CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 10. May 12, 2011

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1 Court of Appeals, Eighth Appellate District Page: 1 of 10 May 12, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MICHAEL SUTTON REMANDED. LARRY A. JONES, J., MARY EILEEN KILBANE, A.J., AND KATHLEEN ANN KEOUGH, J., KEY WORDS: DUE PROCESS; SIXTH AMENDMENT; EIGHTH AMENDMENT; MOTIONS FOR JUDGMENT OF ACQUITTAL; CRUEL AND UNUSUAL PUNISHMENT ON REMAND FROM OHIO SUPREME COURT: TRIAL COURT ERRED IN FAILING TO MERGE FELONIOUS ASSAULT AND ATTEMPTED MURDER CONVICTIONS WHERE APPELLANT ACTED WITH A SINGLE ANIMUS CLEVELAND MUNICIPAL COURT C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v RICHARD VEGA COLLEEN CONWAY COONEY, J., MARY J. BOYLE, P.J., AND KENNETH A. ROCCO, J., KEY WORDS: ASSAULT; CORRECTIONS OFFICER; BIAS BY THE JURY; PREJUDICE; INEFFECTIVE ASSISTANCE OF COUNSEL CLEVELAND MUNICIPAL COURT C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v PATRICK O'MALLEY COLLEEN CONWAY COONEY, J., MARY J. BOYLE, P.J., AND KENNETH A. ROCCO, J., KEY WORDS: ASSAULT; CORRECTIONS OFFICER; MANIFEST WEIGHT; HEARSAY; INEFFECTIVE ASSISTANCE OF COUNSEL.

2 Court of Appeals, Eighth Appellate District Page: 2 of DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE DARSHAN DILRANJAN KAPADIA v SALLY SAAD KAPADIA EILEEN A. GALLAGHER, J., MARY EILEEN KILBANE, A.J., AND SEAN C. GALLAGHER, J., KEY WORDS: DIVORCE; MAGISTRATE; ADOPTION; MARITAL PROPERTY; VALUATION; MARITAL HOME; SPOUSAL SUPPORT; CHILD SUPPORT; ATTORNEY FEES; ARREARAGE; SEPARATE PROPERTY; TAX EXEMPTION; BUSINESS VALUATION; DISTRIBUTIVE AWARD COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ROY A. DURHAM, JR. KENNETH A. ROCCO, J., MELODY J. STEWART, P.J., AND SEAN C. GALLAGHER, J., KEY WORDS: APPEAL AND ERROR, FAILURE TO ARGUE; CONSTITUTIONAL LAW, EFFECTIVE ASSISTANCE OF COUNSEL; EVIDENCE, HEARSAY, REFRESHED RECOLLECTION; FELONIOUS ASSAULT; KIDNAPPING CLEVELAND MUNICIPAL COURT C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v HOLLY KIRKPATRICK LARRY A. JONES, J., MELODY J. STEWART, P.J., AND JAMES J. SWEENEY, J., KEY WORDS: THE JURY S GUILTY VERDICT WAS NOT AGAINST THE SUFFICIENCY OF EVIDENCE WHEN EVIDENCE AT TRIAL SHOWED DEFENDANT HAD IN CUSTODY OR CONTROL OVER THE BABY, THAT DEFENDANT ACTED RECKLESSLY, AND THAT DEFENDANT CREATED A SUBSTANTIAL RISK; COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO FILE A MOTION TO COMPEL FOR A BILL OF PARTICULARS PRIOR TO TRIAL.

3 Court of Appeals, Eighth Appellate District Page: 3 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO STANLEY DOMARADZKI v TEDDY SLIWINSKI REVERSED AND REMANDED. EILEEN A. GALLAGHER, J.; MELODY J. STEWART, P.J., CONCURS, AND COLLEEN CONWAY COONEY, J., DISSENTS. KEY WORDS: LOAN; MANIFEST-WEIGHT; WE WILL NOT REVERSE A TRIAL COURT S BENCH DECISION AS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IF IT IS SUPPORTED BY SOME COMPETENT, CREDIBLE EVIDENCE GOING TO ALL THE ESSENTIAL ELEMENTS OF THE CASE; OUTSTANDING BALANCE; CALCULATIONS COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v KAREEM SHABAZZ PATRICIA ANN BLACKMON, P.J., FRANK D. CELEBREZZE, JR., J., AND EILEEN A. GALLAGHER, J., KEY WORDS: SPEEDY TRIAL; MANIFEST WEIGHT; RECEIVING STOLEN PROPERTY ROCKY RIVER MUNI. C CRIMINAL MUNI. & CITY CITY OF WESTLAKE v JONATHAN MAJERCAK REVERSED AND REMANDED. LARRY A. JONES, J., MELODY J. STEWART, P.J., AND JAMES. SWEENEY, J., KEY WORDS: APPELLANT DID NOT ENGAGE IN CONDUCT OR CREATE A CONDITION THAT PRESENTED A RISK OF PHYSICAL HARM; EVIDENCE WAS INSUFFICIENT TO SUSTAIN DISORDERLY CONDUCT-INTOXICATION CONVICTION COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v BRANDON BLACKMAN LARRY A. JONES, J., FRANK D. CELEBREZZE, JR., P.J., AND SEAN C. GALLAGHER, J.,

