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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
State v. Thomas C-210519R.C. 2909.06 – CRIMINAL DAMAGING – EVIDENCE – CORPUS DELICTI: Where circumstantial evidence existed that defendant was the only person near a damaged vehicle, and that the damaged vehicle belonged to a manager with whom defendant had recently quarreled, defendant’s conviction for criminal damaging was not based on insufficient evidence or against the manifest weight of the evidence.BergeronHamilton 6/29/2022 6/29/2022 2022-Ohio-2218
State v. Dixon C-210614SENTENCING – ALLIED OFFENSES – R.C. 2941.25: Discharging a firearm upon or over a public highway and aggravated assault were not allied offenses of similar import because the victim of the offense of discharging a firearm was the public, and the victim of the aggravated assault was the driver of the vehicle that was fired upon.ZayasHamilton 6/29/2022 6/29/2022 2022-Ohio-2219
State v. Howard C-210285CRIM.R. 33 – BRADY V. MARYLAND: The trial court erred by denying defendant’s 2020 Crim.R. 33(B) motion for leave to file a new-trial motion on the basis of newly discovered evidence and prosecutorial misconduct where the court, considering the new-trial motion and finding it to be meritless, used that conclusion as its basis for denying the Crim.R. 33(B) motion for leave: the merits of a delayed motion for a new trial are not properly before the trial court until that court first grants leave to file the new-trial motion, and further, leave to file a new-trial motion on the basis of newly discovered evidence or prosecutorial misconduct may only be granted where the trial court finds that defendant, using reasonable diligence, was unavoidably prevented from timely discovering that evidence or timely filing a new-trial motion, respectively. The trial court erred by denying defendant’s 2019 Crim.R. 33(B) motion for leave to file a new-trial motion without first holding an evidentiary hearing where defendant’s new-trial motion asserted a Brady claim, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and where defendant presented evidence tending to show that the state had suppressed the evidence: (1) an evidentiary hearing is required on a Crim.R. 33(B) motion for leave to file a new-trial motion where evidence is presented that defendant was unavoidably prevented from discovering the evidence on which he now relies and (2) in a delayed motion for a new trial that asserts a Brady violation, a defendant is not required to show that he could not have discovered the suppressed evidence by exercising reasonable diligence but instead satisfies Crim.R. 33(B)’s unavoidable-prevention requirement by establishing that the state suppressed the evidence on which defendant now relies. State v. Bethel, Slip Opinion No. 2022-Ohio-783.WinklerHamilton 6/24/2022 6/24/2022 2022-Ohio-2159
WSB Rehab. Servs. Inc. v. Cent. Accounting Sys. Inc. C-210454 & C-210467SUMMARY JUDGMENT — BREACH OF CONTRACT — CONDITION PRECEDENT — ANTI-WAIVER CLAUSE — INDEMNIFICATION — TORTIOUS INTERFERENCE WITH A CONTRACT: The trial court properly granted summary judgment in favor of plaintiff where it was undisputed that defendants waived a condition precedent to the party’s agreements by failing to enforce an “invoice requirement” for seven years. The trial court properly found that the anti-wavier clause contained within the agreements was not triggered as non-performance of a condition precedent is not a breach of contract and plaintiff did not violate the agreements. The trial court properly concluded that defendants were entitled to summary judgment on defendants’ indemnification claims where the record reflects that plaintiff was required to indemnify the defendants against any losses arising out of plaintiff’s services and defendants’ losses related those services began to incur before defendants breached the agreements. The trial court erred in granting summary judgment as to the amount of damages that plaintiffs owed on the indemnification claim because defendants were not entitled to include its own employees’ salaries as expenses and plaintiff disputed the reasonableness of the defendants’ claimed damages. The trial court properly denied plaintiff’s motion for summary judgment on plaintiff’s tortious interference claim where co-defendants have an agency relationship.BockHamilton 6/24/2022 6/24/2022 2022-Ohio-2160
State v. Wright C-210486FOURTH AMENDMENT – SEARCH AND SEIZURE – REASONABLE SUSPICION – INVESTIGATIVE STOP – ARREST: The trial court did not err in denying defendant’s motion to suppress where police had reasonable, articulable suspicion to justify the stop of defendant and defendant’s statements to police following his arrest were voluntary and not prejudicial.CrouseHamilton 6/24/2022 6/24/2022 2022-Ohio-2161
