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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
State v. Gage C-160824SPEEDY TRIAL: Because defendant was charged with both a second-degree misdemeanor and a minor misdemeanor, the state had 90 days, the speedy-trial period for a second-degree misdemeanor, to bring him to trial. Where defendant waived a substantial amount of time, and a substantial amount of time was tolled due to his actions, defendant was tried within the statutory speedy-trial period. Though defendant was not tried for over a year after his arrest on misdemeanor charges, his constitutional right to a speedy trial was not violated because much of the delay was attributable to him, he did not assert his speedy-trial right until late in the proceedings, and his defense was not impaired by the delay.MockHamilton 12/8/2017 12/8/2017 2017-Ohio-8897
State v. Williams C-160336RAPE - EVIDENCE - CONSTITUTIONAL LAW/CRIMINAL - CONFRONTATION CLAUSE - HEARSAY - COUNSEL - PROSECUTOR - SENTENCING: In a trial for two counts of rape of a child under the age of ten, the admission of statements made by the child-victims at the Mayerson Center did not violate the Confrontation Clause because they were made for the purpose of medical diagnosis and treatment, and therefore, were not testimonial; and while the statements were hearsay, they were properly admitted as statements made for the purpose of medical diagnosis and treatment pursuant to Evid.R. 803(4). The trial court erred in allowing mother to testify as to what the children had told her about what defendant had done to them, because the statements were hearsay; but defendant was not prejudiced by the admission of the statements because evidence containing the same information was properly admitted through other sources. Defendant's convictions for two counts of rape of a child under ten were based upon sufficient evidence and were not against the manifest weight of the evidence where the testimony of the victims, their interviews at the Mayerson Center, which were admitted into evidence, and the testimony of the Mayerson Center social worker about what the children had said showed that defendant had digitally penetrated the vaginas of both child-victims. Counsel was not ineffective for failing to cross-examine the child-victims, because the decision was sound trial strategy and defendant had instructed counsel not to cross-examine the children. Counsel was not ineffective for failing to object to an isolated comment made by the prosecutor at the conclusion of the testimony of a child-victim that he was "proud of her" where the comment was innocuous and the decision not to object was a matter of sound trial strategy. The prosecutor did not commit misconduct in making a single, encouraging comment to a child-victim at the conclusion of her difficult testimony considering the context of the comment and its isolated character. Defendant failed to establish that the outcome of the trial had been adversely affected by cumulative error where he had demonstrated only a single instance of arguable error, which was harmless. The trial court did not err in sentencing defendant to consecutive life terms where the court made the required findings pursuant to R.C. 2929.14(C) at the sentencing hearing and recorded those findings in the sentencing entry, and the record supported those findings. Defendant's two consecutive life terms did not constitute cruel and unusual punishment: the sentences were within the statutory ranges, and a claim for cruel and unusual punishment cannot be premised on consecutive sentences.MockHamilton 12/8/2017 12/8/2017 2017-Ohio-8898
Pieczonka v. Pieczonka C-170173DIVORCE - CHILD SUPPORT: The trial court abused its discretion in adopting the magistrate's decision where the magistrate had relied on an incorrect statement of the facts in determining the effective date of a child-support-modification order.ZayasHamilton 12/8/2017 12/8/2017 2017-Ohio-8899
Stanfield v. On Target Consulting C-160890LIMITED-LIABILITY COMPANY - CHARGING ORDER - R.C. 1705.09: To determine whether an individual is a member of a limited-liability company for the purpose of issuing a charging order under R.C. 1705.19, the trial court must consider records maintained by the company for the purpose of its corporate governance that name those owners entitled to receive distributions and share in the profits and losses of the company.MockHamilton 12/6/2017 12/6/2017 2017-Ohio-8830
Sun Bldg. Ltd. Partnership v. Value Learning & Teaching Academy, Inc. C-160789, C-160793CONTRACTS - LANDLORD AND TENANT - COMMUNITY SCHOOL - R.C. 3314.074: The trial court did not err by entering summary judgment for the landlords on their claims for unpaid rent against a community school, because a government entity can bind itself to a lease by taking sufficient action before it is executed, and the unrefuted evidence demonstrated that the governing authority of the community school had voted to authorize the leases before execution. The trial court did not err by preferring employee-related claims over the claims of general-creditor landlords when distributing the assets of a closed and insolvent community school organized as a nonprofit corporation: R.C. 3314.074 provides the trial court with discretion to determine the allocation of assets between the class of payees comprising employee-retirement-fund, employee, and private-creditor claimants, when assets are insufficient to satisfy all those claims, so long as the allocation is in accordance with R.C. 3314.074 and the law governing nonprofit corporations. [But see CONCURRENCE: R.C. 3314.074(A) sets forth the order in which payment is required-retirement funds first, employees second, and private creditors third, and the trial court's discretion is limited to allocating distributions within each of these three classes of payees.] The trial court did not err by dismissing the landlords' claims against various defendants involved in the management or oversight of a community school, because the law does not recognize a private cause of action against any of the defendants for the mismanagement or misuse of public funds that would allow the landlords to recover from the defendants for the community school's debt.MyersHamilton 11/29/2017 11/29/2017 2017-Ohio-8727
