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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
State v. Sanders 109598Insanity; wrongfulness; mental disease; defect; expert; prior calculation and design; plan; purpose; expert; credibility; weight; sufficient; evidence. The defendant’s convictions were supported by sufficient evidence and are not against the manifest weight of the evidence. The state presented sufficient evidence that defendant purposely caused the victim’s death with prior calculation and design. The trial court’s determination that defendant did not satisfy his burden of proof to establish a NGRI defense was not against the manifest weight of the evidence.E.T. GallagherCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2261
Solomon v. Solomon 110415R.C. 2735.01(A); standard of review; ex parte appointment of receiver; irreparable harm, clear and convincing evidence necessary to appoint receiver; equity. Husband and wife live outside Ohio and own real property in Cuyahoga County as joint tenants in common with a right of survivorship. While divorce proceedings were proceeding in Mexico, husband filed, among other causes of action, an action for partition and sought the appointment of a receiver. The trial court had subject-matter jurisdiction of the case, and the trial court had authority to consider the motion to appoint a receiver pursuant to R.C. 2735.01(A) ex parte. The trial court relied on the unanswered allegations of the complaint, requests for admissions, and appointed a receiver ex parte. The appellate court reviews an order appointing a receiver for an abuse of discretion. A trial court may appoint a receiver ex parte under R.C. 2735.01(A)(1) where there is clear and convincing evidence that property is in danger of being lost, removed, or materially injured and where the party seeking the receiver would suffer irreparable harm. Under R.C. 2735.01(A)(7), the trial court may appoint a receiver in all cases in which equity allows. The record did not contain clear and convincing evidence that the property was subject to loss, removal, or would be materially injured or that husband would suffer irreparable harm without the appointment of a receiver. Further, the record did not contain clear and convincing evidence that necessitated the appointment of a receiver in equity.SheehanCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2262
Milone v. AII Acquisition Corp., L.L.C. 110579Summary judgment; asbestos-related injury; Evid.R. 602; Evid.R. 701; personal knowledge. Appellant’s depositions did not demonstrate that he had the requisite personal knowledge to testify whether material he encountered during his time as a furnace repairman was asbestos under Evid.R. 602 and 701. Accordingly, the trial court did not err in granting summary judgment to appellee because appellant had not demonstrated that he was exposed to asbestos manufactured, supplied, installed, or used by appellee.ForbesCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2263
In re C.C. 110651Juvenile; disposition; serious youthful offender; indictment; complaint; bail; jury trial; continuance; pandemic; administrative order; speedy trial; tolling. The juvenile court erred by dismissing the juvenile-offender’s SYO indictment on speedy-trial grounds.E.T. GallagherCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2264
Mun. Constr. Equip. Operators' Labor Council v. Cleveland Civ. Serv. Comm. 110659Declaratory judgment; summary judgment; minimum qualifications; eligibility list; city charter. - Trial court did not err in granting summary judgment in favor of the city and its civil service commission because the record demonstrated that the successful candidate possessed the minimum qualifications to be included on the eligibility list. As such, it was proper for the trial court to declare that the city and its commission did not violate the city charter.KeoughCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2265
State v. Heard 110722Felonious assault; surveillance camera footage; authentication of video evidence; chain of custody; sufficiency of evidence; manifest weight of evidence. Judgment affirmed. There is sufficient evidence to sustain appellant’s convictions, and his convictions are not against the manifest weight of the evidence. The nightclub’s surveillance cameras captured appellant entering the venue wearing a green sweatshirt, with a large distinctive ornamental “X” adorning the back of the garment, as well as the embellishments on the sleeve. Appellant’s face was clearly visible. The surveillance cameras captured the shooting, from three different angles, wherein the appellant is easily identified as the shooter by his unique sweatshirt. The detective testified that he saw no one else on the surveillance footage wearing the same sweatshirt as appellant’s. The thumb drive containing footage from the surveillance camera was properly authenticated. The general manager, who was present on the night of the shooting and regularly worked the security system, reviewed the footage with the detective. The general manager testified that the footage on the thumb drive accurately represented what the surveillance camera captured that night. Additionally, the general manager, in conjunction with the owner of the nightclub, copied the contents of the surveillance cameras onto a thumb drive and provided it to the detective. As such, we find nothing improper about the chain of command.GrovesCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2266
