CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 7. October 16, 2014

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1 Court of Appeals, Eighth Appellate District Page: 1 of 7 October 16, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JAMES M. BECKER, III Mary Eileen Kilbane, J., Kenneth A. Rocco, P.J., and Patricia A. Blackmon, J. concur. KEY WORDS: Sufficient evidence; manifest weight; ineffective assistance of counsel; motion to suppress; right to testify; jury instructions; lesser included offense; relevant evidence; reckless; plain error; unlawful sexual conduct with another; corrupting another with drugs. Defendant s convictions for unlawful sexual conduct with a minor and corrupting another with drugs affirmed. The state presented sufficient evidence that defendant was reckless with regard to victim s age despite victim listing age as 21 on Facebook. The convictions were not against the manifest weight of the evidence. The defendant was not denied effective assistance of counsel when he did not testify at trial and counsel did not file a motion to suppress. The trial court s error of inverting victim s age when reading the jury instructions was not plain error as it was an isolated mistake. Furthermore, a jury instruction on the lessor included offense of sexual imposition was not warranted COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LARRY ROSS Affirmed and remanded. Eileen T. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: allocution, firearm specifications, resentence, judicial fact-finding, consecutive sentence, journal entry, nunc pro tunc. Defendant s sentence imposed on remand affirmed. The court afforded the defendant his right of allocution. The seven year firearm specification attendant to felonious assault charge did not merge with one- and three-year firearm specifications. Court properly relied on victim's statements in the record from the first sentencing hearing when imposing new sentence on remand. Court made necessary findings for imposition of consecutive sentences but failed to incorporate findings in the journal entry as required by State v. Bonnell.

2 Court of Appeals, Eighth Appellate District Page: 2 of CLEVELAND MUNI. C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v JIMMY A. EVANS Frank D. Celebrezze, Jr., P.J., and Eileen A. Gallagher, J., concur; Larry A. Jones, Sr., J., concurs in judgment only. KEY WORDS: Speedy trial; multiple charges stemming from single course of conduct; start date for multiple cases; double jeopardy; prior plea agreement as a bar to further prosecution; Intoxilyzer 8000; motion to suppress; general attack on the reliability of the Intoxilyzer Appellant s speedy trial rights were not violated where he was brought to trial within the allowed period. The time between indictments when appellant was not under arrest, bond, and no charges pending is not counted against the state. Appellant did not possess a reasonable belief that a plea agreement that disposed of a previous municipal court case that arose from the same events precluded further prosecution for O.V.I. The trial court did not err in overruling appellant s motion to suppress the breath test results because he lodged only a general attack on the reliability of the equipment used COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ELLIOT MILLER Eileen A. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Judgment affirmed; Megan s Law; sexually oriented offender; classification hearing; operation of law. The judgment of the trial court is affirmed; the defendant s status as a sexually oriented offender under Megan s Law attached by operation of law to his 2009 conviction for gross sexual imposition COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ANDREY BRIDGES Mary J. Boyle, A.J., Frank D. Celebrezze, Jr., J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Manifest weight of the evidence; sufficiency of the evidence; tampering with evidence; abuse of a corpse;

3 Court of Appeals, Eighth Appellate District Page: 3 of 7 (Case continued) circumstantial evidence. The state presented sufficient circumstantial evidence to prove beyond a reasonable doubt that defendant was guilty of tampering with evidence and abuse of a corpse. Defendant s convictions were not against the manifest weight of the evidence COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v BENJAMIN KLEPATZKI Kathleen Ann Keough, J., Kenneth A. Rocco, P.J., and Melody J. Stewart, J., concur. KEY WORDS: Civ.R. 60(B); Megan s Law; former R.C ; presumptive registration-exempt; sexually oriented offenses; sexual predator; R.C ; res judicata Defendant s subsequent convictions were not presumptively registration-exempt sexually oriented offenses because he had a prior conviction for a sexually oriented offense. Therefore, because his sexual predator classification was upheld by this court on a prior appeal, res judicata bars his challenge to his sexual offender classification LAKEWOOD MUNI. C CRIMINAL MUNI. & CITY CITY OF LAKEWOOD v FRED ABDELHAQ Reversed. Eileen A. Gallagher, J., Larry A. Jones Sr., J., concur; Frank D. Celebrezze, Jr., P.J., dissents (with separate opinion). KEY WORDS: Judgment reversed; obstructing official business; affirmative act. The judgment of the trial court is reversed; Abdelhaq s conviction for obstructing official business is vacated; the city failed to demonstrate an affirmative act; the defendant s actions, at best, constituted an annoyance to the officers, not an affirmative act to obstruct the business of the police officers.

