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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
In re I.N. 113258Permanent custody; case plan; housing; basic needs; reasonable time; domestic violence; mental health; referral; reasonable; diligent; best interests; clear and convincing evidence; manifest weight. Competent, credible evidence supported the court’s finding that it was in child’s best interest to award permanent custody to CCDCFS and that the child could not be placed with his parents within a reasonable time or should not be placed his parents under R.C. 2151.414(B)(1)(a), 2151.414(E)(1), (4), (14), and (16). The juvenile court’s judgment granting the agency’s motion for permanent custody and terminating Mother’s parental rights was not against the manifest weight of the evidence.E.T. GallagherCuyahoga 3/14/2024 3/14/2024 2024-Ohio-950
State v. Pickens 113202Involuntary manslaughter; juvenile court; mandatory transfer; R.C. 2152.12; probable cause; complicity; guilty plea; waiver. Affirmed. The defendant’s argument regarding whether an offender under the age of majority is subject to mandatory transfer to the general division has been overruled in State v. Bond, 8th Dist. Cuyahoga No. 110520, 2022-Ohio-1246, and any argument pertaining to the factual foundation of the probable-cause determination cannot be challenged based on the defendant’s guilty plea to improper discharge and involuntary manslaughter offenses.S. GallagherCuyahoga 3/14/2024 3/14/2024 2024-Ohio-951
State v. Otero 113069Consecutive sentences; community control; probation-violation hearing; suspended sentence; notification; imposition of prison; ineffective assistance of counsel. The imposition of consecutive sentences upon revocation of community control was improper where the court did not notify the defendant of the possibility of suspended sentences being run consecutively. The trial court’s imposition of prison was proper. The defendant received effective assistance of counsel.KilbaneCuyahoga 3/14/2024 3/14/2024 2024-Ohio-952
In re A.J. 113005Legal custody; magistrate’s decision; objections; timely; transcript; Juv.R. 40(D)(3)(b); Juv.R. 40(D)(4)(d); independent review; abuse of discretion; adopted; prematurely. Reversed the decision of the juvenile court that prematurely adopted the magistrate’s decision and committed the child to the legal custody of the child’s father. The juvenile court entered final judgment when mother had timely filed objections to the magistrate’s decision pursuant to Juv.R. 40(D)(3)(b) and her request to file a transcript was granted, but the transcript was not yet submitted. The matter was remanded with instructions for the juvenile court to permit mother to file the requested transcript and to then conduct the independent review required by Juv.R. 40(D)(4)(d).S. GallagherCuyahoga 3/14/2024 3/14/2024 2024-Ohio-953
State v. Woods 112987Rape; gross sexual imposition; sufficiency; manifest weight; digital penetration; sexually violent predator specification. Defendant’s rape and gross sexual imposition convictions were supported by sufficient evidence and the weight of the evidence, except for one in which the evidence was not sufficient to support a rape conviction but was sufficient to support the lesser-included offense of gross sexual imposition. Trial court’s guilty finding on sexually violent predator specifications were not against the manifest weight of the evidence, but the trial court erroneously found the defendant guilty on one specification that required proof of a prior conviction of sexually violent offense but there was no evidence of a prior conviction.E.T. GallagherCuyahoga 3/14/2024 3/14/2024 2024-Ohio-954
State v. DeJesus 112974Aggravated menacing; domestic violence, harassment by inmate; community-control sanctions; prison term; felony sentencing. The court’s discretionary imposition of prison was not contrary to law when defendant violated a bond condition while awaiting sentencing.ForbesCuyahoga 3/14/2024 3/14/2024 2024-Ohio-955
State v. Banville 112965Involuntary manslaughter; gross abuse of a corpse; corrupting another with drugs; death; consecutive sentence; separate cases; findings; R.C. 2929.14(C)(4); support; R.C. 2953.08(G)(2); sentencing entry; nunc pro tunc; Reagan Tokes Law; indefinite sentence. Affirmed appellant’s convictions and sentence, but remanded the matter to the trial court to issue a nunc pro tunc sentencing entry that incorporates its consecutive-sentence findings. The trial court made all the required consecutive-sentence findings under R.C. 2929.14(C)(4), and the consecutive sentences were upheld under the R.C. 2953.08(G)(2) standard. R.C. 2929.14(C) does not distinguish between multiple counts in a single case and multiple counts in separate cases. Multiple sets of findings were not required. Rejected constitutional challenges to the Reagan Tokes Law.S GallagherCuyahoga 3/14/2024 3/14/2024 2024-Ohio-956
Coleman v. Big Truck Rehab Center, Inc. 112964Independent contractor; employer; employee; employment relationship; manifest weight; overtime; Federal Labor Standards Act; Ohio Minimum Wage Standards Act; wages; right to control; economic reality test; Bostic test; prompt payment. The trial court did not err in finding appellant an independent contractor as opposed to an employee. Persons claiming employee status must prove they are employees; right to control the manner of work is the chief test in determining whether one is employee or independent contractor.GrovesCuyahoga 3/14/2024 3/14/2024 2024-Ohio-957
