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State v. Jones 111208R.C. 2929.14(C)(4); R.C. 2929.41; consecutive sentences; R.C. 2152.16(A)(1)(b); juvenile commitment; R.C. 2953.08(G)(2)(b); sentence contrary to law. The imposition of consecutive sentences in this case is contrary to law under R.C. 2953.08(G)(2)(b). Appellant was serving a juvenile commitment at the Ohio Department of Youth Services (“ODYS”) until the age of 21. Appellant was directly indicted by the Cuyahoga County Court of Common Pleas and pleaded guilty to a felony assault that occurred at ODYS two months after appellant’s eighteenth birthday. The trial court invoked R.C. 2929.14(C)(4) to impose a two-year sentence to be served consecutive to the completion of appellant’s juvenile commitment. A juvenile adjudication is civil and rehabilitative while a criminal sentence is criminal and punitive. State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. A court may only impose sentences provided by statute. State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234. There is no statutory basis under the record before this court to impose an adult criminal sentence to be served consecutive to the completion of a civil juvenile commitment term.BladeCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4202
State v. Thornton 111347Reagan Tokes Law; right to trial by jury; separation-of-powers doctrine, due process rights. Appellant’s indefinite sentence imposed pursuant to the Reagan Tokes Law does not violate his constitutional rights.KilbaneCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4203
State v. Sharp 111359Qualifying felony; Reagan Tokes Law; constitutional. - Trial court erred in failing to sentence the defendant to an indefinite sentence because the defendant pleaded guilty to qualifying felonies under the Reagan Tokes Law. The Reagan Tokes Law does not violate a defendant’s right to due process or to a jury trial afforded under the Sixth Amendment and does not violate the doctrine of separation of powers.KeoughCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4204
State v. Hanlan 111385R.C. 2967.191(A); jail-time credit; pretrial bond condition; GPS monitoring; house arrest; home detention. Judgment affirmed. Appellant filed a motion requesting jail-time credit for days he was placed on pretrial house arrest as a condition of his bond. The trial court properly denied the motion because pretrial house arrest as a condition of bond does not constitute confinement or detention for purposes of awarding jail-time credit under R.C. 2967.191(A).BoyleCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4206
Cleveland v. Colby 111400Cleveland v. ColbyKeoughCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4207
State v. Trowbridge 111401Resentencing; Crim.R. 11; motion to withdraw guilty plea; res judicata. Appellant was resentenced after the state successfully appealed the consecutive nature of his sentence. Appellant only raises claims related to his original plea hearing. Appellant’s claims are barred by res judicata.O'SullivanCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4208
State v. Andrews 111455Motion for resentencing; petition for postconviction relief; direct appeal; untimely; res judicata. The trial court properly treated appellant’s motion for resentencing as a petition for postconviction relief because it (1) was filed after he had already filed a direct appeal, (2) claimed a denial of his constitutional right to effective assistance of counsel, (3) sought to render the trial court’s judgment voidable, and (4) asked for the court to vacate his conviction and sentence. The trial court properly denied appellant’s petition for postconviction relief because it was untimely filed and not subject to the exception set forth under R.C. 2953.23(A)(1). Further, the petition was barred under the doctrine of res judicata, as appellant’s claims should have been raised in his direct appeal.O'SullivanCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4209
Buonopane v. M. Co., Ltd. 111524Civ. R 56; summary judgment; open and obvious; attendant circumstances. The trial court correctly granted summary judgment to a restaurant when appellant fell on the sidewalk in front of the restaurant entrance. The appellant admitted she was not looking where she was walking because she was looking at the signs on the restaurant door, but if she had looked down, she would have seen the expansion joint in the sidewalk. The small expansion joint between the two sections of the sidewalk was an open and obvious hazard, and the COVID-19 signs posted on the restaurant doors were not attendant circumstances that created an issue of fact.O'SullivanCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4210
Cleveland Municipal Court v. Rasheeda Properties, L.L.C. 111652Civ.R. 60(B); abuse of discretion. The decision to deny a motion for relief from judgment without hearing is within the discretion of the trial court. Where a motion for relief from judgment does not present a meritorious claim if relief from judgment is granted, the trial court cannot be said to have abused its discretion. Appellant filed motions for relief from judgment in two collection cases for fines and costs entered in separate, ongoing cases. Appellant argued that it presented a meritorious claim where it asserted error of service in the separate cases. Appellant did not present evidence of service in the separate cases and only argued that one method of service was not made. As such, appellant did not present a record that appellant had a meritorious claim if relief from judgment was granted. Further, the trial court did not err in denying the motions for relief from judgment by noting that the cases from which the judgments arose were ongoing.SheehanCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4211
