CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 7. October 24, 2013

Transcription

1 Court of Appeals, Eighth Appellate District Page: 1 of 7 October 24, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RICHARD PENQUE Kathleen Ann Keough, J., Mary J. Boyle, P.J., and Tim McCormack, J., concur. KEY WORDS: Witness competency; right to counsel; jailhouse informant; polygraph examination; sufficiency of the evidence; manifest weight of the evidence; circumstantial evidence; prosecutorial misconduct; jury instructions. Defendant s convictions were supported by sufficient evidence and not against the manifest weight of the evidence where defendant confessed to prison cellmate; cellmate, who suffered from mental illness, was competent to testify; trial court did not abuse its discretion in denying defendant s proposed jury instructions because it gave instructions similar in substance to defendant s proposed instructions COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LAVELLE SULLINS v RAYCOM MEDIA, INC., ET AL. Reconsideration denied. Kenneth A. Rocco, J., Mary J. Boyle, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Trial court erred in entering summary judgment in favor of defendants on defamation claim. Depiction of plaintiff on television program as a fugitive presently wanted on an outstanding warrant for passing bad checks was defamatory per se. Genuine issues of material fact existed precluding summary judgment based on the statutory fair report privilege, common-law qualified privilege, or substantial truth doctrine. Summary judgment; defamation; fair report privilege; R.C Trial court erred in entering summary judgment in favor of defendants on defamation claim based on false depiction of plaintiff on television program as a fugitive presently wanted on an outstanding warrant for passing bad checks. Genuine issues of material fact existed precluding summary judgment based on the fair report privilege.

2 Court of Appeals, Eighth Appellate District Page: 2 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RYAN MACKEY Affirmed in part; reversed in part and remanded. Kathleen Ann Keough, J., Eileen T. Gallagher, J., concur. Melody J. Stewart, A.J., concurs in judgment only. KEY WORDS: Plea colloquy; multi-defendant; mandatory fine; meaningful dialogue; affidavit of indigency. Trial court advised defendant of maximum mandatory fine and thus substantially complied with Crim.R. 11(C); although plea colloquy involved multiple defendants, defendant s guilty plea was knowingly, voluntarily, and intelligently made COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JEMAR R. ATKINSON Kenneth A. Rocco, P.J., Mary Eileen Kilbane, J., and Tim McCormack, J., concur. KEY WORDS: Consecutive sentences R.C (C) authorizes a trial court to impose consecutive sentences as long as the court makes the necessary findings; the offenses need not be related in time COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JEROME CHAVEZ Eileen A. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Sufficient evidence, manifest weight, kidnapping, rape, merger, appointment of counsel, consecutive sentences, moot. Judgment affirmed; the defendant s convictions for kidnapping, which merged with rape for purposes of sentencing were supported by sufficient evidence when the state elicited testimony that the defendant restrained the victim s liberty during the sexual assault, any error made during the sentencing hearing was rendered moot by Chavez s life without parole sentence.

3 Court of Appeals, Eighth Appellate District Page: 3 of PARMA MUNI. C CRIMINAL MUNI. & CITY CITY OF NORTH ROYALTON v JARED A. TURKOVICH Kenneth A. Rocco, J., Frank D. Celebrezze, Jr., P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Motion to suppress, traffic stop, driving under intoxication The municipal court properly denied appellant s motion to suppress evidence, because the police officer s observation of appellant s driving supported the identified citizen informant s tip that appellant seemed to be driving while impaired, thus providing a reasonable basis for the traffic stop of appellant s motorcycle COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MARK KELLOGG Affirmed in part, reversed in part, and remanded. Sean C. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: corrupt activity; indictment; plain error; sentence; foster; contrary to law; pre-h.b. 86; codefendants; restitution; victim s economic loss; substantiated; R.C (A)(1); ineffective assistance of counsel. Trial court did not commit plain error in sentencing appellant to a prison term of 14 years on 103 counts for engaging in a pattern of corrupt activity and related crimes involving a sub-prime mortgage and loaning scheme. The pre-h.b.86 sentence was not contrary to law or inconsistent with sentences imposed upon codefendants. However, the court did commit plain error in ordering an amount of restitution that was not based on proper considerations under R.C (A)(1) or fully substantiated by the record. Ineffective assistance of counsel was not established COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO RICHARD LENARD v DUANE MILLER, ET AL. Mary J. Boyle, P.J., Larry A. Jones, Sr., J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Motion to dismiss; evidence outside pleadings; converted motion for summary judgment; notice; motion to stay;

