Case Name |
Case No. |
Topics and Issues |
Author |
Decided |
WebCite |
State v. Weese |
2013-CA-61 |
The
appellate record of convictions resulting from agreed-upon pleas and
sentences reveals no non-frivolous issues for review. Judgment affirmed. |
Hall |
7/25/2014 |
2014-Ohio-3267 |
State v. Ward |
25868 |
Appellate
counsel filed an Anders brief concluding that there are no meritorious
issues to present on appeal. Neither the Appellant nor his counsel
raised any potential assignments of error having arguable merit for
review. After conducting an independent review of the proceedings, we
agree that there are no issues with arguable merit for appeal.
Affirmed. |
Welbaum |
7/25/2014 |
2014-Ohio-3266 |
State v. Rowe |
25993 |
Defendant’s
convictions on two counts of aggravated menacing were supported by
sufficient evidence and were not against the manifest weight of the
evidence, despite the reliance by the State on the testimony of two
children, who were the victims of the alleged offenses. (The defense
also relied on child witnesses.) In a bench trial, we presume that the
trial court disregarded any improper hearsay evidence. Judgment
affirmed. |
Froelich |
7/25/2014 |
2014-Ohio-3265 |
PNC Bank, N.A. v. Creative Cabinet Sys., Inc. |
2013-CA-14, 2013-CA-15 |
Appellant
appeals from a trial court order giving escrowed funds temporarily to
the Clerk of Courts. This order is not final under R.C. 2505.02, so
jurisdiction to consider this appeal’s merits is lacking. Appeal
dismissed. |
Hall |
7/25/2014 |
2014-Ohio-3264 |
Whitaker v. Paru Selvam, L.L.C. |
26103, 26108 |
The
trial court did not err in concluding that corporate defendants who were
accused of fraudulent transfers were properly served with the
complaint. The corporate defendants also received an opportunity to
show in writing why default judgment should not be entered. They,
therefore, received all process that they were due under Civ.R. 55(A).
Furthermore, assuming for purposes of argument that a procedural
irregularity occurred, the defendants waived any error by failing to
object in the trial court. The trial court also complied with
Civ.R.55(C), because the default judgment awarded the same relief that
had been requested in the complaint. In addition, the trial court did
not abuse its discretion by failing to allow the filing of an
intervening defendant’s proposed amended answer and counterclaim.
Justice did not require the filing of the answer and counterclaim.
Finally, the trial court did not err in failing to consider the
application of res judicata, as the matter was not properly raised and
was not before the court. Affirmed. |
Welbaum |
7/25/2014 |
2014-Ohio-3263 |
McCarty v. Pedraza |
2013-CA-42 |
The
trial court did not err by entering partial summary judgment on the
issue of negligence and by awarding damages for attorney fees to
mitigate damages, and for the loss of a counterclaim, in Appellees’
claim for legal malpractice. But the trial court did err by also
awarding Appellees an amount equal to the amount of the underlying
default judgment entered against them as a result of the malpractice
where Appellees failed to present sufficient evidence that no judgment,
or only a judgment of a lesser amount, would have been entered against
them had the attorney timely filed an answer on their behalf. Judgment
affirmed in part and reversed in part; remanded. (Froelich, P.J.,
dissenting in part and concurring in part.) |
Hall |
7/25/2014 |
2014-Ohio-3262 |
LaSalle Bank Natl. Assn. v. Brown |
25822 |
The
trial court did not err in overruling a motion to vacate filed by the
purchaser at a foreclosure sale, after confirmation of the sale. The
purchaser lacked standing to appeal the decision of the trial court
because she failed to file a motion to intervene pursuant to Civ.R.
24(C). Furthermore, the purchaser could not collaterally attack the
foreclosure judgment as a nonparty, because the bank that originally
filed the foreclosure action had standing to sue. The bank was the owner
of the note and mortgage, and was entitled to enforce the note as a
nonholder in possession of the instrument. Even if the purchaser has
standing to appeal, her claim is barred by caveat emptor, as any defects
in title or in the court proceedings were of public record and could
have been discovered prior to the judicial sale. Finally, assuming for
purposes of argument that the bank lacked standing when the foreclosure
action was initially filed, the judgment would be only voidable, not
void. However, the purchaser failed to file a motion to intervene and
also failed to file a motion to set the judgment aside under Civ.R.
60(B). Affirmed. (Donovan, J., dissenting). |
Welbaum |
7/25/2014 |
2014-Ohio-3261 |
Village of St. Paris v. Galluzzo |
2014-CA-4 |
In
appeal from conviction and sentence for violation of a municipal
ordinance prohibiting driving with an expired vehicle registration, the
defendant’s assignments of error are without merit. The trial court had
both subject-matter and personal jurisdiction. The trial court did not
err in striking the defendant’s demurrer, which is not a pleading
recognized in Ohio. The ordinance does not infringe upon the
defendant’s constitutional right to travel. The defendant’s motor
vehicle is not exempt from registration requirements as a “consumer
good,” under the Uniform Commercial Code. The ordinance is not a “bill
of pains and penalties” prohibited by the Eighth Amendment to the United
States Constitution. The trial court did not improperly deny the
defendant access to its rulings. Neither did the trial court improperly
deny the defendant’s request for findings of fact and conclusions of
law pursuant to Civ.R. 52. Affirmed. |
Fain |
7/25/2014 |
2014-Ohio-3260 |
State v. Eberhart |
26045, 26046 |
The
trial court did not err in rejecting the appellant’s argument that it
lacked personal jurisdiction over him. Personal service of two traffic
citations and summonses for misdemeanor offenses gave the Miamisburg
Municipal Court personal jurisdiction over the appellant. Judgment
affirmed. |
Hall |
7/25/2014 |
2014-Ohio-3259 |
Corey v. Corey |
2013-CA-73 |
(1)
The trial court did not err by relying on the guardian ad litem’s
written report. The report was admitted into evidence without objection.
Appellant may not object for the first time on appeal, and there is no
plain error. (2) The trial court did not err by changing the children’s
sole residential parent from Appellant to Appellee. Given the evidence
presented, the court’s findings under R.C. 3109.04(D)(1)(a) are
reasonable. Judgment affirmed. |
Hall |
7/25/2014 |
2014-Ohio-3258 |
State v. Brown |
26035 |
Trial
court did not err when it overruled appellant’s motion to suppress
because even though he was under arrest, his statements were admissible
under the “public safety exception” to the Miranda rule. The questions
posed to appellant by the deputy without the benefit of Miranda warnings
were objectively reasonable given the immediate danger presented by a
potentially loaded handgun which may have been discarded in the area
surrounding an apartment complex where many adults and children were
present. Judgment affirmed. |
Donovan |
7/25/2014 |
2014-Ohio-3257 |
State v. Williams |
2013 CA 74 |
Trial
court did not err in denying defendant’s motion for relief from a
default judgment, pursuant to Civ.R. 60(B). Trial court did not abuse
its discretion in concluding that defendant did not demonstrate that his
failure to respond to the complaint was due to “excusable neglect”
under Civ.R. 60(B)(1) or fraud by the plaintiff under Civ.R. 60(B)(3).