State v. Jones 110840Manifest weight of the evidence; witness intimidation; impact of spectator’s actions on trial; Crim.R. 52(B); plain error; R.C. 2945.29; Crim.R. 24(G); removal of juror from deliberations; Reagan Tokes Law. Judgment is affirmed. The convictions are not against the weight of the evidence because two witnesses separately identified the appellant as the shooter. The trial court did not abuse its discretion by admitting testimony that witnesses feared retaliation and had received threats shortly before testifying, as well as a photo taken during trial identifying appellant by a nickname known to the witnesses. The trial court instructed the jury to consider this evidence solely for the purposes of credibility and identification. The trial court also did not commit plain error by removing a juror for confrontational behavior toward other jurors during jury deliberations. The Reagan Tokes Law is constitutional. Therefore, appellant’s sentence under the Reagan Tokes Law is valid.BoyleCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2270
State v. Bolden 110841Child pornography; R.C. 2929.11; R.C. 2929.12; R.C. 2929.14(C)(4); consecutive sentences; Reagan Tokes Law; constitutional; nunc pro tunc. - Trial court properly considered all of the relevant factors found in R.C. 2929.11 and 2929.12 in imposing nonmaximum individual sentences. The sentences were supported by the record. Trial court made all necessary findings prior to imposing consecutive sentences. The findings were supported by the record. The Reagan Tokes Law is constitutional. The trial court properly advised the defendant at sentencing of the possible maximum term under the Reagan Tokes Law, but the sentence was not completely journalized. This clerical mistake can be corrected nunc pro tunc to accurately reflect the trial court’s sentence imposed regarding the application of the Reagan Tokes Law.KeoughCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2271
State v. Davids 110890Aggravated burglary; felonious assault; having a weapon while under disability; voir dire; cause; motion to withdraw as counsel; character evidence; Evid.R. 404; merger; R.C. 2941.25; Reagan Tokes; consecutive firearm specifications; sentencing entry; clerical error; nunc pro tunc; speedy trial. The court did not abuse its discretion when it removed a juror. The court did not err when it denied defense counsel’s motion to withdraw. The admission of witness testimony regarding the witnesses’s relationship with the appellant was not unfairly prejudicial. The aggravated burglary and felonious assault crimes were not allied offenses of similar import. The indefinite sentence pursuant to Reagan Tokes did not violate appellant’s constitutional rights. The court did not err when it imposed consecutive firearm specifications. Appellant’s right to a speedy trial was not violated. Where the sentencing journal entry fails to reflect what occurred in open court at the sentencing hearing, the appropriate remedy is a nunc pro tunc entry.KilbaneCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2272
Stern v. Rob Oldham Properties, L.L.C. 110940Res judicata; postjudgment; subject-matter jurisdiction; jurisdiction over the particular case; receivership. Administrative judge acted within his discretion to handle case assigned to another judge where good cause was shown, and the rules of superintendence and local rule gave the administrative judge broad discretion to control and manage the docket. Motion to appoint receiver was not barred by res judicata where receivership statute allowed appointment of receiver to effectuate judgment, and trial court always retains jurisdiction to enforce its properly issued orders.GrovesCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2273
State v. Sharp 110944Purposes and principles of felony sentencing; R.C. 2929.11; seriousness and recidivism factors; R.C. 2929.12; Reagan Tokes Law; ineffective assistance of counsel. Appellant’s sentence is affirmed. The sentence is within the statutory range, and the trial court considered the relevant statutory factors when sentencing appellant. The Reagan Tokes Law is constitutional. Therefore, appellant’s sentence under the Reagan Tokes Law is valid, and trial counsel’s failure to object to the constitutionality of the Reagan Tokes Law does not constitute ineffective assistance of counsel.BoyleCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2274
J.A.C. v. A.L. 110999Civil stalking protection order; statutory remedy; authority; allegation; vacate. The trial court lacked authority to impose restrictions on the petitioner and respondents’ conduct when the court found the requirements for a civil stalking protection order were not proven by a preponderance of the evidence.E.T. GallagherCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2275
State v. Darden 111065Reagan Tokes; sentence; constitutional; State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). Defendant’s sentence is reversed and the matter is remanded for a resentencing hearing pursuant to this court’s en banc decision in Delvallie. The trial court erred when it declined to sentence the defendant under the Reagan Tokes Act, finding the Act unconstitutional.BoyleCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2276