State v. Jackson 112949Crim.R. 8(A); joinder of offenses; Crim.R. 14; severance; plain error; other acts test; simple and direct test; Evid.R. 404(B); prejudice; ineffective assistance of counsel; futile act; imposition of sentences on firearm specification; having weapons while under disability; R.C. 2929.14(B)(1)(e). Defendant did not show that the trial court’s failure to, sua sponte, sever offenses relating to three separate incidents for trial constituted an obvious error or that there was a reasonable probability that any alleged error resulted in prejudice, affecting the outcome of the trial. The offenses relating to the three incidents were charged together under Crim.R. 8(A) because they were of the “same or similar character” and were “based on two or more acts or transactions connected together” that were part of a “course of criminal conduct” occurring in close proximity, in or around the same geographic area, over a relatively short period of time. Evidence of the other offenses may have been admissible other-acts evidence under Evid.R. 404(B) if the offenses related to each incident had been tried separately because defendant used the vehicle he stole in the first incident to facilitate his crimes in the second incident, there were a number of striking similarities between the manner in which the offenses in the three incidents were committed, suggestive of a modus operandi, and evidence offered in support of the kidnapping and rape charges in the second incident would have arguably been admissible to rebut defendant’s claim of consent in the third incident (and vice versa). The evidence supporting each offense was simple and direct without significant overlap or conflation of proof, and the state presented substantial evidence supporting defendant’s convictions. Defendant did not establish ineffective assistance of counsel based on counsel’s failure to request severance where defendant did not show a motion to sever, if filed, would have been successful and or that he was prejudiced by the joinder of the offenses at issue. Trial court did not commit plain error in imposing sentences on the firearm specifications attached to having weapons while under disability charges where the parties stipulated to the admissibility of judgment entry establishing defendant’s prior first-degree felony conviction and it could be reasonably inferred from the facts that less than five years had passed since defendant was released from prison or postrelease control for the prior offense, satisfying the requirements of R.C. 2929.14(B)(1)(e).E.A. GallagherCuyahoga 3/14/2024 3/14/2024 2024-Ohio-958
M.E.K. v. P.K. 112942Magistrate’s decision; custody; Civ.R. 75; R.C. 3105.73; abuse of discretion; App.R. 18(C); attorney fee award; reasonableness. Reversed in part and remanded. Appellant failed to demonstrate error with the guardian ad litem’s appointment solely in that capacity and not as counsel to the children, but the domestic relations court erred in awarding attorney fees based on a heavily redacted fee bill.S. GallagherCuyahoga 3/14/2024 3/14/2024 2024-Ohio-959
Neugebauer v. Farinacci 112294Medical negligence; delivery; R.C. 2305.252(A); peer review privilege; privileges; suspended; revoked; Evid.R. 611; Evid.R. 613; motion in limine; relevancy; Evid.R. 401; unfairly prejudicial; Evid.R. 403(B); impeachment; cross-examination. - Defendant-physician did not withstand his threshold burden of establishing the existence of a committee that met the statutory definition of peer review committee contained in R.C. 2305.25(E). Trial court’s determination that peer review committee privilege shielded defendant-physician about hospital privilege status was in error. Nevertheless, the trial court properly limited examination about hospital privileges because the probative value of whether defendant-physician’s hospital privileges were suspended or revoked following the child’s delivery was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. No abuse of discretion in the trial court’s decision to limit cross-examination of defendant-physician about the status of his privileges.KeoughCuyahoga 3/14/2024 3/14/2024 2024-Ohio-960
State v. Harris 112195Manifest weight; having weapons while under disability; firearm specifications. The defendant’s conviction for having a weapon while under disability, with a 54-month firearm specification, was not against the manifest weight of the evidence where a witness testified that she saw the defendant enter an apartment with a firearm on his hip and later saw him move the firearm to a coat pocket.E.A. GallagherCuyahoga 3/14/2024 3/14/2024 2024-Ohio-961
State v. Hill-Bryant 112917Felonious assault; deadly weapon; sufficiency of the evidence; manifest weight of the evidence; Evid.R. 702(C); expert testimony; police officer testimony; ineffective assistance of counsel. Judgment affirmed. Appellant’s convictions were not against the manifest weight of the evidence or based on insufficient evidence. The police officer’s testimony was properly admitted by the trial court. The appellant did not receive ineffective assistance of counsel.CelebrezzeCuyahoga 3/14/2024 3/14/2024 2024-Ohio-962
State v. Smith 112880Hearsay; excited utterance exception; felonious assault; sufficiency of evidence; manifest weight of the evidence. - Trial court did not improperly consider hearsay testimony in bench trial because the defendant’s statement to his neighbor regarding who shot him was not hearsay under the excited utterance exception to the hearsay rule; defendant’s conviction for felonious assault was supported by sufficient evidence and not against the manifest weight of the evidence.KeoughCuyahoga 3/14/2024 3/14/2024 2024-Ohio-963