In re J.N. C-210317, C-210387JUVENILE – SEX OFFENSES – ADAM WALSH ACT – APPELLATE JURISDICTION – FINAL APPEALABLE ORDER – R.C. 2152.84 – END-OF-DISPOSITION HEARING – EVIDENCE – MONITORED TIME – CONSTITUTIONAL LAW – DUE PROCESS – DOUBLE JEOPARDY: The juvenile court’s orders continuing the juvenile’s classification as a Tier I juvenile offender registrant under the Adam Walsh Act and releasing the juvenile from “official probation” and placing him on nonreporting probation with monitored time were final, appealable orders because they affected substantial rights in a special proceeding, and the timing of the R.C. 2152.84 end-of-disposition hearing, even if erroneous, did not affect the finality of the juvenile court’s orders. In determining whether to continue the juvenile’s Tier I classification, the juvenile court did not abuse its discretion in considering a “JFS Children’s Services Progress Report,” which had not been admitted into evidence at the R.C. 2152.84 end-of-disposition hearing, where the report was made in connection with the juvenile’s dependency proceeding during the pendency of the delinquency proceeding, the dependency proceeding had been initiated because the juvenile could not return to his father’s home due to his adjudication for gross sexual imposition, the dependency proceeding was intertwined with the delinquency proceeding, the progress report contained the same case number as the delinquency proceeding, all proceedings were filed under the delinquency case number, and the same juvenile court judge presided over the dependency and delinquency proceedings. Any error which may have occurred in the juvenile court’s exclusion from evidence of two research articles submitted by the juvenile at the R.C. 2152.84 end-of-disposition hearing was harmless where the information contained in the two articles, as it related to the juvenile’s risk for sexual reoffending, was essentially before the court in the form of the psychologist’s report, which placed the juvenile in the low-risk-to-reoffend category. In light of the appellate court’s highly deferential review of the juvenile court’s judgment, the juvenile court did not abuse its discretion in continuing the juvenile’s Tier I classification where the record shows that the juvenile court carefully considered the relevant factors. The juvenile court’s order terminating the juvenile from “official probation” and placing him on nonreporting probation with monitored time was valid, did not exceed the juvenile court’s jurisdiction, and did not violate the juvenile’s due-process or double-jeopardy rights: the court’s order did not expressly end the juvenile’s disposition; the order left the original disposition, including a suspended commitment to the Department of Youth Services until age 21, in place; the order did not impose a new condition of community control where monitored time had always been a part of the juvenile’s disposition because the court’s dispositional orders had conditioned the suspension of the commitment to the Department of Youth Services on the condition that the juvenile obey all laws and orders of the court; the court’s order did not impose any new penalties; and the juvenile was properly on notice of the requirements of his disposition from the outset.WinklerHamilton 6/22/2022 6/22/2022 2022-Ohio-2109
State v. Ralls C-210410MURDER – R.C. 2901.05 – SELF-DEFENSE – BURDEN OF PROOF – EVIDENCE – IMPERFECT SELF-DEFENSE – LESSER-INCLUDED OFFENSES: The trial court did not violate R.C. 2901.05 where the record included no indicia that the trial court failed to shift the burden of persuasion to the state. Defendant’s conviction for felony-murder did not run afoul of the manifest weight of the evidence where the trial court resolved credibility determinations in favor of the state. The trial court did not commit plain error by failing to consider the affirmative defense of imperfect self-defense because Ohio law does not recognize this doctrine. The trial court did not commit plain error by failing to consider the lesser included offenses of voluntary manslaughter, involuntary manslaughter, and reckless homicide before convicting defendant of felony-murder because Ohio appellate courts presume that the trial court considered lesser included offenses and there is nothing in the record to rebut this presumption.BergeronHamilton 6/22/2022 6/22/2022 2022-Ohio-2110
Migliara v. Migliara C-210413DIVORCE – INTERPRETER – WAIVER – COUNSEL: In a divorce case, the magistrate did not err by not appointing an interpreter for defendant wife’s psychological interviews because she was not entitled to an interpreter under the United States Constitution, the Ohio Revised Code, or the Ohio Rules of Superintendence, and the record demonstrates that she and the interviewers were able to communicate effectively. Where wife failed to object to the admission of the custody-evaluation report at trial or raise the issue in her objections to the magistrate’s decision, she waived the right to argue against the report’s admission on appeal. The magistrate did not violate wife’s rights to counsel or due process by asking wife directly if she was willing to undergo a psychological evaluation. The magistrate did not commit plain error by permitting wife’s trial counsel to withdraw because counsel demonstrated that her representation of wife had been rendered unreasonably difficult by wife’s conduct.CrouseHamilton 6/22/2022 6/22/2022 2022-Ohio-2111
