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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
State v. Long C-170529PUBLIC RECORDS – APPELLATE REVIEW/CRIMINAL – POSTCONVICTION: The common pleas court erred in denying postconviction petitioner’s request for, because petitioner had established an entitlement to, a finding for purposes of the Public Records Act that “the information sought in the public record is necessary to support what appears to be a justiciable claim,” when the request was made in connection with, and sought information material to, pending postconviction prosecutorial-misconduct and ineffective-counsel claims that were cognizable in a late postconviction petition. See R.C. 149.43(B)(8). The common pleas court’s entry denying the request of a postconviction petitioner for a finding for purposes of the Public Records Act that “the information sought in the public record is necessary to support what appears to be a justiciable claim” constituted a final appealable order, because the entry was made in a special proceeding and affected a substantial right. See R.C. 149.43(B)(8), 2505.03(A) and 2505.02(B)(2).Per CuriumHamilton 10/17/2018 10/17/2018 2018-Ohio-4194
State v. Johnson C-170371MURDER – WEAPONS UNDER DISABILITY – EVIDENCE – OTHER ACTS – JURY INSTRUCTIONS – HARMLESS ERROR – PLAIN ERROR: The trial court did not err in admitting other-acts evidence relating to defendant’s and his codefendant’s drug activity where the evidence was “inextricably interwoven” with the charged crimes, was necessary to give a complete picture of what had occurred, and was necessary to show the relationship between defendant, his codefendant and the victim. The admission of testimony about items pulled from the codefendant’s trash, which included ammunition not related to the shooting and two digital drug scales, was not plain error given the other admissible evidence showing that defendant and his codefendant were involved in drug activity, and the otherwise overwhelming evidence against defendant. The admission into evidence of defendant’s statement to the police that he had spent time in jail was harmless error given the evidence about his drug activity and the otherwise overwhelming evidence against him. The trial court did not err in admitting other-acts evidence under Evid.R. 403(A) where the evidence was not presented for the sole purpose of appealing to the jurors’ emotions, sympathies or biases, but instead provided the setting of the case. The trial court did not commit plain error in failing to give limiting instructions after the testimony of every witness about other acts where defendant failed to request limiting instructions and where nothing in the record suggested that the jury had used improper other-acts evidence to convict defendant. The evidence was sufficient to support defendant’s conviction for having weapons under a disability where it showed that defendant had constructively possessed a gun through his codefendant, and where defendant had a prior conviction for trafficking in marijuana, which precluded him from having a weapon. The evidence was sufficient to support defendant’s conviction for felony murder under R.C. 2903.02 where it showed that defendant assaulted the victim, and aided and abetted his codefendant in shooting the victim, and the state did not rely on inference stacking to prove aiding and abetting.DetersHamilton 10/12/2018 10/12/2018 2018-Ohio-4131
State v. Arszman C-170595APPELLATE REVIEW/CRIMINAL – JURISDICTION – FINAL ORDER – SEX OFFENSES: The trial court’s order purporting to classify defendant as a Tier I sex offender under Ohio’s version of the Adam Walsh Act was not final and appealable, because it did not meet the requirement that the judgment of conviction must be a single document that includes the fact of conviction, the sentence, the judge’s signature, and the time stamp; therefore, defendant’s appeal from that order must be dismissed.CunninghamHamilton 10/12/2018 10/12/2018 2018-Ohio-4132
State v. Foster C-170245GUILTY PLEA – CRIM.R. 11(C) – APPELLATE REVIEW/CRIMINAL: Defendant failed to demonstrate that his guilty plea was not knowingly, voluntarily, and intelligently entered on the ground that the trial court had failed to inform him that he was subject to a mandatory prison term where the plea form failed to inform defendant about the mandatory nature of the prison term, and the trial court advised defendant that he was eligible for community control, but it then expressly told defendant multiple times during the plea colloquy that community control was not a sentencing option and that it was planning to impose a prison term upon him. [But see DISSENT: Where the trial court failed to inform defendant that his prison sentence for rape was mandatory time the court wholly failed to comply with Crim.R. 11(C)(2)(a), and defendant’s guilty plea must be vacated.] Crim.R. 11(C) does not require the trial court to inform a defendant during the plea colloquy about his eligibility for judicial release or earned days of credit unless it is incorporated into a plea bargain or the trial court made some misstatement or misrepresentation about judicial release or earned days of credit that induced defendant to enter his plea. Defendant