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State v. Foster 112564Crim.R. 11; guilty plea; knowingly, intelligently, voluntarily; Sierah’s Law, R.C. 2903.41 through 2903.44; R.C. 2929.14(C)(4), consecutive sentences; firearm specification, R.C. 2941.145(A); mandatory prison term; Reagan Tokes Law. Appellant’s plea was knowingly, intelligently, and voluntarily made. The trial court partially complied with Crim.R. 11(C)(2)(a) regarding mandatory imprisonment and consecutive service of the firearm specification, but appellant failed to demonstrate prejudice. The trial court failed to make the R.C. 2929.14(C)(4) consecutive-sentence findings on the record or in the judgment entry, advise the appellant of Sierah’s Law’s registration obligations, and apply the Reagan Tokes Law to the involuntary manslaughter sentence.Laster MaysCuyahoga 3/28/2024 3/28/2024 2024-Ohio-1160
State v. Sims 112860Anders brief; motion to withdraw. The trial court dismissed two of appellant’s multiple rape convictions after, on appellant’s direct appeal, this court found insufficient evidence to support those convictions. Counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Based on our review of the record, there are no meritorious claims and the appeal is wholly frivolous.RyanCuyahoga 3/28/2024 3/28/2024 2024-Ohio-1161
Bukovec v. Keger 113024Motion for relief from judgment; Civ.R. 60(B); default judgment; bootstrapping. Appeal dismissed. By appealing the June 29, 2023 journal entry denying appellants’ second motion for relief from judgment, appellants are attempting to bootstrap arguments that are time barred. Appellants are attempting to utilize the instant appeal (their second Civ.R. 60(B) motion for relief from judgment) to improperly seek review of alleged errors that they failed to timely appeal (the grant of default judgment). As a result, we lack jurisdiction to consider this appeal.BoyleCuyahoga 3/28/2024 3/28/2024 2024-Ohio-1162
State v. Johnson 113034As-applied; constitutional; Second Amendment; firearm; having weapons while under disability; freedom to marry; sufficient; constructive possession; plain error. The trial court did not commit plain error by failing to conclude that the defendant’s convictions for having weapons while under disability were unconstitutional as applied. Counsel was not ineffective for failing to raise a constitutional challenge to R.C. 2923.13(A)(2)-(3). The having-weapons-while-under-disability statute does not infringe on an individual’s fundamental freedom to marry. Defendant’s convictions were supported by sufficient evidence.E.T. GallagherCuyahoga 3/28/2024 3/28/2024 2024-Ohio-1163
In re A.M. 113083Permanent custody; R.C. 2151.414; best interest; Kinship Caregiver Law; R.C. 2151.4116 - 2151.4119; legal custody; constitutional rights; substantive due process. There is no reversible error with respect to the Kinship Caregiver Law. The trial court’s judgment denying mother’s motion for legal custody to maternal aunt and granting permanent custody to the agency was affirmed. The trial court’s judgment finding that it was in the child’s best interest to be placed in the permanent custody of the agency was supported by clear and convincing evidence. The trial court did not violate mother’s substantive due process rights as applied to the facts of her case.SheehanCuyahoga 3/28/2024 3/28/2024 2024-Ohio-1164
Halton v. Halton 113090Divorce; equal division; assets; debt; marital home; real property; retirement assets; future date; R.C. 3105.171(C); R.C. 3105.171(J)(1). Reversed in part the division of property in a divorce action. The trial court did not abuse its discretion in dividing assets and debts in accordance with the parties’ stipulations on nearly all issues or in ordering an equal division of the remaining assets and debts, which included retirement assets and the marital home. However, the trial court abused its discretion in using a future date after the end of the marriage for determining an equal division of the real property. The case was remanded with instructions for the trial court to equally divide the equity in the marital home that existed on the termination of marriage date.S. GallagherCuyahoga 3/28/2024 3/28/2024 2024-Ohio-1165
SoFi Lending Corp. v. Williams 113153Breach of loan agreement; default judgment; Civ.R. 55; abuse of discretion; sovereign citizen; Moorish American National; frivolous arguments; debt evasion. Judgment affirmed. Appellant’s argument against the trial court’s judgment granting default judgment against appellant that he is a “Moorish American National” and therefore not subject to common law contractual rights is summarily overruled.CelebrezzeCuyahoga 3/28/2024 3/28/2024 2024-Ohio-1166