State v. Adkisson 112874Crim.R. 11; plea hearing; motion for new attorney on day of trial; Sixth Amendment right to counsel; Crim.R. 44. The trial court did not abuse its discretion in denying appellant’s request for a new attorney. The request was made on the day of trial. Appellant’s plea was in compliance with Crim.R. 11.RyanCuyahoga 3/14/2024 3/14/2024 2024-Ohio-964
Biesiada v. N. Royalton Mayor 112840Administrative appeal; zoning; variance; motion to dismiss; mootness. The trial court properly dismissed an administrative appeal as moot where the appellant failed to obtain a stay or seek an injunction and construction of the fence in question had already begun.KilbaneCuyahoga 3/14/2024 3/14/2024 2024-Ohio-965
In re Contempt of Wallace 112836Contempt of court, direct contempt, contemptuous conduct, punishment, sufficiency of journal entry, standard of review, abuse of discretion. The trial court held appellant in direct contempt following an outburst from the gallery in a courtroom. The outburst caused the deputy sheriff to move to remove appellant and the court stopped the proceedings. The court summarily imposed a $100 fine and ordered that appellant remain in custody until the fine was paid. A trial court has both inherent and statutory authority to summarily punish acts of misbehavior in the presence of the court that obstructs the administration of proceedings. An outburst in a courtroom that disrupts court proceedings may be punishable by direct contempt. The punishment imposed must be reasonably commensurate with the gravity of the conduct. The journal entry of contempt must contain the facts upon which the contempt was found because it is critical for the reviewing court to be able to examine the facts upon which the trial court based its direct contempt finding. Because a court has summary power to punish contempt, the contemnor does not have the right of allocution and the Rules of Criminal Procedure do not apply to direct contempt proceedings. A finding of direct contempt is reviewed for an abuse of discretion. The trial court’s finding of contempt for an outburst that stopped the court’s proceedings is not an abuse of discretion. Appellant did not have the right to allocution because the court has both inherent and statutory power to punish a contemnor for direct contempt. A $100 fine for contempt and an order not to leave until the fine was paid was proportionate to the disruption caused and reasonable. The journal entry finding appellant in contempt affirmatively states the reason for the contempt finding and did not preclude appellate review.SheehanCuyahoga 3/14/2024 3/14/2024 2024-Ohio-966
E.A.K.M. v. M.A.M. 112833Final appealable order; R.C. 2505.02; dismissal; without prejudice; divorce; GAL fees; newly filed action; jurisdiction. Judgment is vacated. The domestic relations court’s judgment in the newly filed, underlying action awarding the GAL fees incurred in the dismissed 2019 case is a final and appealable order because this order, if not immediately appealable, would not afford appropriate relief to the parties in the future. Furthermore, the domestic relations court was without jurisdiction to order the GAL fees in the underlying action because the 2019 case was dismissed without prejudice and is treated as though it never commenced.BoyleCuyahoga 3/14/2024 3/14/2024 2024-Ohio-967
In re N.I. 112802Temporary custody; abused child; R.C. 2151.031(D). The trial court erred when it adjudicated J.I. to be abused. The trial court erred when it adopted the magistrate’s decision committing the children to the temporary custody of CCDCFS.Laster MaysCuyahoga 3/14/2024 3/14/2024 2024-Ohio-968
Robinson v. Cleveland 112798Motion for summary judgment; R.C. 2744.02; R.C. 2744.03; political subdivision tort liability; three-tier analysis; immunity; emergency call. The trial court did not err when it denied a political subdivision’s motion for summary judgment because genuine issues of material fact existed as to whether the employee-police officer was on an “emergency call” at the time of the subject automobile accident. The trial court did not err when it denied the police officer’s motion for summary judgment where there remained questions of fact whether the officer was responding to an “emergency call” and whether his acts amounted to wanton or reckless behavior.KilbaneCuyahoga 3/14/2024 3/14/2024 2024-Ohio-969
State v. Allen 112782Crim.R. 33; motion for leave to file a motion for a new trial; hearing; newly discovered evidence; recanting witness; abuse of discretion; conclusory assertions. Trial court did not abuse its discretion in denying, without a hearing, defendant’s motion for leave to file a motion for a new trial pursuant to Crim.R. 33(A)(6) and (B) based on (1) affidavits related to the testimony of a recanting witness and (2) the discovery of municipal court records allegedly showing another witness lied at trial regarding the date he performed court-ordered community service. Defendant presented no evidence detailing his efforts, if any, to timely discover recanting witness testimony or explaining why any such efforts would have been unavailing. Likewise, defendant provided no affidavits or other evidence detailing how he learned of the existence of the municipal court records and why he, his attorneys or his private investigator could not have timely discovered them. Defendant’s conclusory assertions that he was unavoidably prevented from timely discovering the new evidence he sought to support a motion for a new trial did not require a hearing on his motion for leave.E.A. GallagherCuyahoga 3/14/2024 3/14/2024 2024-Ohio-970
