellants claim they discovered the fraud shortly after the filing of bankruptcy. Four years from the date of the last sale of stocks is January 7, 1996. Two years from the date of the alleged discovery is August of 1996. Even if we give appellants the benefit of the doubt that they did not discover the fraud until December 6, 1994, two years prior to the filing of the suit, they still do not satisfy the limitation set forth in R.C. 1707.43. The statute reads that the statute of limitations that applies is the shorter period. The shorter period is the January 7, 1996 date, not the December or August date. Applying the four year statute of limitations date, the complaint was filed after the January 7, 1996, date, on December 6, 1996. Therefore, appellants do not fall within the statute of limitations. The trial court was correct in dismissing the complaint. However, we note that the trial court dismissed the complaint based on R.C. 2305.09. While the trial court applied the wrong statute and misapplied the law under that statute, the trial court still came to the right conclusion that the complaint was dismissed because the statute of limitations had expired. MISAPPLICATION OF R.C. 2305.09 R.C. 2305.09 dictates that a four year statute of limitations applies to common-law fraud claims. Generally a cause of action accrues when the wrongful act was committed. O'Stricker v. Jim Walter Corp. (1983),4 Ohio St. 3d 84. Therefore, as explained above, appellants' claims occurred outside of the four year statute of limitations unless the discovery rule applies. The discovery rule in R.C. 2305.09(D) applies when strict application of the general rule can lead to an unjust result. Harris v. Liston (1999), 86 Ohio St. 3d 203, 206. This statute tolls the statute of limitations until the fraud is first discovered or through the exercise of reasonable diligence it should have been discovered. Id. at 207. The trial court's journal entry states that plaintiff tried to stretch the common-law discovery rule to say that the filing of bankruptcy was the triggering date for discovery purposes. The court goes on to say that it "cannot accept the premise that Thinking Machine Corporation's filing of Reorganization proceedings was based upon any of the defendants' alleged false or misleading statements or representations." (2/21/01 J.E.). Thus, the trial court concluded the action was time barred. The trial court incorrectly concluded that the triggering event must be a result of the fraud. Pursuant to the discovery rule, certain causes of action do not accrue for statute of limitations purposes until the party discovers or, in the exercise of reasonable care, should have discovered the injury. Investors REIT One v. Jacobs (1989), 46 Ohio St. 3d 176, 179; R.C. 2305.09. There is no authority for the requirement that the triggering event must be a result of the fraud. If that rule applied, then a seller of a home who conceals termite damage, and the damage is discovered through a remodeling project that occurs four years after the concealment, the buyer could not claim application of the discovery rule because the remodeling was not a result of the fraud. Another example is the Biro v. Hartman Funeral Home (1995), 107 Ohio App. 3d 508 case. InBiro, the father died and was cremated. The remains were supposed to be kept safe. The funeral home made representations that the remains would be kept safe. Over four years later the mother died. At that point it was discovered that the remains were not kept safe, but instead were disposed of in a common grave area. The mother's death was the triggering event and it was not caused by the fraud. The Eighth District Court of Appeals held that the discovery rule applied. Biro, 107 Ohio App. 3d 508 (however, the issue raised before this court was not raised before the Eighth District). As such, the trial court incorrectly concluded that the triggering event needed to be a result of the fraud. Additionally, the motion must be viewed in the light most favorable to the non-moving party. Mitchell, 40 Ohio St.3d at 192. The trial court did not believe appellants' assertion that they did not discover the fraud until bankruptcy. However, at that point in the lawsuit, their statement must be taken as true. Id. While prior to bankruptcy there may have been information sufficient to alert a reasonable person to the possibility of wrongdoing which would give rise to a party's duty to inquire into the matter with due diligence, none of those facts were alleged. Flowers v.Walker (1992), 63 Ohio St. 3d 546. As such the trial court incorrectly applied R.C. 2305.09. For the reasons stated above, the decision to dismiss the complaint is affirmed. However, the reasons to dismiss the complaint are based upon the application of R.C. 1707.43, not R.C. 2305.09. Waite, J., concurs. DeGenaro, J., concurs; see concurring opinion.

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OPINION Plaintiff-appellant Charles Melosh appeals from the June 7, 2001, Decision and Entry of the Zanesville Municipal Court terminating the lease between the parties in this matter and granting defendant-appellee Ohio Properties judgment against plaintiff-appellant in the amount of $1,109.37. STATEMENT OF THE FACTS AND CASE On November 7, 1997, appellant Charles Melosh CPA dba Melosh Associates CPA's and D J Enterprises, appellees' predecessor in interest, entered into a commercial lease for office space. Pursuant to the terms of the lease, which was for a period of five years commencing on December 1, 1997, and terminating on November 30, 2002, appellant agreed to pay rent in the amount of $619.50 for the first two years of the lease. The lease further provided for rent in the amount of $650.50 per month for the second two years and $683.00 per month for the for last year. Subsequently, appellees Ohio Properties and Allen Kirkendall became the owners of the subject property. Thereafter, appellant, on June 10, 1999, filed a complaint against appellees for breach of contract in the Zanesville Municipal Court (Case 99CVH00814). Appellant, in his complaint, specifically alleged that appellees had failed to maintain subject property. On June 29, 1999, appellees filed an answer denying the allegations in appellant's complaint. On July 3, 2000, appellee Ohio Properties filed a complaint in forcible entry and detainer against appellant in the Zanesville Municipal Court (Case No. 00CVG00765), alleging that appellant had failed to pay rent in the amount of $650.50 from March, 2000, "until the current time". Subsequently, appellant, on July 13, 2000, filed an answer and a motion requesting that the two cases be joined. After the two cases were consolidated by the trial court, a bench trial was held on August 18, 2000. Pursuant to a Decision and Entry filed on June 7, 2001, the trial court found, in part, that appellee Ohio Properties had breached the lease by failing to maintain the property and also had breached the covenant of quiet enjoyment. For such reason, the trial court found that appellee was only entitled to recover the reasonable rental value of the premises. After determining the same1, the trial court held that appellant owed appellee Ohio Properties the sum of $1,191.91 in unpaid rent and utilities. In its decision, the trial court further held that appellee Ohio Properties owed appellant $82.54 as reimbursement for carpet cleaning. After offsetting the two figures, the trial court granted appellee Ohio Properties judgment against appellant in the amount of $1,109.37. The trial court further ordered that the lease between the parties be terminated effective August 31, 2000. It is from the trial court's June 7, 2001, Decision and Entry that appellant now prosecutes his appeal, raising the following assignments of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY CALCULATING APPELLANT'S DAMAGES FROM MARCH 1999, WHEN THERE WAS TESTIMONY AT TRIAL THAT APPELLEES KNEW OF THE CONDITIONS CREATING THE BREACH OF THE LEASE AT THE TIME THEY PURCHASED THE PROPERTY IN DECEMBER 1998, AND BY FAILING TO PRORATE THE RENT FOR AUGUST 2000. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FINDING THAT THE VALUE OF THE LEASEHOLD WAS DIMINISHED BY 25% DUE TO APPELLEES' BREACH OF THE LEASE, WHEN APPELLANT PRESENTED UNREFUTED TESTIMONY AT TRIAL THAT THE VALUE OF THE LEASEHOLD WAS DIMINISHED BY AS MUCH AS 50%. I, II Appellant, in his two assignments of error, challenges the trial court's calculation of appellant's damages resulting from the breach of the lease. Appellant asserts that the testimony presented at trial supports a different result. In essence, appellant maintains that the trial court's decision was not supported by the evidence or is against the manifest weight of the evidence presented at trial. App.R. 9(B) states, in part, that "[i]f the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, the appellant shall include in the record a transcript of all evidence relevant to the findings or conclusion." In the case sub judice, appellant has failed to supply this Court with a transcript of the proceedings before the trial court or, alternatively, a statement pursuant to App.R. 9(C) or (D). When portions of the transcript necessary to resolve the issues raised on appeal are not part of the record, the court must presume regularity in the proceedings below and affirm. Knapp v. Edwards Laboratories (1980),61 Ohio St. 2d 197. Since appellant has failed to provide this Court with the transcript of the August 18, 2000, bench trial, we must presume the regularity of the proceedings below and affirm pursuant to the directive set forth inKnapp, supra. Appellant's two assignments of error are, therefore, overruled. Accordingly, the judgment of the Zanesville Municipal Court is affirmed. By EDWARDS, J. GWIN, P.J. and WISE, J. concurs. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Muskingum County Court of Common Pleas is affirmed. Costs to appellants. 1 The trial court specifically found that the value of the leased premises had been diminished by 25% during the period from March 1, 1999, through August 11, 2000.