Staley v. Phillips C-210438LANDLORD AND TENANT – R.C. 5321.15(A) – R.C. 5321.15(C) – SELF-HELP – ABANDONMENT – DAMAGES – ATTORNEY FEES: The trial court’s finding of an intent to abandon property was not supported by the evidence where the text messages in the record showed that the tenant was still claiming possession of the leased premises two days before the landlord changed the locks and disposed of the tenant’s possessions. Attorney fees are not warranted under R.C. 5321.15(C) where the trial court determined that the tenant suffered no damages as a result of a violation of R.C. 5321.15(A).ZayasHamilton 6/22/2022 6/22/2022 2022-Ohio-2112
B&T Business Ventures v. Disi Bros. Land, L.L.C. C-210477SUMMARY JUDGMENT — CIV.R. 56 — DISCOVERY — QUIET-TITLE ACTION — UNJUST ENRICHMENT: trial court did not err by granting summary judgment in favor of defendant where defendant met its Civ.R. 56(E) burden of proof, plaintiff had ample opportunity to conduct discovery prior to the trial court’s judgment, and plaintiff failed to rebut the assertions in defendant’s motion for summary judgment with regard to defendant’s sole ownership of the property in question and the fact that defendant was not unjustly enriched as defendant never received a financial benefit from the lease-to-own agreement that was between codefendant and plaintiff.BockHamilton 6/22/2022 6/22/2022 2022-Ohio-2113
State v. Bingham C-210434MENACING — LESSER-INCLUDED OFFENSE — MANIFEST WEIGHT OF THE EVIDENCE — SPEEDY TRIAL — WAIVER: The trial court did not err by convicting defendant, who had been charged with menacing under R.C. 2903.21(A), of the lesser-included offense of menacing under R.C. 2903.22 where no firearm had been brandished or recovered after defendant made threats against the victim. The trial court did not lose its way and create a manifest injustice of judgment as it was in the best position to determine whether the victim’s testimony was credible. Defendant waived any issue regarding her right to a speedy trial where defendant did not raise the issue below.BockHamilton 6/17/2022 6/17/2022 2022-Ohio-2074
Fikes v. Estate of Fikes C-210515PROBATE — WILLS — UNDUE INFLUENCE — SUMMARY JUDGMENT — CIV.R. 56: The trial court’s grant of summary judgment in favor of defendants, estate and executor, was proper when the evidence sufficiently rebutted the presumption of the executor’s undue influence over the decedent, and plaintiff’s evidence failed to show any actual undue influence over the decedent. The trial court appropriately found no presumption of undue influence by the decedent’s attorney when the attorney was not a named beneficiary in the will.BockHamilton 6/17/2022 6/17/2022 2022-Ohio-2075
State v. Wilson C-210587CONSTITUTIONAL LAW/CRIMINAL — SPEEDY TRIAL: The trial court erred in granting defendant’s motion to dismiss the complaint on constitutional speedy-trial grounds: the court failed to consider all the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), including the absence of some particularized evidentiary prejudice from the almost nine-month postaccusation delay, and a consideration of all the factors weighed against a constitutional violation.WinklerHamilton 6/17/2022 6/17/2022 2022-Ohio-2076
Gardner v. Ohio Dept. of Job & Family Servs. C-210376MEDICAID – SUPPLEMENTAL SECURITY INCOME – RESOURCES – REASONABLE EFFORTS – CONDITIONAL BENEFITS – ANTI-RECOVERY PROVISION – REAL PROPERTY: The trial court erred in holding that plaintiff’s real property was not subject to exclusion under the reasonable-efforts exclusion and was therefore a countable resource for purposes of determining plaintiff’s Medicaid eligibility; the state of Ohio must determine Medicaid eligibility utilizing criteria that is no more restrictive than federal supplemental security income eligibility criteria, which requires the exclusion of real property that the applicant is making reasonable but unsuccessful efforts to sell.CrouseHamilton 6/15/2022 6/15/2022 2022-Ohio-2021
State v. Williams C-210384JUVENILE COURT — SUBJECT-MATTER JURISDICTION — BINDOVER — PROBABLE CAUSE — R.C. 2152.12: When the complaint filed in the juvenile court did not allege tampering with evidence and the juvenile court never considered whether probable cause existed for that act, the juvenile court retained exclusive jurisdiction over that act and the adult court lacked subject-matter jurisdiction to convict the child for tampering with evidence.BockHamilton 6/15/2022 6/15/2022 2022-Ohio-2022
State v. Fuqua C-210385 & C-210386MOTION TO SUPPRESS – OVI – PROBABLE CAUSE: The trial court properly denied defendant’s motion to suppress where defendant’s arrest was supported by probable cause that he was under the influence of alcohol while in physical control of a vehicle, where defendant did not challenge the physical-control aspect of the probable-cause finding, and where a police officer found defendant asleep at the wheel of his running car, which was illegally parked on a roadway at a stop sign, and defendant failed to wake despite the officer’s knocking on the window and did not wake until the officer physically shook him, and defendant was tired, disoriented, and confused, and defendant had slurred speech, admitted to consuming four drinks, and was off balance upon walking. Because a police officer had probable cause to arrest defendant for having physical control of a vehicle while under the influence of alcohol, the state did not have to also demonstrate that the officer had probable cause to arrest defendant for operating a vehicle while under the influence of alcohol. Defendant’s conviction for OVI was supported by sufficient evidence that he had operated the vehicle where defendant was found alone and asleep in the driver’s seat of his car, which was illegally parked at a stop sign, taking up a lane of travel, with the car running and its lights on, and defendant admitted that he had been on his way home from a friend’s house; the trier of fact could reasonably infer that defendant had moved the vehicle to that location.MyersHamilton 6/10/2022 6/10/2022 2022-Ohio-1952