In re S.P. 111081Parental rights; permanent custody; manifest weight of the evidence; R.C. 2151.414; clear and convincing evidence; best interests of the child; legal custody; R.C. 2151.353(A)(3). The record contains clear and convincing evidence to support the juvenile court’s finding that the children were in the agency’s custody for 12 months or longer for a consecutive 22-month period and that it was in the best interests of the children to grant permanent custody to the agency. The juvenile court’s grant of permanent custody of the siblings to the agency was not against the manifest weight of the evidence. Additionally, the record contains sufficient evidence to support the juvenile court’s decision to deny legal custody to the children’s paternal grandmother.KilbaneCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2277
In re L.J. 111221Motion to dismiss, R.C. 2151.353(A); permanent custody, R.C. 2151.414(B); best interest of the children, R.C. 2151.414(D). The trial court did not err in denying appellant’s motion to dismiss when appellant waived the 90-day statutory time limit. The agency’s exhibits were properly admitted into evidence under Evid.R. 804(B) and 902(4) as public records and properly considered by the court as previous adjudications on the four children and their two siblings. Clear and convincing evidence supported the trial court’s decision to grant permanent custody of the children to the agency and the decision was not against the manifest weight of the evidence when the mother has serious substance abuse problems, mental health issues, lacked housing and employment, and had not made substantial progress on her case plan. The children’s fathers did not participate in the proceedings and were not a party to the appeal.O'SullivanCuyahoga 6/30/2022 6/30/2022 2022-Ohio-2278
Harris v. McCormick 111499Procedendo; motion for public records pursuant to R.C. 149.43(B)(8); mootness; vexatious litigator. The court allowed the relator, a vexatious litigator, to proceed. The court denied the writ of procedendo as moot, because the trial court had proceeded to judgment on the relator’s motion for public records pursuant to R.C. 149.43(B)(8).E.T. GallagherCuyahoga 6/29/2022 6/30/2022 2022-Ohio-2279
Holmok v. Burke 110900Defamation; intentional infliction of emotional distress; judgment on the pleadings; federal Communications Decency Act; immunity. Trial court did not err by granting defendant’s motion for judgment on the pleadings regarding plaintiff’s defamation and intentional infliction of emotion distress claims. Retweeting, without substantially altering or adding to the original message, does not make the plaintiff a “publisher” or “speaker” under the Communications Decency Act. Because the plaintiff is a “user” under the Communications Decency Act, she is immune from liability.ForbesCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2135
State v. Johnson 110904Sentencing, Reagan Tokes, 2967.271, constitutionality, separation of powers, due process, vagueness, plain error. Defendant’s sentence under 2967.271, the Reagan Tokes Law, was not unconstitutional based on our prior decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). Failure to raise void for vagueness argument before trial court waived that issue.GrovesCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2136
State v. Colon 110931Aggravated homicide; aggravated vehicular assault; driving under the influence; sentence; consecutive; felony; findings; R.C. 2929.14(C)(4); course of conduct; factual links; Reagan Tokes Law; constitutional. Upheld the trial court’s imposition of consecutive sentences where the trial court engaged in the correct analysis, made the findings required by R.C. 2929.14(C)(4), and incorporated those findings into the judgment entry, and the record contained evidence to support the statutory findings for imposing consecutive sentences. Factual links, including time and location of the incident and cause of death, were sufficient to establish that the offenses were committed as a single course of conduct. Constitutional challenges to the Reagan Tokes Law were overruled.S. GallagherCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2137
Sterling Contracting, L.L.C. v. Main Event Entertainment, L.P. 110965Unjust enrichment; equitable relief; subcontractor; derivative claim; Civ.R. 56; summary judgment. Trial court did not err in concluding that there were no genuine issues of material fact on whether the subcontractor demonstrated that it was entitled to restitution from the owner of the property based on the general contractor’s breach in failing to pay the amount owing under the subcontractor and general contractor’s contract.S. GallagherCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2138
State v. Giancaterino 110983Reagan Tokes Law; indefinite sentence; constitutional challenges; due process; separation of powers; right to jury trial. Pursuant to the en banc decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), appellant’s constitutional challenges to the Reagan Tokes Law are overruled.E.A. GallagherCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2142