Weiler v. C.L. 111657Malicious civil prosecution; malicious criminal prosecution; constructive fraud; motion to dismiss; Civ.R. 12(B)(6). Trial court properly dismissed complaint for failure to state a claim for malicious civil or criminal prosecution where the complaint alleged that prior proceedings did not end in the plaintiff’s favor. Trial court properly dismissed constructive fraud claim where complaint contained no allegations of a special or fiduciary relationship between the plaintiff and defendant.E.T. GallagherCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4212
In re J.H. 111669Termination of parental rights; permanent custody; continuance; manifest weight of the evidence; sufficiency of the evidence; clear and convincing evidence; R.C. 2151.414; R.C. 2151.413; R.C. 2151.353. The juvenile court’s judgment granting permanent custody of two siblings to the agency was not against the manifest weight of the evidence or based on insufficient evidence. The juvenile court did not err in refusing to grant Mother’s continuance on the same day of the permanent custody hearing. Evidence presented at the permanent custody hearing supports the trial court’s order granting permanent custody to the agency.CelebrezzeCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4213
In re J.T. 111749Permanent custody; standing; motion to continue. Mother lacked standing to challenge the trial court’s denial of Father’s motion to continue without a showing that such denial prejudiced Mother.KilbaneCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4214
In re E.J.W. 111828R.C. 2151.23(I); R.C. 2152.02(C)(5); jurisdiction; juvenile court; transfer; 21 years old. - Juvenile court erred in dismissing case for lack of jurisdiction on the basis that appellee could not statutorily be considered a child after his felony convictions because although appellee pleaded guilty to felonies in two cases in the general division of the common pleas court, the cases were not transferred from juvenile court to the general division as required by R.C. 2152.02(C)(5) to preclude juvenile court jurisdiction; juvenile court erred in finding that R.C. 2151.23(I) precluded jurisdiction because appellee was 17 when the offenses were committed, 19 when the juvenile complaint was filed, and had not reached the age of 21, as required by the statute.KeoughCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4215
Osmic v. Sutula 112132Writ of Prohibition; subject-matter jurisdiction; standing; jurisdiction; litigation immunity; The First Amendment; adequate remedy at law; sua sponte dismissal. Relators complaint for writ of prohibition and application for peremptory writ of prohibition were sua sponte dismissed and denied, respectively. Relators’ could not possibly succeed based on the allegations made in the complaint that respondent judges lacked subject-matter jurisdiction based on a claim that a plaintiff in an underlying action lacked standing. Further, respondents were not exercising or about to exercise judicial power in a case pending in Lake County Common Pleas Court, precluding relief in prohibition as to that case.CelebrezzeCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4216
State v. Whitfield 111377R.C. 2907.02(A)(2); rape; sufficiency of the evidence; manifest weight of the evidence. Appellant’s rape conviction under R.C. 2907.02(A)(2) is supported by sufficient evidence where the victim testified that appellant forced her onto his lap, tried to kiss her while she resisted, laid her down on the floor, pulled her pants down, and raped her while she verbally and physically resisted. Appellant’s rape conviction is not against the manifest weight of the evidence. Although the victim could not remember some of the details regarding her prior interactions with appellant, which, at the time of trial, were five years prior, she was detailed about the rape.O'SullivanCuyahoga 11/23/2022 11/25/2022 2022-Ohio-4205
State v. Sanchez-Sanchez 110885Rape; R.C. 2907.02(A)(1)(b); sexual conduct; R.C. 2907.01(A); vagina; labia; vulva; anatomy; knowledge of minor; insertion; penetration; force or threat of force; R.C. 2971.03(B)(1)(C); gross sexual imposition; R.C. 2907.05(A)(4); sexual contact; R.C. 2907.01(B); illegal use of minor in nudity-oriented material; R.C. 2907.323(A)(1); nudity; R.C. 2907.01(H); nude photos; naked photographs; vague and ambiguous testimony; sufficiency of the evidence; victim testimony; corroboration; Crim.R. 29; motion for acquittal; manifest weight of the evidence; structural error; judicial bias; jury selection; voir dire; Confrontation Clause; hearsay; ineffective assistance of counsel; failure to object; plain error; cumulative error. There was insufficient evidence to sustain a conviction for illegal use of a minor in nudity-oriented material or performance. The minor female testified that the defendant asked her for “naked pictures.” She said she sent him photographs that showed her face, which she took while she was completely naked. The photographs were not nudity-oriented material unless they depicted one of the body parts enumerated in the statutory definition of “nudity.” The state did not elicit any testimony about what body parts — beyond the minor’s face — were depicted in the photographs, which were not admitted into evidence. The minor’s testimony would be equally consistent with a description of photographs that did not depict nudity. We affirmed the defendant’s convictions for rape and gross sexual imposition, which were supported by sufficient evidence and were not against the manifest weight of the evidence. The defendant argued that the victim may not have known enough about anatomy to differentiate her vagina from other genital structures, but it is well-settled that if the force of an object — like a finger — causes a victim’s labia to spread, that is sufficient penetration to constitute “sexual conduct” under the statute; it is not necessary for an object to penetrate into the vagina. There was sufficient evidence of rape where the minor victim testified that the defendant touched the “inside” of her “lower” “private part.” We found that the trial court erred in giving the jury a flight instruction where it was not clear that the defendant appreciated that he had been identified as a person of interest in a criminal investigation and was taking active measures to avoid being found. While the trial court should not have given the instruction, we found the error harmless. The trial court’s excusal of a venireperson for cause, which the defendant claimed was erroneous, was not a manifestation of bias against the defendant where the trial court based the excusal on an assessment of the venireperson’s credibility during voir dire. It was not plain error for the trial court to admit a detective’s testimony that the victim’s father offered reward money for the defendant’s location, because it is not clear that the outcome of the proceedings would have been different had the testimony been stricken. The defendant’s trial counsel was not ineffective by discussing the defendant’s lack of legal immigration status during voir dire and during the trial, where this discussion was clearly part of the defense strategy. Trial counsel was not ineffective by failing to object to the detective’s testimony about the reward money, as we cannot say that the jury’s verdict would clearly have been different if the jury had not heard the testimony or had been instructed to disregard it.E.A. GallagherCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4080
State v. Thompson 111175Motion for postconviction discovery; noncapital case; Crim.R. 16; Crim.R. 42(C); R.C. 2953.21(A)(1)(e). Trial court did not err in denying appellant’s postconviction motion for discovery; there is no right to postconviction discovery in noncapital cases.E.A. GallagherCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4081
Capital One Bank v. McCladdie 111289Action on account; Civ.R. 56; summary judgment; sovereign persons. The trial court’s grant of summary judgment is affirmed. Viewed in a light most favorable to appellant, there was no genuine issue of material fact that appellant owed the amount claimed. In addition, Ohio courts do not recognize sovereign or natural person claims of lack of jurisdiction.Laster MaysCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4082
State v. Viers 111303Consecutive sentences; statutory findings. A review of the transcript indicates the trial court made the statutory findings and engaged in the correct analysis for its imposition of consecutive sentences. While not required to, the trial court explained its reasons for the findings and the record contains evidence to support the findings. R.C. 2929.144(C)(4) requires the sentencing court to consider a defendant’s “history of criminal conduct,” rather than “convictions,” and the trial court is permitted to consider conduct by a defendant that does not result in a conviction, provided the conduct is not the sole basis for the sentence. In addition, a defendant’s juvenile record may be considered as part of an offender’s criminal history for R.C. 2929.14(C)(4) purposes in determining whether to impose consecutive sentences.SheehanCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4083
Epps v. State Farm Auto. Ins. 111378Arbitration agreement; R.C. 2711.02; stay of proceedings; abuse of discretion. An insured filed a declaratory-judgment action against an insurer that sought to determine whether the insurer has a subrogation interest as to medical payments as to the insured’s settlement agreement with another insurance company. Because the issue of subrogation of medical payments by the insurer is subject to an arbitration agreement between the insurance companies, the trial court did not abuse its discretion by staying the proceedings even though the insured was not a party to the arbitration agreement.SheehanCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4084
Haddad v. Maalouf-Masek 111409Will contest; undue influence; jury instructions; R.C. 2315.01(A)(7); hearsay evidence; Evid.R. 804(B)(5); evidence admissibility; motion in limine. The jury’s decision in a will-contest action between two sisters determining that a will was not the product of undue influence is affirmed. The probate court did not err when it misspoke during the reading of the jury instructions because the instruction was promptly remedied by paragraphs of correct instructions. The probate court also did not err in admitting hearsay evidence under Evid.R. 804(B)(5). Finally, the probate court did not err in limiting the evidence produced at trial to the years 2000 through 2005 because this limitation was consistent with the elements of an undue-influence claim.CelebrezzeCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4085