State v. Day C-210503COMMUNITY CONTROL – DUE PROCESS: The trial court did not abuse its discretion by finding that defendant violated the terms of his community control when police discovered a cache of weapons in his apartment and drugs in a vehicle that he had the keys to. The trial court did not plainly deprive defendant of an opportunity to be heard and present evidence at a community control revocation hearing when defendant failed to proffer evidence at the hearing.BergeronHamilton 6/10/2022 6/10/2022 2022-Ohio-1954
Souders v. Souders C-210469CUSTODY – PARENTING TIME: The trial court did not abuse its discretion by denying a nonresidential parent’s motion to modify its decree allocating parental rights and responsibilities where the parent failed to allege that a change had occurred in the circumstances of the children or of their residential parent as required by R.C. 3109.04(E)(1)(a). The trial court did not abuse its discretion by denying a nonresidential parent’s motion to modify its parenting-time order where the parent failed to obtain a mental-health assessment in compliance with the court’s prior order.MyersHamilton 6/10/2022 6/10/2022 2022-Ohio-1953
State v. Hare C-210321MISTRIAL – DOUBLE JEOPARDY: The trial court did not err in denying defendant’s motion to dismiss the assault charge on double-jeopardy grounds where the original trial judge’s declaration of a mistrial was supported by a manifest necessity; the original trial judge felt that she could no longer be fair and impartial due to disagreements with defense counsel during the course of the trial.CrouseHamilton 6/8/2022 6/9/2022 2022-Ohio-1931
State ex rel. Hare v. Russell C-210344WRITS – PROHIBITION – JURISDICTION: Petitioner is entitled to a writ of prohibition because respondent trial judge issued a nunc pro tunc entry after she had recused herself from the case, and therefore, at a time when she patently and unambiguously lacked jurisdiction over the case. [But see DISSENT: the issuance of a writ of prohibition is unwarranted because respondent did not patently and unambiguously lack subject-matter jurisdiction over the case, the issuance of the nunc pro tunc entry was not unauthorized by law, and petitioner has an adequate remedy at law.]CrouseHamilton 6/8/2022 6/9/2022 2022-Ohio-1932
State v. Fissel C-210483PLAIN ERROR – R.C. 2913.02 – THEFT – R.C. 2929.11 – R.C. 2929.12 – VICTIM-IMPACT STATEMENT – SENTENCING: The trial court did not commit plain error where it considered statements made in a victim-impact statement in its sentencing decision and where the trial court properly considered the sentencing statutory factors of R.C. 2929.11 and 2929.12.BergeronHamilton 6/3/2022 6/3/2022 2022-Ohio-1856
Morgan v. Jones C-210408DOMESTIC RELATIONS – APPELLATE REVIEW – JURISDICTION – R.C. 2505.02 – RECEIVER – APP.R. 4(A) – APP.R. 4(B) –CIV.R. 59(B) – CIV.R. 6(A) – NEW TRIAL: Where three of the entries appealed by defendant concerning the powers of a receiver were interim orders that contemplated further action and did not affect a substantial right, they were not final, appealable orders. Where defendant timely filed a Civ.R. 59 motion for a new trial on the appointment of a receiver, pursuant to App.R. 4(B)(2)(b) the time to appeal the initial order appointing the receiver did not begin to run until the trial court entered an order resolving the motion for a new trial. Defendant was not prejudiced by the trial court’s granting of plaintiff’s request for an expedited hearing without allowing defendant time to file a memorandum in opposition to plaintiff’s motion where defendant appeared at the hearing, defended against the motion and did not seek leave to file a memorandum in response or to supplement arguments made at the hearing. The trial court did not err in denying defendant’s Civ.R. 59 motion for a new trial and defendant’s motion for approval of a buyout transaction.MyersHamilton 6/1/2022 6/1/2022 2022-Ohio-1831
State v. Moss C-210288, C-210289, ,C-210290, C-210291, C-210292, C-210293SENTENCING — STATUTORY INTERPRETATION — R.C. 2929.41(A) — COUNSEL — INEFFECTIVE ASSISTANCE: The trial court did not exceed its sentencing authority set forth in R.C. 2929.41(A), which requires a sentencing court to impose concurrent sentences of incarceration for felony and misdemeanor convictions absent a specified exception, because two sentences of incarceration cannot be served concurrently if they do not overlap. Defendant’s claim that he was denied his constitutional right to the effective assistance of counsel required a showing of deficient performance and prejudice, a burden defendant failed to meet where his claim of prejudice—that he would not have to serve any incarceration for misdemeanor convictions when he had completed his