State v. Collins 110994Community control; medical marijuana; violation hearing; final appealable order; substantial right. The trial court’s journal entry summarizing the probation violation hearing was not a final appealable order because it did not affect a substantial right of the defendant where it neither found that the defendant had violated the terms of his community control nor imposed a sentence for such violation, but instead ordered him to submit to drug testing.KilbaneCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2143
State v. Steele 111070Motion to vacate void conviction; res judicata. Appellant’s claim that the state could not reindict him after a prior indictment was dismissed is barred by res judicata because he could have raised this claim on direct appeal.SheehanCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2144
State v. Russaw 111315Manifest weight of the evidence; right to due process; jury instructions; ineffective assistance of counsel; trial strategy and tactics. Appellant appealed his convictions for rape, sexual battery and gross sexual imposition contending that his conviction was against the manifest weight of the evidence. The court held that any inconsistency in the victim’s testimony did not render the victim’s testimony so out of the realm of possibility that it lacked credibility. Appellant next argued that the trial court plainly erred by charging the jury with the elements of the offenses after the victim testified. Appellant also contended that his counsel provided ineffective assistance in failing to object to the charge and in failing to move to strike inadmissible opinion testimony. However, the court held that the appellant could not show that the outcome of the trial would have been different but for the assigned errors. Accordingly, the court overruled appellant’s assigned errors and affirmed the judgment of the trial court.E.A. GallagherCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2145
State v. White 110452Self-defense; weight of the evidence; sufficiency of the evidence; Crim.R. 16(K); ineffective assistance of counsel; motion for new trial; bench trial; plain error; prosecutorial misconduct. Sufficient evidence existed to establish that defendant did not act in self-defense where there was evidence to support a finding that appellant was at fault in creating the situation that gave rise to the affray and that he lacked a bona fide belief that he was in imminent danger of death or great bodily harm. Further, the finding that self-defense was not proven was supported by the greater weight of the evidence for the same reasons. The state violated Crim.R. 16(K) by introducing conclusions from an expert witness that were not included in the report submitted to the defense. However, because the defense failed to object to the testimony, appellant was required to show plain error. As this was a bench trial and the trial court specifically averred that the verdict would have been the same without the offending testimony, appellant failed to establish that the admission affected the outcome of the trial. Further, appellant failed to establish that he was prejudiced by his counsel’s failure to object, so his ineffective assistance of counsel claim also fails. Prosecutorial misconduct was not shown where defense failed to object preventing the trial court from inquiring as to the reasons for the state’s conduct. Nevertheless, the defense failed to show prejudice due to the prosecution’s conduct, preventing a finding of prosecutorial misconduct. Finally, the trial court did not abuse its discretion when it decided to rule on motions for new trial without a hearing and when it denied appellant’s motion for new trial.GrovesCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2130
State v. Wiley 110753Jury instructions; murder; voluntary manslaughter; harmless error; conviction; ineffective assistance of counsel; pre-arrest silence; castle doctrine; joinder; prejudice; abuse of discretion; jail-time credit; felonious assault; joinder; other acts evidence; allied offenses. - Trial court erred in not instructing the jury that it could not find the defendant guilty of both murder and voluntary manslaughter requiring retrial; although the state improperly commented on the defendant’s prearrest silence, the error was harmless and thus, defense counsel was not ineffective for not objecting to the prosecutor’s comments.KeoughCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2131
State v. Perry 110764 & 110954Aggravated murder; guilty plea; postconviction relief; findings of fact and conclusions of law; finality. The trial court’s failure to include findings of fact and conclusions of law in a prior judgment denying appellant’s petition for postconviction relief did not affect the appealability of the judgment. If a trial court errs by failing to issue statutorily required findings of fact and conclusions of law, the petitioner can obtain relief by raising the deficiency of the trial court’s judgment on appeal. Because the prior judgment denying appellant postconviction relief was final, the trial court could not entertain the instant motion for findings of fact and conclusions of law filed by appellant several years after the trial court denied relief.SheehanCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2132