2016-07-06 06:36:45.913327+00

OPINION {¶ 1} City of Cleveland ("city"), appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court affirmed the order of the Ohio Liquor Control Commission ("commission"), appellee. The commission's order affirmed the order of the Superintendent of the Division of Liquor Control ("division") that granted Fast Friendly, Inc.'s ("Fast"), appellee, transfer application of its C-1-2 liquor permits. *Page 2 {¶ 2} Fast has been a liquor permit holder for a carryout store located in Cleveland, Ohio, since 1996. On July 22, 2005, Fast applied to transfer the location of the liquor permit approximately one and one-half city blocks down the same street from its former permit premises. The city objected to the transfer. St. Joseph of Collinwood Elementary School ("St. Joseph"), which is located directly across the street from the proposed permit premises, also filed an objection to the transfer. The city and St. Joseph objected on the grounds that the area was already saturated with liquor permits, and the proposed location was across the street from St. Joseph. {¶ 3} After a hearing before the division, the division overruled the city's and St. Joseph's objections on June 28, 2006. The city appealed the order to the commission, and, on February 13, 2007, the commission affirmed the division's decision. The city appealed the commission's decision to the Franklin County Court of Common Pleas. On October 11, 2007, the court upheld the commission's decision. The city appeals the judgment of the court, asserting the following assignment of error: The Common Pleas Court abused its discretion by affirming the Order of the Liquor Control Commission because the Order is not supported by reliable, probative, and substantial evidence and is not in accordance with the law. {¶ 4} The city argues in its assignment of error that the common pleas court erred when it found that the commission's orders were supported by reliable, probative, and substantial evidence and were in accordance with the law. Under R.C. 119.12, when a common pleas court reviews an order of an administrative agency, it must consider the entire record and determine whether the agency's order is "supported by reliable, probative, and substantial evidence and is in accordance with the law." R.C. 119.12. "Reliable" evidence is evidence that is dependable and may be confidently trusted. Our *Page 3 Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St. 3d 570, 571. In order to be reliable, there must be a reasonable probability that the evidence is true. Id. "Probative" evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. Id. "Substantial" evidence is evidence with some weight; it must have importance and value. Id. {¶ 5} The common pleas court's "review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court `must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.'" (Emphasis sic.) Lies v. VeterinaryMed. Bd. (1981), 2 Ohio App. 3d 204, 207, quoting Andrews v. Bd. ofLiquor Control (1955), 164 Ohio St. 275, 280. Even though the common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, the findings of the agency are not conclusive. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St. 2d 108,111. {¶ 6} An appellate court's standard of review in an administrative appeal is more limited than that of a common pleas court. Pons v. OhioState Med. Bd. (1993), 66 Ohio St. 3d 619, 621. It is not the function of the appellate court to examine the evidence. Id. The appellate court is to determine only if the trial court has abused its discretion. Id. Abuse of discretion is not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Id. Absent an abuse of discretion on the part of the trial court, an appellate court may not substitute its judgment for that of an administrative agency or a trial court. Id. Nonetheless, an appellate court does have plenary review of purely legal questions in an administrative appeal. Big Bob's, Inc. v. Ohio Liquor ControlComm., 151 Ohio App. 3d 498, 2003-Ohio-418, at ¶ 15. Accordingly, *Page 4 we must also determine whether the common pleas court's decision is in accordance with law. {¶ 7} In the present case, the division analyzed Fast's permit transfer based upon provisions in R.C. 4303.292(A) and (B). As pertinent to the division's analysis, R.C. 4303.292(A) and (B) provide, in pertinent part: (A) The division of liquor control may refuse to issue, transfer the ownership of, or renew, and shall refuse to transfer the location of, any retail permit issued under this chapter if it finds * * *: * * * (2) That the place for which the permit is sought: (c) Is so located with respect to the neighborhood that substantial interference with public decency, sobriety, peace, or good order would result from the issuance, renewal, transfer of location, or transfer of ownership of the permit and operation under it by the applicant[.] * * * (B) The division of liquor control may refuse to issue or transfer the ownership of, and shall refuse to transfer the location of, any retail permit issued under this chapter if it finds either of the following: (1) That the place for which the permit is sought is so situated with respect to any school, church, library, public playground, or hospital that the operation of the liquor establishment will substantially and adversely affect or interfere with the normal, orderly conduct of the affairs of those facilities or institutions; (2) That the number of permits already existent in the neighborhood is such that the issuance or transfer of location of a permit would be detrimental to and substantially interfere with the morals, safety, or welfare of the public. In reaching a conclusion in this respect, the division shall consider, in light of the purposes of this chapter and Chapters 4301. and 4399. of the Revised Code, the character and population of the *Page 5 neighborhood, the number and location of similar permits in the neighborhood, the number and location of all other permits in the neighborhood, and the effect the issuance or transfer of location of a permit would have on the neighborhood. {¶ 8} The city first argues that the evidence demonstrated the area is saturated with liquor permits. We find this argument unpersuasive. The present case involves the transfer of a liquor license, not the granting of a new one. Fast possessed a valid license at its original location, which was only one and one-half blocks from the proposed permit premises. It is difficult to suggest that the area would reach the point of saturation when the total number of permits in the subject area will not change with the permit transfer. This fact is particularly compelling given the evidence that the city had not filed a single objection to any of the permit renewals in Fast's original location in the past ten years. The city fails to provide any explanation as to why the area would now be saturated with liquor permits when the total number of permits will not be affected and when it did not object to any of Fast's renewals in the past ten years. {¶ 9} Further, although the city presented testimony that there are 25 permit premises within the ward, with 18 of those being carryout stores, the city can point to no evidence demonstrating why this number is excessive. As this court has held, "the bare fact of the number of permits in a given area, without any indication as to whether this number is excessive and/or why the addition of another permit would be detrimental and substantially interfere with the morals, safety, or welfare of the public, does not constitute substantial or probative evidence." Meslat v. Ohio Liquor Control Comm., 164 Ohio App. 3d 13,2005-Ohio-5491, at ¶ 22. Here, the city has argued that the proposed permit premises already has loiterers who harass young female students on their way to St. Joseph. Although we do address this contention infra, this argument is location specific *Page 6 and does not speak to the issue of general saturation and why the area should be deemed saturated when there would be no change in the total number of permits in the vicinity as a result of permitting the transfer. Therefore, we find the city's saturation argument to be without merit. {¶ 10} The city next argues that the transfer of the permit will substantially interfere with the public decency, sobriety, peace, or good order of the neighborhood, and its operation will substantially and adversely affect or interfere with the normal, orderly conduct of the affairs of the school. We initially note that the city begins its argument by stating "[n]o one can deny the problems that come with beer and wine sales: loitering, drug sales, litter, drunk and disorderly persons on the street, etc." Although the cited problems can and do sometimes occur around liquor permit premises, to suggest that these problems necessarily blossom at all permit premises is fallacious. Each permit premises must be adjudged on its own without stamping the ills of a few upon the whole. {¶ 11} The city alleges that the allowance of the permit transfer will add to social evils and crime in the neighborhood. The city presented testimony in an attempt to demonstrate that the issuance of this permit so near St. Joseph would be detrimental to the neighborhood, lure young children to try to entice loiterers to buy them alcohol, and subject students to the harassment of loiterers in front of the premises. Specifically, Roosevelt Coats, a Cleveland city councilman, testified that he currently receives complaints about the proposed permit premises regarding patrons "hanging out" and intimidating students. Coats also presented letters from several officials from nearby churches, parents of St. Joseph students, and a daycare provider from St. Joseph expressing concern that there will be a temptation for students to purchase alcohol, and there currently exists loitering at the location. Johnathan Brooks, legislative aide to State *Page 7 Representative Eugene Miller, testified that, with the premises being so close to a school, the children may be enticed by the alcohol. However, Brooks was not aware that the permit was being transferred from a permit holder only one and one-half blocks away. This constituted the whole of the testimony presented by the city. {¶ 12} After reviewing the record, we find the trial court did not abuse its discretion, and its determination was in accordance with law. The testimony presented by the city was not only minimal, but general and speculative, which is insufficient to establish substantial interference with public decency, sobriety, peace, or good order.2216 SA, Inc. v. Ohio Liquor Control Comm., Franklin App. No. 07AP-600,2007-Ohio-7014, at ¶ 21, citing City of Ashland v. Gene's Citgo,Inc. (Apr. 20, 2000), Franklin App. No. 99AP-938; and Beck v. OhioLiquor Control Comm. (Nov. 2, 1999), Franklin App. No. 98AP-1464. We specifically point out that all of Brooks' testimony was highly speculative, and his general conjecture that the proposed permit premises will impair the students' learning and "could make a difference" in whether the children begin drinking alcohol was not persuasive. Further, although the city did present some testimony through Coats that loitering currently exists around the proposed permit premises, it is difficult to assume that this activity is specifically related to the current premises or would be exacerbated by granting the proposed permit, given Brooks' testimony that the area "isn't exactly the best part anyway with crime" and "a lot of people * * * aren't necessarily up to a lot [of] good." See 2216 SA, Inc., at ¶ 21 (this court was reluctant to attach liquor permit premises to the general ills of the surrounding neighborhood, given crime in general area). {¶ 13} The city maintains that the present circumstances are analogous to those in Aldi, Inc. v. Ohio Liquor Control Comm., Franklin App. No. 05AP-804, 2006-Ohio-1650, in which we upheld the denial of a liquor permit application based upon evidence that *Page 8 necessarily must rely upon some conjecture and speculation in determining the impact the proposed permit premises will have on the surrounding area. However, we find Aldi inapposite to the present case. Importantly, Aldi involved the issuance of a new permit, and we specifically pointed out in Aldi that the evidence presented in opposition to applications for new permits is, by definition, more speculative than evidence in cases of transfer applications. Id., at ¶ 12. The city also cites Aldi for the proposition that conjecture takes on added value and weight when it is based upon the personal experiences of longtime residents and veteran law enforcement officers. However, in the present case, the city presented no evidence from any nearby residents or police officers. Although the opinions of the councilman, nearby church officials, and nearby school officials deserve some evidentiary weight, in the present case, as explained above, the testimony lacked the particularity and definitiveness to rise to the level of reliable, probative, and substantial evidence. For these reasons, we find the trial court did not abuse its discretion, and the city's assignment of error is overruled. {¶ 14} Accordingly, the city's assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. McGRATH, P.J., and BRYANT, J., concur. *Page 1