State v. Feltha 160574MURDER - WEAPONS UNDER DISABILITY - EVIDENCE - COUNSEL - PRIOR ADJUDICATIONS - JURY INSTRUCTIONS - LESSER INCLUDED OFFENSE - AUTHENTICATION: Counsel was not ineffective for failing to seek the severance of a weapons-under-disability charge from a murder charge for trial where the evidence for each offense was simple and direct so that the jury was capable of segregating the proof required for each offense. Counsel was not ineffective for failing to request that a weapons-under-disability charge be tried to the court where such a decision is within the realm of trial strategy. Defendant did not establish that his counsel was ineffective for failing to have him plead guilty to a weapons-under-disability charge where the record failed to demonstrate that defendant would have been willing to plead guilty to the charge. While counsel may have been ineffective for allowing the details of defendant's three prior juvenile adjudications to be admitted into evidence rather than offering to stipulate to the fact of one prior adjudication for the purposes of a weapons-under-disability charge, the evidence of defendant's guilt was so overwhelming that there was no reasonable probability that the result of the trial was affected. The discussion of defendant's prior adjudications during defense counsel's opening statement was sound trial strategy and did not amount to ineffective assistance of counsel. The decision of trial counsel to change strategy from claiming that defendant had not committed the shooting to claiming that he had shot the victim accidentally was not ineffective assistance where counsel's strategy changed due to the way the evidence was developed at trial. Counsel was not ineffective for failing to file a motion to suppress the statement defendant made to police because such a motion would have been denied. Counsel's concession that defendant committed the weapons-under-disability offense was not ineffective assistance where his conviction was a foregone conclusion, and the concession allowed counsel to concentrate on the main points of his defense of the murder charge. Counsel did not prejudice defendant by the cumulative effect of counsel's deficient conduct where the evidence against defendant was overwhelming. The trial court did not commit plain error by admitting the details of defendant's three prior juvenile adjudications where the evidence against him was overwhelming and he could not show that the admission of the details affected the outcome of the trial. The trial court did not abuse its discretion when it denied defendant's request for an instruction on reckless homicide where the trial court found that the evidence would not have allowed the jury to conclude that defendant had committed that offense. A note passed from defendant to another inmate was properly authenticated where the state claimed only that defendant was the source of the note and not its author, and the witness testified that defendant had handed the note to him. Defendant's conviction for murder was based on sufficient evidence and was not against the manifest weight of the evidence where several witnesses testified that defendant had shot the victim, the shooting was recorded by surveillance cameras, and defendant had admitted to the shooting in a statement to police.MockHamilton 11/22/2017 11/22/2017 2017-Ohio-8640
State v. Anderson C-160920AUTOS/CRIMINAL - OVI - EVIDENCE - OPERATION: The trial court erred in convicting defendant for operating a motor vehicle while under the influence of drugs in violation of R.C. 4511.19(A)(1)(a), because the state's evidence that firefighters had found defendant overdosed in the driver's seat of a vehicle that was parked in the parking lot of a recreation center with the key in the ignition, while probative of defendant's physical control of the vehicle, was insufficient to prove he had operated the vehicle while under the influence. [But see DISSENT: An impaired person in the driver's seat of a vehicle with the key in the ignition can be convicted of operating a vehicle while under the influence if there is sufficient circumstantial evidence that he operated the vehicle while impaired: the trial court did not err in convicting defendant of operating a vehicle while under the influence of drugs, because a reasonable trier of fact could have found that defendant had operated the vehicle while impaired where he was found overdosed and unconscious in the driver's seat of the vehicle with the key in the ignition, no drug paraphernalia was found in the vehicle or its immediate vicinity, which the police officer testified means that the drugs had been ingested elsewhere, and defendant admitted that the vehicle had been operated but claimed that it had been operated by a woman who was not on the scene when defendant was found.]DetersHamilton 11/22/2017 11/22/2017 2017-Ohio-8641