4 Court of Appeals, Eighth Appellate District Page: 4 of 10 (Case continued) KEY WORDS: CONVICTIONS WERE SUPPORTED BY SUFFICIENT EVIDENCE AND WERE NOT AGAINST MANIFEST WEIGHT OF THE EVIDENCE WHERE VICTIM IDENTIFIED APPELLANT AS BEING ONE OF THE ASSAILANTS; APPELLANT S SUBSTANTIAL RIGHTS WERE NOT AFFECTED AND THE TRIAL COURT DID NOT COMMIT PLAIN ERROR WHERE THE TRIAL COURT DID NOT SUA SPONTE GIVE THE JURY A LIMITED INSTRUCTION ON APPELLANT S PRIOR CONVICTION COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EUGENE SCHMICK PLEA VACATED, CONVICTION AND SENTENCE REVERSED AND REMANDED. LARRY A. JONES,J., FRANK D. CELEBREZZE, JR., P.J., AND SEAN C. GALLAGHER, J., KEY WORDS: DEFENDANT S PLEA IS INVALID WHEN THE TRIAL COURT FAILED TO INFORM DEFENDANT OF CONSTITUTIONAL RIGHT AGAINST COMPULSORY SELF-INCRIMINATION DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE YVETTE M. SWANSON v JOHN E. SCHOONOVER DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE YVETTE M. SWANSON v JOHN E. SCHOONOVER DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE YVETTE M. SWANSON v JOHN E. SCHOONOVER MARY J. BOYLE, J., PATRICIA ANN BLACKMON, P.J., AND EILEEN A. GALLAGHER, J., KEY WORDS: UNDER R.C (B)(2), A TRIAL COURT MAY SUA SPONTE APPOINT A GUARDIAN AD LITEM FOR CHILDREN IF ONE OF THE PARTIES REQUESTS THE COURT TO INTERVIEW THE CHILDREN. TRIAL COURT DID NOT ERR WHEN IT FOUND MOTHER IN CONTEMPT OF COURT WHEN SHE ADMITTED SHE VIOLATED THE SHARED PARENTING PLAN.

5 Court of Appeals, Eighth Appellate District Page: 5 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO JOSE RIVERA v WILLIAM M. CROSBY ET AL. REVERSED. JAMES J. SWEENEY, J., MARY EILEEN KILBANE, A.J., AND KENNETH A. ROCCO, J., KEY WORDS: APPELLANT S CONVICTION FOR LEGAL MALPRACTICE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHERE APPELLEE S RELIANCE ON THE LEGAL ADVICE OF APPELLANT WAS UTTERLY IMPLAUSIBLE CLEVELAND MUNICIPAL COURT C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v ANTONIO D. CUNNINGHAM MARY J. BOYLE, P.J.; LARRY A. JONES, J., CONCURS; EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION. KEY WORDS: TRIAL COURT PROPERLY DENIED DEFENDANT S MOTION TO SUPPRESS; THE RECORD SUPPORTED THE TRIAL COURT S CONCLUSION THAT THE OFFICER HAD PROBABLE CAUSE TO MAKE A WARRANTLESS ARREST. OFFICER S SEARCH OF THE VEHICLE DID NOT CONTRAVENE THE UNITED STATES SUPREME COURT S DECISION IN ARIZONA V. GANT COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MARLON J. WEEDEN KATHLEEN ANN KEOUGH, J., MELODY J. STEWART, P.J., AND JAMES J. SWEENEY, J., KEY WORDS: IMPOSITION OF POSTRELEASE CONTROL FOR FOURTH DEGREE FELONIES IS DISCRETIONARY WITH PAROLE BOARD UNDER R.C ; DEFENDANT S GUILTY PLEA WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY MADE WHERE TRIAL COURT TOLD HIM PRIOR TO ACCEPTING HIS PLEA TO FOURTH DEGREE THEFT OF A MOTOR VEHICLE THAT UPON RELEASE FROM PRISON, THE PAROLE BOARD MAY AT THEIR DISCRETION PLACE YOU ON POSTRELEASE CONTROL.

