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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
In re K.B. C-170542SEX OFFENSES – JUVENILE – CLASSIFICATION: The juvenile court’s decision to continue the juvenile’s classification as a Tier I sex offender under Ohio’s version of the federal Adam Walsh Act was not an abuse of discretion where the record shows that the magistrate and the juvenile court carefully considered the statutory factors and the evidence supported the decision.MillerHamilton 12/5/2018 12/5/2018 2018-Ohio-4810
State v. Jones C-170358APPELLATE REVIEW/CRIMINAL – JURIES – PEREMPTORY CHALLENGE – CRIM.R. 24: In a criminal proceeding, the use of peremptory challenges allows both the prosecution and the defense to secure a more fair and impartial jury by enabling them to remove jurors whom they perceive as biased, even if the jurors are not subject to a challenge for cause; peremptory challenges provide both the defendant and the state an opportunity to dismiss potential jurors for any reason, except an impermissible reason such as race or gender, without inquiry and without the trial court’s approval. The number of peremptory challenges available to each party is controlled by Crim.R. 24(D) and (G), and the order in which they may be used is controlled by Crim.R. 24(E): under Crim.R. 24(E), the state begins the peremptory-challenge process, and then the parties alternate exercising their remaining challenges; a party’s failure to exercise a challenge in turn waives that party’s right to that challenge, in effect forcing a party to exercise each challenge in turn or lose it. Crim.R. 52(A) generally governs the criminal appeal of a nonforfeited error, and provides that any error which does not affect substantial rights shall be disregarded; but there is a very limited class of errors, now described as “structural errors,” which are not reviewable for harmless error under Crim.R. 52(A) and mandate a finding of per se prejudice, and automatic reversal. A structural error is a constitutional defect that affects the framework within which the trial proceeds, rather than simply being an error in the trial process itself; an error is designated as “structural” not because of the difficulty in demonstrating prejudice, but rather when the error permeates a trial and necessarily renders the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. In determining whether an alleged error is structural, the threshold inquiry is whether the error involves the deprivation of a constitutional right. There is no federal or state constitutional requirement that peremptory challenges be provided within a trial; in noncapital criminal cases, the right to peremptory challenges exists by virtue of Crim.R. 24, not by virtue of the federal or Ohio constitution. Given that a trial court’s error in controlling the use of peremptory challenges available to a party is not a constitutional error, it cannot be structural error; thus a defendant challenging the trial court’s error in permitting the state to exercise its final peremptory challenge after the state had waived that challenge, after the selection of the alternate jurors was already under way, and after the court had expressly asked the parties if they were satisfied with the jury, can prevail only if that error was prejudicial and affected the outcome of the trial court proceedings: where the defendant had ample opportunity to examine the prospective juror on voir dire, found no showing of any bias or lack of impartiality on his part challengeable for cause, and elected not to use his peremptory challenge to remove the prospective juror, he has not demonstrated prejudice flowing from the trial court’s error.CunninghamHamilton 11/30/2018 11/30/2018 2018-Ohio-4754
Jester v. Utilimap Corp. C-170576NEGLIGENCE – NEW TRIAL – R.C. 2307.23 – EMPTY-CHAIR DEFENSE: In a wrongful-death action brought by the surviving spouse of a utility worker who died when a rotted utility pole collapsed on him, the trial court did not err in denying the pole inspection company’s motion for judgment as a matter of law based upon assumption of the risk: The inspection company cannot invoke the inherently-dangerous-activity exception under Eicher v. U.S. Steel Corp., 32 Ohio St.3d 248, 512 N.E.2d 1165 (1987), because the company did not own or control the premises where the utility worker was injured, the utility worker was not an independent contractor, and the underground rot on a utility pole is not the kind of danger inherent in utility work, such that it cannot be eliminated. The trial court erred in prohibiting defendant pole inspection company from arguing the empty-chair defense with respect to the deceased’s employer, and the trial court erred in denying the company’s requests to include the employer on the jury interrogatories and verdict form: The plain language of R.C. 2307.23 allows a jury to apportion fault to an employer, even if that employer is immune from suit under the workers’ compensation statutes, and the trial court’s error is not harmless where reasonable minds could differ as to whether the deceased employer’s actions proximately caused the employee’s death.DetersHamilton 11/30/2018 11/30/2018 2018-Ohio-4755
Mauntel v. Norwood C-170635IMMUNITY – POLITICAL SUBDIVISIO: The trial court erred in denying defendant city’s motion for summary judgment on the basis of Ohio’s Political Subdivision Tort Liability Act in a lawsuit brought by a woman who fell on a curb, because the curb is not a part of the “public roads” for purposes of the exception to immunity in R.C. 2744.02(B)(3).DetersHamilton 11/30/2018 11/30/2018 2018-Ohio-4756