could not demonstrate that his guilty plea to rape was not knowingly, voluntarily, and intelligently entered where the trial court's misstatement of law regarding judicial release did not induce the defendant to enter his guilty plea to rape, and the trial court did not relay inaccurate information during the plea colloquy regarding earned days of credit. Defendant’s claim that the Ohio Department of Rehabilitation and Correction violated the separation-of-powers doctrine by administratively adding the designation “mandatory” to his records without any judicial order requiring the designation was not demonstrated in the record where the defendant had appended a printout from the Department of Rehabilitation and Correction to his brief, but the printout had not been made a part of the record in the trial court, and thus, was not part of the record on appeal.DetersHamilton 10/3/2018 10/3/2018 2018-Ohio-4006
State v. Lowe C-170494; C-170495; C-170498; C-170505RESISTING ARREST – EVIDENCE – CONTEMPT: Under R.C. 2921.33(A), no person, either recklessly or by force, is permitted to resist or interfere with his own lawful arrest. For purposes of a resisting-arrest offense, an arrest occurs when the following four requisite elements are present: (1) an intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, (4) which is so understood by the person arrested. Where the evidence showed that defendant had been informed less than four minutes before that the police were looking specifically for him to execute warrants for his arrest, and that his flight amounted to an obvious interference with his apprehension, the record contains substantial, credible evidence from which the trial court could have reasonably concluded that each element of resisting arrest had been proved beyond a reasonable doubt, including that the police intended to arrest defendant and that defendant knew of that intention. To find that a contemnor has committed direct, criminal contempt a court need only determine, beyond a reasonable doubt, that the contemnor’s misbehavior, conducted in the presence of the trial court acting in its judicial function, obstructed the administration of justice.CunninghamHamilton 9/28/2018 9/28/2018 2018-Ohio-3916
State v. Morrissette C-170426MURDER – EVIDENCE – COUNSEL – PROSECUTOR – JURY INSTRUCTIONS – FLIGHT: Defendant’s conviction for murder was not against the manifest weight of the evidence where the evidence of his guilt, including credible eyewitness testimony that he was the shooter, and an abundance of circumstantial evidence, such as surveillance video footage, that supported the inference that he was the shooter, was overwhelming. Any misconduct by the prosecutor, including, at trial, referring to defendant by his nickname “Psycho” when not necessary for identification or clarity but without purpose to impugn defendant’s character, and during closing argument, fleetingly referring to a matter outside the evidence, making an argument not supported by the evidence, and touching on the issue of punishment in the context of explaining a consciousness of guilt argument, did not result in reversible error, because the impact of such misconduct, even if combined, did not deny defendant a fair trial nor was it outcome determinative, when weighed against the strength of the state’s case. The trial court did not abuse its discretion by instructing the jury on flight because evidence that defendant had suddenly left town after the murder, had hid in a tree when fleeing from the police, and had rubbed “hair grease,” “seasoning” and “cologne” on his body to avoid detection by K-9 police dogs supported the instruction. Defense counsels’ failure to object to the prosecutor’s unnecessary use of defendant’s nickname “Psycho,” and their own allegedly unnecessary use of that name, was not outcome determinative in light of the state’s overwhelming evidence of guilt. The cumulative errors at trial did not affect the fairness of defendant’s trial.CunninghamHamilton 9/28/2018 9/28/2018 2018-Ohio-3917
State v. Walker C-170321CONSTITUTIONAL LAW/CRIMINAL – CONFRONTATION CLAUSE – EVID.R. 804 – WITNESS UNAVAILABILITY – COUNSEL – SENTENCING: The trial court did not err in determining that a witness was unavailable despite reasonable, good-faith efforts on the part of the state to secure the witness’s presence and in allowing the state, pursuant to Evid.R. 804, to introduce the witness’s testimony from a prior trial where the state had issued a subpoena to the witness approximately six weeks prior to trial; the appearance docket indicated that the subpoena had been “returned and endorsed,” despite the record containing a return on the subpoena indicating a failure of service on the witness; a victim’s advocate had contacted the witness a few days before the trial; and the state attempted to personally serve the witness with another subpoena the day that the witness failed to appear for trial: the introduction of the witness’s testimony from the prior trial, which had ended in a mistrial, did not violate the Confrontation Clause, because the witness was unavailable despite the state’s reasonable, good-faith efforts to secure his presence, and defendant had the opportunity to cross-examine the witness during the prior