Judgment affirmed. |
Froelich |
7/18/2014 |
2014-Ohio-3169 |
State v. Rothermel |
26004 |
The
trial court’s decision finding that Appellant was not acting in
self-defense when he committed assault was not against the manifest
weight of the evidence. The record indicated that Appellant did not
have a bona fide belief that he was in imminent danger of death or great
bodily harm and that the only means of escape from such danger was to
use deadly force. Additionally, Appellant used more force than
reasonably necessary. Affirmed. |
Welbaum |
7/18/2014 |
2014-Ohio-3168 |
Jackson v. Force |
2014 CA 6 |
Prospective
buyers of farm brought suit against seller of farm after seller
indicated that she had received a better offer and repudiated the
agreement. Trial court did not err in granting summary judgment to
seller on the prospective buyers’ claims for fraud/ misrepresentation
and specific performance. Although the trial court erred in finding
that there was no mutual assent and that mutual mistake rendered the
contract void, specific performance was nevertheless unavailable where
seller signed the agreement as an attorney-in-fact, the principal’s
interest was limited to a life estate, and the principal had died,
extinguishing the life estate interest. Regardless of whether
prospective buyers were justified in relying on seller’s representation
that she had authority to sell the entire farm, summary judgment on the
fraud/ misrepresentation claim was proper where there was no evidence
that seller intended to mislead the buyers at the time the agreement was
signed. Trial court properly dismissed claim against real estate agent
for tortious interference with contract claim where no enforceable
contract existed when agent contacted seller. Judgment affirmed. |
Froelich |
7/18/2014 |
2014-Ohio-3167 |
State v. Herron |
25850 |
The
trial court did not err in overruling Appellant’s motion to suppress
evidence, since a substantial crack in the windshield of the vehicle in
which Appellant was a passenger supported a reasonable, articulable
suspicion that the vehicle was in an unsafe condition, and since, under
the totality of the circumstances, the driver of the vehicle voluntarily
consented to a search of the vehicle (which produced a weapon) in the
course of the lawful stop. Judgment affirmed. |
Donovan |
7/18/2014 |
2014-Ohio-3166 |
State v. Cook |
2013 CA 22 |
On
appeal, defendant challenged for the first time trial judge’s presiding
over defendant’s community control revocation hearing when the judge had
personally participated in a prior revocation hearing while the county
prosecutor. Defendant waived his challenge to the trial judge’s
participation in the second revocation hearing by failing to seek
recusal or disqualification prior to the hearing. Defendant did not
establish that his trial counsel was ineffective for failing to seek
recusal of the trial judge, to request a competency hearing or to enter a
not guilty by reason of insanity plea. Judgment affirmed. |
Froelich |
7/18/2014 |
2014-Ohio-3165 |
State v. Burrows |
25918 |
In
prosecution for Having a Weapon While Under a Disability, the trial
court did not err in overruling an objection to the admission of
defendant’s confession that he had fired a shotgun outside his house.
The presence of spent shotgun shells outside his house and a stipulation
that the defendant was under a disability constituted sufficient
evidence of the fact that the crime was committed, and that the
defendant committed it, to satisfy the corpus delicti rule. The
evidence in the record was sufficient to sustain the defendant’s
conviction. The jury’s finding that the defendant had failed to prove,
by a preponderance of the evidence, the affirmative defense of
self-defense, is not against the manifest weight of the evidence.
Affirmed. (Hall, J., concurring). |
Fain |
7/18/2014 |
2014-Ohio-3164 |
State v. Baker |
25828 |
Defendant’s
convictions for murder, aggravated robbery, and felonious assault were
supported by the evidence and were not against the manifest weight of
the evidence. Defendant was not denied the effective assistance of
counsel. Judgment affirmed. |
Froelich |
7/18/2014 |
2014-Ohio-3163 |
Haggerty v. Upchurch |
25912 |
The
trial court’s judgment dismissing Appellee’s will-contest action under
Civ.R. 3 and 4 is not only correct, but required. The action was never
commenced. Therefore whether the court also correctly concluded that the
statute of limitations in R.C. 2107.76 does not bar the action is a
moot issue. Judgment affirmed. |
Hall |
7/18/2014 |
2014-Ohio-3162 |
In re S.A. |
25994, 26001 |
The
trial court did not err in awarding permanent custody of the parties’
children to Montgomery County Children’s Services. There is sufficient
evidence in the record to support the trial court’s findings that the
children either cannot be, or should not be, placed with either parent
within a reasonable time, and that it is in the best interests of the
children that their permanent custody be awarded to the agency.
Mother’s trial counsel was not ineffective for having failed to object
to the admission of evidence of an improper relationship between Mother
and her father. The trial court could have found that the probative
value of this evidence outweighed any unfair prejudice its admission
would cause; therefore, if trial counsel had objected, the objection
would likely have been overruled. Affirmed. |
Fain |
7/11/2014 |
2014-Ohio-3063 |
State v. Maxwell |
2013-CA-63 |
Trial
court erred in overruling motion to suppress evidence obtained as the
result of a traffic stop. Police officer’s testimony that: (1)
defendant, when making a signaled lane change from the left lane to the
right lane, straddled the line dividing the two lanes for 50 to 100
feet, while traveling at 45 miles per hour; (2) defendant then left his
right-turn signal on for an additional 300 yards before exiting the
highway to the right; and (3) defendant exited the highway at a point
where there was no access to the Wright Patterson Air Force Base,
neither establishes probable cause to believe that a traffic violation
was committed, nor reasonable and articulable suspicion of impaired
driving. Therefore, the stop was unlawful, and the evidence obtained as
a result of the stop should have been suppressed. Defendant’s OMVI
conviction Reversed, and cause Remanded. (Welbaum, J., dissenting.) |
Fain |
7/11/2014 |
2014-Ohio-3062 |
In re M.W. |
26107 |
The
record supports the trial court’s finding that awarding Montgomery
County Children Services permanent custody was in the best interest of
the appellant’s two children. Judgment affirmed. |
Hall |
7/11/2014 |
2014-Ohio-3061 |
In re M.O. |
25965 |
In
response to a motion from children services for legal custody, the trial
court erred in granting a third extension of temporary custody, which
continued temporary custody for a period exceeding two years. R.C.
2151.353(F) and R.C. 2151.415(D) preclude a third extension of temporary
custody and a total period of temporary custody exceeding two years.
See also In re D.J., 2d Dist. Montgomery No. 21666, 2006-Ohio-6304.
Judgment reversed and remanded. |
Froelich |
7/11/2014 |
2014-Ohio-3060 |
State v. Louden |
2013 CA 30, 2013 CA 31 |
Appellant
forfeited any claim of bias and prejudice when he elected to proceed
with his second revocation hearing before the trial judge without filing
an affidavit of disqualification in the Supreme Court of Ohio. Record
fails to demonstrate that trial counsel was ineffective for having
failed to file an affidavit of disqualification. The trial court erred
in ordering appellant to pay his court-appointed legal fees as costs of
the case. Reimbursement for such costs is available to the county only
through a civil action. State v. Miller, 2d Dist. Clark No. 08CA0090,
2010-Ohio-4760, ¶ 61; R.C. 2941.51(D). The portion of the court’s
judgment imposing legal fees as costs is vacated; in all other respects,
the judgment is affirmed. |
Donovan |
7/11/2014 |
2014-Ohio-3059 |
State v. Kesting |
25789 |
Defendant’s
conviction for domestic violence was not against the manifest weight of
the evidence. The trial court did not improperly reserve its ruling on
defendant’s Crim.R. 29(A) motion at the end of the State’s case; the
court overruled the motion, even though the court stated that it would
consider further argument at a later time. The trial court’s remarks to
the witness while instructing her to answer questions directly were not
prejudicial. No ineffective assistance of counsel was demonstrated.
