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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
Gauthier v. Gauthier C-170387, 398R.C. 2323.51 – FRIVOLOUS CONDUCT – JURISDICTION/VENUE – ATTORNEY FEES: Where the claims raised by plaintiff in the underlying lawsuit were warranted under existing law, the trial court erred in determining that in filing the action plaintiff had acted frivolously under R.C. 2323.51(A)(2)(a)(ii) and in awarding costs and fees to defendants on that ground. Where the underlying action involved an additional party who was not involved in an earlier filed action between two of the parties that remained pending in the Warren County Court of Common Pleas, and where the two causes of action were not part of the same “whole issue,” the trial court did not err in failing to transfer the underlying action to Warren County or in failing to dismiss it pursuant to the jurisdictional-priority rule. The trial court erred in determining that it did not have jurisdiction to award attorney fees to defendant under an addendum agreement executed by the parties, which provided that the prevailing party in an action to enforce the agreement was entitled to reasonable costs and attorney fees, where the trial court had ruled on the merits of plaintiff’s addendum-agreement claims in the underlying lawsuit.MyersHamilton 12/12/2018 12/12/2018 2018-Ohio-4970
State v. Watson C-170598, C-170648CONSTITUTIONAL LAW/CRIMINAL – SPEEDY TRIAL – GUILTY PLEA – WAIVER: Defendant waived his constitutional and statutory speedy-trial rights where his guilty plea was made knowingly, intelligently, and voluntarily.MockHamilton 12/12/2018 12/12/2018 2018-Ohio-4971
In re K.P. C-180037, C-180038, C-180039AGGRAVATED ROBBERY – FELONIOUS ASSAULT – ALLIED OFFENSES – R.C. 2941.25 – SENTENCING: Where in committing felonious assault defendant used force greater than was necessary to effectuate an aggravated robbery, defendant acted with a specific intent to harm, separate from any animus to rob the victim, and the offenses were separately punishable under R.C. 2941.25. Defendant committed felonious assault with an animus separate from that of aggravated robbery where defendant beat the victim into unconsciousness, continued to beat the victim after he had lost consciousness, and then stole property from the victim; therefore, the juvenile court did not err under R.C. 2941.25 in imposing separate punishments for the offenses.MyersHamilton 12/12/2018 12/12/2018 2018-Ohio-4972
State v. Freeman C-180090SENTENCING – MANDATORY FINE – INDIGENCY – R.C. 2929.19: The trial court did not err in imposing a mandatory fine where defendant filed an affidavit of indigency that established he was currently unable to pay the fine, the record supported a finding that defendant would have the future ability to pay the fine, and the trial court considered defendant’s present and future ability to pay the fine as required by R.C. 2929.19(B)(5).ZayasHamilton 12/12/2018 12/12/2018 2018-Ohio-4973
In re K.B. C-170542SEX OFFENSES – JUVENILE – CLASSIFICATION: The juvenile court’s decision to continue the juvenile’s classification as a Tier I sex offender under Ohio’s version of the federal Adam Walsh Act was not an abuse of discretion where the record shows that the magistrate and the juvenile court carefully considered the statutory factors and the evidence supported the decision.MillerHamilton 12/5/2018 12/5/2018 2018-Ohio-4810
State v. Jones C-170358APPELLATE REVIEW/CRIMINAL – JURIES – PEREMPTORY CHALLENGE – CRIM.R. 24: In a criminal proceeding, the use of peremptory challenges allows both the prosecution and the defense to secure a more fair and impartial jury by enabling them to remove jurors whom they perceive as biased, even if the jurors are not subject to a challenge for cause; peremptory challenges provide both the defendant and the state an opportunity to dismiss potential jurors for any reason, except an impermissible reason such as race or gender, without inquiry and without the trial court’s approval. The number of peremptory challenges available to each party is controlled by Crim.R. 24(D) and (G), and the order in which they may be used is controlled by Crim.R. 24(E): under Crim.R. 24(E), the state begins the peremptory-challenge process, and then the parties alternate exercising their remaining challenges; a party’s failure to exercise a challenge in turn waives that party’s right to that challenge, in effect forcing a party to exercise each challenge in turn or lose it. Crim.R. 52(A) generally governs the criminal appeal of a nonforfeited error, and provides that any error which does not affect substantial rights shall be disregarded; but there is a very limited class of errors, now described as “structural errors,” which are not reviewable for harmless error under Crim.R. 52(A) and mandate a finding of per se prejudice, and automatic reversal. A structural error is a constitutional defect that affects the framework within which the trial proceeds, rather than simply being an error in the trial process itself; an error is designated as “structural” not because of the difficulty in demonstrating prejudice, but rather when the error permeates a trial and necessarily renders the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. In determining whether an alleged error is structural, the threshold inquiry is whether the error involves the deprivation of a constitutional right. There is no federal or state constitutional requirement that peremptory challenges be provided within a trial; in noncapital criminal cases, the right to peremptory challenges exists by