sentence for a related felony conviction if counsel had acted with more diligence—was based on evidence outside the record, was not supported by the information in the record, and the “additional time” must be served regardless of any alleged deficiency by trial counsel due to a concurrent traffic-case sentence. Defendant failed to demonstrate that the trial court abused its discretion when sentencing him to 60 days in jail for each of six misdemeanor convictions, to be served concurrently, where defendant’s sentences fell within the range authorized for the offenses and nothing in the record demonstrates that when fashioning his sentences the court failed to consider the purposes and principles of misdemeanor sentencing or anything presented at the time of sentencing.WinklerHamilton 5/27/2022 5/27/2022 2022-Ohio-1771
State v. Schilling C-210363SEX OFFENSES – MEGAN’S LAW – ADAM WALSH ACT –R.C. 2950.15 – REGISTRATION TIME CREDIT: Where defendant, a Kentucky resident, was convicted of attempted voyeurism in the Hamilton County Municipal Court in 2008 for an offense that had occurred in 2007, before the effective date of Ohio’s version of the Adam Walsh Act (“AWA”), and was erroneously classified as a Tier I offender under the AWA; where no appeal was taken from that judgment; and where in 2019 defendant moved to Ohio and filed a motion to terminate his registration duties under R.C. 2950.15, the trial court erred in entering an order stating that defendant was a sexually oriented offender under Ohio’s version of Megan’s Law: Because his Tier I classification was a part of his sentence, and the original trial court had subject-matter jurisdiction and personal jurisdiction over defendant, the Tier I classification was voidable, not void, and since it was never appealed it cannot be corrected, and therefore, defendant is a Tier I offender under the AWA and an eligible offender under R.C. 2950.15. See State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776.ZayasHamilton 5/27/2022 5/27/2022 2022-Ohio-1773
Custom Pro Logistics, L.L.C. v. Penn Logistics, L.L.C. C-210422MOTION TO VACATE – ABUSE OF DISCRETION – CIV.R. 4.1 – CIV.R. 4.2 – CIV.R. 4.3 – CERTIFIED MAIL – SERVICE – NOTICE – MOTION FOR RELIEF FROM JUDGMENT – CIV.R. 60(B) – CIV.R. 55(B) – EXCUSABLE NEGLECT – INTERNAL PROCEDURES: The trial court did not abuse its discretion in denying defendant’s motion to vacate the default judgment against it where certified mail service was properly delivered to the correct address. The trial court did not abuse its discretion in denying defendant’s motion for relief from judgment under Civ.R. 60(B)(1) where defendant did not dispute that two businesses operated out of the same address and no internal procedures were put into place to ensure receipt of service by the appropriate business or person.ZayasHamilton 5/27/2022 5/27/2022 2022-Ohio-1774
Krasik v. Newstate C-210457R.C. 3119.01 – R.C. 3119.04(B) – R.C. 3119.23 – CHILDREN – CHILD SUPPORT: The trial court did not err by finding that father was voluntarily underemployed and had a potential income of $80,000 under R.C. 3119.01(C)(17) after he left jobs that paid more than $80,000 to travel the world in an RV while running a small business from the back of that RV. The trial court did not abuse its discretion under R.C. 3119.04(B) by imposing a child support order despite the fact that the child lives in a wealthy household. The trial court did not err by excluding employer contributions to mother’s retirement account in her gross income when calculating child support because Ohio courts have consistently rejected the notion that employer contributions to a retirement account constitute gross income for child support purposes. The trial court did not abuse its discretion by finding that employing a nanny constituted a reasonable daycare expense because the nanny enabled mother to work long, unpredictable hours. The trial court did not abuse its discretion by refusing to grant a downward deviation from the child support obligation under R.C. 3119.23 merely because mother’s annual household income exceeds $1 million.BergeronHamilton 5/27/2022 5/27/2022 2022-Ohio-1775
Lester v. FCA US, L.L.C. C-210532, C-210536CIV.R. 50(B)—CONSUMER SALES PRACTICES ACT—LEMON LAW—JUDGMENT NOTWITHSTANDING THE VERDICT—JURY INSTRUCTIONS—R.C. 1345.72: The trial court did not abuse its discretion by refusing to give a requested jury instruction on the plaintiff’s burden of proof in a Lemon Law claim under R.C. 1345.72, where the instruction given by the court correctly and completely stated the law, and where the requested jury instruction merely restated the language in the court’s instruction. The trial court erred by failing to grant defendant’s Civ.R. 50(B) motion for judgment notwithstanding the verdict on plaintiff’s Consumer Sales Practices Act claim predicated on the existence of a warrantable defect where the jury specifically found that plaintiff’s vehicle had no warrantable defect and that defendant breached no warranty—the jury’s finding that defendant manufacturer committed an unfair or deceptive act by its dealer’s failure to contact plaintiff about its possession of a device to diagnose a vehicle defect was inconsistent with the jury’s findings that no warrantable defect existed and that defendant breached no warranty.MyersHamilton 5/27/2022 5/27/2022 2022-Ohio-1776