State v. Jones 110833 & 111020R.C. 2953.08(G)(2); felony sentence review; consecutive sentences; clearly and convincingly contrary to law; findings under R.C. 2929.14(C)(4); failure to incorporate findings into sentencing entry; nunc pro tunc. The trial court made the requisite findings during the sentencing hearing under R.C. 2929.14(C)(4), and the findings were clearly and convincingly supported by the record. Further, the imposition of consecutive sentences was not contrary to law. Because the trial court failed to incorporate its findings from the hearing into the sentencing entry, the matter was remanded for the court to issue a nunc pro tunc entry that included all of its findings under R.C. 2929.14(C)(4).CelebrezzeCuyahoga 6/23/2022 6/23/2022 2022-Ohio-2133
State ex. rel. Crenshaw v. E. Cleveland Fin. Dept. 110891Mandamus; public records; R.C. 149.43; clear and convincing burden of proof; R.C. 149.351; original jurisdiction of court of appeals; forfeiture; spoliation; and statutory damages. The court dismissed as moot a public records mandamus action because the respondent provided records and the relator did not establish by clear and convincing evidence that more records existed. The court awarded the relator statutory damages because records were released months after the filing of the mandamus action. The court of appeals did not have original jurisdiction to entertain claims of forfeiture and spoliation.CelebrezzeCuyahoga 6/17/2022 6/23/2022 2022-Ohio-2134
State v. Nicholson 110595Mandatory transfer; R.C. 2152.12; probable cause; more than a mere suspicion of guilt; Batson challenge; peremptory challenge; racially discriminatory manner; Crim.R. 30(A); Crim.R. 52(B); alleged defective jury instruction; plain error; Crim.R. 29(A); motion for acquittal; sufficiency of the evidence; manifest weight of the evidence; reverse bindover; R.C. 2152.121(B)(3); amenability determination; R.C. 2152.12(D)-(E) factors; Reagan Tokes Law. Juvenile court did not err in granting state’s motion for mandatory transfer to general division pursuant to R.C. 2152.12(A)(1)(a)(i). State presented sufficient credible evidence, amounting to more than a mere suspicion of guilt, to support juvenile court’s finding that there was probable cause to believe that appellant committed acts that would constitute attempted murder as charged in juvenile court complaint. Trial court’s decision overruling Batson challenge to state’s exercise of peremptory challenge to excuse prospective African American juror was not clearly erroneous; state indicated that it excused prospective juror due to a recent carrying-a-concealed-weapon charge, the prospective juror’s statement that he knowingly disregarded the concealed carry law, the number of firearm offenses in the case and the prospective juror’s conduct while the prosecutor was talking, which the trial court observed. No reversible error based on admission of comments by codefendant relating to codefendant’s involvement in an unrelated homicide case where comments made no mention of appellant, trial court gave curative instruction drafted by appellant’s counsel and no prejudice was shown. Trial court did not commit plain error in referencing uncharged offenses in jury instruction relating to participating in a criminal gang; appellant did not show that alleged defective jury instruction affected jury’s verdict. State failed to present sufficient evidence for a reasonable jury to find appellant guilty of one count of failure to comply where witnesses could not state whether appellant was the driver of the vehicle attempting to evade police. Appellant’s remaining convictions for participating in a criminal gang, felonious assault, failure to comply and other gun-related offenses were supported by sufficient evidence and were not against the manifest weight of the evidence. In reverse bindover, juvenile court did not abuse its discretion in transferring case back to the general division for invocation of the previously imposed sentences. A rational, factual basis existed for the juvenile court’s findings with respect to the R.C. 2152.12(D) and (E) factors and its determination that appellant was not amenable to care or rehabilitation within the juvenile system and that the safety of the community required that he be subject to adult sanctions. Appellant’s constitutional challenges to the Reagan Tokes Law were rejected in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). Trial court did not err in applying Reagan Tokes Law to participating-in-a-criminal-gang charge where the date range for the conduct for which appellant was found guilty included a time period after the Reagan Tokes Law became effective.E.A. GallagherCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2037
State v. Quinn 110692Joinder of indictments; Crim.R. 8(A); Crim.R. 14; plain error; failure to comply is probative of guilt; Sixth Amendment speedy trial rights; Evid.R. 404(B) other acts testimony; Evid.R. 801(D)(2)(e) admissions by co-conspirator. Joinder of indictments was proper where the state showed that two or more acts are connected together and defendant failed to show prejudice resulting from joinder. Delay in bringing defendant to trial resulted from Covid-19 pandemic continuances and defense requested continuances, which did not unduly prejudice the defendant. Therefore, his constitutional speedy trial rights were not violated. An isolated remark by a detective about defendant’s violent history, which was elicited by defense counsel on cross-examination, did not violated Evid.R. 404(B). Codefendant’s statement that he was also a victim of a robbery, but he did not know the identity of the offender, was admissible under Evid.R. 801(D)(2)(e) as a statement by a co-conspirator, because it was made in an effort to conceal the crime.ForbesCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2038