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OPINION In this accelerated calendar case submitted on the record and briefs of the parties. Appellant, Ricky L. Williams, appeals from the decision of the Ashtabula County Court of Common Pleas, Domestic Relations Division overruling his objections to the magistrate's decision. Although appellant filed his objections to the magistrate's decision, no transcript accompanied these objections. Prior to this filing, the magistrate's decision was adopted and approved by the trial court and incorporated into a final decree of divorce granted to appellee, Ruth L. Williams. The following facts are relevant to a disposition of this appeal. The parties were married on June 19, 1976. Appellee filed a complaint for divorce on April 27, 1998. Appellant was personally served notice of the action on May 1, 1998. Within the said notice, appellant was informed that he had twenty-eight days to file an answer to the complaint, and if he failed to appear and defend, then judgment by default would be rendered against him for the relief demanded. Appellant never filed an answer to the complaint. At the time the action was filed, the parties sixteen year-old daughter resided with appellant in the marital residence. In her divorce complaint, appellee sought to be designated the residential parent, and, simultaneously with her complaint, filed a motion for temporary custody. A hearing on the motion for temporary custody was set for May 14, 1998. At appellee's request, the hearing was continued to June 18, 1998. Appellant appeared pro se at the June 18, 1998 hearing, but it was continued to August 14, 1998, to allow appellant time to obtain counsel. At some point in June, the daughter, in accordance with her own wishes, moved out of appellant's house and began residing with appellee. After this occurred, appellant claims he decided not to contest the custody issue. Appellant did not hire counsel, and he did not attend the August 14, 1998 temporary custody hearing. After this hearing, the court awarded temporary custody to appellee. On September 8, 1998, the court mailed appellant a notice of the final hearing. Aside from the normal caption, the notice consisted of the following: "Case No. 98-DR-00237 RUTH L WILLIAMS vs RICKY L WILLIAMS will be on for UNCONTESTED FINAL HEARING on Thursday, October 29, 1998, at 03:00 PM before Judge GARY L. YOST." This hearing was conducted by a magistrate. Again, appellant failed to attend. On November 6, 1998, the magistrate filed a decision finding that there were no marital assets or debts other than the marital residence and items of personal property. Appellee's proposal for the division of real and personal property was determined to be fair and just. Consequently, the magistrate awarded the items of personal property according to appellee's request. With regard to the marital residence, the magistrate ordered that it either be sold with the equity to be split, or be refinanced by appellant with appellee being paid her share of the equity. The magistrate further found appellant had voluntarily terminated his employment with M.C. Sign Company, and that his present employment was unknown. Also finding that he was not disabled, the magistrate imputed income of $9.50 per hour, forty hours per week, fifty-two weeks a year to appellant for purposes of calculating his child support obligation. The magistrate imputed wages at $5.15 per hour to appellee. Appellant was ordered to pay child support according to the statutory schedule based on the imputed incomes. Pursuant to appellee's request, the magistrate found that health insurance was not reasonably available to either party. It was determined that appellant should pay 65 percent of all medical expenses (after the first $100), and appellee should pay the remaining 35 percent. These percentages roughly corresponded to the imputed incomes. Finally, the magistrate awarded the tax exemption deduction for the child to appellant in even numbered years and to appellee in odd numbered years. On November 17, 1998, the trial court incorporated the findings and decision of the magistrate into a judgment entry granting appellee a final decree of divorce. Thereafter, appellant timely filed his objections to the magistrate's decision, raising all of the issues currently being appealed. Appellant objected to the magistrate's decision on grounds that the notice of the hearing sent to him was insufficient. However, with respect to four of the five issues raised on appeal, appellant objected to the magistrate's findings of fact, or lack thereof. Civ.R. 53(E)(3)(b) requires that objections to findings of fact be supported by a transcript of all the evidence submitted to the magistrate or an affidavit of that evidence if a transcript is unavailable.1 Appellant submitted an affidavit in conjunction with his objections. This affidavit explained appellant's misunderstanding of the notice for the hearing, and why he did not attend, which necessarily would not have been part of the record before the magistrate. However, with respect to the factual issues raised, appellant did not submit an affidavit of the evidence before the magistrate. Rather, appellant submitted an affidavit of testimony which he would have offered had he attended the hearing. As to the notice issue, appellant claimed he did not know that the words "uncontested final hearing" indicated it was to be a final hearing on all the issues of the case. In a judgment entry filed on January 11, 1999, the trial court overruled all of appellant's objections to the magistrate's decision and approved and reaffirmed its prior judgment entry of November 17, 1998. The court found appellant had been personally served with notice of the complaint on May 1, 1998, and that he never filed an answer as required by the Ohio Rules of Civil Procedure. Although appellant claimed, and appellee did not disagree, he appeared pro se at the June 18, 1998 hearing, the court stated that he never made an appearance in the case. The court indicated that the notice sent to appellant stated "uncontested final hearing" because of appellant's complete default of appearance in the case.2 Noting that appellant had been served a summons and notice of the final hearing, and that the case had been pending for six months, the court concluded appellant simply chose not to appear and defend. The court determined that the magistrate had all the pertinent facts and circumstances before her at the time of the decision. Further, the magistrate's decision was fair, reasonable, and supported by the evidence. There was no error of law or other defect on the face of the magistrate's decision. From this judgment, appellant timely filed a notice of appeal, assigning the following errors: "[1]. The trial court erred to the prejudice of defendant-appellant by overruling the objection of the defendant-appellant to, and by approving and adopting, the order of the magistrate's decision filed on November 6, 1998, that divided the real estate and personal property of the defendant-appellant and plaintiff-appellee. "[2]. The trial court erred to the prejudice of defendant-appellant by overruling the objection of the defendant-appellant to, and by approving and adopting, the order of the magistrate's decision filed on November 6, 1998, that imputed income of $19,760 to the defendant-appellant in the calculation of the child support obligation of the defendant-appellant. "[3]. The trial court erred to the prejudice of defendant-appellant by overruling the objection of the defendant-appellant to, and by approving and adopting, the order of the magistrate's decision filed on November 6, 1998, that allocated responsibility for payment of the health care expenses for the minor child between the defendant-appellant and the plaintiff-appellee. "[4]. The trial court erred to the prejudice of defendant-appellant by overruling the objection of the defendant-appellant to, and by approving and adopting, the order of the magistrate's decision filed on November 6, 1998, that allocated the income tax exemption deduction for the minor child to the defendant-appellant in even-numbered years and to the plaintiff-appellee in odd-numbered years. "[5]. The trial court erred to the prejudice of defendant-appellant by overruling the objection of the defendant-appellant to the misleading and insufficient notice of the trial before the magistrate on October 29, 1998, that was sent to the defendant-appellant, and by approving and adopting, the magistrate's decision filed on November 6, 1998." In appellant's fifth assignment of error, he claims that the notice of the final hearing was misleading and insufficient. According to appellant, it did not meet the requirements of Civ.R. 75(L) and violated his right to due process. As a remedy, appellant requests this case be remanded for a full trial on the merits. Were this remedy granted, it would obviate the need to address the other assignments of error. Thus, we will address the fifth assignment of error first. Appellant claims that he did not attend the final hearing because, based on the notice he received, he did not believe it was the final hearing on all the issues of the divorce. Rather, he thought it was a final hearing solely related to the issue of custody, which he did not want to contest. Appellant raised the issue of the insufficiency of the notice within his objections to the magistrate's decision under Civ.R. 53. Appellee argues that rather than raising the issue of insufficient notice in appellant's Civ.R. 53 objections, the proper action for appellant to have taken after his objections were overruled would have been to file a Civ.R. 60(B) motion for relief from judgment. However, such a motion would have duplicated the objection just raised to the court. Further, Civ.R. 53(E)(4)(b) specifically provides appropriate and similar remedies to Civ.R. 60 in that the trial court may itself hear additional evidence, recommit the matter to the magistrate with instructions, or hear the entire matter itself. In any case, where judgment has been entered