Judgment affirmed. (Donovan, J., concurring). |
Froelich |
7/11/2014 |
2014-Ohio-3058 |
State v. Jemison |
25967 |
The
appellant waived any objection to the transfer of his community control
revocation case from one judge to another by failing to object. The
record fails to support the appellant’s argument that the trial court
engaged in improper ex parte communication with another judge or with
Ohio Supreme Court personnel. The trial court did not abuse its
discretion in revoking the appellant’s community control based on his
failure to make any real effort to obtain a job or a GED for roughly
seven months. Judgment affirmed. |
Hall |
7/11/2014 |
2014-Ohio-3057 |
State v. Drager |
26067 |
The
trial court did not err in finding that Appellant had two prior OVI
convictions within six years of his current OVI offense and enhancing
his sentence pursuant to R.C. 4511.19(G)(1)(c). Because Appellant was
represented by counsel during his prior convictions, he is now
prohibited from collaterally attacking the validity of those convictions
in the present case. Affirmed. |
Welbaum |
7/11/2014 |
2014-Ohio-3056 |
Gibbs v. Speedway, L.L.C. |
26026 |
The
trial court did not err in rendering summary judgment against the
plaintiff in a slip and fall case. The plaintiff could not identify the
cause of his fall. Assuming that his fall was due to ice, the snow and
ice were the result of natural accumulations. Further assuming that the
lighting was insufficient, the danger was open and obvious. Finally,
the defendant is not liable under a theory of negligence per se, because
an applicable municipal ordinance pertaining to lighting of spaces is
not a specific rule that establishes a standard of conduct replacing the
“reasonable person” standard. Affirmed. |
Welbaum |
7/11/2014 |
2014-Ohio-3055 |
State v. Scerba |
2013 CA 96 |
The
defendant entered a guilty plea, withdrew it, and then entered a second,
more favorable plea agreement with the State. The record refutes
defendant’s claims that his second guilty plea, on which he was
convicted, was entered involuntarily and that he was denied the
effective assistance of counsel. Judgment affirmed. |
Froelich |
7/3/2014 |
2014-Ohio-3002 |
Ransdell v. Ransdell |
25831 |
The trial court lacked jurisdiction to modify Appellant’s lump sum spousal support obligation. Judgment reversed and vacated. |
Donovan |
7/3/2014 |
2014-Ohio-3001 |
State v. Patton |
2013-CA-41 |
The
trial court did not abuse its discretion in denying the appellant’s
post-sentence motion for the return of property where the State made an
unchallenged representation that the property had potential evidentiary
value in a Colorado criminal case against the defendant. Judgment
affirmed. |
Hall |
7/3/2014 |
2014-Ohio-3000 |
State v. Minnich |
2013 CA 40 |
The
trial court did not err when it accepted appellant’s no contest plea
because the record establishes that the plea was entered into in a
knowing, intelligent, and voluntary fashion. The trial court’s
imposition of a thirty-month prison sentence was neither contrary to law
nor an abuse of discretion. Judgment affirmed. |
Donovan |
7/3/2014 |
2014-Ohio-2999 |
Johnson v. Wal-Mart Stores E., L.P. |
25972 |
Trial
court did not err in rendering summary judgment for store owner in suit
by customer injured when she and another customer on one of the store’s
motorized shopping carts either collided, or nearly collided, just past a
shopping display. The store owner established that it did not breach
any duty of care the breach of which was alleged to have caused the
plaintiff’s injury. The danger of a collision between a pedestrian
customer and a customer using a motorized cart is sufficiently obvious
that the owner of the store had no duty to warn either customer of that
danger. There was neither any allegation in the complaint, nor any
evidence offered by either party, that the motorized cart was not
operated properly, or malfunctioned in any way. The store owner had no
duty not to erect displays above eye-level in its store-long,
fifteen-foot wide aisles. Affirmed. |
Fain |
7/3/2014 |
2014-Ohio-2998 |
State v. Erdman |
25814 |
No
non-frivolous issues for appellate review. The appellant is challenging
the trial court’s revocation of community control, but he has completed
the sentence imposed upon revocation. Appeal dismissed as moot. |
Hall |
7/3/2014 |
2014-Ohio-2997 |
BD Dev. v. Vandalia |
25930 |
The
trial court did not err in allowing the introduction of additional
evidence in an administrative appeal, pursuant to R.C. 2506.03, since
the testimony before the City Council was not given under oath. The
City’s decision was not supported by substantial, reliable, probative
evidence. The trial court, which had extensive authority to weigh the
evidence adduced at the hearing, did not abuse its discretion in
concluding that Appellee complied with the zoning regulation at issue
and that a variance was not required. Judgment affirmed. |
Donovan |
7/3/2014 |
2014-Ohio-2996 |
Cartwright v. Batner |
25938 |
The
trial court did not abuse its discretion in determining that an
accounting for a revocable trust was adequate for periods between June
2007 and 2009. However, the court did err in concluding that a claim
regarding misuse of a power of attorney before June 2007 belonged to the
estate, and that the remedy was in probate court. Appellant was
entitled to bring an action in common pleas court, which had concurrent
jurisdiction over the matter. The court also erred in concluding, on
the merits of this claim, that Appellant failed to prove a misuse of
powers of attorney granted to Appellee. There was sufficient evidence
of transfers to Appellee, causing the burden to shift to Appellee to
show that his conduct was free of undue influence and fraud. Appellee
failed to present such evidence. Additionally, Appellee violated
prohibitions against self dealing with respect to a condominium that was
part of the irrevocable trust, and should be required to reimburse the
trust for the fair market rental value of the condominium from the time
that he began living there. The trial court further erred in dismissing
Appellant’s claim for civil damages under R.C. 2307.60 and R.C.
2307.61. Because of the error regarding Appellee’s alleged misuse of
the power of attorney and Appellant’s entitlement to bring a civil
action under R.C. 2307.60 and R.C. 2307.61, the attorney fee awards must
be reversed. Affirmed in part, Reversed in part, and remanded for
further proceedings. |
Welbaum |
7/3/2014 |
2014-Ohio-2995 |
Auer v. Paliath |
25888 |
Appellee
has a meritorious defense to present, and the trial court did not abuse
its discretion in granting Appellee’s timely motion for relief from
judgment on the basis of “mistake, inadvertence, surprise or excusable
neglect.” Judgment affirmed. |
Donovan |
7/3/2014 |
2014-Ohio-2994 |
Tye v. Upper Valley Med. Ctr. |
25997 |
The
judgment of the trial court that postsettlement interest accrued as of
November 8, 2012, and not on the settlement date of July 21, 2012, is
error; the Tyes are entitled to postsettlment interest on the cash
portion of their settlement from the settlement date as of July 21,
2012. The trial court’s October 22, 2013 decision is modified to reflect
that postsettlement interest on the cash portion began to run on July
21, 2012. Judgment modified, and as modified, affirmed. |
Donovan |
6/27/2014 |
2014-Ohio-2822 |
State v. Taylor |
2013-CA-59 |
The
State concedes, and we determine that the trial court erred in finding
the defendant statutorily ineligible for intervention in lieu of
conviction under the S.B. 160 version of the ILC statute. Judgment
reversed and cause remanded. |
Hall |
6/27/2014 |
2014-Ohio-2821 |
State v. Peck |
25999 |
Trial
court did not err in overruling motion to suppress evidence obtained as
the result of a warrantless entry into the defendant’s hotel room.
Another person in the hotel had told the police that the defendant had
waved a gun at him. Two others corroborated this report. When the
police officers knocked and identified themselves as police officers, a
woman opened the door partially. The officers saw the defendant dive
towards the floor. The report of the defendant’s menacing use of a gun,
combined with his sudden diving motion upon seeing the police at the
door, gave the police both probable cause and exigent circumstances for
the warrantless entry, based upon legitimate concern for their own
safety and the safety of the other occupant or occupants in the room.