4 Court of Appeals, Eighth Appellate District Page: 4 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v BRIANNA ROGERS Kathleen Ann Keough, P.J., Tim McCormack, J., and Eileen T. Gallagher, J., concur. KEY WORDS: sentencing; R.C ; R.C Record evidences that the trial court considered the purposes and principles of sentencing pursuant to R.C and the seriousness and recidivism factors contained in R.C COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MARIA CINTRON-COLON v SAVE-A-LOT, ET AL. Eileen A. Gallagher, J., Mary J. Boyle, A.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Motion for summary judgment, de novo review, slip and fall, open and obvious doctrine, duty of care. The judgment of the trial court is affirmed; the existence of a puddle of yellow liquid on a store s floor constituted an open-and-obvious condition that could have been observable by the reasonable person, the store owed no duty to warn the invitee of this condition COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JERMONE CARRINGTON Affirmed and remanded. Tim McCormack, J., Kathleen Ann Keough, P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Ineffective assistance of counsel; plea; Crim.R. 11; knowingly, voluntarily, and intelligently; mental health; R.C and ; consecutive sentence; R.C (C)(4); findings. Appellant s counsel was not ineffective because appellant failed to show that counsel s failure to obtain a mental health evaluation caused appellant s plea to be less than knowingly, voluntarily, and intelligently waived. The trial court satisfied its obligations under R.C and and made the requisite consecutive sentence findings under R.C (C)(4).

5 Court of Appeals, Eighth Appellate District Page: 5 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v TAI-RON R. CROCKETT Mary Eileen Kilbane, J. and Kenneth A. Rocco, concur; Sean C. Gallagher, P.J., concurs (see separate concurring opinion). KEY WORDS: Allied offenses; felonious assault; murder. Where the defendant agreed prior to his plea that felonious assault is not an allied offense of the murder and agreed to the duration of the sentence, trial court did not err in failing to merge the offenses COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO CHARLES DAVID SNYDER v KENNETH GRANT, ET AL. Affirmed and remanded. Eileen T. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: Due process; R.C ; landlord-tenant; bond; rent; R.C ; counterclaim; abuse of discretion; dismissal with prejudice; default judgment; money damages. Judgment in plaintiffs favor and dismissal with prejudice of defendant s counterclaim affirmed. Defendant-tenant failed to make bond deposits with clerk of court to cover monthly rent during pendency of litigation in violation of court order. Defendant was given ample notice that failure to comply with court order would result in dismissal of his counterclaim and judgment on plaintiff s claims in their favor. Case remanded solely for determination of money damages COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v PHILLIP R. WASHINGTON Sean C. Gallagher, P.J., Kenneth A. Rocco, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Sufficiency of the evidence; manifest weight of the evidence; dwelling; habitation; burglary; breaking and entering; felony vandalism; ineffective assistance of counsel; allied offenses; merger of sentences. The defendant s conviction was not against the sufficiency of the evidence because for the purposes of the burglary and breaking and entering charges, dwelling and habitation refers to the

6 Court of Appeals, Eighth Appellate District Page: 6 of 7 (Case continued) characteristic of the structure, not the actual occupation of that structure. The trial court did not err by sentencing the defendant to burglary and breaking and entering and the offenses giving rise to the criminal purpose element of each COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DAVE WARD Eileen T. Gallagher, J., Eileen A. Gallagher, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Presentence motion to withdraw guilty plea; Crim.R. 11(C); prosecutorial misconduct; privilege against self-incrimination. Trial court did not err in denying defendant s presentence motion to withdraw his guilty plea, where the trial court fully complied with Crim.R. 11(C)(2)(c) during his plea hearing. Trial court properly conducted a formal hearing on defendant s motion, and gave it full and fair consideration. Allegations of evidence not being shared with defendant during discovery do not rise to that of prosecutorial misconduct where the evidence in question was favorable to defendant s case COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v NATHANIEL C. SIMPSON, SR. Sean C. Gallagher, P.J., Kenneth A. Rocco, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Tampering with records; R.C (A)(1); governmental agency; fabricated; letter; insufficient evidence; effective assistance of counsel; indigent; affidavit; maximum fine; reasonable probability; R.C (B)(5); ability to pay; presentence investigation report. Appellant s conviction for tampering with records was sustained by sufficient evidence where evidence showed that appellant fabricated a letter purporting to be from the Ohio Department of Taxation and filed it in support of a motion for a new trial in a civil action. Appellant failed to demonstrate ineffective assistance of counsel where the record did not show a reasonable probability that the trial court would have found him indigent for purposes of the payment of a maximum fine. The trial court complied with R.C (B)(5) when it reviewed a presentence investigation report that contained information to assess appellant s present and future ability to pay the fine.

7 Court of Appeals, Eighth Appellate District Page: 7 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CORNELIUS MOORER Mary J. Boyle, A.J., Frank D. Celebrezze, Jr., J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Res judicata. Trial court properly denied defendant's motion to correct clerical error. Aside from having no merit, defendant's claims are barred by the doctrine of res judicata.