Weinberg v. Merriman 112594Jurisdiction; subject-matter jurisdiction; probate court; estate; bar association; Ohio Rule of Professional Conduct 1.5(f); Civ.R. 12(B)(1) motion to dismiss; Civ.R. 12(B)(6) motion to dismiss; R.C. 2109.50; separation agreement; fee-sharing dispute. Probate court correctly concluded that it did not have subject-matter jurisdiction over concealment actions filed in that court because the actions were a dispute between the two law firms regarding the division of shared legal fees arising out of a separation agreement between the law firms and individual attorneys and therefore jurisdiction is exclusively with the state or local bar association pursuant to Prof.Cond.R. 1.5.RyanCuyahoga 3/14/2024 3/14/2024 2024-Ohio-971
State v. Jordan 112506Jury panel, venire, challenge, admission of evidence, excited utterance, Evid.R. 803(B)(2), manifest weight of the evidence. Defendant was charged with murder, felonious assault, and having weapons while under disability following the death of the mother of one of his children. The victim was killed by a single gunshot to the back of her head, and her body was found at the side of her house. Defendant’s son testified that his mother and defendant were arguing and that after he heard a gunshot, defendant left the house. The son looked for his mother and found her lying on the ground outside. The victim’s daughter testified that after she heard a gunshot, defendant came into the house and said it was no big deal and then left the house. Before trial, defendant objected to the venire because it did not contain any African-American men. The trial court properly denied the motion to dismiss the venire because there was no evidence that African-American men were unfairly represented in venires in Cuyahoga County or systematically excluded from jury service. The trial court did not abuse its discretion by allowing body-camera footage of police arrival at the scene of the murder because the statements were excited utterances where they were made by declarants that observed a startling event and they were still under the stress of the event. Circumstantial and direct evidence inherently possess the same probative value and the state is not required to present DNA or fingerprint evidence to meet its burden of persuasion. Although there was no DNA evidence and the weapon used to kill the victim was not recovered, the conviction was not against the manifest weight of the evidence.SheehanCuyahoga 3/14/2024 3/14/2024 2024-Ohio-972
Cleveland v. Kushlak 112445Community-control sanctions; community-control conditions; R.C. 2929.25(A)(1)(a); R.C. 2929.25(B); R.C. 2929.25(D)(2); expiration of community-control sanctions; App.R. 12(A)(1); and modify. The housing court did not abuse its discretion where the court imposed modified terms of community control pursuant to its authority under R.C. 2929.25(B). The housing court did not erroneously extend appellant’s term of community-control sanctions, but imposed the term stated in the original sentencing judgment entry. Pursuant to App.R. 12(A)(1), this court remands the case so that the trial court can modify the judgment entry and delete confusing and incorrect conditions of community control.KilbaneCuyahoga 3/14/2024 3/14/2024 2024-Ohio-973
State v. Hicks 112419Abuse of discretion; presentence motion; Crim.R. 11; vacate plea. The trial court did not abuse its discretion when it denied Hicks’s presentence motion to withdraw plea. Including that Hicks had a change of heart due to the influence of others; no manifest injustice occurred to require Hicks’s plea be vacated where it was knowingly, intelligently, and voluntarily made and the trial court did not completely fail to inform Hicks of the maximum penalty he face; trial court complied with Crim.R. 11, speculation that “others” committed the offense without more is not enough to vacate plea; sentence is contrary to law where the trial court ordered a term of years at the oral sentencing hearing, which was different than what was ordered on the JE; clerical mistake to be corrected by nunc pro tunc JE; to provide Hicks with complete notifications of the consequences face for violations postrelease-control supervision.BoyleCuyahoga 3/14/2024 3/14/2024 2024-Ohio-974
State v. Scott 112325Probable cause for bindover; sufficiency and weight of the evidence; hearsay; juror misconduct; opinion testimony; ineffective assistance of counsel. Juvenile court did not err in binding over appellant to adult court where evidence established all elements of the crime and there was sufficient evidence to identify appellant as one of the perpetrators to meet the probable cause standard necessary for bindover. There was sufficient evidence to support appellant’s convictions, where there was video of the entire incident and sufficient evidence identifying appellant as one of the suspects. Although mother denied identifying her son, there was sufficient circumstantial evidence that contradicted her testimony to show the state presented sufficient evidence as to all elements of the charges. However, the state failed to present sufficient evidence to support the conviction for having weapons while under disability where they introduced certified copies of the appellant’s prior adjudications, which included his name, birth date, and physical description, but no one in the state’s case-in-chief testified as to appellant’s birth date and physical