Garber v. Schneider C-210568GUARDIANS—PROBATE COURT—R.C. 2111.50—SUMMARY JUDGMENT—TRUSTS: The probate court erred by granting summary judgment to invalidate a trust amendment for lack of capacity where the parties presented conflicting evidence from which alternate conclusions could be drawn as to the settlor’s lack of capacity. The probate court abused its discretion by sua sponte exercising its power under R.C. 2111.50(B)(4) to revoke a ward’s trust amendment without complying with the notice and hearing requirements set forth in R.C. 2111.50(E).MyersHamilton 5/27/2022 5/27/2022 2022-Ohio-1777
In re W/H Children C-220113CHILDREN – PERMANENT CUSTODY : The juvenile court did not err in granting permanent custody of mother’s child to the Hamilton County Department of Job and Family Services: although the record shows that mother has made progress as compared to her previous involuntary terminations of parental rights by securing an apartment and engaging in therapy, the record supports the trial court’s determination that mother cannot provide a legally secure placement for her child and cannot adequately care for her child, and that the best interest of the child supports an award of permanent custody, because mother’s mental-health needs remain a barrier to providing a safe and secure placement for her child.WinklerHamilton 5/27/2022 5/27/2022 2022-Ohio-1778
State v. Barnes C-210345, C-210346, C-210347, C-210348SENTENCING – R.C. 2929.25 – JAIL-TIME CREDIT – NO-CONTACT ORDER – RESTITUTION: The trial court erred in imposing a suspended jail term that in the aggregate, exceeded the 18-month maximum jail term set forth in R.C. 2929.25(A)(1) and miscalculating jail-time credit. The trial court erred in imposing a no-contact order when defendant was not placed on community control. The trial court properly announced the restitution amounts imposed in open court.ZayasHamilton 5/25/2022 5/25/2022 2022-Ohio-1738
State v. Johnson C-210381POSTCONVICTION – RES JUDICATA: The common pleas court erred by denying defendant’s R.C. 2953.21 petition for postconviction relief without first holding an evidentiary hearing where: (1) defendant had satisfied his initial burden of setting forth substantive grounds for relief and (2) res judicata did not operate to bar defendant’s postconviction claims where each claim was supported by cogent evidence outside the original trial record.ZayasHamilton 5/25/2022 5/25/2022 2022-Ohio-1739
Morrison v. Walters C-210398DIVORCE – SPOUSAL SUPPORT – R.C. 3105.18(C)(1) – FINANCIAL MISCONDUCT : In a divorce action, the trial court did not abuse its discretion in finding that husband had similar earning potential to wife and denying an award of spousal support where husband offered no evidence to contradict the court’s findings. The trial court did not abuse its discretion in finding no financial misconduct on the part of wife who gambled and made interest-only payments on a home equity line of credit, where husband accompanied her on gambling trips and where husband may have disagreed with wife’s chosen method of loan repayment but he never inquired about the status of the loan and interest-only payments were an option for repayment.BergeronHamilton 5/25/2022 5/25/2022 2022-Ohio-1740
State v. Embree C-210463CARRYING A CONCEALED WEAPON – R.C. 2923.12 – READY AT HAND – LAWFUL PURPOSE: Where defendant was seated in the driver’s seat of his automobile, the weapon was found in a gun box on the front passenger seat, and the accompanying ammunition was found next to the gun box in a cup holder, the state established that the weapon and ammunition were ready at hand and defendant’s conviction for carrying a concealed weapon was supported by sufficient evidence. Defendant failed to prove by a preponderance of the evidence that he transported the firearm for a lawful purpose.MyerHamilton 5/25/2022 5/25/2022 2022-Ohio-1741
State v. Williams C-210326POSTCONVICTION: The common pleas court’s entry denying defendant’s R.C. 2953.21 petition for postconviction relief is reversed, and the cause is remanded, because the court’s judgment did not include findings of fact and conclusions of law as required by R.C. 2953.21(H), which effectively precluded meaningful judicial review.MyersHamilton 5/11/2022 5/11/2022 2022-Ohio-1572
State v. Johns C-210337, C-210338CRIMINAL DAMAGING – VIOLATION OF A PROTECTION ORDER – R.C. 2919.27 – R.C. 2909.06 – EVIDENCE: The trial court did not lose its way in determining that defendant violated the terms of a protection order and was guilty of criminal damaging where the protected person testified that she saw defendant, from one foot away, standing on her back porch removing a security camera from her property.CrouseHamilton 5/11/2022 5/11/2022 2022-Ohio-1573