State v. Hurt 110732Jury instructions; murder; voluntary manslaughter; aggravated assault; involuntary manslaughter; duty to retreat; flight instruction; sufficiency of the evidence; self-defense. - Defendant’s convictions for felony murder, voluntary manslaughter, and felonious assault reversed and case remanded for new trial where trial court improperly instructed the jury that it could find the defendant guilty of both murder and voluntary manslaughter, and did not instruct the jury on the inferior-degree offense of aggravated assault with respect to the felonious assault counts and involuntary manslaughter regarding the felony murder court; trial court properly gave a flight instruction; trial court did not err in not instructing the jury on amended R.C. 2901.09 regarding the defendant’s duty to retreat because the statute was amended while defendant’s case was pending and, therefore, the substantive provisions of the former law applied to defendant’s case; defendant’s convictions for felony murder, voluntary manslaughter, and felonious assault were supported by sufficient evidence where the defendant conceded that by asserting self-defense, he admitted that he knowingly killed the victim when he shot him and the state produced sufficient evidence to demonstrate that defendant was not acting in self-defense.KeoughCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2039
State v. James 110812Aggravated assault; aggravated menacing; inferior offenses; lesser-included offenses; jury instruction; plain error; Civ.R. 52; weight of the evidence; sufficient evidence; ineffective assistance of counsel. Judgment is affirmed in part, vacated in part, and remanded. The defendant’s convictions for aggravated menacing are affirmed. The defendant’s conviction for the inferior offense of aggravated assault is vacated and remanded for a new trial. The court’s jury instructions on the inferior offense constituted plain error because a finding of not guilty of felonious assault necessarily precludes a finding of guilty of aggravated assault as an inferior offense of felonious assault. There is sufficient evidence sustaining the finding of guilt on the aggravated menacing charges, and the charges are not against the weight of the evidence. In addition, defense counsel was not ineffective.BoyleCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2040
Tecco v. Iconic Labs, L.L.C. 110864Summary judgment; breach of contract; executory contract; review; partnership; essential terms; reasonably certain and clear. Upheld trial court’s decision to grant summary judgment in favor of appellees on appellant’s claim for breach of contract and/or breach of an executory contract to form a partnership. Appellant failed to put forth evidence demonstrating a meeting of the minds occurred regarding the essential terms of an executory agreement to form a partnership, and a review of the record showed the essential terms of any contemplated agreement were not reasonably certain and clear. An appellate court limits its review to issues actually decided by the trial court.S. GallagherCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2041
State v. Blalock 110895Plain error; R.C. 2903.02(A); murder; R.C. 2903.03(A); voluntary manslaughter; inferior offense. Appellant’s convictions are vacated, and the case is remanded for a new trial. The trial court committed plain error by convicting appellant of murder when it also found him guilty of the inferior offense of voluntary manslaughter.BoyleCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2042
State v. Williams 110941Motion to withdraw plea; petition for postconviction relief; final, appealable order; findings of fact and conclusions of law. The failure to issue findings of fact and conclusions of law, when required, is not a jurisdictional impediment to appealing the denial of a postconviction relief petition. State ex rel. Penland v. Dinkelacker, 162 Ohio St.3d 59, 2020-Ohio-3774, 164 N.E.3d 336, ¶ 3, overruling State ex rel. Ferrell v. Clark, 13 Ohio St.3d 3, 469 N.E.2d 843 (1984), and State v. Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910 (1982). Findings of fact and conclusions of law are not required when a trial court denies a motion to withdraw a plea. The trial court did not abuse its discretion by denying appellant’s postsentence motion to withdraw his plea without a hearing. Appellant’s petition for postconviction relief was untimely and not subject to the exceptions set forth under R.C. 2953.23(A) for untimely petitions. The trial court did not abuse its discretion by denying appellant’s petition without a hearing and without issuing findings of fact and conclusions of law.O'SullivanCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2043