In re D.C. 111418Juvenile-delinquency adjudication; felonious assault; serious physical harm; sufficiency of the evidence. The state failed to present sufficient evidence of serious physical harm as required for felonious assault under R.C. 2903.11(A)(1) and 2901.01(A)(5)(c). The child-victim’s mother testified that the child-victim had a concussion and a bruise, and the child-victim testified that he was “hurt” and “depressed.”ForbesCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4086
In re C.P. 111445Juvenile; sexually oriented offense; classification; R.C. 2152.82; Tier II sex offender; PRQJOR classification; unconstitutional. Judgment vacated and remanded. The juvenile court was required to classify the juvenile under R.C. 2152.82 as juvenile offender registrant at the time the court issued its dispositional order in November 2019. That did not occur, however. Instead, the juvenile court did not classify the juvenile until November 2021, which was one month prior to his release date from ODYS. Because the juvenile was not classified at his disposition hearing in November 2019, the juvenile court erred by classifying him as a Tier II sex offender at the November 2021 hearing. The juvenile court further erred when it classified the juvenile as a PRQJOR in its March 9, 2022 judgment entry because the Ohio Supreme Court had found that R.C. 2152.86 is unconstitutional. Therefore, the juvenile’s Tier II sex-offender classification and PRQJOR classification are vacated from the March 9, 2022 judgment entry. The matter is remanded to the juvenile court to issue a new dispositional judgment entry without the Tier II sex-offender and Public Qualified Juvenile Registrant classifications.BoyleCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4087
In re N.S. 111486Permanent custody; domestic violence; time limitation for permanent-custody hearing; best interest of the child. R.C. 2151.414(A)(2) provides that the hearing for permanent custody shall be held no later than 120 days after the agency files the motion for permanent custody, but the court may continue the hearing “for a reasonable period of time” beyond the 120-day deadline “for good cause shown.” Despite the time limitation, R.C. 2151.414(A)(2) expressly states that the trial court’s failure to comply with the time period “does not affect the authority of the court to issue any order under this chapter and does not provide any basis for attacking the jurisdiction of the court or the validity of any order of the court.” Because of domestic violence in the home and mother's inability to provide a safe home for the children, the evidence before the trial court clearly and convincingly demonstrated that permanent custody to the agency is in the best interest of the children.SheehanCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4088
DJD Invest. Co., Ltd. v. Holsopple 111549 & 111696Summary judgment; Civ.R. 56; option agreement; contract; written notice. Summary judgment was appropriate where there were no genuine issues of material fact as to whether plaintiff-appellee properly exercised its option to purchase defendant-appellant’s condominium.KilbaneCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4089
In re M.J. 111708R.C. 2151.414(B)(1), permanent custody; R.C. 2151.414(B)(1)(d), 12 out of 22 months; best interest; R.C. 2151.414(D)(1); manifest weight; clear and convincing evidence. Clear and convincing evidence supported the trial court’s decision to grant permanent custody to CCFCFS when children had been in agency custody for more than 12 months of a consecutive 22-month period and permanent custody was in the children's best interest.O'SullivanCuyahoga 11/17/2022 11/17/2022 2022-Ohio-4090
State v. Stansell 101555App.R. 26(B); application to reopen appeal; conviction and sentence; direct appeal; collateral challenge; untimely. The application to reopen an appeal taken from a sentencing hearing limited to the imposition of postrelease control was denied because the appeal was not a direct appeal from the conviction and sentence to which App.R. 26(B) applied, and, further, the claims of ineffective assistance of counsel could not be addressed because they were not related to issues that could have been raised at the limited sentencing hearing.S. GallagherCuyahoga 11/15/2022 11/17/2022 2022-Ohio-4079
State v. Mills 110893Sufficiency of the evidence; dereliction of duty; R.C. 2921.44(C)(2); R.C. 2921.44(C)(5); definition of “officer”; falsification; R.C. 2921.13(A)(1); R.C. 2921.13(A)(3); prejudicial evidence; Evid.R. 403(A); other acts evidence; Evid.R. 404(B); abuse of discretion; harmless error; probative value; Crim.R. 52; limiting instruction; prejudicial error; App.R. 12. There was sufficient evidence to support the misdemeanor convictions of appellant, who was Cuyahoga County’s former regional director of corrections, for dereliction of duty and falsification. Appellant was an “officer” under the dereliction-of-duty statute. Because the word “officer” is not defined in the statute, we give the term its common, ordinary, and accepted meaning. Although appellant was appointed by the county executive, substantial evidence showed he held an office of trust, authority, or command. There was also sufficient evidence that appellant lied to county council during a council meeting when he said that he never blocked the hiring of nurses at the county jails. The trial court abused its discretion and committed prejudicial error warranting a new trial