description. Appellant’s convictions were supported by the greater weight of the evidence. It was not plain error when the trial court allowed the case to continue when a juror overheard one of the appellant’s family members speaking loudly about the case and that juror felt what he heard influenced his ability to continue. The trial court removed that juror, questioned the remaining jurors, and determined that although some were aware of a loud conversation by appellant’s family members, none of them heard what was said, and felt they could continue to impartially deliberate. The trial court erred when it allowed the state’s video expert to testify about his opinion of the contents of surveillance video; however, the error was harmless. The witness testified about the colors of clothing, he did not attempt to identify the suspects, and he was subject to cross-examination on those opinions. Appellant did not receive ineffective assistance of counsel when his attorney opened the door for redirect testimony or when he failed to request a new trial after the jury incident. There was sufficient evidence even without the complained-of testimony for the jury to find appellant guilty; therefore he failed to establish prejudice. Further, appellant was not prejudiced by the video expert’s testimony, as the appeals court could not find that the outcome would have been different if the evidence had not been allowed.GrovesCuyahoga 3/14/2024 3/14/2024 2024-Ohio-975
In re T.S. 113127Parental rights; permanent custody; R.C. 2151.414(B)(1); child could not or should not be placed with either parent within a reasonable time; R.C. 2151.414(E) factors; best interest of the child; R.C. 2151.414(D)(1); reasonable efforts; due process rights. The record contains clear and convincing evidence to support the juvenile court’s finding that at least one of the conditions set forth in R.C. 2151.414(B)(1)(a) through (e) applied and that it was in the best interest of the child to grant permanent custody to the agency. The agency made reasonable efforts to refer Mother for services and effectuate reunification with her child. Mother’s due process rights were not violated when the trial court granted permanent custody to the agency.KilbaneCuyahoga 3/7/2024 3/7/2024 2024-Ohio-827
Bielawski v. Fifth Third Bancorp 113006Breach of contract; Civ.R. 56; motion for summary judgment; genuine issue of material fact. The trial court properly granted summary judgment for defendants on a breach-of-contract claim where the plaintiff’s claims were not based on a valid contract between the parties.KilbaneCuyahoga 3/7/2024 3/7/2024 2024-Ohio-828
Duetsche Bank v. Talliere 113002Civ.R. 60(B)(5); standing; res judicata. - Trial court’s decision denying appellant’s Civ.R. 60(B)(5) motion without conducting a hearing upheld where the grounds challenging the plaintiff’s standing to foreclosure on appellant’s property were raised and rejected in her prior appeal. Res judicata bars appellant’s attempt to relitigate the issues previously raised or issues that she could have previously raised during summary judgment and on appeal.KeoughCuyahoga 3/7/2024 3/7/2024 2024-Ohio-829
Shaker Hts. v Jones 112988Accelerated appeal; operating a vehicle under the influence; OVI; administrative license suspension; Bureau of Motor Vehicles; BMV; appeal; timeliness. Affirmed the municipal court’s order dismissing an appeal of a Bureau of Motor Vehicles administrative license suspension imposed when a driver refused a chemical test after being arrested for operating a vehicle while under the influence of alcohol. The driver failed to comply with the statutory deadline for filing an appeal from the suspension. While the driver alleged that the arresting officer and the BMV were dilatory in instituting and informing him of the suspension, the driver still waited three months to file his appeal even after receiving notice of the suspension. That delay long exceeds the statutory deadline for this kind of appeal.ForbesCuyahoga 3/7/2024 3/7/2024 2024-Ohio-830
In re Contempt of Harden 112930Contempt. The trial court erred in adopting the magistrate’s decision finding the appellant in contempt.Laster MaysCuyahoga 3/7/2024 3/7/2024 2024-Ohio-831
State v. Hannah 112927Sentencing; R.C. 2929.11 and 2929.12. Trial court did not clearly and convincingly err in sentencing appellant to prison where appellant pleaded guilty to charges that carried a presumption of prison and there was insufficient evidence to overcome the presumption of prison. The trial court further was not required to place findings on the record. The trial court’s journal entry noting that it had considered all of the required factors was sufficient.GrovesCuyahoga 3/7/2024 3/7/2024 2024-Ohio-832
Clay v. Galita 112925Coroner; deputy coroner; R.C. 313.19; declaratory judgment; amend; death certificate; coroner’s verdict; judgment on the pleadings. Trial court properly granted judgment on the pleadings and dismissed deputy coroner where complaint failed to state a claim against the deputy coroner on which relief could be granted. Trial court erroneously granted judgment on the pleadings and dismissed coroner where there was an issue of fact in the pleadings as to whether the named coroner was the proper party on which relief could be granted.E.T. GallagherCuyahoga 3/7/2024 3/7/2024 2024-Ohio-833