State v. Carney C-160660WEAPONS UNDER DISABILITY - EVIDENCE - JUVENILE ADJUDICATION - SENTENCING: A juvenile adjudication can constitute the disability upon which defendant's having-weapons-under-a-disability conviction is based. (State v. Carnes, 2016-Ohio-8019, 75 N.E.3d 774 (1st Dist.), State v. McCray, 1st Dist. Hamilton No. C-160272, 2017-Ohio-2996, and State v. Barfield, 1st Dist. Hamilton No. C-160678, 2017-Ohio-8243, followed.) [But see DISSENT: If a juvenile adjudication is not reliable enough to enhance a criminal sentence, it is not sufficiently reliable to alone sustain proof beyond a reasonable doubt of an element of a crime.] Defendant failed to meet his burden to show that the trial court acted vindictively in sentencing him because he rejected a plea bargain where the record shows that the trial court referenced the rejected plea bargain only in a discussion about the performance of defendant's counsel, it did not discuss plea bargaining at sentencing, it considered the serious nature of the charges and defendant's criminal history, and it listened to defendant and his family members at sentencing. The trial court did not err in considering defendant's juvenile adjudication in determining whether consecutive sentences were appropriate. (State v. Bromagen, 1st Dist. Hamilton No. C-120148, 2012-Ohio-5757, followed.)DetersHamilton 11/17/2017 11/17/2017 2017-Ohio-8585
State v. Saunders C-160781ASSAULT - EVIDENCE - WITNESSES - CREDIBILITY - ALLOCUTION - SENTENCING: Defendant's conviction for assault was supported by sufficient evidence where the victim testified that defendant had started the fight and had repeatedly hit and kicked him, and the trial court specifically found the victim's testimony to be more credible than defendant's testimony. Defendant's sentence must be reversed and the cause remanded for resentencing, because the trial court denied defendant's right of allocution where the court failed to personally address defendant and allow him the opportunity to speak.ZayasHamilton 11/15/2017 11/15/2017 2017-Ohio-8557
State v. Smith C-160836; C-160837CONSTITUTIONAL LAW/CRIMINAL - COUNSEL - PRO SE MOTIONS - EVIDENCE - BURGLARY - DRUGS - TAMPERING WITH EVIDENCE - REBUTTAL TESTIMONY - HEARSAY - EVID.R. 613(B) - PROSECUTOR - ALLIED OFFENSES - R.C. 2941.25 - SENTENCING: The trial court properly determined that the police officer had probable cause to arrest defendant when the officer witnessed a large bag of marijuana sticking out of defendant's pocket. The trial court did not abuse its discretion in denying defendant's request for new counsel where defendant failed to articulate a basis for the motion. A trial court may not address a pro se motion to dismiss and a pro se motion for an independent laboratory analysis, filed by a defendant who is represented by counsel, when counsel informs the trial court that the motions are without merit. Where defendant stipulated to the admissibility of a 911 call, he may not challenge its admissibility on appeal: 911 calls are usually admissible under the excited-utterance or present-sense-impression exceptions to the hearsay rule; they are not testimonial in nature, and therefore, not subject to the requirements of the Confrontation Clause. Evid.R. 613(B) permits the impeachment of an adverse witness with the extrinsic evidence of the witness's prior inconsistent statement when the witness denies making the statement, and the evidence concerns a fact of consequence. The trial court did not abuse its discretion in allowing the police officers to testify that the substantial amount of cocaine recovered from defendant indicated that it was for distribution, because the testimony did not constitute an expert opinion and was based on the officers' knowledge and perceptions through their experience. The prosecutor's comments during closing argument were a fair commentary on the evidence and not a misstatement of the law; therefore, defendant failed to establish that the prosecutor committed misconduct during closing argument. Trial counsel's conclusion that defendant's pro se motions were without merit and counsel's conduct during voir dire were sound trial strategy, and did not constitute ineffective assistance of counsel. Defendant's convictions for burglary, trafficking in cocaine, possession of cocaine, and tampering with evidence were supported by sufficient evidence and were not against the manifest weight of the evidence where the victim testified that he lived in the burglarized apartment, had recently left to take a friend to work, and could have been home at the time of the burglary; the officers' testimony that the amount of cocaine was inconsistent with personal use and indicated trafficking demonstrated the cocaine was intended for sale or resale; and testimony demonstrated that defendant threw the cocaine, threw the marijuana, and dispersed the marijuana throughout the apartment. The trial court properly considered the statutory sentencing factors before imposing sentence and made the requisite findings to impose consecutive sentences and incorporated them into the sentencing entry. The failure of the trial court to inform defendant of the requirement to submit to DNA testing was harmless. The trial court erred by imposing sentences for both trafficking in cocaine and possession of cocaine because they were allied offenses of similar import, and therefore, the cause must be remanded for a resentencing hearing at which the state may elect which offense to pursue for resentencing.ZayasHamilton 11/15/2017 11/15/2017 2017-Ohio-8558
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