trial. [But see DISSENT: The state did not make a good-faith effort to secure the witness’s presence for trial, and the trial court erred in relying on the appearance docket as evidence of the state’s good-faith efforts where the state presented no testimony at the unavailability hearing regarding the subpoena that had been issued and returned or the clerk’s notation regarding the subpoena, and the state’s multiple efforts to contact the witness after the subpoena was returned unserved began two days before the scheduled trial date; therefore, the trial court erred in permitting the state to introduce the witness’s testimony from the prior trial.] Where defendant failed to establish resulting prejudice from counsel’s failure to present a mitigation argument at sentencing, counsel’s performance will not be considered ineffective. The trial court did not err in the imposition of sentence where defendant failed to demonstrate that the trial court’s comments at sentencing were the product of actual vindictiveness.MyersHamilton 9/28/2018 9/28/2018 2018-Ohio-3918
In re E.N. C-170272CHILDREN – CUSTODY – APPELLATE REVIEW – JURISDICTION: The juvenile court’s entry ordering a change of custody of the minor child from one parent to the other was immediately appealable under R.C. 2505.02(B)(2). Under R.C. 2505.02(B)(2), immediate review is necessary where the juvenile court’s order transferred the role of residential parent and legal custodian from mother to father, because, if left undisturbed, the order would have an immediate effect on mother’s right to the custody and control of her child, perhaps the oldest of the fundamental liberty interests recognized by our courts: denying those rights, for whatever period, would immediately diminish mother’s most fundamental rights to the custody and control of her child; mother would not be able to effectively protect her rights absent immediate review; and no later adjudication of the juvenile court’s order, coming, for example, only after the court had allocated the parents’ child-support obligations, could restore the loss of custody and control for what could be a substantial period of time. Under R.C. 3109.04(A)(1), the juvenile court was required to decide to whom the parental rights and responsibilities for the care of the child should be awarded, giving paramount consideration to the best interests of the child; the appellate court reviews the court’s ruling on the objections, and its decision to adopt the magistrate’s custody decision for an abuse of discretion. Under the R.C. 3109.04 best-interests test, no single factor is controlling; the weight to be given to any single factor lies within the trial court’s discretion and thus the court is not bound to follow the recommendations of the guardian ad litem.CunninghamHamilton 9/28/2018 9/28/2018 2018-Ohio-3919
State v. Barnes C-170355, C-170356RESISTING ARREST – EVIDENCE – HEARSAY: False statements made by a perpetrator to police that defendant had kidnapped him at gunpoint and forced him to pass a bad check were admissible to establish the police officers’ probable cause for arresting defendant. Defendant’s convictions for resisting arrest were supported by sufficient evidence and were not against the manifest weight of the evidence where the state presented evidence that defendant interfered with his arrest by struggling with police on two separate occasions while being transported to jail and where defendant did not prove that he was defending himself against excessive force by the arresting officers.MillerHamilton 9/26/2018 9/26/2018 2018-Ohio-3894
State v. Shelton C-170547PROCEDURE/RULES – CONTINUANCE — EVID.R. 404(B) — IDENTIFICATION — ALLIED OFFENSES: The trial court did not abuse its discretion in denying a continuance requested by defense counsel after the jury had been empaneled in order to subpoena materials and a witness that the state had just disclosed: defendant suffered no prejudice from the denial of the continuance where counsel was able to timely obtain the materials and present testimony from the witness that he sought to subpoena, as well as use the information in cross-examination. Because photographs depicting ammunition not used in the offenses were admitted to establish defendant’s identity as the perpetrator, they were not admitted in violation of Evid.R. 404(B). No plain error resulted from the victim’s in-court identification of the defendant as the perpetrator of the offenses. Where the force used during the commission of the felonious-assault offense was much more than was necessary to effectuate the aggravated-robbery offense, and demonstrated a specific intent to harm the victim separate from any animus to rob him, the two offenses were committed with a separate animus and were not allied offenses of similar import. Where the offenses of aggravated robbery and theft from an elderly person were committed as part of the same course of conduct with a single state of mind, and where the harm caused by the offenses was not separate and distinct, the two offenses were allied offenses of similar import, and the trial court erred by imposing a separate sentence for each offense. MyersHamilton 9/26/2018 9/26/2018 2018-Ohio-3895
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