Affirmed. |
Fain |
6/27/2014 |
2014-Ohio-2820 |
State v. McCain |
26020 |
The
trial court did not err in overruling Appellant’s petitions for
postconviction relief given that the petitions were untimely filed and
the claims asserted therein were barred by res judicata. Affirmed. |
Welbaum |
6/27/2014 |
2014-Ohio-2819 |
Bank of Am., N.A. v. Longberry |
2014-CA-9 |
The
trial court did not err in granting summary judgment in favor of
Appellee on its foreclosure action. Appellee presented sufficient
evidentiary materials entitling it to summary judgment, and Appellants
failed to file a response establishing the existence of a genuine issue
of material fact for trial. Affirmed. |
Welbaum |
6/27/2014 |
2014-Ohio-2818 |
Bell v. Kinman |
2014-CA-2 |
Trial
court did not err when it entered an agreed order modifying child
support and parenting time. The trial court had the jurisdiction to
enter the order. The record reflects that the terms of the order were
the subject of an in-court agreement between the parties, and the record
does not support the appellant’s contention that her agreement was the
product of duress. Affirmed. |
Fain |
6/27/2014 |
2014-Ohio-2817 |
State v. Kendrick |
26042 |
The
trial court did not err in denying the appellant’s motion for a finding
under R.C. 149.43(B)(8) to support a public-records request. That
statute requires an inmate seeking records related to a criminal
investigation or prosecution to support his public-records request with a
finding by the sentencing judge that the information sought is
necessary to support what appears to be a justiciable claim. The
appellant undisputably had no justiciable claim where no proceedings
were pending, he pled guilty to multiple counts of rape years ago, and
his convictions long since had become final. Judgment affirmed. |
Hall |
6/27/2014 |
2014-Ohio-2816 |
State v. Johnson |
25773 |
The
phrase “ready at hand” as used in R.C. 2923.12 is not unconstitutionally
void for vagueness. Thus, the trial court did not err when it relied
on that portion of the statute in order to find appellant guilty of
carrying a concealed weapon. R.C. 2923.12 does not violate appellant’s
Second Amendment right to bear arms. R.C. 2923.16 and R.C. 2923.12 do
not conflict in such a manner that appellant could not conform his
conduct to one statute without violating the other. Trial court did not
err when it overruled appellant’s motion to suppress because a stop or
arrest in violation of the territorial limits imposed by statute upon a
police officer’s arrest powers is not a constitutional violation, and
will not, therefore, support the extraordinary remedy of exclusion of
evidence obtained as a result of an unlawful stop or arrest. Judgment
affirmed. |
Donovan |
6/27/2014 |
2014-Ohio-2815 |
In re J.W. |
2013-CA-113, 2013-CA-114 |
The
trial court did not err in awarding permanent custody to the children
services agency. The court carefully considered all appropriate factors,
and its decision is supported by clear and convincing evidence in the
record. The trial court also did not err in failing to appoint counsel
for the minor children. Counsel need only be appointed in certain
circumstances, and is not required where, as here, references to a
desire to reunify were a child's only occasional expression of a wish to
be with a parent. In addition, the trial court did not
unconstitutionally penalize the parents for their poverty. Instead, the
parents chose to spend their money staying in hotels rather than
obtaining housing for the children, and additionally failed to comply
with even the most minimal requirements of their case plan. Finally,
the trial court based its findings on R.C. 2151.414(B)(1)(a), not on
R.C. 2151.414(B)(1)(d), as Appellant contends, and there is no need to
consider arguments as to jurisdiction under the latter subsection of the
statute. Affirmed. (Fain, J., dissenting.) |
Welbaum |
6/27/2014 |
2014-Ohio-2814 |
In re J.O. |
25903 |
Juvenile
court’s decision finding appellant delinquent for committing rape was
not against the manifest weight of the evidence. Pursuant to the plain
language in R.C. 2152.82, the juvenile court was required to classify
appellant as a Tier III juvenile sex offender at the time of his
disposition because it was his second sex offense as a juvenile.
Appellant did not receive ineffective assistance when his counsel failed
to object to the juvenile court’s classification of appellant as a Tier
III juvenile sex offender registrant at the dispositional hearing.
Judgment affirmed. |
Donovan |
6/27/2014 |
2014-Ohio-2813 |
State v. Farmer |
25956 |
The
trial court did not abuse its discretion in denying the appellant’s
motion for leave to file a delayed motion for a new trial. The record
supports the trial court’s finding that the appellant could have filed a
new-trial motion within the 120 days allowed by Crim.R. 33(B). Even
accepting the appellant’s claim that he reasonably could not have
complied with the 120-day time requirement, he failed to show that he
filed his motion for leave within a reasonable time after discovering
the evidence at issue. Judgment affirmed. |
Hall |
6/27/2014 |
2014-Ohio-2812 |
Certain Underwriters at Lloyds v. Woodling |
2013-CA-7 |
Insurance
company entered into automobile insurance contract in Michigan, with a
Michigan resident. The insured was injured in an automobile accident in
Ohio, and insurance company paid its insured certain benefits under the
policy. Insurance company then sought to recover in Ohio against the
tortfeasor, as subrogee of its insured. Under Michigan law, an
insurance company may not recover benefits directly against a
tortfeasor, as subrogee. Michigan law governed this issue, which arises
from the contract between the insurance company and its insured, which
contract was entered into in Michigan with a Michigan resident.
Therefore, trial court did not err in rendering summary judgment in
favor of the defendant tortfeasor. Affirmed. |
Fain |
6/27/2014 |
2014-Ohio-2811 |
Anguiano v. Ohio Dept. of Edn. |
2014-CA-2 |
The
trial court reversed the Department of Education decision when the trial
court determined that the Appellant had not considered Appellee’s
rehabilitation in its decision to deny Appellee’s application for a
pupil activity permit. The trial court erred because Appellee has been
convicted of a felony and an offense of violence, and he cannot, as a
matter of law, satisfy the rehabilitation criteria in former Ohio
Adm.Code 3301 20 01. Judgment reversed. |
Hall |
6/27/2014 |
2014-Ohio-2810 |
State v. Tyner |
25405 |
The
trial court did not err in overruling the appellant’s motion to suppress
field-sobriety test results and blood-alcohol test results where the
record reveals substantial compliance with applicable administrative
regulations. The State concedes, and we find, that the trial court erred
in imposing partially consecutive sentences without making the findings
required by R.C. 2929.14(C)(4). Judgment affirmed in part, reversed in
part, and cause remanded for resentencing. |
Hall |
6/27/2014 |
2014-Ohio-2809 |
Sacksteder v. Senney |
25892 |
Appellant
is plaintiff in an ongoing legal malpractice action against defendants.
Appellant filed this separate action for replevin, conversion, and
breach of fiduciary duty in order to obtain the “original” of the case
file maintained by his former attorneys. The attorneys provided copies
of the files, at their cost, and an opportunity for appellant and his
new lawyer to physically inspect the “original.” The trial court did
not err by entering summary judgment for Appellees on Appellants’
claims. Except for original documents or materials provided to an
attorney by the client, which are the client’s property, the client
does not own or have the immediate right to possess the original papers
or documents produced by the attorney in Appellants’ case files.
Judgment affirmed. |
Hall |
6/20/2014 |
2014-Ohio-2678 |
State v. Ratliff |
2013-CA-24 |
Anders
brief filed. Defendant pled guilty to Possession of Heroin and
Tampering with Evidence. A third count, Trafficking in Heroin, was
dismissed. Defendant was sentenced to 24 months imprisonment for
Possession of Heroin, and to 12 months imprisonment for Tampering with
Evidence, to be served concurrently with one another, but consecutively
with a separate sentence imposed in proceedings in Union County. The
trial court made the findings required by statute for the imposition of
consecutive sentences. The record reflects that when he tendered his
plea, the defendant was correctly advised of the possibility that his
sentences in this case could be ordered to be served consecutively to
any sentence imposed in the Union County case. The record reflects that
the trial court complied with the requirements of Crim.R. 11 when it
accepted the defendant’s plea. Independent review of the record reveals
no potential assignments of error having arguable merit. Affirmed. |
Fain |
6/20/2014 |
2014-Ohio-2677 |
State v. Kay |
25761 |
Defendant’s
conviction for Murder is supported by sufficient evidence, and is not
against the manifest weight of the evidence. The trial court did not
commit plain error when it failed to merge defendant’s Aggravated
Burglary and Aggravated Robbery convictions. Evidence in record did not
establish that the defendant did not separately commit the offenses.
