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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
State v. Clem 2019-CA-61Appellant was sentenced to eight months in prison after pleading guilty to trespass in a habitation. Appellant was a first-time, nonviolent felony offender. The trial court imposed prison instead of community control because appellant admitted to smoking marijuana on the day of his PSI interview, a clear violation of the bond condition requiring him to obey all Ohio criminal laws. We do not find that the sentence was clearly and convincingly not supported by the record or that the sentence was contrary to law. Judgment affirmed.WelbaumClark 2/28/2020 2/28/2020 2020-Ohio-690
State v. Dewberry 27434Appellant was convicted of aggravated murder, attempted murder, and having weapons while under disability based on the shooting of two individuals. The trial court erred in denying appellant’s request to call the surviving victim as a witness at the suppression hearing. Nevertheless, with the record before us, the trial court did not err in denying appellant’s motion to suppress the surviving victim’s photospread identification of appellant as the shooter; even if the police’s photospread or its administration were unduly suggestive, the surviving victim’s identification was sufficiently reliable. Appellant’s convictions were based on sufficient evidence and were not against the manifest weight of the evidence; the jury did not lose its way when it concluded that appellant was the shooter. Any error in the trial court’s failure to admit text messages sent to the surviving victim from her ex-boyfriend was harmless, given that the jury was made aware of the threatening nature of the messages and that the ex-boyfriend sent those messages to the victim shortly before the shooting. Appellant did not demonstrate that his counsel rendered ineffective assistance by failing to offer the text messages properly since the appellant was not prejudiced by the lack of the admission of the messages. The detective’s brief testimony that an attorney told him that the surviving victim was in fear and wanted protection by the police was harmless error, given that the statement was cumulative of the victim’s extensive prior testimony at trial on those matters. The trial court did not abuse its discretion in allowing an FBI special agent to testify on redirect examination about whether appellant’s cell phone could have been located at his residence at the time of the shooting. No cumulative error shown. Judgment affirmed.FroelichMontgomery 2/28/2020 2/28/2020 2020-Ohio-691
State v. Heys 28374State’s appeal. The trial court erred in crediting appellee with jail time from his Logan County sentence toward his unrelated Montgomery County sentence. Appellee was entitled to three days of jail time credit following his Montgomery County arrest, plus the 14 days he was further held on the Montgomery County case in lieu of bond until sentencing, for a total of 17 days. Accordingly, the judgment of the trial court is modified to award appellee jail time credit of 17 days, rather than 183 days. (Tucker, P.J., concurring.)DonovanMontgomery 2/28/2020 2/28/2020 2020-Ohio-692
In re S.F. 28606The juvenile court did not abuse its discretion in awarding permanent custody of a dependent child to Montgomery County Children Services instead of granting legal custody to the child’s paternal grandmother. At the time of the final judgment, the child was 25 months old, had been in the agency’s custody for 23 consecutive months, and had lived in the same foster home for nearly 19 months. Neither parent claimed to be able to provide a suitable home for the child in the foreseeable future, and the evidence showed that the child had bonded with the foster parents interested in adopting him; the child had had only sporadic visits with the paternal grandmother, who lacked a documented record of income sufficient to meet the needs of this child and others in her care. Clear and convincing evidence supported the trial court’s determination that the child’s best interest would be served by awarding permanent custody to the agency. Judgment affirmed.FroelichMontgomery 2/28/2020 2/28/2020 2020-Ohio-693
MRC Innovations, Inc. v. Lion Apparel, Inc. 28229Both parties to a commercial contract dispute appealed from the trial court’s entry of judgment in favor of a protective equipment company and against the supplier that did not timely deliver goods ordered by the equipment company. The trial court did not err in granting summary judgment to the equipment company on claims related to glove shells that the supplier failed to deliver, as the evidence compelled a conclusion that the equipment company’s prepayment toward those items was a refundable deposit, not “investment risk” subject to forfeiture, and the supplier did not have a right to cure after repeatedly failing to deliver conforming goods despite multiple delivery date extensions. Further, the trial court did not abuse its discretion by awarding pre-judgment interest to the equipment company from the date of the supplier’s final missed delivery instead of from the date that the equipment company filed its counterclaim against the supplier. Finally, the trial court did not abuse its discretion by finding that the equipment company had not proven with reasonable certainty its claim for lost profits stemming from the supplier’s failure to deliver outwear items ordered under a separate contract between the parties. Judgment affirmed.FroelichMontgomery 2/28/2020 2/28/2020 2020-Ohio-694