State v. Henson C-210244CONSTITIONAL LAW/CRIMINAL - SEARCH & SEIZURE – CONSENSUAL ENCOUNTER - TERRY - PAT-DOWN SEARCH: The initial encounter between police and the defendant was a consensual encounter when police officers, responding to a Spot Shotter alert, saw defendant in the vicinity and asked him if he had heard gunshots, because a reasonable person would have felt free to leave. The trial court did not err in granting defendant’s motion to suppress any evidence resulting from a Terry pat-down search where the record showed that (1) the police officers, responding to a Shot Spotter alert, arrived approximately five minutes after the alert to an area with a lot of apartments and houses, (2) the officers saw defendant putting his children in a car, (3) the officer, although he said he was patrolling in a high-crime area, failed to specify where the “hot spots” were, (4) there were no reports of gunfire from residents of the area, and (5) defendant had no bulge in his clothing indicating that he was armed and made no gestures consistent with having a weapon, and therefore, the record did not show that the police officers had a reasonable suspicion that defendant was armed and dangerous. [But see DISSENT: Looking at the totality of the circumstances, the police officers had an objectively reasonable suspicion that defendant might have been involved in criminal activity and that he was armed and dangerous sufficient to justify the stop and pat-down search where (1) the Shot Spotter alert was narrowed down to a small area, (2) it was dark and raining, (3) it was a high-crime area, and (4) when the officers said that they wanted to conduct a pat-down search, the defendant became agitated and turned his body away.]ZayasHamilton 5/11/2022 5/11/2022 2022-Ohio-1571
State v. Jordan C-210198 & C-210199SEXUAL IMPOSITION — R.C. 2907.06(A)(2) — SUFFICIENCY — KNOWLEDGE — SUBSTANTIAL IMPAIRMENT: Defendant’s conviction for sexual imposition in violation of R.C. 2907.06(A)(2) was not supported by sufficient evidence because the state failed to produce evidence that defendant knew that the victim’s ability to appraise the nature of or control of defendant’s conduct was substantially impaired where no witnesses testified that the victim’s disability was self-evident, the victim’s testimony did not suggest her cognitive disability was discernable, and defendant did not provide medical treatment or have access to the victim’s medical records as the residential facility night supervisor. [But see DISSENT: The evidence adduced by the state showed that defendant used his role as a residential-facility supervisor to lure a blind, cognitively-impaired victim into his office under the pretense of his concern for the victim's physical health, and that once he got the victim into a state of undress, he engaged her in sexual contact; therefore, sufficient evidence exists to uphold the defendant's conviction for sexual imposition under R.C. 2907.06(A)(2)]BockHamilton 5/6/2022 5/6/2022 2022-Ohio-1512
Carlson v. Cincinnati C-210238LAW OF THE CASE — CIV.R. 60(B): The law-of-the-case doctrine does not apply to preclude relief on remand after an appeal when the subsequent proceedings involve different factual records. A party may not amend an entry of satisfaction of judgment that in effect modifies the trial court’s judgment without satisfying the provisions of Civ.R. 60(B).WinklerHamilton 5/6/2022 5/6/2022 2022-Ohio-1513
Gauthier v. Gauthier C-210298GARNISHMENT – R.C. 2716.13 – SETOFF: The trial court, in an entry ordering the disbursement of garnished funds, did not err in failing to find that defendant had already satisfied plaintiff’s judgment by setting that judgment off against a separate debt owed by plaintiff to defendant where defendant introduced no entry of satisfaction of judgment and where defendant had no formal judgment in his favor setting forth the amount of plaintiff’s debt.MyersHamilton 5/6/2022 5/6/2022 2022-Ohio-1514
State v. Nash C-210435 & C-210436EVIDENCE – INEFECTIVE ASSISTANCE OF COUNSEL: Defendant’s convictions for domestic violence and menacing were not against the manifest weight of the evidence merely because the trial court believed the prosecution testimony over the defense testimony.BergeronHamilton 5/6/2022 5/6/2022 2022-Ohio-1516
Hamilton Cty. Treasurer v. Scott C-200438TAX FORECLOSURE — R.C. 5721.20 — EXCESS FUNDS —DUE PROCESS: Based on the particular facts and circumstances of the case, the trial court did not err in ordering the distribution of excess funds in a tax-foreclosure action to the defendant-owner where the trial court found that due process required notice to the owner of the excess funds and found that the owner did not receive such notice.ZayasHamilton 5/4/2022 5/4/2022 2022-Ohio-1467
Crown Asset Mgt., L.L.C. v. Gaynor C-210157SUMMARY JUDGMENT — DISCOVERY — CIV.R. 8 — CIV.R. 53 — WAIVER — SUP.R. 45: The trial court did not err by granting summary judgment in favor of plaintiff where defendant failed to deny the allegations contained within plaintiff’s complaint and failed to file an objection to plaintiff’s motion for summary judgment; and, by failing to object to the magistrate’s decision to grant summary judgment, defendant waived all issues on appeal.BockHamilton 5/4/2022 5/4/2022 2022-Ohio-1468
Deer Park Roofing, Inc. v. Oppt C-210471APP.R. 4(C) – FINAL JUDGMENT – APPELLATE JURISDICTION: Where defendant filed a notice of appeal from an interlocutory order granting summary judgment, which left third party defendant’s crossclaim and counterclaim pending, appellate jurisdiction was lacking under App.R. 4(C) because that rule does not apply to appeals from interlocutory orders that are subsequently rendered final.BergeronHamilton 5/4/2022 5/4/2022 2022-Ohio-1469
