CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 8. August 30, 2012

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1 Court of Appeals, Eighth Appellate District Page: 1 of 8 August 30, CLEVELAND MUNICIPAL COURT C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v KATHY WRAY COLEMAN Frank D. Celebrezze, Jr., P.J., Kenneth A. Rocco, J., and Eileen A. Gallagher, J., concur. KEY WORDS: Appellant s conviction for resisting arrest was supported by sufficient evidence and was not against the manifest weight of the evidence; the potential error in permitting the introduction of impermissible Evid.R. 404(B) other acts evidence was harmless beyond a reasonable doubt; appellant s challenge to the prosecutor s statements during closing arguments failed to satisfy the prosecutorial misconduct standard; the privilege from arrest granted to parties under R.C relates only to civil arrests while going to, attending, or returning from court, and such sections do not privilege witnesses from arrest for crimes or misdemeanors at such times; pursuant to Evid.R. 902(4), the trial court did not abuse its discretion by permitting the city to introduce into evidence a photocopy of a certified copy of a municipal court journal entry COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO SLAVIC FULL GOSPEL CHURCH, INC. v VIKTOR VERNYUK, ET AL. James J. Sweeney, J., Frank D. Celebrezze, Jr., P.J., and Mary Eileen Kilbane, J., Concur. KEY WORDS: Court s granting summary judgment to defendants affirmed. Court has no subject matter jurisdiction over ecclesiastical matters, disposing of two causes of action, and plaintiff failed to meet burden to overcome summary judgment in third cause of action COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO STATE OF OHIO v MONIQUE BARTEE Patricia Ann Blackmon, A.J., Mary J. Boyle, J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Postrelease control; murder; voluntary manslaughter.

2 Court of Appeals, Eighth Appellate District Page: 2 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO JARED HYAMS, ET AL. v CLEVELAND CLINIC FOUNDATION, ET AL Mary J. Boyle, P.J., Colleen Conway Cooney, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Trial court did not abuse its discretion in denying defendant s motion to strike plaintiff s expert testimony. Aside from defendant s waiver of any objection on Evid.R. 601(D) grounds, the record revealed that the expert was competent to testify. Having denied the motion to strike, trial court also properly denied defendant s motion for a directed verdict. Defendant also failed to demonstrate any prejudice from evidentiary rulings that it challenged on appeal; therefore, defendant is not entitled to a reversal COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CHRISTOPHER RICHMOND Reversed and remanded for resentencing. Melody J. Stewart, P.J., Kenneth A. Rocco, J., concurs; Mary J. Boyle, J., concurs in part and dissents in part with separate opinion. KEY WORDS: A trial court must obtain and then review a presentence investigation report prior to ordering community control sanctions. A sentence of community control sanctions that is ordered without first considering a presentence investigation report is not authorized by law. Probation department supervision not required for community control sanction when there is nothing to supervise COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO JENNIFER J. PIERCE v FRANK J. WOYMA, JR., ET AL. Reversed and remanded. Eileen A. Gallagher, J., Frank D. Celebrezze, Jr., J., concur; Melody J. Stewart, P.J., concurs in part and dissents in part with separate opinion. KEY WORDS: Judgment reversed; an off-duty police officer acting within the course and scope of his employment is entitled to a grant of immunity for purposes of summary judgment when the facts are clear and fail to rise to the level of conduct that could be construed as malicious, in bad faith, or wanton and reckless; the denial of appellant s discovery motion is interlocutory and did not create a

3 Court of Appeals, Eighth Appellate District Page: 3 of 8 (Case continued) final appealable issue for this court to review COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v STEVEN BARRETT Melody J. Stewart, P.J., Colleen Conway Cooney, J., concurs in judgment only with separate opinion; Sean C. Gallagher, J., dissents with separate opinion. KEY WORDS: No plain error shown in court s failure to merge child pornography counts because the record from defendant s guilty plea failed to show any facts making error obvious COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ROBERT BATES COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ROBERT L. BATES COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ROBERT BATES COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ROBERT BATES Sean C. Gallagher, J., Mary J. Boyle, P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: guilty plea; Crim.R. 11; substantial compliance; maximum; mandatory; firearm specifications; totality of the circumstances; presentence motion to withdraw; abuse of discretion DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE SALVIA JAVIDAN-NEJAD v ALIREZA NAVADEH Mary J. Boyle, J., Patricia Ann Blackmon, A.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Before a trial court can modify a prior spousal support order, it must find that a substantial change in circumstances occurred and that the change was not contemplated