when it allowed into evidence substantial testimony regarding nine inmate deaths that occurred before, during, and after appellant’s tenure as regional director of corrections. The probative value of the evidence was substantially outweighed by the unfair prejudice to appellant. The multiple, combined errors were not harmless. The errors had an impact on the verdict. The conduct of the state combined with evidentiary error to cause greater impact. There was no probative value to the admission of an image taken from a jail security camera of an inmate shortly before the inmate died. The minimal limiting instructions the trial court gave to the jury were insufficient to overcome the admission of inadmissible evidence of inmate deaths. Even if the remaining evidence established appellant’s guilt beyond a reasonable doubt, the blatant prejudice warrants a new trial. Witness testimony regarding appellant’s negative attitude was harmless error.O'SullivanCuyahoga 11/10/2022 11/10/2022 2022-Ohio-4010
Costaras v. Gilson 111225R.C. 313.19; coroner’s verdict; rebuttable presumption that coroner’s ruling on death is legally accepted cause of death; Civ.R. 41(B)(2) involuntary dismissal; presumption against suicide; sufficiency and manifest weight of the evidence. Trial court’s dismissal of plaintiff’s complaint against the medical examiner seeking to change the manner of death from suicide to undetermined after a bench trial, pursuant to Civ.R. 41(B)(2), is affirmed. There is an absence of competent credible evidence to contradict the medical examiner’s findings. The court’s judgment is supported by sufficient evidence and not against the manifest weight of the evidence.ForbesCuyahoga 11/10/2022 11/10/2022 2022-Ohio-4011
Cleveland v. Figueroa 111267Restitution; estimate; abuse of discretion; insurance; offset. - Trial court did not abuse its discretion in basing its restitution order on a written estimate provided by the victim. Unless the evidence demonstrates that the victim submitted a claim to her insurance company, the trial court was not required to offset the restitution amount merely because of a possible insurance claim.KeoughCuyahoga 11/10/2022 11/10/2022 2022-Ohio-4012
State v. Coleman 111332Guilty plea; Crim.R. 11; substantial compliance; judicial coercion; R.C. 2953.08(D)(1); jointly recommended sentence. Affirmed. The defendant knowingly, voluntarily, and intelligently entered his guilty plea, and being advised of the maximum potential term of imprisonment should a defendant be found guilty of all counts at trial does not amount to judicial coercion into the guilty plea. R.C. 2953.08(D)(1) precludes appellate review of a jointly recommended sentence that was imposed by the trial court and that is otherwise in compliance with statutory law.S. GallagherCuyahoga 11/10/2022 11/10/2022 2022-Ohio-4013
In re E.E.D. 111352Permanent custody; termination of parental rights; legal custody; standing of legal custodian; R.C. 2151.414; best interest of the child. Although child’s great-aunt, as nonparent legal custodian, lacked standing to challenge termination of parents’ parental rights, she had standing to challenge juvenile court’s permanent custody order as it related to her request to maintain legal custody of the child and the termination of her rights as legal custodian. Legal custodians are not entitled to same protections as parents prior to termination of their custody rights. Juvenile court did not abuse its discretion in determining that it was in the child’s best interest that she not be returned to the legal custody of her great-aunt. Great-aunt had been convicted of committing domestic violence and child endangering against the child, the child and her counselor had been clear that she was not ready for family counseling with her great-aunt, the child wished to be placed in the permanent custody of the agency and the guardian ad litem recommended permanent custody. Juvenile court’s decision was well reasoned, was not arbitrary or unconscionable and juvenile court’s findings were supported by ample, competent and credible evidence in the record.E.A. GallagherCuyahoga 11/10/2022 11/10/2022 2022-Ohio-4014
In re So.P. 111468Legal custody; alcohol abuse; sobriety; welfare; children; best interest; R.C. 2151.353(A)(3); R.C. 2151.011(B)(21); R.C. 2151.414(D); visitation; family counseling; trust; emotional welfare; preponderance of the evidence; residual rights. Judgment affirmed. The juvenile court did not abuse its discretion, and its award of legal custody of the minor children to relatives in accordance with the best interest of each child was supported by the preponderance of the evidence. Mother had an extensive history of alcohol abuse, and although she had obtained sobriety over the last year, one of the children did not wish to have contact with her, the other children did not view her as an authority figure, issues of trust needed to be addressed, family counseling had not occurred, and valid concerns remained for the emotional welfare of the children. Mother retained residual parental rights, and she was not permanently foreclosed from seeking to regain custody in accordance with the law in the future.S. GallagherCuyahoga 11/10/2022 11/10/2022 2022-Ohio-4015
State v. A.L.H. 111721Conceded error; application for sealing record of conviction; R.C. 2953.32; hearing. Trial court erred in denying application for sealing record of conviction pursuant to R.C. 2953.32 without a hearing. State conceded the error.E.A. GallagherCuyahoga 11/10/2022 11/10/2022 2022-Ohio-4016
