CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 5. January 22, 2015

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1 Court of Appeals, Eighth Appellate District Page: 1 of 5 January 22, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DANA STRONG Reversed and remanded. Eileen A. Gallagher, J., Mary J. Boyle, P.J., concur. Kenneth A. Rocco, J., dissents (with separate opinion). KEY WORDS: Jury Instruction; Batson. Trial court properly denied request for lesser included offense jury instruction where there was no evidence to support the charge. Trial court erred in denying Batson challenge where defense met the prima facie case, state s non-discriminatory reason (Juror s wide-eyed look indicated inability to be attentive) was inherently suspect and the trial court accepted the reason without inquiry and despite admitting that it had not seen the same conduct from the particular juror. Furthermore, both the defense attorney and the court previously examined the juror during voir dire and discovered no problems. During said questioning juror indicated he could be attentive COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO WILLIAM WHOLF v TREMCO INCORPORATED, ET AL. Reversed and remanded. Eileen T. Gallagher, J., Frank D. Celebrezze, P.J., and Melody J. Stewart, J., concur. KEY WORDS: Discrimination; retaliation; but-for causation standard; prima facie case; burden of production; burden of persuasion; Title VII; summary judgment; McDonnell Douglas framework. Summary judgment reversed. Trial court misapplied the but-for causation standard to plaintiff s retaliation claim by requiring him to conclusively prove his entire case in the prima facie stage of the McDonnell Douglas burden-shifting framework COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EVONTAE WILLIAMS Mary J. Boyle, P.J., Frank D. Celebrezze, Jr., A.J., and Kathleen Ann Keough, J., concur.

2 Court of Appeals, Eighth Appellate District Page: 2 of 5 (Case continued) KEY WORDS: Hearsay testimony; flight instruction; denial of right to present defense witnesses; sufficiency and manifest weight of the evidence. The trial court did not abuse its discretion in allowing the statement as an excited utterance where sufficient evidence exists to satisfy all four prongs of Potter. Trial court did not abuse its discretion by giving flight instruction; the evidence warranted the instruction. Trial court did not deny defendant right to present defense witnesses; defendant expressly indicated that he was not presenting any witnesses. The state presented sufficient evidence to support the murder conviction; collective evidence from the eyewitness testimony established that defendant fired gun at victim. Another eyewitness testified that defendant was the only person running with a gun following the shooting. Based on evidence in the record, this is not the exceptional case in which evidence weighs heavily against the conviction COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LAWRENCE B. BENNETT Sentence reversed and vacated. Mary J. Boyle, P.J., Kathleen Ann Keough, J., and Tim McCormack, J., concur. KEY WORDS: Motion to withdraw guilty plea; restitution; allied offenses of similar import. The trial court did not err when it denied the defendant s motion to withdraw his plea, but it did err at sentencing when it failed to merge the defendant s convictions because the state and the defendant agreed the convictions would merge as part of the plea bargain. The trial court did not err by imposing restitution as the defendant agreed to pay it as part of his plea bargain COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO NDHMD, INC. v CUYAHOGA COUNTY BD. OF REVISION,ETAL COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO NDHMD, INC. v CUYAHOGA COUNTY BD. OF REVISION,ETAL Tim McCormack, J., Mary J. Boyle, P.J., and Kathleen Ann Keough, J., concur. KEY WORDS: Valuation complaint; second filing; auction sale; arm's length. The property owner presented sufficient evidence to rebut the

3 Court of Appeals, Eighth Appellate District Page: 3 of 5 (Case continued) presumption that the auction sale of the subject property was not at arm s length, and therefore, met the burden of establishing one of the exceptions enumerated under R.C (A)(2), which prohibits a second valuation complaint within an interim period COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOHN WESTFALL Affirmed in part and reversed in part; remanded for resentencing. Sean C. Gallagher, P.J., Eileen T. Gallagher, J., and Melody J. Stewart, J., concur. KEY WORDS: Attempted murder; felonious assault; domestic violence; sufficiency; manifest weight; ineffective assistance; allied offenses; merger. Appellant s conviction for attempted murder and domestic violence was supported by sufficient evidence and was not against the manifest weight of the evidence. Defense counsel did not render ineffective assistance by failing to raise the affirmative defense of abandonment. The offenses of attempted murder and domestic violence were allied offenses of similar import that the trial court should have merged for sentencing COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v KENNETH MATTHEWS Affirmed in part and reversed in part. Melody J. Stewart, J., Sean C. Gallagher, P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Murder; manifest weight; postrelease control; abuse of discretion; restitution; documentary evidence. Defendant s conviction for murder was not against the manifest weight of the evidence. Further, the court acted properly by not advising the defendant of postrelease control because postrelease control does not apply to the unclassified felony of murder. The court however, did err in ordering restitution without competent, credible evidence of the amount of losses suffered by the victim s family.

4 Court of Appeals, Eighth Appellate District Page: 4 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO STATE OF OHIO v J.S. Vacated and remanded. Sean C. Gallagher, J., Larry A. Jones, Sr., P.J., and Tim McCormack, J., concur. KEY WORDS: Expungement; sealing; R.C (A)(1); eligible offender; R.C (A); substantially similar; minor misdemeanor; increased penalty; municipal ordinance; equal protection; rationally related; governmental interest. Trial court s decision granting application for sealing of the record pursuant to R.C (A)(1) was vacated. Defendant s prior disorderly conduct conviction, which was a fourth-degree misdemeanor under the municipal ordinance for which he was convicted but a minor misdemeanor under the analogous state statute, was not an offense substantially similar to the statutory sections specifically listed under R.C (A). Case was remanded for a determination of whether precluding expungement in such a case would result in a violation of the federal and state Equal Protection Clauses COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RICHARD L. DAVIS Affirmed in part, reversed in part, and remanded. Eileen T. Gallagher, J., and Sean C. Gallagher, P.J., concur, Melody J. Stewart, J., concurs in part, and dissents in part with separate opinion. KEY WORDS: Drug trafficking; drug possession; maximum penalty involved; substantial compliance; consecutive sentences; allied offenses; conceded error. Appellant was not prejudiced by the trial court s misstatement regarding the maximum penalties he could receive at sentencing. However, the state concedes the trial court failed to make the required findings for the imposition of consecutive sentences. The state also concedes the trial court failed to merge allied offenses. Sentence vacated and remanded for resentencing COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LOUIS J. PAVLICK v CLEVELAND HEIGHTS BOARD OF EDUCATION Eileen T. Gallagher, J., Sean C. Gallagher, P.J., and Melody J. Stewart, J., concur.

5 Court of Appeals, Eighth Appellate District Page: 5 of 5 KEY WORDS: Employment; disability discrimination; prima facie case; actual disability; regarded as disabled; record of disability. Trial court did not err in granting summary judgment to the defendant-employer where plaintiff-employee failed to establish the first prong of his prima facie case of disability discrimination. Plaintiff failed to prove he fell under any of the three definitions of disabled, pursuant to R.C (A)(13) COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MILTON COTTON Eileen A. Gallagher, J., Frank D. Celebrezze Jr., A.J., and Sean C. Gallagher, J., concur. KEY WORDS: R.C ; R.C ; unspecified felony; indefinite sentence; Void. Trial court did not err in imposing a four-year prison term for appellant s violation of R.C because, at the time of the offense, that sentence was within the statutory range pursuant to R.C