4 Court of Appeals, Eighth Appellate District Page: 4 of 8 (Case continued) by the original decree. Further, the change in circumstances must not have been purposely brought about by the party seeking the modification COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EDDIE DAVIS COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EDDIE DAVIS COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EDDIE DAVIS Colleen Conway Cooney, J., and Eileen A. Gallagher, J., concur; Patricia Ann Blackmon, A.J., concurs in judgment only (with separate opinion attached). KEY WORDS: Consecutive sentences; H.B. 86; R.C (C)(4) COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO N. KURT WIEBUSCH v CITY OF CLEVELAND CIVIL SERV. COMM. Frank D. Celebrezze, Jr., P.J., Kenneth A. Rocco, J., and Eileen A. Gallagher, J., concur. KEY WORDS: The common pleas court s decision upholding the termination of the former Commissioner of Architecture for the city of Cleveland, a classified civil service position, for cause was supported by reliable, probative, and substantial evidence and was not unconstitutional or contrary to law COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LASHAWN AMOS Kenneth A. Rocco, J., James J. Sweeney, P.J., and Kathleen Ann Keough, J., concur. KEY WORDS: Appellant s sentence of a fine in combination with time-served in jail for a fifth degree felony drug conviction was neither contrary to law nor an abuse of discretion.

5 Court of Appeals, Eighth Appellate District Page: 5 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RANDY F. BAILEY Larry A. Jones, Sr., J., Patricia Ann Blackmon, A.J., and Mary J. Boyle, J., concur. KEY WORDS: Improperly discharging firearm at or into a habitation; manifest weight; issues of credibility COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ALBERT THROWER v REGINA MARIE BOLDEN, ET AL. Mary J. Boyle, P.J., James J. Sweeney, J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Litigant s failure to properly appeal the arbitration award pursuant to Loc.R. 29 required the trial court to enter judgment on the award. Rule 15(A) of the Rules of Superintendence for the Courts of Ohio expressly permits courts to adopt a plan for mandatory arbitration of civil cases. Loc.R. 29 of the Cuyahoga County Common Pleas Court governs arbitration, and pursuant to this rule, the trial court has the authority to refer a civil case to arbitration. It is well settled that Loc.R. 29 is constitutional and consistent with Sup.R. 15. Trial court properly granted summary judgment in favor of defendant on plaintiff s claims. Plaintiff failed to present any Civ.R. 56 evidence demonstrating a genuine issue of material fact or rebutting defendant s evidence that it was entitled to judgment as a matter of law CLEVELAND MUNI. G CIVIL MUNI. & CITY CITY OF CLEVELAND v IAN J. ABRAMS, ET AL. Sean C. Gallagher, J., Larry A. Jones, Sr., P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: frivolous conduct; sanctions; R.C ; abuse of discretion; evidentiary support; tactical error; unsuccessful claim

6 Court of Appeals, Eighth Appellate District Page: 6 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DONNA SHERMAN Sentence vacated; remanded for resentencing. Frank D. Celebrezze, Jr., J., Eileen A. Gallagher, J., concur; Melody J. Stewart, P.J., concurs (with separate concurring opinion attached). KEY WORDS: The trial court s failure to address at all the proportionality requirement when imposing sentence that departed from the presumption of prison when the state presented significant evidence of sentences imposed for substantially similar individuals was error COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ALAN POPTIC, ET AL. v ANNETTE MULBY, ET AL. Dismissed. Kenneth A. Rocco, J., Frank D. Celebrezze, Jr., P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: After the real party in interest moved to be dismissed from the appeal, the only remaining appellant was the attorney-in-fact. The attorney-in-fact lacked standing to bring the appeal because he could no longer bring the appeal in the name of the real party in interest. Accordingly, the appeal was dismissed pursuant to Civ.R. 17(A) EUCLID MUNI. C CRIMINAL MUNI. & CITY CITY OF EUCLID v KRISTEN R. JONES Patricia Ann Blackmon, A.J., Mary J. Boyle, J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Motion to Suppress; Hit/Skip; Crime in Progress COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CHRISTOPHER GILMORE Frank D. Celebrezze, Jr., P.J., Kenneth A. Rocco, J., and Eileen A. Gallagher, J., concur.