As the State concedes, the trial court did err in imposing consecutive
sentences without making the findings required by R.C. 2929.14(C)(4).
That part of the judgment imposing consecutive sentences is Reversed;
the judgment is Affirmed in all other respects; and the cause is
Remanded for further proceedings with respect to the issue of whether to
impose the sentences consecutively or concurrently. |
Fain |
6/20/2014 |
2014-Ohio-2676 |
State v. Haynes |
2013 CA 90 |
Issues
raised in defendant’s brief are barred by res judicata, because he
could have raised them on direct appeal and did not do so; we will not
consider these issues. Several of the issues were also raised in a
motion for delayed appeal, which we overruled. Judgment affirmed. |
Froelich |
6/20/2014 |
2014-Ohio-2675 |
In re H.Y. |
26082 |
The
trial court did not abuse its discretion in overruling Appellant’s
motion for new trial, based on the removal of the magistrate who heard
the custody case. Civ.R. 63(B), relied on by Appellant, does not apply
to magistrates, and the trial court properly conducted an independent
review of the record, as is required by Juv.R. 40(D)(4)(d). The court
also did not abuse its discretion in awarding custody of the child to
the father. R.C. 3109.042 provides only a statutory designation of legal
and residential custody to unmarried females. However, when a court
makes an initial custody decision, the parents stand on equal footing.
Furthermore, Appellant was not the primary caretaker; both parents spent
equal amounts of time caring for the child. Appellant also had some
mental health issues that the court was entitled to consider. Affirmed. |
Welbaum |
6/20/2014 |
2014-Ohio-2674 |
State v. Fannon |
25957 |
The
trial court did not err in overruling the Appellant’s post-sentence
motion to withdraw his guilty plea, as the claims in the motion are
barred by the doctrine of res judicata. In addition, the motion was
untimely and failed to establish manifest injustice. Affirmed. |
Welbaum |
6/20/2014 |
2014-Ohio-2673 |
State v. Christian |
25256 |
The
affidavit in support of the search warrant for Defendant’s home provided
a reasonable basis for the issuance of the warrant; Defendant’s motion
to suppress was properly overruled. There was insufficient evidence
from which the jury could have concluded that Defendant engaged in a
pattern of corrupt activity. Accordingly, that conviction will be
reversed, as will the trial court’s order that Defendant forfeit her
home based on her conviction for engaging in a pattern of corrupt
activity; further, a forfeiture specification was not in the indictment.
The amount of a fraudulent insurance claim and the economic harm
caused by making false alarm determine the degree of the respective
offenses, but do not constitute elements of the offenses to which the
mens rea applies. H.B. 86, which went into effect while this case was
pending, changed the threshold amounts of a fraudulent insurance claim
and of “economic harm” which constitute the various degrees of insurance
fraud and making false alarm, respectively. The trial court properly
sentenced Defendant in accordance with H.B. 86, but it erred in failing
to also convict her of the (lower) degrees of the offenses provided by
H.B. 86. An insurance company can be entitled to restitution as the
victim of an offense (insurance fraud), despite the fact that it cannot
be paid restitution as a third-party who had reimbursed a victim; costs
of investigating insurance fraud can constitute economic harm forming a
basis for an order of restitution to the insurance company, even if the
investigation resulted in the denial of the claim. The trial court
erred in permitting the sheriff’s department to include the entire cost
of its investigation into burglary and insurance fraud as “economic
loss” resulting from the offense of making false alarm. Applying the
new threshold amounts set forth in H.B. 86, and including only those
costs directly associated with making false alarm, Defendant should have
been convicted of lesser degrees of insurance fraud (Count Two) and
making false alarm (Count Three). Law enforcement agencies and fire
departments are not “victims” entitled to restitution for the cost of
the services they render. Defendant responded to a question at trial by
stating that another witness (her former employee) had been convicted
of attempted manslaughter in the past. The trial court did not abuse
its discretion in striking Defendant’s answer, which was not responsive
to the question she had been asked, or in clarifying to the jury that
the witness-employee had not, in fact, ever been convicted of that
offense. The trial court also did not abuse its discretion in calling a
man whom Defendant had allegedly paid to commit burglary and vandalism
as a court’s witness; the witness had an interest in protecting
Defendant and had not shown any willingness to cooperate with the State.
Defendant’s impeachment through her prior inconsistent conduct was not
improper, and the recorded conversation by which she was impeached was
properly authenticated. Judgment affirmed in part, reversed in part,
and remanded. Defendant’s conviction for engaging in a pattern of
corrupt activity will be reversed, as will the forfeiture of her house
ordered in connection with that conviction. Defendant’s convictions for
insurance fraud (Count Two) and making false alarm (Count Three) will be
modified to reflect lower degrees of the offenses; as modified, these
convictions will be affirmed. The awards of restitution to the
insurance companies will be affirmed, and the awards of restitution to
the sheriff’s department and fire department will be reversed. The
matter is remanded for resentencing on Counts Two and Three, and for
entry of a judgment consistent with this opinion. (Hall, J., concurring
and dissenting.) |
Froelich |
6/20/2014 |
2014-Ohio-2672 |
State v. Chaffin |
25220 |
The
trial court did not err in overruling Appellant’s motion to suppress
evidence of his pre-trial identification on remand. Likewise the trial
court did not err in holding a supplementary evidentiary hearing on the
suppression issue. In addition, it was not an abuse of discretion for
the trial court to poll the jurors in order to determine whether juror
number four’s verdicts were made voluntarily. The trial court also did
not err in refusing to grant a mistrial based on an alleged Bruton
violation, because no such violation occurred. Appellant’s trial
counsel was not ineffective in failing to move for a separate trial
given that Appellant was not prejudiced by having his case tried jointly
with his co-defendant. The State concedes that the trial court
erroneously imposed court costs and prematurely disapproved of
transitional control in the court’s termination entry. The remaining
assignments of error were not raised in Appellant’s original appeal and
are barred by the doctrine of res judicata. Affirmed in part, reversed
in part, and remanded for the limited purposes of permitting Appellant
to request a waiver of court costs and for the trial court to revise the
language in the termination entry. |
Welbaum |
6/20/2014 |
2014-Ohio-2671 |
State v. Cain |
2013-CA-31 |
The
trial court did not err in denying the appellant’s delayed post-sentence
motion to withdraw his guilty pleas where (1) the motion offered no
support for his claim that the parties mistakenly had believed his
actions constituted rape and gross sexual imposition and (2) he did not
cite anything to support his claim of actual innocence. The appellant
cannot challenge the trial court’s denial of a suppression motion in the
context of an appeal from the denial of post-sentence plea-withdrawal
motion. Judgment affirmed. |
Hall |
6/20/2014 |
2014-Ohio-2670 |
State v. Butler |
2013-CA-110 |
The
trial court did not err in ordering Appellant to pay $1,500 in
restitution, as this amount of restitution bears a reasonable
relationship to the victim’s economic loss as a result of Appellant
passing the victim a bad check. Affirmed. |
Welbaum |
6/20/2014 |
2014-Ohio-2669 |
Brock v. Food, Folks & Fun, Inc. |
25719 |
The
trial court did not err when it granted summary judgment to appellees.