pursuant to Civ.R. 58, subsequent to an ex parte trial, the aggrieved party may decline to attempt to vacate the judgment and proceed directly to an appeal. See, generally, Ohio Valley Radiology Assoc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118. As previously indicated, although the final hearing may be uncontested, it is still a trial on the merits and evidence must be put on the record. Per Civ.R. 75(F), there can not be a default judgment in a divorce proceeding. Further, Civ.R. 75(L) requires that "[i]n all cases where there is no counsel of record for the adverse party, the court shall give the adverse party notice of the trial upon the merits. * * *." Civil due process requires notice and an opportunity to be heard. Goldberg v. Kelly (1970), 397 U.S. 254. "An elementary and fundamental requirement of due process in any proceeding * * * is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank Trust Co. (1950), 399 U.S. 306[339 U.S. 306], 314. The first notice of the action received by appellant was the notice of the filing of the complaint, which was sent to him on April 29, 1998. This notice informed him that if he failed to appear or defend himself in this matter, then judgment by default would be rendered against him for the relief demanded in the complaint. Appellant did not file an answer to the complaint as required by the Ohio Rules of Civil Procedure. Appellant apparently appeared at the June 18, 1998 hearing to contest the motion for temporary custody. The matter was continued in order to allow him to obtain counsel. Nevertheless, he did not appear at the subsequent hearing on the motion for temporary custody. Nor, did he obtain counsel. There was no further contact with the court at any point subsequent to June 18, 1998 until appellant filed his objections to the magistrate's decision. On September 8, 1998, the court mailed the notice which stated an "uncontested final hearing" was set for October 29, 1998. At that point, appellant still had not retained counsel. "Pro se civil litigants are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept the results of their own mistakes and errors." Meyers v. First Natl. Bank ofCincinnati (1981), 3 Ohio App.3d 209, 210; see, also, Allen v.Allen, 1998 Ohio App. LEXIS 2922, (June 26, 1998), Trumbull App. No. 97-T-0114, unreported, at 6, 1998 Ohio App. LEXIS 2922. It is apparent that numerous opportunities were accorded appellant yet he chose to sit on his rights. Now, with an unhappy outcome, he seeks to be heard. Nothing in the record indicates that, upon receiving the notice of the final hearing, appellant made any effort whatsoever to confirm his claimed interpretation of the notice. It is our determination that the notice was unambiguous and sufficient to apprise him of the pendency of the final hearing and to afford him yet another opportunity to respond. He did not. Appellant's fifth assignment of error is without merit. Within each of appellant's first three assignments of error, he assigns as error the trial court's denial of his objections to the magistrate's findings of fact. Appellant's earlier objections, however, are not in compliance with Civ.R. 53. Specifically, Civ.R. 53(E)(3)(b) provides in pertinent part: "Any objection to a finding of fact shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that fact or an affidavit of that evidence if a transcript is not available." It is unknown whether a transcript was available at that time. However, even if it were unavailable, appellant's affidavit did not comply with Civ.R. 53(E). Instead, the affidavit was a proffer of what appellant's contrary testimony would have been. This does not meet the requirement of Civ.R. 53(E)(4)(b). "In accordance with Civ.R. 53, this court has repeatedly held that a party cannot challenge the factual findings contained within a magistrate's decision on appeal unless such party submits the required transcript or affidavit to the trial court." Ohlinv. Ohlin (Nov. 12, 1999), Portage App. No. 98-PA-87, unreported, at 10, 1999 Ohio App. LEXIS 5332. Failure to provide an acceptable record to the trial court permits the trial court to ignore any objections to factual matters that may have been challenged. Witt v. J J HomeCenters, Inc. (Apr. 26, 1996), Geauga App. No. 95-G-1939, unreported, at 4-5, 1996 Ohio App. LEXIS 1703. "In the absence of a statement of the evidence presented, a trial court can only review the sufficiency of the report itself; i.e., the court can only determine if the report sets forth sufficient facts to support the referee's ultimate findings and conclusions of law. InRe Rhoads (Feb. 4, 1994), Geauga App. No. 93-G-1763, unreported, at 7, 1994 Ohio App. LEXIS 363 citing In re Bruce (June 30, 1993), Portage App. No. 92-P-0060, unreported, at 4, 1993 Ohio App. LEXIS 3327. Thus, when the trial court in the instant case stated there was no error of law or other defect on the face of the magistrate's decision, it was applying the proper scope of review. Having failed to raise these issues properly at the trial court level, appellant is now precluded from arguing on appeal the factual determinations made by the trial court. In appellant's fourth assignment of error, he apparently contends the trial court erred by failing to make the findings of fact related to the federal tax exemption deduction for the parties' minor child.3 Specifically, he claims those taxes would be reduced by allocating the dependency deduction for their minor child to himself. Appellant seems to argue that the court must do an evaluation of the financial consequences of the assignment of the deduction to each party in all cases. In support of his argument, appellant cites Singer v. Dickinson (1992), 63 Ohio St.3d 408. The second paragraph of the Singer syllabus permits a court to award the deduction to a noncustodial parent when that allocation would produce a net tax savings for the parents. The third paragraph of the Singer syllabus states as follows: "In determining whether taxes would be saved by allocating the federal tax dependency exemption to the noncustodial parent, a court should review all pertinent factors, including the parents' gross incomes, the exemptions and deductions to which the parents are otherwise entitled, and the relevant federal, state, and local income tax rates." Singer only requires this analysis in the event the court awards the deduction to the noncustodial parent, which is appellant in this case. The deduction presumptively belongs to appellee, the custodial parent. Id. at 411. The argument appellant advances actually inures to the benefit of appellee in that the presumption is in favor of appellee, the custodial parent. However, in this case, the alternating award of the deduction to the parties was made at the suggestion of appellee; in effect, she made a voluntary and generous concession to appellant. Further, Singer does not put the burden on the court to provide the information needed for such an analysis. The burden is on the party seeking the change in the presumption. Appellant chose not to participate or to provide that information. Appellant's fourth assignment of error is without merit. The judgment of the trial court is affirmed. 1 Apparently there had been an audio recording made, but appellant did not inquire about it until he appealed to this court. Thus, we do not know if it was available at that time. 2 No one seriously argues that a "default" judgment under Civ.R. 55 was granted here in contravention of Civ.R. 75(F). Rather, the term "default" judgment is misused, as it frequently is, to indicate an ex parte trial and judgment. 3 His argument is not totally clear as to who the recipient of the deduction should be. Presumably he wanted the entire deduction himself.

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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). Defendant-appellant, Michael Straughn, pleaded guilty to one count of robbery pursuant to R.C. 2911.02 and one count of kidnapping pursuant to R.C. 2905.01. Both offenses were second-degree felonies. At the sentencing hearing, the trial court initially stated that it would impose the minimum sentence of two years for each offense, to be served concurrently. The prosecutor asked the court to reconsider because Straughn's co-defendant had received an agreed sentence of five years. The court then stated, "That would be a bit of a problem. I'll set aside what I just said, and I'm going to think about this for another week and give you another answer * * *." Subsequently, the court imposed a sentence of four years for each offense, to be served concurrently. The court properly journalized an entry imposing those sentences, and this appeal followed. In his sole assignment of error, Straughn contends that the trial court erred in imposing a sentence based on considerations not contemplated by law. First, he argues that the court should not have considered an agreed sentence entered into by another defendant. We find no merit in this argument. Even though the court originally stated that it would impose concurrent two-year sentences for the two offenses, it never journalized an entry pronouncing those sentences. Consequently, they were not final and the court could properly reconsider them. State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597, 589 N.E.2d 1324; State v. McLaughlin,157 Ohio App.3d 1, 2004-Ohio-1780, 808 N.E.2d 893. Further, the four-year sentences imposed were within the statutory range for a second-degree felony. R.C. 2929.14(A)(2). The court made the appropriate findings at the sentencing hearing to justify the sentences, including imposition of more than the minimum sentences. See State v.Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473; State v.Edmonson, 86 Ohio St.3d 324, 1999-Ohio-110, 715 N.E.2d 131. Straughn contends that the trial court erroneously considered the fact that he had used a gun in the commission of the offenses. Though Straughn denied using a gun, the record shows that he and his girlfriend held up a woman at gunpoint, forced her to withdraw money from an ATM machine, and repeatedly threatened to shoot her if she did not cooperate. The trial court was free to disbelieve Straughn's denial and could have appropriately considered the circumstances involved in the commission of the offenses in imposing sentence. Despite our rejection of the arguments Straughn has raised, we must modify the sentences imposed in this case. This court recently decidedState v. Montgomery, 1st Dist. No. C-040190, 2005-Ohio-1018, in which we applied the United States Supreme Court's decisions in Blakely v.Washington (2004), ___ U.S. ___, 124 S.Ct. 2531, and United States v.Booker (2005), ___ U.S. ___, 125 S.Ct. 738, to Ohio's sentencing statutes. We noted that before a court may impose a term greater than the minimum on an offender who has not previously served a prison term, it must rely on facts not found by a jury or admitted by the defendant, which is unconstitutional under Blakely and Booker. The minimum prison term for an offender who has not previously served a prison term is ordinarily the only sentence that is supported by the jury's verdict and the defendant's admissions. Therefore, we held that the statutory maximum for an offender who has not previously served a prison term is the minimum prison term allowed by law for the offense. The minimum term allowed by law for a second-degree felony is two years. R.C. 2929.14(A)(2). Therefore, we modify Straughn's sentence to two two-year terms of imprisonment, to be served concurrently. We affirm that trial court's judgment in all other respects. 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. Doan, P.J., Painter and Sundermann, JJ.