State v. Lyles C-210271; C-210272; C-210273TRAF.R. 10(D) – PLEA COLLOQUY – CORPUS DELICTI: The trial court violated Traf.R. 10(D) by accepting defendant’s guilty plea to driving under suspension without informing him that his plea was a complete admission of guilt. Defendant’s confession to a hit-skip violation did not contravene the corpus delicti rule where the state established that a license plate was lodged in the rear bumper of a vehicle that was at the scene of the accident. Defendant’s convictions for a hit-skip violation and an assured-distance violation were not against the manifest weight of the evidence where testimony established that a license plate was lodged in the rear bumper of a vehicle at the scene, defendant responded to an investigatory letter regarding the accident, and defendant confessed to being in the accident.BergeronHamilton 4/29/2022 4/29/2022 2022-Ohio-1414
Kitchens v. Ruff C-210220ATTORNEY FEES — AMERICAN RULE — BAD-FAITH EXCEPTION: The trial court’s express finding of no bad faith precluded an award of attorney fees under the bad-faith exception to the “American Rule” that each party is responsible for its own litigation expenses.BockHamilton 4/27/2022 4/27/2022 2022-Ohio-1378
Meehan v. Mardis C-210399COMPLAINT – CIV.R. 15(A): The trial court did not abuse its discretion in denying plaintiff’s motion for leave to amend his complaint where the motion was not timely filed and plaintiff offered no rationale justifying the delay.CrouseHamilton 4/27/2022 4/27/2022 2022-Ohio-1379
State v. Hampton C-210423MOTION TO SUPPRESS – EVIDENCE – R.C. 4511.34 – ABUSE OF DISCRETION: Where competent and credible evidence existed upon which the trial court could conclude that no objectively reasonable officer would have believed defendant was following the vehicle in front of him more closely than was reasonable and prudent, the trial court did not abuse its discretion in granting defendant’s motion to suppress evidence recovered after a traffic stop.BergeronHamilton 4/27/2022 4/27/2022 2022-Ohio-1380
Borthwick v. Dept. of Bldg. & Inspections C-210315CIV.R. 12(B)(6) — CIV.R. 8(A) — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS — MALICIOUS PROSECUTION — RACIAL DISCRIMINATION: The trial court’s sua sponte dismissal of plaintiff’s complaint was proper where the plaintiff plainly failed to allege facts in support of his claims for malicious prosecution, intentional infliction of emotional distress, and racial discrimination.BockHamilton 4/22/2022 4/22/2022 2022-Ohio-1335
State v. Evenson C-210372 & C-210373CONSTITUTIONAL LAW/CRIMINAL — FOURTH AMENDMENT — MOTION TO SUPPRESS — WARRANT — PROBABLE CAUSE — SEARCH AND SEIZURE — OPEN-FIELDS DOCTRINE: The trial court did not err in denying defendant’s motion to dismiss where credible, competent evidence supported that, prior to obtaining the search warrant, a detective conducted a “knock and talk” at the residence to find out why the tracking device on stolen equipment would be “pinging” from defendant’s property and, after no one responded at the home, walked along the driveway of the property—which led to the three storage buildings on the property—to find someone to speak to about the signal: Because the driveway is open to the public and it is not a part of the curtilage, and the detective had a right to be on the property pursuant to the investigation of the stolen equipment, the detective’s observation from the driveway of “fresh track marks that would be made by a track-type vehicle similar to what had been described as stolen” leading to the inside of the building was not in violation of the Fourth Amendment. Where the record reflected that there was no “no trespassing” sign posted on the property, and neither the property, nor the storage buildings, were enclosed by a fence or some other means intended to shield the property from public view or government surveillance, there was no reasonable expectation of privacy for the property. The report of the tracking device pinging from defendant’s property—which was confirmed by law enforcement to belong to defendant—and the report of the tracks that were discovered by a detective during the “knock and talk” provided a substantial basis to believe that there was a fair probability that the stolen equipment would be found on defendant’s property, which established sufficient probable cause to obtain a search warrant.BockHamilton 4/22/2022 4/22/2022 2022-Ohio-1336
Sycamore Twp. v. Carr C-210389JOINDER – WAIVER – WITHDRAWAL OF COUNSEL: Defendant-appellant waived his argument that his former attorneys should have been joined to a motion to enforce a settlement agreement where those attorneys were entitled to fees under the agreement by failing to raise the issue in the trial court. The trial court did not abuse its discretion by allowing defendant-appellant’s attorneys to withdraw as counsel when they provided defendant-appellant with notice of their intention to withdraw, informed him of the deadline to file his response to the motion to enforce, negotiated with opposing counsel to obtain an extension of time to respond, and encouraged him to obtain new counsel.BergeronHamilton 4/22/2022 4/22/2022 2022-Ohio-1337
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