State v. St. Valle 113191Felony sentencing; appellate review; agreed sentence; sentencing range; R.C. 2953.08(D)(1); trafficking; R.C. 2925.03(A)(2); possessing criminal tools; R.C. 2923.24(A); mandatory fine; R.C. 2929.18(B)(1); R.C. 2925.03(D)(1); indigency; plain error. The prison sentences imposed on the defendant for drug trafficking and possession of criminal tools are not reviewable on appeal by operation of R.C. 2953.08(D)(1). The sentences were authorized by law and the aggregate sentence was within the range jointly recommended by the defendant and the state pursuant to a plea agreement. While the defendant disagreed with the trial court’s weighing of certain sentencing factors, he made no argument that the sentences fell outside the statutory ranges for the offenses or failed to comport with any mandatory sentencing provision. Nor did the defendant challenge his sentence on constitutional grounds or assert any argument with respect to the validity of his plea. The imposition of a mandatory fine on the trafficking count was not plain error. The trial court considered the defendant’s present and future ability to pay the fine and the defendant failed to show he was unable to pay it. He had been employed, had stable housing and close family ties, retained counsel at the trial and appellate levels and was arrested while in the possession of multiple cell phones and hundreds of dollars in cash.E. A. GallagherCuyahoga 3/28/2024 3/28/2024 2024-Ohio-1167
In re A.M. 113284Parental rights; permanent custody; manifest weight of the evidence; R.C. 2151.414; clear and convincing evidence; best interests of the child; abuse of discretion. The record contains clear and convincing evidence to support the juvenile court’s finding that the child was 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 child to grant permanent custody to the agency. The juvenile court’s grant of permanent custody of the child to the agency was not against the manifest weight of the evidence.SheehanCuyahoga 3/28/2024 3/28/2024 2024-Ohio-1168
State v. Grimes 110925App.R. 26(B), application to reopen, ineffective assistance of appellate counsel, timeliness, reliance on counsel, reliance on clerk, lack of notice, and good cause. This court denied an App.R. 26(B) application to reopen because it was untimely. Lack of notice of the decision from appellate counsel does not state good cause. Lack of notice from the clerk does not state good cause. Proposed assignments of error were not persuasive. The trial court made the necessary findings to impose consecutive sentences. Defendant’s convictions were not against the manifest weight of the evidence.Laster MaysCuyahoga 3/25/2024 3/28/2024 2024-Ohio-1157
State v. Kronenberg 111840App.R. 26(B); ineffective assistance of counsel; allied offenses, violation of a protection order; menacing by stalking, telecommunications harassment; incorporating argument; and genuine issue. The court granted the application to reopen because appellate counsel’s attempt to “short-cut” an argument by merely incorporating it into the brief was deficient representation. The argument that violating a protection order merged with telephone harassment presented a genuine issue that deserved to be heard on the merits.CelebrezzeCuyahoga 3/25/2024 3/28/2024 2024-Ohio-1159
State v. Gardner 111506App.R. 26(B); ineffective assistance of trial counsel; ineffective assistance of appellate counsel; murder; complicity; cross-examination; proof beyond a reasonable doubt; perjury; inconsistencies in testimony; defendant’s decision to testify; and record support. This court denied an App.R. 26(B) application to reopen. The applicant’s claims concerning perjury and withholding exculpatory evidence did not have record support. Inconsistencies in witnesses’ testimonies do not show perjury. The applicant’s decision not to testify was confirmed by the record and does not support the claim that counsel did not allow her to testify. Moreover, the decision whether or not to testify is a strategic decision not questionable through a claim of ineffective assistance of counsel. Applicant’s counsel followed the strategy of trying to show a reasonable doubt through the absence of certain evidence. This court will not second-guess such strategic decisions.RyanCuyahoga 3/22/2024 3/28/2024 2024-Ohio-1158
In re J.J. 113377Termination of parental rights; manifest weight; clear and convincing evidence; R.C. 2151.414; R.C. 2151.413; best interest of the child; cannot or should not be placed with either parent; motion to modify temporary custody to permanent custody. Judgment affirmed. Clear and convincing evidence exists upon which the juvenile court could have determined that (1) permanent custody was in the best interest of the children and (2) the children cannot or should not have been placed with the parents.CelebrezzeCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1049
Duck Creek v. O'Dell 113211Motion for relief from judgment; Civ.R. 60(B)(4) and (5); reasonable time; abuse of discretion. - Trial court did not abuse its discretion in denying appellants’ motion for relief from judgment pursuant to Civ.R. 60(B)(4) and (5) as untimely filed where appellants did not meet the “reasonable time” requirement of Civ.R. 60(B) because they offered no explanation regarding why they waited nearly ten years after judgment to file the motion.KeoughCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1051