The trial court concluded that any hazard associated with the handicap
accessible ramp was an open and obvious condition, thereby rendering it
unforeseeable to appellees that an individual exercising ordinary care
would suffer any injury when walking on or near the access ramp. The
trial court further held that appellant’s admitted failure to recognize
the ordinary danger associated with the handicap accessible ramp was not
foreseeable by appellees. Finally, the trial court did not err when
it held that the modifications and construction of the handicap
accessible ramp from appellee’s original site plans constituted material
deviations, thereby negating any duty appellee, Schaeffer, owed to
appellant. Judgment affirmed. |
Donovan |
6/20/2014 |
2014-Ohio-2668 |
Bass v. Bass |
25922 |
Trial
court acted within its discretion in concluding that Husband had failed
to prove the existence of a loan from his son and in concluding that
diminution in value of Wife’s IRA was due to fluctuations in the market,
rather than misconduct. Trial court also reasonably awarded the
marital home and a condo owned by the parties to Wife, based on its
conclusion that she was more likely than Husband to be able to obtain
financing which would allow her to reimburse Husband for his share of
the equity. The record does not support Husband’s claim that he was
required to contribute to a second mortgage taken by Wife on the marital
home while the divorce was pending. Judgment affirmed. |
Froelich |
6/20/2014 |
2014-Ohio-2667 |
State v. Thomas |
2013-CA-11 |
The
trial court did not err in overruling Appellant’s petition for
postconviction relief given that the petition was untimely filed and
otherwise lacked merit. Affirmed. |
Welbaum |
6/20/2014 |
2014-Ohio-2666 |
State Auto. Mut., Inc. v. Brannan |
26063 |
The
municipal court lacked authority as a matter of law to sua sponte vacate
the default judgment entered against Brannan in the absence of a
motion. Judgment reversed and vacated. Remanded for further proceedings
consistent with this opinion. |
Donovan |
6/13/2014 |
2014-Ohio-2557 |
State v. Staples |
2013-CA-52 |
The
trial court lacked jurisdiction to rule on Appellant’s petition for
postconviction relief, as the petition was untimely filed and Appellant
was not unduly prevented from discovering the facts underlying the
claims in his petition. Accordingly, the trial court’s denial of
Appellant’s petition for postconviction relief was proper. Affirmed. |
Welbaum |
6/13/2014 |
2014-Ohio-2556 |
State v. Jefferson |
26022 |
The
trial court did not err in denying defendant’s motion for resentencing
based on void judgment. The trial court’s alleged failure to merge
allied offenses of similar import did not render judgment of conviction
void and defendant’s argument was barred by res judicata. Even if the
argument were considered, the trial court did not err in failing to
merge his offenses prior to accepting his guilty pleas and defendant did
not establish that his offenses were allied offenses of similar import.
Trial court did not err in denying defendant’s post-sentence motion to
withdraw guilty plea. Trial court was not required by Crim.R. 11 to
consider allied offenses of similar import when informing him of the
“maximum penalty” for his offenses. Defendant did not demonstrate that a
manifest injustice had occurred. Judgment affirmed. |
Froelich |
6/13/2014 |
2014-Ohio-2555 |
State v. Gladman |
2013 CA 99 |
Evidence
adduced at the suppression hearing established that the deputy sheriff
had a reasonable articulable basis upon which to initiate a traffic stop
of the appellant and conduct field sobriety tests. The results of
appellant’s breath test are not necessary or required to sustain the
trial court’s finding of guilt after his no contest plea to a violation
of R.C. 4511.19(A)(1)(a). Thus, any issues regarding the admissibility
of the results of the breathalyzer exam administered by the deputy
sheriff are moot. Judgment affirmed. |
Donovan |
6/13/2014 |
2014-Ohio-2554 |
State v. Byrd |
25842 |
Defendant’s
conviction for attempted rape was not against the manifest weight of
the evidence. The trial court did not commit plain error in allowing
“other acts” evidence that defendant made unwanted sexual advances
toward the complainant’s mother one week after the attempted rape, and
defense counsel did not render ineffective assistance in failing to
object to that evidence. The other acts evidence was admissible to
explain how and why the teenager revealed the attempted rape. Moreover,
the incident with the mother was incorporated in counsel’s defense
strategy. Although the prosecutor’s isolated statement on closing was
improper, it did not affect the outcome of the trial. Defendant’s
five-year sentence was not contrary to law and, even if we applied an
abuse of discretion standard, the sentence was not an abuse of
discretion. Judgment affirmed. |
Froelich |
6/13/2014 |
2014-Ohio-2553 |
Brumage v. Green |
2014-CA-7 |
In
negligence action, where injuries to the plaintiff arose from his being
flipped off an all-terrain vehicle he was driving, he was engaged in a
recreational activity, the primary-assumption-of-risk doctrine applies,
and the trial court did not err in rendering summary judgment for the
defendant. Affirmed. |
Fain |
6/13/2014 |
2014-Ohio-2552 |
State v. Brown |
25653 |
The
trial court erred in failing to advise the appellant at sentencing of
the length of his post-release control term. The appellant was entitled
to raise the issue in a post-judgment motion because the failure to
inform him of the duration of post-release control at sentencing
rendered that portion of his sentence void. Trial court order affirmed
in part, reversed in part, and cause remanded for a limited
re-sentencing to correct the imposition of post-release control. |
Wright |
6/13/2014 |
2014-Ohio-2551 |
State v. Taylor |
25764 |
The
trial court did not err in overruling the appellant’s pre-trial
suppression motion. The appellant traveled from the Detroit area to a
local pawn shop and back while voluntarily carrying a cell phone that
emitted “pings.” He had no reasonable expectation of privacy in these
pings, which were recorded by the cell phone carrier. Therefore, the
Fourth Amendment did not prohibit police from tracking the location of
the pings without a warrant. Judgment affirmed. |
Hall |
6/13/2014 |
2014-Ohio-2550 |
Mann v. Resolution T Co., L.L.C. |
2014-CA-5 |
The
trial court did not err in rendering summary judgment on behalf of the
Appellee regarding Appellants’ attempt to recover attorney fees paid to
Appellee in connection with the sale of Appellants’ property in a prior
foreclosure action. The foreclosure decree was a final appealable
order, and issues pertaining to attorney fees should have been raised in
the foreclosure action, by way of appeal or by a Civ.R. 60(B) motion
for relief from judgment. Appellant’s claims in this action, therefore,
are barred by res judicata. However, the trial court did err in
rendering summary judgment on behalf of Appellee with respect to
Appellants’ claim for slander of title. There are genuine issues of
material fact concerning the slander of title claim, and whether
Appellee acted in bad faith. Affirmed in part, Reversed in part, and
Remanded for further proceedings. |
Welbaum |
6/6/2014 |
2014-Ohio-2451 |
PNC Bank, N.A. v. O'Malley |
25931 |
The
trial court did not err in confirming the sale of mortgagors’ property
following foreclosure. The plaintiff bank’s standing to bring the
foreclosure action was pled in its complaint, which included allegations
of two loan modification agreements entered into between the mortgagors
and National City Mortgage Co., copies of which were attached to the
complaint, and allegations of successions in interest from National City
Mortgage Co., to National City Mortgage, Inc., to National City Real
Estate Services LLC, to the plaintiff. Judgment Affirmed. (Donovan,
J., concurs in judgment only.) (Hall, J., concurring.) |
Fain |
6/6/2014 |
2014-Ohio-2450 |
Loughman v. Loughman |
25835 |
The
trial court did not abuse its discretion in dividing the parties’
property and debts, and it did not abuse its discretion in ordering
that Appellant’s visitation with the minor children be supervised.
