CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 8. November 1, 2012

Transcription

1 Court of Appeals, Eighth Appellate District Page: 1 of 8 November 1, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MATTHEW FAIRFIELD Affirmed in part; reversed in part and remanded. Patricia Ann Blackmon, A.J., Melody J. Stewart, J., and Mary J. Boyle, J., concur. KEY WORDS: Trial court did not err in denying appellant s motion to suppress as the search warrant was valid. Although a spouse cannot testify against another spouse at trial, a spouse can provide information in support of a search warrant. Trial court erred in failing to merge allied offenses COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO SAMUEL L. RUFENER v APOLLONIA HUTSON Reversed and remanded. Eileen A. Gallagher, J., Melody J. Stewart, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Judgment reversed; the crux of the evidence to support a petition for a civil stalking protection order was remote and had ceased six months prior to the application; the remaining evidence used to support the petition did not demonstrate that the respondent acted knowingly to cause the petitioner to believe he would suffer mental distress COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v GERALD STROTHERS Eileen A. Gallagher, J., James J. Sweeney, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: State presented sufficient evidence to convict appellant of promoting prostitution and possessing criminal tools; the trial court did not abuse its discretion in allowing explanation testimony during the motion to suppress when the four corners of the affidavit established the necessary probable cause to issue the search warrant; the trial court did not abuse its discretion in allowing opinion testimony of non-expert, or lay, witnesses.

2 Court of Appeals, Eighth Appellate District Page: 2 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v KHALIF MUHAMMED Mary Eileen Kilbane, J., Mary J. Boyle, P.J., and Colleen Conway Cooney, J., concur. KEY WORDS: Defendant s convictions and sentence affirmed. The State presented sufficient evidence to sustain defendant s felonious assault convictions when the victim s version of the events never changed and victim was able to identify defendant because they are relatives. The trial court s imposition of consecutive sentences was proper when trial court made the following necessary findings under R.C (C): first, the trial court must find that consecutive service is necessary to protect the public from future crime or to punish the offender. R.C (C)(4). Next, the trial court must find that consecutive sentences are not disproportionate to the seriousness of the offender s conduct and to the danger the offender poses to the public. Finally, the trial court must find that at least one of the following applies: (1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense; (2) at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender s conduct; or (3) the offender s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ARTHUR TAYLOR Affirmed in part; reversed in part and remanded for limited resentencing. Larry A. Jones, Sr., J., Patricia Ann Blackmon, A.J., and Sean C. Gallagher, J., concur. KEY WORDS: Ineffective assistance of counsel; discovery/chain of custody; Crim.R. 11(B)(1)/taking of pleas; sentencing; R.C (B)(1)/indigent offender/waiver of fine COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v SAN PEDRO GARCIA

3 Court of Appeals, Eighth Appellate District Page: 3 of 8 Reversed and Vacated. James J. Sweeney, J., Patricia Ann Blackmon, A.J., and Frank D.Celebrezze, Jr., J., concur. KEY WORDS: Court erred by denying defendant s motion to suppress evidence; initial stop of defendant was not a consensual encounter and was not justified as an investigatory stop because there was no reasonable suspicion of criminal activity COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v PATRICIA BARROW Sean C. Gallagher, J., Patricia Ann Blackmon, A.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: The trial court did not violate appellant s right to confrontation and deny her due process by limiting cross-examination of a state s witness and not allowing a proffer of evidence. Pursuant to Evid.R. 103(A)(2), upon objection on cross-examination, an offer of proof is dispensed with for the reason that it would be impracticable to speculate on the potential answer. Appellant s murder conviction is supported by the weight and sufficiency of the evidence. DNA testing is not constitutionally required of all items removed from a crime scene. An appellate court will not second guess strategic decisions of defense counsel, and due process does not require the police to use a particular investigatory tool COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JVYN T. TUCKER Larry A. Jones, Sr., J., Patricia Ann Blackmon, A.J., and Sean C. Gallagher, J., concur. KEY WORDS: Denial of defendant s presentence motion to withdraw his guilty plea is affirmed. The trial court did not abuse its discretion by denying the motion when the record demonstrates that: (1) the defendant was represented by highly competent counsel, (2) the defendant was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) the defendant was given a complete and impartial hearing on his motion, and (4) the court gave full and fair consideration to the plea withdrawal request.

4 Court of Appeals, Eighth Appellate District Page: 4 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO HEATHER FIELD v MEDLAB OHIO, INC. Kathleen Ann Keough, J., Colleen Conway Cooney, P.J., and Eileen A. Gallagher, J. concur. KEY WORDS: Trial court did not err in granting summary judgment in favor of employer in employment disability discrimination case because employee failed to establish a genuine issue of material fact as to whether her employer regarded her as disabled COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v SHARDA E. JOHNSON Sean C. Gallagher, J., Patricia Ann Blackmon, A.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: The notice of suspension of a carrying concealed weapon license was validly served when mailed per R.C (A)(3) to appellant s last known address. Actual knowledge of the license suspension is not required to obtain a conviction under R.C (A)(2). Because Ohio does not recognize a mistake of law or ignorance of the law defense, appellant s conviction for carrying a concealed weapon is not against the manifest weight of the evidence. The conviction is also supported by sufficient evidence where a reasonable trier of fact could conclude that appellant s act of carrying a loaded handgun because it made her feel safe meant the gun was, in fact, operable COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ERIC S. RYAN Eileen A. Gallagher, J., Colleen Conway Cooney, P.J., and Kathleen Ann Keough, J., concur. KEY WORDS: The trial court did not err where it correctly applied the statutory sentencing scheme despite a legislative drafting error.