State v. K.C. 113120Sealing convictions, R.C. 2953.33(B)(1), intervention in lieu of conviction, R.C. 2951.041(E), notice. Vacated. A trial court lacks the authority under R.C. 2953.33(B)(1) to seal a conviction without the filing of an application, notice to the state, and a hearing on the matter.BoyleCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1052
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 3/21/2024 3/21/2024 2024-Ohio-1053
M&T Bank v. Stewart 112968Summary judgment; Civ.R. 25; death; note; foreclosure; enforce; in rem. - Trial court properly granted summary judgment in favor of the lender and ordered foreclosure on the property. The borrower’s death during the proceeding and subsequent dismissal from the action pursuant to Civ.R. 25 did not affect the lender’s ability to foreclosure under the mortgage. The lender did not need to receive a personal judgment on the note before enforcing the mortgage because the action continued solely for an in rem judgment.KeoughCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1054
Cuyahoga Cty. v. Ohio Patrolmen's Benevolent Assn. 112924Ohio Patrolmen’s Benevolent Association; collective bargaining agreement; arbitration award; overpayments; recoupment; equitable estoppel. The county overpaid several grievants in 2021 by mistake, and when the county realized its mistake, it unilaterally deducted the grievants’ pay over three pay periods in 2022. The issue on appeal is whether the arbitrator exceeded his authority when he determined that the county’s unilateral recoupment of the 2021 overpayment by deducting the grievants’ 2022 pay did not comport with the provisions of the CBA. Our review indicates the arbitrator did not exceed his powers because the arbitration award drew its essence from the collective bargaining agreement. Furthermore, the arbitrator’s application of equitable estoppel is supported by a detailed analysis of the arbitration and court precedent. Because we find no statutory grounds exist to vacate the arbitrator’s award pursuant to R.C. 2711.10, the trial court’s judgment affirming the award is affirmed.SheehanCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1055
State v. Washington 112914Admission of testimony; hearsay; Confrontation Clause; plain error; Evid.R. 801; prearrest silence; Fifth Amendment; substantive evidence of guilt; course of investigation; ineffective assistance of counsel; failure to object; prior bad acts; Evid.R. 404; propensity. The trial court did not allow hearsay testimony or testimony that violated appellant’s right to remain silent or his right to counsel. In addition, appellant did not receive ineffective assistance of counsel.CelebrezzeCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1056
State v. Bradley 112913Withdraw of guilty plea; jurisdiction; pending appeal. - Trial court lacked jurisdiction to consider defendant’s motions to withdraw his guilty pleas because appeals were pending in both the appellate court and the Ohio Supreme Court. The trial court’s consideration of the motions were inconsistent with the reviewing courts’ jurisdiction to decide the issue on appeal.KeoughCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1057
State v. Finley 112889Competency; competence to plead guilty; R.C. 2945.37; sua sponte; due process; indicia of incompetence; ineffective assistance; mental illness; schizophrenia; Reagan Tokes; indefinite sentence; separation of powers; trial by jury. The trial court did not deny the defendant due process of law when it accepted his guilty plea without ordering, sua sponte, a competency hearing. The defendant reported a diagnosis of schizophrenia during the plea colloquy and had a history of substance abuse, homelessness and other instability in his life. But the record did not contain sufficient indicia of incompetence to hold that the defendant’s right to a competency hearing was constitutionally guaranteed or that he was denied the effective assistance of counsel based on counsel’s failure to raise the issue of competency. The defendant answered the trial court’s questions appropriately and without any signs of confusion or misunderstanding. Nothing in the record demonstrates that he was struggling to understand what was occurring at the plea hearing so as to put the trial court on notice that a competency evaluation was warranted. The record does not reflect anything out of the ordinary in his behavior and demeanor in the courtroom and his counsel at no point suggested that he was unable to assist in his defense. The defendant’s constitutional arguments related to indefinite sentencing under the Reagan Tokes Law were overruled pursuant to State v. Hacker, Ohio Supreme Court Slip Opinion No. 2023-Ohio-2535.E.A. GallagherCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1058
State v. Boyd 112875Rape; R.C. 2907.02(A)(1)(b); gross sexual imposition; R.C. 2907.05(A)(4); sexual contact; R.C. 2907.01(B); sexual arousal or gratification; Confrontation Clause; Rape Shield Law. The state presented sufficient evidence that the defendant touched the victim’s buttocks, vagina, and breasts to prove beyond a reasonable doubt the element of sexual arousal or gratification to convict the defendant of gross sexual imposition. The trial court did not err when it denied the defendant’s request to cross-examine the victim regarding her alleged prior allegation that she was pregnant with defendant’s child when there was nothing to indicate that she had made the prior statement. The trial court did not err when it granted the state’s request to limit the defendant’s cross-examination of the victim’s father about a report that he made to child and family services ten years previously.SheehanCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1059