State v. Warren C-180008SENTENCING – CONSECUTIVE SENTENCES: The trial court erred in ordering defendant’s prison term for failing to comply with an order or signal of a police officer, a third-degree felony, to be served consecutively to a prison term previously imposed by a Kentucky court for another felony offense where the record shows that the court imposed the consecutive term under the erroneous understanding that a consecutive sentence was required under R.C. 2929.14(C): the relevant sentencing statutes, when read together, unambiguously permitted the trial court to order a consecutive sentence, but did not require that result.CunninghamHamilton 11/30/2018 11/30/2018 2018-Ohio-4757
State v. Smith C-170335EVID.R. 404(B) – OTHER-ACTS EVIDENCE – PROSECUTOR – COUNSEL – CUMULATIVE ERROR: The trial court did not err in admitting testimony about instances of defendant’s prior conduct, even though defendant was acquitted of the criminal charges associated with that conduct, because the testimony was proper under Evid.R. 404(B) to show motive, intent and lack of mistake. Defendant failed to establish prosecutorial misconduct in the state’s failure to produce a copy of a 1986 police file where there had been no showing that the file contained material that the state was required to disclose in discovery. Defendant failed to establish prosecutorial misconduct in the state’s eliciting and relying upon witness testimony that was inconsistent with the witnesses’ testimony in an earlier trial: showing that the testimony was merely inconsistent was insufficient to show that the prosecutor knowingly used false testimony. The prosecutor engaged in misconduct during closing arguments when offering the jury an explanation of the timeline of the investigation that was not testified to during the trial; but because it was an isolated comment about a matter not central to the case, defendant was not prejudiced. The failure to cross-examine witnesses fully is a matter of trial strategy and will not form the basis for ineffective assistance of defense counsel, especially in cases involving the sexual assault of a child in which the issue of sensitivity to the victim is an important consideration. Defendant was not prejudiced by his counsel’s failure to more aggressively seek a copy of a 1986 police file that involved an incident between defendant and another victim where the information was about a tertiary issue and the incident was testified to by the parties involved. There can be no finding of cumulative error in the absence of multiple instances of harmless error.MockHamilton 11/16/2018 11/16/2018 2018-Ohio-4615
State v. Stidhum C-170319IN-COURT IDENTIFICATION – COUNSEL – EVIDENCE – CONSTITUTIONAL LAW/CRIMINAL – DUE PROCESS – CONFRONTATION CLAUSE – MISTRIAL – OTHER-ACTS EVIDENCE – CUMULATIVE ERROR – SENTENCING –DISCRETIONARY FINE – INDIGENCY: A first-time in-court identification is not inherently suggestive and unreliable, and due process is not violated when an in-court identification is not preceded by a successful identification in a nonsuggestive procedure or prescreened by the trial court. Trial counsel’s decision to cross-examine a witness to undermine the witness’s credibility, rather than object to the witness’s testimony, does not constitute ineffective assistance of counsel. The failure to preserve recorded witness statements did not violate defendant’s right to present a defense or his right to confront witnesses where the state provided written summaries of the statements, and the witnesses’ testimony was consistent with the summaries. Defendant failed to demonstrate that he was entitled to a mistrial based on a witness’s reference to his prior arrests for drug trafficking, because the jury was presumed to follow the trial court’s multiple curative instructions. The trial court did not err by determining that other-acts evidence was admissible where the trial court’s limiting instruction minimized the likelihood of any undue prejudice. The doctrine of cumulative error is inapplicable where there are not multiple instances of harmless error. The trial court did not err in imposing a discretionary fine where the trial court considered defendant’s present and future ability to pay the fine.ZayasHamilton 11/16/2018 11/16/2018 2018-Ohio-4616
State v. Landrum C-180030SEARCH AND SEIZURE – COMMON AUTHORITY – APPARENT AUTHORITY : The trial court erred in overruling defendant’s motion to suppress evidence obtained during a warrantless search of his bedroom after probation officers entered the home he shared with a probationer, searched his bedroom, and found cocaine, where the state failed to prove that the probationer had joint access or control over the bedroom, such that the probationer had common authority or apparent authority over the bedroom to consent to the search.ZayasHamilton 11/14/2018 11/14/2018 2018-Ohio-4582
Altman v. Parker C-170683DEFAULT JUDGMENT – VOID – LACHES: The trial court erred by overruling defendant’s motion to set aside an allegedly void default judgment, because laches did not bar defendant from seeking relief from a void judgment, and the court was prohibited from making a credibility determination without first holding an evidentiary hearing to assess the credibility of defendant’s unrebutted assertion that he had not received service of the complaint.CunninghamHamilton 11/14/2018 11/14/2018 2018-Ohio-4583
Cincinnati v. Ohio C-170593MOOTNESS DOCTRINE – JUSTICIABLITY: Where the legislation challenged under the “single-subject” rule had been repealed or replaced after the lawsuit was filed, the issue is moot and will not be addressed on appeal. The trial court exceeded its authority when it struck as unconstitutional provisions of a bill that plaintiff had not challenged, because there was no justiciable controversy before the court concerning those provisions.MillerHamilton 11/7/2018 11/7/2018 2018-Ohio-4498