State v. A.M. 110977Child endangering R.C. 2919.22; tampering with evidence R.C. 2921.12; failure to report a crime R.C. 2921.22. There was sufficient evidence to support appellant’s convictions for child endangering and tampering with evidence when the evidence showed that appellant knew about the hidden camera her husband used to video record her minor child, failed in her duty to protect her child from her husband, and deleted or worked with others to delete the videos her husband had taken of her child. Her conviction for child endangering was also not against the manifest weight of the evidence. There is no spousal privilege in the child endangering statute, and appellant was not charged with a failure to report a crime.O'SullivanCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2044
State v. McGee 110980Motion to discharge counsel; motion to withdraw plea; abuse of discretion; ineffective assistance of counsel; consecutive sentences; R.C. 2929.14(c)(4). Appellant was convicted after entering into a plea bargain with the state of Ohio. The trial court did not abuse its discretion in denying his motions for discharge of counsel and to withdraw his plea where appellant was general in voicing his dissatisfaction with counsel, was informed of the maximum penalties he faced, understood the maximum penalties he faced, and stated to the trial court that he was satisfied with counsel’s representations. Appellant did not suffer ineffective assistance of counsel where counsel did not file a motion to withdraw plea before sentencing where he did not show a probability that the outcome would be different. Finally, the trial court stated the consecutive findings on the record.SheehanCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2045
State v. Stearns 111005, 111010, 111011, 111012, 111013Jointly recommended sentence; guilty plea; R.C. 2953.08(D); appellate sentencing review. A jointly recommended sentence imposed by the trial court under R.C. 2953.08(D) cannot be reviewed on appeal, and even if the statute did not preclude such review. R.C. 2953.08(G)(2)(a) does not provide a basis for an appellate court to modify or vacate a sentence based on the lack of support in the record for the trial court’s conclusions under R.C. 2929.11 and 2929.12S. GallagherCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2046
In re A.M.N. 111155Request for continuance; abuse of discretion. We cannot say that the juvenile court abused its discretion by denying Father’s counsel’s eleventh-hour request for a continuance. Accordingly, Father’s sole assignment of error is overruled.ForbesCuyahoga 6/16/2022 6/16/2022 2022-Ohio-2048
Blue Technologies Smart Solutions, L.L.C. v. Ohio Collaborative Learning Solutions, Inc. 110501Final order; provisional remedy; discovery order; R.C. 2505.02; adequate remedy; Civ.R. 26; attorney work product; work-product doctrine; tax returns. Appeal from a discovery order that purported to require the disclosure of attorney work product and tax returns was found not to be a final, appealable order under R.C. 2505.02(B)(4) where appellants did not show that appeal following final judgment would not be an adequate remedy.GrovesCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1935
State v. Jones 110742Reagan Tokes; confrontation clause; testimonial; hearsay; excited utterance; body camera. Defendant appealed his conviction and argues that the trial court erred by admitting video and audio recorded statements by the victim that constituted inadmissible testimonial hearsay. The court sustained this assignment of error finding that the video and audio recorded statements were given an hour after the assault, after the victim had left the area of the assault and the victim was in no further danger. Accordingly, those statements were given under circumstances that show they were testimonial statements under the Confrontation Clause and the admission of those statements was reversible error.E.A. GallagherCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1936
In re Contempt of Christman 110748Contempt; direct; indirect; abuse of discretion; mask; administrative order; R.C. 2705.03. - Trial court did not abuse its discretion in summarily finding attorney in direct contempt for not wearing his mask, in violation of the court’s administrative order requiring him to do so, when the violation occurred in the judge’s presence and impeded the administration of justice; trial court abused its discretion in holding the attorney in contempt for not wearing his mask in the bailiff’s presence outside the judge’s chambers because the judge had no personal knowledge of the alleged act of contempt and thus was required to utilize the procedure set forth in R.C. 2705.03 before finding the attorney in contempt for that act.KeoughCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1937