6 Court of Appeals, Eighth Appellate District Page: 6 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v KEVIN SHAWN GOSHA AFFIRMED MARY EILEEN KILBANE, A.J., MELODY J. STEWART, J., AND MARY J. BOYLE, J., KEY WORDS: SUFFICIENT EVIDENCE SUPPORTED CONVICTION FOR TAMPERING WITH EVIDENCE UNDER R.C , AS STATE ESTABLISHED THAT DEFENDANT DROVE WHILE CODEFENDANT THREW THE PIECES OF THE DISASSEMBLED GUN OUT OF THE CAR WINDOW. THE TRIAL COURT WAS NOT REQUIRED TO ENGAGE IN JUDICIAL FACT-FINDING PRIOR TO IMPOSING CONSECUTIVE SENTENCES COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JEREMY CALLAN REVERSED AND REMANDED. EILEEN A. GALLAGHER, J., PATRICIA A. BLACKMON, P.J., AND FRANK D. CELEBREZZE, JR., J., KEY WORDS: FRUIT OF THE POISONOUS TREE; WARRANTLESS SEARCH; MOTION TO SUPPRESS; FINDINGS OF FACT; EXCLUSIONARY RULE; EXIGENT CIRCUMSTANCES; DESTRUCTION OF EVIDENCE; ILLEGAL ENTRY; INDEPENDENT SOURCE; RECKLESS DISREGARD FOR THE TRUTH COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MICHAEL CARNEY KATHLEEN ANN KEOUGH, J., MARY EILEEN KILBANE, A.J., AND COLLEEN CONWAY COONEY, J., KEY WORDS: DEFENDANT S SENTENCE OF 24 YEARS WAS NOT CONTRARY TO LAW OR AN ABUSE OF DISCRETION WHEN HE PLED GUILTY TO 20 COUNTS OF PANDERING SEXUALLY ORIENTED MATERIAL INVOLVING A MINOR AND ONE COUNT OF POSSESSING CRIMINAL TOOLS; TRIAL COURT WAS NOT REQUIRED TO MAKE FINDINGS OF FACT PRIOR TO IMPOSING CONSECUTIVE SENTENCES.

7 Court of Appeals, Eighth Appellate District Page: 7 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ANTONIO CAMPBELL REVERSED AND REMANDED. MARY J. BOYLE, P.J., JAMES J. SWEENEY, J., AND KATHLEEN A. KEOUGH, J., KEY WORDS: DEFENDANT CANNOT BE CONVICTED OF FAILURE TO REGISTER AS A SEX OFFENDER BASED ON A VIOLATION OF SEX OFFENDER REGISTRATION REQUIREMENTS UNDER THE AWA, WHEN THE DEFENDANT WAS INITIALLY CLASSIFIED UNDER MEGAN S LAW COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JEFFREY BROOKS REVERSED AND VACATED. PATRICIA ANN BLACKMON, P.J., MARY J. BOYLE, J., AND EILEEN A. GALLAGHER, J., KEY WORDS: DRUG POSSESSION; DRUG TRAFFICKING; IMPROPER VERDICT FORM DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE SALVIA JAVIDAN-NEJAD v ALIREZA NAVADEH REVERSED IN PART, DISMISSED IN PART, REMANDED. KENNETH A. ROCCO, J., MELODY J. STEWART, P.J., AND SEAN C. GALLAGHER, J., KEY WORDS: APPEAL AND ERROR, FINAL ORDER; CHILD CUSTODY, INCONVENIENT FORUM; DIVORCE, CHILD SUPPORT, SPOUSAL SUPPORT; JUDGMENT ENTRY, ON MAGISTRATE S DECISION; MOTIONS, HEARING, OUTSTANDING COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ERIC HOLLY AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. MARY J. BOYLE, J., PATRICIA ANN BLACKMON, P.J., AND EILEEN A. GALLAGHER, J.,