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JOURNAL ENTRY and OPINION {¶ 1} Appellant John Pudelski appeals the decision of the trial court dismissing his petition to vacate or set aside judgment and/or sentence pursuant to R.C. 2953.21 and 2953.23. {¶ 2} Pudelski was convicted of the murder of his infant daughter, Ellie Marie Pudelski, and sentenced to a term of fifteen years to life on September 19, 1999. This court affirmed his conviction and sentence in State v. Pudelski (March 15, 2001), Cuyahoga App. No. 77172. Pudelski filed an initial motion for postconviction relief on April 23, 2003, which was denied on September 15, 2003 by the trial court; however, because the trial court failed to issue findings of fact and conclusions of law, Pudelski's initial postconviction appeal was dismissed. Subsequently, the matters were refiled in the trial court, and the trial court again dismissed the postconviction petition, this time adopting the state's findings of fact and conclusions of law on February 26, 2005, resulting in the current appeal. {¶ 3} Pudelski also filed a writ of habeas corpus pursuant to Section 28 U.S.C.A. 2254 in United States District Court for the Northern District of Ohio. This writ was dismissed on March 18, 2003 to allow Pudelski to exhaust available state remedies. {¶ 4} The facts of Pudelski's underlying conviction were outlined by this court in the direct appeal in State v.Pudelski (March 15, 2001), Cuyahoga App. No. 77172, and are restated here for clarity. {¶ 5} "Appellant John J. Pudelski was charged in a two-count indictment filed April 14, 1999. Count one charged him with aggravated murder in violation of R.C. 2903.01 specifically, purposely causing the death of his infant daughter, Ellie Marie Pudelski. Count two charged him with murder; that is, causing the infant's death as a proximate result of committing or attempting to commit felonious assault, a first or second degree felony that is an offense of violence. {¶ 6} "Appellant moved the court to suppress oral statements he made to the police, to dismiss the death penalty specification on count one, and to dismiss the murder charge contained in count two of the indictment. After a hearing on the motion to suppress, the court denied all three motions. However, the state was given leave to remove the death penalty specification from the indictment on July 23, 1999. {¶ 7} "The case proceeded to trial on August 23, 1999. In addition to the charges of murder and aggravated murder, the jury was also instructed on the lesser included offense of involuntary manslaughter as a proximate result of child endangering. The jury returned a verdict finding appellant not guilty of aggravated murder but guilty of murder. The court sentenced him to fifteen years' to life imprisonment and overruled his motions for acquittal and for a new trial. Appellant timely appealed his conviction and the denial of his post-verdict motions. {¶ 8} "In the state's case at trial, the jury heard testimony from appellant's wife (who was also the mother of the infant victim), medical personnel involved in the delivery and postnatal care of the infant, paramedic and emergency room personnel who responded to the 9-1-1 call regarding the child's death, the county coroner and assistant coroner, and a police officer who investigated the matter. {¶ 9} "The mother testified that the infant girl was delivered by Caesarian section on March 17, 1999, and she took her home four days later. The infant fed every four hours, approximately two and one-half to three ounces of formula or breast milk at each feeding, and behaved normally. The mother never noticed any injury to the infant's head. {¶ 10} "The neonatologist who was present at the infant's birth had noted a caput or bruise under the scalp but above the skull bone on the back of her head. This is a common injury in newborns and does not have any serious effects on the infant's health. A pediatrician who saw the infant on March 18 and 20 reported that he saw no abnormalities. He would not necessarily have noted a caput in his records unless it was an unusual one. He did not note one here. Neither physician noted any cephalohematoma, or swelling and bleeding of the tissue under the bone, which would have been a more serious injury. A home nurse reported that the baby appeared normal and had no bumps or bruises on her head when the nurse saw her on March 23. {¶ 11} "The mother testified that the baby behaved normally throughout the day of Sunday, March 28, 1999. The mother fed her at 8:00 or 9:00 p.m.; the baby consumed almost three and one-half ounces at that time. The mother put the baby to bed at approximately 9:30 p.m., then took a cough medication, Nyquil, and went to bed herself. The baby's crib was located in the mother's bedroom. {¶ 12} "The mother awakened around 12:00 midnight when the baby cried and got up to feed the child. Appellant, her husband, was not in the room when the mother awakened but came in and offered to feed the baby, although he normally went to bed at that time. This was the first time he had fed the baby; he normally paid no attention to her. The mother then went back to sleep. {¶ 13} "The mother awakened at 7:00 a.m. and was immediately concerned because the child had not awakened for her normal feeding at 4:00 a.m. She went to the crib and found the baby in a corner with her head against the bumper pad. Her forehead was cold. The mother picked the baby up and felt for a heart beat but felt none. She observed a lump on the side of the baby's head. {¶ 14} "The mother began to yell for appellant to wake up. It was unusual for appellant to be sleeping at this time; he was usually up at 6:30 a.m. Appellant jumped up and took the baby from the mother and left the room, returning with the telephone. He ordered the mother to leave the bedroom and wait in the living room for paramedics to arrive. {¶ 15} "Paramedics came and took the baby to Euclid Hospital. Appellant and his wife delayed going to the hospital while appellant woke his two daughters from a prior marriage and readied them for school, then took them to his mother's house. Appellant and his wife proceeded from there to the hospital. {¶ 16} "At the hospital, they learned that the baby was dead. They went into a room to see the body, but appellant would not look at her. As they waited in the grieving room for the mother's mother to arrive, appellant said to his wife, Please don't leave me. {¶ 17} "The coroner and assistant coroner testified that the baby died as a result of a cerebral edema, or swelling of the brain, which was caused by a blunt impact that also caused a fracture of the skull. They estimated the time of death at approximately 3:00 a.m., and approximately two to three hours after the injury was inflicted. They opined that she was injured after her midnight feeding. The assistant coroner testified that the child would have survived if medical attention had been sought immediately after the injury occurred. {¶ 18} "The coroner and assistant coroner both opined that the fracture occurred very recently, certainly less than twenty-four hours before the baby's death. There were no signs of healing around it; the edges of the break were sharp and uncalloused and there was fresh blood at the site. There were no macrophages (clean-up cells) at the site of the fracture, though there were some in the adjacent scalp. They opined that these macrophages were present because of the caput that occurred at birth. There was no evidence the fracture was a new break at the same site as a fracture that had occurred earlier. Macrophages would have been present at the fracture site if the fracture were not new. The fracture could not have occurred after death because the body had to have been alive to pump the fresh blood that had oozed around the area. {¶ 19} "The coroner opined that the death was a homicide. She reached this conclusion because the child had a fracture that was not a birth injury, she could not have caused the fracture herself, and nothing accidental had happened, so the injury had to have been inflicted. {¶ 20} "Detective Raymond Jorz testified that appellant and his wife came in to the police station together voluntarily on March 31, 1999, and were interviewed separately. Appellant was interviewed by Detective Jorz and Lieutenant Brooks. They asked appellant whether the baby had suffered any accidental injuries, and appellant said she had not. Appellant related that he had fed the baby around midnight and stayed up with her until approximately 1:30 a.m., then put her in her crib after she went to sleep. He went to bed himself and awakened at approximately 3:30 a.m., used the bathroom, then returned to bed. He did not check on the baby at that time. His wife woke him the following morning after she found the baby cold and unresponsive. {¶ 21} "When police informed appellant that the baby had a skull fracture, appellant suggested that the fracture was caused by the emergency medical technicians or that the coroner was examining the wrong child. He denied knowledge of any injury."State v. Pudelski (March 15, 2001), Cuyahoga App. No. 77172. {¶ 22} Pudelski raises four assignments of error. For the reasons outlined below, we reject Pudelski's claims and affirm the decision of the trial court dismissing Pudelski's postconviction motion. {¶ 23} Pudelski's assignments of error are listed as follows: {¶ 24} ". "Court below erred in dismissing Appellant's post conviction petition where appellant was denied due process of law when trial court refused to provide jury a microscope to view demonstrative slide evidence admitted at trial." {¶ 25} "I. "Court below erred in dismissing appellant's post conviction petition where appellant was denied effective assistance counsel [sic] when his counsel failed to object to the court's refusal to provide the jury a microscope to view demonstrative slide evidence admitted at trial and failed to properly appeal the issue." {¶ 26} "II. "The trial court erred in dismissing Appellant's post conviction petition on grounds of res judicata where appellant was represented by the same trial counsel and Appellant's motion to re-open was denied." {¶ 27} "V. "The trial court violated the Appellant's Fifth, Sixth and Fourteenth Amendment rights in dismissing Appellant's post conviction petition." {¶ 28} Because all of the assignments of error relate to the trial court's failure to provide the jury with a microscope to view evidentiary slides and defense counsel's failure to object to this fact or raise it on the initial appeal, the assignments of error will be addressed together. {¶ 29} We first note that the trial court found that Pudelski's petition was not timely filed. Further, we note that the trial court determined that the issues raised here are precluded by res judicata. {¶ 30} Pudelski filed his petition to vacate or set aside the judgment or sentence on April 21, 2003, more than two years after his conviction and long after the one hundred and eighty days mandated by R.C. 2953.23(A)(1) and (2). In addition, while Pudelski claims he was unfairly prejudiced by having the same counsel at trial and on appeal, the fact remains that he filed a pro se application to reopen his appeal on November 6, 2001, in which he failed to raise the issue involving the trial court's decision to preclude the jury's use of a microscope. {¶ 31} It is well settled that the doctrine of res judicata applies in postconviction relief proceedings. "Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment." State v. Cole (1982), 2 Ohio St.3d 112, 113, citing State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. (Emphasis omitted.) {¶ 32} Pudelski correctly points out that because he was represented by the same counsel at trial and on direct appeal, res judicata would not act as a bar to raising a claim of ineffective assistance of counsel in a subsequent postconviction proceeding. See State v. Lentz (1994), 70 Ohio St.3d 527, 529. However, "[o]nce ineffective assistance of counsel has been raised and adjudicated, res judicata bars its relitigation."State