Judgment affirmed. |
Donovan |
6/6/2014 |
2014-Ohio-2449 |
State v. Hall |
25963, 25964 |
Two
consolidated appeals, one from a conviction and sentence, following a
guilty plea, to Assault and Petty Theft, misdemeanors of the first
degree, and one from a conviction and sentence, also following a guilty
plea, to Felonious Assault (Deadly Weapon), a felony of the second
degree. Defendant’s sentence for Felonious Assault was an agreed
sentence of four years. His sentences for the misdemeanors were 180
days for each, to be served concurrently with one another, and
concurrently with the felony sentence. Anders brief filed. No potential
assignments of error having arguable merit found. Affirmed. |
Fain |
6/6/2014 |
2014-Ohio-2448 |
Haight v. Cheap Escape Co. |
25983 |
The
trial court erred in concluding that the definition of “employee” set
forth in R.C. 4111.14(B)(1) was not in conflict with the definition of
that term contained in the Fair Labor Standards Act, 29 U.S.C. 203(e),
and as incorporated into the Ohio Fair Minimum Wage Amendment, Ohio
Constitution, Article II, Section 34a. The legislature was permitted to
pass laws implementing Section 34a and to extend its coverage, but it
was not permitted to restrict any of its provisions. Insofar as R.C.
4111.14(B)(1) impermissibly narrows the definition of “employee” set
forth in Section 34a, it is invalid. Judgment reversed and remanded.
(Welbaum, J., dissenting). |
Froelich |
6/6/2014 |
2014-Ohio-2447 |
State v. Greaves |
2013-CA-91 |
The
trial court did not err in failing to suppress field-sobriety test
results where reasonable, articulable suspicion of alcohol-related
impairment existed and justified administering the tests. The tests were
conducted in substantial compliance with National Highway Traffic
Safety Administration (NHTSA) standards. The trial court’s ruling that
precluded the defense expert witness from rendering opinion testimony as
to whether the field-sobriety tests had been administered in
substantial compliance with standards was not an abuse of discretion.
There was no testimony offered to show that the witness had
particularized training, knowledge or experience in the meaning of
substantial compliance in the context of field sobriety tests.
Substantial compliance with NHTSA’s requirements “is a legal standard
for a court’s determination.” State v. Davis, 2d Dist. Clark No. 2008 CA
65, 2009-Ohio-3759, ¶ 18. Moreover, any error in the trial court’s
failure to qualify a defense witness as an expert was harmless. The
witness testified at length about NHTSA standards and his observations
from the cruiser video of the tests performed. Expert testimony from the
witness on the precise legal issue of substantial compliance, even if
admissible, would not have impacted the trial court or our own
independent review. Judgment affirmed. |
Hall |
6/6/2014 |
2014-Ohio-2446 |
State v. Gorby |
25875 |
Trial
court erred in overruling motion to suppress evidence seized from person
of defendant during pat-down search for weapons. Officer’s testimony
that upon feeling “a lumpy cellophane bag,” she “knew it was
contraband,” while sufficient to establish that she believed it to be
contraband, was insufficient to establish that she had probable cause to
believe it was contraband. Officer did not base her conclusion that
what she felt was contraband upon her training, experience, or any other
facts to support her conclusion. Reversed and Remanded. (Welbaum, J.,
concurring.) |
Fain |
6/6/2014 |
2014-Ohio-2445 |
In re D.S. |
2013 CA 51 |
The
trial court reasonably concluded that child’s best interest was served
by granting legal custody to a non-relative with whom he had lived since
birth. Legal custodian provided stability and consistency that allowed
the child to thrive, and Mother had not demonstrated knowledge of or a
consistent ability to deal with child’s needs. Judgment affirmed. |
Froelich |
6/6/2014 |
2014-Ohio-2444 |
State v. Collins |
25874 |
Appellant’s
five-year sentence for unlawful sexual conduct with a minor, a felony
of the third degree, was neither contrary to law nor an abuse of
discretion. Appellant’s conviction was not against the manifest weight
of the evidence. Judgment affirmed. |
Donovan |
6/6/2014 |
2014-Ohio-2443 |
State v. Brown |
26002 |
Appellate
counsel filed an Anders brief concluding that there are no meritorious
issues to present on appeal. Neither the Appellant nor his counsel
raised any potential assignments of error having arguable merit. After
conducting an independent review of the proceedings, we agree that there
are no meritorious issues for appeal. Affirmed. |
Welbaum |
6/6/2014 |
2014-Ohio-2442 |
State v. Summers |
2013 CA 16 |
The
trial court’s imposition of a one-year sentence on one count of sexual
battery, to run consecutively with a 20-year sentence imposed for
similar conduct in another county, was not contrary to law or an abuse
of discretion. Judgment affirmed. |
Froelich |
6/6/2014 |
2014-Ohio-2441 |
State v. Croom |
25949 |
The
trial court, upon remand, failed to properly consider Appellant’s
present and future ability to pay restitution, in the amount of
$10,291.96, while serving a sentence of life without the possibility of
parole. The imposition of restitution is reversed and vacated. Remanded
for the sole purpose for the trial court to enter an order vacating
restitution. (Hall, J., concurring in judgment by separate opinion.) |
Donovan |
5/30/2014 |
2014-Ohio-2315 |
State v. Sexton |
25862 |
The
trial court did not violate the appellant’s right to a jury trial. The
appellant failed to file a written jury demand despite having an
opportunity to do so. The trial court did not abuse its discretion in
denying a last-minute motion for a continuance to identify and locate an
unidentified witness whose testimony was of unknown value. The record
does not reflect a statutory speed-trial violation when tolling events
chargeable to the appellant are taken into account. Judgment affirmed. |
Hall |
5/30/2014 |
2014-Ohio-2314 |
State v. Riley |
2013 CA 37 |
The
appellant’s domestic-violence conviction is supported by legally
sufficient evidence and is not against the manifest weight of the
evidence. The record supports a finding that the appellant committed
domestic violence by repeatedly punching his son in the face with a
closed fist. Judgment affirmed. |
Hall |
5/30/2014 |
2014-Ohio-2313 |
Maddox v. Greene Cty. Children Servs. Bd. of Dirs. |
2013-CA-38 |
Defendant-appellant
children-services board was sui juris for purposes of plaintiff’s
complaint alleging violations of R.C. 121.22, Ohio’s open-meeting act
(OMA). The record supports a finding that the children-services board
committed multiple OMA violations by entering executive session without
sufficiently stating a proper purpose, failing to reopen its meetings to
the public after executive session, and improperly taking official
action in executive session or when the public was excluded. The record
also supports the trial court’s imposition of multiple statutory
forfeitures and its award to plaintiff-cross appellant of attorney fees
and back pay. The trial court erred, however, in finding two OMA
violations that did not exist and in assessing twelve forfeitures where
only seven were warranted. The trial court also erred in reducing
plaintiff’s attorney-fee award by $22,232.50 where the reduction was
redundant. Judgment affirmed in part, reversed in part, and cause
remanded. |
Hall |
5/30/2014 |
2014-Ohio-2312 |
State v. Lovato |
25683 |
Trial
court did not err in failing to merge kidnapping charges with felonious
assault charges or kidnapping charges with rape charges. Counsel did
not render ineffective assistance by failing to argue that the charges
should be merged as allied offenses of similar import. Trial court did
not err in denying motion to suppress defendant’s confession.
Defendant’s challenge to his conviction for intimidating a witness, a
first-degree misdemeanor, is moot. Judgment affirmed. |
Froelich |
5/30/2014 |
2014-Ohio-2311 |
State v. Kosak |
2013 CA 67 |
The
trial court did not impose a sentence that was contrary to law and was
not required to state its specific reasons for imposing non-minimum
sentences. Defendant failed to establish that her sentence was
disproportionate to unidentified co-defendants. Judgment affirmed. |
Froelich |
5/30/2014 |
2014-Ohio-2310 |
State v. Jones |
25724 |
Anders
appeal. No potentially meritorious claim that defendant’s conviction
for aggravated robbery was based on insufficient evidence and was
against the manifest weight of the evidence. Judgment affirmed. |
Froelich |
5/30/2014 |
2014-Ohio-2309 |
State v. Johnson |
2013-CA-85 |
Defendant
pled guilty to third-degree Burglary, in violation of R.C.