4 Court of Appeals, Eighth Appellate District Page: 4 of 7 (Case continued) res judicata; statute of limitations; pro se. Trial court properly converted defendants motions to dismiss into motions for summary judgment, providing all parties notice and the plaintiffs an additional 30 days to file a supplemental responsive brief. Trial court did not abuse its discretion in denying plaintiffs motion to stay for an indefinite amount of time. Plaintiffs claims were barred under the doctrine of res judicata and statute of limitations COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOSE A. SIMS Kenneth A. Rocco, J., Frank D. Celebrezze, Jr., P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Competency to stand trial; Effective assistance of counsel Because appellant had been evaluated prior to trial and was found competent, and because appellant s behavior during trial did not indicate he had any difficulty in assisting in his own defense, the court did not err in failing to order another competency evaluation, and trial counsel was not ineffective for failing to request another competency evaluation COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LUISA COLE v MACY'S, INC., ET AL. Sean C. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: motion to compel arbitration; R.C ; failure to opt out of automatic enrollment; genuine issue of material fact; summary judgment. The trial court did not err in determining that there was no genuine issue of material fact necessitating a summary trial pursuant to R.C (A) because the plaintiff s failure to opt out through the methods established by the terms of an arbitration agreement with an automatic enrollment provision was not disputed and there were no other reasons to question the making of an arbitration agreement.

5 Court of Appeals, Eighth Appellate District Page: 5 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO STATE OF OHIO v J.D. Reversed. Frank D. Celebrezze, Jr., P.J., and Kenneth A. Rocco, J., concur; Sean C. Gallagher, J., concurs with separate opinion. KEY WORDS: KEYWORDS: Sealing of records; R.C ; legitimate interests; burden on movant; privacy; use in civil litigation. The trial court erred in sealing records pursuant to R.C where the movant did not offer any evidence in support and the state demonstrated a legitimate need for the records in defending civil suit COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MARTIN FORTE Reversed and remanded. Mary J. Boyle, P.J., Larry A. Jones, Sr., J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Maximum fine; contrary to law; fourth degree felony. The trial court s imposition of a $10,000 fine on a fourth degree felony was contrary to law. The fine must be vacated CLEVELAND MUNI. C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v KENNETH S. TAYLOR Kenneth A. Rocco, P.J., Mary Eileen Kilbane, J., and Tim McCormack, J., concur. KEY WORDS: Appellate waiver, defective complaint, sufficient evidence, Evid.R. 611(A) Because they were not raised in the municipal court, appellant s constitutional arguments were waived for purposes of appeal. This court also has no duty to address assignments of error that are not presented in accordance with App.R. 16(A)(7). The municipal court did not err in failing to dismiss the complaint against appellant because the citation was adequate to inform him that he was charged with scalping tickets and because the

6 Court of Appeals, Eighth Appellate District Page: 6 of 7 (Case continued) evidence was sufficient to prove his guilt of the offense. Without a proffer, this court cannot find that the municipal court abused its discretion in limiting appellant s cross-examination of the city s witness PROBATE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE ESTATE OF MARTHA O. RAND Dismissed. Melody J. Stewart, A.J., Frank D. Celebrezze, Jr., J., and Sean C. Gallagher, J., concur. KEY WORDS: Final order; R.C (B)(1); substantial rights; will. Appellate court lacked final order in appeal from an order denying exceptions to estate inventory filed by heirs to a will because resolution of the exceptions would not affect the ability of the heirs to receive their specific bequests when the assets of the estate were more than sufficient to fund specific cash bequests and the residuary of the estate was left to a legatee who was not a party to the exceptions CLEVELAND MUNI. C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v BARBARA ANDERSON Frank D. Celebrezze, Jr., P.J., Sean C. Gallagher, J., and Kenneth A. Rocco, J., concur. KEY WORDS: Property rights; building violations; reasonable use; swale excavation; easement; uniform assessment; R.C (1)(1). The trial court s decision was supported by sufficient evidence; the trial court had no obligation to order a uniform assessment of defendant s property; defendant provided no evidence to demonstrate the existence of an easement on the adjoining property COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO PEGGY HANDFORD v BUY RITE OFFICE PRODUCTS, INC.

7 Court of Appeals, Eighth Appellate District Page: 7 of 7 Kenneth A. Rocco, J., Frank D. Celebrezze, Jr., P.J., and Sean C. Gallagher, J., concur. KEY WORDS: summary judgment; R.C (A); overtime compensation; R.C ; whistleblower; constructive discharge The trial court did not err in granting summary judgment in favor of the employer on the employee s claims that she was deprived of overtime compensation, that her employer violated Ohio s Whistleblower Statute, and that she was subjected to constructive discharge.