State v. Claytor 110837Aggravated murder; prior calculation and design; Taylor factors; murder; self-defense; aggravated robbery; theft; offense; simultaneity of offenses; R.C. 2911.01(A)(3); sufficient evidence; manifest weight of the evidence; motion to suppress; Franks hearing; prosecutorial misconduct. Judgment affirmed. There is sufficient evidence to sustain defendant’s convictions and his convictions are not against the manifest weight of the evidence. The defendant and victim knew each other and their relationship was strained. The two of them engaged in bank and unemployment scams. The defendant and victim exchanged death threats over the unemployment scam. The victim told the defendant that he was upset and coming to his house. The defendant drove past the victim and chose to confront the victim instead of driving away. The defendant then shot the victim five times. A plain reading of R.C. 2911.01(A)(3) reveals that the theft offense does not have to occur simultaneous to the serious physical harm. Defendant’s motion to suppress was properly denied. Defense counsel elected not to request a Franks hearing and the search warrant was facially valid. The self-defense instruction is inapplicable to the case because the defendant created the situation giving rise to the affray, and the state did not commit prosecutorial misconduct.BoyleCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1938
Law Office of Craig T. Weintraub v. Bruner 110854 & 110859Contingency fee contract; quantum merit; contract interpretation; conflicting terms of contract; parol evidence; sufficiency of evidence; manifest weight of evidence; equitable remedy. Attorney discharged from contingency fee contract had claim in quantum meruit against eventual settlement. Discharged attorney entered into representation agreement with client and then they entered into a contingency fee agreement. Discharged attorney testified as to the terms of the first representation agreement and the parties’ intent as to compensation. The trial court properly considered parol evidence at bench trial regarding the intent of the parties. The evidence at trial was sufficient to support verdict on quantum meruit claim and the verdict and award of compensation were not against the manifest weight of the evidence. Court could consider totality of circumstances in fashioning an equitable award.SheehanCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1939
State v. Robinson 110883Crim.R. 29 motion; sufficiency of the evidence; forgery by uttering; R.C. 2913.31(A)(3); theft; R.C. 2913.02(A)(3); endorsement of a check; circumstantial evidence; motion for mistrial; substantial rights are adversely or materially affected; reference to constitutional right to remain silent; curative instruction; overwhelming evidence of guilt; admission of evidence; exclusion of prior convictions; misleading the jury; prosecutorial misconduct; plain error; cumulative error. The trial court properly denied defendant’s Crim.R. 29 motion where the state presented sufficient evidence that defendant committed forgery by uttering and theft. The trial court provided a curative instruction after the assistant prosecuting attorney erroneously referenced defendant’s right to remain silent at trial. Defendant’s subsequent motion for mistrial was correctly denied since the record showed the statement could be ignored and serious prejudice was not likely to occur.KilbaneCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1940
Hanak v. Kraus 110884Civ.R. 12(B)(6); motion to dismiss; medical malpractice; pro se; statute of limitations; R.C. 2305.113(A); savings statute; R.C. 2305.19(A); time-barred; de novo; untimely; local rule; Civ.R. 10(D)(2); affidavit of merit; good cause; extension of time; defective; motion to strike; factual allegations. Upon a de novo review, determined the trial court did not err in dismissing a medical-malpractice complaint as untimely pursuant to Civ.R. 12(B)(6), R.C. 2305.113(A), and 2305.19(A). The alleged difficulties that the pro se plaintiffs encountered in e-filing their documents properly did not require the complaint to be deemed timely filed. The affidavit of merit was defective because it did not identify each defendant named in the complaint pursuant to Civ.R. 10(D)(2), and no extension of time was warranted because the action was time-barred. The appellees’ motion to strike factual allegations in appellants’ brief that were not part of the record was granted.S. GallagherCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1941
State v. Pointer 110918Crim.R. 32.1; petition for postconviction relief; motion to withdraw plea; manifest injustice. The court of appeals affirmed the trial court’s denial of appellant’s motion to withdraw guilty plea. The motion did not include any evidentiary support to show a manifest injustice sufficient to permit the appellant to withdraw his nearly 30-year-old guilty plea.E.A. GallagherCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1942
Fast Tract Title Servs., Inc. v. Barry 110939Civ.R. 12(B)(6); motion to dismiss; fraud; specificity; piercing the corporate veil. -KeoughCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1943
Musial Offices, Ltd. v. Cuyahoga Cty. 110974Law of the case; R.C. 2723.05; post-judgment interest; R.C. 5715.22. The court of appeals affirmed in part, reversed in part and remanded the case to the trial court. The court found that the judgment in the amount of $3,927,385.91 entered below was law of the case. The court further found that the judgment entry did not vacate the previous rulings of the trial court providing for oversight of the judgment proceeds and attorney fees. Finally, the court found that the award of post-judgment interest was not law of the case and so reversed the award of post-judgment interest and remanded the case to the trial court to enter judgment consistent with the opinion.E.A. GallagherCuyahoga 6/9/2022 6/9/2022 2022-Ohio-1944
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