State v. Noble 28435The trial court did not err in overruling appellant’s motion to suppress. The affidavit in support of the search warrant contained sufficient facts to justify the issuance of a nighttime search warrant. The search warrant issued by the magistrate permitted the officers to search the apartment for illegal narcotics, weapons, and money. Since any of these items could have reasonably been located in the locked safe found in the apartment, the police were not required to obtain a second search warrant to search the locked safe. Judgment affirmed. (Tucker, J., concurring.) (Froelich, J., concurring in judgment only.)DonovanMontgomery 2/28/2020 2/28/2020 2020-Ohio-695
State v. Kirk 28353Appellant served his jail sentence; consequently, this appeal challenging the sentence for his conviction for failure to comply with an order or signal of a police officer is moot. Appeal dismissed.DonovanMontgomery 2/28/2020 2/28/2020 2020-Ohio-696
Cherryhill Mgt., Inc. v. Branham 28438The trial court properly sustained a non-party insurance company’s motion to quash discovery requests filed by plaintiff-appellant in a negligent entrustment action, where the driver of the vehicle was not the owner-insured; the information sought was privileged or otherwise protected matter to which no exception applied. Civ.R. 45(C)(3)(b). The trial court did not err in granting summary judgment in favor of appellee-former husband on appellant’s negligent entrustment and respondeat superior claims; the former husband lacked access to the vehicle, and there was no evidence that he knew the driver. The trial court did not err in granting summary judgment in favor of appellee-car owner on appellant’s negligent entrustment claim; the appellee-car owner had obtained the vehicle pursuant to a dissolution decree, and there was no genuine issue of material fact that she had not given her friend (the driver of the vehicle at the time of the accident) express or implied consent to drive the vehicle. Judgment affirmed. (Tucker, P.J., concurring.) (Froelich, J., concurring.)DonovanMontgomery 2/21/2020 2/21/2020 2020-Ohio-596
State v. Monroe 2018-CA-124The trial court revoked appellant’s community control for having weapons while under disability (a third-degree felony) and for carrying a concealed weapon and improper handling of firearms in a motor vehicle (both fourth-degree felonies). The trial court abused its discretion in concluding that appellant violated the term of community control requiring him to complete 120 hours of community service when the program director testified and provided certificates showing that appellant had complete the community service requirement to the director’s satisfaction, even though the program apparently allowed appellant to satisfy the requirement with less than 120 hours on-site. The trial court did not abuse its discretion in determining that appellant failed to meet with his probation officer as directed and did not comply with his electronic monitoring schedule. The trial court did not abuse its discretion in revoking appellant’s community control and imposing the previously-stated 24-month sentence for having weapons while under disability. R.C. 2929.15(B)(1)(c)(ii) applied to the revocation of appellant’s community control for his fourth-degree felonies and limited the prison term to 180 days. Accordingly, the trial court erred in imposing 18-month prison sentences for those offenses. The trial court’s judgment with respect to appellant’s conviction for having weapons while under disability is affirmed. The portion of the trial court’s judgment imposing 18-month sentences for carrying a concealed weapon and improper handling of firearms in a motor vehicle is reversed; the sentences for those offenses will be modified to 180 days in prison, and the matter is remanded for the limited purposes of issuing a revised judgment entry consistent with our judgment herein and of notifying the appropriate prison officials of that revised judgment entry.FroelichClark 2/21/2020 2/21/2020 2020-Ohio-597
State v. Mott 2019-CA-41Appellant’s trial counsel was not ineffective for failing to subpoena two of the witnesses named on the defense’s witness list. Appellant’s conviction for felonious assault was not against the manifest weight of the evidence, and his six-year sentence for felonious assault was not contrary to law. Judgment affirmed.DonovanClark 2/21/2020 2/21/2020 2020-Ohio-598