8 Court of Appeals, Eighth Appellate District Page: 8 of 10 (Case continued) KEY WORDS: DEFENDANT'S GUILTY PLEA WAS ENTERED KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY. THE TRIAL COURT FULLY COMPLIED WITH CRIM.R. 11. THE TRIAL COURT, WHO IMPOSED A SIX-YEAR PRISON TERM, DID NOT HAVE THE AUTHORITY TO PERMANENTLY BAR THE DEFENDANT FROM HAVING ANY CONTACT WITH THE VICTIM UPON THE DEFENDANT'S RELEASE FROM PRISON. THAT PORTION OF THE SENTENCE WAS VACATED AND THE IMPOSITION OF SIX YEARS WAS COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v STANLEY BROWN AFFIRMED IN PART, REVERSED IN PART AND REMANDED. LARRY A. JONES, J., MELODY J. STEWART, P.J., AND JAMES J. SWEENEY, J., KEY WORDS: TRIAL COURT DID NOT ERR BY ALLOWING TESTIMONY PURPORTED TO BE HEARSAY WHEN IT WAS NOT OBJECTED TO BY DEFENSE COUNSEL AND OPEN TO QUESTIONING ON CROSS-EXAMINATION; COUNSEL IS NOT INEFFECTIVE FOR NOT RAISING ISSUE OF COMPETENCY WHEN IT IS SHOWN DEFENDANT UNDERSTANDS THE NATURE AND OBJECTIVE OF PROCEEDINGS; FOR PURPOSES OF CONVICTION AND SENTENCING, TWO COUNTS OF BURGLARY THAT INVOLVE ALTERNATE THEORIES OF SAME CRIME SHOULD BE MERGED COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO NATIONAL CITY BANK v JAYNE HERAK, ET AL. JAMES J. SWEENEY, J., MELODY J. STEWART, P.J., AND LARRY A. JONES, J., KEY WORDS: CONTRACT AMBIGUITY, PAROL EVIDENCE RULE CLEVELAND MUNI. G CIVIL MUNI. & CITY CUYAHOGA METROPOLITAN HOUSING AUTHOR v CLAUDE RABB JAMES J. SWEENEY, J., MELODY J. STEWART, P.J., AND LARRY A. JONES, J., KEY WORDS: RES JUDICATA BARS SUCCESSIVE MOTION FOR RELIEF FROM JUDGMENT WHERE ARGUMENTS WERE OR COULD HAVE BEEN RAISED IN PREVIOUSLY FILED MOTION. CIV.R. 60(B).

9 Court of Appeals, Eighth Appellate District Page: 9 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO DARRYL WHITTINGTON v CHASE #(1), ET AL. KENNETH A. ROCCO, J. AND MARY J. BOYLE, P.J., CONCUR; COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY. KEY WORDS: APPEAL AND ERROR, FAILURE TO ARGUE IN TRIAL COURT; CONVERSION; FORFEITURE; MOTION TO DISMISS, RES JUDICATA, SOVEREIGN IMMUNITY; REPLEVIN COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v TYRONE CODY DISMISSED. KENNETH A. ROCCO, J., FRANK D. CELEBREZZE, JR., P.J., AND COLLEEN CONWAY COONEY, J., KEY WORDS: SINCE THIS COURT LACKS JURISDICTION TO CONSIDER NONFINAL ORDERS, APPELLANT S APPEAL FROM UNSUCCESSFUL MOTIONS FOR RECUSAL OF THE TRIAL JUDGE AND FOR JUDICIAL RELEASE IS DISMISSED COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO DYONIZY WENCEL, ET AL. v AMERICAN FAMILY INSURANCE COMPANY KENNETH A. ROCCO, J., MELODY J. STEWART, P.J., AND SEAN C. GALLAGHER, J., KEY WORDS: CONTRACT, BREACH OF, INTERPRETATION; INSURANCE, BAD FAITH, EXCLUSIONS, HOMEOWNERS; JUDGMENT, SUMMARY COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO JAMES YOUNG, ADMINISTRATOR OF THE ES v CUYAHOGA COUNTY BOARD OF MRDD - ET A DISMISSED. EILLEEN A. GALLAGHER, J., JAMES J. SWEENEY, P.J., AND KATHLEEN A. KEOUGH, J.,

10 Court of Appeals, Eighth Appellate District Page: 10 of 10 KEY WORDS: SOVEREIGN IMMUNITY; POLITICAL SUBDIVISION; FINAL APPEALABLE ORDER; JURISDICTION; RECKLESS RETENTION/SUPERVISION.