Cleveland v. McGervey 110770Record; transcript; recording; competency; sealed; regularity; prejudice; App.R. 9; bench trial; review. Defendant was materially prejudiced by the trial court’s failure to record the majority of the trial proceedings. The defendant has demonstrated that a request was made at trial that the proceedings be recorded or that objections were made to the failures to record, an effort was made on appeal to comply with App.R. 9 and to reconstruct what occurred or to establish its importance, and material prejudice resulted from the failure to record the proceedings at issue.E.T. GallagherCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3911
State v. Pierce 110791Rape; hearsay; Confrontation Clause; jail calls; Evid.R. 801; allied offenses; rape; kidnapping; Reagan Tokes Law. - Even if the officer’s testimony contained hearsay statements, defendant’s substantial rights were not affected and no miscarriage of justice occurred by the admission of the testimony because the victim testified that the defendant physically assaulted and raped her, and caused the physical injuries depicted in the photographs. Even if this court determined that a detective’s testimony constituted inadmissible hearsay when she interpreted the defendant’s jail calls, the testimony was merely duplicative of the jail calls themselves, which were properly admitted into evidence under Evid.R. 801(D)(2)(a) — admissions by a party-opponent. Offenses of rape and kidnapping were not allied offenses because the defendant engaged in conduct that created a substantially greater risk of harm to the victim by preventing her from leaving the bedroom and then subjecting her to additional acts of violence.KeoughCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3912
Crenshaw v. Jones 110838Motion for judgment on the pleadings; notice pleading. Ohio is a notice-pleading state. Therefore, a plaintiff does not have to plead operative facts with particularity. The allegations in appellant’s complaint were sufficient to survive a Civ.R. 12(C) motion for judgment on the pleadings.O'SullivanCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3913
Crenshaw v. Howard 110898Motion for judgment on the pleadings; Civ.R. 12(C); Civ.R. 8(A); defamation; R.C. 2739.01; telecommunications harassment; R.C. 2917.21(B)(1); R.C. 2307.60; request for indigent status; failure to recuse; R.C. 2701.03. Trial court erred in granting defendant’s motion for judgment on the pleadings. Construing all material allegations in the pleadings and all reasonable inferences that could be drawn therefrom in favor of plaintiff, it could not be said that plaintiff could prove no set of facts in support of her claims for defamation and telecommunications harassment that would entitle her to relief. Given the reversal of trial court’s decision granting defendant’s motion for judgment on the pleadings, trial court’s denial of plaintiff’s request for indigent status “for purposes of paying filing fees and court costs” was premature. Declined to address appellant’s argument that trial judge’s failure to recuse herself violated the Ohio Rules of the Code of Judicial Conduct where appellant failed to file an affidavit of disqualification with the Ohio Supreme Court under R.C. 2701.03 or otherwise raise the issue below.E.A. GallagherCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3914
Crenshaw v. Cleveland Police Dept. 110951Summary judgment; motion to dismiss; statute of limitations. A motion to dismiss challenges the sufficiency of a complaint. A trial court therefore properly rules on a motion to dismiss prior to discovery being completed. The motion to dismiss defendants sued in their official capacity was properly granted. A suit against an employee of a political subdivision in the employee’s official capacity is an action against the entity itself. Because the claims against the defendants sued in their official capacities were redundant to the claims against the city, the claims against the defendants in their official capacities were properly dismissed. Appellant’s claim against the former employee whose records she sought was properly dismissed. Her claim could be brought only against the city, not the former employee. The trial court properly granted the city’s motion for summary judgment on the grounds that the action was time-barred. The alleged wrongdoing occurred in 2011, and appellant filed her action in 2021, outside of the five-year statute of limitations set forth in R.C. 149.351(E).O'SullivanCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3915
Cuyahoga Cty. Land Reutilization Corp. v. Cleveland 111096Interpretation of ordinances; plain language; rule of the last antecedent; weight of the evidence. Trial court did not err in finding that the C.C.O. authorized the City to assess a fee for review of ten-day notices of asbestos removal accompanied by a demolition permit. The Code explicitly authorizes the fee. Trial court acted correctly in addressing the City’s counterclaim when it determined that the City was only entitled to the fees when a ten-day notice was accompanied by a demolition permit application. C.C.O. 263.01(a)(6) allows a fee for the examination of plans and applications for the issuance of permits, not simply for the examination of plans and applications alone. The City did not have implied authority to assess the fees. Furthermore, the trial court did not err when it awarded the City unpaid fees but limited those fees to fiscal year 2018. The City’s evidence did not separate ten-day notices issued with a permit from those that were issued without a permit, making it impossible for the trial court to determine when a fee could be assessed. Appellants, however, did provide such a break down, but only for fiscal year 2018. Therefore, the trial court correctly determined that there was insufficient evidence to award fees to the City for fiscal years 2013 through 2017.GrovesCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3916