2911.12(A)(3), as part of plea bargain in which a count of second-degree
Burglary, in violation of R.C. 2911.12(A)(2), was dismissed. Defendant
had prior criminal record of ten theft-related offenses, although none
of those offenses had been committed within the preceding ten years.
The maximum, 36-month sentence imposed was neither clearly and
convincingly contrary to the facts in the record, an abuse of
discretion, nor contrary to law. Affirmed. |
Fain |
5/30/2014 |
2014-Ohio-2308 |
State v. Jennings |
2013 CA 60 |
Defendant’s
guilty pleas to two drug offenses and having a weapon while under
disability were not rendered involuntary by the trial court’s failure to
notify him, at the plea hearing, that a post-release control violation
could result in imprisonment up to nine months for each violation when
the defendant was informed of the total aggregate sanction. Trial
court’s imposition of consecutive sentences was not erroneous. From
this record, the trial court’s sentence was not contrary to law due to
the fact that the ORAS assessment considers the neighborhood in which
defendant resides. Judgment affirmed. (Hall, J., concurring.) |
Froelich |
5/30/2014 |
2014-Ohio-2307 |
Greenlee c. Greenlee |
26059 |
The
trial court did not abuse its discretion in refusing to modify custody.
The court’s decision is supported by the evidence and is not against the
manifest weight of the evidence. The court also did not err in relying
on the report of the Guardian ad Litem. The matters that Appellant
challenges are minor or are issues pertaining to credibility, which the
trial court was in the best position to judge. Finally, allegations
pertaining to Appellee’s attempts to alienate the minor child’s
affections are outside the trial court record and may not be considered
on appeal. Affirmed. |
Welbaum |
5/30/2014 |
2014-Ohio-2306 |
State v. Green |
2012 CA 64 |
Anders
appeals. No potentially meritorious claims related to denial of motion
to suppress evidence, pleas, convictions, or sentences. Judgment
affirmed. |
Froelich |
5/30/2014 |
2014-Ohio-2305 |
Folck v. Patton |
2013-CA-105 |
Evidence
in administrative record supports decision by the Ohio Unemployment
Compensation Review Commission denying former employee’s application for
compensation. Commission could reasonably find, from the evidence in
its record, that the former employee was paid commissions in accordance
with the commission agreement with his employer, and that employee quit
without just cause. Hearing officer did not abuse her discretion by
continuing with the hearing after a witness subpoenaed by the former
employee declined to testify, in view of fact that former employee did
not seek to enforce the subpoena by the use of contempt proceedings, and
did not proffer the expected testimony of the witness. Three other
applications were properly denied as being relitigation of the prior
application, or untimely, respectively. Judgment of trial court
affirming decision of Commission Affirmed. |
Fain |
5/30/2014 |
2014-Ohio-2304 |
State v. Dover |
2013-CA-58 |
Defendant’s
conviction for Aggravated Robbery is not against the manifest weight of
the evidence. Victim testified that the barrel of a small gun was
pushed into her back, and that she was told to give the defendant her
purse, or he would kill her. Facts that victim said during her 911 call
that the gun was pointed at her head, and that other witnesses, none of
whom were present at the robbery scene when the robbery was being
committed, did not see a gun, were matters that the jury could consider,
but did not prevent the jury from reasonably crediting the victim’s
testimony. The trial court did not err in overruling the defendant’s
request for a jury instruction on Theft. The State agreed that the
defendant would have been entitled to a jury instruction on Robbery,
which the defendant did not request, because the jury might reasonably
have disbelieved the victim’s testimony that the defendant used a gun,
but there is no reasonable view of the evidence that would support a
conviction on the charge of Theft without also supporting a conviction
for Robbery. Thus, the giving of the requested instruction on Theft
would have confronted the jury with the choice of reaching an
unreasonable conclusion. The trial court did not err in imposing a
maximum prison sentence of eleven years for Aggravated Robbery (plus
three years for a firearm specification). The defendant had a
significant prior record of juvenile and adult offenses, including two
prison terms, and the defendant was on bond for a municipal court case
when he committed this event. Affirmed. |
Fain |
5/30/2014 |
2014-Ohio-2303 |
Bomberger-Cronin v. Cronin |
2014-CA-4 |
The
trial court did not abuse its discretion in creating a shared parenting
plan. The record indicates that the parties had shared parenting with
equal parenting time without incident for a substantial period of time
before the final divorce hearing. The shared parenting plan also was
not insufficient because it omitted school placement; the child was well
below school age, and this was not, therefore, a relevant factor under
R.C. 3109.04(A)(2). Finally, the trial court did not err in deviating
from the recommendations of the GAL. The trial court was not obligated
to follow the GAL’s recommendations, and the court’s decision was not
unreasonable, arbitrary, or unconscionable. Affirmed. |
Welbaum |
5/30/2014 |
2014-Ohio-2302 |
State v. Brown |
2013-CA-13 |
Trial
judge who found defendant to have violated the conditions of his
community control sanctions and imposed a prison sentence had earlier
been the prosecutor in this case. Defendant forfeited any claim of bias
and prejudice when he elected to proceed to trial before the trial
judge without filing an affidavit of bias and prejudice in the Supreme
Court of Ohio. Record fails to demonstrate that trial counsel was
ineffective for having failed to file an affidavit of bias and
prejudice. Because the four-year sentence was originally imposed, and
put into execution, before the effective date of 2011 House Bill 86, the
reduction of the applicable maximum sentence in that legislation to
three years did not apply to this defendant. Therefore, the trial court
could properly reimpose a four-year sentence (with credit for time
served) after the revocation of community control sanctions, which had
been imposed after the defendant’s judicial release before the
expiration of his original sentence. Affirmed. |
Fain |
5/30/2014 |
2014-Ohio-2301 |
Bank of Am., N.A. v. Thompson |
25952 |
(1)
The trial court had jurisdiction over this foreclosure action. Appellee
was the holder of the note and mortgage when it initiated the action, so
it had standing. (2) Summary judgment is appropriate because Appellee
presented the required evidence and no genuine issue of material fact
remains. (3) Appellant received due process. She was given reasonable
notice of judicial process and was given a reasonable opportunity to be
heard. (4) Appellee did not fail to properly identify its relationship
to the note and violate Civ.R. 8(E). In its complaint, Appellee
correctly identified itself as the holder of the note and mortgage.
Judgment affirmed. (Froelich, P.J., concurring.) (Donovan, J., concurs
in judgment only.) |
Hall |
5/30/2014 |
2014-Ohio-2300 |
State v. Snowden |
25758 |
The
trial court did not abuse its discretion in excusing a prospective juror
for cause on the State’s motion, since the prospective juror was
unsuitable to serve as a juror based upon his expression of doubt that
he could reach a decision, his statement that he would “probably” follow
the law if instructed on aiding and abetting, and his acknowledgment of
potential bias toward the State’s witnesses who were associated with a
crack house. At sentencing the trial court failed to make the findings
required by R.C. 2929.14(C) for consecutive sentences. The judgment of
the trial court is affirmed in part and reversed in part, and the matter
is remanded to the trial court for the sole purpose of giving the trial
court the opportunity to consider the requisite findings for imposing
consecutive sentences under R.C. 2929.14(C). |
Donovan |
5/30/2014 |
2014-Ohio-2299 |