State v. Honey 112885R.C. 2929.11; R.C. 2929.12; felony sentencing; sentence contrary to law. Appellant, a repeat felon, pled guilty to robbery, a felony of the third degree, for committing a bank robbery in which he handed the teller a note that he said he had a gun. The trial court stated that it considered all required factors and principles of felony sentencing according to the Revised Code, noted the nature of the crime, the effect of robbery on victims, and recited Honey’s criminal history in imposing a 36-month sentence. Appellant argued the sentence was contrary to law. He stated that the trial court’s questioning of why the charges were reduced and its statements regarding the effect of the robbery on victims were impermissible considerations under R.C. 2929.11 and 2929.12. A sentence is contrary to law where (1) the sentence falls outside the statutory range for the particular degree of offense, or (2) the trial court failed to consider the statutory purposes and principles of felony sentencing set forth in R.C. 2929.11 and 2929.12. The trial court imposed a 36-month sentence for robbery a term of imprisonment authorized by law, and the record reflects the trial court considered the purposes and principles and applicable factors of felony sentencing. The sentence imposed was not contrary to law.SheehanCuyahoga 3/7/2024 3/7/2024 2024-Ohio-834
State v. Hall 112865Trafficking; R.C. 2925.03(A)(2); drug possession; R.C. 2925.11(A); possession of criminal tools; R.C. 2923.24(A); forfeiture specifications; motion to suppress; search; vehicle; odor; suspected marijuana; cocaine; sufficiency; manifest weight. Affirmed appellant’s convictions for trafficking, drug possession, and possession of criminal tools, as well as the forfeiture specifications on each count. The trial court did not err in denying a motion to suppress where the officers had probable cause to search appellant’s motor vehicle after smelling the odor of raw marijuana. The appellant’s convictions were supported by sufficient evidence and were not against the manifest weight of the evidence.S. GallagherCuyahoga 3/7/2024 3/7/2024 2024-Ohio-835
C.L.A. v. D.P.M. 112831Final, appealable order; sua sponte; Office of Child Support Services Recommendation; R.C. 3119.60; R.C. 3119.63; arrearage motion; motion to modify support; refile motion to modify; postdecree motion; continuing jurisdiction; lack of service; Civ.R. 75; personal jurisdiction; Civ. R. 4; service of process; presumptive service; no rebuttal evidence. The trial court’s order was a final, appealable order even though the court did not adopt an Office of Child Support Services Recommendation. The trial court rendered a final, appealable order when it dismissed Husband’s motion for judicial review under R.C. 3119.63 since Husband would be foreclosed from presenting his arguments on the recommendation outside this appeal. The trial court’s dismissal of Husband’s support modification motion was a final, appealable order because while Husband could refile a motion to modify support, he would be entitled to a support reduction retroactive only to the date of the new filing. The trial court’s dismissal of Husband’s arrearages motion was not a final, appealable order since Husband could refile the motion and obtain appropriate relief in the future. The trial court erred when it found Husband’s motion for judicial review filed pursuant to R.C. 3119.63 was subject to Civ.R. 75(J) and the related service requirements. The trial court erred when it dismissed Husband’s motion for support modification for lack of service when husband served the motion in accordance with Civ.R. 75(J) and Civ.R. 4 to 4.6 and demonstrated good cause for why the motion was not filed within six months after its initial filing.KilbaneCuyahoga 3/7/2024 3/7/2024 2024-Ohio-836
State v. Torres 112812Involuntary manslaughter; aggravated assault; reserve prosecution; preclusion; res judicata. Affirmed. Defendant conceded that the death of the victim directly resulted from the conduct underlying his conviction for aggravated assault, to which a claim of self-defense cannot be raised, and therefore, the conviction for involuntary manslaughter is not in error.S. GallagherCuyahoga 3/7/2024 3/7/2024 2024-Ohio-837
State v. Williams 112800Present-sense impression; Evid.R. 803(1); hearsay; Evid.R. 801; inconsistent testimony; credibility; abuse of discretion; manifest weight; sufficiency; force; aggravated burglary; R.C. 2911.11; R.C. 2901.01(A)(1). The trial court did not abuse its discretion when it admitted the victim’s statements because they were admissible as a present-sense impression. Further, the trial court did not abuse its discretion when it excluded Gocan’s statements because they were inadmissible hearsay and not relevant. In addition, there was sufficient evidence of “force” to sustain a conviction for aggravated burglary. Finally, we cannot say that the jury clearly lost its way; thus, appellant’s convictions are not against the manifest weight of the evidence.BoyleCuyahoga 3/7/2024 3/7/2024 2024-Ohio-838
State v. Stubbs 112781Vandalism; serious physical harm; drug possession; possession of criminal tools; sufficiency of the evidence; manifest weight of the evidence; forfeiture; jury instructions; admission of firearm evidence; allied offenses; merger of drug trafficking and possession. The state presented sufficient evidence for a reasonable factfinder to find Stubbs guilty of drug possession, possession of criminal tools, and vandalism. Stubbs’s convictions were also not against the manifest weight of the evidence. Although the trial court erred when instructing the jury that the state’s burden when proving forfeiture was preponderance of the evidence, the error was harmless because the state proved by clear and convincing evidence that the elements of forfeiture were met. Stubbs was not prejudiced by the admission of firearm evidence, and even if he was, the error was harmless because evidence of Stubbs’s guilt was overwhelming. The trial court erred when it did not merge drug possession with drug trafficking because the two offenses are allied offenses of similar import. However, the trial court did not err when it did not merge drug trafficking under R.C. 2925.03(A)(1) (sell or offer to sell) and 2925.03(A)(2) (prepare for shipment or distribution) because they are not allied offenses of similar import. The case was remanded for merger and resentencing.SheehanCuyahoga 3/7/2024 3/7/2024 2024-Ohio-839