State v. Hoskin 111119, 111120, 111121Murder; felonious assault; post-arrest silence; self-defense; merger of firearm specifications; consecutive sentences; sufficiency of the evidence. Hoskin’s murder, felonious assault, and associated offenses are affirmed. The state presented sufficient evidence to refute the defendant’s claim of self-defense because he was at fault in creating the situation giving rise to the affray. Any reference to post-arrest silence was harmless due to the overwhelming evidence of guilt. The defendant’s 4.5-year prison sentence for the firearm specification associated with the assault that merged into the murder was vacated because he was not sentenced for the underlying offense. The defendant’s consecutive sentence was supported by clear and convincing evidence in the record.ForbesCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3917
Patel v. Dharmadev 2, L.L.C. 111281Bench trial; Civ.R. 41(B)(2); motion to dismiss; App.R. 16(A)(7); lack of citation to authority. Appellants failed to cite any legal authority to support their arguments. Accordingly, we decline to review their arguments pursuant to App.R. 16(A)(7). Judgment affirmed.ForbesCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3918
State v. Burgos 111318Aggravated burglary; burglary; domestic violence; postrelease control; merger; Reagan Tokes Law; plain error; sufficient evidence; manifest weight of the evidence. The trial court committed plain error by imposing five years of mandatory postrelease control when appellant was subject to postrelease control for a period of up to five years, but not less than two years. The trial court committed plain error by imposing a no-contact order, which is a community-control sanction, because it sentenced appellant to a prison term and not community-control sanctions. The trial court committed plain error by not merging the aggravated burglary and burglary convictions at sentencing because they were committed with the same animus. The trial court did not commit plain error by not merging the aggravated burglary and domestic violence convictions because they were separate acts. The trial court did not commit plain error by sentencing appellant under the Reagan Tokes Act. This court has upheld the Act’s constitutionality in the en banc decision State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). Appellant’s convictions are supported by sufficient evidence and are not against the manifest weight of the evidence.O'SullivanCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3919
State ex rel. Crenshaw v. Maple Hts. Police Dept. 111335Motion to dismiss; Civ.R. 12(B)(6); public records; Public Records Act; R.C. 149.43; mandamus; petition for a writ of mandamus; R.C. 2731.04; case caption; pleading deficiency; subject-matter jurisdiction; requisites for mandamus; adequate remedy; adequate remedy in the ordinary course of law; mandamus is not a substitute for an appeal; untimely appeal; notice of appeal. The relator sought a writ of mandamus pursuant to the Public Records Act, as well as damages and fees, related to two public-records requests she made to the respondent. The trial court dismissed her first petition based on noncompliance with R.C. 2731.04; she had failed to bring the action in the name of the state on relation of the person applying. The relator did not timely appeal this dismissal and we, therefore, cannot review it. But where the relator filed a second, similar petition with the trial court — seeking the same public records as before but correcting the case caption to comply with the statute — it was error for the trial court to dismiss the petition at the motion-to-dismiss stage merely because the relator did not appeal the dismissal of her first petition. The trial court had reasoned that the relator’s ability to appeal the earlier dismissal was an “adequate remedy in the ordinary course of law” precluding mandamus relief, but relators in mandamus cases under the Public Records Act need not establish the lack of an adequate remedy because the Act provides that mandamus is the appropriate remedy. Because the relator did not need to establish a lack of an adequate remedy, it was error for the trial court to dismiss her second petition for failure to do so. In the absence of any citation to the Rules of Civil Procedure in the respondent’s motion to dismiss, we construed the motion as asserting a failure to state a claim under Civ.R. 12(B)(6) because the movant argued for dismissal based on the alleged existence of an adequate remedy at law before answering the petition. We did not need to consider in this appeal whether (1) the ability to seek leave to correct a mandamus petition’s caption once a deficiency is raised or (2) the ability to appeal a dismissal for failure to properly caption a mandamus petition is an “adequate remedy” precluding relief through a subsequent, similar petition in contexts other than the Public Records Act.E.A. GallagherCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3920