v. Cheren, 73 Ohio St.3d 137, 138, 1995-Ohio-28. Although Pudelski failed to raise the issue of ineffective assistance of counsel in his pro se application to reopen his appeal, he argues that his application was dismissed and the issue was never adjudicated. Even if we were to accept Pudelski's argument about res judicata, we can find no error in the trial court's determination of Pudelski's claims. Not only was the petition untimely, but, also, the claims fail on the merits. In the interests of justice, we will address the core of Pudelski's claim that his counsel was ineffective and the trial court committed error in not providing the jury with a microscope during deliberations. The facts shaping the trial court's determination are outlined as follows: {¶ 33} At trial, during jury deliberations, the jury sought use of a microscope to view tissue sample slides of the victim that had been marked and admitted into evidence. To be viewed, the slides required the use of a large, unique microscope that was not readily available. {¶ 34} The jurors, through the foreperson, submitted two written requests on the issue to the trial court. The questions, as quoted in the appellant's brief from the transcript, are as follows: {¶ 35} "I received the following message from the jury, and I quote, we are requesting, with your permission, a microscope to view the slide evidence period. Thanking you in advance for your time and cooperation." {¶ 36} "The court has another message, which I will read, that the slides were admitted into evidence, and the questions that the foreman asks, and it's a valid question, is how are we to view these, and he adds we have a trained and certified microbiologist among us." {¶ 37} At trial, in an effort to avoid the appearance of prejudice to either side, both the prosecutor and counsel for the defendant agreed to allow the court to address this issue. Thus responsibility for denying the jury the use of the microscope was focused on the trial court rather than on the parties. {¶ 38} The trial court informed the jury on the record that it denied the jury a microscope in part because the jury indicated in the second note that the jury had a "trained and certified microbiologist among us." The court, in part, told the jury: "Now, frankly, that's one of the reasons that I'm declining to produce this microscope. Because the jury is the jury. And the jury is not an expert, per se." {¶ 39} The court added: "So what does the jury have in this case? It has the expert testimony of, I believe, six experts on various points. The jury has its collective recollection, and although the notes are not evidence, the notes have a value to assist the jury in recalling its recollection of the evidence." These facts demonstrate the court was legitimately concerned about the jury taking on an investigatory role. Ohio law precludes independent investigations by jurors. R.C. 2945.79 (A) and (B) expressly outline juror misconduct as a reason for a new trial: {¶ 40} "(A) Irregularity in the proceedings of the court,jury, prosecuting attorney, or the witnesses for the state, or for any order of the court, or abuse of discretion by which the defendant was prevented from having a fair trial; {¶ 41} "(B) Misconduct of the jury, prosecuting attorney, or the witnesses for the state[.]" (Emphasis added.) {¶ 42} In analyzing a case of alleged juror misconduct, a trial court would have to engage in a two-tier inquiry. First, it would have to determine whether juror misconduct occurred. If so, it would then have to determine if the misconduct materially affected the defendant's substantial rights. State v. Jerido, (Feb. 26, 1998), Cuyahoga App. No. 72327. Further, OJI Section 402.21 recommends the following instruction involving investigation by the jurors to avoid the risk of misconduct: {¶ 43} "WARNING. You may not investigate or attempt to obtain additional information on this case outside the courtroom. It is highly improper for anyone of you to attempt to do so." {¶ 44} Here, the trial court was properly precluding the jury from conducting an improper investigation. The record reveals that there were other grounds stated for the court's concern. On the record, the prosecutor noted that the slides in question did not have identifiable marks that would orient a viewer as to what was being observed. The prosecutor outlined this problem: {¶ 45} "Judge, it's the understanding of the state that nowhere on any of the slides is the orientation reflected so that even a physician would have trouble recognizing what portion of the body you are looking at." {¶ 46} In light of the fact that the slides were presented and testified to by an expert, the jury had the evidence before them to consider. Allowing the jurors to conduct an independent investigation in the jury room with a "trained and certified microbiologist" could have so tainted the expert's testimony and prejudiced the role of the jury that the trial court's decision to preclude the use of a microscope was not error. {¶ 47} Pudelski's reliance on State v. Crimi (1995),106 Ohio App.3d 13, for the proposition that the jury should have been provided a microscope is unpersuasive. Crimi involved a jury request to review the videotape of a police chase. Images of a police chase are well within the understanding of a lay person acting as a juror. Reviewing videotape images is in stark contrast to conducting scientific investigations involving autopsy slides in the jury room. {¶ 48} Pudelski also asserts counsel was ineffective for failing to object to the trial court's ruling denying use of the microscope. In evaluating whether a defendant has been denied his Sixth Amendment right to effective assistance of counsel, the ultimate query is "whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done." State v. Hester (1976), 45 Ohio St.2d 71, paragraph four of the syllabus. Moreover, in order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel performed deficiently and that he suffered prejudice from the deficiency. State v. Turner,105 Ohio St.3d 331, 338, 2005-Ohio-1938. "Deficient performance consists of falling below an objective standard of reasonable representation; to prove prejudice, a defendant must demonstrate that, but for counsel's errors, the result of the proceeding would have been different." Id., citing Strickland v. Washington (1984),466 U.S. 668, 687; State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. {¶ 49} Judicial scrutiny of defense counsel's performance must be highly deferential. Strickland, 466 U.S. at 689. In Ohio, there is a presumption that a properly licensed attorney is competent and the defendant has the burden of proof to establish counsel's performance was deficient. State v. Calhoun,86 Ohio St.3d 279, 1999-Ohio-102. Further, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. Strickland, 466 U.S. at 690. {¶ 50} Here, it is clear that defense counsel understood the jury could not conduct an independent investigation. It was not error for defense counsel to fail to object to something that would be improper. A number of experts testified, and the trial court admitted a set of slides offered by the defense. It is apparent from the limited record before us that any examination of the slides would have to be considered in light of the accompanying expert testimony. For these reasons, we would overrule Pudelski's assignments of error and affirm the decision of the trial court. Judgment affirmed. It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Celebrezze, Jr., P.J., and Karpinski, J., concur.

2016-07-06 06:36:45.951631+00

OPINION {¶ 1} Appellant Charles Lantz appeals the decision of the Fairfield County Court of Common Pleas on the basis that his convictions for aggravated theft, passing bad checks, theft and grand theft are against the manifest weight and sufficiency of the evidence. Appellant also claims error with the trial court's sentencing. The following facts give rise to this appeal. {¶ 2} On October 12, 1994, Charles and Judy Smith retained appellant, a licensed attorney,1 to represent them in a personal injury case arising from an automobile accident that occurred a year earlier. Mr. and Mrs. Smith signed a contingent fee contract with appellant. Appellant thereafter negotiated settlements of $100,000 from Allstate Insurance Company and $200,000 from Celina Mutual Insurance. On February 11, 1998, appellant deposited the check from Allstate Insurance Company into his IOLTA account with First Bremen Bank. At that time, appellant issued a check, to the Smiths, in the amount of $60,000, as partial distribution of their share of the settlement. {¶ 3} On March 18, 1998, appellant deposited the check from Celina Mutual Insurance into his IOLTA account with First Breman Bank. Appellant informed the Smiths that he would attempt to negotiate a reduction in the amount of some of their medical bills they had incurred as a result of the accident and would pay the balances due from their remaining funds in his trust account. The Smiths continued to receive bills from their medical creditors. Although the Smiths contacted appellant's office several times, he did not return their telephone calls. Further, the Smiths were unaware that from February 18, 1998, until November 23, 1998, appellant wrote twenty-three checks and made one transfer from his IOLTA account containing the Smiths' funds. This amount exceeded the $100,000 contingent fee that appellant was entitled to pursuant to his agreement with the Smiths. {¶ 4} The Smith's largest debt for medical bills was to their medical insurance carrier, Ohio Carpenter's Health Welfare Fund ("Ohio Fund"). Teresa Pofok, the attorney who represented Ohio Fund in its subrogation claim against the Smiths, attempted to contact appellant by letter and telephone, to no avail. Attorney Pofok eventually contacted the Fairfield County Clerk of Courts and learned that the Smith's case had been settled and dismissed and that medical expenses were included in the settlement. {¶ 5} On November 6, 1998, Attorney Pofok sent a letter to appellant and the Smiths in which she indicated Ohio Fund would file suit in fifteen days if payment was not received on its subrogation claim. Appellant met with the Smiths and agreed to provide copies of checks to the creditors. Appellant drafted a check for $76,188 and paid four medical bills including the $59,000 owed to Ohio Fund. However, appellant did not contact Attorney Pofok, as he promised the Smiths he would do, to discuss reduction of the debt owed to Ohio Fund. {¶ 6} The check for Ohio Fund was presented to First Bremen Bank on December 23 and 28, 1998. At that time, appellant's account had a balance of $41,985.12. Ned Hinton, vice-president of First Bremen Bank, learned of the overdraft on December 24, 1998, and contacted appellant. Appellant informed Mr. Hinton that the check should not have been presented and asked that the check be returned. {¶ 7} After the check was returned for insufficient funds, Attorney Pofok sent appellant a letter dated January 7, 1999, in which she indicated the check had been dishonored. After the check was returned for insufficient funds, appellant would not return the telephone calls of either Attorney Pofok or the Smiths. In early February 1999, the Lancaster Police Department was contacted. On February 18, 1999, Captain Bailey contacted First Bremen Bank and learned that the account balance was approximately $18,000 short of covering the check. As a result, appellant was arrested and a charge of passing bad checks was filed in municipal court. Following his arrest, appellant deposited sufficient funds in the account to cover the check. {¶ 8} The second incident giving rise to this appeal occurred in January 1999 when Phil Kaiser retained appellant to represent him regarding injuries he suffered in an accident in July 1997. Mr. Kaiser signed a contingent fee contract. Subsequently, appellant negotiated a settlement, as well as a wrongful death settlement for the death of Mr. Kaiser's father, who died as a result of the accident. {¶ 9} On February 22, 