virtue of Crim.R. 24, not by virtue of the federal or Ohio constitution. Given that a trial court’s error in controlling the use of peremptory challenges available to a party is not a constitutional error, it cannot be structural error; thus a defendant challenging the trial court’s error in permitting the state to exercise its final peremptory challenge after the state had waived that challenge, after the selection of the alternate jurors was already under way, and after the court had expressly asked the parties if they were satisfied with the jury, can prevail only if that error was prejudicial and affected the outcome of the trial court proceedings: where the defendant had ample opportunity to examine the prospective juror on voir dire, found no showing of any bias or lack of impartiality on his part challengeable for cause, and elected not to use his peremptory challenge to remove the prospective juror, he has not demonstrated prejudice flowing from the trial court’s error.CunninghamHamilton 11/30/2018 11/30/2018 2018-Ohio-4754
Jester v. Utilimap Corp. C-170576NEGLIGENCE – NEW TRIAL – R.C. 2307.23 – EMPTY-CHAIR DEFENSE: In a wrongful-death action brought by the surviving spouse of a utility worker who died when a rotted utility pole collapsed on him, the trial court did not err in denying the pole inspection company’s motion for judgment as a matter of law based upon assumption of the risk: The inspection company cannot invoke the inherently-dangerous-activity exception under Eicher v. U.S. Steel Corp., 32 Ohio St.3d 248, 512 N.E.2d 1165 (1987), because the company did not own or control the premises where the utility worker was injured, the utility worker was not an independent contractor, and the underground rot on a utility pole is not the kind of danger inherent in utility work, such that it cannot be eliminated. The trial court erred in prohibiting defendant pole inspection company from arguing the empty-chair defense with respect to the deceased’s employer, and the trial court erred in denying the company’s requests to include the employer on the jury interrogatories and verdict form: The plain language of R.C. 2307.23 allows a jury to apportion fault to an employer, even if that employer is immune from suit under the workers’ compensation statutes, and the trial court’s error is not harmless where reasonable minds could differ as to whether the deceased employer’s actions proximately caused the employee’s death.DetersHamilton 11/30/2018 11/30/2018 2018-Ohio-4755
Mauntel v. Norwood C-170635IMMUNITY – POLITICAL SUBDIVISIO: The trial court erred in denying defendant city’s motion for summary judgment on the basis of Ohio’s Political Subdivision Tort Liability Act in a lawsuit brought by a woman who fell on a curb, because the curb is not a part of the “public roads” for purposes of the exception to immunity in R.C. 2744.02(B)(3).DetersHamilton 11/30/2018 11/30/2018 2018-Ohio-4756
State v. Warren C-180008SENTENCING – CONSECUTIVE SENTENCES: The trial court erred in ordering defendant’s prison term for failing to comply with an order or signal of a police officer, a third-degree felony, to be served consecutively to a prison term previously imposed by a Kentucky court for another felony offense where the record shows that the court imposed the consecutive term under the erroneous understanding that a consecutive sentence was required under R.C. 2929.14(C): the relevant sentencing statutes, when read together, unambiguously permitted the trial court to order a consecutive sentence, but did not require that result.CunninghamHamilton 11/30/2018 11/30/2018 2018-Ohio-4757
State v. Smith C-170335EVID.R. 404(B) – OTHER-ACTS EVIDENCE – PROSECUTOR – COUNSEL – CUMULATIVE ERROR: The trial court did not err in admitting testimony about instances of defendant’s prior conduct, even though defendant was acquitted of the criminal charges associated with that conduct, because the testimony was proper under Evid.R. 404(B) to show motive, intent and lack of mistake. Defendant failed to establish prosecutorial misconduct in the state’s failure to produce a copy of a 1986 police file where there had been no showing that the file contained material that the state was required to disclose in discovery. Defendant failed to establish prosecutorial misconduct in the state’s eliciting and relying upon witness testimony that was inconsistent with the witnesses’ testimony in an earlier trial: showing that the testimony was merely inconsistent was insufficient to show that the prosecutor knowingly used false testimony. The prosecutor engaged in misconduct during closing arguments when offering the jury an explanation of the timeline of the investigation that was not testified to during the trial; but because it was an isolated comment about a matter not central to the case, defendant was not prejudiced. The failure to cross-examine witnesses fully is a matter of trial strategy and will not form the basis for ineffective assistance of defense counsel, especially in cases involving the sexual assault of a child in which the issue of sensitivity to the victim is an important consideration. Defendant was not prejudiced by his counsel’s failure to more aggressively seek a copy of a 1986 police file that involved an incident between defendant and another victim where the information was about a tertiary issue and the incident was testified to by the parties involved. There can be no finding of cumulative error in the absence of multiple instances of harmless error.MockHamilton 11/16/2018 11/16/2018 2018-Ohio-4615
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