In re Contempt of Donegan 112779Contempt; procedural due process; Sixth Amendment; R.C. 2705.03. Trial court erred when it held appellant-attorney in contempt of court for late arrival to the second day of trial where the court never advised parties when to appear on that date, the jury was ordered to return at 12:45 p.m., and counsel arrived at 1:30 p.m., the same time the parties were set to arrive on the first day of trial. Trial court erred when it summarily punished the attorney in contempt when late arrival is an indirect contempt entitling the recipient to the procedural safeguards set out in R.C. 2705.03. Trial court violated defendant-appellant’s Sixth Amendment right to counsel when it removed his retained counsel due to perceived issues of competence that were not supported by the record and without giving defendant-appellant notice and an opportunity to be heard.GrovesCuyahoga 3/7/2024 3/7/2024 2024-Ohio-840
State v. Cook 112742Ineffective assistance of counsel; guilty plea; consecutive sentences; mandatory fine. Appellant failed to establish that he received ineffective assistance of counsel with regard to a guilty plea where the record does not reflect that counsel gave improper advice and counsel negotiated the dismissal of multiple charges in exchange for the plea. The trial court’s imposition of consecutive sentences was not clearly and convincingly unsupported by the record; accordingly, the trial court’s imposition of consecutive sentences must stand. Additionally, the trial court appropriately addressed the minimum and maximum sentence. Finally, the trial court properly imposed a mandatory fine. In order to waive the fine, an affidavit averring the appellant is indigent and unable to pay the fine must be filed. As that requirement was not met, the trial court was required to impose the mandatory fine.GrovesCuyahoga 3/7/2024 3/7/2024 2024-Ohio-841
State v. Lucas 112519Confrontation; domestic violence; endangering children; trespass; firearm; nontestimonial; excited utterance; hearsay; exception; sufficiency; manifest weight. Defendant’s confrontation rights were not violated by the trial court’s admission of the victim’s nontestimonial statements. The trial court did not abuse its discretion by admitting the victim’s out-of-court statements pursuant to the excited utterance exception to the prohibition against hearsay. Defendant’s convictions were supported by sufficient evidence and were not against the manifest weight of the evidence.E.T. GallagherCuyahoga 3/7/2024 3/7/2024 2024-Ohio-842
State v. Anderson 112514Gross sexual imposition; rape; sexual battery; soliciting; telephone harassment; Crim.R. 16; R.C. 2945.12; Crim.R. 43(A); parental-status; jury instruction; force; effective assistance of counsel; strategy; consecutive sentences; disproportionality finding. - The trial court did not abuse its discretion by denying defendant’s motion to exclude the victim’s cell phone records as a sanction for the state’s inadvertent violation of Crim.R. 16. The court’s determination that the defendant’s absence from trial was due to the defendant’s own actions was supported by competent and credible evidence and thus, the court did not err in proceeding with trial in the defendant’s absence. Defendant’s convictions for sexually related offenses were upheld when the evidence demonstrated that the defendant used his parental status to force, compel, and manipulate the victim to engage in sexual activity and conduct. Based on the evidence, the trial court properly provided the parental-force jury instruction. Counsel was not ineffective in their strategic decision to acknowledge defendant’s conduct as immoral and disgusting, but focus on the lack of evidence corroborating the elements of the offenses. Case remanded for resentencing on consecutive sentences when the trial court did not engage in a full consecutive-sentence analysis when it failed to make the full disproportionality finding.KeoughCuyahoga 3/7/2024 3/7/2024 2024-Ohio-843
State v. Quinones-Torres 112339Ineffective assistance of counsel; sufficiency of the evidence; manifest weight of the evidence. Appellant’s claim of ineffective assistance of counsel is overruled where he failed to cite to caselaw or statutes in support of his argument that trial counsel erred when he failed to “bifurcate” the having weapons while under disability charges. Appellant’s conviction for abduction was supported by sufficient evidence where after appellant shot the victim, he and his mother prevented her from leaving the residence and calling a family member, appellant held a gun all or a majority of the time, and he did not take the victim to the hospital for 20-30 minutes while she bled profusely. Appellant’s convictions were supported by the manifest weight of the evidence. Victim’s inconsistencies on minor matters did not make her testimony regarding the shooting less credible. The possibility that the victim was using drugs was speculative because none of the items found at the defendant’s home were ever tested for drugs and the victim denied they were hers. Other evidence challenging the investigation and the lack of certain evidence did not detract from the victim’s testimony and her injuries.WebbCuyahoga 3/7/2024 3/7/2024 2024-Ohio-844