1999, three checks were deposited into appellant's IOLTA account with Firstar Bank. The checks were from: Leader Insurance in the amount of $9,333.34; State Farm Insurance in the amount of $34,833.34 and Farthing Harsha in the amount of $5,000. The checks totaled $49,166.68. On March 12, 1999, appellant drafted a check for Mr. Kaiser in the amount of $25,000. After receiving this check, Mr. Kaiser requested that appellant give him the remainder of his money. Finally, on October 9, 2000, appellant drafted Mr. Kaiser a check in the amount of $4,750 on the Firstar Bank IOLTA account. Appellant informed Mr. Kaiser that was the remainder of the money he was entitled to receive. {¶ 10} Mr. Kaiser attempted to cash the check at the Logan branch of the Firstar Bank and was informed that insufficient funds were in the account to cover it. Mr. Kaiser eventually went to the Lancaster Police Department to report this incident. Thereafter, appellant received a cashier's check in the amount of $4,750. {¶ 11} As noted above, during this time period, appellant had two IOLTA accounts. Appellant used the Firstar IOLTA account as an office and personal account. On several occasions, appellant paid his secretary's wages from this account. Appellant also gave his wife money from this account and paid bills for AEP, Ameritech and Web TV. {¶ 12} As a result of these incidents, the Fairfield County Grand Jury indicted appellant for one count of aggravated theft, two counts of passing bad checks, one count of theft and one count of grand theft. Appellant waived his right to a jury trial and this matter proceeded to a bench trial on April 11, 2001. At the conclusion of the evidence, the trial court took the matter under consideration and on June 13, 2001, issued a written verdict and judgment entry finding appellant guilty as charged in the indictment. {¶ 13} Appellant appeared for sentencing on August 8, 2001. The trial court imposed a sixty-day jail sentence, a term of community control for three years and ordered restitution. Appellant timely filed his notice of appeal and sets forth the following assignments of error for our consideration: {¶ 14} "I. THE TRIAL COURT ERRED FINDING THE DEFENDANT GUILTY AS TO COUNT ONE (SIC) IS NOT SUPPORTED BY THE QUANTUM OF EVIDENCE REQUIRED BY LAW IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW." {¶ 15} "II. THE TRIAL COURT HAVING FOUND THE AMOUNT ALLEGED TO HAVE BEEN SUBJECT TO THE THEFT OFFENSE TO BE $59,000.00, THE FINDING THAT THE DEFENDANT WAS GUILTY OF A THIRD DEGREE FELONY IS ERROR AS A MATTER OF LAW." {¶ 16} "III. THE TRIAL COURT FINDING THE DEFENDANT GUILTY TO THE CHARGE OF PASSING BAD CHECKS IN COUNT TWO IS NOT SUPPORTED BY THE QUANTUM OF EVIDENCE REQUIRED BY LAW IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW." {¶ 17} "IV. THE TRIAL COURT FINDING THE DEFENDANT GUILTY OF THEFT AS TO COUNT NO. THREE IS NOT SUPPORTED BY THE QUANTUM OF EVIDENCE REQUIRED BY LAW, IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW." {¶ 18} "V. THE TRIAL COURT FINDING THE DEFENDANT GUILTY OF PASSING BAD CHECKS AS SET FORTH IN COUNT NO. FOUR IS NOT SUPPORTED BY THE QUANTUM OF EVIDENCE REQUIRED BY LAW IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW." {¶ 19} "VI. THE TRIAL COURT FINDING THE DEFENDANT GUILTY OF THEFT, A FOURTH DEGREE FELONY, AS SET FORTH IN COUNT FIVE IS NOT SUPPORTED BY THE QUANTUM OF EVIDENCE REQUIRED BY LAW IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW." I {¶ 20} Appellant claims, in his first assignment of error, the trial court's verdict finding him guilty of theft2, as charged in count one of the indictment, is against the manifest weight and sufficiency of the evidence. We disagree. {¶ 21} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991), 61 Ohio St. 3d 259. On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App. 3d 172,175. See also, State v. Thompkins 78 Ohio St. 3d 380, 1997-Ohio-52. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. It is based upon these standards that we review appellant's first assignment of error. {¶ 22} We begin by noting the trial court made a clerical error when it found appellant guilty of section (B)(3) of R.C. 2913.01, a section that does not exist in the Revised Code. The superseding indictment charged appellant, in count one, with a violation of R.C.2913.02(A)(2). We believe this is the statute the trial court meant to refer to as the trial court specifically found appellant guilty of count one in the verdict and judgment entry. {¶ 23} R.C. 2913.02(A)(2) provides as follows: {¶ 24} "(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services of any in the following ways: * * * {¶ 25} "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;" {¶ 26} Appellant claims the evidence presented by the state does not support a conviction for theft pursuant to R.C. 2913.02(A)(2). Specifically, appellant contends funds were initially distributed to the Smiths and Mr. Smith gave appellant permission to retain some of the funds to pay medical bills incurred as a result of the accident. Appellant also maintains he is not guilty of aggravated theft because the Smiths eventually received all of the funds to which they were entitled and, as promised, he paid the balance of the Smiths' medical expenses from these funds. {¶ 27} There is no dispute that the Smiths gave appellant their consent to retain funds, negotiate reductions in medical bills, pay medical bills and take the fee to which he was entitled. However, at trial, the evidence established that appellant acted beyond the scope of the Smiths' consent. Appellant deposited the two settlement checks in February and March 1998. See State's Exhibits 8 and 10. From the time the first check was deposited in February 1998 until November 23, 1998, appellant drafted twenty-three checks from the IOLTA account containing the Smiths' money and made one transfer from the account. See State's Exhibits 8 and 10. This activity exceeded the $100,000 contingent fee to which appellant was entitled to receive. {¶ 28} Also, Attorney Pofok testified at trial that the Ohio Fund had a standard policy of deducting one-third from subrogation claims. Tr. at 119-120. However, appellant never asked for a reduction of the medical bills and instead sent a check, in the amount of $59,000, to Ohio Fund. Id. at 120-121. There were insufficient funds in the account to cover the check and appellant continued to hold these funds until he was charged with a crime. {¶ 29} Based upon this evidence, we conclude the trial court's decision finding appellant guilty of grand theft, as contained in count one of the indictment, was not against the manifest weight and sufficiency of the evidence. Appellant clearly acted beyond the scope of the Smiths' consent when he retained possession of the settlement funds and used more than the agreed retainer fee for his own personal expenses. {¶ 30} Appellant also contends, under this assignment of error, that the trial court erred when it failed to make specific findings as to the elements of the offense of grand theft. We find the trial court did not err when it made a general finding of guilt as Crim.R. 23(C) permits the court, in a case without a jury, to make a general finding. {¶ 31} Appellant's first assignment of error is overruled. II {¶ 32} Appellant contends, in his second assignment of error, the trial court erred when it found him guilty of a third degree felony as it pertains to count one of the indictment for aggravated theft. We agree. {¶ 33} The trial court determined the amount involved, in count one, for the aggravated theft offense was $59,000. However, in the verdict and judgment entry the trial court sentenced appellant to a third degree felony, which is in contravention of R.C. 2913.02(B). This statute provides, in pertinent part: {¶ 34} "(B) * * * If the value of the property or services stolen is five thousand dollars or more and is less than one hundred thousand dollars, a violation of this section is grand theft, a felony of the fourth degree." {¶ 35} Thus, based upon the above language, since the trial court determined the amount of the theft was $59,000, the trial court should have found appellant guilty of a fourth degree felony and not a third degree felony. Appellant's sentence does not require modification because the trial court imposed a community control sanction and did not impose a prison term. Accordingly, appellant's conviction for grand theft, in count one of the indictment, is modified to reflect a conviction for a fourth degree felony and not a third degree felony. {¶ 36} Appellant's second assignment of error is sustained. III {¶ 37} In his third assignment of error, appellant maintains the trial court's verdict finding him guilty of passing bad checks, as charged in count two of the indictment, is against the manifest weight and sufficiency of the evidence. We disagree. {¶ 38} The crime of passing bad checks is contained in R.C.2913.11(A) and provides as follows: {¶ 39} "(A) No person, with purpose to defraud, shall issue or transfer or cause to be issued or transferred a check or other negotiable instrument, knowing that it will be dishonored." {¶ 40} Appellant sets forth several arguments in support of this assignment of error. First, appellant contends the trial court improperly found that he violated R.C. 2913.02(B) as to the second count of the indictment. We agree. R.C. 2913.02(B) is the sentencing section for the offense of theft. A review of the verdict and judgment entry indicates the trial court committed a clerical error in referring to R.C. 2913.02(B), as the trial court specifically found appellant guilty of count two of the indictment for passing bad checks, which is a violation of R.C. 2913.11. {¶ 41} Appellant next maintains the trial court erred when it failed to make specific findings of fact as to the elements of the offense of passing bad checks. However, as noted in the second assignment of error, because this was a trial to the bench, the trial court was permitted to make a general finding. {¶ 42} Appellant also contends the evidence at trial did not support a finding that he operated with intent to defraud or knowledge that the $59,000 check issued to Ohio Fund would be dishonored. Pursuant to DR 9-102(B)(3), appellant, as a licensed attorney, was required to maintain complete records of all funds of his clients that came into his possession and render appropriate accounts regarding these funds. On cross-examination, appellant admitted that he did not have complete records of his IOLTA account with Bremen Bank as he informed Ned Hinton, vice-president of the bank, that the check should not have been issued until he got an accounting of all of his personal injury cases. Tr. at 439. Clearly, appellant knew there were problems with the account. {¶ 43} Further, on December 24, 1998, appellant received notice that the $59,000 check was dishonored. Appellant also received telephone calls from Mrs. Smith and Attorney Pofok about the dishonored check. Despite these notices, appellant took no action to pay the check until his arrest in February 1999. {¶ 44} Finally, appellant argues there was a lack of proof of intent to defraud. R.C. 2913.01(B) defines "defraud" as: {¶ 45} "(B) * * * to knowingly obtain, by deception, some benefit for oneself or another, or to knowingly cause, by deception, some detriment to another." {¶ 46} We find the evidence in this case supports the conclusion that appellant acted with intent to defraud. Appellant attempted to defraud Ohio Fund of $59,000 despite the fact that Attorney Pofok and Mrs. Smith contacted him about the dishonored check. Thus, appellant's actions were beneficial to himself and detrimental to the Smiths and Ohio Fund. Accordingly, the trial court's verdict finding appellant guilty of passing bad checks, as contained in count three of the indictment, is not against the manifest weight and sufficiency of the evidence. {¶ 47} Appellant's third assignment of error is sustained as it pertains to the reference of the improper statute. IV {¶ 48} Appellant maintains, in his fourth assignment of error, the