5 Court of Appeals, Eighth Appellate District Page: 5 of DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE GLADISA M. GUADALUPE v LAWRENCE MINADEO Sean C. Gallagher, J.; Eileen A. Gallagher, J., concurs; Melody J. Stewart, P.J., concurs in judgment only with separate opinion. KEY WORDS: A Civ.R. 60(B) motion for relief from judgment may not be used as a substitute for a timely appeal. The trial court, therefore, did not err in denying appellant s motion for relief of judgment and motion for guardian ad litem fees COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO A.F. KRAINZ CO. v MAYOR FRANK G. JACKSON Patricia Ann Blackmon, A.J., Melody J. Steward, J., and Mary J. Boyle, J., concur. KEY WORDS: Summary judgment; public records request; Ohio Public Records Act DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE TRAMAINE SHEA BAILEY v MICHAEL EDWARD BAILEY Colleen Conway Cooney, J., James J. Sweeney, P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: Although court has discretion to determine date marriage terminated, the date of the final hearing for divorce is presumed to be the appropriate date unless the trial court determines that the application of such date would be inequitable COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO RID-ALL EXTERMINATING CORP., ET AL. v CUYAHOGA METRO. HOUSING AUTHORITY Reversed and remanded. Melody J. Stewart, P.J., James J. Sweeney, J., and Kenneth A. Rocco, J., concur. KEY WORDS: Court erred by denying a motion to dismiss an exterminator s complaint against a public housing authority on

6 Court of Appeals, Eighth Appellate District Page: 6 of 8 (Case continued) immunity grounds because exterminating services related to a governmental function and no exceptions to immunity applied JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: M.W JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: M.W. James J. Sweeney, P.J., Sean C. Gallagher, J., and Mary Eileen Kilbane, J., Concur. KEY WORDS: Permanent custody proceedings. Recusal of judge not required where he or she acquired knowledge of facts from another proceeding and there is no other evidence of bias. R.C (A)(2). Claims of ineffective assistance of counsel not supported where parent has not demonstrated outcome of trial would have been different but for alleged deficiencies in counsel s performance COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO CAROLYN J. ELAM v EMPLOYMENT & FAMILY SERVICES, ET AL. Mary Eileen Kilbane, J., Larry A. Jones, Sr., P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: Pursuant to Butler v. Jordan, 92 Ohio St.3d 354, 2001-Ohio-204, 750 N.E.2d 554, no provisions of the Ohio Revised Code expressly impose liability on a political subdivision for failure to inspect or for the negligent certification of a type-b family day-care home even where the political subdivision has completely ignored the obligations imposed upon it by the statute, so Department of Employment and Family Services was entitled to immunity in plaintiff s action for loss of her day-care certification. Employees of Department of Employment and Family Services were properly awarded summary judgment where plaintiff failed to present evidence to create a genuine issue of material fact to overcome their immunity under R.C Since defendants are entitled to judgment as a matter of law, the award of summary judgment to defendants did not violate plaintiff s right to a jury trial. Errors that arise during the course of a trial, which are not brought to the attention of the court by objection or otherwise, such as plaintiff s claim that defendants were in contempt of court, are waived and may not be raised upon appeal. If the trial court has stated an erroneous basis for its judgment, a reviewing court will affirm the judgment if it is legally correct for

7 Court of Appeals, Eighth Appellate District Page: 7 of 8 (Case continued) another reason. In light of prior court proceedings, remarks regarding res judicata were within the permissible bounds of counsel's zealous representation and were not prejudicially erroneous. Courts traditionally waive filing fees and costs for indigent persons in order to promote the interests of justice, and because plaintiff filed an Affidavit of Indigence, costs should not be assessed against her JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE S/O C.S.E.A.,EX REL.,DAVIS STEVENSON v DWAYNE THOMAS Reversed and remanded. Mary J. Boyle, P.J.; Mary Eileen Kilbane, J., concurs; Colleen Conway Cooney, J., concurs in judgment only. KEY WORDS: Trial court s judgment entry of contempt has a final order and, thus, the trial court had no power to vacate it. Judgment entry of contempt could only be vacated or modified in conformity with Civ.R. 60(B) JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: A.M.S. Patricia Ann Blackmon, A.J., Larry A. Jones, J., and Sean C. Gallagher, J., concur. KEY WORDS: Child custody; change in circumstances; best interest COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EDWARD GRESHAM Eileen A. Gallagher, J., Colleen Conway Cooney, P.J., and Kathleen Ann Keough, J., concur. KEY WORDS: Judgment affirmed; appellant s petition for postconviction relief was untimely filed; appellant s claim that his convictions for allied offenses should have been merged for purposes of sentencing is barred by res judicata. Received recirculated amended opinion from KK, waiting for CC's

8 Court of Appeals, Eighth Appellate District Page: 8 of 8 (Case continued) approval JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: R.T.A. Reversed and remanded. Colleen Conway Cooney, J.; Mary J. Boyle, P.J., and Mary Eileen Kilbane, J., both concur in judgment only KEY WORDS: Trial court has no authority to sua sponte dismiss contempt order. Absent statutory authority, a trial court is not empowered to modify a criminal sentence by reconsidering its own final judgment LYNDHURST MUNI. G CIVIL MUNI. & CITY SAMUEL L. SMITH, DBA SMITH LIMO/TRAN v JOYCE LURIE Mary Eileen Kilbane, J., Mary J. Boyle, P.J., and Colleen Conway Cooney, J., concur. KEY WORDS: Lower court s judgment in favor of plaintiff affirmed. Lower court did not abuse its discretion when it adopted magistrate s decision in favor of plaintiff under theory of quantum meruit when parties stipulated that plaintiff performed $5, in transportation services to defendant and defendant did not pay for those services