7 Court of Appeals, Eighth Appellate District Page: 7 of 8 (Case continued) KEY WORDS: The trial court did not err in denying appellant s postsentence motion to withdraw his guilty pleas without hearing where the reasons alleged were barred by res judicata, and had no probability of success COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO BRYAN LUTON v STATE OF OHIO UNEMPLOYMENT,ETC.,ETAL Eileen A. Gallagher, J., Kenneth A. Rocco, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Judgment affirmed; appellant failed to name all interested parties in his notice of appeal to the court of common pleas, as such, he failed to comply with the mandatory requirements of R.C , which deprived the court of common pleas of jurisdiction to hear the appeal COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LESTER JOHNSON v STATE OF OHIO Reversed and remanded. Larry A. Jones, Sr., and Patricia Ann Blackmon, A.J., concur; Kathleen Ann Keough, J., dissents with separate opinion. KEY WORDS: R.C /wrongfully imprisoned; summary judgment; Adam Walsh Act; Megan s Law; failure to register COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO CITY OF SHAKER HEIGHTS, ET AL. v SYLVIA DEFRANCO, ET AL. Melody J. Stewart, P.J., Colleen Conway Cooney, J., and Sean C. Gallagher, J., concur. KEY WORDS: Townships may hire lobbyists to advocate on their behalf and are not limited solely to lobbying through the Ohio Township Association. In addition, both townships and municipalities could join a council of governments to lobby for retaining state estate tax. Townships and municipalities did not exceed their home rule authority by using public funds to hire lobbyists to advocate against the repeal of the estate tax. Even though retention of the estate tax might have some ancillary, extraterritorial effect, the lobbying serves the primary purpose of seeking to retain revenue generated by the estate tax for members of the council of governments.

8 Court of Appeals, Eighth Appellate District Page: 8 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO JATSEK CONSTRUCTION CO., INC. v BURTON SCOT CONTRACTORS, LLC., ET AL Reversed and remanded. Larry A. Jones, Sr., J., Patricia Ann Blackmon, A.J. and Mary J. Boyle, J., concur. KEY WORDS: Motion to stay proceedings pending arbitration COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LORI MUSARRA v CUYAHOGA COUNTY AUDITOR, ET AL. Eileen A. Gallagher, J., and Kenneth A. Rocco, J., concur; Frank D. Celebrezze, Jr., P.J., concurs in judgment only. KEY WORDS: Judgment affirmed. Failure to serve all appellees by certified mail constitutes a jurisdictional failure of joinder and service, depriving the trial court of subject matter jurisdiction to hear the appeal COMMON PLEAS COURT B CRIMINAL C.P. (DEATH PENALTY) STATE OF OHIO v ABDUL H. AWKAL COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ABDUL HAMIN AWKAL Dismissed. Patricia Ann Blackmon, A.J., Colleen Conway Cooney, J., concur; Sean C. Gallagher, J., concurs in judgment only with separate opinion attached. KEY WORDS: The state does not have an appeal as of right to appeal from the trial court s finding a defendant incompetent to be executed pursuant to R.C and The proceedings do not constitute a petition for postconviction relief and the statute does not contemplate an appeal by the state. We deny the state leave to file the appeal because the legislature did not intend to provide the state with the ability to appeal and the order is not a final appealable order. A defendant s substantial right is affected when in the absence of an immediate appeal, it forecloses the appropriate relief in the future. In the instant case, once Awkal is found to be competent, he will be executed. We are not at the juncture where it has been determined that Awkal can never be made competent.