trial court's verdict finding him guilty of theft, as charged in count three of the indictment, is against the manifest weight and sufficiency of the evidence. We disagree. {¶ 49} The indictment charged appellant with a violation of R.C.2913.02(A)(2). In support of this assignment of error, appellant first contends the trial court failed to make specific findings of fact to support its conclusion that appellant violated the theft statute. However, as noted above, Crim.R. 23(C) permits a general finding. {¶ 50} Appellant next maintains he paid Mr. Kaiser the money owed to him within twenty-four hours of receiving notice that the $4,750 check drawn on the Firstar account had been dishonored. Although appellant paid Mr. Kaiser this money, State's Exhibit 13 establishes that appellant never paid Mr. Kaiser $4,027.79, which was the amount of money remaining in appellant's possession from the original settlement. {¶ 51} Based upon the above evidence, the trial court's verdict finding appellant guilty of theft, as charged in count three of the indictment, was not against the manifest weight and sufficiency of the evidence. {¶ 52} Appellant's fourth assignment of error is overruled. V {¶ 53} In his fifth assignment of error, appellant contends the trial court's verdict finding him guilty of theft, as charged in count four of the indictment, is against the manifest weight and sufficiency of the evidence. We disagree. {¶ 54} Count four of the indictment refers to a check appellant issued from the Firstar Bank account in the amount of $4,750. Appellant maintains the state presented no evidence at trial that he knew the check would be dishonored or that he operated with an intent to defraud. Instead, appellant claims he believed the Firstar account had sufficient funds and a $2,500 reduction in the account was the result of a returned item. Appellant also maintains Firstar Bank never dishonored the $4,750 check. {¶ 55} The evidence presented at trial indicates the Firstar Bank account had insufficient funds to cover the $4,750 check, even if the $2,500 check deposited into the account had not been returned. The evidence also indicates Mr. Kaiser contacted appellant several times about the dishonored check. State's Exhibit 16. Further, Mr. Kaiser's settlement funds were not in the Firstar Bank account as appellant had deposited the funds, in March 1999, into the First Bremen Bank account. Finally, Carol Goss, an employee of Firstar Bank, testified that the check was dishonored when presented by Mr. Kaiser, however, it was not stamped insufficient funds because Mr. Kaiser presented it in person rather than depositing it to his own account. {¶ 56} We conclude the trial court's verdict finding appellant guilty of passing bad checks, as it pertains to count four of the indictment, is not against the manifest weight or sufficiency of the evidence. However, we do agree with appellant's argument under R.C.2945.75(A)(2), which provides as follows: {¶ 57} "(A) When the presence of one or more additional elements makes an offense one of more serious degree: * * * {¶ 58} "(2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged." {¶ 59} Appellant argues that because the trial court did not make a finding as to the degree of the crime, the verdict constitutes a finding of the least degree of the crime charged. Under R.C. 2913.11(D), the least degree that may be charged is a first degree misdemeanor. Because the trial court did not state, in the verdict and judgment entry, the degree of the crime charged for passing bad checks, we find the conviction is for a first degree misdemeanor and modify appellant's conviction accordingly. The trial court did not sentence appellant to a term of imprisonment as to count four so there is no error in the sentence. {¶ 60} Appellant's Fifth Assignment of Error is sustained as it pertains to the degree of the offense. VI {¶ 61} In his final assignment of error, appellant maintains the trial court's verdict finding him guilty of grand theft, as contained in count five of the indictment, is against the manifest weight and sufficiency of the evidence. We disagree. {¶ 62} Appellant again challenges the fact that the trial court did not make specific findings of fact. As noted above, this argument lacks merit under Crim.R. 23(C). Based upon the evidence presented by the state, the trial court's verdict is not against the manifest weight and sufficiency of the evidence. Appellant used the Firstar IOLTA account for his own personal expenses. Appellant also retained funds that rightfully belonged to his clients. {¶ 63} However, as with the above assignment of error, the trial court did not make a finding as to the degree of the offense. Therefore, under R.C. 2945.75(A)(2), appellant must be sentenced to the least degree of theft, which is a first degree misdemeanor. Accordingly, appellant's conviction for grand theft, in count five of the indictment, is modified to reflect a conviction for a first degree misdemeanor. There is no need to re-sentence appellant as the trial court did not impose a prison term. {¶ 64} Appellant's Sixth Assignment of Error is sustained as it pertains to the degree of the offense. {¶ 65} For the foregoing reasons, the decision of the Court of Common Pleas, Fairfield County, Ohio, is hereby affirmed in part and reversed in part. By: WISE, J. EDWARDS, J., concurs separately. HOFFMAN, P.J., concurs in part and dissents in part. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed in part and reversed in part. Appellant's conviction for grand theft, in count one of the indictment, is modified to reflect a conviction for a fourth degree felony. Appellant's conviction for passing bad checks, in count four of the indictment, is modified to reflect a conviction for a first degree misdemeanor. Appellant's conviction for grand theft, in count five of the indictment, is modified to reflect a conviction for a first degree misdemeanor. Costs to be split equally between the parties. 1 On May 6, 2002, the Ohio Supreme Court indefinitely suspended appellant from the practice of law. See Disciplinary Counsel v. Lantz,95 Ohio St. 3d 132, 2002-Ohio-1757. 2 The trial court improperly concluded that appellant was guilty of aggravated theft as to count one. Instead, due to the dollar amount involved, appellant committed the offense of grand theft and should have been sentenced to a fourth degree felony. See assignment of error number two.

2016-07-06 06:36:46.063637+00

OPINION {¶ 1} On August 24, 2002, Mansfield Police Officer Jason Bammann observed appellant, Marco Feagin, operating a motor vehicle. Officer Bammann was aware that appellant had been under several driving suspensions. Officer Bammann radioed dispatch and inquired of appellant's driving status. Prior to a response, appellant pulled into a parking lot. Officer Bammann stopped and asked appellant about his driving status. During this conversation, dispatch confirmed that appellant's driver's license was under suspension. Officer Bammann arrested appellant and placed him in the back of the cruiser. A subsequent inventory search of appellant's vehicle revealed a baggie of cocaine. {¶ 2} On October 9, 2002, the Richland County Grand Jury indicted appellant on one count of possession of cocaine in violation of R.C.2925.11(C)(1)(a). {¶ 3} On October 1, 2004, appellant filed a motion to suppress, claiming an illegal stop.1 A hearing was held on October 4, 2004. At the conclusion of the hearing, the trial court denied the motion. {¶ 4} A jury trial commenced on October 6, 2004. The jury found appellant guilty as charged. By sentencing entry filed October 8, 2004, the trial court sentenced appellant to eleven months in prison. {¶ 5} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶ 6} "THE TRIAL COURT DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS UNDER THE U.S. AND OHIO CONSTITUTIONS BY DENYING THE MOTION TO SUPPRESS EVIDENCE, AS BOTH THE STOP AND THE SUBSEQUENT SEARCH OF THE VEHICLE WHERE ILLEGAL." I {¶ 7} Appellant claims the trial court erred in denying his motion to suppress. We disagree. {¶ 8} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. State v. Fanning (1982),1 Ohio St. 3d 19; State v. Klein (1991), 73 Ohio App. 3d 485; State v.Guysinger (1993), 86 Ohio App. 3d 592. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. State v. Williams (1993),86 Ohio App. 3d 37. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App. 3d 93; State v. Claytor (1993), 85 Ohio App. 3d 623; Guysinger. As the United States Supreme Court held in Ornelas v. U.S. (1996), 116 S. Ct. 1657, 1663, ". . . as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." {¶ 9} Appellant's motion to suppress alleged Officer Bammann lacked probable cause to stop him. Appellant now assigns as error the stop and subsequent inventory search of the vehicle. Based upon case law, we will limit our review to the issue of probable cause to stop. State v. Awan (1986), 22 Ohio St. 3d 120; State v. Childs (1968), 14 Ohio St. 2d 56. {¶ 10} In Terry v. Ohio (1968), 392 U.S. 1, 22, the United States Supreme Court determined that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." However, for the propriety of a brief investigatory stop pursuant to Terry, the police officer involved "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be viewed in the light of the totality of the surrounding circumstances" presented to the police officer. State v. Freeman (1980), 64 Ohio St. 2d 291, paragraph one of the syllabus. {¶ 11} Officer Bammann recognized appellant while driving a vehicle. October 4, 2004 T. at 4-5. He was aware that appellant had been under several driving suspensions. Id. Officer Bammann made a U-turn to follow appellant and immediately radioed for a driver's license status on appellant. Id. at 5. Although Officer Bammann turned on his overhead lights to effectuate the U-turn, he did not continue their use and did not use them to stop appellant. Id. at 10, 17-18. {¶ 12} After Officer Bammann made the turn, appellant sped up and pulled into a parking lot and parked. Id. Appellant was seated in his vehicle when Officer Bammann pulled up. Id. at 12. All of this transpired prior to any response from dispatch regarding appellant's driver's license status. Id. at 17-18. Appellant exited the vehicle while Officer Bammann was radioing dispatch about the license inquiry. Id. at 19. It was at this time that Officer Bammann asked appellant about this driver's license status. Id. After confirmation from dispatch that appellant's driver's license was in fact suspended, appellant was arrested for driving under suspension. {¶ 13} The first issue is whether or not this was a stop or a consensual encounter. The evidence supports the conclusion that it was not a stop. Although Officer Bammann turned to follow appellant while waiting for information on his driver's license status, he did not effectuate a stop. Officer Bammann testified he was not going to stop appellant until he received the requested information from dispatch. Id. at 18. The brief encounter of appellant and Officer Bammann is not prohibited under Terry. If appellant had had a driver's license, the encounter would have ceased. {¶ 14} Even if Officer Bammann had stopped appellant's vehicle, there existed in his mind a reasonable suspicion that appellant did not possess a driver's license. Based upon Officer Bammann's prior arrests of appellant and his personal knowledge of appellant's suspensions, we find sufficient evidence of reasonable articulable facts. {¶ 15} As stated previously, because appellant's motion to suppress did not raise the issue of the inventory search, we will not address it. {¶ 16} Upon review, we find the trial court did not err in denying appellant's motion to suppress. {¶ 17} The sole assignment of error is denied. {¶ 18} The judgment of the Court of Common Pleas of Richland County, Ohio is hereby affirmed. Farmer, J., Boggins, P.J. and Gwin, J. concur. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. 1 The actual motion is file stamped September 31, 2004. The docket lists the filing as October 1, 2004.