Hawken School v. Machado 112837Summary judgment; affidavit; deposition; personal knowledge; contract; breach; liquidated damages; notice pleading; strike; actual damages; penalty. The trial court did not err in denying defendant’s motion to strike the affidavit supporting plaintiff’s motion for summary judgment, or in denying defendant’s motion for a more definite statement. The trial court did not err in granting summary judgment in favor of the plaintiff because the evidentiary materials established the defendant’s breach of the school-enrollments agreements and the validity of the liquidated damages provision contained therein.E.T. GallagherCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1060
State v. Blair 112388Felonious assault; improperly discharging a firearm; endangering children; criminal damaging; having a weapon while under disability; motion for mistrial; discovery violation; sanction; discretion; Crim.R. 16; fair trial; new trial; Crim.R. 33; due process; Crim.R. 29; acquittal; sufficiency; admission of evidence; Evid.R. 901; Evid.R. 602; harmless error; Crim.R. 52(A). Affirmed appellant’s convictions for felonious assault and related counts. The trial court did not abuse its discretion in denying appellant’s motions for a mistrial and imposing a less severe sanction for a discovery violation under Crim.R. 16 where appellant was not prevented from receiving a fair trial, nor did the court err in denying appellant’s request to set aside the verdict and for a new trial. The trial court did not err in denying appellant’s Crim.R. 29 motion for acquittal when sufficient evidence was presented to prove the essential elements of the crimes beyond a reasonable doubt. Appellant’s convictions were not against the manifest weight of the evidence. The trial court did not abuse its discretion in the admission of video evidence under the silent witness theory pursuant to Evid.R. 901, in permitting the lead detective to testify to the contents of the video pursuant to Evid.R. 602, or in the admission of several exhibits; and any error in this regard was harmless at best.S. GallagherCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1061
In re M.H. 112727Murder; discretionary SYO specification; age 13; plea agreement; blended sentence; ineffective assistance of counsel; stipulation. - Juvenile did not demonstrate that he received ineffective assistance of counsel because the plea agreement that minimized his risk of more years in adult prison before parole did not contain any stipulation that the juvenile agreed that the trial court would impose the discretionary SYO. Juvenile did not demonstrate that the outcome of the case would be different, i.e., the trial court would not have imposed a blended sentence, if counsel advocated stronger or provided more mitigation evidence because the court found that the nature of the offense and that the juvenile was already not abiding by the rules in juvenile detention, warranted the imposition of the discretionary SYO.KeoughCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1062
In re C.S. 112823Delinquency; adjudication; rape; sufficiency of the evidence; manifest weight of the evidence. Appellant’s delinquency adjudications for rape and disseminating matter harmful to juveniles are supported by sufficient evidence and are not against the manifest weight of the evidence. The record contains evidence that the appellant forced the victim to engage in fellatio. Further, the court did not clearly lose its way in adjudicating the appellant delinquent despite the fact that the victim did not report the rape for two years. Furthermore, the fact that no physical evidence was introduced does not make the adjudications against the manifest weight of the evidence because there is no requirement that physical evidence be presented.ForbesCuyahoga 3/21/2024 3/21/2024 2024-Ohio-1063
State ex rel. Schwarzmer v. Burnside 113319Municipal court, common pleas court, declaratory judgment, jurisdiction to vacate judgments, jurisdiction of Cleveland Municipal Court, void judgments, mandamus, prohibition, judicial resources, conflicting judgments, and discretion to issue writs. This court issued a writ of prohibition to the common pleas court not to adjudicate a declaratory judgment claim seeking to declare judgments of the municipal court void. The court in the exercise of its discretion ordered the common pleas court to return the entire case to the Cleveland Municipal Court in the interest of judicial efficiency and to avoid risking conflicting judgments.BoyleCuyahoga 3/15/2024 3/21/2024 2024-Ohio-1050
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
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