State v. Hayes 111927R.C. 2929.14; consecutive sentences; aggregate sentence; modification; R.C. 2953.08(G)(2)(a). Appellant’s challenge to the trial court’s imposition of consecutive sentences is sustained. This court does not hold a firm conviction and belief that the evidence supports the imposition of the aggregate sentence imposed, and the sentence is modified pursuant to this opinion.Laster MaysCuyahoga 3/7/2024 3/7/2024 2024-Ohio-845
State v. Gillis 112080Voluntary manslaughter; mens rea; knowingly; self-defense; sufficiency; manifest weight; motion to dismiss; suppressed evidence; Reagan Tokes. The state provided sufficient evidence that appellant acted knowingly when he shot and killed the victim. Appellant admitted that he shot the victim but claimed he did so in self-defense. This court has found that when a defendant admits to shooting the victim but claims to have done so in self-defense, the defendant concedes that his or her actions were done knowingly. Further, the factfinder did not clearly lose its way in finding that appellant did not shoot the victim in self-defense because evidence in the record demonstrates that appellant was the initial aggressor because he told eyewitnesses that if the victim hit him he was going to kill him before walking over to the victim, putting his arms behind his back, and saying, “Go ahead, hit me again. Think I’m playing, hit me again.” When the victim swung, appellant pulled out his gun and shot the victim. The trial court did not err when it denied appellant’s motion to dismiss based on his assertion that the state suppressed evidence. Appellant did not establish that the state willfully or inadvertently suppressed evidence because the appellant’s motion acknowledged that the state never had the evidence appellant wanted. Finally, appellant’s indefinite sentence is not contrary to law because the Ohio Supreme Court found that the Regan Tokes Law is constitutional on its face.ForbesCuyahoga 2/29/2024 2/29/2024 2024-Ohio-726
U.S. Bank Trust Natl. Assn. v. Keane 112386Foreclosure; summary judgment; Civ.R. 56(C); deposition; cross-examination of affiant; Civ.R. 56(F); service of subpoena; Civ.R. 45. Judgment affirmed. The trial court did not err in granting summary judgment to U.S. Bank when an opposition to summary judgment was never filed despite the trial court allowing for two extensions of time. Further, the party opposing summary judgment arguments that U.S. Bank was “hiding” a subpoenaed witness were improper where the out-of-state, nonparty witness was not properly served with the subpoena.CelebrezzeCuyahoga 2/29/2024 2/29/2024 2024-Ohio-727
Wagner v. Wagner 112560Domestic relations; child support; App.R. 3; and App.R. 4. The trial court did not err in finding appellant’s motion to modify child support moot when the court’s previous order disposed of the issue and appellant chose not to have this court review the previous interlocutory order but rather only the judgment entry finding appellant’s motion moot.RyanCuyahoga 2/29/2024 2/29/2024 2024-Ohio-728
State v. Walker 112633Bindover; discretionary; transfer; probable cause; abuse of discretion; amenability; factors; rehabilitation; subject-matter jurisdiction; ineffective assistance of counsel strategy. The juvenile court did not abuse its discretion by transferring the defendant’s case to the adult court pursuant to R.C. 2152.12(B). Defense counsel did not render ineffective assistance of counsel during the amenability proceedings by failing to present more persuasive arguments.E.T. GallagherCuyahoga 2/29/2024 2/29/2024 2024-Ohio-729
State v. Fadel 112725Felonious assault; complicity; self-defense; sufficiency of the evidence; manifest weight of the evidence; jury instruction; inferior offense; plain error; ineffective assistance of counsel. Appellant’s conviction for felonious assault was supported by sufficient evidence and was not against the manifest weight of the evidence. The state demonstrated that appellant was complicit with her sister in committing felonious and that the jury did not lose its way in convicting her because there was evidence that appellant aided, assisted, encouraged, or supported her sister in committing the felonious assault. Appellant met her burden in claiming that she acted in self-defense when she claimed that the victim hit her first, she was scared, injured, and smaller than the victim. The state met its burden in proving that she did not act in self-defense because evidence demonstrated that appellant was the initial aggressor and was not in fear of eminent bodily harm because a video of the fight showed appellant standing over the victim and hitting her while the victim laid there. Appellant did not receive ineffective assistance of counsel because while counsel did not request a jury instruction for the inferior offense of aggravated assault, we find that his decision to do so was a means of trial strategy because his theory of the case was self-defense. Finally, the court did not plainly err in failing to instruct the jury on aggravated assault. As stated, the theory of the defense case was self-defense. Judgment affirmed.ForbesCuyahoga 2/29/2024 2/29/2024 2024-Ohio-730
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