State v. Davis 111365Attempted unlawful sexual conduct with a minor; R.C. 2923.02(A); importuning; R.C. 2907.07(D)(2); possessing criminal tools; R.C. 2923.24(A); manifest weight of the evidence; sufficiency of the evidence; jury question; transcript. There was sufficient evidence to support appellant’s convictions for attempted unlawful sexual conduct with a minor, importuning, and possessing criminal tools when appellant met an undercover detective posing as a 15-year-old child on an online dating app, sent sexually explicit text messages to her over the course of several days, and traveled to a Cleveland suburb to meet her. Further, the trial court did not abuse its discretion in declining to provide the jury a portion of the transcript during jury deliberation.O'SullivanCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3921
State v. Green 111500Nunc pro tunc; clerical error; sentence. Trial court made a clerical error in a sentencing entry that should be corrected with a nunc pro tunc judgment entry reflecting the actual sentence imposed on the defendant at the sentencing hearing.E.T. GallagherCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3922
In re I.S. 111508Neglect; protective supervision; medical care; medical treatment; surgery; patent ductus arteriosus; PDA; congenital heart defect; First Amendment; religious freedom; parental rights; life threatening; ill health; catheterization. The juvenile court’s adjudication of neglect was supported by sufficient evidence where the agency presented medical evidence that (1) a minor — who was two years old and had Down syndrome — was experiencing several medical conditions including a congenital heart defect that were likely contributing to significant weight loss and a failure to thrive that the minor’s pediatrician believed could be life threatening and (2) the minor’s mother had not followed the medical recommendations of the minor’s pediatrician by undergoing medical testing and consulting with specialists. The juvenile court’s dispositional order placing the minor under protective supervision and ordering the minor to undergo a catheterization procedure over his mother’s objection was not an abuse of discretion where two teams of medical professionals — representing several relevant specialties and from two different hospital systems — opined that (1) the minor’s congenital heart condition was putting additional stress on his organs and put the minor at significantly increased risk for developing chronic respiratory disease and (2) the condition could be fixed through a relatively non-invasive catheterization procedure. The minor’s guardian ad litem had also advocated for the procedure as in the minor’s best interest. The child’s mother objected to the procedure because her sincerely held religious beliefs forbid the procedure. We balanced the mother’s fundamental interest in directing the upbringing of her child with the state’s interest in protecting the health and wellbeing of the minor. In doing so, we considered all relevant factors, including but not limited to the following: (1) the nature and seriousness of the child’s medical condition, (2) the effectiveness of the proposed intervention, (3) the invasiveness of the intervention and the risks to the child if the intervention is ordered and (4) the risks to the community if the intervention is not administered. While ordering catheterization was not an abuse of discretion, the juvenile court’s dispositional order contained an unreasonable deadline and seemingly allowed the child’s heart condition to be remedied through open heart surgery. The evidence presented did not support the deadline or such an invasive procedure. We vacated these aspects of the order.E.A. GallagherCuyahoga 11/3/2022 11/3/2022 2022-Ohio-3923
State ex rel. Orr v. Corrigan 111878Writ of procedendo; R.C. 2969.25; motion to dismiss; Civ.R. 12(B)(6); Crim.R. 43; R.C. 2945.02; stay/continuance; open court; R.C.2945.71; R.C. 2945.71; Sup.R. 40; Crim.R. 50; adequate remedy at law. Relator’s complaint for writ of procedendo was dismissed for failure to state a claim where relator failed to demonstrate a right to the requested relief or that respondent, in a bench trial, had a duty to journalize a continuance at the conclusion of the evidentiary phase of trial in order for respondent to deliberate before announcing the verdict. Relator also could have raised this issue in his direct appeal but did not, precluding relief in procedendo.CelebrezzeCuyahoga 11/2/2022 11/3/2022 2022-Ohio-3924
State v. Branch 110050App.R. 26(B), application to reopen, ineffective assistance of appellate counsel, double jeopardy, postrelease control, timeliness, records, and res judicata. The court denied an App.R. 26(B) application to reopen, arguing that the postrelease control violated double jeopardy because it was untimely. Delays in obtaining records do not provide good cause for untimely filing. Both appellate counsel and the applicant, pro se, had previously raised the issues of double jeopardy. Thus, res judicata also barred the application.GrovesCuyahoga 11/2/2022 11/3/2022 2022-Ohio-3910
Green v. Sutula 112014Writ of procedendo; motion for judicial release; motion for summary judgment; Civ.R. 56; moot; R.C. 2969.25; affidavit of indigence; affidavit of inmate account. Relator’s request for writ of procedendo was denied where respondent’s motion for summary judgment showed that a ruling on relator’s motion for judicial release was issued, rendering relator’s claim for relief moot.O'SullivanCuyahoga 10/28/2022 11/3/2022 2022-Ohio-3925